Return to Work Corporation of South Australia v Summerfield [2021] HCATrans 183 (5 November 2021)

Last Updated: 9 November 2021

[2021] HCATrans 183

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A13 of 2021

B e t w e e n -

RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA

Applicant

and

SHANE SUMMERFIELD

Respondent

Application for special leave to appeal

GORDON J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO MELBOURNE AND SYDNEY

ON FRIDAY, 5 NOVEMBER 2021, AT 9.28 AM

Copyright in the High Court of Australia
GORDON J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR B.W. WALKER, SC appears with MR B.C. ROBERTS, QC and MR D.F. O’LEARY, SC for the applicant. (instructed by Sparke Helmore Lawyers)

MR M.J. RODER, QC appears with MS R.D. DE PALMA for the respondent. (instructed by KC Lawyers SA)

GORDON J: Yes, Mr Walker. Mr Walker, I think you are on mute, and we cannot hear anything that you are saying at the moment, even though we would like to.

MR WALKER: I apologise, your Honours. Your Honours, as you have seen from the way in which costs were treated in the court below, and were we to be granted special leave, we propose and accept costs should be treated in this Court, we have advanced our position in these proceedings by way of what could fairly be called a test case.

Furthermore, there is nothing abstractly intellectual about the test case position. It involves a consequence of considerable fiscal magnitude, as you have seen from the affidavit evidence upon which we rely, a present disposition, we submit, of something in excess of $700 million turning on the outcome of the approach taken adversely to our arguments below.

If I could ask your Honours to turn please to page 100 of the application book, your Honours will see how the statute, the Return To Work Act, deals with the category of person described as “Seriously injured workers”, and in this important piece of social legislation, providing obviously a balance of proper welfare plus economy, it is the seriously injured worker that is to be regarded as entitled to the most generous care in financial terms.

You will see that such a person is defined by section 21(2) of the Act, as a person of whom the following things are true, using words which convey significant concepts in the scheme. A person who suffered a work injury, and that injury:

has resulted in permanent impairment and the degree of whole person impairment has been assessed under Division 5 of this Act to be 30% or more.

After means, administrative and expert, for the assessments being dealt with in section 21, your Honours will see in section 21(8), at the foot of 100 and on 101, one of the provisions concerning what might be called a combination or aggregating of otherwise discretely observed health outcomes for the purpose of assessing whether the 30 per cent threshold has been met and, in particular a policy decision taken not to permit the aggregation or combination for that purpose of what is called physical injury and psychiatric injury. Your Honours will see that, in particular, as I say, in subsection (8), emphasised in particular in paragraph (8)(d).

Then we come, over the page – pages 102 and 103 – to the particular provision which was construed against us in the Court of Appeal – that is in the Full Court, I should say –by leave from the Full Bench ‑ ‑ ‑

GORDON J: Mr Walker, may I ask you about that question, just before you get to 22(8)(c). When you look at your proposed grounds of appeal, this is really an application to reopen or, in effect, overturn Preedy, is it not?

MR WALKER: It is. I was about to come to that very point. Yes, there is no way of avoiding that either we would seek to persuade the Court that Preedy is a curate’s egg - paragraph 54 is acceptable, paragraph 55 is misguided – or, taking, if I may call it, the only true begetter to be accurately describing the status of 55 as ratio decidendi, then it is wrong.

GORDON J: This is peculiarly South Australian legislation?

MR WALKER: I cannot say anything other than yes to that.

GORDON J: The reason why I ask that is you properly, I think, have taken us through 21, and will take us through 22 where some policy decisions have been made by the Parliament. If it is truly wrong, is it not a matter for the legislature to fix it?

MR WALKER: It is always a matter for the legislature – except for the unicorn possibility of constitutional entrenchment – to alter any legislation it chooses. Of course, we would have to accept – it would be perverse not to – that the policy decisions involved in the balance of welfare considerations and fiscal economy are peculiarly for Parliament.

However, once they have chosen the means by which that is to be done – and bearing in mind what I might call the invidiousness of genuinely retroactive amendment – then, in our submission, really serious social and economic consequences flow in a way that it is not realistic to suppose that a State Parliament can remedy.

Now, when, for the reasons I am about to put, the words that have been used have not, as it were, contained the seeds of their own destructive ambiguity so that judges can, and perhaps in an appropriate case, should simply say, well, on their own heads be it - and we say this is a case where the words are not such as to have created their own ambiguity - then, in our submission, there is a real urgency to this Court considering correcting an error that could not be corrected in South Australia because of not only the gateway requirement of leave to appeal, but the aspect of stare decisis which would require a demonstration of something being plainly wrong.

In our submission, a better way, a more appropriate way, reflecting the national judicature, would be for this Court, by a grant of special leave, to determine simply whether it is wrong. But, of course, in answer to Justice Gordon, it is always true that a statute of this kind can, for the future, be adjusted in the continued dialectic between court and Parliament. There is a very large vested expense cost, more than $700 million, and all the cases that we have referred to which turn on the present state of the law.

So, in section 22, one sees, first of all, in subsection (7), that there is a requirement for what might be called a medically‑sensible wait and see, but you will see in paragraph 22(7)(b) that that itself is subject to subsection (8), which is at the heart of the argument for which we seek special leave.

Your Honours see that certain sequelae.....medical treatment may, in appropriate cases, be included in the assessment of the current impairment at the relevant time, to see whether the 30 per cent threshold has been achieved. The language is straightforward:

any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury -

So that matters which, in the common law sense, might be regarded as in a relevantly unbroken chain of causation from the original event that caused the injury can be, if they fall within that specified category of outcome, included in the consideration of impairment. But when one comes to subsection (8), a different possibility is being adverted to and here one is talking about different impairments. So, for example, in paragraph (b) of subsection (8), what are called:

impairments from unrelated injured or causes -

significant to see that that cause and consequence is treated indifferently at that point:

are to be disregarded -

In short, no combination of matters which are an impairment, different impairment from an unrelated injury or cause. Now, when I say different impairment it may be a different extent of a similarly generically described impairment, but it is a different impairment. Then in paragraph (c), the critical words at the heart of the argument for which we seek special leave, one sees the plain English, we submit, not lending itself to any self‑induced ambiguity:

impairments from the same injury or cause -

I need to come briefly to the notion of “injury or cause”, but there cannot be any doubt that the pivotal words “from the same” are not carelessly or unintelligently chosen to convey what, in our submission, is the evident policy to be advanced for the purpose of the very important assessment of whole person impairment.

GLEESON J: Mr Walker, do you suggest that “cause” means something different from “trauma”?

MR WALKER: Well, it probably does in the sense that “cause” as a matter of language is likely to include all of what “trauma” means ‑ ‑ ‑

GLEESON J: It must be broader than “trauma”.

MR WALKER: Yes, it must extend further. But I draw to your attention page 98 of the application book. The definition of “trauma” – true it is unless the contrary appears, but nothing really appears to the contrary of this:

means an event, or series of events, out of which a work injury arises -

and your Honours will be struck by the resemblance of some of that language to what I will call insurance language with respect to accidents. Now, an event or series of events out of which a work injury arises will also be, as a matter of ordinary English used in a legal context, a pretty fair description of – if not all, nearly all, causes. One could expand the notion of “cause” to include, for example, pre‑existing susceptibilities of the injured person as being part of the notion of “cause” out of which impairment might arise. But, in terms of injury, “trauma” would appear to be a fair working equivalent with perhaps the need to recognise some exceptional cases of cause.

GORDON J: Mr Walker, if, as I think is right, you would accept that “cause” must be broader than “trauma”, then what is it about paragraph 54 of Preedy that is wrong? It may be you will come to it, but it seems to me that there are a set of propositions in 54 which sit with what you have just accepted from Justice Gleeson.

MR WALKER: Yes. Your Honour asks me what is wrong with 54 of Preedy.

GORDON J: You may come to it, Mr Walker. But it seems to me that there is a set of propositions in 54 which are consistent with that which you have just accepted because the way I had understood your argument in your outline - or your application was, in effect, you were reading “cause” as if it was the same as “trauma”.

MR WALKER: In many cases they will be describing the same relation between a happening – I am trying to avoid the word “event” – a happening and an outcome. It is not paragraph 54, about which our grievance really arises by way of focus. It is treating 55 as a proper outworking of the considerations noted in paragraph 54.

So, to take your Honours to page 65 of the application book, halfway down paragraph 54, at about line 40 on the page, his Honour says, surely correctly, that “there is a distinction between causes and consequences”. Ordinary language and logic would suspect that there is a complete contrast – the one causes the other, et cetera. His Honour then says:

The words “injury” and “cause” convey a related concept which is concerned with the thing or event from which an impairment results –

We wish to draw to attention that the perhaps idiosyncratic but nonetheless clear use of the defined terms in this statute would appear to have a pattern of temporal sequence from trauma to injury to impairment. So, the trauma is the event out of which an injury arises, and the impairment results from the injury - I have used the words of the provisions to which I have taken you. That is why, when referring in 22(8)(c) to the same injury or cause, it is requiring that there be that combination only where one, or perhaps both, of the two antecedent steps in the temporal pattern can be described as the same.

GLEESON J: So, in this case what we are dealing with is a fourth, perhaps, element in the continuum. You have the trauma, an injury and impairment, and then you have a further impairment consequential upon the first impairment.

MR WALKER: Yes. Yes, is the short answer.

GLEESON J: Why would they not be from the same cause?

MR WALKER: Because you cannot describe the cause of the second impairment by simply stating the cause of the first impairment.

GORDON J: Well, to ask a different question, Mr Walker, what is wrong with the analysis at 45 on application book 15 of that causal chain of events?

MR WALKER: Between lines 32 – and that line ‑ ‑ ‑

GORDON J: It really starts:

The causal chain of events is as follows –

Sorry, Mr Walker, from line 32.

MR WALKER: I am really sorry, your Honour.

GORDON J: I was just trying to say, from line 32 onwards.

MR WALKER: Yes. The sentence commencing “The causal chain of events” includes, of course, surgical treatment of a kind to which, as I have drawn to attention, 22(7)(b) will speak. But, in our submission, thereafter those are not matters which are caused by surgical treatment, they are caused by the particular use of the limbs by the person in question in their then subsisting state of health, or lack of health.

GORDON J: Say, for example, you had a work injury which resulted in the loss of one leg which led to an impairment of the other leg. Is that not caused by the original injury or trauma?

MR WALKER: There is, to use the familiar figure of speech employed in paragraph 45 at application book 15, about line 42, there is a “causal chain”, but it is then only one link, an originating link in the chain, and it is not the same cause if you have to include other links, otherwise and by 22(7), if you have to include other links in order to describe the cause of the later or different or consequential impairment. It is for those reasons that “same cause” is not apt to embrace by way of combination to produce the possibility of 30 per cent or more, any better than “same injury”. It is not, in our submission, possible to say that a one or two‑link chain of events as cause is the same as a three or four‑link chain which includes those same first two links. That is the point. May it please the Court.

GORDON J: Thank you, Mr Walker. Mr Roder? You are also on mute, Mr Roder. We cannot hear you at the moment and we would like to.

MR RODER: I apologise, your Honour. Your Honour, we rely generally on our written submissions. Can we come back to our starting point – it is the same passage that your Honour just referred to – at paragraph 45 of the trial judge’s reasons – remembering that the appeal, both to the Full Bench and to the Full Court from the Full Bench, were limited to questions of law. So, there was not a full right of appeal available.

There were findings of fact at paragraph 45 by the Deputy President which correspond with the terms of the statutory provisions. In our submission, there is absolutely – it cannot be said that there is anything wrong as a matter of law with the findings at paragraph 45. The fact of the matter is that there is a left hip impairment which results from two matters, being the left hip injury and the total left hip replacement. That is taken to be the cause of the left hip impairment.

We would say, with respect, it was clearly at least open – and in fact the Deputy President was plainly correct in concluding that the applicant’s lumbar spine impairment was caused by the same matters, namely the left hip injury and the total left hip replacement – which had the consequence that he had a shortened leg and inevitably walked with an altered gait. At the end of the day, the only way this man was not going to walk with an altered gait was to not walk at all.

It is not as if there was anything and – it is a point that is made by the Deputy President later in his reasons – is that there is nothing else other than what would be regarded as the direct consequences of the left hip impairment that results in the lumbar spine impairment as well.

That is not to say that necessarily what is involved is a common law test of causation, as was the criticism that was being made, I think before the Full Court, of such an analysis. It is simply the case that we would say as a matter of ordinary language, at the very least it was open to the Deputy President to conclude that the lumbar spine impairment – to use the words of the statute – was from the same cause as the hip impairment. If that is the case it was open for him to combine them.

It is difficult to see what there would be about a particular statutory context or scheme that would demand some different result from what might seem to flow ordinarily as a matter of language. It is difficult to understand why it would be that if the respondent had in fact directly injured his hip – sorry, his spine in the same fall – as I understand it, it is accepted then that he would have been a seriously injured worker – would be entitled to compensation for life – but why it would be that with the exact same combination of impairment flowing inexorably, and as a direct result of the fall – the surgery for the fall – that there would a different outcome – is a matter that has really never been satisfactorily explained.

We would say there is every reason why the result should be the same. We say that the construction that we give, and that the Full Court gave to the words “on the same cause” is consistent with the ordinary meaning of the words, and it is also consistent, at least, we say, with the meaning given to the expression “from the same circumstances” in the Victorian Court of Appeal decision in Hartley, to which we have referred at paragraph 62 of our outline, and that, with respect, once it is accepted that the expression “cause” must be able to go beyond the concept of injury and trauma, that it is difficult to see how it could be contended that this was not from the same cause.

We do not say, and we do not take the Full Court as having said that it necessarily follows that what is involved is a common law test of causation. In fact, we understand the Full Court as having rejected that. Although we accept that there is plainly some importance in this matter to the appellant, or else they would not be here, we say that, with respect, the evidence relied upon to support the contention that this might have an effect of the magnitude on them that is being advanced is unpersuasive, that it relies on a preliminary analysis based on field work done by solicitors and claims agents, the parameters of which are really quite unknown.

In other words, we do not know exactly what kind of factual situations they took as being potentially affected one way or the other by this judgment, but I do not read the Full Court judgment as saying that necessarily in all cases where there is some common factual contribution, that that would necessarily suffice. I do not think it has gone that far and said that it is an evaluative exercise. This was a case that, before the Deputy President, turned on its facts.

We say that it is not a case which justifies the grant of special leave, and we would say that, with respect, it is hardly surprising, in a legislative scheme where the Parliament has, in addition to prescribing the combination in cases related to the same trauma, has also included wider concepts to the same cause and same injury, that there would be an outcome like this. Otherwise, we are content to rely on our written submissions.

GORDON J: Thank you, Mr Roder. Mr Walker, any reply? Again, you are on mute, Mr Walker.

MR WALKER: I am so sorry, your Honours.

GORDON J: By the end of the day you will be trained.

MR WALKER: Or finished, yes, your Honour. Back on page 15 in the finding of fact upon which any argument would depend, we again draw to attention at about line 42 in paragraph 45 that to describe a chain of events not being “broken” is, in effect, to say that it is not the same cause, simply that one of the links in the chain can be seen to be common to two
differently described causes. In our submission, leaving aside notions of so‑called common law causation as having infected the Full Court’s approach, we are entitled to say that the notion of “the same cause” as statutory language being satisfied by two different impairments – that is the premise of all of this – each of which requires a different causal explanation – a short chain, a long chain – in order to describe causation is definitionally not the same cause.

The notion of a common foundation or origin or.....in otherwise different chains of causation is distinctly different as a matter of ordinary logic and statutory structuring of these provisions from the plain, simple words “same cause”. It cannot be described as the same cause if more is necessary to describe cause in the latter impairment as for the former impairment. It is for those reasons, in our submission, that there are sufficient prospects for this provision important for South Australia to be the subject of special leave. May it please your Honours.

GORDON J: Thank you, Mr Walker. The Court will adjourn to consider its position.

AT 9.57 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.00 AM:

GORDON J: The decision of the Full Court of the Supreme Court of South Australia concerns the construction and application of a peculiar South Australian statute to specific facts and is not otherwise attended with sufficient doubt. We are not satisfied that the application for special leave from that decision raises a question which warrants the intervention of this Court as a national Court of Appeal. Special leave to appeal is refused. Do you seek costs, Mr Roder?

MR RODER: I do, your Honour.

GORDON J: Mr Walker?

MR WALKER: So be it, your Honour.

GORDON J: Thank you. Special leave to appeal is refused with costs. Thank you for your assistance.

MR WALKER: If it please the court.

GORDON J: Adjourn the court.

AT 10.01 AM THE MATTER WAS CONCLUDED