GIO WORKERS COMPENSATION (NSW) LTD v GIO GENERAL LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and SHELLER JJA 11 August 1995, 29 August 1995 [1995] NSWCA 176 WORKERS COMPENSATION — injury disease — dependant — s25 Workers Compensation Act 1987 APPEAL — reasons On 22 September, Moroney CCJ ordered the employer, Northern Rivers County Council, to pay $221,750 in respect of the death of a worker, Geoffrey Raymond Campbell, to his widow, the second respondent, Dawn Marlene Campbell. The worker died as a result of a brain tumour in 1992 which developed from a melanoma on the face first detected in 1983. The first respondent, GIO General Ltd was the relevant insurer of the Council up to 30 June 1987 and the appellant, GIO Workers Compensation (NSW) Ltd, the insurer thereafter. Pursuant to s9 of the Workers Compensation Act 1987 (the Act) a worker's entitlement to receive compensation flows from his receiving an injury. S4 provides that "injury" means personal injury arising out of or in the course of employment and includes a disease contracted by the worker in the course of employment or the aggravation, acceleration, exacerbation or deterioration of a disease and to which the employment was a contributing factor. $15(1) relevantly provides that the injury, being a disease of such a nature as to be contracted by a gradual process, shall be deemed to have happened at the time of the worker's death or incapacity. The entitlement of a dependant to receive compensation flows from the worker's death resulting in injury; Odgen Industries Pty Ltd v Lucas (1967) 116 CLR 537. The amount of compensation depends on whether the injury from which death resulted was received before or after the commencement of Div 4 in 1987. CL2(1) of Pt3 of Sch 6 provides that the amount of compensation payable shall, if the death results from an injury received before the commencement of Pt3 in Div 1, is the amount payable under the former Act. In s25(1) fixes the amount of compensation payable to dependants. His Honour said that he was satisfied that it is the law that the applicant's rights accrue as at the date of death and that the appropriate payment is the amount payable under the 1987 statute as at the date of death. If he was wrong, he said he could be corrected elsewhere. The later insurer, GIO Workers Compensation (NSW) Ltd, appealed from this decision on the basis of want of procedural fairness resulting from his Honour's prejudgment of the matter and failure to give proper reasons. The appellant submitted that his Honour's decision was wrong and that pursuant to s15(1) the injury was deemed to have happened at the time of incapacity for work, namely in 1983, and accordingly within the meaning of Pt3, CL2(1) the worker's death resulted from an injury received before the commencement of Div 1 of Pt3 and the amount payable was that under the former Act. Held: (1) If on a worker's claim, the injury is deemed to have happened at the time of incapacity and the employer liable to compensate under s15(1)(b) is the employer at the time or who last employed the worker, it follows that on a dependant's claim, if death results from the injury and the employer liable to compensate is the employer at that time or who last employed the worker, the injury should be deemed to have happened at the time of death, so that the condition for the operation of Sch 6, Pt3, CL2(1) is not satisfied 2 UNREPORTED JUDGMENTS and the amount recoverable is that fixed under s25(1). Crisp v Chapman (unreported) Court of Appeal, 18 August 1994 discussed. (2) per Priestley JA The relevant disease was the brain tumour of 1992. Although it resulted from the melanoma, it was a separate disease that deteriorated and resulted in incapacity followed by death. The injury, if it were to be dated by incapacity rather than death, would be deemed to have happened in 1992 and Moroney CCJ's judgment would stand. (3) It is improper for a judge to state conclusions without reasons on ie base that it can be left to the Court of Appeal to correct him. However since his conclusion was correct and a re-trial would produce the same result, the appeal should be dismissed; Stead v State Government Insurance Commission (1986) 161 CLR 141. ORDERS 1. Appeal dismissed; 2. Appellant to pay the costs of each respondent. Priestley JA The circumstances of this appeal are set out in the reasons of Sheller JA which I have read in draft and with which I agree. A further reason why I do not agree with the appellant's argument is that it depends on the court's accepting that what caused the worker's death was the melanoma of 1983; it was argued that this was the disease the deterioration of which manifested itself in the brain tumour in 1992 and was thus the injury for which compensation was payable under s25; therefore the date of the injury was 1983. I do not agree with this. In my view the relevant disease was the brain tumour of 1992; the fact that it resulted from the melanoma does not mean that it was not itself a separate disease. This 1992 disease deteriorated and resulted in incapacity, followed by death. The injury therefore, if it were to be dated by incapacity rather than death, would be deemed to have happened in 1992, and Moroney CCJ's award would stand. I agree with the orders proposed by Sheller JA. Clarke JA I agree with the orders and reasons of Sheller JA. Sheller JA INTRODUCTION This appeal comes from a decision of Moroney CCJ on 22 September 1994 ordering the employer, Northern Rivers County Council, to pay $221,750 in respect of the death of a worker, Geoffrey Raymond Campbell, to his widow, the second respondent, Dawn Marlene Campbell. The first respondent, GIO General Ltd, was the relevant insurer of the Council up to 30 June 1987 and the appellant, GIO Workers Compensation (NSW) Ltd, the relevant insurer thereafter. His Honour found that: 1. the deceased worker received injury as alleged in the application for determination and died on 7 August 1993 as a result thereof; 2. his widow was wholly dependent upon him for support at the time of his death; 3. no other person was dependent for support upon him at the time of his death. The deceased worker, who was born on 7 August 1943, was employed by the Council as a linesman from 12 January 1970 until shortly after August 1989, when he was transferred to indoor duties. He remained in this employment until six weeks before his death. Before his transfer his duties as an employee of the Council required him to work outdoors, where he was exposed to sunlight. MEDICAL HISTORY On 21 November 1983 Dr Earner gave the worker a general checkup which revealed a melanoma on his right cheek. On 9 December 1983 Dr Choo removed the melanoma. The deceased developed two metastases of the melanoma, one on URJGIO WORKERS COMPENSATION (NSW) LTD v GIO GENERAL LTD (Sheller JA) 3 the jaw, which was removed in 1987, the other on the lip, which was removed in July 1988. Other metastases subsequently occurred though these were not specifically identified in the evidence. Due to sun exposure the deceased also developed basal and squamous cell carcinomas which were removed. In January 1992 the deceased began to suffer symptoms of a tumour in the brain. Ultimately this was diagnosed as a metastatic melanoma which penetrated into the brain stem and led to his death. Dr Choo, the consultant surgeon who removed the melanoma in 1983, stated in a report that the worker "died as the result of melanoma on the face first detected in 1983. He died of melanotic cerebral metastatic". Dr Poulgrain, a neurological surgeon, who first saw the deceased on 28 May 1992, said the cause of the metastatic lesion penetrating into the brain stem was secondary to the facial melanomas previously documented. On 13 November 1992 Dr Christie wrote that the deceased was suffering from secondary metastatic melanoma "all from the original tumour of 1983." On 12 November 1993 Dr Christie wrote: "A melanoma generally starts as a benign mole, commonly a junctional naevus, which can be affected by ultraviolet irradiation contained in sunlight. The affect of this ultraviolet irradiation is to produce a malignant change and at some point a benign lesion converts into a malignant melanoma. The prognosis for malignant melanoma depends largely on when it is first recognised as a malignant melanoma. If by the time it is recognised it has had time to invade the lowered layers of the skin, it may well have metastasised, that is sent off secondary tumours prior to it's removal. This is clearly what happened in the case of Mr Campbell. Although the primary tumour was removed in 1983, he started getting multiple skin recurrences in 1986 and by January 1992 had a tumour in the brain, which was obviously a slow growing melanoma. He has had further tumours since that time, however, all of these tumours would have started from the primary tumour/facial melanoma, which unfortunately had spread cells throughout his brain and upper body prior to its removal. This man's prognosis was determined by the time the malignant melanoma was removed in 1983 and that no sun exposure has had any affect on him since that time. The effect of the sun exposure probably occurred within the 5 years prior to 1983 and by the time that tumour was removed, the seeds for all his recurrent tumours were already laid down. In my opinion, what killed this man was a tumour he had in 1983 and sun exposure at approximately the 5 years prior to that would have most certainly been an aggravating or causative factor. His sun exposure after 1983 played no part in his subsequent death." In a report of 13 July 1994 Dr McLeod said: "Melanoma and the resultant metastases that I am told caused Mr Campbell's death is a disease. It is a disease which commenced as a primary malignant melanoma. If cells detach from the primary lesion and migrate to other parts of the body prior to removal of the primary, they may lie dormant for times varying between weeks and many years. If the cells proliferate and metastatic disease becomes obvious, it may occur at different sites at different times. The progression of the disease may be gradual and would occur in Mr Campbell's case over the time from treatment of the primary lesion in November 1983. It is accepted that malignant melanoma is more commonly seen in countries where increased sunlight exposure occurs. It is more common in people who tend to burn easily in the sun. In some people one or two episodes of severe sunburn may be sufficient to promote the occurrence of melanoma in later life. In others 4 UNREPORTED JUDGMENTS occupational and recreational exposure over a long period of time has been shown to be the promoting factor. If his work exposed him to a large amount of sunlight, I consider that this could have increased the risk of his developing a malignant melanoma and promoted the development of his primary melanoma." RELEVANT STATUTORY PROVISIONS S9(1) of the Workers Compensation Act 1987 (the Act) provides that in the case of the death of a worker who has received an injury, his or her dependants shall receive compensation from the worker's employer in accordance with the Act. In Pt3 Div 1 of the Act, "Compensation Payable on Death', s25(1) fixes, subject to adjustment under Div 6, the amount of the compensation payable by the employer under the Act if death results from an injury and the worker leaves any dependants wholly dependent for support on the worker. His Honour awarded the deceased's widow the amount fixed at the relevant time. S4 provides, so far as presently material, that in the Act "Injury" "(a) means personal injury arising out of or in the course of employment; (b) includes: (i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor; and (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration: " Pt3 of Schedule 6 to the Act, which contains savings, transitional and other provisions, provides, relevantly to compensation payable on death: "1. Subject to this Schedule, Division 1 of Pt3 of this Act applies whether the death occurred before or after the commencement of that Division. 2. (1) The amount of compensation payable under Division 1 of Pt3 of this Act shall, if the death results from an injury received before the commencement of that Division, be the amount (if any) payable under the former Act." SubCL(2) fixes, subject to indexation pursuant to subCL(4), the amount payable under s8(1)(a) of the 1926 Act "(i)f the worker dies after the commencement of Division 1 of Pt3 of this Act as a result of such an injury." It is agreed that at the relevant time this amount was $80,300. S15(1) of the Act provides that if an injury is a disease which is of such a nature as to be contracted by a gradual process: "(a) The injury shall, for the purposes of this Act, be deemed to have happened: (i) at the time of the worker's death or incapacity; or (ii) if death or incapacity has not resulted from the injury - at the time the worker makes a claim for compensation with respect to the injury; and (b) compensation is payable by the employer in whose employment the worker is or who last employed the worker. $15 (2) provides: "Any employers who, during the 12 months preceding a worker's death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Compensation Court." THE MATTER IN ISSUE URJGIO WORKERS COMPENSATION (NSW) LTD v GIO GENERAL LTD (Sheller JA) 5 Judge Moroney had to determine whether the amount payable to the deceased's widow was that fixed under s25(1), $221,750, or that fixed under Sch 6, Pt3, CL2, $80 300. His Honour said: "T am satisfied that it is the law that the applicant's rights accrue as at the date of death and that the appropriate payment is the amount payable under the 1987 statute, as at the date of death. If I am wrong, I can be corrected elsewhere." APPEAL The later insurer, GIO Workers Compensation (NSW) Ltd, appeals from this decision. Some of the grounds of appeal are directed to a want of procedural fairness resulting from his Honour's prejudging the matter and failing to give proper reasons. I shall return to these grounds later in this judgment. At the heart of the appeal is the submission that the decision was wrong and that this Court should direct an appropriate verdict. REASONS FOR DISMISSING THE APPEAL Although as will appear, I have concluded that the award made was correct, his Honour's reasons for doing so are obscure, probably erroneous and certainly of no assistance. If his Honour meant to say that the amount payable was that described by s25(1) because the deceased died after the commencement of the Act, his unexplained reason is insupportable and ignores the language of the section. Pursuant to s9(1) a worker's entitlement to receive compensation flows from his receiving an injury as defined in s4. The entitlement of a dependant, wholly dependent for support on the worker, to receive compensation flows from the worker's death resulting from an injury; Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 578. But the amount of compensation depends upon whether the injury from which death resulted was received before or after the commencement of Div 4 in 1987. The appellant submitted that the date of the injury, from which the death resulted, was December 1983 and relied upon the following facts: 1. The worker had a malignant melanoma which was operated on in December 1983; 2. Due to such operative treatment the worker was incapacitated for a period of time; 3. The melanoma was contributed to by the worker being exposed to sunlight in the course of his employment before December 1983; 4. Although the worker was exposed to sunlight in the course of his employment up to 1989, the medical evidence was to the effect that the worker's death was the result of the metastases secondary to the melanoma diagnosed in 1983 and there was no evidence that the exposure to sunlight after 1983 played any role in causing the worker's death; 5. The worker died on 7 August 1993 at which time he was still employed by the same employer. The appellant accepted, I think correctly, that the melanoma was a disease in the way that word is used in s4 and s15. Disease denotes a morbid condition of the body; Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 587; O'Neill v Lumbey (1987) 11 NSWLR 640 at 646. The appellant further accepted that a melanoma is a disease of such a nature as to be contracted by a gradual process. Thus it is a disease covered by the deeming provision found in s15(1). I shall return to this. The appellant's concession seems to me to have been inevitable. But after the diagnosis of the melanoma in 1983 the gradual process continued. Each step in that process was the consequence of the step before. As Dr Christie 6 UNREPORTED JUDGMENTS said by the time that the tumour was removed from the cheek in 1983 the seeds for all the worker's recurrent tumours were already laid down. In that sense the 1983 melanoma killed him. However looked at in another way the melanoma was removed in 1983 but the migration of cells from it ultimately led to the deceased suffering a malignant and inoperable brain tumour to which, in the language of Dr Choo, he finally succumbed. Dr McLeod observed that the melanoma and the resultant metastases were a disease which commenced as a primary malignant melanoma. This statement seems to me to be obviously correct. The use of the expressions "received an injury" and "an injury received" in s9(1) and CL2(1) of Pt3 and the expression "disease which is contracted" in the definition of injury in s4 gives rise to problems. In the case of a disease which develops gradually, the difficulty a claimant faces in proving when the injury was received or the disease contracted demonstrates the need for a deeming provision such as s15(1). S15(1) provides that the injury, being a disease of such a nature as to be contracted by a gradual process, shall be deemed to have happened at the time of the worker's death or incapacity or if death or incapacity has not resulted from the injury, at the time the worker makes a claim for compensation with respect to the injury. The third choice is only available if the injury giving rise to the claim has not resulted in the worker's death or incapacity for work. But, if the injury resulted in incapacity for work and the worker's death, is it deemed to have happened at the time of the worker's death or at the time of the worker's incapacity for work? The appellant submitted that the answer was incapacity for work if that resulted. The injury is only deemed to have happened at the time of the worker's death if it did not result in incapacity for work before death. In 1983 the operation on the melanoma resulted in incapacity for work. The appellant submitted that pursuant to s15(1) the injury was deemed to have happened at that time and that accordingly within the meaning of Pt3, CL2(1) the worker's death resulted from an injury received before the commencement of Div 1 of Pt3 and the amount payable was that under the former Act. As Mahoney AP pointed out in Crisp v Chapman (unreported) Court of Appeal, 18 August 1994 at 3, s15 assumes injury has occurred and provides the means of determining when the injury was deemed to have happened. In principle it remains for the worker or dependant to prove an injury within s4. It is at the point when the worker or dependant has proved an injury that s15 operates. In the case of the worker's claim, the injury, being a disease of such a nature as to be contracted by a gradual process, is deemed to have happened at the time of incapacity. I have no doubt that is a reference to the incapacity for which compensation is claimed. S$15(1)(b) provides that "compensation is payable by the employer in whose employment the worker is or who last employed the worker". That means the employer in whose employment the worker is at the time the injury is deemed to have happened or who last employed the worker before the injury is deemed to have happened; Fisher v Hebburn Ltd (1961) 105 CLR 177 at 196 and 199. S15(2) provides that any employers who, during the twelve months preceding a worker's death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Compensation Court. The subsection refers to the death or incapacity at the time of which the injury is deemed to have!happened and for which the employer at URJGIO WORKERS COMPENSATION (NSW) LTD v GIO GENERAL LTD (Sheller JA) 7 that time is liable to compensate the worker or the dependant. The employers liable to contribute are those who employed the worker in any employment to the nature of which the disease was due during the twelve months preceding the death or that incapacity or the date of the claim. In my opinion, if on a worker's claim, the injury is deemed to have happened at the time of incapacity and the employer liable to compensate is the employer at the time or who last employed the worker before that time, it follows logically and sensibly that, on a dependant's claim, if death results from the injury and the employer liable to compensate is the employer at that time or who last employed the worker before that time, the injury should be deemed to have happened at the time of death. In neither case does it matter that there were earlier periods of incapacity resulting from the injury. In my opinion for the purpose of the widow's claim the worker's injury is deemed to have happened at the time of his death, so that the condition for the operation of Sch 6, Pt3, CL2(1) is not satisfied and the amount recoverable is fixed under s25(1). I would dismiss the appeal. JUDGE'S BEHAVIOUR AT THE TRIAL Since as a matter of law his Honour reached the correct result it would not ordinarily be necessary to consider the complaints the appellant makes about his Honour's behaviour at the trial. But what happened in this case is of general importance. During the course of submissions by the appellant's counsel the judge asked what was the difference between the rate payable if the injury resulting in death happened in 1983 and the rate payable if it happened in 1993. The following interchanges then took place: "MR WARDELL Well, in financial terms the difference is significant. I think the entitlement in relation to New Act injuries is something in the vicinity of $221,000, and the entitlement as indexed in relation to Old Act injuries is $80,300. HIS HONOUR How much. MR WARDELL $80,300. HIS HONOUR Mr Wardell, I am going to give this lady the lot. You can get the Court of Appeal to take it away from her. If you think that on this last circuit of mine in a case such as this that I intend to do anything otherwise you can go jump in the lake, and that can be recorded in the transcript. MR WARDELL Thank you, your Honour. Your Honour having made that observation it is probably unnecessary to put the remainder of the submissions I wanted to make. HIS HONOUR I think so. MR WARDELL But would your Honour note that I am not putting specific matters to your Honour in view of the view your Honour has expressed. HIS HONOUR No, I will sit here and listen to as much as you want to put in submission, Mr Wardell, I am just telling you what the result is going to be. MR WARDELL 8 UNREPORTED JUDGMENTS I am grateful to your Honour for that but the Court of Appeal, not uncommonly, requires people to have raised things in the court below, so if I could put the point - HIS HONOUR Yes. well, you keep going by all means. MR WARDELL Thank you, your Honour. My submission in summary, if I could put it this way, is firstly that although death benefits arise as at the date of death that does not determine the date of injury. The date of injury is to be determined by references to s4 and s15 and s16. S15 and s16 provide that the date of death, or the date of deemed injury shall be the time of the worker's death or incapacity. There is some ambiguity about whether or not that involves two deemed dates of injury or one. In our submission, if incapacity precedes death there is only one deemed date of injury. In this case there was incapacity at the time the worker went off for medical treatment in 1983 and that is the deemed date of injury. I think in the circumstances I have put the argument we would have expanded upon in more detail, and I will finish my submission. HIS HONOUR Thank you, Mr Wardell. You can frame up the findings for me if you like." His Honour then stated his conclusion in the terms I have quoted earlier. It is, in my opinion, improper for a judge to state conclusions without reasons in determining a case on the basis that it can be left to the Court of Appeal "to take it away from her" or to correct him. It is part of the function of a judge to give reasons for decisions in order that the parties and, if there is an appeal, the appellate court, may understand what matters the decision maker has taken into consideration and what view the decision maker has reached on the points of fact and law which arise. In this way the trial judge affords assistance to the appellate court in the event of there being an appeal; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280-281. Proper reasons may obviate the need for appeal. It is wrong that a trial judge should deliberately throw onto the appellate court the judge's function of decision making. His Honour may have recognised this. According to the first respondent his Honour, of his own motion, set the proceedings down for re-consideration on 28 April 1995 pursuant to s17(4) of the Compensation Court Act 1984 to afford the appellant an opportunity to obtain redress of the matters of which it complained. The appellant objected to this and the re-consideration did not proceed. The perceived need for it demonstrates that his Honour's behaviour on the first occasion required the parties to expend further costs in resolving the matter. In my opinion there was no justification with his Honour's dealing with the case in the way he did. However since his conclusion was correct and a re-trial would inevitably produce the same result, as I have said, the appeal should be dismissed; Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. ORDERS I propose the following orders: 1. Appeal dismissed; 2. The appellant to pay the costs of each respondent. 1. Appeal dismissed; 2. Appellant to pay the costs of each respondent. COUNSEL: URJGIO WORKERS COMPENSATION (NSW) LTD v GIO GENERAL LTD (Sheller JA) 9 Appellant: PR Callaghan SC/TM Wardell First Respondent: JD Hislop QC/GP Nielson Second Respondent: J Poulos QC/AB Parker SOLICITORS: Appellant: PW Turk and Associates 10 First Respondent: Moray and Agnew Second Respondent: Bondfield Riley