McGraw v Commonwealth Bank of Australia Limited [2002] NSWCC 56

Reported Decision : (2002) 24 NSWCCR 372

Compensation Court of New South Wales

CITATION : McGraw v Commonwealth Bank of Australia Limited [2002] NSWCC 56 PARTIES : Kathleen Mary McGraw Commonwealth Bank of Australia Limited MATTER NUMBER(S) : 60067 of 2001 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 11/10/02, 15/11/02, 19/12/02. DATE OF JUDGMENT: 12/19/2002

FOR APPLICANT:Mr Wilkins instructed by Jones Staff & Co. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M Newton instructed by Abbot Tout.

JUDGMENT: 1. This is an application by Kathleen Mary McGraw against her employer, the Commonwealth Bank of Australia Limited (formerly Colonial State Bank Limited), in which she claims injury on 11 and 23 October 2000 at Narellan Vale and Granville Railway station when she suffered injuries on journeys between her place of abode and her place of employment when walking along a path to a bus stop and going up stairs at a railway station. In fact, as I shall reveal in my summary of her evidence, the applicant gave evidence only of the first injury alleged on 11 October 2000. She claims weekly payments of compensation under ss 36 to 40 of the Workers Compensation Act 1987 ("the Act") from 11 October to 8 November 2000, medical expenses under s 60 and interest. 2. The issues were indicated at the commencement of proceedings by Mr Newton of counsel for the respondent in a manner for which I am grateful as being injury, incapacity and the application of s 10(1D) of the Act. 3. The applicant gave evidence and I have no hesitation in indicating that she struck me as a witness of truth who gave a sensible and moderate account of her injuries and disabilities, and on occasions made admissions against interest. I accept her evidence wherever it is relevant. 4. The applicant was born on 28 May 1949. On 11 October 2000 she was living in Sydney, in fact at Narellan Vale near Campbelltown. She was then working for the State Bank. 5. At that point the respondent agreed that it inherited the liabilities of the State Bank of New South Wales by acquisition and merger. 6. On the abovementioned day the applicant was to work for the respondent at the Colonial Tower in Parramatta. Before that date she had no problem with either of her knees. 7. On the above date the applicant left her home for work after having breakfast. She was required to walk across two roads and then up a steep embankment onto a grass verge. The bus stop, where I gathered she was accustomed to catch a bus to work, was across the road from where she was at this time. 8. It was at that point that the applicant said that her right knee gave way as she put her foot down and that her leg buckled. She said she had a sharp pain on the inside of the right knee. She said that when her foot was fully on the "floor" pain shot up her right knee, and her leg buckled beneath her. 9. I asked a clarificatory question at this time. The applicant said that her foot was indeed on the ground and that she was, at the time her pain occurred, stepping from the pavement onto a grass verge. She said she was at the time moving her right leg forward. She said the grass verge was, she thought, on the same level as the pavement. 10. Resuming her examination in chief, the applicant said she could not put her "full" foot on the ground at this time. She denied that she fell to the ground. This is of relevance in view of her history reported in a report of Dr Dave, her treating orthopaedic surgeon. She said she stopped, maybe only for a few seconds, following the attack of pain and then continued her journey. She said she crossed the street and entered the bus when it arrived and that it stopped at a railway station. The applicant then went up the stairs of the railway station on tiptoe, as she did when she got off the train at her destination to go to work. 11. At work the applicant waited and found that at 10:00 am her pain had not subsided so she spoke to a supervisor. 12. The applicant then went to a medical practice in Parramatta where she thought she consulted a Dr Saba, who sent her for a x-ray. That was subsequently collected and she returned to see Dr Saba. 13. The applicant returned to work and stayed there until 4:15 pm. She did not return to work the following day. Dr Saba gave her a certificate for two days off. The applicant thought at this time that she had a sprain but by the following Sunday her leg was no better. 14. She therefore saw Dr Ghaly, another general practitioner, who referred her to a Dr Dave. Dr Ghaly in the meantime referred her for physiotherapy, which she undertook for a week. It was the physiotherapist who suggested referral to an orthopaedic surgeon and that led to Dr Ghaly's referral of the applicant to Dr Dave. 15. The applicant said that she was off work for three works until a date in November. When she was asked whether this date was 8 November 2000 she was not sure, but she thought she was off work for about three weeks. I shall trace the medical certificates which demonstrate the period when the applicant was off work in a moment. 16. The applicant said that her right leg kept giving way for maybe seven days and that it was strapped up and that she then had some improvement. She said that after three weeks she agreed to try work and return to work and said that she has had no pain since then. 17. In cross examination the applicant reiterated that while walking to the bus stop, her right leg gave way. She said after that she had great difficulty walking but proceeded to work by bus and train. She said in fact that it was her knee joint which had given way. 18. The applicant did not recall being seen by a Dr Kinny (to whose report I shall come later) for the respondent, but was asked to assume that she saw him on 7 December 2000, as indeed she did according to Dr Kinny's report, and told him that on 11 October 2000 she was walking to work when her right knee suddenly gave way under her, and she agreed that that was a correct history. She agreed that it was not precipitated by any injury or anything unusual in her walking. 19. The applicant also agreed that she had suffered a previous injury at Engadine while working in March 1997. She said however that this was an injury to her right foot, not to her right knee, as I understood her evidence. 20. I trust I will be excused if I do not refer to all of the other matters in Mr Newton's skilful cross examination as they do not to my mind impact on the applicant's claimed entitlement. 21. Coming to the medical evidence, Exhibit A is the applicant's medical case, and it consists firstly of a report of Dr Dave, orthopaedic surgeon, dated 21 January 2002, which contains a history of the applicant falling on her way to work on 11 October 2000. This history is clearly incorrect having regard to the applicant's evidence. He described her injury as an aggravation of a pre-existing condition in view of the absence of symptoms before the accident. 22. Next in the exhibit is a report on a plain x-ray of the right knee from Dr Angela Preda, which offers the opinion that there is slight degenerative thinning of the medial compartment of the knee joint consistent with early osteoarthritic change. It would appear to be the basis of Dr Dave's view that there was an aggravation of pre-existing degenerative changes in the subject injury. 23. Dr Dave's handwritten note to Dr Ghaly, dated 6 November 2000, which is next in the exhibit does not add to the matter. 24. The next documents in the exhibit are a number of medical certificates from Dr Ghaly proving total incapacity for work for the period of compensation claimed, 11 October to 8 November 2000. I see no reason not to accept the opinion of the treating general practitioner in this regard. 25. Next in the exhibit is a letter of instruction to Dr Dave dated 14 October 2002 from the applicant's solicitors advising that the applicant did not injure her knee due to a fall on the footpath, and providing a history that the applicant was in fact walking normally and put her right foot on the ground, and contemporaneously with that act felt sudden pain in the right knee, so that the applicant did not fall at all. Dr Dave wrote back in response to questions as to whether the journey itself, in the sense of the walk to the bus stop as distinct from the pre-existing condition, played any part in the production of her symptoms, and whether the weight bearing involved in placing her foot on the ground in the course of an ordinary step was sufficient to commence her symptoms. He said in his reply that in relation to the first question, the journey to the bus stop "may well have" partially contributed to the applicant's symptoms which were from an aggravation of a pre-existing condition, and that it was "possible" that the applicant placing her foot on the ground in the course of an ordinary step may have caused her symptoms. Thus Dr Dave supported a causal contribution from the applicant's walking on her journey home to an aggravation of a pre-existing condition, causing her incapacity for work. I shall come later to the question whether this satisfies the onus faced by the applicant. 26. Exhibit 1 was the report of Dr Noel Kinny, general surgeon, qualified by the respondent itself, and he, it is sufficient to say, thought that the applicant had suffered no particular injury associated with her walking, and that the pain she suffered in her knee and consequent incapacity for work was purely caused by the pre-existing degenerative condition in her patello-femoral joint. 27. I prefer the view of Dr Dave in this regard, coming as it does from the applicant's treating orthopaedic surgeon, who also had the opportunity to consider the correct history the applicant gave after a letter was written to him by her solicitors following her giving evidence. I should add that his subsequent report was tendered by consent on a later occasion after the original hearing. It seems to me that Dr Dave's opinion fits more closely with the applicant's history than that of Dr Kinny, and I accept it. Dr Dave's language where he says the journey to the bus stop "may well have" contributed to the applicant's symptoms is a little loose, but on balance I think he intended here to express a view on the probabilities, although the same cannot be said of his later use of the expression "possibly". 28. Mr Newton's helpful written submissions for the respondent indeed appear to assume that Dr Dave expressed himself in terms of the onus of proof required of the applicant; certainly he does not submit otherwise. It seems to me in any event that if one regards Dr Dave's opinions as being expressed as a possibility rather than a probability, there is a sufficiently compelling sequence of events between the applicant's walking and placing the whole of her weight on her right knee and feeling pain, and also between the applicant's walking up a steep embankment immediately before she did so, and her suffering pain when stepping from a pavement onto a grass verge, as to enable me to find on the whole of the evidence that Dr Dave's hypothesis as to the applicant's activities at this time constituting an aggravation of pre-existing degenerative changes in her right knee is to be accepted as a probability rather than a mere possibility: see Adelaide Stevedoring Co Pty Ltd v Forst (1940) 64 CLR 538 and Tubemakers of Australia Pty Ltd v Fernandez (1976) 10 ALR 303, referred to by Mr Wilkins in his submissions, to which may be added EMI (Australia) Ltd v Bes (1970) 2 NSWR 238 and MLA Holdings Pty Ltd v Smith (1996) 13 NSWLR 224. 29. The next question is whether, assuming I conclude as I have just done, the applicant is covered by subsection (1) of s 10 of the Act in any event. This reads: "A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly." 30. Subsection (3) refers to the journeys to which the section applies and includes (a) "the daily or other periodic journeys between the worker's place of abode and place of employment" which is the present case. 31. I drew the attention of counsel at the hearing to a decision of Burke J of this Court in Armao v Ladue Holdings Pty Ltd (1992) 8 NSWCCR 440 which lies in the worker's path. That is because Burke J concluded that "personal injury" where used in s 10(1) meant only injury within the first "leg" of the definition of that term in s 4 of the Act, so that it did not include an aggravation of pre-existing disease, which is one of the categories in the second "leg" of the definition in s 4 in subparagraph (b) thereof. 32. Mr Wilkins in his carefully researched written submissions argues that this decision was given before that of the High Court in Zickar v M G H Plastic Industries Pty Ltd (1996) 140 ALR 156 where, he says, the majority of the High Court held that subparagraph (b) of s 4 of the Act is not to be construed as excluding an injury being an aggravation etc of a disease within the meaning of paragraph (b) of s 4 from being personal injury within the meaning of paragraph (a), so that the two terms are not mutually exclusive. Mr Wilkins is indeed correct in this submission. Toohey, McHugh and Gummow JJ so held at 174 and Kirby J generally agreed. As Mr Wilkins submits, this accords with previous authority such as Murray v Favelle Mort Pty Ltd (1947) 133 CLR 580 and indeed Hume Steel Ltd v Peart (1947) 75 CLR 242. To these authorities may be added Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967) 117 CLR 19. Colliar & Colliar v Bulley (2000) 19 NSWCCR 302, to which Mr Wilkins referred, contains a recognition by Davies AJA at 326 [72] that cases which fall within s 4(b)(ii) may yet fall also within s 4(a). 33. The importance of all of this is that as I have said, in Armao Burke J held that where a worker's injury on a journey to which s 10(1) prima facie applied was to be characterised as an aggravation of a pre-existing disease, it could not also be a "personal injury" within the meaning of either the first "leg" of the definition of "injury" in s 4 of the Act, or within s 10(1) itself, so that the worker failed. 34. I have to say that in light of Zickar, which was decided well after it, Armao appears wrongly decided. Wright C in what is, with respect, an exceptionally well researched decision in Houani v Chubb Security Australia Pty Ltd (2000) 21 NSWCCR 242, referred to by Mr Newton, examined this issue at 257 [50] - 265 [73] and without saying that Armao was wrongly decided, he being bound by it, nevertheless found that an aggravation of an existing disease could still be also "personal injury" within s 4(a) and s 10(1). I am indebted to the learned Commissioner's research, and I agree with his conclusion. 35. In this case of course, even if I accept Dr Dave's opinion, the applicant suffered an aggravation of pre-existing degenerative changes in her knee. The question is whether this can also be "personal injury" within the first "leg" of s 4 and within s 10(1) of the Act. I think it can be and is. The applicant after all suffered a sudden physiological change in that she suffered acute pain in her right knee. This was diagnosed by Dr Dave as an aggravation of pre-existing degenerative changes. As Wright C remarked in Hoani at 265 [75], the medical opinions "are general and do not fully explain the mechanics of an apparently frank injury causing an aggravation of possibly pre-existant disease or affecting a person with a propensity for that disease" in that they do not precisely explain what occurred within the applicant's knee when she felt pain there. Most cases of aggravation of pre-existing degenerative changes are the same in this respect. That does not exclude recovery in those cases and I do not think it should here. Quite clearly the applicant had pre-existing degenerative changes in her knee and the question is whether the pain that she felt at the time of her alleged injury, and which persisted for the period of her incapacity, was an aggravation of a pre-existing "disease" within subparagraph (b) of s 4 of the Act and/or a "personal injury" within the first "leg" of s 4. I think it was both. After all, the applicant, in a knee which was not symptomatic immediately before the subject incident, suffered sudden pain in it at a time when it was under load, so that her leg buckled beneath her, after she had walked up a steep embankment and stepped with her body weight on the affected knee from the pavement onto grass. Not to describe this incident as constituting both "personal injury" and an aggravation of pre-existing degenerative changes seems to me a tortured use of language. I consider that the applicant suffered both a "personal injury" within the first "leg" of s 4 of the Act and within s 10(1) of the Act, and an aggravation of pre-existing degenerative changes within subparagraph (b) of s 4 thereof. 36. What then? The applicant, says the respondent in its submissions, falls foul of subsection (1D) of s 10. This reads: "Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury". 37. This was inserted by Act no. 214 of 1989, s 3 and schedule 1, which came into operation on 31 March 1990. I was favoured by the respondent's counsel with the Second Reading speech accompanying that legislation. In the speech of Mr Fahey, who was at that time Minister for Industrial Relations and Employment, in the Legislative Assembly, there is reference at Hansard page 12928 to this subsection where it is said: "Under the provisions of the Bill, journey injuries which are not caused or contributed to by the journey and are not otherwise work related would not be covered. Heart attacks, strokes etcetera, suffered on journeys between home and work will continue to covered if they are either contributed to by the journey - for example by the stress involved - or causally related to the employment." 38. The corresponding speech of the Hon. E P Pickering, at that time Minister for Police and Emergency Services and Vice President of the Executive Council, in the Legislative Council, was also provided, and at Hansard page 14220 it says this: "In summary, coverage will not be provided for journey injuries which are not caused, or contributed to, by the journey and are not otherwise work related. Only if there is a relevant connection with the journey should injuries on periodic journeys be claimable. Injuries occurring on journeys between home and work which result from a medical condition suffered by the worker will continue to be covered if they are either contributed to by the journey - for example, by the stress involved - or causally related to the employment". 39. The clear legislative intention to my mind is to exclude from s 10(1) coverage for "injuries" so called, which result purely and simply from medical conditions suffered by the worker and not from anything that occurred on the journey. 40. That does not end the problem of interpretation of s 10(1D). The first question that arises is whether the applicant bears the onus of disproving its operation or whether the respondent bears the onus of proving it. The respondent of course submits the former in its written submissions, and the applicant the latter. No authority bears directly upon the point. 41. "Fault" within s 10(1A) of the Act must be proved by the respondent: Workcover Authority of New South Wales v Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565 at 596, cited by Mr Wilkins. Mr Newton is indeed correct in his submission that the onus point was originally conceded, not argued: Aardvark Security Services Pty Ltd v Ruszkowski (1993) 13 NSWCCR 1 at 16 per Handley JA, the case referred to in Billpat as authority for this proposition. However his Honour's citation of Vines v Djordjevich (1955) 91 CLR 512 at 519-20 there is in point. That case, with respect, is a simple application of the dictum "he who asserts must prove", and one can readily see that in that s 10(1A) created a defence for an employer against the prima facie application of s 10(1), it was for the employer to prove it. The language of s 10(1A) is similar to that of s 10(1D) because both subsections begin with "subsection (1) does not apply if …" so that a defence for an employer is created against the worker's claim if the elements of the subsection can be established by it. One would have thought that these principles applied as much to s 10(1D) as they do to s 10(1C) on the authority of Billpat, and that is my view. That makes little difference in this case, as I have concluded that the applicant has carried the onus of negativing s 10(1D) on the probabilities if, contrary to my views, she must assume it. 42. The second question is whether the "or" in s 10(1D) is to be read conjunctively or disjunctively. Mr Newton for the respondent submits that it is disjunctive and Mr Wilkins for the applicant does not address the question. I think Mr Newton's submission is to be accepted. If one interprets "or" as conjunctive, it means that whoever has to prove or disprove the operation of the section - the respondent or the applicant - must show that the journey did not (or did) cause and contribute to the injury. When one reads the Second Reading speeches, the clear legislative intent behind the subsection is to exclude liability where a journey neither caused nor contributed to an injury. Accepting Mr Newton's submission that "or" in subsection (1D) is disjunctive, and that, to quote his submissions (at page 5), the phrases connected by "or" are "alternatives that the applicant ought satisfy the court of", the result is that it is sufficient to negative the operation of the section that the journey contributed to the injury even if it did not cause it. As to the word "cause", I gratefully adopt the reasoning of Bishop J in Gavalas v Mont Base Pty Ltd (unreported, 8/11/02) to which Mr Newton referred me with Mr Wilkins' consent after written submissions were filed. To the authorities cited by his Honour on the meaning of this expression may be added March v E & M H Stramare Pty Ltd (1991) 171 CLR 506. I note here that the facts of that case, which resulted in the applicant failing, were somewhat different to the present case, in that the applicant simply suffered an epileptic fit on a journey and was injured, the fit being the sole cause of injury and on his Honour's findings unconnected with the employment or the journey. 43. "Contribute" would seem to pose a lesser connection with a given event than the term "cause". So much would seem to be established by such authorities as Commissioner of Police v Hallenstein (1996) 2 VR 1, Repatriation Commission v Cruise (1994) 35 ALD 69 and Mills v Australian Postal Commission (1994) 32 ALD 489. It seems to me that if the "or" between "cause" and "contribute" in subs (1D) is disjunctive, as Mr Newton submits and I accept it is, the word "contribute" must be given some work to do, in that it must connote something different from "cause", and I think it does. I think it connotes a connection of a less strict kind between events than that required by "cause" in that the connection required is simply that to "contribute" to an outcome, an event may be simply one of several which have a real or operative influence, even if a minor one, on the outcome in question. I do not however consider that the "but for" test postulated by Hogg C in Molloy v Gosford City Council (unreported, 13/7/00) referred to and disagreed with by Bishop J in Gavalas is the correct one. It is not enough to prove that had the applicant not been on the journey concerned, an "injury" would not have occurred; what must be proved is that the journey contributed causally, even if in a minor way, to the happening of the injury. 44. Applying this reasoning to this case, it is obvious that if I accept that there was an aggravation of degenerative changes constituted by the applicant's actions immediately before she experienced pain in her knee, as I have, the journey contributed to the injury, even if it did not cause it. 45. It is notable that when the legislature inserted s 9A of the Act (by Act no. 20 of 1996, s 3 and schedule 1.2, which came into operation on 12 January 1997) it did not, as it did in s 9A(1), amend s 10(1D) to add the word "substantially" before "contribute" where that word appears in subs (1D), and that in s 9A(4) it specifically provided that s 9A does not apply in respect of an injury to which s 10 (inter alia) applies. The obvious intention was to preserve the separate regime of entitlement for compensation which exists in s 10. 46. In my view, the applicant in this case may well have failed had "substantially" been inserted before "contribute" in s 10(1D) to bring it into line with s 9A(1) which requires employment to be "a substantial contributing factor" to an injury. This is because the contribution of the worker's activity in this case immediately before she experienced pain in her knee by way of an aggravation of pre-existing degenerative changes was indeed relatively minor. After all, at the highest all she did was walk up a steep embankment, and then having done that, walk on the level between a footpath and a grass verge. It is true that I have accepted that this activity was an aggravation of pre-existing degenerative changes, but it was a relatively minor one. It would not qualify as a "substantial" one, were s 9A to apply, in all probability, and had "substantially" in s 10(1D) appeared before "contribute", the subsection, as I have said, would probably have applied to exclude recovery. The fact that the word "substantially" does not so appear seems to me decisive in this case. That small aggravations of degenerative changes could qualify before s 9A was inserted as injuries under s 4(b) of the Act or its equivalent elsewhere is demonstrated by the decision of Burke J in Watts Peterson Automotive Pty Ltd v Peterson (1994) 10 NSWCCR 653 which followed Treloar v Australian Telecommunications Commission (1990) 97 ALR 321, and see also Chalmers v Bank of NSW (1979) WCR 188. That such aggravations may also constitute "personal injury" simpliciter within the first "leg" of s 4 is demonstrated by Zickar in the earlier authorities I have cited. The result is that Armao, which was, as I have already pointed out, decided before Zickar, does not prevent me from deciding, as I have, that what occurred to the applicant in this case was "personal injury" within the first "leg" of s 4 and s 10(1) of the Act. 47. The applicant is therefore entitled to succeed in her claim. As I have pointed out, the certificates of Dr Ghaly prove total incapacity for work during the period of compensation claimed, and the applicant is entitled therefore to an award under s 36 in respect of that period, together with an order in respect of her s 60 expenses. No submission was made by either counsel about interest on compensation awarded, and I shall hear submissions about that when these reasons are published. 48. The figure of $557.69 per week is claimed in the application as the applicant's current weekly wage rate under s 36. I have agreement from counsel that this rate is correct. I have made an award at that rate. 49. I make the following findings: 1. Injury to applicant on a periodic journey between her place of abode and place of employment on 11 October 2000. 2. Resulting from such injury applicant totally incapacitated for work from 11 October to 8 November 2000. 50. I make the following award in the applicant's favour: 1. $557.69 per week from 11 October to 8 November 2000 under s 36. 2. Respondent to pay applicant's medical and like expenses under s 60. 3. Respondent to pay applicant's costs. Mr Wilkins instructed by Jones Staff & Co appeared for the applicant. Mr M Newton instructed by Abbot Tout appeared for the respondent.