Samoiloff v Grandiflora Nurseries Pty Ltd [2018 ] VSC 765 PDF

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IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION JUDICIAL REVIEW AND APPEALS LIST

Not Restricted

S CI 2018 01852

MARGARET RUTH SAMOILOFF

Appellant

v GRANDIFLORA NURSERIES PTY LTD

Respondent ---

JUDGE:

Richards J

WHERE HELD:

Melbourne

DATE OF HEARING:

26 November 2018

DATE OF JUDGMENT:

10 December 2018

CASE MAY BE CITED AS:

Samoiloff v Grandiflora Nurseries Pty Ltd

MEDIUM NEUTRAL CITATION:

[2018] VSC 765 ---

WORKERS’ COMPENSATION – Appeal from Magistrates’ Court against dismissal of claim for compensation under Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – Appellant’s disc prolapse an aggravation of pre-existing cervical spondylosis – Magistrate found appellant did not suffer a ‘work injury’ – Whether Magistrate erred by focusing on ‘significant contributing factor’ test in s 40(3) and not considering ‘arising out of employment’ test in s 39(1) – Tests are separate and distinct but may overlap – No discernible difference in this case – Magistrate’s approach reflected parties’ conduct of hearing – No error – Whether Magistrate’s finding that appellant ‘threw her head back while showering’ was open on the evidence or procedurally unfair – Finding not open – Finding not raised with appellant – Rule in Browne v Dunn – Appeal allowed – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 39(1), 40(3). --APPEARANCES:

Counsel

Solicitors

For the Appellant

Mr S O’Meara QC with Mr A Coote

Slater & Gordon

For the Respondent

Mr JP Gorton QC with Mr MJ Hooper

Russell Kennedy

HER HONOUR: 1

Grandiflora Nurseries Pty Ltd is a wholesaler of fresh flowers, mainly roses. Margaret Samoiloff worked for Grandiflora for at least 16 years, until she was made redundant in September 2015. She was a dedicated and reliable employee. Her work involved picking and packing orders of flowers and, every second Saturday and Tuesday, taking a truckload of flowers to the Footscray Market. It was mainly physical work that included, on some days, lifting up to 100 buckets, each quarter to half full of water, containing up to 10 bunches of flowers.

2

On Tuesday 4 August 2015, Ms Samoiloff was due to attend the Footscray Market. This involved an early start – arriving at work at 1.00 a.m. to collect the flowers, and then driving to the market to arrive by 1.30 a.m. At about 12.30 a.m., while she was in the shower at home, she put her head back to wash her hair and suffered severe pain at the back of her head – more severe than anything she had previously encountered. The cause of this pain was later diagnosed as a disc prolapse at C6/7, for which she underwent surgery on 20 October 2015.

3

Ms Samoiloff claimed compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act). Her claims were rejected by Grandiflora’s claims agent, and she applied to the Magistrates’ Court for review. The injuries for which she claimed compensation were aggravation of degenerative disc disease in the cervical spine, acute prolapse of the C6/7 disc and radiculopathy. Grandiflora relied on several defences. Two are relevant here: (a)

first, Grandiflora said that the claimed injuries did not arise out of or in the course of Ms Samoiloff’s employment; and

(b)

second, it claimed that employment was not a significant contributing factor to the aggravation of her pre-existing condition.

4

After a hearing on 16 and 17 April 2018, Magistrate Ginnane dismissed the proceeding on 20 April 2018. His Honour gave written reasons for his decision, 1 in

1

Samoiloff v Grandiflora Nurseries Pty Ltd [2018] VMC 4 (Reasons).

Samoiloff v Grandiflora Nurseries Pty Ltd

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JUDGMENT

which he found that he was satisfied that Ms Samoiloff had not suffered a work injury. 5

Ms Samoiloff has appealed that decision to this Court, under s 109 of the Magistrates’ Court Act 1989 (Vic). An appeal under s 109 lies on a question of law. Two questions of law, each with multiple parts, were identified in the amended notice of appeal. These were refined in written submissions and argument as follows: (a)

Did the Magistrate err in law by failing to identify and apply the legal test posed by s 39(1) of the WIRC Act (whether the injury arose out of the employment) and, therefore, fail to approach the determination of the question posed by s 40(3) of the WIRC Act (whether employment was a significant contributing factor to the injury) from a ‘working basis’ established by the answer to the question posed by s 39(1)?

(b)

Did the Magistrate err in law by making a finding (that Ms Samoiloff threw her head back when showering on 4 August 2015) for which there was no basis in the evidence and which denied her procedural fairness?

6

For the reasons that follow I have determined that the answers to these questions are: (a)

No. The Magistrate did not err by focusing on the test in s 40(3), namely whether the employment was a significant contributing factor to the injury. This reflected the way in which the hearing was conducted before him.

(b)

Yes.

There was no evidence to support the Magistrate’s finding that

Ms Samoiloff ‘threw her head back when showering on 4 August 2015’. 2 In addition, it was not fair to Ms Samoiloff to make this finding when it had not been raised with her at the hearing. 7

It follows from those conclusions that the appeal must be allowed.

2

Reasons, [75].

Samoiloff v Grandiflora Nurseries Pty Ltd

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JUDGMENT

Interaction between ss 39(1) and 40(3), WIRC Act 8

The first question of law identified in Ms Samoiloff’s amended notice of appeal is: Whether, in determining that the appellant had not sustained an injury arising out of or in the course of employment, in that she had ‘not suffered a work injury’, and thereby concluding that the appellant had no entitlement to statutory compensation, the Magistrate –

9

(a)

erred in his approach to s 39(1) of the WIRC Act by failing to ask and determine the general question whether the appellant’s neck condition arose out of or in the course of employment and, instead, focused upon immaterial events and incidents that did not determine the issue or contradict such a conclusion;

(b)

erred in adopting the same approach in respect to the issues arising under s 40(3) of the WIRC Act;

(c)

misapprehended or misapplied the evidence concerning these issues; and

(d)

gave [in]adequate reasons for his determination.

The grounds advanced in support of this question were that the Magistrate erred in his approach to s 39(1) of the WIRC Act by failing to ask and determine the general question whether Ms Samoiloff’s aggravated neck condition arose out of or in the course of employment and, instead, focused upon unrelated and inconsequential events and incidents that did not contradict such a conclusion, and gave legally inadequate reasons for his determination. These errors meant, it was argued, that the Magistrate failed correctly to consider and determine whether employment was a significant contributing factor to the aggravation injury sustained by Ms Samoiloff. Put another way, the contention was that the Magistrate failed to pose and determine the correct sequence of legal tests.

10

Section 39 of the WIRC Act sets out the circumstances in which a worker is entitled to compensation under the Act. Relevantly here, s 39(1) provides: If there is caused to a worker an injury arising out of or in the course of any employment, the worker is entitled to compensation in accordance with this Act.

11

Section 40 then sets out several circumstances in which there is no entitlement to compensation. In this case, s 40(3)(c) is relevant:

Samoiloff v Grandiflora Nurseries Pty Ltd

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JUDGMENT

There is no entitlement to compensation in respect of the following injuries unless the worker’s employment was a significant contributing factor to the injury— … (c)

12

a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.

A determination of whether employment was a significant contributing factor to an injury is to be made taking into account the matters set out in item 25 of Schedule 1 to the WIRC Act, being:

13

(a)

the duration of the worker’s current employment;

(b)

the nature of the work performed;

(c)

the particular tasks of the employment;

(d)

the probable development of the injury occurring if that employment had not taken place;

(e)

the existence of any hereditary risks;

(f)

the life style of the worker;

(g)

the activities of the worker outside the workplace.

Ms Samoiloff’s case was that her neck injury arose out of her employment with Grandiflora, and that the employment was a significant contributing factor to the injury, because the heavy and repetitive nature of her work was a cause of degeneration of her cervical spine. Although the aggravation of that condition that caused the disc prolapse occurred at home, the pre-existing condition was work related.

14

In his Reasons, the Magistrate set out the evidence as to Ms Samoiloff’s employment and work duties, and the onset of her injury on 4 August. He then summarised the medical evidence, in the form of reports tendered by both parties, and identified the competing opinions as to whether the injury was work related. His Honour then moved straight to considering whether employment was a significant contributing factor and the matters set out in Schedule 1, item 25. He did not separately consider whether the injury arose out of the employment, citing authority to the effect that the

Samoiloff v Grandiflora Nurseries Pty Ltd

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JUDGMENT

two tests are difficult to distinguish: 3 In Hegedis v Carlton and United Breweries Ltd (2000) 4 VR 296 the worker was injured whilst peeling an apple during a paid break. Ashley J held that employment was a significant contributing factor to the worker’s injury and made the following observation at [51]: … Nonetheless, save in pretty exceptional cases the causal requirement imported by the phrase ‘arising out of employment’ and that imported by the requirement that employment be a significant contributing factor to injury cover the same ground. Ashley J’s decision concerning the ‘significant contributing factor’ test was upheld on appeal (Carlton and United Breweries & Anor v Hegedis [2002] VSCA 61) and later endorsed by the Victorian Court of Appeal in Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141. In doing so the Court observed (Maxwell ACJ, Eames and Redlich JJ) at [80]: If it can be shown that employment was a significant contributing factor, that will usually be sufficient to show that the injury was one ‘arising out of the employment’ … If there is a distinction between the two concepts, it is more theoretical than real in such circumstances. …

15

As noted, his Honour found that Ms Samoiloff ‘has not suffered a work injury’. 4

16

Ms Samoiloff submitted that the Magistrate erred by not considering and determining, under s 39(1), whether her injury arose out of her employment. The WIRC Act poses the two questions sequentially, and they are neither coextensive nor identical. 5 The phrase ‘significant contributing factor’ is not to be treated as a proxy or substitute for the statutory ‘arising out of’ test. 6 A finding as to whether an injury arises out of employment provides ‘a working basis upon which to determine the presence or absence of the required causal connection with employment in most cases.’7 Hence, it was submitted, his Honour failed to pose and determine the question required by s 39(1) and so misdirected himself. There was also a complaint that the Reasons are legally inadequate because they do not disclose a complete path of reasoning in respect of the issues that the WIRC Act required be addressed.

3 4 5 6 7

Reasons, [64]–[65]. Reasons, [83]. Hegedis v Carlton & United Breweries Ltd (2000) 4 VR 296, [83], [87] (Hegedis). Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141, [81] (Zlateska). Hegedis, [87].

Samoiloff v Grandiflora Nurseries Pty Ltd

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JUDGMENT

17

It may be accepted that ‘arising out of employment’ and ‘significant contributing factor’ are separate and distinct tests that serve different purposes in the scheme of the WIRC Act. There is, however, a very substantial overlap between the two tests and, in many cases, there will be no discernible difference between them. 8 This is such a case.

18

The submissions for Ms Samoiloff did not identify how the application of the two tests sequentially might have led to a different result in this case. She submitted that the question under s 39(1) was whether the aggravation arose out of the heavy and repetitive system of work she performed for Grandiflora. Section 40(3)(c) posed the same questions. She submitted that it did not matter that her acute symptoms had come on at home, because an injury can arise out of employment even though a worker is not working at the time of onset. The same is true of the significant contributing factor test under s 40(3)(c), taking into account the matters set out in item 25 of Schedule 1. Both tests pose questions of factual causation, to be answered using common sense. Neither test requires that employment is the sole cause of an injury.

19

One possible difference between the two tests may concern the onus of proof. It is the worker who must establish an entitlement to compensation under s 39. It may be that it is for the employer to prove disentitling circumstances under s 40.

It is

accepted that an employer bears the onus in relation to the defence of reasonable management action in s 40(1).9 There is apparently no authority as to where the onus lies in relation to the ‘significant contributing factor’ test in s 40(3) or its predecessor, s 82(2C) of the Accident Compensation Act 1985 (Vic).

I need not

determine that issue, however, because the outcome here did not turn on onus of proof – the Magistrate was satisfied by the evidence adduced by Grandiflora that Ms Samoiloff did not suffer a work injury.

8 9

Zlateska, [10], [78], [80]. See Pulling v Yarra Ranges Shire Council [2018] VSC 248, [78] (Pulling) and Department of Education v Unsworth [2010] VSCA 77, [57].

Samoiloff v Grandiflora Nurseries Pty Ltd

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JUDGMENT

20

That conclusion meant that there was no entitlement to compensation, by virtue of s 40(3) of the WIRC Act. Ms Samoiloff did not persuade me that his Honour might have reached a different conclusion had he first considered the question of whether the injury arose out of the employment, under s 39(1).

21

In addition, the way the Magistrate approached the questions for his determination reflected the way the parties presented their cases. It is axiomatic that a party is bound by the conduct of the case at trial. 10 In opening, counsel for Grandiflora said that ‘the issue in the case from the defendant’s point of view is whether or not her employment was a significant contributing factor to her cervical spine injury’. It was implicit in that approach that, if Ms Samoiloff succeeded on that question, she would also have established that her injury arose out of the employment.

In closing

argument, counsel for both parties confined themselves to the question of ‘significant contributing factor’.

His Honour’s reasons address the question on

which the parties joined issue at trial. 22

There was no error in the Magistrate’s approach to determining the question of causation by reference only to the ‘significant contributing factor’ test in s 40(3)(c).

Did the Magistrate make a finding that was not open on the evidence, or unfair? 23

The second question of law set out in the amended notice of appeal was whether – The Magistrate, in determining that there was not a work injury and accordingly no entitlement to statutory compensation:

10

(a)

failed to pose and determine the correct legal tests;

(b)

erred in accepting medical opinions that were premised [on] irrelevant propositions such as that no ‘work injury’ had occurred because the symptoms of injury came on at home or notions [for] which there was no support in the evidence at trial;

(c)

made findings [for] which there was no probative supporting evidence; and

(d)

deprived the appellant of procedural fairness.

University of Wollongong v Metwally (No 2) (1985) 60 ALR 68, 71. See also Jones Lang Lasalle (Vic) Pty Ltd v Korlevski [2012] VSCA 305, [3]–[7] (Warren CJ), [67]–[70] (Neave JA, Ferguson AJA agreeing).

Samoiloff v Grandiflora Nurseries Pty Ltd

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JUDGMENT

24

The grounds relied upon in support of this question were that the Magistrate erred in determining that there was no work injury, because that finding proceeded upon findings of fact in respect of which there was no probative supportive evidence or no legally adequate process of reasoning. Several findings of fact were challenged in the amended notice of appeal, but at the hearing Ms Samoiloff concentrated on the finding that she suddenly moved and ‘threw her head back’ when showering at home. She also contended that she was denied procedural fairness in relation to this finding because: (a)

no such proposition had been suggested to her in evidence;

(b)

to the contrary, her evidence concerning that event was permitted to stand unchallenged and did not reasonably support any proposition that she had ‘thrown’ or ‘suddenly moved’ her head in the shower; and

(c)

no such proposition had been suggested by Grandiflora’s counsel to the Magistrate or to Ms Samoiloff at any point in the trial.

25

As mentioned, this question of law and the corresponding grounds were refined in written and oral argument.

By the end of the hearing it appeared that Ms

Samoiloff’s complaint was that the Magistrate had made a finding – that she threw her head back when showering on 4 August 2015 – for which there was no basis in the evidence and which denied her procedural fairness.

What did the Magistrate find? 26

Before dealing with the submissions about whether the Magistrate’s finding was in error, it is necessary to identify precisely what it was that his Honour found. At [70]–[71] of the Reasons his Honour stated the issues for his determination thus: Here the incident in the shower is what occasioned the plaintiff’s incapacity for work and so the question is whether it was an incapacity by way of aggravation of a work injury. … The case proceeded by both counsel on the basis that the in...