Pdc Constructions (ACT) Pty Limited v Reino Tapio Westlin; Leno Sella and Mirko Paven T/As Sella and Paven [1986] ACTSC 16 (7 March 1986)

SUPREME COURT OF THE ACT

PDC CONSTRUCTIONS (A.C.T.) PTY. LIMITED v. REINO TAPIO WESTLIN; LENO SELLA and
MIRKO PAVEN t/as SELLA and PAVEN
S.C. No. 1391 of 1983
Workmen's Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Workmen's Compensation - Incapacity following injuries sustained by workman when in employ of different employers - Whether evidence could suggest finding that eventual incapacity due to one injury only - No new question of principle involved.

Workmen's Compensation Ordinance 1951 (A.C.T.).

HEARING

CANBERRA
7:3:1986

ORDER

The appeal be allowed.

So much of the award of the learned arbitrator appealed from as found that the liability of Leno Sella and Mirko Paven to pay compensation to the respondent Reino Tapio Westlin ceased on 30 September 1982 and that the appellant PDC Constructions (A.C.T.) Pty. Limited was liable to pay compensation in accordance with the Workmen's Compensation Ordinance 1951 to the said Reino Tapio Westlin from 1 October 1982 and continuing and awarded and ordered that the appellant pay weekly compensation to the said Reino Tapio Westlin in accordance with the rate prescribed by the said Ordinance for total incapacity from 1 October 1982 be set aside.

The matter otherwise be remitted to the learned arbitrator to be dealt with in accordance with this judgment.

DECISION

This is an appeal from an award made by Mr Cahill, S.M. (as he then was) as arbitrator under the provisions of the Workmen's Compensation Ordinance 1951 (the Ordinance). The first respondent (the workman) in his application for arbitration had claimed that on 3 August 1981 he suffered personal injury by accident arising out of and in the course of his employment by PDC Constructions (A.C.T.) Pty. Ltd. (the appellant) and that the injury thus sustained was exacerbated between 5 May 1982 and 10 July 1982 when he was employed by Leno Sella and Mirko Paven trading as Sella & Paven (Sella & Paven).

2. The learned Magistrate made findings in his award to the following effect:-

1. That on or about 3 August 1981 personal injury by

accident arising out of or in the course of his
employment was caused the workman when employed by the
appellant and that injury was aggravated by his
employment with Sella & Paven between 5 May 1982 and 10
July 1982.

2. That as a result of the injury of 3 August 1981 and its
aggravation the workman was totally incapacitated for
work from 6 July 1982 onwards.

3. That Sella & Paven were liable to pay compensation in
respect of the workman's incapacity from 6 July 1982 to
30 September 1982 when their liability ceased and the
appellant became liable to pay compensation for total
incapacity from 1 October 1982 and continuing.

3. The findings numbered 1 and 2 above are not challenged.

4. The appellant had had a history of back trouble. This appears most clearly from the report made by Dr I.F. Ferguson, his general practitioner and tendered in evidence as Exhibit C before the learned Magistrate.

5. On 3 August 1981, while in the employ of the appellant, the workman fell a distance about which it is unnecessary to make a finding and sustained a number of injuries including an injury to his back causing pain there. He was totally incapacitated for a short time until Dr Ferguson certified him to be fit to return to work on 17 August 1981. He did so but was unable to carry on and subsequently remained totally incapacitated until 30 September 1981 when Dr Ferguson certified him fit to return to work on 2 October 1981. By then he had resigned, on 24 September 1981, from the appellant's employ. He eventually returned to work. He said that the pain in his lower back got better and that by February 1982 it was just an annoyance. After that he noted that, after a particularly long day involving standing while doing reasonably heavy work, he was a little bit sore in the afternoons but the soreness went with rest. The pain appears never to have subsided entirely.

6. The learned Magistrate accepted the workman's evidence that following the accident on 3 August 1981 he had pain, which may have been sciatic pain, down one leg.

7. On 5 May 1982 the workman started to work for Sella & Paven. He found that the heavy work involved in their employ gradually increased the pain in his back so that by July 1982 he was totally incapacitated for work and stopped.

8. It seems to be undoubtedly the case on the evidence that the workman was suffering from some underlying back pathology before 3 August 1981. The probabilities on all the evidence are that the fall of 3 August 1981 initiated a disabling condition, a disc lesion at the L5-S1 level of the spine. It is of some significance that episodes of pain occurring before 3 August 1981 and following on a number of incidents had resolved reasonably quickly.

9. There is reference in the evidence to the workman's engaging in the sport of sky diving but the learned Magistrate discarded this, on the evidence I think quite rightly, as a factor which contributed to his disability.

10. The grounds of appeal were that the learned Magistrate erred in law in finding that there was evidence upon which he could find that -

(a) the aggravation suffered by the workman whilst in
the employ of Sella & Paven ceased on 1 October
1982; and

(b) the workman was totally incapacitated after 1
October 1982 solely as a result of the injury
suffered by him whilst in the employ of the
appellant on 3 August 1981.

11. The findings under challenge are findings of fact. They may be disturbed only if error of law appears and such an error will appear only if there is no evidence to support the findings or if the learned Magistrate acted on a view of the facts which could not reasonably be entertained or if the facts found are such as could not have been found by a person acting judicially and properly instructed as to the relevant law. Aafjes v. Kearney (1976) 8 ALR 455 at p 460 per Gibbs J (as he then was) and at p 463 per Mason J with whom Stephen J concurred and Potts v. Niddrie & Benhar Coal Company, Limited [1891] UKHL 1; (1913) AC 531 at pp 542-3, per Lord Moulton. What is required is that there be some evidence upon which the findings can legally rest; Hodges v. Scott's Provision Stores Pty. Ltd. (1964) NSWR 887 at p 890 per Sugerman J (as he then was).

12. Although the learned Magistrate expressed some doubts as to the credibility of the workman, I think the appropriate course to adopt is to assume that he accepted the workman's evidence except where he specifically rejected it.

13. It is desirable to quote some of the relevant evidence. First I set out part of the workman's evidence-in-chief:-

"After you left Sella & Paven - sorry, was
that about 10 July? - - - That would be so,
yes.

After you left that firm what did you do
then? - - - I have not worked since.

Did you look for any work? - - - I have not
attempted to look for work. I was in extreme
pain just immediately after I left Sella &
Paven. I was virtually bedridden for two or
three weeks.

Did you improve again? --- Yes, I slowly
started to get better.

Did you get better to the stage where you can
go back to work? --- No, it has not."

Have you been fit for any sort of work that
you think you can do since you left Sella &
Paven? --- I probably could take up an
occupation where I am required to sit down
all day, but I still have mornings that I
wake up that I really just do not feel like
getting out of bed because it is too sore.

Could you be a reliable employee in the sense
of being sure to be able to go to work every
day? --- No, I do not think so."

14. Secondly, I set out part of his evidence under cross-examination by counsel for the appellant:-

"How was your back in that period between 3
September 81 and your resignation on 24
September 1981? --- It was sore.

It was sore? --- Yes.

When you say your back was sore, just what is
it about your back at this particular time,
this is after the accident with PDC (the
appellant), that was sore about your back?
Was it just the pain or were you restricted
in movement, or what? --- It is basically
just the pain.

So at that time in September 81 you had no
restrictions in the movement that you were
able to perform? --- I still have very little
restriction in my movement. I can bend over
and touch my toes.

Just if we can deal only with that time which
is about the time when you were going to
leave your job at PDC. You say you had no
restrictions in your movement, so that you
could bend without any trouble? --- It was
painful, but

If you bent over pain would increase, is that
right? --- Yes.

Would the pain become unbearable, or what
would happen? --- No, it would not become
unbearable.

. . .

This pain that comes on, is it a sharp pain,
a dull ache, or what happens? --- It is just
a dull ache continuously now.

. . .

Did you go out working during that period of
time? That is from 24 September up until 17
February 1982? --- I could have, yes.

What sort of work would you have done during
that period of time? --- I probably could
have resumed my normal job.

You could have gone back to scaffolding? ---
Yes.

Why was that? --- I had seen my doctor and he
told me that I was fit to go back and I
started looking for work and I registered as
unemployed."

15. Part of the workman's evidence given during his cross-examination by counsel for Sella & Paven concerning the period between 24 September 1981 and April 1982 was as follows:-

"It was because of pain in your back that you
stopped work at PDC Constructions? --- That
is correct, yes.

And you selected light jobs because of the
pain in your back? --- I would think so, yes.

You did not go back and ask PDC for your old
job back, did you? --- No, I did not.

The reason you did not do that was because
you had pain in your back? --- Yes, that is
correct.

And the reason you did not go to another
employer that had heavy jobs was because of
the pain in your back, wasn't it? --- That is
correct, yes.

. . .

When you started to work for Sella & Paven
you knew that you would not be able to get
through a day like that? --- No, I would
imagine that when I started I did realize
that I would not go for too long, depending
on how heavy the work was.

That was because of the condition of your
back? --- That is correct, yes.

And your inability to do heavy work? --- That
is correct, yes.

I mean you had had a try, had you not? Since
you left PDC? --- No, I had not really tried
any heavy work.

You had had an opportunity to try, had you
not? --- I did have an opportunity, yes.

. . .

When you started working for Sella & Paven
straightaway you were feeling pain in your
back, were you not? --- Yes, it was
particularly sore in the afternoon by the
time I got home, yes.

Since you had left PDC the pain had not gone
away, had it? --- Not entirely, no.

. . .

It was a decision that you made that you were
not coping well? --- I was not coping well in
my duties because of the fact that I was not
able to work to my full capacity and I did,
at that stage, start to suffer extreme pain.

. . .

While you were working for Sella & Paven you
did not reach the stage when you could not
work any more, did you? --- Yes, I did.

And what have you been doing since you left
Sella & Paven? --- I have been doing nothing.

Have you been trying to rest your back? ---
Yes, I have.

And do you find that rest helps? --- It does
help to lay down, yes.

And so there has been a gradual improvement
in your back? --- It is better now than what
it was when I first left, yes."

16. It is important to note that the learned Magistrate found that the physical incapacity from which the workman was suffering from 1 October 1982 onwards was partial only. He found, as on the evidence he was entitled to do, that the workman was capable of doing work of a sedentary nature. But, nevertheless, in due course he found, following the tender of further evidence concerning the state of the labour market, that the workman was in fact totally incapacitated from 1 October 1982 because his labour was not, having regard to his partial physical incapacity, saleable in any labour market readily available to him. Ball v. William Hunt & Sons Ltd. (1912) AC 496 at pp 499-500. As I have said, no challenge is made to that finding of total incapacity.

17. The principal question is whether there was evidence that the aggravation between May and July 1982 of the condition which had followed the fall on 3 August 1981 had resolved itself by 30 September 1982 to the point where the only remaining cause of the partial physical but total economic incapacity from which the workman was then suffering was the fall of 3 August 1981.

18. One short passage from the evidence given by Dr Newcombe, the neurosurgeon who eventually operated on the workman, is important. The evidence was given on 9 November 1982 while the workman underwent surgery on 20 April 1983. It was:-

"Doctor, if after working in the formwork,
whenever it was, either January, February,
March or April, up until July when he found
he could not do it any more, he found that he
was developing pain down both legs, does that
have any effect on your views as to an
aggravation? --- It strengthens the view of
an aggravation.

. . . Do you have a view as to whether or not
the formwork which you have described as an
aggravation in your report, or as giving rise
to an aggravation, is a cumulative thing . . .
or is merely a temporary isolated incident
which brings it up and then will go down, or
what? . . . How do you regard that
aggravation? As cumulatively or isolated in
that particular respect? --- I regard it as
cumulative because the pain is said to be
worse and continued to be worse. It would be
isolated if the pain was aggravated
temporarily and then settled."

19. Another important passage was from the evidence of Dr Danta, a neurologist who examined the workman on behalf of the appellant. It was:-

"Then when he takes on a heavier job from May
to July with increasing pain, slowly
developing to a stage where he cannot
continue to work, that is an aggravation of
it, is it? --- That is an aggravation of it.

If he has not been able to get back to work
since then because of the pain, that is still
continuing? --- That is still continuing.

Rest would tend to ease that pain, would it?
--- Well, rest should ease it.

But any effort would bring it back again, if
it is genuine? --- Well, particularly bending
and lifting and similar activities, and of
course other injuries.

It would be both that fall of August 1981 and
the subsequent exacerbation from that other
work which brought it up into a more painful
situation in July of this year that are
presently causing his disability? --- Yes, I
would expect so."

20. Much of the difficulty in this case stems from the fact that the learned Magistrate made what may be described as interim findings. Having regard to the way that the case was conducted before him, no criticism can be levelled at him on this account. In giving his interim findings he said:-

"It seems to me from his (the workman's) own
mouth he said the situation has improved, he
bears the onus and it seems that by the end
of September 1982 Dr Newcombe had seen him,
performed a lumbar myelogram, indicated
clearly that he was unfit and it was
undesirable for him to continue with heavy
lifting or bending work, he was unfit for
heavy labouring or labouring work at that
particular time.

But it seems to me that the evidence of Dr
Newcombe along with the evidence of Dr Scarf
and the evidence of Dr Danta, both in reports
and in sworn evidence, indicates to me that
by the end of September 1982 the (workman)
has not convinced me on the balance of
probabilities that he still remained totally
incapacitated. It seems to me that by that
time the medical evidence along with his own
evidence that he had improved, although he
does add the rider that he still did not feel
he was fit for work, and mentioned clerical
work as a possibility but then even went back
on that, it seems to me, taking into account
the attack on his credibility and bearing in
mind the evidence of the doctors and also
bearing previous evidence that (the workman)
must have had quite a degree of tolerance to
pain, pain is a subjective thing and it seems
to me that (the workman) was able to perform
quite difficult tasks previously and that
indicates to me that he does have a fairly
good tolerance to pain, I could not be
satisfied on the balance of probabilities
that as from 1 October 1982 onwards that he
was totally incapacitated for work.

I am, however, satisfied that the restriction
in relation to any heavy lifting, repetitive
bending or any labouring work remained as at
1 October 1982. It remains to examine that
residual physical capacity and make a
decision as to whether that residual physical
capacity . . . is the same as economic
incapacity . . ."

21. The findings just referred to can only amount to a finding that the workman was incapacitated from heavy lifting, repetitive bending or any labouring work. There was no evidence of any incident which had occurred between 10 July 1982 and 9 November 1982 and might have aggravated the workman's back condition. Logically, therefore, his physical incapacity at 9 November 1982 must have been greater than that from which he suffered before he began work for Sella & Paven when he was able, at least for a time, to perform work which he could not, on the learned Magistrate's findings, do on 9 November 1982.

22. When the learned Magistrate made his final findings and award he did not seek to resile in any way from the findings he had earlier made. Having regard to the course which the hearing had taken, he did, however, hear further evidence. I note that when the workman gave evidence after the interim findings had been handed down he was asked whether his back condition had changed since he first gave evidence. Counsel cross-examining on behalf of the appellant said:-

"Has it got progressively worse up until the
operation?"

The workman replied, "Yes it did". He was then asked:-

"Was there any stage after the evidence you
gave on 10 November 1982 when it got better?"

and he said:-

"It did seem to get better. It was better
just so long as I rested continuously."

The questioning went on:-

"But the pain never went away? --- No.

. . . so as far as you are concerned, . . . do
you feel yourself that there was any work
that you could do since you last gave
evidence? --- No."

23. I can see no evidence whatever to support the conclusion reached by the learned Magistrate that the disability caused by the aggravation to the workman's condition in July 1982 ceased at 30 September 1982, a date which seems to have been arbitrarily chosen. Undoubtedly there was some improvement between 10 July 1982 and 9 November 1982 but on the learned Magistrate's findings a degree of incapacity which he described as partial still remained. He plainly meant partial physical incapacity and left the question of whether that amounted to total incapacity within the meaning of the Ordinance to be decided on appropriate evidence. See Bartlett (A.J.) Pty. Ltd. v. Drenkovski (1981) 40 ACTR 7 and the cases there cited.

24. The logical difficulty that arises is that for the Magistrate to be able to say that the responsibility for the workman's total incapacity from 1 October 1982 was that of the appellant he must have found, at least implicitly, that there was an earlier partial incapacity which was aggravated by the accidents occurring between 5 May and 10 July 1982 and that after 10 July 1982 the aggravated incapacity was subject to remission so that by 30 September 1982 the workman's condition was the same as it had been before the first aggravating accident occurring during the course of his employment by Sella & Paven.

25. It is difficult to see how he could have done this. Mr Sheils, counsel for the workman, sought to explain it on the basis that the work which the workman obtained between October 1981 and 5 May 1982 was work which was given to him by someone outside the market or in circumstances where he did not disclose his back condition to his prospective employer. This latter appears to have been the case at least so far as his employment by Sella & Paven was concerned. The fact remains, however, that he was in employment at that time and while in that employment was paid enough so that no claim is made in respect of economic loss because of partial incapacity during that period. He may not have been perfectly physically fit but nevertheless there is no suggestion that he suffered any incapacity in the sense in which that word as used in the Ordinance is to be understood. That being the case the partial incapacity which he suffered after 30 September 1982 must have been a greater incapacity than that from which he suffered before the first accident after 5 May 1982 during the course of his employment by Sella & Paven. This flows from the learned Magistrate's finding that he was satisfied that the restriction in relation to heavy lifting, repetitive bending or any labouring work remained at 1 October 1982. Nothing in that finding can on the evidence equate his then condition with that existing before 5 May 1982.

26. Mr Sheils sought to rely upon Baker v. Canberra Abattoirs Pty. Ltd. an unreported judgment of the Federal Court of Australia delivered 20 May 1982. The facts of that case were quite different and it seems to me to be clearly distinguishable. The principal distinction lies in the fact that in this case the evidence is clear enough that before 5 May 1982 the workman was able to work even though perhaps at something less than the heavy work in which he had previously been engaged for a remuneration which admitted of no claim for loss of economic capacity of the First Schedule to the Ordinance. (See sub-paragraphs (b) and (c) of paragraph 1 of the First Schedule to the Ordinance.) This was not so in Baker's case. It seems to follow inevitably, therefore, that at least part of the condition from which the workman suffered after 30 September 1982 was due to his employment by Sella & Paven.

27. Since there was no evidence that the workman had the benefit of a remission of his condition from 1 October 1982 so that his condition improved to the point it had reached before it was aggravated in the course of his employment by Sella & Paven I am constrained to find that there was no evidence upon which the learned Magistrate could make the finding which he did.

28. The first ground of appeal must therefore succeed.

29. I think the second ground succeeds also. It seems to me that the only findings available to the learned Magistrate on the evidence were either that the condition from which the workman suffered from 10 July 1982 onwards was due solely to his employment by Sella & Paven or that it was due to the effects both of his injury sustained when he fell on 3 August 1981 and of the injury or injuries arising out of or in the course of his employment by Sella & Paven. As to the second possibility I refer to Bushby v. Morris (1980) 28 ALR 611 where Lord Keith of Kinkel, speaking of a situation much like that under consideration here, said, at p.616:-

"There is no room for an artificial rule of
law that in such a situation one or other
accident must necessarily be selected as the
cause of the incapacity, apparently on an
entirely arbitrary or capricious basis."

See also Bratovich v. Rheem (Aust.) Pty. Ltd. (1971) 2 SASR 33.

30. From the transcript alone the weight of evidence seems to me to be in favour of a finding that both employers were responsible for the condition in which the workman eventually found himself after 10 July 1982. This appears, I think, sufficiently from the evidence of Drs. Newcombe and Danta to which I have earlier made reference. However, I think the appropriate course in all the circumstances is to refer the matter back to the learned Magistrate so that he can make a definitive finding, having regard to what I have just said. The matter is one really for consideration by the tribunal of fact which had all the evidence before it and which was in a position better to assess the testimony of the witnesses than I am able to from the transcript of the evidence before it.

31. In all the circumstances, therefore, I propose to allow the appeal and to set aside that part of the learned Magistrate's award which found that the liability of Sella & Paven ceased on 30 September 1982 and that thereafter the appellant became liable to pay compensation to the workman for total incapacity from 1 October 1982 and continuing and the consequential order for payment of compensation on that basis.

32. The matter is remitted to the learned Magistrate to be dealt with in accordance with this judgment.

33. The appellant should have its costs of the appeal. I will hear argument as to the precise order or orders I should make on costs.