Concept Homes Pty Limited v Liam Patrick Jones [1987] ACTSC 72 (27 October 1987)

SUPREME COURT OF THE ACT

CONCEPT HOMES PTY. LIMITED v. LIAM PATRICK JONES
S.C. No. 835 of 1986
Workmen's Compensation - Appeal - Evidence

COURT

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

CATCHWORDS

Workmen's Compensation - lump sum injury - loss of the efficient use of the lower part of the left arm in and for the purposes of the worker's employment - assessment of compensation - sufficiency of evidence.

Appeal - role of appellate court - no new question of principle.

Evidence - necessity for proof of facts upon which expert medical opinion is based - degree of precision necessary.

Workmen's Compensation Ordinance 1951 (A.C.T.), ss.10(1), (1A), (6), (7)

Workmen's Compensation Ordinance, (N.T.)

Uranerz v Hale (1980) 30 ALR 193

Proestos v Canberra Rex Hotel Pty Ltd (1985) 64 ACTR 116

Parric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844

Malleys Limited v Kinkella, unreported, NSW Court of Appeal, 15 December 1986

Gunn Developments (NT) Pty v John Robert Edwards, Muirhead J., unreported, 12 April 1977, N.T.

The Commonwealth v Matheson [1955] HCA 24; (1955) 93 CLR 403

Parkes v The Commonwealth (1958) 9 FLR 16

HEARING

CANBERRA
27:10:1987

ORDER

The appeal be dismissed.

DECISION

This is an appeal against an award of lump sum compensation in favour of the respondent made by Magistrate Nicholl sitting as the Magistrate's Court, Canberra, on 30 April 1986. The learned magistrate found that the respondent had suffered an injury specified in the Second Schedule to the Workmen's Compensation Ordinance 1951, namely permanent loss of the efficient use of the lower part of the left arm in and for the purposes of the respondent's employment at the date of the injury. He held that the respondent was entitled to one hundred percent of sixty three percent of the specified amount pursuant to sub-s.10(1), (1A) and (7) of the Ordinance and Second Schedule thereto.

2. The relevant sub-sections of s.10 are those in force prior to the amendment effected by Ordinance No. 69 of 1983:

"10.(1) Subject to this Ordinance, where a workman

sustains, by accident arising out of or in the course
of his employment, any of the injuries specified in
Part I of the Second Schedule to this Ordinance, the
compensation payable shall, where the injury results in
an incapacity other than total and permanent incapacity
for work, be the amount of Twenty thousand dollars.
(1A) Subject to this Ordinance, where an employee
sustains, by accident arising out of or in the course
of his employment, any of the injuries specified in the
first column of Part II of the Second Schedule to this
Ordinance, the compensation payable shall, where the
injury results in incapacity other than total or
permanent incapacity for work, be the amount equal to
such percentage of the amount specified in the last
preceding sub-section as is specified in the second
column of that Part opposite the specification of the
injury in the first column."
(6) Where a workman sustains an injury which
causes partial and permanent loss of the efficient use
of a part of the body specified in the Second Schedule
to this Ordinance in and for the purposes of his
employment at the date of the injury, there shall be
payable an amount of compensation equivalent to such
percentage of the amount of compensation payable under
this section in respect of the loss of that part as is
equal to the percentage of the diminution of the
efficient use of that part."
(7) For the purposes of this section and of the
Second Schedule to this Ordinance, the loss of a
specified part of the body includes -

(a) the permanent loss of the use of that part; and (b) the permanent loss of the efficient use of that

part in and for the purposes of his employment at
the date of the injury."

3. The grounds of appeal set out in the Notice of Appeal were broadly stated but on the hearing of the appeal the only two grounds argued were:

(1) there was no evidence of any assessment by duly

qualified expert medical witnesses of the
percentage loss of the efficient use of the left
arm in and for the purposes of the respondent's
employment at the date of the injury; and

(2) the magistrate having found total permanent loss

of the efficient use of the left lower arm in and
for the purposes of the respondent's employment at
the date of the injury, the respondent was not
entitled to an award of compensation under
s.10(1A).

4. In relation to the first ground of appeal it is necessary to review the evidence. The respondent gave evidence that on the day of the accident, i.e. 23 May 1977 he was employed by the appellant as "the plasterer and concreter". He described in his evidence in chief how he had fallen through the roof of some premises being constructed and broken his left wrist. In cross-examination he said that on the day of the accident he had been doing the work of a concreter putting in concrete footpaths. He said it was about to rain so he went to assist in putting in a ceiling. He was working with gypsum plaster on top of the ceiling.

5. The general effect of the respondent's evidence was that he alternated between plastering work and concreting work. In relation to plastering work he described how he would carry a hawk in his left hand with the render material on it weighing 10-12 kilos. He described how plaster was scraped off with a timber screed which involves using both left and right wrists. The plastering is then finished off with a water brush in the left hand and a wood float in the right hand. The same method is used with vertical walls and ceilings. If working up high one needs to use ladders. He also installed gyprock sheets for the appellant. He described the sheets as being very heavy and that sort of plastering as being a different type of plastering work from cement rendering vertical walls and ceilings. He said the fixing of gyprock sheets is a lot harder and heavier work than he was doing in his own business at the time of giving evidence.

6. Two medical practitioners gave evidence of having examined the respondent. They both assessed his loss of efficient use of his left lower arm in and for the purposes of his employment as one hundred percent loss.

7. Dr Arnold Mann took over the respondent's treatment after the respondent's treating orthopaedic surgeon died. He performed an operation upon the respondent on 5 June 1980, saw him again on two further occasions in 1980 and again in January 1981, and most recently on 22 July 1985 which was the day before Dr Mann gave evidence. Dr Mann was asked to make a number of assumptions about the respondent's work as a plasterer and concreter. The question and his answer were:

"Doctor, assume that a hawke spelt H-A-W-K-E (sic) is
the platter device on which a plasterer holds his
plaster; that the term screening off means smoothing
the surface of plaster with a piece of straight edged
timber, and that is done with both hands; that
finishing off is a process where a wooden float and
hose and water brush is used to flick water onto the
plaster to keep it damp. And then can I put the
following to you that - assume that on 24 May '77 that
Mr Jones was a plasterer and injured his left wrist in
a fall; that his duties as a plasterer involved him in
the following, mixing straw and timber shavings with
quick setting plaster, (b) climbing a ladder with tools
in his hands to get onto a roof. Trowelling plaster
from the hawke to the ceiling. Screening off,
smoothing over surface of plaster and finishing off,
and that in performing those duties, he being
right-handed used his left hand in mixing and holding
the hawke; holding tools, tripping a ladder, steadying
himself, gripping and guarding various tools. Pushing
and pulling various tools and flicking water and
holding the hawke with various weights concerning the
plaster. Now, you are aware of, I think, Dr Golski's
operations on Mr Jones? - - - Yes.

8. He was then asked what percentage loss of the efficient use of the lower part of the respondent's left arm in and for the purposes of his employment as a plasterer was occasioned by the incident on 24 May 1977. Dr Mann said that the respondent could not work as a plasterer and that means that the percentage loss is one hundred percent for that particular job.

9. In cross-examination he was asked whether he knew what a plasterer did and he replied that he relied on what people told him about that, but in addition he added his understanding that the respondent used his left hand for smoothing down the plaster, that he had to have a great amount of flexibility in his wrist for that sort of work, that it was a job where he had to grip consistently, that it involved climbing up and down ladders, that presumably at times he had to suspend himself by the left hand and the job required the strength of a grip. He said that he found wasting of the left forearm muscles and was quite astounded that there was an enormous difference between the left and right forearm muscles. He said that putting that all together, it was consistent with the respondent not being able to do plastering work except for very short periods.

10. Dr David McNicol, orthopaedic surgeon, also gave evidence on behalf of the respondent and his reports of 24 June 1982 and 31 January 1984 to the respondent's solicitors were in evidence. He too was asked to make some assumptions about the respondent's duties as a plasterer in the form of the following question:

"Thank you. Doctor, would you assume, please, that the
duties of Mr Jones as a plasterer, involving him in
mixing straw and timber shavings with a quick setting
plaster. Climbing a ladder with his tools in his
hands. Trowelling plaster from a hawke to a ceiling,
and that a hawke is a platter device upon which plaster
is held by plastering. That he screens off - screens
off means smooths the surface of plaster with a piece
of straight edged timber and he does that with both
hands and arms to guide, control and push; that he
finishes off. And that means that he uses a wooden
float and hose or water brush to flick water onto the
plaster to keep damp and that he does that with both
hands, and that he uses his left hand for mixing and
holding. For holding tools, gripping the ladder; his
left arm and wrist to keep steady, and his left hand to
hold himself steady; to grip and to guide; and to push
and to pull, and to flick water, and to hold the
hawke. Now, in your opinion, does he have a loss of
the lower part of the left arm? --- Yes.
Loss of function? --- Yes.
And is that loss permanent? --- I believe so, yes.
And does that permanent loss affect his ability to
carry on work as a plasterer? --- Yes.
And what percentage loss of the efficient use of the
lower part of the left arm occurred in your opinion,
from the incident of 24 May 1977 in and for the
purposes of his employment as a plasterer? --- I believe
that he has 100 per cent loss for the purposes of
employment as a plasterer."

11. Dr W.J. Coyle, orthopaedic surgeon, gave evidence on behalf of the appellant and his report of 25 October 1984 was in evidence. In that report he assessed the respondent's loss of use and function below the elbow for the purpose of his work as being twenty five percent. He said in evidence that he was fairly unfamiliar with the building trade. The effect of his evidence in chief was that the more work involving the left hand the more the disability which the respondent had. He agreed in cross-examination that he did not go into great detail with the respondent about his functions as a plasterer.

12. In his judgment the Magistrate referred to the respondent's evidence that he could not do the more particular work of a plasterer, which was plastering work other than the kind that he was doing at the actual date of the injury, and to the evidence that he could not do the work that he was doing at the time of the injury. The gyprock sheets were too heavy and he simply could not use his arm for other than short periods. The Magistrate said that he accepted the respondent's evidence. He thereupon found as a fact that the respondent had a permanent loss of the efficient use of the lower left arm in and for the purposes of employment at the date of the injury.

13. It is now clear law that on the hearing of an appeal of this nature this court is not entitled to reverse the finding of the court appealed from which was based on its view of the credibility of the witnesses, unless it was seen clearly to be wrong on grounds which did not depend merely on credibility, such as that the evidence which was accepted was inconsistent with established facts or was so improbable that no reasonable person could accept it or that the judgment of the court appealed from disclosed that its conclusion was affected by some error of law or fact (Uranerz v. Hale (1980) 30 ALR 193 per Gibbs CJ at 199; Proestos v. Canberra Rex Hotel Pty Ltd (1985) 64 ACTR 110).

14. It is also clear law that for expert medical opinion to be of value the facts on which it is based must be proved by admissible evidence. The facts need not correspond with complete precision to the proposition on which the opinion was based (Ramsay v. Watson [1961] HCA 65; (1961) 108 CLR 642 and Parric v. John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844, applied in Malleys Limited v. Kinkella, unreported decision of New South Wales Court of Appeal, 15 December 1986.)

15. Although the full range of the respondent's duties as found by the Magistrate were not included in the hypothesis which Dr Mann and Dr McNicol were asked to assume for the purposes of their evidence, those duties relied upon by the Magistrate were embraced either in their evidence or in the evidence of the respondent himself. The Magistrate made findings of fact, including the finding of 100 per cent loss of efficient use, upon that evidence. The evidence was not entirely satisfactory, but I do not think that the findings of fact made by the Magistrate were wrong in the sense that they were not supported by evidence. The findings were consistent with the established facts. The first ground of appeal fails.

16. I turn to the second ground of appeal. As I understand the appellant's argument, it was that where there is a finding of total permanent loss of the efficient use of a part of the body specified in the Second Schedule to the Ordinance, that amounts to a finding of total and permanent incapacity for work and ss. 10(1) and 10(1A) do not apply. In other words, the expression in ss. 10(1) and 10(1A) "... other than total and permanent incapacity for work" is equivalent to the expression in ss. 10(6) and 10(7) "partial and permanent loss of the efficient use of a part of the body ... in and for the purposes of his employment at the date of the injury". Counsel for the appellant conceded that the provisions of s. 10 had never been so construed in any reported case.

17. In my opinion, the construction contended for is incorrect. Section 10 applies to those cases where a workman sustains one of the specified injuries and that injury does not result in total and permanent incapacity for work. The loss of a specified part of the body includes the permanent loss of the use of that part and the permanent loss of the efficient use of that part in and for the purposes of his employment at the date of the injury (s. 10(7)). If the loss of the specified part of the body or the permanent loss of the efficient use of that part in and for the purposes of his employment at the date of the injury is 100 per cent, the workman is entitled to the appropriate amount of compensation as specified in either s. 10(1) or s. 10(1A). If the permanent loss of the use of that part or the permanent loss of the efficient use of that part in and for the purposes of his employment at the date of injury is partial only, the workman is entitled to a percentage of the amount of compensation to which he would have been entitled if the loss had been total (s. 10(6)).

18. The proper construction of the Workmen's Compensation Ordinance 1951 (A.C.T.) is no different to the construction of the Workmen's Compensation Ordinance (NT) as explained by Muirhead J. in Gunn Developments (NT) Pty v. John Robert Edwards, an unreported decision delivered 12 April 1977. Both Ordinances appear to have been modelled upon the Commonwealth Employees' Compensation Act 1930 (since repealed).

19. The operation of the Commonwealth Act was explained by Williams J. in The Commonwealth v. Matheson [1955] HCA 24; (1955) 93 CLR 403 at 412 in the following terms:

"The section requires that the injury must be a
permanent loss of a specified part of the body or a
permanent loss of the use of that part or a permanent
partial or total loss of the efficient use of that part
for a particular purpose and that the injury must not
cause a total and permanent incapacity for work. It
deals specifically with identifiable severable portions
of the body and regards the permanent loss of any of
these parts or their use or their efficient use for a
particular purpose as a permanent physical detriment to
the capacity of an employee for work and, therefore, as
an injury properly to be compensated for by a capital
sum. The section is mandatory. It requires
provisions in all cases where the employee sustains any
of the injuries specified in the first column of the
Third Schedule. It is immaterial whether the injury is
the only injury received in an accident or whether
other injuries are received as well. What is material
is that the sole injury or one or more of several
injuries should be identifiable as an injury to the
part of the body specified in the Third Schedule."

20. The Commonwealth Act was also considered in Parkes v. The Commonwealth (1958) 9 FLR 16. Stephen DCJ said in respect of the comparable lump sum provision of the Commonwealth Act (s. 12 and the Third Schedule) that they embraced four concepts:

"(1) The physical disappearance of the part, for
example by amputation;
(2) the permanent loss for all purposes of the use of
that part, for example the case where there is no
amputation or physical disappearance of a hand but
where there is a complete and permanent paralysis
of that hand;
(3) cases where neither (1) nor (2) apply, but where
there is a permanent loss 'of the efficient use of
that part in and for the purposes of his
employment at the date of the injury', for example
where a watchmaker suffers an injury to his hand
or part of it which does not involve amputation or
loss of the use of the hand or that part for
general purposes, but which does permanently
prevent the efficient use of the hand or that part
for watchmaking;
(4) in cases (1) and (2) there must be a total loss,
but in case (3) sub-s. (5) is brought in to provide
for cases of permanent loss of efficient use where
such loss is not total but partial, compensation
under the Third Schedule being adjusted to meet
the percentage of diminution of the efficient use
of the part for the purposes of the man's
employment at the time."

21. I respectfully agree that this is the correct construction, particularly where his Honour says that the compensation is to be adjusted to meet the percentage of the diminution of the efficient use of the part for the purposes of the man's employment at the time.

22. I reject the construction urged on behalf of the appellant. The second ground of appeal fails. In my opinion the Magistrate correctly construed the various provisions of s. 10. He considered the particular demands of the respondent's employment and the medical evidence relating to the respondent's permanent loss of the efficient use of the lower part of his left arm in and for the purposes of that employment at the date of the injury and made a finding on that material.

23. The appeal is dismissed. I shall hear counsel on the question of costs.