John Bortolin v P & C Gourgaud Sca [1988] ACTSC 35 (17 June 1988)

SUPREME COURT OF THE ACT

JOHN BORTOLIN v. P. & C. GOURGAUD
S.C.A. No. 27 of 1987
Worker's Compensation

COURT

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

CATCHWORDS

Worker's Compensation - appeal from Magistrate's Court - Workmen's Compensation Ordinance 1951 - worker slipped from scaffolding injuring ankle - whether condition causing incapacity for work was due to the subject injury - no new matter of principle.

Shelleys Chemical Company Pty. Limited v. Dee Irene Graham (unreported, 8 October 1986)

Peter Joseph O'Callaghan v. Tiger Waste Control Pty. Ltd. (unreported, 11 June 1987)

Warren v. Coombes [1979] HCA 9; (1979) 142 CLR 531

HEARING

CANBERRA
17:6:1988

ORDER

The appeal be dismissed with costs.

The Magistrate's determination be confirmed.

DECISION

This is an appeal by a worker against a determination in favour of an employer by a Magistrate sitting as an arbitrator pursuant to the Workmen's Compensation Ordinance 1951.

2. The principles applicable to an appeal of this nature were discussed by me in Selleys Chemical Company Pty. Limited v. Dee Irene Graham (unreported, 8 October 1986), and Gallon J. in Peter Joseph O'Callaghan v. Tiger Waste Control Pty. Ltd. (unreported, 11 June 1987). It should not be necessary to repeat them, except insofar as in Graham's case there appears to be an error in the published reasons. In that case I expressed the view, following the High Court decision in Warren v. Coombes [1979] HCA 9; (1979) 142 CLR 531, that an appellate court will defer to a decision of the lower court based on credibility of witnesses except when that decision can be shown to be wrong on grounds other than credibility, such as inconsistency with established facts or accented evidence, inherent improbability or error of fact or law. In the published reasons in Graham's case the word "only" erroneously appeared in place of the word "except".

3. The case for the appellant worker presented before the Magistrate was as follows. On a date in March 1984 but otherwise unspecified, the worker slipped and fell whilst climbing down a scaffolding, landing, as he said, "on my right ankle". He felt immediate pain in his right foot, reported to his foreman, Mr. Greg McGee, but continued to work that day and thereafter at least until January 1985 with increasing pain in the foot. Sometime in 1984 he saw a general practitioner, a Dr Sutton, and was referred for physiotherapy. He was enlisted to play for a rugby league team in the winter of 1984. He said that he used padding in his boots whilst working and playing football in order to minimise the continuing pain. At the end of 1984 he took holidays and on his return consulted with another general practitioner, Dr Still, who practises at the Shorts Medicine Clinic. Dr Still injected cortisone into the right superficial calcaneal bursa, which brought only temporary relief. Then the deep calcaneal bursa was injected and other conservative measures taken without beneficial result.

4. The worker was then referred to Dr Anthony Cairns on 18 April 1985. Dr Cairns operated on 3 May 1985 and excised completely the right calcaneal bursa. Pathological examination confirmed an inflamed bursal sac. Post operatively, however, the worker did not improve despite continuation of conservative measures and a course of physiotherapy between 24 June and 9 August 1985. The worker ceased heavy building work and became a truck driver.

5. The case for the employer was that the worker had not experienced symptoms which prevented him from working or playing football until about January or March 1985 and that any capacity in 1985 was not due to the injury in March 1984, and further that it was consistent with the evidence that any incapacity in 1985 and beyond was due to some unspecified incident or a deterioration caused by some other trauma post-dating the 1984 incident.

6. The Magistrate found that the worker had not made out his case on the balance of probabilities on the issue of whether the condition which necessitated the treatment by Dr Still and Dr Cairns and which brought about incapacity for work in 1985 and beyond was due to the injury at work in March 1984. In coming to his decision the Magistrate made it clear that he had given careful consideration to the way in which the worker had presented as a witness and whilst he did not expressly say that his observations of the worker as a witness led him to reject the worker's account on the relevant issues, that conclusion clearly emerges by implication. The Magistrate took the view, as he was entitled to do on the medical evidence, that as he did not accept that there was a continuity of significant symptoms between the time of injury and the time the worker consulted Dr Still almost a year later, then the causal link was not established on the balance of probabilities as a matter of fact. The fact that the worker had continued to engage in heavy bricklaying and had not only accepted the invitation to play football but continued to play throughout the season, stood in the way of accepting his evidence that there were significant symptoms of pain and disability throughout the period. There were other reasons which the Magistrate gave as to why he found the worker's evidence unconvincing on the crucial issues. The Magistrate mentioned the worker's insistence that he did not visit Dr Still until March 1985 when the doctor's notes indicated that the initial visit was in January and was followed by a deterioration of the condition between then and March 1985. The Magistrate also considered there was some importance in the worker's failure to be completely frank with the doctors about his sporting activities during 1984. As well as playing rugby football the worker had during 1984 also participated in touch football, gym work and aerobics.

7. Leaving apart the evidence of Dr Still, the evidence of Dr Cairns, who operated upon the worker to remove the bursa, as well as that of Dr Farrell and Dr Searle, who gave evidence for the defendant, was that if the worker had suffered a bursitis related to the March 1984 incident, then it was unlikely that he could have continued to work as a bricklayer or play football without disabling symptoms asserting themselves before the end of 1984. The Magistrate was clearly entitled to prefer the evidence of those doctors to that of Dr Still and to draw the conclusion that the condition that had disabled the worker in 1985 could have arisen from the activity of the worker at work or sport following the March 1984 incident, and that that explanation was no less likely than the explanation that the condition was due to the March 1984 incident. In this respect the Magistrate gave due allowance to the uncontradicted evidence that the plaintiff had visited Dr Sutton some months after the initial incident, but there was no evidence or report from Dr Sutton, and the Magistrate concluded that the worker received no advice or treatment from Dr Sutton and never sought to go back to Dr Sutton despite the alleged continuing pain in his foot.

8. Counsel for the worker submitted that there were a number of matters in the Magistrate's comprehensive reasons for his decision which indicated that he had fallen into error. For instance, it was submitted that the Magistrate had erroneously concluded that the worker should have displayed both pain and limping during 1984 whereas, according to the submission, it would have been sufficient to exhibit one or the other during that period. The answer to the submission is, I think, that there was no evidence that anyone noticed the worker exhibiting one or the other in any event in that period. Similarly, it was submitted that the Magistrate had interpreted the absence of evidence from workmates as positive evidence that workmates had not made observations as to the worker's apparent pain or limping or both. However, in my view, a pair reading of the Magistrate's reasons as a whole indicate that he was under no such misapprehension. Mr. McGee said the worker continued to work at the site for another two months and that he saw him on the odd day after that, but he did not mention anything about apparent continuing pain or limping.

9. It was also submitted that the Magistrate had not taken into account or given proper weight to the evidence that the worker had in fact gone to see Dr Sutton or the evidence of Mr McGee that the worker appeared to be limping on the day on which the worker had said that he had fallen from the scaffolding. However, I do not think that these items of evidence make any substantial difference to the Magistrate's decision or stand in the way of the Magistrate having properly arrived at his conclusion that the worker had not proved the necessary causal connection between the March 1984 injury and the disabling bursitis. Medical opinion supported the contention that there may well have been a tear of the Achillis tendon at the time of the fall, but it was the bursitis and not the tendon tear which was disabling. I am not convinced that the Magistrate fell into any error. I would not have come to any different conclusion myself bearing in mind the Magistrate's findings as to the credit of the worker and the weight to be given to the testimony of the doctors who gave evidence. The Magistrate's determination must be confirmed and the appeal dismissed with costs.