Berkeley Cleaning Group Pty Limited v Lyubinka Milutinovic Sca [1988] ACTSC 52 (9 September 1988)

SUPREME COURT OF THE ACT

BERKELEY CLEANING GROUP PTY. LIMITED v. LYUBINKA MILUTINOVIC
S.C.A. No. 47 of 1987
Worker's Compensation - Appeal

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 twisted leg whilst washing steps.

Appeal - nature of appeal from Magistrates Court to Supreme Court - ground of appeal that Magistrate did not state reasons for decision - ground of appeal that he erred in findings of fact regarding the nature of the injury and the worker's later incapacity."

Ruiz v. Canberra Rex Hotel Pty. Limited (1974) 5 ACTR 1

David Jones (Australia) Pty. Limited v. Arauner (unreported, Federal Court of Australia 9 November 1982)

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

Uranerz (Aust.) Pty. Ltd. v. Hale (198) 3 ALR 193

Baker v. Thorpe (1985) 62 ACTR 1

Public Service Board of NSW v. Osmond [1986] HCA 7; (1986) 159 CLR 656

Pettitt v. Dunkley (1971) 1 NSWLR 376

Watts v. Rake (196) 18 CLR 158

Purkess v. Crittenden [1965] HCA 34; (1965) 114 CLR 164

HEARING

CANBERRA
9:9:1988

Counsel for the Appellant: Mr. Nock

Solicitors for the Appellant: Macphillamy Cummins & Gibson

Counsel for the Respondent: Mr. K. Crispin

Solicitors for the Respondent: Pamela Coward & Associates

ORDER

The appeal be dismissed and the findings of the Magistrate be confirmed.

The matter be remitted to the Magistrate for further hearing.

The appellant pay the respondent's costs.

DECISION

This is an appeal by an employer against the findings of a Magistrate sitting as an arbitrator in the Canberra Court of Petty Sessions on 12 August 1987 pursuant to the Workmens' (sic.) Compensation Ordinance 1951 (the Ordinance). The Magistrate found that on 9 August 1984 the worker sustained an injury to her right leg whilst in the course of her employment and that as a result she was totally incapacitated for work from 9 August 1984 for a few days, partially incapacitated for work from mid-August 1984 to 1 January 1985 and totally incapacitated from 11 January 1985 to the date of hearing.

2. The notice of appeal, which was amended twice, contains many grounds of appeal. Essentially, however, there are only two grounds. The first is the Magistrate erred in his findings of fact relating to the nature of the injury sustained by the worker and erred in his findings relating to incapacity on or after 1 January 1985. The other ground is that the Magistrate erred in law in failing to give reasons for his decision.

3. The nature of an appeal to this Court from a decision of a Magistrat e under the Ordinance, has been the subject of previous decisions of the Supreme Court and the Federal Court: Ruiz v. Canberra Rex Hotel Pty. Limited (1974) 5 ACTR1; David Jones (Australia) Pty. Limited v. Arauner (unreported, Ferderal Court of Australia 9 November 1982); Warren v. Coombes [1979] HCA 9; (1979) 142 CLR 531; Uranerz (Aust.) Pty. Limited v. Hale (1980) 30 ALR 193; Baker v. Thorpe (1985) 62 ACTR 1; Since 1982 the situation has been governed by the Magistrates Court (Civil Jurisdiction) Ordinance 1982, s.282G. That section is in these terms:
"282G - In an appeal, the Supreme Court shall have

regard to the evidence given in the proceedings
out of which the appeal arose, and has power to
draw inferences of fact and, in its discretion,
to receive further evidence."

4. The appeal is a re-hearing on the evidence before the Magistrate, supplemented by the evidence which the Supreme Court may in its discretion permit. There was no such fresh evidence in this case. In deciding the factual issues this Court will defer to a decision of the lower court based on credibility of witnesses, unless that decision can be shown to be wrong on grounds of law other than credibility. In relation to findings which have nothing to do with the credit of witnesses, this Court must, after giving due consideration to the Magistrate's decision, give effect to its own findings. If the ultimate effect of all those findings leads to a conclusion that, despite the findings of the Magistrate which are based on the credit of witnesses, the decision appealed against is wrong, then the appeal must be allowed.

5. It is appropriate to set out what the Magistrate said when he handed down his decision. It was:

" Mrs Milutinovic suffers from a bad case of
housemaid's knees. Her knees now require the
assistance of walking sticks. There were no
apparent manifestations of pain in the knees
prior to the incident at work on 9th August,
1984. From then on her condition has
deteriorated. Although the applicant went back
to work for a few months after the incident, she
did so under sufferance and on light duties.
Her version and complaints are corroborated where
there is evidence capable of corroboration, e.g.
she went to hospital on the initiating episode,
and was diagnosed as having a bad knee; she has
been seeking treatment and getting treatment
since; the video of the applicant taken by the
respondent confirms that she is a lady with bad
legs.
I am satisfied that the applicant was a worker
employed by the respondent. On the 9th August,
1984, she sustained an injury to her right leg
whilst in the course of that employment - I am
satisfied that, as a result of that injury, she
is totally incapacitated for employment. She was
totally incapacitated for work from 9th August,
1984 for a few days.
From mid-August to 10th January, 1985, she
soldiered on at work, on light duties. I find
that during that time she was partially
incapacitated. From that time on, she was
totally incapacitated, and that incapacity was
caused by the injury in August, 1984.
I have given this matter considerable thought.
The reason for this is that I am unable to
understand the defence. It was submitted the
applicant was exaggerating. There is very little
evidence of exaggeration. Next, it was submitted
that she must have been suffering from this
condition prior to August, 1984. It was put that
she was some form of arthritic time bomb. That
may well be so, but there can be no doubt that
the applicant's injury or condition was caused or
contributed to or aggravated by her work.
These are the only finding (sic.) I have been
asked to make. If the parties are unable to
quantify the respondent's liability to the
applicant, I will set the matter down for futher
hearing.

6. I will deal first with the ground of appeal that the Magistrate did not state reasons for his decision. I will assume in the absence of argument to the contrary that this is an appropriate ground of appeal to pursue under Part XIXA of the Magistrates Court (Civil Jurisdiction) Ordinance 1982.

7. In Public Service Board of NSW v. Osmond [1986] HCA 7; (1986) 159 CLR 656, Gibbs C.J. at p 666-7 discussed the principle enunciated by the Court of Appeal of New South Wales in Pettitt v. Dunkley (1971) 1 NSWLR 376 at 388 that:

".....an obligation, concerning the giving of
reason, lies upon any court, including an
intermediate court of appeal, so far as it is
necessary to enable the case properly and
sufficiently to be laid before the higher
appellate court.
Gibbs C.J. said:
" The decision in that case that the failure to
give reasons was an error in law may have broken
new ground, but there was nothing new in saying
that judges are under an obligation to give
reasons where that is necessary to enable the
matter to be properly considered on appeal. It
has long been the traditional practice of judges
to express the reasons for their conclusions by
finding the facts and expounding the law: (see
Deakin v. Webb [1904] HCA 58; (1904) 1 CLR 585 at 604-5 and
Jacobs v. London County Council (1950) AC 361
at 369) and there have been many cases (some of
which are collected in De Iacovo v. Lacanale
(1957) VR 553 at 558-559) in which it has been
held that it is the duty of a judge or magistrate
to state his reasons. That does not mean that a
judicial officer must give his reasons in every
case; it is clear, to use some of the words of
Woodhouse P in Req v. Awatere at 649, that there
is no "inflexible rule of universal application"
that reasons should be given for judicial
decisions. Nevertheless, it is no doubt right to
describe the requirement to give reasons, as
Mahoney J.A. did in Housing Commission of New
South Wales v. Tatmar Pastoral Co. (1983) 3
NSWLR 378 at 386, as "an incident of the
judicial process", subject to the qualification
that it is a normal but not a universal
incident"."

8. This is not a case, however, in which the Magistrate declined or failed to give reasons. He gave reasons. But the appellant argues that what the Magistrate d in his decision is so inadequate as not to amount to a statement of reasons at all. No doubt there will be cases in which purported reasons amount to a mere "caricature of reasons". However, the reasons given in the present case do not fall into that extreme category. The Magistrate commenced by summarising the medical and work history of the worker. Although it may not be clear from that passage alone that even if what is stated in the first paragaraph is a summary of the evidence, then the corroboration mentioned in the second paragraph leads him to accept the worker's evidence. The Magistrate then goes on to state the precise findings which he considered and, in my view, rightly considered, were necessary to state in the light of the issues raised at the hearing. Lastly, he sets out what he takes to be the arguments to support the defence and states why he rejects those arguments. It may well be, as was submitted on behalf of the appellant, that there were other subsidiary issues which were raised during the hearing and which might have been dealt with in the reasons for decision, but to fail or decline to discuss those issues does not, in my view, affect the reasons stated. There are passages in the transcript which record discussion between the Magistrate and counsel for the employer relating to some of those arguments raised in defence, and which contrast with the Magistrate's statement in his reasons that he was "unable to understand the defence". However, I think that the latter statement was merely a forceful and somewhat colourful way of saying that he thought that the arguments for the defence lacked validity.

9. Should this Court come to findings different from those of the Magistrate on the factual matters raised on the appeal, namely the nature of the worker's condition and the extent to which the worker was incapacitated after about 1 January 1985? Any consideration of that question at this stage must, in the light of what I have already said about the nature of the appeal, begin with a recognition of the Magistrate's superior position with regard to assessing the credit of the witnesses before him and particularly the credit of the worker herself. He clearly gave this matter careful consideration, concluding that the worker's version of events and her complaints of symptoms were corroborated where capable of corroboration. He clearly rejected the submission that the worker was exaggerating her symptoms. The Magistrate observed a video film of the applicant, which has not been viewed by me, and he formed the view that the film merely confirmed the disabling condition of the worker's lower limbs.'

10. The evidence of the worker disclosed that she was born on 1 May 193 9 in Yugoslavia. She came to Australia in 1972. She began working at the Woden Valley Hospital for her employer for some few years prior to the alleged injury. She had never had any trouble with her knees prior to the incident on August 1984. At about 7.30 a.m. on that date she was washing some steps at work and whilst walking down the steps, apparently backwards, she twisted her right leg. She could not walk and had to be taken on a trolley to the casualty section of the hospital. She lost a few days from work during which time she was given pain-killing tablets. After she went back to work she was given duties not involving bending or squatting. On 31 October 1984 she ceased working for Berkeley Cleaning Group Pty. Ltd. and started working for another employer. She still did not work altogether on 9 June 1985. She claimed that she had constant pain in the right knee ever since, a claim which the Magistrate accepted and which I accept. Since she stopped work she uses two walking-sticks. Dr Peter Morris, an orthopaedic surgeon, saw the worker on or about 7 December 1984 on reference from her general practitioner. Dr Morris performed an arthroscopy on 27 January 1985. Dr Morris' view was that the underlying problem was that the worker had had severe degeneration in her right knee which became symptomatic at the time of the incident at work, the incident being "the straw that broke the camel's back". Dr Morris took the view that the degeneration in the articular cartilage of the knee was such that at some stage the plaintiff would have experienced severe symptoms, even without the injury on 9 August 1984. Dr Morris took the view that the worker's knee must have been symptomatic to some extent even prior to the injury, but that was in conflict with what the worker herself had said and, as I have already remarked, the Magistrate accepted the worker as he was entitled to do. In cross-examination Mr. Morris agreed that in view of the plaintiff's complaint to him of pain in the left knee as well as the right at various times from 27 August 1984 that any causal connection with the injury of 9 August 1984 had ceased.

11. Evidence was also given by Dr William John Coyle, another orthopaed ic surgeon to whom Dr Morris referred the worker for a second opinion. Dr Coyle did not see the worker until 11 July 1985. Dr Coyle agreed that after August 1984 the worker "might at some stage in the future have got to the stage where she would not have been able to work because of the underlying degenerative condition", but he was unable to say when that hypothetical situation might have come about. Dr Brooke, a rheumatologist, had been consulted by the worker on several occasions commencing in 1981 for general aches and pains in many parts of the body, but there was nothing particularly directed to the knees. To some extent this went contrary to the evidence of the worker and her husband that she had been in continuous prior good health, but that of itself would not have compelled the Magistrate to reject the evidence of the worker on essential matters and I see no reason to reject it.

12. The transcript records that the main point taken by counsel for the employer at the close of the case was that the injury of 9 August 1984 aggravated a pre-existing asymptomatic condition in the right knee, that that condition would have become symptomatic at some stage subsequent to the date of injury even if the injury had not occurred, and that the effect of the injury did not last beyond the few days immediately following. This is still essentially the case put on behalf of the employer. However, bearing in mind the Magistrate's finding that he accepted the evidence of the worker, I am unable to conclude that the Magistrate was wrong in his ultimate finding. The evidence of Dr Coyle might have been accepted, but it did not have to be accepted to the extent that it excluded the incident of 9 August 1984 as a causal factor in the worker's ongoing disabling condition. It must be emphasised that DrMorris appeared to reject any suggestion that the worker's right knee was asymptomatic before the incident. On the other hand, the Magistrate clearly accepted the evidence of the worker that it was asymptomatic, and I am bound to accept the Magistrate's assessment. Furthermore, it is not necessary for the worker to prove that the incident was the sole or major causative factor leading to the disabling symptoms beyond January 1985. It was sufficient that the incident was one of several contributing factors so long as it was a real causative factor.

13. It was submitted on the hearing of the appeal by counsel for the worker that there were statements in the High Court in Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v. Crittenden [1965] HCA 34; (1965) 114 CLR 164 that where a plaintiff has shown that the defendant's wrongful act has contributed to a disabling condition, but where there are other factors contributing, "it is the defendant who should be required to do the disentangling" (per Dixon C.J. at p.16) and in relation to the time at which the plaintiff would have reached his present state in any event, it is also for the defendant "to show the period at the close of which it would have occurred". Those were cases concerned with common law damages. I do not propose to give a considered opinion on whether the principle enunciated is applicable to a determination of incapacity arising from an injury for the purposes of worker's compensation, except to the extent that I do not see any reason why the principle should not apply. However, it is not necessary for me to apply the principle because, even without it, I am of the opinion that the case for the worker is made out on the facts.

14. For the foregoing reasons I am not convinced that the Magistrate wa s wrong in his findings. The appeal must be dismissed and the findings of the Magistrate confirmed. Unfortunately, it appears that the matter will have to be remitted back to the Magistrate because there has not yet been a decision as to the quantification in monetary terms of the employer's liability to pay compensation to the worker. I order that the matter be remitted to the Magistrate for further hearing. Unless the parties wish to be heard, I propose to order that the appellant pay the respondent's costs.