Andrew Harvey Cashmere v the Master Builders Association of the ACT Sca [1992] ACTSC 81 (26 August 1992)

SUPREME COURT OF THE ACT

ANDREW HARVEY CASHMERE v. THE MASTER BUILDERS ASSOCIATION OF THE ACT
S.C.A. No. 60 of 1992
Matter No. W.C. 132 of 1989
Workers Compensation

COURT

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

CATCHWORDS

Workers compensation - appeal from Magistrate - functions of appellate court on appeal by way of rehearing - general principles - interference with Magistrate's findings of fact - where findings based upon credibility of witnesses - where inferences of fact involved - improper admission or rejection of evidence.

Workers Compensation Act 1951

Uranerz (Aust) Pty Ltd v. Hale (1979-80) 30 ALR 193

Selleys Chemical Company Pty Limited v. Dee Irene Graham (unreported, Supreme Court of the ACT, Miles C.J., 8 October 1986)

Peter Joseph O'Callaghan v. Tiger Waste Control Pty Ltd (unreported, Supreme Court of the ACT, Gallop J., 11 June 1987)

HEARING

CANBERRA
26:8:1992

Counsel for the appellant: Mr F.G. Parker

Solicitors for the appellant: Gary Robb and

Associates

Counsel for the respondent: Mr G. Stretton

Solicitors for the respondent: Sly and Weigall

ORDER

The Court orders that:
1. The appeal be dismissed.

DECISION

This is an appeal against a decision of Magistrate Dingwall sitting as an arbitrator pursuant to the Workers Compensation Act 1951 (the Act). On 28 September 1991 the Magistrate dismissed an application for compensation brought by the appellant worker and made an award in favour of the respondent employer.

2. The worker claimed that on 2 June 1983 he had suffered an injury in the course of his employment and that medical treatment was reasonably obtained by him in relation to that injury. The worker sought compensation for the cost of that medical treatment pursuant to s.11 of the Act.

3. The employer denied injury and also alleged that the worker had failed to give notice of the treatment under sub-s.11(4), failed to give notice of injury as soon as practicable after injury and failed to claim compensation within six months of injury, those two periods being specified in s.25 of the Act.

4. The injury was alleged to have been received in the early afternoon when the worker was working on a construction site under the direction of a Mr Sella. The worker's evidence before the Magistrate was as follows. He was standing on a piece of timber placed on scaffolding. He was engaged in stripping formwork. As he did so the piece of timber gave way and he fell a distance of about twelve feet. He landed first on his feet and then fell backwards onto his buttocks and onto a pile of rubble. He noticed a "pretty severe" pain in his back, that skin had been removed from the bottom of his back, and that his nose was bleeding.

5. The worker's evidence to the above effect was accepted by the Magistrate. The Magistrate was entitled to accept that evidence. Although Dr Jolly did not give evidence, nor were his records in evidence, the Magistrate said in the reasons for his decision that there was no dispute that the worker consulted Dr Jolly on the day following the incident and gave him a history largely consistent with the version given in evidence.

6. However, the Magistrate added "in accepting the applicant's evidence as to the fall, it does not follow that his opinion that the claimed injury to his lower back was sustained as a result of that fall is to be accepted". The Magistrate went on to consider the relationship of the ongoing symptoms in the worker's back to the fall, and other questions. However, before deciding that issue, the Magistrate considered the further question whether the worker was "barred from maintaining these proceedings" under either s.11 or s.25, or both, of the Act. He concluded that there was a failure on the part of the worker to give notice of injury as soon as practicable after it had happened and before the worker had voluntarily left the employment in which he was injured and a failure to claim compensation within six months of the occurrence of the injury. The Magistrate further found that the employer was prejudiced by the want of notice and that the failure in either case was not occasioned by mistake or other reasonable cause on the part of the worker.

7. The Magistrate then proceeded to consider the question whether the worker had sustained a low back injury arising out of or in the course of his employment on 16 October 1983. His conclusion was that he was not satisfied on the balance of probabilities "that the fall in October 1983 resulted in any injury to the applicant's lower back area".

8. It was submitted on behalf of the employer on the appeal that the Magistrate fell into error in several respects: that he was wrong in not being satisfied that the fall resulted in relevant injury, that he was wrong in deciding that the failure to give notice of injury had resulted in prejudice to the employer and wrong in concluding that the failure to give notice of injury and the failure to claim compensation within six months of the alleged injury were not occasioned by reasonable cause. The employer also challenged several intermediate findings of fact on the part of the Magistrate and reference will be made to them. The Magistrate's careful reasons for judgment were subject to very close scrutiny.

9. The principles to be applied in appeals from a Magistrate sitting as an arbitrator under the Act have been formulated and reformulated many times: Uranerz (Aust) Pty Ltd v. Hakle (1979-80) 30 ALR 193; Selleys Chemical Company Pty Limited v. Dee Irene Graham (unreported, Supreme Court of the ACT, Miles C.J., 8 October 1986); Peter Joseph O'Callaghan v. Tiger Waste Control Pty Ltd (unreported, Supreme Court of the ACT, Gallop J., 11 June 1987).

10. It was submitted on behalf of the employer that in the present case the Magistrate did not enjoy any particular advantage over this Court in seeing and hearing the witnesses. The submission appeared to rely upon an absence in the Magistrate's reasons of any reference to the demeanour of the worker when he gave evidence in the witness box. However, in my view, a recognition of the undoubted advantage which attaches to seeing and hearing witnesses on disputed matters of fact does not depend upon an express acknowledgement of that advantage by the fact-finding tribunal, nor upon the incantation of a formula in well worn terminology. It is rare indeed for a witness to be totally rejected or totally accepted. The Magistrate in the present case accepted part of the evidence of the worker and rejected other parts of his evidence, as he was entitled to do. He gave reasons for his decision as he was required to do. Those reasons did not lock him into a position where as a matter of logic he was bound to accept the whole of the worker's evidence. Nor does any apparent or real inconsistency or incompleteness in those reasons oblige this Court simply to substitute its own view of the effect of the worker's evidence.

11. Accordingly, I reject the suggestion that, because the Magistrate accepted the evidence of the worker that an incident had occurred on 26 October 1983 in the nature of a fall as described by him, the Magistrate was bound to accept the worker's evidence on other matters. The Magistrate was not satisfied on the whole of the evidence, including that of the worker on a number of factual issues. In particular, the Magistrate was not satisfied that the worker had reported the incident to Mr Sella on the afternoon of the day in which the incident occurred nor that he reported the incident to Mr Watkins, an officer of the employer on an occasion on 4 April 1984, that occasion being when he made a claim for compensation in respect of an incident which occurred the previous day.

12. The Magistrate, as I say, was entitled to reject the worker's evidence to the above effect. He gave reasons why he rejected the evidence. It is possible to criticise some of those reasons but, in my view, those reasons have not been demonstrated to vitiate his findings and his findings should stand.

13. In an appeal against a finding of fact, it is not appropriate for the appellate court to subject to close analysis every step in the fact-finding process followed in the tribunal below. I find it necessary for the purpose of the appeal against the Magistrate's finding of fact to mention only two of the many submissions put to me, all of which I have considered. There was the submission that the Magistrate failed to appreciate the effect of the failure by the employee to call Mr Watkins, to whom the worker alleged he mentioned his fall of 26 October 1983 when he spoke to him on 4 April 1984 in relation to the incident occurring the day earlier. The failure, if one assumes it was a failure, to call Mr Watkins, was only one factor which might have left the Magistrate more comfortable in drawing an inference against the employer. It certainly did not oblige the Magistrate to draw any particular inference and the Magistrate expressly took into account the absence of evidence from Mr Watkins.

14. A similar submission was put that the Magistrate failed to give sufficient weight to the worker's evidence about mentioning the incident to Mr Sella on the day it occurred. Mr Sella gave evidence on the second day of the hearing. Not surprisingly he was unable to make any comment other than that he did not remember any incident in the nature of that alleged. The evidence he gave was more than six years after the event and it would be quite unrealistic to suggest that his evidence in some way positively supported the worker's case.

15. The Magistrate was entitled to take his own view of Mr Sella. He said in his reasons that if there had been a report to Mr Sella he would have expected Mr Sella to pass it on to the respondent. It is said that the Magistrate was not entitled to use that approach as one of his reasons for rejecting the worker's evidence on the issue of whether notice was given. However, it was, in my view, open to the Magistrate to approach the matter in that way, and whilst other fact finders might not have done so, it is not something that convinces me that the Magistrate was wrong in not being persuaded that the worker had given notice as he alleged.

16. In a sense there was no issue about whether the plaintiff was injured on 28 October 1983. There was no dispute that he suffered a fall and a graze to his back and other symptoms which he felt were sufficiently troublesome to take him to Dr Jolly the following day. Accordingly, it would appear that he incurred medical expenses in relation to an injury arising out of or in the course of his employment and was entitled to compensation for such expenses under s.11 of the Act. The real question on the issue of injury is whether such injury as he sustained was shown to have a causal relationship with medical expenses incurred following the later incident on 3 April 1984. It appears that there has never been a claim for compensation for incapacity for work on the part of the worker at any stage.

17. The Magistrate placed considerable importance, ultimately, in his reasoning process, on what he considered to be a lack of precision on the part of the worker as to the exact location and nature of pain in his back over the years. In his evidence-in-chief the worker had said that he had not had any trouble with his back at all prior to October 1983. In cross-examination he conceded that he had back symptoms in 1978 and 1982 for which he received medical treatment, although his evidence was consistent with symptoms experienced in areas different from that where pain was located immediately after the October 1983 injury. The Magistrate also found that the incident of 3 April 1984 caused the worker to suffer the same sort of trouble which he suffered in October 1983. As he received compensation for loss of two days work and medical expenses following that 1984 incident, it was apparently treated as a compensable injury by both worker and employer. In 1985 he had trouble in his neck for which he saw Dr Grant in Sydney. This was followed by another visit to Dr Grant in 1986 following low back pain. As a result of discussion with Dr Grant he formed the view that his continuing problems were a consequence of the fall in October 1983. On 19 September 1987 he made a claim for compensation in respect of that fall. Although the Magistrate referred in his reasons to the evidence of the worker about the symptoms he felt between October 1983 and 1984, symptoms in the nature of short intermittent bouts of "muscle pain" in his lower back which did not prevent him working (nor apparently cause him to seek medical attention), the Magistrate did not say whether or not he accepted that particular part of the evidence. Perhaps it would have been better if the Magistrate had made a precise finding on that issue of continuity of symptoms, but reading his decision as a whole, it is reasonably clear that the Magistrate regarded the evidence as not sufficiently probative to weigh the scales in the worker's favour. That approach was consistent with what he had to say in his judgment about the unsatisfactory nature of the worker's evidence in relation to his back condition over the years both before and after the incident of October 1983.

18. On the issue of reasonable cause for failure to give notice of the injury and for failure to make the claim for compensation within six months of the injury, the worker's case was that he did not realise the seriousness of the effect of the fall in October 1983, despite the continuing symptoms alleged, and despite the acute back pain episode in April 1984, until 1986 and the discussion with Dr Grant. In the worker's written claim for compensation in respect of the April 1984 incident, there was a question whether he had "experienced any previous trouble with the part or parts affected or injured by this accident" to which he answered "no". According to the judgment of the Magistrate, if the worker had experienced the continuing symptoms he claimed to have had, the failure to refer to them in the written claim was unreasonable. In this respect I would disagree with the Magistrate. At the time of his injury the worker was 19 years of age and I am not able to see why his evidence should be rejected that he did not consider the condition to be serious and thought it would go away. On the other hand, however, if his account of continuing symptoms during the period is not accepted, his case would have to be that he was entirely ignorant of his condition until 1986 or 1987. That is not the case presented on his behalf and it would be very difficult to accept it if it were. In any event, the issue as to a reasonable failure to report the injury or to make the claim for compensation does not need to be decided unless the worker establishes that he suffered a compensable injury.

19. On that very narrow issue it must be concluded that the Magistrate was wrong. The injury that the plaintiff sustained was sufficient to send him to Dr Jolly the following day. It was not sufficient, however, to cause him to lose time from work and it was not compensable in the sense that he was entitled to receive worker's compensation for incapacity for work. Had he incurred expense in relation to the visit to Dr Jolly, the employer was liable to pay him compensation for it. There was simply no evidence before the Magistrate that he had incurred any such expense and again the case was not fought on the basis that he was claiming expenses for the visit to Dr Jolly in October 1983. Accordingly, whilst the Magistrate was technically incorrect in not finding that the worker suffered an injury arising out of or in the course of his employment, there was no evidence that the injury had resulted in expense which was related to the injury. The claim for expenses comprised in the various accounts and vouchers that were tendered in evidence related to expenses from 1985 onwards. The Magistrate was clearly correct, in my view, in treating the evidence as insufficient to establish a causal connection between the claim for those expenses and the injury.

20. It was further submitted that the Magistrate was in error on the facts in that he had given insufficient attention to the evidence relating to nose bleeding which, according to the argument, of itself proved that the worker suffered a substantially serious injury to his spine. There was no evidence of any direct trauma to his nose or face, and so it was said the likely explanation for the bleeding in the nose was the compression injury to the spine from landing on the buttocks or feet, which had an effect within the worker's nose. Whilst that is a possible explanation of events, I am not convinced that it proves that any symptoms in the plaintiff's lower back which were experienced at a time later than relatively shortly after the injury were causally connected with that injury. In particular the evidence does not show that the plaintiff suffered more than a soft tissue injury to a spine, with which he was already having difficulties, the effect of which injury had ceased prior to April 1984, or was overwhelmed by the incident on 3 April 1984.

21. The Magistrate in his reasons discussed the competing opinions of Dr Keillor and Dr White, each of whom had been consulted on behalf of the respective parties, as to the origin of the plaintiff's complaints. I think it unnecessary to say anything in relation to that except that the Magistrate was entitled to prefer the report from Dr Keillor although the medical reports and evidence were not in any event determinative of the issues I have already mentioned.

22. I would, therefore, not interfere with the Magistrate's award in favour of the employer.

23. Accordingly, the appeal is dismissed. Unless the parties wish to be heard I propose to order that the appellant pay the respondent's costs.