Wattyl Australia Pty Ltd v Graeme Peter Ilsley [1996] ACTSC 113 (7 November 1996)

SUPREME COURT OF THE ACT

WATTYL AUSTRALIA PTY LTD v. GRAEME PETER ILSLEY
No. SCA 32 of 1996
Number of pages - 8
Appeal - Workers Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
GALLOP J

CATCHWORDS

Appeal - Workers Compensation - award for partial and total incapacity - relevant employer - Workers Compensation Act 1951 s7(i) and Schedule 1.

Workers Compensation - duty of Magistrate to give proper and sufficient reasons.

Workers Compensation Act 1951, s.7(1)

Bushby v. Morris (1981) NSWLR 81 Kooragang Cement Pty Ltd v. Bates (1994) 35 NSWLR 452 Commonwealth Accommodation and Catering Services Pty Ltd v. Boceska (unreported, 11 October 1991) Woden Valley Glass v. Psaila [1993] FCA 399; (1993) 44 FCR 140

HEARING

CANBERRA, 1 November 1996 7:11:1996

Counsel for the Appellant: Mr G P McNally

Instructing solicitors: Allen Allen & Hemsley

Counsel for the Respondent: Mr R Crowe

Instructing solicitors: Pamela Coward & Associates

ORDER

THE COURT ORDERS THAT:
The appeal be allowed to the extent of varying the award so as to exclude the award for partial incapacity between 26 April and 30 June 1995 and total incapacity from 30 June 1995 and continuing.

DECISION

GALLOP J
1. This is an appeal against an award of compensation made by Magistrate Ward in the Magistrates Court on 3 May 1996. The terms of the award were: "1. THAT the applicant GRAEME PETER ILSLEY is a worker to whom the Workers Compensation Act 1951 (as amended) applies. 2. THAT the applicant was employed by the respondent, WATTYL AUSTRALIA PTY LTD at all relevant times. 3. THAT the respondent is liable to pay compensation to the applicant in accordance with the provisions of the Worker's Compensation Act 1951 (as amended) from the 22nd day of November 1994 and continuing and the court orders and awards as follows: (i) THAT the applicant, in the course of his employment with the respondent, suffered a prolapse injury to his lower back. (ii) THAT the respondent, WATTYL AUSTRALIA PTY LTD pay weekly compensation on the basis of total incapacity between 22 November 1994 and 25 April 1995; partial incapacity between 26 April 1995 and 30 June 1995; and total incapacity between 30 June 1995 to date and continuing. (iii) THAT the respondent pay the applicant's out-of-pocket expenses in the sum of $1,794.00. (iv) THAT the respondent pay the applicant's costs of and incidental to the arbitration as prescribed by 2/3 Supreme Court Scale for such costs together with disbursements in full. Such costs to be taxed by the Registrar in the prescribed manner and to be paid by the respondent to the Registrar forthwith after the date of such taxation, if not agreed."

2. The grounds of appeal are not very well expressed but no point was taken about that by the respondent. There were, in truth, two grounds of appeal that were argued. It was submitted that the Magistrate erred in his finding that the respondent was employed by the appellant at all relevant times, particularly on 30 June 1995 when he became incapacitated for work, and, secondly, that the respondent had not demonstrated by evidence any residual incapacity for work as from 1 July 1995. The way the second ground was expressed was that the respondent had not demonstrated that any residual capacity for work was unsaleable in the labour market from 26 April 1995 and certainly not from 1 July 1995.

3. On the hearing of the appeal the respondent did not seek to have upheld the Magistrate's finding that the respondent was partially incapacitated for work between 26 April 1995 and 30 June 1995. That was a proper concession because during that period the respondent was employed at BBC Hardware earning a salary slightly greater than he had been earning in the employ of the appellant. Accordingly, he was not entitled to weekly compensation at partial incapacity rates.

4. It is necessary to refer to the evidence before the Magistrate. No additional evidence was adduced on the hearing of the appeal.

5. The respondent gave evidence that he was born on 20 March 1950, went to school in Victoria until Year 11, and after leaving school worked in a timber and hardware store at Wangaratta for about 3 years. He then moved to Melbourne where he worked for Berger Paints for about 3 years, moved to Sydney and worked in a hardware warehouse for another year and came to Canberra in 1976 or thereabouts. He worked for two different hardware stores until 1981 when he commenced work as a general storeman with the appellant at Fyshwick. He was performing general duties stocking shelves from deliveries of paint by truck. He said that the appellant would get a full semi-trailer load each week, which was 30-33 pallets of paint, each weighing about 950 kilograms. The 33 tonnes of paint were lifted manually onto the shelves and lifted off again when assembling orders or serving customers in the shop.

6. In about 1986 he had some problems with his neck. He described how that happened. He had six months off work, not returning until early 1987. His neck was an ongoing problem which he treated "with kid gloves", trying not to do the things that he had done in the past. He also had a problem with low back pain prior to the neck incident in 1986. He had a noticeable significant low back problem in 1989. He experienced sharp traumatic pain. By the early 1990s he had constant low back pain on a regular basis. The pain was associated with the general lifting, stretching and putting paint above his head on the shelves, bending down and lifting and doing the warehouse work.

7. The containers of paint, which he had to manually handle from the early 1990s onwards, were 10 and 20 litre drums, weighing well over 20 kilograms. All the 4 x 4 litres came in a carton, so that was 16 litres capacity that he was lifting all the time, weighing 10 or 12 kilograms. He said that on an average day he would manually handle 4- 5 tonnes at least.

8. There was a particular occurrence in March 1992 after a trade night when large orders were placed with the respondent. He said that following the trade night he would have lifted, in the days following, a minimum of 10 tonnes. At the end of one of those days, when lifting a 20 litre drum, he felt a very sharp, severe pain in the lower back. He went to see his doctor and was put off work. He was off for about two weeks. Otherwise, between March 1992 and November 1994 there were no significant periods when he was pain free in the low back. In fact, there were periods when the pain level increased, caused by the general activities of lifting that amount of paint every day.

9. In November 1994 there was a further incident following another busy period of heavy lifting. He suffered severe pain in the lower left hand side, radiating through the buttocks to the hamstrings. He went to his doctor, Dr Quay, the following day and was put off work for a month. At the end of the month he had improved marginally, but he was spoken to by the Manager and called back to work. He decided then that he would resign and he did resign with effect from 22 November 1994.

10. He then started looking for another job through the Commonwealth Employment Service and obtained a job at BBC in a Hardware house. He started with BBC on 26 April 1995. His physical condition had improved to the stage where he felt confident enough to give work another go. Contrary to his expectations, the job involved heavy lifting again, more or less similar to what he had been doing in the employ of the appellant. He then was asked the following question and gave the following significant answer: "All right. But I think about the end of June you stopped working at BBC?---Yes, I'd had another severe, traumatic pain again, which immobilised me again - it was about a quarter to 2; the particular day I had to knock off at 2 o'clock and it was just - you know, just as bad as the times previously, probably a little bit worse." He went on to say that he went to his doctor and talked over the long term prognosis.

11. The appellant relies upon that evidence in chief by the respondent as demonstrating a stark incident and an injury arising out of or in the course of the respondent's employment by BBC and not by the appellant. There is further force in that contention in the cross- examination of the respondent: "But I think you told us earlier this morning that there was an incident in June 1994 at BBC ---?---'95. 95, was it - I am sorry. And I think your words were there was - you suffered from severe dramatic pain?---That's correct. And whereabouts was that severe dramatic pain?---The same place, the lower left-hand side. The same as the incident in '94. And indeed, your evidence was that it was a little worse than the 1994 pain?---Yes. Well, in the respect that I think it took longer to be over. And had - has your condition deteriorated since that time?---I think - how can I say it - the funny thing is when you're working, you are a bit fitter, and a bit more muscular, and your muscles are in tone and that. I was able to more or less try and get through, but without that fitness aspect, the back, I think, kind of deteriorated accordingly, you know, that it takes less now to aggravate the existing problem, you know. I have mentioned - you know, I have bowled a few balls to my son in a nest or cricking [sic], you know, it nearly took five minutes. I couldn't believe it, I had, you know, recurrence of a back problem, you know, so. ... But you worked at BBC from April until June, so you were there for about three months?---No, no. Well, two months, was it?---Two months. And it was the incident in June, this serious pain that you suffered from, that caused you to stop work there?---That's correct. And how did that occur? What were you doing?---Well, what was involved there, you are all given three aisles. They were your domain, and you had to upkeep all the stock in those. So everyone in the - who worked there had their own little section, and that involved keeping the shelves fully stocked, and the shelves were at least 10 foot high. So they had these mobile aluminium ladders on wheels that you had to, more or less get stuck into the pallet and carry it up the ladder or plonk it on the top run of the ladder, and then put it on the shelves, that - it was the continuation of that, you know, paint orders and general - you know, mastic and silicone tubes and all that, in boxes, stacking them up all day. But you noticed quite a severe - was it sudden pain that came on?- --Very much so. It was not something built up gradually over the two months, was it?---Well, like I said I was on the knife-edge there a lot. But it was just something - you know, whatever - you don't know, it just tipped me over the edge at this particular stage. Yes. And I take it that had that incident not occurred in June with this severe dramatic pain ...?--Yes. --- you would have kept working?---Oh, definitely. Yes. And that is what stopped you from working?---Yes."

12. It was submitted on behalf of the appellant that the medical evidence does not support a finding that as from 30 June 1995 the respondent has been totally incapacitated for work as a result of his employment by the appellant.

13. Dr David Bornstein, an orthopaedic surgeon, examined the respondent at the request of the respondent's solicitors on 15 December 1995. He took a full history and did an examination and also had regard to a CT scan and X-rays. He reached the opinion that each of the incidents that the respondent described to him had been a closed incident in itself from which he recovered. He was of the opinion that, at the time of the examination on 15 December 1995, the respondent was fit for work but his back is not suitable for the sort of work that he was required to do.

14. Dr Eric Davis, consultant neurologist, examined the respondent on behalf of the appellant's solicitors on 3 February 1995, which, of course, is before his employment by BBC. In the history obtained from the respondent, Dr Davis refers to four specific incidents, one in 1985, another on 6 March 1992, another on 25 May 1993 and the last on 22 November 1994. He expressed the opinion that there was a definite relationship between the symptomatology referable to the respondent's lumbar spine to the distinct injuries inflicted during the course of his employment as outlined in the body of his report, namely in the history.

15. Dr Anthony Cairns, orthopaedic surgeon, also examined the respondent on behalf of the appellant on 15 February 1995, which again is before the employment by BBC. He concluded that the respondent was no longer fit for work of a heavy manual nature or that requiring repetitive bending or lifting, and that he should seek redeployment and possibly retraining into areas of light manual activities, including mixed sedentary and standing sales, supervisory or administrative work, or any other activity satisfactorily fulfilling the criteria of light manual duties.

16. Counsel for the respondent referred to other parts of the evidence of the respondent and to the medical evidence of the doctors mentioned, and the very short report of Dr Quay.

17. None of that evidence contradicts the evidence of the respondent himself that on 30 June 1995 whilst employed by BBC he suffered a stark incident. The plain evidence is that he did commence work with BBC after some period of incapacity following the incident on 22 November 1994. He commenced that employment with BBC on 26 April 1995 and suffered an incident whilst employed by BBC on 30 June 1995. That incident on 30 June 1995 incapacitated him from that time on. There is no getting past his evidence that had that incident not occurred, giving him severe dramatic pain, he would have kept on working for BBC. It was that incident that stopped him from working.

18. Prima facie, the respondent has a claim for compensation from BBC pursuant to s.7(1) of the Workers Compensation Act 1951 which provides: "7.(1) Where a worker suffers personal injury arising out of or in the course of the worker's employment, the employer is liable to pay compensation in accordance with Schedule 1."

19. Counsel for the respondent frankly conceded that the respondent appears to have a good claim against BBC and proffered as an explanation for not prosecuting that claim, some prospective common law proceedings against the present appellant. Furthermore, counsel for the respondent relied upon Bushby v. Morris (1981) NSWLR 81 which is apparently authority for the proposition that: "In a case where it is found that a particular incapacity suffered by a worker has resulted from two or more injuries sustained by him on separate occasions in his employment with different employers, an award of compensation under the Workers' Compensations Act in respect of the incapacity may validly be made against each of the employers concerned."

20. In my opinion that authority does not assist the present respondent. There is no doubt as a matter of fact that his incapacity following the stark incident on 30 June 1995 was caused by the incident of 30 June 1995. Schedule 1 to the Workers' Compensation Act 1951 refers to where the death of the worker "results from". So far as total incapacity is concerned, the words used are "where the worker is totally incapacitated for work by the injury". Whatever the words, the concept of causation is what governs the entitlement to compensation. That concept has been well expressed by Kirby P. (as he then was) in Kooragang Cement Pty Ltd v. Bates (1994) 35 NSWLR 452 at p.463-464: "The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase 'results from', is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death 'results from' a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death 'results from' the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honore identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death 'resulted from' the work injury which is impugned."

21. Applying common sense to the evidence in this case as best I am capable, I find that the incapacity caused by the injury was that caused by the injury on 30 June 1995. Accordingly, the Magistrate has made an error of fact in making a finding that the appellant was the relevant employer and an error of law in ordering that the appellant is liable to pay compensation for the period of incapacity from 30 June 1995. In fact, in his very short reasons for judgment delivered orally on 24 April 1996, the Magistrate does not appear to have addressed the real question as to who was the employer liable for the total incapacity from 30 June 1995.

22. I venture to repeat what I said about the failure of a Magistrate to give proper reasons in Commonwealth Accommodation and Catering Services Pty Ltd v. Boceska (unreported, 11 October 1991): "Before finally disposing of the appeal, it is desirable to say something about the Magistrate's reasons for judgment. A careful reading of those reasons does not produce the actual reason for his decision. After reviewing some of the evidence and the submissions put by the parties, he concluded that he found himself not persuaded on the balance of probabilities that permanent incapacity due to the injury suffered to her ankle on 25 August 1987 had ceased as at the last day on which evidence was given, namely 28 May 1990. The reasons for not being persuaded simply do not appear. It has long been accepted as an incident of the judicial process in common law jurisdictions that the courts must give reasons for their decisions. In Pettitt v. Dunkley [1971] 1 NSWLR 376 Asprey JA at p.380 et. seq. reviewed the authorities about the desirability of judicial officers stating to the best of their ability the facts they find and the reasons for their decisions. He observed that the omission of a trial judge to state his findings and reasons makes it impossible for an appellate court to give effect to rights of appeal either for one party to the appeal or another and to carry out its own appellate functions. He said it is unnecessary to stress the prime importance to a party to an appeal, whether he be appellant or respondent, of the findings and reasons at first instance and this is not limited to the acceptance or rejection of evidence on the basis of demeanour for, in arriving at his conclusions, the trial judge may simply have preferred one possible view of the primary facts to another as being in his opinion the more probable, or he may have preferred the evidence of one witness to another for a variety of reasons although both were considered by him to be telling the truth as they may have observed the facts to be (see generally Whiteley Muir and Zwanenberg Ltd v. Kerr and Anor (1966) 39 ALJR 505 per Barwick CJ at 506; Da Costa v. Cockburn Salvage & Trading Pty Limited [1970] HCA 43; (1970) 124 CLR 192. Asprey JA went on to observe: "... the authorities to which I have referred and the other decisions which are therein mentioned establish that where in a trial without a jury there are real and relevant issues of fact which are necessarily posed for judicial decision, or where there are substantial principles of law relevant to the determination of the case dependent for their application upon findings of fact in contention between the parties, and the mere recording of a verdict for one side or the other leaves an appellate tribunal in doubt as to how those various factual issues or principles have been resolved, then, in the absence of some strong compelling reason, the case is such that the judge's findings of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached, and the judge has a duty, as part of the exercise of his judicial office, to state the findings and the reasons for his decision adequately for that purpose. If he decides in such a case not to do so, he has made an error in that he has not properly fulfilled the function which the law calls upon him as a judicial person to exercise and such a decision on his part constitutes an error of law." See also Housing Commission of New South Wales v. Tatmar Pastoral Co Pty Ltd and Anor [1983] 3 NSWLR 378 per Mahoney JA at 385 and the cases there cited. Pettitt v. Dunkley was followed and applied by the Full Court of the Federal Court in Australian Timber Workers' Union v. Monaro Sawmillers Pty Limited [1980] FCA 43; (1980) 42 FLR 369.

23. That is enough to dispose of this appeal and it is not necessary to resolve whether the respondent demonstrated that any residual capacity for work was unsaleable in the labour market. If I had to resolve that question, I prefer the argument put forward on behalf of the respondent. The degree of proof in order to discharge the evidentiary onus is discussed by Miles CJ in Woden Valley Glass v. Psaila [1993] FCA 399; (1993) 44 FCR 140 at 149. I respectfully agree with his Honour and in my view the respondent discharged that onus. I would not have allowed the appeal on that ground.

24. However, the overall result is that the appeal should be allowed to the extent of varying the award so as to exclude the award for partial incapacity between 26 April and 30 June 1995 and total incapacity from 30 June 1995 and continuing. I shall hear counsel on the question of costs.