Baptist Community Services v Monica Christina Taboada [1996] ACTSC 3 (7 February 1996)

SUPREME COURT OF THE ACT

BAPTIST COMMUNITY SERVICES v. MONICA CHRISTINA TABOADA
No. SCA43 of 1995
Number of pages - 5
Worker's Compensation - Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Worker's Compensation - appeal from decision of Magistrate - respondent injured back in course of employment as a nurse - whether worker's incapacity ceased to be total - whether Magistrate erred in not inviting employer to give evidence as to current availability of work within worker's capacity - no error - evidence tendered on appeal of refusal of employer's offer of suitable employment - respondent found to suffer partial incapacity only after date of availability of work offered - appeal allowed.

Practice and Procedure - power of Magistrates Court to invite a party to re-open its case - that power exercisable in interests of justice - whether failure to exercise power can be remedied on appeal by a hearing of further evidence in Supreme Court under Workers' Compensation Act - it can.

Workers' Compensation Act 1951
Magistrates Court (Civil Jurisdiction) Act 1992

Uranerz (Aust.) Pty. Ltd. v. Hale (1980) 54 ALJR 378
Petreski v. Cargill (1987) 18 FCR 68

HEARING

CANBERRA, 16 November 1995
7:2:1996

Counsel for the appellant: Mr. J. Purnell, SC

Solicitors for the appellant: Colquhoun Murphy

Counsel for the respondent: Mr. G. Lunney

Solicitors for the respondent: Gary Robb and Associates

ORDER

THE COURT ORDERS THAT:

1. The appeal be upheld.
2. The award of the Magistrate be set aside and in lieu thereof an
order made that the employer pay the worker compensation for
partial incapacity commencing 20 November 1995 and continuing.

DECISION

MILES CJ This is an appeal by an employer from an award of a Magistrate sitting as an arbitrator under the Workers' Compensation Act 1951 (the Act). The Magistrate had before her two applications. One was an application by the employer for an award authorising the cessation of weekly payments which the employer had been making to the worker voluntarily and on the basis that she was totally incapacitated. The other was an application by the worker for an award compelling the employer to continue the payments. The Magistrate made an award in favour of the worker in accordance with findings recorded as follows:

1. That the worker was at all material times employed by the employer
as a registered nurse.
2. That in the course of that employment on 10 May 1993 she suffered
an injury.
3. That the injury was to a lumbar intervertebral disc.
4. That by reason of that injury the respondent was totally
incapacitated for work for the following periods:
14 March to 26 March 1993;
1 April to 18 April 1993;
9 September 1993 to date and continuing.

2. The evidence showed that the injury on 10 March 1993 occurred when the worker was trying to lift a patient as part of the ordinary duties of a nurse in the employer's nursing home, Morling Lodge. The recorded finding of injury on 10 May is presumably an error in transcription. She was off work altogether during those periods in respect of which the Magistrate found that she was totally incapacitated. When she was back at work and until 9 September 1993, she was given restricted duties in the nature of cleaning. However, she continued to experience symptoms in her lower back.

3. The challenge on the part of the appellant employer is to the Magistrate's finding that the worker was totally incapacitated from 9 September 1993 "to date and continuing". The significance of the date is that it was then that the worker ceased altogether to perform the restricted duties that she had been given following her injury and that it was after 9 September that she declined to accept the position of Recreational Activities Officer which she had been offered by the employer.

4. The Magistrate said that she preferred the evidence of the plaintiff's general practitioner, Dr Voon, her treating orthopaedic surgeon, Dr Ashman, and a consultant neurologist, Dr Owen White, to the evidence of the doctors called for the employer. However, the Magistrate did not find, and the medical evidence could not lead to a conclusion, that the plaintiff was physically incapable of carrying out any work at all as from 9 September 1993. The Magistrate said:

"Her capacity to perform a job would be dependent on her symptoms at
the time. Both Dr Ashman and Dr White were of the view that although
she may be physically able to perform the job of a Recreational
Services Officer, her capacity would depend on the fluctuation of her
symptoms and she would probably be an irregular attender at work
requiring a very tolerant employer."

5. It is therefore somewhat surprising that the Magistrate went on to say:

"Accordingly, I find that the respondent remained totally
incapacitated for work as at 10 December 1993."

6. It was unquestionably open to the Magistrate to prefer the evidence of the worker's doctors but their views were not unequivocal about the extent of her incapacity. They tended, if anything, to support the proposition that the job offered was within the plaintiff's capacity. But the Magistrate realised this aspect needed to be dealt with in order to give coherence to her ultimate findings which appear in the following passage:

"Further, although all doctors say that the respondent is now
physically capable to perform the job of a Recreational Activities
Officer that does not involve lifting patients or pushing wheelchairs,
that was the only occupation on which there was any agreement and
which I am satisfied fits into the respondent's sphere of
qualifications.
Mrs. Prindabell's evidence was that the job was offered in September
1993, but there was no evidence given with regard to the availability
of such a position on the day of the hearing. On that basis and the
evidence of the respondent's doctors, I am of the view on the balance
of probabilities that the respondent remains totally incapacitated to
date."

7. I have to say that this was a very unsatisfactory way to determine the two competing applications for arbitration. The case had proceeded for three days before the Magistrate and she handed down her decision with commendable speed four days later. It is understandable that the Magistrate should seek to finalise the applications before her on the evidence that had been given. But the decision itself, far from determining the continuing dispute between the parties, namely whether the worker remained incapacitated by reason of the injury, raised instead new issues about the continuing availability of duties which were found to be within the worker's capacity. This does not appear to have been recognized at the hearing. The Magistrate having decided that there was no evidence that the position of Recreational Activities Officer was available at the date of the hearing (more precisely, at the conclusion of the evidence at the hearing), that particular issue could not be raised again by either party. Whether the position was available after the conclusion of the evidence was a matter raised directly and immediately by the Magistrate's decision. There was an invitation in it, whether intended or otherwise, to the employer to make a further application for termination from a date subsequent to the hearing and on that further application to call evidence as to the then availability of the position.

8. With respect to the Magistrate, a wiser course would have been to issue an express invitation to the employer to re-open its case to answer the simple question whether the position previously offered was still available. No doubt a court of law has a discretion to invite a party to re-open its case. It is a discretion to be used sparingly but sometimes it has to be exercised in the interests of justice. This is the more so where a tribunal, engaged in the process of arbitration, whether formally constituted as a court or not, is not to be constrained by the usual procedures of a court of law. For whatever reason, the clear policy of the Workers' Compensation Act that proceedings relating to workers' compensation should be conducted expeditiously and cheaply by means of arbitration, appears to have been frustrated by the now entrenched practice of giving such proceedings the full treatment accorded to a case at law, with solicitors and barristers, documentation in the nature of pleadings, further and better particulars, expensive medical witnesses, transcript of evidence and a rigid application of the rules of evidence and other incidentals.

9. In my view, the Magistrate should have resolved the simple problem of whether the position of Recreational Activities Officer was still available by inviting counsel for the employer to call evidence on the matter. It is not necessary to reflect on what might have eventuated if counsel had declined the offer, except to proffer the observation that there are exceptional circumstances in which it is appropriate for a court or a tribunal, to exercise its power to call witnesses. In any event what has happened is that the employer has declined to make further application for the termination of periodic payments, after the date of the award, choosing instead to pursue the avenue of appeal to this Court and to seek to demonstrate error on the part of the Magistrate.

10. As the hearing of the appeal progressed, considerations as those outlined above began to occur to me. Without my reaching a conclusion, it seemed to me that it was likely that no error had been demonstrated on the part of the Magistrate in relation to the grounds of appeal relied upon, and that whilst I tended to think that the Magistrate should have invited counsel for the employer to re-open his case, the course the Magistrate took in deciding the case on the evidence before her could hardly be categorised as appellable error. I therefore reminded counsel, at the conclusion of submissions on the grounds of appeal filed, that this Court has the power to receive further evidence and I invited counsel for the appellant employer to consider calling evidence on the current availability of a position in the nature of that offered to the appellant in September 1993. I did this despite the objection of counsel for the worker. I should state that I consider the objection proper, although it was obvious that counsel was not able to get instructions. Counsel for the employer accepted the invitation. Since then I have reminded myself that if authority be needed for the course I took it can be found, for instance, in dicta of Gibbs CJ in Uranerz (Aust.) Pty. Ltd. v. Hale (1980) 54 ALJR 378 at 382.

11. On 16 November 1995 Mrs. Prindable was recalled to give evidence for the employer. She gave evidence of a letter dated 3 November 1995 written by her on behalf of the employer to the worker offering a position of three months probationary employment for twelve hours per week, with no extensive pushing of wheelchairs, limited bending and squatting and in any event within the limits of any medical certificate produced on the worker's return to work. Except for the pushing of wheelchairs over a distance of several metres on a smooth floor in the same room, the job is the same as that offered to the worker in September 1993. The job was, according to Mrs. Prindable, available immediately as at 16 November 1995 and it was unlikely that it could be held over until February 1996, which it was suggested in cross-examination was the worker's preference because of her advanced pregnancy. The worker did not give evidence as to her response to the offer except to have counsel produce a letter dated 14 November written by her solicitors on her behalf accepting the offer subject to a request to a graduated return to work, a postponement until after February 1996 because of the pregnancy and a waiver of the requirement to push wheelchairs.

12. I consider that this new material is properly before me under the various relevant statutory provisions. Section 26 of the Act provides for appeals to this Court from decisions, orders or awards of the Magistrates Court given or made with respect to matters to be settled by arbitration under the Act and sub-s.26(2) provides that Part XIXA of the Magistrates Court (Civil Jurisdiction) Act 1992 applies as if the appeal were an appeal to which s.387 (formerly s.282C) applies. In such an appeal the Supreme Court shall have regard to the evidence in proceedings out of which the appeal arose, has power to draw inferences of fact, and in its discretion may receive further evidence. On such an appeal the powers of the Supreme Court include the power to:

"a) affirm, reverse or vary the judgment appealed from;
(b) give such judgment or make such an order as in all the
circumstances it thinks fit or refuse to make an order."

13. The powers so given are not restricted to making such decision as the tribunal was empowered to make, and without defining the limits of the Supreme Court's powers in this regard, I am of the view that if the Supreme Court receives further evidence, it is bound to act on the facts established by the whole of the evidence and not only the evidence before the tribunal (cf. Petreski v. Cargill (1987) 18 FCR 68 at 77).

14. The appeal being in effect a re-hearing on all the evidence with due respect being given to the Magistrate's findings on matters affected by credit, it is the task of this Court to decide whether the plaintiff's agreed incapacity has ceased to be total and become partial. In my view, the employer has discharged the onus of showing that she is capable of carrying out the work offered to her. I find that it was reasonably available to her as from 20 November 1995. I leave the matter of the effect of her pregnancy on her capacity to work to be the subject of negotiation between the parties, if necessary, and if not settled by agreement, to be remitted back to the Magistrate. The formal orders are: the appeal is upheld, the award of the Magistrate is set aside and in lieu thereof an order is made that the employer pay the worker compensation for partial incapacity commencing 20 November 1995 to date and continuing. I shall hear from the parties on costs and the question of whether there are any other matters to be remitted to the Magistrate.