Berkeley Challenge Pty Limited v Blazeski & Anor [2006] ACTSC 55 (6 June 2006)

Last Updated: 12 February 2007

BERKELEY CHALLENGE PTY LIMITED (ACN 008 464 755) v DOSTA BLAZESKI, CITY GROUP PTY LIMITED (ACN 008 599 899) [2006] ACTSC 55 (6 June 2006)

WORKERS COMPENSATION - arbitration under Workers Compensation Act 1951 (ACT) - award based on incapacity attributable to successive accidents to different parts of the body during concurrent employment by two respondents - whether Magistrates Court has power to apportion liability between respondents - appeal against finding of apportionment upheld - Supreme Court asked to consider this issue afresh.

Supreme Court Act 1933 (ACT)

Workers Compensation Act 1951 (ACT)

Ilsley v Wattyl Australia Pty Limited (1997) 75 FLR 1

Morris v George & Ors [1977] 2 NSWLR 552

Bushby & Anor v Morris & Ors [1980] 1 NSWLR 81

National Employers Mutual General Insurance Association Limited v Calver & Ors [1983] 3 NSWLR 107

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 57 of 2005

Judge: Crispin J

Supreme Court of the ACT

Date: 6 June 2006

IN THE SUPREME COURT OF THE )

) No. SCA 57 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: BERKELEY CHALLENGE PTY LIMITED (ACN 008 464 755)

Appellant

AND: DOSTA BLAZESKI

First Respondent

CITY GROUP PTY LIMITED (ACN 008 599 899)

Second Respondent

ORDER

Judge: Crispin J

Date: 6 June 2006

Place: Canberra

THE COURT ORDERS THAT:

1. the appeal be allowed;

2. the finding made in the Magistrates Court to the effect that the appellant and second respondent should bear equal responsibility for the award in favour of the first respondent be set aside;

3. the appellant and second respondent each indemnify the other in respect of 50 per cent of any payments made by the other, pursuant to the award in favour of the first respondent made by the Magistrates Court on 22 July 2005.

1. This matter has highlighted an apparent lacuna in the powers conferred upon magistrates and arbitrators by the Workers Compensation Act 1951(ACT) ("the Act")

2. Magistrate Fryar gave judgment on 22 July 2005, finding that the first respondent was entitled to an award under the Act against both the appellant and the second respondent. The appellant does not challenge that order but does submit that her Honour fell into error in proceeding to make a finding that it and the second respondents should bear equal responsibility for payment under the award.

3. I note, in passing, that s 197 of the Act authorises appeals to this Court only from a "decision, order or award" against a party to the arbitration and, at face value, this would not appear to authorise an appeal against a mere finding in reasons for judgment. However, there was no challenge to the competency of the appeal and the broader appellate power conferred on this court by s 20 of the Supreme Court Act 1933 (ACT) would presumably be sufficient to permit an appeal against a finding purportedly determining the respective liabilities of these parties.

4. Dr Morrison SC, who appeared for the appellant, pointed out that, as a court of limited jurisdiction, the Magistrates Court could only exercise the power conferred on it by statute and that the Act did not confer any power to address the question of how the liabilities of respondents under such an award should be apportioned.

5. This problem was identified by the Full Court of the Federal Court of Australia in Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1 where, in a joint judgment Higgins, Cooper and Finn JJ said:

We note in passing that where, as here, different injuries from different employments are causes of an incapacity, legislation in other jurisdictions allows for the apportionment of the liability to pay compensation between the various employers. Such is not the case with the 1951 Act. Such apportionment is left to separate proceedings under the general law. This deficiency is a matter which should be drawn to the attention of the relevant ACT authorities.

6. Dr Morrison also pointed out that a similar lacuna had earlier been identified in corresponding legislation in New South Wales. The absence of any provision for apportionment between employers or their insurers had been mentioned by the New South Wales Court of Appeal in Morris v George & Ors (1977) 2 NSWLR 552 per Hope JA at 571 and Glass JA at 581 and by the Privy Council on appeal from that decision in Bushby & Anor v Morris & Ors (1980) 1 NSWLR 81 at 88. In the subsequent decision of National Employers Mutual General Insurance Association Ltd v Calver & Ors (1983) 3 NSWLR 107 both Moffat P, at 108, and Reynolds JA, at 114, had mentioned that the Act had been amended to fill the lacuna in the New South Wales legislation following the Privy Council's decision.

7. It was common ground that no similar provision had been enacted in this jurisdiction to cure the lacuna identified in Ilsley. Mr Stretton, who appeared on behalf of the second respondent, did not suggest that I should not follow the dicta in that case but did submit that it could be distinguished.

8. In the present case, her Honour found that the plaintiff had been concurrently employed as a cleaner by the appellant and second respondent, working for the former in the morning and the latter in the evening. She sustained injury on two occasions. The first occurred on 3 June 2002 whilst working for the appellant at Allara Customs House in Canberra. On that occasion she had been using a vacuum cleaner strapped to her back when she saw a piece of paper underneath a desk. As she bent down to pick it up, the vacuum cleaner caught on the edge of the desk, jerking her backwards and she sustained an injury to her neck. The second injury occurred on 21 February 2003 whilst working for the second respondent at the Russell Offices in Canberra. On that occasion she was attempting to open a hopper to dispose of a trolley load of rubbish. The hopper was on sloping ground and she found it difficult to lift the lid. She injured her lower back whilst attempting to do so.

9. Mr Stretton submitted that the case based upon these injuries was quite different from those discussed in the earlier authorities, none of which had involved separate injuries to distinct parts of the body, sustained during periods of concurrent employment. He argued that since there was no authority directly on that point I should uphold her Honour's "common sense decision" which had provided an appropriate remedy in a cost effective and uncomplicated manner.

10. Regrettably, these submissions provide no jurisprudential basis for a finding that the Magistrate had jurisdiction to deal with the issue of apportionment, whether arising in relation to successive injuries of the kind suffered by the plaintiff in this case or otherwise. The Act was substantially reformulated between the dates of the first and second accidents but neither form contained any provision that could have been construed as conferring the necessary jurisdiction. In the absence of such a provision the Magistrate had no power to determine the issue. Accordingly, I can only echo the comments made by the Full Court of the Federal Court in 1997 and again suggest that this apparent deficiency be drawn to the attention of the legislature.

11. Dr Morrison also challenged the adequacy of the Magistrate's reasons for the apportionment but, in view of my ruling that her Honour had no power to deal with the matter, it is unnecessary to address this aspect of his submissions.

12. The appeal against the relevant finding must be upheld and the relevant finding set aside.

13. In the ordinary course of events that would have been the end of the matter but counsel for the parties, including Mr Parker, who appeared for the first respondent, were clearly concerned at the delay and expense that would be involved in commencing fresh proceedings in this Court to resolve the issue. I was informed that, in the event that I were to find that the Magistrate had lacked jurisdiction to make the impugned finding, all of the parties accepted that I had jurisdiction to resolve this issue and agreed that it was appropriate for me to do so. I was also informed that each party consented to orders dispensing with the need for pleadings of any kind and agreed that I should rely upon the Magistrate's findings, including her Honour's preference for the evidence of Dr Azoury and Dr Eaton, who had treated the first respondent after each of the two incidents. It was, of course, common ground that I should otherwise approach the issue afresh. I agreed to determine the issue on this basis.

14. Mr Parker indicated that, whilst the first respondent supported this proposal for the resolution of the issue, he did not wish to be heard as to the appropriate apportionment of liability between the appellant and second respondent.

15. Mr Stretton relied heavily upon evidence given by the first respondent as to the symptoms she had experienced following each of the accidents. She explained that after the first accident she began to feel pain in her head, neck, shoulders and also in the front of her chest cavity and ribs. She continued to work for some days after the accident, though taking pain killing tablets, and then took a few days sick leave followed by a month's holiday. When she returned to work the supervisor for the second respondent told her that she could work more slowly as she was still experiencing problems with her neck. As time passed she experienced continuing pain in her neck, shoulders and head, explaining that the sensation in her neck was like someone squeezing her to the point where she became dizzy. She said that as time went by these problems did not improve, and her condition in fact deteriorated. She found that she was unable to stretch out her hands without experiencing a lot of pain and had difficulties sleeping. She was unable to continue to do the vacuuming and arrangements were made for a man to take over that job.

16. Following the second incident she took further sick leave and reported that the pain improved whilst away from work but got worse when she returned. After being away for about a month she returned to work at the Russell offices but only on light duties. She continued to work as a cleaner but by 2004 was only able to work three days a week and then only for two hours for each of her employers. She stopped work completely in February 2004. She did attempt to return on a trial basis in June 2004 but found that her neck hurt and she was unable to turn her head. At the time of giving evidence in February 2005 she said that neither the neck nor back condition had improved. She described the restrictions in her ability to move her head from side to side as severe. She said that her pain had deteriorated after the second incident and that she had reduced her working hours with both companies. She explained "I already had pain in my upper part of my back, the neck and the head, and everything joined up after that incident, so that I had pain all over". When asked about her inability to work, she explained that her legs were heavy and that she found it difficult to walk. She also referred to the pain she had in her back, the upper part of her body, her neck and her headaches.

17. Dr Azoury, her general practitioner, saw her on seven occasions between 5 June 2002 and 5 February 2003 in relation to pain in her neck. He saw her on 12 December 2002 in relation to complaints of continuing irritation to the right side of her chest. He also saw her on a number of occasions after the second incident. In a report dated 30 May 2003, he explained that he had diagnosed a soft tissue mechanical thoracolumbar dysfunction. He said that she was still then affected by pain in her lower thoracic lumbar spine area and that it appeared that her injury and associated pain had been wholly attributable to the event of 21 February 2003. He added that she remained able to work normal hours but had been restricted in her mobility and that her duties had needed to be altered to exclude vacuuming, high dusting and handling of heavy objects. In a passage subsequently relied upon by Mr Stretton he said:

I am unable to quantify the percentage of disability as I am not familiar with the tables used, however, I can guess a figure at less than 30% disability.

Mrs Blazeski suffers from disability to her cervical spine and this is probably at the same level of less than 30% disability.

18. Dr Azoury referred her to Dr Eaton, an occupational physician. In a very detailed report dated 5 October 2004, Dr Eaton explained that he first saw the first respondent on 3 October 2002. He recounted the history that she had given him and noted that she had claimed to have experienced dizziness and generalised soreness of her neck and shoulders after the first incident. She had required three days off work initially and a few hours off work on various occasions. Her neck pain and dizziness had been severe. The neck pain had affected her sleeping patterns, waking her during the night. Driving had been difficult and she had also found it difficult to carry out her normal domestic chores. She had had treatment, including physiotherapy, but this had not helped very much. She had been assessed by the Canberra Injury Management Centre which had recommended physiotherapy and a supervised exercise/stretching program, but this had apparently produced only temporary relief. He thought she may benefit from counselling for stress management and relaxation techniques, and had prescribed Panadeine for pain control and also Endep tablets at night. On examination he found mild restriction of neck movements in all directions and observed that flexion, extension, right and left rotation and right and left lateral flexion were all restricted. Anterior and posterior neck muscles and trapezius muscles were tight. Her shoulder muscles were also generally tight and grip strength measured with a dynamometer revealed markedly reduced levels of 6 kg on the right and 5 kg on the left.

19. She consulted him again on 11 March 2003 and gave him a further history of injuring her thoraco-lumbar spine when lifting the lid of the hopper on 21 February 2003. She said that she had experienced pain and discomfort extending up the back into the neck and back of the head. She had required a considerable amount of analgesics and had to rest. She had been off work since the accident and physiotherapy had not been helping. She had been unable to drive. Dr Eaton noted that she had continued to take the Endep tablets at night. He believed that she needed psychological/pain management counselling and should participate in a gentle supervised exercise/hydrotherapy program. Examination revealed quite severe restriction of back movements particularly in forward flexion.

20. He saw her again on 23 June 2004. She then informed him that she had participated in a pain management program at the Preventative Medicine and Rehabilitation Centre which had involved psychological counselling and an exercise program. She had obtained some early relief with improved movements of the neck. However, pain and discomfort in the neck and back and headache had returned after the completion of the program. She continued to suffer with neck, head and shoulder, thoracic and lower back pain. Pain was also prominent in the interscapular region and she had experienced lumps in the neck muscles that Dr Eaton presumed had been fibrous bands/myofascial trigger points. She expressed concern about the effects of her medication on her ability to drive. She also felt that she would be unable to cope with her cleaning duties whilst taking them. About two weeks earlier she had tried to return to work for two hours of light duties but had been unable to continue. She experienced severe pain at home and was unable to rest properly. Examination revealed mild restriction of neck movements in right and left rotation and right and left lateral flexion. She complained of right sided cervico-brachial pain. He noted grip strength of 7 kg on the right and 5 kg on the left. He also noted that she was on a large number of medications including anti inflammatory medication, analgesics and an anti nauseant, muscle relaxant and sedative, an anti depressant, magnesium, slippery elm, tropical liniment and an anti inflammatory gel. She had taken other medication for reflux oesophagitis. He recommended that she trial the anti convulsant Neurontin which he hoped would assist her with her pain management. He noted that she had claimed that all her symptoms had become much more severe after the second accident.

21. When reviewed on 28 July 2004, she reported ongoing neck, head, shoulder and chest pain and headaches and said that she had experienced a feeling of heaviness in the head, constant headaches and buzzing and tinnitus in the right ear. Her sleep difficulties had continued and she had reported ongoing severe levels of stress and anxiety. She had subsequently contacted Dr Eaton by telephone to tell him that acupuncture had not helped and that her symptoms had actually seemed worse afterwards.

22. Under the heading "opinion and prognosis" Dr Eaton said that:

Ms Blazeska appears to have developed a chronic pain disorder consequent upon probable soft tissue injuries to the affected areas. Her pain and disability has continued for a much longer period and at a more severe level than expected.

Psychological, cultural and language, and perhaps some unknown factors have clearly made it more difficult for her to successfully rehabilitate back in to the workplace and control her condition. Symptoms of stress and anxiety would have had a negative effect on her condition and pain levels. It is likely that her perceptions of pain are inappropriate and exaggerated through unconscious mechanisms. It is probable that she has experienced neurogenic `windup' and peripheral and central sensitisation of nociception which has resulted in persistent pain long after expected healing of soft tissues would have normally occurred. The problem of persistent pain is now well recognised and through research into the mechanisms of pain changes in the nervous system have been demonstrated.

It is unlikely that Ms Blazeska is consciously exaggerating or embellishing her symptoms and situation. The pain his [sic] unlikely to be in her imagination and the factors mentioned above all may contribute to development of her chronic pain condition.

. . .

This comment does not imply Ms Blazeska is malingering.

23. He said that it did appear that the second injury had precipitated a much more severe response and resulted in more severe and sustained symptoms. Prognosis was guarded and it was likely that there would be ongoing pain and disability which might continue indefinitely. He also explained that her problem was one of chronic pain rather than major structural damage or pathology.

24. I did not find the other medical opinions concerning the first respondent's condition to be of substantial assistance, given the parties agreement that I should act upon the Magistrate's preference for the evidence of the treating doctors, though I note that Dr Bessel, who saw the first respondent only after the second incident, did say that she had failed to recover from the cervical spine injury sustained in 2002.

25. Regrettably, it appears that none of the medical practitioners who assessed the first respondent were asked to express opinions as to whether the injury sustained in the first incident would have caused ongoing incapacity if the second had not occurred. Nor were they asked to express any opinion as to the extent to which each of the incidents may have contributed to her ongoing disability, or as to extent to which the respective injuries to her neck and back may have contributed to the chronic pain condition described by Dr Eaton.

26. Dr Morrison submitted that I should infer that the second incident was the primary cause of her incapacity. He accepted that I should not wholly discount the contribution of the injury caused in the first incident, given the evidence that she had experienced ongoing pain in the neck and the head, and that her physical capacity had been somewhat limited thereafter. He pointed out, however, that she had been able to substantially sustain her employment and there was no evidence that she would not have been able to maintain it had she not suffered further injury in the second incident. Mr Stretton responded by pointing out that she had continued to work for a further period of about twelve months and had ultimately been unable to sustain it only because of a chronic pain condition which, he submitted, was clearly caused by the accumulated impact of the injuries sustained in both incidents.

27. Having regard to the complex mix of factors that seem to have led to the first respondent's continuing pain, it is, I think, impossible to deduce with any real confidence the extent to which her incapacity could fairly be attributed to one incident rather than the other. None of the medical practitioners who assessed her attempted such an apportionment. It is true that the relevant issues were not explored during the course of the proceedings before the Magistrate, presumably because, as I have mentioned, the question of apportionment was not an issue that properly arose for determination in those proceedings. However, the fact remains that there is no expert evidence directed specifically to the issue I have been asked to resolve. I did raise this problem with counsel, but it seemed to be accepted that the resolution of the issue on a limited evidentiary basis would preferable to the expense of fresh proceedings at which the various medical practitioners could be called for cross-examination on the relevant issues. In all of the circumstances, the determination I make will necessarily be akin to a stab in the dark, albeit in a direction broadly indicated by the limited evidence available.

28. The chronic pain condition referred to by Dr Eaton seems to have involved a response to the accumulation of painful symptoms as a result of the injuries suffered in both incidents and I have ultimately come to the same conclusion as the learned Magistrate. I find that liability should be apportioned equally between the appellant and second respondent.

29. I will hear counsel as to costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 6 June 2006

Counsel for the Appellant: Dr A Morrison SC

Solicitor for the Appellant: Moray & Agnew

Counsel for the First Respondent: Mr F Parker

Solicitor for First Respondent Baker Deane & Nutt

Counsel for the Second Respondent Mr G Stretton

Solicitor for the Second Respondent Dibbs Abbott Stillman

Date of hearing: 10 May 2006

Date of judgment: 6 June 2006