Re Edgar Terrence Mapley v Radial Industries [1982] FCA 24 (9 March 1982)

FEDERAL COURT OF AUSTRALIA

Re: EDGAR TERRENCE MAPLEY
And: RADIAL INDUSTRIES
No. NTG 23 of 1980
Workmen's Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Keely J.
Deane J.
Gallop J.

CATCHWORDS

Workmen's Compensation - appeal from Supreme Court of Northern Territory - whether loss of use of arms was permanent - contradictory expert opinions - appellant's case not properly put - relevance of manner in which respondent's case had evolved - question whether appellant should in the circumstances be bound by the manner in which his case was conducted.

s.10 Workmen's Compensation Act (N.T.)

HEARING

DARWIN
9:3:1982

ORDER

1. THAT the appeal be allowed.

2. THAT the judgment and order of the Supreme Court of the Northern Territory be set aside.

3. THAT the matter be remitted to the Supreme Court of the Northern Territory for a new hearing.

4. THAT the costs of the original hearing in the Supreme Court of the Northern Territory be reserved for the decision of the Judge of the Supreme Court of the Northern Territory who deals with the matter on the re-hearing.

5. THAT the respondent pay to the appellant his costs of the appeal.

DECISION

The factual context of this appeal from a decision of the Supreme Court of the Northern Territory (Forster C.J.) appears from the judgments of Keely J. and Gallop J. Those judgments also contain reference to the relevant provisions of the Workmen's Compensation Act of the Territory ("the Act"), to the expert medical evidence which was led, in oral or written form, in the Supreme Court and to the course of proceedings in the Supreme Court and the Workmen's Compensation Tribunal ("the Tribunal"). I shall refrain from repeating these matters except to the extent necessary for meaningful discussion.

At issue in the appeal is the appellant's entitlement to a lump sum payment pursuant to the provisions of s.10 of the Act. A finding by the Chief Justice to the effect that the appellant had sustained, by accident arising out of or in the course of his employment, a loss of use of his arms for the purposes of his employment as a plant operator was not challenged by the respondent employer on the appeal. The issues involved in the appeal, as it was argued, relate to the conclusion of the Chief Justice that, "in the present state of the evidence" he was "not satisfied on the balance of probabilities that the appellant's loss of use of his arms for the purposes of his employment as a plant operator, however this be measured, is permanent".

The grounds of appeal filed on the appellant's behalf took the traditional form of alleging a list of suggested errors on the part of the trial judge. It emerged on the hearing of the appeal however that the appellant, in truth, could find little to complain of in the Chief Justice's conduct of the proceedings or in the judgment which he gave on the evidence before him. The appellant's real complaint is that his case on the particular matters which underlay the Chief Justice's adverse conclusion on the question whether the loss of use, for relevant purposes, of his arms was permanent, has never been properly put. He did not, on the hearing of the appeal, seek a reversal of the Chief Justice's decision. He sought an order setting that decision aside and remitting the matter to the Supreme Court for a rehearing.

The expert medical evidence before the Chief Justice took three different forms. There was a number of written reports which had been tendered before the Tribunal. There was the transcript of oral evidence, including the oral evidence of three medical experts, given before the Tribunal. There was oral evidence given before the Supreme Court. The reports and oral evidence which had been tendered or given before the Tribunal do not appear to have been discussed in any detail before the Chief Justice: they were simply included in a bulk tender, made by consent, of all the material that had been before the Tribunal. The oral medical evidence before the Supreme Court consisted of the evidence of one expert (Dr. Yaksich) who had also given evidence before the Tribunal and of another (Dr. Lowe) who gave evidence for the first time before the Chief Justice.

The proceedings before the Tribunal appear to have been conducted on the basis, common to both sides, that any persisting loss, by the appellant, of use of his arms for the purposes of his employment was permanent. Up until the time when the last medical expert, Dr. Lowe, gave his evidence, the proceedings before the Chief Justice were plainly conducted on that basis. As Gallop J. demonstrates in his judgment, that view was at least implicit in the overall medical evidence, in its various forms, which had been led on behalf of the appellant and the respondent up until the time when Dr. Lowe was called.

Dr. Lowe, without objection on behalf of the appellant, gave evidence that the appellant's loss of use of his arms was not, in his view, "permanent". He advanced two reasons for that conclusion. The first was that he considered that spontaneous fusion would, over a period of years, alleviate the underlying injury which the appellant had sustained to the intervertebral disc. The second was that he favoured surgical treatment. The suggested surgical treatment was an operation for the inter-body fusion of the cervical vertebrae. While, as has been said, it was implicit in other medical evidence that any persisting loss by the appellant of the use, for relevant purposes, of his arms would not diminish, no other medical expert had given express evidence as to the likelihood of alleviation by spontaneous fusion or as to the desirability, or likelihood of success, of the surgical treatment suggested by Dr. Lowe. In particular, no suggestion of these matters had been raised, on behalf of the respondent, in the cross examination or examination of medical witnesses or, as regards the desirability of surgical treatment, in the cross examination of the appellant.

It seems to me to be clear that the evidence given by Dr. Lowe raised, for the first time, three questions with which the appellant, who bore the onus of proof in the Supreme Court, was called upon to deal. The first of those questions was whether the appellant's loss of use of his arms was likely to be alleviated by spontaneous fusion over a period of years. Dr. Lowe's view, that it was, seems hardly consistent with what was implicit in other medical evidence and was not tested in cross examination on behalf of the appellant. The second question was whether the permanence of any persisting disability should be assessed on the assumption that the appellant would or should undergo surgical treatment for inter-body fusion of the cervical vertebrae (see, generally, Fazlic v. Milingimbi Community Inc., High Court of Australia, 9 February, 1982). Dr. Lowe's evidence on this was somewhat confusing as to whether what he advocated unequivocally was an operation for inter-body fusion or merely a surgical investigation of whether inter-body fusion should be attempted and as to the overall likelihood of success of such surgical investigation or treatment. The complex nature of operative treatment for inter-body fusion of the cervical vertebrae and the likelihood of conflicting medical views as to the advisability of that operation in a particular case are well-known. Dr. Lowe's evidence was quite silent as to the nature of the operation and as to the likelihood of the existence of other medical views as to its advisability. Again, he was not cross examined on these matters. The third question was whether, in the light of Dr. Lowe's evidence that spontaneous fusion was likely to lead to an alleviation of the appellant's persisting loss of use of his arms over a period of, to quote Dr. Lowe, "five to ten years" and that surgical treatment which might be successful was available, the appellant's persisting loss of use of his arms was for the purposes of s.10 of the Act, permanent.

The transcript of the proceedings in the Supreme Court makes it clear that the Chief Justice was conscious of the difficulties resulting from the manner in which the parties had conducted the matter before him. In a passage which is incompletely recorded in the transcript, his Honour referred to the evidence as to the possibility of spontaneous fusion and indicated a desire to hear further evidence in relation to it. In another incompletely recorded passage in the transcript, his Honour expressly indicated to counsel who then appeared for the appellant that he was favourably disposed to allowing further medical evidence to be called on the appellant's behalf. Counsel for the appellant did not avail himself of the invitation or the opportunity. It should also be mentioned that the transcript indicates that a request had been made by the respondent that the appellant's main medical witness, Dr. Yaksich, be recalled for further cross examination and that it was desired to put to Dr. Yaksich the matters that were raised by Dr. Lowe. Dr. Yaksich was not recalled.

If the evidence is to remain in its present unsatisfactory state, I can see no valid ground for overruling the Chief Justice's carefully worded conclusion that "in the present state of the evidence" he "was not satisfied on the balance of probabilities that the appellant's loss of use of his arms for the purposes of his employment as a plant operator, however this be measured, is permanent". The real question involved in the appeal is whether, in all the circumstances, the evidence should be regarded as closed. A reading and rereading of the material before the Supreme Court has persuaded me of the validity of the submission that the appellant's case, on the questions which emerged for the first time in the evidence of Dr. Lowe, was never properly put. Ordinarily, I would have been of the view that, however unfortunate and disturbing that may be, the appellant was bound by the manner in which his case was presented by counsel and by the failure of counsel either to cross examine Dr. Lowe in relation to those questions or to take advantage of the opportunity which had been expressly proffered to him of leading further evidence (see McCormack v. Federal Commissioner of Taxation [1979] HCA 18; (1979) 23 A.L.R. 583 at p. 599; Uranerz (Aust) Pty. Ltd. v. Hale (1980) 30 A.L.R. 193 at p. 199). The circumstances of the present case are, however, not ordinary.

Consideration of the overall course of the proceedings before the Workmen's Compensation Tribunal and before the Supreme Court indicates that it would be wrong to lay the responsibility for the unsatisfactory state of the evidence, in relation to the questions raised by Dr. Lowe's evidence, wholly at the door of the appellant or his legal advisers. To a significant extent, the deficiencies in the evidence in the presentation of the appellant's case are to be explained by reference to the manner in which the respondent's case was presented both before the Tribunal and before the Supreme Court. It appears not to have been suggested in the Tribunal that any persisting loss of use of the appellant's arms for the purposes of his employment was other than permanent. It is clear that no suggestion was made that any such loss of use should be seen as other than permanent by reason of the likelihood of spontaneous fusion or the availability of surgical treatment to which the appellant could or should subject himself. No suggestion of these matters was made in cross examination of the appellant or Dr. Yaksich when they gave oral evidence in the appellant's case in the Supreme Court. The first suggestion of these matters came in the evidence of the last witness, Dr. Lowe, in answers which were strictly unresponsive to questions which he was asked. It was unfair to the appellant that the respondent's case should be so conducted. That unfairness was, no doubt, unintentional on the part of those who appeared on behalf of the respondent and, at least in part, the result of changes in the identity of counsel and the fact that Dr. Lowe was an expert called from the south. It is important however in that it does much to explain the failure by counsel, who then appeared for the appellant, either to cross examine Dr. Lowe on the new matters which he had raised or to call or re-call expert evidence to deal with them.

Ultimately, it seems to me that the combination of four considerations governs the outcome of this appeal. I have already referred to three of those considerations. The first is that the appellant's case, on the question of permanence of loss of use, was never properly put in the Supreme Court. The second is that the failure properly to put the appellant's case in the Supreme Court was the result, to a significant extent, of the unfair manner in which the respondent's case evolved in the Supreme Court. The third is that the unsatisfactory nature of the evidence in the Supreme Court was such as to lead to the case being determined not by positive findings of relevant questions of fact but by reference to the onus of proof on the issue of whether the persisting loss of use of the appellant's arms was permanent. The fourth consideration is not truly independent of the first three. It is that it seems to me that, notwithstanding the importance and desirability, from the point of view of both State and litigants, that there be finality in litigation, the overall objectives of justice under the law would, in the present case, be best served by a complete rehearing of the matter in the Supreme Court.

In these circumstances, it would, in my view, be wrong to adopt the approach that the appellant should be bound by the manner in which the case was conducted on his behalf and that, regardless of what I see as the requirements of justice, the evidence must per force remain in its present state. In all the circumstances of the case, I consider that the judgment and order of the Supreme Court should be set aside and that the matter should be remitted to the Supreme Court for a new hearing. The respondent should pay the appellant's costs of the appeal. The costs of the proceedings in the Supreme Court should be reserved for the decision of the judge of the Supreme Court who deals with the matter on the rehearing.