Woden Valley Glass v Raymond Psaila [1993] FCA 399; (1993) 44 FCR 140 (1993) 122 ALR 387 (23 August 1993)

FEDERAL COURT OF AUSTRALIA

WODEN VALLEY GLASS v. RAYMOND PSAILA
No. ACTG19 of 1993
FED No. 579
Number of pages - 10
Appeal - Workers' Compensation
[1993] FCA 399; (1993) 44 FCR 140
(1993) 122 ALR 387

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
MILES(1), HILL(2) AND COOPER(3) JJ

CATCHWORDS

Appeal - decision of Supreme Court of the Australian Capital Territory, dismissing an appeal from the Magistrates Court upon arbitration under Workers' Compensation Legislation - appeal to Federal Court - nature of appeal.

Workers' Compensation - whether incapacity for work total or partial - to be decided by inference from primary facts established by evidence - inability to earn - whether causally related to injury received - distinction between incapacity to earn and incapacity for work - relevant factors to be considered- relevance of state of labour market - arbitrator not bound by rules of evidence.

Workers' Compensation Act 1951 (ACT), sub-s.7(1) and Schedule 1

Workers' Compensation Act 1926 (NSW), sub-s.11(2)

Ruiz v. Canberra Rex Hotel Pty. Ltd. (1974) 5 ACTR 1

Warren v. Coombes and Another [1979] HCA 9; (1979) 142 CLR 531

Baker v. Canberra Abattoir Pty. Limited (Full Court of the Federal Court of Australia, unreported, 20 May 1982)

Arnotts Snack Products Proprietary Limited v. Yacob [1985] HCA 2; (1983) 155 CLR 171

Williams v. Metropolitan Coal Company Limited [1948] HCA 8; (1948) 76 CLR 431

Thompson v. Armstrong and Royse Proprietary Limited [1950] HCA 46; (1950) 81 CLR 585 at 613

Ball v. William Hunt and Sons, Limited (1912) AC 496

Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158

Abalos v. Australian Postal Commission [1990] HCA 47; (1988) 171 CLR 167

HEARING

CANBERRA, 29 June 1993
23:8:1993

Counsel for the appellant: Mr. L. Morris, QC with Mr. M. Cranitch

Solicitors for the appellant: Macphillamy Cummins and Gibson

Counsel for the respondent: Mr. G. Lunney

Solicitors for the respondent: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
1. The appeal be dismissed with costs.

2. The parties have liberty to apply to this Court or the Supreme
Court or both for correction of the record as it relates to the
name of the appellant.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

MILES J This is an appeal from a decision of the Supreme Court of the Australian Capital Territory dismissing an appeal to that Court against an award of the ACT Magistrates Court sitting as arbitrator under the Workers' Compensation Act 1951 (ACT). The appellant is the hitherto unsuccessful employer. The respondent is the injured worker. The appeal is against that part of the Supreme Court decision which upheld the finding of the Magistrate that the worker's incapacity for work was total and not partial.

2. The worker received an injury arising out of or in the course of his employment as a glass fitter with the employer. The injury was sustained on 12 April 1990 when the worker was lifting welding equipment. The injury produced, or aggravated, symptoms related to a condition of spondylolisthesis. Pain in the lower back, radiating down the right leg, rendered the worker incapable of all work from the date of injury to 26 April 1990. On that date he resumed work with the employer but on lighter duties and with persisting pain in the lower back and right leg.

3. In August 1990 the worker left the service of the employer for reasons unconnected with his injury. He joined the service of another glazier, carrying out work similar to but lighter than that which he had been carrying out prior to the injury, and with persisting pain. During October 1990 the pain worsened, particularly after an incident at his home, which the Magistrate held not to break the chain of causation arising from the injury on 12 April. On 13 October 1990 the worker ceased work on the advice of his doctor that he take two weeks off. At the end of the first week the worker attempted to resume duty but was unable to continue beyond lunchtime. Before the end of his second week off work, the plaintiff was retrenched for reasons unconnected with his injury or incapacity.

4. The worker remained unemployed during the period from 13 October 1990 until a date in May 1992 when he made a further attempt at light work in the building or glazing industry. By the end of the week the pain, which by then was extending into the left leg as well as the right, was too great for him to continue. The worker continued unemployed from that time until the time of the hearing before the Magistrates Court. The worker consulted the Commonwealth Rehabilitation Service and commenced a rehabilitation programme on 14 July 1992. At the date of the hearing he had not gained employment despite attempts to do so.

5. The hearing before the Magistrate took place on 27 July 1992. The Magistrate announced his decision that day and gave ex tempore reasons. The Magistrate held that the injury had resulted in partial incapacity for work during the period up until 13 October 1990. The Magistrate further held that from 13 October 1990 to the date of hearing the injury had resulted in total incapacity for work. The matter was adjourned until the following day when the Magistrate made his award quantifying the amount of compensation which the employer was liable to pay to the worker on the basis of total incapacity during the period in question.

6. The Magistrate did not make a precise finding as to the limits of the worker's physical capacity for work, nor, conversely, as to the nature of his physical incapacity for work. However, the Magistrate did find that the worker was precluded by reason of his injury from work such as that which he had been carrying out in the glass-fixing industry prior to 13 October 1991 and for work as a butcher for which he had been qualified in earlier years. On the face of it, the finding of total incapacity for the whole period seems to overlook the fact of the week worked in May 1992, but no point is taken as to that.

7. The only contest in the appeal to the Supreme Court and in the appeal to this Court is against the finding that the worker was totally incapacitated for work during the period in question.

8. The appeal to the Supreme Court was a rehearing on the evidence before the Magistrate: David Jones (Australia) Pty. Limited v. Arauner (unreported, Federal Court of Australia, 9 November 1982), Wakep Pty. Ltd. v. Kattelus (unreported, Federal Court of Australia, 9 November 1990), c.f. Ruiz v. Canberra Rex Hotel Pty. Ltd. (1974) 5 ACTR 1.

9. In the Supreme Court Higgins J reviewed the whole of the evidence before the Magistrate. His Honour considered that the injury left the worker with an incapacity for heavy work in general and for work involving prolonged standing or bending or repeated lifting. His Honour found that the worker was by reason of his injury precluded from engaging in work which tended to put any strain on his back and that the worker was left with "physically, a residual capacity for work". His Honour noted that the worker had, since commencing the rehabilitation course, sought employment as a security officer with a private firm and also with a government department and as a console operator at a service station. His Honour also noted the contents of a vocational assessment prepared by a CRS rehabilitation counsellor which largely coincided with the evidence given by the worker as to his own opinion about the sorts of jobs for which he was fit. The assessment noted (apparently as a result of tests) that the worker had clerical aptitude, good communication skills and "considerable skills in office management". From a list of occupations apparently supplied to him, the worker had indicated his preference for the following:

Court orderly
Desk security
Service station attendant
Night security officer
Switchboard operator
Armoured guard
Parking lot attendant
Hotel club manager
Hotel security
Manager of small business
Estimator/sales
Mobile patrol officer

10. The vocational assessment concluded and recommended as follows:

"Many of the occupation (sic) discussed have already been
investigated by Mr. Psaila. He has approached several security
firms and has been told that his injury would prevent him from
obtaining work. Many of the more sedentary jobs in security
are given to long time employee's (sic). Other occupations
investigated by Mr. Psaila include Service Station Attendant
(involves some cleaning and stocking of shelves) and Parking
Lot Attendant (No Vacancies). Mr. Psaila has also been offered
full-time work in the glazing area and also in making up
aluminium frames, but is unable to perform these duties due to
his injury.
Options to be further investigated:
Court orderly - local/state/federal
Desk security - application already sent for one job. Work
training may be suitable.
Mobile security/armoured guard - investigate suitability.
Mr. Psaila has demonstrated a high level of motivation
throughout the assessment and in researching job options."

11. Higgins J considered that it was open to the Magistrate to have held that the worker's injury was a "disincentive" to prospective employers in the fields in which he had sought employment and that the worker would probably not obtain employment in any of these fields "although physically fit to undertake it, until he had received appropriate retraining or experience". His Honour further considered that the Magistrate was correct in approaching the matter of employment in occupations for which the worker was physically fit without "any particular view of the state of the labour market". His Honour concluded that the Magistrate was entitled accordingly to find that the worker was totally incapacitated for work during the relevant period until the date of hearing and further that in the light of the evidence, the Magistrate's finding was "clearly correct".

12. In the appeal to this Court the employer has sought to challenge the decision of Higgins J by reference to a number of alleged errors in the reasons advanced by his Honour for declining to interfere with the award of the Magistrates Court.

13. Before considering this challenge, it should be observed that the question of whether incapacity for work is total or partial is a matter of fact.

14. Subject to the qualifications to be mentioned, the fact in issue is one to be decided by way of inference from primary facts established by the evidence. As Warren v. Coombes and Another [1979] HCA 9; (1979) 142 CLR 531 clearly lays down, an appeal court is in no inferior position to a tribunal from which an appeal lies to draw inferences from primary facts found established by the tribunal on the evidence before it. However, in relation to the present appeal, the decision whether the primary facts establish a case of total as opposed to partial incapacity for work involves a decision in the nature of a value judgment on which reasonable minds might differ and, more pertinently, different minds might reach the same conclusion about the extent of incapacity for work by different lines of reasoning or by reference to different determinative factors.

15. It is appropriate to deal with the grounds of appeal as they were argued.

16. The first ground of appeal in the notice of appeal is that his Honour was in error in finding that the worker was "overly optimistic" in his assessment of his own capacity to earn, when that assessment was corroborated by the CRS vocational assessment. The short answer to the ground as stated is that his Honour did not make the finding or advance the reasoning attributed to him. What his Honour said in relation to the worker's opinion that he was fit for "certain jobs" was that it did not necessarily follow that the worker was not totally incapacitated since "self-assessment is not always realistic" and may be "overly optimistic or overly pessimistic".

17. The ground was argued somewhat differently from the way in which it was expressed in the notice of appeal. It was submitted, both in relation to the first ground and the third ground of appeal, that the worker's opinion as to his own ability for fitness for certain types of work was persuasive evidence that he was so fit and that in the light of the rest of the evidence it was open neither to the Magistrate nor to Higgins J to conclude to the contrary. However, the worker's opinion was only one item of the evidence to be taken into consideration. It had to be weighed up against other factors, and in particular against the evidence that the worker had made efforts without success to gain employment in occupations for which he considered himself fit. As Fox J said in Baker v. Canberra Abattoir Pty. Limited (Full Court of the Federal Court of Australia, unreported, Fox, Blackburn and Northrop JJ, 20 May 1982):

"Each case must be judged on its own facts. The physical
condition of the worker, the treatment being received by him,
the nature of the work for which he is trained or equipped, his
own evidence of his symptomatic reaction to attempts to work,
and the evidence relating to the four weeks of rehabilitative
work, all enable an inference to be drawn as to whether he is
totally incapacitated up to the time of the hearing."

18. The vocational assessment was likewise simply an item of evidence to be taken into account. It was potentially useful material for the Magistrate, or the Supreme Court to consider. Its probative weight is another matter. The qualifications of the assessor are not known. It was not proffered as evidence of the state of the labour market in the Australian Capital Territory at the relevant time.

19. The next ground of appeal is a challenge to his Honour's statement that "it is the market perception of the worker's capacity compared with a worker who has not been so injured that is critical". That statement was followed by a reference to the decision of the High Court in Arnotts Snack Products Proprietary Limited v. Yacob [1985] HCA 2; (1983) 155 CLR 171.

20. It was submitted on behalf of the employer in the appeal that Yacob was no authority for the statement made by his Honour and that in any event that decision was concerned with the provisions of sub-s.11(2) of the Workers' Compensation Act 1926 (NSW). It was also submitted that certain other remarks of his Honour indicated that his Honour was attempting to read into the ACT legislation a provision which was similar to that of sub-s.11(2) in the NSW Act (a provision that partial incapacity for work is "deemed" to be total if the employer does not provide suitable employment for the partially incapacitated worker).

21. It is correct that sub-s.11(2) of the NSW Act is irrelevant for the purpose of deciding whether incapacity is total or partial for the purpose of compensation under the ACT legislation. However, reference to Yacob is instructive to the extent that the decision reiterates statements expressed in previous decisions of the High Court about the nature of incapacity for work, and, in particular, the nature of partial incapacity for work.

22. In Williams v. Metropolitan Coal Company Limited [1948] HCA 8; (1948) 76 CLR 431, Starke J said at 444:

"Compensation is not payable for the injury but for the loss of
power to earn caused by the injury, that is, for incapacity for
work which results from the injury. The question is whether
the injury has left the worker in such a position that in the
open labour market his earning capacity in the future is less
than it was before the injury."

23. Dixon J, as he then was, said at 449:

"It is commonplace that incapacity is not total if some other
employment is reasonably open to the injured man. If he is
disabled from his former employment, that in itself implies
some incapacity. But s.11(1) says that in case of partial
incapacity, the weekly payment shall in no case exceed the
difference between the amount of his average weekly earnings
before the injury and the average weekly amount he is earning
or able to earn in some suitable employment or business after
the injury. That means that his capacity for other work is
taken into account and in such a way that it may reduce the
compensation to nothing."

24. It was said by the majority in Yacob at 177 that it was central to these statements that incapacity for work denotes a "physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work, though this incapacity may not necessarily attract compensation ..... because it results in no loss of earning power".

25. On the matter of total, as contrasted with partial, incapacity, Fullagar J said in Thompson v. Armstrong and Royse Proprietary Limited [1950] HCA 46; (1950) 81 CLR 585 at 613:

"A man is totally incapacitated for work when he is, by reason
of his injury, physically unable to work. The words in their
natural and primary sense means that. When their meaning has
been expounded by reference to inability to earn wages, the
purpose has been to make the meaning more specific, and the
result has been to extend rather than restrict the meaning."

26. It may be instructive also to return to the decision of the House of Lords in Ball v. William Hunt and Sons, Limited (1912) AC 496, an early and authoritative case on the meaning of incapacity for work. The worker there, a tool moulder, met with an injury necessitating the removal of his left eye. Although his ability to carry out the work of a tool moulder remained exactly as it was before the injury, employers refused to employ him on account of the fact that he had only one eye.

27. The county court judge sitting as arbitrator refused compensation. The House of Lords held that the worker was entitled to compensation. The speech of Earl Loreburn L.C., which occupies less than a page of the report, contains a celebrated passage, but it is worth quoting at a little greater length:

"In my opinion, if the county court judge thinks these facts
are established (as I gather he did think) he ought to award
compensation on the footing of total or partial incapacity,
according as he may find. By the first section of the
Workmen's Compensation Act compensation is to be paid for
personal injury by accident within the terms of the Act. What
the schedule does is to fix the scale and conditions. In the
ordinary and popular meaning which we are to attach to the
language of this statute I think there is incapacity for work
when a man has a physical defect which makes his labour
unsaleable in any market reasonably accessible to him, and
there is partial incapacity for work when such a defect makes
his labour saleable for less than it would otherwise fetch."
(at 499).

28. It is important to recognize that whilst Earl Loreburn drew the distinction between total and partial incapacity for work, neither his Lordship nor any of the other Law Lords expressed a view whether the facts of the case established total as contrasted with partial incapacity, and the case was remitted to the arbitrator to fix the amount of compensation to be awarded.

29. The relevant provisions of the ACT Workers' Compensation Act are similar to those under consideration in Ball. The fundamental provision is sub-s.7(1) which provides as follows:

"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."

30. There is in this provision no reference to incapacity whether total or partial. However, the relevant parts of Schedule 1 are as follows:

"Scale and Conditions of Compensation
.....
(1) The amount of compensation shall be -
(a) .....
(b) where the worker is totally incapacitated for
work by the injury, in respect of the period of
the worker's incapacity -
.....
(c) where the worker is partially incapacitated for
work by the injury - a weekly payment during his
or her incapacity -
(i) of the amount (if any) by which the weekly
amount that he or she is earning, or is
able to earn in some suitable employment or
business, after the injury is less than his
or her weekly pay at the date of the
injury, or of the amount of $57, whichever
is the less; or
(ii) on the amount (if any) by which the weekly
amount that he or she is earning, or is
able to earn in some suitable employment or
business, after the injury is less than the
weekly amount that would have been payable
to him or her under paragraph (b), if he or
she had been totally incapacitated,
whichever is the greater."

31. As their Lordships indicated in Ball, it is to the section and not to the schedule that one must look in order to decide whether the worker has suffered a compensable injury. However, for the purpose of fixing the amount of compensation, reference must be had to the provisions of the schedule. Indeed, as Fullagar J indicated in Thompson, where the meaning of the words "incapacity for work" have been expounded by reference to inability to earn (as they have been by the provisions of the schedule), the result has been to extend rather than to restrict the meaning.

32. If there is no difference between earnings before injury and the amount the partially incapacitated worker is earning or able to earn in some suitable employment or business after injury, the partially incapacitated worker will not obtain an award entitling him to payment of compensation: Williams at 449, Yacob at 177. Conversely, an injured worker who is left with some capacity to work, that is to say, to carry out the sort of activities that are carried out in a range of remunerative occupations, may nevertheless, within para.(1)(c) of the Schedule to the Act, not be "able to earn in some suitable employment or business".

33. Mr. Lunney for the worker submitted that the use of the phrase "able to earn" in the Schedule was of significance, in that, in contrast with the concept of incapacity for work, inability to earn was of a wider meaning. There is substance in this submission. It is reflected in the words of Fox J in Baker already quoted. It was recognized in Ball by Lord Atkinson at 505:

"The words 'or is able to earn' are most significant. They
point to the retention of the power to earn something in a
suitable employment, and to the extent that this power is
retained or has returned, though he may not try to exercise it,
he does not incur the particular kind of loss for which
compensation is to be given."

34. Accordingly, although his Honour's reference to sub-s.11(2) of the New South Wales Act may not have been apposite, it has not been shown to have led his Honour into error. His Honour's reference to "the market's perception of the worker's capacity" was no more than an attempt to describe what was involved in an assessment of "suitable employment or business" in which the worker's ability to earn was relevant.

35. The remaining grounds of appeal may be considered together. They were that the Magistrate fell into error in ruling that the worker needed training or experience before he could obtain employment in certain occupations for which he was physically fit and that Higgins J repeated the error. It was submitted that the ruling was based on an assumption that without retraining the worker could not sell his labour at all. However, a proper reading of the Magistrate's reasons discloses that the Magistrate did not make any assumption of that nature. As his Honour observed, the Magistrate expressly disclaimed any particular knowledge or view of the labour market. The relevant passage from the Magistrate's findings is as follows:

"It does not seem to me to matter whether one classified his
inability to work between October 1991 and now as a partial or
as a total incapacity. The result is the same, namely, a total
inability to work since October 1991 to date. One cannot
expect a butcher or glazier to become a night watchman or taxi
driver overnight. There must be a lot of mental adjustment to
make. No doubt his efforts for a considerable time after
October 1991 were more directed at overcoming his injury and
hoping that it would improve so that he could resume employment
in the fields he was used to rather than searching out new
fields of employment immediately.
To expect it to be otherwise is unrealistic. It is now some
two months since he has abandoned the hope of a quick fix to
his back and made the mental adjustment to looking for new
work. That he has not yet found it has nothing to do with the
present economic climate of which, incidentally, I have no
evidence. I am not prepared to take judicial or actual
knowledge that there is any particular difficulty in the
Australian Capital Territory in a 36 year old male getting
employment in the industries in which the applicant now seeks
employment.
On the evidence before me and the view I take of the
defendant's willingness to work I am satisfied that any
difficulty he has in obtaining employment is caused by the fact
that he plainly has a bad back caused by the injuries he
sustained while working with the respondent and the limitation
that that bad back places upon the available types of
employment. I find that the applicant sustained injuries
arising out of or in the course of his employment with the
respondent on 12 April 1990, as a result of which he has been
totally incapacitated for work from 13 October 1991 to date."

36. This passage does indicate that the lack of experience on the part of the worker in some of the preferred occupations was considered to be a relevant factor. However, there was no error in taking that factor into account. For instance, it was well open to the Magistrate to find that some of the occupations for which the worker considered himself fit, such as court orderly, switchboard operator, or manager of small business, were not to be regarded as a suitable occupation or business for a man 36 years of age who had been trained as a butcher and worked as a glass fitter. The Magistrate's reference to mental adjustment, in the context of the rehabilitation programme, may be taken to contemplate that at some time in the future, employment in one or more of the preferred occupations for which training might be undertaken may be regarded as employment in a suitable occupation or business. However, the period in question for the purpose of the Magistrate's determination was from 13 October 1991 to the date of the hearing and the Magistrate was entitled, as his Honour found, to regard such occupations as unsuitable for the worker during that period.

37. As to other occupations or businesses which might have been suitable, such as in the security industry or work as a service station attendant, the evidence was that the worker had approached the CRS and made himself available for any such vacancies as might be found and, apparently in response to what he had been told was available, had applied for three specific jobs. There was no suggestion that he had failed to make himself available for any vacancy to which he was suited. He made it known to the CRS and to the prospective employers, as he was obliged, that his back condition limited the range of activities that he was able to perform. The Magistrate, in the light of that evidence, found that any difficulty in obtaining employment was related to the fact that "he plainly had a bad back".

38. The employer also relied upon an alleged failure on the part of the worker to explore this ability to obtain work on the open labour market until some couple of weeks before the hearing before the Magistrate. The Magistrate took this factor into account, holding that for "a considerable time" the worker had been hoping for a "quick fix" for his condition and for a resumption in fields of employment with which he was acquainted. Again, it cannot be said that the Magistrate overlooked the length of time between retrenchment and registering with the CRS.

39. It was also submitted that despite the Magistrate's disavowal of taking local conditions of the labour market into consideration, the Magistrate must have done so, because in times of full employment the worker would be expected to be able to command jobs within the range of those set out in the CRS assessment.

40. It is true as Lord Shaw of Dunfermline said in Ball at 508 that it is no part of the statutory workers' compensation scheme to make the employer responsible for non-employment which is due to general economic causes. This is another way of saying that the inability to earn in a suitable occupation or business must be causally related to the injury received and incapacity produced. But it is not to say that where prevailing economic circumstances offer less than full employment throughout the community, the injured worker's inability to gain suitable employment is to be attributed to the economy and not to the injury and incapacity. Lord Shaw continued at 509:

"If, for instance, one of the probabilities were that, at the
first appearance of scarcity in the demand for labour, a
workman in his injured condition would be the first to suffer,
that is simply one of those circumstances with regard to which
the county court judge as arbitrator will have to make his best
and most judicious estimate. He might, probably he would in
the majority of cases, treat such a problematical consideration
as entering into his estimate in but a slender degree. But the
refinements in these cases have been so frequent that I desire
to say once for all that the entire results causally connected
with an injury ought to enter into the estimate, but that
results attributable to economic causes, such as the state of
the labour market, ought to be excluded therefrom."

41. Whilst the onus lies on the worker to establish the extent of his partial incapacity for work for the purpose of assessing the rate of compensation payable, there is no reason why the general principle applicable to damages is not applicable to workers' compensation law. That is to say, that once it is established that the injury has resulted in an incapacity for work which contributes to the worker's inability to earn in a suitable occupation or business, and although there may be other contributing factors, the circumstances may require the party responsible to show the extent to which extraneous factors contribute to that inability: Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158, in which Dixon CJ said at 160:

"If the disabilities of the plaintiff can be disentangled and
one or more traced to causes in which the injuries he sustained
through the accident play no part, it is the defendant who
should be required to do the disentangling and to exclude the
operation of the accident as a contributory cause."

42. Whilst it may be going too far to say that there is an evidentiary burden cast upon an employer, an evidentiary burden to show what alternative employment opportunities and likely earnings were open to a partially incapacitated worker, a workers' compensation tribunal may well require little in the way of evidence to establish that the worker has discharged the onus of showing that he is unable to earn in a suitable occupation or business.

43. In Ruiz v. Canberra Rex Hotel Pty. Ltd., Woodward J said at 6 that if a person normally has been a manual worker and is prevented from doing such work by an injury received in compensable circumstances, the obligation to compensate cannot be avoided or reduced by the employer showing that the worker might have done some quite different type of work had it not been for a previous injury. That was a case in which the respondent employer sought to lay the blame for the worker's incapacity upon a prior injury received before the compensable injury in question, but it illustrates the point.

44. In the same case Woodward J said at 9:

"It is idle to pretend that the overall employment situation is
irrelevant in this context. Obviously, in a time of "over
full" employment, employers will engage people whom they would
not normally engage. In times of significant unemployment,
those with disabilities will find the competition for work
particularly hard to overcome."

His Honour added that the criterion should be "normal employment circumstances" and applying that criterion, concluded that the worker in that case "would always find it very difficult, and would normally find it impossible to secure work".

45. It is appropriate to bear in mind that the award was made as a result of a process of arbitration in which the tribunal was not bound by the rules of evidence and was entitled to inform itself as it saw fit (see para. 6(a) of Schedule 4 to the Workers' Compensation Act 1951, see also Bryer v. Metropolitan Water Sewerage and Drainage Board (1939) 39 SR NSW 321; J and H. Timbers Proprietary Limited v. Nelson [1972] HCA 12; (1972) 126 CLR 625; Peart v. Bolckow, Vaughan and Co., Ltd. (1925) 1 KB 399, Keane v. Mount Vernon Colliery Co., Ltd. (1933) AC 309.) Although Woodward J in Ruiz urged caution in the use of sources or knowledge going beyond evidence given in the course of hearing, it should be acknowledged that in the 20 years or so that have elapsed since Ruiz, the ACT Magistrates Court has acquired considerable experience in determining workers' compensation claims and should not be compared with a court which deals with such claims at infrequent intervals.

46. Finally, there is the principle recognized in Abalos v. Australian Postal Commission [1990] HCA 47; (1988) 171 CLR 167, where McHugh J at 178 acknowledged the advantage enjoyed by a tribunal called upon to decide a question where the estimate of the person forms a substantial part of the reasons for decision. In the present matter, the estimate by the Magistrate of the worker whom he saw before him giving evidence cannot be overlooked as it related to relevant aspects of the case such as the genuineness of the worker in describing his symptoms of pain and disability and his motivation or lack of it in considering and seeking employment during the period in question.

47. No error has been demonstrated on the part of the Magistrate or in the reasons given in the Supreme Court for dismissing the appeal from the Magistrate's award. The appeal to this Court should be dismissed with costs.

48. There is a formal matter which may need attention. The appeal was brought in the name of "Woden Glass Services" which may or may not be the name in which the employer conducts or conducted its business. The parties should have liberty to approach this Court or the Supreme Court or both in order to have the record corrected: see Federal Court Rules Order 42 Rule 13, ACT Supreme Court Rules Order 50.

HILL J I have had the advantage of reading the judgment of Miles J and agree with the orders proposed therein.

COOPER J I have read the judgment of Miles J in this matter and agree with his Honour's reasons and the conclusions which he reached.