Holz v Camden Park Ex-Servicemen and Bowling Club Ltd [2003] NSWCC 1 (11 February 2003)

Last Updated: 17 July 2003

NEW SOUTH WALES COMPENSATION COURT

CITATION: Holz v Camden Park Ex-Servicemen and Bowling Club Ltd [2003] NSWCC 1


PARTIES:
Gina M Holz
v
Camden Park Ex-Servicemen & Bowling Club Ltd


CASE NUMBER: 39837 of 2001 of 2003.00


CATCH WORDS: Appeal; Elements of Workers Compensation


LEGISLATION CITED:


CORAM: Armitage J

DATES OF HEARING: 11/02/03

EX TEMPORE DATE: 11/02/2003


LEGAL REPRESENTATIVES

FOR APPELLANT: Mr J A Jobson instructed by McCulloch & Buggy
FOR RESPONDENT: Mr P R Stockley instructed by Paul A Curtis


JUDGMENT:

1. This is an appeal by the unsuccessful respondent, Camden Park Ex-Servicemen & Bowling Club Ltd (“the employer”) against a decision of Commissioner Wright, given by judgment on 6 September 2002 in favour of the successful applicant, Gina Marie Holz, (“the worker”) making an award in favour of Ms Holz on the basis of total incapacity for work from 16 January 2001 to date and continuing under s 36 and s 37 of the Workers Compensation Act 1987 (“the Act”).

2. The basis of the award was a series of factual findings made by the Commissioner in which it is sufficient to say he accepted the worker’s evidence that she had suffered psychological injury arising out of and apparently also in the course of her employment with the respondent, and dismissed the employer’s defence based on s 11A of the Act. I say it is sufficient to outline the Commissioner’s factual findings in this way because the grounds of appeal before me have been considerably narrowed. They are contained in the affidavit of Mr Stewart, the solicitor for the employer sworn on 26 September 2002. They were originally ten in number.

3. Those relied on by Mr Jobson of counsel who appears for the employer now are only grounds 7 and 10 which are respectively:

The Commissioner also ignored the applicant’s own evidence that she thought she was capable of performing a wide range of activities and has been seeking work.

and:

“The Commissioner found that the applicant was totally incapacitated for work but did not offer or adopt any diagnosis of her condition other than she ‘sustained psychological injury’”.

4. It is important first to analyse the law applicable to appeals of this kind. It was acknowledged by Mr Jobson that s 34A of the Compensation Court Act 1984 governs the present appeal. Relevantly, it reads in subsection (1):

If a party to any proceedings before a Commissioner is aggrieved by an award of a commissioner, in point of law or on a question as to the admission or rejection of evidence that party may appeal to a judge.

5. No misuse of statutory discretion as the phrase is used in s 34A(2) was relied on by Mr Jobson, nor was any mentioned in the grounds of appeal relied upon by him, nor was any application made by him for the admission of further evidence within s 34A(4), so that those subsections are irrelevant to this appeal.

6. Much law exists of course on what is a “point of law” as that phrase is used s 34A(1). I was referred by Mr Stockley of counsel for the worker to the locus classicus in relation to the meaning of that term in this State, which is Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, where the distinction is, with respect, helpfully made, particularly in the reasons of Glass JA, between the question of weight of evidence as opposed to whether there is any evidence for a factual conclusion.

7. The first question is not one of law; the second is. The latter is so because it is a question of law whether there is any evidence whatsoever for a particular factual conclusion; if there is not, the conclusion is an erroneous one in point of law. Such is established by the case cited by Glass JA at 155, McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 at 9 per Jordan CJ and by the cases cited by the learned Chief Justice there.

8. On the other hand, as Glass JA points out in Azzopardi at 156-157, the mere fact that a factual conclusion made upon evidence is against the weight of that evidence, even to the point of being perverse, cannot attract appellant intervention where the statute conferring that right is cast in the terms of s 34A(1), which is materially identical to the section conferring a right of appeal in Azzopardi, which was s 37(4)(a) of the Workers Compensation Act 1926, where the same phrase “in point of law” is used (see Kirby P (as he then was) at 141). The question therefore is whether any evidence was before the Commissioner upon which he could have based his conclusion, which is expressed at paragraph 46 of his judgment at page 12, that the worker was totally incapacitated for work as a result of psychological injury in the course of and arising out of her employment with the employer.

9. It is necessary in order to examine that question to look at what “total incapacity” means in the Act, where it is used in particular in s 36 and s 37, which are the sections of the Act confirming entitlement to compensation for total incapacity for work. That question is conveniently dealt with in a case again cited by Mr Stockley for the worker, Moran Healthcare Services v Woods (1997) 14 NSWCCR 499, where at 502 Mason P remarks that the expression “total incapacity” is not defined in the Act, but that an authoritative point of reference is Ball v William Hunt & Sons Ltd (1912) AC 496 where Lord Loreburn LC said at 499:

In the ordinary and popular meaning which we are to attach to the language of this statute, I think there is total 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.

10. Mason P observes there that this passage has frequently been cited with approval, citing Thompson v Armstrong & Royse Pty Ltd [1950] HCA 46; (1950) 81 CLR 585 at 602, McGale v Glad (1981) 36 ALR 81 at 90 and A J Bartlett Pty Ltd v Drenkovski (1982) 64 FLR 328 at 331. To these may be added Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; (1938) 61 CLR 120 at 129 per Latham CJ. As Mason P points out at 503, Ball’s case was also cited with approval in Metropolitan Coal Co Ltd v Duffy (1966) 67 SR (NSW) 163 at 168 per Jacobs J A.

11. The relevant question is therefore whether there was any evidence for the Commissioner’s conclusion that the applicant was at all material times totally incapacitated for work to the effect that the worker’s labour was unsaleable in any market reasonably accessible to her, applying the time-honoured words of Lord Loreburn in Ball’s case.

12. I think it was undoubtedly the case, as Mr Jobson submitted, and as indeed the Commissioner acknowledged at paragraph 21 on page 5 of his judgment, that after resigning from her employment on 7 May 2001, the worker began seeking work not long afterwards. The evidence establishes and the Commissioner acknowledged that the worker applied for jobs as a part-time customer service officer and pharmacy assistant and also enrolled in courses to improve her computer and typing skills and after completing those courses, sought jobs of an office nature and also made what the Commissioner described as a genuine application for work with the Commonwealth Bank.

13. The fact is however that some three months after her resignation from the employment of the employer in the circumstances set out at paragraph 20 of the Commissioner’s judgment on page 5 thereof, the worker saw a psychiatrist, Dr Christopher Canaris, who was qualified by her solicitors. That doctor’s report dated 16 July 2001 was part of Exhibit A, which consisted of a number of medical reports tendered by the worker before the Commissioner. Materially that report, which is somewhat extensive, supports the Commissioner’s conclusion as to the worker’s capacity for work at the time of his examination, which would appear to have been on 12 and 13 July 2001, at paragraphs 38 and 39 of the report on page 6. These read:

38. From what she tells me about herself and what I have seen, I cannot envisage her returning to the workforce for the present. The continuing litigation and the lack of acknowledgment by the Club and the Secretary/Manager that anything wrong was done is a significant factor driving her continuing illness. Her boundaries have been violated by the way she perceives herself to have been treated and she lacks the resources for now to repair the damage.

39. I see her as needing ongoing treatment and would see her as likely to remain disabled for work even after this matter is resolved. It would take her a good year or two in the best case scenario to get back into the workforce. It may take a good deal longer - however, only time will tell.

14. The terms in which those paragraphs are cast clearly support a conclusion, not only that the worker could not as at the date of the report perform her pre-injury work, which seems to have been as a bar attendant with the employer, but that she is not capable of returning to the workforce at all, and will remain similarly incapable for at least a year, if not two. As Dr Canaris’ examinations were on 12 and 13 July 2001, this meant his opinion was that the worker was totally incapacitated right up to the date of hearing before the Commissioner, 6 September 2002, and for some time thereafter.

15. However, there are medical certificates supporting incapacity for work also contained in Exhibit A before the Commissioner extending from 16 January 2001 until 1 May 2001 from a Mr Alex Frater, psychologist, who seems to have been the applicant’s treating practitioner, and it is opined in a certificate of that person dated 16 May 2001 that by that stage the worker was fit for suitable duties between 17 and 30 May 2001.

16. There was thus a difference of opinion in the worker’s own camp so far as the medical reports were concerned as to her capacity for work. It may indeed be that the worker was fortunate in persuading the Commissioner that she was totally incapacitated for work at any time after she was certified fit for suitable duties by Mr Frater, who was after all her treating psychologist, particularly having regard to her evidence of attempts to find work even before she saw Dr Canaris. That is nothing in point however on the question of whether there is any evidence to justify the Commissioner’s conclusion that the worker was totally incapacitated for work on a continuing basis.

17. The plain fact is that there was such evidence in the form of Dr Canaris’ report, from which I have quoted the material sections, which satisfies the criteria of “total incapacity for work”, where it is used in s 36 and s 37 of the Act, according to the explications of that term in the authorities from which I have quoted.

18. The fact that there was also a body of evidence tendered by the employer in Exhibit 4, which consisted of the medical reports of a number of practitioners, medical and otherwise, who disagree with Dr Canaris’ conclusion that the worker was and is totally incapacitated for work, is likewise not in point. I have carefully read these reports, along with all of the worker’s medical reports and the other exhibits and the transcript of the two days upon which this matter was heard before the Commissioner on 30 May 2002 (Wollongong) and 26 August 2002 (Parramatta), and certainly it is possible to say the weight of the evidence may have favoured the conclusion that the worker was partially rather than totally incapacitated for work on a continuing basis. That, as I have said, is not the question before me. The question is whether there is any evidence for the Commissioner’s conclusion that the worker is totally incapacitated on a continuing basis and as I have said, that evidence was before the Commissioner in the form of Dr Canaris’ report.

19. The employer complains in paragraph 6 of the grounds of appeal set out in Mr Stewart’s affidavit that this conclusion was reached by the Commissioner in the absence of any contemporaneous medical evidence to that effect, and also in paragraph 9 of those grounds it is asserted that the Commissioner accepted and “an out of date report of Dr Canaris” to the effect that “the applicant was totally unfit for work”. Mr Jobson did not rely on this last ground at all, but I observe in passing that the report of Dr Canaris cannot be described as out of date when it specifically contains an opinion as to capacity for work in the near future, as indeed it does where Dr Canaris says that it would take the worker a good year or two “in the best case scenario” to get back into the workforce.

20. The fact that other minds may have found this conclusion lacking in weight and unconvincing is nothing in point; the question is whether it provides any evidence with the conclusion that the Commissioner formed. I think it did. I do not think the mere fact that the worker herself gave evidence in the witness box of attempts to find work before, and for that matter after, Dr Canaris’ examination means that as a matter of law, the Commissioner was obliged to reject Dr Canaris’ conclusion. It was on that evidence quite open for example for the Commissioner to conclude, although he did not specifically articulate the matter this way, that the worker then believed herself to be capable of working in a lighter capacity but that Dr Canaris’ conclusion as an expert that she was not so capable was to be preferred.

21. One should carefully note the distinction drawn by Glass JA in Azzopardi at 156 between questions of absence of evidence for conclusions where the person complaining of a factual conclusion in his or her favour not being made carries the onus of proof of it, and such questions where the person complaining of a factual conclusion being made does not carry the onus. As Glass JA points out there, however, “the party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted, but submits that it is not capable of establishing the fact”. Applying that approach here, it is still the case in my view that Dr Canaris’ report provides expert support in the appropriate field for the Commissioner’s conclusion that the worker remains totally incapacitated for work.

22. I appreciate also that the Commissioner’s conclusion was apparently based purely on a statement in a document and was not expressed to be dependent on the demeanour of the worker or of Dr Canaris (who did not give oral evidence) as an expert, as to which see Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 and Ahmedi v Ahmedi (1991) 23 NSWLR 288, and that an appellate court is not disadvantaged compared with a trial judge in merely drawing inferences from documents: Earthline Constructions Pty Ltd v State Rail Authority of NSW [1999] HCA 3; (1999) 160 ALR 588. However Dr Canaris’ conclusion is clear and unequivocal, if on some views a little extreme, and clearly supports on its wording the Commissioner’s conclusion.

23. My conclusion is that, as I have said, there was evidence for the conclusion reached by the Commissioner that the worker was totally incapacitated for work on a continuing basis, and as this is the only basis upon which the appeal is now put by Mr Jobson for the employer, despite his earlier reliance on an alleged misconstruction by the Commissioner of s 11A of the Act, which he specifically abandoned, as noted in the transcript, the appeal must fail.

24. The appeal is dismissed and the employer must pay the worker’s costs as agreed or assessed.
Mr J A Jobson instructed by McCulloch & Buggy appeared for the appellant.
Mr P R Stockley instructed by Paul A Curtis appeared for the respondent.