ALTO FORD PTY LIMITED v ANTAW [1999] NSWCA 234 | Case summary

Held: By Sheller JA, Meagher JA and Cole AJA agreeing: (1) The conclusions of the trial Judge in holding that the incapacity arose in January 1992 and that, in so far as the s66 claim was concerned, s15(4) applied, and the deemed date of injury was the date when the further claim for loss of vision was made, were open to her Honour and were not infected by any error of law. Section 15(3) provides that total or partial loss of sight "which is of gradual onset" shall for the purposes of subsection (1) be deemed to be a disease and to be of such nature as to be contracted by gradual process. While arguably when qualified by the words "which is of gradual onset" that might be regarded as something different from total or partial loss of sight as the result of a frank injury, that was not the opinion of this Court in Bohanna. Bohanna & Appleton v Bohanna (1996) 13 NSWCCR 724 applied; (2) Section 15(1)(a) speaks of incapacity that has resulted from the injury referred to in the condition which makes the subsection applicable. Thus if the injury is the loss of vision measured in September 1991, and the incapacity is that described in March 1992, then that is the incapacity which determined fictionally when the injury happened. Williams v Metropolitan Coal Co Limited (1948) 76 CLR 431 at 449 and Arnott Snack Products Pty Limited v Yacob (1983) 155 CLR 171 at 178 referred to; (2) The trial Judge erred in law in the way in which she approached the question to be answered under s15(1)(b). This section turns on the meaning of the expression "employment to the nature of which the disease was due". This requires an examination of the relevant facts to determine if there were features of the respondent's employment by the appellant which could be distinguished from his employment by subsequent employers as a motor mechanic so as to show that the nature of the employment was different. It is irrelevant to the question of who was responsible to pay the compensation whether the deterioration of the respondent's condition was the result of any subsequent employment. The only question was whether any subsequent employment was of such a kind as to involve a risk to the employee of suffering loss of vision. Tame v Commonwealth Collieries Pty Limited (1947) 47 SR (NSW) 269 at 272 applied.

1 MEAGHER JA: I agree with Sheller JA. 2 SHELLER JA: The respondent, Brian Roy Antaw, was injured on 23 March 1976 while employed as a mechanic by the appellant, Alto Ford Pty Limited. According to the particulars of claim in these proceedings the respondent was assembling an Escort manual transmission in the appellant's workshop. He was tapping the rear shaft into the extension housing when a metallic particle struck his left eye. As a result he was left with a foreign body in his left eye. He was off work for a time and received workers compensation payments together with medical expenses. On 20 April 1978 he settled a claim under s16 of the Workers Compensation Act 1926 (the 1926 Act) for $980 in respect of a 10 per cent loss of sight of the left eye. On 5 March 1985 he left the appellant's employ. Thereafter the respondent was employed by, amongst others, at least six employers for which he worked as a motor mechanic. 3 One of these was Wyong Motors where he worked after 1987 until January 1992. He performed supervisory work of apprentice mechanics and some mechanical work. He said that at the time he was unable to see clearly at work because of some "ghosting" and double vision and that he kept over-correcting all his work and double checking. He experienced difficulty in working under a car. Further operative treatment was performed to his left eye in 1992 and payments of compensation were made in respect of that operation. 4 On 12 September 1993 he obtained employment with Brains Ford in Coonabarabran as the workshop foreman. This was apparently supervisory work and involved some mechanical testing and a degree of paperwork. He had difficulty because of the "ghosting" and thus had problems in writing. He noticed there was a gradual deterioration of his vision over a period of some four or five years. He left Brains Ford's employment on 4 May 1995. He said he was unable to see properly and found difficulty in sorting out repair orders or properly supervising other workers. 5 The respondent worked for Mac Toyota from 21 January until April 1996. That work was apparently servicing work on a casual basis. He was unable to continue because of the difficulty in focusing properly. He would rely upon touch rather than seeing the work he was doing. He continued to double check his work. After he ceased that employment he did casual work as a house painter until August 1996, when he did some motor repair work. He then did some further painting on various occasions up to 31 October 1996. Since that time the respondent has been looking for employment but without success. 6 In 1996 he filed an application for determination in the Compensation Court. In its amended form as filed on 9 July 1997 in addition to weekly compensation starting from 10 August 1993 the respondent sought a lump sum payment under s66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 40 per cent further loss of sight of the left eye, s60 expenses and a lump sum for pain and suffering under s67. The particulars of date of injury were "10 June 1976 and deemed date of injury pursuant to s15, 29 July 1996". The claim was heard by her Honour Judge Ashford who, on 3 June 1998, made an award in favour of the respondent for weekly payments of compensation from the date claimed and continuing and awarded lump sums under both ss66 and 67. She also awarded s60 expenses. 7 The appellant has appealed from this decision. The grounds of appeal relied on turn on the meaning and operation of s15 of the 1987 Act, the relevant parts of which provided as follows: "(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process: (a) the injury shall, for the purposes of this Act, be deemed to have happened: (i) at the time of the worker's death or incapacity, or (ii) if death or incapacity has not resulted from the injury - at the time the worker makes a claim for compensation with respect to the injury, and (b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due. ………. (3) Total or partial loss of sight which is of gradual onset shall for the purposes of subsection (1) be deemed to be a disease and to be of such nature as to be contracted by gradual process. (4) In this section, a reference to an injury includes a reference to a loss or impairment for which compensation is payable under Division 4 of Part 3. (4A) In this section, a reference to employment to the nature of which a disease was due includes a reference to employment the nature of which was a contributing factor to the disease." 8 The appellant made three points. The first was that compensation was not payable by it because it was not the employer who last employed the respondent in employment to the nature of which the disease was due; s15 (1) (b). The second point was, assuming the first point was not accepted, that pursuant to s15 (1) (a) for the purposes of the Act the injuries should be deemed to have happened on or before 30 June 1987 and that, accordingly, compensation under s67 was not available (Sch 6 Pt 6 cl 2) and compensation for permanent injuries should have been calculated in accordance with s16 of the 1926 Act and not s66 of the 1987 Act (Sch 6 Pt 6 cl 4). The third point was that the trial Judge, having found that incapacity arose in January 1992 and that time was the deemed date of injury pursuant to s15 (1) (a) (i), s15 (1) (a) did not permit her Honour to deem the date of injury for the purpose of s66 to be 29 July 1996. During the course of argument, at the suggestion of the Bench, counsel for the respondent seemed to accept that the award could have been upheld in reliance upon s16 of the 1987 Act. No notice of contention was filed and the point was not argued in the Compensation Court. Accordingly, I do not think the respondent can be permitted to rely upon that section in this appeal. 9 It is convenient first to deal with the appellant's second point. Mr Hislop QC, who appeared for the appellant, introduced this point by submitting that no practical purpose was to be served by applying s15 where the applicant had suffered a frank traumatic injury and there was no difficulty in identifying with precision the actual date of the injury from which the incapacity or loss arose. However, he accepted that as recently as 1996 in Bohanna & Appleton v Bohanna (1996) 13 NSWCCR 724, this Court held that where an applicant suffered a work injury to his eye in 1975 the consequence of which was that in June 1992 the eye was enucleated and a prosthesis inserted, he was entitled to be compensated under the 1987 Act. Meagher JA, with whose reasons for judgment the other members of the Court agreed, said at 729 that this was "the ineluctable result of a combination of cl 1 of Pt 6 of Sch 6, s15 and s71 of the Act." Section 71 which defined "occupational disease" to mean, inter alia, "total or partial loss of sight which is of gradual onset" (compare s15 (3)), was later in 1996 repealed but this is of no consequence to the conclusion. 10 However, Mr Hislop submitted that there was evidence to establish a deemed date of injury pursuant to s15 (1) (a) before 30 June 1987. The respondent had been incapacitated for work in 1976 immediately after the injury, and again at the time he left the appellant's employment. The arguments for the respondent and the appellant are neatly summarised in Judge Ashford's reasons for judgment at 10-11 as follows: "Counsel for the applicant submits that the present claim is a further loss case and that the question to be determined turns not on the application of the now repealed section 71 but on the application of the transitional provisions which only imported a definition from that section, stating Bohanna had been decided when the law included not only the transitional provisions but also section 71. He further submits that in so far as section 66 is concerned, the medical evidence shows that in September 1991 the applicants vision in his left eye had deteriorated to the extent of a further 15% over and above that paid under section 16 in 1978, that however being before further surgery occurred, the loss of vision now being 50% giving rise to a claim for a further 40% loss. A claim in that sum was duly made on 29 July 1996 thus it is contended that this is the deemed date of injury, or in the alternative January 1992 when he ceased with Wyong Motors. It is however submitted by Counsel for the respondent that the evidence establishes quite clearly that the applicant suffered incapacity immediately after injury and that at the time he left the employ of the respondent in 1985 he continued to have an incapacity. In the absence of continuing further physical injury the respondent contends it is incongruous to have more than one date of injury against the respondent with the date of injury being the date of the frank trauma and on the facts therefore all possible dates of injury relating to the respondent predate June 1987." 11 The respondent submitted at trial that there was no incapacity until the time his gradual loss of vision had progressed to a point where he was unable to carry out pre-injury employment. This either occurred in January 1992 when he left the employ of Wyong Motors or in August 1993 when the weekly payments of compensation ceased. As at January 1992 he said he was unable to see clearly at work because of some "ghosting" and "double vision" and that he was overcorrecting his work and double checking and at that time had difficulty in working under a car. He submitted that having regard to s15 (1) and (3) the injury was deemed to have occurred at the time the incapacity presented itself or at the time he made a claim for compensation with respect to the injury. Her Honour said at 12: "This argument is on the premise that the incapacity for which it is sought to be compensated results not from the actual entry into the applicant's eye of a foreign body in 1976 but the subsequent gradual loss of vision which is deemed to be a disease contracted by a gradual process. Thus the applicant submits that section 15 must be applied to determine the date and it cannot be said that the time of incapacity was 1976 which was the date of frank injury." 12 In her Honour's view the incapacity arose in January 1992 when the respondent left the employ of Wyong Motors and that time was therefore the deemed date of injury pursuant to s15 (1) (i). Her Honour went on to say that in so far as the s66 claim was concerned, s15 (4) applied, and the deemed date of injury was the date when the further claim for loss of vision was made, that date being 29 July 1996. 13 In my opinion, both these conclusions were open to her Honour. They were not infected by any error of law. Section 15 (3) provides that total or partial loss of sight "which is of gradual onset" shall for the purposes of subsection (1) be deemed to be a disease and to be of such nature as to be contracted by gradual process. There was evidence which the trial Judge accepted that from 1976 the respondent had gradually, but only partially, lost his sight. To take the extremes, a 10 per cent loss of vision in 1978 had become a 25 per cent of vision of the left eye for uncorrected vision by 1991 and a 50 per cent loss of uncorrected vision of the left eye by 1997. 14 Mr Hislop submitted that the word "onset" meant a beginning or start and that accordingly that occurred at the date of the frank injury. But subsection (3) is directed to a condition of "total or partial loss of sight". While arguably when qualified by the words "which is of gradual onset" that might be regarded as something different from total or partial loss of sight as the result of a frank injury, that was not the opinion of the Court in Bohanna. 15 Subsection (4) provides that in s15 a reference to an injury includes a reference to a loss or impairment for which compensation is payable under Div 4 of Pt 3. Loss of vision is such a loss; see s66 and the Table to Div 4 of Pt 3 therein referred to. The combined effect of subs (3) and (4) means that the condition for the application of subs (1) of s15 is met. The respondent suffered an injury within the meaning of s15, namely, loss of vision which was a disease which was of such a nature as to be contracted by a gradual process. Accordingly, the injury is, for the purposes of the Act, if incapacity has resulted, and since the respondent is alive, deemed to have happened at the time of incapacity; s15 (1) (a) (i). Her Honour found that this incapacity occurred, other than for the purpose of s66, in 1992 and for the purpose of s66 in 1996. I shall return to deal with the question raised by the appellant as to whether there could be different dates of incapacity depending upon the nature of the claim. The appellant submitted that incapacity must have occurred, at latest, at the time the respondent left the appellant's employment in 1985. It is submitted that the existence of incapacity is not dependent upon the existence of economic loss. 16 In Williams v Metropolitan Coal Co Limited (1948) 76 CLR 431 at 449 Dixon J said: "It is a 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 s11 (1) [of the 1926 Act; compare s40 (1) and (2) of the 1987 Act] 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." 17 In Arnott Snack Products Pty Limited v Yacob (1983) 155 CLR 171 at 178 Mason, Wilson, Deane and Dawson JJ, after referring to Dixon J's dictum, among others, said: "It follows that the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employees was working or might reasonably be expected to work. Under s11 (1) [of the 1926 Act], an applicant's entitlement to compensation will depend on his loss of earning power. This flows, not from the concept of partial incapacity for work, but from the nature of the express limitation which the subsection places on the amount of compensation payable." 18 Section 15 (1) (a) speaks of incapacity that has resulted from the injury, that is to say the injury referred to in the condition which makes the subsection applicable. Thus, if the injury is loss of vision measured by Dr Higgins in September 1991, and the incapacity is that described by Dr Higgins in March 1992 when he said that the respondent found himself unable to work on motor vehicles, then that is the incapacity which determined fictionally when the injury happened. That must have been after 30 June 1987. This ground of appeal fails. 19 This brings me back to the appellant's first point. It turns upon the meaning of the expression "employment to the nature of which the disease was due". In Tame v Commonwealth Collieries Pty Limited (1947) 47 SR (NSW) 269 at 272 Jordan CJ said: "The meaning of the phrase 'employment to the nature of which the disease was due' is explained in Blatchford v Staddon [1927] AC 461 at 470. 'This part of the section is not concerned directly with something arising out of the particular service of the particular employer sued, but with results which are incidental to the class of employment, in which the workman has served several employers.' It is not necessary that the presence, or some aggravation, of the disease should be in some degree due to service with the last employer. I think that 'employment to the nature of which the disease was due' means an employment of such a kind as to involve a risk to the employee of contracting the gradual process disease which is disabling him." 20 It is not difficult to imagine simple examples such as the Court confronted in that case. An employee complains of a disease contracted by the gradual process of the inhalation of silica dust. Compensation is payable by the employer who last employed the worker in employment of a kind as to expose him to the risk of inhaling silica dust. As was pointed out, the example emphasises that the section is primarily directed to diseases not the result of a frank injury. In the present case, absent any evidence of this, it is difficult to conceive that employment as a motor mechanic is employment of such a kind as to involve a risk to the employee of suffering a loss of vision. However, that must be so or the subsection could not work. If the answer is that the employment is not of such a kind then the appellant itself is not an employer by whom compensation is payable pursuant to s15 (1) (b). 21 Of course, an examination of the relevant facts may demonstrate that there were features of the respondent's employment by the appellant which could be distinguished from his employment by subsequent employers as a motor mechanic so as to show that the nature of the employment was different. This is a matter that the trial Judge did not investigate. Her Honour said on this question at 16: "The respondent's submission that all employers post employment with the respondent were 'employment to the nature of which the disease was due' would not in my view provide a requirement that all other employers be joined as parties to the claim. There was a frank injury in the employ of the respondent. There was further employment in work as a mechanic with other employers but in the main subsequent employment was of a supervisory or clerical nature. It appears from the medical evidence that regardless of whom the applicant engaged in employment there would be deterioration of his eyesight noting the foreign body to still be retained and whilst there was deterioration of the applicant's condition it does not appear to be as a result of any subsequent employment, none of which seems to have caused the existence or acceleration of the 'disease'." 22 With due respect to her Honour it was irrelevant to the question of who was responsible to pay the compensation whether the deterioration of the respondent's condition was the result of any subsequent employment. The only question, as Jordan CJ pointed out, was whether any subsequent employment was of such a kind as to involve a risk to the employee of suffering loss of vision. I do not think, again with due respect, that this question is answered by saying that the further employment in work as a mechanic with other employers was "in the main" of a supervisory or clerical nature. 23 Accordingly, on this point the appellant succeeds. Her Honour erred in law in the way she approached the question to be answered under s15 (1) (b) and accordingly the matter must be remitted to the Compensation Court to redetermine the question according to law. 24 I now come to the third point raised by the appellant. Having considered argument about when the incapacity arose her Honour said at 13 "in my view the incapacity arose in January 1992 when the applicant left the employ of Wyong Motors and that time is therefore the deemed date of injury pursuant to s15 (1) (i)". Subject to the arguments with which I have already dealt the appellant does not otherwise challenge this conclusion. However, the trial Judge went on to say: "In so far as the s66 claim is concerned, s15 (4) applies, and the deemed date of injury is the date when the further claim for loss of vision was made."

ALTO FORD PTY LIMITED v ANTAW

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Judgment (23 paragraphs)

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