Belmont Night Patrol Pty. Ltd. v. Woolworths Ltd. & Anor. [2004] NSWCA 235

LOWER COURT Compensation Court JURISDICTION : LOWER COURT CC55046/00 FILE NUMBER(S) : LOWER COURT Hughes CCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40163/03 CC 55046/00

HODGSON JA TOBIAS JA McCOLL JA

Wednesday 14 July 2004 BELMONT NIGHT PATROL PTY. LTD. V. WOOLWORTHS LTD. & ANOR. Judgment 1 HODGSON JA: On 12 February 2003, Hughes CCJ found that the second respondent (Mr. Matoka) was entitled to a continuing award of compensation on the basis of total incapacity, and the sum of $5,000.00 in respect of a further 5% permanent impairment to his back. He ordered that the appellant (Belmont) pay the sum of $5,000.00 and that the amount of weekly compensation and medical expenses be borne equally by Belmont and the first respondent (Woolworths). Belmont appeals by leave against the orders that it pay the sum of $5,000.00, and one half the weekly compensation and medical expenses: it does not in the appeal challenge the findings concerning Mr. Matoka's entitlement to compensation.

CIRCUMSTANCES 2 Mr. Matoka was born in 1970. He commenced employment with Woolworths in 1989 as a storeman, and continued in that employment until October 1999. 3 During his employment with Woolworths, Mr. Matoka suffered a number of injuries to his back and left leg. In 1989, he suffered an injury to his lower back and left leg carrying a television set at work: he complained of back pain but did not seek medical attention or take time off work. In 1993 or 1994, he suffered another such injury, lifting a gymnasium set: he consulted a doctor at Maitland Hospital and had two or three weeks off work. In 1996, he suffered an injury to his back lifting a box of camping equipment: he consulted Dr. Chun and had about four weeks off work. On 4 September 1997, he suffered an injury to his back and leg, when his left foot was run over by a forklift truck. 4 After the last injury, he was off work until about January 1998. He then returned to work as a check-out operator, working about four hours a day for four days a week. 5 There is in evidence a report dated 4 March 1998 from Professor Ghabrial, based on an examination of Mr. Matoka on that day. The report expresses the following opinion: Mr. Matoka sustained an injury to his lower back in 1992 with aggravations in 1995, 1996 and 1997. Clinical assessment and investigations suggested injuries to the lower lumbar region with an aggravation of his degenerate discs at the T11/12 and L2/3 segments.

He sustained an injury to his left foot as described earlier in my report on the 4th September 1997.

It is highly likely that he will continue with his present disabilities and remains unfit for activities involving climbing ladders, going up and down stairs excessively or running. He is not fit for activities involving heavy lifting and excessive bending indefinitely.

The permanent impairment of the back is assessed at 20%. The permanent loss of the efficient use of the left lower limb at or above the knee taking into consideration any loss below the knee is assessed at 15%. The permanent loss of the efficient use of the left foot is assessed at 40%.

From the history given to me by Mr. Matoka, I believe that his present clinical features, residual disabilities and permanent impairment are the result of his injuries as stated earlier in my report to the back and left foot. I believe that the condition has stabilised and future complications are highly unlikely. 6 A certificate of conciliation outcome dated 12 October 1998 records settlement of claims by Mr. Matoka against Woolworths for a 15% permanent impairment of the back, 30% permanent loss of efficient use of the left foot, and in addition $17,500.00 for pain and suffering. 7 Mr. Matoka continued to work with Woolworths until October 1999, by which time he was working about four or five hours a day for four or five days a week, still as a check-out operator. He was dismissed at this time following a period of incapacity associated with an intestinal disorder. 8 Following that dismissal, he was paid weekly compensation by Woolworths until his employment with Belmont commenced on 1 August 2000. 9 There is in evidence a report dated 29 March 2000 from Dr. Pacey based on a consultation with Mr. Matoka on 20 December 1999. Dr. Pacey expressed the opinion that "Mr. Matoka suffers with low back pain and foot pain following work related incidents", but expressed the view that he was fit for work, though not for heavy work and heavy lifting. Dr. Pacey expressed the opinion that he suffered a 15% permanent impairment of the back. 10 Mr. Matoka was referred to a rehabilitation specialist and obtained a security licence. After a work trial, he obtained employment with Belmont, commencing on 1 August 2000. His employment with Belmont involved driving, getting in and out of the patrol car, and walking around buildings. He experienced pain in his back, ankle and feet while doing that work. In his evidence before the primary judge, Mr. Matoka said initially he started off working around thirty-five or forty hours per week, but in the latter part of his employment, he was working up to sixty hours per week; and that during the period he was working those long hours, he started getting more trouble, firstly in his back and then in his foot. 11 Mr. Matoka ceased work with Belmont in December 2000. Belmont paid compensation on the basis of total incapacity, in response to a claim by Mr. Matoka that he aggravated his back condition while working for Belmont. Those payments were made until 29 September 2001, and then they stopped. 12 There are in evidence many other medical reports. Some do not bear on the question of causation of Mr. Matoka's problems, but a number of them do, and I will refer to them briefly. 13 There is another report from Professor Ghabrial dated 2 August 2000 based on an examination of Mr. Matoka on that date. This report expresses similar views to the previous report, but assesses the permanent impairment of the back at 25%. 14 Next, the first relevant report following Mr. Matoka's employment by Belmont is a report from Dr. Berry, a specialist general surgeon, dated 24 March 2001, based on a consultation of that date. This report recorded among other things Mr. Matoka's employment as a security guard, and recorded that this work stopped in December 2000 because the hours were increased to ten to twelve hours a day and he could not cope. Dr. Berry expressed the following opinion: This patient has a history of sustaining multiple back injuries and also a crush injury to the left foot as described in the history. Clinical examination today shows a very solidly built man with a stiff tender back and partial amputation of the left 2nd toe and stiffness of the other toes of the left foot. His history and clinical findings are consistent with the stated injury. I would be of the opinion that the patient has a chronic musculo-ligamentous strain to the back and a crush injury to the left foot. He also has referred pain into both legs as a result of his back injury. I would therefore consider that his frank injuries represent substantial contributing factors to his present condition. 15 Next, there is a report dated 7 June 2001 by Dr. Nade, based on an examination of Dr. Matoka on the same date. This report also notes the history of work for Belmont, and notes a claim by Mr. Matoka that the hours he was required to work for Belmont aggravated his back problem. However, Dr. Nade expressed the following opinion: In my opinion Mr. Sam Matoka has lumbago of unknown cause.

The genesis of his symptoms appeared to relate to three separate work related accident while he was in the employ of Big W.

He does not appear to have had any specific injury while in the employ of Belmont Night Patrol Pty. Ltd. He claimed that his symptoms were aggravated by being asked to work for 10 to 12 hours at a time, rather than 4 to 5 hours, recommended by his general medical practitioner.

However, in my opinion, hours of work should not be considered a work related accident or injury.

The symptoms affecting his left foot are a consequence of injury sustained while in the employ of Big W. …

Compared with the most extreme case, I assess that Mr. Matoka has 10% impairment of his back.

It is my opinion that such impairment relates to injuries sustained while he was employed by Big W. I am unaware of any incident which occurred during his employment by Belmont Night Patrol, which caused or aggravated his symptoms. 16 There was also in evidence a report from Dr. Russo, a consultant in pain medicine, dated 30 November 2001, recording that Mr. Matoka was last seen on 20 August 2001. This report recorded that Mr. Matoka had re-commenced Celebrex medication, and found that it had eliminated his previous complaints, and that "the only current complaint was first thing in the morning when he wakes up and is stiff and has some degree of low back pain which is relieved by going under a hot shower". 17 There is a report dated 24 July 2002 from Dr. Wilding, an orthopaedic surgeon, based on a consultation of that date. Dr. Wilding records the history of employment with Belmont, and records Mr. Matoka's statement that he did not have any accidents affecting his back during that employment, but said that his back was aggravated by frequently having to get in and out of his car. Dr. Wilding expressed the following opinion: Mr. Matoka complained of continuing low back pain when I saw him today. The history has been noted above.

His lower back symptoms are due to the underlying degenerative change in the lumbar spine.

Whilst getting in and out of a patrol car may have temporarily aggravated the degenerative changes in his lower back I consider the effects of any work related aggravation with Belmont Night Patrol Pty. Limited has ceased. I do not consider that his employment there caused the degenerative changes nor do I consider that his employment there has accelerated the degenerative changes.

Mr. Matoka claims that his symptoms are now much worse than when he ceased employment with Woolworths. One is entirely reliant on Mr. Matoka's history regarding the deterioration of his symptoms.

He is fit for light duties which do not involve prolonged stooping or bending or heavy lifting. 18 There is a further report from Dr. Ghabrial dated 23 October 2002, based on a consultation of that date. This report does not record the history of employment with Belmont, and expresses the following opinion: Mr. Matoka sustained an injury to his lower back in 1992 with multiple aggravations during the course of his employment. The latest aggravation was in 1997. He sustained as well an injury to the left foot on the 4th September 1997. He recently developed right knee pain (for the past 2 - 3 months). I believe the right knee pain is the result of his altered gait due to his left foot injury.

I believe that his clinical features, residual disabilities and permanent impairment regarding the back and the lower limbs are the result of his injuries sustained to his back in 1992, 1995, 1996 and 1997 as well as to his left foot in September 1997.

He is not fit for activities involving heavy lifting, excessive bending and twisting as well as activities involving any running, climbing ladders, going up and down stairs excessively, walking on uneven grounds, standing for lengthy periods or walking for long distances.

The permanent impairment of the back is assessed at 30%. The permanent loss of the efficient use of the left lower limb at or above the knee taking into consideration any loss below the knee is assessed at 15%. The permanent loss of the efficient use of the left foot is assessed at 40%. The permanent loss of the efficient use of the right lower limb at or above the knee is assessed at 5%. 19 Finally, there is a report from Dr. Pacey, a rehabilitation specialist, dated 28 November 2002, based on a consultation of the same day. This report refers to the work between August and December of 2000, and Mr. Matoka's statement that he was forced to work many more hours per week and was unable to continue with the work because of symptoms of pain. It recorded a statement by Mr. Matoka that his low back pain was becoming worse. Dr. Pacey's assessment was that "Mr. Matoka continued to suffer with low back pain as a result of work-related incidents". Her view was that he was currently unfit for work because of his pain experience.

DECISION OF PRIMARY JUDGE 20 The primary judge identified medical reports before him, referred briefly to the history of the matter, and continued: 4. He apparently was successful in his work trial and Belmont took him on as a full-time employee. This involved him driving around to various business premises, getting out of a car, checking that the doors were locked, that the place was secured or locked and then getting back in the car. He said it required him some thousands of clutching and de-clutching with his left leg in the manual car that he was driving. Mr McManamey finds this to be significant since there is no claim for a further permanent impairment of his left leg.

After some time working at about 40 hours a week Mr Matoka was asked to work 60 hours a week. This became too much for him physically and he just stopped working. It was put to me by Mr McManamey that if any aggravation of his previous injuries were caused by his work with Belmont Night Patrol it was temporary, that was his first basis; and secondly, if it was not temporary but permanent, it was only to a small degree, and I should have regard to the fact that there was not an increased claim for his left leg.

This claim largely depends on what regard I have as to Mr. Matoka's credit. I found Mr Matoka to be a truthful person. He is, as he said, not very good at reading and writing. He has done manual work for most of his life. Clerical work is not the type of job that would be available to him. He said that after his work with Belmont Night Patrol he could not continue doing manual work and in fact Mr Edwards submits that he is for all relevant purposes totally disabled.

Mr Edwards pointed to the range of jobs that Professor Ghabrial says that the applicant should avoid. Professor Ghabrial says in a report of August 2000 and then again in a report of 2 October 1992: He is not fit for activities involving heavy lifting, excessive bending and twisting as well as activities involving any running, climbing ladders, going up and down stairs excessively, walking on uneven ground, standing for lengthy periods or walking for long distances.

In my opinion then and as I said, I accept Mr Matoka as a witness of truth.

I find that he came after he left Woolworths from being a man who could work five hours a day, five days a week to a man who effectively is totally unable to work as a result of his work with the second respondent. Mr McManamey points out that his treating doctor says he should be available for some work. It is hard to find what kind of work that he could do that did not involve the activities that Professor Ghabrial says he can no longer do. The Court of Appeal, and I think it was a result of an earlier judgment where one of the judges, I think it might have been Judge Maroney, said that even a person in an iron lung has some capacity for work. That is not the test according to the Court of Appeal and nor should it be. It is a test of, taking all things into consideration, is it realistic this man could do any work?

First, I was thinking that there was some job that he could do, maybe getting $100 a week, but I find it difficult in the market readily available to him for a man with the skills that he does have, for him to do any job, and I find that he is effectively totally disabled for work.

Now turning to s.66 there is a claim for an increase in the award pursuant to the applicant's back of 5 per cent. I find that that is a result of his work with the second respondent. As to the apportionment between the first and second respondents, as I mentioned earlier I believe that when he left the employ of Woolworths he was capable of earning, or working at least as a check-out operator for some five hours a day, four days a week, and afterwards I find him to be totally incapacitated for work and I find the apportionment of quantum for compensation of weekly payments to be 50/50 to both employers.

GROUNDS OF APPEAL 1. His Honour erred in law when he found that the Second Opponent suffered a 5% permanent impairment of the back as a result of his employment with the Appellant when there was no evidence before him that supported that conclusion.

His Honour erred in law when he failed to give reasons that explained why he concluded that employment with the Appellant caused a 5% permanent impairment of the back when the medical opinion before him attributed the impairment to injuries suffered with the First Opponent.

His Honour erred when he apportioned liability for weekly payments 50/50 to both employers when there was no evidence before him that attributed any of the workers incapacity to injury occurring in the employ of the Appellant.

His Honour erred in law when he failed to give adequate reasons to explain how he apportioned liability for weekly payment 50/50 when the expert evidence before him attributed incapacity solely to injury with the First Opponent.

His Honour erred in law when he failed to consider the worker's evidence that the cause of his continuing problems at this time were the injuries suffered with the First Opponent.

His Honour erred in law when he failed to consider the worker's evidence that as at August 2001 his only complaint was that in the mornings he would wake up stiff and have some degree of back pain relieved by having a hot shower.

His Honour erred in law when he failed to consider the worker's evidence that his back condition became worse after he left the employ of the Appellant.

SUBMISSIONS 21 Mr. McManamey for Belmont referred to evidence given by Mr. Matoka before the primary judge. 22 First, he referred to his evidence in chief that, when he was working for Belmont eleven hours a day, his back was getting really sore, and there was severe pain in his ankle and foot as well; and that when he stopped working there he got worse. He then referred to the following questions and answers in cross-examination on behalf of Woolworths: Q. Then in the latter part of your employment you were in fact working, or they asked you to work and you were working up to 60 hours per week. Is that not so. A--Yes. Q. Now during that period that you were working those long hours for them I think what you told the court is that you started getting more trouble, firstly in your back. A---Yes. Q. Then your foot. A---Yes. Q. I think what you have told his Honour is that it was made definitely worse during that employment as far as your back and your left foot were concerned to the point where you felt you could not continue. Is that so. A---Yes. Q. I think you have told the court that that work made it worse and in fact it has never got any better. A.---Yes. 23 Finally, he referred to questions and answers from his cross-examination of Mr. Matoka on behalf of Belmont, including the following: Q. What I am suggesting to you is is that when you really injured and hurt yourself was at Woolworths. A---Yes. Q. You have had problems ever since being at Woolworths. A---Yes, sir. Q. As far as you are concerned the cause of your continuing problems at this time is the injuries you suffered at Woolworths. A---Yes, sir. 24 Mr. McManamey submitted that the primary judge's acceptance of Mr. Matoka as a truthful witness did not indicate what he drew from that evidence, and could not establish a contribution from the employment with Belmont to the causation of Mr. Matoka's back and other problems. The only medical evidence going to the issue was to the effect that employment with Belmont did not contribute to Mr. Matoka's back problem and other problems. Mr. McManamey submitted there was no evidence before the primary judge supporting an inference that the effect of Mr. Matoka's work with Belmont continued beyond September 2001, much less that it contributed to permanent impairment. Alternatively, if there was evidence on which that inference could be drawn, the judgment was deficient in reasons in circumstances where all the medical evidence was one way, and was not referred to. 25 Mr. Morris for Woolworths submitted that Mr. Matoka was not challenged concerning the symptoms he reported as occurring during his work with Belmont, nor in respect of his incapacity for work during the period when Belmont paid compensation. Even Belmont's medical evidence supported at least temporary aggravation of Mr. Matoka's back. Mr. Morris submitted that the primary judge had made appropriate findings, and had accepted that Mr. Matoka had the capacity to work before his employment with Belmont and now no longer had that capacity; and it was open for him to infer that this was contributed to by his employment with Belmont. 26 Mr. Morris referred to MMI Workers Compensation (NSW) v. Kennedy, NSWCA, 17/9/93 in support of the proposition that such a lay history can support an inference of causation, particularly by a specialist tribunal such as the Compensation Court. He also referred to Soulemezis v. Dudley (Holdings) Pty. Ltd. (1987) 10 NSWLR 247, and submitted that, particularly in circumstances where there was no appeal on questions of fact, the primary judge's reasons were adequate. Mr. Morris also submitted that the evidence of Dr. Pacey, referring to causation by work-related incidents, supported a conclusion that the work with Belmont contributed to Mr.Matoka's impairment.

DECISION 27 In my opinion, there was cogent medical evidence to the effect that the employment with Belmont did not contribute to Mr. Makota's permanent impairment and ongoing incapacity. In my opinion, even the report of Dr. Pacey, referring to "incidents", points to the events with Woolworths because there was no suggestion of any relevant "incident" in connection with the employment with Belmont. There was no medical evidence supporting a finding that the employment with Belmont contributed to the permanent impairment and ongoing incapacity. This body of medical evidence was important evidence in the case, and plainly it was evidence which the primary judge should have considered. The question is whether it was an error of law by the primary judge, arising from failure to give reasons, where he did not refer to this evidence or otherwise explain why, in the face of that evidence, he reached the opposite conclusion. 28 In my opinion, the following passage from Mifsud v. Campbell (1991) 21 NSWLR 725 at 728 is pertinent: In Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, the High Court (at 667) said that it was right to describe the giving of reasons as "an incident of the judicial process" although a normal but not a universal one. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA (at 278) makes some comments upon that holding, and goes on to say (at 281) that the failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done.

Similarly, in my opinion, it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.

Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge - as the defendant's denial of having consumed alcohol - may promote a sense of grievance in the adversary and create a litigant who is not only "disappointed" but "disturbed" - to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mistrial and resulted in what I would take to be an error of law which is reviewable on appeal. Whether it is an error of law or an error of fact, it seems to me a failure by the judge to do what the nature of the office requires. 29 Thus, it is not necessary to refer to every relevant piece of evidence. If the reason why a judge reached a conclusion can be understood from the circumstances and from what has been said and has not been said, a failure to refer to particular pieces of evidence will not be an error of law. However, in this case, as I have said, there was no expert evidence explicitly supporting causation by employment with Belmont, and there was powerful medical evidence to the contrary. Mr. Matoka's evidence supported a finding of increased symptoms due to the work with Belmont, but his evidence was also to the effect that he continued to get worse after the work with Belmont stopped. 30 I would not accept Mr. McManamey's submission that the evidence in the case could not possibly support an inference of causation. On the basis of Kennedy, in my opinion such an inference could be drawn. However, this case is unlike Kennedy in that there were frank incidents occurring to the worker during the relevant employment in that case, and the medical evidence was silent on causation. In the present case, there were no frank incidents, and the medical evidence is against causation. In the present case, in my opinion it was necessary to refer to the explicit evidence as to causation, if that evidence was to be rejected; and the failure to do so does amount to such a deficiency of reasons as to constitute an error of law.

CONCLUSION 31 Accordingly, the appeal should be upheld. It is necessary to send the matter to the District Court to be further dealt with. It was submitted for Mr. Matoka that the issue should be limited to who was to pay for the additional impairment and his continuing compensation; but in my opinion it is not possible to limit the issues to that extent. It will be open both to Woolworths and to Belmont to contend that the employment with each of them did not contribute to an additional 5% impairment of the back. Accordingly, in my opinion the following orders should be made: 1. Appeal allowed. 2. Orders below set aside. 3. Matter remitted to the District Court for further consideration. 4. First respondent to pay the costs of the appellant and the second respondent of the appeal, and to have a Suitors Fund certificate if otherwise qualified. 32 TOBIAS JA: I agree with Hodgson JA. 33 McCOLL JA: I agree with Hodgson JA. **********

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