Belmont Night Patrol Pty Ltd v Woolworths Ltd & Anor

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Belmont Night Patrol Pty Ltd v Woolworths Ltd & Anor [2004] NSWCA 235 Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited [1983] 3 NSWLR 378 CASES CITED: Mifsud v Campbell (1991) 21 NSWLR 725 MMI Workers Compensation (NSW) v Kennedy (1993) 9 NSWCCR 482 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 Wallaby Grip Ltd & Anor v Peirce & Ors; James Hardie & Co Pty Ltd v Peirce [2000] NSWCA 299; (2005) 24 NSWCCR 193.

Belmont Night Patrol Pty Limited - Appellant PARTIES: Woolworths Limited - First Respondent Sam Matoka - Second Respondent

B McManamey - Appellant COUNSEL: P Morris - First Respondent C Hart - Second Respondent

Hunt & Hunt - Appellant SOLICITORS: Moray & Agnew - First Respondent Bale Boshev & Associates - Second Respondent

• 1 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40433/05 CC 55046/00

GILES JA IPP JA McCOLL JA

Wednesday 24 May 2006 BELMONT NIGHT PATROL PTY LTD v WOOLWORTHS LTD & ANOR Judgment

3 McCOLL JA: Belmont Night Patrol Pty Ltd appeals from a judgment of Hughes DCJ delivered on 28 April 2005 (the "2005 judgment") in which his Honour confirmed an order he had made on 12 February 2003 when a judge of the Compensation Court of New South Wales (the "2003 judgment"). In the 2003 judgment his Honour had found Sam Matoka, the second respondent, was entitled to a continuing award of workers compensation on the basis of total incapacity from employment and the sum of $5,000 in respect of a further five percent permanent impairment to his back. He had ordered the appellant to pay the sum of $5,000 and contribute equally with Woolworths Ltd, the first respondent, to the weekly compensation and medical expenses to be paid to the second respondent.

4 The appellant appealed from the 2003 judgment to this Court which allowed the appeal on the basis that the primary judge had failed to give adequate reasons for his conclusion and his failure to do so constituted an error of law: Belmont Night Patrol Pty Ltd v Woolworths Ltd & Anor [2004] NSWCA 235 (the "first appeal"). The Compensation Court having been abolished on 1 January 2004, the matter was remitted to the primary judge in the District Court for further consideration: s 7(4), Compensation Court Repeal Act 2002

5 Belmont now seeks to have the 2005 judgment set aside and an order that the matter be remitted for further consideration. Its appeal is confined to error of law: Compensation Court Repeal (Transitional) Regulation 2003, cl 8(2)(a).

6 The factual background is fully set out in the judgment in the first appeal. It can be stated briefly.

7 Woolworths employed the second respondent from 1989 until October 1999. During that employment he suffered a number of frank injuries in respect of which he claimed workers compensation. That claim was settled, as at 12 October 1998, by a Certificate of Conciliation certifying that he had a 15 percent permanent impairment of his back, a 30 percent permanent loss of efficient use of his left foot and was entitled to an amount for pain and suffering.

8 Woolworths dismissed the second respondent in October 1999, but paid him weekly compensation until he commenced employment with the appellant on 1 August 2000 as a night patrolman, a job which involved driving, getting in and out of a patrol car and walking around buildings. While he was doing that work he experienced pain in his back, ankle and feet. He gave evidence before the primary judge that the hours he was required to work increased from 35 to 60 hours per week and that while he was working longer hours he started to get more trouble, first in his back and then in his foot. He stopped working for the appellant in December 2000. The appellant paid him compensation on the basis of total incapacity in response to a claim that he had aggravated his back condition while in the appellant's employ. The payments were made until 29 September 2001 when they ceased: see first appeal judgment at [10] - [11]. The 2003 judgment

9 In the 2003 judgment, the primary judge identified the medical reports before him, referred briefly to the history of the matter, and said: "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." The Court of Appeal's First Judgment

10 The Court of Appeal upheld the first appeal because Hodgson JA (with whom Tobias and McColl JJA agreed) concluded (at [27], [29]) that: (a) there was medical evidence to the effect that the second respondent's employment with the appellant did not contribute to the second respondent's permanent impairment and ongoing incapacity; (b) there was no medical evidence supporting a finding that the second respondent's employment by the appellant contributed to his permanent impairment and ongoing incapacity; (c) the primary judge had erred in law in failing to give reasons as to why he rejected the medical evidence referred to at (a) above.

11 The Court rejected counsel for the appellant's submission that the evidence could not possibly support an inference of causation holding (at [30]) that MMI Workers Compensation (NSW) v Kennedy (1993) 9 NSWCCR 482 supported the proposition that causation could be inferred from a lay history, particularly in a specialist tribunal such as the Compensation Court.

The 2005 judgment 12 In his 2005 judgment the primary judge noted he had been "asked" by the Court of Appeal to reconsider his 2003 judgment because of insufficiency of reasons. He set out the history of the second respondent's employment with Woolworths and the appellant, then observed (at [7]): "It has long been held that the 'nature and condition' of employment can cause injury to a worker as it undoubtedly can due to a 'frank' incident."

13 He referred (at [8]) to "following" MMI Workers Compensation (NSW) v Kennedy and said: "I am satisfied that the 'nature and condition' of Mr Matoka's employment with Belmont permanently aggravated Mr Matoka's back condition to the extent that he changed from a worker who was partially incapacitated to one who was totally incapacitated."

14 He then set out paras [4] and [5] of his 2003 judgment and said (at [10]): "The inference I drew is that getting in and out of the manual patrol car must involve bending and twisting which is contra-indicated by Professor Ghabrial. The frequency of this activity must increase the longer the hours worked. The nature of the job was such as to require him to visit many premises in a shift."

15 After noting that the cause of the second respondent's increased symptoms had been noted in the medical reports and his oral evidence, the primary judge posed the question whether the "elevations of symptomatology [were] due to his work with Belmont Night Patrol, or was it merely a continuation and naturally occurring worsening of the symptoms that were caused by the initial incident at Woolworths?" [sic].

16 He referred to his 2003 conclusion (which he described as perhaps having been reached "rather simplistically"), then noted (at [12]) that the second respondent was partially incapacitated when he commenced employment with the appellant, but was effectively totally incapacitated after that employment ceased. He then turned to consider whether that change in the second respondent's condition was "due to the arduous nature of his work" with the appellant.

17 He noted (at [15]) the second respondent's evidence about the nature of his work as a night patrolman and, in particular, its repetitive nature and lengthy hours. He referred to Professor Ghabrial's opinion of 4 March 1998 that the second respondent was "not fit for activities involving heavy lifting and excessive bending indefinitely", and observed (at [16]) that "getting in and out of a car does involve bending and twisting".

18 The primary judge referred to a report by a Dr Pacey dated 28 November 2002 which concluded: "Mr Matoka continues to suffer with low back pain and foot pain as a result of work related incidents …". (emphasis added)

and said (at [23]) that he took: "… work related incidents , since it is post the Belmont Night Patrol, to include the pain he suffered as a result of getting in and out of the car." (emphasis added)

19 He then referred to Dr Berry's report of 24 March 2001 which recorded: "He came under the care of a rehabilitation group; he was then employed as a security guard, he stopped this in December 2000 because his hours were increased from four to five hours a day to ten to twelve hours and he could not cope."

and said (at [25]): "That does not help us entirely with causation. However, added together with the other report it does go to the original inference I drew that … the increased hours and the nature of the work with Belmont made a man who was able to work part-time, indeed five to six hours for Belmont, into one who was unfit for all work ." (emphasis added)

20 His Honour then referred, almost in passing, to Dr Nade's report which he described as "consistent with the other reports", then set out a paragraph from the history recorded by Dr Nade.

21 Finally he referred to a report from Dr Wilding dated 24 July 2002. After referring to the history Dr Wilding had recorded that the second respondent had said during his employment by the appellant "he did not have any accidents affecting his back but … that his back was aggravated by frequently having to get in and out of his car", the primary judge said (at [28]): "Dr Wilding rejected that the increase in the pain getting in and out of the car was an aggravating factor. However, as I said, I accept the plaintiff's view. I accept that there was an aggravation of pain due to his work with Belmont Night Patrol . Furthermore, according to the increase in the permanent impairments post the employment with Belmont Night Patrol, taken sometime 2 or 3 years later, it appears to be permanent." (emphasis added)

22 It is not entirely clear what his Honour's reference to accepting the plaintiff's "view" was. It may be it was a reference to paras [6] and [8] of the 2003 judgment as he had not expressed such an opinion by this stage of the 2005 judgment. He did, however, say (at [29]) that he found the second respondent to be "a perfectly honest witness" who had not exaggerated. He then said: "[30] Mr Robertson took me to the transcript of the matter before me and pointed to the oral evidence of Mr Matoka, giving evidence on the increase in symptomatology. As I said, I accept his evidence and I accept that there was an increase in symptomatology and I accept that it was permanent. In that respect Mr Robertson took me to the various points, how his back and leg had never properly settled after he left Belmont. I formed the view that there was a clear elevation in his symptoms after he started working for Belmont. [31] This evidence is the reason I formed the view, the elevation of symptoms, where mentioned, the consistent complaints of the evidence of the worker who I accepted, that the work with Belmont Night Patrol, caused the elevation in his symptoms which resulted in an increased permanent impairment . …. [32] For the reasons given above and in my initial judgment I am satisfied that Mr Matoka is entitled to an additional five percent permanent impairment of his back as a result of his employment with Belmont. In addition Belmont has to pay half of Mr Matoka's weekly payments and s 60 expenses." (emphasis added)

23 His Honour then confirmed the order he had made on 12 February 2003 and ordered the appellant to pay the costs of the hearing. Grounds of Appeal

24 The appellant complains that the primary judge erred in law in finding that the second respondent's continuing incapacity was caused, at least to the extent of 50 percent, by his employment with it. It relies upon the medical opinion which it asserts this Court had "held" did not support any such causation finding. Secondly, it complains that the primary judge erred in law in failing to give reasons for rejecting medical opinion that the second respondent's employment with it had not caused his continuing incapacity. Thirdly, it says the primary judge erred in law in failing to give reasons for accepting parts of the second respondent's evidence and rejecting what were said to be other contradictory parts. The appellant also complains the primary judge erred in law in failing to consider the second respondent's evidence in substance attributing his continuing problems to the injuries suffered at Woolworths. Finally, the appellant complains the primary judge erred in law in failing to consider the report of 30 November 2001 of a consultant in pain medicine, Dr Russo, to the effect that the appellant was fit for a return to work trial involving non-heavy labour employment. Submissions on appeal

25 The appellant first submits that the second respondent's evidence concerning the aetiology of his back condition was inconsistent and was not such as to entitle the primary judge, without explanation, to conclude that the nature and condition of the second respondent's employment with it had contributed to his continuing incapacity. The appellant 's written submissions drew attention to the following matters: "When giving evidence in chief Mr Matoka said that he had several injuries whilst working for the first Opponent. There were a lot of injuries to his back and a separate incident where a forklift ran over his left leg (Transcript page 1 lines 45-48). He said that when he finished working with the First Opponent in October 1999 he would be able to manage checkout work four or five days a week. He said his back had just deteriorated since that time so he was no longer able to manage that work (Transcript page 3 lines 27-33). He started using a crutch in August 2002 (Transcript page 3 lines 37-39). He said that whilst working for the Appellant his back and ankle was (sic) getting really sore (Transcript page 4 lines 15-18). He also said that his condition got worse after he stopped working for the Appellant (Transcript page 4 lines 43-45). Of relevance he also said that when he stopped work with the Appellant he looked for work in security however he could not do that work now (Transcript page 7 lines 14-20). Under cross-examination by Counsel for the First Opponent he agreed that the condition of his back and ankle got worse and that it had never got any better (Transcript page 9 lines 21-28 and 38-41). By contrast when cross-examined by Counsel for the Appellant he conceded that he had been suffering from constant back pain and restriction since his injuries with the First Opponent (Transcript page 10 lines 15-40 and page 12 lines 24-48). He again agreed that the condition of his back and ankle got worse after ceasing work with the Appellant although he was no longer working for the Appellant (Transcript page 11 lines 28-31). Significantly he conceded that as at August 2001 his only complaint was that in the morning he would wake up stiff and have some degree of low back pain relieved by having a hot shower (Transcript page 12 lines 9-12). He also agreed that the cause of his continuing problems at this time was the injuries he suffered at Woolworths (Transcript page 13 lines 30-34)." (emphasis added).

26 The appellant also criticised the primary judge's reliance upon the second respondent's "view" as being a bald conclusion, without explanation as to why a lay person's opinion should be preferred to contrary medical evidence on what was a question of a peculiarly medical nature. The appellant also submitted in the latter respect that, again, even assuming it was open to the primary judge to accept the second respondent's "view", he failed to have regard to the second respondent's evidence that as far as he was concerned the cause of his continuing problems as at February 2003 (the date of trial) was the injuries he had suffered while at Woolworths.

27 The appellant submitted that the second respondent's evidence, that his condition had deteriorated after he stopped working for it, was a "powerful indicator" that his increasing symptoms were due to the natural progression of the injuries suffered at Woolworths. Once again, the appellant submitted that the primary judge was required both to refer to that evidence and explain how he had been able to reject that inference.

28 The appellant complains that the primary judge made no reference to the second respondent's evidence that as at August 2001 his condition had improved to the point that his only complaint was that he would wake up stiff with a degree of low back pain relieved by a hot shower. It drew attention to Dr Russo's recommendation, based on that history, that the second respondent return to work on trial in August 2001. The appellant complains that the primary judge failed to refer either to Dr Russo's evidence and, accordingly, it was not possible to determine how the primary judge had reached a conclusion that the second respondent had been totally incapacitated since ceasing work with it. The appellant contends that the second respondent's evidence was "clearly to the contrary".

29 Next the appellant complains that the primary judge was not entitled to rely upon Dr Pacey's opinion relating the second respondent's low back pain to "work related incidents" as including the pain the second respondent suffered getting in and out of the car while on duty with the appellant. The appellant submits that process of reasoning was not open because it was contrary to what was said to be the ratio of the first appeal, that there was no medical evidence supporting the conclusion that the second respondent's work with the appellant was causative of any injury.

30 The appellant also criticises the primary judge's reliance on the history taken by Dr Berry as supporting the inference that it was the increased hours and nature of the work with the appellant which rendered the second respondent totally incapacitated. The appellant complains both that the primary judge did not explain how this inference could be drawn from a mere repetition of the second respondent's history but, again, relies upon the conclusion in the first appeal that the medical evidence did not support a finding of causation.

31 The appellant next criticised the primary judge's reliance upon Dr Nade's history of increasing pain. It draws attention to the fact that the primary judge did not refer to Dr Nade's opinion that the second respondent's symptoms appeared to relate to accidents suffered whilst in the first respondent's employ, that to the extent the second respondent's back was impaired, that impairment related to those Woolworths injuries and that he was unaware of any incident which occurred during his employment by the appellant which caused or aggravated his symptoms. The appellant also complains that the primary judge failed to give reasons for rejecting Dr Nade's opinion.

32 The appellant submitted the primary judge misstated Dr Wilding's opinion in that what Dr Wilding had opined was that while getting in and out of a patrol car may have temporarily aggravated degenerative changes in the second respondent's lower back, any such effects had ceased and the second respondent's employment with the appellant had neither caused the degenerative changes nor accelerated them. Once again, the appellant complains that the primary judge was required to explain why he either disregarded or rejected Dr Wilding's opinion and had failed to discharge that obligation.

33 The first respondent submitted that once it was clear the primary judge had taken into account the existence of evidence apparently contrary to his conclusion, his reasons may be adequate. It contended that complaints about the method of reasoning leading to findings of fact cannot be elevated to a question of law referring to Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Wallaby Grip Ltd & Anor v Peirce & Ors; James Hardie & Co Pty Ltd v Peirce [2000] NSWCA 299; (2005) 24 NSWCCR 193.

34 Insofar as the appellant contended that the second respondent's evidence was inconsistent in a manner requiring the primary judge to explain his acceptance of one account over the other, the first respondent submitted the claimed inconsistencies were illusory rather than real. In short, the first respondent contended that the second respondent's evidence was that he was incapacitated for security work from the time he left the appellant's employ, and that counsel for the appellant had not elicited any answer to the contrary. The appellant contended that if it was accepted the second respondent was totally incapacitated from the time he left the appellant's employ, then it was of no consequence that he might subjectively experience the sensation of a worsening in symptomatology without apparent further aggravation. The first respondent submitted that it was not inconsistent with the proposition that the nature and conditions of the second respondent's employment with the appellant rendered him totally incapacitated that, with the passage of time, his symptoms worsened.

35 Insofar as the appellant relied upon the second respondent's "view" that his continuing problems were caused by the injuries he suffered with Woolworths, the first respondent submitted that the worker's perceptions were not inconsistent with the proposition that his employment with the appellant had significantly and permanently aggravated his condition. Accordingly there being no logical inconsistency the first respondent submitted the primary judge had not been required to give further reasons.

36 The first respondent dealt with the appellant's complaints about the primary judge's treatment of the medical evidence in the following way.

37 First, as to Dr Pacey's evidence the first respondent contended that Hodgson JA's comments in the first appeal judgment with respect to Dr Pacey could not fetter the primary judge's capacity to make findings of fact. Further, the first respondent submitted, the primary judge's interpretation of Dr Pacey's report was open on the evidence and was not reviewable.

38 Secondly, the first respondent drew attention to Dr Nade's comment that "hours of work should not be considered a work related accident or injury". While it accepted the primary judge had not referred to that opinion, it argued it necessarily fell with the primary judge's finding that the nature and conditions of the second respondent's employment with the appellant constituted an injury. In such circumstance the first respondent submitted no additional reasoning was required.

39 Finally, insofar as Dr Wilding was concerned, the first respondent contended that he had not explained his opinion that the effects of any aggravation of the degenerative changes in the second respondent's lower back caused by getting in and out of a patrol car had ceased, nor why he considered the worker's employment by the appellant had not caused or accelerated degenerative changes. It submitted the primary judge was entitled to infer Dr Wilding had reached these conclusions because he rejected the worker as a witness of truth. Accordingly it was argued it was open to the primary judge to reject Dr Wilding's views by accepting the worker's evidence that his condition had worsened because of his employment with the appellant, that he continued to be worse and that he remained unfit for the work of a security officer. Consideration

40 The duty to give reasons is related to the function giving reasons serves. While the requirement to give reasons is not limited to cases where there is an appeal, "the fact that the function of the requirement is, at least in part, to allow a party to exercise appeal rights is of significance in determining the extent of the duty and what will be a discharge of it … [r]easons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.": Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited [1983] 3 NSWLR 378 at 386 per Mahoney JA.

41 Tatmar was followed in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 which was also an error of law appeal from a decision of a Compensation Court judge that a worker was fit for work after a date in January 1984, at which date a CAT scan of her back revealed no abnormalities. There was a "severe contest" at trial as to the manner the worker had suffered her alleged injuries and the extent of any physical disability incapacitating her from work: see Kirby P (at 250). On the issue of incapacity the trial judge had referred to x-rays of the worker's left knee and tibia and lumbar spine all of which were normal, a myelogram, which revealed no abnormality, and the CAT scan to which I have already referred, then said: "I am satisfied on the evidence that the applicant was totally incapacitated from 21 December 1982 to 17 January 1984 and fit for all work thereafter. I am satisfied that at the date of the CAT scan report the applicant was fit for all work."

The appellant complained that the trial judge had not given sufficient reasons why he found her incapacity had ceased in January 1984. The Court of Appeal (Mahoney and McHugh JJA, Kirby P dissenting) held he had.

42 Mahoney JA said (at 274) that it was clear that the trial judge had found the worker was incapacitated up to, but not beyond, 17 January 1984 because that was the date of the CAT scan. In his opinion the trial judge was not required "to detail why the CAT scan … carried such weight as to change his view of her condition at the time ... [i]t is sufficient that it be clear … what it was that was involved in his reasoning process".

43 McHugh JA (at 280 - 281), referred approvingly to Mahoney JA's statement in Tatmar, "the extent of the duty to give reasons is related 'to the function to be served by the giving of reasons' ", then observed: "In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff's credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough."

44 He then observed (at 281) that the question whether the appellant was fit for work at a given time was a question of fact which did not involve the application of a legal standard. The issue was "whether the failure to explain the basis of the crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done" which would be an error of law because the trial judge would not have discharged his judicial function. He cautioned that "great care needs to be taken that dissatisfaction with the finding of fact does not mislead the Court into holding that the learned judge has failed to give his reasons for his finding".

45 Like Mahoney JA, McHugh JA concluded the trial judge had acted on the strength of the CAT scan report. While he accepted the trial judge's reasoning process may have been erroneous, he said (at 282) that, on an appeal confined to error of law, the question was not whether the trial judge's finding that the worker was fit for work after 17 January 1984 was correct, but "whether his Honour gave reasons, however erroneous, for that finding." It was sufficient that the judgment revealed "the ground for, although not the detailed reasoning in support of, his finding of fact"

46 As I have said, in the first appeal the Court of Appeal referred to MMI Workers Compensation (NSW) v Kennedy as authority for the proposition that an inference of causation could be drawn from a lay history, particularly in a specialised tribunal such as the Compensation Court. As I have also noted, the primary judge said (at [8]) he followed that case in reaching his conclusion that it was the nature and condition of the second respondent's employment with the appellant that led to his total incapacity.

47 The issue in MMI Workers Compensation (NSW) v Kennedy was whether Egan CCJ had erred in law because, on the evidence before him, no reasonable person could conclude that a worker's incapacity were caused, at least in part, by an incident in 1987 in which his spine was jarred, and following which he was totally incapacitated. The worker had suffered injuries at work in 1978 and 1979 which led to a spinal fusion, after which he returned to work. There was no explicit medical evidence that the 1987 incident constituted a separate injury. The worker gave "a detailed account of what occurred in 1987 and the discrete effect which it had upon his condition". In addition, a Dr Marnie expressed the view, in substance, that a sudden movement could cause a fracture in a bone graft in the worker's spine, although he did not refer to the 1987 incident.

48 Mahoney JA (with whom Kirby P and Meagher JA agreed) rejected the submission that the trial judge had erred in law. He concluded that, accepting the worker's evidence and Dr Marnie's opinion, it was open to the trial judge to conclude the 1987 incident was an "injury" in respect of which compensation was payable. He said that "a specialised tribunal may be accepted as having, from what has been frequently proved before it or otherwise, special knowledge …[and that] the Compensation Court may accept from its judicial knowledge that, in the case of a worker with such a work injury, [a jarring incident] was apt to disturb the physiology of [the worker's] back."

49 MMI Workers Compensation (NSW) v Kennedy was applied in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 in which a worker sought to establish his back "injury" was caused, in part, by the nature and condition of his work as a pilot. Walker CCJ upheld that claim, in part, on the basis that common sense indicated the activities the worker described would place stress on his spine. McColl JA (with whom Mason P and Beazley JA agreed said (at [90] - [94]) that a Compensation Court judge was entitled to make common sense findings that the nature and condition of the worker's employment was likely to impose stress upon his back, those being matters within both the "realm of common knowledge and experience" spoken of by Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724 and the specialised knowledge acquired as a judge of the Compensation Court. Conclusion

50 As in Soulemezis, the question whether the second respondent's employment with the appellant contributed to his incapacity was one of fact which did not involve the application of any legal standard. Any appeal from his Honour's judgment was confined to error of law. It was a sufficient discharge of his obligation to give reasons that the judgment revealed "the ground for, although not the detailed reasoning in support of, his finding of fact"

51 In my view the primary judge discharged that obligation. It is apparent from the 2005 judgment how his Honour concluded that the second respondent's employment by the appellant contributed to his continuing incapacity. While aspects of the judgment may be susceptible to criticism as misstating aspects of some medical reports and not dealing fully with other evidence, his Honour did not, in my view, ignore evidence critical to an issue in the case: cf Mifsud v Campbell (1991) 21 NSWLR 725 at 728.

52 The primary judge concluded, as he was entitled to, that on the totality of that evidence, it was the nature and condition of the second respondent's employment with the appellant that contributed to continuing incapacity.

53 Professor Ghabrial's report provided a medical basis for the proposition that the second respondent should not engage in excessive bending, an activity the primary judge inferred would be involved in the second respondent getting in and out of the car frequently as required in his work with the appellant. The second respondent had given a history to several doctors that the pain in his back was aggravated while he worked for the appellant. Furthermore the second respondent's evidence was that after he stopped working for the first respondent, he had been sufficiently fit to retrain for employment with the appellant. After that employment ceased he had been totally incapacitated.

54 I do not accept the appellant's complaint that the primary judge was not entitled to rely upon Dr Pacey's and Dr Berry's opinions as supporting this finding because of the observations made about those reports in the judgment in the first appeal. Those observations, made on an error of law appeal, did not restrict the primary judge's reliance upon those reports in his consideration of the totality of the evidence.

55 I accept that Dr Pacey's 28 November 2002 report could be read as repeating the opinion she had expressed in her 29 March 2000 report, that the second respondent's low back pain was attributable to "work related incidents", meaning those which had occurred while he was employed by the first respondent. However, in her 28 November report Dr Pacey took a history of the second respondent's employment by the appellant and the fact that he had been unable to continue that work "because of symptoms of pain" and had been "unable to work since". (Red 52). While Dr Pacey expressed her opinion that the second respondent's low back pain and foot pain were "as a result of work related incidents", using the same terminology as she had in her March 2000 report, having regard to that history it was open to the primary judge, in my view, to interpret her second report as attributing part, at least, of the second respondent's incapacity to his employment by the appellant. The fact that his reading of Dr Pacey's report did not accord with this Court's in the first appeal does not expose any error of law.

56 As to Dr Nade, it is regrettable that the primary judge did not expressly deal with his opinion that the second respondent's impairment related to injuries sustained while he was employed by the first respondent nor to Dr Nade's rather curiously expressed opinion that "hours of work should not be considered a work related accident or injury" an opinion which was admitted, although it appears to relate to a matter of law. Significantly, however, Dr Nade did not deal with the second respondent's complaint that whilst his general practitioner had recommended he work only 4 to 5 hours, he had been asked to work for 10 to 12 hours at a time by the appellant and that it was those excessive hours which aggravated his symptoms. It was evidence of that nature which entitled the primary judge to apply his specialised knowledge of the extent to which excessive work of the sort Professor Ghabrial had proscribed had contributed to the second respondent's continuing incapacity.

57 Finally, while Dr Wilding expressed the opinion that, in substance, the second respondent's employment by the appellant had neither caused the degenerative changes nor accelerated them, he also said "one is entirely reliant on [the second respondent's] history regarding the deterioration of his symptoms". As the first respondent submits, it was open to the primary judge to conclude that Dr Wilding's opinion had been formed because he did not accept the second respondent's history. In circumstances where the primary judge did accept that history it was, accordingly, open to his Honour to reject Dr Wilding's opinion.

58 I would not regard the primary judge's 2005 judgment as a model of judgment writing. However, in my view, the reasons for his conclusion, while attended by a degree of obscurity, are sufficiently clear that no error of law is demonstrated.

59 The appeal should be dismissed with costs.

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