There was no issue on the facts that an accident occurred on

16 September 1981 in the course of Mr Corbin's work as a mine deputy with Wambo Mining Corporation Pty Limited in which Mr Corbin sustained the injuries later described. That there are continuing disabilities resulting from the accident was not in issue and it was accepted that those injuries prevented Mr Corbin from returning to work as a mine deputy, at least at the date of the appeal hearing. Thus the pre-requisites of s.14E (1) (a) (i) were also conceded.

What was raised by the respondent to the appeal was whether the incapacity was "likely to be permanent and was of a major and effectively disabling kind" (s.14E (1) (a) (iii)). The further issue raised was whether the test in s.14E (1) (a) (ii) was also satisfied.

It is appropriate to turn to the medical evidence. The injuries sustained in the accident are set out in the initial report of the treating general practitioner Dr Lee of 9 April 1984 which gives as economically as any paraphrase a picture of the injury and treatment from 16 September 1981 until 9 April 1984:

HISTORY: I saw the above in Casualty Department Singleton District Hospital on 16 Sep 81 after he was brought in by ambulance. He was involved in a mining accident while working underground. While he was helping to change a tyre on a shuttle car he was struck forcably (sic) on the left face by the bucket of the car. He was knocked back and struck his head, was dazed but not unconscious.

EXAMINATION: on examination Mr Corbin sustained the following injuries;

1. A compound, complex and comminuted fracture of the Left Zygomatic - Maxillary complex and orbit.

The patients Left facial laceration and mid occipital laceration was surgically repaired by me. In view of the severity of his L. facial injuries he was transferred to Mater Hospital Newcastle on 16 Sep 81 and later on to Wallsend Hospital (Newcastle). He had emergency, explorative and reconstructive facial surgery done by Dr. C. Howe (Plastic Surgeon) and Dr. R. Poutney (Opthalmic (sic) surgeon) and reviewed by Dr. B. Copper (Dental-oro-maxillary Surgeon) (Newcastle).

Mr Corbin continuted (sic) to suffer from severe diplopia and trismus and Left facial neuralgia. He had further Left facial surgery by Dr. John E. de Burgh Norman (consultant Maxillo-Facial Surgeon) in conjunction with Dr. Peter Rogers (Opthalmis (sic) Surgeon) at the Mater Hospital, Sydney on 24 Mar 82. He also had manipulation of his left Tempo-mandibular joint with intra-articular injection of Decadron by Dr. J. Norman and also insertion of oral plate (to correct his tempo-mandibular joint position).

Mr. Corbin was assessed by Dr. Dudley O'Sullivan (Consultant Neurologist, Sydney) - for his Left facial neuralgia and migraine (after Mr. Corbins wearing a hard hat at work) - Dr. O'Sullivan is of the opinion that the Left facial Neuralgia and Migraine - would be of articular in origin, arising from the Left tempo-mandibular joint.

Mr. Corbin is also assessed by Dr. Keith Mayne (Consultant Psychiatrist of the North Side Clinic) for the management of Mr. Corbins condition on 21 Sep 83.

I have also referred Mr. Corbin to be assessed by Dr. Geoff Booth on 4 May 84 (Rehabilitation Specialist - Newcastle)- to see if any further suggestions would help Mr. Corbins future career.

The injuries that Mr. Corbin sustained in the mining accident are very extensive. The prognosis of his conditions permanent diplopia (from shattered Left orbit) and intermittant (sic) left facial neuralgia, and migraine arising from his damaged Left Tempo-mandibular joint, remains to be poor. In my opinion, he will never be able to return to his former job as a mine deputy in the underground mine.

Dr Lee's report of 30 March 1994 brings the medical report up to date:

Mr Corbin suffered severe facial and neck injuries on 17th September 1981 when employed as a Mine Deputy. Mr Corbin was hit by the bucket of a front end loader, striking him on his left facial occipital region. This resulted in multiple fractures to the facial bone, the left Zygloma orbit, damage to the left Trigeminal nerve, cervical spine and also large occipital lacerations.

Mr Corbin had extensive surgery in Newcastle Hospital and facial maxillary surgery by Dr John De Burth (sic)-Norman (Oro-facial Maxillary Surgeon) in Sydney and Dr Peter Roger (Opthomologist) (sic) in Sydney.

As a result of this accident Mr Corbin has suffered a permanent left vertical Diplopia as well as intermittent Trigeminal neuralgia, intermittent headaches and chronic depression. Mr Corbin made two attempts at returning to work. The first attempt was nine months after the accident on light duties, but was unsuccessful and he has a significant amount of time of (sic) work as he was unable to tolerate the work. A further attempt to return to work in March 1985 was also unsuccessful. Mr Corbin attempted working as a Draughtsman but this too was unsuccessful due to his facial pain, Diplopia and the restriction of his neck movement prevented him from working as a Draughtsman (he was initially trained as a draughtsman).

There was several attempts to try to alleviate his left facial pain and neck pain by alcohol injections by Dr Noel Dan (Neurosurgeon) in Sydney and by nerve block treatment by Dr Peter Armstrong (Director of Pain Clinic - Mater Hospital) Newcastle.

Unfortunately this failed. Mr Corbin was admitted to the Royal Ryde Hospital Pain Service as an inpatient under Dr David Gronow for four weeks for pain management, anxiety and depression and improve his physical fitness and pain tolerance. Nevertheless, after the programme his physical condition improved and his dependance (sic) on pain killers was markedly decreased but was still suffering from chronic depression. Mr Corbin was taking 8 Panadol a day, Tofranil 50mg nightly to help him sleep.

Periodical reviews revealed Mr Corbin to be still suffering permanent vertical Diplopia and constant blurring of vision, which worsens when he is under any form of emotional and physical stress and also increase of facial pain as well. When Mr Corbin does any form of manual work such as mowing the lawn, etc. this would upset his neck as well. The pain would start from the neck and radiate to the left eye and ear and occipital region, the pain also radiating down to his left upper limbs.

1. The extensive facial injuries of Mr Corbin, his neck injury and constant pain and depression are definitely as a result from the mining injury of the 17th September 1981.

2. The injury described is of a permanent and effectively a disabling kind. I definitely feel that Mr Corbin would never be able to return to work in the mining industry.

3. Mr Corbin would not be able to wear a hard hat, partly due to physical pressure on his scalp which would cause pain, which would also evoke immediate facial pain and neck pain, and psychological stress which would cause a migraineous headache. This would disrupt his concentration, and in my view is very dangerous if in any job he would carry out if he had to wear a hard hat, or any sort of hat. Mr Corbin is quite aware of all the symptoms if he was required to wear a hard hat, and the amount of psychological stress associated with wearing a hard hat could bring on the symptoms as well, which in turn could evoke a severe bout of depression and migraineous headache. I think it is very dangerous for him and the crew members who work under him when his concentration lapses, resulting from wearing a hard hat.

Mr Corbin continues to experience chronic depression, an (sic) any form of stress may exacerbate his depressive symptoms and facial pain. These physical and psychological factors I believe prevent Mr Corbin from working as a Mine Deputy in the Mining Industry. Furthermore I understand that the part of the job of a Mine Deputy in an underground in supervising the production of coal in the coal face and all Mine Deputies are definitely required by law to wear a hard hat.

In summary, because of Mr Corbin's physical and psychological disabilities, which is of a permanent and effectively disabling kind, he will never be able to return to work as a Mine Deputy. Secondly that he can not work in any position that requires him to wear a hard hat or any position that affects cervical spine and requires good concentration, such as a Draughtsman.

Numerous reports were made available from treating doctors including Dr Brian Capper, Dental Surgeon, Dr Christopher Howe, Plastic and Reconstructive Surgeon, Dr Richard Pountney, Ophthalmic Surgeon, Dr Geoff Booth, Specialist in Physical & Rehabilitation Medicine, Dr John E. de Burgh Norman, Maxillo Facial Surgeon, Dr Peter Rogers, Ophthalmic Surgeon, Dr Dudley O'Sullivan, Neurologist, Dr Noel Dan, Neurosurgeon, Dr Kevin Bleasel, Neurosurgeon, Dr David Gronow, Director, Pain Management Centre, Dr Keith Mayne, Psychiatrist, Dr J.J. Nichols, Psychiatrist and Dr Graham Vickery, Psychiatrist. Although repetitious because of the period which the reports represent, these reports extend in total to about 80 pages. In addition medical reports presented by the respondent came from Dr Robert Gertler, Psychiatrist, Dr Robert Cameron, Consultant Surgeon, Dr Anthony Lowy, Physician in Occupational Medicine, Dr Michael Gliksman, Occupational Physician and Dr David Sharpe, Consultant Neurologist. These reports are written on about 32 pages. The respondent's doctors, although acknowledging some continuing problems, do not accept the degree of disability or incapacity which the appellant complains of as being clinically confirmed.

Mr Corbin's work history since the accident was as follows:

From the date of the accident until about the end of July 1984 the appellant was off all duty.

In about July/August 1984 the appellant returned to his work as a mine deputy for 9 months on a restricted basis in that he did not work at the production face.

Subsequently and until about mid 1987 Mr Corbin, who is qualified as a draughtsman to do mine survey drafting, worked on a contract basis doing drafting work.

Since mid 1987 he has not been doing the drafting work which because of the downturn in the industry has been less available, but has been assisting his wife in a modest enterprise of screen printing onto garments such as T-shirts. His evidence was that he worked about 30 hours over a week and that at times convenient to him.

Mr Corbin has since 1987 continued to apply to mining companies for drafting work on a sub-contract basis. He specified Leamington, Coal and Allied Saxonvale and Drayton as among the collieries to which he had applied. Amongst the work that Mr Corbin applied for was a full-time position as public relations officer with a local council, a position which he sought unsuccessfully in 1991.

The appellant's present complaints as to his medical condition are taken from the report of Dr Noel Dan of 27 July 1993, his treating Neurosurgeon:

I think there is no doubt that the present situation is permanent and that this was demonstrated by the persistence of symptoms for twelve years. Clinically, I think there was no reasonable doubt long ago that the picture was permanent and the efflux of time has merely confirmed that view.

I see no way in which Mr. Corbin could possibly return to the mining industry. He has ongoing significant symptoms. Firstly he has double vision and the vision blurs. He finds that this problem is worse than the pain in fact. His best position from an ocular vision is looking downwards, but if he looks upwards or also when he is under stress, which causes increased pain, the vision blurs. On the other hand when the neck is flexed the cervical symptoms are aggravated. He also finds that any manual work upsets his neck. The pain radiates from around the left eye to the ear and to the occipital region. He still has pain radiating down the left upper limb. His treatment consists of 50mgs. Tofranil and (sic) night and paracetamol and he may use up to four at a time together with stress control techniques.

Clinical examination confirms the ongoing left enophthalmos with a tattooing around the left eye. He has hypersensitivity of the left infra orbital region and the pre and post-auricular areas and he reports that he could not tolerate wearing sunglasses because of the sensitivity.

I understand that his condition is being diagnosed as trigeminal neuralgia (tic douloreaux). That diagnosis is a very specific entity and is quite unlike the present clinical picture.

Because of the facial and cervical injury and in particular the double vision, the neck dysfunction and the scalp and facial hypersensitivity, there is no way that Mr. Corbin could be re-employed in the mining industry. He could not undertake any duties which required wearing a hat. He could not work as a draughtsman because of his diplopia and because of the pain induced in his neck after holding his neck flexed in a normal working position for more than a short period of time. I therefore remain of the view that he is not only permanently incapacitated as a result of his mining injury but that he is completely unfit for work in the mining industry.

As previously set out the respondent did not contest that

Mr Corbin was medically fit to perform the demanding and exacting work of mine deputy and it was accepted that the injuries, save as perhaps as to the neck pain, was the result of the work accident.

It was more seriously contended that the test "major and effectively disabling kind" had not been met and it was pressed that there was an insufficient element of permanency about the injuries to satisfy the test. Mr O'Connor, senior counsel for the respondent, argued that the doctors had noted that Mr Corbin's conditions had been worse when he was under stress. Consequently, the Court should find that when this appeal was concluded there would be an improvement in the condition, thus the disability could not be found to be permanent. In my view, neither of these contentions was made out. The injury is likely to be permanent and is of a major and effectively disabling kind and I so find.

Thus the question which remains is whether the requirements of s.14E (1) (a) (ii) have been met.

It was argued by Mr Callaway, senior counsel for the appellant, that Anderson's Case [1] was incorrectly decided and that the Industrial Court, not being bound by the precedent of the Industrial Commission, ought to come to a different conclusion than that of the Court Session in Anderson's Case. Mr Callaway argued that the judgment of Clarke JA. in Murray's Case [2], when properly understood, was the correct approach to s.14E (1) (a). He submitted that the judgment of Clarke JA. was to the effect that the Court had to be satisfied only that the appellant was not capable of performing his pre-injury work in the industry to satisfy the demands of s.14E. For reasons later set out it has not proved necessary to again consider that argument.

Mr Corbin has the strong support of a number of doctors who regarded him as an accurate and restrained historian. Dr Dan did concede that Mr Corbin presented in his rooms with a severe level of disability to a degree that it was possibly inconsistent with a person applying for full-time work. That concession has to be viewed in the terms of Mr Corbin's actual work history and a final assessment of whether Mr Corbin could perform a job of work on a full-time basis.

Although by ability and training Mr Corbin demonstrated that he is capable of performing clerical duties, the question is whether he is now capable of performing such work on a full-time basis.

Mr O'Connor submitted that the appellant could do a light duties job, one where he could sit and stand as he wished. Such a job falls within the description of "light duties" familiar in compensation jurisdictions.

There is, however, a difference between a job of work given to an employee on "light duties" where the employer has to make allowances for the effect of the injuries on work capacity and work where no such obligation rests on the employer. There is no category of light duties or restricted duties within the definition of "mine worker". Whilst it is correct that the extended definition is very wide (see Anderson's Case) and includes jobs such as clerks, office workers and bath house attendants, those jobs though not involving exacting physical work must be regarded as full duties jobs not attenuated by concepts of "light" duties.

The medical evidence on balance supports the view that

Mr Corbin is seriously handicapped by his injuries. To that evidence must be added the evidence of Mr Corbin himself and that of

Mrs Corbin. He was, in my view, a restrained and undemonstrative witness. He did not claim that he could not work or that he did not assist his wife in and about her business. What he said was that he was not capable of now performing a full-time job of work between the normal spread of hours on a five day a week basis. This evidence has to be considered along with that of the medical experts. The evidence of Mrs Corbin seemed to me to corroborate the evidence given by

Mr O'Connor argued that the fact that Mr Corbin had applied for full-time work was an indication that Mr Corbin believed himself to be capable of that work. Against that Mr Corbin had also sought work on a part-time basis. I regard such evidence as neutral.

It is my view that the appellant is unable because of his injuries to continue his engagement in the industry of coal mining and that the date of his disability was after 26 March 1978.

(1) Unreported judgment of the Commission in Court Session

(2) 20 NSWLR 675