Hale, Juanita May v. Uranerz (Aust) Pty Ltd [1979] FCA 89

JUDGES MAKING ORDER: DEANE, TOOHEY AND LOCKHART JJ.

7 ' DATE OF ORDER: V/ Lif thewfer Sif . WHERE MADE: SYDNEY

Appellant (Respondent) AND: URANERZ (AUST) PTY. LID. _-fH

That the appeal from the Supreme Court of the Northern Territory be allowed.

That the award of the Workmen's Compensation Tribunal be reinstated.

That the respondent pay the appellant's costs of the proceedings before the Workmen's Compensation Tribunal, of the appeal to the Supreme Court of the Northern

Territory of Australia and of the appeal to this court.

tem CS II noe cere rene rn rE SEN gS RE AR YO NT QR

) ) NORTHERN TERRITORY REGISTRY ) No. NTG 10 of 1978 ) )

Appellant (Respondent) AND: URANERZ (AUST) PTY. LIMITED

"eo, I certiiy that thus and_the-preeeding pages afe a

IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY REGISTRY

ON APPEAL from the SUPREME COURT OF THE NORTHERN TERRITORY

Northern Territory (Gallop J.), the appellant seeks to

restore an award made in her favour by the Workmen's

appellant suffered an injury arising out of and in the

course of her employment by the respondent and that she

was totally and permanently incapacitated as a result of that injury. It made an award of compensation to 12 September 1977 (the date on which the hearing began)

by the Supreme Court on 4 September 1978, hence the present appeal. The delay of twelve months between the hearings before the Tribunal and the Supreme Court was

not explained. This Court was told that the appellant

had received no compensation so that, if she is ultimately

found to be entitled to an award, she will have been without payment for more than four years, a most unsatisfactory situation.

In my view the course which the hearing took before the Supreme Court has an important bearing on the outcome of this appeal. It is not necessary to consider at any length the nature of an appeal to the

Gompensation Act 1949, That matter was the subject of a

decision by this Court in Dace v. Dietrich (judgment

"... while the Tribunal is, no doubt, under an obligation to act with judicial detachment and fairness, the proceedings before the Tribunal are not governed by the ordinary principles relating to the determination of disputed questions of fact by a judicial tribunal. ... the

of the decision of the Tribunal." (per Deane,J. at p.10). An appeal to the Supreme Court from the Tribunal is an appeal de novo. The parties may call evidence afresh or they may by agreement tender as evidence material from the Tribunal below, supplemented, if thought fit, by further testimony.

In the present case no oral evidence was adduced before the Supreme Court. Counsel for the parties agreed that the material from the Tribunal was not tendered to the Supreme Court as evidence, rather that his Honour was invited to deal with the appeal on the record. As the record included not only the evidence but the determination of the Tribunal, this had important consequences. It meant (as counsel agreed) that whatever the true position in law the Supreme Court was invited to deal with the appeal by way of rehearing in the more limited sense and thus was compelled to give such weight to the findings of the Tribunal as would ordinarily be given in such an appeal.

divorced and with a dependent child. On 6 May 1975 she

had begun work with the respondent, a geological company. She was employed as a housekeeper-cook at the respondent's premises in Alice Springs. Her duties included picking up a weekly order of groceries and she testified that on 10 June 1975, in company with Mrs. Julie Ferguson who with her husband Mr. Ken Ferguson was her immediate boss, she went to Woolworths to pick up provisions. Mrs. Ferguson drove a Toyota Landcruiser. According to the appellant, while carrying a carton of stores to the vehicle and lifting it over the sideboard she felt a severe pain down her right leg. She told Mrs. Ferguson: "I think I have hurt my back" to which Mrs. Ferguson replied: "Don't lift any more", She then waited in the Toyota until the rest of the groceries had been loaded and returned to her place of employment which was also her place of abode. The pain continued over the ensuing days but with some

conversation had taken place on 10 June or at all while the appellant was employed by the respondent. She also claimed that the appellant continued to do her work as usual, making no reference to any incident or complaint

On 17 June 1975 the appellant saw Dr. Vines, a general practitioner in Alice Springs. The doctor's

records noted "continuing back aches". It should be

said that the appellant had a long history of urinary tract and

kidney problems and that she had a hysterectomy in 1969. Dr. Vines assumed that the back aches were those she had earlier associated with the urinary tract infection. The appellant had first seen Dr. Vines on 28 January 1975 when she complained of the vision in her left eye. She saw that doctor again on 24 April, 16 May and 9 June 1975 at which times she complained of chest pain and scalding on passing urine. At the examination on 17 June, when Dr. Vines noted continuing back aches, the appellant was complaining of pain in the loin in the soft tissues on either side of the back. At that time her medical situation was complicated by a gynaecological problem which was still causing her concern when she next saw Dr. Vines on 23 June. It was at the appellant's suggestion that she was referred by Dr. Vines to Dr. Page, a gynaecologist in Brisbane.

On 24 June she went to Brisbane; she saw Dr. Page two days later. There was no evidence from that doctor but it was not in dispute that he in turn referred the

was entitled to, the Tribunal received his reports in |

evidence. See s.6D of the Workmen's Compensation Act.

A consideration of Dr. Watson's reports and of the medical evidence generally is crucial to the outcome of this appeal but I propose to roundoff first the history of the appellant's treatment.

When Dr. Watson saw her on 27 June 1975 she was complaining of low back pain and sciatica. She presented a history of intermittent back pain for some years and mentioned that on 10 June 1975 while lifting a heavy case at work she developed severe back and right leg pain which still persisted. This was the first time that the appellant had mentioned the injury at work to any doctor.

On 1 July 1975 Dr. Watson carried out a laminectomy. It seems clear enough from his report of 5 December 1975 that in view of the appellant's complaints he expected to find a lesion in the L4/5 disc. In fact he found a bulging lateral lumbo-sacral disc protrusion, that disc being L5/S1. Dr. Watson removed the protrusion. He saw the appellant again and in a report dated 20 January 1977, furnished to the appellant's solicitor, he expressed the view that

The next time the appellant was seen by a doctor appears to have been on 19 January 1977 when she consulted Dr. Yaksich, a neuro surgeon in Darwin. He had earlier seen the appellant in 1973 and 1974 when she was complaining of back ache and neck pain. X-rays of the cervical and lumbo-sacral spine had then shown minor degenerative change in the lumbar area, but no other abnormality.

When Dr. Yaksich saw the appellant on 19 January 1977 she told him of a lifting injury at work in Alice Springs in June 1975, followed by acute back ache and right sided sciatica, the latter not having existed before the injury. On 11 March 1977 he performed a myelogram which showed evidence of a disc protrusion at the L5/S1 level on the right side, indicating that the appellant's symptoms were coming from that level. On 16 March he performed an exploratory operation of the lower lumbar spine and found a tear in the annulus of the disc at the 15/S1 level on the right side with a significant protrusion there. Dense scar tissue completely encircled the S1 nerve root on the right side. As well as a disc protrusion excision, Dr. Yaksich carried out extensive freeing of the nerve root with a

Part eee pal a obama tent nee rete mes Sank Matec natal eA r=

That was the end of the appellant's medical history except that she did see Dr. Yaksich once or twice later and in April 1977, at the request of the respondent's solicitors, she was examined by Dr. Gray, an orthopaedic surgeon of Adelaide.

Much of the time before this Court was taken up with an examination of the medical evidence. In the respondent's submission it was crucial to the outcome of the appeal because it established that any disability suffered by the appellant since June 1975 must be attributable to something other than the alleged injury sustained at that time. There was no particular challenge by the respondent to what Dr. Watson reported as having found on examination nor as to what Dr. Yaksich found. The central issue was whether those findings, coupled with such complaints as the appellant had made before the laminectomy in July 1975, were consistent with the injury described by the appellant. Although the argument tended to focus upon the particular complaints made by the appellant, the respondent's submissions depended largely upon the complaints that she did not make. It was the respondent's basic submission that had the appellant sustained an injury in the region of

the L5/S1 disc, a lesion at that level being responsible

for any disability she has had since June 1975, her complaints should have been readily attributable to that area. |[But, said the respondent, she made no such complaints and those she did make were attributable only to a lesion in the L4/L5 disc. If she sustained a lesion at that level, it was not responsible for any disability.

It is convenient to look first at the evidence of Dr. Gray. From that evidence the respondent drew several propositions which, in totality, were said to exclude any connection between any injury the appellant might have sustained on 10 June 1975 and any subsequent disability. They were -

i. Dr. Watson's report of his pre-clinical examination showed that the appellant was suffering from a problem at 14/L5 not at Si, in particular an L5 nerve root problem.

2. Disc protrusions can occur without trauma and be pain free so that what Dr. Watson found when he performed the laminectomy was consistent with the absence of an injury on 10 June 1975.

made no complaints in that area, hence the protrusion could not have been related to the pain felt by the appellant following her accident and not related to the accident itself.

That last needs some explanation. Dr. Gray described how the $1 nerve root supplies sensation to a variable number of the outer toes, anywhere from the outer four to the outer two but particularly to the fifth or little toe. In his words:

toe", On the other hand the L5 nerve root supplies the medial order of the foot and the medial or the inner side of the top of the foot, running down to the big toe and sometimes to the adjacent part of the next toe. Again in Dr. Gray's words:

the ankle from the cleft from the first and second toe and that is considered to

be a true L5 area". Faced with the appellant's complaint of right leg pain involving the entire right leg including the foot and all toes, Dr. Gray commented: "This is an anatomical

di. - would then involve all five lumbar nerve roots plus

"I think this plainly obvious that this is an anatomical impossibility if one, if it is proposed that there is a lower lumbar disc prolapse."

The second of the three propositions mentioned earlier carries very little weight of itself. It is simply an explanation for the possible existence of an L5/S1 lesion for some time earlier than Dr. Watson's examination.

Counsel for the appellant attacked the third proposition on the basis that the medical evidence including that of textbook writers showed that it is not possible to determine with complete precision the existence of a particular disc lesion from the area in which symptoms manifest themselves. This is especially true of the L5 and Si nerve root distribution where some overlap may be expected.

Dr. Gray accepted and expressed agreement with these passages from a medical text book put to him in cross-examination:

"In general, it seems to be agreed that there is considerable overlap between adjacent dermatomes except when these are separated by the axial lines. This overlap

particularly affects the fourth and fifth lumbar and the first sacral dermatomes which

te EP PE POE LP APT BOTY CRE SH BASS RS SO re mentee - nem meme on

Of the three propositions mentioned earlier, it is the first that assumes the most importance in this appeal. It is true that when the appellant first saw Dr. Watson on 27 June 1975, the symptoms of which she complained (pain down to the medial border of the right foot, a weakness of the long extension of the right big toe, marked limitation of straight leg raising and a weak extensor hallucis longus) suggested to that doctor a lesion of the I4/L5 disc. It is also true that what he found was a normal 14/5 disc and a buiging lateral lumbo-sacral disc protrusion. Notwithstanding, Dr. Watson saw no reason to

doubt the appellant's assertion that the onset of sciatica immediately followed lifting of the box and

clearly enough he accepted that some physical change

occurred in her back as a result of that episode. Those

views appeared first in Dr. Watson's report of 5 December 1975 and were confirmed in a later report (20 January '1977) when he said:

It may be that Dr. Watson blurred to some extent the distinction between an L4/L5 and L5/S1 lesion. Nevertheless the fact remains that, faced with the appellant's complaint of back pain and her description of the incident on 10 June 1975, he concluded that she was suffering from an aggravation of a pre-existing condition, that aggravation brought on by the incident at work,

Dr. Gray agreed that it would be reasonable although not essential to conclude that if a person, while ITifting something, felt a sudden pain in the back running down the leg and three weeks later a surgeon found a lumbar disc protrusion, one was the cause of the other. ,

Gounsel for the respondent did not contend that Dr. Watson's decision to operate and his performance of the laminectomy were not each reasonable. In

particular he did not seek to argue that the operation

As already mentioned, the myelogram carried out by Dr. Yaksich showed evidence of a disc protrusion at the L5/S1 level and at the exploratory operation performed on 16 March he found a tear in the annulus of the disc at the same level. It was a protrusion through a hole left by Dr. Watson's surgery. He also found quite dense scar tissue completely encircling the Si nerve root on the right side. These findings were consistent with those of Dr, Watson, the disc protrusion at L5/S1 being a continuation of the process already noted by him and the scar tissue reflecting the surgery that had been carried out in 1975.

In the opinion of Dr. Yaksich, the appellant was totally disabled as a resuit of the signs that he

It is appropriate now to return to the determination

of the Tribunal and to the reasons for decision of his Honour, the latter to be measured against the way in which the appeal to the Supreme Court was conducted.

the appellant and of Mrs. Ferguson along with the medical

evidence and other material tendered, was satisfied ef

that the incident described by the appellant did occur at the time and place she alleged. Clearly if it did so occur it was both arising out of and in the course of her employment. The Tribunal then directed its attention to the medical evidence from which it concluded that the appellant was totally and permanently incapacitated by reason of her injury. The Tribunal's analysis concentrated more on the extent of the disability than on its cause. But it gave consideration to the latter, including the difficulty of distinguishing the dermatomes when lower back injuries are involved and must be taken to have accepted Dr. Watson's account of what he found on examination, the relationship of the disc protrusion to the accident, the presence of scar tissue as a result of surgery and its incapacitating effect.

In my view the Tribunal's conclusions both as to the injury, the disability it produced and the extent of that disability were warranted by the evidence.

When the matter came before the Supreme Court, his Honour was conscious of the nature of the appeal required by the Workmen's Compensation Act. In his reasons he expressly referred to an earlier decision

of his in which he had emphasised that such an appeal

is by way of hearing de novo. According to his Honour's reasons, counsel for the then appellant tendered the transcript of the material in the Tribunal and this was done with the consent of the then respondent. Counsel in the present appeal agreed that the material was tendered but also agreed that neither appreciated that the appeal was a hearing de novo in the sense that they were entitled to present evidence afresh. It is clear enough that in their minds they were arguing the appeal on the record rather than presenting evidence.

The problem is compounded by the fact that, in the course of his reasons, his Honour made several express findings of fact, some of which were at variance with the findings of the Tribunal. Had his Honour heard the witnesses afresh, there is no doubt that this approach was not only open but required of him. And the same is true had the evidence been presented afresh, not through the mouths of witnesses giving oral testimony but through the written. pages of the material before the Tribunal. In that latter case the parties would have made the choice to present their evidence in writing. But the parties concur in saying that, so far as they

were concerned, they were arguing the appeal on the

record and on the basis of those authorities concerned with /such appeals; they concur in saying that this is how this Court should approach the matter. Edwards v. Noble (1971) 124 C.L.R. 295 was mentioned in argument before us as an appropriate guide and it too was mentioned in his Honour's reasons. Thus the considerations that arose in McCormack

v. Commissioner of Taxation (1978) 23 A.L.R. 583 do not

arise. But there is a passage in the judgment of Gibbs J. that has some application here.

before the court" (at p.598). What concerned the Court in McCormack's Case was that the Board of Review had rejected the evidence of a witness and, in the view of the High Court, that rejection had been affected by a mistake. The Board's assessment could not stand yet neither the Supreme Court nor the other appellate courts involved were in a position to make their own assessment. In the circumstances the

High Court thought that the only course open was to remit

In my view none of the findings of the Tribunal in the present case has been shown to have been affected by mistake even though in some respects some may be open to criticism. In those circumstances it seems to me that it was not open to his Honour to make findings of fact anew except within the limits open to an appellate court in the light of a line of decisions culminating in

because of the way in which the parties chose to present

as a fact that on i7 June 1975 there were no complaints made nor were there any findings on examination which would have alerted Dr. Vines to the fact that the present appellant may have been suffering from a prolapsed lumbar disc. There can be no quarrel with that finding. Nor can there be any quarrel with his Honour's comment that there was no report from Dr. Page which would explain how a consultation for urinary tract infection became converted into a laminectomy for a condition which was not obvious on history, symptoms or clinical examination. But, with respect to his Honour, those comments overlook the true nature and perspective of the medical evidence,

in particular that of Dr. Watson who found that the lesion

of the Si disc was an aggravation of a pre-existing injury and an aggravation consistent with the appellant's description of what happened on 10 June 1975. It is clear that his Honour was not impressed with the evidence of the present appellant and no doubt there is much that can be said against her, especially her failure to make any reference to Dr. Vines of the incident on 10 June. But these were all matters urged before the Tribunal

and taken into account by the Tribunal in reaching its

decision. In Warren v. Coombs supra at p.412, Gibbs, Jacobs

and Murphy JJ. referred with apparent approval to the '

judgments in Powell v. Streatham Nursing Home (1935)

A.C. 243, as reflected in the headnote to that report:

not in doubt, the appellate Court is in as , good a position to decide the question as

a rehearing on documents and not, as a rule, on oral evidence; and where the judge at the trial has come to a conclusion upon the question which of the witnesses, whom he has seen and heard, are trustworthy and which are net, he is normally in a better position to judge of this matter than the appellate tribunal can be; and the appellate tribunal will generally defer to the conclusion which the trial judge has formed".

The appellant's account of the accident was accepted by the Tribunal. In particular it believed her evidence of what happened while she was loading the Toyota, her immediate complaint of having hurt her back and, by implication, the symptoms she experienced thereafter. I see no reason to disturb those findings of primary facts; the account involved no "glaring improbability" as suggested by the respondent. See Voulis v. Kazary (1975) 7 A.L.R. 126 per McTiernan J. at pp.130-131.

The Tribunal's finding of personal injury by accident involved as well inferences drawn from the medical evidence. For the reasons mentioned earlier, those inferences warrant a finding in favour of the appellant. Once personal injury by accident was established, the extent of the appellant's incapacity was hardly in issue.

a~eceding j ages are a true copy of fhe Prasens for Judgment herein of his Honour

ON APPEAL FROM THE SUPREME COURT OF THE NORTITERN TERRITORY

LOCKHART J: JI agree with the reasons for judgment of

I certify that this 1s a true copy of the reasons for judgment herein of His Honour Mr. Justice