"9 AND the Plaintiff seeks payment of workers compensation in accordance with the Workers' Compensation Act.

(a) Weekly payments of compensation from the date that the Defendant ceased making such payments to the date hereof and continuing.

(b) Medical expenses - particulars to be supplied.

(c) Travelling and other expenses - particulars to be supplied.

2 Counsel for the parties agreed that it would be sufficient for their purposes if I answered the following questions:

"1 Did the Plaintiff suffer injury by accident arising out of and in the course of his employment with the Defendant on the 8th June, 1984?

2 If 'yes' did that injury by accident result in incapacity for work after the 11th March, 1985?

3 Was any such incapacity for work total or partial?

4 What was the duration of such incapacity?

5 If partial incapacity at what rate is the Plaintiff entitled to be compensated?"

3 It is noteworthy that the pleadings were in the common form of an action for compensation, and the specific questions follow that form. Although the issue of wrongful termination was raised in the pleadings no consequential relief was sought, nor did either party seek to call in aid the procedural provisions of Part VIII of the Statute. Nevertheless, the issue of wrongful termination was pursued in the trial, even to the extent of adducing evidence from a representative of the defendant's insurer. In my opinion the history of payments by the defendant and their termination is irrelevant to the issues which I must determine - which essentially are:

Did the worker suffer a compensable injury? If so, what incapacity was thereby caused and what incapacity does he now have?

Evidence of the employer's view as to what it should pay and when it should stop and its actions consequent on those views is inadmissible on those issues.

4 I have said this because there was a dispute at the bar table as to the onus of proof, counsel for the plaintiff submitting that it rested on the defendant to justify cessation of payments and counsel for the defendant submitting that it rested on the plaintiff to satisfy the court firstly that an award should be made and secondly as to the quantum of the award.

5 A similar situation arose before Neasey J in Barber v Australian Pulp and Paper Mills Ltd [1981] Tas 387 NC (and TASSC 62/1981). His Honour said:

"Therefore, since sub-paragraph 21(1)(e) did not justify the defendant's action in terminating weekly payments, and it has not sought to justify its action under any other part of s21(1), the defendant remained liable to pay compensation up to the full extent of the plaintiff's rights under the Act." (The emphasis is mine)

But it is significant however that his Honour analysed the evidence and found that "the plaintiff was and had remained partially incapacitated at all relevant times".

"But in any event, if the employer wishes to terminate or diminish weekly payments he must follow the procedure laid down by, or justify his action under, s21(1). This the employer did not do in the present case, and accordingly it was not entitled to cease making payments of compensation when it did. Accordingly, the plaintiff succeeds in his workers' compensation claim; but as I am presently uncertain on the evidence for what amount the plaintiff should have judgment, I propose to invite counsel to make further submissions on that matter."

7 The first passage cited highlights the problem inherent in the Statute. Although termination of weekly payments otherwise than in accordance with s21 is unlawful, no consequence flows therefrom. This fact was noted by Burbury CJ in Gamble v Brown's Constructional Enterprises Pty Ltd (TASSC 28/1962: Noted in [1962] Tas SR at 368). His Honour said:

"There is however no specific sanction prescribed for termination of payments in contravention of the Section (Cf Sec30(5) of the New Zealand Workers Compensation Act 1956 providing for a penalty in the form of double compensation). Presumably however, a prosecution would lie under Sec2 of the Contravention of Statutes Act 1889."

8 I am sure that his Honour would have agreed that the efficacy of any such prosecution would be to say the least doubtful and would provide no satisfactory remedy for the worker. I note also that in Routledge v A E Jack Nominees Pty Ltd [1982] Tas SR 81 Cox J held that a court hearing a claim for workers compensation has no jurisdiction to grant injunctive relief.

9 When, therefore, an employer unlawfully terminates weekly payments, all that can be said is that he "remains liable to pay compensation up to the full extent of the plaintiff's rights under the Act". (See per Neasey J supra.) But the plaintiff's rights under the Act depend upon the occurrence of a compensable injury and consequential incapacity. Until those facts are established and the extent and duration of the incapacity are quantified, the worker has no rights. The payments made do not constitute an agreement to make future payments and so there is no right to sue in contract (in Gamble Burbury CJ treated the payments as evidence of incapacity but in my respectful opinion, they are not). There is no award or judgment which the court can be moved to enforce. The unlawful cessation of payments does not give rise to an unqualified right to receive further payments, because the worker's right thereto rests only on his incapacity and must begin, cease or diminish when his incapacity begins, ceases or diminishes.

10 The legislation giving a right to seek a review (see ss22 and 23) does not in terms give a right to seek restoration of payments, and seems inappropriate for a worker whose payments for total incapacity have ceased. He certainly would not seek termination or diminution, and could hardly ask for an increase. The result is that a worker whose payments have been unlawfully terminated has no option but to commence (perhaps a long time after he suffered his injury) an action in which he must prove the basic facts upon which his rights depend. In such an action, he must carry the burden of proof. He who asserts must prove (cf J & H Timbers Pty Ltd v Nelson [1972] HCA 12; (1972) 126 CLR 625).

11 By way of aside, I note that if s13 had followed the UK procedure and provided for the registration of every original weekly payment end given that registration the force of an award or judgment, many of these difficulties would not have occurred. (See Cory Bros & Co Ltd v Hughes [1971] 2 KBD 738 at 743 per Cozens-Hardy MR.)

12 In this case, I am satisfied that on 8 June 1984 the plaintiff suffered an injury by accident, and that the in jury arose out of and in the course of his employment, and that as a result of the injury he was incapacitated. I will not spell out the evidence which led me to those findings because I understand Mr Bessell's challenge to them to be no more than nominal. The real issues are the degree and duration of the incapacity and the consequences of a subsequent event.

13 The plaintiff is an unlettered man. He was neither an apt nor a willing pupil at school, and was sent to live with his uncle on a farm. He left school at 15, and took a job as a plumber's labourer, basically as a drain digger. After that he worked as a labourer for the Hydro Electric Commission. At age 22 (he is now 42) he obtained a crane operator's licence and since then has worked as a crane operator and fork lift truck driver. He commenced work for the defendant Board in 1971 (he would then have been 26 or 27). He has no clerical skills and no experience at indoor work of any kind.

14 He has had previous injuries to which his reaction has been stoic. In 1974 he was injured whilst riding a motor cycle, and suffered fractures of the thoracic spine. After treatment he returned to work and had no continuing spinal problems. In 1981 he suffered an injury to his lower back whilst driving a fork-lift truck and returned to work after 3 to 4 weeks physiotherapy. I gained the strong impression that he was neither a malingerer nor a person whose work-motivation was liable to be noticeably diminished by physical discomfort.

15 He says that his symptoms have remained unchanged since the accident in June 1984. He has numbness in the legs on waking and finds it difficult to walk for the first 2 hours or so of the waking day. Thereafter he can walk quite well, although hills present a problem. Some degree of pain is constant. The pain is exacerbated by lifting or arm-raising (such as hanging out washing). Travelling in buses is very painful and prolonged sitting increases his discomfort. He described an average day in these terms:

"... I get up about seven, get my daughter's breakfast. Wait until she gets dressed for school, walk her around the corner to the bus stop, come back home, read the paper for a while, watch a bit of TV, muck around for an hour or two out in me hothouse until about three o'clock and then go and pick me daughter up. Watch a bit more TV and then it's tea time and then watch TV and the day is finished."

16 He said that he can plant out seedlings but cannot dig. He has resigned his employment with the Board and collected his superannuation.

17 On 8 January 1987 he was involved in an incident (non-combatant, as I understand it) at a hotel as a result of which an 8-ball cue passed up his nostril into the brain. He lost the sight of one eye and has developed epilepsy. It seems to be common ground, and in any event I find, that he is now unemployable. There was some dispute at the bar as to the significance of this later injury, the plaintiff by his counsel claiming that his "incapacity" is to be determined by an assessment of his present condition, and counsel for the defendant submitting that the consequences of the second injury should be ignored. In my opinion, the defendant's submission is correct. I can do no better than to quote from the judgment of Jordan CJ speaking for the Court in Banco in Salisbury v Australian Iron & Steel Ltd (1943) 44 SR NSW 147 at 161:

"In the present state of the authorities I think that, at any rate as a general rule (for this is a field of law in which it is unsafe to dogmatise), the compensation rights of a worker who has been incapacitated by an employment injury are neither reduced nor increased by incapacity caused by a supervening non-employment injury, however arising. Thus, if a worker who is still incapacitated by an employment injury sustains a non-employment injury which totally disables him, this does not affect his right to receive worker's compensation. If his employment injury was permanent and total, he is still entitled to full workers' compensation: Ward v Corrimal-Balgownie Collieries Limited [1938] HCA 70; (1938) 61 CLR 120 at 140; Austn Digest (1934-39) 2708. If permanent end partial, he is still entitled to the compensation appropriate to partial incapacity: Corey Bros Co Ltd v Hughes [1911] 2 KB 738; Harwood v Wyken Colliery Co [1913] 2 KB 158; McCann v Scottish Co-operative Laundry Association [1936] 1 All ER 475; Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; (1938) 61 CLR 120 at 130-1, 135- Austn Digest (1934-39) 2708; Parr v Richard Haworth and Co Ltd [1940] 3 All ER 43. On the other hand, if his employment injury was one the disabling effects of which would, sooner or later, cease, so that it produced only temporary incapacity which would in time disappear, the fact that the worker whilst still temporarily incapacitated sustained a non-employment injury which totally and permanently incapacitated him, would not increase his right to workers' compensation. His right to this would cease when, in the ordinary course of events, his employment injury would have ceased to be incapacitating; Stowell v Ellerman Lines Ltd (1923) 16 BWCC 46. It is only in respect of his employment injury as a source of incapacity that he is entitled to workers' compensation."

(See also Aitken v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 NSWSR 20.)

18 Five medical experts gave evidence. One had little, if any, memory of the patient. The others expressed varying opinions, both as to the extent of the plaintiff's disability and its pathological cause. I think that it is not unfair to them to say that the starting point of their diagnoses is pain. If the patient suffers pain, and bony defects and disc protrusions are excluded, then various hypotheses can be put forward as to the pathological derangement which produces the pain. The validity of these hypotheses cannot be demonstrated. Speaking of "soft tissue injury" Mr Duffy said:

". . . I think when we use that term we are really saying that we can't find any other specific cause and therefore we assume that it is this type of injury. It's not the sort of injury where one is going to take a piece of the tissue and have it examined, to do an operation to look to see if the specific injury is there or indeed in which investigations are likely to be helpful in reaching a diagnosis so it has to be a clinical diagnosis and it is rather a woolly diagnosis, and on that basis there's got to be a big variation between, in the natural history because some must be worse than others."

19 The medical experts noted varying degrees of leg function and reached different conclusions as to the plaintiff's capacity to return to work. In reaching those conclusions they were, to some extent, straying outside their field of expertise, for they have little or no real experience or knowledge of the strain and stresses produced in the course of crane operating or fork-lift driving or indeed in any kind of commercially used manual labour. I do not propose to venture any opinion as to whether the plaintiff's condition is best described as "joint irritation", "internal disc disruption" or "general ligamentous strain to his back".

20 I do accept the plaintiff's evidence of his continuing pain in the lumbar region. I am impressed by the fact that Dr Howes, who supervised his treatment at the Douglas Parker Rehabilitation Centre, could say in October 1986 (and not resile from it in the witness box):

"This man still has a problem in his back. He is still getting pain from his back and he still has limitation of movement from his back. I think his problem is in the posterior compartment - in the posterior joints, but this may be debatable. However, he is in no fit condition to lift any heavy weights, to stand in one position, or sit for any length of time. In other words he could not return to his previous employment as a fork lift driver where he was required to sit for long periods and at other times lift the heavy weights involved in the setting up the cranes."

21 I find that the plaintiff suffered an injury to his lumbar spine on 8 June 1984, that he has not since that time been able to carry out his duties with the defendant Board. I further find that because of that injury alone he is unfit for work involving repeated stooping, any moderately heavy lifting, prolonged sitting, driving a vibrating vehicle, digging, use of vibrating machines and the like. In other words, he is because of his back injury unfit for almost all, if not all, outdoor manual labour. He has no clerical skills, and no experience as a storeman or in any form of "inside" work. It was suggested that he might find work as a parking attendant for the defendant Board - the suggestion was hypothetical as in his present condition such work would be hazardous - but vacancies for parking attendants, like those for the switchboard operators of past years are very limited in number. I find very persuasive these words of Fletcher Moulton LJ in Cardiff Corporation v Hall (1911) 1 KB 1009 at 1020 - 1021:

"There can therefore be no general principle, ie, a principle true in all cases, that in the case of partial incapacity the employer is required not only to shew what work the workman can do but also to shew that he can get such work. But on the other hand I am also of opinion that there are cases in which the onus of shewing that suitable work can in fact be obtained does fall upon the employer who claims that the incapacity of the workman is only partial. If the accident has left the workman so injured that he is incapable of becoming an ordinary workman of average capacity in any well-known branch of the labour market - if in other words the capacities for work left to him fit him only for special uses and do not, so to speak, make his powers of labour a merchantable article in some of the well-known lines of the labour market, I think it is incumbent on the employer to shew that such special employment can in fact be obtained by him. If I might be allowed to use such an undignified phrase I should say that if the accident leaves the workman's labour in the position of an 'odd lot' in the labour market, the employer must shew that a customer can be found who will take it. For in such a case we are not in truth dealing with fluctuations of the labour market at all. We are dealing with the chance of some one being found who can and will avail himself of the special residue of powers which has been left in the workman, and, seeing that it is the result of the accident that the workman has been made dependent on the finding of such a special employer, it is right that those who are liable to pay to him compensation for his loss of earning power should only be allowed to take credit for his partial capacity for work if they can shew that it can actually be made productive of remuneration to him."

22 Because of the plaintiff's brain injury no real opportunities could be demonstrated. But it is useful to consider whether, even in a state of nearly full employment, any real avenues of employment would be open to a man with a background like the plaintiff's and suffering the back pain, persisting and liable to aggravation, which he suffers. I would think that any such avenues would be at best sporadic and liable to be closed off. I therefore conclude that he is and has been since 8 June 1984 totally incapacitated. The specific questions are answered:

1 Yes

2 Yes

3 Total

4 Continuing

5 Unnecessary to answer

23 There will be judgment for the plaintiff. I accept counsel's invitation to leave the arithmetic to them.