Liverpool/Fairfield Disabled Persons Resource Service Inc v Liew [2002] NSWCA 31 | Case summary

Judgment 1 BEAZLEY JA: I ask Heydon JA to deliver the first judgment. 2 HEYDON JA: This is an application by the claimant, the respondent below, for leave to appeal against parts of an award made by Walker CCJ, QC, on 8 December 2000 in favour of the worker. 3 On the materials filed, the relevant parts of the award are those awarding compensation for permanent impairment of the worker's neck and arms. The sums awarded in those respects under s 66 of the Workers Compensation Act 1987 (NSW) total $11,750. Mr Hislop QC, who appeared for the claimant with Mr Catsanos, neither having appeared below, accepted that even if one takes into account a flow-on effect in relation to the s 67 award leave would be needed. Leave would not be granted if the proposed appeal raised no point of law, and that is one factor which the worker urges against the grant of leave: Compensation Court Act 1987 (NSW) s 32. 4 The worker complained of pain after incidents at work while employed by the claimant on 19 September 1996 and 3 April 1997. She claimed permanent loss compensation in relation to injuries to her neck, back and arms. The trial judge's award upheld the substance of those claims. As the matter was put in oral argument, it is in fact the claims only so far as they relate to the arms which are now controversial. 5 At the outset of the argument it was pointed out that the summons seeking leave to appeal appeared to have been filed out of time. It was filed on 24 July 2001, more than six months after the trial judge's orders. It should have been filed in late January 2001 according to the Supreme Court Rules Pt 51 r 4(1) and Pt 2 r 5(1). 6 Even if an appeal had lain as of right, it should have been instituted at the same time: Pt 51 r 5. Accordingly, the claimant requires an extension of time within which to file the summons pursuant to Pt 51 r 4(6), and Mr Hislop did not dispute this. 7 It is customary for applications to extend time to be made by notice of motion, supported by an affidavit explaining the delay. There is no notice of motion and there is no affidavit. Nothing more can be inferred from the materials which were before the judges of this Court at the time when the argument commenced than the following. By 20 December 2000 the solicitors for the claimant, Pricewaterhouse Coopers Legal, had "received instructions to appeal", according to a solicitor's affidavit dated 20 December 2000. That affidavit was filed in support of an application for a stay made to the Compensation Court by notice of motion bearing that date and filed on 21 December 2000. On 1 February 2001 an amended notice of motion dated 30 January 2001 was filed seeking a stay, but only so far as the award related to the worker's neck and arms. The supporting affidavit stated that the claimant's solicitors had received instructions to appear on that more limited basis. By that date, the twenty-eight day period fixed by Pt 51 r 4(1), excluding the sixteen day period from 25 December 2000 to 9 January 201 pursuant to Pt 2 r 5(1), had expired. There is in the papers a notice of appeal with appointment dated 9 March 2001. It bears a file number CA 41051/00, which contradicts the date on the notice of appeal. 8 Mr Hislop relayed to the Court a number of propositions by way of instructions seeking to explain what had happened. It is not, in the circumstances, necessary to set them out. The Court sent for the file CA 41051/00 and also examined the file in this matter which is 40545/01. In consequence of the labours of the presiding judge, it is now possible to state that the relevant chronology appears to be as follows. 9 On 8 December 2000 the trial judge gave judgment. On 21 December 2000 in matter number 41051/00 a notice of appeal without appointment was filed. It may be interpolated that at that time a proposition that no leave was needed was a defensible proposition though no Pt 51 r 8 affidavit was filed. On 16 March 2001, in the same matter, a notice of appeal with appointment was filed within time. On 30 May 2001 an affidavit was sworn in 41051/00 in support of an application seeking leave to appeal. However, no summons seeking leave to appeal was filed. On 31 May 2001 the affidavit just referred to was filed. On that day the matter came before Registrar Irwin. He stood the matter over until 19 July 2001 with a direction that the summons for leave to appeal be filed by 28 June 2001. No such summons was in fact filed in proceeding number 41051/00 but on 28 June 2001 a summary of the claimant's arguments was filed in those proceedings. On 19 July 2001 the matter was stood over by the Registrar to a "dormant callover" on 31 August. On 31 August by consent the proceedings were dismissed with no order as to costs. In the meantime, on 23 July 2001 a summons for leave to appeal was filed in the present matter, namely 40545/01, and that summons appears in the White Book before the Court. 10 A summary of the claimant's argument as prepared for proceedings number 41051/00 was filed in support of the summons in 40545/01 in the sense that it was simply photocopied and added to the papers in the second set of proceedings. 11 On 17 September 2001 the Registrar stood the matter over to 8 October. On 8 October he stood it over to 22 October. On 22 October he directed that the hearing of the summons for leave to appeal and of the appeal itself if leave were granted should be heard together. On the following day, 23 October, by letter, the claimant was required by the Registrar to put the White Book in order. 12 In the course of argument the presiding judge pointed out, and I would agree, that the amount of legal fees used up in relation to these procedures - the duplication of documents, the duplication of files, the confusing photocopying of documents and the insertion of them in the second file - was wholly disproportionate to the amounts in dispute. 13 The position remains that no affidavit explanation has been offered as to why things were done as they were done. Mr Hislop with his customary good sense frankly conceded that the events which had happened should not have happened and their occurrence was regrettable. 14 Whether or not this kind of procedural background amounts to a sufficient reason in every case for refusing an extension of time and therefore for dismissing the application for leave to appeal is a question which can be put on one side. What has happened, taken as a whole, amounts to a very strong reason for refusing to extend time. This is so even though Mr Hislop pointed out that there was no prejudice to the worker in the sense that the worker was on notice from an early time of the claimant's desire to challenge the trial judge's orders. 15 It is not necessary to consider whether what has happened by itself would justify a refusal to extend time. It is desirable instead to consider the ultimate question - whether strict application of the rules would or might occasion injustice. Whether injustice would be caused depends on an analysis of the merits of the leave application itself. 16 A further difficulty of a procedural character arises from one aspect of the claimant's attempt to show that the intended application raises a question of law. The claimant submitted: "The Opponent bore the onus of establishing permanent loss of use or impairment pursuant to s 66. There was no evidence upon which to base his Honour's findings. The evidence on the point was not sufficient, in the sense that it was not evidence which if fully accepted would properly base the finding of permanent loss of use of the upper limbs or impairment of the neck - Ambulance Service of New South Wales v Daniel [(2000) 10 NSWCCR 1] at 711. His Honour failed to take into account the change in the Opponent's condition since Dr Wallace's report, or if he did, he failed to give adequate reasons for His conclusion that there was a permanent loss of use of each upper limb and permanent impairment of the neck. There were issues concerning the causation of any impairment of the neck, whether it was attributable to the nature and conditions of the Opponent's employment in respect of which no claim was made and the application of s 68A of the Act. His Honour relied upon his own opinion as to matters of medical causation in determining these issues. It is submitted this was erroneous and his Honour should have had regard to the evidence of the medical experts whose opinions were before him." 17 The points made in those written submissions were amplified to some extent by Mr Hislop in oral argument. 18 The difficulty is that an evaluation of whether there "was no evidence" or whether the "evidence … was not sufficient" or whether the trial judge "should have had regard to the evidence of the medical experts" would turn on an examination of all the relevant evidence. The papers include reports tendered on behalf of the claimant to the trial judge from three doctors. It does not include reports of a radiologist and a chiropractor tendered on behalf of the claimant because, it is said, the Compensation Court has destroyed the file. Most importantly, however, the papers do not include the two reports of Dr Wallace, tendered by the worker, on which the trial judge relied. The absence of those reports is unexplained. It was for the claimant to prepare the appeal papers satisfactorily as the Registrar had requested on 23 October 2001. 19 The efficient discharge of this Court's work depends on the central materials being available for consideration by judges before appeals, or applications for leave to appeal, are called on. The unexplained failure of the claimant to have included the vital documents in the materials is capable of operating as a further reason why the applications for an extension of time and for leave to appeal should be refused. 20 Another reason which, in my opinion, standing alone would justify a rejection of the claimant's applications centres on one of its attempts to establish that a point of law is in issue. That attempt revolves on an argument that the trial judge misdirected himself on the meaning of the word "permanent" in the Workers Compensation Act 1987. The claimant submitted: "His Honour held that the word ' permanent ' in s 65(1) of the Act meant that the incapacity will persist into the foreseeable future (Judgment, paragraph 46). It is submitted this is erroneous and the definition adopted by Campbell CJ in Bourke v State Rail Authority (NSW) (1999) 18 NSWCCR 429 at paragraphs 15 and 16 that the meaning of the word ' permanent ' in s 65(1) of the Act requires that a s 66 loss, before it is to be compensable, should be likely to ' last indefinitely without change ' is to be preferred. The facts established were necessarily outside the statutory definition of ' permanent loss of use ' or ' permanent impairment '." 21 The worker, in answer, submitted: "It was accepted at the trial that the Opponent was entitled to an award for permanent impairment of the back (T23.8). The issues identified by the Claimant at the trial was 'nexus' in respect of the neck and hand, not permanency as is now submitted (T21.3)." 22 Issues as to permanency were not put specifically in issue on the pleadings. The trial judge did say that the respondent put in issue "permanency of the impairments and losses" and he also referred to the fact that one issue was whether there was a permanent loss of the efficient use of both arms. He seems to have done this only on the basis that he was turning his mind to the statutory criteria. The actual oral argument before the trial judge does not appear to put permanency in issue. 23 At the close of the respondent's case, the following dialogue took place: "HIS HONOUR: What are the issues - quantum, section 68A. MR BAKER: That and finally I suppose nexus in relation particularly to the issue of the neck and the hand. HIS HONOUR: So causation, neck, hand. Quantum section 66, section 68A in respect of neck and hand, arm. MR BAKER: Neck and arm and back." 24 The transcript does not record any submission advanced on behalf of the respondent below about what "permanent" means. At one point the submission was: "MR BAKER: What we would say is when you look at the various tests of this lady's low back she has got some degenerate changes and they are consistent throughout the radiology. I am not going to take you through each and every piece of it but there is undoubted degeneration in that site of her anatomy. Now, it is consistent we would submit that spontaneous onset of that sort of pain, having walked down a corridor and stopped, that you can have a cramp in your low back as a result without any specific episode to cause that. That is consistent we would say with some onset of naturally occurring movement she has made or something she has done, that has upset the low back and she has some symptoms. They pass off because it is what you would only describe as, if there was an incident, really low grade. Funnily enough all the symptoms dissipate readily thereafter although they do come back. Now, they do come back without, she says, any particular cause. That is that at some point thereafter she would notice back pain or not and indeed you will recall that prior to the second episode she noticed her back was getting worse in any event. She was about to go and see the doctor when she has the second episode. What we would say is that is consistent with the effects of the underlying degenerative condition. So when she does the lift she upsets it even more so, particularly if she is in a position where she is a little vulnerable in any event. In our respectful submission that second episode is consistent with an aggravation of those degenerate changes and, if you accept what she says, that aggravation continues. HIS HONOUR: Is there any medical evidence to support this theory of yours? MR BAKER: Yes, I think that is what most doctors would ultimately say is the course. No one says she has a frank lesion, she has an upset low back problem, muscular ligamentous over degenerative changes. I think that is the tenor of the medical evidence overall if you accept the fact that is the cause of the problem. My doctors would say that might be so but it is temporary and she is better. If you accept what she says and you take on board her continual complaint of problems thereafter then you would provide for a permanent loss in relation to the low back. Our arguments are that if you do accept that argument then the 68A component will be deducted. From my doctors, as I say, they range from Dr Parameswaran who says it is all that and nothing else through to whatever aggravation it has caused has gone in any event and what she has got, is what she has got. So, what we would say is we have a total defence on 68A. If your Honour is against me on that the range is somewhere between 0 and 100 per cent obviously in terms of 68A and your Honour can draw what conclusion you will on the balance of the evidence that is before you. Then we go to the next part of the anatomy which is the leg. Now, the leg onset appears once again to occasion at a time disparate from the episode. Her recollection in cross-examination is that it was about the time she was doing the Back in Action programme, circa March 1998. So we are almost a year out from the inquiry when she notices this pain in her right leg. The goods news, I suppose, is that, and we would say consistent with the fact that the aggravation or degeneration has calmed down, it is dissipated. She has what she describes as pain in her sitting bone, which I interpolate to be the top of the right buttock underneath the pelvis and what we would say is that is perfectly consistent with a degenerative change being manifest by sitting too long, you get a sore butt. If you make the wrong move you get that sort of symptom. She is a candid witness and she has deposed to the fact there has been improvement over the last 12 months. In our respectful submission Dr Wallace's opinions, and when you have the chance of reading it, I am not going to go through it in detail -- HIS HONOUR: They are a little dated are they not? MR BAKER: They are but he is reliant on her presentation at the time and it seems that presentation, when you go through the balance of medical evidence, has improved. Her range of movement and freedom is significantly better now than it was circa October 1999 and that is consistent with what she says. There has been some improvement. I cannot get around the fact that she says, 'I still have this back pain which occurs and I still have to take the occasional Panadol and occasional Tryptanol and I will have my regime of treatment from the chiropractor or masseurs.' I cannot get around those and they are there. In our respectful submission you would not be satisfied on the balance that she demonstrated the loss in the hand or the pain in the neck results from the injury in either 1996 or April 1997 with its late onset and its anterior history. Dr Wallace, unfortunately, does not have any of that history and has not dealt with it in his report. He has just gone straight on what appears to be a simple history of having all these problems after a couple of episodes and she has still got them and therefore they are all related. In our respectful submission it is not that easy with this other history that is now in place, proven disc lesion et cetera in the neck and that all ties in with the current symptoms she has in relation to both those components of her body. Dealing with the back and leg well, as I say, if you accept my doctors and I would submit you ought, then the aggravation ceased and she is entitled to nothing. If you are against me on that and find the continuum of complaint in relation to the back exists then I would submit you ought to take at least a 68A deduction of the figure in relation to the back." 25 In short, the respondent conceded that a finding of permanent loss in relation to the back was open, subject to s 68A questions, but that the arm and neck pain was not caused by the two injuries complained of. The respondent's argument was not that the complaint about the arms and the neck did not reflect permanent injuries; rather it was that the worker had failed to prove that her arms and neck symptoms resulted from the work injuries. The trial judge was not taken to any authority on the meaning of the word "permanent". He was not taken to any distinction between incapacities persisting into the foreseeable future on the one hand and those which will last indefinitely without change on the other. The reason why the argument did not proceed along those lines was that the respondent was seeking to defeat the claimant's case at an earlier point by relying on the contention that the work injuries had not caused the symptoms at all. 26 While the change in posture on the part of the respondent below in this Court might not necessarily prevent it running a different argument on the appeal if leave were granted - a question which it is not necessary to decide - the change in posture is relevant to the grant of leave, particularly where so small an amount of money is in dispute. In my opinion it is a material and decisive factor against the grant of leave. 27 In fairness to Mr Hislop, he did say that no legal doubt now existed about the meaning of "permanent" in view of authority decided in this Court since the time of the hearing before the trial judge. He allocated issues relating to the construction of the word "permanent" a very limited role in the hierarchy of arguments he advanced in this leave application. 28 Another method by which the claimant attempted to expose a point of law for the consideration of this Court on the appeal if leave were granted was to argue that there was no evidence in support of the trial judge's conclusion about permanent injuries. In writing, the claimant drew attention to the language employed by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156, as analysed by Hodgson CJ in Eq (Sheller JA and Beazley JA concurring) in Ambulance Service of New South Wales v Daniel (2000) 19 NSWCCR 697 at 711. 29 In short, the claimant contended that, since the worker bore the onus of establishing permanent injuries, it was necessary for her to point to "evidence, which if fully accepted could properly base the finding of fact" in her favour. 30 Mr Hislop supplied to the Court copies of Dr Wallace's reports. Dr Wallace explicitly said that there was a permanent loss of efficient use of her left arm below the elbow of five per cent and a permanent loss of efficient use of her right arm below the elbow of five per cent which losses were directly attributable to her injuries. He also noted as part of the history the worker's complaint of "weakness in her hands bilaterally": this was, on current authority, admissible as evidence of the fact under s 60 of the Evidence Act 1995 (NSW). Dr Wallace's reports were not objected to. They were not admitted on any limited basis, pursuant to s 136 of the Evidence Act or otherwise. Dr Wallace was not cross-examined. 31 In oral argument, the claimant contended that there was no evidence of any problem with the claimant's right arm. It is true that the worker gave no sworn evidence about any problem and indeed she appeared to deny that there was any problem. Mr Hislop pointed out that there was no frank injury to either arm and any pain that was being suffered must be referred pain. Accordingly, it was necessary to examine whether there was a reduced use in either limb in consequence of the injuries. He contended that there was no evidence of a reduced use of the right arm. In particular, there was no evidence of any loss of use that could be brought within the definition of "permanent" laid down in Dale v Ansett (2000) 20 NSWCCR 1, namely a state of affairs which would last indefinitely without change as opposed to temporarily. 32 The difficulty is that Dr Wallace's evidence was evidence in the case. It might have been unsatisfactory, and it might have been unsatisfactory for the trial judge to have relied upon it, but whether it was unsatisfactory was not investigated with Dr Wallace. For that matter, its deficiencies were not explicitly pointed out to the trial judge. Mr Joseph SC, who appeared for the worker with Mr Todd, was good enough to point out that at one point Mr Baker, who appeared for the claimant below, phrased his submissions in terms of a "loss in the hand" which is consistent with the proposition that there was no loss of capacity in both hands. However, that scarcely flags the point now strongly relied upon by the claimant very sharply. 33 It is necessary for persons in the position of the claimant to face up to the limitations on appeals from the Compensation Court to this Court. That in turn involves facing up to the fact that if there is a small amount of evidence in favour of a proposition, no matter how strong the evidence against it or how great its internal weaknesses are, it cannot easily be said that there is no evidence. I would not wish to rule out the possibility of a future argument to the effect that the test enunciated by Hodgson CJ in Eq may have to be refined if there is a very small amount of evidence which standing alone could support a finding of fact but which is contradicted by a mass of much more convincing evidence to the contrary. Whether any such refinement would be sound is highly controversial. But this case is not a satisfactory vehicle for a further examination of Hodgson CJ in Eq's analysis of Glass JA's reasoning. 34 The claimant, in oral argument advanced by Mr Hislop, then went through the key elements of the trial judge's reasons for judgment on this issue. He commenced by referring to paras 2(d), 10 and 15. He pointed out that to that stage the trial judge had not recorded any evidence indicating a loss of capacity to use either of the upper limbs. He then took the Court to paras 39(5), 44(c) and 45-48. He contended that no adequate reasons had been expounded by the trial judge for his conclusion that the soft tissue injuries to the claimant's neck and back were permanent and indeed no finding had even been recorded of permanent injuries in relation to the limbs. He then took the Court to the conclusion which amounted to an adoption of Dr Wallace's opinion that there had been a permanent loss of efficient use of the arms to the extent of five per cent. He developed from a number of points of view the proposition that there had been no attempt by the trial judge to resolve the conflicts in the evidence or to expose his reasoning. 35 However powerful or otherwise these criticisms are, they are ultimately criticisms of the trial judge's handling of the evidence. The trial judge, to a limited extent expressly and to a greater extent implicitly, did advance reasons for his conclusions. Whether one agrees with the reasons or finds them ideal is another question. So far as the criticisms of the claimant rested on the proposition that the trial judge had not given proper reasons and had relied solely on his own individual opinion instead of expert medical opinion, they would not support the grant of leave. 36 The final argument advanced by the claimant was to the effect that the trial judge had doubled up the compensation ordered under s 67, that is to say there were elements of both the s 66 and 67 compensation which were overlapping. Mr Hislop said that arguably the extent of the overlap was reflected in forty per cent of the figure of $17,500 for the s 67 element of the award. 37 This case has, over the months in which it has been before this Court, seen a progressive shrinking of the ambit of dispute and before this Court it essentially came down to a strong attack on an error in relation to the right arm. Even on Mr Hislop's s 67 analysis there would be an error worth $4,000 under s 66 and an error worth another $4,000 under s 67. There would be more money involved if there were merit in the arguments about the left arm. 38 Given that the definition of the word "permanent" is no longer an important question for decision and given the difficulties in the other arguments advanced by Mr Hislop above, the quantum in dispute would not justify the grant of leave. 39 For all those reasons I would refuse an extension of time and dismiss the summons. 40 It cannot be described as an injustice which calls for the intervention of this Court that the insurer behind the claimant is out of pocket to the extent of $8,000 particularly when the merits of the arguments for there being an error are as they are and particularly in view of the fact that the character of the errors cannot be described as having any importance beyond this particular case. 41 The following orders are proposed:

Liverpool/Fairfield Disabled Persons Resource Service Inc v Liew

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