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[2006] WASCA 58
Court of Appeal (WA)
2006-04-06
Smith JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : MARSHALL -v- LOCKYER [2006] WASCA 58
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Citation : LOCKYER -v- MARSHALL [2004] WADC 243
Appeal - Personal injury - Causation - Assessment of damages - Workers' compensation - Delay between hearing and judgment - Adequacy of reasons
Appeal - Personal injury - Workrelated accident - Findings of fact - Whether open on the evidence - Failure of trial Judge to give adequate reasons - Nature of accident - Whether injuries caused otherwise - Findings based on credibility - Adequacy of reasons
Practice and procedure - Issue estoppel - Decision by review officer - Whether party estopped in District Court proceedings
Personal injury - Damages - Section 93F(1) Workers' Compensation and Rehabilitation Act 1981 (WA) - Construction - "a most extreme case" of severity of disability
Supreme Court Act 1935 (WA), O 63, r 10(2)
Workers' Compensation and Rehabilitation Act 1981 (WA), s 93F
Andar Transport Pty Ltd v Brambles Limited [2004] HCA 28; (2004) 78 ALJR 907
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Danagher v Racing Penalties Appeal Tribunal (1995) 13 WAR 531
Dell v Dalton (1991) 23 NSWLR 528
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Egri v DRG Australia Ltd (1988) 19 NSWLR 600
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Girrawheen Tavern v Joseph [2003] WASCA 244
Guest v NRMA Insurance Ltd [2002] WADC 115
Hart v Griffin Coal Mining Co Pty Ltd [2005] WASCA 130
Hendrie v Rusli [2000] WASCA 249; (2000) 32 MVR 240
Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363
Lloyd v Faraone [1989] WAR 154
Lockyer v Marshall (2004) 37 SR (WA) 90
Maddalena v CSR Ltd & Anor [2004] WASCA 231
Moran v McMahon (1985) 3 NSWLR 700
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Reilly v WA [2005] WASCA 190; (2005) 30 WAR 525
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Southgate v Waterford (1990) 21 NSWLR 427
Tame v State of New South Wales [2002] HCA 35; (2002) 211 CLR 317
Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 80 ALJR 1
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Wylde v Arriaza (1997) 25 MVR 539
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
Devries v Australian National Railways Commission (1993) 177 CLR 472
Geldenhuys v Soo, unreported; FCt SCt of WA; Library No 990147; 23 March 1999
Halge v George [2004] WASCA 141
Hart v Griffin Coal Mining Co Pty Ltd [2005] WASCA 130
Marsland v Andjelic (1993) 31 NSWLR 162
McNair v Press Offshore Ltd (1997) 17 WAR 191
Re Monger; Ex parte Industrial Progress Corporation Pty Ltd [2001] WASCA 281
State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306
Waddington v Silver Chain Nursing Association [1998] WASCA 331; (1998) 20 WAR 269
1 ROBERTS-SMITH JA: This sorry forensic saga developed out of a claim by the plaintiff of a work-related injury in January 1995. The respondent (plaintiff) claimed he was driving a tractor pulling a water tanker along the race track at Ascot race course. He had to reach above and behind his head to pull a lever so as to open a tap allowing water to spray from a horizontal pipe at the back of the tanker. The tap jammed. He pulled on it again, using significant force. He says that resulted in injury to his arm and ultimately total loss of earning capacity.
2 The respondent filed a Form 22, Referral of a Question of Degree of Disability in the Conciliation & Review Directorate of Workcover (WA) ("Workcover"), on 10 December 1999. A writ was issued out of the District Court on 8 January 2001. A decision of a Workcover review officer was handed down on 6 February 2001. The appellant appealed. On 19 July 2001 the Compensation Magistrate upheld the appeal, quashed the decision and remitted the reference to the review officer for further consideration in accordance with the Magistrate's reasons. The review officer's decision on the rehearing was delivered on 20 September 2001.
3 In the meantime, the respondent's statement of claim was filed in the District Court on 7 February 2001. The proceedings there meandered on until the hearing before Groves DCJ, from 18 to 26 August 2003. There was then a delay of some 15 months before delivery of judgment on 3 December 2004 (Lockyer v Marshall (2004) 37 SR (WA) 90 ("judgment")). His Honour gave judgment for the respondent and held he was entitled to the maximum compensation allowed under s 93F of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act") for a disability of less than 30 per cent, namely $293,990. The maximum had previously been agreed by the parties at the conclusion of the hearing as being $284,615, but it is increased every year on 1 July, and so by the time the judgment was delivered, it had increased to the higher amount, that being accepted by the parties as correct at that time.
4 The appellant's notice of appeal - dated 22 December 2004 - was filed on 23 December 2004. The appeal was heard on 7 November 2005. The grounds run to some nine pages. They are prolix, extensive and confusing, and, as it transpired, do not necessarily clearly encapsulate the points sought to be argued by the appellant. They are:
"1. In relation to the circumstances of the accident:
(a) the learned trial judge should not have found that the respondent (plaintiff) injured his right elbow as a result of a single incident on 21 January 1995 by pulling with his right hand on the lever, this finding being against the evidence and wrong (Reasons [47]);
(b) alternatively, the learned trial judge failed to provide reasons for accepting that the accident occurred in the manner alleged by the respondent (plaintiff) in circumstances where the events described, namely the gate valve 'jamming' to the extent that the plaintiff was required to get off the tractor and manually release the gate valve, was not known to have occurred before, and the respondent's (plaintiff's) account lacked cogency, consistency and corroboration;
(c) the learned trial judge erred in attributing the 'jamming' of the gate valve to sediment which was capable of being removed by maintenance, there being no evidence to support that finding (Reasons [26]);
(d) the learned trial judge erred by implicitly rejecting, without due regard to its weight and cogency, the evidence of the defendant that the respondent (plaintiff) had been taught to use his left hand to operate the lever, and that to use the right hand would risk a loss of control of the tractor;
(e) the learned trial judge erred in accepting the respondent's (plaintiffs) evidence that the gate valve was disassembled for maintenance two to three times each summer (Reasons [38]), without considering the other evidence on point and without addressing adequately the appellant's (defendant's) evidence to the contrary;
(f) the learned trial judge erred in failing to address adequately the evidence of the appellant's (defendant's) sons as to their manner of operation of the tractor and the lever, which evidence was the subject of cross-examination and comment as to weight;
(g) the learned trial judge erred in failing to address adequately the evidence of John Ransom that he had never had any difficulty with using the lever and would have used his left hand to operate it (Reasons [20]);
(h) the learned trial judge erred in failing to address adequately the expert evidence of Martin Simms as to the use with which the lever could be operated with the left hand and the degree of force required to open the gate valve (Reasons [21]);
(i) the learned trial judge erred in using the verbs 'to jam' and 'to stick' interchangeably, without discernable reason, in a manner which implicitly suggested that what the respondent (plaintiff) described as 'jamming' was the same event that other witnesses described as 'sticking'; and
(j) the learned trial judge erred in rejecting the appellant's (defendant's) evidence he was not aware of the problem with the sticking valve (Reasons [38]), when in fact the defendant had acknowledged that in his experience the valve could be 'a bit stiff, but no excessive force was needed' to release it (Reasons [19]), and failing to deal at all with the appellant's (defendant's) evidence that the valve did not require maintenance;
and in all the circumstances the findings of fact made by the learned trial judge in respect of the circumstances of the accident are either fundamentally mistaken, or result from an incomplete consideration of the evidence.
(a) the learned trial judge erred in finding that the event complained of by the respondent (plaintiff), ie. that the gate valve jammed to the extent that he was unable to release it by use of the lever, was foreseeable (Reasons [35]), when on the evidence that event had never previously occurred, and was not likely to occur;
(b) the learned trial judge erred by finding that 'the combination of twisting, reaching back above head height and pulling down on the lever and the fact that when the gate valve jammed, a short hard pull was required, ... exposed the plaintiff to the risk of injury', such that there was 'a real likelihood that injury could be sustained', and that the injury was therefore foreseeable (Reasons [35]), when there was no evidence upon which such inferences could reasonably be drawn;
(c) the learned trial judge erred in accepting the respondent's (plaintiff's) evidence in relation to the valve sticking without adequately addressing the body of evidence to the contrary;
(d) the learned trial judge erred in failing to give adequate reasons for accepting the respondent's (plaintiff's) evidence that he complained to the appellant (defendant) from time to time that the valve was sticking (Reasons [35]), in the face of the appellant's (defendant's) evidence to the contrary;
(e) the learned trial judge failed to give adequate reasons for rejecting the evidence the appellant (defendant) on various other points where it conflicted with the evidence of the respondent (plaintiff);
(f) the learned trial judge erred in finding (Reasons [36]) that the sticking of the valve could have been avoided by regular scheduled maintenance when there was no evidence of how any maintenance program could minimise or avoid that phenomenon;
(g) the learned trial judge erred in finding, by implication (Reasons [37]), that the appellant (defendant) was negligent by failing to install a power assisted valve opening mechanism or a Bowden cable system in place of a simple lever which had been in operation for 20 years without incident, when there was evidence that such equipment was impractical, expensive and unnecessary;
(h) the learned trial judge's finding that:
'In all the circumstances I am satisfied that the appellant (defendant) was negligent in failing to maintain the equipment, that the system of work was not safe, and that he was in breach of his duty of care to the employee.' (Reasons [39])
was not reasonably open on the evidence and constituted an error.
3. In relation to the issue of causation the learned trial judge erred in finding that the respondent's (plaintiff's) right elbow condition, diagnosed as 'lateral epicondylitis' was caused by the single incident complained of, thereby implicitly, and without giving reasons, rejecting the appellant's (defendant's) evidence that the incident could not have occurred on 21 January 1995 and that the respondent (plaintiff) did not complain to him, of the alleged injury at or about that time.
4. The learned trial judge erred in finding that an injury to the right elbow was caused in the manner pleaded without adequately addressing the conflicting evidence in relation to this issue and paying due regard to the appellant's (defendant's) analysis of and comments upon such evidence.
5. Alternatively, and generally, the learned trial judge erred in reaching findings of fact based on his acceptance of the credibility of the respondent (plaintiff) by not analysing to the depth required in the circumstances his reasons for preferring the evidence of the respondent (plaintiff) and other witnesses on issues that were clearly significant.
6. In relation to the credibility of the respondent (plaintiff) the learned trial judge erred in finding the respondent's (plaintiff's) evidence to be credible on the basis of the respondent's (plaintiff's) demeanour in the witness box and his description by the witness Old as 'a Christian spiritual man of good character' (Reasons [102]), and failed to give due weight and regard to, or adequately address in his reasons, the appellant's (defendant's) case that:
(a) the respondent (plaintiff) exhibited significant discrepancies on examination by Mr Prosser, Dr Gee and Dr Bell;
(b) the respondent (plaintiff) gave evidence which was inconsistent with his pleaded case, his counsel's opening address, and his answers to interrogatories;
(c) the respondent (plaintiff) was observed on videotape performing activities which by his evidence the respondent (plaintiff) suggested he was unable to perform, inconsistencies between the respondent's (plaintiff's) evidence and the evidence of his sons, contradictory evidence by the appellant (defendant), Mrs Marshall and other defence witnesses;
and in all the circumstances the learned trial judge failed to give sufficient reasons to justify the determination of the main issues by reference simply to the acceptance by him of the respondent's (plaintiffs) evidence.
(a) the learned trial judge erred in concluding that the findings by the review officer in the Conciliation and Review Directorate as to the causation of right shoulder disability and psychiatric illness were final and binding (Reasons [67]) in that:
(i) the decision of the review officer as to a degree of disability for the purposes of Section 93D of the Workers Compensation and Rehabilitation Act 1981 was not a final decision determining the rights of the parties;
(ii) the review officer's decision merely afforded a right to contend for damages at common law;
(iii) the issues before the review officer were not identical to those before the learned trial judge;
(b) in the circumstances it was not open for the learned trial judge to:
(i) consider himself bound by the findings of the review officer; or
(ii) adopt the findings and reasons of the review officer without giving due consideration to both sets of evidence adduced at trial as to the nature and extent of the plaintiff's right elbow injury, the causal nexus, if any, between that injury and the respondent's (plaintiff's) right shoulder, right hand and psychiatric symptoms, and the nature and extent of any incapacity for work caused by the respondent's (plaintiff's) injury;
(c) the additional findings of the learned trial judge in respect of injury and disability (Reasons [116]) did not address significant conflicts in the evidence regarding:
(i) the causation of the right shoulder condition;
(ii) the degree of disability of the right upper limb; and
(iii) the question whether the depressive symptoms experienced by the respondent (plaintiff) constituted clinical depression as opposed to dysthymia;
all of which were factually and legally complex issues in respect of which reasons and analysis were advanced by the appellant (defendant).
8. In relation to the issue of pre-existing degeneration:
(a) the learned trial judge erred in fact and law by finding that the appellant (defendant) did not discharge the evidential onus of establishing the contribution of pre-existing degenerative changes to the respondent's (plaintiff's) disability (Reasons [115]) and should have found that:
(i) there was clear and unequivocal medical evidence to the effect that the respondent's (plaintiff's) right shoulder problems were caused by a degenerative condition rather than by the accident complained of;
(ii) on the basis of Purkiss v Crittenden [1965] HCA 34; (1965) 114 CLR 164 the appellant (defendant) had adduced evidence which, 'if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to there [sic] nature and their future development and progress, were likely to be'; and
(iii) the appellant (defendant) having discharged the relevant evidential onus it was for the respondent (plaintiff) 'upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence';
(b) the learned trial judge's application of the principle in Purkiss v Crittenden was mistaken in the circumstances; and
(c) the finding that 'the degeneration is consequential upon the injury sustained' (Reasons [115]) is contrary to the preponderance of medical evidence and wrong.
9. In relation to the assessment of economic loss:
(a) the learned trial judge erred in failing to address, adequately or at all, the appellant's (defendant's) contentions that:
(i) the respondent (plaintiff) was not likely to have been employed by the appellant (defendant) after September 1995 in any event by his unsatisfactory performance;
(ii) there was no evidence that the respondent (plaintiff) (who bore the onus of proof of loss) was able or likely to have exercised his earning capacity in any other employment; and
(iii) on the medical evidence the respondent (plaintiff) was likely to be precluded from working as a tractor driver beyond age 60 in any event due to the progression of pre-existing degenerative changes lit shoulder;
(b) to the extent that findings to the contrary may be expressed or implied in the reasons for decision, the trial judge did not give sufficient or any reasons for such findings (Reasons [131]).
(a) the learned trial judge erred in fact and law by:
(i) holding that the severity of the respondent's (plaintiff's) disability represented a most extreme case of a disability of not less than 30% in degree; and
(ii) awarding the respondent (plaintiff) the maximum sum that can be awarded under Section 93F(1)(a) of the Workers Compensation and Rehabilitation Act 1981 (Reasons [133]);
in circumstances where, on the facts the respondent's (plaintiff's) disability was not such a case, counsel for the respondent (plaintiff) had not so contended (in fact submitting 80 - 90% of a most extreme case), and the learned trial judge's discretion thereby miscarried; and
(b) the sum awarded in damages should be reduced to a sum which reflects the proportion which the severity of the respondent's (plaintiff's) disability bears to a most extreme case of a disability of not less than 30% in degree.
AND FURTHER TAKE NOTICE that as the judgment below was delivered over 15 months after a seven day trial, during which there was adduced by the appellant (defendant) a substantial body of lay and expert evidence addressing numerous complex issues of fact and law relating to the circumstances of the alleged injury, the foreseeability of such injury, the system of work complained of, the credibility of the respondent (plaintiff) and his witnesses, the causation of alleged injuries and disabilities affecting the right shoulder and right hand, the causation of alleged psychiatric disorder, and the quantum of loss, all of which was the subject of careful analysis and argument on the part of the appellant (defendant), the appellant (defendant) calls in aid of the above pleaded grounds, the principles enunciated by this Honourable Court in Mount Lawley Pty Ltd v. West Australian Planning Commission [2004] WASCA 149"
5 Despite the prolixity of the grounds of appeal, it became apparent during oral submissions that in a practical sense they could all be comprehended under three categories. Those categories are:
(1) There was no breach of duty by the appellant. This is put on two alternative bases. The first is that his Honour was wrong to find there was an accident, as described by the respondent, at all. The contention here was that, to the extent the respondent suffered any injury, it was as the result of the development of a pre-existing degenerative process. The second was that even on the findings of fact actually made by the trial Judge, there was no breach of duty because the jamming described by the respondent was not something which had ever occurred before and so was not something against which reasonable prudence would have required the appellant to take action to prevent injury.
(2) The trial Judge failed to give reasons for not accepting the appellant's evidence and that of his witnesses, and that given the undue delay in the delivery of judgment, that failure rendered the verdict so unsafe as to constitute a miscarriage of justice.
(3) His Honour erred in awarding the statutory maximum amount of damages, in circumstances in which he had found this was not "a most extreme case" in its statutory category.
6 An appeal to this Court from the District Court is a rehearing (s 58, Supreme Court Act 1935 (WA); O 63 r 10(2), Rules of the Supreme Court 1971; r 4(2), Supreme Court (Court of Appeal) Rules 2005. This Court is obliged to conduct a real review of the trial and of the Judge's reasons (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; [25]). As Kirby J (with whom Gleeson CJ agreed) said in CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 at [16]:
"... the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact-finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having concluded a rehearing as so described, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge's reasons and engaging in the tasks of 'weighing conflicting evidence and drawing ... inferences and conclusions'." (Footnotes omitted)
The plaintiff's claim and the defendant's defence
7 A brief summary of the respondent's case, as pleaded in his statement of claim and elaborated by further and better particulars, is as follows.
8 The respondent was born on 2 May 1939. The appellant carried on business including the harrowing, rolling and watering of tracks at the Ascot race course. Since approximately 1989 the respondent was employed by the appellant and in January 1995 was employed as a tractor driver pursuant to a contract of employment. The appellant was under a general, statutory and contractual duty to take reasonable care for the safety of the respondent while he was carrying out his employment.
9 On or about 25 January 1995 the respondent was in the course of his employment with the appellant, using a tractor with an attached water tanker, to water the race track. The water tanker had a tap at the back and a lever at the front. The lever was connected to the tap by means of a long wire. The tap was defective and had been modified by the attachment of a metal weight to hold it closed. When the respondent reached back and pulled on the lever, so as to open the tap, the tap jammed causing significant force to be exerted through the respondent's right elbow and shoulder.
10 The tap was defective in that it was worn out; rusty; overly tight and difficult to use, which had been an ongoing problem prior to 25 January 1995, requiring the tap from time to time to be disassembled, cleaned and repaired. That was done on a number of occasions.
11 It is then pleaded that as at 25 January 1995 the appellant had not repaired the defective tap, nor had he warned the respondent of the dangers of pulling on the lever attached to the defective tap and that the accident was caused by the appellant's negligence and/or breach of contract of employment of the respondent.
12 The particulars of negligence were that the appellant was negligent in that he required or allowed the respondent to use the tractor with a defective tap on the water tank; failed to repair the defective tap by not replacing it with a new and more effective tap; failed to provide adequate information, instruction, training or supervision to enable the respondent to perform his work in a manner so that he was not exposed to hazard and failed to provide a safe place or system of work.
13 The respondent also pleaded breach of statutory duty and breach of contract.
14 By his defence, the appellant pleaded that the alleged incident did not occur; the risk of the alleged injury was not foreseeable; the "tap" (gate valve) was not defective; the gate valve did not require repair; the respondent had been properly instructed; the operation of the gate valve did not constitute a danger or hazard; and the appellant did not fail to provide a safe place or system of work.
15 The amended defence further pleads that if the respondent did suffer loss and damage as a result of the injuries alleged, he had a retained earning capacity and had failed to mitigate his loss; alternatively, if the respondent did suffer injury or residual disability, that was not caused by the accident but by a pre-existing degenerative - or other - medical condition. There were other denials of loss by the respondent and a plea that even if the respondent were entitled to damages, any award would have to be capped in accordance with the provisions in Div 2 Pt 4 of the Workers Compensation and Rehabilitation Act 1981.
16 By his defence, the appellant asserted that the respondent had not obtained, nor recorded a determination in the Conciliation and Review Directorate, of a relevant degree of disability of not less than 30 per cent in accordance with s 93E(3)(a) of the Act, nor of a relevant degree of disability of not less than 16 per cent. Pursuant to s 93F(1)(b), where a relevant level of disability of not less than 16 per cent has been recorded, the maximum amount of damages that can be awarded for the most extreme case of that disability is an amount equal to the prescribed amount, calculated in accordance with s 93F(1)(a). It was pleaded that the respondent has not suffered "the most extreme case of the disability for which he has obtained a not less than 16% determination" and accordingly, is not entitled to the maximum amount of damages prescribed by s 93F(1)(b). Finally, on this point, it was pleaded that pursuant to s 93F(1)(a), the amount of damages to be awarded is to be a proportion, determined according to the severity of the alleged disability, of the maximum amount of damages that can be awarded.
17 By way of a minute of amended reply and defence to counterclaim dated 31 July 2003, the respondent pleaded that by a decision made on 20 September 2001 in proceedings between the respondent and the appellant in the Directorate, it was found that the accident was the cause of all shoulder, arm, hand and psychiatric symptoms then complained of and that the appellant was accordingly estopped from maintaining any assertion to the contrary.
18 The respondent was born on 2 May 1939. He left school at 14 years of age. He was brought up on a farm in Western Australia and worked on farm-based activities for a number of years after completing his schooling. He then travelled to the United Kingdom where he studied at bible school and married. On his return to Australia he went back to farming, then for about three years was engaged in the tyre industry. He then became a life and general insurance salesman for several years, and rose to the position of a broker. He found that to be a most stressful occupation and suffered a breakdown. In the summer of 1987 he was engaged by the appellant as a tractor driver on race days at Ascot Racecourse. In the summer of 1988 he again went to the United Kingdom, and upon his return at the end of 1988, he continued his employment with the appellant. Initially, he drove for 4 hours a day and later that increased to 6-8 hours, and then up to 10-12 hours per day in 1991. He would keep a record of his hours worked, and at the end of each month submit that to the appellant for payment. The job involved harrowing, rolling and watering the tracks at the Ascot Racecourse.
19 As the appellant's argument was developed on the appeal it became apparent that what was being contended at the threshold was that the trial Judge had decided the case on an incorrect understanding of what the respondent was claiming to have been the cause of the problem with the valve on the day. It is therefore necessary to address this first.
20 The following description of the evidence is distilled from the judgment.
21 The incident occurred while the respondent was involved in watering the training track. He used a Chamberlain tractor with an attached water tanker. The water tanker was attached by a gooseneck arrangement centrally to the rear of the tractor and behind the driver's seat.
22 At the rear of the water tanker is a swinging gate water valve that allows water to pass from the tank to a horizontal distribution bar at the very rear of the tanker. When operating, a strip approximately 2 metres wide is sprayed behind the tanker with water which discharges through the spray bar. The water valve has a lever ("the actuating arm") located over the top of the valve and, when raised, the actuating arm opens a gate to allow water to pass through the valve. The gate is a tapered circular disc that engages with a corresponding slot in the body of the valve to control the flow of water.
23 The gate valve is opened by the tractor operator by means of a bell crank lever and cable. The bell crank lever is located on the left side of the gooseneck (as one looks at it standing directly in front of the tanker) and behind the driver. Effectively, the lever is located in line with, but above, the tractor driver's head height and is operated by the driver leaning, twisting and reaching backwards and pulling down on the lever. To open the valve, the hand lever is pulled down and then towards the rear until the cable attachment point passes below the pivot centre. The valve remains in the open position until the driver lifts the hand lever a short distance to release it above the pivot centre, and the valve is closed by gravity assisted by a weight on the valve actuation arm. The bell crank lever is connected to the valve by means of a steel wire cable which passes along the top of the tank and down to the actuating arm.
24 In his evidence the respondent said that in the early years the appellant worked alongside him. They had three machines to use. In the later years it was a case of the respondent making sure the job got done while the appellant had other things to attend to. In particular, on race days the appellant was involved on the barrier at the racetrack and he was responsible for that and for maintenance of the barrier and other maintenance around the track for the Turf Club. The appellant also had a farming property at Dunsborough which he used to attend to as well.
25 According to the respondent, it was a long, hard job he had to do and he needed help. That was provided by his sons, who used to come in and help occasionally as and when required. They were not his employees and he never paid them.
26 So far as the operation of the water tanker was concerned, the respondent said that what was shown in photographs tendered before his Honour (exhibit 1) was not quite the way it was in 1995. One difference was that the cable passed through a loop, dragging over the top of the tanker at that point, instead of through a pulley wheel as shown on the photographs. Another difference was the addition of a weight bolted to the actuating arm; previously there had just been a piece of wire to a bit of metal (or weight) hanging off the end of the arm to hold it down.
27 Asked whether he had reason to deal with that area at all during this time with the appellant, the respondent said (AB 1/83):
"---You were dealing with it every day because there was a lot of build-up of soil and that on the back of the tanker all the time. You were splashing lots of water around and kicking lots of mud up and they were all landing on there and that were continually building so you were always in there cleaning the dirt off the back of it. Over a period of time there would be a build-up of sediments et cetera inside the tank which ultimately stopped the gate from closing and hence the reason for the weight that was hanging on the end. The current weight plus the weight that I remember when I drove, it would stop it from closing right down and hence the gate would never shut off fully. When you pulled up the water would still be dribbling out the back and as the weeks went on if you didn't attend to it that would get worse, more water would dribble out. Eventually we would have to pull that whole piece apart and give it a good clean out, it might take a couple of hours or so, which I did on a number of occasions with Mr Marshall.
Did you ever have problems operating the lever and the tap prior to the accident?---Yes, there was always a problem, it was a constant thing. If you cleaned it up it was always a lot easier to operate at that point. As the time went along and the sediment built up et cetera inside the tank it got a little more difficult. The lever at the front in those days tended to pull over and drag down the side of the tanker, whereas in its current position it sits a lot more stable than it did then, so that sort of added a little bit to the fun, and every now and again the valve would stick or the piece of metal swinging around on the back off the wire would get itself jammed, which were the major problems that you had."
28 He said the problem was when one pulled on the lever to open the valve rather than when shutting it off, because it was easy enough to "flick it back" but then it depended on how dirty the gateway was as to whether or not the water kept dribbling out the back (AB 1/84):
" ... but as a general rule the major problem we had was when you turned it on and it jammed and it did that a few times."
29 He said this was an ongoing thing and the appellant knew about it and they worked on it together. It would become obvious that the weight was not doing its job and it just had to be cleaned up. They just did it when they could. That might happen two or three times in the summer period and they would maintain it during the winter.
30 He said that when operating the lever, the operator would be sitting on the tractor with his feet on the floor in the front and his right foot on the accelerator. It had to be kept on the accelerator otherwise the tractor would stop and the water would puddle. It was common ground that water puddling on the track created a serious danger to horses and riders.
31 In his evidence-in-chief the respondent was asked to describe the incident "on or about 25 January when you say you got injured". He replied that the 25th was the doctor's idea, not his. He said it was a Saturday morning. He thought he had said in his original worker's compensation claim about the 20th, but that was actually a Friday so it had to be the morning of 21 January 1995. It was a race day, a race morning. He said he was running water out onto the chip track, getting ready for the races, and when he went to turn the water on, as he swung around the corner to straighten up, he turned the water on and leaned back and as he did that it jammed. He explained (AB 1/86):
"---As I pulled the lever it just jammed. The trouble is I kept pulling it.
Did that have any affect [sic] on you?---Yes. It hurt my arm.
What did you do about it? What did you do next?---Well, the first thing was to get off the tractor and go around and release the tanker - the tap at the back. Just release it. Give it a couple of shakes and make sure it was free and then get going again.
What did you have to do to release it?---The metal piece that morning was hanging over the top of the tap area, it was hanging up on it and the tap was jammed. It's a bit hard to remember exactly the position of it but that's what happened, it just jammed the whole thing up on me and I just had to get - go and free it and just get it so I could get going again. Put it into the off position and go back and go on the tractor and get moving.
Did you complete your watering that day?---Yes. The job had to be done. It's like the postman.
Was your employer present on site that day?---He was working on the barriers.
Did you speak to him about the problem you had experienced?---Yes. I told him that I'd hurt myself at that time but only when I had the opportunity. You don't see a lot of Robert when he was out on the track and he didn't come near me that often anyway, so as soon as I could I told him what had happened and the main discussion was about getting the thing cleaned up because it was in a state where it did actually need doing. But at this time of the year you've gone through all the summer carnivals, it's once again that situation. You don't have the time, sir.
You said you had pain in your arm. How did the pain go that day? Did it persist, did it get better or worse?---Yes. It continued all the way through. The main pain area was in my elbow. That's where I felt the worst of it and that in the early part is my main memory of the amount of excruciating pain I went through at that time.
Could you continue your work at that time?---I had to continue my work."
32 When asked whether he saw a doctor, he said he went to church the following Sunday and saw a friend of his, a Dr George O'Neil. He told O'Neil about it and he recommended the respondent see a friend of his, a Dr Peter Connaughton. He said O'Neil rang Connaughton and made an appointment and he went there a couple of weeks or so later. In the meantime, he was taking painkillers as he worked.
33 He saw Dr Connaughton on 20 February 1995, and he ultimately sent him to see a Mr Prosser who was a good friend and a surgeon. That was in March 1995. Mr Prosser continued stronger painkillers and injections of Depo-Medrol, initially in the elbow and later in the shoulder.
34 As at July 1995 he said that he was still at work but was "in a lot of trouble"; the arm was getting a lot worse.
35 The respondent said that Mr Prosser discussed surgery with him, but he was not keen on that idea. Mr Prosser then suggested the best thing he could do would be to give it a break for a while and do nothing, and if it did not settle down they may have to consider surgery. As a result, he took his mother and wife and young son and went to Tasmania for a couple of weeks, returning about 14 or 15 July. He said that did not do him any good at all. He met the appellant on 12 September 1995 and had the surgery the following day. Initially he thought there was some sort of release and in the first month it was not too bad, but it was all strapped up into the sling. After that the pain was just as high as before and the shoulder was giving him trouble as well.
36 In 1997 the level of pain in the elbow was still high. Mr Prosser decided there was an entrapment of nerves in the elbow and decided to operate to release that, in March of 1997. However, that did not improve things at all.
37 The respondent detailed the course of his injury and treatment and gave evidence of loss and damage as a result. I shall return to that later.
38 He said there was no reason whatsoever why he would not have kept on working for the appellant had he not been injured.
40 He denied that from late 1994 until he ceased work in September 1995, his employment with the appellant was in jeopardy as a result of incidents out of which complaints had been made about the work of the respondent and his sons.
41 It was put to the respondent that he used to use his left arm to pull the lever to open the gate valves, but he denied that. He agreed that a photograph shown to him showed a person using his left arm to pull the lever, but he maintained that was not how it was done on the track. He said the appellant also used to use his right hand (AB 1/130):
"That's the way Mr Marshall taught you, I suggest?---What, to the right?
To use the left arm to operate the lever?---No, he did not.
That's how Mr Marshall did it?---No, he didn't.
You've just never done it otherwise?---Mr Marshall - every time I ever saw him up there worked his right hand and there was a good reason for using your right hand.
Is that reason the one that you had averted [sic] to this morning, that if you use your right hand you could keep your right foot on the throttle?---And also look out to the right to see when the tanker was position [sic] to turn it on as you moved. You had to see where you were before you could turn it on so you needed to use your right hand, turn around like that, watch to see that your wheels are in position against the rail and then turn it on. If you didn't do that you couldn't turn it on. If you turned to the left you couldn't look - - -"
"Would you not know where the tanker was by reference to where the tractor was on the rail? In other words I put to you, you weren't steering the tractor according to where the position of the trailer was?---When you come onto the track your tractor enters first. You have to swing fairly wide and then as you swing around and swing your tractor back towards the rail you need to look back to see that your wheel of your tanker is in the correct position up near the rail, and it's usually only two or three inches away. When you get to that position and you know you're correct you then pull the lever and get the water running. You have to look back to see where the position of the tanker is and then you pull the lever down, so you're using your right hand. If you're doing it with your left hand you couldn't look to the right and see the tanker was in position. No, you could not do it by looking ahead."
43 There was no dispute that the tractor and tanker combination drove around the track with the running rail on the right.
44 The respondent continued to maintain that the appellant trained him to drive the tractor one afternoon and after that he did it on his own. He said the appellant was always right-armed using the lever and he did not know of anybody that drove the tractor who used their left hand.
45 Taken to the construction of the gate valve and actuating arm, he repeated there was a weight on the end of the handle (that is, arm) of the valve originally, but now the appellant had a block actually bolted to the handle.
46 The respondent said there was always maintenance required on the tanker and although that was the appellant's job, not his, on occasion they did it together.
47 He agreed that the internal parts of the valve were made of marine quality brass and he did not think brass rusted. At that point he was taken to his further and better particulars of statement of claim in which he had asserted that the tap was worn out, rusty, overly tight and difficult to use, and had been an ongoing problem. It was put to him that the tap was not rusty. He said the use of that word was to indicate what it was like inside. There was a lot of sediment coming through which was in the water being pumped from underground. It was pretty muddy and there was shale which used to peel off from the inside of the tanker, all of which collected in the tap area. He saw all of that "junk" in there when they cleaned the tap out. It collected inside that area and had to be cleaned out.
48 Later again, he was asked about the counterweight and it was put to him that the photographs depicting a counterweight bolted to the actuating arm of the valve showed that as it was when the incident occurred in January 1995. He denied that. It was then put (AB 1/136):
"And you are mistaken about the weight being wired on at that time?---I drove the tractor for eight years, there was a piece of wire with a bit of metal hanging off the back - off the end of the things, that's it. That weight was not there at any time when I worked with Mr Marshall.
That weight that you say was wired on was removed and changed to the weight which is depicted in the photographs in 1993?---The weight that I - - -
Do you agree?---What, that it was changed in 1993?
Yes?---No, I don't agree with you at all."
"---When I left Mr Marshall that piece of wire with the piece of metal hanging off the end which was acting as a counterweight, as this one now does, was still on the tractor.
You told his Honour that that weight that you described as being connected by a wire snagged?---Well, it was swinging loose, yes.
What did it snag on?---It swung itself - at the time when I pulled the lever that day it swung itself up and it looped itself over the top here and the whole thing was jammed. It just used to do that occasionally, get caught.
But I understood you to say that you were trying to open the valve?---Yes, I was.
When you got your elbow injury?---Yes.
How would the fact that weight being over the top of the valve - - - ?---Well, you just pull it like that and pulled it quickly as you ran into it, and that didn't happen often but it did happen and the whole thing jammed.
But if the weight had swung over the bar, and I'm painting your scenario because it's not what the - - -?---Well, I'm just telling you what happened on that day.
If the weight swung over the bar how would that affect the opening? It would make it difficult to close, wouldn't it?---Look, it's hard to go back. All I can remember is having to get off the back, pull that piece out of there and pull the lever back down into place.
You've never said anything in this case up until this morning about the weight connected by a wire to the handle of the valve contributing at all to the problems that you had on the day that you say that you injured your elbow?---It was all part of the problem you had on the tanker and on this particular day that's what happened, the piece of wire hung up as it's done - look, we're going through two scenarios, we're going through the jamming up of the - that natural jamming, we're going through the bit of wire that used to hang on there, we have two things that happened on that tractor at that time.
What I'm putting to you, Mr Lockyer, is that you have never said before today in pleadings or to doctors or in briefing your forensic expert that a weight swinging over the bar snagged causing difficulty in operating the lever?---Well, I don't know what I've said to everybody else but I do know what happened on that occasion and I do know what happened on either [sic] odd occasions and I do know that sometimes it will jam. It has got absolutely nothing to do with me trying to hide any issue, the issue is there was a piece of that hanging off which threw itself up on that day and landed up on top of there. I removed that and I had to push the lever back. Whether it's a combination of the two issues at the time I don't know, all I know is that that happens.
The fact that your solicitors, you didn't tell them about the counterweight having any bearing on the - - -?---I have informed everybody of this piece of metal hanging off the back.
You were asked in the request for further and better particulars to explain what you meant by a defective tap?---Yes.
You appreciate that? You gave your answer, we've already read from it in part?---Yes.
Page 9 in the book of the papers:
The tap was defective and it was worn out, rusty, overly tight and difficult to use?
---Yes.
You made no reference there to the counterweight contributing to the - - -?---No, it is not mentioned there at all. No, it's not mentioned. It was a reference to the state of the tap.
Yes. None of the doctors that you have seen, either for treatment or for medico-legal have you described the weight snagging as you have suggested this morning?---I can only go on what happens when you work on that tanker and if it's not mentioned here - I would have mentioned it, whether or not it's in there, the main reference has been to the state of the tanker all the way through, but this was a factor with those things just hanging off the back.
If it were the case that the counterweight as it appears in the photographs numbered 9 and 10 of Mr Martin Simms - - -?---Yes.
---were the case, that's the way the counterweight appeared at the time - - -?---This counterweight?
Yes?---It wasn't there.
That didn't happen the way the way [sic] that you say, did it?---That weight was not on there prior to me leaving Mr Marshall.
Is it your case, Mr Lockyer, that the snag caused by the weight being connected by a wire caused the difficulty in operating the lever? What is it?---When you're sitting on a tractor and you're pulling a lever and the thing suddenly jams on you and then you have to get off.
Yes?---Now, some of the time when you do that it was a simple case of a lever that had got stuck or in this particular case, as on a few other occasions, the piece of metal would fly up and be sitting on top.
Yes?---It's as simple as that, so there are two scenarios involved.
What do you say happened on the day that - - -?---All I can tell you is that what happened on that day that I had to remove the metal from out of it, out of that position, and just drop it back down and then free the gate up and put it down."
50 It was put to the respondent again that he never had any problems with operating the lever or the valve. He insisted that he did and that it got sticky and it stuck and, on a few occasions "this problem with the wire, et cetera occurred".
51 It was put to him that his elbow problems just came on over a period of time, but he was adamant that was not so; that there was a specific incident that brought it on, that being the one he described.
52 Much later in cross-examination, he was asked again about his evidence that at the time of his injury there was a weight on the actuating arm suspended by a wire (AB 1/164):
"And I understand you to say that that weight had flipped over the arm?---Yes.
Over the valve?---Yes, that's correct.
When did you see that?---When I got off the back of the tractor. I had to go and reverse it.
So on the occasion that you used your left - I beg your pardon - your right arm to pull the lever and it didn't move. Is that what happened?---I didn't say it didn't move, I said it jammed.
Well, did the lever move when you pulled it?---Well, for me to have travelled any distance to have injured my arm the nature it did it, it had to move, I had to move it in the beginning, yes. It could have not injured me to the level that it did if the gate hadn't started to open.
So how far had the lever moved?---Good grief. It's eight and a half years ago. I'm coming up onto the track flat out. I pull the lever and as I pull it it jams. How far did it move? I don't know that one.
So I'm just going to clarify this. The valve wasn't jammed in a closed position?---All I can tell you is what happened is I got off the tractor, I went back, I flipped the bit of metal back down back into position and released the tap two or three times to settle it back down.
Did it appear that the weight that you say had flipped over the valve had anything to do with it jamming?---Speculation on my part. I'm not inclined to think that.
Your counsel has opened on the basis that the counterweight snagged?---Well, it was caught up there but you're asking me to speculate on whether it caused it or whether the thing jammed and it flipped up.
I'm simply asking when you went back to see what had happened - - -?---The argument has been about the status of the tap, not about a piece of metal.
So in your mind does the metal have anything to do with it at all, the weight?---In my mind clearly there's taking the bit of metal which had flipped over like that, putting it back into position, freeing the tap and getting back on the tractor and getting on with the job. Now, speculation as to whether or not the metal flipped up and caused that or whether it was the tap jamming, which it did quite on a regular basis, causing it and then causing the metal to flip up, I wasn't at the back of the tanker when it happened. You're only asking me to speculate.
Did you have to do anything to the counterweight in order to release the gate valve?---Just pick it up and put it back down again.
Did that have the effect of releasing the gate valve?---No. I still had to shift it, and you do that two or three times. Give it a good movement, make sure it's free, put it back into position, get back on your tractor and get on with your job."
53 Asked if he attached any significance to the fact there was a counterweight suspended by a wire from the valve arm, he said he would be speculating as to whether that caused the incident or not; his own feeling was that when it jammed like that (and it was not the first time it had happened) it jams and the force of the sudden stop flicks the weight over. He was not saying the metal counterweight caused it, but nor was he saying it did not have something to do with it; he was saying (only) that the tap jammed. He moved the valve back by pushing it down and lifting it up a few times to free it and make sure it was loose.
54 It is convenient to deal with these grounds together. The respondent had pleaded that the gate valve was defective in that it was "worn out, rusty, overly tight and difficult to use". The appellant argues now that in his evidence the respondent was claiming the valve "jammed" because the counterweight attached by a length of wire to the actuating arm swung up and over the valve causing it to "jam" (in some way which seems not to have been explained in the evidence and which was not the subject of any expert evidence).
55 This was important, because although there was no dispute on the evidence that the valve would stick occasionally and require extra force to be applied to open it, and that the appellant was aware of that, there was no evidence apart from the respondent's asseveration that the valve could become jammed because the counterweight had swung over and snagged the actuating arm. There was no evidence the appellant had been told or was aware of that problem.
56 The respondent's evidence was that when he used the word "rusty" he was referring to the sediment, shale, and other "junk" that collected in the valve and made it "very tight".
57 Whatever the precise immediate cause, it was accepted on both sides that the valve would occasionally stick. It is submitted the respondent used the word "jam" interchangeably to describe what he said were the two scenarios. The first, he said, was "natural jamming" which I take to be a reference to the valve gate itself sticking, requiring extra force to open. The second was the jamming caused by the wire snagging, and which could only be rectified by stopping the tractor, walking around to the rear of the tanker and throwing the weight and wire back onto their correct side.
58 Later, however, the respondent said he was not inclined to think the weight flipping over the valve had anything to do with it jamming on the day, and it would be speculation for him to say whether he could not release the valve with the lever because the weight had snagged the actuating arm or because the valve had stuck suddenly, causing the weight to flip up and over the valve. Importantly, he did say that when he put the counterweight back over to its correct side, that did not release the gate valve; he still had to shift it (presumably the valve) two or three times, give it a good movement and make sure it was free.
59 The respondent called Mr William Apgar, an engineer. The appellant called Mr Martin Simms. Both had examined the tanker and gate valve. Both agreed that the valve could stick on occasions such that it needed more force to open it, but that this was not a defect. Apgar said it could stick, depending on how fast it closed. The actual gate was tapered, so that if it was shut more quickly, it would go in (to its seat) more tightly. That did not reflect any defect in the valve - it was just part of the design.
60 Simms said the gate valve was a very simple, very reliable piece of equipment, manufactured from bronze, which is non-rusting. This was a reference to its internal parts. He said that would corrode slightly, but would not rust. It was very durable and could be expected to function for a long time without problems given a reasonable level of cleanliness, but that if there was build-up of material in the valve that could affect its functioning. He explained that when he operated the lever he found that on most occasions it operated very easily. On some occasions "and they seemed to be reasonably unpredictable", the lever was somewhat stiffer to operate. On those occasions he found that what he would describe as "a short, sharp jab" readily released the lever and it would often then be free again the next time. Asked why that might have been so common he explained that (AB 2/408):
"... - because you're dropping a tapered disc into a tapered slot much the same as driving a wedge into, for example, split a log of firewood the force with which the disc is inserted in the slot on the previous occasion will affect the force required to extricate it later on. Also it's a function to some extent of the pressure acting on it from the water although I would expect it to be a marginal effect. Obviously the higher the water pressure the more it's pressing the valve against one of the ceiling faces. Probably more particularly, the water itself comes from a bore and that water will have in it some suspended solids and these will be particles of vegetation, silicone particles, sand particles and that sort of thing. If there are any of those particles in the slot they will tend to act as a friction-increasing agent, shall we say, to cause the extrication to be more difficult then otherwise. My view is that most likely the key factor is the rapidity in which the valve closed and whether it closed into running water, for example, if the tanker had gone round the track and was actually empty at the time the valve was closed I would expect it to seize harder than if it closed against running water which would tend to buffer its closing."
61 In short, it was his evidence that it could be expected that the valve would stick on occasion and would require attention, regardless of what method was used to actuate it.
62 Simms was cross-examined about a test he had done to determine how much force was required to cause the valve to open at all. He had attached a spring balance to the lever. The balance measured to a maximum of 20 kilograms. When force was applied to the lever through the balance, he found he had reached more than 19 kilograms without moving the lever. He did not take it to the maximum, so was able to say only that a force of more than 19 kilograms on the lever was necessary to start the gate valve opening.
63 Asked whether the sticking of the valve which he had mentioned could be reduced by maintenance or by fitting a new valve, he said he did not think so because it was a characteristic of the valve's design. Owing to the fact that it was tapered (AB 2/415):
"... the harder it closes up into the seed [sic seat] the more, as it were, jams in there and no amount of maintenance or cleaning or care would ever guarantee that it won't jam in hard enough to require a bit of a yank to get it back out next time."
64 He added that contaminates in the water would tend to act as a friction increasing medium and that for a given closing force, would tend to increase that force (presumably he meant the force needed to open it again) next time.
65 In re-examination Simms was asked what he did on those occasions he could not get the lever to work with almost 20 kilograms of force. He said (AB 2/417):
"---I then decided to test it subjectively by operating the valve myself and I went through quite a number of cycles of operating it to get some repeatability and I frankly can't tell the court how many times that was because when you're focused on what's happening it's a little bit difficult to recall but certainly it was - I repeated the operation over and over and over to get a subjective feel for - to try and understand what was likely to make it jam. On most occasions I found that it came open very, very easily. Probably at about the force that I had measured, around about three kilograms which is very, very small. On other occasions I found that if it didn't open and there was a - if I started to pull and it just simply wasn't coming, I would just let the lever go and it just went 'clunk" and gave it a little shock load and that pops the valve open fairly readily.
Yes, so after you hadn't opened it on the occasions where your balance went out to 19 or 20 kilograms what did it take to open it?---In terms of subjectively?
Yes?---All I can say is that I didn't find it difficult. In other words, I didn't - I simply didn't keep flexing muscles until I ran out of muscle as it were. I just simply let the lever go and gave it a bit of a clunk and it came open and I did repeat that a couple of times. The sticking or not sticking seemed to be quite unpredictable and I still suspect it was how quickly it went back the previous time."
66 He reiterated that the tendency of the valve to stick was a result of the design of the valve; it was "a function of the angle of the wedge" and that as long as that remained unchanged, so would the tendency to stick.
67 In his evidence the appellant said that in the time the tanker had been used no one had reported anything to him about the operation of the valve and nothing was reported to him by the respondent. He did agree that the valve did have a tendency to stick and that when that happened it was necessary to tug on the lever to free it. He said he agreed with what Simms had said about that. He denied the respondent's claim that sometimes the valve stuck because of the build-up of sediment and rust. He said (AB 2/472):
"---The valve doesn't need cleaning out. The pipe from the tank to the valve gets a build-up of rust and - well, it's the iron from the water. It's not the valve itself. There's a three-inch pipe from the tank that goes to the valve and then there's a valve and then it goes down to the dribble bar.
Do you agree that as the rust and other particles build up, the valve sometimes gets a bit harder to use?---No. The rust and that doesn't build up on the valve because, you know, of the water pressure going through it all the time. It's just where the sediment and that builds up on the pipe is because of the water left in it sort of overnight. There's a fair bit of iron content in the boar [sic bore] water that we use.
Sure?---There's no rust or sediment sort of building up in the valve itself.
Yes. I'm just suggesting that when you get a lot of rust and settlement, it affects the way the tap operates?---No.
You don't think it ever has any effect?---No, not - there's rust builds up in the dribble bar itself. There's caps on the end of it that you've got to remove and sort of clean the rust out of the dribble bar itself, the final part of it, but not in the gate valve itself."
68 As his Honour saw it, the real issue put for him to decide was whether or not, and if so when, the incident occurred; so too was the system of work and the method used for operating the lever so as to open the valve ([7]). In recounting the evidence on this, his Honour said (judgment [13] - [14]):
"13 It was the plaintiff's practice to reach back behind him with his right arm to pull the hand lever down to open the gate valve and similarly when he closed the valve. On the occasion complained of he said that he leaned back to turn the water on. The lever jammed. He kept pulling down on the lever to free it up but to no avail. In the course of doing that he felt excruciating pain in his elbow. Despite that he got off the tractor and went to the rear of the tanker and released the lever. He noticed that a metal counter weight was up on the pipe and the lever was jammed. He fixed the problem, got back on the tractor and continued to work for the remainder of the day.
14 The plaintiff said that he mentioned the incident to the defendant later that day. The defendant was at the time working on the starting barrier as it was a race day. The plaintiff said that the main discussion had been about getting the valve cleaned up to avoid it sticking again."
"It was the plaintiff's evidence that from time to time there were problems with the lever and they would be caused by a build up of dirt in the valve which would cause the release gate to jam. It depended on how dirty the gateway was but it generally jammed when the lever was being pulled down to open the gate valve."
70 His Honour said the respondent's evidence was that he complained about this to the appellant and said two or three times each summer the valve would be disassembled and maintenance undertaken to clean it.
71 He referred to the respondent's evidence that he also used his right arm to open the lever, as did the appellant. He mentioned that in their evidence the respondent's sons also said that they always used their right arm, because it was easier and allowed them to align the tractor with the running rail. Each of them said occasionally the lever would "jam" and he would have to give it a sharp tug or hard pull downwards to open the valve. His Honour then referred to the appellant's evidence that he always used his left hand to open the lever and that was the way he had demonstrated it to the respondent. He mentioned the appellant's evidence that he had never seen the respondent doing it differently, that the machinery would be inches away from the rail and the driver would be focused on going forward and the lever could be pulled down without looking back. He said it was the appellant's evidence that the gate valve operation was simple and easy and that on the odd occasion it could be a bit stiff but no excessive force was needed; he referred to the appellant's denial that the respondent had ever reported to him any difficulties in operating the lever, nor had he been involved with the appellant in cleaning sediment from the valve. He mentioned the appellant's evidence that there was no rust or sediment build up in the valve and that it might go two years or so before it was necessary to clean out the gate bar/spray pipe.
72 His Honour noted the evidence of a witness John Ellis Ransom, called by the appellant and whom had worked for him driving the tanker in 1982/1983.
73 The Judge recounted Ransom's evidence that he would pull the lever with his left arm and never experienced any difficulty with the operation of it although he conceded in cross-examination that the right arm could be used, but it would be difficult and he suggested the driver might not have control of the tractor.
74 Having then referred to the evidence of Simms relating to the action required to operate the lever with either the right or left hand, his Honour concluded (at [22]) that he was satisfied "the lever could be operated with either the left or right hand" and that "[e]ither way it required some rotation of the torso and the arm being raised and reaching back and above head height to pull the lever down". He accepted that using the right arm would make is possible to look back along the side of the tanker to ensure its alignment with the side fence and to see that water was flowing as it sprayed out from the back of the tanker. He then said (at [23]):
"Despite evidence to the contrary I have no reason not to accept the plaintiff's evidence to the effect that it was his practice to use his right arm to operate the lever in the manner which he describes. His evidence was corroborated by that of his sons who similarly used the right arm."
75 Mr Staude for the appellant submits that his Honour's reasons here were deficient and that he did not resolve the issue whether or not the respondent had been shown to operate the lever with his left hand. In my view nothing turns on this. What his Honour found was that the system of work was unsafe because it involved the driver twisting his torso, leaning back and reaching behind and above his head to pull down on the lever which could sometimes stick and require a hard pull or jerk to release. It was of no moment to his Honour's finding whether that was done using the right hand or the left hand.
76 His Honour gave brief reasons for then finding that from time to time the valve would "jam" and would require extra force on the lever to open:
"25 It would seem that the force required to open the valve was low on most occasions. Mr Simms measured the force required at approximately three kilograms. However, on occasions when the valve tended to stick more force was required. That force was not measured by Mr Simms because under a steady pull it approached the limit of the spring balance used by him for testing purposes and which had a limit of 20 kilograms. There was a risk of the balance detaching if the valve suddenly opened. Mr Simms' evidence was that if the valve did stick 'a short sharp pull on the lever readily freed it'. The force required however was in the order of 20 kilograms or upwards.
26 Whilst the gate valve (body and gate) is bronze and is not liable to rust surface deposits and sediment could build up in the gate valve as was evident from photograph 10 attached to Mr Simms' report. That could cause the valve to stick.
27 All of that is consistent with the plaintiff's evidence. It is consistent in that:
(ii) when it did jam a short sharp downward pull down on the lever was required to open it the valve;
(iii) sediment would built up in the gate valve; and
(iv) from time to time maintenance was required to clean the sediment to make the valve easily operable by the operator.
28 It follows therefore that I accept the plaintiff's evidence insofar as those matters are concerned. It is supported by the evidence of other witnesses and in particular by the defendant's engineer Mr Simms."
77 It is apparent his Honour was focused on the proposition that the valve had stuck. He made no mention of the alternative proposition that it may have "jammed" because of the counterweight wire snagging the actuating arm. Under the heading "breach of duty" his Honour said ([35]):
"35 Accepting the plaintiff's evidence as to the valve sticking I also have no reason not to accept his evidence that he did from time to time complain to the defendant that the valve was sticking. The fact of the valve sticking combined with the awkward upper bodily movement required to pull the lever on (whether that be with the right or left hand) suggests to me that the system employed was not in all the circumstances safe. The combination of twisting, reaching back above head height and pulling down on the lever and the fact that when the gate valve jammed, a short hard pull was required, in my view exposed the plaintiff to the risk of injury. It was not a simple straightforward and easily undertaken task. Whilst it was not repetitive the high impact of the occasion when force was required was such that there was a real likelihood that injury could be sustained. It was not without risk and, in my view that risk was foreseeable."
78 That risk, his Honour said, could have been avoided: "[t]he sticking of the valve could have been avoided by regular scheduled maintenance to ensure that it did not stick or jam". As the witnesses and counsel had, his Honour used the words "stick" or "jam" interchangeably and without distinguishing between the two scenarios identified by the respondent.
79 It also seems to me his Honour's finding that the sticking could have been avoided by regular scheduled maintenance had no evidentiary support. The evidence of the experts called by both sides was that sticking of that kind was a feature of the design of the valve. His Honour did not refer to any evidence to justify that finding. Although he did at that point go on to refer to the evidence of Apgar, that went to alternative means of operating the lever, first by the installation of a "Bowden" cable system which would have placed the operating lever in a position that could be comfortably operated by the driver whilst facing forward, or alternatively a power valve operating the system using a dash-mounted switch or valve.
80 At [38], the trial Judge said he rejected the appellant's evidence that he was not aware of the problem of the sticking valve. However, as indicated above, the appellant did not say he was not aware of the problem of the sticking valve. On the contrary, he said it use to stick occasionally, but could be freed by pulling the lever harder. That misapprehension would be of no consequence to the outcome arrived at by his Honour, if the Judge was correct to deal with the issue as one which turned on whether the incident relied upon by the respondent was that the valve itself stuck.
81 In my opinion, his Honour was correct in dealing with the matter that way. The proposition that the incident the respondent described in evidence was one of the gate valve jamming because the counterweight wire became entangled with the actuating arm, was not raised clearly before us (at least until oral submissions) and was apparently not raised (or at least not clearly raised) before his Honour. It was not something put before him in a way calling for resolution, if at all.
82 Furthermore, careful examination of the respondent's evidence reveals he was not in fact asserting that his injury was caused because the wire snagged. What he did say was that when he pulled the lever that day the counterweight swung up and looped itself over the top and the "whole thing" was jammed. That happened as he was trying to open the valve. He then had to get off the tractor, walk around to the back of the tanker, lift the counterweight and wire over to their correct side and then free the valve by pushing it up and down two or three times. Properly understood, his evidence was that the valve would "stick" from time to time and on some occasions when it did that, the sudden jerking of the actuating arm, via the cable, caused the counterweight and wire to be flung up and over the valve assembly. When the problem was only the sticking valve, it could be rectified by a harder pull on the lever. When that problem was compounded by the counterweight being flung over the valve assembly, it was necessary for the driver to stop the tractor, walk around to the rear of the tanker, relocate the counterweight and free the valve.
83 It was the latter "scenario" which the respondent said occurred on 21 January 1995. It was not part of his pleaded case that the snagging of the counterweight wire caused the valve to "jam"; nor was that his evidence. Indeed, when pressed in cross-examination to say that, he would not be drawn, venturing that to say that would be to speculate.
84 It is complained that his Honour did not address the distinction between "jamming" and "sticking" of the valve. However, having regard to the way the case was pleaded and fought before him, and the evidence of the respondent, it was not necessary for him to do so. In my view, the appellant's argument on this point fails.
85 In retrospect, particulars (b) and (i) of ground 1 seem implicitly to be predicated on a "jamming" of the valve, in the sense that the actuating arm had been snagged.
86 Given my conclusion about that, the premise underlying them falls away and they cannot be made out.
87 I turn now to address the complaints raised by these grounds, under the general rubric that they are of erroneous findings in respect of credibility or fact, indicated or exacerbated by inadequate reasons.
88 The trial Judge identified two issues, they being when the respondent suffered the injury and secondly, whether it was caused in the manner he alleged.
89 In expressing himself satisfied that the respondent was injured on 21 January 1995, his Honour acknowledged the date the first medical certificate gave, for it was 20 January, and the statement of claim gave it as 25 January. He referred to the respondent's evidence that he recalled it happening on a Saturday race day at Ascot, and upon checking the calendar later, he identified 21 January as being the race date. His Honour said he had no reason not to accept the respondent's evidence on that.
90 On the second of these issues, the Judge said the respondent's description of how the injury occurred had been consistent in the history he gave to medical practitioners and to the workers' compensation insurer. He noted the appellant agreed that on the details of the incident as described by the respondent it was "possible", and that the respondent had no prior history of injury or pain in the right elbow. The respondent said simple analgesics were used to abate pain, but when it persisted he sought medical attention. The Judge said that would not be an unusual pattern in response to this type of injury. He then concluded that (AB 1/31, [47]):
"Having regard to the evidence and accepting as I do the plaintiff's evidence and I have no reason not to accept his evidence on these matters I am satisfied on the balance of probabilities that he did sustain injury in the manner claimed and consequently I find that the defendant's breach of duty of care was causative of the plaintiff's injury to the elbow."
91 The appellant argues that these findings turn simply on an uncritical acceptance in toto of the respondent's evidence and that his Honour's reasons were deficient (and wrong) because he failed to address the appellant's contentions at trial that the respondent's account of the incident lacked cogency, consistency and corroboration and failed to address the issue joined by the appellant. It is asserted that imprecision as to the date, together with other features of the evidence, militated against a finding of acute injury.
92 In cross-examination the respondent said he did not particularly recall talking to the appellant that day. Taken to his answers to interrogatories, he agreed he had answered "yes" to a question whether he had reported the accident immediately, but said that depended upon what one meant by "immediately"; he reported it to the appellant as soon as possible. He said he did not know whether he spoke to the appellant in the morning, afternoon or evening, nor exactly when it was, but he did tell him. Taken then to a question that if he did not report the accident after it occurred, and his answer that the appellant was not on the grounds at the time, the respondent said he meant he was at the water tank stand when it happened and the appellant was not there, he was out on the barrier doing his job. This was consistent with what he had said in evidence-in-chief, that he had told the appellant at the time that he had hurt himself, but only when he had the opportunity. He did not see a lot of the appellant when he was out on the track but he told him as soon as he could. He said the main discussion was about "getting the thing cleaned up" because it was in a state where it did actually need doing.
93 Counsel for the appellant submitted the respondent's answers to interrogatories were contradicted by the evidence of the appellant, which was that he was at the race course all day on race days. There is plainly a conflict between the appellant and respondent on whether or not the appellant was told at all about the incident around the time it happened. His Honour made no specific finding about that, but it is not a point which affects his ultimate conclusion. There is no necessary conflict on the point whether the appellant was at the race course that day.
94 His Honour's mention of the appellant allowing it was "possible" the respondent had injured himself in the way claimed, was a reference to his Honour's earlier account in his reasons of the evidence about a form dated 4 July 1995, being an employer's report to SGIO Insurance. On that, the appellant recorded the day and date of the occurrence as "advised of problem sometime in March 1995". Against the question "Do you agree with the details of the occurrence as provided on the worker's claim for compensation form?", the appellant ticked the "Yes" box and added the words "It is possible".
95 His Honour expressly adverted to the respondent's "imprecision" about the date of the accident.
96 In his evidence-in-chief the respondent was asked (AB 1/85):
"Now, we're talking about a date on or about 25 January when you say you got injured. Tell us about that time?---Well, the 25th is the doctor's idea not mine.
Do you know what day it was?---It was a Saturday morning, I think in my original workers compo, not that I've been able to see what I wrote, but I think I said about the 20th, but that was actually a Friday so it had to be the morning of the 21 January 1995.
What do you remember about that day?---Well, it was a race day, a race morning. ..."
97 Later in cross-examination, when asked whether the date of 20 January on the first medical certificate was the date he had given Dr Connaughton, the respondent said that was the date he had thought it was, but it was a Saturday morning so it had to be 21 January. He acknowledged his statement of claim gave the date as on or about 25 January, but said that came from the doctor's reports: Mr Prosser put that date for some reason and the other doctors just carried it on. He said he had never said 25 January; that was not correct and he had never said it was.
98 It was open to the trial Judge to find, as he did, that there was no reason not to accept the respondent's evidence about that. It was not a point upon which any particular explanation was necessary in his reasons.
99 It is contended that the next point militating against a finding of acute injury, but which the Judge failed to address, is that the respondent's evidence was that he suffered "excruciating" pain in his elbow after pulling the lever that morning, yet continued to work and did not see a doctor until 20 February 1995.
100 The Judge did adequately deal with that. His observations that it was not the sort of injury which required immediate medical attention, that simple analgesics were used to abate pain and that when pain persisted, the respondent sought medical attention and that this would not be an unusual pattern in response to this type of injury, were sufficient.
101 The appellant then says his Honour failed to take into account or deal with medical and other evidence going against a finding of acute injury.
102 The respondent first consulted Dr Peter Connaughton, an occupational physician, on 20 February 1995. The doctor diagnosed right lateral epicondylitis, and referred him to an orthopaedic surgeon, Mr Peter Honey. The respondent was reviewed by another orthopaedic surgeon, Mr Alan Prosser, on 27 March 1995. His treatment included local steroid injections in the right elbow and shoulder, between March and September 1995. On 13 September 1995 he underwent surgery for his persisting right lateral epicondylitis.
103 The appellant said Dr Connaughton obtained no history from the respondent of a specific incident.
104 The first medical certificate, from Dr Connaughton and dated 22 March 1995, gives the date of disability as "January 1995". The worker's description of how the disability occurred is recorded as (AB 2/516):
"Pulls a lever on a water tanker with right arm, whilst driving a tractor."
105 The worker's description of the injury or disease is recorded as:
106 Dr Connaughton's diagnosis is right lateral epicondylitis, and he certified that the diagnosis did correlate with the disability described by the worker.
107 In his evidence, Dr Connaughton said the respondent had been referred to him by Dr George O'Neil. Dr Connaughton first saw the respondent on 20 February 1996. There were a number of issues at that time. The respondent had some symptoms suggesting prior viral illness, but mainly right elbow and shoulder symptoms. The primary issue was the sore right elbow. His records indicated a spectrum of symptoms in November or December 1994 which reflected a viral illness, and then towards the end of January 1995 the respondent developed soreness in his right elbow and forearm, with some alteration of sensation, and also a rash. Other issues mentioned by the respondent were his exposure to sunlight and a concern whether his symptoms were related to herbicide spraying which had been done at Ascot. There was no history of any acute event or incident. Dr Connaughton said he asked about the respondent's work, and was told that involved harrowing and rolling tracks at Ascot and that he used his right arm to operate a lever on a tanker, and he estimated pulling that lever about 80 times a day. He reiterated there was no reference to an incident or accident.
108 On account of the different issues concerning possible herbicide exposure, the spectrum of symptoms relating to what he thought was probably a virus, and also the right arm symptoms, Dr Connaughton referred the respondent to Dr Connor, a consultant general physician, and arranged some screening blood tests.
109 Dr Connaughton saw the respondent again on 22 March 1995. According to his notes, Dr Connor agreed that the respondent had a viral illness and epicondylitis. For the latter, he referred the respondent to Mr Prosser.
110 Mr Prosser saw the respondent on 27 March 1995. He treated him regularly thereafter until 10 November 1999.
111 His evidence was that when the respondent presented, he was aged 55 and had been working at Ascot preparing the tracks, which involved tractor driving and repetitive activities with his arm. Mr Prosser went on (AB 1/296):
"... He said that at the end of November he had a viral illness with pains in the back and pains in the right arm, and he went on shortly afterwards to have a right elbow disability in January 1995. There was a localised area of discomfort over the lateral epicondyle of the elbow which had gradually spread through the forearm, and in the 10 days before his attendance in March there had been tingling in the fingertips of his hand. He said that at work he had made repetitive use of the arm pulling on various levers in the vehicle to control watering of the track.
Did he give a history of any precipitating event for those symptoms?---He did not report a single episode as the precipitating event. He had mentioned the viral illness in November and then just the repetitive nature of his work at Ascot."
112 Mr Prosser's diagnosis in the first instance was one of lateral epicondylitis, which he described as a condition of middle age onwards, thought to be tearing at a microscopic level in the tendon attaching to the point of the outer aspect of the elbow. He said it probably has a degenerative and aging component to it, and can also have a traumatic aspect to it, either as a single pulling episode or more commonly, repetitive activities.
113 In a report dated 3 December 1995, Mr Prosser noted (AB 2/560) that:
"[The respondent's] work involves driving a tractor to prepare the track at a race course. Repetitive use is required of the right upper limb operating the equipment. In November, 1994, Mr Lockyer had a generalised illness, diagnosed as erythema multiforme.
Pain at the right elbow began in January, 1995. When I saw Mr Lockyer in March, the condition seemed most likely due to lateral epicondylitis ..."
114 Mr Prosser noted that injection of local anaesthetic and steroid to the lateral epicondyle in March and July gave good transient relief of the respondent's pain and that he was working in August and September. However, with recurrence of pain, the respondent chose to proceed with surgical release for lateral epicondylitis, which was undertaken in September.
115 Mr Prosser observed that the right shoulder became symptomatic after an episode of influenza and he noted in July that:
"There was marked pain with mid-arc impingement, and that x-rays showed a Type III acromion, which is the shape often associated with rotator cuff tears and disability, and there was sclerosis around the greater tuberosity of the humerus, in keeping with impingement against the acromion."
116 He went on to observe that the underlying problem was likely to be degenerative:
"... but Mr Lockyer does note that his work involves reaching up behind his shoulder for a lever to operate the machinery, which may well be an aggravating factor in the onset of his shoulder pain and may be a perpetuating factor in the future. The shoulder pain may also be related to altered use of the limb in relation to the elbow disability."
117 Amongst other comments, Mr Prosser wrote that there appeared to be problems in communication between the respondent and his employer, and the insurers and the Union, which the respondent had found difficult; these, together with troubles obtaining his wages, and concerns about work and financial security, had caused him significant stress, possibly verging on depression.
118 Under the heading "Opinion", Mr Prosser wrote that with respect to the viral illness in the previous November and the diagnosis of erythema multiform, the history was only that as related to him by the respondent and he had no more details. He described erythema multiform as "a pattern of skin rash, presumably immunological in nature, which can follow various precipitating conditions". However, he wrote that he was not of the opinion that a viral illness, nor erythema multiform, were relevant to the respondent's ongoing problems, which he believed were:
"... basically degenerative in nature, with aggravation due to the activities undertaken in his work, particularly the symptoms in the right elbow and the right shoulder."
119 In his evidence, Mr Prosser said that when the shoulder symptoms arose, there had been no history of specific injury, so he thought they were probably due to age related changes, aggravated by the position the respondent had been using his arm at work. He thought the condition was there and the activities may have aggravated or brought on the symptoms.
120 Dr John Ker is a consultant physician in rehabilitative medicine. He reviewed the respondent on 26 February 1999 and again at the beginning of 2003. In a report dated 6 May 1999, he wrote that the respondent had described to him how he had developed right upper limb symptoms of pain and weakness whilst driving a tractor, and that over time he reported how progressively, although pain commenced in and around the elbow, he subsequently had soreness and stiffness throughout the arm. He said the respondent told him that he attempted to continue with his work for approximately two weeks, but such was the intrusiveness of his pain, he ceased working.
121 In cross-examination Dr Ker said the principal postulate of epicondylitis is cumulative trauma, the result of repeated strain, not just one individual, isolated event. He did not consider how the respondent's symptoms may have arisen because seeing him as he did for the first time around four years after they commenced, that would have become very clouded from a clinical point of view over time.
122 It is submitted for the appellant that Dr Ker's evidence suggests a history of gradual onset of symptoms with no instance of acute injury.
123 Mr Staude submitted that Mr Wang thought that if the respondent's shoulder was injured at the time of the incident, symptoms would have been immediately apparent, yet Dr Connaughton and Mr Prosser recorded no shoulder symptoms, even though the respondent insisted in evidence that he had told both of them that he had right shoulder pain. The submission is that this casts doubt upon the respondent's credibility and was another matter which his Honour failed to address.
124 Mr Wang saw the respondent on 1 November 2000, almost six years after the incident. In a letter to Dr Heaysman dated 1 November 2000, Mr Wang wrote that the respondent was a 61 year old right hand dominant tractor driver who injured his right shoulder and elbow in a work incident in January 1995. He wrote that:
"[The respondent] describes pulling on a tractor lever and feeling sudden pain over the antero-lateral aspect of the shoulder, upper arm and outer aspect of the elbow ..."
125 In cross-examination, Mr Wang opined that pulling on a stiff tractor lever was consistent with causing a strain in the shoulder muscles or tendons which can cause or aggravate a cuff tendon injury (that being the diagnosed injury to the shoulder). It was then put to him that if a strain occurred by reason of pulling on a lever on a tractor at a particular time, he would expect it would be symptomatic from that time, to which he responded that was correct.
126 In fact, Dr Connaughton's evidence was that the respondent had told him he had hurt his shoulder. In cross-examination he said that the respondent complained of his right elbow on 20 February 1995 but did not volunteer or complain of pain in his right shoulder. Pressed by counsel for the respondent, Dr Connaughton agreed that the note he made at the time was that the respondent complained of pain in his right shoulder, although he said the respondent only did that when the doctor examined his movements.
127 Mr Prosser said he was not given a history of right shoulder symptoms when he saw the respondent in March 1995. He looked at the elbow briefly and just made a note that "it" seemed normal.
128 In relation to the observation in his report that the respondent's right shoulder became symptomatic after an episode of influenza, he said he was not sure what the relevance of the influenza was, but that was the temporal relationship. The x-ray results were what one would expect to see in association with the condition which was causing pain, which was rotator cuff impingement with associated tearing of the rotator cuff and sclerosis.
129 As I understand it, it is then put for the appellant that another feature going to the respondent's credibility, which the trial Judge failed to address, was evidence that the respondent's right shoulder condition was unrelated to injury. Reference is made to a report from Dr Geoffrey Gee dated 15 January 2003, following a consultation he had with the respondent on 6 January that year. He wrote that the respondent continued to complain of pain affecting his right upper limb, that at his initial presentation in March 1998, he was complaining of right elbow pain and in November that year was complaining of pain in both the elbow and the shoulder. He said that while he acknowledged the respondent initially indicated the presence of mild shoulder pain, his focus was on pain at the elbow. Based on the respondent's presentations in 1998, Dr Gee was "not convinced" that his shoulder symptoms were related to the accident. He agreed the respondent appeared totally incapacitated or unfit for work, but believed the reasons for that incapacity were his age related degenerative condition of the shoulder with the associated tearing of his supraspinatus, physical deconditioning and poor posture. He did not believe the respondent's symptoms at the elbow were responsible for any incapacity.
130 In his evidence, Dr Gee said the respondent did complain to him of right shoulder pain at his initial consultation in March 1998, but his symptoms were very clearly related to his elbow and that was what he was treating the respondent for initially. In cross-examination he repeated that on that initial occasion the respondent had some discomfort in his shoulder which he documented in his pain diagram; however, Dr Gee reiterated that the respondent's presentation to him was in relation to the elbow.
131 Counsel for the appellant drew attention to a report from Mr Prosser dated 1 January 2001, in which he noted a discrepancy in what he had initially been told and what the respondent and his wife were saying in December 2000.
132 Mr Prosser wrote that asked about the onset of the respondent's injury, the respondent's wife said (at AB 2/578) that:
"[The respondent] had been sitting on a tractor at Ascot, had reached back above his shoulder to pull on a lever. The lever jammed, and [the respondent] had a tearing feeling at the right elbow and right shoulder."
133 Mr Prosser then went on to note that reviewing his initial letters, the onset was recorded as being more gradual and that the respondent had reported repetitive use of his arm to operate levers on the tractor at work, but did not discuss a specific incident. He further observed it had been noted that right shoulder movements were normal, that the right elbow had a full range of movements, with tenderness localised over the lateral epicondyle, and that the shoulder disability was not recorded until the respondent's visit on 21 July 1995. He went on to write (AB 2/579):
"Clearly there is a difference between Mr Lockyer's current memory of the onset of his disability, compared to my records from 1995. It is possible that a single incident as currently reported by Mr Lockyer could have initiated the onset of disability with rotator cuff tear in the right shoulder, and with lateral epicondylitis in the right elbow. Both problems could also be aggravated by repetitive use of the arm as recorded in 1995. The relationship is based on the temporal relationships, and the position of use of the arm. As noted in previous reports, both the shoulder disability and elbow disability are also degenerative in nature."
134 The respondent disputed that the elbow problems came on gradually. The appellant says this is inconsistent with the histories recorded by Mr Prosser and Dr Connaughton.
135 The respondent maintained in his evidence that he had never indicated that his viral illness had anything to do with the pains in his right arm. He had told Dr Connaughton that he had a viral illness, but never associated that with pain in his arm. It was put to him in cross-examination that his elbow problems came on over a period of time, but he denied that; he was adamant there was a specific incident which brought that on.
136 There was clearly some apparent confusion in Mr Prosser's mind about a relationship between the virus and the elbow pain, and later, influenza and the shoulder symptoms. That no doubt flowed from the juxtaposition of those complaints in Dr Connaughton's correspondence. When his evidence is closely examined though, it seems clear enough that the respondent's viral infection was in November/December 1994 and his complaint on 20 February 2005, of elbow and shoulder pain, was unrelated to that.
137 It is contended that the cause of the respondent's injury was never pleaded as repetitive arm or shoulder movements, yet Dr Connaughton and Mr Prosser recorded his description of repetitive movements. Dr Connaughton noted the respondent told him he pulled the lever "80 times a day", whereas in fact, as the respondent acknowledged in evidence, he would open the valve no more than once every 30 minutes. It is submitted the notion of repetitive movements being the cause was also supported by Dr Ker and to some extent, by Mr Wang.
138 The short answer to this contention in terms of fact-finding on the evidence, is that the issue for the trial Judge was whether the pleaded cause, namely a sudden jerking of the lever on one occasion, had been made out, and there was evidence upon which he could reasonably have arrived at that conclusion.
139 The point is advanced, however, as one of the factors which it is submitted it was necessary for his Honour to address in evaluating the respondent's credibility as to the happening of the incident itself, and it is said he did not do this.
140 Another area of evidentiary conflict the appellant says bears on the assessment of the respondent's credibility in respect of the incident itself and not considered by the trial Judge, is the configuration of the tanker pipes and valve. I have already set out the respondent's evidence about the counterweight hanging by a wire from the actuating arm. That description was supported by the evidence of his son Christopher Lockyer. The appellant, on the other hand, unequivocally insisted the counterweight had been bolted to the valve actuating arm since August 1993, when the whole water tank gate valve and spray bar assembly was replaced. He maintained the configuration as shown in the tendered photographs, was the one which existed in January 1995. In other words, there was no counterweight attached by a wire which could have been flung up or caused the actuating arm to become snagged, as described by the respondent.
141 The appellant was referred in evidence-in-chief to the respondent's evidence that there was a weight connected to the actuating arm. His answer was (AB 2/458):
"I was asking you, Mr Marshall, if you would turn over the photographs to the photographs which show the back of the tanker and particularly the gate valve?---Page 11.
...
Does that show the gate valve?---Yes.
Does it show a lever or arm over the valve?---Yes.
What's attached to that arm?---There's a counterweight and a table that goes to the front of the tanker which is connected to the lever.
Has the appearance of that changed at all since the trailer was renovated, you say, in 1993?---I think from memory, the gate valve itself and whatever is still the same. I think there was - I might be - - -
If you are not sure - if you can't answer?---No. Yes. The gate valve: there's been no real changes. It's virtually the same.
Do you remember Mr Lockyer saying in his evidence that there was, he said, a weight that was connected by a wire to the arm - - -?---Yes. Originally there was but when that changed was when I had the tank replaced with a new tank and they'd left the weight off and I just found another piece of steel equivalent to the - roughly. I'm not saying exactly the same weight but equivalent to the weight of the other one, and it's been - I replaced it with a bolted wire.
Okay?---They're just old bits of steel and whatever I had at home."
142 In cross-examination he said the gate valve and boom spray had been replaced. It was put to him that the hanging weight was only changed to the bolted weight after 1995. He denied that, saying (AB 2/471):
"I'm suggesting to you that what happened in 1993 is that the tank was painted but not replaced?---No, no, definitely not. I think maybe you can - I might be able to point out to prove that that's not the norm. I'm not sure, because when it was replaced, it was replaced with an ex-railway thing in it of thicker material and they had to put a bit in the centre of it. It's not actual smooth tank. I don't know if I can prove it to you. To get the amount of water that I needed, it was necessary to put the section in the centre of it. No, I can't pick it up on the photos. No, I can't pick it up on the photos.
In any event, you have heard Mr Simms' evidence about how it worked when he tried it in December, haven't you?---Yes.
And how it would stick and you would tug on it and it would free itself?---Yes.
Do you agree with what he said?---It has a tendency to I suppose 'stick' is the word. If the tank is completely empty, the manufacture of the thing is, you know, as Mr Simms explained, it's on a wedge and therefore it will sort of - if it's got water pressure behind it, which sort of doesn't allow the tap to fit into the wedge, but it's no major - - -
My question is do you agree with what Mr Simms said? Is there anything that he said that you disagree with?---No, no.
Has the gate valve been altered in the last five years or so?---No.
It has been painted but you say that's - - -?---It's been replaced. It was replaced when the tank was done.
All right, but I'm saying in the last five years or so?---No.
You are saying it hasn't; it has only been painted?---It has only been painted.
The weight, I suggest to you, was only changed from the hanging one to the bolted on one after 1995. Do you disagree with that?---When the tank was replaced, it was changed to that because they left the old one off and I never went and retrieved it. I just found this other thing in there and the weight's only a counterweight to pull the lever down because there's not enough weight in the actual lever itself.
Just going back to the photos, I think you were in court when you heard Mr Apgar talking about the changes in the pipe in the back?---Yes, yes."
143 He did agree that the boom spray shown in the photograph exhibit 1 was not the same as that in use in 1995 because the latter had rusted out and had been replaced, probably a couple of months before Apgar inspected the tanker in 2003.
144 The appellant's evidence was supported in this respect by that of his wife, who in re-examination produced a cheque butt dated 16 August 1993 for a cheque for $13,500 to Boomerang Engineering for "new water tank for WATC work". She was also referred to her husband's accounts for the year ending 30 June 1994, containing a depreciation schedule in which there was an entry for a new water tanker acquired on 16 august 1993 for an original cost of $13,500.
145 To the foregoing matters which the appellant says the trial Judge ought to have addressed in his reasons, but did not, he adds what he contends is the improbability of the respondent using his right arm to operate the lever and the "glaringly improbable" evidence of the respondent's sons in this regard.
146 As to the former, it is submitted it was improbable the respondent used his right hand having regard to the position of the lever in relation to the left-hand side of the driver's body, the position of the throttle pedal and the need to ensure the tractor was steered along the line of the running rail.
147 The appellant's evidence was that he always used his left arm, that was how he had shown the respondent to do it and if he had seen the respondent using his right arm, he would not have allowed it. He said he had tried to operate the tanker using his right hand, but found it was virtually impossible to look out the side of the tractor to see the rear wheel of the tanker. By leaning back to put one's right hand on the lever, it was not possible to see the rear wheel of the tanker. He said that when driving the tanker it was necessary to focus on going forward because it was inches away from the rail, so while steering and with the right foot on the throttle, one pulled the lever down with one's left hand and focused on going forward.
148 This description was essentially supported by the evidence of Ransom which I have mentioned above.
149 Simms said it seemed to him an intuitive thing, that it was easier to reach the lever with one's left hand, rather than the right, although in cross-examination he said he was not told anything about having to look behind for alignment or to see if the water was running.
150 The respondent's evidence was that there was a reason for using the right arm. That was because it was necessary to keep the right foot on the throttle pedal and also to look out to see the tanker was in position against the rail, to turn it on as it moved. If the driver turned to the left he could not look to the right and see the tanker was in position next to the rail and "you could not do it by looking ahead".
151 Given that the rail was always to the right of the tanker, there is clearly nothing improbable about the respondent using his right arm. As I have said earlier, his Honour's finding on this makes no difference to the outcome. Insofar as it is said to have been a point he should have taken into account in assessing the respondent's credibility, I consider the submission has no substance. The same applies to the contention that the respondent's son's evidence on this was "glaringly improbable".
152 Nonetheless, given the primary thrust of the appellant's case at trial was that there had been no single incident occasioning injury to the respondent at all, it was incumbent upon his Honour to explain why it was he was able to accept the respondent's evidence about that, notwithstanding those matters which arguably went against the respondent's credibility or the correctness of that account. In particular, the replacement of the tanker and the change to the weight on the actuating arm in 1993 (supported by documentary evidence from the appellant's wife) and the evidence of Dr Connaughton and Mr Prosser, (supported by their notes) that the respondent complained not of a specific incident, but of a gradual onset of symptoms as a result of repetitive movements. In light of those matters it was simply not enough for his Honour to say merely that ([47]) having regard to the evidence and accepting the plaintiff's evidence, as he did, and having no reason not to accept his evidence on these matters, he was satisfied the respondent did sustain injury in the manner claimed. This is particularly so when some 15 months had passed and no doubt his Honour had heard many other cases, before he made these findings.
153 The effect of delay and inadequacy of reasons was discussed by the Full Court in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 at [26] - [35].
"26 ... the giving of reasons is a normal (albeit not universal) incident of the judicial process: Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 667; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-270, 278; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 441. That is because 'the duty is a function of due process, and therefore of justice': Flannery v Halifax Estate Agencies Ltd [1999] EWCA Civ 811; [2000] 1 WLR 377 at 381, per Henry and Laws LJJ and Hidden J. Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly based, rational judgment: Flannery; and see Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; [2002] 6 VR 1 at 31. The requirement also furthers judicial accountability: Soulemezis (at 279), per McHugh JA; and Beale (at 442), per Meagher JA.
27 Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Others involve detailed and complex factual and legal issues requiring close reasoning and analysis.
28 Reasons need not be lengthy and elaborate: Ex parte Powter, Re Powter (1945) 46 SR (NSW) 1 at 5; Beale (at 443); nor do they need to refer to all the evidence led in the proceedings: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. However, relevant evidence should be referred to (albeit not necessarily in detail) and, where there is conflicting evidence of significance to the outcome, both sets of evidence should be referred to. Where one set of significant evidence is preferred over another, the trial judge should set out findings sufficient to explain why: Beale (at 443). Similarly, where a dispute involves a form of 'intellectual exchange, with reasons and analysis advanced on either side', the judge 'must enter into the issues canvassed before him and explain why he or she prefers one case over the other': Flannery (at 382).
29 Inadequacy of reasons does not necessarily amount to an appealable error. An appeal court will only intervene when no reasons have been given in circumstances in which they were required, or when the inadequacy is such as to give rise to a miscarriage of justice: Beale (at 444). Nor does an appealable error arising from inadequate reasons necessarily result in a new trial. The appeal court is entitled to consider the matter and, if it can do so (where, for example, only one conclusion is reasonably open on the available evidence), it may itself decide the matter: Beale (at 444).
30 Delay, at least where it is substantial, adds another dimension in considering the adequacy, or otherwise, of reasons. It does not, of itself, indicate that the trial has miscarried or that the judgment is unsafe and, hence, give rise to a ground of appeal. However, a comparison between the judgment and the issues in the trial may indicate that its effect has been such as to constitute a miscarriage: R v Maxwell (unreported, Court of Criminal Appeal, NSW, Spigelman CJ, Sperling and Hidden JJ, No 60282 of 1998, 23 December 1998). Also, where there has been substantial delay, statements of a general assertive character, which might otherwise be accepted as encompassing a detailed consideration of the evidence, might be treated with reserve. In Maxwell, a delay of the order of 10 months was said to have been 'such as to require a more comprehensive statement of the evidence than would normally be required in order to manifest, for the parties and the public, that the delay has not affected the decision': at 25, per Spigelman CJ, Sperling and Hidden JJ.
31 In this case, the trial judge had available a full transcript of the evidence and the argument and, of course, the various exhibits. However, even then, a long delay can give rise to disquiet, not only because of the lengthy period of uncertainty with which the litigants are required to live pending the judgment, but also because of the suspicion, on the part of the losing party, that the task may have become too much for the trial judge and that he or she had been unable, in the end, to grapple adequately with the issues. Thus, in Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] Ch 246 (a case involving a delay of nearly eight months in giving judgment) Lawton LJ said:
'[Counsel] submitted that this long and, in my experience, unprecedented delay resulted in the judge making material findings which were not justified by the evidence. I am not satisfied that this was so. But the fact that responsible and experienced counsel, acting for a public corporation, felt it incumbent upon him to make this submission shows that long delays in delivering judgment can cause disquiet and suspicion amongst litigants who lose - and those who win may feel they have been deprived of justice far too long. Delays of this length should not occur unless there are compelling reasons why they should; and, if there are such reasons, it would be prudent of a judge to refer to them briefly.'
32 Similarly, in Goose v Wilson Sanford & Co (unreported, England and Wales Court of Appeal (Civil Division), Gibson, Brooke, Mummery LLJ, 13 February 1998), Peter Gibson, Brooke and Mummery LJJ said (in a substantial case involving a delay of over 20 months from the end of the hearing) (at [112], [113]) that:
'A judge's tardiness in completing his judicial task after a trial is over denies justice to the winning party during the period of the delay. It also undermines the loser's confidence in the correctness of the decision when it is eventually delivered. Litigation causes quite enough stress, as it is, for people to have to endure while a trial is going on. Compelling them to await judgment for an indefinitely extended period after the trial is over will only serve to prolong their anxiety, and may well increase it. Conduct like this weakens public confidence in the whole judicial process. Left unchecked it would be ultimately subversive to the rule of law. Delays on this scale cannot and will not be tolerated. A situation like this must never occur again.
Because of the delay in giving judgment it has been incumbent on us to look with especial care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witnesses has an advantage, denied to an appellate court, which is likely to prove decisive on an appeal unless it can be shown that he failed to use or misused, this advantage. We do not lose sight of the fact that the judge had transcripts of the evidence, as well as very extensive written submissions from counsel. But the very fact of the huge delay in itself weakened the judge's advantage, and this consideration had to be taken into account when we reviewed the material which was before the judge. In a case as complex as this, it is not uncommon for a judge to form an initial impression of the likely result at the end of the evidence, but when he has come to study the evidence (both oral and written) and the submissions he has received with greater care, he will then go back to consider the effect the witnesses made on him when they gave evidence about the matters that are now troubling him. At a distance of 20 months, Harman J denied himself the opportunity of making this further check in any meaningful way.'
33 What was said in Goose has been applied in Australia: see, for example, Laminex (Australia) Pty Ltd v Smeeth [1999] NSWCA 462 at [8]; Hadid v Redpath [2001] NSWCA 416; (2001) 35 MVR 152 at [29] (a case involving a delay of about one year); and NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1; (2004) 134 FCR 85 at [53], [56].
34 In Cobham v Frett [2000] UKPC 49; [2001] 1 WLR 1775, a case involving a delay of over 12 months, the Privy Council said (at 1783) that:
'It can be easily accepted that excessive delay in delivery of a judgment may require a very careful perusal of the judge's findings of fact and of his reasons for his conclusions in order to ensure that the delay has not caused injustice to the losing party.'
Their Lordships went on to say (at 1783-1784) that, in their opinion:
'[I]f excessive delay, and they agree that 12 months would normally justify that description, is to be relied on in attacking a judgment, a fair case must be shown for believing that the judgment contains errors that are probably, or even possibly, attributable to the delay. The appellate court must be satisfied that the judgment is not safe and that to allow it to stand would be unfair to the complainant.'
35 In NAIS (at [4]), Hill J said that the basis on which an appeal court would order a new trial in a case of excessive delay (where the appellant has satisfied the appeal court that to allow the judgment to stand would be unsafe) is that the appellant has not had a fair trial. His Honour added that it may not be appropriate to order a new trial in a case where the appeal court on an appeal may itself make findings of fact. Marshall J, in that case, had no doubt (at [37]) that 'an unreasonable delay, which results in prejudice to a losing party, may amount to a denial of procedural fairness to that party'."
154 In Maddalena v CSR Ltd & Anor [2004] WASCA 231 (set aside on appeal to the High Court, but not on this point: CSR Ltd v Della Maddalena (supra)) the Full Court described a judgment reserved for a little over eight months as "an unacceptably long delay", particularly in a case of that kind where much may depend on the Judge's impression of a plaintiff, which appears to be the view his Honour took here. As Templeman J observed (at [84]), with the passage of time and the need to deal with many other cases in the interim, such an impression is likely to fade significantly.
155 However, the trial Judge's conclusion (at [23]) that "despite evidence to the contrary" he had "no reason not to accept the plaintiff's evidence to the effect that it was his practice to use his right arm ..." was in fact explained. Prior to that he had canvassed the evidence given by the respondent and his two sons, as well as that of the appellant, Ransom and Simms. He referred to the photographic evidence. From all of this he was satisfied the lever could be operated with either hand, and that whichever was used, the manoeuvre required some rotation of the torso and the arm being raised and reaching back and above head height to pull the lever down. He noted the respondent's evidence on this was corroborated by that of his sons "who similarly used the right arm".
156 As I apprehend it though, the appellant's complaint is wider than this. It is that in this and the other critical respects, his Honour merely asserted that he accepted the evidence of the respondent generally without saying why, without explaining why he rejected the appellant's evidence where that was in conflict with that of the respondent and without dealing with other evidence apparently conflicting with that of the respondent.
157 Thus, under the heading "Breach of Duty", his Honour seems to have accepted the respondent's evidence going to that issue, simply because he accepted it generally, when he said ([35]):
"Accepting the plaintiff's evidence as to the valve sticking I also have no reason not to accept his evidence that he did from time to time complain to the defendant that the valve was sticking."
158 I have already mentioned his Honour's misapprehension of the appellant's evidence, reflected at [38], when he said:
"I reject the defendant's evidence that he was not aware of the problem of the sticking valve."
159 The appellant's evidence was that he was aware of that problem. However, as I have observed, that misapprehension ultimately did not work against the appellant.
160 On the issue when the respondent suffered the injury, his Honour said simply ([45]) he had no reason not to accept the respondent's evidence. Again though, he had expressly referred to the date on the statement of claim and the respondent's evidence about that, as well as Dr Connaughton's evidence (including that the respondent gave no history of any acute event or incident) and the evidence of the appellant, including the form dated 4 July 1995. All of that evidence did bear on the date of the incident and other than giving reasons for accepting the respondent generally as a credible and reliable witness, there was little more his Honour could realistically have said about that.
161 The Judge's conclusion on the next question he identified, which was whether the injury was caused in the manner alleged by the respondent, is more problematical. Again his finding was founded on his acceptance of the respondent's evidence, when he said (at [47]) that:
"[h]aving regard to the evidence and accepting as I do the plaintiff's evidence and I have no reason not to accept his evidence on these matters ..."
he was satisfied the respondent did sustain injury in the manner claimed and that consequently the appellant's breach of duty of care was causative of the respondent's injury to the elbow.
162 The only specific factors otherwise mentioned by his Honour in respect of this issue were:
• the respondent's description of how the injury occurred had been consistent insofar as giving a history to medical practitioners and to the workers' compensation insurer;
• the respondent had no prior history of injury or pain in the right elbow; and
• it was not the sort of injury that required immediate medical attention.
163 The appellant says that the respondent had in fact not been consistent in the history he gave about how the injury occurred; first that there was no complaint of an acute event but rather an injury which developed from repetitive movement; secondly, in his description of the jamming by the counterweight wire as distinct from sticking of the gate valve.
164 His Honour mentioned that the respondent gave no history of an acute event or incident to Dr Connaughton, but said nothing more about it. He did not address at all the evidence that the complaint to Dr Connaughton and Mr Prosser was of repetitive injury.
165 Nor did his Honour deal at all with the conflict between the evidence of the appellant and respondent about the configuration of the counterweight arrangement on the actuating arm in 1995. True it is that he briefly discussed Mrs Marshall's evidence and said he would attach no weight to it because contentious as "those matters", the subject of her evidence, were, the rule in Browne v Dunn (1893) 6 R 67 had not been observed. The respondent had no opportunity to respond to her assertions and so fairness dictated that his Honour should have no regard to that evidence. However, "those matters" did not include Mrs Marshall's evidence about the refurbishment of the water tanker in 1993. They related to her account of a visit to her home by the respondent and his wife in May 1995, when she said the respondent reported his arm condition to her and asked her as "a favour" to pay a doctor's bill. The point of her evidence in re-examination about the water tanker, had in fact been clearly put to the respondent in that it was suggested to him that the counterweight configuration as shown in the exhibited photographs was that which existed in 1995 (which he denied).
166 His Honour's failure to explain why or how he was able to accept the evidence of the respondent on whether or not the incident happened at all, or if so, in the way described by the respondent, in the face of the matters discussed above, was a serious failure and such an inadequacy as to give rise to a miscarriage of justice. His Honour's acceptance was mere general assertion which, in light of the substantial delay, does not suggest a detailed consideration of the evidence. In light of the delay and the lack of reasons addressing these significant evidentiary considerations, it is not surprising the appellant argues they were not considered and there has been a miscarriage of justice. In my opinion, regrettably for all concerned, that proposition has been made out.
167 Particular (a) complains that his Honour erred in finding that the jamming of the gate valve to the extent the respondent was unable to release it by use of the lever, was foreseeable, when on the evidence that event had never previously occurred and was not likely to occur.
168 This is not an accurate statement of what his Honour found. The phrase "... when on the evidence that event had never previously occurred ..." suggests the finding was that the valve jammed because the counterweight became snagged on the actuating arm. That is not what his Honour found. It is clear from what he said at [24] - [28], [36] and [37] that the problem of the "stuck" valve as found by his Honour, was exactly that. It was that problem of which he found the appellant was aware. It was that problem which his Honour found had happened previously and was likely to happen again. This particular is misconceived.
169 Particular (b) cannot be sustained. There was evidence from which it could have been inferred that the combination of twisting, reaching back above head height and pulling down on the lever and the fact that when the gate valve jammed, a short, hard pull was required "... exposed the plaintiff to the risk of injury" such that there was a real likelihood that injury could be sustained and was therefore foreseeable. That included the evidence of the respondent and his sons, Apgar, Simms and the appellant himself. The medical evidence was that the elbow and shoulder injuries could have been caused in the way described by the respondent, whether as the result of a single incident or repetitive action.
170 Particulars (c), (d) and (e) have already been dealt with.
171 Particular (f) has substance. The evidence of Apgar and Simms was to the effect that the sticking problem was a feature of the design of the valve and that although the problem might be worse without regular maintenance, it could not be entirely avoided by regular maintenance. A finding that the sticking of the valve could have been avoided by regular scheduled maintenance to ensure that it did not stick or jam, was simply not supported by the evidence.
172 Particular (g) is not made out. The assertion first that the existing lever system had been in operation for 20 years "without incident" is contrary to the evidence and, indeed, contrary to the appellant's own evidence. There had been instances of the valve sticking, requiring a hard pull or jerk on the lever to move it. It is also incorrect to assert (as this particular does) that the evidence was that a power assisted valve opening mechanism or a Bowden cable system was "impractical, expensive and unnecessary". Simms' evidence was that the valve could be operated pneumatically by the addition of a compressor or by hydraulic means, both of which would mean fitting equipment not presently on the tractor. It would not be a particularly difficult technical exercise and the components would be available generally off the shelf, and although it would require some level of expertise to install and adjust, it would be possible to install a system which provided an acceptable level of reliability. Apgar said the installation of a Bowden cable would be a very simple and reliable system; the other two alternatives he ventured were perhaps more sophisticated. One was a hydraulic system, again very simple and reliable, and the third was an electrical system, operated by means of a switch. He spoke in terms of a small engine mounted compressor for a few hundred dollars plus incidentals for tubing, an air cylinder and a toggle switch. The hydraulic system would be quite small.
173 Particular (h) is made out insofar as his Honour found the appellant was negligent in failing to maintain the equipment. I have explained in respect of particular (f), why that finding was not open.
174 This point arose because the respondent contended before the trial Judge that the appellant was estopped by the review officer's decision of 20 September 2001 from denying the incident was the cause of all shoulder, arm, hand and psychiatric symptoms then complained of. The appellant had contended, on the other hand, that the review officer's findings could not be said to involve the determination of a substantive issue for the purposes of the common law proceedings because that did not establish any right other than to proceed for damages at common law.
175 His Honour noted that in the proceedings before the review officer, the appellant admitted - for the purpose of those proceedings - that the respondent had suffered a disability to his right elbow in the course of his employment. What was at issue there was the extent of the resulting disability claimed to have been suffered as a consequence of the injury. His Honour acknowledged that acceptance of liability for the purpose of those proceedings was not determinative in the proceedings before him of the issue as to whether the injury was in fact sustained as a result of negligence and/or breach of statutory duty and/or breach of contract by the employer. He said the review officer's decision determined the extent of the disability. With respect, I do not think the review officer's decisions was quite so limited.
176 His Honour further noted that using the common law test of causation, the review officer had found that the compensable disability included the elbow, shoulder and hand; there was psychiatric illness caused by the same disability and no contribution from other causes; the hand, shoulder and elbow had been asymptomatic prior to January 1995 and the permanent loss of use of the right arm as a whole could be assessed at 20 per cent, with the psychiatric disability assessed at 5 per cent.
177 In dealing with this, the trial Judge identified the issue as being whether or not matters pertaining to causation were "actually litigated and determined" in the proceedings before the review officer. He said (at [63] - [65]):
"63 The question at issue is whether or not matters pertaining to causation were 'actually litigated and determined' in the proceedings before the review officer. The ultimate issue determined by the review officer is stated ...:
'As to causation generally, I accept the employer's submission that I have jurisdiction to determine an assessment of degree of disability which is a consequence/symptom of the disability for which compensation has been paid or is payable. Further, I accept that I "should have regard to those degrees of disability which are made up of the consequences or symptoms of compensable disabilities under the Act (within the meaning of section 5) in respect of which liability to pay compensation is not in dispute".'
64 In determining that issue it was necessary that the review officer make findings insofar as the physical disability of the plaintiff was concerned. He said at par 111:
'The areas of challenge explored by the employer extended over the following;
whether the worker's disability consisted of the elbow only or the elbow, shoulder and/or hand;
whether the history of injury as related by the worker to the doctors is reliable;
whether the alleged disabilities to the elbow and/or hand were caused by an independent cause;
whether the alleged disabilities to the shoulder, hand and psyche must be compensable disabilities as defined in section 5 in their own right;
whether the alleged disabilities were symptomatic prior to the material date;
whether the worker's failure to undertake recommended medical treatment renders assessments unreliable insofar as permanency is concerned.'
65 As to those matters the review officer made the following findings:
'That the injuries to the right hand and shoulder were not separate disabilities but were a consequence of the disability sustained to the elbow. (Par 112).
That there was no reason to conclude that the history of injury as related to the doctors was unreliable. (Par 113-116)
That there was no evidence to suggest that the alleged disabilities to the elbow and/or hand were caused by an independent cause. (Par 117)
That there was no reason to consider that the plaintiff had exaggerated his symptoms. (Par 118)
That prior to the incident the plaintiff although suffering from a degenerative process in his shoulder and elbows was symptom free. (Par 122)
No findings were made as to failure to mitigate or take recommended medical treatment. (Par 119 and par 120)'."
178 At [67] his Honour held that his judgment necessarily involved consideration of those matters on which the review officer had made findings and which was specifically raised by the appellant in the workers' compensation proceedings. He concluded that they had been "actually litigated and determined" and that the review officer's findings operated as issue estoppels. His Honour went on to say (at [68]) that if he were wrong in that conclusion he would nevertheless have come to similar findings on those issues as the review officer did; he incorporated the analysis and conclusions of the review officer seriatim into his reasons.
179 The question turns on whether the decision of the review officer as to the respondent's degree of disability for the purposes of s 93D of the Workers' Compensation and Rehabilitation Act 1981 was a final decision, determining the rights of the parties and not merely a right to contend for damages at common law.
180 In Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 the High Court held no issue estoppel arose between a decision on workers' compensation proceedings in the directorate and a substantive claim for damages at common law in the District Court, because the employer had failed to prove the questions in the two proceedings were the same. The Court affirmed that the requirements to be met for the doctrine of issue estoppel to apply to a second set of proceedings are those enunciated by Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935, they being, for the doctrine to apply in the second set of proceedings:
"(i) that the same question has been decided;
(ii) that the judicial decision said to create the estoppel was final, and
(iii) that the parties to the judicial decision or their privies were the same parties as the parties to the proceedings in which the estoppel is raised or their privies."
181 It was accepted that the doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to finally decide a question arising between parties, even if it is not called a court.
182 In Kuligowski there was no dispute about the third requirement, and the Court held the decision of the review officer was a final decision. The Court emphasised the need for an appreciation of the structure of the legislation for the determination of the "finality" of decision-making under it, and the identification of the issues involved. In that context, the decision of the review officer under s 84B and the procedures in Pt 3A Div 3 of the Act, was a final decision, notwithstanding it was subject to an appeal to a Compensation Magistrate's Court on a question of law, because s 84ZN provided that otherwise, decisions or orders of a review officer were not open to question or review in any court. That was to provide that they were final, despite the non-inclusion of the words "final and conclusive".
183 The questions in the workers' compensation proceedings were not the same as that in the District Court. The former was whether the worker's then present injuries could be characterised as a disability within the definition in s 5(1)(a) of the Act ("personal injury by accident ...") or (d) ("recurrence, aggravation or acceleration of any pre-existing disease ...") and whether they incapacitated the worker. The latter were whether the injury fell within s 5(1)(a) at the outset; whether it was negligently caused, whether it created ongoing incapacity, and whether the injuries of which the worker was now complaining were causally related to Metrobus' negligence.
184 The Court observed (Kuligowski at [54]) that findings in proceedings under workers' compensation legislation concerning the existence or non-existence of particular injuries sometimes have been treated as findings on ultimate facts in relation to the issue whether a worker is incapacitated. The Court suggested that Egri v DRG Australia Ltd (1988) 19 NSWLR 600 at 604 - 605, may be such a case. However, Kuligowski did not fall in any such category.
185 The appellant's first submission here is that the case is distinguishable from Kuligowski in that the determination of the review officer here was made under s 93D of the Act (in Div 2 of Pt IV). The determination, it is submitted, does not arise as the result of an application and does not involve any question of liability. The reference to a review officer is made by the Director in the absence of agreement between the parties and does not involve the determination of any liability; which therefore does not "extinguish" any "cause of action".
186 The High Court made it clear that in relation to the question whether a determination is "final and binding", it is necessary to look at the nature of the statutory determination. The Court distinguished between "gateway" procedures in the Act and those which involved the resolution of a dispute (see [8] and [33]). In Kuligowski the dispute was as to the worker's entitlement to weekly payment of compensation under the Act.
187 In my view, nothing turns on whether the proceedings before the review officer were commenced in this case by an application.
188 The purpose of Div 2 of Pt IV of the Act is to limit the entitlement of a worker to be awarded damages at common law in respect of a disability caused by the negligence or other tort of the worker's employer and in respect of which compensation has been paid or is payable in respect of the disability, under the Act (s 93B(1); s 93C). The rights of the worker are dependent upon establishing a disability of not less than 30 per cent or not less than 16 per cent (s 93D). If the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level, the worker may refer the question to the Director (s 93D(5)). If the employer does not accept the disability is not less than the relevant level, a dispute arises (s 93D(8)). If that is not resolved by agreement, the Director is to refer the question for resolution under the provisions of Pt IIIA, other than Div 2 (s 93D(10)).
189 For the reasons expressed by the High Court in Kuligowski, a determination under Pt IIIA is "final and binding". The real issue here is whether the same question has been decided by the review officer as arose for consideration by the trial Judge.
190 In his reasons of 20 September 2001 the review officer expressly adverted to his jurisdiction in s 93D(10) proceedings to determine issues of causation where there is a dispute as to the consequences or symptoms flowing from the subject disability. He did so in the context of the psychiatric aspect, as well as conditions or symptoms which were said to be pre-existing, noting that all injuries other than the elbow were in dispute. He expressly (AB 3/857, [109]) applied the common law test for causation. He found the claimed disabilities were disabilities within the meaning of s 5 of the Act and upon analysis of the medical evidence, concluded the relevant level of the respondent's disability to be not less than 16 per cent.
191 The appellant argues that a determination of percentage disability is not a final decision determining the rights of the party in any sense that would give rise to an estoppel, and that the facts upon which a review officer makes such a determination are "evidentiary" facts rather than "ultimate" facts (Kuligowski, at [62], referring to Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 532).
192 I have already said I consider the determination of a degree of disability under s 93D(10) to be a final and binding determination. I agree though that determination will not raise an estoppel of itself because that was not a question which fell for decision in the District Court proceedings. However, the question of causation of the particular injuries did. That evidentiary finding that the symptoms were caused by the alleged work-related injury, upon which the review officer made his finding of percentage disability, was an "ultimate" fact in the sense described by the High Court in Kuligowski at [54]. His Honour was accordingly correct to so conclude and ground 7(a) of the appeal must fail.
193 Ground 7(b) is predicated on the success of ground 7(a). That being so, ground 7(b) must also fail. Although ground 7(c) purports to relate to estoppel, it does not do so. Be that as it may, it seems to me the findings sought to be attacked (those at judgment [116]) were not in contest. They were that:
(1) Since the review officer's findings and up to trial the respondent's physical condition both in respect to the right elbow and right shoulder had not improved but rather that the right shoulder condition had deteriorated further.
(2) The respondent had a substantive limitation of function of the right upper limb.
(3) Such disability had been causative of pain, suffering, loss of amenities and loss of enjoyment of life.
(4) The depressive illness was continuing, although mild in severity.
(5) The respondent was and would in the future be restricted in household and gardening activities and other leisure or recreational pursuits.
(6) He was not able to return to his pre-accident employment and had been rendered unfit for any alternative employment.
194 What was in issue was whether these injuries were caused by the claimed work injury. That point is not challenged by this ground.
195 In an amendment to his defence, the appellant contended that the effects of any injury to the right arm had been overtaken by the progression of pre-existing degenerative changes in the respondent's right elbow and shoulder, such that any ongoing complaints and disability may not reasonably be attributed to the accident.
196 His Honour dealt with that briefly. He correctly said that the onus was on the appellant to "disentangle" the degeneration, citing Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.
197 The appellant submits that his Honour erred in his application of Purkess v Crittenden "in not recognising the appellant's discharge of the evidentiary burden".
198 The respondent argues simply that there was no clear evidence that the effects of the respondent's injuries had been overtaken by pre-existing degeneration and his Honour was correct in finding the appellant had not discharged his evidentiary onus.
199 His Honour noted that the respondent's condition was asymptomatic prior to the incident and that he complained of pain and soreness in the shoulder to Dr Connaughton only a matter of months afterwards. Furthermore, he observed that it was Dr Ker's evidence that there was no degeneration in any joint other than the injured shoulder and he accordingly concluded that the degeneration was consequential upon the injuries sustained. Once again, there was a body of medical evidence which attributed the respondent's shoulder complaints to pre-existing degeneration and there was radiological evidence to that effect, although the evidence also was that work-related activities could aggravate the condition. The appellant concedes that the evidence did not exclude the possibility of the respondent's post-accident work activities causing a precipitation or aggravation of right shoulder symptoms.
200 It was not enough for the appellant to merely raise a possibility of pre-existing degenerative changes accounting for the symptoms; it was necessary for the evidence to go further than that. It did not do so and the challenge to this finding by his Honour is not made out.
201 The appellant concedes this ground goes only to damages and in that regard is significant only in the evaluation of the proportional severity of the respondent's disability. The contention is that his Honour's findings as to past and future loss of earning capacity fail to take into account, or resolve, the appellant's contention that the respondent, by reason of his unsatisfactory performance, was not likely to have been employed by the appellant after September 1995 in any event. It is submitted that the evidence supported a finding that the respondent was not likely to have continued in employment and would therefore have to show what, if any, other work he would have done but for his injuries. It is further submitted that the trial Judge did not deal with a contention based on Mr Bell's opinion that the respondent was unlikely to have been able to work past 60 years of age as a tractor driver due to his many other health problems.
202 The appellant gave evidence that towards the end of 1994 and onwards, he began to receive complaints about the standard of work being done on the tracks. These were that the watering was not being done properly, there were dry spots, smooth spots and sometimes drag marks from the harrow. He said he was summoned to the office of the racecourse manager, Mr Geoff Murphy, about November 1994, concerning a complaint about an incident between the tractor and a horse on the track. That was the first formal complaint he had received from Murphy, coming in the form of a letter dated 28 December 1994 (exhibit 3). This and subsequent letters were handed to him in the Turf Club office. The appellant's evidence was that there were further complaints and his relationship with the respondent deteriorated from that point. He said that in April 1995 it had become necessary for him to write to the respondent about the complaints he had received from the Turf Club. In a letter dated 19 April 1995 (exhibit 5) the appellant wrote to confirm and finalise discussions with the respondent earlier that month. He referred to poor work performance by the respondent's sons, who would no longer be permitted to work on his behalf.
203 The appellant testified that he told the respondent he had been instructed by the Turf Club to oversee the respondent's work and to take over the watering, and that the respondent became upset about that, accusing him of deliberately reducing the respondent's hours.
204 The respondent denied that he had received that letter in April. He insisted he was given that, together with other letters, in July that year.
205 In the meantime, Murphy had written to the appellant again by letter dated 26 June 1995 (exhibit 11), complaining about harrowing and rolling being done on the track outside the nominated hours, resulting in conflict with horses doing track work. Murphy advised the appellant that if there were any further complaints, he would have to "seriously consider" reviewing the appellant's contract. He noted there had been no complaints when the appellant was doing the work himself.
206 On 20 July 1995, Mr Gordon Menzies, the assistant racecourse manager, wrote to the appellant about unsatisfactory harrowing of the track on 17 July, which had to be redone.
207 According to the appellant, he wrote to the respondent by letter dated 18 July 1995 (exhibit 6) recounting in particular, this complaint about the incident the previous day. He wrote that the respondent's neglect placed the appellant's contract in jeopardy and that both their futures were at stake. He wrote again in more detail by letter dated 19 July 1995, pointing out that the respondent had been given an opportunity to read the appellant's correspondence from the Turf Club regarding the serious situation with the appellant's contract. He concluded (AB 2/541):
"Furthermore, if there is any evidence at all that through your lack of due care and performance of the required work, you have created a situation which may be deemed to endanger the lives of horses, the lives of trainers, jockeys and Race Course staff, or cause my contract with the Western Australian Turf Club to be jeopardised further, it will be considered an instance of summary dismissal."
208 The appellant explained in his evidence that by the end of July 1995 the situation between him and the Turf Club was not good and it looked as though he was going to lose his contract.
209 In September the respondent had surgery on his shoulder and did not return to work after that.
210 In cross-examination the appellant said that he tried to give these letters to the respondent but he continually refused to accept them, until finally the appellant had to take him to the Turf Club office and give them to him there. That happened probably at the end of July.
211 In his cross-examination, the respondent said there were always problems on the track but he knew of no letters until those written in mid-1995. He acknowledged there had been a complaint in December 1994 that the sand was too dry. It was put to him that from late 1994 through until he ceased work in September 1995 "there was a sword hanging over" his work for the appellant due to a series of complaints about the work of the respondent and his sons. He denied that. However, he went on to refer to an entry in his diary for 12 September 1994 in which he recounted an incident on the track and a subsequent meeting with Murphy at which he had been blamed for it. On 15 September 1995 he noted the appellant told him the Turf Club had told the appellant to sack him and they were on a trial basis. The respondent said he had heard that about four times when he worked on the track but the appellant "fairly and squarely" looked after him and he regarded the appellant as a friend rather than as an employer. He denied receiving exhibit 3 but conceded the appellant had spoken to him about the matters raised in it. He insisted that the letter dated 19 April 1995 was handed to him in July, "backdated to April", at which time there was "a bit of animosity flying around". The things listed in that letter were basically things they had talked about in July. He said the warning in the letter dated 19 July 1995 was the first warning he had received in all the time he had been there.
212 The respondent was referred to a letter he wrote to the appellant dated 27 September 1995, acknowledging receipt of letters on 31 July and 2 August 1995. The attachments were letters from the appellant dated 19 April, 18, 19 and 31 July 1995 and meeting notes dated 28 and 31 July 1995. He advised that he was merely acknowledging receipt, not acknowledging their legality or accuracy.
213 It was put to the respondent in cross-examination that the reason he did not return to work after recovering from his shoulder surgery was because his position at Ascot race course was untenable. He said that was not true. It was put to him that by September 1995 he understood that the appellant's contract would not be renewed unless he agreed the respondent would not be doing the work, but he said he knew nothing about that.
214 As racecourse manager, Murphy was responsible for contracting the work on the track. He confirmed that complaints had been made as reflected in his correspondence with the appellant. He said that the position after his letter dated 26 June 1995 to the appellant, was that if things had not changed, he would have given the appellant a month's notice and got someone else to do the job.
215 In cross-examination he said the contract was put out to tender in July 1996. That was because the committee liked tenders to go out on any contract after 12 months or two years. At that stage his concerns were about the complaints he had been getting about the tracks. Pressed on this, he said he was talking about the complaints he was getting when the respondent was doing the track, which was about 12 months, or possibly up to six months earlier, but this was going back 10 years.
216 Whilst the evidence falls short of showing that the respondent would not have been permitted to continue in his employment with the appellant, it does raise a real question about that possibility, or probability. His Honour made no mention of this in his assessment of past and future loss of earning capacity. Given the delay between the conclusion of the hearing and judgment, it must be concluded that he gave no consideration to that evidence. As it was an issue of contention between the parties and did bear upon the severity of the disability and hence the assessment of damages, it was an issue which called for resolution by his Honour. Ground 9(a)(i), (ii) and 9(b) is made out.
217 I would not uphold particular 9(a)(iii). All that is relied upon is a comment by Dr Bell that:
"It does appear reasonable to assess that he would have become incapacitated from performing his pre injury duties as a tractor driver as his general health is very poor and he is very overweight. I believe it is reasonable to suggest that he would have required ceasing those duties at the age of sixty years."
218 I agree with counsel for the respondent's description of this, as "rather tentative views [sic]". The suggestion was not supported by other evidence. The particular significantly overstates the evidence.
Ground 10 - Section 93F ("A most extreme case")
"(1) Unless an agreement or determination that the degree of disability of the worker is not less than 30% is recorded for the purposes of section 93E -
(a) the amount of damages to be awarded is to be a proportion, determined according to the severity of the disability, of the maximum amount that may be awarded; and
(b) the maximum amount of damages that may be awarded is Amount A, but the maximum amount may be awarded only in a most extreme case of a disability of less than 30% in degree."
220 In this case the review officer determined the respondent's relevant degree of disability was not less than 16 per cent. The exception to s 93F(1) accordingly does not apply.
221 His Honour held that the proportional severity of the disability is not determinable under s 93F(1)(a) according to the percentage degree of disability because the expression used in the section is "severity of the disability", whereas s 93D and s 93E speak of "degree of disability". He acknowledged that there would otherwise be no reason to assess quantum, every case being determined according to a percentage of the maximum amount according to the percentage degree of disability agreed or determined. Nevertheless, his Honour considered the section suggests that the maximum amount constitutes a damages cap which creates a scale within which all damages, economic and non-economic, must be proportioned. He said the closest analogy is to be found with reference to s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) ("MVA") which caps damages for non-pecuniary loss in similar terms. His Honour referred to the judgment of Viol DCJ in Guest v NRMA Insurance Ltd [2002] WADC 115 at [77] - [89] and his Honour's conclusion (at [87]) that by reason of the particular wording of the section, it was suggestive that a discretionary assessment was necessary, rather than a mathematical calculation. The trial Judge accepted that as the appropriate interpretation, for the reasons given by Viol DCJ, and also adopted his Honour's view that the wording of s 93F "... suggests some consideration of the overall economic and non-economic consequences to the plaintiff as a result of the accident".
222 Groves DCJ assessed the respondent's damages as under:
223 Given that assessment, his Honour was satisfied that the "severity of the disability", having regard to the overall economic and non-economic consequences to the respondent, put him in a most extreme case of a disability of less than 30 per cent in degree and he was accordingly entitled to the maximum allowed under the Act.
224 The appellant's submission is that s 93F(1) requires a mathematical approach of dividing the determined percentage degree of disability by 20 (or 29.9) (because it was not 30 per cent or more) to obtain the proportion of the prescribed amount to be awarded as damages. In other words, the proportion the determined percentage degree of disability stands in relation to 29.9 should then be the proportion of the prescribed amount which should be awarded.
225 As a legislative parallel, the appellant refers to s 3C of the MVA, which relevantly provides:
"(2) The amount of damages to be awarded for non-pecuniary loss is to be a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded.
(3) The maximum amount of damages that may be awarded for non-pecuniary loss is Amount A, but the maximum amount may be awarded only in a most extreme case."
226 In s 3C MVA "non-pecuniary loss" is defined as meaning pain and suffering; loss of amenities of life; loss of enjoyment of life; curtailment of expectation of life; and bodily or mental harm.
227 Section 3C MVA was considered by the Full Court of Western Australia in Wylde v Arriaza (1997) 25 MVR 539. Franklyn J (Malcolm CJ and Kennedy J concurring) explained that s 3A, s 3B and s 3C were inserted into the MVA in 1994 and set out the following passage from the Second Reading Speech of the Hon Minister introducing the amendments:
"Sections 3A to 3D are based on ss 72, 79 and 80 of the Motor Accidents Act 1988 (NSW). It is intended that the courts in Western Australia should interpret phrases used in the new sections by reference to existing New South Wales case law."
228 Franklyn J observed that s 79(2) was in identical terms to s 3C(2), and s 79(4) and s 79(5) of the New South Wales Act in providing for restrictions as to the damages that may be awarded to the same effect, although differently expressed, to s 3C(5) and s 3C(6). Having set out the provisions of s 3A, s 3B and s 3C of the MVA, his Honour referred to Southgate v Waterford (1990) 21 NSWLR 427 in which the New South Wales Court of Appeal considered the meaning and effect of s 79(2) of the New South Wales Act. The appellant argued in that case that the "proportion" there referred to was "the resulting ratio which existed between the damages awarded on ordinary common law principles and the maximum amount recoverable as fixed by parliament in s 79(3)". That argument failed. The fatal obstacle to it, was the word "proportion". That enjoined the Court to look for the relationship between "the amount of damages to be awarded for non-economic loss" and the maximum amount which may be awarded under the section. Adopting a construction of s 79(2) by which the maximum could be reached by common law principles, although the case was not one properly described as "a most extreme case", conflicted with the obvious way in which the section was supposed to operate. The appellant's argument failed "as a plain matter of statutory construction" (Southgate (supra) at 437). The New South Wales Court of Appeal went on to allow there was a number of ways by which trial Judges could approach the task of apportionment mandated by the section, but because the task was to award damages for "non-economic" loss, it would be appropriate for a trial Judge to make findings on those elements in the evidence relevant to such loss, in the manner formerly done in relation to general damages. It would then be necessary for the Judge to conceive "a most extreme case" (noting the use of the indefinite article "a"). Only for such a case may the prescribed maximum amount be awarded. The amount to be awarded must be apportioned somewhere between nil and the maximum, in a ratio to be fixed keeping in mind the cap of the statutory maximum is retained for "a most extreme case".
229 In Wylde, Franklyn J was of the opinion that putting the nature and extent of the injuries sustained by the appellant and their effects firstly into a category, they fell within the lowest 25 per cent of "a most extreme case" but towards the upper end of that 25 per cent. Then applying s 3C(2) MVA, he considered the appropriate proportion of the maximum amount that may be awarded under the section, determined having regard to the severity of the pain, suffering and loss of amenities suffered by the appellant (that is the non-pecuniary loss), was one-fifth of the maximum amount.
230 Southgate was followed by the New South Wales Court of Appeal in Dell v Dalton (1991) 23 NSWLR 528, which confirmed that the use of the indefinite article in the phrase "a most extreme case" did not require one to imagine the most extreme case and put that at the top of "some grisly table of catastrophes". The Court further held (at 533) that the word "most" in s 79(3) of the New South Wales Act meant "very" rather than in the greatest quantity, amount, measure, degree or number. Handley JA (with whom Kirby P and Priestley JA agreed), quoted a passage from the judgment of Windeyer J in Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 at 71 which, although a dissenting judgment, his Honour said accurately reflected the previous law:
"... In theory it might seem that the most serious physical injuries should always attract the heaviest damages. Therefore it is sometimes suggested that damages given in cases of paraplegia should be regarded as at the top of a scale and used as a basis for other estimations. But that involves an erroneous hypothesis. Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious in principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables. The law insists that it be done, but can give no sure guidance on how it is to be done."
231 Handley JA was of the opinion s 79(3) did not enact "a statutory table of maims" which reduced all human beings to some common denominator and required the impact of particular injuries on a given individual to be ignored; nor was it to be expected that all who fell into the class of "most extreme" cases would have identical or nearly identical injuries or that their pre-injury situations would have been practically the same.
232 Finally, his Honour held it was open to the trial Judge on the findings he made, to conclude the case was "a most extreme case", and once the Court of Appeal held the findings of fact made by a trial Judge were reasonably open, the ultimate finding that a particular case is, or is not, "a most extreme case" will not readily be susceptible of appellate review (see Moran v McMahon (1985) 3 NSWLR 700).
233 Wylde was followed and applied by the Full Court of Western Australia in Hendrie v Rusli [2000] WASCA 249; (2000) 32 MVR 240, another case involving s 3C of the MVA. Murray J (Pidgeon and Wallwork JJ agreeing) noted the court in Wylde had relied upon Southgate, in accepting the task was to find the right proportion between a most extreme case and the present. His Honour went on to say that (at [18]):
"... As to what might constitute a most extreme case, it was appreciated that a number of different types of cases of horrific injury involving extreme pain, loss of enjoyment of life, physical disability and the like might fall into that class. Paraplegia would certainly do so, particularly in a young person who might have an unaffected expectation of life and many years of disability and suffering ahead. As to how the right proportion is to be struck, appellate courts have simply reminded trial Judges that damages will continue to be awarded by reference to common law principles of assessment, and that there is, particularly in respect of non-economic loss, a wide measure of discretion."
234 It is clear from the terms of s 93F(1) that it only applies to cases where the degree of disability is less than 30 per cent, whereas s 3C of the MVA applies to all cases.
235 The question is how one is to approach the exercise of determining the appropriate proportionality.
236 The appellant accepts that s 93F(1) applies to all loss, economic and non-economic, whereas s 3C of the MVA applies to non-economic loss only.
237 The New South Wales cases referred to above, as well as Wylde and Hendrie all concern statutory provisions in terms similar to s 93F except insofar as they were confined to non-pecuniary damages.
238 I cannot accept the submission that s 93F(1) requires the determination of a simple proportionate relationship between a degree of disability assessed in accordance with s 93D(2) and the prescribed maximum amount, taken as 100 per cent.
239 The term "degree of disability" is defined in s 93F(1) of the Act as meaning the degree of disability of the worker assessed in accordance with s 93D(2). The term is used throughout Div 2 of Pt IV as having that meaning. It is used in the preparatory words of s 93F(1) itself. Subsection 93F(1)(a) stipulates the amount of the damages to be awarded is to be a proportion of the maximum, determined according to "the severity of the disability". The different terminology must be taken to be deliberate and is significant, particularly given the damages are not confined to non-economic loss. Having regard to the definition of "disability" in s 5 of the Act, s 93F(1)(a) is speaking of all damages attributable to the severity of the personal injury, disease or disabling loss of function suffered by the worker. As Viol DCJ opined in Guest, that suggests a discretionary rather than a mathematical calculation is necessary.
240 In my view, notwithstanding the different wording of the relevant provisions, I consider the approach taken in Wylde and Hendrie is also that which is contemplated by s 93F(1). That being so, this ground must fail.
241 For the reasons given, I would uphold grounds 1, 2(f), 2(h), 3, 4, 5, 6, 9(a)(i), 9(a)(ii) and 9(b) but reject the remainder.
242 I would accordingly allow the appeal and order a retrial.
243 MCLURE JA: I have had the advantage of reading in draft form the reasons to be published by Roberts-Smith JA. The facts, pleadings and grounds of appeal are set out in his judgment and not repeated here unless necessary for an understanding of these reasons.
244 The appellant (defendant) provided track maintenance services to the WA Turf Club at Ascot Racecourse which included watering the training tracks. A tractor and water tanker were used for that purpose. The task was to fill the tanker, drive onto the track, line up along the running rail and by pulling a lever positioned behind the tractor driver's head, open a gate valve at the rear of the tanker which allowed water to flow to a distributor bar/spray boom. The respondent (plaintiff) had worked for the appellant as a tractor driver since 1987. The trial Judge found that on 21 January 1995 the respondent, aged around 55, suffered an injury to his right elbow and right shoulder as a result of pulling on the lever to open the gate valve (the "accident"). The respondent continued to work for the appellant until September 1995. He had two unsuccessful operations on his elbow, the first in September 1995, the second in March 1997.
245 The water tanker was attached by a gooseneck arrangement to the rear of the tractor. The gate valve was at the rear of the tanker and had a lever located over the top of the valve ("the actuation arm") which, when raised, opened a gate to allow water to pass through the valve. The gate (which is inside the valve) is a tapered circular disc that engages with a corresponding slot in the body of the valve to control the flow of water. The gate valve was opened by the driver of the tractor by means of a lever located on the left side of the gooseneck. The lever was connected by means of a steel wire cable passing along the top of the tank and down to the actuation arm on the gate valve. To open the gate valve, the lever was pulled downward and then rearward until the cable attachment point passed below the pivot centre. The valve remained in the open position until the driver lifted the lever a short distance to release it above the pivot centre and the valve closed by gravity assisted by a weight on the actuation arm.
246 I agree with Roberts-Smith JA's characterisation of the grounds of appeal. They are prolix, repetitive, inadequately particularised and a significant impediment to the efficient disposal of the appeal. I propose to deal with the grounds as they are elucidated in the appellant's written submissions. The adequacy of the trial Judge's reasons is a matter raised in the grounds. I start with the relevant legal principles on that subject.
247 The trial Judge was under a duty to give reasons. In determining the adequacy or sufficiency of the reasons, it is necessary to look at the reasons as a whole, and if necessary in the context of the evidence, to see if they give the sense of what was intended in a way that achieves the required function and purpose of reasons: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 at 248 per Owen J. The function of reasons is to allow an appeal court to determine whether the decision was based on an appealable error and to provide procedural fairness to a litigant who is entitled to know why it is that he or she has been successful or unsuccessful. It is sufficient if the reasoning process which led to the result is disclosed with sufficient certainty to enable a litigant to know why it is that the result ensued and to ensure that the statutory right of appeal has been secured: Garrett v Nicholson at 248.
248 However, reasons need not be lengthy and elaborate nor do they require reference to all of the evidence led in the proceedings or every submission advanced by the parties: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 at [28]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
249 Further, as the Full Court stated in Mount Lawley Pty Ltd v Western Australian Planning Commission at [29], inadequacy of reasons does not necessarily amount to an appealable error; an appeal court will only intervene when the inadequacy or insufficiency in the reasons are such as to give rise to a miscarriage of justice. Further, an appealable error arising from inadequate reasons does not necessarily result in a new trial; an appeal court is entitled to consider the matter and, if it can do so, may itself decide the matter. The Full Court also considered the situation where the adequacy of reasons is considered in the context of a significant delay between the trial and the delivery of reasons. The trial Judge delivered his reasons some 15 months after trial. The delay in this case is properly described as excessive. As a result it is necessary for this Court to very carefully peruse the trial Judge's findings of fact and his reasons for his conclusions in order to ensure that the delay has not caused injustice to the appellant.
250 Grounds 1, 3, 4, 5 and 6 overlap. As far as I am able to tell, these grounds challenge the trial Judge's findings as to when and how the injury was caused. In essence, the appellant contends that:
(a) the findings are not reasonably open on the evidence; and
(b) the trial Judge failed to adequately address, or give adequate reasons relating to, a number of matters relevant to an assessment of whether the trial Judge should accept the respondent's evidence concerning when and how the accident occurred.
251 An unstated underlying premise in a number of grounds is that the trial Judge found that the lever jammed because a metal weight attached by a wire to the actuation arm had somehow jammed (I assume thereby preventing movement of the actuation arm and thus the lever).
252 The premise is incorrect. To explain why, it is necessary to start with the respondent's evidence. He said that on the morning of 21 January 1995, a race day, he was running water out onto the chip track and, as he swung around the corner to straighten up, he pulled the lever and it jammed. He said in examination in chief:
"As I pulled the lever it just jammed. The trouble is I kept pulling it.
Did that have any effect on you?---Yes. It hurt my arm.
What did you do about it? What did you do next?---Well, the first thing was to get off the tractor and go around and release the tanker - the tap at the back. Just release it. Give it a couple of shakes and make sure it was free and then get going again.
What did you have to do to release it?---The metal piece that morning was hanging over the top of the tap area, it was hanging up on it and the tap was jammed. It's a bit hard to remember exactly the position of it but that's what happened, it just jammed the whole thing up on me and I just had to get - go and free it and just get it so I could get going again."
253 The respondent in his evidence used the terms "tap" and "valve" (gate valve) interchangeably. He said the pain, which was mainly in his elbow, persisted throughout the day. He described his memory as being that of excruciating pain but that he continued to work.
254 On my reading of the respondent's evidence, he postulated two possible causes of the lever jamming. He said (at AB83) that the valve would stick or the piece of metal swinging around on the back off the wire would get itself jammed. The first is what he described (at AB137) as "natural jamming" and the second was jamming of the lever caused by the movement and jamming of the metal weight. However, he said that sometimes the effect of natural jamming was that the metal weight was flipped over the gate valve. This appears from the respondent's evidence in cross-examination:
"And I understand you to say that that weight had flipped over the arm?---Yes.
Over the valve?---Yes, that's correct.
When did you see that?---When I got off the back of the tractor. I had to go and reverse it.
So on the occasion that you used ... your right arm to pull the lever and it didn't move. Is that what happened?---I didn't say it didn't move, I said it jammed.
Well, did the lever move when you pulled it?---Well, for me to have travelled any distance to have injured my arm the nature it did it, it had to move, I had to move it in the beginning, yes. It could have not injured me to the level that it did if the gate hadn't started to open.
...
Did it appear that the weight that you say had flipped over the valve had anything to do with it jamming?---Speculation on my part. I'm not inclined to think that.
Your counsel has opened on the basis that the counterweight snagged?---Well, it was caught up there but you're asking me to speculate on whether it caused it or whether the thing jammed and it flipped up.
...
So in your mind does the metal have anything to do with it at all, the weight?---In my mind clearly there's taking the bit of metal which had flipped over like that, putting it back into position, freeing the tap and getting back on the tractor and getting on with the job. Now, speculation as to whether or not the metal flipped up and caused that or whether it was the tap jamming, which it did quite on a regular basis, causing it and then causing the metal to flip up, I wasn't at the back of the tanker when it happened. You're only asking me to speculate."
255 I turn now to the trial Judge's findings. He accepted the respondent's evidence that he operated the lever with his right arm (at [23]).
256 The appellant's expert, Mr Simms, gave evidence that the gate valve did stick and that a short sharp pull requiring a force in the order of 20 kilograms or upwards freed it. My understanding is that this sticking is the same as what the respondent described as "natural jamming". Mr Simms, an engineer, operated the lever about nine times in an hour and on some occasions it was stiff to operate and required a short, sharp jab to release the lever. He was asked what was happening on those occasions and said:
"On those occasions what has probably happened is that the - because you're dropping a tapered disc into a tapered slot much the same as driving a wedge into, for example, split a log of firewood the force with which the disc is inserted in the slot on the previous occasion will affect the force required to extricate it later on. Also it's a function to some extent of the pressure acting on it from the water although I would expect it to be a marginal effect. Obviously the higher the water pressure the more its pressing the valve against one of the ceiling faces. Probably more particularly, the water itself comes from a bore and that water will have in it some suspended solids and these will be particles of vegetation, silicon particles, sand particles and that sort of thing. If there are any of those particles in the slot they will tend to act as a friction-increasing agent, shall we say, to cause the extrication to be more difficult than otherwise."
257 He thought the most significant factor affecting the force required to open the gate was the force with which the gate was closed. However, as appears from the above extract, he accepted that a build up of material in the gate valve could affect its functioning. He said (at AB415):
"[P]articles in the water, contaminants in the water will tend to act as a friction-increasing medium and that for a given force - closing force, it will tend to increase that force next time so it will act as an unlubricant, if you like."
258 However, because the force required to open the gate would always be affected by the force with which the gate was closed, maintenance or cleaning of the gate valve would ameliorate, but not eliminate, the jamming problem.
259 Based on Mr Simms evidence, the trial Judge found (at [24]) that from time to time the gate valve would jam and would require extra force to be applied on the lever to cause the valve to open. He also said that sediment could build up in the gate valve, as was evident from photographs attached to Mr Simms report, and that the sediment could cause the valve to stick. The trial Judge continued (at [27]):
"All of that is consistent with the [respondent's] evidence. It is consistent in that:
(i) from time to time the valve would jam;
(ii) when it did jam a short sharp downward pull down on the lever was required to open it the valve;
(iii) sediment would built up in the gate valve; and
(iv) from time to time maintenance was required to clean the sediment to make the valve easily operable by the operator.
It follows therefore that I accept the [respondent's] evidence insofar as those matters are concerned. It is supported by the evidence of other witnesses and in particular by the [appellant's] engineer Mr Simms."
260 The trial Judge does not refer in his reasons to the two possible causes of the lever jamming or why one was to be preferred. However, it is apparent from the above discussion and the trial Judge's analysis of breach and causation that he found that the lever jammed (stuck) as a result of natural jamming.
261 The trial Judge's findings on when and how the accident happened are as follows:
"45 Two issues arise. First, as to when the [respondent] allegedly suffered the injury and secondly, as to whether or not the injury was caused in the manner alleged by him. As to the first of those questions I have no reason not to accept the [respondent's] evidence. Whilst the first medical certificate gives 20 January and the statement of claim states 25 January as the date of the incident, the [respondent] recalled it as having happened on a Saturday race day at Ascot. Upon checking the racing calendar some time later he identified 21 January as being the race date. I accept his evidence on that.
46 As to the second question the [respondent's] description as to how the injury occurred has been consistent insofar as giving a history to medical practitioners and to the workers' compensation insurer. Furthermore, the [appellant] agreed so far as the details of the occurrence are concerned that 'it is possible'. Also, the [respondent] had no prior history of injury or pain in the right elbow. It was not the sort of injury which required immediate medical attention. Simple analgesics were used to abate pain. When the pain persisted the [respondent] sought medical attention. That would not be an unusual pattern in responding to this type of injury.
47 Having regard to the evidence and accepting as I do the [respondent's] evidence and I have no reason not to accept his evidence on these matters I am satisfied on the balance of probabilities that he did sustain injury in the manner claimed and consequently I find that the [appellant's] breach of duty of care was causative of the [respondent's] injury to the elbow."
262 I deal separately with the question of breach below. The appellant in his written submissions, identifies all of the matters on which he relies for the general submission that "Properly addressed and decided, the points made ... [by the appellant] would have decisively contradicted [the respondent's] account of the incident complained of, rendering his evidence incapable of acceptance".
263 I will examine each matter in the order they are addressed in the appellant's written submissions. The appellant relies on their cumulative effect. They need to be viewed in the light of the appellant's case at trial which was that there was no accident; his case was that there was no single traumatic (acute) event that resulted in the respondent's injuries to his elbow and shoulder but that the injuries were of gradual onset caused by repetitive activity. Both parties appeared to accept that the latter was outside the scope of the pleading.
264 The first matter relied on by the appellant is what he describes as the respondent's confusion as to the precise date of the accident. His first medical certificate under the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act") records the date of the disability as January 1995; the statement of claims pleads that the accident was on or about 25 January 1995; and the respondent's evidence was that it occurred on 21 January 1995. The respondent explained in evidence that he thought it was 21 January because the accident happened on a Saturday race day. The trial Judge accepted that evidence. There is no substance in the appellant's assertion that imprecision as to the date militated against a finding of a traumatic injury.
265 The second matter relates to the respondent's evidence of excruciating pain, yet he continued to work and did not see a doctor until 20 February 1995. The respondent's evidence was that at church the Sunday after the accident he spoke to a doctor friend of his who recommended he see Dr P Connaughton. His doctor friend made the appointment and the respondent took painkillers in the meantime. The trial Judge addressed these matters at [46] set out above and accepted that there was a common sense explanation for the delay in seeking medical attention.
266 The third matter concerns the histories given to, and the medical opinions of, expert medical practitioners. The appellant relies on the evidence of Dr Connaughton, Mr Prosser, Mr Ker, Mr Wang, Dr Gee. The trial Judge refers to Dr Connaughton's evidence. He notes that the respondent first saw Dr Connaughton on 20 February 1995 complaining of a sore right elbow and forearm symptoms and having experienced a viral illness. The respondent described the onset of symptoms as being towards the end of January but did not give a history of any particular event or incident. Dr Connaughton diagnosed right lateral epicondylitis (which involves tearing at a microscopic level in the tendon attaching to the outer aspect of the elbow). The respondent again attended on Dr Connaughton on 22 March 1995 when the first medical certificate issued. In that certificate, the date and place of disability is stated as January 1995; the respondent's description of how the disability occurred is stated as "pulls a lever on a water tanker with R-arm, whilst driving a tractor"; and the respondent's description of the injury is described as "painful right elbow and forearm".
267 Mr Prosser saw the respondent on 27 March 1995. The history given by the respondent to Mr Prosser was that he had suffered a right elbow disability in January 1995 but the respondent did not report a single episode as the precipitating event. Mr Prosser's history noted that the respondent made repetitive use of his arm pulling on various levers. Mr Prosser also diagnosed lateral epicondylitis. He said the condition can have a degenerative and aging component to it or it can have a traumatic aspect to it, either a single pulling episode or repetitive activity.
268 Mr Ker first saw the respondent in February 1999 after he had had surgery on his elbow. The appellant contends that Mr Ker's report "suggested a history of gradual onset of symptoms but no instance of acute injury". The report materially provides:
"He described to me how he had developed right upper limb symptoms of pain and ultimately weakness whilst driving a tractor. Over time he reported how progressively, although pain commenced in and around the elbow, he subsequently had soreness and stiffness throughout the arm."
269 The respondent also suffered a rotator cuff tear in the right shoulder. There was a question at trial as to the timing of the onset of the shoulder symptoms and their relationship with the accident. The respondent's evidence was that he told Dr Connaughton and Mr Prosser that he had right shoulder pain. Indeed, Dr Connaughton recorded that on examination on 20 February 1995, the respondent reported right shoulder symptoms while the right arm was being put through a variety of movements.
270 Dr Connaughton referred the respondent to Mr Prosser but made no mention of a shoulder problem in his referral. Mr Prosser first saw the respondent in March 1995 but according to Mr Prosser, the respondent first discussed his shoulder problems with him in July 1995. Mr Prosser accepted that the injury suffered by the respondent to his elbow and right shoulder could have been caused by a single incident such as that reported by the respondent or could be aggravated by repetitive use of the arm.
271 Mr Wang first saw the respondent some five or six years after January 1995. He agreed with Mr Prosser that pulling on a stiff tractor lever was capable of causing or aggravating a cuff tendon shoulder injury. He could not apportion the extent to which the shoulder damage was caused by degenerative changes or trauma. He was asked about the onset of symptoms:
"If a strain occurred by reason of pulling on a lever on a tractor at a particular time you would expect it would be symptomatic from that time?---That's correct.
There would be no reason why the onset of symptoms would be delayed for any period?---The symptoms from a tendon tear may become worse with time as the tendon tear enlarges and the tear may enlarge just through repetitive use of the activities of daily living or still trying to work that injury."
272 Mr Wang's evidence is not inconsistent with the respondent's evidence of the manner and timing of the injuries. Neither is Mr Ker's. The appellant fails to distinguish between the occurrence of the injuries, the onset and gradual increase in the severity of symptoms and the subsequent aggravation of the injuries and symptoms resulting from the respondent continuing to work until September 1995. Such aggravation is a consequence or sequelae of the initial injury.
273 Finally, Mr Gee who first saw the respondent in 1998 "felt" that the shoulder injury was related to the respondent's age related degenerative condition. He gave no explanation for his feeling which was further than the other medical experts were prepared to go. His evidence can be discounted.
274 The histories given by the respondent to the doctors support his evidence that there was no prior history of injury or pain in the right elbow, forearm or shoulder before late January 1995. The accident was capable of causing, precipitating or aggravating the injuries. Further, the respondent continued to work after the initial onset of symptoms, which on the medical evidence, would aggravate those injuries and the symptoms. It was clearly open to the trial Judge to find that the accident (if it occurred) caused all of the relevant injuries.
275 In his consideration of whether, and if so, when and how the accident occurred, the trial Judge referred to the evidence of Dr Connaughton and Mr Prosser but not of Doctors Ker, Wang or Gee. However, it is clear from par 46 of the reasons that he considered the relevant issues and regarded the respondent's history of the onset of symptoms in late January 1995 linked with pulling the lever as consistent with the respondent's evidence. That is correct. I agree with the trial Judge's assessment that the medical evidence was not an impediment to accepting the respondent's evidence of when and how the injuries occurred which, I note, was corroborated by family members.
276 The fourth matter relates to the cause of the lever jamming. The appellant's submissions are premised on the assumption that, in accepting the respondent's evidence, the trial Judge found in effect that the metal counterweight caused the lever to jam. The respondent's evidence in chief on this subject is equivocal. However, when read with his answers in cross-examination, his evidence was not to the effect that the metal counterweight caused the lever to jam. Indeed, he was inclined to think that it was not the cause of the jamming and that the counterweight moved over the gate valve as a consequence of natural jamming.
277 Mr Simms' description of the jamming process corresponds with the respondent's evidence of natural jamming which the trial Judge found to be the cause of the accident. In those circumstances, the trial Judge did not need to resolve the conflict of evidence between the respondent and the appellant as to whether or not the metal counterweight was bolted to the actuation arm in January 1995. Further, the appellant's contention that the trial Judge failed to give adequate reasons for finding that the counterweight jammed the lever also falls away.
278 The evidence established that the appellant was aware of the natural jamming problem, however, there is no clear evidence that the respondent informed the appellant of the counterweight caused jamming. In view of the trial Judge's finding on causation, that question is also of no significance. In any event, the conflict was not of such a nature as to have a material bearing on the assessment of the respondent's other evidence. The respondent's evidence was partially corroborated by that of his son Christopher who also used to drive the tractor and tanker at the relevant time. He confirmed the wire to which the metal counterweight was attached occasionally caused the lever to jam although he was able to remedy the problem by using greater force on the lever.
279 The appellant's evidence was that when the water tanker was replaced some time before 1995, there was no counterweight on the actuation arm and he bolted one on. The appellant's wife produced documentary evidence to confirm that the new tanker was purchased in 1993. However, there was no objective evidence to confirm the accuracy of the appellant's recollection of when the method of attachment of the counterweight to the actuation arm changed. In this regard it is pertinent to note that the respondent and his sons did most of the track watering.
280 The fifth matter relates to the effect of sediment on gate opening and closing. The respondent's evidence was as follows:
"Over a period of time there would be a build up of sediments etc inside the tank which ultimately stopped the gate from closing and hence the reason for the weight that was hanging on the end."
281 When the counterweight was insufficient to close the gate, water dribbled out of the spray boom. He continued:
"Eventually we would have to pull that whole piece apart and give it a good cleanout, it might take a couple of hours or so, which I did on a number of occasions with [the appellant].
Did you ever have problems operating the lever and the tap prior to the accident?---Yes, there was always a problem, it was a constant thing. If you cleaned it up it was always a lot easier to operate at that point. As the time went along and the sediment built up etc inside the tank it got a little more difficult. The lever at the front in those days tended to pull over and drag down the side of the tanker, whereas in its current position it sits a lot more stable than it did then, so that sort of added a little bit to the fun, and every now and again the valve would stick or the piece of metal swinging around on the back off the wire would get itself jammed, which were the major problems that you had.
...
Is it only when you pulled it on or was there a problem when you shut it off?---No, not really because it was easy enough to flick it back but then it depended on how dirty the gateway was as to whether or not the water kept dribbling out the back all the time, but as a general rule the major problem we had was when you turned it on and it jammed and it did that a few times.
Did you discuss any of those problems with [the appellant]? ---Yes, it was an ongoing thing, he knew about it and we worked on it together."
282 It is clear from the following answers that "working on it together" is a reference to remedying the problem that caused the gate not to close. Whether or not sediment prevented the complete closure of the gate in the water valve was not relevant to the questions in issue. It is unnecessary to discuss those matters further.
283 The fifth matter concerns the evidence relating to complaint. The respondent's evidence was that he reported the accident to the appellant shortly after it occurred but could not remember precisely when. On my review of the evidence, the appellant did not expressly contradict the respondent's evidence although his recollection was that the respondent only complained to him in passing of a sore shoulder. However, in a report to his insurer, the appellant said he was "advised of the problem sometime in March 1995" and in response to the question whether he agreed with the details of the occurrence as provided by the respondent he answered "It is possible". The trial Judge did not resolve the conflict in the evidence. However, it is not a matter of any particular significance.
284 The sixth matter is stated to be the "improbability" of the respondent using his right arm to operate the lever. This is an oblique attack on a finding made by the trial Judge that the respondent did use his right arm to operate the lever. The trial Judge summarised the relevant evidence at [15] - [21] of his reasons. In essence the respondent (who was right handed) and his two sons, Christopher and Paul, testified that they used their right arm and hand when operating the lever. The lever was pulled when the tractor was moving. The track railing was on the driver's right. The evidence of the respondent and his sons was that it was necessary to use their right hand to pull the lever to ensure the tanker was aligned with the railing and to watch the water flow to avoid puddling. The appellant says this evidence is glaringly improbable. Having regard to the position of the lever and the railing on the driver's right hand side, the explanation appears to me to be entirely plausible.
285 The appellant, and a former employee of the appellant, Mr John Ranson, testified that they used their left arm to pull the lever. The appellant's evidence, disputed by the respondent, was that he instructed the respondent in the operation of the tanker and demonstrated the operation of the lever with his left hand. Mr Simms said that the operation of the lever was most naturally accomplished using the left hand and was not dissimilar to the action in reaching behind the left shoulder to grasp a passenger car safety belt tongue. In his assessment, the action to operate the lever with the right hand was awkward, requiring high body and neck rotation and the adoption of an unnatural posture. In cross-examination Mr Simms confirmed he was not told of the need for the driver to look to the right to align the tanker with the railing and to check the water flow from the spray boom.
286 After referring to all of the evidence the trial Judge stated:
"By my observation of the photographic evidence and from hearing the witnesses I am satisfied that the lever could be operated with either the left or the right hand. Either way it required some rotation of the torso and the arm being raised and reaching back and above head height to pull the lever down. By using the right arm I accept that it would make it possible to look back along the side of the tanker to ensure its alignment with the side fence and to see that water was flowing as it sprayed out from the back of the tanker.
Despite evidence to the contrary I have no reason not to accept the [respondent's] evidence to the effect that it was his practice to use his right arm to operate the lever in the manner which he described."
287 The finding was clearly open on the evidence. The appellant further contends that the trial Judge failed to adequately address the evidence of the respondent's sons as to the manner of operation of the tractor and the evidence of Messrs Ranson and Simms. There is no foundation for this complaint. The trial Judge identified the conflicts in the evidence and disclosed his reasons for accepting the respondent's evidence. In particular, he made his own assessment from the photographic evidence that the lever could be accessed with either hand and accepted the evidence of the sons that there were operational reasons which favoured the use of the right hand.
288 These six matters are expressly relied on by the appellant to support the submission that the respondent's evidence was incapable of acceptance. There is no substance in this submission. The matters relied upon by the appellant do not, individually or collectively, establish that the findings made by the trial Judge were not reasonably open on the evidence. I have dealt with the appellant's specific complaints of failure to adequately address or give adequate reasons in the context in which they arose. For the reasons already given, I am not persuaded that the reasons are so inadequate as to give rise to a miscarriage of justice.
289 The appellant also relied on a further matter as adversely impacting on the respondent's credit. The appellant's case was that the respondent had exaggerated his symptoms, supporting the submission by reference to inconsistencies between the severity of the symptoms and the clinical observations. The trial Judge rejected the submission and stated:
"Whilst there is some evidence, eg Mr Prosser and Dr Gee, noting inconsistencies between complaints of disability and clinical observations, or 'disease conviction' as described by Dr Bell, they are of a relatively minor nature when regard is had to the overall clinical findings. Furthermore, the 'discrepancies' are contradictory of each other. Dr Gee wanted to compare voluntary movements with unassisted movements whereas Dr Bell advised that he encouraged patients to assist their own movements. Likewise, measurement of arm 'wasting' can be misleading if muscle tone is not taken into account. Dr Bell thought that examining wear on the palm of the hands was a more important criterion than wasting. With respect to those views no absolute conclusion can be drawn suggesting unrestricted use of the arm." (my emphasis)
290 The trial Judge then referred in a positive way to the respondent's demeanour in the witness box, the character evidence from a friend of the respondent, and evidence from the respondent's wife, (a patient care assistant at a hospital) which was consistent with the respondent's evidence. The trial Judge concluded:
"In all of the circumstances I find the [respondent] to have been a credible witness, one who has suffered his disability with frustration to the extent of depression and without exaggeration. I am not of opinion that he has overstated his disability."
291 The appellant contends that the statements in italics above do not reflect "a full appreciation of the evidence" and that the reasons "do not adequately deal with the issue or fully take account of the evidence on the point". The appellant does not particularise in his grounds of appeal the evidence to which he refers. In his written submissions he refers to evidence from Dr Connaughton and Dr Dixon, a psychiatrist. Dr Connaughton's evidence was to the effect that the respondent's reported level of disability was not adequately explained by the objective clinical findings and the investigation results and that such a discrepancy indicates that other non medical or non organic factors are influencing a person's behaviour. As to Dr Dixon, the appellant relies on his evidence that he understood the respondent to feel he had made his contribution to the workforce and that it was very difficult to isolate a single cause of depression.
292 The evidence of Dr Connaughton and Dr Dixon identified by the appellant has no impact on the accuracy of the trial Judge's finding. The medical evidence, summarised by the trial Judge at [69] - [93] of his reasons, and the finding that the respondent was suffering from depression to which the accident contributed, support the trial Judge's reasoning and his finding.
294 The trial Judge's conclusions on this matter are expressed as follows:
"The fact of the valve sticking combined with the awkward upper bodily movement required to pull the lever on (whether that be with the right or left hand) suggests to me that the system employed was not in all the circumstances safe. The combination of twisting, reaching back above head height and pulling down on the lever and the fact that when the gate valve jammed, a short hard pull was required, in my view exposed the [respondent] to the risk of injury. It was not a simple straightforward and easily undertaken task. Whilst it was not repetitive the high impact of the occasion when force was required was such that there was a real likelihood that injury could be sustained. It was not without risk and, in my view that risk was foreseeable."
295 He goes on to say that the risk could have been avoided by regular scheduled maintenance to ensure that it did not stick or jam. He also referred to evidence of the respondent's expert, Mr W J Apgar that there were alternatives which could be readily implemented such as a power valve operating system using a dash mounted switch or valve or a Bowden cable system which placed the operating lever in a position that could be comfortably operated by the operator.
"I reject the [appellant's] evidence that he was not aware of the problem of the sticking valve. On the [respondent's] evidence maintenance was undertaken two or three times during the summer months and in winter. The problem presented itself when the [appellant's] engineer Mr Simms attended to inspect the equipment. The [respondent's] sons both spoke of occasions when the gate valve jammed. It was not an isolated incident. Nor was it something that had not happened previously. It was likely to happen again unless appropriate steps were taken."
297 The trial Judge was in error in asserting that the appellant was not aware of valves sticking or jamming in the way described by Mr Simms. His evidence was that he was aware of that matter. Further, the trial Judge misunderstood the respondent's evidence concerning the regular cleaning which related to the build up of sediment preventing the complete closure of the gate valve with the result that water dribbled out of the spray boom. The balance of the statements in the paragraph are clearly supported by the evidence.
298 In deciding whether there has been a breach of a duty of care, a court must first ask itself whether a reasonable person in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47. If the answer to that question is in the affirmative, it is for the Court to determine what a reasonable person would do by way of response to the risk. As stated by Mason J in Wyong (at 47 - 48):
"The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have."
299 A failure to eliminate a risk that is reasonably foreseeable and preventable is not negligent unless the defendant's failure to eliminate the relevant risk shows a want of reasonable care: Tame v State of New South Wales [2002] HCA 35; (2002) 211 CLR 317 at [98] - [99] per McHugh J.
300 An employer has a personal non delegable duty to take reasonable care for the safety of its employees and the duty encompasses an obligation to take reasonable steps to provide safe plant and machinery and a safe system of work: Andar Transport Pty Ltd v Brambles Limited [2004] HCA 28; (2004) 78 ALJR 907 at [34].
301 A number of the appellant's grounds of appeal on this subject overlap with the matters already dealt with and are not repeated here. Otherwise, the appellant contends that the trial Judge's finding that there was a foreseeable risk of injury was not reasonably open. He relies on a number of matters; in particular, that in the many years the lever system had been used no previous injury had occurred; the absence of expert evidence to suggest or establish that the mechanism of opening the gate valve was inherently unsafe; and that the appellant had no knowledge or means of knowledge of any predisposition to injury on the part of the respondent. The appellant also relies on his evidence that he had instructed the respondent on how to operate the lever.
302 Although the trial Judge found that the respondent's practice was to operate the lever with his right arm, he does not expressly reject the appellant's evidence that he instructed the respondent in the procedure for operating the water tanker and demonstrated the operation of the lever using his left arm. Even if the evidence is accepted, it does not materially advance the appellant's position in the absence of a direction not to use the right hand. In any event, the matter is of no moment because the trial Judge's finding on foreseeability related to the use of either hand to operate the lever.
303 The respondent's expert, Mr Apgar, was prevented from giving evidence on safety issues because it was found to be outside his area of expertise. However, Mr Simms' evidence provides some support for the respondent. He characterised the action involving the use of the right hand as awkward, requiring high body and neck rotation and requiring an unnatural posture. Further, he suggested that there was no particular urgency associated with opening the gate valve and the operator could, if necessary, turn around to pull the lever if it did not release with the application of moderate force. This evidence was given without him being aware that the gate valve was opened whilst the tractor was in motion with the driver operating close to, and trying to align the tanker with, the railing. In any event, the absence of expert opinion evidence that the mechanism of operating the gate valve was inherently unsafe is not determinative.
304 The fact that the system had been used for very many years without causing injury is a relevant matter from which it can be inferred that the risk of injury was properly characterised as remote. However, foreseeability is established if the risk of harm of the kind suffered is not farfetched or fanciful but real (Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317). The matters listed by the trial Judge are capable of supporting an inference that the risk of injury was foreseeable. Indeed, they suggest that fortune played a part in the prior good injury record. I am satisfied, for the reasons given by the trial Judge, that the risk of harm was foreseeable, albeit remote.
305 The next question is whether the failure to eliminate that risk showed a want of reasonable care, looking at the issue prospectively not retrospectively and applying the Shirt analysis: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 80 ALJR 1 at [160] - [161] per Hayne J. I start with the alternatives. The trial Judge concluded that sticking or jamming of the gate valve could have been avoided by regular scheduled maintenance. This finding is not open on the evidence. Mr Simms' uncontradicted evidence was that cleaning would reduce, but not eliminate the additional force required to overcome sticking or jamming because the primary cause was inherent in the design of the gate valve. However, the trial Judge did not confine his findings to maintenance. The trial Judge accepted Mr Apgar's evidence that the lever could have been placed in a better position or a power system readily installed. It was not suggested that the alternatives involved expense, difficulty or inconvenience such as to render them unreasonable. As the risk of harm was foreseeable, and having regard to the employment relationship, the appellant's knowledge of the fact and effect of the sticking/jamming, the potential consequence to the worker and the availability of reasonable alternatives to eliminate the risk, I am satisfied that the trial Judge did not err in concluding that the appellant breached his duty of care. I would dismiss ground 2.
306 The respondent pleaded in his reply that in a decision made on 20 December 2001 in proceedings between the respondent and the appellant in the Directorate of Conciliation and Review, it was found that the accident was the cause of all shoulder, arm, hand and psychiatric symptoms then complained of and that accordingly, the appellant was estopped from asserting that the respondent's injuries complained of were not caused by the accident but by a pre-existing degenerative condition.
307 Part IV Div 2 of the Act imposes constraints on the award by a court of common law damages against an employer in respect of a disability suffered by a worker where, inter alia, compensation is paid or payable under the Act: s 93B and s 93C. The term "disability" is defined in s 5 of the Act to relevantly include personal injury by accident arising out of or in the course of the employment or the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree.
308 Common law damages can only be awarded if it is agreed or determined that the degree of disability is not less than 30 per cent or alternatively not less than 16 per cent (s 93E). If the parties are in dispute as to whether the degree of disability is not less than 30 per cent or 16 per cent as the case may be, the Director is required to refer the question for resolution under Pt IIIA of the Act.
309 In this case the appellant and the respondent were in dispute as to whether the degree of disability was not less than 16 per cent. The dispute was heard and determined by a review officer under Pt IIIA of the Act.
310 The review officer identified the issues for determination as the causation of the physical injuries other than the elbow (which was conceded for the purposes of the review) and the causation of any alleged psychiatric component.
311 For the doctrine of issue estoppel to apply in the District Court action the requirements, as stated by the High Court in Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 at [21], are:
(2) that the judicial decision which is said to create the estoppel was final; and
(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privy.
312 When regard is had to the relevant pleadings, the issue estoppel defence is pleaded only in relation to the issue of causation between the injuries and the accident. This Court has held that the question of causation is outside the scope of the review officer's task in determining the degree of disability under Pt IV Div 2 of the Act. In particular, this Court has held that the word "disability" when used in s 93D and s 93E is used in its non technical sense and not as defined in s 5 of the Act, and that it is outside the scope of the review officer's power to determine whether or not there is any link between the injury complained of and (a) the accident or (b) the employment: Hart v Griffin Coal Mining Co Pty Ltd [2005] WASCA 130 at [14] per Pullin JA; Girrawheen Tavern v Joseph [2003] WASCA 244.
313 The doctrine of res judicata and, I interpolate, the issue estoppel doctrine only apply if the question that has been determined is within the scope of the review officer's jurisdiction: Spencer Bower, Turner, and Handley, Res Judicata, 3rd ed, Ch 4. As the question of causation was outside the scope of the review officer's jurisdiction, the doctrine has no application. I would uphold ground 7.
314 However, this has no effect on the outcome because the trial Judge concluded that on his analysis of the relevant evidence, he would come to the same findings as the review officer.
315 The issue in the appeal is whether the appellant had discharged his evidentiary onus relating to the causal contribution of the respondent's pre-existing right shoulder degeneration to the respondent's right shoulder injury and symptoms. The respondent had made out a prima facie case that his shoulder incapacity had resulted from the appellant's negligence. The High Court in Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 considered the character and quality of the evidence required to displace such a prima facie case. After referring to Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 the majority (Barwick CJ, Kitto and Taylor JJ) stated (at 168):
"It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed [in Watts v Rake] that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence ... which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence."
316 The trial Judge concluded that the appellant had not discharged his evidentiary onus. Investigations revealed that the respondent had a full thickness tear of the supraspinal tendon and the evidence established that the respondent had no pre-accident symptoms.
317 There was evidence that the respondent had pre-existing degenerative changes in his right shoulder. The pre-existing degeneration was an aging change in the relevant tendon which can be associated with a rotator cuff tear. The tear was causing the post accident symptoms. The question in issue was whether the accident caused, precipitated or aggravated the tear and even if it did, whether the tear would have happened in any event as a result of the degeneration. The experts acknowledged that the accident could cause, precipitate or aggravate the tear and/or the symptoms. As the respondent was not symptomatic before the accident, it was clearly open to find that the accident caused or contributed to the shoulder injury. However, there is no evidence that the respondent would, on the balance of probabilities, have become symptomatic at some future time or what the future effects, apart from the accident, were likely to be. I am not persuaded the trial Judge erred in concluding that the appellant had failed to discharge his onus. I would dismiss ground 8.
318 The appellant contends that the trial Judge erred in failing to take into account or resolve the appellant's contention that the respondent was unlikely to have been employed by the appellant after September 1995 by reason of unsatisfactory work performance.
319 The trial Judge found that, as a result of the work caused injury, the respondent had no retained earning capacity from September 1995 when he ceased his employment with the appellant. That finding is not challenged. The trial Judge calculated the past and future economic loss only in order to take it into account as a factor in the assessment of the severity of the disability under s 93F of the Act.
320 An injured worker is compensated for lost earning capacity and I see no reason why the wages he received from the appellant would not be an appropriate indicator of the amount which the respondent would (but for the accident) have the capacity to earn in other employment. That is particularly so when the respondent is not being directly compensated for economic loss. Even if the matter was directly relevant, there would need to be evidence that the work caused injury did not affect the standard of performance of his duties after January 1995. The trial Judge did not err in failing to address the appellant's submission because it was of very marginal significance and merit. In any event, the omission occasioned no miscarriage of justice.
321 Finally, I agree with Roberts-Smith JA's view that the trial Judge did not err in failing to expressly refer to or act on the tentative suggestion of Dr Bell concerning retirement age. I would dismiss ground 9.
"Unless an agreement or determination that the degree of disability of the worker is not less than 30% is recorded for the purposes of s 93E -
(a) the amount of damages to be awarded is to be a proportion, determined according to the severity of the disability, of the maximum amount that may be awarded; and
(b) the maximum amount of damages that may be awarded is Amount A, but the maximum amount may be awarded
only in a most extreme case of a disability of less than 30% in degree."
323 In this case Amount A after 1 July 2004 was $293,990. The trial Judge calculated the respondent's common law loss and damage in the sum of $388,922.
324 The appellant contends that the trial Judge erred in finding that the severity of the respondent's disability represented a most extreme case of a disability of not less than 30 per cent.
325 In the absence of a material error of law or fact disclosed in the trial Judge's reasons, the appellant is required to demonstrate that the finding was incapable of falling within a most extreme case of a disability not less than 30 per cent.
326 As I understand the respondent's written submissions, he does not contend that the section requires a mathematical approach by reference to the agreed or determined percentage degree of disability (in this case 25 per cent out of a maximum of 29.9 per cent). I agree for the reasons given by Roberts-Smith JA that the mathematical approach does not apply.
327 The appellant contends that s 93F(1)(a) requires a court to compare the severity of the subject disability with a most extreme case of a disability of a degree less than 30 per cent which is likely to cause substantially greater economic and non economic loss. The Court is not required to contemplate the worst kind of injury of the type suffered by the respondent. There can be a range or class within which a disability of a particular kind may qualify as a most extreme case of a disability of less than 30 per cent in degree. Further, the quantum of economic loss is a relevant but not determinative factor in assessing the relative severity of an injury. Injuries received in older age may have a disproportionate impact. Having regard to the nature and extent of the respondent's injuries, I am not satisfied that the appellant has established that they cannot reasonably fall within the class of a most extreme case. I would dismiss this ground.
328 For the reasons I have given, I would dismiss the appeal.
329 MURRAY AJA: In this matter I have had the considerable advantage of reading in draft the carefully compiled and very thorough reasons for
decision of Roberts-Smith JA. I am relieved thereby of the need to canvass the evidence, the judgment of the trial Judge or the grounds of appeal in any detail. As to the last-mentioned matter, I agree with Roberts Smith JA that the grounds are unhelpful. They substantially fail to identify succinctly the real complaints about the judgment at first instance which the appellant makes.
330 Putting to one side the complaint about his Honour's decision in respect of issue estoppel and the complaint in respect of the assessment of damages, it is convenient, in an attempt to understand what the appeal is about, to commence with the way in which the respondent's action for damages for personal injuries was pleaded. Three causes of action were relied upon, all arising out of an accident causing injury to the respondent which was alleged to have occurred on about 25 January 1995. As it turns out, the date of the accident was apparently wrong. The respondent's evidence was that it probably occurred on 21 January 1995, a Saturday race day, when he was operating the tractor and water tanker to water the race track at Ascot racecourse. The respondent alleged that when he pulled on a lever to open a tap at the rear of the water tanker to cause water to flow out onto the track, "the tap jammed, causing significant force to be exerted through the [respondent's] right elbow and shoulder".
331 That accident was said to have been caused by the negligence of the appellant, by whom the respondent was employed. The negligence was said to lie in the requirement to use the tractor while the tap on the water tank was defective. Further, there was a general plea of a failure to provide a safe place or system of work and to properly instruct the respondent as to how he should perform his work so as to avoid risk of injury. Those pleadings were not really particulars of negligence and the case hinged upon the requirement to use the equipment, particularly the water tanker, while the tap was defective.
332 The alternative plea of breach of the contract of employment was a traditional reference to the foundation of the duty, but added nothing to it. There was a further plea of the breach of the Occupational Safety and Health Act 1984 (WA), s 19, but again, the particularisation of the breach of duty added nothing to the ambit of the claim.
333 Further and better particulars of the claim were sought. They were provided in terms which really pleaded evidence which, as it turned out, did not entirely accord with the way in which the respondent presented his case at trial. By way of defence, the appellant merely declined to admit that the accident happened as the respondent had pleaded, and denied that the tap was defective, thereby denying any breach of duty.
334 It appears that the defence pleading was unhelpful at trial as to the threshold question of the appellant's liability, because it seems that it was accepted that the denial of liability involved not only the proposition that the duty of care had been discharged because the tap was not defective and operated in such a way that it did not unreasonably expose the respondent to risk of injury, but also that if the tap "jammed" it was not a thing which had ever happened before and therefore, it appears to have been asserted (somewhat illogically, it seems to me) that it was not reasonably foreseeable that it might jam and no duty to take reasonable measures to guard against such an occurrence arose.
335 As Roberts-Smith JA has explained, the only evidence that the accident occurred and as to how it occurred was that of the respondent. There were no witnesses. Reduced to its bare bones, the respondent's evidence was that on the occasion in question, on whatever date that was, he was driving the tractor with the water tanker in tow. He positioned the tractor and water tanker so that the right-hand side of the vehicle was very close to the running rail. This was the required procedure. While keeping the vehicle in motion by keeping his right foot on the accelerator, he then turned his upper body to the right and reached behind him to take hold of the lever and pull it, so that the wire linking the lever to the tap would be pulled and the tap would open to release the water onto the track. As the respondent exerted pressure on the lever he said it jammed or stuck. That happened suddenly. It caused pain in his right elbow and shoulder of which, when the opportunity arose, he later complained to the appellant, telling him that the sticking valve needed maintenance to free it up.
336 The respondent said he turned to the right to perform this apparently awkward manoeuvre because that would enable the tractor and the water tanker to be positioned close to the running rail, and it would enable him, as the driver, to see whether the action of operating the valve or tap was successful and the water was in fact being released from the tanker onto the track. To turn to the left might have been rather less awkward, although I must say that it would seem to me, as it seemed to the trial Judge, still to have been an awkward manoeuvre, but the difficulty with that was that one could not see the position of the vehicle relative to the running rail, and one could not see whether the water tap had been successfully opened.
337 Although at trial some distinction was sought to be drawn between whether the respondent was asserting that the tap "jammed" or "stuck", I agree with Roberts-Smith JA that the distinction is illusory. The respondent never purported to know precisely what went wrong with the tap. He did not purport to know whether it stuck because of some impurities in the system causing undue friction in its operation, or whether it physically jammed, eg, because a weight which had been fixed so as to assist the valve to close had come out of position and actually jammed the mechanism. If the accident happened as the respondent asserted, it mattered not what the problem was. The question was whether the occurrence of the accident as a result of much increased resistance to the operation of the tap amounted to negligence, breach of contract or breach of statutory duty on the part of the appellant.
338 The first question then, as the trial Judge appreciated, was whether the accident happened. As to that, a considerable attack was necessarily made by the appellant on the respondent's credibility. Indeed, as the matter was fought at trial, it was not a question that the respondent may have been mistaken. He was challenged upon the basis that the accident of which he spoke never happened in the way that he asserted. The true explanation for the injury sustained by the respondent, the appellant asserted, was degenerative change not associated at all with the performance of the work for which the respondent was employed by the appellant.
339 It is clear that the trial Judge understood the threshold decision required of him. In my opinion, his Honour reviewed, with care, the evidence which bore upon that question, that of the respondent, his sons, the man Ransom, and the experts called, particularly Mr Simms, the consulting engineer called by the appellant. In that body of evidence the trial Judge found support for the evidence of the respondent. He accepted that evidence and that given by the respondent as to the occurrence of the accident.
340 His Honour went on to observe that he accepted the evidence of the respondent that this was a problem which had occurred previously. His Honour accepted the evidence of the respondent that he had complained about this sort of thing before. Indeed, as Roberts-Smith JA has explained, all of the evidence seems to have been that this had been found to occur from time to time. His Honour found that regular maintenance to prevent the build-up of sediment impeding the operation of the tap would have prevented the problem, and he went on to accept the evidence of alternative means of operating the valve other than by the awkward physical actions of the operator which was before him. That evidence was given by an engineer named Apgar called by the respondent. In effect, it was that more effective mechanical means to operate the lever were available so that the system could be operated while the driver of the tractor faced forward and did not have to twist his body. Alternatively, an electrically operated system could have been installed which would have obviated the need for the physical effort to be exerted by the operator.
341 The appellant's evidence that he was not aware of the problem was rejected. The trial Judge said that he accepted the evidence of the respondent as to the maintenance which was undertaken, and he referred to the fact that the problem had been encountered by Mr Simms, the appellant's engineer, when he tested the system. There was other evidence which suggested that this was not an isolated occurrence. The trial Judge accepted that evidence. His Honour concluded that the risk was clear. The system of operation unreasonably exposed the respondent to that risk of harm. There were readily available means of obviating the risk, and his Honour therefore concluded that the breach of duty was established.
342 From time to time in the grounds of appeal it is put that the trial Judge erred by insufficiently explaining his decision-making process and the reasons why he accepted a body of evidence upon which his Honour based his conclusion that the accident occurred as the respondent described, that it was reasonably foreseeable, and that it caused the injuries in respect of which the respondent sued.
343 Inadequacy of the reasons given for a decision may constitute a ground of appeal because that may be regarded as an error, a miscarriage of the process of itself sufficient to cause the judgment to be set aside. That question was the subject of a specific ground of appeal in the case Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273. In that case, the respondent did not contest that in important respects the reasons given by the trial Judge were inadequate. The Full Court did not need to so hold because the appeal was allowed and a new trial ordered on other grounds. But there was quite extensive obiter discussion of the issue by the Court at 282 - 285 [26] - [35]. The points made in the course of that discussion were those traditionally accepted. The giving of reasons for decision is part of the judicial process. The parties are entitled, not only to a judgment for or against their cause, but they are entitled to know, particularly, why they did not succeed and unless adequate reasons are given, the right of appeal may be rendered nugatory if the losing party is unable to say more than, "We lost when, on the evidence and in the light of the law as we understand it, we should have won."
344 One needs to understand what is meant in this context by the word "inadequate". It refers to a case where the reasons fail to expose the reasoning process adopted by the Judge. In so doing, the adequacy of that process may not be tested so that, if there is error, it will be exposed. It follows, in a case such as this where the result turns on whether the evidence adduced by and for the plaintiff establishes, on the balance of probabilities, the cause of action relied upon, that the reasons should say why a particular body of evidence was preferred over evidence to the contrary effect. There are many authorities, both locally and in other jurisdictions, in support of these propositions. In this State, there is a consistent line of authority, at least since Lloyd v Faraone [1989] WAR 154, which includes such cases as Danagher v Racing Penalties Appeal Tribunal (1995) 13 WAR 531, Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226, the Mount Lawley case and, most recently, Reilly v WA [2005] WASCA 190; (2005) 30 WAR 525, a case involving conflicting expert DNA evidence: see 534 [32], 554 [129] and 565 [196].
345 Both Mount Lawley and Reilly were cases involving competing bodies of expert evidence. That evidence therefore required some analysis and the employment of a proper reasoning process if findings of fact were to be made upon the basis of one body of evidence rather than the other. But as the courts have consistently recognized, the content of the duty to give adequate reasons will vary from case to case. There is never a requirement for elaborate reasons, merely one which exposes the reasoning process. And so it seems to me that in a case such as this which involved a simple contest of credibility, it will be sufficient to explain why one body of evidence was accepted over the other before going on to make findings of fact supported by that body of evidence which was accepted.
346 In this case, as I have said, the only evidence capable of supporting the respondent's case that an accident occurred on a particular occasion when the valve stuck or jammed in such a way as to cause pressure on his right elbow and shoulder, causing pain, the onset of symptoms and disability for which he sued, was that of the respondent himself. Before getting to the point of asking whether, upon that evidence, findings of fact should be made which established a breach of duty, causing personal injury, the question was whether the evidence of the respondent was to be accepted. The case was fought on that basis at trial.
347 The most extensive evidence given at trial was that of the respondent. Reading that evidence reveals that his evidence was very thoroughly tested and a considerable attack was made upon his credibility, including putting directly the central thrust of the appellant's case, as pleaded by not admitting the occurrence of the accident. Counsel necessarily stopped just short of putting to the respondent that he was a liar, but he did put that, "The problems you had with your elbow, at whatever time they emerged, had nothing to do with any event on any particular day that you say the lever jammed, did they, they just came on?" The respondent certainly did not miss the point of this line of cross-examination because he asked if counsel was calling him a liar (T/79). His Honour could hardly have failed to grasp the point.
348 A number of matters were put to the respondent. Broadly speaking, it was developed in this way. The employment history was put to him and it was established that he had been doing this work for some years, working virtually as a subcontractor to the appellant. There was some discussion with the witness as to whether or not the work was being performed properly, but that went to the assessment of damages. It was established with the witness that at the end of November 1994 he had a viral illness. It was suggested that he reported this to his medical practitioner as causing pain in the right arm. This he denied.
349 Then it was put to him that the way in which the vehicle was operated and the lever pulled was with the left hand. The respondent denied that that had been the case. He explained why he used his right arm. The respondent's evidence was that he had not been trained to do it any other way. It was suggested to him that he had never complained to the appellant of the occurrence of any specific accident. It was put to him that he had described the reason for the jamming or sticking inconsistently on an earlier occasion when, in further and better particulars of the claim, it was said that, "the tap was defective in that it was worn out; rusty; overly tight and difficult to use which had been an ongoing problem prior to the material date requiring the tap from time to time to be pulled apart; cleaned and repaired". The respondent said that by this description he meant to refer to rust and sediment which collected in the system and required the tap to be cleaned periodically. He agreed that the tap itself was brass and would not rust.
350 The question of how the weight was fixed to the tap was debated with him. It was put that it had been originally wired on but that had been changed in 1993. The respondent did not agree, but asserted that his description of the weight and how it was affixed coincided with pictures taken later when the engineers investigated the process. As the questioning developed, it seemed to become clear that the respondent could say nothing more than that on the occasion in question the tap or valve jammed or stuck and had to be manually freed. Why that occurred, the respondent did not purport to know. Again it was put to him that he had made no complaint, but on the day that he nominated he continued working. He agreed with that.
351 He was reminded that the statement of claim had originally pleaded that the accident happened on 25 January 1995 and he was now saying it occurred on 21 January. He explained that the first date was in error, and that he had established the date to the best of his recollection because he knew it was a Saturday race day when it occurred and that would have been 21 January. There was much questioning about the history he had given to various medical practitioners at different times, as reported by them, but the respondent maintained throughout that although he could not be answerable for the words used in the reports, he had spoken consistently to them about what had happened. I have to say that much of the questioning was repetitive.
352 As has been mentioned, the trial took place over seven days in August 2003. His Honour did not give judgment until 15 months later, on 3 December 2004. I agree that we should not overlook that in relation to the adequacy of the reasons. A much greater delay was necessarily the subject of discussion in the Mount Lawley case. In effect, what was there said, relying upon authorities, was that where issues were canvassed at the trial which have not been attended to or dealt with in the judgment, that may cement the conclusion that the reasons are inadequate because it may support the conclusion that an issue raised at trial was not dealt with because it was forgotten, rather than that it was not thought by the trial Judge to be significantly of assistance in resolving credibility issues. I mention that because it seems to me that although the trial Judge in this case did not refer in detail to all the credibility issues, what he omitted was not forgotten, but rather of a peripheral character.
353 Before examining the adequacy of his Honour's treatment of the issue of the respondent's credibility, I remind myself of the task which confronts this Court, as set out in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. There a majority of the High Court reaffirmed that for a court such as this, the appeal being by way of "rehearing", the court was required to conduct a real review on the papers, of the trial and of the reasons of the trial Judge, weighing conflicting evidence and drawing its own inferences and conclusions, always bearing in mind the special position of the trial judge who has seen and heard the witnesses, particularly in cases where the fact-finding process is based squarely on the credibility of a witness, as in this case. In such a case, their Honours Gleeson CJ, Gummow and Kirby JJ, at 128 [28] and [29] said:
" ... the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance of a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' or 'contrary to compelling inferences' in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial Judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses."
354 See also CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458, per Kirby J at [15] - [22].
355 In his judgment, Lockyer v Marshall (2004) 37 SR (WA) 90, the trial Judge, having reviewed the pleadings, said at [7]:
"As to liability the real issue centres around the circumstances of the incident itself. Whether or not and if so when such incident occurred is in issue. So too is the system of work and the method used for operating the lever so as to open the tap at the rear of the water tanker. Involved in the resolution of these issues is a determination of the plaintiff's credibility as a witness and also some of the other witnesses called."
356 His Honour reviewed the evidence called. He commenced with that of the respondent about the jamming or sticking of the lever, the nature of the accident, the way in which his arm was hurt, and the fact that he had mentioned it later that day to the appellant. He referred to the evidence of the respondent that he operated the lever with his right arm. His Honour adverted to the appellant's evidence that he used his left arm, and instructed others to do so. The respondent's evidence was, his Honour noted, supported generally as to the use of the right arm and the jamming of the lever, by the respondent's sons, Paul and Christopher.
357 His Honour noted that the appellant's evidence was that no such jamming occurred in his experience. His Honour referred to evidence of a Mr Ranson called by the appellant which tended to support the evidence given by the appellant but, his Honour noted, this witness's experience related to 1982 and 1983. The trial Judge referred to the evidence of Mr Simms, the consulting engineer called by the appellant, about his testing of the apparatus and finding that the valve would stick on occasions to such a degree that although ordinarily the lever was easy to operate and required little pressure, on the occasions when it jammed the force required would be in excess of the limit of his testing device which would register a force of up to 20 kgs.
358 It seems to me that when one reads his Honour's judgment it is perfectly clear that as to the mode of operation and as to the tap sticking on occasions, the trial Judge accepted the evidence of the respondent, supported as it was by the evidence of his sons and, particularly, by the appellant's engineer, Mr Simms. In my view, that is an affirmative decision that the trial Judge found the respondent to be a credible witness, although at one point his Honour observed that he had no reason not to accept the respondent's evidence. It is clear that what his Honour meant was that for the reasons he gave, concerned with the support of the respondent's evidence by other witnesses, he accepted that evidence and it followed that he rejected the evidence of the appellant.
359 His Honour did so expressly in relation to complaints by the respondent to the appellant that the valve was sticking on occasions. Again, it is clear, particularly at [38], that his Honour found support for the evidence of the respondent that the problem had been encountered on other occasions, including when the machine was tested by Mr Simms.
360 His Honour did not refer to the dispute between the witnesses as to whether the replacement of the water tanker in 1993 involved a change in the way the weight was fixed to the actuating arm which opened and closed the tap, but it seems to me that this was one of those peripheral matters which assumed no importance. The judgment did not depend on any more precise finding than that, perhaps because of sediment or other build-up in the system, the tap jammed and the lever encountered some resistance while the respondent was pulling it so that the tap required to be manually freed. Whether on the other hand a contribution was made by the weight becoming stuck in some way seems to me to matter little as to liability and, in particular, as to the credibility of the respondent who, as I have said, did not purport to be able to ascribe a precise cause for the occurrence of the jamming or sticking of the tap.
361 On the other hand, the trial Judge did refer to the history given by the respondent to treating medical practitioners. He did so against the background of clear evidence of the respondent that so far as he recalled he had spoken to all consistently about the onset of the symptoms. The trial Judge noted that he had been referred to a Dr Connaughton, a specialist occupational physician whom he first saw in February 1995, about a month after the incident occurred. Then the symptoms were described as involving the right arm. The respondent expressed concern about their onset towards the end of January, and it was clear he did not then attribute that onset to any single incident. For example, the respondent expressed concern about whether spraying herbicide at Ascot about a week before the onset of the symptoms might have contributed to their development.
362 Dr Connaughton referred the respondent to an orthopaedic surgeon, Mr Prosser, who apparently took a similar history in March 1995. The trial Judge noted that the first medical certificate given by Dr Connaughton simply describes the occurrence of the disability in "Jan 1995" and gives, as the respondent's description of the event, "pulls a lever on a water tanker with R arm, whilst driving a tractor." Such a description may or may not have been intended to refer to a particular incident, or to repetitive actions, particularly when, according to the respondent's evidence, he did make clear to the medical practitioners that the problem occurred from time to time.
363 The trial Judge also referred to an employer's report form sent to the workers' compensation insurer, dated 4 July 1995 and signed by the appellant. This form was apparently accompanied by a form making the respondent's claim for compensation, which described the accident, but that form is not in evidence. As I understand it, it referred, very generally, to the incident in January 1995 upon which the respondent relied in this litigation. As to that, the form filled out by the appellant says that the respondent had continued work and did not speak of any problem until March 1995, a first medical certificate being received on 3 May 1995. On this form, the appellant advised that he agreed with the details of the occurrence provided in the workers claim form, noting simply, "It is possible."
364 The Judge noted that the appellant's wife, Mrs Marshall, had given evidence that she first knew of the respondent's disability in May 1995 when she was approached by the respondent with a request that she pay a medical bill because he had torn a tendon in his left arm. He said that Mrs Marshall should say that this condition was aggravated when he drove the tractor, but that was no problem and he would continue working. The trial Judge noted that none of that was put to the respondent when giving evidence, contrary to the rule in Browne v Dunn (1893) 6 R 67. His Honour therefore placed no weight on this evidence.
365 His Honour had regard to a series of medical reports made by a variety of medical practitioners, both before and after the matter had been dealt with within the Conciliation and Review Directorate of WorkCover. His Honour noted the view of the review officer that there was no reason to conclude that the history of injury as related to medical practitioners was unreliable. The trial Judge said that if he was not bound by that finding, as well as others to which he referred, he would come to the same findings on the evidence before him. And his Honour incorporated the analysis and conclusions of the review officer into his reasons by reference, although he did not set them out.
366 On that basis, having regard to the evidence referred to generally, the trial Judge concluded, at [46], that the respondent's description as to how the injury had occurred was given consistently to medical practitioners and to the workers' compensation insurer. His Honour said that prior to the incident in January 1995, there was no history of injury or pain in the right elbow. He observed that it was not the sort of injury which required immediate medical attention, but simple analgesics were used to abate the pain. Only when the pain persisted did the respondent seek medical attention. The trial Judge found that behaviour to be consistent with the type of injury received in the manner described by the respondent.
367 In my opinion, in relation to the occurrence of the accident, there is no relevant inadequacy in the trial Judge's reasons. His Honour explained why he accepted the evidence of the respondent and why the principal matters upon which the respondent's credibility was challenged were not such as to lead to an incapacity to rely upon that evidence. As to the review of the reasoning process exposed in the reasons, to be conducted in this Court, I consider, for the reasons I have given, that there is no justification for this Court to conclude that the trial Judge has erred in the fact-finding process by reason of any failure to properly use his advantage as the trial Judge. Nothing in the material relied upon by the appellant demonstrates that the findings of the Judge are erroneous, and far from being plainly improbable, those findings seem to me to be well and truly open. In my view, this Court would not be justified in interfering with the conclusion of the trial Judge that the accident occurred in the way described by the respondent.
368 I should make reference to two matters concerning the respondent's credibility. The appellant tendered four surveillance videotapes in evidence. The trial Judge considered them and, in the end, found that footage unhelpful in relation to the respondent's credibility. No complaint is made about his Honour's decision in that regard.
369 Finally, his Honour referred favourably to the credibility of the respondent and noted the evidence given by his wife, supportive of the respondent, to which his Honour did not attach great weight, but which he clearly accepted and described as being consistent with the history given to the various medical practitioners. His Honour referred to the evidence of a Mr Old, an employee of the Turf Club, who, although called by the appellant, gave character evidence favourable to the respondent, describing him as being a Christian, spiritual man of good character. That evidence was accepted.
370 Further, although no great weight appears to have been placed on it, the respondent's demeanour in the witness box clearly played a part in his Honour's acceptance of his evidence. He described him as presenting "as a person of mild disposition who related his circumstances in a measured and straightforward way. He was controlled in response to what was an extensive and aggressive cross-examination."
371 That is sufficient, in my opinion, to dispose of the matters raised in grounds 1, 3, 4, 5 and 6, none of which I would uphold.
372 I turn then to ground 2 in which there is a confused mixture of different complaints, some of which overlap the matters that I have just been discussing, which are complaints of alleged errors in the trial Judge's fact-finding process in relation to whether or not the accident occurred, based very substantially upon credibility issues. Therefore, I will not deal further with such assertions as that the sticking of the valve, on the evidence "had never previously occurred, and was not likely to occur"; or that the Judge erred in finding that the valve might stick and that it, from time to time, did stick. Nor will I deal further with the simple, but unsustainable, complaint that the trial Judge's findings of fact were, to some extent, made "in the face of the appellant's evidence to the contrary".
373 However, this ground raises two other matters of complaint. In the first place, it appears to be asserted that the inference of breach of duty or negligence was not reasonably open. This is a challenge to the trial Judge's decision in respect of which this Court is more at large. In CSR Ltd at [22], Kirby J reminded us that it has been accepted, at least since Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551, that where an appellate court is concerned with the question whether inferences were reasonably open, then although it will give respect to the trial Judge's views, it will regard itself as being at liberty to give effect to its own views as to whether or not, upon the facts as found, the inference of negligence was reasonably sustainable.
374 I have no doubt that it was. The system of operating the water tap by a lever connected to the tap by a wire was defective because it was prone to stick and be difficult to move, generally as a result of sediment building up and causing friction. Further, the respondent was or ought to have been aware that the action of operating the lever, for a number of operators including the respondent, involved the use of the right arm and an awkward twisting motion involving a reasonably foreseeable risk of injury in the sense adopted by the High Court in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40. The same reasonably foreseeable risk of injury was attendant upon the act of pulling the lever with the left arm of the operator if the tap suddenly stuck.
375 This ground goes on to raise the question whether the Judge erred in his conclusion that there had been a breach of the duty of care derived from the reasonably foreseeable risk of injury. In one respect, it may be that the complaint of error has some merit, but if so, it seems to me that any error is immaterial. I refer to the matter raised in ground 2(f) which complains of a finding by the trial Judge that the sticking of the valve could have been avoided by regular scheduled maintenance. By that his Honour clearly meant that there ought to have been a program of regularly opening the tap and cleaning any debris and sediment from the system, thereby keeping it operating freely. That seems to me to be a supportable conclusion.
376 But in any event, his Honour went on, relying on the expert engineering evidence, to observe that there were other systems which could be employed, other mechanical systems and an electrical system which would reposition the mechanism operated by the driver of the tractor so as to eliminate the awkward process of twisting and reaching behind or which, by the use of an electrically operated mechanical device, would have eliminated the need for physical effort on the part of the operator. It does not appear to have been established that all of those means of eliminating the risk were precluded by prohibitive cost. In the final analysis I would not uphold ground 2 and, in my view, the challenge to the finding of liability in negligence may not be made good.
377 I do not propose to discuss further the question of estoppel arising out of the decision of the review officer. The matter has been dealt with by Roberts-Smith and McLure JJA and, in any event, as I have noted, the trial Judge said that his findings of fact in relation to the question whether the negligence caused the damage or harm for which the respondent sued, would have been the same or were the same as those of the review officer. In those circumstances, this issue, raised on the pleadings originally by the respondent, falls away. The law has been stated by the High Court in Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363, and I could usefully add nothing on the point.
378 As to the question of pre-existing degeneration raised by an amendment to the defence which inserted par 11A, in my view the trial Judge was right to remind himself that, in accordance with the decision of Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, the issue was one in respect of which the appellant bore an evidential onus. It was open to his Honour to conclude, as he did, that the degeneration, which was only evident in the right shoulder joint, according to the evidence of Dr Ker, was consequential upon the injury sustained in the accident. His Honour did not have to go so far, of course, but in my opinion there can be no complaint that his Honour concluded that the physical injuries of which the respondent complained, and their sequelae, including a depressive illness from which the respondent suffered, were caused by the accident and by the negligence of the appellant. I would not uphold ground 8.
379 Ground 9 relates to two distinct issues in relation to the assessment of damages and, in particular, damages for economic loss.
380 The first is an aspect of the matter which is the subject of ground 8, the assertion that the respondent would probably, in any event, have been precluded from working as a tractor driver beyond the age of 60 because of the progression of pre-existing degenerative changes in the right shoulder. The respondent was born on 2 May 1939. When the accident occurred he was therefore aged 55 years. By the time the trial Judge gave judgment, the respondent had attained the age of 65 years, having had his 65th birthday on 2 May 2004. The trial Judge found that the respondent intended to work to that age, and it is clear that his Honour made his assessment of damages upon that basis. He did not find a causally relevant pre-existing degenerative condition.
381 Roberts-Smith JA has referred to an observation by Dr Bell, a consultant orthopaedic surgeon, in a report made by him on 27 May 1999. In a later report, made on 10 January 2003, when he was again asked the question whether the respondent would have become incapacitated from performing his duties as a tractor driver in any event, due to the progression of a pre-existing degenerative condition of the shoulder and/or the elbow, he answered:
"I do not expect that he would have become incapacitated from his pre-accident duties as a tractor driver in any event due to the pre-existing age-related degenerative condition of his shoulder and/or elbow." (2AB679)
382 The two statements are confusingly at odds. No attempt appears to have been made at trial to resolve the confusion. This suggestion may, I think, therefore be put to one side.
383 The other and more substantial matter referred to in ground 9 is the contention that the trial Judge failed to decide whether or not the respondent would, in all likelihood, in about September 1995 have lost his job by reason of his unsatisfactory performance. In that event, the argument put is that the proper finding would have been that the respondent would, in all likelihood, have been unable to obtain alternative employment and so it is said that any assessment of economic loss would have to be measured against an otherwise reduced earning capacity.
384 The limitations of this evidence need to be appreciated. The appellant gave evidence that at about the end of 1994 he started to receive complaints from the management of the Turf Club as to the standard of work in the watering and maintenance of the track. I gather that such complaints were said to have been received both before and after January 1995. There was a dispute in the evidence as between the appellant and the respondent as to whether and when those matters were brought to the attention of the respondent. But there seems to be little doubt that the working relationship between the two men deteriorated by mid 1995. It is evident, I think, that by that stage the appellant was putting to the respondent that unless his performance improved his contract would be in jeopardy.
385 There is no doubt that on the respondent's evidence, although he struggled on after the accident, he was having difficulty with the work. He had taken some time off in the hope that his injury would settle down. In September 1995 he had surgery on his right shoulder. That marked the end of the work because thereafter the respondent was unable to carry it out and the employment ceased. In the circumstances, in my opinion, it would be difficult to say to what extent difficulties in the performance of the work were related to the accident and to what extent they related to the respondent's failure otherwise to perform the work properly.
386 The trial Judge made no finding about that. His Honour proceeded upon the basis that, as at the date of the accident in January 1995, the respondent proposed to continue to work until he was 65. There was no physical impediment to him continuing as a tractor driver, if not with the appellant then with another employer. But he was a man who had worked in a variety of occupations and would not, I would have thought, have been regarded as a person who, apart from his age, would have difficulty in obtaining employment about as remunerative as that in which he was engaged with the respondent as a tractor driver.
387 On the other hand, after the accident his pain and incapacity was such, together with his depressive illness, that despite his efforts to achieve a degree of rehabilitation, the trial Judge concluded that such earning capacity as he had prior to the accident had been effectively destroyed by that event.
388 In making an assessment of economic loss, the trial Judge said that he adopted the approach advocated in closing by counsel for the respondent. A schedule had been provided, to which his Honour referred. It proceeds upon the basis that the pre-accident earning capacity was about that being exercised as a tractor driver and, in one form of occupation or another, that earning capacity would not have diminished in the 10 years until the respondent turned 65. The trial Judge accepted that at trial that assessment would have yielded past loss of income for the period from January 1995 of in the order of $250,000, and for the short period which remained from then until the respondent turned 65, a further $40,000 might be allowed.
389 That seems to me to be a perfectly defensible process of reasoning and judgment in the assessment of damages in the circumstances of the case. The evidence did not, in my opinion, require a different approach upon the basis that, within a short period after the accident the respondent would, in all probability, have lost his job even if the accident had not occurred, and that he would then have had little in the way of earning capacity upon which he could otherwise call. I would not uphold ground 9.
390 Ground 10 raises the proper interpretation and effect upon the process of assessment of damages of s 93F of the Workers' Compensation and Injury Management Act 1981 (WA), as the Act is now called. Roberts-Smith JA has discussed the provision and its proper interpretation, having regard to relevant authorities which, however, dealt with different legislation, somewhat differently worded. Nonetheless, I think, with respect, that the view expressed by his Honour is right. Shortly put, my view is as follows.
391 Section 93F(1) applies to an award of damages. The definition of the term "damages" in s 93A makes it clear that by that term is meant all damages that may be assessed by the court at common law, both the non-pecuniary and pecuniary damages for past and future loss which may be awarded.
392 Section 93F also operates against the background of the assessment of the degree of disability under s 93D. By reason of the operation of s 93E that agreement about or determination of the degree of disability within the meaning of the Act has its own impact upon the right to seek damages at common law. A recorded degree of disability of not less than 30 per cent preserves the capacity to seek an award of damages at common law. The worker's capacity to seek an award of damages at common law is more restricted if the degree of disability is agreed or determined to be not less than 16 per cent but less than 30 per cent.
393 But that concept of a degree of disability is purely a creature of the statute calculated in accordance with the statute for the purpose of determining whether or not, and if so what, restrictions the statute will place upon the worker's capacity, to pursue, in addition to a claim for worker's compensation, an action for damages for personal injuries at common law. The notion of a degree of disability has nothing to say, in my opinion, about the proper assessment of the quantum of damages to be awarded at common law.
394 Then when one comes to s 93F(1), one finds that in a case where the worker can get before a court to pursue a claim for damages at common law, but has not had a degree of disability of not less than 30 per cent determined and recorded (ie, where the degree of disability has been determined to be not less than 16 per cent, as in this case) the subsection provides that:
"(a) the amount of damages to be awarded is to be a proportion, determined according to the severity of the disability, of the maximum amount that may be awarded; and
(b) the maximum amount of damages that may be awarded is Amount A, but the maximum amount may be awarded only in a most extreme case of a disability of less than 30% in degree."
395 The difficulty which arises in the proper interpretation of the section is readily apparent. But in my opinion it does not prescribe an approach which simply requires the court to make a mathematical determination or assessment of the nature of the injuries suffered compared to the most serious form of injury, of whatever kind, which will not merit the determination of a degree of disability by the statutory processes of not less than 30 per cent. That is simply not what the subsection says is to be done. What it requires is the assessment of damages in the ordinary way. The provision makes no alteration to that process as an exercise of the court's judgment pursuant to the common law. That must, I think, be what is meant by a determination "according to the severity of the injury" because I cannot think that what the section requires is for the court to make two assessments.
396 It cannot be that the court would be required to assess damages in relation to the case before it according to the ordinary processes of the common law. It cannot then be the case that the court is required to imagine some form of most extreme case of a disability of less than 30 per cent in degree and make an assessment of damages that would be applicable to such an hypothetical case. The section cannot require the proportion of the damages assessed in the instant case to be measured against that second assessment and then apply that proportion to Amount A so as to get the damages which may be actually awarded. That would be a nonsense and the policy considerations which would dictate that process are impossible to discern within the context of this legislation.
397 In my view, damages having been assessed in the ordinary way, according to what is described as the severity of the injury, they are to be measured against Amount A. If the damages as so assessed equal or exceed that amount, then Amount A may be the award of damages to be made because the process undertaken will establish that the case before the court is a most extreme case of a disability of less than 30 per cent in degree. Read in that way, the section truly caps the court's capacity to award damages at common law, and that does accord with the discernible policy considerations underpinning the legislation, which are twofold - to prevent recourse to the common law in cases of minor injury, and otherwise where recourse to the common law is permitted, to limit the quantum of damages which may be awarded, except in cases of really serious injury determined in accordance with the statutory process.
398 The approach to the section which I have thought to be correct was that taken by the trial Judge. As Roberts-Smith JA has noted, the trial Judge's assessment of damages would have produced an award of just under $383,000. Amount A, as at the date of assessment, was $293,990. That therefore became the amount of the judgment. In my opinion, that approach was correct. I would dismiss the appeal.
# Marshall
Lockyer \[2006\] WASCA 58
(2004) 78 ALJR 907
(1939) 62 CLR 464
(2006) 80 ALJR 458
(1995) 13 WAR 531
(1988) 19 NSWLR 600
(2000) 32 MVR 240
(1991) 23 NSWLR 528
(2003) 215 CLR 317
(2003) 214 CLR 118
(2004) 220 CLR 363
(2004) 29 WAR 273
(1965) 114 CLR 164
(2005) 30 WAR 525
(1987) 10 NSWLR 247
(2002) 211 CLR 317
(1980) 146 CLR 40
(1993) 177 CLR 472
(1961) 104 CLR 57
(1999) 73 ALJR 306
(1998) 20 WAR 269
(1986) 159 CLR 656
(1991) 21 NSWLR 725
(1999) 21 WAR 226
(1985) 3 NSWLR 700
(1990) 21 NSWLR 427
(2005) 80 ALJR 1
(1979) 142 CLR 531
(1997) 25 MVR 539
(1990) 171 CLR 167
(1997) 48 NSWLR 430
(1993) 31 NSWLR 162
(1997) 17 WAR 191
(2001) 35 MVR 152
(2004) 134 FCR 85
(1960) 108 CLR 158