Workers' Compensation and Rehabilitation Act 1981, s 93D, s 93E

Matter remitted to District Court to be reheard before a different Judge

Bowen v Tutte (1990) Aust Torts Rep 80-251

Pettitt v Dunkley [1971] NSWLR 376

Thomas v O'Shea (1989) Aust Torts Rep 80-251

Wright v Albany Shire Council (1993) Aust Torts Rep 81-239

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Miller J, with which I am in agreement. I agree with the orders which his Honour proposes.

2 WHEELER J: I have had the advantage of reading in draft the reasons prepared by Miller J. I agree with them and with the orders proposed by his Honour.

3 MILLER J: This is an appeal from a judgment of H H Jackson DCJ delivered in the District Court at Perth on 9 August 1999 when his Honour dismissed the appellant's action with costs. The appellant's action was one for damages for personal injury allegedly sustained in an industrial accident on 17 November 1995. Liability of the respondent for negligence had been admitted but the question of what, if any, injury the appellant had sustained and what, if any, consequences that injury had in relation to loss of earning capacity and other heads of damage was very much in issue. The damages which his Honour found the appellant entitled to totalled only $30,200 made up as follows:

4 The case was governed by the provisions of s 93D and s 93E of the Workers Compensation and Rehabilitation Act 1981 which set thresholds in relation to the assessment of damages. Section 93D provides that damages can only be awarded if the disability is a serious one. A serious disability is defined in s 93D(2) of the Act. It is so if and only if

"(a) the degree of disability would, if assessed as prescribed in subsection (3), be 30% or more; or

(b) the future pecuniary loss resulting from the disability is of an amount that is at least equal to the prescribed amount."

The prescribed amount for the purposes of s 93D(2)(b) at the time of this trial was $106,382. Because the damages awarded by his Honour fell below the statutory thresholds in all respects, the claim of the appellant was dismissed.

5 The appellant appeals on a single ground of appeal which is framed in the following terms:

"The learned trial judge erred, in law, in that he failed to give any adequate and/or proper reasons for his findings concerning:

(a) The nature and extent of the injury suffered by the appellant (plaintiff) given the competing evidence on those issues at trial;

(b) The failure of the appellant (plaintiff) to realistically address work trials given the competing evidence on that issue;

thereby depriving the appellant (plaintiff) of his right to assess whether or not the learned trial Judge erred, in law, in his reasoning and, therefore, deprived the appellant (plaintiff) of his right to assess whether or not to appeal the trial Judge's findings."

The appellant rightly points out that this Court has said decisively that it is the duty of a court of first instance, from which an appeal lies to a higher court, to make or cause to be made a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court, should there be an appeal. This includes not only the evidence and decision arrived at but also the reasons for arriving at the decision: Lloyd v Faraone [1989] WAR 154; Stojkovski v Fitzgerald [1989] WAR 328. The latter case was concerned with an appeal from an award of damages made in the District Court. The Full Court held there to be an inadequate statement of the issues involved, the findings of fact upon those issues and the reasons for the findings, all of which were essential for the determination of the appellant's rights. Kennedy J (at 340) said in relation to the conflict in medical evidence which had arisen in the case:

"In this situation of conflicting medical evidence, the learned trial judge was called upon to resolve the conflict. That could not, for the reasons already explained, be done simply on the basis of the credibility of the appellant. There is, accordingly, a critical gap in his reasoning which it is now impossible for this Court to fill. Furthermore, in the particular circumstances of this case, there was, I consider, an obligation upon the trial judge to give reasons for his disbelief of the appellant when his general truthfulness had not been challenged in the course of the hearing. As to the requirement for a trial judge to give his reasons for decision: see Pettitt v Dunkley [1971] 1 NSWLR 376 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247."

6 The case for the appellant was that he had on 17 November 1995 at his place of work, suffered a back injury which was superimposed upon "age appropriate degenerative changes". The injury was said to have precluded the appellant from returning to his pre-accident occupation or to any work at all, despite attempts to do so under the guidance of rehabilitation. He was thus presented as a person who had sustained an aggravation of a previous asymptomatic lumbar spinal condition which precluded him from work and caused him substantial pain, suffering and residual disability. The respondent's answer to the claim was that the injury at work on 17 November 1995 was not the cause of the appellant's condition, which was due entirely to pre-existing degenerative changes in the lumbar spine and/or a supervening injury which had been sustained to the lower back in a motor vehicle accident in May 1996.

7 The learned trial Judge traced the history of the events which followed the appellant's accident at work. That accident had occurred when the appellant had endeavoured to remove a product from a press machine and in the course of so doing had slipped on a greasy floor, striking it in the area of his buttocks. After seeing various general practitioners the appellant was referred to a number of specialists and he underwent a variety of different investigations and treatments. His case at trial was that he was suffering severe back and left leg pain for which he required constant medication and which precluded him from work. He contended that he was able to drive a motor vehicle for only short distances; unable to do gardening or lawnmowing; suffered interrupted sleep; had been forced to give up a variety of recreational activities including music, tennis, soccer, walking, playing with his children and riding a bicycle; and was limited in the activities he could do without the help of his wife.

8 The learned trial Judge set out in his reasons a detailed analysis of the reports and to a greater or lesser extent, the testimony of the various medical witnesses at trial. It is only necessary to refer to that analysis in relation to a selected number of specialists. The first of those was Mr Richard Vaughan, whom his Honour described as an orthopaedic surgeon, but who is in fact a neurosurgeon. Mr Vaughan found the appellant to have minor changes at the L3/4 and L4/5 levels with quite marked degenerative change at L5/S1. In terms of disability he assessed "the loss for the lumbar spine through the injury process" to be of the order of 20 per cent. This he made clear was an assessment not limited to physical impairment, but inclusive of resultant changes in the plaintiff's "total being". Mr Vaughan's conclusion was that the appellant was asymptomatic prior to his accident, but had a degenerative L5/S1 joint before the accident which had been rendered symptomatic by it. He thought too that there may have been some L4/L5 involvement. He could see no prospect of the appellant recovering from the invalid lifestyle he had adopted and concluded that the appellant was incapable of performing the heavy work he had previously done. He did, however, conclude that he would have expected the appellant's back to have become symptomatic within 10 to 15 years, after which time he would have been forced to a more sedentary life and work.

9 Dr J R Suthers, an occupational physician, concluded that the appellant had chronic low back pain with no realistic earning capacity in the field in which he was experienced. Indeed, he found him to have no substantial working capacity at all. He thought it unusual for somebody with the appellant's injury and pathology to be as severely disabled as he was and thought that there might be some capacity for work were the appellant able to cope with pain and deal with psychological stresses. Dr Suthers assessed the appellant's disability as a 15 per cent permanent loss of the full efficient use of the spine, this being an assessment for the purposes of Schedule 2 of the Workers Compensation and Rehabilitation Act.

10 Dr J K Ker, a consultant physician in rehabilitation medicine, concluded that the source of the appellant's back pain was predominantly the facet joints at the lumbo-sacral junction to the left of the midline and possibly the level above. He considered that these facet joints had been rendered symptomatic in the fall of 17 November 1995 and found the appellant to be unfit for "all and every kind of work", although conceding that the loss of weight and amelioration of pain behaviours might affect the long-term position in that regard. Dr Ker's conclusion was that the appellant had a 20 per cent "impairment value" stating:

"So I'm - sorry, that may not actually help you but I - that's the way that I would think about it. But clearly I accept that some of the radiological pathology was present before the accident. I would accept an impairment value of 20 per cent, but to be able to definitively determine when examining this gentleman what has been amplified and what hasn't, I don't think I can do that."

11 Dr P S Hollingworth, a specialist in occupational medicine, also concluded that the appellant had suffered pre-existing degenerative changes at the L5/S1 level which the accident had rendered symptomatic, leaving left lumbar muscle spasm. He considered the appellant to be physically fit for a range of light labouring work and recommended a graduated work return. He does not appear to have made an assessment of the degree of disability.

12 Mr N J Batalin, an orthopaedic surgeon, concluded that the appellant was left with a 20 per cent disability of the thoraco-lumbar spine as a whole, but considered that at least half of that was due to pre-existing factors. He compared his own view with that of Mr Vaughan, stating:

"I suppose the slight difference is that of emphasis. Certainly the difficulty that we face as surgeons all the time is that the majority of people have degenerative discs and some changes progress as we get older. Some individuals may have symptoms; others do not. Superimposed on that, a lot of events in our environment which can be interpreted as contributing or possibly aggravating that. It is indeed possible that in a patient with pre-existing degenerative changes there was a further strain aggravation which can contribute to some of the changes observed in the MRI but, to be fair to all parties concerned, it is equally possible that such findings would be purely attributable to degenerative changes and spontaneous progression of such degenerative changes."

13 The learned trial Judge reviewed the evidence of various other witnesses and then turned to relevant legal authority, accepting the established line of cases dealing with the legal principles to be applied when it is not possible to ascribe with any accuracy the extent to which different causes each contribute to a plaintiff's ultimate condition. In this respect his Honour followed the judgment of Ipp J in Russell v Ciesielski, unreported; FCt SCt of WA; Library No 980222; 1 May 1998.

14 The appellant's essential complaint is, that having reviewed the medical evidence as he did, the learned trial Judge reached no conclusions as to what the end result of that evidence was. In particular, his Honour made no findings as to which of the opinions of the doctors he preferred, and indeed reached no conclusion about the exact extent of the appellant's residual disability, save to say:

"I find that the plaintiff was suffering prior to the accident on 17 November 1995 an asymptomatic but degenerative lower spinal condition which was rendered symptomatic by a minor fall in the accident. The normal expectation would have been for him to suffer relatively short-term symptoms of a minor or moderate scale. From an early stage however, the plaintiff adopted an invalid role which has become an entrenched behaviour but which is clearly totally out of proportion to his physical state. This is compounded by the fact that he has become extremely overweight and unfit."

15 The appellant's contentions are validly made. It was essential that his Honour conclude the extent to which the appellant was disabled. In particular, it was necessary to make a finding as to which of the views of Mr Vaughan and Mr Batalin were to be preferred. The former was of the opinion that there was a 20 per cent residual disability caused by the work injury, whereas the latter was of the view that although the appellant had a 20 per cent disability, only 10 per cent of that disability could be properly ascribed to aggravation from the accident of a previously asymptomatic condition. A wider question which arose was whether the appellant's residual disability was a "serious disability" for the purposes of s 93D of the Act. In this regard his Honour simply said that s 93D(2)(a) was "not satisfied", but without analysing why that was so. True it is that the appellant may have difficulty in establishing the necessary 30 per cent degree of disability, but the medical evidence in this regard needed to be dissected and assessed. The degree of disability had to be assessed as prescribed in s 93D(3), which sets out a formula for assessment by reference to Schedule 2 of the Act. This was not dealt with by his Honour.

16 The learned trial Judge's assessment of past loss of earning capacity was done on a "global basis", allowing loss of earnings for six months from the date of the accident at a figure of $11,700. This assessment was predicated upon a conclusion that the appellant had failed to realistically address work trials and was capable of performing suitable light labouring work. Unfortunately, his Honour gave no indication as to which medical opinion he favoured in reaching this conclusion. Nor did his Honour indicate how the six month period was calculated and by reference to what evidence. It was, it seems, a purely intuitive assessment made without reliance upon the specific findings of any witness.

17 In relation to future economic loss, the learned trial Judge noted that the claim was for loss to the age of 65 years, at which time the appellant claimed he would retire. His Honour found the appellant to be presently unfit for heavy labouring work and psychologically unfit for any work and concluded:

"Given his invalid behaviour and general obesity and unfitness, as well as his limited skills and limited English, it is unlikely he could obtain and retain employment. He does objectively also suffer a degenerate lower spine which, given his present age, renders him unsuitable for heavy or repetitive labouring work which would be done at a high risk of exacerbating previous symptoms. However, I am not satisfied that any of this is or could be regarded objectively as the result of the accident the subject of these proceedings."

In reaching this conclusion his Honour made no reference to the views of any of the witnesses and gave no indication as to whose opinion (if any) was accepted as a basis for the conclusion reached.

18 It is unnecessary to make any reference to the question of gratuitous services (in relation to which the claim was abandoned) or the allowance for past medication and medical consultations.

19 In my view the appellant has made out the ground of appeal which he advances. It is impossible from the learned trial Judge's reasons to discern the following:

(a) what were the consequences in terms of symptomatology and effect on the appellant's earning capacity of the back injury alone;

(b) when, if at all, might the appellant's degenerative condition have become symptomatic had the accident not occurred;

(c) to what extent, if any, would such symptoms have become incapacitating.

The appellant also rightly complains that the learned trial Judge failed to identify:

(1) what evidence supported the finding that the appellant could perform suitable light labouring work after a period of some six months from the date of the accident.

(2) whether the appellant was capable of earning his pre-accident income of $450 per week and, if he was, whether there remained in any event any diminution of the appellant's overall earning capacity by reason of the accident caused injury.

20 In my opinion, the appellant's ground of appeal is therefore properly made out and there is no alternative but for the matter to be remitted to the District Court for rehearing before a different Judge. I would therefore allow the appeal, set aside the judgment of the learned trial Judge and remit the matter to the District Court for rehearing before a different trial Judge.