Modbury Public Hospital v Braid [2002] SAWCT 95

3 It seems that the worker experienced back pain on 29 April 1999 and as a consequence she sought advice from her general practitioner Dr LePoidevin on 4 and 11 May 1999 and ultimately on 25 May 1999 she resolved to make a claim for compensation pursuant to the Act. In the claim form, she identified the date of injury as 29 April 1999 and in the section of the form that seeks details of the allegation of injury, she asserted that she injured herself during the course of the physical examination with her prospective employer. She made no reference at that time to anything untoward having occurred whilst she was carrying out her employment duties with the employer later that day.

4 Not surprisingly the employer, who is an exempt employer for the purposes of the Act, resolved to reject the claim. In its determination dated 26 May 1999 it specified its reasons for doing so as follows:-

"1 You were attending a pre-employment assessment at the request of a potential future employer.

2 You were not required by Modbury Hospital to attend the pre-employment assessment.

3 You were not on duty at the time of the assessment nor were you paid to attend the assessment."

5 Thereafter, the worker lodged a Notice of Dispute wherein she asserted that her injuries occurred during the course of her employment with the employer.

6 On 19 August 1999 the worker lodged a further notice of work-related injury and claim for compensation wherein she also asserted that she sustained an injury on 29 April 1999. However on this occasion the asserted cause of the injury was quite different to that previously stated by her. She described it thus:-

"At 7.00 pm I was lifting heavy trays full of food on trolley then to be emptied."

This in turn provoked a further investigation by the employer, which led it to correspond with the worker in these terms:

"Our investigations into the above claim are now complete and reveal the following facts:

1 On 29 April 1999, you were required to attend a physiotherapy assessment as part of pre-employment procedures you were required to undertake in applying for employment with another organisation.

2 You experienced pain in your lower back on the undertaking of activities required of you during the physiotherapy assessment.

3 You rested at home after physiotherapy assessment, and then prior to starting work at the Modbury Hospital later that afternoon you took pain killing medication for lower back pain.

4 You deliberately started your afternoon shift a little later than usual as you knew that would enable you to avoid certain heavier tasks.

5 You developed pain in your lower back again during the performance of your duties at the Modbury Public Hospital on that day.

6 You subsequently worked two further shifts at the Modbury Public Hospital, before ceasing work altogether.

7 You initially lodged a claim for compensation on 25 May 1999. You allege that you sustained injury while undertaking the physiotherapy assessment. Prescribed medical certificates completed by your GP, Dr Le Poidevin, as submitted with your claim for compensation, and thereafter, consistently referred to the fact that you had sustained a lumbar sprain as a result of undergoing a physical [sic] a fitness test.

8 Your claim for compensation dated 25 May 1999 was rejected and you have disputed that decision.

9 You have lodged a subsequent claim for compensation dated 19 August 1999, now alleging that you sustained a back injury while lifting heavy trays full of food. As a consequence of lodging your claim for compensation you were interviewed by our assessors. We note from the interview conducted with you that you admit:

9.1 That you were experiencing lower back pain prior to commencing duties on 29 April 1999;

9.2 You were required to take pain killing medication before attending work;

9.3 You avoided heavier duties during the time you worked on that day;

9.4 The working activities that you undertook on that day were less strenuous than the activities that you undertook during the physiotherapy assessment;

9.5 You had exceeded what you felt were your safe lifting tolerances while performing the physiotherapy assessment."

7 As a result, the employer formed the view that it had no liability to compensate the worker pursuant to the Act because it considered that the worker had not injured herself while carrying out her employment duties. It contended that if the worker experienced any pain whilst discharging her duties with it, these were merely temporal, did not cause her lower back injury, and did not in the relevant sense, aggravate, accelerate, exacerbate or cause a deterioration or recurrence of the disability that she sustained whilst undergoing the functional evaluation assessment conducted at the behest of her prospective employer.

8 The worker challenged the rejection of her claim and this led to a hearing before an Arbitration Officer. During that hearing the employer's counsel explored with the worker the different allegations as to the cause of her back injury and on any view her explanation was not very satisfactory. These matters were again pursued when the matter came before the learned Deputy President and it ultimately resulted in this exchange (AB 238-9):-

"Q So we go from an ache upon waking, a discomfort of some sort, not much worse but a little bit worse in the early part of your shift at work and then this incident with the sharp pain in the back and much worse after that. Is that basically what you say happened.

Q Right. So when you came to fill in the incident report as to why it was that you were off work with a bad back, didn't the incident of lifting up the tray and the sudden sharp pain in your back, didn't that stand out to you as when you hurt yourself.

A No. It didn't because I had it in my mind what - I don't know, how can I explain it? What caused me to end up like - do you know what I mean? Like, in my mind, if I hadn't have done that physical that morning, and to me it was strenuous. I'm denying that- I'm not lying about anything - you know, maybe that wouldn't have happened. That is what I thought. So that was why I didn't put that in. If we had have had a supervisor on that night that knew what she was doing, she would have sent me home. She would have sent me home because I was in so much agony, but I pressed on.

Q Is that the same reason why you didn't initially tell your general practitioner about the lifting and the sudden sharp pain.

A Yes, because I had it in my mind that if I hadn't done that physical that morning, that would have happened at the end of the day.

Q And the first time you saw Dr Cullum, did you tell him about this sudden sharp pain lifting the tray.

Q I suggest to you the reason you didn't put it on the forms or tell your GP or tell Dr Cullum initial [sic], is because it didn't happen.

A You are making me out to be a liar, and I'm not a liar. If I was a liar, on my medical forms and everything I wouldn't have put that I suffer depression or that I had a fractured coccyx."

The learned Deputy President's approach and conclusions

9 The learned Deputy President was understandably cautious of the worker's testimony. He was rightly concerned about the fact that she had given different stories as to the cause of her injury. He said:

"It is generally conceded that Ms Braid's testimony had to be treated with caution (286, 291). Mr Crawley, counsel for the respondent, did not contend that she was dishonest (268), but the fact she had given different stories indicated a weakness in her testimony and allowed outcomes to influence her recall. To the extent I can rely on her I will generally do so in the presence of some independent support for the recall."

10 Despite this, the learned Deputy President was nevertheless satisfied that the worker's claim should succeed. He was impressed by the evidence of Ms Tregoning, who had conducted the assessment that was said to have caused the worker's injury, her evidence being no injury had occurred. He also felt that some of the medical evidence supported the worker's claim.

11 Having considered all of this the learned Deputy President then arrived at this conclusion:-

"I accept that this is a case where the causation issue must be concluded as best as one can, though one is forced to be extremely wary of drawing conclusions that are solely dependent on the evidence of the worker. Be that as it may the preponderance of evidence favours a finding that the employment caused, in the relevant sense, the back injury. In this I have been mainly guided by the evidence of Dr Osti whom I prefer, but I have also paid heed to the advantage of Dr Cullum who knew the worker especially well (71), recognised her as a complex patient with the difficult aspects in her presentation (71, 172). I find her condition was productive of immediate symptoms when the injury was caused and not some delayed mechanism. The first issue described at the outset is concluded in the worker's favour."

12 The learned Deputy President then went on to deal with the question of incapacity. He said:-

"The evidence establishes that the worker has been at all relevant periods essentially unemployable. Because of this she has not had labour which she could sell. Her partial incapacity should be treated as total. The worker's application is upheld."

13 Mr Crawley, counsel for the employer challenged the learned Deputy President's approach and conclusions on two grounds.

14 The first concerned the process of reasoning by which the learned Deputy President reached his initial conclusion.

15 Mr Crawley accepted that it was open for the learned Deputy President to find that the worker had not complained of low back pain at the functional capacity assessment. He also accepted that it was open for the learned Deputy President to find that the worker was complaining of pain by the end of the shift that night.

16 Where he says the learned Deputy President fell into error was the means by which the learned Deputy President arrived at the finding that the worker suffered an episode of acute pain towards the end of her shift on 29 April 1999. Mr Crawley submits that such an inference was not open. He says that it was not open because the only other evidence to support such a finding was the worker's own evidence which he said, in light of the reservations that the learned Deputy President had expressed, namely that he would only accept her evidence if it was supported by other evidence, could not be relied upon.

17 Mr Crawley submits that the learned Deputy President's reliance upon the doctors' evidence to support this finding was misplaced because their evidence was necessarily dependent upon the accuracy of the history that they were provided by the worker, so that in other words, in the end, it was a case of the worker corroborating herself.

"So if his Honour is saying, `Although I have expressed not once but twice in the course of my reasons my caution about accepting this worker's evidence, in this case, notwithstanding all of those other concerns, I will accept her,' one would have expected that there would be some specific reference to that. It's almost, `Having made these two findings of fact about the lack of a complaint of the FCE and significant findings at the end of the work, it follows that I must accept that there was an acute exacerbation at work.' That seems to be the process of reasoning that he has adopted when you look at the reasons for decision and, if that is what he has done, then there is an error."

19 Mr Crawley quite properly and candidly said:- "If in fact, he (ie the learned Deputy President) said: `I've accepted those two points. Now, in relation to this issue, notwithstanding all the other cautionary notes, I will accept the worker in the absence of any confirmatory evidence' then I'm not happy about it but I can't point to an error of law in relation to that approach."

20 Mr Crawley's second complaint concerned the issue of mutuality. On any view of the evidence the worker was at the very least partially incapacitated for work and it was conceded at trial that the employer had not offered duties commensurate with that incapacity. Mr Crawley nevertheless argued that the worker was denied the benefit of the deeming provision provided for by s 35(2)(b) of the Act. He submitted that because the worker had declared that she was totally incapacitated for work by inference she would not have accepted any offer of alternate duties when in fact she was fit for alternate duties. In developing this submission, Mr Crawley relied upon cases such as Dowell Australia Limited v Archdeacon [1975] HCA 29; (1975) 132 CLR 417 in submitting that to derive the benefit of the deeming provision:-

"...the worker must in fact be ready willing and able to undertake the suitable employment whether or not his state of readiness willingness and ability be known or not known to the employer. If he is not, then the employer does not fail to provide him with suitable employment" (ibid at 441 per Jacobs J).

21 It is of course open to any trier of fact to selectively accept or reject the evidence of a witness on particular issues. See, for example: Copping and Perball v ANZ McCaughan Ltd and others (no 2) (1995) 181 LSJS 157; Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621 per Deane J at 635.

22 Accordingly, as Mr Crawley rightly concedes, despite the caveat that the learned Deputy President had expressed regarding the worker's testimony it was open for him to have accepted that she experienced an acute onset of pain towards the end of her shift and had he expressly stated that to be so, the employer's challenge to this finding must fail.

23 This issue is whether in light of the absence of a specific statement to that effect it is proper to infer that that is what occurred.

24 The relevant principles governing this issue were discussed by the Full Bench of the Tribunal in The Smith's Snackfood Company Ltd v Zienkiewicz [2002] SAWCT 48 at par 4-6 where it was said:-

"Where there are arguable gaps in the reasoning the presumption favours the judgment. In Gardiner v Land Agents Board (1976) 12 SASR 458 Walters J stated the rule as follows (480):-

`I recognise the import of the rule that a tribunal "will be presumed to have found as a fact everything necessary to support its conclusion although the same are not explicitly stated" (Watts v. Welch (1950) SASR 289, per Mayo J at p 292). But as his Honour went on to add, there is a proviso to the rule, namely, that "there be evidence upon which such findings may be satisfactorily based, and in the reasons disclosed there is no indication conflicting with that assumption"....'

A recent expression of the rule describes similar sentiment to those found in Gardiner. In Carian v Elton (2000) NSWCA 175 at par 50, Handley JA stated:-

`... An appellant must establish that the judgment appealed from was wrong (Warren v. Coombs [1979] HCA 9; (1979) 142 CLR 531, 539), and will give respect and weight to the trial judge's conclusions (ibid 551). In an appeal from the exercise of a judicial discretion Lord Wright said that an appellate court will make every reasonable presumption in favour of upholding the judge (Heyman v. Darwins Ltd (1942) AC 356, 388). In my view this was the approach adopted by McHugh J in the passage last quoted, (i.e. Abalos v. Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 178-9), and in my judgment it requires this Court to conclude that the Judge rejected the evidence of Mr Cooper that Elton had admitted that he was the driver of the bike.'

These rules must be understood without compromise to the requirement for adequate reasons: Commissioner for Railways for the State of Queensland v Peters and Another (1991) 24 NSLWR 407 at 416 - 417 per Kirby P, see also Fresh Farm Produce Pty Ltd v Tu [2001] NSWCA 448."

25 In applying these principles it is imperative to have regard to the reasons for decision as a whole rather than focussing only upon isolated passages. In our opinion, the learned Deputy President's statements concerning the worker's credit when considered in that context do not amount to an unequivocal rejection of any evidence that she gave that was not independently corroborated. In the first place, in the passage of his judgment that we have referred to in par 9, where the learned Deputy President discusses his concern about the worker's credibility and the need for corroboration, it is notable that he uses the words "generally will" not "only will".

26 Next there is the learned Deputy President's statement in his reasons where he said:-

"The worker's evidence, as indicated, initially blamed the pre-employment test, then contended to the contrary: see Dr LePoidevin's medical certificate of 11 May 1999 (AB 192), Dr LePoidevin's medical report of 14 December 2000 (AB 153), Dr LePoidevin's oral testimony (8, 10, 13, 18, 30 and 33), Dr Cullum's oral testimony (51, 64, 149, 155 and 161), Dr Osti's oral testimony (189, 202, 204 and 205), Dr Clayer's oral testimony (225 and 231). The worker admitted her initial position was incorrect (87), though some of her explanations for her initial position were unconvincing (82). There was some ring of truth to her statement that she had initially been confused as to where she had injured herself (83) and may not have realised the significance, at least the adverse significance, of attributing it to the pre-employment assessment rather than to some later period on that day or afterwards (85, 87, 90, 101).

Her final position was stated in evidence when she described events on 29 April 1999 after she had finished the pre-employment assessment and had gone home to rest (97 - 98, 99, 100):-

`A Well, I fell asleep and when I woke up I had backache.

Q No, but would you describe it as pain and discomfort.

A Yes, it was backache, but I go to work with a headache. I mean, to me it wasn't any different.

Q Yes, but you became aware of that before you got to work that afternoon.

A ... I was okay at work up until it was time to clean up and then it's like flat out and you've got to lift trays of food out, and that was when I got a really sharp pain in my back.

Q When you woke you had some aching or discomfort in your back, to the point where you took four Codalgin, and they're a Panadol-codeine blend, aren't they, that you can buy over the counter.

Q You deliberately chose to be a little late getting to work to avoid the heavier tasks. Is that right.

Q Then as part of the cleaning up there was lifting a tray from the bain-marie, you've told us, and that's when you say you had a sharp pain the back.

Q And it was after that that you'd needed assistance to finish off everything.

Q So we go from an ache upon waking, a discomfort of some sort, not much worse but a little bit worse in the early part of your shift at work and then this incident with the sharp pain in the back and much worse after that. Is that basically what you say happened.

The worker states, when comparing the condition when she awoke before going to work, and the onset of pain towards the end of her shift, out of 10 the first would have been 2 and the latter 7. She says she complained to a fellow worker, Julie McNichol (138). Julie then assisted her with her work to see it completed (140).

There are preliminary conclusions to be drawn from this material. As indicated, the worker's evidence gains its credit from the independent testimony available to me, particularly Ms Tregoning and Ms Thompson. From it I conclude on the probabilities there was no complaint of low back pain following the pre-employment assessment. Moreover I agree with the observations of this litigant by Dr Cullum that had something significant occurred she would not have attended that evening's shift, (159), as she was not the type to tolerate significant backache in these circumstances (160)."

27 Having regard to these matters and to the reasons generally we conclude that despite the obvious deficiencies in the worker's evidence, the learned Deputy President did not entirely reject her evidence even on issues that lacked independent corroboration and that in the end, having considered all of the evidence, he believed her evidence that she hurt her back in a lifting incident at work on the night of 29 April 1999. Because that finding is unassailable on an appeal limited to a question of law, Mr Crawley's first ground of attack fails.

28 As to the second ground of complaint, it is important to recognise that the concept of mutuality in workers compensation cases is a principle that has been developed by the courts to avoid what was regarded as an unfair result, namely that a worker could be entitled to have his or her partial incapacity for work treated as total because of the employer's failure to offer suitable duties, even though the offer of such duties would have been futile because the worker was not ready, willing or able to take up an offer of such duties. See, for example: R J Brodie (Holdings) Pty Limited v Pennell [1968] HCA 73; (1968) 117 CLR 665; Electric Power Transmission Pty Limited v D'Urso [1970] HCA 40; (1970) 124 CLR 338; Stavrou v General Motors-Holden Limited (1982) 49 SAIR (Pt. 2) 381; and Hartwell v Electricity Trust of South Australia (1982) 29 SASR 365.

29 In our opinion that scarcely represents the situation here.

30 It was never put to the worker that she would not have, under any circumstances, accepted an offer of suitable duties. The only evidence on this issue comprises of an exchange at the end of the worker's cross-examination (AB 357) when she was asked if she considered herself fit for work and she replied: "I wasn't fit for any work. There's no way in the world."

31 This statement does not establish that the worker had conducted herself in a way or was subject to circumstances that revealed that an offer of suitable duties would have been futile. She had suffered a serious back injury, which in the opinion of her treating general practitioner rendered her totally incapacitated for work and he regularly issued medical certificates to that effect. The worker, doubtless, relied upon his opinion in stating that she thought she was unable to work. Whether or not in hindsight that opinion was right or wrong is not the point. In our view, this is not a factual situation to which the concept of a breach of mutuality applies.

32 For these reasons the appeal should be dismissed.