Administrative Law - Administrative Appeals Tribunal - failure of Tribunal to refer to contentions not relevant to the ground for decision - whether failure to make findings on material questions of facts - facts conceded during hearing before Tribunal.

Compensation (Commonwealth Government Employees) Act 1971 ss.27, 45

Administrative Appeals Tribunal Act 1975, ss.43(2B), 44

Rohrlach v. Christianos (1980) 26 SASR 161

Bisley Investment Corporation & Anor v. Australian Broadcasting Tribunal & Anor (1982) 40 ALR 233

Pettitt v. Dunkley (1971) 1 NSWLR 376

Dennis Willcos Pty Ltd v. Federal Commissioner of Taxation (1988) 79 ALR 267

Ward v. Corrimal-Balgownie Collieries Limited [1938] HCA 70; (1938) 61 CLR 120

Migge v. Wormald Bros. Industries Ltd (1972) 2 NSWLR 29

Federal Broom Co. Pty Ltd v. Semlitch [1964] HCA 34; (1964) 110 CLR 626

S.A. Stevedoring Company Limited v. Gerai (1965) SASR 212

Attorney-General v. Gabell (1968) SASR 44

Harwood v. Wyken Colliery Co. (1913) 2 KB 158

Salisbury v. Australian Iron & Steel Ltd [1943] NSWStRp 50; (1943) 44 SR (NSW) 157

Bratovich v. Rheem (Aust.) Pty Ltd (1971) 2 SASR 33

Morris v. George & Ors (1977) 2 NSWLR 552

Lindeman Ltd v. Colvin [1946] HCA 35; (1946) 74 CLR 313

Rothwell v. Caverswall Stone Co. Ltd (1944) 2 All ER 350

Hogan v. Bentinck West Hartley Collieries (Owners) Ltd (1949) 1 All ER 588

with Mrs A. Simpson

Solicitor for the applicant : Australian Government

Solicitor

Counsel for the respondent : Mr R. White

Solicitor for the respondent : Stanley & Partners

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This is an appeal from a decision of the Administrative Appeals Tribunal which, upon a review, set aside a determination of the delegate of the Commissioner for Employees' Compensation. The delegate had determined that the Department of Transport is not liable to pay compensation under the Compensation (Commonwealth Government Employees) Act 1971 ("the Act") in respect of a claim for compensation made by the respondent on 12 May 1986. The Tribunal substituted a decision that the Department is so liable.

2. The undisputed background facts are as follows: The respondent was born on 15 February 1931. He received training as a Morse telegraphist and for most of his working life followed that occupation. From 1961 to 1977 he worked with Amalgamated Wireless Australasia ("AWA"). In the course of that employment he was in Darwin in December 1974 and received injuries during cyclone Tracy. He suffered temporary paralysis of the limbs but recovered from the immediate physical effects of the injury within about two weeks. Thereafter he developed an anxiety condition for which he took Surmontil to help him sleep in the evenings, and developed psoriatic skin lesions. In 1977 he was retrenched from AWA, and after a series of short-term jobs he obtained employment in 1979 as a marine radio officer with the Department of Transport. He was engaged on one of three vessels which serviced lighthouses around the Australian coast. His duties required him to work a roster of six weeks on and six weeks off the particular vessel to which he was assigned.

3. On 10 February 1983 the respondent was serving on the MV Cape Pillar. During rough seas in the Great Australian Bight he lost his balance on a flight of stairs and sustained an injury to his right wrist. This injury prevented him from using the Morse key for the remainder of the trip. On his return to shore he received medical treatment. He was off work as a result of the injury from 11 to 27 March 1983 during which time he received physiotherapy treatment. Whether or not he sustained a fracture to a bone in the wrist is uncertain. Liability to pay compensation for that injury was admitted on 14 April 1983. From April 1983 through to November 1985 the respondent resumed his normal roster, although not without symptoms of pain and of occasional weakness in his right wrist. It will be necessary to make further reference to the extent of his complaints in this respect later in these reasons. In October 1985 he developed hepatitis which incapacitated him for some months. He blamed the contraction of that disease on the unhygienic work practices of the ship's cook and gave details of his complaints in writing to the Department in November 1985. Although these details were given in confidence, the nature of his complaints became known to the crew of the vessel, and the Master suggested that the respondent be transferred to another vessel when he returned to work. The respondent returned to work on 13 February 1986 on the MV Cape Don, but, by administrative coincidence, the scullery member against whom the respondent had complained had also been transferred to that vessel. The respondent says that considerable ill-feeling between the two men developed, and he suffered stress as a consequence.

4. On 5 March 1986 the respondent again fell ill and it was necessary for him to leave the vessel. His complaints at that time were of a painful right wrist and pain from "arthritis" in the fingers of that hand. He was also complaining of a prostate condition. On 30 April 1986 his prostate gland was removed. Although at one stage he suggested that the prostate condition might be the consequence of an infection incurred in the course of his employment, this possibility was denied by his medical specialist and thereafter the condition has been treated as one unrelated to his employment.

5. On 12 May 1986 the respondent lodged the claim for compensation which gives rise to these proceedings. The claim alleged disability from 6 March 1986. In answer to the question on the claim form "nature of injury or disease (or aggravation of injury or disease)" he stated :

"Morse Telegraphists Cramp not Arthritis as

suspected which I feel goes back to a fall at sea

on M/V CAPE PILLAR 10.2.1983 plus Stress due aggravation."

6. To understand why the nature of the injury or disease was so described by the respondent, it is necessary to have regard to information which was disclosed by evidence placed before the Tribunal. The respondent stated that ever since the injury on 10 February 1983 his wrist had been painful. There was evidence from other sources of continued complaints by him of wrist pain and of a degree of weakness in his hand and the genuineness of these complaints has not been called into issue either by examining doctors or by the applicant. Captain Robinson, with whom the respondent had regular contact, confirmed these complaints. Dr Asinari, the respondent's general practitioner, confirmed that he or his locum tenentes had been consulted by the respondent about his right wrist condition initially in March 1983, and subsequently on 12 September 1983, 2 November 1983, 29 November 1984, 15 May 1985, 15 July 1985, 25 November 1985, 16 December 1985, 6 January 1986 and 7 March 1986. On 29 November 1984 he referred the respondent to a neurologist, Dr Purdie. Dr Purdie was unable to offer a neurological explanation for his complaints but recorded that the respondent informed him that "ever since this time" (the 1983 injury) "he has had constant pain in the right wrist and he lacks strength in his right hand, neither of these problems having resolved to any degree in the past couple of years". In early 1986 Dr Asinari referred the respondent to Dr Awerbuch, a rheumatologist. On 8 April 1986 Dr Awerbuch reported that he could find no evidence of inflammatory joint disease in the right hand, and offered the opinion :

"It is more likely that he suffers from morse code

telegraphist's cramp, which is a form of

occupational cramp or occupational neurosis.

There are numerous other background psychological

problems and he has made it quite plain that he is

desperately not keen to return to sea."

7. Dr Awerbuch referred the respondent to Dr Tony Walsh, a clinical neuropsychologist. Dr Walsh reported on 30 April 1986 that from a detailed history he had obtained from the respondent on two occasions :

"...I feel that his current problem has a

significant stress component which is related to

this work difficulty."

In the context of the report, it is clear that the "current problem" is the wrist pain about which the respondent was complaining, and "this work difficulty" referred to the interpersonal difficulties which had arisen from his complaint about the unhygienic cook.

8. The description of the injury or disease given by the respondent in his claim form clearly reflects the opinions expressed by Drs Awerbuch and Walsh. The claim alleged total incapacity from 6 March 1986. The delegate interpreted the claim to be one made on two separate grounds: as a claim in respect of incapacity resulting from personal injury, namely the wrist injury suffered on 10 February 1983, and as a claim in respect of incapacity resulting from the contraction of a disease or the aggravation acceleration or recurrence of a disease, namely a psychological pain disorder, to which the respondent's employment in late 1985 and early 1986 was a contributing factor. In support of the second ground, the work related factor was the interpersonal conflict alleged by the respondent with his fellow workers. So understood, the first limb of the claim rested on ss.27 and 45 of the Act, and the second limb on ss.29 and 45. The delegate rejected both grounds. When the delegate made his determination he had before him the medical reports of Drs Purdie, Awerbuch and Walsh, to which reference has already been made, a report from Dr Burfield (urologist) confirming that the prostate condition was unrelated to employment, from Dr Black (psychiatrist), and from several Commonwealth medical officers. Dr Black, whose report was prepared for the delegate shortly before the determination, recited at length complaints which the respondent had made about his difficulties with his fellow workers, and about the pains in his right wrist and right hand which had troubled him since the fall on 10 February 1983. Dr Black reported that he found the respondent a rather anxious man. He expressed his conclusions in these terms :

"This man has had a considerable amount of

difficulty with his essentially physical health.

He became Tetraplegic for a while after an injury

in the Cyclone Tracy disaster in 1974. He

clearly has had considerable trouble with his

Prostate Gland as previously discussed and he has

had operative intervention in the form of a trans

urethral resection in April 1986. Clearly he had

symptoms as regards difficulty in urinating in

late 1985. He has had difficulty with his

Psoriasis which developed following the Cyclone

Tracy disaster at Darwin.

Discussion shows that there was some type of

injury to the right wrist many years ago i.e., in

1983 and while he was at sea. Clearly he has had

a low grade nagging type of pain experience in his

right wrist following the injury, but the pain and

disability over the years was not sufficient to

force him to abandon his career.

I believe that the critical events in his life

from a point of view in Psychological Medicine

were events in - early 1986. Mention has already

been made of the unpleasantness he experienced in

terms of person to person interaction on board

ship and also in an office situation in Darwin.

I believe that the term "Morse Telegraphist Cramp"

is justified, but more appropriately Mr. Smith's

arm condition can I believe be described in terms

of D.S.M.-3 as - a Psychogenic pain disorder. I

believe that this man has been considerably

worried in the context of his essentially physical

illness and also angered by interpersonal

difficulties as discussed earlier. In the

writer's view, a measure of his emotional

disturbance from both sources has been -

converted. Conversion is a mental mechanism

operating outside of and beyond conscious

awareness whereby uncomfortable feelings of anger

or anxiety are translated into essentially

physical terms e.g., pain or anaesthesia."

9. Before the Tribunal the respondent again argued that liability arose on both grounds. The Tribunal received the above medical reports, supplementary reports from Drs Black and Awerbuch, and additional reports from Dr Meldrum (psychiatrist), and Dr Cleland (rheumatologist). Drs Walsh, Black, Awerbuch, Meldrum and Cleland also gave evidence. The Tribunal decided that the respondent was totally incapacitated for work due to "a psychogenic pain disorder arising out of or in the course of" the respondent's employment, and it is from this decision that the present appeal is brought. An appeal lies to this Court only on questions of law: Administrative Appeals Tribunal Act 1975, s.44(1). Mr Mansfield Q.C., who appeared with Mrs Simpson for the applicant, subjected the reasons of the Tribunal to close scrutiny and sought to identify a number of errors of law. His submissions may conveniently be considered in two groups. The first group alleges error in law in that the Tribunal failed properly to consider the distinct issues which arose separately under s.27 and s.29 and failed to make, and include in its reasons, findings on material questions of fact in compliance with s.43(2B) of the Administrative Appeals Tribunal Act. The second group of submissions argued that there was no material before the Tribunal which, on the correct application of the relevant legal tests and concepts, could support the decision. If this is so the appeal is based on error in law: Rohrlach v. Christianos (1980) 26 SASR 161 at 163.

10. To discuss the first group of submissions it is necessary to set out several paragraphs of the Tribunal's reasons. After reciting the background facts about the respondent's employment and his injury on 10 February 1983, and after making reference to his statement that he suffered stress and lack of confidence in his ability to work "due to what he described as the stressful conditions on board the ships on which he worked" the Tribunal continued :

"10. The Tribunal is satisfied and finds that the

medical evidence is such that there is general

agreement between the doctors as to the

applicant's hand and wrist pain or disorder,

physical illness and psychological problems.

Whilst not attempting to cover in detail all the

medical evidence it suffices to say that in their

evidence Drs L.G. Cleland and P. Black give a poor

prognosis of the likelihood of treatment being

successful, and both predict that the applicant is

currently unable to work and is also unable to

return to work. Dr Black went further to say

that the applicant is totally incapacitated.

11. Drs P. Black and B.R. Meldrum, both

psychiatrists, whilst not in total agreement about

the applicant's personality disorder, are in

agreement about the existence of a conversion

reaction, somatiform pain disorder or a

psychogenic pain disorder. The terminology seems

to indicate that both doctors, although differing,

recognise that the applicant has a problem, namely

pain.

12. In the final analysis all the doctors agreed

with the presence of a hand/wrist pain, probably

being a 'somatiform pain disorder' with a focus

provided by the injury on the stairs, magnified

by a time interval between the date of the

incident and the diagnosis. This is particularly

likely when occurring in a person such as the

applicant who is suffering with multiple medical

problems some of which, such as psoriasis and an

irritable bowel syndrome, are often found to be

stress-related illnesses.

13. After careful consideration of the evidence as

a whole and in particular the large amount of

medical evidence available to it, the Tribunal

agrees with the firmly stated opinion of Drs Black

and Cleland that the applicant is unable to return

to work. Both Drs Black and Meldrum are in

agreement that the applicant has a psychogenic

pain disorder and both recognise that he suffers

pain. The Tribunal also accepts the further

evidence of Dr Black who is satisfied that the

applicant is totally incapacitated.

11. At first sight the reasons do appear to omit consideration of important issues raised by the claim, and fail to make important findings of fact. I think Mr Mansfield is correct in the submission that the reasons fail altogether to deal with the second limb of the claim made under s.29 of the Act. However, on further consideration and after reading the transcript of proceedings before the Tribunal, I am not satisfied that the applicant's first group of submissions disclose any error of law. The way in which the review was conducted by the parties before the Tribunal raised three main points: whether the claimant's incapacity resulted from the personal injury which he had admittedly suffered on 10 February 1983, whether he had suffered a mental injury compensable under s.29 of the Act, and in either event whether his incapacity was total. Most of the hearing before the Tribunal was taken up by evidence and argument addressed to the second of these issues. However I think it is clear enough that the Tribunal in its reasons has deliberately addressed only the first and third of the issues which the parties agitated before it. As the Tribunal reached the conclusion that the respondent was entitled to compensation on the footing that incapacity resulted from the injury on 10 February 1983, it saw no need to discuss or decide the issues arising on the second limb of the claim. It is for this reason that the recitals of fact (which I have not quoted in full) give emphasis to the wrist injury suffered on 10 February 1983, but make only fleeting reference to stress at work without mentioning the nature of the incidents alleged to have caused the stress. If the applicant fails to make good its attack upon the reasons of the Tribunal on the first limb of the claim, the Tribunal has not fallen into error which would call for the intervention of this Court by omitting to discuss the other limb of the claim. On the other hand, if the applicant makes good its challenge to the decision on the first limb, the matter would have to be remitted to the Tribunal for consideration of the alternative claim based on s.29.

12. Even when the reasons are construed as relating only to the claim based on the injury of 10 February 1983, Mr Mansfield still criticises them as failing to comply with s.43(2B). Not every failure by the Tribunal to mention a contention on behalf of a party or to decide a question of fact that was put in issue during the hearing before it will amount to a failure to comply with s.43(2B). In Bisley Investment Corporation & Anor. v. Australian Broadcasting Tribunal & Anor. (1982) 40 ALR 233 at 255 Sheppard J. observed that the section is directory rather than mandatory, and substantial compliance is what is required. The Tribunal must, however, sufficiently express itself to disclose the reasons for its decision and its findings on material facts so that the right of appeal in case of error of law is effective. A failure by the Tribunal to carry out the duty to consider and determine each question of law and fact relevant to the determination of the reference to it, or the failure to carry out the duty imposed by s.43(2B), will bring about a miscarriage of justice if the failure prevents this Court on appeal from affording the parties a determination whether the Tribunal's decision is vitiated by error of law: Pettitt v. Dunkley (1971) 1 NSWLR 376, Dennis Willcox Pty Ltd v. Federal Commissioner of Taxation (1988) 79 ALR 267. It follows that the Tribunal does not fail to comply with s.43(2B) if it omits to make an express finding about a material fact which was not in issue because it was conceded, expressly or impliedly by the way in which the case was conducted. Similarly the Tribunal does not fail to comply with the section if it omits to discuss a contention of a party which has no relevance to the process of reasoning leading to its decision. In the instant case, the process of reasoning followed by the Tribunal is not as clearly or as fully expressed as one might wish. However when the reasons are considered in light of the issues which were actually agitated by the parties, I think the process of reasoning is sufficiently stated and substantially complies with s.43(2B).

13. It was implicit in the original determination that the delegate accepted that the respondent was suffering from the condition of "psychogenic pain disorder" which accounted for his wrist pain. This was conceded to be the case by counsel for the applicant before the Tribunal. The transcript discloses acceptance by both parties of the fact that the respondent was genuinely suffering wrist pain in 1986 which had no physical cause. The only issues between the parties on the first limb of the claim were whether a causal link existed between the psychogenic pain disorder and the 1983 injury, and whether his incapacity was total. It was also accepted by both parties that the hepatitis illness and the prostate condition suffered by the respondent were not work related. Paragraph10 of the Tribunal's reasons was subjected to particular criticism. In my view the first sentence of para.10 is intended to record in a shorthand way that the Tribunal accepted the substantial body of medical evidence which was not in dispute between the parties - that the respondent genuinely suffered wrist pain, that his hepatitis and prostate condition were not work related, and that he had worried about a host of factors mentioned by the doctors (the "psychological problems"). The second and third sentences of para.10 give emphasis to certain aspects of the medical evidence which were seen as important to the question of incapacity (and which were subsequently repeated as findings in para.13). Paragraph 11 is a qualification to the general acceptance of the medical evidence in para.10 in that it deals with disagreement between the two psychiatrists. In para.12 is a specific finding of fact that the respondent has wrist pain of psychological origin. Additional criticism is made that the evidence of Drs Cleland and Black was not at one, and that the Tribunal misconstrued aspects of their evidence, and also aspects of Dr Meldrum's evidence. It is difficult to align the evidence given by Dr Black on the one hand and by Dr Cleland on the other hand as each was considering the respondent's condition from the viewpoint of a different specialty. However the criticism goes to matters of detail about the accuracy of the Tribunal's findings, not to a failure to make findings or to disclose the source of the evidence relied upon. In this respect the requirements of s.43(2B) are fulfilled.

14. On the question of causation between the 10 February 1983 injury and the wrist pain, counsel who appeared for the applicant before the Tribunal put the issue for determination in simple terms during the final addresses: "There is no evidence ... that Mr Smith's right hand pain could be causally linked to his employment". Counsel for the applicant referred the Tribunal to no decided authority on causation and said the question was purely one of fact. Against this background it is understandable that the Tribunal did not dwell at length on the topic of causation. The primary facts from which the inferential finding of causation was made were not really in dispute. Those facts are referred to in the reasons in the recital of background facts and by reference to the medical evidence. Implicit in para. 12 of the reasons is a finding of causation between the wrist injury on 10 February 1983 and the hand and wrist pain. In my view the process of reasoning of the Tribunal, and the facts on which it depends, sufficiently appear from the reasons for this Court now to determine whether it was open on those facts, on the correct application of the relevant legal tests and concepts, to conclude that the injury on 10 February 1983 "results in the employee being totally incapacitated for work" within the meaning of s.45 of the Act.

15. This takes me to the second group of submissions by the applicant. The substantial challenge is whether the facts can support the conclusion that the injury resulted in incapacity suffered by the respondent on and after 6 March 1986, but there is a subsidiary submission that there is no evidence to support the finding that the respondent's incapacity was total.

16. Incapacity due to disabling psychological symptoms precipitated by minor physical injury to a person already suffering a neurotic temperament is a well recognised and unfortunately common phenomenon. If the precipitating injury occurs in compensable circumstances, the incapacity caused by the psychological symptoms is compensable even though the physical effects of the injury may resolve quickly. In such a case the injury is an element which only completes the tale of circumstances which constitutes the cause of the incapacity in the non-legal sense, but in the legal sense it is itself the cause of the incapacity which "results" from it: see Ward v. Corrimal-Balgownie Collieries Limited [1938] HCA 70; (1938) 61 CLR 120 at 130. The legal concept of causation when applied to the field of personal injury takes the person injured as it finds him, with all his pre-dispositions and susceptibilities, whatever they may be: see Mason J.A, as he then was, in Migge v. Wormald Bros. Industries Ltd (1972) 2 NSWLR 29 at 44 whose judgment was upheld by the High Court, (1973) 47 ALJR 236. Typical examples, to which reference was made during argument, are to be found in Federal Broom Co. Pty Ltd v. Semlitch [1964] HCA 34; (1964) 110 CLR 626, S.A. Stevedoring Company Limited v. Gerai (1965) SASR 212 and Attorney-General v. Gabell (1968) SASR 44. In an important respect this case is different from those examples. Here the undisputed medical evidence shows that the respondent's worry in late 1985 and in 1986 about his hepatitis, his prostate condition, and his interpersonal difficulties on the MV Cape Don were also causes for the disabling manifestation of his psychogenic pain disorder at and subsequent to 6 March 1986. These causes did not pre-date the compensable injury. In so far as the psychogenic pain disorder was due to worry about these matters, it cannot be related to the compensable injury in 1983.

17. However it is clear law that it is not necessary for an incapacity to result solely from a compensable injury before compensation is payable as a consequence of that injury: Harwood v. Wyken Colliery Co. (1913) 2 KB 158 at p 169 and Salisbury v. Australian Iron & Steel Ltd [1943] NSWStRp 50; (1943) 44 SR (NSW) 157 at p 162. It is sufficient if the injury contributes in a material sense to the incapacity: Federal Broom Co. Pty Ltd v. Semlitch, supra, per Taylor J. at p 635; Attorney-General v. Gabell, supra, per Bray C.J. at pp 48, 50. If a compensable injury constitutes one of a number of factors or events each of which combine as links in a chain of causation terminating in a single condition amounting to total incapacity, that incapacity will be fully compensable, the injury being a contributing cause in a material sense: see Bratovich v. Rheem (Aust.) Pty Ltd (1971) 2 SASR 33 per Bray C.J. at 43. The critical consideration is that a single condition arises causing incapacity even though the condition may have independent causes. Such a case is to be distinguished from one where independent causes produce independent consequences, distinct bodily conditions which amount to total incapacity only because they must be added together: see Ward v. Corrimal-Balgownie Colleries Limited, supra, especially per Dixon J., as he then was, at p 141. See also Morris v. George & Ors. (1977) 2 NSWLR 552, especially per Glass J.A at 580, and on appeal to the Privy Council Bushby & Anor v Morris & Ors (1980) 1 NSWLR 81.

18. The distinction may not always be easy to draw, but in my opinion the evidence before the Tribunal could reasonably lead to the conclusion that the 1983 injury was one of the causes which contributed in a material sense to a single condition, that is to pain in the right wrist. The picture which emerges from the undisputed evidence is that the respondent had, at least since cyclone Tracy, been suffering the effects of a psychological disorder. He was anxious, and took Surmontil in relation to that condition, and he was suffering psoriasis. This was his temperament by 1983. In this condition he suffered the 1983 injury. The physical effects of that injury were probably shortlived, but he continued to suffer symptoms of pain in the wrist, and at times weakness. On the medical evidence the most plausible explanation is that the continuing pain had a psychological cause. Indeed on the opinions of Drs Purdie and Awerbuch that is the only possible explanation once the complaints of pain are accepted as genuine. When the factors causing stress arose in 1985-1986, the psychological reaction that "converted" the emotions of worry into pain did not seize upon some part of the body that was previously symptom free, but further magnified pain in the right wrist. In considering whether the original injury was a contributing cause to the incapacity in 1986, it is relevant that the respondent's disordered personality caused him to convert his worry to pain at the very site of the injury, and at no other site: see Attorney-General v. Gabell, supra, at 50. In my view it was open to the Tribunal to conclude that at all stages the respondent suffered one single condition, a painful right wrist, and that in 1986 it was that single condition, contributed to both by the original injury and the subsequent stress, which caused the incapacity. Not only was this view open on the evidence, in my opinion it was the correct one. I would liken the case to that of Bratovich v. Rheem (Aust.) Pty Ltd, supra, where the reasoning of Bray C.J. led to the conclusion, at p 44, that the worker could recover compensation for permanent incapacity in 1968 from his employer at the time of the 1959 injury even though it was not until he suffered another injury to his back in 1968 that he became permanently incapacitated for heavy work. The back condition was a single condition to which both injuries contributed in a material sense. This is not a case like Lindeman Ltd v. Colvin [1946] HCA 35; (1946) 74 CLR 313 where it can be said that a finding of causation in a legal sense is not open because the incapacity for which compensation is claimed is a distinct and separate condition due to a distinct and separate casualty: see Dixon J. at p 320.

19. The same conclusion is reached, in my view, if the dictum of de Parcq LJ. in Rothwell v. Caverswall Stone Co. Ltd (1944) 2 All ER 350 at 365 is applied. That dictum was approved by the majority of the House of Lords in Hogan v. Bentinck West Hartley Collieries (Owners) Ltd (1949) 1 All ER 588, (see Lord Simonds at pp 592-593, Lord Normand at p 596, and Lord Morton of Henryton at p 598). The propositions formulated by du Parcq L.J. were :

"In my opinion, the following propositions may be

formulated upon the authorities as they stand:

first, an existing incapacity 'results from' the

original injury if it follows, and is caused by,

that injury, and may properly be held so to result

even if some supervening cause aggravated the

effects of the original injury and prolonged the

period of incapacity."

"If, however, the existing incapacity ought fairly

to be attributed to a new cause which has

intervened and ought no longer to be attributed to

the original injury, it may properly be held to

result from the new cause and not from the

original injury, even though, but for the original

injury, there would have been no incapacity."

In my opinion, it was clearly open to the Tribunal to find that the injury of 1983 had not ceased to have effect and remained a continuing, though contributory, cause of the respondent's incapacity.

20. Finally, there is the subsidiary submission that the evidence could not reasonably support the finding of total incapacity. I consider there is ample evidence to support that finding. The respondent was at the material time aged fifty-seven years. His training and life's experience were as a marine radio operator. His dominant hand was his right hand, and he required the free use of it to pursue his occupation. He clearly could not do so whilst suffering the psychogenic pain disorder. It is true that for a short time in the latter part of 1986 the respondent was able to work in a clerical position that was provided for him on shore. However that position became unavailable and none has been offered since. Whilst it is possible to construe the evidence of each of the doctors as expressing the opinion that the respondent is only unfit to return to his occupation as a marine radio officer, I think that is to take an altogether too narrow view of their evidence. The common sense of the situation is that the respondent's right hand pain and disfunction render him unemployable. In so far as the finding was based on the express acceptance of the evidence of Dr Black, it was submitted that his evidence did not support a finding of total incapacity. In particular, attention was drawn to conclusion (f) of his final report where he said that the respondent's "pain experience renders him unsuitable for work of the type which he has coped with historically", i.e. work as a radio operator. This conclusion leaves open the theoretical possibility that the respondent could do light work. However when Dr Black gave evidence this possibility was not put to him. The possibility was not then, or in final addresses, raised as an open or realistic possibility. If it had been, then further issues would have arisen under s.26 of the Act, but these were never canvassed. I think the Tribunal was justified in taking the view, expressed by Dr Black in his first report, that the respondent was totally incapacitated.

21. For these reasons in my opinion the appeal should be dismissed.