Solicitors for the Respondent: Griffits and Jackson

2 That the order of the learned primary judge dismissing

the appellant's application to the Workers Compensation

Commissioner dated 12 August 1994, be set aside.

3 That in lieu thereof, the application be remitted to the

Workers Rehabilitation and Compensation Tribunal for

rehearing according to law.

COX CJ I have had the advantage of reading the reasons for judgment prepared by Wright J and Zeeman J. I agree with them and with the orders which their Honours propose.

WRIGHT J It was conceded by counsel for the appellant that the learned Commissioner had misconceived the essential issue for his determination, namely whether he was satisfied on the balance of probabilities that the appellant's incapacity for work after 17 May 1994 resulted from the injury which he suffered on 9 February 1994. The learned Commissioner limited himself to a consideration of whether or not the occurrence on 17 May aggravated the injury caused on 9 February. He did not consider the question of causation in the way adumbrated by Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 which, in my respectful opinion, was correctly adopted by Underwood J as the appropriate method for determining such an issue.

2. For this reason I am of the view that the appeal against the learned Commissioner's decision was properly upheld by Underwood J but it remains to be considered whether Underwood J's course in dismissing the appellant's claim was correct.

3. In my opinion it was not. Underwood J concluded that, upon the evidence, "the only answer reasonably open" (to the learned Commissioner) "was that the incapacity on and after 17 May did not result from the injury on 9 February 1994" and his Honour added, "had it been necessary, he would have concluded that it resulted from the incident in the butcher's shop on 17 May 1994."

4. With respect, it does not follow that if a precipitating incident is required in addition to the original injury before incapacity occurs, the original injury can be said to be no longer causative of the resultant incapacity. A subsequent precipitating event is not necessarily a novus actus interveniens (see for example Dawes v ANM B20/1982, per Neasey J at 19 - 20 and Burbury v Sievers A83/1994 (unreported, available on SCALE) at 34 - 35). If the original injury is such that a resultant incapacity for work will entitle the worker to compensation, it matters not whether the incapacity becomes apparent immediately after the injury, whether it gradually supervenes over a period of time, or whether it occurs on the sudden following some activity which may be regarded as normal or usual for the worker in question, so long as it can be said, "as a matter of ordinary common sense and experience" that the resultant incapacity has been caused by the original injury (cf Deane J in March v Stramare (E and M H) Pty Ltd (1990 - [1991] HCA 12; 1991) 171 CLR 506 at 522).

5. On the basis of the evidence in the present case there was a more than adequate foundation for concluding that the symptoms of pain produced by the appellant's injury to the left shoulder were reactivated by his lifting a hind quarter of beef on 17 May and that as a consequence he was totally incapacitated for work. There was no evidence to suggest that the task on the latter date involved a new injury in any relevant sense. It was not established that the task created an unusual or unexpected strain upon the plaintiff's shoulder. The medical evidence tended to suggest that the original injury was aggravated or exacerbated by the lifting process.

"Well the symptoms were practically the same, he had pain in the same

area but it was just a bit more severe than it had been before so it

was a very similar if not identical pathology."

"... if a man has got a problem with his shoulder and then has another

incident where the same problem on clinical grounds is made worse,

then I could regard it as an aggravation of the original injury."

"The flavour of the history given to me was of an injury, some

incomplete resolution and a moderate activity which normally he could

have performed causing a flare (up) of that same sort of problem and

that is the impression I have from him from that one consultation".

And at (68), "The incident in May to me is a continuum of his problem."

8. Mr Roger Butorac, orthopaedic surgeon, said in his proof of evidence which was tendered in evidence:

"The history related to me by Mr Jones suggests that this" (the 17 May

incident) "aggravated or exacerbated the symptom he had previously

been suffering following the incident of 9 February 1994."

9. Whilst attribution of the post 17 May incapacity to an aggravation or exacerbation of the 9 February injury is by no means conclusive of the causation issue, it goes a long way to dispelling the suggestion that the causal chain had been broken. No doubt the appellant's return to work with Devonfield Enterprises between 9 February and 17 May 1994 and his involvement in a motoring mishap on 16 December 1994 are also relevant matters to be taken into consideration, but causation is a question of fact to be resolved by the tribunal invested by law with the responsibility of dealing with such issues. Only if the evidence is incapable of supporting an issue of fact which is crucial to the establishment of a worker's claim should an appellate court undertake the responsibility of dismissing that claim.

10. In my opinion Underwood J fell into error when he dismissed the appellant's claim. There was substantial material upon which his claim was entitled to succeed and, indeed, was likely to have succeeded if the learned Commissioner had not misdirected himself.

11. In my opinion this appeal should be upheld. The order quashing the order of the Workers Compensation Commissioner made on 1 May 1995 should remain but the appellant's application to the Commissioner dated 12 August 1994 should be remitted for redetermination by the Workers Rehabilitation and Compensation Tribunal.

ZEEMAN J On 9 February 1994 the appellant was in the employ of the respondent as a pallet repairer. On that day, whilst engaged in stacking pallets, the appellant felt a sharp pain in his left shoulder. He continued to work for some days but the pain worsened. Various diagnoses have been made as to the cause of the pain but it is accepted by the respondent that the appellant suffered personal injury by accident in the course of his employment and that as a result of that injury the appellant was totally incapacitated for work for some period from 14 February 1994. The respondent commenced to make a weekly payment of compensation pursuant to the provisions of the Workers Compensation Act 1988 (as it was then entitled) ("the Act") in respect of that incapacity.

2. On 26 April 1994 the appellant returned to work and the weekly payment of compensation ceased. The appellant remained in the employ of the respondent, performing at least some of his normal duties, until 12 May 1994 when he was dismissed for reasons unconnected with the injury. At about this time the appellant had a discussion with a friend who conducted a butcher's shop, with a view to entering into an apprenticeship with him. From time to time the appellant visited the butcher's shop and provided some assistance. The appellant was at the shop on 17 May 1994 when his friend asked him to obtain a hind quarter of beef from the cool room and bring it into the shop. As the appellant lifted the hind quarter he felt a sharp pain in his left shoulder. In evidence he said that the pain was "(i)n the same area as I had it before" and that the type of pain "was exactly the same". Thereafter the appellant continued to suffer pain in the shoulder. Before the Workers Compensation Commissioner it was accepted by the parties that since 17 May 1994 the appellant had been totally incapacitated for work by reason of a shoulder injury. However, the respondent disputed its liability to pay weekly compensation in respect of any period on and from that date.

3. On 12 August 1994 the appellant referred the question of his entitlement to a weekly payment of compensation and medical expenses to the Workers Compensation Commissioner pursuant to the Act, s42. On 1 May 1995 that reference was determined by the Commissioner in favour of the appellant when he ordered that the respondent pay the appellant weekly payments and other sums in respect of periods of incapacity from 17 May 1994.

4. The essence of the reasoning which led the learned Commissioner to his conclusion that the appellant was entitled to compensation appears from the following passage contained in his written reasons:

"What happened on the 17th of May most probably aggravated

his previous injury in the sense that the medical opinion

favours a conclusion that that is so. This condition

developed as rotator cuff tendonitis which by all accounts,

given the opinion of the orthopaedic surgeon in his proof of

evidence 'W14' should resolve and subside with the passage

of time and with strength and with exercises. No doubt that

could support a finding that in June 1994 and in August 1994

the worker continued to be incapacitated as a result of an

aggravation of the original injury".

5. The learned Commissioner then proceeded to deal with the effect upon the appellant of a motor vehicle accident in which he had been involved in December 1994 concluding that:

"... on the state of the evidence I am bound to conclude that on the

balance of probabilities the incapacity that the worker suffered from

that point in time was most probably due to the original injury."

6. The learned Commissioner's reference in that passage to "the original injury" clearly is used in contradistinction to any injury suffered by the appellant as a result of the motor vehicle collision, he already having determined that, leaving that aside, the appellant was entitled to be paid compensation in respect of incapacity existing on and from 17 May 1994 on the basis that such incapacity was compensable by reference to the injury suffered on 9 February 1994.

7. The respondent appealed against the decision of the Commissioner on the grounds that the determination that the appellant's incapacity for work after 17 May 1994 resulted from an injury suffered by him on 9 February 1994 was not reasonably open on the evidence; that the learned Commissioner misdirected himself as to the effect in law of his finding that what happened to the appellant on 17 May 1994 aggravated the injury suffered by him on 9 February 1994; that the learned Commissioner misdirected himself as to the effect in law of his finding that incapacity after 17 May 1994 was the result of an aggravation of the injury suffered on 9 February 1994; and that the determination made was one not reasonably open on the evidence.

8. That appeal was allowed (Devonfield Enterprises v Jones A60/1995 (unreported, available on SCALE)). The learned primary judge quashed the order of the Workers Compensation Commissioner and in lieu thereof ordered that the appellant's reference to the Commissioner be dismissed. The learned primary judge's reasons for allowing the appeal may be summarised as follows:

1 The learned Commissioner proceeded upon the basis that if

what occurred to the appellant on 17 May 1994 amounted to an

aggravation of the injury suffered on 9 February 1994 the

appellant was entitled to the compensation sought by him.

2 By proceeding upon that basis the learned Commissioner

applied the wrong legal test.

3 The question which the learned Commissioner should have

asked himself was whether, in the terms of the Act, ss69(1)

and 75, the incapacity for work of the appellant resulted

from the injury suffered by him on 9 February 1994.

4 The test to be applied as to whether incapacity "results

from" a relevant injury is that expressed by Kirby P in

Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463

- 464 in the following terms:

"The result of the cases is that each case where causation

is in issue in a workers compensation claim, must be

determined on its own facts. Whether death or incapacity

results from a relevant work injury is a question of fact.

The importation of notions of proximate cause by the use of

the phrase 'results from', is not now accepted. By the same

token, the mere proof that certain events occurred which

predisposed a worker to subsequent injury or death, will

not, of itself, be sufficient to establish that such

incapacity or death 'results from' a work injury. What is

required is a common sense evaluation of the causal chain.

As the early cases demonstrate, the mere passage of time

between a work incident and subsequent incapacity or death,

is not determinative of the entitlement to compensation. In

each case, the question whether the incapacity or death

'results from' the impugned work injury ..., is a question

of fact to be determined on the basis of the evidence,

including, where applicable, expert opinions. ... a point

will sometimes be reached where the link in the chain of

causation becomes so attenuated that, for legal purposes, it

will be held that the causative connection has been snapped.

This may be explained in terms of the happening of a novus

actus. Or it may explained in terms of want of sufficient

connection. But in each case, the judge deciding the matter

will do well to return, as McHugh JA advised, (in Woolworths

Ltd v Allen New South Wales Court of Appeal unreported 25

May 1988) to the statutory formula and ask the question

whether the disputed incapacity or death 'resulted from' the

work injury which is impugned."

5 On an application of this test the only answer reasonably

open to the learned Commissioner was that the incapacity of

the appellant on and after 17 May 1994 did not result from

the injury on 9 February 1994.

9. The appellant has appealed against the orders made by the learned primary judge on the following single ground:

"1 The Learned Judge erred in law or in fact in finding

that the only answer reasonably open to the Learned

Commissioner was that the incapacity on and after the 17th

May 1994 did not result from the injury on the 9th February

1994."

10. Both parties accept that the learned primary judge was right in concluding that the learned Commissioner applied the wrong legal test and in his formulation of the correct test. In the absence of argument to the contrary, I am content to accept that the learned primary judge was right in those respects. The only question which is raised for determination is whether the learned primary judge erred in his conclusion that "the only answer reasonably open was that the incapacity on and after 17 May 1994 did not result from the injury on 9 February 1994." I observe that it was unnecessary for the learned primary judge to reach such an affirmative conclusion. The question which he was required to answer, and which this Court must now answer, is whether on the evidence before the learned Commissioner it was open to him to find that the incapacity for work of the appellant on and after 17 May 1994 resulted from the injury suffered by him on 9 February 1994. If the answer to that question is in the negative then the appellant has failed to establish any entitlement to compensation and the present appeal must fail. If the answer to that question is in the affirmative then the present appeal must succeed and further consideration must be given to the question of the appropriate dispositive orders.

11. In my view, it was open to the learned Commissioner to find that incapacity during the relevant period resulted from the injury suffered by the appellant on 9 February 1994. There was considerable evidence before the learned Commissioner as to the symptoms of pain and discomfort experienced by the appellant from the time that he returned to work with the respondent until 17 May 1994. The extent to which the evidence should have been accepted was a matter for the learned Commissioner. Serious questions as to the credit of the appellant were raised by the evidence and they were questions properly determinable by the learned Commissioner. The learned Commissioner made no findings of fact as to continuing symptoms, beyond finding that when the appellant returned to work on 26 April 1994, he was fit for "normal duties". Whether by that expression the learned Commissioner intended to refer to all the normal duties of the appellant's employment or those duties which he actually performed after his return to work, is unclear. The learned Commissioner found that after his return to work the appellant was not engaged in what were described as "minor repairs" which required the lifting of pallets from the ground to a significantly lesser extent than was required for "major repairs" in which the appellant had been engaged prior to suffering his injury.

12. The extent, if any, to which the appellant continued to suffer from incapacitating symptoms after his return to work is relevant. An acceptance of the evidence of the appellant would leave open the conclusions that he continued to suffer symptoms of pain and discomfort as a result of the injury suffered on 9 February 1994 at all material times thereafter, and that the incident on 17 May 1994 did no more than accentuate, to a totally incapacitating extent, ongoing symptoms of the injury suffered on 9 February 1994 and that on 17 May 1994 the appellant had not recovered from his injury in the sense of his bodily integrity, impaired by the injury, having been restored. Such conclusions would leave open the further conclusion that incapacity from 17 May 1994 resulted from the original injury. Whether any of these conclusions should be reached is a matter of fact.

13. It is not possible for this Court to express a view as to what ultimate conclusion the learned Commissioner should have reached on the evidence. To an appreciable extent that depends on the view which is to be taken of the credibility of the appellant, as to which this Court cannot properly form a view. The appropriate course would be to remit the matter to the learned Commissioner. However, that cannot be done because his office has been abolished by the Workers Rehabilitation and Compensation Reform Act 1995. That Act, SchII, par13 deemed the original appeal against the Commissioner's order to be an appeal against a decision of the Workers Rehabilitation and Compensation Tribunal. Accordingly the reference to the Commissioner should be reheard by the Tribunal.

1 That the appeal be allowed.

2 That the order of the learned primary judge dismissing

the appellant's application to the Workers Compensation

Commissioner dated 12 August 1994, be set aside.

3 That in lieu thereof, the application be remitted to the

Workers Rehabilitation and Compensation Tribunal for

rehearing according to law.