Whitehaven Coal Mining Limited v Pain

Judgment

1. WHITE JA: This is an appeal pursuant to s 142N of the District Court Act 1973 (NSW) from an award of the District Court in its compensation jurisdiction to determine coal miner matters. Section 142N(1) of the District Court Act relevantly provides a right of appeal to a party who is aggrieved by an award of the Court "in point of law" (s 142N(1)).
2. On 26 October 2017 the District Court (Ashford ADCJ) made an award that contained the following orders: "1. That the defendant pay the plaintiff pursuant to 11(1) from 8 October 2015 to date and continuing. 2. That parties to confer in respect of question of dependency of the plaintiff's wife and 3 children as no evidence given in that respect and to agree the relevant award rate. 3. That the defendant pay the plaintiff 20% permanent impairment of the back less 50% pursuant to s323 of the Workplace Injury Management & Workers Compensation Act 1998, 10% loss of the right leg at or above the knee and 5% loss of the left leg at or above the knee both subject to 50% deduction pursuant to s323. 4. That the defendant pay the plaintiff s67, 1 in 5 of a most extreme case. 5. That the defendant pay the plaintiff s60 expenses. 6. That the defendant pay the plaintiff's costs as agreed or assessed."
3. The plaintiff in the District Court and respondent to the appeal, Mr Craig Pain, commenced work with the appellant in December 2008. He claimed compensation pursuant to s 9 and s 11(1) or 11(2) of the Workers' Compensation Act 1926 (NSW) ("the 1926 Act") as a result of injury to his back and to both legs that he claimed led to various periods of total and partial incapacity. He also claimed lump sum compensation under s 66 of the Workers Compensation Act 1987 (NSW) ("the 1987 Act") for permanent impairment, and compensation pursuant to the former s 67 of the 1987 Act for pain and suffering.
4. The effect of clause 1(1) of Part 18 of Schedule 6, and clauses 1, 3, 4(1)(c), and 5 of Part 4 of Schedule 6 to the 1987 Act is that s 11(1) and (2) of the 1926 Act apply to the claim, and ss 66 and 67 (since repealed) of the 1987 Act apply as if the period of incapacity for work occurred as a result of an injury received before the commencement of the 1987 Act.
5. Section 9 of the 1926 Act provides for weekly compensation where total or partial incapacity for work results from injury. Section 11(1) of the 1926 Act is set out below at [49]. It regulates the amount of weekly payments during periods of partial incapacity. Section 11(2) requires an employer to provide suitable employment to an injured worker during a period of partial incapacity, failing which (or failing suitable employment being provided by others) the worker is to be compensated as if his or her incapacity for work were total. Section 66 of the 1987 Act specifies amounts of lump sum compensation payable for permanent impairment. Section 67 provided for payment of compensation for pain and suffering where the worker received an injury resulting in permanent impairment of 10 per cent or more. Section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the 1998 Act") requires that in assessing the degree of permanent impairment for which compensation is payable under s 66 there be a deduction for any proportion of the impairment that is due to any previous injury, pre-existing condition or abnormality. The primary judge determined that the deduction should be 50 per cent.
6. The principal issue before the primary judge was whether Mr Pain suffered "injury" as defined in s 6 of the 1926 Act and s 4 of the 1987 Act. Relevantly "injury" is defined in s 6 of the 1926 Act as: "'injury' means personal injury arising out of or in the course of employment, and includes - (a) a disease that is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor. (b) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to such aggravation, acceleration, exacerbation, or deterioration; ..."
7. Section 4 of the 1987 Act defines "injury" in similar terms: "injury: (a) means personal injury arising out of or in the course of employment, (b) includes a disease injury, which means: (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and (ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. ..."
8. Mr Pain had begun to experience problems to his back in 2001 and underwent spinal surgery in the same year from which he made a good recovery, although he still suffered from back pain from time to time. From 2009 until about April 2015 his predominant duty with the appellant was as a driller operator. He contended that in about April to May 2015 he experienced back pain after his duties had changed from operating a drill to operating dump trucks, graders and water carts.
9. The appellant denied that Mr Pain suffered "injury" (as defined) arising out of or in the course of his employment. It said that problems experienced by Mr Pain were a manifestation of his earlier injury and that the symptoms were unrelated to his employment with the appellant.

Primary judge's reasons

1. The primary judge summarised the tasks undertaken by Mr Pain in his employment. She summarised his evidence that, after the initial period of his employment, Mr Pain was mainly employed in operating a blast hold driller, and that in the early part of 2015 his work was varied so that the majority of the work was operating the drill. Later that work changed so that he worked more on a rear dump truck, grader and water cart. The primary judge summarised Mr Pain's evidence to the effect that when operating a grader or the dump truck he was bounced around a lot. Mr Pain had no continuing back problems from after his surgery in 2001 when he commenced his employment with the appellant.
2. Mr Pain gave evidence that in October 2013 he had experienced pain in his lower back as a result of having lifted his son's motorbike. The pain was such that he attended hospital and was off work for a period of time and then returned to his ordinary duties. The primary judge referred to Mr Pain's evidence that when he went back to those duties his back was "pretty good" and he continued with his ordinary work. Her Honour then summarised Mr Pain's evidence to the effect that in or from April 2015 he felt more pain in his lower back. He continued to work and did not report the pain to his employer. He did consult his general practitioner. He was referred to a specialist whom he saw at the end of June 2015.
3. The primary judge then said that from September 2014 to March 2015 Mr Pain noticed that his back pain was worsening while he was operating plant and machinery. From September to December 2014 he was mainly employed on drilling with occasional hauling or grading. From December 2014 to March 2015 he was mainly employed in drilling, but had more work on the water cart and hauling than previously, as well as grading work and work on the dump truck. Her Honour found that between December 2014 and March 2015 Mr Pain spent more time in hauling, grading or on the water cart or the dump truck than previously. It was this work that Mr Pain said involved bouncing around. The primary judge said that between March and July 2015 Mr Pain's employment record showed that there was considerably less work in drilling. In July 2015 the majority of his time was spent on the dump truck or grader.
4. On 29 July 2015, when Mr Pain was working in operating a rear dump truck, he suffered sharp back pain. He said that when he was operating the rear dump truck in the morning his back pain was tolerable, but after a crib break and as he was climbing back into the cabin he suffered severe spasms.
5. The primary judge then summarised the medical evidence. Contrary to the appellant's submission, there was no relevant conflict in the medical evidence. In his report of 24 February 2016 Professor Ghabrial said that there was right L4/5 disc herniation. He noted that Mr Pain had sustained an injury to his lower back sometime in 2001 for which he had surgery in 2002 that had resulted in a moderate improvement of his symptoms. He continued with residual minor ache with exertion in his back, but his acute symptoms had settled down fully. Professor Ghabrial said that Mr Pain had had a recurrence of symptoms "as a result of an incident around April/May 2015 and a further aggravation on 28th July 2015".
6. In his later report of 9 June 2017 Professor Ghabrial said: "I believe that the right L4/5 disc herniation was the result of the injuries of April and July 2015 (his previous disc was the L5/Sl disc) and that disc most likely herniated as the result of these 2 injuries of 2015 with the development of severe low back pain and right leg sciatica."
7. Professor Ghabrial's opinion in his letter of 9 June 2017 was given after he had reviewed the records of the Ku-ring-gai Hospital relating to Mr Pain's admission in 2013 following his lifting of his son's motorbike.
8. On 9 September 2015 Mr Pain attended on Dr Peter Spittaler at the request of the appellant's insurer. Dr Spittaler diagnosed Mr Pain of having suffered "... an exacerbation of lumbar intervertebral disc disease". Dr Spittaler reported on 15 September 2015: "I would say the injury probably has started earlier than this with a change in work duties. Whilst the worker obviously had some degree of disc degeneration as evidenced by his need for surgery in 2001, he was able to do heavy work for a very long period of time and is likely to have remained asymptomatic or minimally symptomatic had his work duties not altered. I would thus suggest that the exacerbation relates to the change in work duties earlier this year."
9. Mr Pain's general practitioner was Dr Anne Wakatama. She provided a report dated 12 November 2015 in which she opined that the current exacerbation and deterioration in the stability of Mr Pain's back was due to the ongoing heavy jarring he had experienced in his work.
10. Neither Dr Spittaler nor Dr Wakatama was provided with a history that included Mr Pain's 2013 hospital admission. However, Professor Ghabrial had considered the hospital records of that admission.
11. The appellant relied upon reports of Dr David Millons. Before Dr Millons was provided with evidence of Mr Pain's 2013 admission following his lifting of his son's motorbike, Dr Millon's reports were entirely consistent with the other medical evidence. On 19 July 2016 he reported that when Mr Pain had suffered an acute episode of back pain on 29 July 2015 this suggested that there had been a further protrusion of a degenerate disc at L4/5. He reported that Mr Pain had genuine mechanical low back pain and that whilst normal activities of daily living were playing a part in the perpetuation of symptoms arising from his back, on historical grounds, there did appear to have been a temporal connection between the work he was doing on the dump trucks and graders from April 2015 with the particular worsening of symptoms in July 2015. These symptoms were continuing. In the same report Dr Millons said that: "Mr Pain does suffer from a disease of gradual process. ... The jarring, driving dump trucks and graders over rough roads would have an effect on his degenerate discs. ... Mr Pain would appear to have sustained an aggravation of the pre-existing constitutionally based attritional change with the change of duties from April 2015 as outlined above. The work that he did after April 2015 was apparently a significant contributing factor."
12. Dr Millons was later provided with the admission records to Quirindi Hospital dated 27 October 2013 and some progress notes of a Dr Hansen dated 29 June 2015 for his report dated 20 September 2016. Dr Millons referred to the hospital admission following Mr Pain's having lifted two motorbikes onto the back of a ute and then having climbed into the tray to move the bikes and having hurt his back. This did not cause Dr Millons to change his opinion. He referred to the possibility that there had been an increase in symptoms in June 2015 when Mr Pain was on leave prior to his seeing Dr Hansen at the end of June 2015. He suggested that this might have been the explanation for his having been reviewed by Dr Hansen at the end of June 2015. Dr Hansen is a neurosurgeon and spine surgeon who reviewed Mr Pain on 29 June 2015. However, the referral to Dr Hansen was not the result of any recent incident. He was referred to Dr Hansen by Dr Alphonsus Amalakumar on 1 May 2015. The fact that he saw Dr Hansen after taking leave in June was irrelevant.
13. Dr Millons provided two further reports on 18 November 2016 and 1 December 2016. In his last report he said: "... if one can exclude any event as occurring at work from April 2015 onwards then it could be argued that such problems as he has in his back might reflect the effects of the normal activities of daily living playing on the attritional changes that were known to be there from 2001. I do not think that one can be any more clear than that. It all comes down to history and there are certainly some questions in regard to the history of events around April/May/June 2015. I leave that with you."
14. The primary judge found that events occurring at work from April 2015 could not be excluded as causing an exacerbation of Mr Pain's lumbar disease. Her Honour accepted Mr Pain as a witness of credit. Her Honour found: "I accept his evidence as to the jarring movements experienced on the machinery other than on the drill, and I accept that during the latter part of his employment with the defendant, from April to July 2015, he did spend more time on other plant and machinery than on the drill. I also accept that on 28 July 2015 there was a significant aggravation of his back pain as a result of his employment on that day, and the nature and conditions of his employment with the defendant between 2009 and 28 July 2015 did expose him to jarring and vibration."

Grounds of appeal

1. The appeal lies only in point of law. The amended grounds of appeal were as follows: "1 The Trial Judge failed in point of law to find an 'injury' which permitted in law an award of compensation for weekly payments and awards of any lump sums. 2 The Trial Judge failed in point of law to find which injury caused 'ongoing incapacity for work' which permitted an ongoing award of compensation or ANY entitlements to 'lump sums'. 3 The Trial Judge failed in point of law in [sic] to provide any or sufficient reasons as to why she preferred any medical opinion over the other expressed medical opinions as to whether there existed a work caused injury and/or why those injuries caused entitlements for ongoing incapacity for work or impairments. 4 The trial judge failed in point of law to identify or have any or sufficient regard to in her exercise of discretion under s 11(1) of [the] Workers Compensation Act, by reason of the impact [of] the underlying degenerative condition and/or non-work caused injuries reduced the Plaintiff's capacity to earn, to the extent or similar manner Her Honour did in respect to lump sum entitlements (50%). 5 There is no medical evidence which the trial judge could or did rely upon about a correct history. [sic] 6 The Trial Judge's credit findings in respect of the respondent lacked proper reasoning and failed to identify the evidence she relied upon and/or evidence to the contrary in making her assessment of credit of the respondent. 7 Finally, in light of the above grounds of appeal, if successful, there was no legally sustainable finding of injury and/or incapacity upon which findings of awards of lump sum compensation under section 66/67 of the Workers Compensation Act could be made."
2. The appellant sought to further amend the grounds of appeal to add the following ground: "The Appellant seeks amend Notice of Appeal to add an additional grounds [sic] (5), (6) and (7) of Notice of Appeal, filed in Amended Notice of Appeal. 'That her Honour acted upon expert opinions which were not explained by those experts or was based on wrong assumptions'."
3. Most of the grounds in the amended notice of appeal do not identify a point of law. In Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; [2014] 96 ATR 875, where the appeal lay on a question of law, Leeming JA said (at [6]): "...On any view, it is necessary for an appellant who invokes s 119 or an equivalent provision to frame one or more questions which, so it is claimed, amount to 'questions of law'. The procedural history of this appeal ... emphasises the importance, at the outset, of squarely facing up to this requirement. The approach taken by the appellants, when reminded by the court of the limited scope of the appeal they had brought, was to frame questions in the form 'Did the Appeal Panel err at law in' making, or failing to make, some finding, or in upholding the decision at first instance. Obviously, it is not possible, merely by the device of asking whether the Tribunal erred in law in doing something or failing to do something, to circumvent the statutory limitation on the scope of the appeal."
4. Those observations are apt to the present case. The appellant did not identify in its grounds of appeal any point of law, except, possibly, grounds 1, 3 and 4: that the primary judge failed to make a necessary finding of "injury"; failed to provide sufficient reasons; and failed to consider the "discretion" under s 11(1) of the 1926 Act. The proposed additional ground does not identify a point of law. No oral application to amend the grounds of appeal further was made. I would refuse leave to amend further the grounds of appeal.
5. A failure to provide sufficient reasons is an error of law if the failure demonstrates that the judge has constructively failed to exercise his or her jurisdiction to decide a necessary question (Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [9]; State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 at [11]-[12]; Goodwin v Commissioner of Police [2012] NSWCA 379 at [20]; Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260 at [298]). Where an appeal lies on an error of law, there is an error of law if the decision-maker does not disclose his or her path of reasoning to enable the court or tribunal on appeal to determine whether the decision-maker did make an error of law in reaching the decision (Wingfoot Australian Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 274, 281-2).
6. A finding of fact for which there is no probative evidence is an error of law (Bruce v Cole (1998) 45 NSWLR 163 at 188-9; [1998] NSWCA 45; Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158 at [33]; Ormwave Pty Ltd v Smith [2007] NSWCA 210 at [14]). It has been said that drawing an inference from facts that are not reasonably capable of supporting the inference is an error of law (Haider v JP Morgan Holdings at [33] and cases cited; cf. Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156 and 157). If the evidence or the facts found only admit of one conclusion, a failure to draw that conclusion raises a question of law. But where a finding depends upon the decision-maker's assessment of the relative importance and significance of facts found the ultimate determination is one of fact (Currie v The Commissioner of Inland Revenue [1921] 2 KB 332 at 336; Dennis v Watt (1942) 43 SR (NSW) 32 at 32; Tritton v Clarke [2018] NSWCCA 31 at [26]-[30]).
7. The appellant submitted that the primary judge was required not merely to rehearse the medical evidence but to: "a. Assess and find the accepted state of the medical evidence as to the nature and extent of the both these non-Appellant caused injuries and/or the nature of any aggravation caused by work with the Appellant. b. Assess and find the state of the accepted medical opinions having regard to the accuracy of history relied upon to form opinions and the weight that can be given in the absence of such a history. c. In relying on "nature and conditions" (rather than back symptoms) as the resulting in "injury" in circumstances where the Respondent clearly had pre-existing pathology (and non-work related injuries) which would cause 'symptoms'. Her Honour needed to find and express reasons such duties, and distinguishing between these events and preferring one medical scenario from the other. d. Her Honour was required to identify the effects on both the underlying back pathology and capacity to work from the work and non-work events, especially so from the fact that the Plaintiff was stoical."
8. The appellant submitted that the analysis required of the primary judge included: "a. The likely (unconscious) unreliability of any history provided by the Respondent given that it goes back about 15 years or more in the absence of any medical or employment and records during this period. b. That changes of work duties could well increase symptoms without any pathological changes to the back. c. That increased symptoms did "settle". d. His work duties changed after the 2002 operation. e. Current medical histories refer to ongoing back symptoms, but improved symptoms post-surgery in 2002. (Blue 3A) f. The need to consider and reason that Respondent's histories in a medico legal context need to give consideration of minimising non compensable events. g. There existed recorded references in contemporaneous records of which her Honour gives little to no consideration. h. The clear impact of the "severe' aggravation in 2013 unrelated to work, what effect did this have, if anything, on the underlying condition and for what period? To describe this as a "significant" does not resolve this issue."
9. Even if an appeal lay on matters of both fact and law, the primary judge did not fail to provide adequate reasons. That is because there was no dispute between the doctors called both by Mr Pain and the appellant if the primary judge found, as she did, that events occurring at work after April 2015 could not be excluded as causing an exacerbation of Mr Pain's lumbar disease.
10. The appellant submitted that the primary judge was required to provide reasons of the kind it contended for by reference to observations of McColl JA in Hume v Walton [2005] NSWCA 148 at [69] where her Honour said: "69 The primary judge's duty was not only to record the evidence but also to record the findings she made based on that evidence: Mifsud v Campbell (1991) 21 NSWLR 725 at 728. While the extent of that duty may depend upon the circumstances of the individual case (ibid), where there is disputed expert evidence, the 'parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other': Archibald v Byron Shire Council [2003] NSWCA 292 ; (2003) 129 LGERA 311 at [54] per Sheller JA (with whom Beazley JA agreed); see also Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33] per Santow JA (with whom Sheller JA and Campbell AJA agreed)."
11. Here, there was no relevantly disputed expert evidence. In any event McColl JA was there speaking of the required standard of reasons where an appeal lies on questions of both fact and law. The appeal in Hume v Walton was from orders of a District Court judge where the appeal to the Court of Appeal is by way of rehearing under s 75A(5) of the Supreme Court Act 1970 (NSW).
12. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 the reasons of the judge or the Compensation Court were manifestly inadequate to sustain his findings of fact. An appeal was limited to cases (relevantly) where a party was aggrieved in point of law. McHugh JA said (at 281-282): "Accordingly, the present case is concerned with a finding of fact which involves no legal standard and is not subject to appeal. The issue, therefore, is whether the failure to explain the basis of the crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done. If it was, that is itself an error of law because, as Asprey JA pointed out in Pettitt v Dunkley (at 382), the learned judge 'has not properly fulfilled the function which the law calls upon a judicial person to exercise'. However, in determining the issue which this appeal raises, great care needs to be taken that dissatisfaction with the finding of fact does not mislead the Court into holding that the learned judge has failed to give his reasons for his finding. Here the learned judge has obviously acted on the strength of the CAT scan report. His reasons for judgment necessarily involve the total acceptance of the opinions of the applicant's doctors until 17 January 1984 and the total rejection of their opinions after that date. His Honour gave no reasons for doing this. Since, ex hypothesi, the opinions of the applicant's doctors concerning her fitness after 17 January 1984 are necessarily wrong, it is difficult to see how on the facts of this case they could be right for the period immediately before that date. Alternatively, if they were right before that date, it is difficult to see how they could be wrong immediately after that date. Moreover, as counsel for the applicant pointed out, a CAT scan is simply a diagnostic aid. It would be quite erroneous to find as a fact that the applicant was fit for work from the date of the CAT scan simply because the CAT scan failed to reveal any evidence of unfitness. However, the question is not whether his Honour's finding that the applicant was 'fit for all work' after 17 January 1984 was correct. It is whether his Honour gave reasons, however erroneous, for that finding. While it is true that his Honour did not expressly give any reasons for the finding, his reasons for judgment show quite clearly in my opinion that he held that the applicant was fit for work because the CAT scan did not reveal any abnormality. It is not to the point that his Honour's finding was erroneous or, as counsel for the applicant claimed, perverse. An erroneous or perverse finding of fact raises no question of law and cannot be challenged by way of appeal. What is decisive is that his Honour's judgment reveals the ground for, although not the detailed reasoning in support of, his finding of fact. But that is enough in a case where no appeal lies against the finding of fact. Accordingly there was no failure to give reasons sufficient to constitute an error of law."
13. Mahoney JA said (at 274): "As I have said, it is clear why the learned judge made the order that he did. He found the worker was incapacitated up to but not beyond 17 January 1984. As I have said, the nub of the complaint made is that he did not detail the reasons why he found the incapacity to cease on that date. He was moved to select that date because it was the date of, or of the report of, the CAT scan. It is, in my opinion, not required of a judge to detail why the CAT scan, for example, carried such weight as to change his view of her condition at that time. It is sufficient that it be clear, as I think it is, what it was that was involved in his reasoning process".
14. In Resource Pacific Pty Ltd v Wilkinson Basten JA (at [52]) summarised the reasons of the Compensation Court judge in Soulemezis as "brief to the point of exiguous". Nonetheless, they did not demonstrate error of law.
15. The appellant never satisfactorily attempted to demonstrate why the alleged inadequate reasoning errors of the primary judge meant that it was aggrieved in point of law. It identified Tudor Capital Australia Pty Ltd v Christensen as the closest analogue. There, an appeal lay to a Deputy President of the Workers Compensation Commission pursuant to s 352(1) of the 1998 Act from a decision of an arbitrator. The appeal to the Deputy President extended to a determination of whether the arbitrator's decision was affected by any error of fact, law or discretion (s 352(5)). The appeal from the determination of the Deputy President was given to this Court to a party aggrieved in point of law (1998 Act, s 353(1)). This Court held that the arbitrator had failed to consider material facts or had given them undue or too little weight (at [384]). McColl JA held that the Deputy President's failure to identify the arbitrator's error was a constructive failure to exercise jurisdiction (at [384]). This was an error of law that founded the appeal. Her Honour also found that the reasons of both the arbitrator and the Deputy President disclosed error of law in determining the issue of whether the appellant suffered "injury" because there was a failure to engage with the appellant's case that breached the principle that justice should not only be done but must be seen to be done (at [388]).
16. With the possible exception of the issues raised by ground 4 of the notice of appeal, the primary judge made no error of law.

Grounds 1-3 and 5-7

1. The first ground of appeal was that the primary judge did not make a finding of "injury". That is not a fair reading of the primary judge's reasons. As set out at [24] above her Honour found that there was a significant aggravation of Mr Pain's back pain as a result of his employment on 28 July 2015 and as a result of the nature and conditions of his employment that exposed him to jarring and vibration. That was in accordance with the medical evidence. It was a finding of injury within the meaning of the 1926 Act and the 1987 Act, as being the aggravation or exacerbation of a disease.
2. Once that finding was made, there was no dispute between the doctors whose reports were relied upon by Mr Pain and the appellant that the conditions of Mr Pain's employment had aggravated or exacerbated a pre-existing disease. It was not a ground of appeal that the aggravation or exacerbation of Mr Pain's lumbar condition was not the aggravation or exacerbation of a disease. The medical evidence was that it was.
3. As to the second ground of appeal, the primary judge did make the requisite finding as set out at [24] above. There was no error of law in the primary judge's finding that the injury described above, as distinct from any earlier injury, entitled Mr Pain to compensation. Any other conclusion would have been contrary to the medical evidence.
4. Ground 3 of the appeal asserted that the primary judge failed to provide sufficient reasons for preferring one medical opinion over another. Unless any such failure amounted to a constructive failure to exercise jurisdiction (see [29] above), it would not amount to an error of law. In any event, there was no difference in medical opinion that needed resolution once the primary judge found, as she did, that events occurring at work from April 2015 could not be excluded as contributing to Mr Pain's back condition.
5. Grounds 5, 6 and 7 of the notice of appeal raise no points of law. Ground 5 asserts that there was no medical evidence on which the trial judge could or did rely in relation to a correct medical history. That ground is inelegantly expressed. It is not a ground that there was no medical evidence to support the finding, but that there was no medical evidence based on a correct medical history to support the finding. That does not raise a point of law. In any event it is not shown that either Professor Ghabrial or Dr Millons did not have a correct medical history.
6. Ground 6 attacks the primary judge's credit findings. That raises a question of fact. Even if the appeal extended to questions of fact, there would be no basis for overturning the primary judge's credit findings.
7. Ground 7 is not a specific ground of appeal. It depends upon the success of the other grounds.
8. The remaining ground of appeal is ground 4 quoted at para [25] above.

Ground 4

1. Section 11(1) of the Workers' Compensation Act 1926 referred to in ground 4 of the notice of appeal is the section that was in force prior to the commencement of Div 2 of Pt 3 of the 1987 Act. Section 11(1)(a) of the 1926 Act provides: "Partial incapacity 11(1)(a) In the case of partial incapacity, the weekly payment shall in no case exceed the difference between the weekly amount which the worker would probably have been earning as a worker but for the injury and had he continued to be employed in the same or some comparable employment, and the average weekly amount he is earning, or is able to earn, in some suitable employment or business, after the injury, but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper."
2. The section required the primary judge first to determine the weekly amount which Mr Pain would probably have been earning if uninjured; secondly, to determine the average weekly amount Mr Pain was earning or was able to earn in his state of partial incapacity after the injury in some suitable employment or business; thirdly, to deduct the second from the first, thus producing the maximum amount that could be awarded; and fourthly, to decide what amount, no greater than the difference between the first two amounts, bears a proper relation to that difference (Australian Wheat Board v Pantaleo [1984] 3 NSWLR 530 at 540-541; Kesen v Luke Singer Pty Ltd (1989) 18 NSWLR 566 at 567; Mitchell v Central West Health Service (1997) 14 NSWCCR 526 at 529-530; Farrell v Metromix Pty Ltd [2001] NSWCA 166 at [17]-[20]).
3. The primary judge addressed the first three of these steps. She did not specifically address the fourth step, that is, the making of an evaluative judgment (sometimes described as the exercise of a discretion) as to what amount of the difference between the first two assessed amounts appeared to be proper in the circumstances. The primary judge did not give reasons for concluding that it was proper in the circumstances for the whole amount of the difference to be incorporated in the award. Her Honour said: "I am of the opinion that the plaintiff has a capacity for employment and is making real endeavours in that regard. His present earnings are said to be $529.96 per week. I do not believe that to be an accurate reflection of his earning capacity on an open labour market and the plaintiff was frank that he could probably work more hours per week than he is presently performing and has been able to do so since 8 October 2015. In the exercise of my discretion, I am of the opinion that the plaintiff has a capacity to earn on an open labour market in the vicinity of $900 per week at all material times, and the wage differential is sufficient to attract a full award. A difficulty arises here, however, in that the statement of claim alleges the plaintiff's wife and three children to be dependant. From the evidence it seems that his wife has been engaged in employment at all material times, and no evidence was ever led as to the ages or dependency of the children. I have therefore not calculated the likely weekly benefit under s 11(1) at this time. I would therefore ask the parties to attempt to resolve that issue between themselves, and to provide short minutes to the Court reflecting any dependency."
4. In all but exceptional circumstances, failure to address the issue as to why it is proper to award the difference without reduction is an error of law (Lawrence v Carroll [1998] NSWCA 129 at 4). But in Gregory R Ball Pty Ltd v Stead (1993) 9 NSWCCR 148, where the primary judge awarded the maximum permitted by the section without referring to the "discretion" to award an amount that bore such relation to the amount of the difference as appeared proper in the circumstances of the case, Handley JA (with whom Clarke and Meagher JJA agreed) said (at 154) that a judge was not required to give reasons for an exercise of the discretion which was not in dispute, and that there was no need to refer to the discretion if its exercise was not in issue.
5. The primary judge did refer to the exercise of a discretion, but only in the context of assessing the respondent's current earning capacity. Her Honour gave no reason for determining that the full amount of the difference between the weekly amount Mr Pain would probably have been earning but for the injury, and the average weekly amount he was able to earn should be awarded under s 11(1). No submission was made to the primary judge on that question.
6. The appellant submitted on appeal that Mr Pain's pre-existing back condition and the non-compensable aggravations or exacerbations of that condition from factors that did not arise out of or in the course of his employment, must have significantly reduced his capacity to find work on the open labour market. The appellant complained that the primary judge did not give reasons for exercising her "discretion" in the way she did in the light of that factor and in the light of evidence given by a Mr Riordan of the appellant that he was prepared to accommodate Mr Pain with suitable duties. No such submission was made to the primary judge in relation to the issue arising under s 11(1)(a). The question of whether Mr Riordan was prepared to accommodate Mr Pain with suitable duties was an issue that was addressed before the primary judge in relation to an issue under s 11(2), namely, whether the employer had failed to provide suitable employment for a partially incapacitated worker. The primary judge found in favour of the appellant on that question. There was no cross-appeal from that finding.
7. It is not self-evident that the primary judge should have made some allowance for Mr Pain's pre-existing back condition in assessing an appropriate award under s 11(1). As Mr Pain submitted, the pre-existing back condition had not prevented his performing his usual work with the appellant until he suffered the compensable injuries. Had the issue been raised for the primary judge's consideration it would have been necessary for her Honour to have addressed it. But it was not raised and therefore it cannot be now said that it was "in issue" or "in dispute". Her Honour did not err in law in not giving reasons for her conclusion that the full difference should be allowed.
8. No error of law has been demonstrated. In my view the appeal should be dismissed with costs.
9. EMMETT AJA: The appellant, Whitehaven Coal Mining Limited (Whitehaven), appeals from an award made under the Workers Compensation Act 1987 (NSW) (the 1987 Act) by a judge of the District Court (the primary judge) in favour of the respondent, Mr Craig Pain (the Worker). Under s 9 of the 1987 Act, a worker who has received an injury is entitled to receive compensation from the worker's employer in accordance the 1987 Act. Under s 4, injury includes the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, provided that the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. The term "disease" has variously been described as a pathological condition, an abnormal physical condition that is more than transient and a morbid condition of the body [1] .
10. The primary judge concluded, in effect, that the Worker suffered from a back pathology consisting of degeneration and a small disc prolapse, which constituted a disease and that that disease was aggravated in the course of his employment by Whitehaven. Her Honour made an award that the Worker was entitled to a continuing weekly payment and a lump sum payment in respect of the impairment of his back and both legs.
11. The only right of appeal conferred in respect for such an award is under s 142N of the District Court Act 1973 (NSW). Section 142N(1) relevantly provides that, if a party to any proceedings before the District Court in its compensation jurisdiction is aggrieved in point of law by an award of the Court, that party may appeal to the Court of Appeal. It is common ground that the award made by the primary judge was in the exercise of the compensation jurisdiction of the District Court. The Court of Appeal may, on the hearing of any appeal under s 142N, make such order in relation to the appeal as the Court of Appeal sees fit. A decision of the Court of Appeal on an appeal under s 142N is binding on the District Court and on all the parties to the proceedings in respect of which the appeal was made.
12. The grounds of appeal relied upon by Whitehaven may be relevantly restated as follows: 1. The primary judge failed to find an "injury" that permitted an award of compensation for weekly payments and awards of any lump sums. 2. The primary judge failed to find which injury caused ongoing incapacity for work that permitted an ongoing award of compensation or any entitlement to an award of a lump sum. 3. The primary judge failed to provide adequate reasons as to why her Honour preferred any one medical opinion over the other expressed medical opinions as to whether there was a work caused injury and why any such injury gave rise to an entitlement to compensation. 4. The primary judge failed to have sufficient regard to the extent to which the impact of the Worker's underlying degenerative condition and non-work caused injuries reduced his capacity to earn. 5. There was no medical evidence upon which the primary judge could rely in relation to a correct medical history in relation to Worker. 6. The credit findings made by the primary judge in relation to the Worker lacked proper reasoning and failed to identify the evidence relied upon. 7. The primary judge made no legally sustainable finding of injury or incapacity upon which an award of compensation could be based.
13. In December 2008, the Worker began employment with Whitehaven as a plant operator. He did not experience back problems in the initial period after commencing work with Whitehaven. However, in October 2013, the Worker experienced pain in his lower back after he lifted his son's motorbike onto the back of a truck. He was given treatment in Quirindi District Hospital and was off work for a period of time.
14. In April 2015, the Worker felt more problems in his back while operating dump trucks and graders at work. While he felt pain at that time in his lower back, he made no report to Whitehaven and continued work. However, he went to his general practitioner in April 2015 complaining of lower back pain. He was referred to a specialist in May 2015 and various investigations were undertaken, including an MRI and bone scans. He was given injections to relieve pain. He continued with his employment.
15. In late July 2015, after visiting the crib, the Worker bent down to get into the cab of the rear dump truck that he was driving when he felt a spasm in his lower back. He reported his problem to the office and, at that stage, his back was very painful. He was given first aid and taken to Quirindi District Hospital where he remained for two or three days. He remained in pain following his discharge and was unable to return to work. On 1 June 2016, his employment was terminated by Whitehaven.
16. In his claim in the District Court, the Worker asserted that, during his employment with Whitehaven, he had been exposed to regular whole body jarring and vibrations as a result of operating various plant equipment over full shifts, over rough roads and dumps. He claimed that those activities aggravated, exacerbated or accelerated his "injuries and conditions". The primary judge accepted the Worker's evidence as to the jarring movements experienced on the machinery (other than on the drill) and that, as a result of the incident in late July 2015 there was "a significant aggravation of his back pain" as a result of his employment on that day. Her Honour also accepted that the nature and conditions of the Worker's employment with Whitehaven between 2009 and July 2015 exposed him to jarring and vibration.
17. The primary judge referred to opinions of various doctors to the effect that the Worker's employment was the main contributing factor to his condition, that there was a temporal connection between work on the dump trucks and graders from April 2015 to July 2015 with worsening symptoms, that the jarring had caused an aggravation of the underlying degenerative changes and a minor disc protrusion, and that the nature and conditions of the Worker's employment from about April 2015 to July 2015 was responsible for the increase in symptoms that continued. However, Whitehaven complains that her Honour failed to make a finding that the conditions of work undertaken by the Worker caused aggravation or exacerbation of his back condition. It complains that the finding made by her Honour, that there was a significant aggravation of "back pain", was not a finding that the incident in late July 2015 constituted an aggravation of the disease or condition that gave rise to the back pain.
18. I have had the advantage of reading in draft form the proposed reasons of White JA. I agree with his Honour, for the reasons proposed, that Whitehaven has not demonstrated any error in point of law on the part of the primary judge. It follows that the appeal must be dismissed with costs.
19. SIMPSON AJA: I agree with White JA.

Endnote

1. See Darling Island Stevedoring and Lighterage Co Ltd v Hussey (1959) 102 CLR 482 at 496; [1959] HCA 55; Commissioner for Railways v Bain (1965) 112 CLR 246 at 272; [1965] HCA 5; and Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 587; [1976] HCA 13. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 October 2018