At judicial determination the issues before the learned Deputy President were whether the worker, Barry George Mitchem, sustained a compensable disability in the nature of neck, shoulder and back pain, injury to his right elbow, and headaches, arising out of or in the course of his employment with KC and MR Boult ("Boults") on or about April 1996 and in the event that he did so whether, and for what period/s, he was incapacitated for work as a result of the compensable disability.
By decision dated 27 April 2001, the learned Deputy President found that the worker suffered the aggravation of an arthritic condition of his right elbow which was attributable to his employment as a tree harvester with Boults between the period May 1995 and June 1996, and that the worker suffered a resultant incapacity for work.
As to the other aspects of the claim, he concluded that there was no convincing evidence to support a finding that the worker sustained or aggravated a prior injury to either shoulder in the course of his employment with Boults, or that he had suffered a neck or back injury of any consequence.
The appellant, the Corporation, has appealed against the decision on the basis that the conclusion as to the compensability of the right elbow was not open on the evidence. There is no cross appeal by the worker as to the rejected aspects of his claim.
This Tribunal will only have jurisdiction to deal with the appeal if the appellant establishes that there was no evidence at first instance capable of supporting the findings of fact made by the learned Deputy President. If in reality the appellant is merely attempting to re-argue a question of fact decided adversely to it at first instance then there will be no question of law ( at para 76 and the authorities cited therein).
The essential findings of the learned Deputy President can be summarised as follows; the worker was employed by Boults from early May 1995 to late June 1996 when he was retrenched. Until May 1996 he undertook tree harvesting work. When that work ceased he undertook a short period of farm work and the fuelling and servicing of a wood chipper.
The learned Deputy President found that before commencing this work, the worker was already experiencing "trouble" and pain in his right elbow, arm and shoulders which the worker attributed to a fall with an earlier employer in 1993, but that this "trouble" had not prevented the worker from carrying out his work at any time in the past.
The learned Deputy President noted that it was the worker's evidence that whilst working for Boults he fell from a tractor onto his right side in April 1996, and that this was followed by an increase in his symptoms including the right elbow and a diminution in his capacity for work. It was the worker's evidence that following this incident he continued to perform tree harvesting and then the other duties mentioned above. During this time it was his evidence that the pain in his right elbow became progressively worse. He began to experience locking in his right elbow and he found it hard to use his right arm when pumping fuel and while operating a front end loader. He only managed to perform his work at Boults after April 1996 with difficulty, and in subsequent employment he had pain when driving a bulldozer and found it hard to manage. He cannot now perform the full range of labouring and machine operating employment which used to be available to him.
The learned Deputy President rejected the worker's evidence that there had been a fall in April 1996, but accepted that the work which he performed as a tree harvester was very arduous and that such work involved repetitive use of the arms.
Relying on the evidence of Mr W Maling, the worker's treating orthopaedic surgeon, the learned Deputy President found that the worker had developed loose bodies in the right elbow joint which predated his employment with Boults, and that he was suffering from osteoarthritis of the right elbow. He also considered it not improbable that the repetitive use of the worker's right arm whilst operating a tree harvester caused a disturbance of the degenerative right elbow, and that this activity might have freed several intra-articular bony bodies in the elbow joint.
Relying on the evidence of the worker and Mr Maling he found that this arduous tree harvesting work aggravated the pre-existing degenerative right elbow joint, and that this resulted in an incapacity for work of the kind that had formerly been available to him.
Thus although the learned Deputy President rejected the worker's evidence of a specific incident in April 1996 causing an increase in symptoms in his right elbow, he found that the arduous nature of the tree harvesting duties at Boults caused an aggravation of the worker's right elbow condition.
In submitting that there was no evidence upon which this essential finding could be made, Mr Luke, counsel for the appellant, contended that it was central to the worker's evidence that he had fallen from a tractor in April 1996 thereby aggravating his right elbow pain, and that the worker gave no evidence from which a finding could be made that the general nature of the duties aggravated his right elbow. In other words it was Mr Luke's submission that the evidence of a fall and subsequent pain were indivisible such that without the foundation of a finding of a fall there is no evidentiary basis for a link between ongoing pain and restriction of movement and the employment.
Mr Luke further submitted that, when dealing with the evidence about whether the loose bodies in the elbow joint, which impacted on the already degenerative condition of the joint, were aggravated by the employment as a tree harvester, the learned Deputy President erred in law by applying an incorrect test of the burden of proof when he said that "It is not improbable, however, that the worker's repetitive use of his right arm whilst operating the tree harvesters caused such a disturbance, as suggested by Mr Maling" (TB 234 par 57). With respect, there is nothing in this last submission. When this passage is read in its context it is quite apparent that the learned Deputy President had not misunderstood the relevant standard of proof.
In dealing with Mr Luke's primary submission we would make the point that the learned Deputy President was not constrained to totally accept or totally reject the worker's evidence. It was open to him to accept part of the worker's evidence and to reject other parts. (Copping and Perball v ANZ McCaughan Ltd and Others (No 2)(1995) 181 LSJS 157; Louth v Diprose[1992] HCA 61; (1992) 175 CLR 621 per Deane J 635).
In this instance where there was no other corroborative evidence which might strongly confirm the worker's evidence, the learned Deputy President's findings are based on his view of the reliability of the worker's evidence.
Although the learned Deputy President rejected the worker's evidence of a fall and regarded him to be a poor historian who gave unsatisfactory and conflicting evidence, he nevertheless felt able to rely upon the worker's evidence about the nature of his tree harvesting work and his physical complaints, and from that evidence and with the support of the evidence of Mr Maling he was able to draw an inference that there was a causal link between the duties performed and the onset of pain and restriction of movement.
Although the worker gave a variety of responses to questions about when he experienced the onset of symptoms it is apparent that there was acceptance of his evidence in a number of material respects including that he performed the same work at Morelands and Boults, which was demanding work involving "consistently slewing the machine with your arms, like hydraulic levers, one right, one left, all day long" (TB 94); that he had some soreness in the right arm since 1993 but it was not as sore as when he was working at Boults (TB 111 and 112); that his right elbow was sometimes sore when working at Morelands (TB 125); that he did tree harvesting at Boults until May 1996 (TB 97); at some point in time after April 1996 and before June 1996 he started to have trouble with his elbows (TB 126 - 127); that his arms became progressively worse (TB 98); and that he had trouble pumping fuel (TB 98).
Mr Luke pointed out a number of inconsistencies in the worker's account, particularly about the timing and location of the onset of symptoms in the right elbow, however it is not correct to say that there was no evidence on these topics. It is simply the case that, notwithstanding these inconsistencies, the learned Deputy President was prepared to accept those aspects of the worker's evidence which pointed to a causal connection between his elbow condition and his employment, and it can be inferred that in so doing the learned Deputy President's observations of the worker when giving evidence played an important role in making his factual findings.
Mr Luke also submitted that there was no evidence of the worker having significant pain in his right elbow before the asserted fall of April 1996. We infer that the point of this submission was that if it was the tree harvesting work which caused the significant pain rather than the alleged fall, then one would expect there to be evidence of an onset of that pain and restriction of movement from the time that the tree harvesting commenced. It was the clear evidence of the worker that the elbow problem did not start to cause problems until after April 1996 (TB 122, 126 and 127). However an absence of complaint about significant right elbow pain prior to the date of the asserted fall is not inconsistent with the learned Deputy President's acceptance of the worker's evidence of a worsening of his condition at a time from about April 1996 following which he continued to perform tree harvesting for about a month thereafter, before commencing farming and refuelling work.
Even having rejected the worker's evidence about a fall in April 1996 there was evidence that the worker had pain which was made worse by his work activities at Boults. The learned Deputy President was entitled to use that evidence, along with the evidence of Mr Maling, to draw an inference that the pain in the right elbow was attributable to an ongoing degenerative condition of the elbow joint which was aggravated by the nature of the tree harvesting duties that the worker was required to perform with Boults.
Mr Luke's references to selected passages of the evidence demonstrating inconsistencies in the worker's account belies one of the fundamental differences between a trial and an appeal. As McHugh J pointed out in Rosenberg v Percival[2001] HCA 18; [2001] 75 ALJR 734 at 741:-
[2]
"Where a finding is based on credibility and other facts support the finding, the case would need to be exceptional before an appellate court could set aside the finding on the ground that, judging by the transcript, the trial judge gave insufficient weight or consideration to other facts and circumstances in the case. The common law tradition is an oral tradition. Trial by transcript can seldom be an adequate representation of an oral trial before a judge...".
[3]
Whilst these remarks were made in the context of an appeal by way of re-hearing and therefore might not be entirely apposite to an appeal limited to a question of law which is what we are dealing with, they are helpful, because they identify the disadvantage that we have in only having the transcript to consider; that disadvantage being our inability to appreciate what impact seeing and hearing the witnesses giving their evidence had upon the learned Deputy President. As it was, even though he rejected the worker's evidence about a fall in April 1996, the learned Deputy President accepted evidence that the worker had pain which was made worse by his work activities at Boults. We cannot revisit that finding nor can we interfere with the learned Deputy President's use of that evidence, and the evidence of Mr Maling, to draw an inference that the pain in the worker's right elbow was attributable to an ongoing degenerative condition of the elbow joint, which was aggravated by the nature of the tree harvesting duties which the worker was required to perform with Boults. These were matters exclusively within the province of the trial Deputy President. Accordingly the appeal must be dismissed.