Giovanni Fummo v Queensland Mines Ltd

• Jurisdiction: Queensland
• Court: Supreme Court
• Judge: Asche C.J.
• Judgment Date: 11 October 1988
• Neutral Citation: [1988] NTSC 67
• Docket Number: No. 675 of 1987
• Date: 11 October 1988

[1988] NTSC 67

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Asche C.J.

No. 675 of 1987

Giovanni Fummo

and

Queensland Mines Limited

Counsel for the Appellant: C. McDonald

Counsel for the Respondent: I. Faulkner

Cases applied:

Eagil Trust Co Ltd v Piggot-Brown (1985) 3 All ER 119

Housing Commission of New South Wales v Tatmar Pastoral Co (1983) 3 NSWLR 378

Selvanayagam v Univerity of West Indies (1983) 1 All ER 824

Cases cited:

Hope v Bathurst City Council (1980) 144 CLR 1

Mobasa v Nikic (1987) 47 NTR 48

Apps v Pilet (unrep 28/10/87 Court of Appeal of New South Wales)

Associated Provincial Picture House Ltd v Wednesbury Corporation (1948) 1 KB 223

Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139

R v District Court of New South Wales ex parte White (1966) 116 CLR 644

Carlson v King (1947) 64 WN (NSW) 65

Victorian Stevedoring and General Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73

Builders Licensing Board v Sperway Constructions (1976) 135 CLR 616

Paterson v Paterson (1953) 89 CLR 210

House v The King (1936) 55 CLR 499

Mallett v Mallett (1984) 156 CLR 605

Gabriel v Williamson (1979) 1 NTR 6

Dietrich v Dare (1978) 21 ALR 210

McMahon Constructions Pty Ltd v Bonetti (unrep 17/10/78 Supreme Court of the Northern Territory)

De Iacovo v Lacanale (1957) VR 553

Ponnamma v Arumogan and Ors (1905) AC 383

Cases discussed:

Minister for Aboriginal Affairs v Peko Wallsend (1986) 66 ALR 299

Soulemezis v Dudley (Holdings) Pty Ltd (unrep 4/9/87 Court of Appeal of New South Wales)

Warren v Coombes (1979) 142 CLR 531

Cases followed:

Smith v General Cab Company (1911) AC 188

Farmer v Cottons Trustees (1915) AC 922

Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47

Appeal — From decision of Workers Compensation Court to Supreme Court of Northern Territory — legislation restricting appeal to questions of law — role of appellate Court — distinction between ‘general’ appeals and appeals restricted to questions of law — what constitutes an error of law — principles and tests to be applied — Workers Compensation Act 1949 as amended (NT) s. 26(1)

Appeal — Reasons — conflicting medical evidence — whether evidence supported Magistrate's findings — whether facts found by Magistrate justify his conclusion — extent to which Magistrate must go in giving reasons

ORDER

• 1. The appeal will be dismissed.

• 2. The question of costs with liberty to apply reserved.

JUDGE1

1 In 1980 and 1981 the appellant suffered two separate injuries at work. The first was an injury to his left leg on 3 August 1980. The second occurred on 28 August 1981 when the appellant was standing on a ladder approximately 3–4 metres above a steel platform and he fell onto the platform sustaining injuries to his head, neck and back. The accident occurred at Narbarlek and the appellant was taken to Darwin Hospital by air ambulance and treated there and discharged on 5 September 1981. About 2 weeks after the date of the accident he went back to work with the same employer. His evidence (at p 239–240 in the transcript) was that he was ‘feeling all right in the beginning’ (i.e. from the time he recommenced work) but then ‘the pain got worse in the back and the neck and everything’. He said that before the accident he had no pain in the head or neck. He travelled overseas in April 1982 and on his return resumed work with the same employer and continued to work until September 1983. That is the period in which he says the pain, particularly in his head, got much worse, so much so that he had frequent interruptions at his work and his employers finally terminated his employment in September 1983.

2 On 4 December 1984 the Workman's Compensation Tribunal at Darwin determined that he was suffering from occipital neuralgia, and that the ‘occipital headaches … are of such intensity and frequency as to presently incapacitate him from employment’. The application was adjourned to enable the parties to negotiate a resolution of the matter. On 22 July 1985 the Tribunal made an award of weekly payments from 20 March 1984 and continuing at the statutory rate as amended from time to time.

3 On 22 May 1986 the appellant made a further application to the Workers Compensation Court in which he claimed:-

‘4. The applicant has since been diagnosed as suffering from brain damage as a result of the head injury of 28 August 1981, which is a permanent condition and which totally incapacitates him from any work of any nature for the remainder of his life, and in addition to and/or in the alternative, that the applicant suffers from a major depressive disorder; attributable to his injuries of both 3 August 1980 and 28th August 1981 suffered in the course of his employment with the respondent.’ (Paragraph 4 of the Statement of Claim as amended).

4 He claimed a lump sum in redemption of weekly payments from the date of hearing of the application and any consequential medical expenses up to that date.

5 Although there is a reference in paragraph 4 to the accident of 3 August 1980 it is fair to say that the circumstances of that accident play little if any part in the case presented before the Workers Compensation Court between 20–22 October 1986 and 2–3 December 1986.

6 In those proceedings the employer joined issue and raised in addition a defence of Res Judicata and Issue Estoppel based on the previous findings of the Workers Compensation Tribunal of 4 December 1984 that the applicant had suffered a head injury being occipital neuralgia which was responsible for the occipital headaches complained of by the applicant, and did not preclude him from returning to the workforce.

7 The Magistrate constituting the Workers Compensation Court at the hearing in 1986 ruled against this specific defence and his ruling on that issue is not challenged before me.

8 Nor does the employer challenge that the accident occurred in the course of the applicant's employment or that it occurred in the way described by the applicant.

9 Before the Workers Compensation Court a great deal of medical evidence was adduced on both sides but the essential issues were clear. The applicant claimed:-

(a) that since the accident he had suffered and continued to suffer brain damage manifesting itself particularly in intense and continuing headaches.

(b) that since the accidents of both 3 August 1980 and 28 August 1981 he had suffered and continued to suffer a major depressive disorder.

(c) that both conditions

(a) and (b) were attributable to the injury suffered on 28 August 1981 and condition (b) was also attributable to the injury of 3 August 1980.

The respondent employer claimed:-

(a) that there was no proof or no sufficient proof of (a) or (b); or if there was some proof of these conditions they were highly exaggerated by the applicant.

(b) that there was no proof that those conditions were attributable to either accident.

10 Those issues were factual issues. After hearing the evidence the Magistrate constituting the Workers Compensation Court made findings which I summarise as follows:-

(a) It was more probable than not that any lapses of consciousness which the appellant spoke of after the accident were not due to head injuries but rather due to sleep (p 12 of Judgment of 3 July 1987) (see also pp 16–17: pp 23–24).

(b) If there was loss of consciousness it was of very short duration. However the preferred view of the Magistrate is that there was no loss of consciousness (p 14).

(c) ‘This finding of fact is all but fatal to the appellant's claim to significant head injury such as would produce the effects now complained of’ (p 14).

(d) ‘There is no evidence before me that satisfied me that the applicant suffers any major depressive illness arising out of the incidentof August 1981 or earlier accident’. (p 24) (underlinings are those of the Magistrate).

(e) His Worship also came to a positive finding that the appellant was consciously exaggerating his symptoms (p 32). His Worship came to that finding on the evidence of certain medical witnesses and his own assessment of the appellant.

(f) His Worship stressed that the appellant was clearly a depressed man (p 24) but he was not satisfied there was a causal link between that depression and the accident (pp 24, 32, 34).

11 His Worship dismissed the application.

12 It seems to me that those are clearly findings of fact open to the Magistrate on the evidence before him. That being so, the appellant is immediately faced with the problem that an appeal to this Court lies only on a question of law. See s. 26(1) of the Workers Compensation Act as amended.

13 Mr McDonald commences by establishing that two questions of law immediately arise; and he relied on cases such as Smith v General Cab Company (1911) AC 188: Farmer v Cottons Trustees (1915) AC 922: Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47: Hope v Bathurst City Council (1980) 144 CLR 1. I agree with him as to the questions of law which arise from these authorities, but, for the reasons I will give, I consider the questions must be answered negatively to his cause.

14 The first case ( Smith v General Cab Company) is clear authority for the proposition that the question whether there was evidence to support a finding of fact in the Court below is one of law. The second ( Farmer v Cotton Trustees) is authority for the proposition that whether the result flows from the facts found is also a question of law. That proposition is to be found in the remarks of Lord Parker of Waddington at p 932 that ‘where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only’.

15 As to the first question any perusal of the transcript suffices to establish that there was clearly evidence in this case...