John Holland Constructions Pty Ltd v John Campbell Hall [NTR]

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Kearney J.
• Judgment Date: 12 February 1987
• Docket Number: No. 78 of 1986
• Date: 12 February 1987

(1987) 45 NTR 11

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Kearney J.

No. 78 of 1986

John Holland Constructions Pty Ltd

and

John Campbell Hall

Counsel for the appellant: T.I. Pauling QC J.M.R. Neill

Counsel for the respondent: M. Ward

Cases followed:

Kraljevich v Lake View and Star Ltd (1954) 70 CLR 647

Cases applied:

Staska v General Motors-Holden Pty Ltd (1974) 123 CLR 673

Farmer v Cotton Trustees (1915) AC 922

Watts v Rake (1960) 108 CLR 158

Cases referred to:

Fisher v Hebburn (1960) 105 CLR 188

Geraldton Building Co. Pty Ltd v May (1977) 136 CLR 379

Whitley v Scobie (1985) 63 ALR 221

Statutes:

Interpretation Act, s.12

Workers' Compensation Act, ss.7(1), 26(1); Schedule 2, Clause (1B)(b)

Workmen's Compensation Amendment Act 1984, ss.17 and 20

Appeal — Workers' Compensation Court — amendment to statutory provision for appeal after claim heard but before decision given — nature of appeal from decision — distinction between question of law and question of fact — Workers' Compensation Act, s.26(1).

Statute — Workers' Compensation Act — amending Act changing basis of amount of compensation — amendment coming into force after claim heard but before decision given — whether compensation for period of partial incapacity post-amendment to be as per amended provision — prima facie effect of amendment — whether relevant ‘fact’ or ‘event’ is passage of each week of incapacity after the amendment, or the incapacitating injury.

Workers' compensation — partial incapacity — compensation under clause (1B)(b) of Schedule 2 of Workers' Compensation Act — amendment to Clause (1B)(b) after claim heard but before decision given — whether compensation for period post-amendment to be based on amended provision — whether worker's entitlement to compensation arises periodically or on occurrence of incapacitating injury.

JUDGE1

1 On 10 February 1986 the appellant appealed against certain orders made by the Workers' Compensation Court on 2 December 1985. The Court had awarded the respondent lump sum compensation under s.10 of the Act together with weekly payments under s.7, for total incapacity from November 1981 to September 1983, and partial incapacity thereafter; and had directed that the liability for the weekly payments be redeemed by the payment of a lump sum.

2 On 26 February the respondent cross-appealed against the orders made on 2 December 1985 seeking to have the award for weekly payments calculated on the basis of total and permanent incapacity from November 1981, with a consequent increase in the lump sum redemption payment.

3 Ten grounds of appeal are set out in the appellant's Notice of Motion; the respondent set out six. Before turning to the issues raised on appeal it is convenient to set out shortly the evidence placed before the learned magistrate and her Worship's findings thereon as set out in reasons for decision of 29 October and 2 December 1985.

THE EVIDENCE AND FINDINGS IN THE COMPENSATION COURT

(1) The evidence

4 The respondent applied for compensation in February 1982. He claimed to have suffered a back injury on 14 May 1977 while employed by the appellant as a carpenter working on scaffolding on a building site. His work involved the lifting of heavy weights, stooping and bending; his wages were $300 per week. The hearing commenced on 10 December 1984. The Court heard evidence from the respondent and 4 witnesses he called, including Mr Baddeley and Mr Dinning as medical witnesses. The hearing had been adjourned on 12 December. In February 1985 there was an argument on an application to tender certain medical reports. Her Worship admitted into evidence reports by Drs Gray, Thomas, Dinning, Shoulder and Moss, upon a basis which permitted the appellant to cross-examine the makers of the reports if called. The hearing resumed in May 1985, with Mr Dinning. The appellant called 3 medical witnesses though Mr Dinning was really the appellant's witness. The evidence concluded on 3 May followed by written submissions from the parties, the last being received in July 1985.

5 The respondent said that in May 1977 he had twisted his body in the course of dismantling scaffolding, and felt for the first time a sharp pain in his lower back. He reported what had happened and was given two weeks off work and was paid compensation. On a second occasion while working he fell and again was off work for 2 weeks. On a third occasion at work he twisted his back and had a further week off. In 1980, while working at the Museum site, he slipped down a bank, twisted his back, and was off work for 2 to 3 weeks.

6 He claimed that the pain he had thereby suffered had made it difficult for him to carry out his full duties as a carpenter; however he had continued to work for the appellant on building sites though he received chiropractic treatment twice weekly for 2 years.

7 In November 1981, when his wages were $350 per week, the particular work on which he was then engaged involved a lot of bending up and down. He suffered pain in the back as a result and had a week off work. When he returned to work he was promptly sent home; he has not worked since that time. It was upon the injury of November 1981 that her Worship focussed. The respondent later received treatment in hospital and physiotherapy. He attended a rehabilitation course in 1982; he left Darwin in 1983.

8 His evidence to the Court when the hearing commenced on 10 December 1984 was that he suffered lower back pain with a painful muscle spasm. This disabled him from doing the sort of work on which he had been engaged by the appellant. He had difficulty in getting up and had used a walking stick for 18 months. He walked although he had pain in his legs, and sometimes stumbled and fell. He considered the pain was getting progressively worse, although some of his days are better than others. He was able to drive a motor vehicle. He was not able to have sexual intercourse very often. He had tried to obtain other work but had trouble standing for long periods, and trouble in bending. His evidence of his day-to-day existence at home was such that it appeared that he could not do any heavy manual work.

9 Her Worship found that the respondent ‘presented in the witness box as a pathetic man hardly able to get himself up and when he did only able to walk with a walking stick. His movements were jerky and somewhat bizarre. Mr Hall attributed this to muscle spasm’.

10 The respondent's account of his injuries when working with the appellant was generally supported by his friend and then immediate supervisor, Mr Peterson. His wife gave evidence of their life together which also supported the account he gave of his disabled condition.

11 Mr Baddeley, an orthopaedic surgeon, had treated the respondent on a number of occasions, commencing 1 December 1981. His evidence was that muscle spasm could not be simulated and its presence indicated that the respondent had suffered a significant injury. He found marked erector spinal spasm and a non-severe spondylolisthesis (a congenital defect of the spine, involving the slipping forward of a vertebra) with a fatigue fracture. Mr Baddeley considered that the respondent's condition had deteriorated between 1977 and September 1983. On the latter occasion he noted that the respondent had increased muscle spasm around the paravertebral muscles, further loss of lumbar lordosis, a painful gait, and that he walked with the use of a walking stick. He considered that the respondent could do only the lightest form of work. He also considered that the respondent's pain had a significant functional aspect as well as being attributable to significant organic lesion. He described the functional aspect as a true involuntary problem of psychiatric origin in which pain was truly felt even though it was not of organic origin. Mr Baddeley was unable to attribute certain marked jerking and unusual movements, which he had noted in his report of 11 December 1984, to organic causes; he believed that they reflected functional problems which had arisen from the underlying and significant organic lesion. Another of the medical witnesses described a ‘functional problem’ as a genuine involuntary problem of psychiatric origin in which the patient genuinely felt pain, even though the pain had no organic origin. In Mr Baddeley's opinion the respondent might be able to return to the work force if he could obtain some relief from his organic lesion; his major disabling problem, however, was the functional element without which he could do some form of sedentary work.

12 Mr Dinning, a neurosurgeon, who had reported on the respondent's condition on 20 September 1983, testified in May 1985 that he was of opinion that the respondent had a physical disability due to the injury he had received at work; and initially testified that the respondent had also developed a genuine hysterical neurosis which was manifested by jerky flexion and extension of his lumbar spine. This could be an intractable condition. The combined results of the two factors was that the respondent was unfit for work, though the individual contribution of the two factors to his overall condition could not be assessed. Mr Dinning considered that the spondylolisthesis would have pre-dated the injury of 1977, and that a muscle spasm on the left side of the spine which he had noted on 20 September 1983 was probably due to organic pathology.

13 During the cross-examination of Mr Dinning in May 1985 the appellant revealed for the first time that the respondent had been secretly filmed on various occasions — 29 and 31 August 1983, 9 and 10 March 1984, and 10 December 1984.

14 Those films had not been put to the respondent or to Mr Baddeley, when they testified in December 1984, nor were they closely cross-examined on the matters depicted in the films. The films were viewed by Mr Dinning later medical witnesses, Mr...