if ay CATCHWORDS Workmen's Compensation - appeal from Supreme Court of Northern Territory - whether loss of use of arms was permanent ~- contradictory expert opinions - appellant's case not properly put - relevance of manner in which respondent's case had evolved - question whether appellant should in the circumstances be bound by the manner in which his case was conducted. s.10 Workmen's Compensation Act (N.T.) Edgar Terrence Mapley v. Radial Industries Coram: Keely, Deane and Gallop JJ. At: Darwin On: G9 March , 1982. ra aoe nr eg ee OEY SES NONE Le hee oy Rene RINE TREN sete IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT NO. NTG 23 of 1980 REGISTRY GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA ' BETWEEN: EDGAR TERRENCE MAPLEY Appellant AND: RADIAL INDUSTRIES Respondent ORDERS JUDGES MAKING ORDERS: Keely, Deane and Gallop JJ. WHERE MADE: Darwin " DATE OF ORDER: 4 Moreh 1982 THE COURT ORDERS: 1. THAT the appeal be allowed. 2. THAT the judgment and order of the Supreme Court of the Northern Territory be set aside. uf eee REY TELE ETON, eee AN ew PrN Marareeee meee errr acai Sy JEU re = é THAT the matter be remitted to the Supreme Court of the Northern Territory for a new hearing. THAT the costs of the original hearing in the Supreme Court of the Northern Territory be reserved for the decision of the Judge of the Supreme Court of the Northern Territory who deals with the matter on the re~hearing. THAT the respondent pay to the appellant his costs of the appeal. a a ee all ee ee ee of IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT NO. NTG 23 of 1980 REGISTRY GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA BETWEEN: EDGAR TERRENCE MAPLEY Appellant i RADIAL INDUSTRIES Respondent CORAM: Keely, Deane and Gallop JJ. % Merch, 1982. REASONS FOR JUDGMENT DEANE J: The factual context of this appeal from a decision of the Supreme Court of the Northern Territory (Forster C.J.) appears from the judgments of Keely J. and Gallop J. Those judgments also contain reference to the relevant provisions of the Workmen's Compensation Act of the Territory ("the Act"), to the expert medical evidence which was led, in oral or written form, in the Supreme Court and to the course of proceedings in the Supreme Court and the Workmen's Compensation Tribunal ("the Tribunal"). I shall refrain from repeating these matters except to the extent necessary for meaningful discussion. at df At issue in the appeal is the appellant's entitlement to a lump sum payment pursuant to the provisions of s,10 of the Act. A finding by the Chief Justice to the effect that the appellant had sustained, by accident arising out of or in the course of his employment, a loss of use of his arms for the purposes of his employment as a plant operator was not challenged by the respondent employer on the appeal. The issues involved in the appeal, as it was argued, relate to the conclusion of the Chief Justice that, "in the present state of the evidence" he was "not satisfied on the balance of probabilities that the appellant's loss of use of his arms for the purposes of his employment as a plant Operator, however this be measured, is permanent". The grounds of appeal filed on the appellant's behalf took the traditional form of alleging a list of suggested errors on the part of the trial judge. It emerged on the hearing of the appeal however that the appellant, in truth, could find little to complain of in the Chief Justice's conduct of the proceedings or in the judgment which he gave on the evidence before him. The appellant's real complaint is that his case on the particular matters which underlay the Chief Justice's adverse conclusion on the question whether the loss of use, for relevant purposes, of his arms was permanent, has never been properly put. He did not, on the hearing of the appeal, seek a reversal of the Chief Justice's decision. He sought an order setting that decision aside and remitting the matter to the Supreme Court for a rehearing. uf The expert medical evidence before the Chief Justice took three different forms. There was a number of written reports which had been tendered before the Tribunal. There was the transcript of oral evidence, including the oral evidence of three medical experts, given before the Tribunal. There was oral evidence given before the Supreme Court. The reports and oral evidence which had been tendered or given before the Tribunal do not appear to have been discussed in any detail before the Chief Justice: they were simply included in a bulk tender, made by consent, of all the Material that had been before the Tribunal. The oral medical evidence before the Supreme Court consisted of the evidence of one expert (Dr. Yaksich) who had also given evidence before the Tribunal and of another (Dr. Lowe) who gave evidence for the first time before the Chief Justice. The proceedings before the Tribunal appear to have been conducted on the basis, common to both sides, that any persisting loss, by the appellant, of use of his arms for the purposes of his employment was permanent. Up until the time when the last medical expert, Dr. Lowe, gave his evidence, the proceedings before the Chief Justice were plainly conducted on that basis. As Gallop J. demonstrates in his judgment, that view was at least implicit in the overall medical evidence, in its various forms, which had been led on behalf of the appellant and the respondent up until the time when Dr. Lowe was called. REN IL RE EET TE IL P A TIS TSR LS ETI YE STE ETE Et ETD EN pte mene IS CE RH nT RSET = TH Dr. Lowe, without objection on behalf of the appellant, gave evidence that the appellant's loss of use of his arms was not, in his view, "permanent". He advanced two reasons for that conclusion. The first was that he considered that spontaneous fusion would, over a period of years, alleviate the underlying injury which the appellant had sustained to the intervertebral disc. The second was that he favoured surgical treatment. The suggested surgical treatment was an operation for the inter-body fusion of the cervical vertebrae. While, as has been said, it was implicit in other medical evidence that any persisting loss by the appellant of the use, for relevant purposes, of his arms would not diminish, no other medical expert had given express evidence as to the likelihood of alleviacvion by spontaneous fusion or as to the desirability, or likelihood of success, of the surgical treatment suggested by Dr. Lowe. In particular, no suggestion of these matters had been raised, on behalf of the respondent, in the cross examination or examination of medical witnesses or, as regards the desirability of surgical treatment, in the cross examination of the appellant. It seems to me to be clear that the evidence given by Dr. Lowe raised, for the first time, three questions with '4 which the appellant, who bore the onus of proof in the Supreme Court, was called upon to deal. The first of those — ee Le ER Mp eos Ren IE RE TT a et ida Tk RC eR OPERATE oN ee en eee -5- questions was whether the appellant's loss of use of his arms was likely to be alleviated by spontaneous fusion over a period of years. Dr. Lowe's view, that it was, seems hardly consistent with what was implicit in other medical evidence and was not tested in cross examination on behalf of the appellant. The second question was whether the permanence of any persisting disability should be assessed on the assumption that the appellant would or should undergo surgical treatment for inter-body fusion of the cervical vertebrae (see, generally, Fazlic v. Milingimbi Community Inc., High Court of Australia, 9 February, 1982). Dr. Lowe's evidence on this was somewhat confusing as to whether what he advocated unequivocally was an operation for inter-body fusion or merely a surgical investigation of whether inter-body fusion should be attempted and as to the overall likelihood of success of such surgical investigation or treatment. The complex nature of operative treatment for inter-body fusion of the cervical vertebrae and the likelihood of conflicting medical views as to the advisability of that operation in a particular case are well-known. Dr. Lowe's evidence was quite silent as to the nature of the operation and as to the likelihood of the existence of other medical views as to its advisability. Again, he was not cross examined on these matters. The third question was whether, in the light of Dr. Lowe's evidence that spontaneous fusion was likely to lead to an alleviation of the appellant's persisting loss of use of his arms over a AA REE RIERA FE REI TEAC TE OEP ETERS OE FR FRNA PT TE é -6- period of, to quote Dr. Lowe, "five to ten years" and that surgical treatment which might be successful was available, the appellant's persisting loss of use of his arms was for the purposes of s.10 of the Act, permanent. The transcript of the proceedings in the Supreme Court makes it clear that the Chief Justice was conscious of the difficulties resulting from the manner in which the parties had conducted the matter before him. In a passage which is incompletely recorded in the transcript, his Honour referred to the evidence as to the possibility of spontaneous fusion and indicated a desire to hear further evidence in relation to it. In another incompletely recorded passage in the transcript, his Honour expressly indicated to counsel who then appeared for the appellant that he was favourably disposed to allowing further medical evidence to be called on the appellant's behalf. Counsel for the appellant did not avail himself of the invitation or the opportunity. It should also be mentioned that the transcript indicates that a request had been made by the respondent that the appellant's main medical witness, Dr. Yaksich, be recalled for further cross examination and that it was desired to put to Dr. Yaksich the matters that were raised by Dr. Lowe. Dr. Yaksich was not recalled. If the evidence is to remain in its present unsatisfactory state, I can see no valid ground for overruling the Chief Justice's carefully worded conclusion that "in the present state of the evidence" he "was not satisfied on the balance of probabilities that the appellant's loss of use of his arms for the purposes of his af ~7~ employment as a plant operator, however this be measured, is permanent". The real question involved in the appeal is whether, in all the circumstances, the evidence should be regarded as closed. A reading and rereading of the material before the Supreme Court has persuaded me of the validity of the submission that the appellant's case, on the questions which emerged for the first time in the evidence of Dr. Lowe, was never properly put. Ordinarily, I would have been of the view that, however unfortunate and disturbing that may be, the appellant was pound by the manner in which his case was presented by counsel and by the failure of counsel either to cross examine Dr. Lowe in relation to those questions or to take advantage of the opportunity which had been expressly proffered to him of leading further evidence (see McCormack v. Federal Commissioner of Taxation (1979) 23 A.L.R. 583 at p- 599; Uranerz (Aust) Pty. Ltd. v. Hale (1980) 30 A.L.R. 193 at p. 199). The circumstances of the present case are, however, not ordinary. Consideration of the overall course of the proceedings before the Workmen's Compensation Tribunal and before the Supreme Court indicates that it would be wrong to lay the responsibility for the unsatisfactory state of, the evidence, in relation to the questions raised by Dr. Lowe's evidence, wholly at the door of the appellant or his legal advisers. To a significant extent, the deficiencies in the evidence in the presentation of the appellant's case are to -8- be explained by reference to the manner in which the respondent's case was presented both before the Tribunal and before the Supreme Court. It appears not to have been suggested in the Tribunal that any persisting loss of use of the appellant's arms for the purposes of his employment was other than permanent. It is clear that no suggestion was made that any such loss of use should be seen as other than permanent by reason of the likelihood of spontaneous fusion or the availability of surgical treatment to which the appellant could or should subject himself. No suggestion of these matters was made in cross examination of the appellant or Dr. Yaksich when they gave oral evidence in the appellant's case in the Supreme Court. The first suggestion of these matters came in the evidence of the last witness, Dr. Lowe, in answers which were strictly unresponsive to questions which he was asked. It was unfair to the appellant that the respondent's case should be so conducted. That unfairness was, no doubt, unintentional on the part of those who appeared on behalf of the respondent and, at least in part, the result of changes in the identity of counsel and the fact that Dr. Lowe was an expert called from the south. It is important however in that it does much to explain the failure by counsel, who then appeared for the appellant, either to cross examine Dr. Lowe on the new matters which he had raised or to call or re-call expert evidence to deal with 4 them. rd ~9~ Ultimately, it seems to me that the combination of four considerations governs the outcome of this appeal. I have already referred to three of those considerations. The first is that the appellant's case, on the question of permanence of loss of use, was never properly put in the Supreme Court. The second is that the failure properly to put the appellant's case in the Supreme Court was the result, to a significant extent, of the unfair manner in which the respondent's case evolved in the Supreme Court. The third is that the unsatisfactory nature of the evidence in the Supreme Court was such as to lead to the case being determined not by positive findings of relevant questions of fact but by reference to the onus of proof on the issue of whether the persisting loss of use of the appellant's arms was permanent. The fourth consideration is not truly independent of the first three. It is that it seems to me that, notwithstanding the importance and desirability, from the point of view of both State and litigants, that there be finality in litigation, the overall objectives of justice under the law would, in the present case, be best served by a complete rehearing of the matter in the Supreme Court. In these circumstances, it would, in my view, be wrong to adopt the approach that the appellant should be bound by the manner in which the case was conducted on his behalf and that, regardless of what I see as the reouirements of justice, the evidence must per force remain in its present of -10- State. In all the circumstances of the case, I consider that the judgment and order of the Supreme Court should be set aside and that the matter should be remitted to the Supreme Court for a new hearing. The respondent should pay the appellant's costs of the appeal. The costs of the proceedings in the Supreme Court should be reserved for the decision of the judge of the Supreme Court who deals with the matter on the rehearing. AOS ACS und ihe preceding pe Lcartfy that Unis ¢ oe et true copy of Ihe reasotts for Judgment His Honour Mr, Justice Deane AT: ASSOCIATE 7 mis AMalr [49or p wee and ntti ry Leen Let ne el ae ee a we et et " > ——— > A IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY ) ) ) } No. NTG 23 of 1980 ) ) GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA BETWEEN: EDGAR TERRENCE MAPLEY Appellant AND: RADIAL INDUSTRIES Respondent Coram: KEELY, DEANE AND GALLOP JJ. P 9 March, 1982 REASONS FOR JUDGMENT KEELY J.: On 27 July 1975 Edgar Terrence Mapley (the appellant) suffered perscnal injury by accident arising out of his employment by the respondent. It was common ground that a vehicle being driven in reverse by the appellant collided' with another vehicle and the appellant sustained an injury to his neck. The injury caused pain in the appellant's neck and arms 'and the use of his arms was limited by pain. On 16 August 1977 he applied to the Workmen's Compensation Tribunal (the tribunal) for compensation claiming: ee A er an, PP de ste RCRA Nig gt en Cpene T ' event Nemours cn ee ee Oe . ' "(a) medical and hospital expenses; (b) an allowance pursuant to Section l11(1)(e) of the Workmen's Compensation Ordinance; (c) weekly compensation; (d) lump sum settlement pursuant to Section 10 of the Ordinance." The Workmen's Compensation Ordinance became the Workmen's Compensation Act by virtue of the provisions of s.49(1)(c) of the Interpretation Act and is referred to in these reasons for judgment as the Act. It is noted that s.10 of the Act still refers to "this Ordinance". By its answer dated 18 October 1977 the respondent alleged inter alia that the appellant had "not attempted to have any medical assessment made of his alleged condition since October of 1976", that he had "not produced or attempted to produce to the Respondent any certificates of unfitness for employment since October of 1976" and had refused "to submit himself to medical examination as required by the Respondent". The tribunal heard the claim on 3 May, 20 September and 5 December 1978, on which latter date it dismissed the claim made under s.10 of the Act. In its written reasons for decision it said that the appellant in giving evidence was often vague and imprecise and that, on consideration of the whole of the evidence, it was not satisfied on the balance of probabilities that the claim under s.10 for an amount under the Schedule for - anand AR heed anne ee et ne 3. the loss of use of limbs had been made out. The appellant on 15 December 1978 lodged a notice of appeal to the Supreme Court of the Northern Territory from the determination of the tribunal. The Chief Justice of the Northern Territory originally heard the appeal on 14 September 1979 "upon the basis of the evidence given before the Tribunal and the exhibits tendered". Counsel for the parties told this court that on 26 September 1979 the parties were informed by his Honour that he had decided that the tribunal was wrong in its construction of s.10(5) of the Act and that he would hear further evidence and finally determine the matter. His Honour delivered judgment on 1 October 1980, dismissing the appeal from the tribunal's determination. The present appeal is from that judgment. - _ The reasons for judgment delivered on 1 October 1980 included the following reasons for his Honour's decision of 26 September 1979: "If the Tribunal is saying, as it appears to be, that partial loss of use of the arms due to pain elsewhere in the body, due to their use, is not compensable pursuant to s.10(5) then I think it is incorrect. The words of the subsection are perfectly clear and it is my firm view that if there is partial and permanent loss of the use of the arms, which in themselves are perfectly sound limbs, because of pain caused elsewhere in the body, because of the use of the arms and the condition which gives rise to that pain is caused by an accident arising out of or in the course of employment, then that partial and permanent loss is compensable. If there is a partial loss of use of ee ne ee eet EE ORE EARL Som ae Re 4. the arms due to pain caused by their use, this is, it seems to me, just as much a loss of use of the arms as would be a loss of strength or motor control in the arms themselves. If the Tribunal determined otherwise, I consider that it was wrong as I have said. I decided this as a preliminary point of law and so informed the parties. Appeals from determinations Made under the Workmen's Compensation Act are appeals de novo (see Dare v. Dietrich 26 A.L.R. 18) and I have since heard evidence called by the appellant and the respondent and re-read the evidence given before the Tribunal." The learned Chief Justice said that, because of the pain in the neck and shoulders caused by the use of his arms, "the appellant feels unable to perform many of the functions necessary to his pre-accident employment as a plant operator". His Honour found that the appellant's unfitness to perform his former work arose in two ways: "First, the vibration and neck turning .. causes ~pain in his neck which he cannot bear and, second, the arm movements that are required in operating plant and in some parts of the work of maintaining vehicles cause him so much pain in the neck that he cannot practically perform them." However, his Honour expressed himself as being unable to believe the appellant's evidence suggesting that he was totally and permanently incapacitated for work. Having found that the appellant had suffered an injury f which had caused partial loss of the efficient use of his arms for the purpose of his employment at the date of his injury, eet ne tee ents neat anne 5. namely as a plant operator, the Chief Justice considered the question: "Is this loss permanent or rather has the appellant discharged the onus of proving that it is permanent?". His Honour -stated that the "doctors who gave evidence either before (the Supreme Court) or before the Tribunal or whose certificates were tendered" were not in agreement on that issue. His Honour referred to the evidence of the two doctors who gave oral evidence before him, namely Mr Yaksich (called by the appellant) who considered the appellant to be "permanently disabled with regard to the occupation of the plant operator" and Mr Lowe (called by the respondent) who expressed the opinion that the disability was not permanent. In support of that opinion he gave evidence as to the possibility of spontaneous self-curing of the injury and also that "an operation to fuse cervical interbodies would have a 70% to 80% chance of eliminating the symptoms of pain from which the appellant suffers". His Honour referred to the fact that the possibility of an operation to fuse the cervical interbodies and its likely result were not put to the other surgeons who gave evidence and said that differences of "medical opinion are difficult to resolve particularly when the views of each are not put to the others and when some give oral evidence and others simply tender certificates". The Chief Justice said that, if forced to choose _etween the evidence of Mr Lowe and that of Mr Yaksich, he would prefer the evidence of Mr Lowe. His Honour referred to the evidence of four other doctors (who did not give oral evidence PPT te aN EO rt tT IPT rape eames Seems Hf AE an Re QR SE RP RE TR TE On TTT ree wees t na ere RE 6. before his Honour) and said that "in the present state of the evidence I am not satisfied on the balance of probabilities that the appellant's loss of use of his arms for the purposes of his employment as a plant operator, however this be measured, is permanent", The appellant contended in his notice of appeal that the judgment of the learned Chief Justice "was wrong in fact and in law and against the weight of the evidence" in a number of ways. In ground (a) it was contended that his Honour "erred in finding that the injury was not permanent in and for the purposes cf the Appellant's employment as a Plant Operator". However, as the passage quoted shows, his Honour did not find "that the injury waS not permanent" but said that he was not satisfied on the evidence that the loss of use of the arms was permanent. There is no substance in this ground. I shall deal later with grounds (b) and (c). In ground (d) it was claimed that the "result is unjust and unsatisfactory to the Appellant because the evidence as it related to the permanency of his injury was left incomplete". Mr Pauling, counsel for the appellant in this appeal (who did not represent him before the Chief Justice), did not contend that Mr Lowe's evidence ought to have been given no weight but contended that the matter was left in such an unsatisfactory state that the learned Chief Justice "perhaps of his own motion, should have directed that something more happen". Having regard to the fact a mappa nme erige ne omnes F A a RR SRR ASE ET I a oO ER EE NS EEE dome are tT a - ete a te ae ee ee pone coe ee - ae wa anes "oe 7. that his Honour had expressly given to counsel then appearing for the appellant an opportunity to consider calling further evidence, this ground cannot succeed. The appellant is bound in this appeal by his counsel's election not to call further evidence, and, as he bore the onus of proof as applicant, he cannot now rely upon a contention that the evidence was left incomplete. As Newton J. said in Bulstrode v. Trimble [1970] V.R. 840 at p.848, the court was "fully entitled to decide the case upon the evidence which the parties by their legal advisers chose to place before him: indeed this was his primary function: see Jones v. National Coal Board, [1957] 2 Q.B. 55, at p. 64". Ground (e) was that "His Honour erred in finding that there waS a realistic possibility of spontaneous self-curing". In my view it was open to his Honour to find that there was such a realistic possibility, having regard to the evidence of Mr Lowe that the spontaneous course of the injury is that the patient develops a fusion in five to ten years from the time of injury, that the symptoms go away and it is not permanent - evidence as to which there was no question asked in cross examination. In ground (f) it was contended that his Honour "erred in finding that there was a possibility of amelioration of the appellant's condition by surgery". In dealing with this ground Mr Pauling agreed that the word "probability" should have been used instead of the word "possibility". In my view it was open pee i pape Oe NR A nN gmat tera Rem ne ne RS a of 8. to his Honour to find, on the evidence of Mr Lowe, that there was a probability of the appellant's condition being ameliorated by surgery. However, it does not appear to me that his Honour made sych a finding - which was not necessary in order to decide the question he was considering, namely, whether "the appellant (had) discharged the onus of proving" that the loss was permanent. As to ground (g), Mr Pauling agreed that he could not contend that his Honour was wrong "in finding that the witness Lowe waS more experienced than the witness Yaksich". Grounds (h) and (i) were that his Honour "erred in preferring the evidence of the witness Lowe to the witness Yaksich" and "failed to attach proper or any weight to the fact that the witness Lowe did not examine the Appellant". In support of these two grounds, which were taken together, Mr Pauling sought to rely upon the fact that Mr Lowe had not examined the appellant. Three comments may be made. First, Mr Lowe gave evidence that he had read all of the medical reports which were in evidence before the learned Chief Justice, had assumed "the accuracy of the objective findings of the other doctors" and said that there was "a remarkable consistency between these various examinations". Secondly, Mr Yaksich (upon whose evidence ground (h) is founded) had not examined the appellant since 5 April 1978 - some two years earlier than the day when Mr Lowe gave evidence before his Honour. The medical 9. reports and other evidence before his Honour did not relate to wany medical examination later than that of M1 Johnstone on 1 June 1978. Accordingly, in seeking to discharge the onus of proving that in May 1980 the loss was "permanent", the appellant was relying upon evidence based upon medical examinations carried out no later than 1 June 1978. Thirdly, arrangements had been made by the respondent for the appellant to attend Mr Lowe for examination on 15 April 1980, and had provided to the appellant, through his ' solicitors, airline tickets, an accommodation voucher and $100 for incidental expenses. However, aS Mr Pauling conceded, the appellant later refused to attend for such medical examination. It was common ground that the respondent applied to the learned Chief Justice in chambers for an order that the appellant submit himself for an examination by Mr Lowe. The appellant opposed the application and his Honour held that he had no power to make such an order: it appears from the transcript for the last day of the hearing that his Honour would have made the order had he had the power. Neither ground (h) nor ground (i) of the grounds of appeal has been established in my opinion. There is no substance in ground (j) which is a general ground that his Honour "failed to attach proper or any weight to the other evidence given before him and the Workmen's .f Compensation Tribunal". There remain grounds (b) and (c) which were strongly Ce ied FA eR ae RN ra Ne ee ee a nen, ™ mater ERAS TREATMENT Me Ae ts ee te ee at 10. pressed. They were that his Honour "erred in accepting the evidence from the witness Lowe as to the possible success of an operation when the possibility of the operation had not been put to the other examining Doctors in cross-examination either before the Tribunal or before His Honour" and that the "evidence relating to the possibility of an operation should not have been accepted in the absence of the witness Yaksich having had the opportunity of commenting on it in cross-examination". These grounds relied upon the fact that the respondent had failed to cross examine Dr Yaksich as to the possibility of an operation on the appellant and its likely success - matters upon which Mr Lowe subsequently gave evidence. In fairness to the respondent it should be said that Dr Yaksich gave evidence and was cross examined on 5 February 1980 and that the respondent had not been informed until 4 February 1980 that the hearing was to resume on that day - the matter having been last heard on 14 September 1979, An application by the respondent in chambers for an adjournment was refused but the respondent obtained an adjournment at the end of the appellant's case. The principle relied upon in these two grounds is that set out in Browne v. Dunn (1894) 6 R. 67 (H.L.). I agree entirely, with respect, with the exposition of that principle by Bray C.J. in Karidis v. General Motors-Holdens Pty Ltd [1971] §.A.S.R. 422 at pp.425~6: "The principle merely illustrates an obvious rule of justice and I do not desire to weaken it in any hadt t ASCE STE TET: A eR a eA NOE He NRL RE Pe TI, UES ll. way, but it is necessary to look at the reason underlying it rather than the exact words in which it may from time to time have been expressed. It seems to me that under contemporary practice, when the calling of witnesses in rebuttal is very common, the occasions for the intervention of courts of appeal on this ground may be less frequent. The reason for the principle is obviously that the witness ought to have the opportunity to give what explanation ne can of the matter in question and that he should not be disbelieved, nor should adverse inferences be drawn against him, because of other evidence relating to the topic on which he has been unable to comment. In the present case no application was made to call the appellant or Dr. Chick in rebuttal after the films had been proved by Mrs. Lock. If such an application had been made and refused, or if for any reason it was impracticable for either witness to be called in rebuttal, the matte: would stand differently." Counsel then representing the appellant was expressly offered by the learned Chief Justice an opportunity to call evidence in rebuttal and, after considering the matter over the luncheon adjournment, decided to call no further evidence. Before that adjournment counsel for the respondent had told the court "that the word permanent is now, after Mr Lowe's evidence, very much an issue". In addition the respondent told the appellant's solicitors five days before the last day of the hearing before the Chief Justice-that it wished to cross examine both the appellant and Mr Yaksich but neither was made avajlable for cross examination. An explanation was offered to the Chief Justice from the bar table as to why Mr Yaksich had not been made available but it did not establish that it was impossible 12. for him to be recalled. Further, the appellant did not seek an adjournment to enable him to recall Mr Yaksich or any other doctor to give evidence as to the possibility of the operation suggested by Mr Lowe in his evidence or its likely success. Nor was the applicant recalled - or an adjournment sought to enable him to be called - to give evidence as to whether he would be prepared to undergo the operation. In referring to these matters I am not to be taken as criticising the decisions of the appellant's then counsel. I adopt with respect the view expressed by Bray C.J. in Karidis' Case (supra - at p.426) that: "Advocacy involves a continual series of choices and the factors governing the exercise of any particular choice are not known to the court and it is not for the court to comment on it. But once it is made then, subject to obvious exceptions in appropriate cases, the election is final and the court of appeal cannot undo it." In my view the applicant's counsel in the proceedings before the learned Chief Justice made a "series of choices" which included choosing: 1. to oppose the respondent's application to the' Chief Justice in respect of the appellant's refusal to attend the medical examination by Mr Lowe; 2. not to cross examine Mr Lowe as to his opinion that the appellant's disability was not permanent; 3. not to accede to the respondent's request (made five days a D eee le Me a hd oe a ve See po 1, - _ — 2 weet A ee eye 13. before the last day of hearing) to recall Mr Yaksich; 4. not to accede to the respondent's request to recall the appellant; 5. not to take advantage of the opportunity offered to him by the Chief Justice to call evidence in rebuttal; 6. not to seek an adjournment to consider his position in the light of Mr Lowe's evidence and/or to obtain further medical opinions. I adopt as being apposite' to the conduct of the proceedings in this case the words of Bray C.J. that "the election is final and the court of appeal cannot undo it". This court has been asked to "undo it" notwithstanding the "choices" set out above including the fact that the appellant's counsel decided not to take advantage of the opportunity to call evidence in rebuttal - a decision made after the respondent's counsel had said "that the word permanent is now after Mr Lowe's evidence, very much an issue" and after a period of time permitting careful consideration. I am unable to see any action that the learned Chief Justice should - or could ~ have taken in those circumstances and I am unable to accept the suggestion by the appellant's present counsel that his Honour "should have directed that something more happen". In McCormack v. Federal Commissioner of Taxation (1979) 23 A.L.R. 583 at p.599 and Uranerz (Aust.) Pty Ltd v. Hale if (1980) 30 A.L.R. 193 at p.199 the High Court has reiterated the principle that "it is of great importance in the conduct of ee arn ten ee me a ee ame ef ener et aera ene se Lad me - ee ee ea uf pee eR nh eA de Ee o Been Oo 14, litigation that a litigant should be bound, on appeal, by the in which the proceedings conducted at first See also Rowe v. Australian United Steam Navigation Co, Ltd (1909) 9 C.L.R. 1 per Isaacs J. at p.24, Accordingly, (c) Manner were instance" - in my opinion grounds (b) and of the grounds of appeal should aiso be rejected. In the result the appeal should be dismissed with costs including reserved costs. I certify that this and the thtcen capy of th- ry hesewna: CaaS Hore ar met ow Fe roe preceding promos aro 8 .c Rosso: Avsociate GF Mow (48h, mt ak IN THE FEDERAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT REGISTRY ) No. NTG 23 of 1980 ) GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA BETWEEN: EDGAR TERRENCE MAPLEY Appellant AND: RADIAL INDUSTRIES Respondent ee a A ETI eR LR Coram: Keeley, Deane & Gallop JJ. Date: 4 March, 1982 wer REASONS FOR JUDGMENT GALLOP J.: This is an appeal from a decision of the Supreme Court of the Northern Territory of Australia dismissing an t . ow 6 appeal from the Workmen's Compensation Tribunal of the Territory. The appellant suffered personal injury by accident arising out of his employment by the respondent on 27 July 1975. The injury caused pain in his neck and arms and the use of his arms was limited by pain. On 16 August 1977 he applied to the Workmen's Compensation Tribunal ("the Tribunal") for compensation claiming, inter alia, a lump sum settlement pursuant to s.10 of the Workmen's Compensation Ordinance. Section 10 provides for lump sum compensation for certain scheduled injuries. The Tribunal heard the claim on 3 May, 20 September and 5 December 1978 when it dismissed the claim made under s.10 of the Act. On 15 December 1978 the appellant lodged a notice of appeal to the Supreme Court of the ee nee re ee ee RE, CUT TST EYER RRNA IND FLL Northern Territory from the determination of the Tribunal. No grounds were set out in the Notice of Appeal. That appeal was heard firstly on 14 September 1979 and was ultimately dismissed by the Chief Justice by judgment delivered on 1 October 1980. The appellant appeals to this court from that judgment. It is necessary to examine the conduct of the appeal in the Supreme Court of the Northern Territory for the purposes of determining the present appeal. The application for compensation before the Tribunal took the form of oral evidence from the appellant, Christopher Gordon Spiers (who was an officer of the Department of Employment and Industrial Relations), and a number of medical practitioners, some of whom had treated the appellant and others who had merely examined him for the purpose of giving expert evidence on his application. Certain medical reports were also tendered in evidence When the appeal came on for hearing before the Chief Justice on 14 September 1979 it was conducted in what had been the traditional form of presentation of such appeals under the Workmen's Compensation Act, namely by the use of the record before the Tribunal without further evidence. Counsel for the appellant announced at the commencement of the hearing that the appellant and the respondent were "content to argue the matters today before your Honour on the evidence which was previously before the Tribunal". He went on to outline to the Chief Justice three questions raised in the appeal, which may be described in the 'following terms: ' ene pe ep ER YT SEE TOR OREM NOUS ERO aa Ur SNE IRT er rE TTS SINE eI NR ATE EY TEN-TS POTN Prem mre | F eat OPN Netto pean eee we ae (1) Can an injury to one part of the body give rise to a loss of use within the meaning of s.10 of the Act in another part of the body? (2) If the Tribunal finds that there is a percentage loss of the use of both arms, are the two percentages to be added together or is there some other way in which the percentage loss is to be treated for the purpose of lump sum compensation? (3) What should have been the proper determination of the percentage disability of the appellant on the evidence in the case before the Tribunal? Counsel for the respondent argued that in relation to question (1) set out above, an injury to one part cf the body giving rise to the loss of use of another part of the body is not compensable within the meaning of s.10. In regard to questions (2) and (3) the evidence was not sufficient to discharge the onus of proof which was on the appellant to satisfy the Tribunal on the balance of probabilities. He therefore submitted that the Chief Justice, if satisfied that an injury to one part of the body can give rise to the loss of use of another part of the body, and therefore to a lump sum compensation under s.10, should remit the matter to the Tribunal for further evidence or to hear further evidence himself. In the course of argument the Chief Justice intimated that, subject to further consideration, he had reached the view that the appellant's submissiors on question (1) were correct and posed the question of what he should then do about the calculation of the percentage loss of efficient use of the arms. The respondent argued in this connection that because the appellant's symptoms were mostly subjective the Chief Justice would have to see and uf hear the appellant give evidence, assess his demeanour and credibility, and decide whether his evidence should be accepted. The Chief Justice then intimated that in his view the matter would have to go back to the Tribunal because of the lack of medical evidence assessing the percentage loss of the use of the arms and the need to assess the credibility of the appellant. The respondent submitted that the appellant should fail because on the evidence he had not discharged the onus of proof of a percentage loss of the use of the arms, but ultimately he accepted the position that if the legal point set out above in question (1) was decided against him, there would have to be medical evidence on this matter. The Chief Justice reserved his decision. It does not appear from the transcript of proceedings on 14 September 1979 that the Chief Justice had up to that stage been referred to the decision of the Supreme Court of the Northern Territory in Dare v. Dietrich delivered on 31 July 1978, or to the decision on appeal in the same case handed down by this court on 21 August 1979 and reported at 26 A.L.R. 18. In that matter the Supreme Court held that an appeal to the Supreme Court of the Northern Territory under s.26 of the Workmen's Compensation Ordinance was a hearing de novo. The Federal Court upheld this decision (see in particular the judgment of Deane J. at pp.30-33). The transcript of the proceedings shows that the appeal was resumed on 5 February 1980. Counsel for the parties to the present appeal told the court that on 26 September the parties were informed by his Honour that the Tribunal was wrong in its construction of s.10(5) of the Act and that he would hear further evidence and finally determine the matter. It appears that due to some admin- istrative failure the respondent was not informed of the date for resumption of the hearing of the appeal, namely 5 February 1980, until 4 February 1980. An application in chambers by the respondent for an adjournment was refused. Accordingly, the hearing of the appeal continued on 5 February 1980. On that occasion the appellant gave evidence and was cross-examined by counsel for the respondent. Mr. Yaksich also gave viva voce evidence and was cross-examined by counsel for the respondent. Both witnesses had previously given evidence before the Tribunal and been cross-examined on behalf of the respondent At the conclusion of that evidence the respondent obtained a further adjournment in order to consider whether it would eall any further evidence on the appeal. His Honour is recorded as having said from the bench "it might well be that in view of Mr, Yaksich's evidence now that the thing is capable, even at this rather late stage of settling itself....Well, I mean it seems to me it is. He has given a pretty clear indication of what he thinks the percentage disability is and there is no evidence to the contrary". Counsel for the respondent agreed with his Honour. It seems to me that there was at that stage a mutual acceptance by both parties that at the end of the hearing on 5 February 1980 the legal point had been resolved in favour of the appellant and any evidentiary deficiencies on the subject of percentage loss of use of the arms, which had been adverted to on 14 September 1979 when the appeal was first argued, had been cured. There was also mutual acceptance of the fact that if all the evidence before the Tribunal and the Supreme Court was accepted, the appellant's:loss of the efficient use of his arms in some percentage to be determined was permanent. The appeal was adjourned until 28 May 1980 so as to 'hive the respondent an opportunity to consider whether the matter was capable of being settled and its position generally. The hearing resumed again on 28 May 1980. Counsel for the respondent then submitted that the appellant had never particular- ised the way in which his claim for lump sum compensation under s.10 of the Act, as it then stood was framed. It is necessary to set out the terms of s.10(1), s.10(1A) and s.10(5) prior to the amendments made by Act No. 77 of 1978. "10.(1) Subject to this Ordinance, where a workman sustains, by accident arising out of or in the course of his employment, any of the injuries specified in Part I of the Third Schedule, the compensation payable shall when the injury results in incapacity other than total an permanent incapacity for work be, in addition to any other compensation payable under this Ordinance, the amount of 25,000 dollars. (1A) Subject to this Ordinance, where a workman sustains, by accident arising out of or in the course of his employment, any of the injuries specified in the first column of Part II of the Third Schedule, the compensation payable shall when the injury results in incapacity other than total and permanent incapacity for work e, in addition to any other compensation payable under this Ordinance, the amount equal to such percentage of the amount specified in sub-section (1) as is specified in the second column of that Part opposite the specification of the injury in the first column. (5) Where a workman sustains, by accident arising out of or in the course of his employment, an injury which causes partial and permanent loss of the efficient use of a part of the body specified in the Third Schedule in and for the purposes of his employment at the date of the injury, there shall be payable an amount of compensation equivalent to such percentage of the amount of compensation payable under this section in respect of the loss of that part as is equal to the . percentage of the diminution of the efficient use of that part." Subsections (1) and (1A) were amended by Act No. 77 of 1978 by wz the deletion of the words underlined above. eee ae it ia Seeeteecaee teste erect ace meet meyers to arial $TYPE ET TERE DT NRE IT TE LSE EIGER TAT POT ORME Counsel for the respondent intimated that the respondent now wished to dispute the Tribunal's finding that the appellant was partially incapacitated for work. He submitted that on the whole of the evidence, including the evidence of the unavailability of suitable employment for the appellant, the appellant was totally and permanently incapacitated for work and therefore not entitled to any compensation under s.10(1) or s.10(1A). as the legislation then stood. He applied to file a cross-appeal so as to raise this issue. This departure from the earlier conduct of the respondent's case on appeal was not objected to by the appellant. The Chief Justice ruled that it was not necessary to file a cross-appeal in order to contest the finding of partial incapacity. When the ruling had been given, counsel for the respondent then proceeded to submit that the only finding open to the Chief Justice was that the appellant was totally and permanertly incapacitated for the purpose of his employment, and reminded his Honour that the medical evidence gave no hope of any cure or treatment. His Honour, having indicated that he accepted the submission that on the evidence the appellant was totally and permanently incapacitated for work, invited further submissions on the state of the appeal thus far. Counsel for the respondent then submitted that on the evidence of Mr. Yaksich the appellant had suffered what he described as "100% loss of function of the arms for the purpose of re- employment" and that therefore the appellant, being totally and permanently incapacitated for work, was not entitled to any lump sum compensation under s,10. His Honour seems to have accepted the proposition that if the appellant was totally and permanently incapacitated for work he did not qualify under s.10(1) or s.10(1A) He said that, if the factual situation to support that proposition was established on the evidence, that would be the end of the appeal. om eee te et Mi Berta at a De oe aia: ol ete Nae Ree aed eran em " werrewrune esr ae ee et eee een ceed tener reece er amare arrgie This statement was readily accepted by counsel for the respondent. ' His Honour then said that, if it was not resolved in the respondent's favour, the respondent may wish to exercise the right reserved on a previous occasion "to call such evidence as you might want to to fix the degree of incapacity of the arms". Counsel for the respondent accepted that proposition. Counsel for the appellant submitted that on the evidence the appellant was not totally incapacitated for work although he had suffered some partial and permanent loss of the efficient use of his arms in and for the purposes of his employment. His Honour thereupon said that that issue would have to be resolved and each party would have to have the opportunity of calling, particularly the respondent, "such evidence as he wishes to to deal with that matter and I suppose on a contingency basis to deal with the matter of the percentage loss of the use of the arms". Counsel for the respondent sought an adjournment to procure evidence concerning the readily available labour market which he submitted was relevant to the issue whether the appellant was totally and permanently incapacitated. The adjournment was granted for that purpose and at that time counsel for the respondent intimated that he had a medical witness available, but sought some short time to have a consultation with the witness before calling him to give evidence. A short adjournment was granted. On resumption, the respondent relied on the evidence already given by the witness Spiers before the Tribunal concerning the availability of work on the general labour market. His Honour accepted the evidence with- out objection as evidence before him. He had already done that anyway, when the appeal first came on for hearing before him on 14 September 1979, Before calling the medical witness, counsel for the respondent, relying on the evidence of the witness Spiers, 6 OA RRR RRC eT Dee men" en eet Aare Pr tink te - repeated his submission that the appellant was totally and permanently incapacitated for work. He did not outline the evidence which was to be given by the medical witness or raise any issue that the loss of the efficient use of the appellant's arms was other than a permanent loss. It was implicit in the whole of the conduct of the respondent's case to this point that the appellant had established at least partial and permanent loss of the efficient use of his arms in and for the purposes of his employment at the date of the injury. The medical witness called by the respondent was Mr. R.C.W. Lowe. Mr. Lowe introduced into the case a prognosis which had not been directly adverted to in any of the evidence thus far. He -opined that the appellant, although totally disabled for the work he was doing prior to the accident, was not totally incapacitated. He expressed the view that the appellant had suffered an actual physical injury to the intervertebral disc and that this condition could be ameliorated in the short term by an operation to fuse the cervical vertebrae and in the long term by a process of self- curing which may take 5 to 10 years from the time of injury. He expressed the opinion that therefore the appellant's loss of efficient use of his arms in and for the purposes of his employment was not permanent. This assertion had never been put to any of the previous medical witnesses and Mr. Lowe was not cross-examined on the material which had previously gone into evidence before the appellate judge. The foregoing represents a short precis of Mr. Lowe's ro ae . . . evidence, but it is convenient to set out the main passage of his evidence in chief to indicate the way in which the case was being 4 ae emer ST RS TET VT LM PRR TE PEAR A NE EI RET ET TRE a EP a MA LTE L ITY ALS PARAS CERISE TRPY TT PTI SE MOTT AEN 10. conducted by the respondent at that stage. After some evidence of his qualifications and the history relied upon, the following passage is recorded: "As a result of reading those reports with the transcipt, are you able to reach any conclusion concerning loss of function in this man's arm for the purpose of his employment at the time when the accident occurred?---At the time since the accident occurred? During the period since the accident occurred? Yes - have you been able to put that in percentage terms of loss of function for the purposes of the employment he was engaged in at the time of the accident?---I find it impossible from a medical point of view, to express such a disability as a percentage and I have always taken the view that it was never the intention of the Workers Compensation Act to expect a provision of a percentage for a disability of this kind which is not directly involving the limb or an appurtenance of it. HIS HONOUR: Unhappily that has been decided against you by me. Mr. Lowe?---Yes, Your Honour, I am just expressing that. You do not like it - that is alright, you do not have to like it. MR. McCORMACK. You have seen the opinion of ~ Mr. Yaksich to the effect that this man is totally disabled for the purposes of the pre-accident employment because it appears .. ---Yes, I would agree with Mr. Yaksich's opinion, that he is totally disabled for the work he was doing prior to the accident. I do not think anybody could contend that he is totally disabled. I am looked at this from a medical point of view - a lay point of view, not in terms of the wording of the Act. Apart from Mr. Mapley being, as you say, being totally disabled for doing that work, could you express an opinion about the arms, Mr. Mapley's arms specifically?---One could only express an opinion as to the use of his a arms but first of all one should say that one is asked to express that opinion as to total or partial and permanent incapacity. peers Jeo [EL FORI MENG OLE ENE eER R TER EEN RR PLP EET EO bert meneneard reerey ath Bien eee te ba Ay nea sey tate af 11. That is for the purposes of employment?---For the purposes of employment. Now, I find considerable reservations about the word permanently, because I consider that the type of disability this man has is in the long run spontaneously self curing, and in the short run, capable of considerable amelioration by surgery. Would you perhaps give up some details as to both the short and the long term?---Well, as I read the medical reports there has been a progression in his condition, or was a progression in his condition in the early stages. From simple pain in his neck to pain in the neck extending into the arms and accompanied by tinglings and numbness in the arms, particularly on the left side. And although this does not appear in the early medical reports, it does not appear I don't think in any of the medical reports that I have referred to, it comes out in the plaintiff's evidence that he gave before this court. He claims that he began to have these pains and sensations in botk arms within a month, I think, of the accident. Now, that therefore takes his injury out of the category of what is commonly known as a whiplash injury an injury where the damage is done at the time of the impact, the motion of the head, and there should be no progression. I would suggest that he, in fact, sustained an actual physical injury to the intervertabral disc which was shown to be pathological already, everybody agrees, prior to the accident, that that disc would be vulnerable to injury from whiplash type violence. And if he were presented to me as a patient on the basis of what I know about him, what I have read about him, I would seriously be considering investigating his neck and with a view to performing an interbody fusion of the cervical vertebrae. A measure which should have a fairly good chance of eliminating a large part of his pain. And what about the ...?---The relevance, of course, of that, is to the word permanently. Yes?--~-I do not believe that this is a permanent Yes, Yes, disability. of course ...?---Secondly, even if the condition is left alom , the spontaneous course of it is that the patient develops a fusion in the long term, over a period of years. that was the spontaneous aspect that you referred to?---Yes, that is right, and it may take five to 10 years from the time of injury but eventually the symptoms go away. So it is not permanent." Nee teen ete WIPE 1 ATR TL eT SUE qeme em einy ea erie terme Pe te , : meets Ae RAY eT OR TeTnE REIN, "88 Karten em cee ee alee ee are ont nee oe It is to be noted that the question to which the witness responded by firstly giving his legal opinion about the meaning of theWorkmen's Compensation Act and then by his opinion that the appellant's loss of function was not permanent was the second question in the passage set out above. It was that question that he was brought back to later on when he was specifically asked about the arms. In that sense the answers were not responsive te the question. Furthermore, they were outside the scope of the matters which both counsel and the court understood to arise for determination on the appeal. At the end of his evidence, counsel for the respcndent sought a further adjournment so as to consider whether he would call two other medical witnesses who had already given evidence. He then said to the court, "Your Honour will obviously appreciate that the word 'permanent' is now, after Mr. Lowe's evidence, very much an issue". The Chief Justice said in reply, "I thought you might be a bit disappointed", Obviously his Honour was adverting to the issue of fact previously raised by the respondent that the appellant was totally and permanently incapacitated and therefore not qualified for compensation under s.10(1). Before granting the adjournment, his Honour offered the appellant the opportunity to eall any further evidence, and on resumption that offer was declined. At the same time, counsel for the respondent told his Honour that he had wanted to cross-examine Mr. Yaksich on the matters raised by Mr. Lowe and that he had requested the legal advisers for the appellant to arrange for the witness' attendance. The respondent PP & P did not apply for an adjournment until such time as Mr. Yaksich was available to be further cross-examined. ng ee PF IT RET RR TO ARR ELT ET LAAT AE NN a I ape aero ror a oR Po Leanna rnrmerernne reser aan re Re EE TET TUN TD ' crt sin ee) erat In his reasons for judgment delivered on 1 October 1980 his Honour dismissed the appeal from the Tribunal's determination. I have had the benefit of reading the judgment of Keely J. in draft form wherein he sets out relevant parts of the reasons for judgment. It is unnecessary to repeat what has been said, it being sufficient to observe that the Chief Justice accepted the evidence of Mr. Lowe and said that on the state of the evidence he was not satisfied on the balance of probabilities that the appellant's loss of the use of his arms for the purposes of his employment as a plant operator was permanent. In his review of the evidence, his Honour adverted to the fact that the doctors who gave evidence either before the Supreme Court or the Tribunal ee ene ELT RRR REE Am He RECO. Penn Ryennnem Sent ent or whose certificates were tendered, were not in agreement on the issue of whether the appellant's loss was permanent. He adverted to the evidence of certain medical witnesses and compared their evidence with that of Mr, Lowe. In my view, his Honour has failed to appreciate the full extent of the evidence of the medical witnesses except Mr. Lowe. Mr. Yaksich made a report to the appellant's solicitors on 6 April 1978 in which he expressed the view that at that stage the appellant was permanently disabled with regard to his occupation as a plant operator and would not be able to return to that work. When he gave evidence before the Tribunal on 20 September 1978 he had examined the appellant twice, on 21 October 1976 and 5 April Pee eee eet 1978. He said in evidence that the appellant's condition was stable and he did not think there was going to be any further improvement, af but it was likely that there would be some further degenerative fu a Ree ne RE HU Trae net change in his neck, When he gave evidence before the Supreme Court on 5 February 1980 he had not examined the appellant again since 5 April 1978. He said that between his two examinations there had been no change and his x-ray appearances also remained unchanged. He said that the appellant was totally unfit for work as a plant operator and that there was no chance of his condition improving. In cross-examination he said that this type of injury does improve and get worse and that he did not think that the appellant's pain was going to decrease. He expressed his loss of use of his limbs as 20% in each limb in and for his employment as a plant operator. As mentioned earlier, there was no cross-examination of Mr. Yaksich about whether the condition was permanent or not. It was implicit from his evidence as a whole that in his opinion the condition was permanent and indeed was likely to deteriorate. He was not asked about a fusion operation. It was after Mr. Yaksich's evidence that the Chief Justice remarked that the case was capable of " settlement at that stage having regard to the way it had been conducted and the clear expression of the percentage disability by the witness. Mr. Bromwich had furnished a report on 2 May 1978 which was in evidence and in which he expressed the view that the appellant was not and was unlikely ever to be fit for the duties of a plant operator and that the condition, though not progressive at that time, could well do so in the future. In his evidence before the Tribunal he said that he had examined the appellant on 2 May 1978. He adhered to the contents of his report in his evidence in chief. + P P : in cross~examination he said that the appellant was no longer fit ' it iu NRE SIR SET TERRE RENTS OTE SIT INTUTE ORD A NF Sine ERLE RD SEER If ATR EV ET pe mente Sen Ne genre cena . 15. to work as a plant operator and that his underlying condition would not get any better and he would not expect any great rate of change. There was no cross-examination of Mr. Bromwich to suggest that the condition was not permanent. It was implicit in all of his evidence that the condition was permanent and there was a prospect of progressive deterioration. Mr. Johnston's report of 4 June 1978 was in evidence. When he gave evidence before the Tribunal he said that he had examined the appellant on 23 December 1975 and 1 June 1978. He said the appellant was suffering from a degenerative disease of the cervical spine and that he could no longer take a job involving heavy work or plant operation. It was implicit in Mr. Johnston's evidence that the condition was permanent and there was no cross-examination. Mr. P.A. Hefner, Orthopaedic Surgeon, was not called to give evidence, but his report of 15 November 1977 was in evidence. On examination of the appellant on 14 November 1977 he concluded that the appellant was permanently and totally disabled from the point of view of heavy, manual work. Mr. Hilton M. Selvey did not give evidence, but his report of 15 October 1975 was in evidence. He concluded that the appellant's accident aggravated an existing arthritic condition and that the appellant was unable to do heavy work at that time. He said that the prognosis was uncertain. There was, therefore, a good deal of evidence that the appellant was permanertly disabled and in the context of this case, this means that the loss of the efficient use of his arms in and f for the purposes of his employment was permanent. APRN RM uae Ie ee mes ewe e ' enn ee ain esine Mme eenenmnmiantl 16. In Rolfe v. Metropolitan Meat Industry Board (1958) W.C.R. 'permanent ' 135, Wall J. adverted to the dictionary meaning of as given in the Shorter Oxford English Dictionary, i.e. "lasting or designed to last indefinitely without change; enduring; persistent: opp. to temporary". He went on to say this meaning falls short of the notion of a perpetual state of affairs and that, whilst what is permanent may continue for a time, it need not necessarily do so. This meaning was accepted by Stanley J. in Cowles v. Tropicana Fruit Juices (1974) 41 §.A.I.R. 1416 at 1419, and by Gibson J. in Eyeington v. Western Pastoral Company (1975) W.C.R, 242 at 243. In Re Panke, the Administrative Appeals Tribunal had to consider the meaning of the words "permanently incapacitated for work" appearing in s.23 of the Social Services Act 1947. The Tribunal said: "'permanently incapacitated' in this section is used in contradistinction to 'temporary incapacity' in s.108 of the Act dealing with the qualifications for sickness benefit. Consequently with the ~-ordinary meaning of the words 'permanent' and 'temporary', we think that permanent incapacity must be taken to refer to an incapacity which is likely to last indefinitely as opposed to one which is likely to last only for a time." That meaning has been adhered to by the Tribunal in Webb v. The Director-General of Social Services, and Robertson v. The Director~ General of Social Services, further decisions of the Tribunal, both delivered on 27 November 1981. In this type of legislation "permanent" refers to something likely to last indefinitely as opposed to something that is likely to last only for a time. Tt does not appear that the Chief Justice was referred to any authorities on the meaning of the word ! a "permanent" in comparable legislation, and further, that his Honour may have applied the notion of a perpetual state of affairs rather than the ordinary meaning of lasting indefinitely, enduring or persisting. Reverting to the conduct of the respondent's case, the appellant had no notice that Mr. Lowe would introduce into the case an assertion that the appellant's loss of use of his arms was not permanent, a matter which had been mutually accepted until that time in the hearing of the appeal. If counsel for the respondent had given some notice by way of opening or otherwise that he proposed to lead evidence tending to show that the appellant's loss of the use of his arms was not permanent, the appellant could have obtained a ruling from the court whether in the maintenance of fair play the respondent would be bound by the course it had deliberately adopted when the appeal commenced on 14 September 1979 and on the resumed hearing on 5 February 1980. In Rowe v, Australian United Steam Navigation Co. Ltd. (1909) 9 C.L.R. 1 at 24, Isaacs J. adverted to the requirement that parties must be bound by the course they deliberately adopt at the trial. He referred to Lord Halsbury's words in Browne v. Dunn (6 R. 67 at p.75): "My Lords, I cannot but think that this case, although the amount involved is small, raises very important questions indeed. Amongst other questions, I think it raises a question as to the conduct of the trial itself, and the position in which people are placed, when, apart altogether from the actual issues raised by the written pleadings, the conduct of the parties has been such as to leave one or more questions to the jury, and those questions being determined, they come afterwards and strive to raise totally different questions, because, upon the evidence, it might have been open to the parties to raise those other questions. My Lords, it is one of the most familiar principles in the conduct of causes at nisi prius, that if you take one thing as the question to be determined by the jury, if pacers a SR eee at tneemereninine s1tireee Ae erg AR RE RSI ERNE NNT PESOS ETIO RSE ié 18. and apply yourself to that one thing, no Court would afterwards permit you to raise any other question. It would be intolerable, and it would lead to incessant litigation, if the rule were otherwise. I think Dr. Blake Odgers has, with great candour, produced the authority of Martin v. Great Northern Railway (16 C.B.,179) which lays down what appears to me to be a very whole- some and sensible rule, namely, that you cannot 'take advantage afterwards of what was open to you on the pleadings, and what was open to you on the evidence, if you have deliberately elected to fight another question, and have fought it, and have been beaten upon it." The principle has been reiterated by the High Court in McCormack v. Federal Commissioner of Taxation (1979) 23 A.L.R. 583 at 599, and Uranerz (Aust.) Pty. Ltd. v. Hale (1980) 30 A.L.R. 193 at 199. Counsel for the appellant in this appeal contended that the question of whether the appellant's loss was permanent was left in such an unsatisfactory state that the Chief Justice should have given some directions which would have enabled the court properly to determine that issue. In my view, the respondent should have been bound by the course deliberately adopted by it up to the time when Mr. Lowe gave evidence, namely that the appellant's loss was accepted as permanent but the degree of loss had to be determined by evidence. It was submitted by counsel for the respondent in the present appeal that his Honour had expressly given counsel then appearing for the appellant an opportunity to call evidence in rebuttal. That is undoubtedly true. But for the reasons indicated the very issue upon which the appellant failed before the Supreme Court has never been properly litigated. In my view the Chief Justice should not have determined the matter without more evidence. Mr. Yaksich has never been "properly evaluated as a witness" (McCormack v. Federal Commissioner of Taxation (supra) per Barwick C.J. 587 & 589), notwithstanding that he gave evidence on oath twice and was cross- examined twice by counsel for the respondent; nor has a \ . 19, * a Mr. Lowe. "The truth is that the matter has never properly been tried" (per Barwick C.J. at 590). On the hearing of the appeal in the Supreme Court, counsel for the appellant misunderstood or misapprehended the course of the litigation and the change in direction at the time when the Chief Justice gave him the opportunity to call evidence in rebuttal after Mr. Lowe had given evidence. He should have called Mr. Yaksich to give evidence in rebuttal. It appears from the discussion on the final day that there were some practical difficulties in getting the doctor back to court. The appellant's solicitors communicated with Mr. Yaksich's wife following a request that he attend for cross-examination. They were advised by her on 26 May 1980 that she would ask the doctor to telephone. He did so, but said that all his records were somewhere between Darwin and Brisbane, and counsel proffered that explanation for the doctor not being there. It was common ground that the doctor was leaving Darwin that week permanently. Indeed those facts had some influence on the decision of counsel for the appellant not to call Mr. Yaksich in rebuttal. It is not necessary to discuss the various grounds of appeal. I desire to add only a few comments about the fact that Mr. Lowe had not examined the appellant prior to giving evidence. It was common ground that arrangements and all proper provision had been made for the appellant to be medically examined by Mr. Lowe. He declined to be examined. It appears that an application was made to the Chief Justice in chambers for an order that the appellanc a submit himself to a medical examination. His Honour held that he had no power to make such an order. It certainly appears from the transcript that his Honour was of the view that if he had had the fy ak f power to order the appellant to submit to a medical examination he would have made the order, and that the appellant was being unreasonable in his refusal. But he did not determine the application on the merits. For myself I would not be prepared to conclude, for the reasons which were discussed before the Chief Justice, that the appellant was in fact unreasonable. It is not appropriate for the respondent now to complain in this respect. It was paying weekly compensation to the appellant at the date of refusal. If the respondent contended that the appellant was being unreasonable in refusing the medical examination it could have sought an adjournment and a stay of the appeal until such time as the appellant reasonably submitted himself to medical examination by Mr. Lowe. In addition, or alternatively, it could have suspended the weekly payments of compensation under the Act pursuant to paragraph (9) of the Second Schedule to the Act. The respondent did not adopt either course. Court for further hearing. I certify that this ani tag '9 | preceding naces ave ' Aw > 2775" of the Recisors for Judgmout Levi. or his honour Mr. Justice GALLOP Associate Dated: 9/3 ey _ I would allow the appeal and remit the matter to the Supreme Da ee pe Re EN AEE ENR ON RIT NRE RPT ERR RL Pum FM AR NRE LET I Nee