WOOLCOCK v RADFORD EARTHMOVERS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBY P, MAHONEY and McHuGH JJA 23 June 1988, 23 June 1988 [1988] NSWCA 179 WORKERS' COMPENSATION — appeal — necessity for point of law — connection between injury at work and severe pain next day leading to operative removal of testis — whether trial judge (Coleman J) had applied correct statutory test to consider whether incapacity "results from" the work incident — held: pure question of fact — no point of law — appeal dismissed. Azzopardi vy Tasman UEB Industries Limited (1985) 4 NSWLR 139, 153 applied — Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 and Malleys Ltd v Kinkela, unreported, CA, 15 December 1986; (1987) NSWJB 17 referred to. Workers' Compensation Act 1926, s9, s37(4)(a). Compensation Court Act 1984, s32. ORDER Appeal dismissed with costs. Kirby P This is an appeal from Judge Coleman in the Compensation Court in respect of an award which his Honour entered on 25 February 1986 in favour of the respondent employer. The employer is the respondent to the appeal. The notice of appeal originally filed did not raise a question of law. Relevantly, that is the only key which will open the door of this Court to a review of the decision made by Judge Coleman. An amended notice of appeal was filed without objection at the hearing. As presented, the case for the appellant was confined, as necessarily it must be, to the suggestion that Judge Coleman had erred in failing to state the correct test in law for the factual consideration which was presented to him by the case in the Compensation Court. The appellant properly conceded that he could not argue that there was no evidence upon which his Honour could base his decision. The case concerns an injury to the appellant, then aged 26 years, which he claimed occurred on 8 November 1982 at Moomba. In the course of his employment, he was positioning a spring weighing approximately 100 lbs when he suffered pain in his left groin area. The appellant gave further evidence that he had developed excruciating pain in the area of the groin on getting out of bed the following morning. He was subsequently taken by the Royal Flying Doctor Service to Broken Hill Base Hospital. At about 4:30 p.m. on that day he underwent an operation for the removal of the left testis. At the beginning of his reasons for judgment, Judge Coleman said:- "His claim is based on a frank injury at work following (sic) by a continuity of symptoms and gradual deterioration until he developed excruciating and incapacitating pain the following morning." Judge Coleman reviewed the evidence which was given before him by a number of medical practitioners, including Dr G Ormondy, a general surgeon of Adelaide. Dr Ormondy gave evidence on two occasions. His Honour also received a number of medical reports which had been admitted, including those of Drs Edward and Morris. In the course of stating his reasons for judgment, Judge Coleman said:- 2 UNREPORTED JUDGMENTS Considering the various histories referred to above it is obvious from the factual point of view that what happened between 4:30 p.m. on 8th November, 1982 and 6.30/7.00 a.m. on 9th November, 1982 is anything but clear. Indeed the evidence is confused, equivocal and at times even contradictory. However, looking at the whole of the evidence, considering particularly the evidence of the applicant who appeared to be a reasonably honest witness I am satisfied on the balance of probability that the applicant did in fact experience pain in the left groin area shortly before knocking off work on the afternoon of 8 November, 1982. However, I am not satisfied to the extent required that there was a continuity of symptoms from that time through until the following morning. This finding is important and it seems to me fatal to the applicant's claim. At the end of his judgment, Judge Coleman concluded:- However, I have already indicated that whilst I accept that there was on the probabilities an injury in the left groin area sustained on the afternoon of the 8th I cannot find that there was any continuity of symptoms and accordingly I reject the evidence of Dr Ormondy and accept the evidence of Drs Edward and Morris. That being so there will be an award for the respondent. (emphasis added) Counsel for the appellant candidly, and properly, acknowledged the difficulty which he faced in challenging the decision reached by Judge Coleman. This Court has on numerous occasions emphasised the stringency of the test which is applied in appeals from the Compensation Court. That stringency arises by reason of the provisions of s32 of the Compensation Court Act 1984. That section merely continued the provisions formerly contained in s37(4)(a) of the Workers' Compensation Act 1926. The most recent and clearest exposition of the stringent test is that stated by Glass JA, with whom Samuels JA agreed, in Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 153, 154 ff. In a number of other cases members of the Court have expressed the view that, having regard to the importance of the decisions involved for those affected and comparing the position of appeals from the Compensation Court to appeals from other courts subject to the supervision of this Court, some provision might be made by Parliament for appeals on factual questions, perhaps by leave of this Court. However that may be, that is not the present law. The law is as stated in s32 of the Compensation Court Act and as expounded in Azzopardi. The principles in Azzopardi are binding on this Court in the approach which it must take to the present appeal. Counsel for the appellant suggested that in the first of three passages cited above from the reasons for judgment of Judge Coleman there was, as it was said there was in the subsequent passages, evidence of a misstatement by his Honour of the correct test in law which was to be applied by him. That test is as stated in the Workers' Compensation Act. It requires consideration, in every case, of whether the incapacity alleged "results from" the relevant work injury as alleged. It is true that, in the judgment under appeal, there is no reference by Judge Coleman to that statutory formula as such. However, it is not the requirement of the law that the judge should, in every case, express that statutory formula in its terms. It is scarcely likely that a judge in a specialist court and with the experience of Judge Coleman would be unaware of the precise provision of the statute which he is administering and applying virtually every day. This said, it is always possible for error to occur. It is therefore appropriate to consider the three passages complained of by the appellant to see whether they indicate such error. URJ WOOLCOCK v RADFORD EARTHMOVERS PTY LTD (McHugh JA) 3 The first clearly does not. It is simply a record of the way in which the appellant brought his case to Judge Coleman for consideration. Judge Coleman was simply setting out the way in which the claim of the appellant was based. It was so based because the continuity of symptoms there reported was the premise upon which the opinion of the appellant's supporting specialist, Dr Ormondy, was founded. Without the continuity of symptoms, which was the basis of Dr Ormondy's opinion, the basis of that opinion was destroyed. It was therefore imperative, from the way in which the opinion was expressed, for the appellant to establish the continuity of symptoms. Judge Coleman simply recorded that to be the case. Therefore the criticism of the first passage is without merit. So far as the second passage is concerned, it simply records the factual question which had to be resolved. It was a statement of as classic a question of fact for the determination of the trial judge as one could imagine. The continuity of symptoms referred to was, once again, that which was integral to the opinion of Dr Ormondy. So far as the final passage at the conclusion of his Honour's judgment is concerned, the same comment can be made. I do not read that passage, as it was suggested, to be a departure from the statutory test required by the Act. On the contrary, I read it to be an acceptance of the way in which the appellant had presented the case and a consideration of whether, on that basis, the appellant had made out the case which he brought for resolution in the Compensation Court. This conclusion can be tested this way. Had the appellant not established the continuity of symptoms, which was the premise for the opinion of Dr Ormondy, a decision by Judge Coleman in favour of the appellant would have been subject to a challenge by the employer that there was no evidence to sustain such an award. Such a challenge would inevitably have succeeded. Cf Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844; Malleys Ltd v Kinkela, unreported, CA, 15 December 1986; (1987) NSWJB 17. Accordingly, the objections to the judgment of Judge Coleman, when tested by the stringent requirements that limit the intervention of this Court in appeals from the Compensation Court and as stated in Azzopardi, disappear. In my opinion the question before Judge Coleman on 25 February 1986 was purely a question of fact. His Honour concluded it as he did. The conclusion which Judge Coleman reached was certainly open to him on the evidence. Although it is not strictly relevant to my function to say so, on the evidence the conclusion which his Honour reached appears to have been the preferable conclusion in the circumstances. However that may be, the question of which medical opinion he preferred was a question exclusively for Judge Coleman. It is not a matter for review in this Court. Accordingly, the challenge in the appeal is not sustained. The appeal should be dismissed. The appellant must pay the respondent's costs. Mahoney JA I agree. McHugh JA I also agree. KIRBY P: The order of the Court, accordingly, is that the appeal is dismissed. The appellant is to pay the respondent's costs. COUNSEL: Appellant: L M MORRIS QC/C C BRONSON 4 UNREPORTED JUDGMENTS Respondent: R A ADAMS-SMITH SOLICITORS: Appellant; BUCKWORTH & BUCKWORTH (CITY AGENTS LLOYD & 5 LLOYD) Respondent: HUNT & HUNT