GLEN REES T/as GLYNMAR PASTORAL CO v WALKER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and MAHONEY JJA 27 July, 13 December 1988, 13 December 1988 [1988] NSWCA 127 WORKERS' COMPENSATION — multiple injuries — cause of incapacity — whether any evidence of incapacity resulting from injury with one or both employers — whether evidence to support the award against one employer — status of the evidence contained in the medical reports — held: (Samuels JA, Kirby P concurring; Mahoney JA dissenting) No evidence to sustain award against one employer — award against that employer therefore disclosed an error of law — appeal allowed. JUDGES — reasons — duty to give — equal apportionment — Workers' Compensation Act 1926, s7A — judge finds liability in both of two employers alleged to have injured worker — apportions liability equally — no reasons given for equal apportionment — whether reasons required — discretion expressed in very general terms — basis of duty to state reasons — held (Kirby P; Samuels JA not deciding, Mahoney JA contra) The trial judge merely stated apportionment — gave no reasons — failure to give reasons, however briefly, is error of law. Pettit vy Dunkley [1971] 1 NSWLR 376 Soulemezis vy Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 considered. Compensation Court Act 1984 s32. Workers' Compensation Act 1926, s7A. ORDERS (By majority) 1. Appeal allowed: 2. Award of Judge Moroney dated 13 August 1988 by which the appellant was required to pay compensation to the second respondent, set aside; and 3. The first respondent to pay the appellant's costs of the appeal, but to have if so qualified a certificate under the Suitors' Fund Act 1951. Samuels JA This in my opinion is one of the rare cases in which an appeal fromthe Compensation Court based upon the asserted absence of evidence is soundly conceived. The worker obtained an award for compensation against two employers whom I will call Walker and Rees. He had worked for Walker in 1980 when, the learned judge was satisfied, he had suffered a particular accident which led to some trouble with his low back. He continued working for Walker, suffering symptoms, until June 1981 when he went to work for Rees. In March 1982 he left Rees for no medical reasons, I interpolate, and returned to work for Walker. In late 1982 the symptoms of pain and discomfort increased, he developed sciatic pain which he had not had before, at least not to that extent, and in March 1983 he underwent a myelogram followed by surgery. The award was for a period from March to October 1983 and the learned judge, Judge Moroney, ordered that it be borne by the employers equally. Rees has appealed on the footing, firstly, that there was no evidence upon which the learned judge could have found that any employment incident in the service of Rees caused or contributed to the incapacity for which compensation 2 UNREPORTED JUDGMENTS was awarded. Secondly, in addition he complains of the basis of the apportionment, and, thirdly, that it was defective because no reasons were given to support it. In my opinion it is the first of these three grounds which succeeds and I need not therefore consider the second and third. The worker's own evidence established the injury of 1980, the continued symptomatology and, most importantly, the very arduous nature of the work which he performed while working for Walker. He describes it in this way: Q. Do they comprise altogether about four and a half thousand acres? A. Yes. Q. First of all, did he keep at the time about 2000 crossbred ewes on the property? A. Yes. We ran a total of 7000 sheep and seven to eight hundred cattle, 2000 of the ewes were used for breeding crossbred lambs and the rest were Merino, breeding merinos. Q. What did your duties involve you doing as overseer as far as the sheep were concerned? A. All stock work, looking after stock, drafting of fat lambs for market, picking them out, lifting them out, all that type of work. Q. You said there were some 700-800 cattle. What sort of cattle were they? A. All Hereford Cattle. A lot of the time I worked there I worked by myself. Q. What did you have to do in relation to the Hereford cattle? A. Just mainly drenching. You have to be in the pens with the cattle drenching them, throwing calves and castrating and all that sort of thing. Q. Was there also heat being grown on the property? A. I am not sure. We did grow wheat at different stages. Q. In any event did your duties involve any storing and taking delivery? A. General farming, yes. Q. Did that involve you in lifting bags of various kinds of farm produce? A. Yes. We did a farming programme every year on barley which involved sowing superphosphate, lifting bags of that of 110 Ib and the same with lifting and dragging oats and using it. Q. Did you spend a lot of time on horseback? A. Yes. It was motor bike and horseback. Q. You also spent a considerable amount of time riding motor bikes? A. Yes. Q. In fact When you were riding motor bikes around properties like that did you have falls A. Yes, you do. Q. How frequently? A. I don't know how frequently but it is very hilly country and running it most of the time as a one-man operation you had to cover a lot of country, 4000 miles on motor bike. You have a lot of accidents like that. Q. Did you do fencing work? A. Yes, fencing work, digging postholes, fencing. Q. Did that involve driving the posts in? A. Lifting a wooden post mainly. Q. At the time you started that work and for a bout a year after that did your back cause you any problems A. Not that I can remember causing me any problems. He described the injury in 1980, as I have said, and then dealt with his departure from Walker's employment to that of Rees. I might add that while working for Walker he had consulted a chiropractor, a Mr Simpson, in Young and the dates of attendances upon Mr Simpson were provided from his records as support for what the worker had said about that treatment. Then he dealt with the work that he did when he went to work for Rees and he was asked: Q. What sort Of work Were you doing while you were there? A. Some farming but just general stock work. It was mainly setting up the property, buying in the stock and all that sort of thing. Q. How did that compare from the point of view of the effort an strain involved with the work on Mr Walker's property? A. It was nowhere near as much. URJ GLEN REES T/as GLYNMAR PASTORAL CO v WALKER (Samuels JA) 3 Q. Do you remember having any problems with your back while you were there? A. I think I had to go to the chiropractor twice in my time there. Reference to the evidence of attendances upon the chiropractor reveals that in that recollection the worker was in error. The record does not show any attendance between June 1981 and March 1982. Counsel for Walker says nonetheless that that may be taken to be some evidence that the worker recollected that he had some symptoms while working for Rees but for my own part I do not think that this incorrect statement can be employed for that evidentiary purpose. As far as the worker's evidence is concerned, there is nothing to suggest that he had any problems while working for Rees. Indeed, the condition of his back which, as the medical evidence suggested, had been damaged by the 1980 accident, was quiescent during the period between June 1981 and March 1982. All the medical evidence was called in the worker's case and it is upon this that the learned judge appears to have relied. Judge Moroney concluded, without going into any detail, that it was - clearly the case that all of those doctors in one way or another said that the necessity for surgery and the incapacity for work between March and October of 1983 resulted from the nature and conditions of the employment with both respondents to which I referred and the specific injury. That is to say, his Honour took the evidence, that is the medical evidence, to assert that it was the cumulative effect, I suppose, of work done for both Walker and Rees which led to the ultimate physical breakdown and the operation and, of course, the incapacity. Hence his Honour took no account, or I think more probably overlooked, the clear distinction in the evidence which is made between the nature of the work performed for Walker and the nature of that done for Rees. The doctors to whom the learned Judge referred were Dr Voon, Dr Robson, Dr Newcombe and Dr Danta. In my view, far from taking a general and undifferentiated view of the nature of the two employments, the doctors were specifically asked to make assumptions which recognised that there was a difference. For example, first of all Dr Newcombe was asked in chief by counsel for the worker a question designed to show a link between work and incapacity Which is plainly based upon the worker's description of what he did for Walker. It does not, it appears to me, pick up the description of work for Rees. Then again Dr Robson in chief to counsel for the worker said first that it was in late 1982 or early 1983 that the worker actually ruptured the disc and then he was asked to assume an hypothetical work history with the most significant rider that the work described was to be regarded as having taken place from 1979 to January 1983 "with a nine months break in the middle". Hence the materials for medical judgment put in that question excluded the period of employment with Rees and cannot therefore be taken as expressing any view about the contribution which that work made to the ultimate incapacity. Much the same can be said of the evidence of Dr Danta in chief who was also asked to make assumptions about work from the early part of 1979 to the beginning of 1983 "with a nine months break during which he did some lighter work." Later in his evidence there is a passage upon which counsel for Walker places a great deal of reliance in that Dr Danta agreed that he had been told that the recurrence of symptoms was "in early 1982". Later Dr Danta said, "He told me 4 UNREPORTED JUDGMENTS in 1982, he did not give a date". This is, of course, imprecise, but nonetheless is a matter of fact to be evaluated by the learned trial judge and not by us. Although in certain circumstances, despite Mr Harrington's stark rejection of the principle, I think that matters given as part of the history can be regarded as admissions as opposed to those portions of the history which are self serving. I do not think that what the doctor said to Dr Danta in this respect should be so regarded and it was not employed in that way evidently by the learned trial judge. I do not think that it is necessary to traverse the evidence at any greater length or detail than I have done. In short, in my view there is no warrant for concluding that the doctors opinions were to the effect that the ultimate incapacity must be laid at the door of the whole of the stock or station work in which the worker was engaged say, from early 1979 until January 1983. Indeed, their opinions were sought on the footing that it was the work done for Walker and not for Rees which was responsible and I see nothing in the cross examination which is capable of founding a contrary view. If I may say so with respect I think the learned Judge failed to note this distinction and in my opinion there was no evidence which could sustain the award against Rees which was ultimately made. Accordingly I would propose that the appeal be allowed and that the award against Glynn Rees trading as Glynmar Pastoral Company be set aside. The respondent should pay the appellant's costs of the appeal. I should perhaps add that when the matter was before the court previously the worker's attendance was excused. Kirby P I agree that the appeal should be allowed for the reasons given by Samuels JA. I do not wish to add anything to what his Honour has said on the principal factual issues that has been argued in the appeal. The limited basis for compensation appeals. However, a point of general principle was raised in the appeal. It does not require decision in the way the appeal is disposed of, as Samuels JA has explained. Nonetheless, I wish to say something about it. I do so because of the fact that it raises a matter of general importance for the exercise by judges of the Compensation Court of the discretion which is conferred upon them by Parliament for the apportionment of liability as between the respondents in cases where it is alleged that two or more respondents are responsible for the incapacity found in the worker. The appellant complained that Judge Moroney had failed to give reasons for the apportionment which he made of the liability which he found in the two employers. The power to make such an apportionment is provided under s7A(1) of the Workers' Compensation Act 1926. It is conferred upon a judge of that Court in the widest possible terms. It was acknowledged by the appellant, correctly I think, that if Judge Moroney had given reasons for the apportionment which he found, the decision would, at least upon that ground if there were evidence otherwise to sustain it, be immune from review in this Court. Appeal lies to this Court from the Compensation Court relevantly only on the question of law (see Compensation Court Act 1984 s32). It does not lie to contest a finding by a judge of that Court on a question of fact. The stringency of the requirement of this provision has been pointed out by the Court many times. It was observed in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 where the recent cases were collected. It was repeated in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. Most recently it was restated in Warley Pty Ltd v Adco Constructions Pty Ltd, Court of Appeal, URJ GLEN REES T/as GLYNMAR PASTORAL CO v WALKER (Kirby P) 5 unreported, 30 November 1988. In Warley application was made once again for leave to re-argue the holding in Azzopardi. The Court, by majority, declined that leave. The stringent test stated in that case is the law. Deciding which injury in a series contributes to incapacity and to what extent necessarily involves evaluation and the assessment of evidence. It involves the classic exercise of a discretion by a trial judge of matters of fact. That is why apportionments, both under this statutory provision and under others, are typically not disturbed in appellate courts. But with this large area of judicial immunity comes a commensurate judicial responsibility. The judicial duty to state reasons. The extent to which a judge is under a duty to state reasons was established in this Court in Pettit v Dunkley [1971] 1 NSWLR 376. The principle stated by that case appears to have been approved by the High Court of Australia, although in obiter observations of Gibbs CJ in the Public Service Board of New South Wales v Osmond (1985) 159 CLR at 656 The principle is applied frequently in this Court and in other Courts. Indeed, it has been applied in courts overseas invoking the decision in Pettit v Dunkley. The duty is a high one. Judicial officers who are subject to review in an appeal must give reasons for the decision. There are, however, limits upon the obligation. Normally judicial officers do not need to give reasons for decisions which are purely concerned with questions of practice and procedure. At least this is so where reasons for any order which they make are clear as, for example, in exchanges between the court and counsel. See Housing Commission of New South Wales v Tatmar Pastoral Company Pty Ltd [1983] 3 NSWLR 378, 385. However, even in matters of practice and procedure, as the Court recently showed in Apps v Pilet (1987) 11 NSWLR 350, 354 where, effectively, the decision will in practical terms decide finally the rights of the parties, the Court will sometimes intervene where the judge has failed to state his reasons for his decision. In Soulemezis (above) the question was posed in respect of a decision of a judge of the Compensation Court. In that case Mahoney JA, who was one of the majority, expressed the following opinion: "Tn my opinion the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion. " McHugh JA, the other judge in the majority, expressed the principle in a slightly different way. His Honour said: In the light of these latest judicial pronouncements it is clear that it is no longer correct to say that a judge has no duty to give reasons unless there is a right of appeal against his decision. If it was, an ultimate court of appeal would have no duty to give reasons. In my opinion, the duty rests on a wider basis: its foundation is the principle that justice must not only be done but it must be seen to be done. Later in Soulemezis (at page 281) McHugh JA said, relevant to the facts of that case: The issue, therefore, is whether the failure to explain the basis of the crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done. If it was, that is itself an error of law because, as Asprey JA pointed out in Pettit v Dunkley (at 382), the learned judge has not properly fulfilled the function which the law calls upon a judicial person to exercise'. However, in determining the 6 UNREPORTED JUDGMENTS issue which this appeal raises, great care needs to be taken that dissatisfaction with the finding of fact does not mislead the court into holding that the learned judge has failed to give his reasons for his finding. T now turn to what Judge Moroney said in this case and to the complaint of the appellant in respect of what he said. His Honour's judgment on apportionment between the two employers is brief. It says: It is clearly the case that all of those doctors in one way or another said that the necessity for surgery and the incapacity for work between March and October of 1983 10 resulted from the nature and conditions of the employment with both respondents to which I referred and the specific injury. I do not think it is necessary to go into detail into the various bits and pieces of evidence said by those doctors, it is all in the transcript. I will thus make an award for the applicant against both respondents for the appropriate rate... To the extent that it has not been said and that it needs to be said the 15 award is to be paid equally by the respondents. A statement of result is not sufficient. I acknowledge, as it was put by counsel for the appellant, that the statutory discretion is expressed in the broadest possible terms. I also acknowledge that the statute contains no guidelines upon which the 20 discretion is to be exercised. Further, it is true that it is difficult sometimes to explain with precision the evaluative decision which is called for by a discretion such as that which was here to be exercised. Having said that, I feel bound to say that his Honour's statement of the apportionment amounted to an indication of the result to which his mind had 25 come, with no real indication at all of the way in which he had reached that result. It is said that his Honour had sufficiently signposted the journey. However, in my opinion the signposts are impossible to find. The road may be known to the frequent traveller. But it is not marked for the observer, whether the litigant or this Court conducting its appellate function. 30 Enough has been said in the judgment of Samuels JA, and in his analysis of the facts, to indicate why an explanation of the apportionment was called for. Even upon the view which his Honour took of the facts some indication of why he found an equal assignment of liability was required. Although I rest my decision in this appeal upon the basis explained by Samuels JA, I reach it more comfortably because of the view I have that Judge Moroney failed to explain the reasons for the apportionment which he made in terms however brief. Such a failure would itself amount to an error of law. It would, on its own, warrant the intervention by this Court. However, for the reasons which 40 Samuels JA has provided, it is not necessary finally to decide that matter in this case. I agree with the orders proposed. It should, I think, be finally said that the worker was excused from participation in the appeal and I contemplate that, in the light of the decision, the 45 burden of the award which his Honour has entered will fall now entirely upon the respondent. Mahoney JA In my opinion the appeal should be dismissed with costs. I go firstto the question of whether there was evidence to support the conclusion of the 50 learned judge. It is of assistance in assessing this to go to what the learned judge's conclusion was and the way in which he arrived at it. The learned judge said: URJ GLEN REES T/as GLYNMAR PASTORAL CO v WALKER (Mahoney JA) 7 It is clearly the case that all of those doctors in one way or another said that the necessity for surgery and the incapacity for work between March and October of 1983 resulted from the nature and conditions of the employment with both respondents to which I referred and the specific injury. If the learned judge's statement had been correct, then of course, clearly there would be a basis on which the award could have been given as he did. The question therefore is whether there was evidence before the learned Judge to support the conclusion that the incapacity for work claimed, that is, between March and October 1983, "resulted from the nature and conditions of the employment with both respondents". In assessing this it is necessary to go first to what the doctors said was the nature of the incapacity and how it came about. Dr Robson, a surgeon, was the surgeon who performed the operation upon the plaintiff. His evidence may be summarised, I think, as follows. In summarising it I am conscious of the dangers that summaries must necessarily omit, but I state the substance of what I think his evidence was. The doctor said that there was a clear condition of pain and difficulty resulting from about September 1982. The operation was performed in march 1983. He said that such a condition does not appear unless there is some trauma or degenerative effect. He pointed to the history of some kind of trauma in 1978 when the plaintiff suffered a fall and in May 1980 when he had difficulty with his back lifting a back of wheat. The learned judge held that the trauma in 1978 had no causal relationship to the accident and I put that aside. The doctor therefore was looking at a traumatic effect of some kind which occurred probably in 1980. However, as the doctor said, the symptoms in question, namely the pains in the leg, did not result until September or October 1982. It was therefore necessary, or at least relevant, to ascertain what had led to the condition occurring in 1980 producing the symptoms in September or October 1982. The suggestion by the learned judge was that this resulted from "the nature and conditions of the employment" and the question is whether it was the opinion of the doctors that the nature and conditions of the employment between 1980 and September or October 1983 contributed to the trauma and the condition produced by the trauma, producing symptoms. In my opinion there was evidence upon which the learned judge could so conclude. There was clearly evidence that the nature of the work undertaken with Mr Walker was apt to produce such a degeneration from the state produced by the trauma in 1980 to the condition arising in September or October 1982. It is not necessary to elaborate upon that. The question then is whether there was evidence from which it could be concluded that the nature and conditions of the work with Mr Rees during the period in question was apt to contribute to the kind of deterioration to which Dr Robson referred. I have referred in particular to what Dr Robson said but I think his opinion is accepted by some, at least, of the other doctors. It is necessary then to go to what work was done with Mr Rees and the nature and significance of it. Before going to that it is relevant to list the sequence of events in the context of which the trauma and ultimately the disability occurred. The evidence was that in 1978 the worker had been injured by falling off a truck. That is referred to in the medical evidence but, as the learned judge has found, it had no causal relationship to the present matter. In 1978 and until May 1981 the worker worked with Mr Walker. The work that he did during that time 8 UNREPORTED JUDGMENTS was agricultural and pastoral work - I put the matter in general terms - and was of a heavy nature. In May 1980, as his Honour found, the worker suffered a specific injury. He was lifting a heavy bag of wheat, the person helping him let the bag go, it fell and this was apt to cause difficulty with his back. He said in fact that he had problems following that particular accident, the details of which I need not detail. Subsequently in June 1981 and until March 1982 the worker worked with Mr Rees. The work was of a lighter nature and I shall refer to the nature of it in due course. Subsequently, from March 1982 to March 1983, he worked for Mr Walker. It was in September or October 1982 that he started to suffer the pains in his leg and it was on 17 March 1983 that Dr Robson undertook the operation which resulted in removal of one of the discs in the plaintiff's back. It was during the period 18 March to 14 October 1983 that the worker was incapacitated and for which he claims. I come then to consider the nature of the work that was undertaken in the course of working for Mr Rees and the significance of it. The plaintiff in his evidence described the particular work. He was asked what sort of work he was doing and he said: Some farming but just general stock work. It was mainly setting up the property, buying the stock and all that sort of thing. He was asked: Q. How did that compare from the point of the effort and strain involved with work on Mr Walker's property? and he said: A. It was nowhere near as much. But he said that there were problems with his back while he was with Mr Reed. He said: I think I had to go to the chiropractor twice in my time there. " And he said that at that stage the problems were "still localised in" his back. Reference has been made in argument to the fact that the records of the chiropractor do not establish that the worker attended that chiropractor at the time but the worker's evidence was before the learned judge and he was entitled to accept it on its face value. The evidence then was that with Mr Rees he was doing some farming but just general stock work. The question is what was the nature of the work so described and what significance it would have in the aggravation of the trauma produced in It may be that a judge of the Compensation Court dealing with these matters is entitled to take judicial knowledge of what farming and general stock work is for this purpose. However, it is not necessary to determine that particular matter. Reference was made in the course of the description of the work for Mr Walker to what stock work was. Having been asked what his duties involved as overseer so far as sheep were concerned the worker said: All stock work, looking after stock, drafting of fat lambs for market, picking them out, lifting them out, all that type of work. And reference was made to work with cattle and he said that that involved — Just mainly drenching. You have to be in the pens with the cattle drenching them, throwing calves and castrating and all that sort of thing. URJ GLEN REES T/as GLYNMAR PASTORAL CO v WALKER (Mahoney JA) 9 It may be thought - at least it was open to the learned judge to conclude, I think - that farming and general stock work took the nature of the work there described although, as I have said, the work with Mr Walker was admittedly heavier than that with Mr Rees. The question then is what was the significance of farming work or general stock work in this regard? The doctors in their evidence in dealing with what brought on a particular accident in fact referred to this. In the course of the evidence of Dr Newcombe the problem was addressed and the doctor said: It would appear that the right sciatica first occurred towards the end of 1982 and on this basis farming would be likely to be responsible for the onset of his incapacity with regard to work and to the need for operation, rather than the incident of 27/7/78 alone. The onset of sciatica was probably accompanied by extension of lumbar disc protrusion. Evidence to a similar effect was given by the neurosurgeon, Dr Danta. In his written report in considering the relationship between the initial trauma and the onset of the symptoms in September-October 1982 the doctor said this: *Because of the delay in the onset of disabling symptoms, one has to regard the fall (the doctor was referring to the fall of 1978) as aggravating and contributing to degenerative lumbar disc disease as causing an immediate disc prolapse. In that sense the accident in 1978 contributed to the injuries, which then resulted in the operation. His continued working aggravated the degenerative lumbar disc disease, since our understanding of the condition is that damage takes place as a result of movement and trauma. The doctor again referred to the matter, though to a different effect, in his report of 9 August 1984. In his oral evidence given at the hearing he was asked whether the wear and tear of everyday life without complication from heavy work would be sufficient to maintain symptoms after the injury in 1978 and as I infer from the question, to produce what happened in September-October 1982 and the doctor said: Yes, except the more lifting is involved and the more heavy physical work is involved, the more in general terms in aggravation is seen in terms of chronic back pain. Reference was then made to other matters in the course of his evidence. I have referred to those doctors because in my opinion the learned judge was entitled to take from the evidence of at least those doctors, and perhaps others, that the continuation of farming and stock work after the injury of 1980 was the kind of continuing trauma and pressure which was apt to produce from what happened in 1980 the onset of symptoms in September or October 1982. That is the way in which in my opinion the learned judge reasoned and from the evidence there was a basis in fact on which he could so reason. In my opinion therefore there was evidence upon which the learned judge could find as he did. I would not find against him on this ground of appeal. I come then to the other substantial ground of appeal which has been argued, namely that the learned judge did not give reasons for what he did. It is wrong, I think, to state the submission in that way. The learned judge obviously did give reasons. The question is whether the reasons he gave were sufficient. What the learned judge did was to give reasons extending over two pages of printed transcript for his conclusion and he set out, as I understand the matter, the factual background as I have extrapolated it. In referring to the involvement of Mr Rees as well as the other employer the learned judge did not detail at lengthy why he had concluded both of them were involved. It was in my opinion sufficient for him to say that the incapacity resulted from the nature and conditions of the employment with both respondents, to which his Honour had referred. It was not necessary for him in 10 UNREPORTED JUDGMENTS my opinion to detail in a judgment of this kind the nature of the work or the conditions of the employment. They were obvious. Having so done his Honour, then having held that there was to be an award, had to address the question against whom it was to be given. His Honour then said: To the extent that it has not been said and that it needs to be said the award is to be paid equally by the respondents. What his Honour had indicated previously in my opinion was clearly that the award was to go against both of the employers because the nature and conditions of the employment, as he said, "with both respondents" was enough to produce the incapacity for which the claim was made. There was, I think, no need for further reasoning in relation to the involvement or Mr Rees as well as the other employer in this regard. The question then remains whether it was necessary for the learned judge to attempt to give in a formula of words the reason why he had concluded that the award was to be paid equally by the two respondents. For myself I would have thought that the reasoning upon which that conclusion is based was sufficiently obvious from what had been said. It was not, or was not necessarily, the extent of the burden of the work which contributed to the progression from the trauma of 1980 to the display of symptoms in 1982. It was, as Dr Newcombe suggested, the fact that he was involved in farming which was likely to produce the onset of these and he was involved in farming with both of the employers in question. Secondly there was nothing said in the evidence which would require the learned Judge to come to the conclusion that the difference in arduousness between the work done with the one employer and the work done with the other was of sufficient moment to justify a distinction being made between them. It may be that the learned judge took the view that once one is doing work of the kind which was being done with Mr Rees the effect of the medical evidence was that that was enough to contribute to the progression of the disease in the manner to His Honour could well have taken that view and I think that is the nature of the reasoning which is apparent from what he has said. Views have differed within this Court over a period of recent years as to the extent to which it is necessary for a judicial officer to detail the reasons which led him to the conclusions to which he comes. I am respectfully conscious of the fact that some members of the court take one view and some members take the other and in the end I suppose the difference between them lies in the philosophy rather than in the strict requirements of the law. In my opinion it is not necessary to recapitulate the main rulings which have been given by this Court in this regard. The learned President has already referred to some of them. In the end the question that must be determined is whether the law requires that a judge detail the steps by which he has arrived at the conclusion and, in this case, the conclusion of fact at which he has arrived. I think there are dangers in pressing too far a requirement that a judge articulate why he has arrived at a particular assessment - in this case it is an assessment which is involved - rather than at another assessment. It is an everyday phenomenon in the courts that trial judges will conclude, for example, that a particular person has been incapacitated to an extent of 30 per cent of his working potential rather than 40 per cent. If the judge were asked to articulate why he has arrived at 30 per cent rather than 40 per cent, or indeed any other URJ GLEN REES T/as GLYNMAR PASTORAL CO v WALKER (Kirby P) 11 percentage, he would find it impossible to do so. It would in the end, he would say, be a matter of impression and I think this is true. This is in my opinion dangerous - at least there is no requirement in the law which requires a judge to attempt to give a greater degree of certainty than the nature of the subject matter will bear. I think that that would be a fundamental error in the law were the law so to require. In my opinion in the end a judge makes an assessment of facts and comes to a conclusion. The fact that he cannot, and therefore does not, attempt to articulate the reasoning which led him to one particular finding rather than another is in my opinion no error in what he does. A fortiori it does not constitute any error of law in what he does. In the present case the reason why the learned judge came to the conclusion that the loss should be borne equally appeared, as the learned judge said or suggested, from what he had already said. I do not think it was necessary for him to articulate it further. For those reasons in my opinion the appeal should be dismissed with costs. Kirby P Before I pronounce the orders of the Court I would want to have it clear what I said at the end of my judgment concerning the case as it affects the appellant and the first respondent. Otherwise the worker, who was excused, would be entitled to be heard before the final orders were made. Is it agreed by the parties now before the Court, that, in the event that the Court decided, as by majority it has, the worker himself is not concerned in the outcome? The result would be that the whole of the award in the worker's favour would now fall upon the first respondent. MR HARRINGTON: On the basis it was a no-evidence principle, yes. KIRBY P: The orders of the Court are accordingly, by majority, appeal allowed, the award of Judge Moroney so far as it was ordered that the appellant pay compensation to the second respondent, set aside. The first respondent is to pay the costs of the appeal. He is to have, if so qualified, a certificate under the Suitors Fund Act 1951.