PIRELLI ERICSSON CABLES PTY LTD v CORREALE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and MEAGHER JJA 28 May 1991, 19 June 1991 [1991] NSWCA 224 DAMAGES — WORKER'S COMPENSATION Correale suffers injuries on six occasions between 1980-1984 and is partially incapacitated. Evidence varies widely but Correale found to be witness of truth. Correale put on light duties, then directed to heavy work which he declined and was then dismissed. Employer disputes this, saying worker refused light duties. HELD (per curiam): Either the work offered was too strenuous, or the offer of work was couched in terms which were incomprehensible to the worker. The doctrine of mutuality which applies where the worker is ready, willing and able to perform the alternative "suitable employment" — does not get to be considered because in either case the employer's central obligation — to offer suitable employment — was not met. Workers Compensation Act 1926 (NSW) ORDERS Appeal dismissed with costs. Priestley JA I agree with Meagher JA. Clarke JA I agree with Meagher JA. Meagher JA This was an appeal from Burke J by an employer which disputes an award made on 22 September 1989 by his Honour in favour of the worker, who is the present respondent. In his application, the worker alleged that he suffered an injury in "November 1980, August 1983 and 3 April 1984". He alleged that his "injury" caused "total and partial" incapacity "from November 1980 to 11 August 1986", and "total, partial or partial incapacity deemed total" from 12 August 1986 until the application. The evidence, which came from many witnesses, ranged widely, and his Honour was confronted with evidence of the worker suffering at work back injuries on 16 May 1980, 25 October 1980, 27 October 1980, some unnamed dated in November 1980, and (if it be different from the previous version) on 10 November 1980. There was also evidence that injuries occurred on at least six occasions in 1983: 31 May 1983, 7 June 1983, 8 June 1983, 15 June 1983, 1 July 1983, 1 August 1983 and (if it be different from the last) on some unnamed dated in August 1983. As far as 1984 was concerned, there was evidence of an injury at some unnamed date in March 1984 as well as on 3 April 1984. The details of each of these alleged injuries varied somewhat, and the very existence of most if not all of them was in dispute. His Honour found that the worker was a witness of truth, although unreliable in his detailed recollection. His Honour ultimately found that he had "sustained injury to his spine in late 1988, August 1983 and April 1984". Mr Sharpe, counsel for the employer, submitted that this finding can be attacked, essentially because it was so lacking in specificity that it amounted to a refusal to give reasons. This submission, in my opinion, should be rejected. All his Honour did was, in effect, to find as a matter of fact that the injuries and incapacity alleged in the application had been made out; and Mr Sharpe conceded that there was evidence which could justify such a finding. 2 UNREPORTED JUDGMENTS The more substantial dispute concerned the worker's dismissal on 11 August 1986. The undisputed facts are that for some time before this date the worker was, because of his medical condition, working on light duties. The work itself was light and the hours of work were restricted. The worker was capable of performing such work, but was incapable of performing heavy duties. On that day the employer was minded to transfer the worker to new duties. The oral evidence, given by many witnesses on behalf of both parties, diverges. The worker's account is that the employer directed him to work on machines called "four by four" machines; this involved heavy work and was beyond his capacity; he declined the new work and was then dismissed. The employer's account is that the worker was directed to work on machines called "Kevlar machines"; this involved light work only, and was well within the worker's capacity; there was a refusal and a dismissal. The evidence was extraordinarily complicated, and there were many variations in the respective accounts; indeed, on one version, the "four by four" machines were said to be identical with the "Kevlar machines". Since the vital evidence consisted of conversations, of which there were differing accounts, issues of credibility became vital. His Honour expressly found that the workman was a witness of truth, and believed his version of the conversation. That version was corroborated by a Mr Kato, whom his Honour also impliedly, but not expressly, believed. It was also corroborated in part by an elderly deaf Armenian called Mr Nercessian. His Honour found him "charming". I take this as an oblique way of finding him credible. I do not think the term was being used by his Honour pejoratively. Nor do I think his Honour was attributing his "charm" to a refusal to permit the clear pool of his mind being disturbed by any ripple of veracity. I shall set out a portion of his Honour's reasons: "Whatever the precise terms of the particular conversation on 11 August 1986 between Mr Machine and the applicant were, I would certainly not be satisfied that it was clearly conveyed to the applicant that the nature of the work that he was now being asked to do was on the Kevlar machine and of an exceedingly light nature. The surrounding circumstances tend to suggest the probability that the applicant did not so apprehend. He had the advice of the union delegate Mr Platt, that he should not refuse any job light or otherwise. he had apparently legal advice to the same effect. He had had a conversation the prior Friday with Mr Buckland when it was indicated that the respondent on their medical advice regarded him as unrestrictedly fit, but he would be transferred to the production area on the Monday. That background may well have led the applicant to expect that the work to be offered to him on the Monday would be full and unrestricted duty. His version of the conversation with Mr Machine on 11 August 1986 is that that is precisely what was offered to him. If he misunderstood it as I've said, I think it was a failure to communicate by the respondent, that what they were offering was in fact light work and that it was in the background fairly clear that the applicant would be likely to misapprehend an offer unless it was made clear and certainly it was not made clear because Mr Nercessian and Mr Kato were under a similar type apprehension. In those events as I have indicated I am not satisfied that on 11 August 1986 the applicant refused to do light duties offered to him by the respondent." In order to appreciate the submissions, it is necessary to set out the provisions of s11(2) of the Workers' Compensation Act 1926 (which, despite its repeal, was still operative as between worker and employer). That subsection provides URJ PIRELLI ERICSSON CABLES PTY LTD v CORREALE (Meagher JA) 3 "(2) An employer shall provide suitable employment for his injured worker during the worker's partial incapacity for work but, if the employer fails to do so, the worker shall be compensated as if his incapacity for work were total..." (and there follow certain exceptions not presently material). By way of judicial gloss on the subsection, the Courts have limited its application by the doctrine of mutuality: it only applies where the worker is ready willing and able to perform the alternative "suitable employment". Mr Sharpe submitted that in the present case, on his Honour's findings, the workman did not fulfill the test of being ready willing and able to perform the alternative work (ie the work on the Kevlar machines) if only because he misapprehended the nature of the work clearly offered to him. But, to my mind, this involves a misconstruction of what his Honour found, although admittedly in language far from pellucid. A fair reading of his Honour's judgment indicates that his Honour found either that, as the worker alleged, the only offer was of work which was too strenuous and therefore not "suitable" (which I think is the preferred reading), or alternatively that if lighter work was offered it was couched in terms which were incomprehensible to the worker, in which case there was no offer to "provide" suitable employment. In either case, one does not get to consider the gloss of mutuality, because the employer's central obligation (to which mutuality is only a gloss) was not met. It was also submitted that, since the worker's obligation to hold himself ready willing and able was a continuous one, it was broken by a subsequent visit to Italy. But I do not think that the admitted fact that the worker visited his native land for a few months to see a dying relative can be tortured into a refusal to hold himself out as willing to continue to perform light duties. In my view the appeal should be dismissed with costs. COUNSEL for the Appellant: JL SHARPE Counsel for the Respondent: L KING SOLICITORS for the Appellant: MORAY and AGNEW Solicitors for the Respondent: JONES STAFF and CO