RG LEVERMENT v DIRECTOR GENERAL OF EDUCATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, HANDLEY and SHELLER JJA 28 February 1992, 28 February 1992 [1992] NSWCA 133 WORKERS COMPENSATION — CAUSATION — worker sustained two injuries to back — one work related the other not — incapacity — causation a question of fact. A teacher employed by the Department sustained a back injury at work. Some time later, while employed as a teacher in the Solomon Islands he sustained a further back injury while lifting a heavy object. He claimed compensation from the Department on the basis that his incapacity following the second injury was the result of the first injury. The Compensation Court held that the incapacity was the result of the second injury and made an award for the respondent. At the relevant time an appeal lay to the Court of Appeal only if a question of law or evidence was involved. The judge of the Compensation Court decided the question of causation as one of fact on the evidence. HELD: No error of law had been established and the appeal was dismissed. Mahoney JA I shall ask Handley JA to give the first judgment. Handley JA This is an appeal by an applicant from a decision of his Honour Judge Gibson of the Compensation Court who made an award for the respondent. The essential facts are that in the course of his employment with the respondent, the appellant, a manual arts teacher, sustained a back injury on 16 November 1979. Thereafter the appellant continued to suffer back pain, weakness and disability from time to time over the years until he took leave of absence from the Department on 2 September 1985 in order to take up employment under a two year contract with the Solomon Islands College of Higher Education. In the period of some six years during which the appellant had remained with the Department after the back injury of 16 November 1979 he had, from time to time, lost days from work because of the condition of his back. However by and large he had been able to remain at work albeit with some difficulty and with some pain. While in the Solomon Islands the appellant sustained a further injury on 7 October 1986. There was an issue at the trial as to the nature of the work being undertaken by the appellant at the time. The trial judge accepted the history given by the appellant to Dr Sugars in preference to contrary evidence given by the appellant at the trial. On this basis the trial judge found that a further severe attack of back pain occurred on 7 October 1986 while the appellant was lifting a heavy weight at work and that he had, as a result, continuing back pain radiating to his right leg. The trial judge reviewed the medical evidence and in particular the evidence of Dr Sugars, who had been called in the appellant's case but was effectively cross-examined by counsel for the respondent. He concluded that in the light of the evidence of Dr Sugars he was satisfied that the incapacity between 24 October 1986 and 24 December 1986 and the necessity for the operation on 11 November 1986 performed by Dr Sugars resulted from the lifting incident of 7 October 1986. 2 UNREPORTED JUDGMENTS Under s32 of the Compensation Court Act, in its form at the relevant time, an appeal to this Court only lies if the decision of the Compensation Court has been affected by some error of law or by the wrongful rejection or admission of evidence. In the present case the appellant does not challenge any ruling by the judge on matters of evidence. The error of law essentially relied upon by the appellant was that the trial judge had felt himself constrained by the decision of this Court in Pickersgill v Freightbases Pty Ltd (1983) 3 NSWLR 117 to find that the incapacity following the incident of 7 October 1986 was the result of that incident because that had precipitated the incapacity. No such error appears on the face of his Honour's reasons for judgment and, indeed, there is nothing in the reasons for judgment to indicate that his Honour decided the issue before him otherwise than as a question of fact. The decision of the High Court in Conkey and Sons Pty Ltd v Miller (1977) 51 ALJR 583 establishes that issues of causation in the context of workers compensation legislation such as the legislation in this State raises matters of fact and not of law. Judge Gibson was the trial judge in Conkey and Sons Pty Ltd v Miller in the then Workers' Compensation Commission and it is not to be supposed that an experienced judge of the Court, especially the trial judge in Conkey and Sons Pty Ltd v Miller, was unaware of the decision in that case. I am unable to find any trace in his Honour's reasons for judgment of the supposed error of law that has been attributed to him. We were also referred to the decision of this Court in Morris v George (1977) 2 NSWLR 552 and, in particular, to the judgment of Moffitt P in that case. In particular Mr Little referred to a passage in his judgment at 567 where the learned judge said: "Thus a first back injury may be of such major proportions that incapacity is recurrent and even progressive, and a second accident or incident so minor or so much a part of normal activity that it is open to find that a later incapacity following the second accident or injury resulted from the initial injury. There may be infinite variations in the evidence in this class of case, which would include, for example, the case of independent coronary attacks or incidents, that it is a question of fact whether death or incapacity results from a particular injury." His Honour then referred to Conkey and Sons v Miller and continued: "Tn this class of case, I can see no legal basis that would admit a conclusion that incapacity or death resulted from both injuries. At most it could be said each contributed to the death or incapacity, which is not sufficient." Assuming that Moffitt P was purporting to lay down any principle of law in the passage which Mr Little relied upon, which I have quoted above, it seems to me that on the findings of fact made by the trial judge, the present case did not fall within that principle. Judge Gibson found that the incident on 7 October occurred while lifting a heavy weight in the course of his employment in the Solomon Islands. It seems to me that there is nothing in the findings or the evidence accepted by the Judge to indicate that the work on which the appellant was then engaged was "minor" or a part of "normal" activity. In these circumstances in my opinion no error of law has been demonstrated by the appellant and the appeal necessarily fails. It should be dismissed with costs. Mahoney JA. I agree with what has been said by Handley JA. In deference to the submissions made by Mr Little, I shall add a few comments of my own. Essentially the applicant's claim was that he suffered incapacity for varying periods from 24 October 1986 and that he had suffered this incapacity because of URJ = RGLEVERMENT v DIRECTOR GENERAL OF EDUCATION (Sheller JA) 3 a severe back injury leading to surgery. The question was whether the incapacity, which he admittedly suffered in 1986, resulted from what he did in the Solomon Islands in 1986 or whether, in the relevant sense, it resulted from the injury he had suffered and the condition of his back from an injury in 1979 or thereabouts. It was, in my opinion, open to the judge, in deciding this question of fact, to come to the conclusion that what had happened in 1986 had produced a different injury, albeit in the same area and albeit in a sense based on the existing condition which derived from the injury which had occurred in 1979. Mr McGrowdie's careful cross-examination of Dr Sugars before the Compensation Court produced agreement from the doctor to factual propositions such that, in my opinion, the learned judge was entitled to find that what had happened in 1986 was a separate and distinct injury resulting from that accident and not resulting from injuries which had previously been received. The judge did not, in his judgment, distinguish in detail the two injuries in this way. He did not consider in terms the possibility, although no doubt he had it in mind, that the incapacity may have resulted, in the relevant sense, from both injuries. His final conclusion was: "In the light of the evidence of Dr Sugars I am satisfied that the incapacity between 24 October 1986 and 24 December 1986 and the necessity for operation on 11 November 1986 resulted from the lifting incident on 7 October." I am satisfied that his Honour meant by that, that it resulted only from the 1986 incident and not from the earlier injuries. These conclusions of fact were open to the judge. The fact that he might have found otherwise does not alter the fact that, properly understood, the decision he made was a finding of fact. I therefore agree with what has been said by Handley JA as to the orders to be made. Sheller JA In my opinion nothing has been advanced which suggests that his Honour was constrained to the conclusion he came to by any error of law. I agree, for the reasons given by my brothers, that the appeal should be dismissed with costs. Mahoney JA: The order of the Court is that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: G Little Solicitors for the Appellant: McMahon and Drake Counsel for the Respondent: MJ McGrowdie Solicitors for the Respondent: EG Scarparo for Government Insurance Office of New South Wales