CRISP v CHAPMAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MEAGHER and POWELL JJA 19 July 1994, 18 August 1994 [1994] NSWCA 73 WORKERS' COMPENSATION Compensable injuries — What constitutes injury — Disease — "Industrial disease' — Shearer — Spinal canal stenosis — Causing incapacity — Last employer liable. Workers Compensation — Compensable injuries — What constitutes injury — Disease — "Industrial disease" — Shearer — Spinal canal stenosis — Causing incapacity — Last employer liable. A, who had been a shearer by occupation for about 25 years, had, by January 1987, developed marked spinal canal stenosis, with which there were associated disc bulges in the lumbar area and compression of the spinal column. In the 12 months prior to January 1987, A had worked as a shearer for shout 15 or more different pastoralists. In December 1986, while shearing on R(2)'s property, and January 1987, while shearing on R(1)'s property, A experienced symptoms which led him to cease work in January 1987. Over the course of the following 21/2 years, or thereabouts, A was treated for his condition; at first the treatment was conservative, but, later, surgery became necessary. Surgery was first undertaken in November 1987, and a laminectomy was carried out in August 1989. In March 1989 there was filed on behalf of A an Application in which A sought against R(1) and R(2) compensation for his incapacity. When the application was filed, the claim for compensation was based on "frank injuries" said to have been sustained as the result of separate incidents occurring while A was shearing for R(2) and R(1) in December 1986 and January 1987. Later, the Application was amended to base the claim for compensation upon an "industrial disease", it being said that spinal canal stenosis was a classic shearer's disease. The only medical evidence tendered on the hearing before O' Toole CCJ was that of Dr B and Dr D, each of whom had treated A, and each of whom gave evidence to the effect that A's condition was, not constitutional. but caused by the stresses and trauma involved in shearing. Although counsel for A, throughout his submissions, placed stress upon the fact that A's claim was "based upon" the provisions of s15, rather than of s16, of the Act, O' Toole CCJ dismissed the Application upon the ground that she was not "persuaded that the stenosis was materially aggravated, exacerbated or caused to deteriorate by work performed for "*R(2) or R(1). A appealed. 1. ORDER that the Appeal be upheld. 2. ORDER that the Award made by O'Toole CCJ on 8th August 1991 be set aside. 3. ORDER that the Application be remitted to the Compensation Court for reconsideration in accordance with these reasons. 4. ORDER that the Respondents pay the Appellant's costs of the Appeal. 5. ORDER that the Respondents, if qualified, have a certificate under the Suitors Fund Act 1951. Mahoney AP 2 UNREPORTED JUDGMENTS The worker Mr Crisp was for many years a shearer. He last worked in that occupation on 8 and 9 January 1987 in the employ of the respondent Miss Chapman. On 29 March 1989 he applied for compensation for incapacity arising from his back condition. On 8 August 1991 O'Toole J held he was not entitled to compensation as claimed and made an award for Miss Chapman. The worker Mr Crisp has appealed to this Court against her Honour's award. The appeal has been conducted upon the basis that, to succeed, the worker must show an error of law. It has been argued upon the basis that the relevant legislation is that contained in the Workers Compensation Act 1987: cf Schedule 6 Pt4 CL1. I shall deal with the matter upon the bases on which the argument has proceeded. Evidence has been placed before the Court to show that the only proper party to the appeal is Miss Chapman and that, by reason of the arrangements made or the notices given to other persons who have an interest in the litigation, the appeal may proceed as presently constituted. The facts are detailed in the judgment of Powell JA and I shall refer to them only as far as is necessary to indicate the conclusions at which I have arrived. Mr Crisp suffered from a condition of the spine, stenosis, and it is from this that his incapacity has arisen. His claim for compensation was in his application, as amended, put on two alternative bases: that, whilst employed by Miss Chapman, he had suffered an actual injury ("strained his back"); and, alternatively, that he "suffered from lumbar spondylosis and severe spinal stenosis which are diseases of gradual onset and the respondent was the last person to employ the applicant in an employment of the nature to which such diseases were due". Stated generally, the Workers Compensation legislation provides for compensation where a worker has received an injury: s9(1). An injury may be, inter alia, of three classes: an actual injury ("personal injury arising out of or in the course of his employment"); a work caused disease; and a work aggravated disease. Although the amended application asserted a work caused disease, the worker does not appear to have pressed the claim that his condition arose from such. Accordingly, that may be put aside. A work caused disease, in the sense to which I have referred is "'a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor": see s4(b)(i). In order to establish such an injury, it is, accordingly, necessary to establish three things: that the worker had "received" a disease; that it was contracted by him in the course of employment; and that the employment was a contributing factor. The term "in the course of employment" does not denote a causal relationship between the disease and the employment but, in the light of the decided cases, the third matter, the employment as a contributing factor, does require a relationship of that kind. The third class of injury, a work aggravated disease, involves that there is a disease; that there was "the aggravation, acceleration, exacerbation or deterioration of" the disease; and that the employment "was a contributing factor to" that. It does not require that it be shown that the disease itself was contracted in the course of the employment or otherwise was causally related to it. In my opinion the alternative statement of the worker's claim contained in the amended application is sufficiently wide to include both the second and the third of these kinds of injury. No prejudice was suggested to arise from treating it so. URJ CRISP v CHAPMAN (Mahoney AP) 3 O'Toole J held that the worker had not established that his condition was an injury to which, in the relevant sense, the employment was a contributing factor. She therefore dismissed his application. The difficulty that has arisen in this appeal arises from the way in which the application was pressed before O'Toole J and the way in which, from the terms of her judgment, it is to be inferred that it was dealt with. It has been said in argument that the worker's application was pressed at the hearing upon two alternative bases: these were described as the s15 basis and the s16 basis. It is, I think, a confusion to treat s15 or s16 of the 1987 Act as, in the sense here relevant, creating liability for compensation. In general, each of the sections assumes that an injury has occurred and each provides the means of determining when the injury is deemed to have happened, by whom the compensation is payable, and other ancillary matters. In principle, it remains for the worker to prove that an injury has occurred and accordingly that s9(1) has been satisfied. To prove that, it is necessary for the worker to prove the "happening" of an injury within s4. However, s15 applies essentially in the case of an injury of the second kind to which I have referred and s16 to an injury of the third kind. It is, therefore, no doubt convenient to refer to injuries of those kinds as cases within s15 and s16 respectively. However it is necessary in doing so to recall that essentially the injuries are those provided for in s4. Mr Gross QC, for the worker, put his submissions in various ways. However, essentially his submission was, I think, that her Honour in her judgment did not properly distinguish between injuries of the second and the third kind and, in the findings that she made, did not make all of the findings necessary to be made in determining whether the worker had suffered each or either of these kinds of injury. Mr Hoeben, for the respondent, submitted that, if there had been a failure to distinguish between the two kinds of injuries propounded and/or to make all of the necessary findings for the determination of the application, the findings that had been made by her Honour were sufficient to show that no award could be made for the worker. He submitted that, this being an appeal limited to errors of law, her Honour's findings of fact could not be impugned and that, on that basis, the appeal should be dismissed. The worker's application was, I think, pressed principally upon the basis that the injury which happened was of the second kind, viz, "a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor". The provisions of the Workers Compensation law from which the present s4 is drawn were not, I think, fundamentally different from s4 of the 1987 Act. Those provisions have been the subject of judicial consideration: see Smith v Mann (1932) 47 CLR 426 and Connair Pty Ltd v Frederiksen (1979) 53 ALJR 505. Provisions such as s4 were considered recently by this Court in Kelly v Glenroc Pastoral Co Pty Ltd (Court of Appeal, 4 May 1994, unreported). These cases indicate that s4(b)(i) does not require that the particular disease was caused by a particular incident of the worker's employment at a particular time; it does not require proof that, for example, on a particular day a particular happening in the course of the employment caused or contributed to the existence of the disease. The relationship envisaged by the section is the more general relationship described by, eg, Gibbs J and Mason J in Connair Pty Ltd v Frederiksen and explained by the members of this Court in Kelly v Glenroc Pastoral Co Pty Ltd. But, that being so, it remains necessary for the worker to establish that the disease (in the present case, stenosis) was contracted "in the course of employment" (in this case as a 4 UNREPORTED JUDGMENTS shearer) and that the employment (that is, employment as a shearer) was a contributing factor to the contracting of it. Mr Gross QC, for the worker, has submitted that her Honour, in her judgment, did not make findings in respect of one or both of these matters and that for that reason her award was based upon an error of law that is, a failure to understand and apply the proper requirements of s4. My mind has wavered in considering this submission but in the end I have concluded that it should be upheld. I am conscious that her Honour carefully recorded a sequence of events relating to the worker's back condition and the times at which particular symptoms of that condition manifested themselves. Her account of what occurred places, rightly, some emphasis upon the fact that most if not all of the symptoms manifested themselves at times other than the times when the worker was in employment as a shearer. But there is a difference - in a case such as the present an important difference - between a disease and the symptoms of it; there is a difference between the contracting of the disease and the manifesting of symptoms of the existence of it. That which s4(b)(i) requires to be determined is when the disease was "contracted" and whether that was a time when the worker was "in the course of employment" (as a shearer). Stenosis involves essentially "that the diameter of the canal (of the spine) is narrowed": in so describing it, Dr Bleasel was referring to an abnormal or pathological narrowing of it. When symptoms will be manifested by reason of such narrowing cannot, I think, be predicted: it will depend upon the circumstances of the case. The narrowing may occur in more than one way and the symptomology will no doubt be affected by what in fact has occurred. Accordingly, a finding as to when particular symptoms manifested themselves is not a finding as to when the disease itself was contracted. The disease will, of course, have been contracted prior to the manifestation of the symptoms, but the section requires a finding of when it was contracted and whether it was contracted in the course of the relevant employment. In so describing the "disease" of stenosis, I have followed what was said in evidence by Dr Bleasel and Dr Dan. No issue appears to have been raised before her Honour as to the precise definition of that disease. It was accepted that the pain suffered by the worker arose from the entrapment of a nerve in the portion of the narrowed spine. But it was not suggested that the term "stenosis" involved not merely the narrowing of the spinal canal but also the entrapment of nerve fibre or some other part of the process by which the pain occurred. I shall therefore confine the term to the abnormal or pathological narrowing of the spinal column. What I have said is, of course, no new insight into this condition. But emphasis of it is, I think, significant in the present case. As I have said, it was necessary for the worker to establish, and accordingly for her Honour to examine the two things in question: the time when the disease was contracted and whether, at that time, the worker was in the course of employment as a shearer. It is, of course, difficult to prove precisely when such a disease is contracted. But for this purpose, the medical evidence given for the worker was of importance. The effect, for example, of the evidence of Dr Dan was that "canal stenosis" is the kind of thing which is apt to result from the kind of work carried out by a shearer. The doctor opined that stenosis is "a direct consequence of many stresses over a considerable period of time" and that work as a shearer is or involves "an accumulation of stresses on his back causing collapse of the discs and arthritic changes in the facet joints which caused the narrowing of the spinal canal which URJ CRISP v CHAPMAN (Powell JA) 5 is what canal stenosis is". Accordingly, it was for the Court to determine from the evidence what was the time at which the disease was contracted and to determine whether at that time he was in the course of the employment. In addition, if the disease was contracted in that way, it was for the Court to determine whether the employment was, in the statutory sense, "a contributing factor" to it. Tam conscious that her Honour found - it was common ground and ultimately undisputed - that "for many years prior to the events of which the applicant complained, his spine was in a degenerative condition which caused stenosis". But her Honour, I think, then directed attention, not to when the stenosis was actually contracted but to the manifestation of the symptoms of it and how, by the entrapment of the nerve fibre, that symptomology had emerged. Having concluded that the stenotic condition of the spine "developed gradually, over a period of many years", she made no finding upon the particular issues posed by s4(b)(i). Upon this understanding of her Honour's judgment, I have arrived at the conclusion that the questions posed by the statute were not addressed and accordingly that the award was affected by an error of law. It is not necessary for me to pursue the way in which her Honour addressed s4(b)(ii) and the significance of s16. I therefore agree with the orders proposed by Powell JA. Meagher JA I agree with Powell JA. Powell JA This is an Appeal from a Judgment delivered, and an Award made, by O' Toole CCJ on 8th August 1991 in respect of an Application by the Appellant for weekly compensation, which application was originally lodged on 29th March 1989 and later amended on 14th November 1990 on the first day of the hearing before Her Honour. Having regard to the date upon which the application was lodged, the Appeal is one limited to a question of law. The Appellant is a man now almost 52 years of age, having been born on 26th August 1942. The Appellant, who is a man of no great education, finished his secondary schooling when he was about 15 years of age. Thereafter, for a period of about 5 years he worked about the family property. However, at about the time when he attained the age of 20 years the Appellant took up shearing as a full-time occupation. Thereafter the Appellant continued to work as a shearer until about 1987 when he ceased shearing in the circumstances to which I will later refer. During the period of 25 years, or thereabouts, when he followed the occupation of a shearer, the Appellant was accustomed for the most part, to work for individual property owners in or around the Goulburn area; when things were slack he was accustomed to pick up casual work of a light nature in the area. This was necessary as shearing was available only for about 8 or 9 months in each year. As far as one can judge it, despite the arduous nature of the work of a shearer, the Appellant suffered no disability until about 1980, and, even then, the disability appears to have been little more than occasional bouts of backache. So far as one can judge it, on such occasions the Appellant might consult his general practitioner a Dr Drake, or a chiropractor. On no such occasion, so it would seem, was the Appellant obliged to take any time off from work. In 1984, while the Appellant was working on his farm, he "jinked his back while lifting a lamb and, as a result, felt pain in his lower back." On this occasion, the Appellant consulted a chiropractor, and, after some treatment and some two or three days off work, was able to return to work without any significant disability. 6 UNREPORTED JUDGMENTS In the period of 12 months or thereabouts prior to early January 1987, the Appellant appears to have undertaken shearing work for quite a number of pastoralists in the Goulburn area. Of those for whom the Appellant worked in this period of 12 months, only two need be noted, they being the Second Respondent Bullamalita Pastoral Co Pty Ltd ("Bullamalita") and the Estate of one Thomas Chapman ("the Chapman Estate"), the Appellant working for the former for several days prior to Christmas 1986 and for the latter for 2 days in early 1987. In December 1986, while shearing for Bullamalita, the Appellant developed numbness in the area of his knee, which numbness became progressively worse in the days while he was shearing for Bullamalita. At about the same time, the Appellant noticed that he had developed a soreness in his back the soreness being located in the general area of the belt line. At the end of his shearing for Bullamalita, the Appellant was suffering a significant degree of pain and had difficulty driving his car. As the numbness in his leg continued after he had ceased working for Bullamalita, the Appellant consulted a chiropractor who treated him on a number of occasions in the following week or so. On 8th January 1987, the Appellant commenced shearing at Lumley Park, a property which was apparently owned by the Chapman Estate. While the Appellant was working at Lumley Park, he noticed that the numbness in his leg had worsened as had the soreness in his back. After he had finished working at Lumley Park the Appellant consulted his then general medical practitioner Dr Storrier. Dr Storrier, so it would seem, noted that, although the Appellant had a full range of flexion and extension he had pain when sitting and bending forward and she tentatively diagnosed that the Appellant was suffering from chronic disc disease. Accordingly Dr Storrier prescribed Voltaren for the Appellant and referred him to Dr Dan, a neurosurgeon in Sydney. When the Appellant consulted Dr Dan, the latter arranged for him to have a lumbar CT which showed gross degenerative changes at L3/4 and L4/5 with changes in the articular facets particularly at L4/5. There was also a small central lumbar sacral disc bulge. Because of the extensive degenerative changes in the Appellant's back, Dr Dan suggested that there should be facet joint blocks undertaken, which blocks were later performed by Dr Faithfull at Concord Hospital in May 1987. Despite this treatment, the Appellant showed no improvement. Dr Dan then diagnosed a musculoligamentous disability and prescribed a lumbar brace and an exercise programme. The Appellant continued to show no improvement and, accordingly, Dr Storrier referred the Appellant to Dr Bleasel for a second opinion. By the time the Appellant saw Dr Bleasel, his symptoms were such that Dr Bleasel diagnosed a spinal canal stenosis, to confirm which the Appellant was admitted to St. Vincents Private Hospital where a myelogram was carried out. The myelogram showed a very marked stenosis extending from L3 to LS, there being anterior disc bulges at L3/4 and L4/5 and posterior compression of the column apparently due to a build-up of swollen soft tissue posterior to the dural sac. In the result, Dr Bleasel operated in November 1987 and because of the extensive nature of the stenosis it was necessary for him to remove spinous processes and laminae of L4 and LS and part of the laminar of L3. There being no evidence of recent disc extrusion Dr Bleasel's explanation for the onset of the Appellant's problem was that the stenosis was a product of the years of shearing and that the more acute process that led to the Appellant URJ CRISP v CHAPMAN (Powell JA) 7 stopping work was caused by repeated flexion and extension resulting in swelling of the soft tissues posterior to the dural sac. Although the operation appears to have alleviated the Appellant's symptoms, and the Appellant undertook a programme to improve his condition, Dr Bleasel apparently advised him that he should not return to shearing. In the months which followed, the Appellant's condition not only did not improve but appears to have deteriorated, so much so that, by August 1988, he suffered severe pain whenever bending or stooping. Accordingly, the Appellant was once more referred to Dr Bleasel who apparently formed the view that the fourth lumbar nerve root was becoming involved in a compression above the level of the laminectomy. Thereafter, Dr Bleasel prescribed various conservative measures which were tried but, as it would seem, without any significant result. Accordingly, in May 1989 the Appellant was readmitted to hospital where a fresh myelogram was carried out. Meantime, as I have earlier indicated, the Appellant had filed an Application for a Determination, the Respondents to that application being the First Respondent in her capacity as trustee of the Chapman Estate and the Second Respondent being Bullamalita. In the Application, insofar as it affected the First Respondent, the date, place and cause of the injury was asserted to be: [1] "(a) on 8 and 9 January 1987 at the respondent's property at Bungonia, the applicant performed shearing work and strained his back. [2] IN THE ALTERNATIVE; [3] (b) the Applicant suffered from lumbar spondylosis and severe spinal stenosis which are diseases of gradual onset and the Respondent was the last person to employ the Applicant in employment of the nature to which such disease were due." [4] despite which, in that part of the form of Application which required information as to all other employers by whom the Appellant was employed during the 12 months prior to the date of incapacity in any employment to the nature of which the disease was due, the words "not applicable" were inserted. Insofar as the Application dealt with the Second Respondent, the Application asserted: "From 14 to 17 December 1986 the Applicant performed shearing work on the Respondent's property at Bullamalita as a result of which he strained his back". that part of the form of Application which dealt with former employers also having the words "not applicable" inserted. Although it is not clear when, and at whose behest, it was done, it would appear that, at some time, one or other of the First and Second Respondents joined as Third Parties to the Application all those by whom, in the 12 months preceding January 1987, the Appellant had been employed as a shearer. However, to return to the narrative: the myelogram which was carried out in May 1989 showed some narrowing just above the laminectomy which had been carried out in November 1987. However, because the Appellant was reluctant to undergo further surgery, Dr Bleasel attempted to treat his condition conservatively until it became inevitable that an operation should be carried out. That stage appears to have been reached in August 1989, at which time the Appellant was suffering severe pain, the cause of which was diagnosed by Dr Bleasel as L4 nerve root compression. Accordingly, the Appellant ill August 1989 was admitted to hospital where it was necessary to carry out a wide laminectomy removing the laminae and spinous process of L3, and, when the fourth lumbar 8 UNREPORTED JUDGMENTS nerve root was exposed, it was found to be very tightly jammed into the lateral recess and was decompressed well out laterally. Despite the fact that the operation carried out ill August 1989 appears to have eased the Appellant's condition a little, he continued to be subject to severe pain when the Application first came on for hearing before O' Toole CCJ in November 1990. By that time, so it would seem, the Appellant had been examined by a number of medical practitioners who had been retained on behalf of the insurers for the First and Second Respondents. Despite the number of employers who had been joined as Third Parties, it would appear that arrangements were made between one, or other, or both, of the Respondents and the various Third Parties to the effect that that Respondent, or the Respondents, would protect the interests of the various Third Parties on any hearing. Accordingly, when the matter came on for hearing before O'Toole CCJ, only the Appellant and the two Respondents were represented on the hearing. Although the transcript record of proceedings does not deal with the matter in detail, it seems clear enough that, on the first hearing day, counsel for the Appellant sought to amend so much of the particulars contained in the Appellant's Application as related to what might be called "disease injury" by deleting the words "not applicable", the intention being that the Appellant's application would be conducted upon the basis, not that the Appellant had suffered a "frank injury" while working at Bullamalita, or alternatively at Lumley Park, but that the condition from which the Appellant was suffering, and which had caused his disability, was what might be called "an industrial disease" incidental to the work of a shearer, which was the work which the Appellant had been carrying out for the Respondents in December 1986 and January 1987 respectively. The only witness who gave evidence on the first hearing day was the Appellant whose cross-examination, as I read it, was directed primarily to seeking to establish two facts, they being, first, that any disability from which the Appellant suffered was due, at least in part, to an arthritic condition of the knees, and, second, that the Appellant's evidence as to his past earnings, upon which evidence the Appellant's wage schedule (Exhibit "E" Appeal Book at 234) was based was inaccurate and ought not to be accepted. At the conclusion of the Appellant's evidence the application was adjourned. The hearing of the application was resumed on 30 April 1991, on which day the only witness to give evidence as Dr Bleasel. Dr Bleasel's evidence in chief was brief, involving little more than his identifying, and confirming the contents of, the two reports (Exhibit "C'" Appeal Book 126 et seq) which he had provided to the Appellant's solicitors in July 1989 and November 1990. Nor was Dr Bleasel's cross-examination particularly extensive - the whole of Dr Bleasel's evidence only occupied 35 minutes - as I read it, the burden of the cross-examination was directed to suggesting, first, that the Appellant's spinal canal stenosis was a constitutional condition, and, second, that the nerve root compression from which the Appellant suffered was unconnected with the spinal canal stenosis, each of which suggestions was rejected by Dr Bleasel who asserted first, that spinal canal stenosis was due mostly to wear and tear, and, second, that there was a complete connection between the Appellant's spinal canal stenosis and the nerve root compression, the former being a cause of the latter. At no stage, as I read his cross-examination, did Dr Bleasel retreat from the URJ CRISP v CHAPMAN (Powell JA) 9 opinion expressed by him in the report made in July 1989 that the work which the Appellant had done as a shearer was undoubtedly the cause of the deterioration in his spine. At the conclusion of Dr Bleasel's evidence, the hearing was, once more, adjourned not being resumed until 8th August 1991. When the hearing resumed on 8th August 1991 Dr Dan was called to give evidence. On this occasion, Dr Dan was not restricted in his evidence in chief to the report (Exhibit "D" Appeal Book 131 et seq) which he had provided to the Appellant's solicitors. Rather, his attention was directed to the two reports which Dr Bleasel had provided to the Appellant's solicitors and the evidence which the Appellant had given in chief, following which he was asked whether he agreed with Dr Bleasel's diagnosis of the Appellant's condition as spinal canal stenosis. Having expressed his agreement with that diagnosis, Dr Dan then gave the following further evidence: [5] "Q. What in your opinion would be the cause of that stenosis. A. I think that the stenosis is a direct consequence of many stresses over a considerable period of time. Noting that he was a shearer and had been so for about a quarter of a century at the time of this symptom is relevant I think that it was really an accumulation of the stresses on his back causing collapse of the discs and arthritic changes in the facet joints which caused the narrowing of the spinal canal which is what canal stenosis is. Q. Would you be able to pinpoint a specific incident - bearing in mind the history that I have related, would you be able to pinpoint a specific incident which might have caused it. A. No, I think that the two last shearing activities that you described may have contributed the final straw, but I think that it is an accumulation of prior events and that the canal stenosis was already at an advanced stage prior to those two incidents. I think that their contribution to the stenosis was merely the final stages rather than the major stages. When I saw him I thought that there was also a soft tissue, a musculoligamentous component, and I thought that they had perhaps contributed that but not the spinal stenosis in any more - in any greater degree, rather, than any previous incident. Q. Would it have contributed to that stenosis to some extent. A. I think so, I think every shearing activity, at least in the latter years would have contributed to a minor degree. Q. Is stenosis a constitutional condition. A. No, I think it's an acquired condition. The stenosis occurs because of the stresses which are applied to the spinal canal by and large over a long period of time though occasionally it's related to a single of small number of episodes, but that's really the atypical situation. Q. In this particular case. A. I think that the very strong likelihood in my view is that it was an accumulation of the years rather than of any single or small number of incidents. [6] veesesseseesessseeee [7] Q. Bringing you back to this particular case. How would you categorise the spinal canal stenosis in Mr Crisp's case. A. I think that it's a disorder - disease resulting from multiple repetitive stresses. I think that the work of a shearer which involves handling often quite fractious animals and strong animals in a bent posture is about one of the worst stresses that one could apply to a back. 10 UNREPORTED JUDGMENTS [8] Q. Would you expect Mr Crisp to be able to return to work as a shearer. A. I could see no way that he could. The nature of the cross-examination of Dr Dan and his response to it is, I think, sufficiently indicated by the following passage in Dr Dan's cross-examination: [9] "Q. You indicated also that the development of arthritis can create a swelling which narrows the canal. A. Well, I think that's the same process as I was trying to describe as occurring in the facet joints. [10] Q. Would you agree though the arthritis of itself is a constitutional degenerative condition, leaving aside the question of aggravation, firstly. A. I think that there are really two broad varieties of arthritis and I undoubtedly many subsections, but broadly the constitutional disorder such as rheumatoid arthritis I think undoubtedly are constitutional and fall into a different category to the osteoarthritis which is the type that's indicated here. I think that osteoarthritis is in the majority of people a direct consequence of stresses and trauma. [11] Q. There was nothing of particular significance in shearing as distinct from other types of manual activity which may place stresses on the spinal canal or on the spine. A. Any physical activity can. I think the factors which put particular strains in shearing are the position in which the person works whilst shearing, particularly the bent forward position with rotation of the spine. That whilst in effect doing heavy lifting really perpetuates the three major stresses that cause damage to the spine. The weight bearing, the bending and the twisting factors and I think that shearing amongst manual activities is one of the worst because of this combination of all three of those factors. [12] Q. Types of work such as fencing also involve bending and exerting pressure in a bending position. A. Well, certainly, though I don't believe that the forces involved and the maintenance of the bent posture in fencing are comparable to shearing. [13] Q. But nevertheless the postural aspects would contribute to the process you have been describing. A. I think they could, yes. [14] Q. Well, not only could they but they would in the same way that as time goes by - I withdraw that. As time goes by any sort of stress on the spine will contribute to the development of the condition, that has to be right, does it not. A. Broadly so. I think inevitably the spine can stand up to a certain amount of stress or we'd all be crippled. I therefore think that the degree of stress is of particular significance whilst fencing as I understand it certainly involves bending, particularly in producing the holes, I don't think that the bending and twisting there is in any way comparable so that I don't really believe that the fencing would contribute necessarily. It may, but I don't think that it's inevitable as I think that shearing is. At the conclusion of Dr Dan's evidence - which evidence appears as if it occupied no longer than an hour - the Appellant's case was closed. No evidence was tendered on behalf of either Respondent. Following the morning adjournment, Mr M S Choat, who then appeared for the Appellant, commenced his submission. It is, I think, clear from his submissions that the case which, on behalf of the Appellant, Mr Choat was putting before Her Honour was, as I have earlier suggested, one of disability due to "an industrial disease", the statutory base for that case being found in the provisions of s4(b)(i), s9, s15(1), s33 of the 1987 Act, despite which fact Her Honour appears to have thought that the case was one based on some incident URJ CRISP v CHAPMAN (Powell JA) 11 occurring while the Appellant was working as Bullamalita and/or Lumley Park, which incident, or incidents, had the effect of exacerbating the Appellant's pre-existing condition. That this was so is, I think, sufficiently demonstrated by the following passage in the course of Mr Choat's submissions: 15] "MR CHOAT 16] Your Honour, essentially what the - the applicant essentially argues that the stenosis which has caused the applicant's incapacity and which certainly is the cause of the surgery performed by Dr Bleasel. But that was a disease of gradual process. 17] HER HONOUR 18] In terms of the Act. 19] MR CHOAT 20] In terms of the Act. Your Honour, the meaning of the word 'disease' is to be given a wide meaning. 21] HER HONOUR: 22] Well, I certainly think that canal - somebody might persuade me to a different view, but I would be inclined to think that canal stenosis is precisely the kind of condition which could or might be a disease of gradual onset in terms of the Act. What was it, though, about these two brief periods of employment that caused something which makes those employments relevant to your claim. CHOAT Yes, your Honour. Your Honour, if I could take your Honour to s15 of the 1987 Act - 1 should firstly say, your Honour, that in my submission the 1987 legislation applies to the circumstances of this case in determining whether or not the applicant is entitled to compensation. The 1926 Act has been repealed the transitional provisions contained within the 1987 Act relate to the amounts of compensation which may be payable in relation to workers injured before 30 June 1987. But those transitional provisions do not incorporate or include s15. [23] S15, your Honour, says that where an injury is a disease which is one as to be contracted by gradual process the injury shall be deemed to have happened at the time of the worker's incapacity. Now your Honour, in my submission the time of the worker's incapacity arose at the time of his employment with Miss Chapman, the first respondent. [24] The evidence is, your Honour, that whilst employed as a shearer by the first respondent there was an increase in the leg symptoms, there was an increase in the back symptomatology. The evidence is that the applicant ceased work as a shearer upon ceasing work with the Chapmans and has never gone back to work as a shearer. 25] As the applicant has been unable to work thereafter as a shearer, and has been unable t work as a shearer because of the disease of gradual process, it can therefore be inferred that the incapacity arose during the employment with Miss Chapman around that time. 26] HER HONOUR 27] What happened during Miss Chapman's employment to support that assertion. 28] CHOAT 29] Two things, your Honour. Firstly, that the applicant was shearing daily and secondly that the applicant was shearing the lambs which were more arduous and the applicant has given evidence that this was particularly difficult work and it 12 UNREPORTED JUDGMENTS was as a result of that that he says the symptoms increased so that he went off work and has never been able to go back to work as a shearer. 30] HER HONOUR 31] What was it about this work, though that affected the course Of the disease if I accept your assertion that this was a disease of gradual onset. CHOAT 32] Well, to use Dr Dan's expression, it was the straw that broke his back. But your Honour, under s15 - s15(1)(a) is a deeming provision, it deems the date of injury to be that date of the incapacity. 33] HER HONOUR 34] But I have got to find an injury first, have I not. 35] CHOAT 36] Yes, your Honour, you do. The injury is one of a disease, a disease of gradual process, that is the injury. Your Honour, s4 defines injury. 37] HER HONOUR 38] Which part of s4 fits this case. 39] CHOAT 40] S4subs(b), your Honour. A disease which is contracted by a worker in the course of employment to which the employment is a contributing factor. 41] HER HONOUR 42] I-suppose the difficulty I have is understanding in the light of the medical evidence, and particularly in view of Dr Dan's oral evidence in what way, whatever happened in the course of these two brief periods of employment contributed to the disease. In pathological terms, what was it that happened that caused or accelerated or exacerbated the course of this disease. CHOAT Your Honour, the work with these two employers was part of a train of events, it was work as a shearer, it contributed to the development and consideration of the disease and as I have mentioned, your Honour, the particular work with the Chapmans was work of a particularly arduous nature which brought about an increase in his symptoms and brought about the applicant's incapacity in that it caused him to stop working as a shearer to the extent that he was unable to resume work as a shearer. 43] Your Honour, in my submission the applicant has established that he was incapacitated at a time of ceasing work with Chapmans as a consequence of the back symptoms and leg symptoms which he had. Under s15 it would then cause a finding to be made that the injury is deemed to have happened as at that date. 44] HER HONOUR 45] 9 January 1987, the last of the two days he worked for the Chapman Grazing Company. 46] CHOAT 47] Yes, your Honour. Therefore compensation would be payable by that employer under subs(b) of s15. 48] HER HONOUR 49] I understand that submission, thank you. 50] CHOAT 51] Yes, your Honour. It is clear, your Honour, that the applicant is incapacitated and is incapacitated to a large extent. Although he has worked on occasions on a part-time basis doing work other than as a shearer, it is clear that URJ CRISP v CHAPMAN (Powell JA) 13 for all material times, your Honour, he was incapacitated on a partial basis if not totally and since surgery he has been totally incapacitated, in my submission. [52] Your Honour, in my submission he would be entitled to a full award on the basis of total incapacity, such award being payable by the last employer, being Chapman. That the case which Mr Choat was advancing on behalf of the Appellant continued as one based on disability due to "an industrial disease" is, I think, demonstrated by the following passages which occur during the course of Mr Choat's submissions in reply: 53] "HER HONOUR. 54] __.... But I think you have to argue that the stenosis was the disease, and if you do I would find it very difficult to say that there was a material alteration in that condition because of two days work or three days work on two separate occasions. 55] CHOAT 56] Your Honour, we are not relying on s16, we are not saying that - we are not relying on s16 which applies to the situations where there has been an aggravation or acceleration. 57] HER HONOUR 58] Well, what is it that you are saying. 59] CHOAT 60] Or deterioration of a disease. We submit that the circumstances of this matter fall within s15 of the Act, that the stenosis is a disease of gradual process brought about through the entire period of time that the applicant was employed as a shearer. (3) 62] HER HONOUR 63] But I have to find more than the co-existence of a disease which might be a disease in terms of the Act and the cessation of employment, do I not. CHOAT 64] We have to find, your Honour, that it is a disease contracted by a worker in the course of his employment as a shearer - in the course of his employment under s4 - Your Honour, we would submit that the evidence here is that the disease was contracted in the course of employment and to which the employment was a contributing factor and the whole period of his employment as a shearer was a contributing factor to the stenosis, and as I have said that includes the period when he was employed by the respondents and I think that is clear from Dr Dan's evidence today, that the shearing over the whole period of time right through up until Chapmans was a contributing factor to the stenosis. Having established that, your Honour, under s15 the injury is deemed to have occurred at the time of the incapacity. [65] HER HONOUR [66] Do I not have to find some connection or causation, though, between the employments of which you complain and some development or deterioration or exacerbation in that disease. If a man has heart disease, Mr Choat, he has had it for 20 years and he goes and works for you writing figures in a book and he happens to have a heart attack while he is doing that I have to do more than say, he was working for you at the time that he had the heart attack. 14 UNREPORTED JUDGMENTS 67] CHOAT 68] Yes. Your Honour. 69] HER HONOUR 70] Or he was working for you at the time he became disabled or incapacitated. I have to find a causation and it seems to me that the Act defines what that is in the terms of a disease and that is in s4, aggravation, acceleration, exacerbation or deterioration where the employment was a contributing factor. 71] CHOAT 72] Yes, your Honour, you have to find that the employment was a contributing factor. Well in my submission, your Honour, the employment as a shearer over the entire period that the applicant was employed as a shearer but particularly the period of time that he was employed with Chapmans was a contributing factor. Bearing in mind - " Despite the basis on which Mr Choat advanced the Appellant s case it is I think, clear from the passages in her Judgment to which I will shortly refer, either, that Her Honour believed that the Appellant's case was that, although his condition was not due to "an industrial disease", it had been caused by some incident occurring either while the Appellant was working on Bullamalita or while the Appellant was working on Lumley Park which incident exacerbated the pre-existing condition; or, alternatively, that even if the Appellant's pre-existing condition was due to "an industrial disease', nonetheless he was not entitled to recover compensation unless he could point to some incident occurring while the Appellant was employed at Bullamalita or at Lumley Park, which incident exacerbated the Appellant's pre-existing condition. That this was the basis upon which Her Honour approached the case is indicated by the following passage in her Judgment (Appeal Book 136) [73] As I understand the address by the applicant's counsel, he asks me to find that at relevant times, the applicant was suffering from a disease, contracted by the applicant in the course of employment and to which the employment was a contributing factor and that the applicant suffered injury in the course of employment with Bullamalita Pastoral Company and/or in the course of employment with the Trustee of the Chapman Estate; that the 'injury' in question was a 'stenosis' of the applicant's spine. I understood it to be common ground or ultimately undisputed that for a considerable time and probable (sic) for many years prior to the events of which the applicant complained, his spine was in a degenerative condition which caused stenosis. As I understand the legislation and the manner in which counsel has presented the applicant's case, to make a finding against one or other of the named respondents, I would have to find that employment for short periods in December 1986 and January 1987, caused a material alteration in the pathology of the disease which is alleged. [74] and that that understanding was the basis upon which Her Honour founded her conclusion that the Appellant had failed to make out his case is demonstrated by the following passage at the conclusion of Her Honour's Judgment (Appeal Book 140): [75] 'On the whole of the medical evidence, it appears clear that the stenotic condition of the applicant's spine, developed gradually, over a period of many years. URJ CRISP v CHAPMAN (Powell JA) 15 The medical evidence before me, does not persuade me that the stenosis was materially aggravated, exacerbated or caused to deteriorate, by work performed for 2 days, in December 1986 and for 2 days, in January 1987. In reaching that conclusion, I have had due regard to the applicant's evidence of debilitating and incapacitating symptoms which were probably caused by entrapment or compromise of a nerve root, some time prior to the 2 days' work performed for Bullamalita Pastoral Co, in December 1986. For those reasons, there will be an award for the first and second respondents." In his Notice of Appeal (Appeal Book 241-144), the Appellant took three grounds of appeal they being: [76] "1. That Her Honour was in error in circumstances in which she found that the appellant was incapacitated as a result of the performance of shearing work over a number Of years and that the effects of the aforesaid work constituted a disease of gradual on-set, and not making an award for the applicant. [77] 2. That Her Honour misdirected herself by inquiring whether the appellant had suffered the aggravation, acceleration, exacerbation or deterioration of his back condition when such an enquiry was not relevant to the outcome of the case, Her Honour having already found that the appellant suffered from a disease of gradual onset. [78] 3. Alternatively that Her Honour was in error in disposing of the case solely on the basis of a finding that the appellant had not suffered an aggravation, acceleration, exacerbation or deterioration of his condition and should have inquired in addition whether or not the applicant suffered from a disease of gradual onset. [79] eeeseseeseteseeeeees " Although the only parties joined as parties-Respondents to the Appeal were the Respondents to the original application, we have been informed that, in pursuance of a direction given prior to the Appeal being listed for hearing, all those who had been joined as Third Parties to the application were served with a copy of the Notice of Appeal, and that, as had occurred prior to the hearing of the application, all Third Parties were content that their respective interests would be adequately protected on the hearing of the Appeal by the Respondents. In the circumstances, the Court was content to proceed to deal with the substance of the Appeal. Reduced to their most simple form, the submissions advanced by Mr B J Gross QC who appeared with Mr R F Wilkins for the Appellant were, first, that the trial before Her Honour miscarried, as Her Honour misapprehended the basis upon which the Appellant's claim was advanced; second, and in the alternative, that, if Her Honour did not misapprehend the basis upon which the Appellant's case was advanced, she nonetheless applied the wrong legal test to determine whether or not the Appellant had made out that case. While denying that, as Mr Gross had submitted, O'Toole CCJ had misapprehended the nature of the Appellant's case, Mr C R R Hoeben, who, on this occasion, appeared for both Respondents, submitted that, even if the contrary be so, it was of no consequence, first, since Her Honour held that the Appellant's ultimately disability was due to the progression of symptoms which first manifested themselves some days prior to the Appellants commencing to work at Bullamalita; and second, that that finding, being a finding of fact, even if - which was denied - perverse, could not be challenged in this Court having regard to the limited nature of the appeal available in the present case (reference was made to 16 UNREPORTED JUDGMENTS Azzopardi v Tasman UEB Industries).! It is necessary, first, to deal with the second of Mr Hoeben's submissions for, if Her Honour's Judgment can be read as involving a finding that the Appellant's ultimate disability was not due to "a disease", whether "an industrial disease" or otherwise, then, so long only as there was evidence before Her Honour upon which such a finding might be based, that finding is not susceptible to challenge on this Appeal, and, thus, would be fatal to this Appeal. With respect, it seems to me that this submission is not well founded first, since, while it is true that Her Honour found that there was a material change in the Appellant's symptoms shortly before he commenced employment at Bullamalita, Her Honour did not find that those symptoms were not related to the stenotic condition of the Appellant's spine, and, second, that even if Her Honour had so found, there would have been no evidence before her upon which such a finding could be based - on the contrary, the evidence, which, as I have earlier noted, was not contradicted by any medical evidence tendered on behalf of the Respondents, was to the effect that those symptoms were symptoms of nerve root compression, which nerve root compression was due to the narrowing of the spinal canal caused by stenosis, which stenosis was the manifestation of the degeneration of the Appellant's spine as a result of stresses and trauma to which the spine was subjected by the Appellant's employment as a shearer. Whether or not the position be that O'Toole CCJ misapprehended the basis upon which the Appellant's case was advanced at the trial, the passages from the submissions and from Her Honour's Judgment which I have set out above make it clear, in my view, that the test which Her Honour applied in determining that the Appellant had failed to make out his claim for compensation, was, not the test appropriate to be applied to a case based upon the provisions of s49(b)(i), s9(1), s15(1), s33 of the 1987 Act but, rather, was that appropriate to be applied to a claim based on the provisions of s4(b)(ii), 9(1), 16(1)(a), 33 of the Act, for it is and it has long been established (Smith v Mann?) that, where a worker has contracted a disease which is of such a nature as to be contracted by a gradual process, it is not necessary for him, on an application for compensation based upon the former group of sections, to establish that the disease was actually brought about, or contributed to, by the employment undertaken for the employer, or employers, during the 12 months preceding his disablement; it is enough if the disease is incidental to that class of employment so that it can be attributed to service therein. That this is so is demonstrated by the following passage in the Judgment of Rich J in Smith v Mann3: "In my opinion the provision was not intended to restrict the right of the workers, but to enlarge them. Its object was to fix upon the ultimate employer of the worker a direct liability to him, leaving that employer to recover from previous employers subject to the limitation of time expressed in the section. No doubt in the case of the ultimate as in that of the other employers the employment must be one to the nature of which the disease of the worker was due, but it is not necessary that the worker should establish that the disease from which he is suffering was actually brought about or contributed to by the employment of the last employer." 1. (1985) 4 NSWLR 139. 2. (1932) 47 CLR 426. 3. (supra) at 439-440 URJ CRISP v CHAPMAN (Powell JA) 17 [80] in the following passage in the Judgment of Starke J4: "The Act contains no limitation of time within which the disease must be contracted. It must arise, no doubt, from the nature of the employment. But it is not necessary that it should arise 'out of the particular service of the particular employer sued': it is enough if the disease is 'incidental to that class of employment so that it can be attributed to service therein' (Blatchford v Staddon and Founds [1927] AC 461, 470). The compensation can be recovered only against the employer in whose employment the worker is or who last employed him. And the employer by whom such compensation is payable may obtain contribution from the employers who during the 12 months preceding a worker's incapacity employed him in any employment to the nature of which the nature is due. The Commission thus appears to have proceeded upon an erroneous interpretation of the Act." and in the following passage in the Judgment of Dixon J5 (as he then was): [81] "The nature of a disease contracted by a gradual process is such as to make it difficult, and sometimes impossible, to say how far a particular period of employment contributed. The purpose of the subsection is to pitch upon the latest employer for the purpose of immediate liability to the worker, leaving him to recover over from others by way of contribution. the description of the disease implied in the expression in the second paragraph 'employment to the nature of which the disease was due' may properly be carried back into the first paragraph for the purpose of understanding its meaning. In other words, the diseases dealt with are those which are contracted by a gradual process and are due to the nature of an employment. The expression in the first paragraph 'in whose employment the worker is or who last employed the worker' implies a reference to a point of time or event, and it is apparent that the occurrence of incapacity is the event or time intended. The employer at the time of or last before the incapacity is made primarily liable. It seems proper to understand the provision in the first paragraph as confined to employers who do employ or have employed the worker in an employment to the nature of which the disease is due, but any further restriction upon the class of employment or any further requirement as to causation seems unwarranted." In these circumstances, it seems to me inevitable that the Appeal should be upheld. However, as, given the conclusion to which she had come on the question of liability, it was not necessary for O'Toole CCJ to consider, either, the amount of any compensation to which the Appellant was entitled, or, the rights inter se of the Respondents or the Third Parties, it is not open to this Court to do other than to remit the matter to the Compensation Court for reconsideration. For these reasons, the Orders which I would propose are as follows: 1. ORDER that the Appeal be upheld. 2. ORDER that the Award made by O'Toole CCJ on 8th August 1991 be set aside. 3. ORDER that the Application be remitted to the Compensation Court for reconsideration in accordance with these reasons. 4. ORDER that the Respondents pay the Appellant's costs of the Appeal. 5. ORDER that the Respondents, if qualified, have a certificate under the Suitors Fund Act 1951. Representation: 4. (supra) at 443-4 5. (supra) at 449 18 UNREPORTED JUDGMENTS Counsel for the appellant: B J GROSS QC and R F WILKINS Solicitors for the appellant: GALLAND ELDER LULHAM (GOULBURN) Counsel for the respondent: C R R HOEBEN Solicitors for the respondent: DUNHILL MADDEN BUTLER