MAYNE NICKLESS LTD v ROJAS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY and MEAGHER JJA 11 February 1994, 29 March 1994 [1994] NSWCA 198 WORKERS' COMPENSATION — multiple injuries — apportionment between employers/insurers — question of fact — judge believes worker — apportionment 70% attributable to primary injury — held: No error — award upheld. JUDGES — reasons — duty to provide — held: Reasons for award sufficiently provide grounds. WORKERS' COMPENSATION — multiple injuries — apportionment as between successive injuries at times when the employer was differently constituted and insured — judge apportions 70% of responsibility to the first employer in whose employ the worker first sustained injury to back — that employer complains that subsequent injuries should bear larger share of the apportionment — argues that worker continued to work after first injury so that his incapacity did not "result from" such injury but from later injuries — held: (dismissing the appeal from the award entered by Moran CC)J): (1) It was open to the primary judge to accept, as he did, the truthfulness of the worker's testimony that the first incident had initiated his back pain which continued thereafter and was suppressed only by the use of painkillers; (2) Upon that footing, the award entered was not shown to be wrong and would not be disturbed by the Court of Appeal. Pickersgill v Freightbases Pty Ltd [1983] 3 NSWLR 117 (CA) and March v E & MN Stramare Pty Ltd (1991) 171 CLR 506 considered. JUDGES — reasons — obligation to provide — workers' compensation award — whether compensation judge gave adequate reasons — held: The judge adequately stated the grounds for his decision. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA) applied. Workers Compensation Act 1987, s22 Kirby P Meagher JA has stated succinctly the issues presented in this appeal. Moran CCJ accepted the worker. He therefore, by inference, accepted that the worker's physical injury resulted from the incident at work, for which the appellant was responsible. The fact that the worker persisted at work, with the aid of analgesics, cannot erase the foundation of Moran CCJ's decision on the apportionment. That decision was open to his Honour. It has not been shown to be wrong. I would not disturb it. I agree that the reasons of Moran CCJ reach the standard required by the holding derived from the majority opinions in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA). Accordingly, I agree that the appeal should be dismissed with costs. Priestley JA The facts of this appeal are set out in Meagher JA's reasons. Despite the earnest arguments of appellant's counsel, also set out in Meagher JA's reasons, I do not see that there is any basis for interfering with the essentially factual conclusions of Moran CCJ. Also, I think he sufficiently explained in his reasons for judgment why he reached the conclusions he did. 2 UNREPORTED JUDGMENTS In my opinion the appeal should be dismissed with costs. Meagher JA This is an appeal from a decision of Judge Moran who made an award in favour of the applicant worker, Mr Rojas, who is a respondent (and an unnecessary one) to this appeal, which is only concerned with the question of which of his employers should bear the brunt of the liability to compensate him. The worker was employed as a diesel mechanic by a transport business known as "IPEC Transport Group" between 1975 and 22 April 1989. The ownership of this business, although the name remained the same, varied from time to time, and for present purposes was as follows: (a) 4 October 1983 to 29 June 1984 - the appellants (Mayne Nickless Ltd, Roadswift Transport Pty Ltd, and Eslea Holdings Ltd); (b) 30 June 1984 to 30 September 1988 - the second respondents in this appeal (Mayne Nickless Ltd and Roadswift Transport Pty Ltd); (c) 1 October 1988 and thereafter - the third respondent to this appeal (Mayne Nickless Ltd). The interests of the respondents inter se differ, particularly in view of their insurance arrangements. The applicant worker in the course of his employment suffered injury to his lumber spine in four separate lifting incidents, viz. on 24 April 1984, 16 June 1984, 4 February 1987 and 25 August 1987. On 22 April 1989 he ceased work because of increasing symptoms and on 29 May 1989 underwent surgery for what was described by the treating surgeon as a "large disc bulge" at the L4-5 level. He did not return to work thereafter. He brought an application against his various employers alleging that the cause of the injury was one or more of the lifting incidents. In addition, he alleged that the nature and conditions of this work, namely heavy lifting and repetitive bending, during respective periods of employment caused further injury. Judge Moran found that the worker was totally incapacitated for work for the short absences following each of the incidents and from 23 April 1989 and continuing, made awards accordingly. There is no challenge to these findings of incapacity. However, what did evoke a challenge was his Honour's apportionment under s22 of the Act for the liability for the continuing award, which was as follows: Appellants 70% Second respondent 15% Third respondent 15% An initial problem which arose was whether, in view of the procedures adopted at trial, and bearing in mind the date when the new Act came into force, the appellants were restricted to an appeal on a question of law or could appeal on both fact and law. In my opinion they were probably entitled to appeal on both fact and law, although in the event I do not think it matters. Mr Poulos QC for the appellants submitted that the incapacity in respect of which the worker was entitled to be compensated did not really "result" from the 1984 incidents, and certainly not from the earlier of these two. According to his submission, there may have been some historical connection, but that is not enough: Pickersgill v Freight Bases Pty Ltd (1983) 3 NSWLR 117. He submitted that where there is an incident, followed by a long period of work, then a later incident, followed by total incapacity, it is only "common sense" to attribute the incapacity either wholly or at least largely to the later incident; the temporally most proximate incident is the relevant cause of the incapacity; the High Court decision of March v EH & M H Stramere Pty Ltd (1991) 171 CLR 506 was URJ MAYNE NICKLESS LTD v ROJAS (Meagher JA) 3 prayed in aid. As he could have said, but did not: "C'est la dernier goutte qui come". It was pointed out that in the five or six years which elapsed between the initial incident and the worker's retirement from the work force he had been working continuously at his usual job - or at least as continuously as the intervening incidents would permit. He also submitted that the period between the final incident and the worker's retirement was, on the medical (and particularly the radiological) evidence, a major contributor to the incapacity. But these submissions - attractively as they were put - do tend to overlook the basic fact that to determine which of a series of incidents causes an incapacity to result is a question of fact to be decided according to the circumstances of each cased that in each case more likely than not a question of which evidence is credible will be involved; and that once the primary judge has decided the case on credible evidence there is nothing an appellate court can do. In the present case his Honour believed the worker, as he was clearly entitled to do. The worker said that the initial incident caused him severe pain, which increased on his return to work and was only subdued by large quantities of pain killers, that the pain began to extend down his left leg, that his back was sorest after the first incident, that thereafter the pain was increasing all the time, and that in effect the subsequent incidents only reawakened the pain suffered because of the first incident. Nor is that inconsistent with the medical evidence. Quite the contrary. Dr Sheehan said that in his opinion the April 1984 incident brought about a disc lesion which subsequent work had aggravated. Dr Bryan said that the 1987 incidents had aggravated a pre-existing problem. And Dr Burcher attributed the origin of the worker's problem to the initial incident. The appellant's first submission must therefore fail. The second proposition advanced by Mr Poulos QC was that the award would be set aside on the ground of absence of reasons in accordance with Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247, a ground which is rapidly becoming the last refuge of a shaky appeal. Although his Honour did not say so in monosyllables, it is obvious that his decision was based on the evidence which I have endeavoured to recite. In my opinion the appeal should be dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: J Poulos QC/G R Petty Solicitors for the Appellant: Abbott Tout Russell Kennedy Counsel for the 1st Respondent: C J Wynyard Solicitors for the 1st Respondent: Nevill & Edwards Counsel for the 2nd Respondent: N T Robson Solicitors for the 2nd Respondent: Hunt & Hunt Counsel for the 3rd Respondent: C R R Hoeben Solicitors for the 3rd Respondent: Pieterse & Pieterse