ROAD AND TRAFFIC AUTHORITY v STEPHENSEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SHELLER and POWELL JJA 13 September 1995, 11 October 1995 [1995] NSWCA 391 WORKERS' COMPENSATION — incapacity — lead poisoning — painters removing lead paint from Sydney Harbour Bridge — unfit to return to that work — held: Finding of incapacity upheld — no error in assignment of burden of proof. JUDGES — reasons — adequacy of — held: Adequate. WORKERS' COMPENSATION — incapacity — nature and condition of work — lead intoxication from work removing lead paint from Sydney Harbour Bridge — employer provides "space suit" to prevent exposure to lead — primary Judge (Moroney CCJ) preferred medical evidence that workers had been exposed to lead and must never be exposed to lead again — whether judge effectively reversed onus of proof — whether judge gave adequate reasons — whether evidence sustained conclusion of incapacity — whether workers obliged to rely on s12A of the Workers' Compensation Act 1926 or s47 of the Workers Compensation Act 1987 — held: (Sheller JA; Kirby P and Powell JA concurring); (1) The workers suffered a physical incapacity for actually doing their pre-injury work removing lead paint and, having been subjected to lead poisoning, they were not fit to do that work and, hence, incapacitated in the relevant sense; (2) The workers were not obliged to rely on s12A of the 1926 Act, or s47 of the 1987 Act; (3) The primary judge did not reverse the onus of proof; and (4) The reasons given for the judge's conclusion were adequate in law; (5) Appeal dismissed. Thompson v Armstrong and Royce Pty Ltd (1950) 81 CLR 585; Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 consd. Workers' Compensation Act 1926, s12A Workers Compensation Act 1987, s47 ORDERS Appeal dismissed with costs. Kirby P I agree with Sheller JA that the appeal should be dismissed with costs. I also agree that it is possible to reach that conclusion in this case without the need to rely upon s12A of the Workers' Compensation Act 1926, now s47 of the Workers Compensation Act 1987. In deference to the parties' submissions, however, I would say this about those sections. ORIGINS AND PURPOSE OF S12A OF THE 1926 WORKERS' COMPENSATION ACTS It was inserted in the 1926 Act by the Workers' Compensation (Amendment) Act 1964. Explaining the purpose of s12A the Minister (Mr Landa), said: "[It] provides that incapacity for employment of a particular kind shall be deemed to have arisen if, by reason of compensable injury, the worker cannot continue to engage therein without immediate and substantial risk of further injury. At present under the Act where a worker has acquired what is called a 'sensitivity' to a particular substance used in his work so that he cannot handle the material without immediate risk of the recurrence of dermatitis, he is regarded as incapacitated for that work and he is not expected to return to work and actually contract the disease, before becoming entitled to compensation. 2 UNREPORTED JUDGMENTS There are cases however, where the worker has been advised by his doctors that there is some fairly substantial degree of risk in returning to work, but the doctor is not willing to certify that he has become so sensitive to the condition that there is an immediate risk of its recurrence. The proposed amendment is designed to cover cases of this nature so that where there is a substantial degree of risk of recurrence of an injury, the worker is deemed to be incapacitated for that particular type of employment." See New South Wales Parliamentary Debates (Legislative Assembly), 1 December 1964, 2434, 2435. The statutory provision, as amended in 1979, was considered by this Court in Foamlite (Aust) Pty Ltd v Ozyit [1984] 2 NSWLR 156 (CA). Referring to the purposes of s12A, Mahoney JA said: "S12A was added to the Act by Act No 66 of 1964. It provided that a worker who 'as a result of injury' 'is unable.... to engage in employment of a certain kind... ' should be deemed to be relevantly incapacitated. A statutory provision frequently takes the form of providing that, if a certain state of facts exists, certain rights and obligations shall arise. S12A was of this kind: it provided that, if the relevant liability existed ('... is unable... to engage... ') then the worker should be deemed to be relevantly incapacitated." At 157f, Mahoney JA went on: "[S12A] was, in my opinion, a remedial provision. The mischief to which it was directed was that such an inability was not, or was thought not to be, incapacity, within s11 and s12 of the Act. The purpose of the section was to ensure that such a state of facts did constitute an incapacity affecting the rights and liabilities flowing from a pre - as well as a post - 1964 injury. If the purpose of the Act be to remove such a mischief it is difficult to see why it should leave the mischief existing in respect of states of inability which commenced before the operation of the 1964 Act. Therefore, in my opinion, the unamended s12A operated upon any state of inability within its terms, whether that state of inability commenced to exist before or after the commencement of the section." S12A is not itself a separate source of a statutory right to compensation benefits. Instead, by its terms, it is a deeming provision designed to cure a deficiency of evidence in a particular case and to bring into effect the ordinary foundation of entitlement to benefits, viz incapacity. The claim for compensation is then founded, relevantly, on a provision of the Act which affords entitlement to benefits. Relevantly to a case of partial incapacity, this was s11 of the 1926 Act and is s40 of the 1987 Act. In the course of determining the availability of benefits under such a section, the Compensation Court was, and is, entitled to regard ie worker as incapacitated, even if the physical signs of the incapacity have not yet manifested themselves, simply because the worker has kept away from the cause which would occasion a recurrence of the manifestations. In some such cases, a difficulty has been experienced in obtaining a medical practitioner's certificate that the worker is (without exposure to the irritant) actually then incapacitated. As the extract from the Hansard shows, it was to cure this problem that the Act was amended to make it clear that for its purposes, the existence of an immediate and substantial risk of incapacity upon a return to the relevant work, would be taken to be "incapacity". It would not be necessary for the worker repeatedly to return and expose himself or herself to the irritant or other cause before entitlements to statutory benefits arose. To impose such a requirement on the worker would be completely unreasonable. Yet the hesitation URJ ROAD AND TRAFFIC AUTHORITY v STEPHENSEN (Sheller JA) 3 of some medical practitioners to certify to current incapacity gave rise to the need to provide a statutory solution. cf Pennati v Electric Power Transmission Pty Ltd [1976] WCR 188 (WCC), 191. AMENDMENT TO DELETE THE NEED FOR IMMEDIATE RISK OF INJURY. The original obligation to prove that the risk of injury upon re-exposure in the employment should be "immediate and substantial" gave rise to an amendment to s12A by the Workers' Compensation (Amendment) Act 1979. Explaining that measure, the Minister (Mr WaLker) said: "S12A of the present Act requires that a worker may be treated as incapacitated for work of a particular kind where, as a result of injury, he would be unable without immediate and substantial risk of injury, to engage in that employment. This provision has been a dead letter for many years because of its onerous nature. It is proposed to remove the immediate requirement, so that substantial risk of injury will be the only condition for the operation of the section." See New South Wales Parliamentary Debates (Legislative Assembly), 28 November 1979, 4160, 4169. THE SECTION WAS NOT NEEDED IN THE PRESENT CASE It is in its amended version that the section passed into the 1987 Act. I would agree with the submissions for the respondent. It was not necessary for a worker to gain the benefit of s12A, nor is it now necessary to secure the application of its successor, s47 of the current Act, to plead reliance on the provision. This is because it is not, as such, a source of the right to benefits. It is purely an evidentiary provision designed, in cases to which it applies, to fill a gap which can exist in the evidence as to "incapacity". It is particularly designed to meet the case where medical evidence holds back from certifying incapacity" upon the more conventional basis. Such was not the case here. Dr Ibels, whose evidence was accepted by the trial judge, concluded that it was "mandatory" that the respondents be removed from all lead exposure. This was because of the nature of the physical condition of "lead burden" to which they had been brought by their employment with the appellant. By reason of that condition, they were unable to do work with the appellant. They were so certified by Dr Ibels. It was therefore not necessary, in this case, to rely upon the deeming provision, provided the Judge accepted Dr Ibels' opinion. As he did. Sheller JA INTRODUCTION For some years the appellant, Road and Traffic Authority (RTA), employed the respondents, Ronald John Stephensen, Phillip Giunta, and Con Colattis in work on the Sydney Harbour Bridge. Each applied for compensation in the Compensation Court alleging that the nature and conditions of the work caused lead intoxication leading to impaired concentration, loss of memory, irritability, loss of energy, abdominal pain, depression and anxiety with resulting partial incapacity. Moroney CCJ heard the applications, together with applications by two other workers, and on 28 May 1992 made awards in their favour of weekly payments, in the case of Messrs Stephensen and Giunta, from 20 March 1989 and, in the case of Mr Colattis, from 1 July 1989 to date and continuing. The appellant appeals from his Honour's awards. The appellant did not proceed with the appeal against the other workers. FACTS 4 UNREPORTED JUDGMENTS Before the commencement of the awards made by his Honour, each of the respondents was involved in the removal of lead paint from the bridge, received various doses of lead into his system and was paid compensation, on the basis of total incapacity, and for most medical expenses up to that date. The weekly payments awarded were based on the difference between the amount paid to employees who did lead work and those who did not and were agreed, as were their awards, as representing an appropriate calculation of the amount of weekly compensation. THE TRIAL JUDGE'S REASONS FOR JUDGMENT All the respondents relied upon the evidence of Dr Lloyd Ibels, an eminent nephrologist, who, his Honour said, had treated and examined all of them over a lengthy period of time. The appellant relied upon the evidence of Dr WA Crawford, an eminent consultant in occupational and environmental health. Also tendered in evidence was a report of an occupational hygienist with WorkCover Techsource, Mr Mohammed Faiz. Mr Faiz was retained to evaluate personal protective equipment in use to protect RTA workers against lead exposure. He said that painters wore battery operated full-face masks with appropriate cartridges, or full-face masks with appropriate filters, which accorded them protection 100 times the Exposure Standard (ES). In appearance the work outfit was described as a space suit. Other gear was provided for meal times and provision made for workers to take showers and change into special overalls and shoes before entering the lunch room. Mr Faiz observed that the bridge had good natural ventilation, which prevented the accumulation of lead dust in the breathing zone of the workers. In his opinion "In the observed situation, lead poisoning among workers is very unlikely on account of the personal protective equipment in use, the limited work schedule in surface preparation and the good occupational hygiene practices in force." After referring to Mr Faiz's evidence his Honour summarised the effect of Dr Ibels' evidence as: "These gentlemen have been exposed to lead and they must never be exposed to lead again." The judge then said: "That this is unlikely is not good enough." He referred to the contrary view of Dr Crawford that the respondents had been exposed to lead but had all got back within normal limits and could all go back and work where they were exposed to lead again, provided they were monitored. This coupled with Mr Faiz's opinion as to further risk was the RTA's case. His Honour said that he found the evidence of Dr Ibels particularly persuasive and much preferable to the evidence of Dr Crawford. "The amount of investigation and treatment which [Dr Ibels] carried out in respect of each and every one of [the respondents] persuades me that his opinion that these men should not be again exposed to lead is to be preferred." He said further that the proof of the pudding was in the eating. The men had not been required to go back to the lead work by the employer, who had not sought to challenge the certification that they should not go back. The judge was satisfied that the men had received an injury, which had resulted in "this partial incapacity" and should be compensated accordingly. APPEAL As Mr Shore, who appeared for the appellant, put his submission there were two grounds of appeal: first that the facts found by his Honour did not support a finding that the respondents were suffering any incapacity and second that even if partial incapacity was established, his Honour had not found nor was there evidence which would have enabled him to find that the respondents suffered any physical incapacity for doing lead paint removal work on the bridge. URJ ROAD AND TRAFFIC AUTHORITY v STEPHENSEN (Sheller JA) 5 While his Honour encapsulated the evidence of Dr Ibels with the proposition that the respondents must never be exposed to lead again he went further and accepted his evidence as a whole. Part of that evidence was: That Mr Giunta had a toxic lead burden. Dr Ibels gave the following evidence about him: "Q. If that man received any more lead exposure what might happen. A. Well, the situation will only get worse. Once you have accumulated a level of lead that gives you a high blood lead level or a positive EDTA chelation test then it really, it should be mandatory that they are removed from all lead exposure because they have already got a very high total body lead burden. That is something you really cannot absolutely quantitate [sic? quantify] because you really need to melt people down to find out what their total body lead is but once the level is that high, it is extremely unwise to have any further lead dust exposure and because if they have further exposure their symptoms are only going to escalate and become progressively worse." Of Mr Colattis Dr Ibels said: "Q. Would it be also consistent with a desire to keep him away from possible lead exposure to prevent him performing that sort of work if it involved entering areas where that exposure was possible even though he wore something called a space suit which prevented, or is supposed to prevent ingress of lead into his person. A. I think that would be hazardous in Mr Colattis' case. Q. It would be actually hazardous for him having regard to his problems regarding memory and the complaints of irritability and I think gut pain to work at heights in the way that I have described to you. A. I feel that would be inappropriate to put a person in his position in that position in the work place. Q. So three independent readings. One, the physical symptoms; two, the unreasonable exposure to lead; and three, the safety problem in relation to possible falls relating to the cerebral symptoms. A. Yes." About Mr Stephensen Dr Ibels said: "Q. Doctor, I suggest to you that if he were to return to work wearing a protective helmet and suit then provided that were an effective helmet and suit then that would achieve your restriction of him not returning to work in a lead environment. A. Any exposure to lead in Mr Stephensen would be criminal." Dr Ibels did not accept that the outfits proffered would give 100 percent protection. He said this was not possible. "Q. You may have the good fortune to know that but have you ever made a protective suit. A. Not lately, no. Q. Have you ever tested protective suits. A. No. Q. Then perhaps you would be good enough to just assume that a suit for the moment is 100 percent effective, if it is then - A. There are two components to this though. Q. If I could just finish my question. If a suit is 100 percent effective against lead exposure then may I take it that you would have no objection to Mr Giunta working inside one. A. I would but not for the reason of the suit. In that as I said there are two aspects to this and I know from these guys that they do not wear them when they get into tight spots and they leave the headgear off or they don't get it on properly. Any exposure in these guys is going to be critical and reliability with wearing the apparatus is not entirely their responsibility as I see it and it is not enforced that strictly. I do not believe you can make a suit that is 100 - I think that is an ideal world. I mean that is - I mean it would be nice if it were true." 6 UNREPORTED JUDGMENTS Lead intoxication is an important cause of chronic renal failure, of kidney dysfunction and hypertension. Dr Ibels said: "\.. the lead that we see as a problem in terms of causing serious kidney and other disease is particulate lead dust and powders which is absorbed from the gas - usually the gastrointestinal tract from ingestion. But the ingestion can come about from a number of ways. You can get it from having contamination of your clothing and beard et cetera and with smoking you can get lead into your system that way. Lead is readily absorbed from the gastrointestinal tract and then persists in the bloodstream for a fairly short period of time before it is rapidly bound into deep tissues, particularly brain, kidney and long term in the bone. Once it gets into your deep tissues it is there pretty much for life because it is half-life in bone; that is the time you go from a concentration to half that concentration just by natural means, in something like 19 years. So it persists after getting into your system for a long time. Q. Notwithstanding the chelation process. A. The chelation allows you to bring that level down but you are only bringing down the exchangeable lead, you do not actually address the lead that is in deep bone stores but you do get available surface lead out into the bloodstream and then out into urine but then you get an equilibration with the lead in the tissues and this is why chelation is often required on a number of occasions because you are only getting the exchangeable lead out." This evidence, if accepted, demonstrated that the respondents were not fit to be exposed to further lead ingestion in lead paint removal work. The trial judge did accept Dr Ibels' evidence. The appellant's argument is that this was not evidence of incapacity for the work of lead paint removal but to adopt the language of s12A of the Workers Compensation Act 1926 was evidence that if they resumed lead paint removal work there was risk of further injury; compare s47 of the 1987 Act. The appellant relied upon passages from the judgment of the High Court in Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 at 177-179. Amongst the dicta quoted by their Honours is that of Latham CJ in Thompson v Armstrong and Royse Pty Ltd (1950) 81 CLR 585 at 595: "The phrase "where total or partial incapacity for work results from the injury' must refer to physical injury resulting in physical incapacity for actually doing work." The respondents' case, as appears from their claim, was that they suffered from various symptoms of lead poisoning such as impaired concentration and tiredness. However his Honour made no findings about these claims and did not base his conclusion of incapacity on them. The appellant submitted that the respondents had failed to prove incapacity. At most they had proved that, although as a result of the treatment they received, they were capable of returning to lead paint removal work, there was a risk that they would suffer further injury by succumbing again to lead poisoning. Analogous situations were discussed in argument. For my part I think that Dr Ibels' evidence was that, having been subjected to the lead poisoning he described, the respondents were not fit to do, and hence suffered a physical incapacity for actually doing, lead paint removal work. In my opinion this part of the appeal fails. The second part of the appellant's submission is that the respondents, bearing the onus, had not proved nor did his Honour find that they suffered from any physical incapacity to return to work in a situation where they were provided with the outfits Mr Faiz described. I do not think this takes sufficient account of Dr Ibels' evidence. This was plain. Such was the respondents' condition that they URJ ROAD AND TRAFFIC AUTHORITY v STEPHENSEN (Powell JA) 7 were not fit to return to work removing lead paint even if supplied with this clothing and assuming the appropriate monitoring of their activities. The appellant submitted that his Honour reversed the onus of proof by suggesting that it had not gone far enough by demonstrating that lead poisoning was unlikely or even in the language of Mr Faiz "very unlikely". I am not persuaded that his Honour's approach was wrong. The respondents proved that they were suffering from physical incapacity for lead paint removal work. The appellant argued that since their injury it had improved the work environment by introducing the work clothing referred to. I incline to the view that in these circumstances the onus was on the appellant to demonstrate that the clothing provided overcame the problem. However this may be, his Honour clearly accepted the evidence of Dr Ibels that, even using this clothing, the respondents were not fit to do the work and hence under a physical incapacity for it. The appellant filed in Court a further amended notice of appeal in which it formally raised a ground that the trial judge had failed to provide any or any sufficient reasons for his finding of incapacity. The respondents objected to this ground being raised at so late a stage. If there were substance in the point I would allow the amendment but in my opinion his Honour's reasons were sufficient to expose why he came to the conclusion he did. Finally the appellant asserted that the claim should properly have been brought on the basis of deemed incapacity as provided in either s12A of the 1926 Act or s47 of the 1987 Act. The respondents did not rely on either of these sections and in my opinion there was no need for them to do so. CONCLUSION I propose that the appeal be dismissed with costs. Powell JA I agree with Sheller JA. Appeal dismissed with costs. Counsel for the Appellant: H Shore Counsel for the Respondent: JA McCarthy QC/GM Watson Solicitors for the Appellant: Hunt and Hunt Solicitors for the Respondent: McClellands