ALLMEN INDUSTRIAL SERVICES v OLIVE; INSURERS' GUARANTEE FUND - NEM INSURANCE ASSOCIATION LTD (IN LIQ) v OLIVE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER JJA and ROLFE AJA 13 July 1995 [1995] NSWCA 15 WORKERS COMPENSATION ACT 1987 — APPEAL — s10 EXISTENCE OF CONFLICTING EVIDENCE — EVIDENCE ACCEPTED NOT INCONSISTENT WITH ESTABLISHED FACTS NOR GLARINGLY IMPROBABLE — DEVRIES v AUSTRALIAN NATIONAL RAILWAYS COMMISSION AND ANOR (1993) 177 CLR 427. PROVISION OF ADEQUATE REASONS — APPEAL DISMISSED. WORKERS COMPENSATION ACT — CROSS APPEAL — APPORTIONMENT UNDER s22 NOT AUTHORISED BY LAW — LEAVE REFUSED TO REARGUE OPERATION OF s22 — CROSS APPEAL ALLOWED WORDS AND PHRASES — "RESULTS FROM" Clarke JA Garry Rex Olive, whom I will call the worker, received an injury to his back on 6 April 1984 whilst working for a body then known as the Water Board and now known as the Sydney Water Corporation. Over the ensuing years until 6 August 1990 he suffered a number of other back injuries during the course of his employment with the Water Board and a later employer, Heat Containment Industries Ltd. On the 6 August 1990 he sustained another injury in circumstances to which I will advert which led him to cease working and, as at the date of the hearing of his application for compensation he was still not working. Because of the incapacity which he alleged he suffered following 6 August 1990, he brought proceedings for compensation in the Compensation Court against each of three employers, the two I have mentioned and the last one, being Allmen Industrial Services, which is the appellant in the present appeal which I am considering. His case was heard by Judge Thompson in 1993 and the learned trial judge found an award in his favour against all three employers and made orders accordingly, including an order for the apportionment of the employers' responsibilities to the worker. Allmen has appealed from that determination and in its appeal has challenged his Honour's conclusion that the injury on 6 August 1990 was properly the subject of a claim for compensation under the Workers' Compensation Act 1987. The other employers or, in one case, the insurers of one of the other employers, have also filed appeals or cross-appeals challenging the awards made against them and the apportionment by his Honour. Because much of the substance in the latter appeals and cross-appeals depends upon the resolution of the Allmen appeal it is appropriate to deal at the outset with that one. There was no dispute at the hearing before Judge Thompson that the incident of the 6 August 1990 occurred on or near the worker's home. The matter which was in dispute was whether the worker had commenced his journey to work at 2 UNREPORTED JUDGMENTS the time of sustaining his injury and was, therefore, entitled, pursuant to the provisions of s10 of the Workers' Compensation Act 1987, to compensation for any incapacity resulting from that injury. The worker's claim was that he had left the boundary of his home and was loading his tool box into his van, which was standing in the street, when he sustained his injury. Allmen contended that he hurt himself either while lifting a child's bicycle or tricycle in the worker's yard or in lifting the tool box at a time while he still remained within the boundary of his land. Although it might seem odd that his entitlement to compensation depended upon whether the worker was inside or outside his boundary fence, that is the law and to clarify I quote s10(4) of the Workers' Compensation Act 1987: "For purposes of this section, a journey from a worker's place of abode commences at, and a journey to a worker's place of abode ends at, the boundary of the land on which the place of abode is situated." Judge Thompson faced this issue fairly and squarely. It had been raised, in a sense, as a contest between the evidence of the worker and the evidence of a witness called by him, his friend Mr Donaczy. The worker contended that it was while he was lifting the tool box into the van that he sustained his injury and if that version were accepted there is no doubt that he was entitled to compensation. Mr Donaczy gave evidence to the effect that while the worker was lifting either the tool box or bicycle he sustained his injury. In either event, according to Mr Donaczy, he was within the boundary to his land. The issue was a neat one on which there were conflicting versions and his Honour was required to determine which witness's evidence he accepted. In the event he accepted the version given by the worker and said that he could not possibly accept the evidence given by Mr Donaczy. He did not say precisely why it was that he could not accept Mr Donaczy's evidence but it is clear that he did not accept it. Allmen challenges this conclusion in two ways. First, it submits that the finding was wrong and, second, it submits that his Honour's reasoning was insufficient exposed and his Honour had, therefore, failed to comply with his judicial obligation to provide proper reasons. Allmen recognised that there needed to be some refinement of its first argument in the light of a long line of authority limiting the powers of an appellate court to interfere with a finding of fact based, either expressly or implicitly, on the demeanour of a witness, either wholly or partly. Those cases are set out in the written submissions and I need only refer to Devries and Anor v Australian National Railways Commission and Anor (1993) 177 CLR 472 at 479. In essence, the appellant, Allmen, could only succeed if it could establish that the evidence accepted by his Honour was inconsistent with established facts or was glaringly improbable. Allmen did not suggest that the conclusion was inconsistent with the established facts but submitted that it was glaringly improbable. According to Mr Campbell, who put the very difficult argument which he was seeking to maintain with great persuasion, the evidence of the worker was glaringly improbable and that given by Mr Donaczy, who was an independent witness, had all the hallmarks of being wholly probable. During the course of the submissions the Court was taken to the evidence and was referred to histories given by the worker to at least one doctor. There is, I confess, some force in the argument that the version given by Mr Donaczy was more probable, but that is as high as one can put it in Allmen's favour. Nothing that has been said even gets close to showing that the worker's version was WRUMEN INDUSTRIAL SERVICES v OLIVE; INSURERS' GUARANTEE FUND - NEM INSURANCE ASSOCIATION LTD (IN LIQ) v OLIVE (Clarke JA) glaringly improbable. There is a very heavy onus on an appellant who seeks to challenge a finding of the nature of the one under consideration at present. I will content myself with saying that that onus has not been discharged in this case. The first ground on which the judgment is challenged must, in my opinion, fail. As to the second ground, it is true that his Honour's judgment is terse on the point and it is also true that it was a reserved judgment. Nonetheless, his Honour was dealing with a case which had a great many complexities and his judgment extended over ten closely typed pages. This Court, whilst fully upholding the principle that judges must adhere to their judicial obligation to give proper reasons, must also be careful not to set out to impose such a high obligation that the work of such a busy court as the Compensation Court is brought to a standstill. The essential test is whether the trial judge has sufficiently exposed his reasoning process. That may occur in given circumstances by him or her simply saying - I accept the evidence of A rather than B - or making some other similar observation. It will necessarily depend upon the circumstances as to how far a judge is required to go in explaining whose evidence he or she accepts and, in some cases, the reasons for the preference of one witness over the other. In all the circumstances of this case, whilst I do not put the judgment forward as a model, I am unable to conclude that the trial judge failed to comply with his judicial obligation. I do not think it was necessary for him to go further in the circumstances of the factual situation than to say he preferred one witness to the other which, in essence, is what he did. Accordingly, Allmen's appeal must fail. The consequence of Allmen failing in its appeal is that, subject to an argument which was essentially put as a formal argument before this Court, the other appeals and cross-appeals must succeed. That is because there is a line of cases in this Court commencing with Insurers' Guarantee Fund v GIO (1994) 33 NSWLR 247 and continuing up till Maritime Services Board NSW v Moore (Court of Appeal, 26 May 1995, unreported) and an even later case of Leone Holdings Pty Ltd v JW Kirkwood Pty Ltd and Anor (Court of Appeal, 9 June 1995, unreported) which establishes that his Honour's apportionment under s22 of the Workers' Compensation Act 1987 is not authorised by law. Mr Campbell, in his written submissions, noted that the Court was invited to reconsider these decisions in Moore's case and that that invitation was declined by Meagher JA in the leading judgment. The written submissions continued: "Allmen formally submits that the decisions ought to be reconsidered and that the judgment of Mr Justice Kirby in Insurers Indemnity Fund should be adopted." During the oral hearing Mr Campbell went a bit further and sought leave to re-argue the operation of s22. In this respect he argued that there were observations on the meaning of the phrase "results from" in another decision of this Court Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 which cast doubt upon the underlying basis for the line of cases I have already mentioned. For my part I would happily note that leave has been sought and that the formal submission has been made that Insurers' Guarantee Fund and the following cases were wrong, but I would not be disposed to grant leave to enable this Court to reconsider a line of cases so recent as the line referred to earlier, particularly when there are now nearly six cases in which the same view has been expressed. It would, in my opinion, require very powerful reasons for this Court to embark on the reconsideration it is invited to undertake and no reasons proffered by Mr 4 UNREPORTED JUDGMENTS Campbell come within that description. In the circumstances, his Honour's apportionment cannot stand, nor can his finding against the respondents other than Allmen. The orders I would propose are as follows: that the appeal brought by Allmen Industrial Services in matter No 40449/93 be dismissed. That the appeals brought by Sydney Water Corporation Ltd and the two insurers of Heat Containment Industries Limited, who were given leave to appear in the trial court, should be allowed and that the award made by Judge Thompson be varied by substituting the words "the third respondent" for the words "the respondents" in O.1-O.6 and by deleting O.7 from that award. In matter No 40449/93 the appellant Allmen Industrial Services Pty Ltd is to pay the costs of the three respondents, that is, Garry Rex Olive, the Water Board and Heat Containment Industries Ltd. In matter No 40464/93 the Court will make no order as to costs. Meagher JA I agree. Rolfe AJA I also agree. The appeal brought by Allmen Industrial Services in matter No 40449/93 is dismissed. The appeals brought by Sydney Water Corporation Ltd and the two insurers of Heat Containment Industries Limited, who were given leave to appear in the trial court, are allowed and the award made by Judge Thompson is varied by substituting the words "the third respondent" for the words "the respondents" in O.1-0.6 and by deleting O.7 from that award. In matter No 40449/93 the appellant Allmen Industrial Services Pty Ltd is to pay the costs of the three respondents, that is, Garry Rex Olive, the Water Board and Heat Containment Industries Ltd. In matter No 40464/93 the Court will make no order as to costs. Counsel for the Allmen: SG CAMPBELL, instructed by: AO ELLISON AND Co Counsel for the Olive: J MUNDEY, instructed by: LA FONTAINE Counsel for Water Corporation: G GRAHAM, instructed by: BARTIER PERRY AND PURCELL Counsel for Employer's Mutual Indemnity: P PERRY, instructed by: HUNT AND HUNT Counsel for Insurers' Guarantee Fund: FFJ DAVIS, instructed by: NW AUSSEL