RENNEX v COUNCIL OF THE CITY OF WOLLONGONG SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, MEAGHER JA and ROLFE AJA 16 August, 5 September 1995 [1995] NSWCA 390 FACTS: The appellant worker received injuries to his low back on 16 May 1983, 16 March 1984 and 21 October 1985 in the course of his employment as a plant operator with the respondent, the Council of the City of Wollongong. Payments of compensation ceased in December 1985. The worker's services were terminated from 7 May 1986. He brought proceedings in the Compensation Court seeking compensation on the basis of partial incapacity which was deemed, pursuant to s11(2) of the Workers Compensation Act 1926, to be total. The trial judge found that the worker had failed to establish the incapacity which was alleged. In his judgment the trial judge found that the injury of 1983 "contributed either by way of causation or by way of a material aggravation of a condition which existed before the 16th May 1983 to the ongoing symptomatology the applicant suffered from 16 May 1983 even up to this present date." The other injuries were, in the view of the trial judge, productive only of temporary aggravation and were not causes of any symptomatology after 6 December 1985. The trial judge said that he was constrained, despite the appropriateness of restriction imposed on the worker by a medical certificate, to conclude that the worker had suffered no loss of capacity for work. HELD: (1) (By Clarke JA, Rolfe AJA agreeing) The trial judge was in error in believing that Pickersgill, or any case to similar effect, required him to hold that the predisposition to back strain could not legally be regarded as constituting partial incapacity. Arnotts Snack Products Pty Ltd v Yacob (1983) 155 CLR 171; Ball v William Hunt & Sons Ltd [1912] AC 49; Lovett Building Co Pty Ltd v Burns (1992) 29 NSWLR 475; Pickersgill v Freightbases Pty Ltd [1983] 2 NSWLR 117; and Kooragang Cement Pty Ltd v Bates [1994] 35 NSWLR 452, considered. (2) (By Meagher JA) Pickersgill is a case which involves causation problems which arise when an admitted incapacity has to be referred to one of two earlier injuries. It has nothing to do with what happens when there is a factual finding of no incapacity. Pickersgill v Freightbases Pty Ltd [1983] 2 NSWLR 117, considered. (3) (By Meagher JA) The trial judge's finding of fact that the worker had recovered from the incapacitating effects of his injuries was based upon medical evidence which was unrelated to the trial judge's consideration of the decision in Pickersgill. This finding cannot be reconsidered by this court. Pickersgill v Freightbases Pty Ltd [1983] 2 NSWLR 117, cited. (4) (By Rolfe AJA) A finding that there is no evidence of partial incapacity, where there is such evidence, constitutes an error of law. The error into which the trial judge fell was that he believed that notwithstanding the restrictions on the ability of the appellant to work, these amounted only to a "predisposition" and not to "partial incapacity". Arnott's Snack Products Pty Limited v Yacob (1983) 155 CLR 171, considered. (5) (By Rolfe AJA) The trial judge was in error in point of law in that he failed to characterise the limitations, which he found existed, as partial incapacity. Azzopardi v Tasman UEB Industries Pty Limited (1985) 4 NSWLR 139, considered. McPhee v S. Bennett Limited (1935) 52 WN (NSW) 8; Sittingbourne Urban District Council v Lipton Limited 1931] 1 KB 539; Mersey Docks & Harbour Board v West Derby 2 UNREPORTED JUDGMENTS Assessment Committee [1932] 1 KB 40; R v District Court of the Metropolitan District Holden at Sydney; ex parte White (1966) 11 CLR 644; Hope v Bathurst City Council (1980) 144 CLR 1; and Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126, referred to. Arnotts Snack Products Pty Ltd v Yacob (1983) 155 CLR 171 Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126 Azzopardi v Tasman UEB Industries Pty Limited (1985) 4 NSWLR 139 Ball v William Hunt & Sons Ltd [1912] AC 49 Hope v Bathurst City Council (1980) 144 CLR 1 Lovett Building Co Pty Ltd v Burns (1992) 29 NSWLR 475 McPhee v S. Bennett Limited (1935) 52 WN (NSW) 8 Mersey Docks & Harbour Board v West Derby Assessment Committee [1932] 1 KB 40 Pickersgill v Freightbases Pty Ltd [1983] 2 NSWLR 117 Pirelli Ericsson Cables Ltd v Spadina & Anor R v District Court of the Metropolitan District Holden at Sydney; ex parte White (1966) 11 CLR 644 Sittingbourne Urban District Council v Lipton Limited [1931] 1 KB 539 Clarke JA. Peter William Rennex (the worker) received injuries to his low back on 16 May 1983, 16 March 1984 and 21 October 1985 in the course of his employment as a plant operator with the Council of the City of Wollongong (the employer) and received, from time to time, compensation in respect of incapacity flowing from those injuries. Payments of compensation ceased on 6 December 1985 and he brought proceedings in the Compensation Court seeking compensation on the basis of partial incapacity which was deemed, pursuant to s 11(2) of the Workers Compensation Act 1926, (the Act), to be total. His case was heard by Judge Davidson who, on 16 September 1986 found that he had failed to establish the incapacity which he alleged. The case is a very old one and it is regrettable that it did not come before the court many years ago. Notwithstanding, there has been no investigation of the reason for the delay in hearing and I do not propose to say anything more about it. In his judgment his Honour found that the injury of 16 May 1983 'contributed either by way of causation or by way of a material aggravation of a condition whichexisted before the 16th May 1983 to the ongoing symptomatology the applicant suffered from 16 May 1983 even up to this present date'. The other injuries, those which occurred in March 1984 and October 1985, were, in his Honour's view, productive only of temporary aggravation and were not causes of any symptomatology after 6 December 1985. The appeal is limited to a consideration of legal errors but before turning to the grounds of appeal it is convenient to say something more about the facts. In doing this I will draw from reports of the Illawarra Rehabilitation Centre of which Dr Alex Ganora was the medical director. Following his injury on 16 May 1983 the worker was seen at that centre on 20 May. He was x-rayed and admitted to hospital for complete bed rest. On 27 May a lumbar computerised tomography demonstrated bulging of L3/4 and L4/5 inter vertebral discs in the midline. By the end of July it was considered by Dr Ganora that the worker would not be fit to return to work as a plant operator but he was fit to perform some work in the form of gate keeping. Indeed, the doctor encouraged him to return to work. In his report of 12 December 1983 Dr Ganora expressed the opinion that the worker was unfit to perform heavy lifting, repeated bending or prolonged static postures. Because alternative work was not available the worker remained off work until January 1984 when he returned to his plant URJ RENNEX v COUNCIL OF THE CITY OF WOLLONGONG (Clarke JA) 3 operating. The trial judge accepted that because of the worker's desire to return to the work force he prevailed upon Dr Ganora to allow him to return to work. He had trouble soon after for another incident occurred at work on 16 March 1984. That effected, according to his Honour, only a temporary aggravation of his continuing back problems. He remained at work although he said that he had continuing symptoms. On 21 October 1985 another incident occurred at work which caused another temporary aggravation to his back condition. He had apparently recovered from that temporary aggravation by 6 December 1985 when he was given a certificate bythe Illawarra Rehabilitation Centre to return to restricted work. I will return later to the detail of those restrictions. On 10 December 1985 he took the certificate from the Centre to his employer's premises but was told that, bearing in mind the restrictions, there were no jobs available for him. He was also told that he would be receiving a letter within a matter of weeks terminating his employment. That letter duly arrived and terminated his services from 7 May 1986. His claim was that the incident in March 1983 caused a permanent or continuing aggravation of a congenital condition in his spine and that at the time he returned seeking employment in December 1985 he was_ partially incapacitated for work. Further he claimed that, the employer having failed to find him suitable work, he was entitled to an order upon the basis that he was deemed totally incapacitated under s 11(2) of the Act. His Honour was impressed with the worker whom he accepted as a reliable witness. He concluded that the May 1983 incident contributed to the on-going symptomatology the worker suffered from May 1983 to the time of trial. Indeed his Honour specifically accepted the worker's evidence that he had 'persisting symptomatology ever since the event of 16 May 1983'. In order fully to understand his Honour's reasons for rejecting the worker's claims it is necessary to quote in some detail from the judgment. Having dealt with the effect of the later two incidents his Honour went on to consider the question of partial incapacity from December 1985 saying: Ihave carefully considered the able submissions put by Mr Nelson on the applicant's behalf that I should regard the position as being this: whilst Dr Ganora allowed the applicant, at his own behest, to resume work in January 1984, it was upon the basis that the man still had a persisting partial incapacity from the injury of 16 May 1983 and that that persisting incapacity, upon the applicant's own evidence that around about December 1985 he had returned to the position he was in prior to the event of 21 October 1985, indicates that he should now be regarded as still suffering some partial incapacity for work. It is put to me by counsel for the applicant that in retrospect I should regard him as not really having been fit to perform the fullduties in his job with the council even from January 1984 and that when the stage had been reached in December 1985 when a certificate was issued by the Illawarra Rehabilitation Centre on 6 December 1985 and again on 5 February 1986 that position represented a considered view by Dr Ganora that the applicant should be regarded as still being partially incapacitated from the event of 16 May 1983. Were it not for the evidence of four specialists, two in the applicant's case and two in the respondent's case, I would have been inclined to agree with that proposition. I feel, however, that the evidence of Dr Bornstein and Dr Schneider, and that of Dr Scarf and Dr Edwards is to the effect that the applicant has recovered from the incapacitating effects of the injuries of 16 May 1983 particularly and each of the other two injuries in March 19984 and October 1985. 4 UNREPORTED JUDGMENTS Those factual findings, which were clearly open to his Honour, would appear to be fatal to the worker's appeal. Certainly if his Honour had ended the judgment at that point the appeal would be hopeless but his Honour went on to explain his reasoning in more detail and in a way which makes it plain to me that his Honour was not simply making a factual finding that the worker had completely recovered from the incapacitating effects of the May 1983 injury. Having gone on to say that he considered that the view of the specialists, and particularly Dr Schneider and Dr Bornstein, was that the applicant was probably left with some predisposition to further strain his Honour said that the same must be said of the position as at 6 December 1985 when Dr Ganora's opinions were viewed in the context of that further specialist evidence. The judgment proceeds: Dr Ganora, in his report of 30 December 1985 said: "By 6 December 1985 I felt that he had returned to his previous level of spinal function, that is as it was prior to the aggravation of 21 October 1985. It has been recommended that Mr Rennex now return to work and this recommendation has been specified in our certificate dated 6 December 1985 a copy of which is enclosed". The certificate of 6 December 1985 is of some importance. The relevant part reads: He is now fit to return to work, commencing on 10 December, 1985 on the following restrictions: . No prolonged bending. . No prolonged sitting for more than 1 hour . No sitting with vibration (ie plant operating). . No prolonged standing for more than one hour. . No prolonged squatting. . No working with arms above shoulder level. . No heavy lifting more than 10 kgs. . No working in confined spaces.' Having regard to those limitations, which his Honour found resulted from the injury in May 1983, I would have thought that it was well open to his Honour to have concluded that the worker had a partial incapacity for his work. His Honour did not think so but the question which has been ventilated is whether his Honour's conclusion was based on the application of an erroneous legal test. What his Honour went on to say, after quoting from Dr Ganora's statement, was: It is my view that the limitations set out in that certificate and the further certificate of 5 February 1986 merely indicate the predisposition of which I have spoken. They do not, in my view, amount to evidence that the applicant has persisting partial incapacity for work which would be necessary for him to succeed beyond 5 December 1985. Ihave had regard to the Court of Appeal's decisions, particularly in Pickersgill v Freightbases Pty Ltd [1983] 2 NSWLR 117 and it is my view that the present law upon the facts, as I see them in this case regrettably leads to a conclusion that, whilst the applicant still has a predisposition to low back strain as a result of the injury on 16 May 1983, it cannot be said, in view of the evidence of Dr Ganora and the four specialists, that on and after 6 December 1985 he suffers any incapacity which results from the injuries of 16 May 1983, 16 March 1984 and 21 October 1985. I have also considered recent views expressed in the Court of Appeal, more particularly by the President, in the matter of Pirelli Ericsson Cables Ltd v Spadina & Anor delivered in April 1986. It may well be that the time has come URJ RENNEX v COUNCIL OF THE CITY OF WOLLONGONG (Clarke JA) 5 for Pickersgill's case to be reviewed, as was the opinion of the learned President of the Court of Appeal. This may indeed be such a case. Whatever might be the merits of the applicant as a person, I feel constrained by the present state of the law, upon the evidence before me, to find that heis only entitled to compensation from 21 October 1985 until 6th December 1985.' In that passage there is the clear expression of an opinion by the trial judge that the worker still has a predisposition to low back strain as a result of the injury of 16 May 1983. This predisposition led to the restrictions imposed in the certificate of 6 December 1985 but could not be held, in accordance with the state of the law as his Honour understood it, to constitute a partial incapacity. These passages understood in the light of the earlier statements in the judgment to which I have referred, make it clear that his Honour made the following findings: (1) the worker received a back injury on 16 May 1983 and was off work until January 1984; (2) the injury led initially to total incapacity and thereafter to ongoing symptomatology; (3) the injury either caused a physiological change in the worker's back or materially aggravated an existing condition and the aggravation was either permanent or continued at least to the date of trial; (4) the worker was able to work in his old job with difficulty notwithstanding continuing symptomatology from January 1984 to October 1985; (5) the worker had two incidents (16 March 1984 and 21 October 1985) during that period which temporarily aggravated his back which had been weakened by the March 1983 incident; (6) the 1983 incident had not only caused continuing symptomatology since that time but had made his back vulnerable in the sense that physical activity was more likely to cause back strain and symptoms than had previously been the case. (I have avoided the use of the word predisposition); (7) the work limitations expressed in the certificate of 6 December 1985 were imposed because of the increased susceptibility of his back to break down;(8) his weakness and increased susceptibility, which his Honour described as predisposition, could not, in the state of the law as his Honour understood it, constitute incapacity. This was so notwithstanding the work restrictions imposed by Dr Ganora; (9) the worker was not partially incapacitated for work after 6 December 1985. I confess to finding it surprising that a plant operator who receives a medical certificate to return to restricted work not involving plant operating, should be found not to have a partial incapacity for work. No doubt that conclusion would be proper where, for instance, the judge was of opinion that the restrictions were wrongly imposed or reflected a mistaken view by the doctor. But that is not this case. His Honour accepted that the limitations in the certificate were appropriate but considered, correctly in my view, that they were imposed (if that is the correct word) because of the likelihood that if the worker returned to plant operating his weakened (predisposed) back may break down again. 6 UNREPORTED JUDGMENTS What is more important is that his Honour believed that he was constrained (to use his word) to conclude that, despite the appropriateness of the restrictions, the worker had suffered no loss of capacity for work. This he considered flowed from Pickersgill. In my opinion his Honour was in error in believing that Pickersgill, or any cases to similar effect, required him to hold that the predisposition to back strain could not legally be regarded as an incapacity. The concept of partial incapacity is well understood. It was explained in Arnotts Snack Products Pty Ltd v Yacob (1983) 155 CLR 171, at 178, in these terms: ... reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work. As was pointed out in that case a worker may be partially incapacitated even though he could do all the things that he could do before the injury (p 178). For instance, in Ball v William Hunt & Sons Ltd (1912 AC 49) the worker received an injury leading to the removal of a blind eye. It was held that, although he was able to do all the things he could before the injury, because employers were unwilling to employ him he was partially incapacitated. But, as Mahoney JA pointed out in Yacob ([1982] 1 NSWLR 633 at 636), The physical inability caused by the injury must affect the worker in relation to his ability to sell his work for wages. More recently in Lovett Building Co Pty Ltd v Burns (1992) 29 NSWLR 475 this court applied Yacob in upholding a trial judge who held that a loss of confidence resulting from a work injury constituted partial incapacity. In the light of these authorities I do not think that it can be doubted that it is open to a trial judge to conclude that a worker whose back is weakened, or becomes predisposed to further injury, by an injury at work is partially incapacitated. And, where the worker's vulnerability is so great that he is properly advised not to perform some, or all, of the tasks involved in his previous job, it is difficult to understand how it could be said that the worker was not incapacitated for work to some degree. Why did his Honour think otherwise? This is not an easy question for the case he referred to (Pickersgill) was not concerned with incapacity but an entirely different subject, that of causation. There the question was — Can it be said that, where a worker receives an injury which leaves him vulnerable to a future injury which he later suffers and which causes him incapacity, his incapacity resulted from the first injury? The court answered in the negative. Priestley JA, who gave the principal judgment summed up his view with the pithy statement: "A potentially incapacitating back resulted from the former (injury). Actual incapacity resulted fromthe latter.' (p 124). There is nothing in his Honour's judgment which, as it seems to me, bears on the present question. Nor is there in the separate judgment of Moffitt P although it may be that others have regarded his statement: The words "results from" are not appropriate to be applied to an injury which gives rise to a bodily condition which merely predisposes the worker or makes him more vulnerable to later injury. as supporting his Honour's conclusion in this case. URJ RENNEX v COUNCIL OF THE CITY OF WOLLONGONG (Clarke JA) 7 If that has been a prevalent view it is, in my respectful opinion, an erroneous one. His Honour's statement was perfectly understandable in the context of the application of the test of causation which his Honour was considering. It does not, however, support the proposition that an injury caused back vulnerability cannot, in law, constitute an incapacity. Moffitt P was not dealing with the question of incapacity and his statement must be understood in its context and not as a statement of the wider proposition which appears to have been drawn from it. I might add that a major reason that was advanced in support of allowing the appeal was that, since Kooragang Cement Pty Ltd v Bates, [1994] 35 NSWLR 452, Pickersgill was no longer good law. Kooragang was another case on causation and, for the reasons I have explained, doesn't advance the worker's cause. Where I think the judge fell into error was in believing that Pickersgill was authority for a legal proposition concerning incapacity and in applying that proposition in ultimately finding against the worker on the issue of incapacity. Pickersgill was not relevant to the problem with which the judge was dealing and regrettably he was diverted from his task by his attention to it. It was well open to his Honour in the light of his finding of accident caused predisposition to find incapacity and his Honour was wrong to think otherwise. The respondent's counsel has submitted that this is no more than a decision on the facts which was well open to his Honour. Were it not for the last two pages of the judgment I would be disposed to agree. However, the adoption of that viewrequires the court to treat the statements in the last two pages of the judgment as random thoughts which had no bearing on his decision. This I find impossible to accept. In my view the ultimate decision was largely based on the erroneous view that, as a matter of law, his Honour was compelled to the conclusion that the accident caused predisposition to low back strain was not capable of being regarded as constituting partial incapacity. Consequently his decision was affected by legal error and must be set aside and the case remitted to the Compensation Court. In these circumstances it is unnecessary to deal with the other grounds of appeal which, in any event, seem either to be a restatement of the ground I have dealt with or a ground impermissibly raising factual error. There is, however, one further matter which should be dealt with. The employer (acting as self insurer) is the first respondent, its insurer during a period which included the 16 May 1983 is the second. Counsel for the first respondent has submitted, correctly, that his Honour's factual finding that the predisposition which resulted from the May 1983 incident was unassailable and that, in the event that the worker is successful, the case should be remitted only to the extent necessary to ensure that the issue of fact whether incapacity flowed from the 1983 incident could be decided. I would decline to adopt that course. The decision was vitiated by legal error and cannot stand. In these circumstances it should be set aside and a general new trial ordered. Costs should follow the event. I would propose that: (1) The appeal be allowed, except as to costs; (2) The order of Davidson CCJ be set aside and the case be remitted to the Compensation Court, to be determined in accordance with these reasons; (3) The respondents are to pay the appellant's costs of the appeal and, if qualified, to have a certificate under the Suitors Fund Act. 8 UNREPORTED JUDGMENTS Meagher JA. The worker appellant is aggrieved by the decision of Davidson CCJ who refused to make an award in his favour in respect of a low back injury. His Honour's judgment is dated 16 September 1986. The appeal is limited to questions of law. 5 The findings of fact which his Honour found were: (1) The worker suffered three specific injuries to the low back on 16 May 1983, 16 March 1984 and 21 October 1985; (2) The second and third of those injuries were of little consequence, as the worker recovered fully from them shortly after they occurred; 10 (3) Before 16 May 1983 'he had some predisposition for back strain'; (4) The injury of 16 May 1983 aggravated his predisposition to further injury; (5) That aggravated predisposition persisted until the date of judgment;(6) 15 He was fit to resume his normal pre-injury job; (7) On the evidence of four named doctors, the worker 'has recovered from the incapacitating effects of the injuries of 16 May 1983 particularly and each of the other two injuries in March 1984 and October 1985.'; and (8) There was 'no evidence that the applicant has persisting partial 20 incapacity for work which would be necessary for him to succeed beyond 5 December 1985. Each of the findings is a finding of fact. None of them can be reviewed by this Court. It is of no consequence whether those findings are unreasonable, inaccurate or even perverse. If it were open for us to do so, I should have thought the findings numbered (7) and (8) might have been successfully challenged. But that is beside the point. What makes the case less than entirely simple is that his Honour, having made these findings, then referred to Pickersgill v Freight Bases Pty Limited (1983) 3 NSWLR 117, and even hinted that his decision might have been different except for that case. It is on these observations, not unnaturally, which Mr Joseph SC, learned senior counsel for the appellant, seized in order to discover a point of law. What exactly his Honour meant by these observations I do not know. It is a mystery. He has expressed himself with less than his customary felicity. The findings of fact he made, particularly the crucial findings (7) and (8), have nothing to do with that case. The ratio of that case is, I think, accurately set out in part of the headnote thus — Where an earlier injury has the effect of making a later injury more likely to be incapacitating, and a later injury which is causally connected with that earlier injury 4Q occurs and does cause incapacity, that incapacity cannot thereof be said to have 'resulted from' the earlier injury within the meaning of the Worker's Compensation Act 1926."In other words, that case involves the causation problems which arise when an admitted incapacity has to be referred to one of two earlier injuries. It has nothing to do with what happens when there is a factual finding of no incapacity. His Honour's finding of no incapacity was based on the evidence of four doctors none of whom had 45 heard of Pickersgill's Case or struggled to locate the cause of an admitted incapacity. The appeal should be dismissed with costs. Rolfe AJA. The relevant facts giving rise to the proceedings before Davidson CCJ are set forth in the draft judgment of Clarke JA, which I have had the 50 advantage of reading, and the relevant factual findings made by his Honour are set forth in that draft judgment and in the draft judgment of Meagher JA, which URJ RENNEX v COUNCIL OF THE CITY OF WOLLONGONG (Rolfe AJA) 9 I have also had the advantage of reading. However, to seek to explain the conclusion to which I have come, I find it desirable to re-state certain of those matters. The appellant suffered three specific injuries to the low back on 16 May 1983, 16 March 1984 and 21 October 1985 all in the course of his employment. The 'real contention' before his Honour was whether, after about 6 December 1985, "it could be said that the applicant was suffering any continuing incapacity'. His Honour continued: More precisely it was argued that as a matter of fact and law the applicant was not suffering any incapacity which resulted from any one of those three injuries.""'His Honour was obviously impressed by the efforts the appellant made to return to and to continue work, notwithstanding the injuries he had suffered. However, he recognised, quite correctly, that he was obliged to answer the question posed for his decision on the facts he found. He accepted that the appellant continued to have symptomatology from his return to work in January 1984 resulting from the May 1983 accident, and that the appellant had ongoing symptomatology 'even to' the date of the hearing, which had persisted since the incident of 16 May 1983. He held that the March 1984 and October 1985 incidents were aggravations of a pre-existing condition in his back as to which the event of 16 May 1983 'played a significant and major part', and that he had recovered from the aggravating effects of each of the latter two incidents. His Honour turned to the submissions on behalf of the appellant, which included that notwithstanding his doctor allowed him to work in January 1984 'it was upon the basis that the man still had persisting partial incapacity from the injury of 16 May 1983' and that, notwithstanding he had returned to the position he held prior to the October 1985 incident, the evidence 'indicates that he should now be regarded as still suffering from partial incapacity for work'. This submission was repeated. Accordingly, his Honour had firmly in mind the issue, and he said that were it not for the evidence of four specialist doctors he would have been 'inclined to agree with that proposition', ie that the appellant was partially incapacitated. He held, however, that that evidence led to the conclusion: ... that the applicant has recovered from the incapacitating effects of the injuries of 16 May 1983 particularly and each of the other two injuries in March 1984 and October 1985. My view of the medical evidence of those specialists, particularly Dr Schneider and Dr Bornstein, is thatthe applicant is probably left with some predisposition to further strains of the type that he suffered in May 1983, March 1984 and October 1985, but he was not prevented from returning to his pre-injury employment with the respondent at the time he was examined by each of those doctors. I further come to the view that the same must be said of the position as at 6 December 1985 when Dr Ganora's opinions are viewed in the context of that further specialist evidence.' In these passages his Honour is distinguishing between two situations, namely 'predisposition to injury', which he was satisfied existed, and 'incapacity from injury'. He found that by 6 December 1985 the appellant had recovered from any incapacity resulting from the injuries, although he remained predisposed to further strains. On 25 June 1986 Dr Bornstein reported that the appellant's 10 UNREPORTED JUDGMENTS "current complaints' were due to the incident in 1983 and his prognosis was that the appellant 'is unlikely to settle completely. He has not settled down since 1983 and has complained of back pain ever since that time. There does not appear to be any structural cause for this back ache but he could have a mild lumbar instability syndrome'. In his report of 20 June 1986 Dr Schneider said: This patient is probably suffering from ligamentous strain of his lower-back, which could probably be attributed to the injury described in May 1983, and aggravated by the two later injuries. I believe he is probably fit to resume work as a plant-operator, but is likely to require occasional periods off work for treatment of recurring symptoms. He will probably not be fit to carry out strenuous physical work which involved lifting of heavy weights or much bending of his back. His prognosis in general is fairly good, and I would expect his condition to improve.""This evidence, which his Honour accepted, indicated that there were ongoing back problems, which would impede the appellant's carrying out his employment. He referred to the report of Dr Ganora of 30 December 1985 and to the limitations set out in it and to a certificate of 5 February 1986, which documents he said 'merely indicate the predisposition of which I have spoken'. He continued: They do not, in my view, amount to evidence that the applicant has persisting partial incapacity for work which would be necessary for him to succeed beyond 5 December 1985. When one considers the certificate of 5 February 1986, which certified that the appellant was fit for work with a number of restrictions, it is difficult, with respect, to accept his Honour's finding that the existence of these restrictions did not constitute continuing or persisting partial incapacity. The appellant was a person, who was no longer able to carry on the work in which he had engaged previously, to the extent and in the manner set forth in the certificate of 5 February 1986. This did not, in my opinion, amount to a 'predisposition' to injury, in the sense that the previous injuries had brought about a situation where another injury may render the appellant partially or totally incapacitated, but, in my opinion, as a matter of correct legal characterisation, to a situation of 'partial incapacity'. The first question is whether his Honour was correct in finding that there was no 'persisting partial incapacity'. Prima facie this inquiry gives rise to an issue of fact from which there is no appeal. However a finding there was no evidence of partial incapacity if there was such evidence, constitutes, in my opinion, an error of law. The error into which his Honour fell was that he believed that notwithstanding the restrictions on the ability of the appellant towork these amounted only to a 'predisposition' and not to 'partial incapacity'. However, it is well established that the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work: Arnott's Snack Products Pty Limited v Yacob (1983) 155 CLR 171. In that case the majority quoted with approval the following passage from the judgment of Mahoney JA, at p 175: In the present case, the worker could no longer earn wages as a worker who must climb. The fact that he still could earn as a clerk who need not climb does not, in my opinion, mean that he was not partially incapacitated within the Act. URJ RENNEX v COUNCIL OF THE CITY OF WOLLONGONG (Rolfe AJA) 11 In the present case the appellant could no longer earn wages as a worker carrying out the functions set forth in the certificate of 5 February 1986, although he could still earn wages doing, generally speaking, the type of work he had done before, but with restrictions. 5 Thus at p 178 their Honours said: It follows that the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work. Under s 11(1), an applicant's entitlement to compensation will depend upon his loss of earning 10 power. This flows, not from the concept of partial incapacity for work, but from the nature of the express limitation which the sub-section places on the amount of compensation payable. On the other hand, the words "partial incapacity for work" in subs (2) must be given their natural and established meaning, there being no limitation or other restricting context which confines the employer's obligation to offer suitable 1 employment to an injured employee who is suffering actual economic loss.""Davidson 5 CCJ then said: I have had regard to the Court of Appeal's decisions particularly in Pickersgill v Freight Bases Pty Ltd [1983] 3 NSWLR 117 and it is my view that the present law upon the facts, as I see them in this case, regrettably leads to a conclusion that, whilst the applicant still has a predisposition to low back strain as a result of the injury on 20 16 May 1983, it cannot be said, in view of the evidence of Dr Ganora and the four specialists, that on and after 6 December 1985 he suffered any incapacity which results from the injuries of 16 May 1983, 16 March 1984 and 21 October 1985. This passage has caused some difficulty, because Pickersgill was a case 25 involving causation. However, I think it clear that the passage to which his Honour was referring is that in the judgment of Moffitt P at p 118, where his Honour said: The words "results from" are not appropriate to be applied to an injury which gives rise to a bodily condition which merely predisposes the worker or makes him more 30 vulnerable to later injury. The phrase imports some elements of proximity in the causative links between injury and incapacity. It imports some element of precipitation. In the factual field the necessary proximity can or can normally be expected to be temporal.' (My emphasis.) Some doubt has been expressed as to why his Honour referred to this decision 35 at all. It seems to me clear he did so because, having found there was a predisposition, rather than partial incapacity, he was of the view that the words 'results from' were not appropriate to enable him to find partial incapacity arising from the predisposition. In those circumstances I can well understand his Honour's reference to Pickersgill and, read this way, it makes clear that he 40 wasdrawing a distinction between 'a predisposition' and 'persisting partial incapacity'. He was satisfied the former, but the not the latter, existed. As Meagher JA has explained there were factual findings of no incapacity, which findings, in so far as they are findings of fact, cannot be re-considered by this Court. So much is not in issue. 45 Clarke JA is of the view that his Honour believed he was constrained to conclude that, despite the appropriateness of the restrictions, the worker had suffered no loss of capacity for work, which, he considered, flowed from the decision in Pickersgill. I think the learned trial Judge thought he was obliged, by law, to draw a distinction between 'predisposition' and 'partial incapacity', and, 50 as with Clarke JA, I consider he erred in holding that a predisposition cannot constitute partial incapacity. 12 UNREPORTED JUDGMENTS Thus, in my respectful opinion, the error of law his Honour made, which is the error relied upon in the first ground of appeal, was that there was no evidence of partial incapacity, in the sense that that is explained in Yacob. The error of law was that a person, who has returned to work albeit afflicted by a condition, cannot, as a matter of law, be held to be partially incapacitated. There was no dispute that the appellant had the restrictions referred to by Dr Bornstein and Dr Schneider in Dr Ganora's certificate of 5 February 1986. The issue of law was the consequence flowing from those restrictions. In my view the law compelled the answer that the consequence was that the appellant was suffering from a partial incapacity and his Honour's failure to so find, in the light of the uncontradicted evidence, constituted an error of law. In Azzopardi v Tasman UEB Industries Pty Limited (1985) 4 NSWLR 139 at p 155 Glass JA cited the following passage from McPhee v S. Bennett Limited (1935) 52 WN (NSW) 8 at 9: The question whether there is any evidence of a particular fact is also a question of law: Sittingbourne Urban District Council v Lipton Limited [1931] 1 KB539 at 544 and Mersey Docks & Harbour Board v West Derby Assessment Committee [1932] 1 KB 40 at 110 , 111. But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course there is some law which provides that the [Editorial note: Text missing] evidence, when given, is to be taken to establish the fact. If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive. In that case the party upon whom the burden of proving the fact lies must fail. There is no rule of law that such a tribunal must believe the evidence, because it is all one way. It cannot accept all, or some, or none of it.' (His Honour's emphasis.) At pp 155-156 his Honour continued: It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way and that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding [Editorial note: Text missing] jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers" Compensation Commission Judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the Court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R vDistrict Court of the Metropolitan District Holden at Sydney; ex parte White (1966) 116 CLR 644 at 654. In the present case his Honour accepted the evidence of limitations to which I have referred, but he thought they were 'merely' indicative of the predisposition. I appreciate he said they did not amount to evidence that the applicant has persisting partial incapacity, although that was said immediately before the statement his Honour made concerning the decision in Pickersgill. If one returns to Azzopardi Glass JA continued: A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial Judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this URJ RENNEX v COUNCIL OF THE CITY OF WOLLONGONG (Rolfe AJA) 13 kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further, an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made, Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126 at 138; ... The decision here assailed is not of that character. Once it was accepted, as his Honour did, that the appellant had the limitations to which I have referred, he was in error, in point of law, in determining that they amounted to a predisposition rather than partial incapacity. Yacob and the cases on which it is founded establish that a finding that a person is precluded from carrying out certain work constitutes a finding of 'partial incapacity'. Therefore, in my respectful opinion, his Honour defined 'otherwise than in accordance with law the question of fact' he had to answer, namely whether the limitations constituted 'partial incapacity'. As Glass JA pointed outthe possibility of such an error does exist with ultimate findings of fact and, of course, the finding of an absence of partial incapacity was such a finding. In the result I am of the opinion that his Honour was in error in point of law in that he failed to characterise the limitations, which he found existed, as partial incapacity. I would, accordingly, allow the appeal and remit the matter to the Compensation Court to be determined in accordance with law. The respondents must pay the appellant's costs. (1) The appeal be allowed, except as to costs; (2) The order of Davidson CCJ be set aside and the case be remitted to the Compensation Court, to be determined in accordance with these reasons; (3) The respondents are to pay the appellant's costs of the appeal and, if qualified, to have a certificate under the Suitors Fund Act. Counsel for the appellant: M JOSEPH SC Solicitors for the appellant: WHITE BARNES and MAGUIRE Counsel for the first respondent: G BEAUCHAMP Solicitors for the first respondent: HUNT and HUNT Counsel for the second respondent: M ROBINSON Solicitors for the second respondent: GJO