LEGGATT and ANOR v COLLEY and ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and POWELL JJA, and WADDELL AJA 17 April 1996, 17 April 1996 [1996] NSWCA 321 Workers compensation — Compensation Court — challenge to factual findings made by trial judge First respondent applies for compensation from two separate employers - Compensation Court makes awards against earlier employers - application dismissed against later employer - on appeal first employer challenges trial judge's factual findings - submission by appellant that case not within the Abalos and Devries category - Held: trial judge's approach to the facts of the case not unacceptable - case clearly in the Abalos and Devries category, considered frequently and recently and there is no way in which the appeal could succeed in respect of the trial judge's approach to the facts. ORDERS Appeal dismissed with costs. Priestly JA Although this appeal was well presented by appellants' counsel it nevertheless, in my opinion, fails. It raised a purely factual question as the one issue in the appeal. In summarising the facts I draw upon the convenient narrative filed by the appellants. The first respondent was a worker who applied for compensation against two separate employers. His Honour Judge Burke of the Compensation Court made awards in the first respondent's favour against the appellants, who were the earlier employers, and dismissed his application against the second respondent, the later employers. The only appeal is that of the first employers. They carried on business as shearing contractors and employed the first respondent as a wool pressing and shed hand between 1977 and 1983 and between October 1986 and October 1988. Towards the end of the day's work on Wednesday 27 May 1987 the first respondent suffered an injury to the low back while helping with the manhandling of a bale of wool. The first respondent didn't work on the following Thursday and Friday because no work was available. He did his normal work the following Monday. He continued to work for the appellants until October 1988. In this period he undertook shearing and crutching work to the extent of at least one "shed" per month. In March 1988 the first respondent consulted a chiropractor in Dubbo in relation to his back. In April 1988 he had a consultation with Dr Haynes. He saw the chiropractor on a further four or five occasions prior to October 988 About the end of 1988 the first respondent began business on his own account carting grain and fertiliser by truck. He continued to run this business until he consulted Dr Kirkby at Narromine on 6 October 1989 when he was referred for a CT scan which revealed a right sided lumbo sacral disc protrusion. On 15 December 1989 Dr Segelov performed a right hemilaminectomy at that level following which the first respondent was off work for about three and a half months. He then resumed work in his business until he sold the truck in January 1991. 2 UNREPORTED JUDGMENTS On 7 January 1991 the first respondent commenced working for his brother as one of the second respondents who carried on business as shearing contractors. The first respondent remained in that employment until 3 December 1991 working as a wool presser. On 28 August 1991 the first respondent again consulted Dr Kirkby complaining of the onset of pain in the right leg over a period of six months. A laminectomy at the lumbo sacral level was performed by Dr Segelov on 16 January 1992 which did not provide any significant relief. In March 1992 the first respondent was re-admitted to hospital when a further decompression operation was carried out on 27 March 1992 by Dr Segelov assisted by Dr Bentivoglio. Whilst the first respondent was recuperating from this operation, there was a further episode with his back. This happened at home on 11 May 1992 when he attempted to stop a car from rolling forward by lifting the front wheels off the ground. This caused an increase in pain and right leg pain. On 24 September 1992 a further CT scan was carried out. On 6 November 1992 Dr Segelov and Dr Bentivoglio performed a further operation involving a right L5S/S1 and L4/5 hemilaminectomy and foraminotomy. After that the first respondent did not work. The first respondent's claims against both the appellants and the second respondents were for weekly payments of compensation from 1 January 1992 and continuing, in addition to a claim pursuant to s66 in respect of thirty per cent permanent impairment of the back and claim pursuant to s67. Against the appellants, the first respondent relied upon the May 1987 injury and the nature and conditions of employment. Against the second respondents, the first respondent relied upon the nature and conditions of his employment between January and December 1991 as being causative of his incapacity and permanent impairment of the back. His Honour found that the first respondent's incapacity for work was caused by the May 1987 injury and not caused or contributed to by the nature and conditions of his work with either the appellants or the second respondents, his work as a self-employed trucker or the incident of May 1992. This meant that he made orders against only the appellants and that the first respondent was not entitled under s66 and s67. The trial judge summarised the now challenged factual finding as follows: "Tt seems to me that following the initial protrusion resulting from injury on 27 May 1987 the applicant had a compromised L5/S1 disc which was liable to manifest further protrusion with or without any particular stress. The gradual evolution of symptoms in the period that he worked for the second respondent doesn't appear to me to connote injury as such but rather the revelation of the ongoing pathology resulting from the initial injury. I therefore feel that the only relevant injury establishes is that of 27 May 1987. " The issue which the appellants raise in the appeal is whether the evidence supported that finding. They submit that it does not, their main reason being that, although there is medical opinion supporting it, that opinion did not take account of the first respondent's work history subsequent to the May 1987 injury. I do not think this submission is made out. The Judge himself was well aware of the argument now made for the appellants. After making the above quoted critical finding of fact, he commented that it was probably an unusual. or at least unexpected, finding, but said: "Overall, it reflects my impression that all that happened after the initial injury was fairly inevitable in a young man who was naturally physically active. " URJ LEGGATT and ANOR v COLLEY and ORS (Priestly JA) 3 Before reaching his conclusion he had considered in some detail what the appellants now rely on. Their submission is that if the May 1987 injury was of such significance that everything that happened after it was only a manifestation of the injury then suffered, the first respondent would not, in ordinary experience, have been able to do the heavy work he had done up to October 1989. They also say the subsequent events should have been held to have broken the chain of causation. In a number of paragraphs preceding the passage in his Honour's reasons I have already quoted, his Honour dealt with the appellant's present argument in the following way: "The worker has alleged the familiar nature and conditions of employment as available to find further employment injury. Quite commonly such alone suffices to discharge the worker's obligation of establishing injury. This is particularly so in the 'disease' cases. If a worker has degenerative disease of the back and has done work which has subjected such a back to fairly continuous insult, it is not uncommon for the Court to find that there has been an aggravation of the degenerative condition due to the work. Kelly v Glenrock Pastoral at first instance appears to be the exception rather than the rule. In the context of this matter it is not so clear. Here I have found that the initial injury in May 1987 had caused physical damage to the LS5/SI disc. With such damage the worker thereafter experienced increasing symptoms. The question becomes whether such symptoms are 'revelation or genesis'. Is he experiencing symptoms because he has an injured back which can no longer sustain the stresses that it did before, or is he doing further damage and exacerbating his already injured back? By and large, with an LS/SI protrusion, I would be inclined to expect that the more he stressed his back the more it would be likely to hurt. That this was the more likely explanation appears to gain some support from the lack of reliance upon such work as an injurious factor by any of the medical witnesses. Prima facie they universally appear to regard the problem initially treated as a consequence of the incident of 27 May 1987. In the context of this case, and I think the applicant a fairly stoical man, I don't feel that the subsequent work with the first respondent, nor in how owning a carrying business was aetiological/y relevant. It seems to me that the man experienced symptoms varying in degree with the degree of stress to which he subjected his back and, probably, on occasion varying in degree quite spontaneously. That would seem to me more readily explainable by the fact that he was doing these things while suffering frank protrusion rather than importing any injurious effects to that work of itself. Subsequently, when working for the second respondent I feel the situation is much the same. Notwithstanding the prior laminectomy, discectomy, the applicant still had a damaged L5/S1 disc, some elements had been extracted on surgery but it was still substantially comprised. The subsequent surgery on 16 January 1992 was to treat what Dr Segelov called a recurrent disc protrusion and further material was extracted at that time. Within a couple of months CT scan showed further protrusion which was treated surgically on 27 May 1992. In the interim the applicant was convalescing from the earlier surgery and presumably not subjecting his back to any undue stress. " This approach to the question of fact which his Honour had to decide does not seem to me to be an unacceptable view of the evidence in the case. In what he said in the quoted paragraphs and in his earlier detailed discussion of the medical evidence, his Honour did not, so far as I can see, overlook or misunderstand any of it. 4 UNREPORTED JUDGMENTS It seems obvious that it was open to him to have reached the different conclusion the appellants asked for and, as he himself said, different minds might interpret the primary facts differently. However, after due consideration and being fully aware of all the matters now raised by the appellants, he found as he did. A significant factor in that consideration was the view he had formed of the first respondent, that he was a fairly stoical man. This seems to me fairly clearly to bring the case into the category of the Abalos and de Vries cases which the Court has in recent years had to consider very frequently. It was submitted for the appellants that the present case was not in that category. If, on the one hand, the case does fairly belong to the Abalos and de Vries category of case, then it seems to me that there is no way in which the appeal could succeed in the light of what I have said concerning the Judge's approach to the facts. Tf, on the other hand, the appellant's contention is correct and the case is not in the Abalos and de Vries category, I am not persuaded that it has been shown that the trial judge's conclusion was wrong or that error on his part has been demonstrated. My view is, therefore, that that appeal should be dismissed. Powell JA I agree. Waddell AJA I agree. Priestley JA: The Court orders, therefore, that the appeal be dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: J Hislop QC/P Evans Solicitors for the appellant: AO Ellison and Co Counsel for the first respondent: T Puckeridge QC/M Bradford Solicitors for the first respondent: Peacock Dickens and Price, Dubbo Counsel for the second respondent: J Poulos QC/P Perry Solicitors for the second respondent: Hickson Lakeman and Holcombe