JJ WOODS AND SONS CARRIERS PTY LTD v BARRETT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY P, PRIESTLEY and BEAZLEY JJA 17 July 1996, 2 December 1996 [1996] NSWCA 272 Workers Compensation — Deterioration in worker's condition — Further claim for compensation — Appeal by employer — Practice and Procedure — Whether point not taken at trial can be taken on appeal — Workers Compensation Act 1987, s71 Worker injures neck and makes claim for compensation — Neck injury leads to frozen shoulder and worker makes further claim for compensation under s71 of the Workers Compensation Act 1987 — Appeal by employer against further award of compensation — Whether worker's claim based "on occupational disease" within terms of s71 of the Workers Compensation Act 1987 — Whether point not taken at trial can be taken on appeal — Held: appeal dismissed: There is nothing in the nature of the matter or in the evidence before the judge to warrant the conclusion that the issue raised on appeal could not have been established by evidence had it been in dispute. Browne v Dunn (1894) 6 R 67; Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Water Board v Moustakas (1988) 180 CLR 491; Vakauta v Kelly (1989) 167 CLR 568; Commonwealth v Verwayen (1990) 170 CLR 394; referred to. ORDERS Appeal dismissed with costs. Mahoney P At the end of the argument in this appeal, the basic facts were not, I think, seriously in dispute. I shall summarise the relevant portions of them as found by the learned trial judge Campbell CJ, Compensation Court. On 27 September 1992 Mr Raymond Alan Barrett ("the worker") was injured in the course of his employment with the appellant employer JJ Woods and Sons Carriers Pty Ltd. He injured his neck and, possibly, other parts of his body. There was no frank or obvious injury to his left shoulder. Some six or eight weeks after that injury, he "began to have trouble with his left shoulder". That trouble continued. On 17 June 1993 he claimed compensation in respect of the injuries he had suffered on 27 September 1992. The claim related, inter alia, to the impairment of his neck and to the loss of use of his left arm at or above the elbow. It is the latter injury which is now in question. On 30 March 1994, an award was made in the worker's favour in that application. The relevant part of the award is as follows: "Having duly considered the matters submitted, THE COURT, by and with the consent of the parties hereto: 1. HEREBY ORDERS AND AWARDS: (1) That the respondent pay the applicant as lump sum compensation under s66: 2 UNREPORTED JUDGMENTS (a) $15,252 in respect of 30% permanent impairment of the applicant's neck. (b) $4,766.45 in respect of 5% loss of use of the applicant's left arm at or above the elbow. (2) That the respondent pay the applicant, as lump sum compensation under s67, $15,000 in respect of pain and suffering; such sum to be apportioned as...". Subsequently, as the worker claimed, there was further deterioration in the condition of his left shoulder and upper arm. On 6 March 1995 the worker made an application for further compensation. That application was amended on or about 30 November 1995. The application, as it was when the hearing of it took place, was an application based and based only on s71 of the Workers Compensation Act 1987. The form of the application (as amended) as it is in the appeal papers refers to the consent award of 30 March 1994 (it is in the amended application described as an award made on 30 April 1994). The application, in setting forth "particulars of compensation claimed", stated: "(a) $ pw from... (b) (i) Lump sum $23,831.25 in respect of 25% further permanent loss of efficient use of the left arm at or above the elbow as a total loss thereof pursuant to s66 and s71. (ii) Further pain and suffering to be assessed. (iii) Further or in the alternative the applicant seeks a reconsideration pursuant to s17(1) of the Compensation Court Act 1984 as amended in respect of the award referred to in paral0 hereof." Mr Leslie QC, for the worker, has stated and it is I think not contested that, upon the hearing of the application, the claim for a reconsideration under s17(1) of the Compensation Court Act 1984 was abandoned. The matter proceeded, he submits, merely as an application under s71 of the Workers Compensation Act 1987. Mr Sharpe, for the employer, has gone to some lengths in his submissions to this Court to demonstrate that the application was dealt with as, and as only, an application under s71. Having considered the judge's judgment (in which his Honour states in terms that the "present claim is based on a claim under s71...") and the other material before the Court, I am satisfied that the matter proceeded in the manner indicated by Mr Leslie QC. On 4 December 1995, the learned Chief Judge made an award the relevant portions of which are as follows: "Having duly considered the matters submitted, THE COURT HEREBY ORDERS AND AWARDS: 1. That the respondent pay the applicant, as lump sum compensation under s66, $19,065 in respect of 20% further loss of use of the applicant's left arm at or above the elbow. 2. That the respondent pay the applicant, as lump sum compensation under s67, $5,000 in respect of pain and suffering; $1,500 thereof to be apportioned in respect of past pain and suffering. It is that award against which the employer has appealed. The grounds of the appeal are set forth in the notice of appeal. As the matter has proceeded, the issue and the only issue raised for the appellant is whether the worker's claim was based on and disclosed "an occupational disease" within s71. S71, as far as is here relevant, provides: "71(1) If: (a) compensation has been paid and becomes payable under this Division... for a loss being: URJ JJ WOODS AND SONS CARRIERS PTY LTD v BARRETT (Mahoney P) 3 (i) the loss of a proportion (but not all) of a thing; and (ii) an occupational disease; and (b) the worker suffers a further loss of that thing, compensation is payable under this Division for the further loss but only the proportion of that further loss of the thing shall be taken into account in calculating the compensation payable. (2) Any such further losses may be taken into account for the purpose of determining whether compensation is payable for pain and suffering because of the operation of s67(2). (3) In this section: "occupational disease" means: (a)... (b)... (c) any disease which is of such a nature as to be contracted by a gradual process. The point taken in this appeal, as I understand the ultimate effect of the submissions made by Mr Sharpe, is that, for an order to be made under s71, it must be shown that the "loss" for which the claim is made is, inter alia, "an occupational disease", ie, a "disease which is of such a nature as to be contracted by a gradual process"; that the evidence did not disclose that the loss or condition the subject of the worker's claim was an occupational disease; and therefore the order made could not and should not have been made. It is clear and Mr Leslie QC does not contest that, the application having been based upon s71, it was necessary that the loss for which the claim was made should be an occupational disease within s71(3)(c). He accepts that there was no finding in terms by the learned Chief Judge that the loss claim was such. However, he submits that that was never a matter in contest in the proceeding before the learned Chief Judge and that, in accordance with established principle, it is not open to the appellant to raise the issue at this stage. Mr Leslie QC referred the Court to Browne v Dunn (1894) 6 R 67 at 75, 76; Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1 at 24, 25; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Water Board v Moustakas (1988) 180 CLR 491; Vakauta v Kelly (1989) 167 CLR 568 at 572, 587; Commonwealth v Verwayen (1990) 170 CLR 394 at 484. Stated briefly, the relevant principle is that if a point be not taken at the trial, it may not be taken on appeal if the defect disclosed by the point could have been cured by evidence brought at the trial. If it is clear that the point could not have been cured by evidence, then, subject to other exceptions not here relevant, the point may be taken on appeal. But, as Mr Leslie's submissions suggest, had the point been taken below the worker could have established that what was involved was a disease of the relevant kind. It appears clear that the point was not taken below. It does not appear to be referred to in the careful judgment of Campbell CJ CC. The answer lodged on behalf of the employer, as it is in the appeal papers, does not in terms raise that matter as an issue to be contested before the learned judge. This Court does not know what, in the end, was ultimately pressed before him; as I have said elsewhere, the form and flow of the argument in a busy trial court and, it would seem, in the Compensation Court in particular, is such that, in the end, points are pressed or not pressed which do not appear clearly in the application and the 4 UNREPORTED JUDGMENTS transcript of evidence and earlier argument. But the fact that no reference is made to the point in his judgment provides the basis for inference that it was not an issue before him. There is in my opinion no proper basis for the conclusion that, had the point been raised below, evidence could not have been brought to establish that the loss for which the worker claimed was not a relevant disease. Insofar as it may be relevant to refer to such matters, I note that Mr Sharpe, who appeared for the employer at the trial, there raised a question "whether it had been shown on the evidence that the applicant had in fact suffered the problems with his left shoulder as a result of the fall". The judge, having dealt with that issue, said: "However, as I have said, I do not need to deal with that question because both Dr Seaton and Dr Henke support the proposition that an injury to the neck, in ways that are not entirely clear but are well established, can lead to the development of a frozen shoulder. Both consider clearly enough that that is what occurred in this case." The judge did not go further, to consider whether the process whereby a neck injury led to the development of a frozen shoulder could properly be described as a "disease" or a disease of the relevant kind. But there is nothing in the nature of the matter or in the evidence before the judge to warrant the conclusion that that could not have been established by evidence had it been in dispute. In these circumstances, I see no objection to what the learned trial judge did. In the argument, as far as I understand the effect of it, no objection or significant objection has been pressed in relation to any other aspect of the matter. Accordingly, it is not necessary to deal with the notice of contention. In my opinion the appeal should be dismissed with costs. Priestley JA I agree with Mahoney P. Beazley JA I agree with Mahoney P. Appeal dismissed with costs. Counsel for the appellant: JL Sharpe Counsel for the respondent: AJ Leslie QC/JO Anderson Solicitors for the appellant: Vandervords Solicitors for the respondent: Martin Bell and Co