LES POWELL ELECTRICAL CONTRACTING PTY LTD vy POWELL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and COLE JJA 16 April 1996, 16 April 1996 [1996] NSWCA 323 WORKERS Compensation Act 1987 — s4 — failure to discharge onus of proof — no question of principle. Cole JA This appeal raises no question of principle. The only issue is whether Armitage CCJ was entitled, on the evidence before him, to conclude that the respondent had suffered injury in accordance with s4 Workers Compensation Act 1987 to his right knee and thus entitled to make the award he did pursuant to s66 in respect of that knee injury. It was common ground at the hearing that the respondent had degenerative osteo arthritis in his right knee. The question was, as s4 dictates, whether he had suffered injury in that: "Arising out of or in the course of (his) employment (he had suffered) aggravation, acceleration exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration." Armitage CCJ found that he had, accepting his understanding of the views of Doctors Laird, Plowman and Harrington. Regarding the right knee, Dr Ploughman reported: [1] "1. Osteoarthritis of the right knee. It is degenerative in origin but one cannot exclude the nature of his employment as a contributing factor. It does not cause him much trouble."! That expression of view alone does not satisfy the onus upon the respondent.? Doctor Laird was asked by the respondent's solicitors by letter the following questions: [2] "1. Is it more probable than not that the patient's work as an electrical contractor, which work involved a great deal of crawling around and kneeling in ceilings, climbing ladders, heavy lifting and carrying and mending, has caused or aggravated the condition in his left and right knees? [3] 2. Is it more probable than not that such aggravating effects are continuing?'"'3 Dr Laird responded: [4] "1. Quite obviously years of crawling around and kneeling in ceilings, climbing ladders, heavy lifting, carrying and bending and such activities has been shown in the past to accelerate and aggravate any existing knee problems. It is well know for instance that coal miners have a higher incidence of knee problems and associated degenerative arthritis than does the normal population. I would think that this man's previous activities which involved the work as described could certainly contribute to his increased degenerative arthritis. 1. Appeal Book, at 32. 2. Sydney City Council v Furner (1991) 7 NSW CCR 210. 3. Appeal Book, at 28. 2 UNREPORTED JUDGMENTS [5] 2. If this man continues to do this type of work then his general knee condition will be aggravated.''4 The use of the expression "could" is insufficient to discharge the onus on the respondent. The answer to question 1 does not establish that, in the case of Mr Powell, his activities did, on the balance of probabilities, contribute to his increased degenerative arthritis. Accordingly Dr Laird's evidence did not entitle the respondent to succeed. The third doctor, Dr Harrington wrote in his report: [6] "There is no doubt that this man has osteo-arthrosis of his knee. I tend to believe that it is more a constitutional thing, although he may have aggravated it in 1993. This has certainly worn off now and his problems are now due to the underlying intrinsic nature of his degenerative knees, the left much worse than the right. There is no doubt that he does have problems with his knees. He is probably going to require some treatment in the future, which could be either an osteotomy, that is to correct his knee, or a knee replacement. Obviously, the longer he can put this off, the better the overall result will be. His percentage of disability for the left knee would be about 20% and for his right about 12 and a half per cent. THERE MAY HAVE BEEN SOME SLIGHT ACCELERATION OR EXACERBATION OF HIS CONDITION DUE TO THE NATURE OF HIS WORK but he said that over the last five or six years he has been more and more in the office and less and less on roofs and under houses, et cetera. I agree that he is better off in the office, rather than on ladders and on site."5 (Emphasis added by Armitage CCJ) The use of the words "may have been" are insufficient to satisfy the onus on the respondent. It follows that, on the medical evidence alone, the respondent did not discharge the onus of satisfying the court that his work related activities contributed to an aggravation, acceleration, exacerbation or deterioration of the arthritic condition of his right knee. In discussing the evidence of Dr Harrington, Armitage CCJ regarded the words that he underlined as: [7] "... [MJaking a concession that the nature and conditions of the applicant's employment as the applicant described it to him (much in the way he described to the court today), may have contributed to the 'acceleration" or "exacerbation™ of the applicant's osteo-arthritis (or rather "osteo-arthorosis" as he describes it) on a continuing basis."'6 Notwithstanding that it may be recognised that doctors whose reports are tendered in the interests of one party generally support that party, it is wrong to regard a statement of medical opinion as a "concession", in this instance on behalf of the appellant. This "concession" appears to have influenced the trial judge in his elevation, indeed his change, of Dr Laird's view of aggravation from a possibility to a probability. Whilst the trial judge accepted the evidence of the respondent, there is nothing in his evidence which would enable a court either alone or with the evidence of the doctors to which I have referred, to elevate the possibilities referred to by the doctors accepted by the trial judge to a level sufficient to discharge the onus upon the respondent. I would propose the following orders: 4. Appeal Book, at 29. 5. Appeal Book, at 55. 6. Appeal Book, page 55. URJLES POWELL ELECTRICAL CONTRACTING PTY LTD v POWELL (Priestley JA) 3 [8] 1. Appeal upheld. [9] 2. That O.1 of Armitage CCJ made 6 December 1994 be set aside. [10] 3. That O.4 be varied by omitting the words "on the said lump sum of $7,818.75 at the rate of 12 per cent per annum from 12 May 1988 to 6 December 1994". [11] 4. The respondent is to pay the appellant's costs but is to have, if qualified, a certificate under the Suitor' s Fund Act. Priestley JA The trial judge in this case had before him a number of medical reports relating to the applicant's right knee as well as reports dealing with other aspects of his condition which were the subject of findings and orders by his Honour, but in respect of which no appeal is brought by the employer. A number of these reports in regard to the right knee said, as for instance Dr Harrington said, that the osteoarthrosis of the knee was a constitutional thing and the applicant's problems were due to the underlying intrinsic nature of his degenerative knees, the left much worse than the right. The trial judge also had before him medical evidence of the kind already mentioned by Cole J which the applicant was relying on, but which did not rise beyond saying that, translating it into legal language, the conditions of the applicant's work might have aggravated the osteoarthrosis of the right knee. He also had before him the evidence of the applicant himself, which he fully accented. In coming to the conclusion, in regard to the right knee, that the applicant had discharged the ordinary onus of proof of those that on the probabilities the condition had been contributed to by his working conditions, the trial judge moved from a discussion of Dr Laird's evidence, that doctor having said that the condition could certainly have been contributed to by his work, to this statement: [12] "Dr Laird in fact considers that on the probabilities the applicant's work at least aggravated the osteoarthritis in his right knee." That was the critical conclusion in his Honour's reasoning and, in my respectful opinion, it was a conclusion that was not justified by the materials that his Honour stated as being the basis for it. In my view, that invalid reasoning means, the judge's conclusion should not be adopted in this Court on the grounds on which he reached it. That leaves the question of whether the Court should be satisfied on the evidence before it, accepting fully, as the judge did, the reliability and truthfulness of the applicant's evidence, that the probability test, in regard to the right knee, is discharged. In my opinion, when all the evidence is looked at and when it is borne in mind that the applicant's medical opinions did not reach the necessary level so far as the onus of proof is concerned and that the other medical opinions available in the case are all clearly to the effect that, putting it in simple form, the right knee condition cannot be laid at the door of the applicant's working conditions, then it seems to me the better factual conclusion is that the onus of proof was not discharged. As I read the various medical reports, none of the doctors who made reports in any way called in question the underlying facts of which the applicant gave evidence. My conclusion is reached on the same basis as the trial judge's, namely complete acceptance of the applicant's evidence. However, complete acceptance of his evidence does not mean that he succeeds in regard to the right knee, because he was not in a position himself to say whether the undoubted 4 UNREPORTED JUDGMENTS deterioration in his right knee was attributable to his working conditions rather than simply the congenital condition of the right knee. Medical evidence was necessary to support the connection, and no satisfactory evidence to the required effect was available. I agree with the orders proposed by Mr Justice Cole. Meagher JA I agree with Mr Justice Cole. Priestley JA: The orders of the Court therefore are as proposed by Mr Justice Cole. Appeal upheld. That O.1 of Armitage CCJ made 6 December 1994 be set aside. That O.4 be varied by omitting the words "on the said lump sum of $7,818.75 at the rate of 12 per cent per annum from 12 May 1988 to 6 December 1994". 4. The respondent is to pay the appellant's costs but is to have, if qualified, a certificate under the Suitor' s Fund Act. wNr Counsel for the appellant: JD Hislop QC/GJ Maddocks Solicitors for the appellant: Edwards Johnstone Sullivan Counsel for the respondent: PR Capelin QC/JT Kearney Solicitors for the respondent: Moroney Rutter and Mantach