New South Wales Court of Appeal CITATION : MALLAH v LUBE MOBILE [2002] NSWCA 209 FILE NUMBER(S) : CA 40825/01 HEARING DATE(S) : 25 June 2002 JUDGMENT DATE : 3 July 2002 Mohamad Mallah PARTIES : v Lube Mobile Pty Limited JUDGMENT OF : Meagher JA at 1; Handley JA at 2; Hodgson JA at 15 LOWER COURT JURISDICTION : Compensation Court LOWER COURT CC 55956/99 FILE NUMBER(S) : LOWER COURT Burke CCJ JUDICIAL OFFICER : COUNSEL : Appellant - John Wynyard Respondent - J D Hislop QC/C J Callaway SOLICITORS : Appellant - Michael E Bradstreet Respondent - PricewaterhouseCoopers Legal CATCHWORDS : WORKERS COMPENSATION ACT 1987 (NSW) s 4(a) AND s 9A(1) - IN THE COURSE OF EMPLOYMENT - SUBSTANTIAL CONTRIBUTING FACTOR LEGISLATION CITED : Workers Compensation Act 1987 (NSW) Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 CASES CITED: Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 DECISION : Appeal dismissed with costs IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40825/01 CC55956/99 MEAGHER JA HANDLEY JA HODGSON JA Wednesday 3 July 2002 MOHAMAD MALLAH v LUBE MOBILE PTY LIMITED WORKERS COMPENSATION ACT 1987 (NSW) s 4(a) and s 9A(1) – in the course of employment – substantial contributing factor The appellant was involved in an accident on 7 December 1998 whilst driving a motor vehicle in the course of his employment. He had felt dizzy and had pulled over to recover but after a short while continued to drive but then blacked out. He hit a telegraph pole and suffered soft tissue injuries. The appellant had blacked out and collapsed at a nightclub two days earlier. Compensation payments were made for a time but then ceased and the appellant commenced proceedings in the Compensation Court. By this time all physical consequences of the accident had ceased. The appellant's only continuing medical condition was a paralysis of his leg which was either due to malingering or to a conversion disorder. On the assumption that the paralysis was due to a conversion disorder, the trial Judge found no nexus between the conversion disorder and any element of his employment. The issues on appeal were whether the appellant, under s 4(a) of the Workers Compensation Act 1987 (NSW), had shown that his paralysis was an injury which arose out of or in the course of his employment or was the result of such an injury, and if so whether the employment "was a substantial contributing factor to the injury" within s 9A(1). HELD: The trial Judge's refusal to draw an inference of causation between the accident and the conversion disorder from the sequence of events was not affected by misdirection or other legal error. ORDER Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40825/01 CC55956/99 MEAGHER JA HANDLEY JA HODGSON JA Wednesday 3 July 2002 MOHAMAD MALLAH v LUBE MOBILE PTY LIMITED Judgment 1 Meagher JA: I agree with Handley JA. 2 Handley JA: The appellant has appealed from an award for the respondent made by Burke ACCJ on 15 August 2001. The appeal is limited to questions of law. 3 The appellant was involved in an accident on 7 December 1998 when he blacked out while driving a motor vehicle in the course of his employment. The vehicle hit a telegraph pole and he suffered soft tissue injuries. Following this accident the appellant developed a paralysis in his right leg. The medical evidence in the Compensation Court established that there was no organic cause or explanation for this paralysis; it was either the result of a conversion disorder or malingering. The Judge did not decide this question but proceeded to examine the factual and legal position on the assumption that the worker was suffering from a conversion disorder. 4 On Saturday 5 December 1998 the worker, who was sober at the time and seated on a stool in a nightclub, had a blackout and collapsed. His friends took him outside to the fresh air and he recovered quickly. Nothing unusual happened on the Sunday and he went to work on the Monday. Some time after lunch while driving to a customer in the course of his employment he had a sensation of dizziness and pulled over to the side of the road. He had a drink of water, splashed his face with water, and after 5 minutes decided that he had recovered. He got back into his vehicle and proceeded towards the customer's residence, but after he had gone 100 yards he blacked out again and collapsed over the steering wheel. The car mounted a kerb and struck a telegraph pole causing the soft tissue injuries previously referred to. 5 The appellant was paid compensation for a time but payments were then terminated and he brought proceedings in the Compensation Court. By this stage the direct physical consequences of the accident had ceased, and the worker's only continuing disability was the paralysis in his right leg which had not been physically injured in the accident. The appellant therefore had to establish that his paralysis was an injury which arose out of or in the course of his employment or the result of such an injury (Workers Compensation Act 1987 s 4(a)), and he also had to establish that his employment "was a substantial contributing factor to the injury" (s 9 A(1)). 6 The Judge addressed the first issue in paragraphs 21 and 22 of his reasons as follows: "21 Now accepting for the moment a diagnosis of a conversion disorder. As I understand conversion disorders, it embodies the proposition that psychological stressors produce psychological problems which are converted unconsciously to sematic problems. You have anxiety about something, but it is manifested as the loss of use of an arm or a leg or whatever. 22 Assuming that to be so, the question is well what produced the psychological problem which was converted into the sematic loss of use of the leg. The only explanation offered is that of Dr Stephenson, which is not a case proposed by the applicant, so it seems to me that there is no indicated or no explained contribution of work to this. It cannot be the accident itself, the fact that he did in fact hit the pole on 7 December 1998, because he had this episode of passing out prior to ever hitting the pole. So it was not hitting the pole that produced that. It must be from some other cause. All organic reasons for that have been virtually excluded, so that there is a psychological explanation which could not possibly derive from the crash itself. It could derive from a whole variety of things that happened before, but the only one postulated is that of Dr Stephenson and that is not a case made by the applicant so in my view it seems on that ground alone, the applicant fails to discharge the onus of establishing a nexus between a somatoform disorder, manifested by a loss of the leg, with any element of employment". 7 It seems reasonably clear that the Judge treated the accident as the occasion for the manifestation of the worker's psychological problem, and not a cause of the problem, or a cause of its manifestation. He asked himself: "… what produced the psychological problem which was converted into the sematic loss of use of the leg?" 8 According to the history taken by Dr Stephenson from the worker, he had been working for the company for about 6 months. It had a merits system where awards or gold stars were given for achievement and the applicant had been doing every well, and Dr Stephenson postulated an anxiety on the part of the worker that he would be able to maintain this level of performance. The worker had not sought to make out such a case and the Judge concluded "that there is no indicated or no explained contribution of work to this", this being "the psychological problem", and he therefore rejected "the work" as a possible contributing cause of the worker's "psychological problem". He also rejected the accident as a possible contributing case because he found that the psychological problem caused the blackout and was not itself a result of the accident. It followed, he said, that "There is a psychological explanation which could not possibly derive from the crash itself". 9 He said that "it", that is the psychological problem, "could derive from a whole variety of things that happened before, but the only one postulated is that of Dr Stephenson and that is not a case made by the applicant". He concluded: "So in my view it seems on that ground alone, the applicant fails to discharge the onus of establishing a nexus between the somatoform disorder, manifested by a loss of the leg, with any element of employment". 10 The trial Judge would have been well aware of the principles applied by the High Court in Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 and the inferences that can arise in personal injury cases from the sequence of events. Evidently he was not prepared to draw an inference of causation in this case from the sequence of events. 11 A finding that an inference of primary fact should or should not be drawn from other primary facts is itself a decision on fact which is not, as such, open to correction for error of law. See Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. The refusal to draw an inference of primary fact which is open on the evidence may be vitiated by legal error if the tribunal misdirects itself as to the law. However in this case the Judge's refusal to draw an inference of causation from the sequence of events was not affected by any such misdirection. 12 The facts found by the Judge establish as a matter of law that the injury comprising the direct physical consequences of the accident arose in the course of the worker's employment, but this cannot be said of the conversion disorder. The employer's liability to pay compensation in respect of the worker's incapacity resulting from his conversion disorder depended on a finding that the accident was at least a contributing cause of that disorder. 13 The Judge declined to find that the necessary causal nexus had been established and in my judgment that was the end of the worker's case and there is no need to consider the interesting issues arising under s 9A. 14 The appeal should be dismissed with costs. 15 HODGSON JA: I agree with Handley JA. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.