Baker, Wayne Albert v Canberra Abattoir Pty Ltd

[1982] FCA 90

Re: WAYNE ALBERT BAKER
And: CANBERRA ABATTOIR PTY. LIMITED
No. ACT G35 of 1981
Workmen's Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
Blackburn J.
Northrop J.

CATCHWORDS

Workmen's Compensation - Appeal from Supreme Court of the Australian Capital Territory - Need for Arbitrator's Award to be Properly Drawn up Before Appeal Instituted - Whether Applicant Totally Incapacitated - Question of Permanence of Incapacity Not Involved - Work Done as Part of a Rehabilitation Scheme not Affecting Applicant's Total Incapacity - Procedural Questions and Onus of Proof.

Workmen's Compensation Ordinance, 1951, s.26

Workmen's Compensation Rules

HEARING

CANBERRA

#DATE 20:5:1982

ORDER

1. The appeal be allowed, the order of the Supreme Court of the Australian Capital Territory be set aside, and the award of the Court of Petty Sessions be restored.

2. The respondent pay the costs of this appeal and the appeal to the Supreme Court of the Australian Capital Territory.

JUDGE1

This is an appeal from a decision of the Supreme Court of the Australian Capital Territory (Kelly J). What is referred to in the appeal book as the order of his Honour was not properly drawn up so as to contain any definitive order, but it is agreed that we should construe it as containing an order allowing the appeal to him from the Court of Petty Sessions, and setting aside the order of the learned magistrate so far as it contained an award in favour of the present appellant under the Workmen's Compensation Ordinance, 1951 on the basis of total incapacity. The award of the magistrate was not contained in any formal document at the time his Honour heard the appeal to him, but a document signed by the magistrate, and dated as of the day he announced his decision, was handed up to us when we commenced the present hearing. The appeal from the magistrate should not have been instituted until the award was settled and signed in accordance with the rules. The procedural irregularities, from beginning to end, have been the cause of much confusion and have, I believe, been productive of error in both courts. I do not propose to traverse all these, because it seems to me that the factual situation is fairly clear, and shows that the appellant, Mr. Baker, is entitled to an award on the footing of total incapacity.

The appellant was born on 15 March 1960. On 6 August 1979 he was working for the respondent, in its abattoir, when, in the course of pushing some carcasses along a rail, he injured his back. The injury was by way of an aggravation of a pre-existing and probably congenital condition (Scheuermann's disease) which was asymptomatic. He ceased work and was paid compensation for total incapacity until 8 January 1980. The cessation of payments coincided with the employer's insurer being placed in provisional liquidation and does not seem to have been the result of any examination of the work capacity of the worker at that time.

On 10 April 1980 the worker made an application for arbitration under the Ordinance, and on 3 October 1980 a decision was made by the learned magistrate awarding him compensation on the basis of total incapacity to the date of determination and continuing, except for a period of four weeks, during which he was doing light work, and for which he was treated as partially incapacitated only. It has not been submitted on this appeal that he should be regarded as other than partially incapacitated during that period.

Unfortunately, the magistrate's bench sheet, which is all that his Honour had before him, showed a finding that the applicant had been "totally and permanently incapacitated" since 6 August 1979, and no finding simply on the basis of total incapacity. The notice of appeal from his award was apparently drawn without notice of what was on the bench sheet, and challenged a finding of total incapacity, without reference to permanency. It is common ground that the permanence of incapacity is not a question which arises in this case. The appeal to his Honour was in the nature of a full appeal (s.26 of the Ordinance). As all the evidence, and proceedings, are set out in the transcript, no difficulty arises in this case from the provision in the Ordinance (paragraph 6A of the Fourth Schedule) that the Court of Petty Sessions is not bound by the rules of evidence and may inform itself in such manner as it thinks fit. His Honour dealt fully with the evidence, and with legal arguments raised before the magistrate and before him. They related in part to presumptions and matters of onus, arising from the course of events, including the way the case had been conducted before the magistrate. His Honour was, however, largely concerned with the finding of the magistrate, as he understood it, that total incapacity was permanent.

At one point his Honour said, in relation to the magistrate's finding:

"Even if he could have found that, at the time of the adjudication, he was totally incapacitated, it is a much greater and, it seems to me, an unjustifiable step to hold that he was permanently so incapacitated."

The concluding part of his Honour's reasons shows the unsatisfactory situation which developed in what should have been a reasonably straightforward compensation case:

"Following debate before me on 30 September 1981 I think I should make it plain that it does not appear from my reasons for judgment which I handed down on 5 June 1981 that I made any finding that the respondent was partially incapacitated within the meaning of the Workmen's Compensation Ordinance 1951. I now make formal findings in respect of the findings made by the learned Magistrate. I dismiss the appeal against the learned Magistrate's finding that the respondent sustained personal injury by accident arising out of or in the course of his employment on 6 August 1979. I uphold the appeal against the learned Magistrate's finding that the respondent has been totally and permanently incapacitated since that date, 6 August 1979, except for a four weeks period. So far as it is necessary to do so I uphold the appeal against so much of the learned Magistrate's finding appearing in his reasons for decision as indicates that the respondent was in, and I quote: 'the end result . . . incapacitated for work and has been so incapacitated since the date of the accident, on 6 August 1979, with the exception of the four weeks in respect of which he was able to carry out light employment and in respect of which he was paid. During that period, of course, he was not totally incapacitated.' In upholding the appeal in respect of the finding just referred to, I do not mean to be taken as finding that at no time during the period from 6 August 1979 to 3 October 1980 was the respondent not totally incapacitated for work, nor am I to be taken as finding that he was partially incapacitated for work. Whatever incapacity there was between 6 August 1979 and 3 October 1980 is a matter for evidence not sufficiently before me or perhaps before the learned Magistrate. No doubt the payments of compensation made might be considered to create some form of estoppel."

I am of the view that there was evidence to support the findings of the learned magistrate respecting total incapacity, and that they should not have been disturbed. It is true that in a document headed "Draft Decision" he placed emphasis on Ruiz v Canberra Rex Hotel Pty. Ltd. (1974) 5 ACTR 1, but that case does not establish any new or special rule of law, and I do not think his understanding of it led him into error. The worker, Mr. Baker, had carried out some light work for a period of four weeks only. The work in question was not however work for which he was trained or which he could, during the total period which the magistrate had under consideration, reasonably be expected to have done for his livelihood. The work was arranged for him as part of a rehabilitation programme, and he was not paid for it. The evidence shows that the worker returned for daily treatment at the rehabilitation centre after the end of the month and in my view he was totally incapacitated at the time of the hearing. Mr. Baker received an additional social services benefit during the period he was engaged in the rehabilitation programme, and the money received was treated as going in reduction of an entitlement on the basis of total incapacity. This is not to say his acceptance of the amount showed capacity for work (see Thompson v Armstrong and Royse Pty. Ltd. (1950) 81 CLR 585, per Kitto J at 622).

It is submitted that, in the absence of evidence of attempts by the worker to find work, it was not open to the magistrate to find that, with some capacity to work, the worker was totally incapacitated. In my view there is no such rule. Each case must be judged on its own facts. The physical condition of the worker, the treatment being received by him, the nature of the work for which he is trained or equipped, his own evidence of his symptomatic reaction to attempts to work, and the evidence relating to the four weeks of rehabilative work, all enable an inference to be drawn as to whether he is totally incapacitated up to the time of the hearing. Independently of these considerations, or combined with them, is the consideration that liability for total incapacity had been accepted, and no reason appeared for a change.

In connection with the last-mentioned matter, his Honour considered the application of the rule enunciated in paragraph 12 of the First Schedule of the Ordinance:

"A weekly payment (other than a weekly payment referred to in clause (i) of sub-paragraph (a) of paragraph 1 of this Schedule) payable under this Ordinance may be varied or ended by agreement or by arbitration under this Ordinance."

This paragraph, and common law rules to the same effect were discussed in Barbaro v Leighton Contractors Pty. Limited (1980) 30 ALR 123 a decision of this Court; and in Thiess Bros. Pty. Limited v Carbone (1977) 15 ACTR 15, a decision of the Supreme Court. It was therefore submitted that payment for total incapacity had to continue until an award was made varying that liability. The decision of the learned magistrate could be supported on this basis, but the position is obscured by the way the case was presented to him, and what was said by counsel in the course of it. In the ordinary course, the application necessary because of paragraph 12 would be made by the employer, but in the present case, for reasons which were given by counsel to the magistrate, the application was made by the worker, Mr. Baker. In the result the learned magistrate was required to consider the whole of the material placed before him. He did this, and I see no reason to depart from his conclusions.

I am of the opinion that the appeal should be allowed, the judgment of his Honour set aside, and the award of the learned magistrate restored. In relation to the terms of the award, which follows Form 17 in the First Schedule to the Workmen's Compensation Rules, it is relevant to point out that the Ordinance and Rules provide procedures by which the respondent can seek orders varying awards. The respondent should pay the costs of this appeal, and of the appeal to the Supreme Court.

JUDGE2

I have read and agree with the reasons for judgment of Fox J. in this matter, and I concur in the orders proposed by him.

JUDGE3

I agree with the order proposed for the reasons given by Fox J.