Brymac Pty Ltd t/as Alan's Property Services v Hall - [2001] WADC 217

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BRYMAC PTY LTD t/as ALAN'S PROPERTY SERVICES -v- HALL & ANOR [2001] WADC 217

CORAM: MACKNAY DCJ

HEARD: 26-28 FEBRUARY 2001

DELIVERED : 14 SEPTEMBER 2001

FILE NO/S: CIV 4020 of 1999

BETWEEN: BRYMAC PTY LTD t/as ALAN'S PROPERTY SERVICES
Plaintiff
AND
CHERYL ANN HALL
First Defendant
MLADIN PTY LTD
Second Defendant

Catchwords:

Workers' compensation - Disability of worker - Dispute between successive employers - Payment of compensation to worker by second employer - Judgment for damages in favour of worker against first employer - Whether employee or first employer liable to repay workers' compensation to second employer - Workers' Compensation & Rehabilitation Act 1981 (WA) s 92(c)

Legislation:

Workers' Compensation & Rehabilitation Act 1981 (WA) s 92

Result:

Claim allowed

Representation:

Counsel:

Plaintiff:     Mr G R Hancy
First Defendant             :     Mr G J Pynt
Second Defendant         :     Mr G J Pynt

Solicitors:

Plaintiff:     Jackson McDonald
First Defendant             :     Pynt McKay
Second Defendant         :     Pynt McKay

Case(s) referred to in judgment(s):

Geraldton Building Co v Cramer [2001] WASCA 244
Hi‑Tech Demolition Co Pty Ltd v Mainline Demolitions [2000] WASCA 342
Manners v Transfield Pty Ltd (1992) 8 WAR 111
ODG Properties (WA) Pty Ltd v Middler Nominees Pty Ltd [1990] WAR 235
Western Mining Corporation Ltd v N B Little & Sons Pty Ltd (1992) 10 WAR 237

Case(s) also cited:

Co-operative Bulk Handling Ltd v SGIC (1990) 3 WAR 145
Darling Island Stevedoring and Lighterage Co Ltd v Hussey (1959) 102 CLR 482
Zickar v MGH Plastic Industries Pty Ltd, No FC 036 of 1996, 14 November 1996
EMS Holdings Pty Ltd v International Shipyards Pty Ltd, unreported; FCt SCt of WA; Library No 980655; 12 November 1998
Favelle Mort v Murray (1976) 133 CLR 580
Grassi v Ellendale Estate (1985) WAR 294
GRE Insurance Ltd v Bristile Ltd (1991) 6 ANZIns Cas 61-078
Hockey v Yelland (1984) 157 CLR 124
Hume Steel Ltd v Peart (1947) 75 CLR 242
MVIT v Forbes (1985) WAR 50
Vanguard Press Pty Ltd v Baxter (1995) 14 SR (WA) 190

MACKNAY DCJ:

Introduction

In August 1994 the second defendant ("Mladin") was the owner of a cleaning business and on 18 August the first defendant ("Ms Hall") was engaged as a cleaner.
On 31 October of the same year the plaintiff ("Brymac") purchased the business and Ms Hall became its employee.
In January 1995 Ms Hall made a claim for workers' compensation on Brymac, on the basis of incapacity arising from a low back injury said to have been sustained in Brymac's employ, and payments of compensation commenced.
A total of $126,196.05 in weekly payments of compensation and statutory allowances was paid to Ms Hall by Brymac.
Ms Hall subsequently alleged, however, that her back injury was due to an accident of 18 October 1994, whilst she was working for Mladin, and commenced an action in this Court for damages.
On 7 October 1999 judgment against Mladin in favour of Ms Hall was entered in that action, by consent, in the sum of $100,000, in addition to costs inclusive of disbursements fixed at $12,000.
Brymac says that in the premises Ms Hall and Mladin are liable to repay to it the compensation and statutory allowances paid to Ms Hall, pursuant to the Workers' Compensation & Rehabilitation Act 1981 (WA) ("the Act") s 92(c). In that regard s 92 provides as follows:
"92. Both damages and compensation not recoverable
Where in respect of a disability an action is brought by a worker for damages independently of this Act against his employer or against some other person (referred to in this section as 'the defendant') or against both of them -
(a)if the court decides the action should succeed, then after damages have been ascertained but before judgment is entered for the worker in the action, the worker shall be given a reasonable opportunity to elect whether to have judgment or to discontinue the action;
(b)if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the employer only or against the employer and the defendant, there shall be deducted from the amount of the judgment and be paid to the employer a sum representing the amount (after apportionment in respect of any contributory negligence of the worker) actually recoverable by the worker by way of weekly or lump sum compensation, medical and other expenses paid pursuant to this Act, but where liability is apportioned between the employer and the defendant the defendant's liability to pay to the worker shall be reduced accordingly;
(c)If the action proceeds to judgment, including the acceptance of an order to consent to judgment, against the defendant only or is settled by the acceptance of money paid into court by the defendant, the payments and expenses referred to in paragraph (b) shall be a first charge on the judgment or the amount of money paid into court and the defendant shall be bound to pay the amount of the compensation, and medical and other expenses to the employer and the judgment shall be pro tanto discharged by such payment, or the amount due under the charge shall be paid out of court to the employer or his authorized agent, as the case may be;
(d)if the action is discontinued the worker shall pay the costs of the employer or of the defendant or of each of them or such part of those costs as the court thinks fit;
(e)if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the employer or the defendant or both or is settled by the acceptance of money paid into court by the employer or the defendant or by both of them, the worker shall not commence or continue proceedings for, or in relation to, compensation under this Act in respect of the same disability;
(f)if a worker's claim for damages against the employer or the defendant is settled by agreement otherwise than by a judgment, an acceptance of an offer to consent to judgment, or an acceptance of money paid into court -
(i)the employer or the defendant shall file a memorandum of the terms of the settlement with the Directorate within 3 months of the date of its execution by the worker;
(ii)the worker shall not commence or continue a claim for compensation under this Act in respect of the same disability unless the Director disapproves of the settlement within 6 weeks of the agreement for settlement being filed with the Directorate;
(iii)the Director shall not disapprove of the agreement unless he is satisfied the agreement was induced by fraud or misrepresentation or that it would clearly be for the worker's benefit to disapprove of it;
(iv)the Director if he disapproves of the settlement shall serve notice in writing of his disapproval on each of the parties to the settlement of his decision and of the reasons for his disapproval by pre‑paid post to the address of the party set out in the settlement or the last known address of a party, within 14 days of the making of his decision;
(g)where a claim for compensation is commenced or continued after the Director disapproves of a settlement referred to in paragraph (f), the amount recovered or recoverable under such settlement shall be brought into account in reduction of the worker's entitlement to compensation;
(h)Part III Division 7 does not apply to an agreement for settlement referred to in this section."
The term "disability" is relevantly defined in the Act s 5:
" 'disability' means -
(a)a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions;
…
(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree;
(or)
(d)the recurrence, aggravation, or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree."
"Disease" is said by the same section to include:
"any physical or mental ailment, disorder, defect, or morbid condition whether of sudden or gradual development."
As appears in greater detail below Ms Hall and Mladin admit that Ms Hall did sustain a back injury in the employ of Mladin, as alleged, but say Ms Hall sustained a further such injury whilst working for Brymac, on or about 16 January 1995, and that any subsequent incapacity resulted from that injury, as did Brymac's liability to pay workers' compensation.
For those reasons it is said Brymac is not entitled to any return of the compensation paid.
The defendants also pleaded that the consent judgment was for a sum reduced by 50 per cent on account of Ms Hall's contributory negligence, so that if there was any liability to repay the compensation that liability would be similarly reduced.
Although reference was not made to it, a question of that kind was considered by Anderson J in Western Mining Corporation Ltd v N B Little & Sons Pty Ltd (1992) 10 WAR 237. That was in the context of a worker who was injured by a third party, but was himself guilty of contributory negligence, in circumstances where the employer was obliged to and had paid workers' compensation.
After setting out the relevant portions of s 92, and at 239, Anderson J said:
"In my opinion the meaning to be given to these provisions is clear. Relevantly to this type of case they mean that if the worker has been guilty of contributory negligence, and obtains an award reduced accordingly, the employer's right of recovery is affected pro tanto. He is to be paid from the amount of the judgment a sum representing the amount of the compensation 'after apportionment in respect of any contributory negligence of the worker' and it is that sum, after that apportionment, which is rendered a first charge on the judgment by s 92(c)."
A question was also raised as to the jurisdiction of this Court to entertain the claim of Brymac.
In Hi‑Tech Demolition Co Pty Ltd v Mainline Demolitions [2000] WASCA 342 the Full Court held that notwithstanding the absence of an extant claim for compensation by a worker, where compensation had been paid by an employer and there was a dispute with another employer as to the ultimate liability for that, pursuant to the Act s 73(5), a dispute resolution body had jurisdiction to determine, in terms of that provision, whether the worker had suffered "a recurrence and not a fresh disability or partly a recurrence and partly a fresh disability", and to arrange the liability between the two employers accordingly.
It appears from the Act s 5 that the term a "dispute resolution body" does not include the District Court of Western Australia.
The response of Brymac to that proposition was that this was no longer a dispute about compensation, but rather a simple application of the Act s 92(c).

Evidence

Notwithstanding that Brymac called witnesses, as did the defendants.
The first witness called by the plaintiff Brymac was the first defendant, Ms Hall.
Ms Hall said that one night in October 1994 she had, in the course of her cleaning duties at a building in Kewdale known as Steelmart, with the assistance of another employee, lifted a roll of vinyl about 12ft long and immediately experienced pain in her back.
She had not suffered from that back pain prior to that, Ms Hall said, and the pain did not go away thereafter.
Ms Hall said she continued work through November and December 1994, and her back became "worse and worse" and that "greatly" affected her work.
As a consequence, and in January 1995, Ms Hall said she saw Dr Simmons, and was put off work.
She did not tell Dr Simmons of the October 1994 accident, Ms Hall said, but there had not been any other incident and everything she did from that time on had produced her symptoms.
Ms Hall thought that by January 1995 Alan's Property Services, that is the second defendant, would have been aware that she had a back problem.
She "didn't actually know how workers' compensation worked", so could not say whether a claim for compensation had been made, Ms Hall said, but did identify a claim form dated 8 February 1995, which claim stipulated the date of the occurrence as 16 January 1995, the activity as "mopping", the cause as "continuous lean on lower back", the date the occurrence was reported as 7 February 1995, and the date of cessation of work as 8 February 1995.
In cross‑examination by her own counsel Ms Hall said she had been working long days in October 1995 and had not reduced the same despite the accident in October 1994.
From the time of the accident to 16 January 1995 the pain "just got excruciating", and on the latter day it also spread into her hips and pelvis, Ms Hall said.
Ms Hall said she had not subsequently said anything about an incident of October 1994 to any of the doctors she had seen because:
"It was not an issue with me, you know. I didn't have a reason to be talking about it, you know. I went to a doctor for something to get rid of pain. How it was ever going to become of anything wasn't important, you see. I didn't know it was going to become so important.
When did it become important?---When everybody wanted to know when it was."
Ms Ann Frear was a former fellow cleaner, and said she had been with Ms Hall at the Steelmart premises on the night of the October 1994 accident, and had tried to lift the vinyl roll "as well", and before Ms Hall, but had not been able to.
After that time Ms Hall had complained that her back was a bit sore, and it had just gradually got worse, Ms Frear said.
Ms Julie Hall said that she had two children, each of whom suffered from cystic fibrosis, and until about October 1994 Ms Hall, who was her sister, had daily assisted her with the care of those children, in particular by administering physiotherapy to one child whilst she dealt with the other.
One day Ms Hall had not appeared, and Ms Julie Hall said she had then gone to see her, and she had been unwell and had complained of back pain. Thereafter Ms Julie Hall said she had called in to see Ms Hall every day to see if she needed help with anything, as she was always in pain and was less active than she had been.
A family Christmas had been planned for Ms Hall's house in 1994, Ms Julie Hall said, but that had in the event been held at the house of another sister, and although Ms Hall had appeared she was not well and had not stayed long.
Ms Julie Hall said she was certain those events had occurred in 1994, as she had also worked for Alan's Property Services in August 1994, for a few weeks, prior to obtaining her present employment.
The defendants called a number of Ms Hall's former fellow workers.
Ms Lynette Taylor worked with Ms Hall, between about August 1994 and January 1995, and said she had worked very efficiently during that time.
Ms Penelope Miller had from about August 1994 been the operations manager at Alan's Property Services for a time, and had engaged Ms Hall, she said. Ms Miller said that she did not recall that there had been anything unusual about the performance by Ms Hall of her duties prior to advice from her in January 1995 that she had injured her back.
Ms Yvonne McRobb is the managing director of Brymac, having initially worked for Mladin, and until Ms Hall went on to compensation in February 1995 said she had not observed that Ms Hall experienced any difficulty in the performance of her duties.
Dr Simmons was the Ms Hall's general practitioner, and said that he saw her on 27 October 1994 and 15 November 1994, in relation to other matters, but did not have any reference in his notes as to any complaint of back pain on those occasions.
The doctor first saw Ms Hall in relation to low back pain on 27 January 1995, he said, when the history that he obtained did not indicate that there had been any defining incident.
Mr Stuart Reidy‑Crofts is a rehabilitation counsellor who saw Ms Hall in May 1995, and recorded 16 January 1995 as the date of the injury.
Dr Andrew Marsden is an occupational physician who first saw Ms Hall in June 1995, when his records indicate that he elicited a history which included back pain worse on 16 January 1995.
He said that the history given by Ms Hall in evidence was compatible with an injury which occurred in October 1994 and gradually worsened through work activity.
The development of the back pain on 16 January 1995 was consistent with the work Ms Hall said she was then doing, however, Dr Marsden said, irrespective of an incident in October 1994.
Dr John Salmon, a specialist in pain management, saw Ms Hall for Dr Simmons in June 1995, and, under the heading of "History of Current Pain", duly reported that she had on 16 January 1995, whilst at work, noted the onset of low back pain, that being something, he said in evidence, he had already been told by the referring doctor, whilst he noted elsewhere in his report that there was no relevant prior medical history.
Ms Hall was later seen by Ms Jennifer Connolly, a clinical psychologist, following she said a referral from Dr Salmon which had stated that she had been injured in January 1995.
Ms Hall had, when seen by her, spoken of intense pain at that time which had required her to stop working, Ms Connolly said.
Dr Steven Clarke, an occupational physician, saw Ms Hall on one occasion, in May 1997, after referral in relation to an accident of 19 October 1994, and said he took a history in which Ms Hall placed the Steelmart vinyl roll accident as having occurred on 19 November 1994.
Mr Richard Vaughan, a senior neurosurgeon, saw Ms Hall at Dr Simmons' request in August 1997, and in a number of subsequent reports expressed the view that her pain was due to a tear or split across the L5/S1 segments of the lumbar spine.
Although the cause of that was the subject of discussion in subsequent reports and letters from solicitors, in November 1999 Mr Vaughan finally expressed the following view:
"I would believe it fair to assess the October 1994 or thereabouts incident as being that which was significant. I think it also reasonable that the incident if it occurred while lifting a heavy roll of lino was more likely to cause symptoms than the gradual onset caused by normal working duties which may also be the same as the normal wear/tear processes of life."
In evidence Mr Vaughan confirmed that view, although pointing out that he could not say when the annular tear had occurred, nor indeed that such was in reality the cause, and that the accident of October 1994 may have been "the starting of her problem that was exacerbated sometime later".
Mr Williams, an orthopaedic surgeon, saw Ms Hall in November 1998, and was he said given a history of sharp pain in the lower lumbar area, which occurred whilst she was assisting in the lifting of a large roll of lino, the pain involving radiation to the outer thigh of the left leg and just below the knee.
The doctor's recorded diagnosis was then one of a soft tissue thoraco lumbar back strain with exacerbation of symptoms from underlying lower lumbar degenerative change.
Ms Hall's subsequent work activity was something which had kept the symptoms evident and had tended to see the symptoms increase, Mr Williams said.

Dispute as to first defendant's injury and incapacity

The pertinent allegations made by Brymac originally appeared in the amended statement of claim, and were as follows:
"2.The first defendant was previously employed by the second defendant trading as Alan's Property Services on or about 18 October 1994 ('the date of injury') when she sustained a back injury and depression ('the injury') as a result of lifting a heavy vinyl roll.
…
4.As a result of the injury the first defendant became incapacitated for work in January 1995 ('the disability')."

The defendants responded to those allegations in the following terms, in the amended defence:
"2.The first and second defendants do not admit that the first defendant suffered depression as a result of lifting a heavy roll of vinyl on or about 18 October 1994 but otherwise admit paragraph 2 of the amended statement of claim.
…
4.The first and second defendants admit that the first defendant became incapacitated for work in January 1995 but otherwise do not admit paragraph 4 of the amended statement of claim.
5.The first defendant suffered an injury to her lower back on or about 16 January 1995 in the course of her employment by the plaintiff ('1995 injury').
6.The 1995 injury was a disability within the meaning of that term in section 5 of the Workers' Compensation and Rehabilitation Act 1981 ('Act').
7.The first defendant's incapacity in and following January 1995 resulted from the 1995 injury."
Thus the defendants admitted Ms Hall sustained a back injury on or about October 1994, and admitted she became incapacitated for work in January 1995, but said that incapacity resulted from an injury to the lower back sustained on or about 16 January 1995.
Counsel for the defendants said there were two aspects to the defence.
First, that the two injuries were unrelated, in circumstances where no particular pathology could be ascribed to either and where there was a substantial body of evidence that Ms Hall's pain between October 1994 and January 1995 was minimal.
The second aspect was said to be that Ms Hall's evidence suggested that there had been an event on 16 January 1995 which was not simply a progression of any pain then suffered by Ms Hall but rather there had been pain of a different kind experienced by her on that day, which was indicative of there having been a different pathology for that pain.
Although the Act states (s 18) that, subject to it, if a disability occurs an employer shall be liable to pay compensation, that is to be in accordance with Schedule 1, which relevantly provides that weekly payments will be made "during…incapacity."
The Act s 19 further provides for liability "to pay compensation…from the date of incapacity resulting from the disability."
Brymac's plea did not therefore accord with the Act, and on its face was an allegation of a disability in October 1994, which caused incapacity in January 1995.
The defendant's plea amounted to an admission of that disability, but with an allegation of a second disability in January 1995, that being alleged to be the cause of the incapacity at that time.
However, at various times during the course of his submissions counsel for Brymac made reference to there having been a "recurrence" of the original disability, and was eventually, and at the conclusion of the trial, invited by counsel for the defendants to further amend the statement of claim to plead that Ms Hall had suffered a further disability in January 1995 whilst in Brymac's employ, that giving rise to the latter's obligation to pay compensation.
Brymac, in apparent response to that invitation, then filed a reply dated 9 March 2001 which relevantly alleged:
"1.As to paragraphs 5, 6 and 7 of the Amended Defence the Plaintiff:
1.1admits that on 16 January 1995 the First Defendant suffered a disability and that her incapacity in and following January 1995 resulted from that disability;
1.2says that the First Defendant's action for damages was in respect of that disability;
1.3says that the disability was a recurrence, aggravation or acceleration of the injury she suffered on or about 18 October 1994 and that her employment with the Plaintiff was a contributing factor to that recurrence, aggravation or acceleration and contributed to a significant degree."
The effect of that is to leave the pleadings in a rather untidy state. Nonetheless, as counsel did not consider there was any other difficulty in relation to the identification of the issues the matter can proceed in its present form.

Whether judgment entitles Brymac to return of compensation as of right under the Act s 92(c)

In his closing submissions counsel for Brymac had submitted that when the Act s 92 speaks of a disability "in respect of (which) an action is brought", the reference is necessarily to the disability in respect of which compensation had been paid. That was not necessarily the disability the subject of the cause of action, but extended to any and every subsequent disability productive of incapacity, where that incapacity was, as a matter of causation, attributable to the cause of action the subject of the common law proceedings.
A number of things can be said in relation to that submission.
First, no authority was cited in respect of it, by either party.
Second, the following passage in the judgment of Owen J (with whom Malcolm CJ and Wallwork J agreed) in Geraldton Building Co v Cramer [2001] WASCA 244 (at par 20) is relevant, but cautionary:
"As I have already said, the legislative intent behind s 92 is to defeat a double recovery by a worker from an employer arising from the same injury. In other words, a worker who is injured in a work related accident may recover workers compensation or common law damages but not both: EMS Holdings Pty Ltd v International Shipyards Pty Ltd, unreported; FCt SCt of WA; Library No 980655; 12 November 1998 per Kennedy J at 8 - 9. It will be apparent from what I have said that I am not at all sure that the section achieves this objective. The plain ordinary meaning of the words that the legislature has employed cannot be ignored. There are situations that fall outside the words used."
Third, apart from being consistent with the objective referred to by Owen J, the construction contended for is also consistent with the use of the term "employer" in the section.
Fourth, the words "in respect of" are of very wide import.
Finally, there would seem no other reason to confine the term "disability" to the cause of action alleged in the common law proceedings.
I would therefore find that a "disability", for the purposes of the Act s 92, is one giving rise to incapacity in respect of which an employer has paid compensation to a worker, where an action is subsequently brought by that worker and damages are sought in respect of the same incapacity.
If the Act s 92(c) is applicable there is a statutory charge on the judgment for the workers' compensation benefits previously paid and payment to the worker of the whole of the judgment sum is a breach of that charge, giving rise to a right in the employer to claim against the defendant for the loss caused by the breach: Geraldton Building Co per Owen J par 35.
As the words of the Act s 92(c) make clear, the defendants' obligation is to repay the whole of the compensation.
For Brymac to establish the requisite breach of the charge, it would be first necessary for Brymac to prove that Ms Hall suffered a disability on 16 January 1995, that such resulted in incapacity, and that the compensation now claimed was paid in respect thereof.
Then, Brymac must establish that the action brought by Ms Hall against Mladin was brought "in respect of" that disability of 16 January 1995 ie that Ms Hall's claim for damages included a claim that the incapacity was attributable to the cause of action alleged against Mladin. Judgment on that claim must then be shown.
On proof of those matters it seems to me that Brymac would be entitled to repayment by Mladin of the compensation paid to Ms Hall.
There could be no unfairness to Ms Hall arising from that result.
After all her claim sought damages in respect of the relevant period of incapacity and pursuant to the Act s 92(a) if the action had proceeded she would have had a right of election whether or not to proceed to judgment.
Similarly, there could be no unfairness to Mladin, as it had the ability to decide whether or not to consent to judgment in a particular amount.

Jurisdiction of District Court to resolve dispute

As stated, the relief sought in Hi‑Tech Demolition Co Pty Ltd was pursuant to the Act s 73(5) rather than s 92(c), and the case is distinguishable on that basis.
In ODG Properties (WA) Pty Ltd v Middler Nominees Pty Ltd [1990] WAR 235 the Court held that a claim for an indemnity in respect of compensation paid under the Act s 93 could be brought in a court of competent jurisdiction, and that was also the view of Malcolm CJ in Manners v Transfield Pty Ltd (1992) 8 WAR 111, 123.
Further, the term "dispute" is defined in the Act s 84A in terms that are not apt to cover the present claim.
In my view therefore this Court has jurisdiction to entertain the claim of Brymac.

Whether deduction ought be made for contributory negligence

In his closing address counsel for the defendants expressly conceded that the judgment obtained by Ms Hall against Mladin was simply for $100,000 and costs of $12,000, and that a recital that the parties had "agreed that damages be assessed at $200,000 and (b) reduced by 50% on account of the contributory negligence of the plaintiff …" did not form part thereof.
It was also conceded that the whole of the workers' compensation paid by Brymac would therefore be repayable by Mladin if the Act s 92(c) otherwise required it, subject to, it was said, any finding in these proceedings that Ms Hall had been guilty of contributory negligence.
The short answer to the last point is that no such issue was raised on the pleadings.
In any event, there is no evidence before me that Ms Hall was negligent at the time of her back injury in October 1994.
No deduction for contributory negligence ought therefore be made.

Effect of evidence

It follows from the above that it is not strictly necessary for me to make any further findings on the evidence led before me in relation to any issues as to causation raised by the amended statement of claim and amended defence.
In addition, the effect of the plea in the reply filed after the conclusion of the trial that there was a further disability suffered by Ms Hall on 16 January 1995 would appear to be that the only outstanding issue in that regard is whether Ms Hall's incapacity from February 1995 was caused by that further disability, to the exclusion of the October 1994 disability.
Nonetheless, the issue having been canvassed and evidence, including expert medical evidence, having been led, and given that some other view of the effect of the Act s 92(c) might be expressed if the matter is further agitated, I consider that I ought do so.
Plainly, the key to any determination is the evidence of Ms Hall.
I considered Ms Hall was an honest witness.
Although her failure to make complaint to her employer or her doctor of her back injury prior to January 1995 is, when judged against usual behaviour, somewhat puzzling, as is the fact that for a considerable time after January 1995 she did not make any reference to the October 1994 accident, at the end of the day I think those things are explicable on the basis that she was plainly a simple person, who persevered with her work despite the pain that she was in until she was no longer able to do so, in circumstances where she lacked an appreciation of the need to make any or a full report, as she described in her evidence.
Further, the accident of October 1994 is corroborated by Ms Frear, and its effect in particular by Ms Julie Hall, and I accept as reliable the evidence of each of those witnesses.
It follows that Ms Hall sustained a back injury in October 1994, the symptoms of which never went away, but indeed worsened, as she described, until in February 1995 she had to stop.
There is really nothing which would cause me to find the disability of 16 January 1995 was a separate or fresh injury, and clearly it was, as Dr Marsden and Mr Williams said, simply a case where subsequent work activity had brought about an increase in symptoms.
The disability of October 1994 was, I would find, significant, as Mr Vaughan said, and it was in the light of the above undoubtedly a cause of the incapacity of Ms Hall from February 1995.
For the above reasons I am of the view that Mladin was under a statutory obligation, following the entry of judgment against it by Ms Hall on 7 October 1999, to pay to Brymac out of the proceeds of the judgment the compensation paid by the latter to Ms Hall, pursuant to the Act s 92(c).
That Mladin failed to do, in breach of the statutory obligation, and Brymac is therefore entitled to recover that sum as damages for breach of the statutory charge.
The claim against Ms Hall, however, ought fail, there being nothing in the Act s 92(c) which would permit it, and Brymac not putting forward any other basis for recovery.