Carr v the Glenorchy Municipality
[1988] TASSC 55
•16 November 1988
Serial No 54/1988
List “A”
COURT: SUPREME COURT OF TASMANIA
CITATION: Carr v the Glenorchy Municipality [1988] TASSC 55; A54/1988
PARTIES: Carr
v
The Glenorchy Municipality
FILE NO/S: 54/1988
DELIVERED ON: 16 November 1988
JUDGMENT OF: Cox J
Judgment Number: A54/1988
Number of paragraphs: 36
Serial No 54/1988
List "A"
File No WC 561/1986
CARR v THE GLENORCHY MUNICIPALITY
REASONS FOR JUDGMENT COX J
16 November 1988
This is a claim for the continuation of weekly payments of workers' compensation. The plaintiff claims that on the 25 June 1984, while employed by the defendant as a labourer, he suffered injury by accident in circumstances (namely on his way to work) deemed to arise out of and in the course of his employment. He has not returned to work since that date and until 12 December 1986 was paid weekly payments of compensation by the defendant at the rate appropriate for total incapacity for work. On that latter date the defendant terminated payments of compensation and has refused to make any further payments.
There has been debate at the Bar table concerning the onus of proof in a situation such as the present. The plaintiff's counsel submits that the onus lies on the defendant to justify its termination of the payments, while counsel for the defendant, relying in particular on the decision of Cosgrove J in Holmyard v The Marine Board of Hobart, unreported, Serial No 101987, contends that it rests on the plaintiff to satisfy the court firstly that an award should be made and secondly as to the quantum of the award.
I think the true position lies somewhere between the two contentions. It is a truism that he who asserts must prove. The first question to be determined is what are the facts upon which the plaintiff's claim rests and what, if any, are the facts upon which the defendant relies to avoid the liability proof of the plaintiff's facts would otherwise impose upon him.
The Workers' Compensation Act 1927 ("the Act"), s5(1), provides:
"5–(1) If in any employment a worker suffers personal injury by accident, or is disabled or dies as the result of a disease, arising out of and in the course of the employment, his employer shall, subject to this Act, be liable to pay compensation in accordance with the provisions of Schedule I:
Provided that no such compensation shall be payable in respect of any disease arising before the commencement of this subsection out of and in the course of any employment in which the worker was employed."
Rule 3(1) of Schedule I provides:
"3–(1) Subject to this rule, where total or partial incapacity for work results from an injury sustained by the worker, the compensation payable under this Act is, in addition to any lump sum that may be payable under rule 5 or rule 6 in respect of that injury, a weekly payment at the relevant compensation rate reduced, in the case of a period of partial incapacity, by the weekly amounts that the worker is earning or able to earn in some suitable employment or business during that period."
The facts necessary to prove the plaintiff's case are that he suffered an injury by accident arising out of and in the course of his employment and that it resulted in an incapacity, total or partial, for work with a consequent economic loss of wages (Thompson v Armstrong and Royse Pty Ltd (1950) 81 CLR 585 per Latham CJ at 598). Once the first fact is established liability to pay compensation is created in the defendant. Once the second fact is established the amount of that liability is determined by the application of r3.
Section 21(1) provides:
"21–(1) An employer may terminate or diminish a weekly payment where the circumstances are such as to justify termination or diminution, as the case may be, in the following cases only:–
(a) Where a Worker in receipt of a weekly payment in respect of total incapacity has returned to work;
(b) Where a worker in receipt of a weekly payment in respect of partial incapacity is receiving weekly earnings in excess of the amount upon which the amount of such weekly payment was determined;
(c) Subject to the provisions of this section, where a medical practitioner, after examining the worker, has certified as prescribed, that the incapacity of such worker is no longer due, or is no longer wholly due, to the accident in respect of which the weekly payment is being made;
(d) In pursuance of an order of a judge as hereinafter provided; or
(e) Where the worker ceases to be entitled to such payment under the provisions of this Act."
This subsection, it has been said, lays down comprehensively the only circumstances in which an employer is lawfully entitled to terminate or diminish weekly payments once they are properly commenced under the Act (per Neasey J in Barber v Associated Pulp and Paper Mills Ltd [1981] Tas R NC 21, unreported, Serial No 621981 at 16, and see also Upston v TEMCO Pty Ltd, a decision of my own, unreported, 1041982). Neasey J in Barber's case went on to say:
"There was no such provision in the Tasmanian Act of 1918 (9 Geo. V, No. 40), which was the predecessor of the 1927 Act. The first such provision in an Imperial Act seems to have been s.14 of the 1923 statute. The institution of such provisions followed a period during which palpable injustice to workers was possible under workers' compensation law by reason of the powers of employers arbitrarily to cease or diminish payments of workers' compensation – see Halsbury's Law of England, 2nd ed., Vol. 34, p.941, pare. 1288, note (t) ."
In Gamble v Brown's Constructional Enterprises Pty Ltd [1962] Tas SR NC 368 and Tasmanian unreported Serial No 281962 Burbury CJ said:
"No doubt this Section was intended to protect a worker receiving compensation by preventing an employer arbitrarily and at his own unfettered will terminating weekly payments (see Ocean Coal Co. v. Davies [1927] A.C. 271 per Lord Atkinson at P. 284) . There is however no specific sanction prescribed for termination of payments in contravention of the Section (Cf. Sec. 30(5) of the New Zealand Workers Compensation Act 1956 providing for a penalty in the form of double compensation). Presumably however, a prosecution would lie under Sec. 2 of the Contravention of Statutes Act 1889."
Of this, Cosgrove J in Holmyard v Marine Board of Hobart (supra), at 4, commented:
"I am sure that his Honour would have agreed that the efficacy of any such prosecution would be to say the least doubtful and would provide no satisfactory remedy for the worker."
In these circumstances it seems to me that Parliament was intending to give to the work r already in receipt of compensation payments properly commenced and paid under the Act the protection of having the onus of justifying any termination of or diminution in these payments placed on the employer who asserted that he should no longer receive them. In the event that the employer made application to a judge for review, the onus of proof would clearly lie upon him (Baker v. Jewell [1910] 2 KB 673; Vacuum Oil Co v Pyke, Crisp J 381960; North West Construction v Johnston [1962] Tas SR NC 372, Burbury CJ 10662; The Commonwealth v Muratore (1978) 141 CLR 296 at 302). However, in the event of unilateral termination by the employer thereby forcing the worker to take proceedings to enforce his right to compensation, although the onus would remain on him to establish his basic entitlement to compensation under the Act by demonstrating that injury through accident in accordance with s5 had resulted in incapacity productive of economic loss, once he had done this by admission or evidence it would be for the employer to prove as justification for termination which of the circumstances set out in s21(1) is relied upon.
This was the view taken by Burbury CJ in both Gamble v Brown Constructional Enterprises Pty Ltd (supra) and the earlier case of Mansfield v Huon Valley Co–operative Society Ltd, unreported, 11 August 1959. In the latter case the plaintiff had fallen from a ladder while working in the defendant's factory. It was not disputed that by his fall the plaintiff suffered personal injury by accident arising out of and in the course of his employment. The defendant made weekly payments for a time upon the basis that he was totally incapacitated for work, but thereafter claimed that the plaintiff was no longer incapacitated as a result of his injury and discontinued payments of compensation. The learned Chief Justice said:
"Where an employer who has initially admitted liability and paid compensation upon the basis that the worker is incapacitated seeks a review of the payments upon the ground that the worker is no longer incapacitated as a result of the accident, the burden of proof is upon the employer to show a change of circumstances (Baker v. Jewell [1910] 2 K.B., 673; Halsbury's Laws of England, 2nd Edn., Vol. 34, pare. 1300, note (e); Elliott's Workmen's Compensation Acts, 9th Edn. p.284). The Defendant cannot take advantage of his action in terminating payments without seeking a review of the payments in accordance with the provisions of the Act to shift the burden of proof to the Plaintiff in this action to establish that he is still incapacitated as a result of the accident."
The same approach was taken in Barbaro v Leighton Contractors Pty Ltd, a decision of the Full Court of the Federal Court of Australia, reported in (1980) 30 ALR 123 and Bartlett (A .) Pty Ltd v Drenkovski, a decision of Kelly J in the Supreme Court of the ACT (1982) 40 ACTR 7. In both cases payment had been made to an employee on the basis of total incapacity and terminated unilaterally. Both courts held that, it having been established that the initial payments were payable under the relevant Ordinance, the employer was in breach of paragraph 12 of the first Schedule thereto, which provided in effect that once weekly payments "payable under" the Ordinance have been made such payments may not be ended or varied otherwise than by agreement or arbitration (Barbaro's case per Smithers J at 125) and, accordingly, the employer bore the onus of proving the relevant change of circumstances, namely that total incapacity had ceased. In neither case had there been any earlier formal award.
In Gamble's case (supra) Burbury CJ first made a finding that the plaintiff's injury, which required the surgical removal of a kidney and some convalescence, had been caused by the accident pleaded as arising out of and in the course of his employment. In doing that his Honour held it proper to treat the payment of compensation as prima facie evidence that the plaintiff's renal haematuria was caused by that accident and said that this circumstance added weight to the conclusion which (apart from it) he had reached. That view of the evidentiary significance of a payment of workers' compensation is thus obiter dictum and with respect I share the reservation expressed by Cosgrove J concerning it in Holmyard v Marine Board of Hobart (supra) at 4. But, be that as it may, Burbury CJ clearly accepted that the plaintiff had an obligation to prove an injury within the meaning of s5 and a consequential incapacity and economic loss (demonstrated in that case at least by his hospitalisation and convalescence). Thereafter it was for the defendant employer to prove the circumstances which justified the termination or diminution of the payments.
In J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625, the High Court held by majority that in a claim for compensation in a case of partial incapacity the onus of proving the difference between the rate payable for total incapacity and the amount the worker is earning or is able to earn in some suitable employment lies on the worker seeking the award. This was a case involving the interpretation of the Workers' Compensation Act 1926 of New South Wales and there is no suggestion in the report that the worker had ever received a payment of compensation prior to the award made by the Workers' Compensation Commission which found that he had been totally incapacitated for a time and had recovered to a state of partial incapacity.
The employer on appeal did not challenge the finding of initial total incapacity, but successfully argued that as the worker had been proved to be partially incapacitated the onus lay upon him to prove the appropriate amount to be awarded. Reliance was placed by the majority in that case (Menzies, Owen and Gibbs JJ on the earlier decision of Phillips v The Commonwealth (1964) 110 CLR 347.
There, an employee of the Commonwealth had received payments of compensation under the CommonwealthEmployees' Compensation Act 1930 on the basis of total incapacity. Later the delegate of the Commissioner for Employees' Compensation determined that payment should end because the worker was no longer incapacitated. Upon appeal to the County Court the worker contended that she was still totally incapacitated or, alternatively, partially incapacitated and entitled to a reduced benefit. The Court in a joint judgment (Kitto, Taylor and Owen JJ) held that before the County Court the onus lay on the Commonwealth to show that its liability to pay compensation to the employee, as a person totally incapacitated, should be brought to an end, but that the onus lay on the employee to show that she should be awarded compensation as a person partially incapacitated and with a diminished earning capacity. At 350 – 351 their Honours said:
"In the present case what had been initially established was that the appellant was totally incapacitated as, indeed, was the basis of her original claim for compensation, and immediately before the final determination of the delegate she held, in effect, an award establishing her entitlement to compensation in accordance with par. 1(b) of the First Schedule to the Act. That award, however, could survive only so long as she remained totally incapacitated. Apparently the delegate of the Commissioner was satisfied that she did not so remain after the 16th November 1961 and upon the rehearing of the appeal to the County Court it was found as a fact that she was not totally incapacitated after that date. This finding is not challenged in this Court and indeed it could not be challenged, for it was founded upon a certificate of a medical board which under s.19(4) makes conclusive evidence of the matters certified. Accordingly, it is clear that the applicant has no further right to compensation under par.1(b)."
They then treated the claim for a payment in respect of partial incapacity as a fresh claim in respect of which she bore the onus of proof.
I appreciate that in Phillips v 'The Commonwealth (supra) the initial determination of the delegate of the Commissioner was treated as equivalent to an award, while in The Commonwealth v Muratore (supra), prior to the delegate's final determination from which Muratore successfully appealed to the Workers' Compensation Commission and which the Commonwealth sought to uphold in the High Court, there had been an award on the basis of partial incapacity made in the District Court. Jacobs J said at 302 that where the Commonwealth allege that the circumstances of the employee had changed it would bear the onus of proving those circumstances, but that:
"The position is quite different if there has been no previous finding of partial incapacity with a consequent assessment of the compensation payable. It is established that the employee then bears the onus of proving the partial incapacity for work and its reflection in the degree of his loss of ability to earn: J. & H. Timbers Pty. Ltd. v. Nelson (1972) 126 C.L.R. 625."
Nevertheless, with respect, the court in each case was dealing with Commonwealth legislation significantly different to the Tasmanian Act, while in J. & H. Timbers Pty. Ltd. v. Nelson, as I have said, the legislation was the New South Wales Act which likewise had no equivalent to s.21 and, in any event, the worker it appears had not received any payments.
The ACT Ordinance on the other hand has some similarities to the Tasmanian Act inasmuch as it provides in paragraph 12 of the First Schedule that weekly payments "payable under" the Ordinance may not be ended or varied otherwise than by agreement or arbitration, and it was this feature which led the court in Barbaro v Leighton Contractors Pty Ltd. (supra) to the conclusion, notwithstanding the absence of any prior award, that once it is established that the payments in fact ended or varied were payable under the Ordinance the onus lay on the employer to prove a change of circumstances. In that case, applying Phillips v The Commonwealth (supra), the majority in the Federal Court held that the relevant change of circumstances to be proved by the employer was a cessation of total incapacity requiring, if that were established, that the worker should then prove the degree of partial incapacity and the appropriate award. That, with respect, may well be the proper division of the onus of proof in a situation arising under the Ordinance (although Connor J dissented and held that the onus in respect of the last issue also rested on the employer). However, the relevant change of circumstances, once it is established that payments have been properly commenced and paid under the Act, is in my opinion not merely that total incapacity has ceased, but that there is no incapacity justifying the payment of any compensation. Thus, where the employer shows partial incapacity, the onus lies on him to define its parameters.
I base this view on the fact that s21(1) permits termination or diminution of a weekly payment "where the circumstances are such as to justify termination or diminution, as the case may be," and then in the cases set out in the subsection "only". There is a requirement therefore to inquire into the circumstances with a view to determining whether they justify termination or diminution. If there remains a degree of partial incapacity termination will not be appropriate, but diminution will be. As it is for the employer to show the appropriate circumstances, unless he can show there is an absence of incapacity in which event there would be justification for a termination of the payments, he must show circumstances which Justify diminution to the appropriate amount.
It is admitted on the pleadings that at all material times the plaintiff was a worker within the meaning of the Act and was employed by the defendant as a labourer. I find that the nature of his work was heavy manual labour involving heavy lifting and drilling, working with explosives and general labouring including jack hammer work. I find that on the 25 June 1984 the plaintiff was travelling from his place of residence to his place of employment with the defendant along Slip Road, Claremont, and was there involved in a motor vehicle accident as a result of which he suffered injury. His vehicle collided with another vehicle and I find that his speed on impact was approximately 30 miles per hour. The impact was of such force that the seat belt he was wearing broke away from the floor of his vehicle, the framework of the seat he was occupying was broken and a male passenger seated behind him was thrown forward, his knees striking and going forward with the back of the plaintiff's seat. The plaintiff's body was thrust forward onto the steering column. His daughter who was also a passenger was injured and bleeding and an ambulance took her to the Royal Hobart Hospital. The plaintiff said he felt a "tingle" in the right arm and neck and back pain from the collar bone down to the lower part of the back. He returned home, showered and changed his clothing and then went to the hospital. I extract the following entries from the hospital records:
"MVA sore hand and arm, knee. This morning while driving to work involved in MVA. Car drove across in front of him unable to avoid him and crashed into this car. Daughter and boyfriend in back seat. Driver wearing seat belt. Unsure about the people in the back. Did not hit head. No LOC. Right arm caught in steering wheel which was wrenched around. Pulled on it. Painful neck now and numbness of entire right arm. Any movement will induce severe pain and extending from back of hand to elbow to shoulder. Also injured right knee. Pain in back of it. OE . . . . . . Left arm neurologically NAD. Right arm power down due to pain. Tenderness over ulna nerve at elbow and over thumbs. Unable to move any joint of that arm without eliciting pain which goes from hand to elbow to shoulder. Sensation numbness to pin prick over entire right arm. No actual deformity. Tone unable to test. Reflexes brisk. Right equals left. Chest equals clear. . . . . Abdomen some tenderness right side . . . . . Lower limbs no deformity of knees power. Unable to lift right leg due to pain in back of knee and right side of lumbar spine. Otherwise NAD. . . . . . Right knee no tenderness. No joint line tenderness . . . . Impression. Man involved in MVA. Probable brachial plexus injury with complete numbness C4 down. For x–ray neck, right shoulder elbow and hand, right knee, lumbar spine."
He was not admitted and returned home, but has not since resumed work.
Over the next few days the plaintiff claims his pain increased. He described it as a very severe pain in the neck with pins and needles in the right arm, fingers and legs and he said he suffered a severe headache. On the 28 June 1984 he consulted his family doctor, Dr Foley, complaining of pain in his low back, right shoulder, right knee and neck. Dr Foley found no hard signs of injury, apart from diminished mobility in both lumbo sacral and cervical spine. X–rays arranged by Dr Foley revealed the existence of spondylolisthesis at the level of L5 and S1 , that is a mal–alignment of two vertebrae in the lower lumbar spine. There was no sign of a fracture. Dr Foley prescribed analgesics and a muscle relaxant. Thereafter the plaintiff returned to Dr Foley on the 29 June, the 3, 13 and 19 July and the 2 August when he was referred to orthopaedic surgeon, Mr F G Binns, because Dr Foley was concerned at the development at this time of paraesthesia in the right arm and thought he might have nerve root compression symptoms arising from his neck. Throughout this time Dr Foley gave the plaintiff certificates that he was unfit to return to work.
Prior to the accident the plaintiff had been Dr Foley's patient for about five years and had consulted him once in 1979 and three times in 1980. He had never previously complained to the doctor of back problems. The plaintiff continued to see Dr Foley at fairly frequent intervals right up to the time of trial. The vast majority of these visits related to his back condition. Until he was accepted as an invalid pensioner, Dr Foley continued to give him certificates of incapacity for work. He expressed the opinion ' that the plaintiff is very significantly impaired as the result of his accident and that this impairment precludes any useful work. Dr Foley said he did not believe the plaintiff would ever work again. He also said that he had seen the plaintiff on at least 20 or 30 occasions when the plaintiff was walking his grandson to school and in circumstances where he would not have been aware of Dr Foley's presence and that at all times his demeanour and behaviour has been exactly consistent with the doctor's impression of his clinical condition.
Mr Binns first saw the plaintiff on the 9 August 1984. He found him stiff with pain at the extremes of movement and general tenderness over his neck. He found pain in the right arm and pain and stiffness in his back. Mr Binns noted the presence of spondylolisthesis which he considered to be "years old" and said it was a condition most commonly caused by an un–united stress fracture of the pars interarticularis. He was of the opinion that the plaintiff had had a whiplash type of injury to his spine. It was consistent with the accident the plaintiff had described and "his symptoms and physical findings always were the same". After conservative treatment consisting of physiotherapy and the wearing of a collar and brace over many months Mr Binns "suggested to him that if his symptoms were bad enough then perhaps an operation to one or both regions of his spine would be a good idea and if he thought his pain was bad enough then we should admit him to hospital and do some discograms in both regions of his spine". The plaintiff authorised these procedures and in consequence Mr Binns performed a lumbar spinal fusion in June 1985. He was discharged wearing a plaster cast for several months and in July 1986 Mr Binns performed a second fusion, this time in the cervical spine. Mr Binns gave evidence "that the spinal fusion both in the lumbar and the cervical spine made his pain better and more tolerable. He still has some pain in each region of the spine and, although he has not been cured, he has expressed the opinion to me that he is happy with the results of the operation and that life is better, even though he is not cured." The examination then continued as follows:
"Q. And after both of these operations did he still have some symptoms so far as you were aware?
A. Yes.
Q. What were they?
A. Well he still has pain and some stiffness and he finds it hard to do things.
Q. Yes and is that quite consistent with the original accident that you had described to you?
A. I think that is true, yes.
Q. Now is there anything else in terms of surgical intervention or the like that would assist the plaintiff in this action?
A. I can think of no further operations that need to be done, no.
Q. Now have you formed any opinion as to his employability given the symptoms that he originally described and the surgical procedures that you've performed?
A. I think he wouldn't be fit enough to go back to heavy manual work."
On the plaintiff's case, the logical inference is that the motor vehicle accident caused an injury to his lumbar and cervical spine which was of sufficient gravity to warrant two spinal fusions and which has left him totally incapacitated for work. However, the issue is complicated by the adverse impression I had of the plaintiff's credibility and by the opinion of neurosurgeon Mr G P Duffy that, assuming the plaintiff's symptoms were genuine, at least to some extent, there was no reason why they should be attributed to the accident.
Mr Duffy saw the plaintiff at the defendant's request on one occasion only in November 1986. Asked what he found on examination, Mr Duffy said:
"He walked very slowly and painfully with a marked limp. He was using a walking stick. He wore a lumbar support. He dressed and undressed extremely slowly. He got on and off the examination couch with considerable apparent difficulty. He made expressions of pain with most movements. On examination of spinal movement it appeared to be impossible to move his lumbar spine for more than a few degrees of flexion. His neck movements were grossly limited in all directions. Apparent tone of the limbs appeared normal. The reflexes were symmetrical. Sensation appeared normal throughout. Straight leg raising did not appear to be possible more than a few degrees above the horizontal.. . . . . He complained of significant symptoms. He said that walking was extremely difficult for him because of the pain he was still suffering in his back. He complained of persistent pins and needles in his left leg. He complained of aching pain in both legs, less at night time. He said that when he walked he felt 'off tilt'. He said that he needed to constantly wear a lumbar brace and that he needed to use a walking stick to help himself get around. He complained of pain in the neck radiating towards his collar bone. He had a feeling of deadness in his fingers and hands which tended to come and go. He suffered from constant headaches at the back of the head radiating to the forehead. He said he was unable to do his own shoes up. He had not been able to drive a car for four to five months because of ongoing pain. He was quite incapable of lifting or bending. He was unable to work in the garden, but he gave as an example of the disability that it would take him almost an hour to walk up Macquarie Street to my rooms on the day of consultation."
Mr Duffy formed the view that the plaintiff was exaggerating his symptoms and this view was strengthened by a video film subsequently seen by him and which had been taken about two months earlier. This film was shown to the court and depicts the plaintiff engaged in gardening activities of some vigour as well as driving a car and standing around without any sign of discomfort or strain. Mr Duffy said of the film:
"A. I observed him undertaking activities quite incompatible with the disabilities he claimed when he saw me on the 13 November 1986. I saw him undertaking activities quite incompatible with my
physical findings, if indeed those findings had been genuine. . . . . . . .
Q. Did you consider that he had any significant disability at all?
A. In these circumstances it is very difficult for me to make an assessment as to whether indeed there is a true disability or not."
On the other hand, the film was shown to both Dr Foley and Mr Binns during their respective cross–examinations and both felt there was nothing appearing in it which was inconsistent with the symptoms and demeanour displayed by the plaintiff to them in the course of their dealings with him, save in respect of Mr Binns who acknowledged that the plaintiff's constant complaint to him of a marked restriction of ability to straight leg raise was inconsistent with the plaintiff's ability to bend at the hips as demonstrated on the film.
Mr Duffy also placed reliance upon the existence, as revealed in hospital out–patient records, of some history of back troubles. One entry shows that Dr Watson had sent a referral letter dated the 19 August 1966 to the hospital containing the following statements:
"Seen by you on 15th of August after one week at Lady Clark for treatment. You gave him discharge. After one week's work he is much worse, tender over most of the spine, cervical to sacral. Straight leg raising, back pain 15° each side. Sciatica 45°. Reflexes 3but hypo–aesthesia, bilateral thighs, pain in back on any action with movement of the legs. Complains of pain at the back of the neck. Bilateral dorsal root pain worse on coughing. He is certainly worse. Also following the injury developed left pneumonia."
Mr Law, on the 21 August 1966, made an entry:
"TCI
1. Investigate chest.
2. Bed rest for back. Obscure back ache plus ? unresolved pneumonia."
In June 1968 there is an entry "Strained back this afternoon. Now v. painful. Pain in lumbar region. No radiation. No scoliosis. No movement in spine. Reflexes present." He was prescribed Valium and Codeine. The plaintiff was cross–examined about these episodes but affected ignorance of them. He struck me as evasive in his answers and I gained the impression he was not willing to admit to any earlier back problems. But the entries themselves shed little light upon the question of causation. Those back problems could have been anything from mild back strain (possibly exaggerated at the time for the plaintiff's own purposes) to some condition of direct relevance to the alleged sequelae of the accident.
Mr Duffy was also influenced by the relatively minor nature of the injuries described in the hospital records on the day of the accident and the fact that on the 4 August 1984 the records contained an entry that he had been involved in an assault with a blow to the head and loss of consciousness. In part the entry reads:
"Apparently was out with friend – best friend from Perth and his wife. Friend started bashing wife and he told him to lay off. Friend started punching patient and kicking him. Hit him with stubby – fell onto pavement. When ambulance found him lying unconscious in gutter. Patient remembers little about this. . . . . Bruising around right shoulder. Apparently injured it before."
He was admitted for observation in respect of his head injury.
I am in no doubt that the plaintiff did grossly exaggerate his symptoms when seen by Mr Duffy and that he attempted to mislead him by making false claims such as of an inability to drive a car in the previous four to five months. I think in the witness box the plaintiff also tended to exaggerate and that in the courtroom after his evidence he endeavoured, by his conduct and grimaces, to create the impression that he was suffering pain more debilitating than it was in reality.
It is not surprising perhaps that Mr Duffy felt there was no reason why the plaintiff's present condition, whatever it was, should be attributed to the motor vehicle accident. There is, however, no reason to suggest that the fall to the pavement set up the symptoms of which he complains and in respect of which he had been referred by his own doctor to Mr Binns two days before that incident, or that this incident could not have occurred unless the plaintiff was sufficiently free of symptoms to go out on some drinking spree.
Despite my adverse impressions of the plaintiff I am satisfied, on the balance of probabilities, that the injury he suffered in the motor vehicle accident did cause severe pain 'in the spine at two levels and that the spondylolisthesis was not a contributing cause. The pain was sufficient to initially incapacitate the plaintiff wholly from engaging in his labouring work with the defendant and to cause him to consult both his own general practitioner and subsequently Mr Binns. I am also satisfied that the symptoms caused by the injury were sufficiently serious to warrant surgery by Mr Binns and that at the very least for an appreciable time after each operation the plaintiff was totally incapacitated for any work. I am accordingly satisfied that the plaintiff had established that he suffered an injury by accident arising out of and in the course of his employment and that it resulted in an incapacity for work with a consequent economic loss and that payments having been properly commenced and paid under the Act they should not have been terminated or diminished unless the defendant employer can establish circumstances justifying such termination or diminution.
I find that after the second operation in July 1986 – by about September 1986 when the video films were taken – the plaintiff convalesced to a stage where he was a good deal better and was capable of doing some manual work for a short time as the film shows. I think it improbable that he was no longer incapacitated at all, but I am unable to say on the probabilities whether his incapacity was total or partial. It may well be that he could do some work and should therefore have received less than the payment appropriate to total incapacity, but I am unable to say on the probabilities whether this is so or not and, if so, what an appropriate level of payment would be. In my opinion it is for the defendant to show that he is either no longer incapacitated at all or, if he is partially incapacitated, what is the extent of that incapacity. The former has been shown on the probabilities not to be the case and the defendant has failed to establish on the probabilities circumstances justifying any diminution in the weekly payments due to the employee. It is agreed that the balance payable to him, should he succeed in this action, is $19,548.68 and he will have judgment accordingly.
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