Gibbons v Coats Paton (Australia) Ltd
[1989] TASSC 80
•20 February 1989
Serial No. B2/1989
List “B”
COURT: SUPREME COURT OF TASMANIA
CITATION: Gibbons v Coats Paton (Australia) Ltd [1989] TASSC 80; B2/1989
PARTIES: GIBBONS, William Ernest Thomas
v
COATS PATON (AUSTRALIA) LTD
FILE NO/S: WC 10/1985
DELIVERED ON: 20 February 1989
JUDGMENT OF: Wright J
Judgment Number: B2/1989
Number of paragraphs: 31
Serial No B2/1989
File No WC 10/1985
WILLIAM ERNEST THOMAS GIBBONS v COATS PATON (
REASONS FOR JUDGMENT WRIGHT J
20 February 1989
The plaintiff alleges that on or about 3 December 1982, whilst employed as a worker by the defendant company, he suffered an injury to his back by accident whilst pulling a pallet in the course of his employment at the defendant's premises in Launceston. He further alleges that as from October 1984 as a result of the injury to his back, he has been totally incapacitated for work and remains so incapacitated. He says that up until October 1984 he was paid compensation by the defendant but since the 14 October 1984 he has received no compensation.
The defendant admitted the status of the plaintiff as a worker and although not admitting the plaintiff's injury by accident 1982, this was not an issue that was seriously contested at the trial and was plainly established on the basis of the evidence given. It was formally agreed by the parties in the certificate of readiness that between the 3 December 1982 and the 14 September 1984, the defendant paid to the plaintiff by way of workers compensation for the injury referred to, the sum of $17,112.51. It was agreed in the pleadings that the relevant compensation rate for the purposes of r3 of the First Schedule of the Workers Compensation Act 1927 was approximately $295.00 per week. It was also agreed between the parties by a joint statement of counsel from the bar table towards the conclusion of the trial that for the period of time prior to the 24 October 1984, the plaintiff was employed by the defendant as a watchman and that he received wages and workers compensation by way of "makeup pay" during the period.
He received neither wages nor workers compensation payments subsequent to the 24 October 1984 but he did receive sick pay for a period of time not disclosed by the evidence. This agreed statement of fact resulted from discussions between myself and counsel as to the effect of s21 of the Workers Compensation Act 1927. This section was not adverted to in the pleadings and did not appear to figure as a matter of significance in the trial until the final addresses were underway. It then became evident that both counsel foresaw that it may be crucial to the final outcome of the case for me to determine upon whom the onus of proof lay in respect of the plaintiff's capacity or incapacity for work in and after October 1984. I shall return to this question after reviewing the evidence.
By further and better particulars delivered by the plaintiff to the defendant's solicitors on 1 December 1988, it was made plain that the allegation that the plaintiff was totally incapacitated for work was intended to include total incapacity for work or in the alternative, such incapacity for work as is treated as total incapacity by application of the provisions of r3(2)(f) of Schedule 1 of the Workers Compensation Act 1927. It was also made plain that the relevant rate of compensation referred to in the grounds and particulars as "approximately $295.00 per week" should be restated as being:
a) from 14 October 1984 to the
8 April 1985 $293.50 per week
b) from 8 April 1985 to the
8 November 1985 $304.30 per week
c) from 4 November 1985 to the
7 July 1986 $313.40 per week
d) from 16 March 1987 $325.50 per week
These rates were admitted as correct by counsel for the defendant at the commencement of the trial.
The plaintiff is aged 58 years having been born on 4 April 1930. He commenced work with the defendant company in April 1944 and spent his entire working life there until 1984. He worked in a number of positions. In 1962 he injured his back whilst riding a horse. This had nothing to do with his employment. As a result of this injury he had to wear a back brace thereafter and suffered from pain in the right leg and the back. In 1979 whilst working as a storeman and packer for the defendant company, he hurt his back again. The exact nature of the injury was not specified, and on the 3 December 1982 whilst pulling a pallet in the course of his employment as a storeman and packer with the defendant company, he sustained further injury to his back which resulted in pain in the left leg, the hip and the back.
The plaintiff's evidence as to the nature of the injury sustained and the way in which it affected his working capacity was sketchy, vague and confused, and I can place little, if any, reliance upon his recitation of the chronology of events between December 1982 and October 1984.
However, on the basis of the evidence given by Mr Waldron and Mr Wallace for the defendant, taken in conjunction with the history of medical consultations spoken of by the many medical witnesses, it is clear enough that the plaintiff's injury was accepted as being work related and that he was thereafter paid weekly compensation.
These payments continued until June 1983 when he was first offered the job as a watchman at the defendant's works at Thistle Street, Launceston by the defendant's Personnel Officer, Mr Wallace. I find that at that time the plaintiff was reluctant to return to work and told Mr Wallace that he had been advised to retire on medical grounds. He was accordingly reluctant to accept this position and shortly after the initial approach from Mr Wallace, he again told Mr Wallace that he had been advised not to accept the position by his doctor.
The plaintiff was subsequently examined by Dr A R Darlow on behalf of the defendant company and Dr Darlow, who gave evidence at the trial, formed the view that the position of watchman was well within the plaintiff's capabilities. In addition to justifying his reluctance to take the job on medical advice which he said he received, the plaintiff also suggested to Dr Darlow that the job would be beyond him because he would be unable to cope with forcible intruders. It was put to the plaintiff during the course of his cross–examination that this was a ridiculous excuse and that his whole attitude was that he did not wish to return to work and simply wanted to retire, and that he had made up his mind to do so before the watchman's job was offered to him.
I am far from satisfied that this criticism of the plaintiff is justified and, indeed, an apprehension of possible physical violence in such a job appears to me to be not unreasonable. However, I am also satisfied that the plaintiff was less than frank with me about his attitude to the watchman's job and I am satisfied from the evidence of Mr Waldron, Mr Wallace and Dr Darlow that the plaintiff's resistance to taking the job was motivated by a desire to retire from his employment, rather than any genuinely perceived difficulty with the job itself. Plainly, apart from the somewhat remote possibility of physical violence, the job was well within his physical capabilities. The plaintiff said that Dr Chambers, his general practitioner who was treating him at that time, had recommended that he not take the job but Dr Chambers was not called to substantiate this claim and I am satisfied that whether or not the plaintiff was given such advice, he had formed his own decision to resist a return to work and to retire if possible.
This conclusion is not directly relevant to the plaintiff's entitlement to succeed in this action, because notwithstanding his initial hesitation to accept the position as watchman he ultimately took the job, found it to his liking and gave satisfactory performance in that position from 28 November 1983 until October 1984, a total period of approximately 10 months. The job involved no heavy lifting or physical strain of any kind. The watchman's office was in the main building and it was warm and comfortable and it was not necessary for Mr Gibbons to stand or sit for prolonged periods if he chose not to do so. He was free to move about and his main function appears to have been to receive and direct persons and vehicles visiting the factory.
In October 1984, the defendant company decided to take the plaintiff from this job and retrain him as a balling machine operating. It was initially represented to me by Mr Wallace that the underlying purpose of this move was to rehabilitate the plaintiff, but further questioning of the witness elicited the following answer.
"As far as the job was concerned the employee would have been better value to the company as a balling machine operator rather than a watchman".
Although the watchman's job is now performed by an outside security company, I was assured by Mr Wallace that the engagement of that company had nothing to do with the decision to shift Mr Gibbons to a different job. It is plain however that he cannot return to the watchman's job now because it is no longer available. I must say that I find it difficult to understand why the defendant company should have resolved to shift the plaintiff from the watchman's job when he was apparently giving reasonable satisfaction in that position.
Before transferring the plaintiff to the balling machine the company arranged to have him examined by Mr Dermot Morgan (an orthopaedic surgeon) and Dr Darlow. Both of these medical practitioners familiarised themselves with the job in prospect and formed the clear conclusion that the plaintiff would be physically capable of undertaking that work. The plaintiff was introduced to Mrs Elsie Saltmarsh who was the training officer in charge of employees who were to be engaged in the balling room. It should be noted in passing that prior to the plaintiff's introduction to this job, balling machine work had been regarded as exclusively the province of female employees. The principal process carried out in the balling room is to convert large quantities of processed wool or other fibre into small balls or skeins which are then packed into plastic bags or boxes which are in turn packaged into cartons for distribution to commercial outlets for sale.
On the first day in the balling room the plaintiff was initially put to work making up small boxes in which the balled wool would be placed. He chose to do this standing adjacent to the pallets with the unmade boxes stacked upon them, rather than sitting at a table which was provided. He was asked by Mr Saunders, the assistant manager of the finishing department at Coats Paton at the time, why he didn't use the table and he told Mr Saunders that it was more comfortable for him to work from the top of the stack.
At about 11.45am that day Mr Saunders returned to find out how the plaintiff was progressing and then ascertained that the plaintiff had left work. He had done this without making any complaint to Mr Saunders or any other person at Coats Paton other than the nurse in charge of the sick bay. It was not put to the plaintiff but it was put to Mrs Saltmarsh who gave evidence on his behalf, that on the 24 October 1984 the only work which the plaintiff had done was making up the cardboard boxes. Initially she showed some confusion about this but later in her evidence she tended to agree with that suggestion. However, the entry of the nursing sister in the sick bay register for that day, plainly indicates to my satisfaction that this is not correct. The entry reads as follows:
"Bill Gibbons 1/601 warehouse accident first reported 3–12–82 Pt reported to Mr C cp of pain in back and both legs. States that bending over the spools on the balling machine are causing extreme pain. Feels unable to continue with work. Home 1pm cert issued for 2½ hours."
The plaintiff himself in his evidence in chief said that he worked both on the boxes and on the actual balling machine that day. In the overall resolution of this case this is a matter of some significance because it was put by the defendant that the plaintiff was a malingerer and that the work that he was doing on the first day in the balling room could not possibly have given rise to pain of such a kind or degree as to require him to cease work.
A video tape was prepared of work in the balling room and this was shown during the course of the trial. It showed the balling machine operator connecting spools (or "cones" as they are called) of yarn to the machine and then standing at the machine, collecting and packaging the small balls of wool which it produced in plastic bags. On the day that the video was taken, twenty balls were being placed in each plastic bag which, in turn, was placed in a carton located behind the operator. Evidence was given that the cones were brought to the machine by a jobber and that it was a jobber's duty to remove the carton once it had been filled with packages of wool. As demonstrated in the video tape, the operation involved little in the way of bending, stretching or lifting. But it was claimed both by the plaintiff and Mrs Saltmarsh that the video tape did not accurately depict the entirety of the operation. In the first place they pointed out that the operation depicted involved the balling of baby wool only. This is apparently a very fine wool which can be balled only at a slow speed, presumably to do otherwise would break the yarn. They told me that thicker wool proceeds at a much faster speed and from time to time two or even three operators are required to work on the one machine to keep up with the output. They also told me that in addition to the cones depicted in the video, wool is sometimes spun on to "cakes" consisting of a metal disc with a masonite bottom and being somewhat heavier than the cones. It was also claimed that to join up the thread on these cakes and cones may require the operator to bend to floor level for that purpose. The cones in use in the video were mounted on a trolley at approximately waist level. If I accept the evidence of the plaintiff and Mrs Saltmarsh therefore, it is plain that the job of balling machine operator frequently involves working at a speed greater than that depicted. It involves more bending, lifting and stretching than depicted. Nonetheless, the bending, stretching and lifting is a minor part of the operation and the plaintiff conceded that ninety to ninety five percent of the job consisted of the packaging of the wool and placing it in the carton. The plaintiff suggested that the cakes weighed as much as 16 kilograms but I am satisfied by the evidence of Mr Saunders that they weigh no more than 5 to 7 kilograms. Making due allowance then for the discrepancies between the work as depicted on the video tape and the work as actually carried out, it is nonetheless accurate to say that it is light work of a kind which all medical practitioners who gave evidence, (including Mr E.D. McIntyre who gave evidence on behalf of the plaintiff) fully expected the plaintiff to be able to perform without undue pain or discomfort. The plaintiff's claim proceeded on the basis that as a result of undue pain and discomfort which he suffered in this work, he should be regarded as totally incapacitated for work and therefore entitled to compensation.
After his first day on this job it appears that the plaintiff did not make a further attempt to carry it out for approximately 12 months. Prior to his doing so on that occasion, he consulted his solicitors and they in turn arranged for Mr E D McIntyre an orthopaedic surgeon, to visit the factory and observe the work in process. Having done that, Mr McIntyre expressed the opinion that the plaintiff should be able to perform the work and on 3 September 1985, the plaintiff's solicitors, Messrs Clark and Gee wrote to the defendant's solicitors in the following terms:
"On 3rd September 1985 the writer, Mr Gibbons and Dr McIntyre inspected procedures in the balling room, which it was indicated by your client was a job open to Mr Gibbons. The jobs that we observed and we assume Mr Gibbons would be required to do entailed little bending or lifting and Dr McIntyre's advice was that he should at least attempt to do them which advice Mr Gibbons accepted.
However, he returns (and he will be making his own arrangements with the Company as to his return) only on the basis that he will be expected to do only the jobs that we saw on that occasion. In particular, Mr Gibbons advised us that on his first day in that room he was required to pack boxes on the floor, which led to him breaking down. In that respect therefore our claim for workers compensation remains alive and we shall further consider it after Mr Gibbons' return to work and his progress is known a little better."
It is interesting to note that in this letter the plaintiff's solicitors suggest that the problem necessitating Mr Gibbons leaving work on the 24 October was the requirement that he "pack boxes on the floor" which I take to be a reference to his making up boxes on the pallet which I have already described. This of course is at variance with the entry in the sick bay records and is unfortunately, illustrative of the generally unsatisfactory lack of detail and accuracy that typified much of the evidence of the plaintiff and some of his witnesses.
Following this letter from his solicitors to the defendant's solicitors, the plaintiff returned to the balling room on 30 September 1985. On this occasion he persevered with the job for approximately a fortnight before finally deciding that it was beyond him. To give a picture of the extent to which the plaintiff claims he was incapacitated, it is necessary to reproduce some of the evidence which he gave and which other witnesses gave relating to the level of pain which he claims was produced by his activities at work. When questioned by his counsel as to the extent of pain that he suffered at the end of the first day in the balling room (24 October 1984) he simply said, "pretty sore", and later, apparently speaking of the same occasion he said, "my back ached". He was not asked in any great detail during evidence in chief as to the day by day experiences of pain that he had. He did however say that on returning home both after the first day at work and on subsequent days:
"It affected me the same all the time I used to sit in the chair and ache I'd take a couple of disprin and I used to sleep on the floor most nights".
Cross–examined as to the reason for his leaving work on the 24 October 1984, he said:
"I didn't decide it just happened at lunch time I wasn't feeling very well so I decided I'd go".
Asked in what respects he was not feeling very well, he said, "me back was aching". He said that his back did not immediately improve and he then consulted Dr Chambers and "he put me off".
The plaintiff's wife also gave evidence as follows:
"Q Do you recall a time in 1985 when your husband was attempting to work in the balling room at Coats Paton?
A Yes.
Q And do you recall how he would come home of a night after that work?
A Yes.
Q Tell us.
AIn agony very grumpy came close to fighting a few times because of the pain that he was in he used to take it out on all of us and he might have to make his bed up on the floor because he couldn't sleep with me because he used to be in so much pain."
Mrs Saltmarsh, after telling me that the plaintiff had picked up the balling room job very quickly and performed it very well, gave the following evidence in chief:
"QAnd what about physically did you notice anything?
AOh no, I knew he wasn't well that way because he often he just come out in sweats and that and many a time he would go down to the surgery because he wasn't well.
QYes, did you see him as not being well?
AOh, definitely.
QDid he try or was he – – –
ANo he was very good he did try.
QHow would he appear to you at the end of the day?
AOh gee, he would have a job to battle on."
Cross–examined by Mr Kable as the plaintiff's first day in the balling room on 24 October 1984, Mrs Saltmarsh gave the following evidence:
"QNow the question I've asked you and I want you to think about carefully about it was 'Did he tell you that he was going home'?
AHe told me he didn't, well I knew the man wasn't well.
QThis is the day he was making boxes?
AYes.
QSo your evidence is that he told you he was going home?
AYes.
QAnd he wasn't feeling well?
AWasn't feeling well at all.
QI see and what did he say was wrong with him.?
AWell the man he was perspiring and his body was aching and that he said.
QThat's what he said you remember that?
AWell look I seen him that many times with the sweat pouring out of him and that I can remember it all.
QThat many times?
AOh yes when I was teaching him on the balling and that he wasn't well.
QDid he ever discuss with you whether he wanted to retire?
ANo, we never talked about things like that."
Mr E D McIntyre an orthopaedic surgeon of considerable experience said that he had been consulted by the plaintiff in November 1984, presumably following his first day in the balling room. The plaintiff told Mr McIntyre that his back had become extremely uncomfortable because the particular job required bending and some lifting. Mr McIntyre examined the plaintiff and concluded that he had a long standing degenerative disc at one level in his spine and he formed the opinion that he was unfit for any work involving repeated bending and lifting. He also confirmed that he had visited Coats Paton in October 1985 and he said:
"I actually went Coats Paton and viewed the various duties that he was required to do and it was my belief that they weren't too heavy for him and suggested that he go back to it."
Mr McIntyre, unlike Mr Morgan and Dr Darlow, found no evidence to suggest to him that the plaintiff was exaggerating his symptoms in relation to his back pain. He was asked:
"QAnd do you consider him fit for work in the balling machine as he has described it in his evidence in chief and cross–examination?
AFrom what I have seen on the video today and from what I saw myself at Coats Paton I though he would have been capable of doing this job.
QYes, but if you accept what Mr Gibbons says as to the nature of the job as opposed to the video is correct do you think that he would be fit for that job on that assumption?
AThat's not an easy question to answer because his symptom is pain and some people are a great deal more stable than others and vice versa so I can't answer that really adequately."
In this response Mr McIntyre has identified the key issue in the case.
Mr Dermot Morgan, another experienced orthopaedic surgeon from Launceston said in his report of 20 February 1987 to the defendant's solicitors:
"How severely or otherwise this man is affected cannot be proven by any particular test but has to be arrived at by one's best professional judgment which necessarily in this case has to be subjective. As you are aware in the past I have felt that Mr Gibbons has tended to considerably exaggerate his symptoms and I remain of this opinion. There is no doubt that he was trying to impress me with the severity of his signs and I particularly mention the apparent considerable decrease in straight leg raising which was really negligible in effect.
You will recall I inspected the work required of a balling machine operator in 1985 and what I was shown told then seems at considerable variance with what Mr Gibbons told me recently. At the time I felt this was a very light job indeed and I would be very surprised if Mr Gibbons was unable to do it. I remain of the opinion that despite his moderate lumbar spondylosis he is not unfit for light work of this nature. I appreciate that this opinion is at variance obviously with some of my colleagues who have had to arrive at their conclusion like I in a subjective fashion and obviously place more weight on Mr Gibbon's assertions.
I would not expect any particular treatment to alter his stated symptoms. I would accept he is getting some variable back and hip discomfort but I am not persuaded that it is as severe or as persistent as he claims."
Dr Darlow expressed similar views and, if anything, was more firmly convinced than Mr Morgan that the plaintiff was malingering. Fairly evaluated then, all three medical opinions support the proposition that the plaintiff ought to be able to do the work required of him in the balling room without incapacitating pain. On the other hand, as they all acknowledge, pain is very much a subjective thing although certain tests such as the straight leg raising test and close observation of a patient's demeanour and manner can assist in the diagnosis. For my part I saw nothing in the plaintiff's demeanour or manner in the witness box to suggest that he was being deliberately untruthful, although I did note, as did Dr Darlow, that during the remainder of the trial when he was seated in court, he was seated apparently in complete comfort and did not appear to have to adjust his position to accommodate discomfort in the back. Demeanour in the witness box is not unfortunately, a wholly reliable guide to a witness's veracity and, if this case depended upon the evidence of the plaintiff and his wife, I would feel that his claim should fail, irrespective of whether he or the defendants bore the onus of proof of persuading me of the nature and extent of his incapacity. However, the evidence of Mrs Saltmarsh caused me to form the tentative view at the conclusion of the trial and to be reaffirmed in that view, having now reread the evidence, that the plaintiff does indeed have substantial chronic pain in the back to such an extent that he should properly be regarded as incapacitated for work as a balling machine operator.
An examination of the transcript of her evidence does little to convey the forthright and frank manner in which Mrs Saltmarsh gave her evidence. She worked at Coats Paton for 36 years until retiring approximately 21 months ago. It was not suggested to her, nor is there a foundation in the evidence for finding, that she has any partiality towards the plaintiff. There is no reason to suppose that she bears any animus to the defendant company. Her evidence as to the plaintiff's behaviour whilst on trial in the balling room, paints a picture of a man in chronic pain, and unless I can conclude that the plaintiff was a sufficiently accomplished actor to hoodwink her into this frame of mind over a period of a fortnight, I think her evidence should be taken as strongly confirmatory of the plaintiff's complaint. I accept her as a wholly credible witness except as to the sequence of events on the plaintiff's first day in the balling room to which I have referred above.
This is not then a case in which I find it necessary to express a final conclusion as to the onuses of proof which rest respectively upon plaintiff and defendant in a case of this kind to which s21 of the Workers' Compensation Act 1927 applies. However, as counsel referred to a number of cases discussing this question in their closing addresses, I have reviewed the decisions referred to and having done so I express my current agreement with the views expressed by Cox J. in Carr v The Glenorchy Municipality No 54/1988. In that decision after carefully reviewing the authorities and the provisions of the Workers Compensation Act his Honour concluded that where a worker has been in receipt of compensation payments properly commenced and paid under the Act, the unilateral termination thereof by the employer, which thereby forces the worker to take proceedings to enforce his right to compensation, casts upon the employer the onus of establishing which, if any of the circumstances set out in s21(1) of the Act provided justification for termination of the payments notwithstanding that a preliminary onus would remain with the worker 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.
I also concur with his Honour and with the reasons that he gives for concluding that the employer does not go far enough in discharging his onus if he merely shows that total incapacity has ceased. As his Honour says at p10:
"... where the employer shows partial incapacity, the onus lies on him to define its parameters."
No argument was put to me to suggest that the plaintiff's incapacity resulted from other than a compensable injury. Nor was it suggested by argument or evidence that if the plaintiff was unable to do the balling room job he was nonetheless only partially incapacitated and was able to earn income albeit to a limited extent from other sources. The basic rate of compensation applicable at the time the plaintiff sustained his initial compensable injury in 1982 appears to have been $157.50 pursuant to the Workers Compensation (Basic Rate) Order 1981 Statutory Rules No 314 of 1981 and consequently, the weekly payments that the plaintiff may receive pursuant to the formula provided in Schedule 1 of the Act may not exceed $44,730.00. As I have already mentioned it has been agreed that the plaintiff has already received $17,112.51 of this entitlement. A total maximum sum thus remaining available to the plaintiff is $27,617.49. Therefore, on the relevant rates of compensation pursuant to para7(a) of the grounds and particulars which were agreed by the parties to be correct, the plaintiff's total entitlement would have been exhausted sometime prior to the 7 July 1986. My calculations are as follows:
(a) From 14 October 1984 to
8 April 1985 relevant rate
$293.50 per week for 190 days
(27.143) weeks = $7,965.59
(b) From 8 April 1985 to
4 November 1985 relevant rate
$304.30 per week for 210 days
(30 weeks) = $9,129.00
(c) From 4 November 1985 to
7 July 1986 relevant rate
$313.40 per week for 245 days
(35 weeks) = $10,969.00
Overall Total $28,063.59
Accordingly, as there are no medical, hospital or other expenses claimed on behalf of the plaintiff, it seems to me that judgment should be entered in his favour for the sum of $27,617.49, plus costs to be taxed. However, before entering judgment in these terms, I will hear counsel to enable them to check the calculations that I have made and the basic rate to which I have referred as there was no discussion during the course of the trial as to the appropriate basic rate to be used for the purpose of these calculations.
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