James Edward Taylor v the Broken Hill Proprietary Company Ltd No. Scgrg-96-1978 Judgment No. 6183 Number of Pages -14 Workers' Compensation

[1997] SASC 6183

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

MATHESON, OLSSON AND WILLIAMS JJ

Workers' compensation - appeal, by leave, against an order made by The Workers Compensation Tribunal - injury to back causing pain in the left leg - whether the Tribunal adopted the correct conceptual approach in considering the appeal - whether any error on the part of the review officer demonstrated - decision of Review Officer reflection of his assessment of credibility of witness - assessment of loss of function of lumbar spine, left leg and capacity to engage in sexual intercourse - multiple effects of single injury - no basis shown for interference with determination of Review Officer or which could found assessments proposed by Tribunal. Workers Rehabilitation and Compensation Act s43, referred to. Monroe Australia Pty Ltd v Campbell (1995) 65 SASR 16, applied. K B Hutcherson Pty Ltd v Correia (1995) 183 CLR 50; Salmon Street Limited (in liq) v Jorgensen (1991) 56 SASR 158; WorkCover Corporation v McMaster (McKusker DP, 22 December 1994 (Print A87/1994), unreported), discussed. Quicksilver Transport v L W Reavill (Parsons DP, 29 April 1994 (Print A29/1994), unreported); Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842; Joyce v Yeomans [1981] 2 All ER
21; Mitsubishi Motors Australia Ltd v Galloway (Cawthorne DP, 10 February 1995 (Print A12/1995) unreported), considered.

ADELAIDE, 14 April 1997 (hearing), 30 May 1997 (decision)

#DATE 30:5:1997

#ADD 4:6:1997

Appellant:

Counsel: MR C KOURAKIS

Solicitors: PALIOS MEEGAN AND NICHOLSON

Respondent:

Counsel: MR A BESANKO QC with MR N WALLWORK

Solicitors: PIPER ALDERMAN

Order:

MATHESON J

1. I am in substantial agreement with the reasons of Olsson J. I agree with the orders he proposes.

OLSSON J

2. This is an appeal, by leave, against an order made by the Workers Compensation Appeal Tribunal ("the Tribunal") on 11 September 1996. At that time Thompson DP allowed an appeal against a series of determinations of a Review Officer in relation to the appellant, set them aside and substituted various different determinations pursuant to section 43 of the WorkersRehabilitation and Compensation Act ("the Act").

3. Before addressing the issues arising on the appeal it is first necessary to focus on some relevant narrative and historical facts.

4. The appellant is a man 59 years of age. He was employed by the respondent (a so-called "exempt employer" under the Act) as a crane driver at its steel works in Whyalla for some 27 years - until he took a retirement "package" in April 1993. I infer that he did so because of symptoms of pain in his back and leg.

5. He had a history of relevant pathology stemming from a motor vehicle accident in 1973. This was compensable as a "journey injury", because it occurred whilst he was driving to work. It gave rise to symptomatology in his neck and back. Compensation payments were made until ultimate settlement of a third party claim by the appellant.

6. There is also a reference to other, non work related, medical history. Medical reports written by Mr Guirguis, an orthopaedic surgeon, and Mr Goh, a psychiatrist, indicated that, early in 1975, the appellant was assaulted and sustained a fracture of a facial bone, broken ribs and a stress related gastric ulcer. This did not, however, appear to have caused any resurgence of neck or back symptoms.

7. Dr Goh also recorded a medical history of a second motor vehicle accident just prior to the New Year in 1977. This was said to have been relatively minor, although it both caused neck pain and also reactivated stress related symptoms.

8. Be that as it may, the evidence revealed that the primary injury flowing from the 1973 motor vehicle accident was to the appellant's neck. He initially had traction, but this was later followed by a fusion operation on 2 May 1974.

9. Some certificates of incapacity were presented to the respondent in the period 1973-1976, but these did not have, as their principal focus, any significant lumbar problem.

10. It was the assertion of the appellant, which appears to have been borne out by the oral and documentary medical evidence, that some initial back symptoms stemming from the 1973 accident, settled after about twelve months. Any later, seemingly sporadic, symptoms of back pain seem to have been associated with work functions in the employment environment. These involved fairly constant twisting and bending forward and down when he performed his functions as an overhead crane driver in the "soaking pits" area of the steel works.

11. Importantly, for a considerable period up to 1990, the evidence indicated no history of loss of function attributable to back pain. On the contrary, there was substantial evidence of quite vigorous, manual work and domestic functions, apparently being carried out without any obvious impairment or untoward symptoms.

12. Although the precise details do not readily emerge from the material in the Appeal Book, it seems common ground that the appellant experienced a problem in his back in mid-1990. This is, perhaps, best recorded in the medical report of Dr Gormly in these terms "Around June 1990 he experienced a sudden pain in his lower back when working on the crane as he straightened up after leaning forwards. He said he could not move for a few minutes and summoned help on the intercom. He was assisted out of the crane and down the steps and taken to the works medical centre by ambulance. He was advised to rest and take some analgesics and after consulting his own doctor, was referred for physiotherapy. X-rays taken around this time (3/7/90) were reported as showing spondylitic changes in the lumbar spine. He returned to work after about 6 weeks to the same job as pit crane operator. He managed to continue working but needed to take analgesics and physiotherapy for on-going low back symptoms".

13. Following that incident the appellant appears to have returned to and performed his normal work functions without undue difficulty.

14. Then, in 1992, a somewhat similar postural incident occurred. By formal report dated 2 June in that year, the appellant stated that, on 25 May 1992, when straightening up after bending down, he felt a sharp pain in his back.

15. He was, on that occasion, also assisted from his work station to the medical centre. An x-ray taken on 25 May 1992 disclosed a decrease in height of the L2/3 and L4/5 disc, as well as some other degenerative changes in the lumbar spine.

16. After a period of rest, physiotherapy and analgesics the appellant returned to work some six weeks later, performing light duties, such as computer data entry in the rolling mill.

17. However, his back condition progressively worsened, to the point that he took a redundancy package. A CT scan in October 1993 disclosed what was considered, probably, to be spinal and foraminal stenosis at the L4-5 level and a possible impingement of the L5 nerve roots. At all material times he experienced chronic low back pain radiating to the left buttock and down the left leg to the ankle. This resulted in significant limitations upon his movements and activities.

18. It was the appellant's evidence that, prior to the 1990 work incident, he had not suffered significant low back pain. Whilst it is true that he was not regarded by the Review Officer as a satisfactory witness, the fact remains that there was no evidence to controvert that assertion; and the fact is that he continued - apparently to the satisfaction of the respondent - to discharge his normal work functions without significant time off.

19. Following the cessation of his employment by the respondent, the appellant pursued a series of claims for lump sum compensation, pursuant to section 43 of the Act, stemming from his claim for compensation lodged on 2 June 1992.

20. These led to a corresponding series of determinations by the respondent, the relevant effect of which may be summarised as under - 1. On 18 July 1994 it determined an entitlement to $1,476.80, being for a 2% loss of function of the lumbar spine due to work related disability.

2. On 4 January 1995 it rejected a claim for compensation for an alleged 15% permanent loss of capacity to engage in sexual intercourse.

3. On 30 January 1995 it reiterated its stance in relation to loss of function of the lumbar spine and rejected a contrary assessment by Dr F Lim.

4. On 21 July 1995 it, likewise, rejected a claim for an assessment of alleged permanent loss of function of the left leg, based on a report by Dr Gormly. 21. All of the foregoing determinations were the subject of applications for review.

22. The review proceedings came before the Review Officer on some thirteen occasions between 16 November 1994 and 3 May 1996. The appellant gave evidence on three separate days and, as at the time of a subsequent appeal to the Tribunal, the transcript and some exhibits ran to 526 pages. Eventually the Review Officer gave ex tempore reasons for determination on 7 May 1996, which disposed of all matters.

23. The highlights of those reasons (which spanned the narrative facts in a manner consistent with my above summary) were to the following effect -
* that the appellant has a compensable disability resulting from an injury to his lumbar spine - as accepted by the respondent in both 1990 and 1992;
* that there has been an underlying disease and also previous injury "sustained in motor vehicle accidents in the 1970s", with consequent neck and back symptoms, although "the neck problems were predominant";
* that the appellant has "suffered intermittent back pain over the years since that time";
* that the nature of the appellant's work contributed to the degenerative problem that he had; the two incidents at work have led to a permanent compensable disability; and he did have some entitlements pursuant to section 43 of the Act;
* that, having weighed up the evidence (including a considerable volume of medical reports and the oral testimony), it was assessed that the appellant had a 15% permanent compensable disability to his lumbar spine, a 15% loss of function of his left leg and a 5% loss of capacity to engage in sexual intercourse. 24. Determinations were made accordingly.

25. As to the assessment in relation to loss of capacity to engage in sexual intercourse the Review Officer said - "I have made this finding of 5 per cent loss of capacity to engage in sexual intercourse based upon the fact that the issue of his capacity for sexual intercourse has been complicated by the evidence of his wife's injury, the shift work that both of them referred to and the difficulty in showing any satisfactory demonstration of lack of capacity. Their frequency of sexual encounter I think is complicated by some of those other things, his wife's injury being the predominant one."

26. It should, particularly, be borne in mind that these assessments were made after the Review Officer had summarised the opinions of the various medical practitioners involved and made reference to the oral evidence given before her.

27. In relation to that she found that the appellant and his wife were both "poor historians" and that "the applicant [i.e., the appellant] exaggerated to some degree his disabilities". She found it difficult to rely on either his uncorroborated evidence or medical histories dependent solely on his reporting.

28. On the other hand, the findings made were specifically arrived at in light of those conclusions. They represented the net outcome of the evidence which the Review Officer was disposed to accept.

29. The respondent appealed to the Tribunal against the assessments made.

30. As an outcome of the hearing of that appeal the Tribunal set aside the determinations of the Review Officer and substituted for them the following revised assessments: - 7.5% loss of efficient use of the lumbar spine; - 7.5% loss of use of the left leg; - nil loss of capacity to engage in sexual intercourse. 31. Having noted that "the evidence of [the appellant] and his wife was not accepted in the terms in which it was given" and that the Review Officer had taken the view that that evidence was "to be treated with caution and indeed significant caution", the learned Deputy President constituting the Tribunal appears to have reasoned thus -
* the only medical evidence that the Review Officer accepted was that of Mr Munyard, an orthopaedic surgeon who gave evidence on oath;
* most of the reports of various medical practitioners are really of little weight, because of the extent to which they are dependent on the uncorroborated medical history given by the appellant and, in any event, the Review Officer did not appear to have relied on them;
* although the 15% assessment in relation to the lumbar spine was not specifically sourced to Mr Munyard, it is reasonable to conclude that it was a reflection of evidence given by him;
* there are grave doubts as to whether Mr Munyard's views were accurately interpreted by the Review Officer.

As to this the learned Deputy President commented -

"His view is that clearly that the disability attributable to the work incidents of 1990 and/or 1992 was 2%. It may well be that it was a 2% contribution from the nature and conditions of the work going back 26 years. Whether the 2% is 2% of the lower back, or 2% of the 15% was not explained.

It seems to me that in the long (p.240/241 A.B.) answer quoted above, Mr Munyard identified four separate factors cumulatively that were productive of an assessment of 15%.

1. Pre-existing disease.

2. A change in the x-rays over a period of two years without any specific history of trauma.

3. A man that presents himself saying he is terrible and some of that is a chronic pain syndrome.

4. A man who is someone wanting to appear much worse than he probably is.

I pause there to note that I do not regard the comment about the x-rays as being confined to the development in two years in the x-rays. It is clear from the report itself at p.56 that the degenerative changes demonstrated by x-rays were obviously present before the incident in 1990 - and x-rays taken over two years show the existence of the degenerative condition.

I am also by no means convinced the validity of the determination can be accounted for by the Respondent's submission that the assessment of 15% was reached after excluding all of the last three matters identified in the answer. The reason I say that is no assessment was given that includes the last three factors. It is certainly not clear to me what Mr Munyard meant by 'I'm not taking into account there the mental association'.

I labour this point, because one has to divine what the Review Officer relied upon in reaching her conclusion by scrutinising the possible grounds. If the Review Officer relied upon Mr Munyard's evidence then it is certainly not clear to me that he espoused the proposition that the straight out physical disability - putting aside the exaggeration etc. was 15%."

* in any event, even if it was Mr Munyard's view that there was a 15% loss due to compensable disability, that assessment needs to undergo a further process of refinement, as mandated by The Corporation (Quicksilver Transport v L W Reavill (Parsons DP, 29 April 1994 (Print A29/1994), unreported), because of the finding that the appellant had suffered intermittent back pain over the years since the 1973 motor vehicle accident. As to this he said -

"This is met by the Respondent by the submission that Reavill would only come into play if there was a finding of not just of pain, but of loss of function. Pain per se, as Parsons J. pointed out has to be ignored unless it is productive of loss of function. There has been no finding of loss of function by Mr Munyard, consequently this is a case not in the Reavill category, but in the McMaster or Galloway category.

I find it difficult to accept the proposition that a factual finding of pain and degeneration can mean anything else but a finding of loss of function. Indeed degeneration in itself is indicative of a loss of function."

* so it was that, even adopting the full 15% assessment of actual physical loss, the Review Officer had failed to go the further step and follow through the implications of the finding of back pain over the years prior to 1990 - although no submissions had been made in that regard during the review hearing;
* it is difficult to perceive the basis of the 15% assessment in relation to the left leg, although it does reflect the content of certain medical reports - given that both Dr Guirguis and Mr Munyard agreed that any problems in the left leg are [I interpolate - "in medical terms"] "part of and a function of the disability in the lumbar spine". In any event, the assessment was made "without any allowance for the finding that [the appellant] exaggerated his condition". "In the absence of any elucidation or clarification that Dr Guirguis or Dr Gormly separated their assessments out into the objective loss, they ought not to be accepted.";
* as to the assessment in relation to loss of capacity to engage in sexual intercourse the learned Deputy President expressed these views -

"With regard to the claim for incapacity to engage in sexual intercourse the Appellant submitted that the Respondent simply lied about the frequency and incidence of sexual connection with his wife. He nominated two or three times a week before 1990. His wife's evidence was in marked contrast. She said there had been no sexual contact for four years before 1990 and only once since 1990. Later in evidence she resiled from that statement asserted that it was not 'four years' that she meant before 1990, but 'four months'. The elliptical comment referred to above in point three of the findings of fact by the Review Officer makes it clear to me, that the attempt by Mrs Taylor to re-fashion her evidence was not accepted. The fact was, that there had been very little if any sexual contact between Mr and Mrs Taylor for years. This is borne out by the history that Mrs Taylor gave to her own psychiatrist on this point, in the compilation of a report to support her own claim for damages for personal injury, which she prosecuted some years ago. That evidence was in stark contrast to the evidence of sexual contact given by her husband.

Mrs Taylor's evidence cannot be ascribed to a mistake, and the Review Officer did not regard it as a mistake - resultant from confusion.

Counsel for the Respondent valiantly argued that it would not be surprising, with the state of Mr Taylor's back and leg that his capacity to engage in sexual intercourse not only was obvious, but is obvious certainly to a greater extent than 5%. I regret that I am unable to make that assumption once the evidence strips away the Respondent's evidence of frequency, and accepts Mrs Taylor's evidence of frequency. It is patently obvious that there is little if any foundation to make a judgment on the percentage loss of the capacity. Loss of capacity ought not to be confused with loss of opportunity. It is theoretically possible for a celibate to be compensated for loss of capacity even though the capacity is not used. But this case goes further than that. There seems to have been deliberate attempt by the Respondent to 'gild the lily', and that attempt came undone.". 32. Having adverted to some detailed aspects of the evidence bearing on the credibility of the appellant, the learned Deputy President concluded - "I am of the view that factually the Respondent did exaggerate as is correctly noted by the Review Officer. I think it is unhelpful to characterise the Respondent as a liar, and a deceiver on what is essentially an issue of exaggeration. The appropriate view of the weight and quality of the Respondent's evidence can be factored into the ultimate assessment. I would not go as far as the Appellant submits I should go, which is to deprive the Respondent of any compensation pursuant to section 43 of the back and leg.

Having expounded my reservations in accepting the Review Officer's assessment, I have the alternative of returning this matter to the Review panel to further investigate whether there was a loss of function of the lumbar spine in the strict sense of the word prior to 1990, and secondly for the delineation of precisely what medical evidence was accepted or not, or deciding the matter myself and bringing the matters to finality.

The regrettable history of this matter before the Review Panel to date makes the idea of returning the matter a course of action that would be calamitous.

I therefore propose to make the assessments myself. I do this notwithstanding that there is a subsidiary question which Mr Kourakis has raised and that is even if I found that I did not agree with the assessment, is it so far outside the boundaries that could be properly be set that I should interfere with the assessments. The role of the Tribunal is to correct errors that are made in the review process, where the Tribunal is reviewing findings of facts made by the review authority. It is subject to the usual constraints that apply to any judicial or quasi-judicial body reviewing findings of fact. Some of those constraints are set out in Devries v ANRC
(1993) 177 CLR 477 at 479.

The short answer to Mr Kourakis' submission is that if there is an error of law demonstrated it takes the appellate Tribunal's function outside of the Devries doctrine." 33. He then proceeded to his reassessment on the following bases - "(1) Lumbar spine. The failure to apply or consider Reavill's Case, McMaster and Galloway is an error of law. The acceptance of Mr Munyard's evidence and the factual findings 9, 10 and 11 demands that those cases be considered. This is a case that falls squarely within the boundaries of Reavill. However one does not have to accept the view or the percentage assessment of Mr Munyard, i.e., 2% as being determinative. Unlike an industrial deafness case, it is the trier of fact upon whom falls the burden of making the assessment.

The appropriate assessment is that the Respondent is entitled to be compensated pursuant to section 43 for a 7.5% loss of function of the lumbar spine.

(2) The left leg: there is an error of law in the Review Officer's assessment. The basis of the 15% loss as found by the Review Officer is found in medical assessments that have been fundamentally rejected. Even if they were accepted the determination does not give proper weight to the other findings of the Review Officer on the Respondent's credibility. See particularly the evidence of Mr Munyard at p.242 of A.B. I find that the appropriate assessment is 7.5% permanent loss of use of the left lower leg. In making this assessment I obviously take the view that the Respondent is entitled to an assessment separate from the back, because the leg assessment should not be included in the lumbar spine assessment.

This point received scant attention in the Review hearing. It was not proposed to the Review Officer for consideration.

In respect of the assessment for 5% loss of the Respondent's capacity to engage in sexual intercourse, there is great force in the Appellant's argument that the evidentiary foundation to make any award is so bereft of validity that any award would be sheer speculation. I do not take it as being at all self evident in the circumstances of this case that the fact that the Respondent's lumbar spine has a disability and the left leg has a disability that those disabilities are productive of a loss of capacity to engage in sexual intercourse.

Comments on the difficulties of making such assessments found in The Corporation (National Pharmacies) v Webster A 57/1995 have been taken up by other members of this Tribunal most recently in Thompson v the Corporation (S.E.S. Crane Hire Pty Ltd) A.80/1996.

I am not persuaded there is any sufficient evidentiary basis for making an assessment for loss of capacity to engage in sexual intercourse and the failure to note that lack of evidentiary basis, is an error of law." 34. The appellant prosecutes the present appeal against the re-assessments made by the learned Deputy President on a variety of stated grounds. However, the real issues can, in my view, be distilled down as under - 1. The reduction in assessment, by reason of pre-existing injury and other considerations, reflects fundamental error in legal principle as to the basis on which an appellate tribunal ought to have disposed of the appeal - both in relation to the manner in which the Tribunal should have approached its task and also the manner in which it disposed of the appeal, in the event that error on the part of the Review Officer was properly found.

2. The decision complained of ignores the transitional provisions of the First Schedule to the Act. 35. It is trite to say that, in Devries and Anor v Australian National Railways Commission and Anor (1992-1993) 177 CLR 472, the High Court affirmed these propositions - 1. a finding of fact arrived at where the credibility of witnesses is in issue, is not to be set aside because an appellate court thinks the probabilities of the case are against that finding;

(2) such a finding may only be overturned if it can be shown that the judicial officer at first instance has failed to use, or has palpably misused his or her advantage, or had acted on evidence which was inconsistent with the facts incontrovertibly established by the evidence, or which was glaringly improbable;

(3) where it appears that a challenged finding has, to a significant extent, been based on the observation of the demeanour of the witness, an appellate court is inevitably placed in a position of real disadvantage compared with the trial judge who saw and heard the witnesses. 36. The High Court, inter alia, also drew attention to what had earlier fallen from it in Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR
842, to the effect that, in drawing inferences from evidence, there is a fundamental difference between doing so on the basis of uncontroverted primary fact and factual material which is in dispute.

37. Moreover, it must finally be borne in mind that when the opinions of expert medical witnesses are under consideration - be they expressed orally or in writing - then the resolution of any conflict depends very much on the "atmosphere" generated by the whole of the evidence at trial and the impact which any expert witness makes on the trier of fact. As Brandon LJ pointed out in Joyce v Yeomans [1981] 2 All ER 21 at 26-27 - "In my judgment, even when dealing with expert witnesses, a trial judge has an advantage over an appellate court in assessing the value, the reliability and impressiveness of the evidence given by experts called on either side.

There are various aspects of such evidence in respect of which the trial judge can get the 'feeling' of a case in a way in which an appellate court, reading the transcript cannot. Sometimes expert witnesses display signs of partisanship in a witness box or lack of objectivity. This may or may not be obvious from the transcript, yet it may be quite plain to the trial judge. Sometimes an expert witness may refuse to make what a more wise witness would make, namely, proper concessions to the viewpoint of the other side. Here again this may or may not be apparent to an appellate court but plain to the trial judge. I mention only two aspects of the matter, but there are others.

I do not think that the authorities on the right of an appellate court to interfere with the findings of fact of a trial judge based on witnesses of simple fact are entirely applicable to cases where the finding is based on expert evidence, but I certainly would not go to the other extreme and say that the trial judge has no advantage over an appellate court because the witnesses are expert. I think he has certain advantages, not perhaps so great as those applicable where witnesses are witnesses of fact, but nevertheless significant advantages which an appellate court ought not to ignore." 38. That dictum was expressly approved by the Full Court of this Court, apropos the proper approach of Review Officers, in Monroe Australia Pty Ltd v Campbell
(1995) 65 SASR 16.

39. In the instant case, the assessment of credibility necessarily impacted on the extent to which evidence given by the appellant and his wife was accepted and the manner in which it bore on the views proffered by the various reporting medical practitioners. It is to be borne in mind that not all of their evidence was rejected; and that which was rejected did not necessarily negate all views and information comprised in medical reports. Indeed, there was a body of objective medical material which was of considerable importance.

40. Moreover, when what is in issue is the proper interpretation to be given to the oral evidence of an expert witness such as Mr Munyard, the advantage enjoyed by the person presiding at the hearing, and experiencing the "atmosphere" generated by that hearing is profound, and must not be underestimated.

41. The fundamental difficulty which I have with the approach adopted by the learned Deputy President is that it appears to fly in the face of the authorities to which I have referred. It is no answer to say, as Mr Besanko QC, of senior counsel for the respondent, sought to do, that the appeal to the Tribunal was by way of what he described as a special form of rehearing on the documents. A rehearing it may be, but that is not a licence to jettison well established principle, absent the leading of new or additional evidence before the Tribunal. The fact that any further appeal beyond the Tribunal is limited to questions of law renders it doubly important that relevant principles of law governing the proper approach of an appellate tribunal are duly adhered to.

42. In essence, what the learned Deputy President has, in effect, done is to retry the matter on paper. He has substituted his own views for those of the Review Officer, from a position of serious disadvantage; and in a situation in which error on the part of the latter was simply not demonstrated.

43. Much of his reasoning appears to stem from a conclusion that Mr Munyard's views were probably not accurately interpreted by the Review Officer, when there was no compelling reason to arrive at such a conclusion. Furthermore, his own reasoning demonstrates a clear misapprehension, on his part, of the effect of the evidence given by that witness.

44. As Mr Kourakis, of counsel for the appellant, submitted, Mr Munyard accepted that, overall, the appellant had a 15% disability in relation to his lumbar spine, from "a physical point of view" (AB 266). Of that, he attributed about 2% to the work environment and the balance to a progressive condition of degeneration. Despite what was said by the learned Deputy President, nothing could be clearer than that unqualified evidence. There was simply never any reason for concluding that the Review Officer was in error in so interpreting it. It is quite obvious that she accepted the existence of an overall 15% level of physical disability, on the basis of the evidence to which I have referred.

45. At one stage of his reasons, the learned Deputy President appeared to infer that there was no apparent basis for arriving at any assessment in relation to the appellant's left leg, because Mr Munyard had expressed the view that any problems in the left leg are part of and a function of the disability in the lumber spine. That would have been to misunderstand what the doctor was saying and to misapply it in terms of legal concept. However, he later appears to have resiled from such a conclusion.

46. It is to be recalled that the loss of function of the left leg was due to the chronic sciatic pain generated by the nerve root involvement, in the area of the lumbar spine. In that sense it was "part of and a function of" the lumbar spine pathology. However, the relevant practical disability in the leg - in terms of the loss of full and efficient use of it - is, patently, quite separate and distinct from the disability which is the loss of function of the lumbar spine. This is so, even though they spring from a common source. The appellant was undoubtedly entitled to a separate assessment in respect of each discrete disability resulting from the relevant physical injury. The present situation is best illustrated by reference to the cases of K B Hutcherson Pty Ltd v Correia (1995) 183 CLR 50 and Salmon Street Limited (in liq) v Jorgensen
(1991) 56 SASR 158. In the former case it was simply not an issue that the back and leg disabilities were to be treated quite separately, notwithstanding that nerve root compression caused both disabilities (see report at p 52). Ultimately the learned Deputy President came to that position in this case, as he was bound to do. There was, of course, evidence from the medical material generally of objective signs of sciatic pain caused by nerve root irritation. Mr Munyard was never invited to dissent from that proposition. The real issue was the factual degree of disability suffered by the appellant.

47. On what basis the learned Deputy President could possibly conclude that it was "undoubtedly true that the assessments of 15% of the lower leg are made, without any allowance for the finding that the [appellant] exaggerated his condition" is never revealed. The fact is that Mr Munyard, for the reasons above expressed, did not ever address his mind to this issue, whereas Drs Guirguis and Gormley did. The Review Officer then arrived at her conclusion in light of her findings as to credibility and on the whole of the evidence.

48. Common sense indicates that an undoubted case of significant nerve root involvement could well give rise to a 15% leg disability. Not only was there no positive basis for divination of error on the part of the Review Officer, there was absolutely no logical basis of evidence for the substituted assessment made by the learned Deputy President. It was, on the face of it, nothing short of inspired guesswork.

49. However, I revert to his approach to the evidence of Mr Munyard, dealing with the assessment of the loss of function of the lumbar spine. The ultimate decision of the learned Deputy President, given his conclusion of error on the part of the Review Officer, is also, logically, quite inexplicable.

50. Having apparently concluded that the only positive evidence of work related disability was 2%; that the 15% quantum did not exclude exaggeration; and the significance of a substantial change in x-rays in a two-year period, the learned Deputy President made a somewhat extraordinary statement to the effect that it was difficult to accept the proposition that findings of pain and degeneration could mean anything else but a finding of loss of function - "Indeed degeneration in itself is indication of loss of function". [I pause to comment that this substantial change over the two year period 1990-1992 is, prima facie, highly indicative of rapid degeneration for work related reasons . It is therefore somewhat difficult to understand what the learned Deputy President was seeking to spell out of the above situation in that respect.]

51. With respect, these conclusions expressed by the learned Deputy President are, in my view, patent non sequiturs. They are also, to some extent, self contradictory.

52. Common experience in personal injury litigation (and common sense) indicates that intermittent pain or discomfort of the type adverted to by no means necessarily connotes loss of function. It is also common place that degenerative backs may well be asymptomatic and give rise to no perceptible loss of function at all, until subjected to some work related insult, which then causes them to become symptomatic and precipitates an actual loss of function (cf WorkCover Corporation v McMaster (McCusker DP, 22 December 1994 (Print A87/1994), unreported) and Mitsubishi Motors Australia Ltd v Galloway (Cawthorne DP, 10 February 1995, (Print A12/1995), unreported)).

53. It was quite illogical and inappropriate to find that the Review Officer had failed to moderate an assessment on the basis of loss of function due to prior degeneration, when there was not a scintilla of evidence to justify that course and the parties had not even argued for it. Equally important, there was, at the time at which the matter came before the Tribunal, no basis of evidence upon which he could fairly have carried out such a moderation. What he did was, once again, little short of guesswork based upon his own medical philosophy; and nothing more.

54. Indeed, it is difficult, on a broader plane, to follow his overall process of reasoning. Seemingly, he argued that the only substantial evidence was of a 2% loss. Yet, somehow, even despite his points concerning the lack of weight to be attributed to the appellant's evidence (because of the appellant's poor level of credibility and the asserted irrelevance of medical opinions other than that of Mr Munyard, because of suspect case histories), he, nevertheless, accepted the existence of a 7.5% disability - on what basis will never be known.

55. I have dilated on the above aspects in some detail, because they graphically serve to illustrate the serious dangers and frailties attendant upon a failure to approach an appellate process on other than a basis of proper and well established legal principle.

56. On the one hand, there was no proper evidentiary basis either to conclude error on the part of the Review Officer, or to proceed to some alternative assessment. On the other, there was an ample basis of evidence and logic for the Review Officer to proceed as she did. To conclude error on her part, on a mere "paper" review of the situation, in the context of a case such as this, was totally in discord with well settled principle.

57. There remains only the issue related to the assessment in respect of loss of capacity to engage in sexual intercourse.

58. Here again we see the same error of approach on the part of the Tribunal.

59. The Review Officer, acutely conscious of the credibility aspects of the case, nevertheless assessed a 5% disability. On the face of it, that was a perfectly justifiable end result. Even allowing for credibility aspects, the clear evidence of back and leg disability suggested that, more probably than not, there must have been at least some modest impairment of capacity - bearing in mind the concepts discussed in Workers Rehabilitation and Compensation Corporation v Battaglia (1994) 177 LSJS 386 at 388 et seq.

60. The credibility evidence touching the actual prior degree of sexual contact between the appellant and his wife does not gainsay that simple proposition - although it does bear upon the degree of actual incapacity. In the event, the Review Officer obviously made due allowance for that and, accordingly, made only a modest assessment - which was designed to reflect objective loss of capacity - a concept which does not depend on the frequency with which the parties desired actually to engage in sexual intercourse at the relevant time.

61. Once more, there was simply no compelling basis for concluding error and interfering, as the learned Deputy President did. The assessment made by the Review Officer was, on the face of it, not a mere matter of speculation - it recognised the inevitable, practical sequelae of the other physical disabilities which plainly existed, given the limited information which she had.

62. The foregoing conclusions render it unnecessary to embark upon a consideration of the issue arising from the transitional provisions of the Act.

63. There is, in my mind, no question but that the Tribunal fell into error in failing to dispose of the appeal in accordance with settled legal principle. Indeed, I am constrained to say that, in proceeding to make the assessments upon which he embarked, the learned Deputy President, with all due respect, committed errors which were far more egregious than those asserted by him against the Review Officer.

64. In my opinion the appeal must be allowed, the order appealed against set aside and the determinations of the Review Officer reinstated. They were all fairly open to her on the evidence; and there is no compelling reason to consider that they were other than appropriate.

WILLIAMS J

65. I agree with Olsson J that there was no evidentiary basis upon which the Tribunal was entitled to substitute the assessment which it made for the conclusion which the Review Officer had reached. In my view the determinations of the Review Officer should be reinstated and for this purpose the appeal should be allowed and the order of the Tribunal should be set aside.