Kashani, F.V. v Granites of Austraia Pty Ltd
[1991] FCA 289
•29 MAY 1991
Re: FARROKH VAZIRI KASHANI
And: GRANITES OF AUSTRALIA PTY LIMITED
No. ACT G43 of 1990
FED No. 289
Worker's Compensation
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Neaves(1) and Higgins(1) JJ.
CATCHWORDS
Worker's Compensation - whether the court in an appeal from a decision of a magistrate under the Workmen's Compensation Act 1951 (A.C.T.) may review the facts - whether the appellant's claim limited to one particular incident - whether the magistrate considered the whole of the appellant's case.
HEARING
CANBERRA
#DATE 29:5:1991
Counsel for the appellant: Mr F.J. Purnell
Solicitors for the appellant: Gary Robb and Associates
Counsel for the respondent: Mr D.G.T. Nock
Solicitors for the respondent: Sly and Weigall
ORDER
1. The appeal be allowed.
2. The order of the Supreme Court be set aside and in lieu thereof, it be ordered that the appeal to the Supreme Court be allowed, that the decision of the magistrate sitting as an arbitrator under the Workmen's Compensation Act 1951 (A.C.T.) be set aside and that the matter be remitted to the Magistrates Court to be heard and decided again by an arbitrator.
3. The respondent pay the costs of the appeal and the costs of the proceedings in the Supreme Court.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from a judgment of a judge of the Supreme Court of the Australian Capital Territory. The learned Judge dismissed an appeal by Farrokh Vaziri Kashani against a determination in favour of his former employer, Granites of Australia Pty Limited, made by a magistrate sitting as an arbitrator pursuant to the Workmen's Compensation Act 1951 (A.C.T.). It is to the decision of the magistrate that we shall direct most attention.
The application filed in the Magistrates Court on behalf of Mr Kashani had given the following particulars, inter alia:-
"4. Date and place of accident, nature of work on which the applicant was engaged and nature of accident and cause of accident:
The applicant injured his right shoulder and neck region in or about the month of October 1987 when he was required to lift extremely heavy stones."
The evidence called on behalf of Mr Kashani showed that he had been employed by Granites of Australia in the installation of granite slabs on the new Parliament House. Mr Kashani was of light build and was not usually employed in heavy duties. He was employed as a nipper or tradesman's assistant. But occasionally he did assist in the lifting of slabs. The foreman, Mr Ossie Harsh, gave this evidence, inter alia:-
"Would he have been required as part of his duties to do any lifting of stones?---Very rarely. Mr Kashani not the build for heavy lifts and everything like that.
...
Mr Kashani was not a member of those gangs?---Not really. I mean, he might be walking past and say, `Hey, give us a lift' or something like that, but not normally as part of his duties."
One of the stonemasons, Mr C.A.B. Costa, gave like evidence. Speaking of an occasion after Mr Kashani received his injury, Mr Costa said:-
"THE INTERPRETER: Yes, he worked with me before I sent (sic) to Brisbane on a Saturday, when I found out he was hurt. He was supposed to be helping me but he was not able to - he says - apply force.
MR CROWE: How did you find out he was hurt.
THE INTERPRETER: Because he complained. I asked him to help me lift some stones and he said he could not."
Evidence was given that, in September and October 1987, it was necessary for the gangs of men to lift many more stones than usual. Mr Harsh gave this evidence:-
"In the period of September, early October, was there a particular problem regarding the laying of stone?---Yes, we had sort of been locked out, they had done some landscaping in the area where there was access - how can I explain it. Like, if we were going to work in that courtyard out there, and we had to travel through this courtroom to get there, they had done landscaping in there which meant that you could not bring a big vehicle through to unload the stone there. So we had to come so far then the stone was put on a trolley, trollied through and lifted off at the other end.
...
As far as the lifting of these are concerned, what system was used to lift them?---Normally you would have these suckers that you could lift them up with and place them around, but in this particular case you could not, so there would be at least four people to lift these big stones by hand and that. They would have had to have been carried I suppose maybe about 10 to 15 feet from where they came off the trolley to the actual workplace.
...
MR CROWE: How many stones had to be moved that way, do you know?---I suppose there would have been about 20 in each of the two areas where the problem was. I would say all up about 40.
And the system was that the men would lift some of the stones four men at a time lifting one stone at a time onto the trolley?---Yes.
And then the trolley would be pushed with the stone on it to - --?---Yes, they would probably put about four on the trolley and then take it down the path and take four off at the other end. Unfortunately you could not move all the stone in in one hit. You would only move in enough that you required for that day's work and the other ones they could still bring them down and stockpile them close to the job site and then move them in as they were required.
How were the stones moved into each job as required?---By hand, at least four people on them."
Mr Kashani gave evidence that on one occasion during this period he lifted a heavy stone with others, including Mr Harsh and George, who was the stonemason with whom Mr Kashani mainly worked, and that the lift was particularly difficult. He then gave this evidence:-
"Did you feel anything while you were lifting that stone?---I felt that I am out of energy. I did not feel anything I mean the pain or anything, but something maybe just out of the energy and I saw George he was completely white."
Mr Kashani also gave evidence that he went back to his ordinary work and there was an incident a few days later when he had to break up a granite stone using a sledge-hammer, an axe, a chisel and hammer.
Mr Kashani then gave this evidence:-
"Now, in doing that work, did you notice something about yourself?---After maybe a few days ... we just continue lifting the stone. ... bring to the other side ... and then after the first time that my shoulder is just bothering me. How would you describe it when you first noticed something about your shoulder?---When I was getting home and sleep at night my shoulder is really bothering me and I was ... and in the morning it was same. When I was working and ... it gets - at the beginning it was not that hurt but in few days I felt that it is really getting strong and I was hardly move after maybe a week, I was hardly move my arm."
We take this to be evidence by Mr Kashani, whose English was not good, that a few days after the incident of the lifting of the stone, he began to feel pain in his shoulder. The shoulder commenced to bother him, particularly at night. It did not hurt all that much at first but became worse.
This evidence was supported in part by Mr Costa's evidence which we have set out above and also by Mr Costa's evidence that he remembered the Saturday on which he went to Brisbane, for that was to seek a new job and it was a Saturday at the beginning of October, perhaps at the end of the first or second week.
The notes of the general practitioner, Dr Lee, are in evidence and, insofar as they are readable, they show that Dr Lee treated Mr Kashani on 26 October 1987 for a problem relating to the right deltoid and prescribed Voltaran and that, on 16 November 1987, Dr Lee prescribed treatment with ultrasound and heat. There was continuing treatment thereafter. Dr A.T. Cairns, an orthopaedic surgeon, gave evidence that he subsequently treated Mr Kashani and that Mr Kashani had a clinically apparent rotator cuff injury affecting his right shoulder. Dr Cairns, in his oral evidence, said that a rotator cuff injury can be caused by a long period of heavy work or arise from a fall or an acute strain in a separate incident. Dr Cairns said that if the injury occurred from a single incident, "it can interestingly not produce symptoms until, say, 24 to 36 hours later. The awareness of pain does not need to be immediate."
This evidence, on the face of it, disclosed a sequence of events from which an inference could be drawn on the probabilities that Mr Kashani suffered a rotator cuff injury in early October 1987 while, in the course of his employment, he was lifting or working with granite.
The case put on behalf of Granites of Australia relied upon the fact that it was not until December 1987 that a claim for compensation was made and also upon evidence given by Mr Harsh that the incident described by Mr Kashani had not occurred and that he, Mr Harsh, never lifted granite while working on the Parliament House site and did not lift any of the granite blocks with Mr Kashani in the period at the end of September, early October. This evidence contradicted that of three stonemasons including Mr Costa who each said that Mr Harsh assisted to lift the granite if assistance was required.
The magistrate accepted Mr Harsh's evidence on this point and was entitled to do so. In this appeal, Mr F.J. Purnell, counsel for Mr Kashani, submitted that the magistrate was in error in this finding. Mr Purnell pointed to a certain lack of cross-examination, a matter which we shall mention again, and to the evidence of Mr Kashani and the stonemasons to the contrary, and to what Mr Purnell said was the probability as to who was telling the truth in the matter. However, it is not the function of this Court in an appeal from the decision of a magistrate under the Workmen's Compensation Act to review the facts. We are satisfied that the finding which the magistrate made on this point was open to him on the evidence and that no error of law affected his finding, which reflected his view of the facts of the matter.
However, the difficulty we see with the matter is that the magistrate proceeded on the footing that the claim was limited to establishing the incident in which Mr Kashani alleged that he assisted Mr Harsh in the lifting of a granite slab. Because he was not satisfied that this event occurred, the magistrate dismissed the claim. The magistrate said:-
"Mr Kashani, as I say, in his application alleges that on a date in October, which is not specified in the application, and which he was not able to specify with any certainty in his evidence other than perhaps early in October, he says that he was required by Ossie to assist him to move some granite. While they are referred to as stones it would seem to be quite clear on the evidence that they were granite slabs of varying sizes.
...
So that, as I say, I am left in a situation where I need, on the application before me, to be satisfied that the applicant has established to the relevant degree that in or about the month of October 1987, while lifting extremely heavy stone, he injured his right shoulder and neck. The evidence to support that allegation I have already referred to and that is that an incident occurred with Ossie when he was lifting the stone. I do not accept Mr Kashani's version of that event. I cannot comprehend that Ossie would have allowed the situation to develop as outlined by Mr Kashani. It is clear that he suffered some sort of injury at some point in time, whether he suffered it at work, or in some other circumstance, I am not able to say, but I am certainly not satisfied that he has made out the allegation before me that it occurred in the way that he alleges and in those circumstances, there will be an award for the respondent."
Mr Kashani's claim was, however, not so limited. We have already pointed out that Mr Kashani was not aware of the pain in his shoulder immediately after any incident of lifting heavy stone but first became aware of discomfort in his shoulder principally at night a few days after the events which he had more particularly described. It was not in dispute that Mr Kashani did, from time to time, assist in the lifting of stones, for even Mr Harsh agreed with that. Nor was the evidence challenged that Mr Kashani had used a sledge-hammer to break up granite. Nor was there any evidence contradicting Mr Costa's evidence that, when on the Saturday in October he asked Mr Kashani to help him lift some stones, Mr Kashani complained about his shoulder and said that he could not help with the lifting.
The magistrate never considered the case that Mr Kashani may have suffered injury during the course of his employment whether or not he lifted a stone with Mr Harsh. This is because the magistrate thought the allegation was limited to the incident deposed to with Mr Harsh. But neither the particulars of the application nor the address of counsel for Mr Kashani to the magistrate so limited the case. The transcript of the address by counsel to the magistrate discloses clearly that a wider claim was made. There are, for example, the following passages on p 50 of the transcript of the proceedings before the magistrate:-
"MR CROWE: Yes. The case he put to your Worship is that he was lifting stones.
HIS WORSHIP: With Ossie.
MR CROWE: Well, there was lifting one stone with Ossie, but he was lifting other stones, particularly in the days after. ...
HIS WORSHIP: He makes no allegation, as I understand his evidence, of any specific incident that caused him a problem other than this one lift.
MR CROWE: No, his evidence is that at this one lift he felt something in the course of the lift. His evidence is that over the next few days he was required to continue lifting stones and that during that time the pain came on."
It seems to us that the magistrate wrongly limited his consideration of the matter to the dispute as to whether or not Mr Kashani and Mr Harsh together lifted a stone. The claim made was not so limited either in the papers or in its presentation. There was a substantial claim to be considered, whether or not the evidence that Mr Harsh was involved in the lifting of a stone was accepted. If Mr Kashani had suffered injury as the result of the work which he did with the granite slabs, it mattered not whether Mr Harsh ordered him to do the specific task or tasks or whether he did so at the request of other persons employed on the site. The case put was that Mr Kashani suffered an injury in October. His evidence to this effect was supported by that of Mr Costa. Dr Lee's notes were also confirmatory for they show that Dr Lee treated Mr Kashani for the problem on 26 October, a date which was entirely consistent with Mr Kashani's evidence that he had at first treated himself for his shoulder discomfort. Moreover, in the light of Mr Harsh's evidence that Mr Kashani was of a slight build and unsuited to lifting heavy stones, there was a substantial case that the lifting of the granite slabs put Mr Kashani at risk of the injury which he suffered. There was also the undisputed evidence, indeed evidence given by Mr Harsh himself, that September and October was a period when granite slabs had to be physically manhandled because suitable mechanical equipment could not go into the available work space.
This evidence constituted a case which the magistrate should have considered and discussed. We do not suggest that the magistrate was bound to find in favour of Mr Kashani. On the facts we have mentioned, it was open to the magistrate to accept or reject his claim. But because the magistrate did not consider this aspect of the claim, he failed in law to consider the whole matter which was before him. In these circumstances, the matter should be sent back for rehearing.
We should add, in fairness to the magistrate, that the proceedings before him seem to have been conducted on both sides with a degree of friendliness and lack of attention to detail which may have contributed to the magistrate's failure to apprehend the totality of the case. Mr Kashani did not depose in evidence-in-chief that he knew of no other incident which could have caused his rotator cuff tendonitis. Nor, in cross-examination, was it suggested to him that there had been some incident other than an incident at work which might have caused the problem. It was not put to Mr Kashani in cross-examination that he had never lifted a stone with Mr Harsh. There was only one question put to Mr Harsh in cross-examination which went to the specific incident of which Mr Kashani had given evidence. There was no significant cross-examination of the three stonemasons and it was certainly not put expressly in cross-examination of the three stonemasons that Mr Harsh had not assisted in the lifting of granite slabs. In this light, it is not surprising that the magistrate may have misapprehended what was the substance of the case put on behalf of Mr Kashani and what were all the significant issues to be determined. Cases which are conducted too briefly tend to miscarry.
The learned Judge dismissed the appeal on the ground that the magistrate was correct in limiting his consideration to the single event. His Honour said:-
"The short answer to the submission is that the particulars in the application relied upon a single incident in October 1987, there was no amendment to those particulars and no application to amend was made at the hearing."
As we have already mentioned, however, the particulars of claim that were filed were not so limited. Moreover, the transcript of the addresses, which is before this Court but was not tendered to his Honour, shows that the application was put on a broader basis by counsel for Mr Kashani. Accordingly, the ground on which his Honour disallowed the appeal falls away.
We would allow the appeal and would set aside the order of the Supreme Court. In lieu thereof, we would order that the appeal to the Supreme Court be allowed, that the decision of the magistrate sitting as an arbitrator under the Workmen's Compensation Act be set aside and that the matter be remitted to the Magistrates Court to be heard and decided again by an arbitrator. The respondent should pay the costs of the appeal and the costs of the proceedings in the Supreme Court.
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