Lonergan v Eastwill Proprietary Limited
[1988] TASSC 45
•7 September 1988
Serial No 37/1988
List “A”
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Lonergan v Eastwill Proprietary Limited [1988] TASSC 45; A37/1988
PARTIES: LONERGAN
v
EASTWILL PROPRIETARY LIMITED
FILE NO/S: FCA 40/1987
DELIVERED ON: 7 September 1988
JUDGMENT OF: Neasey, Nettlefold and Cox JJ
Judgment Number: A37/1988
Number of paragraphs: 46
Serial No 37/1988
List "A"
File No FCA 40/1987
LONERGAN v EASTWILL PROPRIETARY LIMITED AND THE NOMINAL INSURER
REASONS FOR JUDGMENT FULL COURT:
NEASEY J
NETTLEFOLD J (Dissenting)
COX J
7 September 1988
ORDERS OF THE COURT:
1. Appeal allowed.
2. Order of 10 May 1987 set aside.
3.Order that the sums paid into Court since the 6 October 1984 by the respondent, the Nominal Insurer, be paid out to the appellant.
Serial No 37/1988
List "A"
File No FCA 40/1987
LONERGAN v HASTWILL PROPRIETARY LIMITED AND THE NOMINAL INSURER
REASONS FOR JUDGMENT FULL COURT:
NEASEY J
7 September 1988
I agree with the reasons for judgment of Cox J.
List "A"
File No. FCA 40/1987
LONERGAN v EASTWILL PTY. LTD. AND THE NOMINAL INSURER
REASONS FOR JUDGMENT FULL COURT:
NETTLEFOLD J
7 September 1988
The facts are set out in the reasons for judgment of Cox J and I need not repeat them.
With respect, in my opinion the appeal should have failed because it has not been shown that the order which his Honour made was made in error.
His Honour preferred, and was entitled to prefer, the opinion of Mr Duffy. That being so, he was entitled to make the finding contained in the following passage:
"Mr Duffy's opinion which I accept was that had Mr Lonergan not been involved in either of the two incidents at work in 1978 he would in any event have suffered from the symptoms of which he has complained since October 1984."
It is necessary to make an analysis of Mr Duffy's evidence with a view to showing that that finding was justified.
Mr Duffy said that he did not believe that any symptoms related to the first incident. They were related to the second incident. He felt the symptoms were due to cervical spondylitis, a condition which existed before the second incident. Mr Duffy explained that a person can have that condition and yet be symptom free. But symptoms can develop in various parts of the body at various times. The symptoms can develop spontaneously or from trauma. In July 1984 the appellant had low back symptoms and symptoms in the legs but Mr Duffy's opinion was that those symptoms were not a result of the incident at work in August 1978. They were due to spinal spondylitis, but the spondylitis in the neck did not make a significant contribution to those lower back symptoms.
Mr Duffy said that, over the years, the appellant's condition did not improve but worsened. This worsening was due to spondylitis. He was developing symptoms from the cervical and lumbar spine areas but, despite this, was continuing at heavy work.
In July 1984 Mr Duffy formed the opinion that the symptoms in the lower back were not related to any specific trauma. At that time he felt that the appellant would have been suffering the symptoms in the cervical spine even if the accident in 1978 had not occurred. The important aspect of the appellant's history was a gradual progression of symptoms over a long period of time.
In a report of 13 September 1984 Mr Duffy expressed the opinion that the appellant then suffered from an incapacity due to spinal spondylitis that rendered him fit for sedentary work only. But Mr Duffy did not believe that he was suffering incapacity which could be attributed to injury by accident in 1978. Mr Duffy felt that there was an ongoing aggravation of symptoms over a number of years due to the work the appellant was doing. Since the relevant incident in 19 78 there had been a number of stresses and strains arising out of the appellant's work which could produce symptoms. The history was one of ongoing symptoms tending to wax and wane but progressively getting worse. Mr Duffy felt that any effect from the original incident had long since ceased to have any material influence on the appellant's continuing symptoms and disabilities.
Mr Duffy rejected the suggestion that the appellant suffered a soft tissue injury, that is, an injury to the muscles and ligaments, as a primary injury. And he does not believe that the 1978 incidents aggravated the spondylitic disease itself. Mr Duffy went on to say that the appellant would have the symptoms he has now even if the 1978 incidents had not occurred.
It is now necessary to look carefully at Mr Duffy's evidence concerning the alleged loss of sensation in part of the appellant's hand. He agreed that damage to the 7th cervical nerve could affect the grip in the hand and sensation in the hand. When he examined the appellant in July 1984 there was some evidence of diminution of sensation in the hand which could suggest some damage or pressure to the 7th cervical nerve or even the 6th cervical nerve. Mr Duffy agreed that he did not see the appellant until many months after the original onset of symptoms. He agreed that, if there were loss of sensation at the time of the 1978 incident and that loss of sensation had remained consistently throughout it would be reasonable to say that that incident was responsible for the loss of sensation. The likelihood is that, due to the progression of the spondylitis, the sensation would have been lost anyway but he cannot assert that with certainty. However, it is not the numbness in itself which is responsible for his disability. Later Mr Duffy said that the loss of sensation of itself has not and is not incapacitating him. Part of the spondylitic process is irritation of nerves.
Finally, Mr Duffy repeated that, had Mr Lonergan not been involved in either incident in 1978, in 1984 he would have been suffering similar symptoms to those about which he was then complaining.
When considering that opinion from Mr Duffy reference should be made to the following exchange between the learned trial judge and the neurosurgeon, Mr Liddell:
His Honour: "What do you say about the 1978 events causing either partially or wholly the incapacity for work you found in March 1985?"
Mr Liddell: "I must confess that I would have expected him to have remained incapacitated in the interim period. I mean certainly it is common experience that people go back to work for a while and find they don't cope and so on and then they have periods of working on and off but to undertake sustained employment for a prolonged period I find it difficult then to attribute subsequent incapacity to a former injury."
His Honour: "And is there not also the question of whether minor trauma may have occurred to him in carrying out those sorts of duties, lifting parcels, working in the shipyards and so on which in itself was responsible for at least some if not all of the symptoms you found in 1985?"
Mr Liddell: "I think that's certainly a possibility, yes."
I now turn to incorporate into this analysis of the matter the following references from the reasons for judgment of the learned trial judge concerning the history of the appellant subsequent to the second incident:
(1) For a period of approximately two years the appellant did not seek any medical or para–medical advice apart from one or two consultations with a general practitioner.
(2) As a result of advice from Mr Cull and his physiotherapist during the period he was working for TNT, he took a job as a welder with Taylor Bros, shipwrights at Battery Point. He remained in that employment for a continuous period of approximately 3½ years. Throughout that period the work he was required to do was "reasonably heavy".
(3) During the time he worked at the shipyard the pain in the appellant's neck gradually got worse until he could stand it no longer and had to resign. His Honour specifically adopted the following passage from the appellant's evidence concerning the neck pain:
"Progressively it got worse over the years. The severity depends upon what I am doing. If I lift anything the pain gets worse."
(4) The worker remained in work of quite a heavy nature for a continuous period in excess of five years. During that time his cervical spine was no doubt subjected to frequent insult. Each would be likely to be productive of symptoms. The worker's evidence that the progression of disablement was a gradual process confirms that this is what occurred ... It is a case where the worker has, over a period of five years in the employ of different employers, sustained numerous separate injuries. Each operated upon the long standing degenerative condition to produce symptoms.
Gradually the cumulative effect of each of these injuries resulted in pain of sufficient degree to produce an incapacity for work.
Having accepted the expert evidence of Mr Duffy, the learned trial judge was entitled to make the finding in (4) (above). Indeed, that finding is implicit in Mr Duffy's opinion. His Honour explained the true meaning of the word "injury" in workers compensation law during the hearing and that is the sense in which he used the term "injuries" in (4)
It should be noted that there was some qualification to his Honour's acceptance of the evidence of the appellant. I refer to the following:
(1) On page 4 of the reasons for judgment his Honour said that, "generally speaking", he found his evidence accurate. "However, his persistent belief over a long period of time that all his disabilities are due to incidents at work in 1978 has resulted in a somewhat distorted view of some of the relevant events".
(2) "I have some reservations about the reasons given by the worker for selling the shop. He admitted that it wasn't a financial success and if the work of driving and lifting supplies caused pain it seems curious that he should immediately take on a job performing exactly the same work."
(3) "Despite his evidence that initially the work was relatively light and only became arduous towards the end of the 3½ year period, I find that throughout the work he was required to do was reasonably heavy".
For these reasons his Honour was entitled to find that the respondent had discharged the burden of proof which the law imposed on it.
I find that the report by Mr Duffy set out on p2 of his Honour's reasons for judgment complied in substance with s21(1)(c) of the Act. It expressed the opinion in clear terms that "I do not believe that he is now suffering from incapacity which could be attributed to injury by accident in 1978". In addition, it described the level of incapacity and the true cause of that incapacity. Mr Duffy's report is clearly distinguishable from the certificate referred to in Byrne v Johnson, 4582 (unreported) for the reason given in the penultimate paragraph of the reasons in that case.
For the reasons given by the learned trial judge the circumstances were such as to justify termination as required by s21(1) of the Act.
The respondent has complied with s21(2). By pare. 6 of the summons which initiated the proceedings the following relief was sought:
"6. The plaintiff seeks a review by a judge of the defendant's weekly compensation payments and an order terminating the weekly compensation payments on the grounds that the respondent's present incapacity is not due to the accident in 1978 and such further orders as the court deems fit."
In the circumstances of this case the summons constitutes a sufficient reference by the employer to a judge pursuant to s21(3) and was to be dealt with as an application to review the weekly payments. The decision of the learned judge settled the real dispute between the parties and his order was one authorised by s21(5).
I note, in conclusion, that it was stated at the hearing by counsel for the appellant that "so it was agreed between counsel, your Honour, that we would not take any point on the company's failure to take proceedings in the technical form that they are set out there". The pleadings did clearly enough define and put in issue the real dispute between the parties.
The appeal should be dismissed.
List "A"
File No FCA 40/1987
LONERGAN v EASTWILL PROPRIETARY LIMITED AND THE NOMINAL INSURER
REASONS FOR JUDGMENT FULL COURT:
COX J
7 September 1988
The appellant, to whom I shall refer hereafter as "the worker", appeals against a decision upholding the respondents' termination of weekly payments to him under the Workers' Compensation Act 1927 1 "the Act") and ordering the repayment to them of the payments to the full extent of their potential liability paid by them into court. I shall refer to the first named respondent as "the employer".
The worker claimed that in the latter part of 1978 he suffered a number of accidental injuries arising out of and in the course of his employment. In respect of the claimed incapacity for work by reason of those injuries, the worker was paid weekly payments for the period from the 20 September 1978 until the 24 October 1978. Thereafter, no further weekly payments were paid until the 23 January 1984. On that date Payments recommenced and continued until the 4 March 1984. Weekly payments again resumed on the 9 April 1984 and were paid to the worker until the 6 October 1984.
On the 24 September 1984 the worker was personally served with a letter from the employers' insurance company which said, formal parts omitted:
"In accordance with Section 21(1)(c) of the Workers Compensation Act we hereby give formal notice that in ten (10) days from the date of receipt of this letter we intend to terminate payments to you of weekly compensation.
We are taking this course as the result of certification from Mr Graeme Duffy, copy of which is enclosed for your information."
Attached to that letter was a medical report from Mr Duffy addressed to the solicitors for the insurer which states, formal parts omitted:
"I have seen Mr Lonergan on 11th December, 1980, 15th January, 1982 and 19th July, 1984. It is my opinion that Mr Lonergan suffers from an incapacity due to spinal spondylitis that renders him only fit for sedentary work. I do not believe that he is now suffering incapacity which could be attributed to injury by accident in 1978."
By way of response to the medical report of Mr Duffy, the worker obtained a certificate from another medical practitioner, Dr. Heddle. Dr. Heddle certified that he disagreed with the opinion of Mr Duffy and expressed the opinion that the worker was still incapacitated for work as a result of the "accident and resultant injury he sustained in or about August 1978".
As provided for by s21(3) of the Act, the worker served that certificate on the employer whose insurers thereafter paid the weekly compensation into court until a total amount of B x 284 ($32,319) had been paid. The respondents, by a summons dated the 26 November 1984, referred the matter to the court.
The respondents also sought by their summons a review by a judge of the worker's weekly compensation payments and an order terminating weekly compensation payments on the grounds that the worker's "present incapacity" was not due to the accident in 1978, which they acknowledged by their pleadings had arisen out of and in the course of his employment and which had caused personal injury for which weekly payments had been made. Such a review is required by the relevant regulations to be made by summons to show cause supported by affidavit and there does not appear to be a machinery for paying the disputed weekly payments into court pending the outcome of the review, unlike the case of a referral of a disputed medical certificate issued pursuant to s.21(1)(c) of the Act. Several submissions were made by counsel for the worker as to the effect of non–compliance with the relevant rule in the circumstances, as to whether the document signed by Mr Duffy could be said to be a certificate as contemplated by the last mentioned paragraph, and generally as to whether an employer is limited to the procedure mentioned in that paragraph where there is an admitted incapacity, but a dispute as to whether or not that incapacity is any longer due, or any longer wholly due, to the accident in respect of which the weekly payment is being made. In view of the opinion I have formed of other aspects of the appeal, I find it unnecessary to address those submissions.
The learned trial judge assessed the worker to be a truthful witness and that, generally speaking, his evidence was accurate. However, his Honour observed that:
" ... his persistent belief over a long period of time that all his disabilities are due to incidents at work in 1978 has resulted in a somewhat distorted view of some of the relevant events."
The learned trial judge found that in 1978 the worker was employed by the employer as a ventilation plumber installing air conditioning at the Queen Alexandra Hospital. He was then aged 46 years and in excellent health without prior history of pain in any part of his spine. On the 16 August 1978 he sustained an accident at work which produced immediate pain between his shoulder blades. He did not immediately stop work, but two days later, as the pain worsened, he consulted Dr. Heddle. After a day or two off work and some physiotherapy all symptoms disappeared. On the appeal there was no real challenge to the trial judge's finding that there had been a full recovery from this first accident at work.
In September 1978 a second incident occurred and the worker sustained injury by accident arising out of and in the course of his employment. His Honour described the incident, and its sequelae, thus in his reasons for judgment:
"This time the worker was standing on a small ladder a few feet off the ground. With both arms outstretched above his head he was attempting to join two lengths of air conditioning duct by pulling them together. His head was tilted back to watch what he was doing. In this position the worker then turned his head slightly to the right to look at the joint and immediately experienced severe pain in the same place as before. The pain forced him to let go of the ducts, stumble off the ladder and awkwardly collapse into a sitting position on the floor. As on the previous occasion he did not immediately stop work but, two days later as the pain persisted he consulted Dr. Heddle. This time the pain was spread over a wider area of his back and he experienced some numbness in one arm and the thumb and forefinger of that arm.
The worker remained off work, receiving physiotherapy and other treatment, until the 24 October 1978. On his return to work the symptoms were improved but had not completely disappeared. He remained with the employer for a period of six months. He then left and, together with his wife, carried on the business of a general store keeper at Nubeena. The worker said that he left his employer because, 'he didn't want to carry injuries' and 'thought they (the symptoms) would go away in time'. The conduct of the business at Nubeena involved a twice weekly journey to Hobart to obtain supplies. The plaintiff said the driving, bending and lifting involved in this work caused pain in his neck to such an extent that after 18 months he sold the shop. Following the sale he worked for 4 months delivering parcels in the Hobart area on a contract basis for T.N.T. Limited. I have some reservations about the reasons given by the worker for selling the shop. He admitted that it was not a financial success and if the work of driving and lifting supplies caused pain it seems curious that he should immediately take on a job performing exactly the same work.
He said that during the period he was driving for T.N.T. Limited his symptoms worsened and he consulted a physiotherapist and Dr. Cull. This was the first time he had sought medical or pare–medical advice for his symptoms apart from one or two consultations with a general practitioner since the end of 1978; a period of approximately two years. As a result of advice from Dr. Cull and his physiotherapist he abandoned the carrying of freight from T.N.T. Limited and took a job as a welder with Taylor Bros., shipwrights of Battery Point. He remained in this employment for a continuous period of approximately 3½ years. Despite his evidence that initially, the work was relatively light and only became arduous towards the end of the 3½ year period, I find that throughout, the work he was required to do was reasonably heavy.
…
During his period of employment with Taylor Bros. he suffered two accidents. In the first, he twisted his knee while stepping over a boat railing, with such severity that the cartilage was torn. An operation was necessary and he was unable to work for three months. In the second, he and another employee were carrying a large gas cylinder when it slipped and he injured his lower lumbar spine. On this occasion he was off work for a week. The plaintiff says, and I accept, that during the time he worked at the shipyard the pain in his neck gradually got worse until he could stand it no longer and had to resign. Of the pain in his neck he said:
'Progressively, it got worse over the years. The severity depends upon what I am doing. If I lift anything the pain gets worse.'
On the 23 January 1984 shortly after his resignation from Taylor Bros. and after a period on sickness benefits, the employer or its insurers recommenced making weekly payments to the worker. Apart from a short break during March 1984 these payments continued until 6 October 1984 when Mr Duffy certified that the plaintiff's incapacity was no longer due to any injury in 1978.
Since October 1984 the worker has started at a number of jobs all of which involved skilled or semiskilled manual labour. He said that he was unable to continue with any of them because of severe pain in his neck and an associated weakness of grip in his left hand. I accept his evidence with respect to this claimed disability and find that since the day payments ceased to be made to him, he has been either partially or wholly incapacitated from working."
The issue before his Honour was not whether such incapacity existed, but whether it was due to any accident at work in 1978. Before us it was confined in effect to whether or not his Honour should have found a causal connection between it and the injury in September 1978. At the trial the employer called Mr Duffy, a neurosurgeon, to give evidence. The worker called Mr Liddell, who is also a neurosurgeon, and Dr Heddle, a fellow of the Royal College of Surgeons and a specialist in sports medicine. His Honour noted that it was common ground between the medical practitioners that prior to the events in 1978 the worker's cervical and lumbar spine showed moderately severe degenerative changes, particularly at C45 and to a lesser extent C56 and C67. This condition is known as cervical spondylitis. It was accepted by all practitioners that the worker was asymptomatic prior to 1978.
In his reasons for judgment his Honour said:
"Mr Duffy saw the worker on the 11 December 1980, 15 January 1982 and 19 July 1984. Dr. Heddle saw him on several occasions between shortly after the first incident in August 1978 and the 10 October 1979. He did not see him again until the 24 February 1984. Thereafter he has been consulted by the worker on many occasions. Mr Liddell only saw him once, on the 29 March 1985.
When Dr. Heddle examined the worker shortly after the second incident he detected, by pin prick tests, some loss of sensation in the thumb and forefinger of the left hand. All three medical witnesses agreed that this indicated interference with the 6th or 7th cervical nerve. I find that this interference was caused by the second incident at work. However, I accept the opinion of Mr Duffy that the resultant numbness in the thumb and forefinger is not and has not been, causative of any incapacity for work. That incapacity arises from pain and restriction of movement of the cervical spine."
The learned trial judge then dealt with and rejected Dr Heddle's opinion that the principal cause of the disabling pain in the neck was damage to the soft tissue in the vicinity of the cervical spine. His Honour continued:
"Both Mr Duffy and Mr Liddell were of the opinion that the pre–existing degenerative condition of the cervical spine was such that it was liable to become symptomatic upon being subjected to even minor trauma. In accordance with their opinions I find that the trauma sustained in each of the incidents at work was responsible for the onset of symptoms which immediately followed each event. However, as demonstrated by the evidence of the worker, apart from a short period immediately after the second incident, those symptoms were not sufficiently severe to incapacitate him from working. The worker remained in work of quite a heavy nature for a continuous period in excess of 5 years. During that time his cervical spine was no doubt subjected to frequent insult. Each would be likely to be productive of symptoms. The worker's evidence that the progression of disablement was a gradual process confirms that this is what occurred. This is not a case of an exacerbation of an injury. It is a case where the worker has, over a period of five years in the employ of different employers, sustained numerous separate injuries. Each operated upon the long standing degenerative condition to produce symptoms. Gradually, the cumulative effect of each of these injuries resulted in pain of sufficient degree to produce an incapacity for work.
I therefore find that incapacity for work in October 1984 and thereafter was due to the degenerative condition being subjected to the trauma involved in carrying out work after the end of 1978 and not to any accidental injury arising out of and in the course of his employment with the employer."
I think it is apparent from these specific primary findings and from the general acceptance of the truthfulness and of the accuracy of the worker's evidence that the following inferences should have been drawn by the learned trial judge:
(1)The worker suffered injury by accident arising out of and in the course of his employment with the employer in September 1978.
(2)This took the form of a traumatic insult to a pre–existing asymptomatic degenerative condition in his cervical spine.
(3) It caused total, albeit temporary, incapacity for work.
(4)The worker resumed his employment duties, but continued to suffer pain and organic disability from which he has never fully recovered.
(5)The injuries he sustained, after a period of convalescence in 1978, reached a stage where they were not of themselves productive of sufficiently painful symptoms to prevent him from working and procuring his pre–in jury earnings and did not of themselves produce economic loss.
(6)However, within six months of the accident in September 1978, the worker left his position with the employer having encountered "problems with lifting pipes into position" (Appeal Book 105) and because he "wanted to move out of the air conditioning jobs because of the heavy lifting … and severe pain" he was still experiencing (Appeal Book 240).
(7)After working as a store keeper at Nubeena for about 18 months he abandoned this work because the pain in his neck was very severe and was aggravated by his having to drive frequently to and from Hobart.
(8) He gave up his next work as a driver for TNT for the same reason.
(9)In combination with other non–compensable injuries sustained after September 1978, whether from trauma or the natural progression of a disease, his injuries "resulted in pain of sufficient degree to produce an incapacity for work".
With respect, I am of the view that the learned trial judge's finding that this "incapacity for work in October 1984 and thereafter was due to the degenerative condition being subjected to the trauma involved in carrying out work after the end of 1978 and not to any accidental injury arising out of and in the course of his employment with the employer" was not justified and is inconsistent with his immediately preceding finding that 'gradually the cumulative effect of each of these injuries resulted in pain of sufficient degree to produce an incapacity for work" (my emphasis). There should have been a finding that the injury in 1978 did contribute to the incapacity which was achieved by about January 1984 when the weekly payments were resumed and which has remained total for all practical purposes thereafter. Certainly it was not the sole cause and it is difficult to say, on the medical evidence, what ratio it bears to other factors which contributed to the attaining of that condition, but it was a contributing cause.
In my respectful opinion, the worker was not shown to have no entitlement under the Act. The evidence showed that the accident in September 1978 caused symptoms sufficiently severe to bring about the worker's resignation from the industry in which he had hitherto been employed. There was no direct evidence of any additional trauma unrelated to that employment being sustained by him before his resignation, nor any evidence from which such a finding might properly have been inferred. Although prior to his resignation he sustained no economic loss, the proper inference from the evidence accepted by the learned trial judge was, in my view, that he had sustained in the accident a physical impairment which, while not productive of immediate economic loss, nonetheless diminished his earning capacity. Accordingly, he suffered as a result a partial incapacity for work.
In Arnotts Snack Products Pty Ltd v Yacob (1985) 51 ALJR 215, the justices of the High Court emphasised that:
" ... the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work." (Per Mason, Wilson, Deane and Dawson JJ at p218).
They rejected the proposition that it consisted only of physical incapacity which resulted in actual economic loss. Brennan J at 220 said:
"Where a physical capacity has been exercised by a worker in doing his work, however, an impairment of that physical capacity would usually occasion some diminution of his earning capacity. In competition in the labour market with others whose capacities are unimpaired, the injured worker is disadvantaged: his physical capacity is less than the capacity of an uninjured worker. A diminution in earning capacity is not necessarily – disproved if the injured worker gains employment at the same remuneration as he would have received if he had not been injured, for diminution of earning capacity is not necessarily productive at all times of diminished earnings."
In Thompson v Armstrong and Royse Pty Ltd (1950) 81 CLR 585, at p596, Latham CJ said:
"A worker may have a continuing right to compensation but may not be entitled at a particular time to payment of compensation (McCann v. Scottish Co–operative Laundry Association Ltd. (1936) 154 L.T. 503 at 505). Thus the right to payment of compensation will remain dormant until the incapacity prevents or diminishes the earning of wages (Everett v. Associated Equipment Co. Ltd. (1947) 2 All E.R. 132)."
In this case the partial incapacity of the worker attributable to the accident effected a diminution in the worker's capacity to earn wages, productive of actual loss by the time, when in combination with other non–compensable injuries, it resulted in pain so great that he could not work at all. In these circumstances the words of Jordan CJ in Aitkin v Goodyear Tyre and Rubber Co (Aust) Ltd (1946) 46 SR (NSW) 20 at p25, seem apposite:
" ... where a worker, who has been partially incapacitated for work by an employment injury, is fortunate enough, in spite of this, to earn for a time his pre–in jury wage, and, whilst this state of things exists, becomes totally incapacitated for work by a non–employment injury, he is entitled to workers' compensation for such loss of capacity for work as is referable to his employment injury."
See also Ward v Corrimal–Balgownie Collieries Ltd (1938) 61 CLR 114 at p130 – 131, where Latham CJ said:
"In other cases there may already be partial incapacity resulting from an injury, and other causes, quite independent of and not associated with the injury in any way, may afterwards bring about further or total incapacity. In such a case the worker is still entitled to compensation, but it is only the incapacity which is the result of the injury (and not the added incapacity which is the result of other causes) for which there is any liability under the Act."
In my opinion the worker was entitled to receive a weekly payment on the basis of partial incapacity of a not insubstantial kind. It was for the respondents who made the original application to the court, pleading that the worker's acknowledged incapacity was not due to the accident in 1978, to demonstrate the extent of the worker's incapacity resultant upon that accident. In my opinion the evidence does not enable us to make any such assessment, nor do I consider that the learned trial judge, who saw and heard the witnesses, is really in any better position than this Court, for this aspect of the case was not really addressed at the trial. As some 3½ years have gone by since the termination of payments, and no matter how small the proper weekly payment is found to be it will continue until what remains unreceived by him of the sum of $32,319 is exhausted (provided the worker lives so long and remains incapacitated), an order that the sum paid into court be paid out now to the worker would in any event seem to do justice to the case.
In my opinion the appeal should be allowed and an order made that the sums paid into court be paid to the worker.
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