Strauss v Unisure Pty Ltd (University of Adelaide) No. Scgrg-99-1377, Scgrg-98-1377 Judgment No. S281

STRAUSS v UNISURE PTY LTD (UNIVERSITY OF ADELAIDE)
[1999] SASC 281

Full Court: Olsson, Mullighan and Nyland JJ

OLSSON J. I agree with the reasons published by Nyland J and the conclusion to which she has come in this matter.
MULLIGHAN J. The employment and medical history of the appellant and the issues on this appeal have been discussed by Nyland J in her reasons for judgment.
It appears from the material before us that on 22nd July 1994 a Review Officer determined, pursuant to s43 of the Worker’s Rehabilitation and Compensation Act 1986, that the appellant be assessed at 30% of 50% of the relevant prescribed sum on account of the disability of her right shoulder. Under the section and Schedule 3 of the Act, the assessment was for non-economic loss on the basis of 30% of total impairment of the right shoulder. On 30th March 1994 her entitlement to future weekly payments was redeemed pursuant to s42 of the Act on the basis of 17.5 hours per week for the period of 39 weeks until she proposed to retire. It appears that this redemption was not made on the basis of total incapacity for employment but upon the hours which she would have worked had the right shoulder disability not occurred and her impending retirement. The basis of the s43 determination is not clear but it seems to have been accepted that the use of the right shoulder was not totally impaired. I think it is fair to say that the starting point is that her incapacity arising out of that condition was assessed to be partial at that time. She retained a residual working capacity as was found by the Review Officer and is evidenced by her work at the Queen Elizabeth Hospital.
The Review Officer accepted the evidence of the appellant and found that she was fit to perform the duties at the Queen Elizabeth Hospital. Some point is sought to be made from the fact that this work was undertaken as part of a rehabilitation programme, namely that it was not proper work and despite undertaking the work, the appellant was, in fact, totally incapacitated from employment. The Review Officer found to the contrary. She found that before the injury to her left shoulder, the appellant “had some capacity to sell her labour despite her right shoulder disability”. Indeed, that is precisely what she was doing at the Hospital. The Workers Compensation Appeal Tribunal found that the position at the Hospital, “although real, was part of a rehabilitation programme”. In my view, it is not to the point that the work was arranged through a rehabilitation programme. It was none the less work and undertaken by discharging a working capacity. If she had been totally incapacitated from

employment, she would not have been able to work and would not have worked.
The scheme of the Act involves both compensation and rehabilitation and the latter may involve resumption of work on a restricted basis as to either the extent or nature of work or both. None the less, it is work and, depending upon the circumstances, may reflect the utilisation of a residual working capacity. The fact that someone is in a rehabilitation programme, per se, does not deny the existence of a working capacity. In the present circumstances, her work at the Hospital was genuine work and indicates that she was not totally incapacitated.
The appellant ceased work on 5th April 1994 and continued to see Dr Maguire, her treating specialist, having experienced pain and discomfort in the left shoulder. On 11th March 1996 she indicated by a letter written by her solicitor to the respondent that she was willing and able to return to work with duties suitable to her ongoing disability. The appellant continued to suffer symptoms in her left shoulder. She alleged incapacity to work by reason of the condition in that shoulder and sought compensation. That claim was denied and went to review.
The question is whether at the time the appellant was totally incapacitated by reason of the disability in the right shoulder. If so, it is said, the disability in the left shoulder would be irrelevant because total incapacity already existed and had been compensated, although, as has been seen, she was not compensated on the basis of total incapacity for work.
The Review Officer found that on the basis of the opinions of Dr Maguire and the fact that she had undergone surgery on her left shoulder, she did have an incapacity arising from disability in her left shoulder. She concluded:
“The employer raised the issued of whether she was totally incapacitated by her right shoulder disability and therefore had no entitlements for further weekly payments because of the commutation for that disability. The argument was that she had only one lot of labour to sell and if she was already totally incapacitated by her right compensable disability, she could not be further compensated by weekly payments. The contemporaneous medical opinion of Dr Maguire though reported on 19 June, 1995, seems to confirm her total incapacity from her right shoulder disability saying she was ‘incapable of working by virtue of her right shoulder problem which has been settled’. I note at the time that she tendered her resignation, it was because she was incapable of doing the duties that were then on offer from the employer. She was capable of doing the duties at the QEH which had been withdrawn. Indeed, Dr Maguire said she could ‘battle on and do them’, that is, alternative duties, although ultimately she would reach the stage where she was unable to continue. There is no evidence about when that would be if she were to continue to be offered the work she had been doing at the QEH, or its like.’

Also, she found that her attempt to return to work on 11th March was genuine.

It is necessary to consider the evidence before the Review Officer.
I begin with Dr Maguire which was given in the form of reports. By the time of the determination in March 1994, Dr Maguire had expressed the opinion that:
“It is not possible further to rehabilitate Mrs Strauss such that she could return to what I would call gainful employment. If the current duties be maintained for a year or two she could probably battle on and do them, but she seems to maintain that the telephone cleaning is beyond her. Bearing in mind that she will be 53 next birthday and that she has a significant disability I believe that it would be wise for her to retire.
She has a 60% loss of function of her right shoulder, but some of this must have existed prior to her reporting it disabled.”
It will be noticed that this is not the language of total incapacity. Dr Maguire was referring to her right shoulder and it is clear from his report that in making the comments about retirement he was having regard to other matters as well as her right shoulder disability, such as her age, working hours as she had to get up at 4.00 am to commence work at 5.00 am, that her right shoulder condition would deteriorate and the fact that she did not like cleaning telephones. He did not say she was totally incapacitated for employment.
In his report of 19th June 1995, he addressed the problem which had developed in the left shoulder. He concluded that the condition of the right arm from the rupture of the rotator cuff caused excessive use of the left shoulder and thereby a disability in the left shoulder which he said needed to be investigated. It was for that reason that he certified her as being unable to work. He added that “she was incapable of working by virtue of her right shoulder problem which has been settled.”
On 25th August 1995 he reported as to his findings upon operating on the left shoulder on 10th August 1995. He found a very tight subacromial space with an eroded area and a full depth tear in the supra spinatus. He expressed the opinion that she had this condition for a long time without symptoms and settled her earlier claim before symptoms developed.
It may be seen that at no time did Dr Maguire express the opinion that the appellant was totally incapacitated by reason of the condition of her right shoulder. I do not think it is correct to interpret the remark in his report of 19th June 1995 in such a way. It appears that he simply expressed the view that at the time of her resignation and the earlier determination, she was incapable of working by reason of her right shoulder condition in the circumstances which have earlier been mentioned.
The general medical practitioner of the appellant, Dr Edwardes, reported on 7th May 1993 that he expected the appellant would never be able to resume her previous duties as a cleaner but if all went well in about six months the [right] shoulder may have stabilised and she may resume some form of employment “where the right arm is not required to do anything strenuous, nor required to do any manual work above chest height”. He went on to say that her prognosis was good. Dr Guirgnis, an orthopaedic surgeon, reported on 31st October 1995 that upon considering the disability in both shoulders, the appellant was partially incapacitated for work. He went on to say that her duties should not involve working above shoulder level, lifting away from her body or repetitive type work.
When the appellant gave evidence before a differently constituted Tribunal on an application to extend time to appeal on 28th May 1996, she described the work which she did at the Hospital. She was able to discharge the duties of going through tablets and books and checking tablets of patients. She complained that a reason why she had not been able to work as a cleaner was that she did not sleep at night due to her right shoulder and had difficulty in getting up at 4.00 am. She said that she could manage her duties, but her health was being affected. Later in her evidence she said that she was willing to work in suitable employment and that she was capable of doing something. She repeated, later in her evidence, that she could do something and that a problem with the work as a cleaner was that she was one of only two cleaners and she did not take time off because of the additional burden which would be cast on the other cleaner. She said that she could not have done that job after the operation on the left shoulder because of the disability in both shoulders. Later, again, she gave evidence about what she could do at the Hospital, including the duties she was given which was mainly clerical work. She said she could do light work at the time when her solicitor wrote the letter seeking work.
None of this evidence could justify a finding that the appellant was totally incapacitated by reason of the right shoulder disability.
The evidence justified the findings of the Review Officer and there was no basis for the Tribunal to reach any different findings on the evidence. I have not detected any error on the part of the Review Officer in the fact-finding exercise or in her application of the facts as found to the matters in issue.
The Review Officer found that although the appellant resigned from her employment with the respondent, she attempted to revive “mutuality” by the letter of 11th March 1996. She made a determination that she had an incapacity arising from her left shoulder disability which was compensable and that at times of the surgery on the left shoulder and in post operative periods she was totally incapacitated for employment and entitled to weekly payments of income maintenance. She further determined that at other times she was partially incapacitated for employment by reason of the left shoulder disability and entitled to weekly payments of income maintenance, interest and costs.
The learned Deputy President, who constituted the Tribunal, concluded that the appellant was not entitled to income maintenance due to the left shoulder disability because she was earlier totally incapacitated by reason of the disability in the right shoulder. The basis of that conclusion seems to be a misunderstanding of the opinions expressed by Dr Maguire, and the other evidence, and his own incorrect view of what constitutes a capacity for employment.
It is to be remembered that this was an appeal against the determination of a Review Officer who had also made specific findings of fact. If the appeal was to succeed, it had to be shown that the Review Officer erred in making those findings or in the application of them. The learned Deputy President said:
“In one sense, every person even a paraplegic, has a capacity for some type of employment. If a person is able to engage in, and discharge, the ordinary burdens of every day living, that person also has a theoretical ‘capacity for employment’ in the sense that some tasks can be postulated within the physical capacity of that person unless they are a complete cripple. There are always jobs that are real, but of an extremely light nature, such as are used in the rehabilitative process as an exercise in ‘work hardening’. These jobs can be done even by a severely disabled person.
However, the ability or capacity to perform these jobs is not the test of being able to ‘sell labour’ in any meaningful sense. These must be an element of examining the market into which it is reasonable to expect the injured worker to sell labour. That has received endorsement in partial incapacity cases such as Arnotts Products Proprietary Limited v Yacob (1984/850 155 CLR 171 at pp175-177-178-179.”
It is not clear to me what point the learned Deputy President was trying to make by these observations. Whether a particular disabled worker has an earning capacity is a question of fact to be resolved by the evidence in the particular case and at the relevant time. I expect that many persons suffering paraplegia exercise a working capacity to a substantial extent to the point undertaking full time employment. Here, the Review Officer found that the appellant did have a residual earning capacity, despite the right shoulder disability which was lost in full at certain stages and in part at other times, in consequence of the left shoulder disability. That being so, she was entitled to compensation unless given work which she could undertake consistent with her disability. Arnotts Snack Products Pty Ltd v Yacob establishes the proposition that “incapacity for work” means “a physical incapacity for actually doing work, resulting from injury (or disease) and that ... compensation is awarded for that incapacity where it reduces the employee’s ability to sell his labour in the open market ...”: P177. The majority of the Court, Mason, Wilson, Deane and Dawson JJ said at p178:
“It follows 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 in which the employee was working or might reasonably be expected to work.”
It is difficult to see how the examples of a paraplegic or someone who can “discharge the ordinary burdens of every day living” assist in the resolution of the point in issue. What must be determined is whether the disability is work related and, if so, whether it reduces the worker’s ability to sell his labour. The Review Officer decided those matters on the evidence, in favour of the appellant and correctly so in my view. Her residual earning capacity in consequence of the right shoulder disability was lost, totally at times, and partially at others, in consequence of the left shoulder disability in the relevant sense because it reduced her ability to sell her labour in the open market.
In my view, the evidence established that if she had not suffered any disability in the left shoulder, she would have been able to undertake work which did not involve other than simple and easy tasks with the right arm. It is to be expected that such work is available.
I do not think the so-called “odd lot” principle applies or assists in the present circumstances. As is well known, it has its origin in Cardiff Corporation v Hall [1911] 1 KB 1009. In the course of his reasons for judgment, Fletcher Moulton LJ discussed proof of the factual issue of whether in a case of partial incapacity work is available to the injured worker. He said, at pp1020-1021:
“There can therefore be no general principle, i.e., a principle true in all cases, that in the case of partial incapacity the employer is required not only to shew what work the workman can do but also to shew that he can get such work. But on the other hand I am also of opinion that there are cases in which the onus of shewing that suitable work can in fact be obtained does fall upon the employer who claims that the incapacity of the workman is only partial. If the accident has left the workman so injured that he is incapable of becoming an ordinary workman of average capacity in any well-known branch of the labour market - if in other words the capacities for work left to him fit him only for special uses and do not, so to speak, make his powers of labour a merchantable article in some of the well-known lines of the labour market, I think it is incumbent on the employer to shew that such special employment can in fact be obtained by him. If I might be allowed to use such an undignified phrase I should say that if the accident leaves the workman’s labour in the position of an ‘odd lot’ in the labour market, the employer must shew that a customer can be found who will take it. For in such a case we are not in truth dealing with fluctuations of the labour market at all. We are dealing with the chance of some one being found who can and will avail himself of the special residue of powers which has been left in the workman, and, seeing that it is the result of the accident that the workman has been made dependent on the finding of such a special employer, it is right that those who are liable to pay to him compensation for his loss of earning power should only be allowed to take credit for his partial capacity for work if they can shew that it can actually be made productive of remuneration to him.”
The argument of the respondent is, in effect, that the application of that principle leads to the conclusion that a partially incapacitated worker should be regarded as totally incapacitated if unable to undertake work in the labour market. This is not the correct use of the principle. It operates on the basis that the worker is partially incapacitated for work. If the degree and nature of the incapacity is such that the worker could only undertake special employment, then the onus shifts to the employer to show that such employment is available. If not, the partial incapacity is to be regarded for the purposes of compensation as total incapacity. In my view, the “odd lot” approach is of no assistance in the resolution of any issue in the present case. The appellant was able to undertake work that did not involve activity at, or above, shoulder level. That is not special employment in the relevant sense. It is employment of a common type. There was no evidence adduced by the respondent as to what employment of this nature existed in the University of Adelaide or elsewhere, but the evidence of the employment at the Hospital and in the laboratory establishes that such employment does exist and it is reasonable to infer that it is relatively common.
Of course, there may be circumstances in which total incapacity may exist although the disabled worker retains “enough physical capacity to enable him to do particular work of a special kind not forming one of the ordinary recognised avenues of employment: Bavcevic v The Commonwealth (1957) 98 CLR 296 at p303. In that context totally disabled means physically incapacitated from ever earning by work any part of the worker’s livelihood which is when capacity for earning has gone except for the chance of obtaining special employment of an unusual kind: Wicks v Union Steamship Company of New Zealand Ltd (1933) 50 CLR 328 at p338.
As has been mentioned, the evidence could not justify a finding that the appellant fell within that class of incapacity by reason of the right shoulder disability. The work for which the appellant was suited, eg basic clerical work and laboratory work which she had undertaken until it was withdrawn from her, could not be described as “special employment of an unusual kind”.

It was contended that the Review Officer erred in not addressing the “odd lot” approach. I detect no error in that regard because the appellant could not be so regarded.
Although it is not necessary to decide the point, I think there is another reason why the “odd lot” principle in Cardiff Corporation v Hall has no, or possibly only little, application. It is concerned with the circumstances in which a partially incapacitated worker must be compensated as if totally incapacitated. S35 of the Act provides for those circumstances. S35(2)(b) provides that for the first two years of the period of incapacity, partial incapacity for work is treated as total incapacity unless the Workcover Corporation establishes that suitable employment is reasonably available to the worker. That onus is cast regardless of the nature and extent of the incapacity. After the end of the first two years of the period of incapacity, partial incapacity will be regarded as total incapacity in the circumstances mentioned in s35(2)(c) which need not be mentioned for present purposes. These provisions are not concerned with the determination of total incapacity, but only with the circumstances in which those who are partially incapacitated will be compensated as if totally incapacitated.
The Review Officer found that although the appellant resigned from her employment on 11th March 1996, she revived mutuality. She said at p4 of her determination:
“I find that her offer to return to work to ‘suitable duties’ was a genuine one. There were duties that the employer had offered her before her resignation that she was able to perform. Her employer knew what those duties were. She resigned when she was persuaded that she could not do the different duties offered in March, 1994. I accept the worker as a witness of credit. I accept her evidence in relation to these matters. I find that she was and is ready, willing and able to resume certain suitable duties with her employer and is entitled to be paid weekly payments of income maintenance from 11 March, 1996, and continuing unless or until work for which she is fit is made available to her.”
This is a finding in her favour with respect to what has been described as mutuality. As I understand the concept, it means that a partially incapacitated worker cannot rely upon the provisions of s35(2) of the Act, which have been mentioned, if the worker has put himself or herself outside of the offer, or the reach of an offer, of employment.
In so far as mutuality is relevant, the finding of the Review Officer accords with the evidence. Those other findings also accord with the evidence. No evidence was led by the respondent to support a conclusion that the appellant was totally incapacitated by reason of the right shoulder disability or that no work was available to her that could lead to the conclusion that even though partially incapacitated, she should be regarded as totally incapacitated in accordance with the principles earlier discussed. The evidence disclosed that after the manifestation of the right shoulder disability, she continued to have the capacity to work as a laboratory assistant and in other tasks at the Hospital. I must say that it is difficult to imagine that an employer such as the University of Adelaide could not have found suitable light duties for her if minded to do so.
I do not think any of the criticisms by the Tribunal of the decisions of the Review Officer are justified. The Tribunal was wrong to regard the letter of 11th March 1994 as a “form letter dispatched simply for the sake of the form” or that it was contrary to known medical opinion of the treating orthopaedic surgeon. There is simply no basis for those conclusions. As I have said, the finding by the Review Officer that mutuality, so far as it is relevant, was restored is justified and there was no basis to conclude otherwise.
I would allow the appeal and restore the determination of the Review Officer.

NYLAND J. This is an appeal from an order of the Workers Compensation Appeal Tribunal. The Tribunal upheld an appeal and set aside the determination of a review officer that the appellant was entitled to weekly payments of income maintenance arising out of a left shoulder disability for which she had claimed compensation on 20 April 1995. The issue which arises for determination on this appeal is whether the appellant was totally or partially incapacitated at the time of making the claim with respect to the left shoulder.
The appellant was born on 4 November 1941. At the date of the proceedings before the review officer she was aged about 56 years. The appellant’s work experience is set out in an affidavit filed in the course of these proceedings. The appellant went out to work after completing Grade 7 at primary school. She obtained a job at Holden Automotive where she remained for approximately three years. She married in 1958 and commenced a family shortly thereafter. In about 1967 she returned to work in a full-time position as a factory worker at Aunger & Fleming where she remained for approximately 12 years. She commenced working at the University of Adelaide in about 1979 as a part-time cleaner and remained so employed for approximately 15 years. She has no formal training.
During 1992 the appellant sustained an injury to her right shoulder in the course of her employment with the university. Her general practitioner Dr Edwards referred her to Dr Maguire. Dr Maguire undertook exploratory surgery on the right shoulder on 7 April 1993. This revealed a massive tear to her rotator cuff. She continued to receive medical treatment throughout 1993. In the month of March 1994 she was pursuing a rehabilitation program. As part of that program she was working at the Queen Elizabeth Hospital surgery department primarily engaged in checking the stocks of tablets. She was subsequently informed by the rehabilitation officer that these duties were no longer available and she would need to return to work at the university. This job consisted of wiping down telephones. She explained to the rehabilitation officer that those duties were not within her capacity as she could not do the circular motions required.
She again consulted Dr Maguire and described the nature of the work which she was required to perform. Dr Maguire advised her that her physical condition would slowly get worse and that she would experience more pain even with the work that she was performing at the Queen Elizabeth Hospital. She said that he told her there was no point going on with her employment and that she ought to resign. She said that as a consequence of that advice she approached her employer and advised that she wished to resign her employment. She was told that the university would pay her wages up until December 1994. This was a surprise to her as she unaware of her entitlement to continuing payments.
On or about 30 March 1994, the appellant received a determination letter which, in accordance with s43 of the Workers Rehabilitation and Compensation Act 1986, assessed a lump sum for 30% loss of shoulder function in the sum of $13,845 and a sum representing commutation in accordance with s42 in the sum of $7,645.95, making a total payment of $21,490.95. She subsequently sought legal advice and initiated an application for review. This was later withdrawn. The appellant last worked on 5 April 1994. She continued seeing Dr Maguire. She experienced pain and discomfort in the left shoulder from about the month of September 1994 which she said was a consequence of her need to favour the right shoulder. Dr Maguire performed an operation on the left shoulder on 10 August 1995. On 11 March 1996, the appellant’s solicitors wrote to the claims manager of the respondent advising that the appellant was ready, willing and able to return to duties suitable to her ongoing disability.
The appellant gave evidence at the hearing before the review officer. She elaborated on matters relevant to her employment and was cross-examined as to those matters. The medical reports of Dr Maguire dated 13 April 1993, 28 April 1993, 24 March 1994, 19 June 1995 and 25 August 1995 were provided to the review officer. In addition, there was a medical report of Dr Edwards dated 7 May 1993 and a report of Dr N Guirguis dated 31 October 1995. None of the medical practitioners gave evidence with respect to their reports.
The review officer found:
“From the worker’s evidence that she would be fit to perform the duties at the Queen Elizabeth Hospital that she was undertaking as part of the rehabilitation program were such duties to be made available to her ... that she undertook those duties despite the difficulties that she was having with her right shoulder and therefore she had some capacity to sell her labour despite her right shoulder disability. She is now incapacitated as well by her left shoulder compensable disability and her capacity for the selling of her labour is reduced somewhat because of that.”
The review officer also went on to find that:
“The [appellant’s] left shoulder compensable disability has led to her partial incapacity for employment ... At the time that she tendered her resignation, it was because she was incapable of doing the duties that were then on offer from the employer. She was capable of doing the duties at the QEH which had been withdrawn. Indeed, Dr Maguire said she could ‘battle on and do them’, that is, alternative duties, although ultimately she would reach the stage where she was unable to continue. There is no evidence about when that would be if she were to continue to be offered the work she had been doing at the QEH, or its like.”
The review officer further found that her offer to return to work suitable duties as contained in the letter of 11 March 1996 was genuine. The review officer also accepted the appellant as a witness of credit.
The learned deputy president on the hearing of the appeal disagreed with the conclusions reached by the review officer. He considered that it was only in a “highly artificial sense that it could be said that (the appellant) then was anything other than totally incapacitated”.
The deputy president found:
“1.     The disability to the right shoulder rendered the worker factually totally incapacitated for work in April 1994.
2.     The disability I the left shoulder could not, in law, generate an entitlement to s35 payments - that entitlement having arisen from the right shoulder producing total disability.
3.     In the event that the right shoulder disability was partial and the left shoulder disability partial, mutuality had been breached by the worker’s resignation in 1994, and had never been restored and was not capable of being restored, by the letters of 11 March 1996 and 20 December 1996.”
He therefore upheld the appeal and set aside the determination of the review officer.
On the hearing of this appeal, Mr Kourakis QC, who appeared for the appellant, submitted that the deputy president had erred in law in interfering with the primary finding of fact made by the review officer. Mr Kourakis submitted there was evidence which enabled the review officer to find that the appellant was not totally incapacitated for work as a result of her right shoulder disability either at the time she tendered her resignation in April 1994 or when she endeavoured to restore mutuality in 1996.
The thrust of Mr Kourakis’ submissions was that the appellant, at the time of ceasing work was performing a real job, ie the job at the Queen Elizabeth Hospital, and there was nothing in the medical reports to suggest otherwise. Although the deputy president had seized upon the statement in one of Dr Maguire’s reports that the appellant was “incapable of working by virtue of her right shoulder problem which had been settled”. Mr Kourakis submitted that this comment had been made in the context of her cleaning job and that Dr Guirguis had expressed the opinion that the appellant was only partially incapacitated for employment even after the left shoulder operation. On that basis therefore, the review officer had correctly found that the appellant had a capacity for employment in April 1994 which had been diminished or lost as a result of her left shoulder injury. It was therefore inappropriate for the deputy president to substitute his opinion for that of the review officer.
Mr Martin, who appeared for the respondent on the hearing of the appeal, submitted, however, that the review officer had erred as to the assessment as to capacity. The review officer had made her assessment on the basis that the fact that there was something which the appellant was capable of doing was sufficient in order to make a finding as to capacity. In this case, however, the appellant had been physically incapable of doing any work other than an unrealistic job which had been provided to her as part of her rehabilitation program. She had no prospects of obtaining other work in the labour force on account of her background and skills. A finding that she was able to “battle on” and do “rehabilitation duties”, did not signify a residual capacity for work. Mr Martin submitted that the evidence in this case established that the appellant came within the definition of an “odd lot”, which did not appear to have been considered by the review officer.
In Bavcevic v The Commonwealth (1957) 98 CLR 296, the High Court considered the concept of “odd lot” in the context of a labourer suffering from a serious back injury. The worker had been provided with a medical certificate which included the expression “work not involving heavy lifting or much stooping”. It was not contested that his physical condition did not of itself completely incapacitate him from the activities of all employment but it was maintained that, having regard to the fact that he was a labouring man and had no special capacities which enabled him to get employment in other vocations, he was totally incapacitated. The court said, per Dixon CJ and Kitto J (at 303):
“It has long been settled that total incapacity may exist although the injured man retains enough physical capacity to enable him to do particular work of a special kind not forming one of the ordinary recognised avenues of employment. In this Court the position was summarised thus - ‘permanently and totally disabled, an expression which, in our opinion, means physically incapacitated from ever earning by work any part of his livelihood. This condition is satisfied when capacity for earning has gone except for the chance of obtaining special employment of an unusual kind’: Wicks v Union Steamship Co of New Zealand Ltd (1933) 50 CLR 328 at 338. If that be the case the disablement is regarded as total unless and until the employer can show that such special employment is available.”
In this case the Tribunal had before it a woman in her fifties who had only reached Grade 7 at school. In the period of about 15 years prior to the injury to her right shoulder she had worked primarily as a cleaner, which consisted of reasonably heavy manual work. Her right shoulder injury was such that medical evidence concluded that she was in a state by March 1994 where she was unable to do any cleaning or significant manual work. She was not even able to carry out the proposed employment of cleaning the telephone handsets. As Mr Martin pointed out, the comment in Dr Maguire’s report that “she could battle on with her duties” was made in the context of the rehabilitation job at the Queen Elizabeth Hospital.
Mr Martin referred to the evidence of the appellant given before the review officer:
“Q.... And I gather from what you said to my friend, basically even if you didn’t have your left shoulder injury, because of your right shoulder you wouldn’t be able to do any work now. Is that the situation.
A.I suppose I could do something. I don’t know. There would be a lot of jobs I can’t do, but I don’t know.
Q. Well, you couldn’t do any work - - -
A. At the moment, no. I can’t do anything at the moment.
Q...... No, not at the moment, but when you left you couldn’t do work and at that stage you only had your right shoulder problem. Isn’t that so.
A.Yes, but at that time I could do something. I was working down at the Queen Elizabeth Hospital and I could do the job down there. I was sitting next to a doctor while he was dissecting rats and I just weighed the parts and wrote them in a book. I could do something after I had my right done, but you told me to go back to work so I went back to work.
Q...... Did you.
A.I did go back to work.
Q...... Before you resigned, yes.
A.Yes.
Q...... Yes.
A.And you took me out of the Queen Elizabeth Hospital because you said there was no more work available there for me, which there was.
Q...... Well, which you think there was.
A.There was, they were wondering why you took me out of there.
MR DOWNS: I have no further questions.
A...... And I had to go back to wiping telephones.”
And at p80:
“Q.... Mrs Strauss, going back to December 1997, so that’s before your more recent operation, do you say that reflects the position that you would have been willing to go back to some work with the University of Adelaide that was within your capabilities.
A.Yes, I suppose I could have gone back and done something.
Q...... Do you think you could have done the work that you were doing at the QEH back in December last year.
A.Yes. I mean, anybody could. I was just assisting someone, sitting next to them, counting some tablets and putting them in the book.”
Mr Martin submitted that the above evidence of the appellant as to her capacity amounted to the classic description of someone who was an “odd lot”. The uncontested evidence was that all the appellant could do in the end was specific rehabilitation jobs. For example, in Wemyss Coal Co Ltd v Walker (1929) BWCC XXII at 366, Lord Buckmaster said at p373:
“The arbitrator, before whom the matter came, found that in the circumstances the respondent was in fact capable of doing certain work of a limited character; he might be engaged on a timekeeper’s job, provided that it involved no other duties than that of timekeeping, or a job in a lamp cabin and a motorman’s job if it did not involve leaving the motor to handle hutches; he might also obtain a job at the larger collieries if it could be done sitting. Those jobs the learned arbitrator found were all of them jobs that were ordinary posts in the working of a colliery. None the less, upon those facts he decided that the man was entitled to compensation as if totally incapacitated, since he was fit only for a special and limited class of work which he would have no chance of obtaining in the competitive labour market.” (emphasis added)
Mr Kourakis endeavoured to distinguish the “odd lot” cases on the basis that the principle was one which related to the onus of proof relevant to the level of impairment for a particular injury. In any event the issue had not been dealt with either by the review officer or the learned deputy president.
Mr Kourakis referred to the judgment of Fletcher Moulton LJ in Cardiff Corporation v Hall (1911) 1 KB 1009 wherein the court considered the issue of a worker who was unable to resume his occupation of driver but was able to perform light work although he had been unsuccessful in obtaining such work.
Fletcher Moulton LJ said (at 1020-1021):
“But on the other hand I am also of the opinion that there are cases in which the onus of shewing that suitable work can in fact be obtained does fall upon the employer who claims that the incapacity of the workman is only partial. If the accident has left the workman so injured that he is incapable of becoming an ordinary workman of average capacity in any well-known branch of the labour market - if in other words the capacities for work left to him fit him only for special uses and do not, so to speak, make his powers of labour a merchantable article in some of the well-known lines of the labour market, I think it is incumbent on the employer to shew that such special employment can in fact be obtained by him. If I might be allowed to use such an undignified phrase I should say that if the accident leaves the workman’s labour in the position of an ‘odd lot’ in the labour market, the employer must shew that a customer can be found who will take it. For in such a case we are not in truth dealing with fluctuations of the labour market at all. We are dealing with the chance of some one being found who can and will avail himself of the special residue of powers which has been left in the workman, and, seeing that it is the result of the accident that the workman has been made dependent on the finding of such a special employer, it is right that those who are liable to pay to him compensation for his loss of earning power should only be allowed to take credit for his partial capacity for work if they can shew that it can actually be made productive of remuneration to him.”

Mr Kourakis submitted therefore that the “odd lot” principle presumes a partial capacity which shifts the evidential onus such that there is only a reduction from total payments to something less if the employer satisfies the onus that the remaining “odd lot”, which is nonetheless still some capacity, can in fact be utilised.
In my opinion, however, the principle is relevant to the circumstances of this case. It is a general principle underlying the assessment of lost earning capacity. It does not take into account unrealistic physical capacity as if that is going to be represented in wages. Although the issue was not specifically articulated by the learned deputy president it is obvious from his reasons for judgment that this was the process of reasoning by which he reached his conclusion. He said in his judgment:
“In one sense, every person even a paraplegic, has a capacity for some type of employment. If a person is able to engage in, and discharge the ordinary burdens of every day living, that person also has a theoretical ‘capacity for employment’ in the sense that some tasks can be postulated within the physical capacity of that person - unless they are a complete cripple. There are always jobs that are real, but of an extremely light nature, such as are used in the rehabilitative process as an exercise in ‘work hardening’. These jobs can be done even by a severely disabled person.
However, the ability or capacity to perform these jobs is not the test of being able to ‘sell labour’ in any meaningful sense. There must be an element of examining the market into which it is reasonable to expect the injured worker to sell labour. That has received endorsement in partial incapacity cases such as Arnotts Snack Products Pty Ltd v Yacob (1984/85) 155 CLR 171 at 175-177-179.”
As stated in para 10 hereof, he then went on to conclude that it was “only in a highly artificial sense that it could be said that Mrs Strauss then was anything other than totally incapacitated”.
In my opinion, the review officer incorrectly approached the method of assessment of the appellant’s capacity. The deputy president correctly concluded that at the time that the appellant’s left shoulder injury occurred she was already totally incapacitated by the effects of her right shoulder injury. She was therefore not entitled to weekly payments with respect to her left shoulder. Furthermore, even if she had been partially incapacitated at the time of the left shoulder injury, it would seem clear that she was totally incapacitated once the left shoulder injury occurred. On that basis the issue of mutuality does not arise.
In my opinion the appeal should be dismissed.

[1999] SASC 281

23 July 1999