Sullivan v The Hobart City Council & Anor

[1999] TASSC 101

[1999] TASSC 101

CITATION:             Sullivan v Hobart City Council and MMI Insurance Limited [1999]
  TASSC 101

PARTIES:  SULLIVAN, Geoffrey Dale
  v
  HOBART CITY COUNCIL, The
  MMI INSURANCE LIMITED

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Appellate
FILE NO/S:  LCA 104/1998
DELIVERED ON:  30 September 1999
DELIVERED AT:  Hobart
HEARING DATE/S:  22 June 1999
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Workers Compensation - Proceedings to obtain compensation - Notice of accident - Effect of inaccuracy in or failure to give notice - Excuses for failure or inaccuracy - Other reasonable cause - Ignorance of cause of morbid condition of gradual onset.

Workers Rehabilitation and Compensation Act 1988 (Tas), ss32, 33 and 37.

Wilkins v St Giles Society A81/1995, referred to.

Aust Dig Workers Compensation [132]

Workers Compensation - Diseases - Industrial diseases: diseases contracted by gradual process - Tasmania - Underlying osteoarthritis made disablingly symptomatic by work duties.

Pasminco Australia Ltd v Fairchild 57/1991, followed.

Aust Dig Workers Compensation [67]

REPRESENTATION:

Counsel:
             Applicant:  J E Green
             Respondent:  I Hallett
Solicitors:
             Appellant:  John Green LL.B
             Respondent:  Page Seager

Judgment ID Number:  [1999] TASSC 101
Number of paragraphs:  17

Serial No 101/1999
File No LCA 104/1998

GEOFFREY DALE SULLIVAN v THE HOBART CITY COUNCIL
and MMI INSURANCE LIMITED

REASONS FOR JUDGMENT  COX CJ

30 September 1999

1. The appellant (hereinafter called "the worker") sought workers compensation benefits in respect of a condition identified as osteoarthritis to both his knees which the worker, in his claim form, stated he first noticed in about December 1996.  He was employed as a labourer by the first named respondent, performing duties concerned with garbage collection and kerbside recycling collection.  These duties, the learned Commissioner found, involved the necessity, on a considerable number of occasions each day, of climbing onto and jumping up and down from the collection truck.  The evidence suggests that the worker, on average, had to mount and dismount from the truck some 700 times each day, and to run to and from it to collect, empty and return the bins and other receptacles left on the kerbside.  By late November 1997, he claimed that the pain in his knees was too great to bear and on 5 December 1997 he resigned his employment with the first named respondent.  On 23 December 1997, he received a medical certificate that he was unfit for work and had presented with "probable osteoarthritis to both knees".  He thereupon claimed workers compensation, identifying the occurrence in answer to the question "What happened" in these terms:

"Knees became sore ¾ progressively became sorer ¾ caused by jumping off the back rubbish and recyclable trucks."

The learned Commissioner dismissed the claim, first on the basis that the worker had not given notice of the injury as soon as practicable and that in any event, the injury (disease) did not arise out of and in the course of his employment.  With respect to the question of notice, the worker, by his counsel, specifically sought a dispensation pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s37, but the learned Commissioner, in his reasons for dismissing the claim, did not address that issue. In substance, the worker appeals on the basis that the learned Commissioner erred in law in respect of all three issues and submits that in consequence I should exercise my powers under the Act, s63(2) and the Rules of the Supreme Court, O76, r54, to draw all inferences of fact which might have been drawn from the evidence before the learned Commissioner and to give judgment accordingly.

1. The learned Commissioner summarised the evidence before him as follows:

"The worker described how he commenced employment in May 1995 and first became aware of leg soreness after approximately 12 months.  He says that he would notice the soreness more during rest breaks during the day when he would 'stiffen up bit'.  He says from the time that he first became aware of this condition he complained to his supervisors identified as Webster, Patmore and Dillon.  He also says that he complained to work mates over this time.  He says by November 1997 the pain was getting too much to bear and accordingly he went to the employer's occupational health and safety officer, Ms Eadie on the 26 November 1997 and stated to her that he had sore knees and he sought advice as to getting something done about them.  He suggested in his evidence that as a result of his complaint as to sore legs he was provided with light duties at various times in the last six months that he worked.  He says that he resigned on the 5 December 1997 as he was fed up with the pain in his legs and he intended to return to Melbourne to seek other employment.  He said that when he went to Commonwealth Employment Service to make an application for benefits, he was directed by their staff to seek medical attention in relation to his complaint as to his legs.  Accordingly he saw a Dr Dobie on the 23 December 1997 and received a medical certificate and on the same day submitted that medical certificate with a claim for compensation to his employer, (WI and W2).  He says that he was not aware of matters concerning workers compensation before he saw Dr Dobie.

In cross examination he conceded that not withstanding his general complaint in relation to knee stiffness he had no time off work in respect of that condition prior to his resignation.  A number of other instances in which he has made claims for compensation were put to the worker and although reluctant he did acknowledge the majority of those claims.  He was also reluctant to identify incident reports that he had submitted on a number of occasions during his employment relating to enquiries.  Although agreeing that one particular period in which he was provided with light duties in July and August 1997 related to one of these other claims for compensation in respect of heel and foot pain suffered by him, he still maintains that other instances of light duties were provided to him in respect of his knees.  He said on these occasions he would complain to his supervisors that he needed a rest from the trucks due to sore legs.  He conceded however that he did not relate such complaints to any injury or condition having occurred at work.  He agreed in relation to the meeting with Ms Eadie that he did not specifically allege to her that his knee problems were work caused although he believed she ought to have inferred this due to the nature of their respective employment.  He agreed that he was advised by Ms Eadie at this meeting that he ought see a doctor and that if his alleged condition was in any way related to his employment then he would need to report that to his employer.  He says he did not go to a doctor at that time because he believed the condition of his knees could be explained by stiffness and that it would resolve with time especially when he resigned his employment but that his condition did not resolve.  He says that in fact the condition of his knees is worse now than it was when he gave up work especially in relation to his right knee.  He provided details of employment he has sought by door knocking various employers and he denied the ability to return to his pre injury work.  He conceded however that he might have been able to do the lighter style of duties with that employer such as at the Municipal Tip but is not prepared to accept that he could do that on a full time basis.  He also stated that when he gave his notice of resignation to his supervisor Mr Dillon he stated that he had to give up work or he would become a cripple by the time he was fifty.  He conceded that comments he made to work mates about his sore knees might not have included a reference that such a condition was caused or related to his work.  He says that he was nicknamed by Mr Patmore, 'dickey knee', and he believes that this was due to the common knowledge of his knee condition and he denied that there could be some other basis of such a nick name.

Ms K Eadie, gave evidence concerning the meeting she had with worker on the 26 November 1997 when he came to her office and asked what could be done about his knees.  He complained that his knees were aching and that he wanted surgery or some other action taken to fix his knees.  She advised him to seek medical advice and to give notice should the doctor believe that there was any link between his knee condition and his employment.  She stated that she could not recall that the worker gave any reason as to the cause of the pain that had developed in his knees.

In cross examination she gave details of 7 claims for compensation made by the worker over a period June 1996 - October 1997.  She also stated that light duties were provided for the worker during the period June to August 1997 and that these related to a claim for compensation in relation to a foot/ankle injury that had been made by the worker at about that time.  She said that there was no record of the provision of any light duties in respect of the workers knee injuries or any claims for compensation in that regard other than the incident report (E2), in which the worker suffered a grazed knee when he slipped on gravel on 22 September 1997.  A note that she made at the time of her discussions on the 26 November 1997 was tended E3.

In re-examination she conceded that she was alerted of the possibility of some form of claim for compensation by her discussion with the worker on the 26 November 1997 by the mere fact that due to her employment position when workers come to her about injuries or similar complaints she accepted the likelihood that a claim might eventuate.

Mr David Hoggett, who worked with the worker gave evidence of the worker mentioning once that he had hurt his knees.  He said this complaint was in early 1997 but he could not recall any details but merely that the worker complained his knees were sore.  Another work colleague Mr K Bester gave evidence of witnessing on one occasion the worker telling Mr Patmore that his knees were playing up.  He says that the worker had the nickname 'dickey knee' and it was his assumption that this was the because of the condition of the worker's knees.

In cross examination Mr Bester says that on the occasion that the complaint was made to Mr Patmore the worker did mention that his knees were sore due to the need to jump off the truck and save for that incident there was one other occasion when the worker complained to him about having sore knees and that the employer would not give him a rest from working on the truck.  He agreed that he had known the worker since they were both teenagers and that he now is a next door neighbour of the worker.  He also outlined that they had over the years played football together and although initially not recalling giving a statement in which he said that the worker complained of a sore leg which he thought to include his knee during that period he did concede that he may well have given that information previously.  Another workmate Mr M Pross stated that the worker was all the time complaining about his knees and sore feet.  He said the worker complained about having sore knees everyday that they worked together on the truck and that the worker made that complaint to him and to the foreman.

Mr John Mills, a consultant orthopaedic surgeon gave evidence of having first examined the worker on the 22 January 1998 at which time he complained about the pain in his right and left knee which he attributed to his employment.  His diagnosis was that of osteoarthritis of the patellofemoral joints in his knees.  He said that development of such condition had occurred earlier than would be expected normally and he could identify no cause for this early development of the condition.  He described the condition as one of wearing out of the articular surfaces within the knees and accordingly employment was not the cause of the development of this condition but in all the circumstances the nature of the workers employment could be said to have precipitated the symptoms of the condition at an earlier stage than otherwise would have been expected.  In cross examination he conceded that the development of osteoarthritis can be part of the normal ageing process and some people develop the condition and the symptoms from such condition sooner than others.  He conceded that the symptoms could well have occurred without the input of the work duties but in this case due to the early onset he believed those work duties to be relevant as to the triggering of those symptoms.  He agreed that this was not a case in which an asymptomatic condition had been rendered symptomatic by a specific incident or trauma.  He says that if the cause of the development of the condition in the workers case was that there was some particular flaw in the articular surfaces within his knees then it would be inevitable he would have suffered the symptoms at some time.  He acknowledged in his report of 27 April 1998 (E4) that he has assumed that there was m the worker's case a problem with his articular surfaces and that symptoms would have eventually occurred but that work duties had been the triggering factor.

Dr R Roffe, a general practitioner gave evidence of first examining the worker on the 5 January 1998 at which time he gave a 12 month history of suffering painful knees.  He says the history he took did not indicate any specific injury but rather the description of the worker's duties of running considerable distance each day and jumping up and down off trucks was to him relevant to the development of this pain.  He also believes that the onset of the symptoms of the condition was the activity at work.  His report was tended as W8.

In cross examination he also agreed that the underlying condition of osteoarthritis which he accepted was suffered by the worker would have become symptomatic at some time but once again he thought the work duties were the trigger of those symptoms becoming apparent when they did.  He agreed however that those work duties did not cause the condition itself.  He conceded that it was unusual that the worker's condition would continue to deteriorate subsequent to terminating his work duties.

For the employer Mr G Webster who was the worker supervisor gave evidence that he could recall the worker complaining on occasions about sore feet or ankles but had no specific recollection of any complaints concerning knee problems.  He said on occasions the worker was provided with alternate work because he wanted a rest from working on the garbage collection truck, however he says that this alteration of duties was on his recollection as a result of those complaints concerning sore feet and ankles and not in relation to knee problem.  He confirmed that the worker did have a nickname 'dickey knee' but he believed that this was due to the worker's similarities to a certain television character.  He says that the worker told him he was resigning and said merely that he had had enough of the work he was doing and wished to take up an opportunity to work in Melbourne.

Mr S Dillon, the manager of the environmental division of the Hobart City Council gave evidence of his knowledge of the worker during the time of his employment.  He says that he was aware that on one occasion the worker did submit a incident report m relation to a grazed knee when he fell and in relation to this injury alternate duties were provided for one or two days.  He says he is not aware of any other knee problems suffered by the worker.  He says that he interviewed the worker when he resigned in December 1997 and when asked why he was leaving he said the worker indicated that he had a job to go to in Victoria and felt that his future prospects were better there than with the Hobart City Council.  He said that in this regard there had been considerable uncertainty amongst the workers with the employer due to the ongoing debate and Government policies concerning Council amalgamation.  He says that during this interview the worker made no reference to any injury nor in particular needing to give up work due to the condition of his knees.  He also confirmed that the worker's nickname was 'dickey knee' and was in his view a reference to his similarities to the television character."

1. The learned Commissioner having recited this evidence, observed:

"The start point in determining this referral is to decide if the worker has suffered an injury or alternatively an injury which is a disease.  From the description of how the condition osteoarthritis, which I am satisfied is the condition suffered by the worker, developed I do not accept that it can be classified as an injury simpliciter.  …  The evidence is that the condition was present when he commenced his employment and it was the duties of his employment that merely triggered or in some way initiated symptoms of that condition.  It is clear that the condition was one of gradual development and Mr Mills seemed to accept that there was some form of defect in the worker's articular surfaces in his knee joints that pre-disposed him to the development of osteoarthritis at an earlier time in life that would normally be expected.  Given this description of a gradual development, and mindful of the decisions of the Supreme Court in Attorney General v Smith A35/1994 and on appeal A118/1994 I find that the condition of osteoarthritis suffered by the worker is an injury which is a disease."

1. Having determined that "the worker's condition of osteoarthritis is a disease", the learned Commissioner moved on to determine whether or not notice of such injury was given as soon as practicable and if it was, whether such disease "satisfies the test of causation provided by section 25(1)(b) of the Act".  He said:

"Notice of injury cannot be given until the injury is suffered. The Act provides that an injury which is a disease is suffered at a date determined by application of section 3(5) being the time at which the worker was incapacitated either partially or totally by such disease or if that date could not be determined at the date which the worker was first certified as such by a medical practitioner. The worker was first certified as incapacitated by reason of his osteoarthritic condition on the 23 December 1997 however on the evidence I am satisfied that he was incapacitated by reason of that condition at an earlier date. The High Court in Arnotts Snack Products Pty Ltd v Yacob 155 CLR. 171 clearly establishes that the term incapacity for work means a physical incapacity for actually doing work resulting from the injury (or disease), being such incapacity that reduces the employee's ability to sell his labour in the open market as opposed to any necessary reduction in post injury earnings. In this case although the worker continued to perform duties of his employment and did not take any days off work as a result of the condition of his knees, on his evidence the symptoms of pain and discomfort in his knees required him on occasions to seek relief from the obligation of performing duties on the garbage trucks during 1997. Although this provision of alternate duties was not formally documented, his supervisor Mr Webster, agreed that on occasions such duties were provided for the worker who specifically sought alternate work and a rest from having to work on the trucks. … There is clear evidence from the worker that at times during 1997 he felt unable to physically perform the duties of his employment being working the garbage trucks, and accordingly he was incapacitated for that work. His inability to do that work would be able to be described as a partially [sic] incapacity. I am not satisfied however that the worker gave any notice of such injury (disease) during this period up to the date of his resignation as I do not accept his evidence that he told Mr Webster or any other of his supervisors with whom he came into regular contact that he was suffering this condition in respect of his knees and that such condition had been caused or made symptomatic by the performance of his duties on the garbage trucks. The worker was not an impressive witness and his statement to the Tribunal of a lack of knowledge of details concerning Workers Compensation claims was clearly an attempt to mislead the Tribunal, given the very clear evidence of numerous claims previously made by him which eventually he grudgingly conceded. Given this reservation concerning the worker I am not prepared to accept his evidence where it conflicts with others. On behalf of the worker it is submitted that notice was given to Ms Eadie on the 26 November 1997. However on the evidence I am not satisfied that the conversation between Ms Eadie and the worker on that date contained the necessary information either expressly or by implication to satisfy the requirement of notification within the Section 33(1)(d). Although it is clear the worker complained about his alleged painful knees at that time and that being a disease of gradual development he was not required to give a date of injury as such, the worker did not at that time provide any information as to the alleged cause of his condition. The worker at this time was encouraged to seek advice from a medical practitioner in order to determine whether there was any work causation and he was also asked whether he had given notice of his alleged injury and he responded that he had. As noted previously I do not accept that any notification within the meaning of the Act had been given prior to this date to any authorised person. The worker then resigned his employment on the 5 December 1997 he says because he was unable to continue due to the symptoms of pain and discomfort in his knees. Clearly by this stage his incapacity was well established. I do not accept that at this time the worker made any comments to Mr Dillon about there being any physical reason for his resignation and I specifically reject the worker's evidence in that regards. The worker lodged a claim for compensation on the 24 December 1997 and this was the first notice of injury as required by Section 32(1)(a). Given my previous determination that the worker had in fact been partially incapacitated at some stage prior to this date and at very latest the 5 December 1997, I am not satisfied that notice was given as soon as practicable. Accordingly by application of Section 32 of the Act the worker is not entitled to receive compensation in respect of this claim."

1. The Act, s32(1) provides:

"32 ¾ (1)   Subject to this Act, a person shall not be entitled to compensation under this Act for an injury to a worker unless ¾

(a)notice of the injury has, as soon as practicable after the occurrence of the injury and before the worker has voluntarily left the employment in which he suffered the injury, been given to the employer of the worker or a person referred to in section 33(1)(b); and

(b)a claim for compensation with respect to the injury has been made within 6 months after the date of the occurrence of the injury, or where the injury results in the death of the worker, within 6 months after the date of the death."

Section 33 deals with the form of the notice of injury and provides:

"33 ¾ (1)   Notice of an injury ¾

(a)may be given orally or in writing;

(b)shall be given to ¾

(i)   the employer of the worker or, if there is more than one employer, to one of the employers of the worker or;

(ii)  a person under whose supervision the worker is employed; or

(iii) a person designated for the purpose by the employer or;

(iv) a person having authority or apparently having authority to receive such a notice on behalf of the employer;

(c)shall include the name and address of the person injured; and

(d)shall include the nature of the injury, the date on which the injury occurred, and the cause of the injury.

1. It was conceded by the respondents that the members of staff mentioned by the learned Commissioner in his summary of their evidence, including Ms Eadie, were persons within the purview of par(b).  It is clear that the worker identified himself as the person injured and that the first named respondent would know his address and there was no suggestion in argument that par(c) was not complied with.  It was submitted on behalf of the respondents, however, that the worker had failed to comply with par(d).  It was soon conceded, however, that in the case of an injury which is a disease of gradual development, it is quite impractical to expect the worker to identify the date on which that injury occurred.  The submission then resolved itself into one that the worker failed to give notice of the nature of the injury and of its cause.

1. In Wilkins v St Giles Society A81/1995, the carer of a disabled person claimed compensation for "sexual harassment", subsequently refined to "stress due to sexual harassment".  This had arisen through the patient having spoken to her suggestively and, while naked in her presence, having touched himself in a sexual way.  She claimed that his behaviour was so objectionable that she suffered symptoms of severe anxiety, including headaches and nausea.  Notice had been given, she claimed, by her telling the patient that she could not cope with his behaviour, that it made her uncomfortable and that she needed a holiday.  To a supervisor she said that the patient had been sexually harassing her.  Zeeman J, who heard the appeal from the Commissioner, held that the appellant had not expressly conveyed the nature of the injury allegedly suffered by her, the date on which it occurred or the cause thereof.  The members of the Full Court who heard the appeal from Zeeman J, all agreed with this assessment of the situation.  Wright J, with whose judgment I agreed, said in respect of the requirement to give notice of the nature of the injury (2) that it:

"… need not be stated with the precision of a medical diagnosis but, on the other hand, the essential kind, quality or characteristic of the injury must be disclosed.  It will suffice to describe the injury in terms of manifest symptoms so long as the precipitating event is also identified." 

Later he said (at 4 - 5):

"The Act plainly requires actual notice to one of the persons referred to in s33(1)(b) accompanied by sufficient detail for the employer to identify the causative event, the injurious consequence thereof and the date on which it occurred. What will suffice to fulfil these requirements will obviously vary from case to case."

1. Ms Eadie noted her attendance on the worker on 26 November 1997 in these terms:

"Geoff came to see me this pm re his knees.  He wanted to know if the could 'get surgery' or something for his knees as they are very painful.  He mentioned that he had had previous claims for knees, but I can't find anything on the file for a knee injury.  I informed him he should find a GP to see regularly as he doesn't have a doctor and that medical evidence is needed to support any work related claim.  I asked if he had reported his sore knees and he advised he had ¾ 'they all know about my knees'.  I also advised that a green incident form is required on days when he feels most pain.  May need further investigation ¾ when/if claim lodged."

In her evidence, Ms Eadie, who was the Safety and Rehabilitation Officer of the first named respondent, stated that she was aware of the kind of work that the worker did for the Council and that it involved jumping off and on garbage trucks.  She also acknowledged that when any employee visited her mentioning any bodily ailment, she always had in the back of her mind "that it is going to be workers compensation" and that in her mind when she was talking to the worker, this was notification to her of a potential worker's compensation claim.

1. Having regard to this evidence, there is a strong case for the view that the employer was given adequate notice that the worker was suffering from a morbid condition of such severity as to disable him from carrying out his normal, strenuous duties, that his condition had existed for some time prior to the medical certificate and at the very latest by the date of his resignation on 5 December 1997 and that it might well prove to be caused by those duties. In these circumstances, the view was certainly open to the learned Commissioner that the worker had given the requisite notice, but his failure to form that view does not necessarily constitute an error of law justifying this Court's intervention. However, what does, in my view, constitute such an error is the failure to advert to the requirement that such notice needs to be given, not on the day on which the injury is suffered (if that day can be identified), but "as soon as practicable after the occurrence of the injury and before the worker has voluntarily left the employment in which he suffered the injury" (s32(1)(a)) and the failure to address the circumstances, adverted to in s37, in which failure to give notice in accordance with s32(1)(a) may be excused. Adequate notice was clearly given on 23 December 1997 when the worker, having seen Dr Dobie, lodged a claim. True, he had by that stage voluntarily left the first named respondent's employ, but his failure to give notice before leaving that employ could well have been occasioned by "reasonable cause" within the meaning of s37(1)(a). Section 37(1) provides:

"37 ¾ (1) The failure to give notice of injury in accordance with section 32(1)(a) or any defect or inaccuracy in such a notice does not affect the worker's right to claim compensation under this Act if ¾

(a)the failure or defect or inaccuracy was occasioned by mistake, absence from the State of the worker or other reasonable cause; and

(b)it is found in proceedings relating to the worker's right to claim compensation under this Act that the employer's defence is not prejudiced by reason of the failure."

1. In Wilkins v St Giles Society (supra), Wright J addressed a submission that it may often be difficult for a worker to comply with the provisions of the Act, s33 if he or she is unaware of the seriousness of the injury and said (at 4):

"It may be noted however that the requirement of s32(1)(a) is that the notice be given 'as soon as practicable' after the occurrence of the injury and in such circumstances there would be considerable scope for the injured worker to contend in any relevant proceedings that it had not been practicable to give the requisite notice until the injury had manifested symptoms which could reasonably lead to the conclusion that a claim for compensation was possible, or in the case of a disease, that it had progressed sufficiently to enable medical diagnosis.

1. Counsel for the worker specifically drew the learned Commissioner's attention to the Act, s37, submitted that no prejudice was alleged by the respondent and went on to submit that it was not until the worker had seen Social Security after his resignation and had seen a doctor "that it was clear in his own mind that the pain in his knee was definitely caused by his work and that he had a compensable claim". In these circumstances the failure of the learned Commissioner to address that issue amounted, in my view, to an error of law which vitiated the judgment. If he did address the issue but omitted to record the fact that he had found adversely to the worker, then his failure to expose his reasons for that finding would clearly be an error of law in any event. (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Burgess v Umina Park Homes for the Aged (1993) 2 Tas R 246; Barnett v Gulf Industries (1999) TASSC 4).

1. Counsel for the respondent submitted that the onus lay on the worker to show that the respondent's defence was not prejudiced by the failure to give the notice until 23 December 1997.  That is certainly so, but the burden is not a heavy one and in the absence of any evidence of prejudice to the respondent and in the circumstances of the case, including the short period of time after the termination of his employment before appropriate notice was given by the worker, a finding that no prejudice existed would have been fully justified.  In Haywood v Westleigh Colliery Company Ltd [1915] AC 540 at 546, Lord Atkinson put the position thus:

"The statute requires that notice should be served, and if it is not served the party who should have served it is in default; he must excuse that default, and I think the burden of proof in the first instance rests upon him.  But if he gives evidence from which it may be reasonably inferred that the employer has not been prejudiced, I think then the burden of proof is shifted from his shoulders on to the shoulders of his employer, and if the employer is in a position to prove notwithstanding this evidence that he is prejudiced in some particular matters he is bound to do so.  If he omits to do that, ¾ as he has omitted to do it in this case, ¾ then my impression is that it is not open to him to conjecture, as he has endeavoured to do through his counsel here, that he might have done this, or he might have done that, or he might have done something else that would have rebutted the evidence which has been given on behalf of the workman.  He abstained from doing that, and then he says 'By reason of those conjectures which I have not supported you are to come to the conclusion that I was prejudiced.'"

See generally C P Mills' Workers Compensation (New South Wales), 2nd ed at 469 and Anderson and Rendit Workers Compensation Victoria, 3rd ed at 1091.

1. Success on these points of law, however, will not avail the worker if he failed in any event as the learned Commissioner held, to establish that his injury arose out of and in the course of his employment and that his employment contributed to it to a substantial degree.  In respect of these findings the reasons for judgment show that the learned Commissioner misdirected himself as to the condition constituting the injury.  Having stated that he was "not satisfied that the disease of osteoarthritis arose out of and in the course of his employment and also that his employment was a substantial contributing factor", he said "in considering this case the relevant disease is the osteoarthritis not the episode of symptoms of that disease".  With respect this is quite contrary to the view taken by the Full Court is Pasminco Australia v Fairchild, No A57/1991.  In that case (at 4) I observed in respect of a worker significantly disabled by bouts of tinea the originating cause of which underlying condition was unknown:

"Although the worker for some time had a condition clinically known as 'tinea' which falls within the definition of 'disease' in s3(1), no question of an entitlement in respect of it could arise in the abstract. What gives rise to an entitlement is the suffering by him in his employment of an injury which arose out of and in the course of that employment. In this case the evidence shows that the injury suffered was a bout of tinea attended by symptoms of such severity as to incapacitate him for work. In my view, such condition clearly falls within the meaning of disease as defined in the Act and is deemed to have occurred when he became incapacitated for work."

(At 5) I said:

"Until he was disabled by the symptoms of tinea, the respondent did not, within the meaning of the Act, 'suffer' any injury and whatever disorder or defect to which he was subject prior thereto was not a disease which he suffered. When disability eventuated he was shown, on the evidence, to be suffering from a morbid condition which could itself properly be described as a disease and for which he was entitled to compensation if he could establish that it arose out of and in the course of his employment and that it was a condition to which his employment contributed to a substantial degree. If it improved and the respondent, being subjected to the same working conditions, had suffered a further outbreak whether of greater or less severity which again disabled him, he would again have suffered an injury which could properly be described as a disease even though it may have taken a slightly different form or level of seriousness. As it is the condition at the time of disablement which must be classified as a disease or not, reference to aggravation, acceleration, recurrence or exacerbation or the like of a pre-existing disease is neither necessary nor helpful."

1. The injury which is a disease in this case, is not the underlying condition of osteoarthritis to which it appears the worker may have been subject for some time before commencing his employment with the respondent. The condition itself is not compensable while it produces no incapacity for work.  It only becomes compensable when attended by such symptoms as render the worker incapacitated in whole or in part for work.  The learned Commissioner said in his reasons for judgment:

"Mr Mills was clearly of the opinion that the worker's employment duties had not 'caused his early arthritic change' but that those duties may have precipitated symptoms in his knees.  Dr Roffe agreed with this opinion also accepting that the work duties did not cause the condition itself but rather may have triggered symptoms for this condition."

In fact Mr Mills expressed the opinion that the work duties had precipitated the symptoms saying:

"I don't think the employment caused his osteoarthritis but I think that those activities that he was required to do in his employment have precipitated symptoms in his knees he may well have got away with some time if he wasn't doing them."

He was unable to predict when symptoms might otherwise have developed.  Likewise, Dr Roffe, was more positive in his opinion saying "I think his activities have caused the onset of his symptoms".  Asked if by "activity" he meant "his work activity", he replied "yes".  No other stressful activity as the precipitator of the worker's symptoms was identified by the evidence.  In these circumstances the italicised part of the learned Commissioner's conclusion "that the worker was suffering the morbid condition of osteoarthritis prior to commencing his employment with the employer and there is no evidence that this employment in any way accelerated the underlying disease process or in any way other than perhaps initiating symptoms altered the natural progression of the disease process" cannot be sustained.  It appears that the Commissioner maintained the view that the only relevant morbid condition was the underlying osteoarthritis rather than the disabling condition to which the worker was reduced by his symptoms.  If the symptoms were occasioned by work and the consequent disease arose out of and in the course of his employment, and were contributed to in substance by his employment, he was entitled to compensation.  But the learned Commissioner having misdirected himself about the nature of the compensable disease did not address the question whether the causal connection with work required by this Act had been established. 

1. Because of these errors the appeal must succeed. I have set out the learned Commissioner's review of the evidence in detail because it is appropriate now for me to draw such inferences of fact from it as I consider should have been drawn. This is a preferable course to sending the matter back for retrial. Apart from some dispute as to what the worker told some of his supervisors, other than Ms Eadie, and some adverse findings as to the worker's credit because of possible evasiveness in respect of his previous experience of claims under the Act, (which seem to have been confined to traumatic injuries as opposed to any due to disease of gradual onset), the evidence presented on behalf of the worker was all one way. The only medical evidence strongly suggested that the strenuous garbage collection activities engaged in by the worker had gradually produced the symptoms which disabled him. There was no other contender as a cause of them. The only proper inference in my view is that the worker did suffer an injury which was a disease, that it arose out of and in the course of his employment, and was contributed to substantially by his employment. As to the question of notice I think that the proper inference from the evidence of his meeting with Ms Eadie is that he then gave her oral notice of an injury from which he had been suffering to a greater or lesser degree for some months, but which by then had progressed to a condition of significant disablement and that both appreciated his work activities might well be the cause of it, although it had not then been medically confirmed.

1. If, however, I am wrong in holding this to be sufficient compliance with s33, notice was given on 23 December 1997 when that diagnosis had been made. In the circumstances, this notice was given as soon as practicable after the injury had been suffered, and the failure to give that notice before he had voluntarily left the first-named respondent's employment is explained by the worker's ignorance until that date of his medical condition and its cause. That ignorance amounts to "other reasonable cause" within the meaning of the Act, s37(1) and in the proper exercise of the discretion, the failure to give notice strictly in accordance with s32(1), should be excused.

1. In my opinion the appeal should be allowed and the worker held entitled to compensation under the Act. I will hear the parties as to the appropriate orders.