Tweed Shire Council v Garrie Marriott
[2008] NSWCA 166
•8 July 2008
New South Wales
Court of Appeal
CITATION: Tweed Shire Council v Garrie Marriott [2008] NSWCA 166 JUDGMENT OF: Beazley JA at 1, 29, 31; Ipp JA at 2; Handley AJA at 30 EX TEMPORE JUDGMENT DATE: 8 July 2008 DECISION: Appeal dismissed with costs CATCHWORDS: WORKERS COMPENSATION - back injury - finding of incapacity - sufficiency of evidence - WORKERS COMPENSATION - appeal from arbitrator - procedural fairness - REASONS - whether adequate and sufficient LEGISLATION CITED: Workplace Injury Management and Workers Compensation Act 1998 CATEGORY: Principal judgment PARTIES: Tweed Shire Council (Appellant)
Garrie Marriott (Respondent)FILE NUMBER(S): CA 40695/07 COUNSEL: L King SC; J Catsanos (Appellant)
P Rickard (Respondent)SOLICITORS: Bartier Perry (Appellant)
White Barnes (Respondent)LOWER COURT JURISDICTION: Workers Compensation Commission LOWER COURT FILE NUMBER(S): NSWWCC21272-05 LOWER COURT JUDICIAL OFFICER: Candy ADP LOWER COURT DATE OF DECISION: 1 May 2007
CA 40695/07
Ex tempore 8 July 2008BEAZLEY JA
IPP JA
HANDLEY AJA
1 BEAZLEY JA: I will ask Ipp JA to read the first judgment.
2 IPP JA: This is an appeal against a decision by Acting Deputy President Candy in the Workers Compensation Commission concerning the entitlement of Mr Garrie Marriott to weekly compensation from his former employer, the Tweed Shire Council.
3 On 10 July 2003, in the course of his employment, Mr Marriott suffered an injury to his back. He brought proceedings for compensation in the Workers' Compensation Commission. The arbitrator determined the claim in Mr Marriott's favour. The relevant part of the arbitrator's award is as follows:
“The Respondent is to pay the Applicant weekly benefits compensation pursuant to ss 38 and 40 of the 1987 Act at the maximum statutory rate for a worker with two dependent children, as adjusted, from 4 November 2005 to date and continuing. From 1 October 2005 until 31 March 2006 that weekly rate was $484.60 and from 1 April 2006 until 30 September 2006 that rate is $494.50 per week.”
4 The Council appealed from the arbitrator's decision and the Acting Deputy President upheld the appeal. He revoked the decision of the arbitrator and substituted the following order:
2. The Respondent is to pay the Applicant’s costs as agreed or assessed.”“1. The Respondent is to pay the Applicant weekly benefits compensation pursuant to section 38 of the 1987 Act at the rate of $484.60 per week from 4 November 2005 to 25 January 2006 and is to pay compensation pursuant to s 40 of the 1987 Act at the rate of $236.00 per week from 26 January to date and continuing.
5 The Council asserts that the Acting Deputy President made three errors of law. These were:
(b) There was a denial of procedural fairness;(a) There was no or alternatively insufficient evidence to support the finding of incapacity and consequent award of weekly compensation;
(c) There was a failure to give adequate reasons.
6 With regard to the first alleged error (or ground), namely, the lack of evidence point, there was in fact a body of evidence that supported the Acting Deputy President’s findings. I shall refer to some of that evidence.
7 Dr Rowe, an approved medical specialist, said he found an objective change in sensation about the left great toe and weakness of movement in the left great toe in plantar flexion. He regarded the wasting of Mr Marriott's left calf as evidence of radiculopathy in the leg. Dr Black noted the wasting in Mr Marriott's left calf and diagnosed a disruption of lower lumbar passive joints. A CT scan by a radiologist, Dr Hellwege, noted at least that Mr Marriott's bone density appeared generally reduced.
8 Dr Thom, an orthopaedic surgeon, was of the opinion that a CT scan showed disc prolapse at L3/4 and possibly L4/5 on the left and mild to moderate degeneration of the L4/5 and L5/S1 facet joints. He thought Mr Marriott’s unfitness to return to work might be a chronic condition and there could well be a component of permanent pain.
9 Dr Pascall was of the view (after a clinical assessment) that work restrictions were necessary and Mr Marriott needed to avoid heavy lifting. Dr Mitchell also took the view that work restrictions were necessary. Mr Marriott gave evidence himself that supported his claim.
10 There was a considerable body of evidence to the opposite effect. This included a video showing Mr Marriott performing various activities that, to a substantial extent, indicated that he was not incapacitated. A number of doctors called by the Council relied on the video and various other matters in expressing the opinion that Mr Marriott had not suffered any loss of capacity.
11 The Acting Deputy President stated that he had taken into account the evidence on which the Council relied. He referred expressly to the fact that only doctors who testified on behalf of the Council commented on the video and he observed that, in particular, the opinions of Drs Ashwell and Robinson (who were called by the Council) were entitled to greater weight than the arbitrator had given to them (this was in fact one of the errors that he found the arbitrator had made which justified his intervention on appeal).
12 Notwithstanding the strong opinions expressed to the contrary by Drs Ashwell and Robinson and Dr Dearnley (Mr Marriott’s general practitioner), and the evidence of the video, the Acting Deputy President did not find a complete lack of working capacity on the part of Mr Marriott. He said that the issue was one of weight. The weight of the evidence on both sides had to be balanced. Having (implicitly) carried out that exercise, the Acting Deputy President found that Mr Marriott had experienced a loss of capacity.
13 The approach of the Acting Deputy President was correct. He had to determine what value was to be given to the evidence before him and to make up his own mind on the issues. He did not accept all the evidence tendered on behalf of Mr Marriott and he did not accept all the evidence tendered on behalf of the Council. He was entitled to adopt this approach.
14 Essentially the decision he made was one of fact. In my view there is no issue of law revealed, as was submitted on behalf of the Council.
15 The next ground is that the Acting Deputy President denied the Council procedural fairness. The nub of the Council's argument on this point is set out in its written submissions as follows:
“The [a]ppellant (and the worker) was entitled to assume that if the [a]rbitrator's decision was impugned but the primary submission (i.e. award in favour of the appellant) was not accepted, that the matter would be remitted for determination (before someone other than Arbitrator Nicholl). For the [p]residential member to then, without notice, not adopt that course was procedurally unfair.”
16 The relevant passage in the transcript of the teleconference on which the council relied is as follows:
- “[Counsel for the worker]: In appeals that derive from the exclusion of evidence, as I understand the law generally on these issues, an [a]ppellate [c]ourt, if it finds that there has been evidence that has either been wrongly admitted or wrongly refused, would generally order a retrial.
- Acting Deputy President: Yes.”
17 It was submitted on the Council's behalf that this passage gave rise to a tacit understanding on behalf of both parties that the Acting Deputy President, were he to uphold the appeal, would remit the matter for rehearing. I am, however, not persuaded by that argument.
18 Under s 352(7) of the Workplace Injury Management and Workers Compensation Act 1998, it was open to the Acting Deputy President to confirm or revoke the decision under appeal and to make a new decision in its place. Alternatively, it was open to him to remit the matter for rehearing. The exchange on which the Council relied involved nothing more than a statement of law by counsel that the Acting Deputy President acknowledged. In fact, immediately after the exchange that I have quoted, counsel then appearing for Mr Marriott submitted that, should the appeal be upheld, the matter should not go back to the arbitrator.
19 It is true that the Acting Deputy President was discussing what would occur were the appeal to succeed on one particular basis, and there were other bases on which he upheld the appeal. Nevertheless, it is significant that counsel then appearing for the Council did not respond in any way to the submission that the matter should not go back to the arbitrator. I do not think that there was a tacit understanding (as the Council submitted) that, should the appeal succeed, the matter should be remitted.
20 The final ground is that the Acting Deputy President failed to give adequate reasons for his decision.
21 The Acting Deputy President conducted a full review of the relevant evidence. He described in detail that evidence which tended to show that there was no incapacity as well as that which supported Mr Marriott's contention that he was incapacitated.
22 The Acting Deputy President determined the issue by saying:
“As I have elsewhere indicated, the issue in this case was one of the extent of incapacity. The video footage obtained by the employer was, it appears to me, central to its case in saying that the worker had no incapacity. I have viewed those videotapes and am obliged to say that the activities the worker is shown performing, particularly on 14 July 2005, are quite inconsistent with his presentation to doctors at that time. He is shown bending and crouching for prolonged periods of time over a period of two hours, although he does at one stage have a break and smoke a cigarette. The videotapes depict a person with no apparent restriction or obvious display of pain. It is difficult to see that if the worker did experience discomfort from performing this activity, for which he was not paid, that he would not engage someone else to do it. I conclude that the worker’s complaints as to incapacity and pain are exaggerated and unreliable. I am satisfied on all of the evidence, however, that the worker does have an incapacity for his former work with the employer.”
23 In the context of the Acting Deputy President's reasons as a whole, it is apparent, as I have already mentioned, that having referred to all the relevant evidence and the different opinions given and having himself seen the video, he made up his own mind as to incapacity, which indeed was his duty. In the course of his reasons, he explained why he accepted neither Mr Marriott's contentions as to the degree of incapacity, nor the Council’s evidence that there was no incapacity. He concluded that some incapacity remained. The inference is that he accepted the evidence (that he had recounted) that supported a finding of a limited loss of capacity.
24 I accept, as was submitted this morning, that, by reason of the video, the Council's doctors discounted much of the reasoning and findings on which Mr Marriott's doctors based their evidence, and Mr Marriott's doctors did not see the video. This was a particularly forceful point to make at trial in arguing that the evidence of Mr Marriott’s doctors should be rejected. On appeal, however, the point has no cogency as it does not give rise to an error of law.
25 I have drawn attention to the evidence (that the Acting Deputy President expressly noted) of organic degeneration in Mr Marriott's condition. In my view it is obvious from the Acting Deputy President’s reasons that he relied on this evidence for his finding that there was some degree of loss of capacity.
26 The Acting Deputy President gave, in my view, appropriate reasons for arriving at the particular amount of compensation that he determined.
27 Overall, it is apparent from the reasons as a whole why it is that the Acting Deputy President decided as he did.
28 In the circumstances I would dismiss the appeal with costs.
29 BEAZLEY JA: I agree with Ipp JA.
30 HANDLEY AJA: I agree with Ipp JA.
31 BEAZLEY JA: The final order of the Court is the appeal is dismissed with costs.
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