Wurzel, Joseph v Commonwealth of Australia

/----

- _ -

CATCIXORDS

Employees' Compensation

- Injury out

of and i n the

Course of employment - Chronic paranoid hypochondria aggravated by injury - Appeal from the Commonvrealth

Employees' Compensation

Tribunal - Coilcession by Counsel -

, Commonwealth Employees 9.Compensation

Compensation

Act

1930

ss. 4,8 and

(Australian Government Employees) Act

1971

ss. 27,29¶30,95 and 104.

Joseph Wurzel v. The	Commonwealth	of	Austral ia
No. VG 54 of 1977

Coram:	Smithers	J.
Place :	Melbourne

Date :

12th December 1977.

,I -

CObTT40€fiEALTH OF

AUSTWIA

'IN THE E'EDERAL COURT

OF AUSTRALIA

No. VG 54 of 1977

:GENERAL DIVISION

ON APPEAL from the Commonwealth

Employees' Compensation

Trlbunal

Between -

JOSEPH WRZEL

Appellant

And -

THE COMMONI'EALTH	OF	AUSTRALIA
Respondent

bEMBER OF

THE BENCH:	SMITH3 RS , J .
ORDER OF

THE COURT:

That

the

appeal

allowed.

(a)

That

the

question

of quantum

o f	compensation be adjourned

and	the matter be remit ted to

the Delegate of the

Commissioner

f o r Employees' Compensation	f o r
determinat ion, l iber ty being r e se rved to the appe l l an t t o

apply i n respect of	that
determination;

( b ) t h a t the determination

i s d i rec ted

tha t before

is f i n a l l y

made the appel ian t

be informed

of the basis of calculat ion

proposed

t o be

adopted and the

sum payable i n accordance there-

with and

the appel lant afforded

an opportuni ty to

make

sub-

missions

i n r e l a t i o n t h e r e t o .

That

Delegate

the

Commissioner

f o r

Employees' Compensation proceed

upon

the

basis

tha t the condl t ion of

chronic paranoid hypochondria exlsting

I .

before 20th February

1968 was

aggravated and accelerated by injury

suf fered by

the appe l l an t t o the

thenar por t ion

his

hand on 20th

February 1968 and t h a t

h a t

i n j u r y

arose by

acc ident a r i s ing out

and

i n the course

the appel lan t ' s

employment and t h a t it was

t h a t

i n ju ry

which aggravated and

acce lera ted the said condition of chronic paranoid hypochondria and

tha t thereby the

appel lant was

incapac i ta ted I o r employment

and

t h a t t h e a p p e l l a n t

e n t l t l e d t o

compensation

accordingly.

That

respondent

pay

the

appel lan t h i s

cos ts

o f

and

i n c i d e n t i a l t o t h e a p p e a l t o

and

hearing before the

Commonvealth

Employees'

Compensation

Tribunal.

DATE :

12th December 1977.

__ . . ._

I '

COiYI~TONWEALTH OF AUSTRALIA

I N THE FEDERAL COURT

OF AUSTRALIA	No. VG 54 of 1977
GENERAL DIVISION

ON APPEAL from the Commonwealth Employees'

Compensation Tribunal

Between -

JOSEPH I'KJFXEL

Appellant

And -

I	TllZ COIMMOIWEALTH OF AUSTRALIA

Reppondent

-	DATE :
12th December 1977.

Smithe rs ,

J .

REASONS

FOR

JUDGMENT

For some eleven years

p r i o r t o 20th Nay 1969 the

appellant was employed by the Postmaster-General

s Department

i n r e l a t i o n t o the handling

o f mail.

20th

February

1968

suffered injury

accident in the course

o f h i s employment

with

the

Commonwealth of Australia.

He took

steps

t o claim

compensation pursuant

t o the Commonwealth Employees' Compensation

Act 1930.

his

formal

claim

pursuant

the

Act

declared that the nature

h i s i n j u r y

was

" injury t o my

l e f t hand. It

13th January 1969 the Delegate

o f t he Commissioner

f o r Employees! Compensation

made a determination

i n respect of

that

claim.

The determination was in

the

following

terms

hereby determine the said Joseph

T'RJRZEI,

sus ta ined personal in jury

acc ident a r i s ing

out of

o r i n the course of

h i s employment by

the Commonwealth on	20.2.68 namely	- in jured
l e f t l i t t l e f i n g e r .

In accordance with the provisions

paragraph

(1) (b ) o f t h e F i r s t compensation of $25-35 pe r rreek from 15.3.68

Schedule

t o the said Act,

is t h e r e b y e n t i t l e d t o t h e

payment

un t i l 18 .3 .68

both dates inclusive.

In accordance with

the provisions of Section

of t he said Act, amounting t o $8-50

t h e c o s t i n respec t o f

o f medical treatment

t he in ju ry

shall

be paid."

On 20th May 1969 the Senior Commonwealth Nedical

Officer

advised the relevant Director of the Department of

Posts and Telegraphs that -

I tMr . J. Wurzel has been medically

examilled.

is depression.

s u f f e r i n g f r o m a n x i e t y s t a t e w t h g r o s s

The

condi t ions are not

due to causes within his

cont ro l .

i s considered permanent ly unfi t for fur ther

service.

would

recommend h i s re t i rement . I1

r e s u l t of

t h l s recommendation the appel lan t

was

r e t i r e d f o r t h w i t h from h i s employment

with

the

CommonweaLth.

H i s employment s t a t u s had been that of

a temporary employee.

appears

that

a t some

s t a g e p r i o r t o A p r i l

1971

there was

correspondence between

the

Solicitors

for

the

appellant

and the Postmaster-Generalis Department i n which the appel lant

3 .

claimed compensation

i n r e s p e c t of

l o s s of

c a p a c i t y t o work

due t o an acc identa l in jur ies sus ta ined

anx ie ty s t a t e s a id to be caused

a number

the appel lant during

his

employment with the

department.

I am informed by the

respondent that

the na ture of

this claim appears from

l e t t e r

from of the Postmaster-General’s Department dated

the appe l l an t ’ s so l i c i to r t o the Ac t ing Di rec to r

15th

Apri l

1971

i n which

the appe l l an t ’ s So l i c i to r s

said,

i n t e r a l i a ,

Itand

it i s cor rec t tha t ou r c l i en t

i s claimlng tha t as

r e s u l t

of a he sustained

s e r i e s of

acc iden t ( s i c )

whilst

employed by

the Commonwealth

wide

range

o f

i n j u r i e s g i v i n g r i s e t o

anxiety condition rendering

him

t o t a l l y and permanently

incapac i t a t ed

fo r

work.

In t h e

a l t e r n a t i v e ,

al leged

that i n any event he

is permanently disabled because of

the

i n j u r y t o t h e

hand

sustained Jvhilst

i n t h e

employment

the

Commonwealth.

We await the Commissioner s ru l ing . It

It would appear that the

was

made

i n a

determination by the Delegate

o f

the

Commissioner

f o r Employees’

Compensation dated 9th February 1972.

It was made, as I am

informed,	by	the respondent without further reference to the
appel lant .

The

determination was made on

9th

February 1972

i n the following

terms -

“(I

Specialist

medical

evidence

indicates

that the

condition of

chrnnic paranoid hypochondria

suf fered by t h e said Joseph Wurzel

d i d not

r e s u l t from

par t lcu lar event

a t a

p a r t i c u l a r

time which

employment by the Commonwealth.

Consequently, I am unable t o f ind that the

arose out of

o r i n the course of ,

' :

o r while he

was

t r a v e l l i n g t o

o r from,

h i s

condition of

chrnnic paranoid hypochondria

suf fered bg7 the said Joseph Wurz&l

cons t i tu ted

an in ju ry , o r recurrence of

o r an

aggravat ion, accelerat ion,

a pre-ex is t ing inJury , tha t

was

a personal inJury by accident -

(a )

arising out of

o r i n the cour se

of his

employment by t h e Commonwealth, within

t h e meaning of

sec t ion 9

of the

Commonwealth

Employeees' Compensation

Act 1930, as amended;

w h i l e t r a v e l l i n g t o

o r from his

employment by the Commonwealth, within

the meaning o€

sec t ion 9 A of the

Commonwealth Employees'	Compensation
Act 1930, as amended.

NOW THEREFORT,,

i n pursuance of the provis ions

of the Compensatlon (Commonwealth Employees)

Acts 1971,

I hereby determine:-

(a )

The condition of chronic paranoid hypochondria suffered by the said

Joseph

Wurzel

was

no t t he r e su l t o f

personal injury i n circumstances under

which the Commonwealth would have been

l i a b l e t o pay

compensation under the

Commonwealth Employees

Compensation

Act

1930, as amended.

(b)

Having regard to the provis ions of sec t ions 4 and 104 of the Compensatlon (Commonwealth

Employees)

Acts

1971,

the

Commonwealth is

n o t t h e r e f o r e l i a b l e t o p a y

compensation

under the Compensation (Commonwealth

Employees) Acts

1971 l n r e s p e c t

the

condition of

chronic paranoid hypochondria.If

Early

i n

1972 p r i o r t o t h i s d e t e r m i n a t i o n

the

appel lan t

had commenced an ac t ion f o r damages

aga ins t the

Commonwealth

i n the Supreme Court of Victoria alleging

that

he had suf fered

5 .

a crushed l e f t hand with psychological

consequences

of anxiety

and depression and the l i k e i n the accident

o f 20th February

1968 and t h a t t h e i n j u r y

was

suffered by

reason of

the

negligence of the

Commonwealth.

The

ac t ion came

for h e a r i n g i n September 1974

and on 16th September 1974

judgment was entered f o r the

defendant	(respondent).	Against	this judgment	the	p1	i n t i f f	L
I

(appellant)

appealed

t o the Full Court of Victoria. That

Court s e t a s ide the	judgment and ordered a new t r i a l of the
action.

The

new

t r i a l did not proceedbecause, as

I aminformed

the respondent, "the action

was

f i n a l l y compromised on

the

bas i s which allowed

Mr.

Wurzel

t o make an additional claim

f o r

compensation under the then

Commonwealth

Employees' Compensation

Ac t . . . . . . . . . I n e f f ec t

it was

to a l low

him

t o lodge a claim

i n

respect

a mental condition following the injury in February

1968.

He would have

been

out

time

t o p u t i n

that claim.

A determination was made

on 9th February

1972 and it is tha t

determination which is a t p resent before

Your

Honour...... In

fac t the se t t lement

the other proceedings

was

on the basis

t h a t

Mr.

I ' lurzel could either appeal against the determination

o f

9th February 1972

seek judicial review,

o r whatever, out

o f time."

The appel lant d id appeal.

That appeal against the determination

was

heard

‘before the	Compensation Tr ibuna l a t	Melbourne	i n June 1977.
I

The appel lant was represented by Mr.

S t o t t of Counsel

and

the

respondent

by Nr. Wheeler o f Counsel.

On 27th

June

1977

the Tl\ibunal affirmed the determination

the Delegate

Written reasons

f o r t ha t dec i s ion

were

published.

Against that decision the appellant has appealed

t o th i s Cour t .

H i s appeal

brought

pursuant

t o S . 95 of the

Compensai;ion (Australian Government Employees) Act 1971,

here inaf te r ca l led

theIf1971 Act” which permits such

appeal

but on a question of law only.

The appeal i s brought t o the

Federal Court pursuant

t o S .

the Federal Court

Austral ia

Act

1976 and S .

3 of the Federal Court

o f Australia (Consequential

Provislons) Act 1976.

It is the duty appeal and under S. 95 ( 3 ) it -

o f t h i s Court t o hear and determine the

If ( 4

may affirm,

vary

or set

as ide

the

decis ion

the Compensation Tribunal o r the judgment o r

order

o f

the prescribed Court;

(b)

may give

such i n a l l t he c i r cums tances

judgment,

o r make

such

order,

thinks

f i t ; and

( C )

may

remit determinat ion ei ther with

the

case

for

re-hearing

and re-

o r without the hearing

of fur ther evidence,

by the Compensation Tribunal

o r prescr lbed C o u r t ,

or f o r re-determination

the Commissioner o f the Federal

i n accordance with the directions

Court of Australia.lI

the t ime

of the determination

o f 9th February

1972 and the re levant Act was the Compensation (Australian Government

hearing of the

appeal

t o the

Tribunal

the

Employees) Act of 1971

which

the

Commonwealth Employees’

Compensation

Act

o f

1930 had been

repealed.

See sub-section 4

(l)	.	It i s provided	by	sub-section	4	( 2 ) of	the	1971 Act
that	-

I'Notvithstanding

sec t ion 8 o f

the Acts

In te rpre ta t ion

Act 1901-1966

the Commonwealth is not l i a b l e , on o r

a f te r the proc la imed da te , to

make

any payments

under the Commonwealth Workmen's Compensation Act 1912 o r the Commonwealth Employees I Compensation

Act 1930-1971

bu-c sec t ion 8 of the Acts Interpretation

Act

1901-1966

otherrrise applies

i n r e l a t i o n t o t h e

repea ls

e f fec ted

the l as t preceding sub-sectlon

t o t h e e x t e n t t o

which

i t s

appl ica t ion woul~$ not be

incons is ten t with the operation of

any provisior. of

t h ik

Act.

Sub-section 104 (1) of the Compensation (Commonirealth

Employees) Act

1971 provides tha t s u b j e c t t o P a r t

VI1

t h a t

Act, that disease contracted

Act

appl ies o r an aggravat ion accelerat ion

i n r e l a t ion to an in ju ry sus t a ined ,

o r recurrence

d i sease suf fered

by an

employee before the proclaimed date,

as it appl ies i n r e l a t i o n t o contracted o r an aggravation acceleration

in jury sus ta ined

o r a

disease

o r a recurrence of

d i sease suf fered

by an

employee

on o r a f t e r tha t date.

The

provis ions o f

t h l s

sub-section are,

s o f a r as

they speak, effect ive to render the

Commonwealth

l i a b l e t o

pay

compensation f o r an in ju ry pursuant t o sub-section

27 (1) of the

1971 Act whether the injury

were

sustained before

o r a f t e r t h e

1971 Act

came into operat ion.

But sub-section

104 ( 2 ) provides tha t sub-section

104

(1) does not en t i t l e

person

t o r e c e i v e

compensation

i n

respec t of

an injury sustained before

the proclaimed date,

o r

i n respec t of

d i sease ,

o r an aggravation acceleration

o r

recurrence of a disease synptoms of which

first became

apparent before that date	i f	compensation	was	not payable in
I

/respect

t h a t i n j u r y t h a t d i s e a s e ,

o r that aggravat ion

accelerat lon

o r recurrence under the

Commonwealth Employees'

Compensation Act 1930

or that Act

a s amended,

a s i n f o r c e a t

the time when the in ju ry was sustained o r symptoms of the

disease o r of the aggravation acceleration	o r recurrence first
became apparent.

According t o s.5(l)of

the Act of 1971 inJury means

any physical o r mental injury

and includes the aggravation

accelerat ion

o r recurrence

of any

physical injury but subject

t o S.

29 of the Act does not include

a disease o r the aggravation

accelerat ion

o r recurrence

of a

disease.

Section 29 provides that

where the employee contracts

a disease o r su f f e r s an aggravation acceleration

o r recurrence

I of a disease and any

employment of the employee was a

cont r ibu t ing fac tor to the cont rac t ion

the

disease

o r t o the

aggravation acceleration

o r recurrence whether

or not the

disease was

contracted o r the aggravation acceleration

o r

recurrence was

s u f f e r e d i n

the course of

t h a t employment,

then

i f

t h e p a r t i a l

o r t o t a l i n c a p a c i t y f o r

work

r e s u l t s

from

the

disease

o r f rom the aggravation acceleration

o r recurrence

the disease, for the purposes

the

Act,

unless the contrary

intention appears the contraction

o f

the disease

o r the

aggravation acceleration

o r recurrence as the case

may

s h a l l

be deemed t o be a

personal injury

t o the employee a r i s ing out

the employment of the employee by the Commonwealth

and

the date

of the incapacity

shall be deemed t o be the date

of the

i n

j u r y .

The determination of 1972 appears t o have proceeded

on the view condition

that aggravat ion

the appel lant ' s a l leged

o f

chronic paranoid hypochondria could properly

regarded

inJury

defined

S . 9 o f

the Commonwealth

Employees' Compensation Act

1930 and compensible provided

was

caused by, accident, and nonetheless

s o i f it was

condition supervening

upon a

physical injury.

It	does not appear whether the Delegate regarded the

condition o f

chronic paranoid hypochondria as an injury in

i t s e l f o r a s a conditicn supervening

upon a

physical injury.

A s was sa id by Windeyer, J. in Federa l Broom Co.

Pty.

Ltd . v. Semlitch

(1964)

110

C.L.R.

626 a t 642 -

"It has, o f course, been

common i n workers

compensation cases to treat as an incapacity

r e su l t i ng

from

phys ica l i n ju ry the to t a l

d i s a b i l i t y t h a t

fo l lows

f r o m .

it whether

be a t t r ibu tab le only o r t o associated psychological

t o the anatomical

damage

and neurasthenic

f ac to r s .

The

applicant's

case

might

therefore

have been in jury suf fered

put

as follows.

A minor

bodlly

the appl icant ,

a person o f

unstable mentali ty,

had serious psychological

consequences;

and

thus

resu l ted in incapac i ty

f o r work.

So put,

the case vould not

depend

upon

the statutory provisions concerning disease but

on the general

word

i n j u r y

' I .

Before the Tribunal the case

made

fo r t he

appellan-c

was that

the

condltion

complained

of was a conditior?

supervening

10.

I	r	.
l

upon a	physical injury.
l

I t is

apparent that the Delegate proceeded

oil

the

I .

ylew t h z t t h e e f f e c t	of	S.	104 of	the Act	o f	1971	was	t h a t
I

compensation was only payable if the conditions of Commonwealth

l i a b i l i t y p r e s c r i b e d

the

1930 Act were

establ lshed

the

appel lant .

In o ther words , the provisions

of S.

27 and S, 29

of the Act of be by accident, and expanding the definition

1971 eliminatlng the requirement that

the of disease were

injury

i r r e l evzn t

and

the appel lan t car r ied the

onus

proving

mental injury

by accident.

Whether t h i s be

s o o r not must be

a t l e a s t a

matter of doubt.

The circumstances do seem t o have

required

a t t e n t i o n t o t h e p o s s i b i l i t y t h a t t h e a p p e l l a n t ' s c a s e

was

r ea l ly r e fe rab le

t o S.

27 of the 1971 Act

i n which event the

appellant 's case should

have been considered according to the

pr inc ip les expressed in the

High

Court

in Federa l

BroGm

Co.

Pty.

L td .

Semlitch

(supra).

that

event

proof

accident would

no t have been

required as a condition of

Commonwealth l i z b i l i t y

and it would have been

f o r the Commonwealth t o prove that under

the Act would have

o f

1930 compensation

would

not have been payable.

This

been

o f

impostance because neither the Delegate nor tbe

Tribunal made

a f inding that aggravat ion

of the appel lant ' s

mental disorder was not caused by accident on 20th February

1968.

However, when >'h-.

S t o t t opened the appeal

t o the

Tribunal

referr ing

t o the

condition

o f

chronic

paranoid

11.

hypochondria he	said -
I
I
I

!'The only ground o f appeal i s on the basis

that the Delegate ought t o have found tha+

the condi t ion

was

the r e su l t

personal

i n ju ry by accident.

are not re ly ing

any of

the disease provis ions,

it being an

old	Act claim.

The appeal was fought on t h i s basis and was s o

understood by the Tribunal whose reasons for judgment commence

with the statement

- "He

(the appellant) claims compensation

f o r a condition o f chronic paranoid hypochondria

which he

claims results from	a n i n j u r y t o	his hand	a t work	on	20th
February 1968.

The Tribunal proceeded

on the basis that aggravation

o r acce le ra t ion

the appel lan t ' s p re-ex is t ing condi t ion

o f

hypochondria

came within the de f in i t i on

injury contained

i n S. 4 of the Act and accident ar is ing out of

t h a t i f t h a t i n j u r y

was

caused by

o r i n the

course of

h i s employment

the Commonwealth it vas cornpensible i n accordance with S. 9

of	tha t Act.

The

Tribunal addressed hxmself

t o

two

i s s u e s s t a t e d

as follows -

the present psychriatic problem;

in jur ies

the

hand caused

the

( i i )

whether

injury

and

opera t ions

the

ba l l of

the appel lan t Is l e f t hand, which

i s said caused	o r accelerated the mental
problem, arose	out of the accxdent.

( i ) whether

The

first i ssue was

considered on

the bas i s t ha t

on 20th February 1968 o n l y t h e l i t t l e f i n g e r

the appel lan t ' s in jury a f fec ted not

but

a l so the ba l l

the

thumb,

the

thellar

region.

t h a t b a s i s

a number of witnesses gave

evidence

of the probable effect

o f such an in ju ry and its

sequelae,

namely

supervening pain and

two

surgical operat ions

upon the appel lan t ' s a l ready ex is t ing anxiety and depression.

morbid

condition

th i s i s sue the Tr ibuna l ' s f i nd ing

was

fo l lows

"1 am

no t s a t i s f i e d on the evidence

of the

claimant 's mental condition prior

t o the

accident in February

1968 tha t t h i s acc iden t

made

any

s ign i f l can t change

o r accelerated

aggravated his long standing mental cond1tion.I'

The

appel lant contends that this decls ion

against

the evidence contended that the only f inding

which

says was

a l l

t h e o t h e r

way.

It is

open on the evidence

was

t h a t

the Tribunal

was

s o s a t i s f i e d .

The witnesses who gave special is t

psychiatr ic

evidence

the poin t a t the hear ing

were

Dr.

Kornan,

Dr.

Barnes,

Dr.	McCloskey and Dr. Sinc la i r .

Dr. Kornan had examined

the appel lan t in

November 1972.

_ .

He s t a t e d appe l l an t ' s cond i t ion a t t ha t s t age

t h a t

he considered

there

was a re la t ionship between the

and

the in jury

t o h i s

hand

i n February 1968.

H i s evidence

contained

the

following

passages

13.

I7Doctor, d id

the in Ju ry to the

hand

came

prec ip i t a t e

any mental condltion?

-- Yes, I th ink we have here

a man

who was

vulnerable but

who would have

i n t h e absence of

the hand it is t r u e t o s a y

Injury been able

to continue working.

think

that I am not sure

that he would have

g o t t o

65, because

wi th h i s

s o r t o f

bas ic personal i ty

problems you

of ten don ' t ge t

through the

whole working

career , bu t

I think he would have kept going certainly

f o r a few years .

I th ink what the hand inJury did, and

ce r t a in ly the

hand operst ion, was

convince him tha t he

was

r i g h t and that secondly that what

ever doc tors to ld

him,

there was a considerable doubt

about.

The

hand

ef fec t lve ly

stopped him from

working

a t

l ea s t

t hose ex t r a yea r s .

Doctor you

say tha t the inc ldent

i n February 1968 cauied

some, perhaps I am using my

own

words - but dramatic ehange

fo r t he vo r se

i n this

man's mental condition.

tha?

the

way you put it, o r am I mis-stating you? -- Yes, I th lnk that

is so .

I saw him some t h r e e y e a r s

l a t e r

and

am not

cer ta in as to -whether

that

dramatic change occurred quickly

o r whether it occurred over a period of

a few months;

but I

th ink what it did do

was

start off this brooding

and t h i s

cancer phobia

i n a

s i g n i f i c a n t way.

Would it surpr i se you t o h e a r that this man had had a cancer phobia even before t h i s inc ident? Or say - perhaps I should

put it i n another term-

that he had been worried about cancer

even before

th i s inc ident? -- No,

it wouldn7t

surprise me. I

t h i n k t h i s

man

- and the h i s to ry

is suggestive of

this - t h a t

he vas emotionally easily dlsturbed

rea l ly s ignif icant personal i ty problems for

very

vulnerable

person.

That he was

and eas i ly upse t

and had

h is

many

years .

You

say the incident of February

1968 i n fac t acce lera ted

a cont inuing mental i l lness;

would that be a fa i r way of

pu t t ing it? -- You could put

it severa l ways.

I think it

ce r t a in ly aggravated whatever

was the re .

It accelerated

the onse t

of probably

what was

an inevi table

t o t a l

d e c l i n e .

think the worrying aspec-c was that he was subsequently proved

r ight . Evident ly

some

s o r t

neuro-vascular

bundle

was

removed and obviously that was causing hlm some pain of some descr ipt ion. Now, maybe i n a normal person they would have

been able to shrug that off , a l though he

was

i n a

job

mail o f f i c e r where they may have probably been

more use of

his

hands than perhaps I would have had. There probably

was

some

cont inuing pa in ; in

a vulnerable person

that was

enough

t o

r e a l l y worsen him,

p l u s t h e f a c t

that

with

th i s

cancer fear

he was now probably convinced

tha t wel l , i f something could

grow perhaps a cancer could

grow, and

t h i s i n a vulnerable

person i s enough t o make them much worse.

I think it i s

a k i n t o

- i f you

l i k e - a woman

who

bumps

her ches t

and

then

afterwards says,

'You

know,

I ' m

sure that

is going t o g i v e

cancer ' , then has

breas t opera t ion for

lump

which

perhaps non-malignant, but

think

afterwards,

i s still going

t o be

very

worried

and

anxious.

Now

i f

she has been already

14.

an unstable person beforehand, that	is	enough	t o r e a l l y make
her very dis turbed. I'

Dr.

Barnes

a psyc5 ia t r i s t

examined the appel lant

i n August

1970

and i n Narch 1972 and i n June 1977.

Speaking

with reference to

August 1970 he

said tha t the appel lan t

' ' explained his posi t ion to

i n g rea t

detai l and

it v?ould

be imposs ib le to record a l l

his

remarks

the re was

grea t

deal of content

i n hls conversat ion.

I regarded hlm &S a

person whose prognosls o r outlook as f a r as a depressive

i l l n e s s was

concerned,

as being

poor.

is , i n my

y e w ,

s t i l l suffering from

a depressive condition

which 1s r e l a t ed

hys te r ica l ' convers ion

reac t ion .

couldn't

account

pos i t ive ly for the phys ica l

findings

but the bas ic s i tua t ion

i s as I have said one of a conversion state.

This condition

i s usually

manifested,

i n h i s ca se , man i fe s t ed

symptoms

af fec t ing the in jured a rea

and

a l s o -the

a rea which

of course probl.ems

has

been

subjected

to operation.

But

bas i ca l ly his

a r i s e f r o m the underlying depression

o f hls condition.

I formed a view that h i s cond i t ion ,

as I did before , was still

bas ica l ly

o r s ign i f i ca l ly , a rose

the

bas i s

of aggravation

and/or acceleration m a person who

may

wel l

a t l e a s t on

the

balance, be quite predisposed for reasons already stated

i n

other reports , a personal i ty which was

develop

a prone t o develop t h i s s o r t of problem

nervous

condition.

other

words,

with

t h i s t y p e

s t r e s s and

in ju ry ,

o r any

i n j u r y f o r t h a t

matter.

His evidence continued as follows -

tlDoctor, given that predisposing personal i ty ,

what

i s your

view of

the par t played

by the in ju ry to the

hand on 20 February

1968 and the subsequent treatment

t ha t i n ju ry?

-- Well,

wou ld r ega rd the in i t i a l l n ju ry to the

hand

being

what

one

might

ca l l t he p rec ip i t a t ing

o r aggravat ing factor .

I think that

t h e background t o develop

t h i s s o r t

of condition of course

was

s e t

and

t h a t i n j u r y

which

was

unusual and

bel ieve unusual ly painful ,

d id start a

t r a m of events leading to

a more

frank

depressive

condition o r conversion

s ta te

as I have

outlined.

The

f a c t

t h a t

he had operations,

I think,

f u r t h e r compounded the

fe lony

t o speak,

that

he expected relief following surgery,

which

d idn ' t

come.

Although,

as I have s t a t e d , a f t e r

t h e

last operation,

d id obta in

some

r e l i e f .

m r t h e r , a l s o , h e

was

extremely disturbed

and anxious by the

suggestion a t one s tage when he was operated on by

Mr. Hooper I

t h ink , t ha t

t h i s cond i t ion

may

have

been

malignant.

Therefore,

t h i n k t h i s s e r i e s

trauma, the original trauma

i s added

t o

by the subsequent trauma And i f he is a man

the operation.

who

has had a nunber

injuries

over

peL-iod of

t en

o r eleven years, each individual injury

o r

incident

o r what have you,

would

each contribute

t o t h e f i n a l

s t a t e i n which

you

saw hlm?

Yes, one

can' t divorce those

cont r ibu tory fac tors

from the p lc ture as

saw it.

You

are no t ab le to say

how much

o f t h i s man's

i n a b i l i t y t o

work, when you saw him, was due t o the incident in February 1968? -- How much was due t o o t h e r f a c t o r s , e i t h e r f a c t o r s

p r i o r

t o then

o r f ac to r s a f t e r

t hen?

-- I think i t - I s

impossible

t o p u t

t h a t

i n

t e r m s

quantit ive percentage.

A l l I

could

say was

tha t

i n Ju ry

was

h ighly

s igndf lcant

for

him,

p a r t i c u l a r l y

as	it was	subject	t o l a t e r su rge ry .	From	a	psycho log ica l pon t
of	view.

Two repor t s by Dr. McCloskey,one dated 12th November

1969 and another dated 4th

May 1977 were admitted by consent.

On 12th November

1969 D r .

McCloskey s t a t e d -

"This pat ient has suffzred

number

o f

acc iden t s i n the

P.M.G.

and

a s a

r e su l t , he

suf fer ing from a

gross anxie ty s ta te .

Because

o f t h i s a n x i e t y s t a t e

i s no

longer f i t f o r work.

I c o n s i d e r t h i s t o t ha t t he pa t i en t

be a

permanent

d i s a b i l i t y and

consider

suf fer ing

from

considerable disabi l i ty .

The p a t i e n t ' s i n t e n s e p a i n i n h i s l e f t

most

pressing complaint a t the

moment

is of

hand which

has been described as

chordalgia pain,

however

I have never seen chordalgia apart

from an amputation

stump,

and I see no evidence of t h i s p a t i e n t

having had

h i s hand amputated.

Therefore,

In my opinion he

i s not suf fe r ing

from

chordalgia, but

s o f t t i s s u e i n j u r y t o

h i s l e f t hand and an u n f i t €o r work,

acute anxie ty s ta te .

This pat ient

and I would agree

tha-c he

is not f i t f o r work

due t o h i s a n x i e t y s t a t e , has been precipitated

and

th ink tha t t h i s anx ie ty s t a t e

by the numerous accidents he has had

during the course

h i s

employment."

I n May

1977 he

s t a t e d -

"Therefore .......

the pat ient has

had a

number of accic7e.nts

including one

t o h i s l e f t

hand

and

a s a

r e s u l t o f

a l l h i -

accidents and the

one

t o t h e l e f t

hand

i n p a r t i c u l a r ,

permanently unfit

f o r work. ' 1

16.

Dr.

S i n c l a i r vas

ca l led

for

the

respondent .

' /

report of	Dr.	Sinclair dated 29th October	1971 was admitted.
I

The burden of	its content is tha t t he appe l l an t	was	a paranoid
I

;individual more

in te res ted in the acceptance

others of

h i s d i s a b i l i t y t h a n

e v e n t h e d i s a b i l i t y i t s e l f . A f t e r n o t i n g

tha t the appel lan t had had

numerous

in jur ies each

o f which vas

probably super f ic ia l ly	non	s e r l o u s , t h e r e p o r t s t a t e s t h a t t h e
appel lant -

!'has a gross phobic s ta te

........ ........ .....

.....

has no

in s igh t and

is preoccupied with the

wish t o have

these

injur ies

s ingly

and

to t a l i t y

r ecogn i sed

as compensible i n j u r i e s .

With

the exception of the meniscus

be l i eve tha t no t

one of

t h e

i n j u r i e s

r e f e r r e d

t o , p h y s i c a l l y

o r

psychologica l ly has

le f t

compensible

s t a t e of

incapaci ty .

The

other

conclusion

that

ar r lved

a t is tha t t he pe r sona l l ty

this man

is such that

will

continue

i n h i s e f f o r t s t o

have

h i s i l l n e s s

recognised and accepted as being the

f au l t of

someone	e l se r a the r t han	as	I	be l ieve a r i s ing	from
h i s own	personal i ty . It

The report concludes -

"Paranoid

ind iv idua ls have the i r

malady

f i rmly

imbedded I n

t h e i r p e r s o n a l i t y .

They

a re

usua l ly

self

centred,

meticulous,

r igid, humourless

and

g iven

p ro jec t ion .

This

form

projec-cion

is used

i n any

s i t u a t i o n where

there has been an

instance about which the sw-ferer can feel

r ighteously indignant .

With

the present

Worker ' S

Compensation L e g i s l a t i o n t h i s o f f e r s

very

good

avenue f o r pursuing a

sense of inJury

and f o r

expressing righteous indignation."

Dr.	Sinc la i r ' s spec i f ic d iagnos is of the appel lan t ' s

condition vas that he was a chronlc paranoid hypochondriac.

In his evidence

the Tribunal

Dr.

Sinc la i r s a id

t h a t t h e a p p e l l a n t

was

not a

good

candidate for

trauma

and

Would

b e l i k e l y t o o v e r r e a c t t o

it.

said

t h a t with

true hypochondriac there

was

frequently insomnia

due t o t h e

17.

-...

pat ient mil l ing over

h i s symptoms

md t ha t t he re

i s l i k e l y t o

be a complaint re ta ined wi th in the pa t ien t

o f pain as being present

a t a l l times

and

' S

consciousness

a t a l l times

and

t h a t when

descr ibing those pains

the i r language

i s extreme,

t hea t r i ca l

t ype .

s a i d

t h a t

considered

the

zppellant

u n f i t

f o r vork

that involves the use

o f

his

body.

I .

Dr. S i n c l a i r was asked by the Trlbunal whether

agreed with

Dr. Barnes tha t t he in ju ry

of February 1968

'Iwas

the aggravat ing factor

which operated on his underlying

condition1'.

There

was

in t e r rup t ion , and

the Tribunal

sa id , "1 just asked

you whether you think that the in jury

1968 was

such an aggravating factor

and whether it had t h a t

e f f e c t o f

developmg the psycholcgical state

t o where

i t ' s

gone - Y?ould you agree with t h a t a s

a proposition?Il After

fur ther in te r rupt ion the Tr ibunal sa id ,

"The

pa r t i cu la r po in t

I am

t ry ing t o ask you is whether you would agree with

Dr.

Barnesl description of

the e f f e c t of

the incident

1968

had on h is mental

condition?".

Dr. S i n c l a i r

s a i d ,

'!Yes,

although I believe with

a personal i ty of t h i s type any dramatic

event would aggravate it.

It 's a b i t l i k e adding one more

br ick

t o a pyramid and any

l i f e s i t u a t i o n t h a t ' s

unhappy

one,

p a r t i c u l a r l y

d r m a t i c

one

would

aggravate it.

I don' t

be l ieve tha t

what

was

fa i r ly s imple acc ident

was

i n i t s e l f

sole

aggravat ing

factor ."

The

Trlbunal

said

"1 think

Dr. Kornan d i d n ' t seem t o think the accident

was

so much

a s

the two operations that followed

from i-i;

and

t h e f a c t t h a t a f t e r

t he first operation the pain

d id not go away."

Dr.

S i n c l a i r

s a id , "1 think an operation

is a dramatic, tangible

Thing and

any operation leaves

a s ca r and i s sure t o elaborate the

_--_,

18.

psychological d isorder i n the p a t i e n t ' s mind.

The

operation

i t s e l f was

relat ively minor*

I 1

In the reasons for

judgment

it is said

that

t h l s

evidence of Dr.

S i n c l a i r is accepted and it was

t r ea t ed by 'he

Tribunal as be ing

In conf l ic t

with

t h e

view

t h a t

t h e

hand in ju ry

and

the operat ions

d id

mater ia l ly aggravate the appel lant ' s

personal i ty

d i sorder .

But

whatever

were

t h e v i e w

Dr.

S i n c l a i r

to the appel lan t ' s paranoia ,

the i ssue

the

aggravat ing affect

o f

trauma

which

was

the c r l ' t i ca l po in t there

was

c o n f l i c t between

Dr.

S i n c l a i r and

the other witnesses.

Dr. Sinc la i r confirmed the evidence

of Dr. Barnes and expressed

c l e a r v i e w

t o t h e l i k e l y e f f e c t

o i a

dramatic event along

similar

l i n e s .

f a r as

D r .

Sinclair questioned the evidence

Dr. Barnes, on the matter of the appel lant ' s aepression,

it is

t o be observed

t h a t on this

- matter there

is strong support

for the observa t ions

Dr. Barnes from Commonwealth sources.

It is my

view t o misunderstand the evidence of

Dr.

S i n c l a i r t o ga ther from

the Tribunal appears to

have

done, tha t it supports the contention May 1968 and its sequelae including the operat ions

that the accident

of 20th

made no

s ign i f i can t

change

and

was

no t l i ke ly to aggrava te

o r acce le ra te

his long standing mental condition.

If, i n connection with

a l l t h i s ,

one

r e f e r s t o t h e

words of Dr. Sul l ivan , the

Cornnonwealth Medical Officer

r ~ ~ n t t e n

i n May 1969 when he decided the appcllarlL

must be dismissed,

there i s presented

a most

convincing picture

o f t h e s t a t e

the appel lan t , r igh t ly

o r

wrongly, but actually, obsessed

and

depressed by h i s hand Injury.

sa id -

I1This m a n is

i n a

t ragx psychologica l condi t ion ,

is in t rospec t ive and has

f i x a t i o n on

various

a f f l i c t ions , i nc lud ing

an unreasoning fear

cancer.

He has some idea that doctors

are

keeplng

from h i m some

d i r e a i l m e n t t h a t a f f l l c t s

him

and

they will

n o t t e l l

him.

is mainly preoccupied

with a burning sensation of the thenar

eminence of

t h e l e f t hand. .......

and is wearing a glove on this

hand,

ac tua l ly r e c o i l s when

one

endeavours

t o

palpate

it, as i f it i s exquis i te ly tender and ye t

it is observed t h a t when he arose from the couch,

he put his f u l l weight on thls region t o l i f t

himself.

Accordingly on this i ssue I am

of opinion that the

evidence is a l l one the operations materially aggravated the appellant

way

t o t he e f f ec t t ha t t he

hand

in jury

and

long

standing condition. That

was

the only finding

open

the

f i rs t

i ssue .

I come now t o the second issue as postulated

by the

Tribunal, namely whether an in ju ry and operations t o t he ba l l

of t h e a p p e l l a n t ' s l e f t accelerated the mental problem, arose out

hand,

which

it is said caused

o r

of	the accident.

If, then,some injury

t o the appel lan t ' s hand and

supervening pain

and

operat ions aggravated the appel lant ' s

personal i ty disorder the quest ion

i s whether

t h a t i n j u r y

was

i n i t i a t e d

what

occur red in the inc ident in

which

some

p a r t

o r

20.

p a r t s of	the appel lan t ' s	hand were	in jured on	20th February
1968.

TWO questions are

wrapped

i n t h l s i s s u e a s s t a t e d .

F i r s t , waj the bal l

the hand

in jured on

20th February 1968

and second, i f it was, were

pain and operative treatment

consequence

thereof .

There

i s no

r e a l d i s p u t e

t h a t

t h i s

second question should

resolved

i n the aff i rmat ive.

The f ind ing of the Tribunal

on the first o f t hes s

questions

was

. that he

was

n o t s a t i s f i e d t h a t t h e b a l l

the

hand

d i d s u f f e r i n j u r y

20th

February 1968.

The evidence of the appel lant

was very

relevant.

vas the person

who

r e a l l y knew

what

p a r t

o f

h i s hand had been

squashed lr, a mater ia l way

in the acc iden t

o f 20th February

1968.

This was

c r i t i ca l

ques t ion .

the

only

injury

t o

the

hand vas

t o t h e l i t t l e f i n g e r t h e n t h e

ttlinktl

between the

accident

o f

20th February 1968

and

the subsequent troubles in

the thenar region could not

establ ished.

It was

necessary that the value

o f

the appel lant ' S

evidence should

carefully assessed with respect

t o the

a p p e l l a n t ' s c r e d i b i l i t y

and

hls

capacity

t o remember

the events

of 20th February

1968.

this

connect ion

the Tribunal

s ta ted

"In

t h i s

present unfor tuna te condi t ion l i t t l e

weight can

at tached t o vhat the claimant

said in

expected some explanation from him a s t o how h i s

complaint i n December 1967 of a h o t burning

Fensation i n t h e palm of the l e f t hand did, o r

evidence.

Nevertheless,

should have

. .

21.

d id n o t , r e l a t e

t o the pain

which he

subsequently

claimed flowed from the accidanL in FebIuary, There i s no doubt t h a t he had a serious mental

sickness be€ore the

m j u r y there

i s no

doubt

t h a t

had

cancer

phobla

before

the

injury.

I do

no t

accept the claimant's denial

very frequent

minor

i n p r i e s b e f o r e t h e a c c i d e n t i n t h e f a c e

a l l t h e

other

evidence.

A s Dr, Sullivan put

r e l a t i o n

to the c la imant ' s

record

o f

i n j u r i e s

'You see

there are

many

many.

would

have t o go throw-gh These.

There

I s

the

r i g h t

hand

the re , hee l , r i gh t l eg ,

t he

knees,

the rlght

mld

f inger ,

r ight eye,

there

i s

f inger here (not specif ied

whlch one)

- f inge r improving, painful

back,

bruised

muscles,

bruised

chest

........ ..

I 1

In the conduct

of the case the respondent

made no

challenge to the evidence

the appel lant that the thenar

o r b a l l o f

the

thumb

had been

squashed

in the accident.

Indeed

it was

af ter the appel lant had

been re-examined

t h a t Counsel

f o r

the respondent sought leave

t o

ask about the details

the accident,

and @en

tlbe appellant described

it he s a i d -

"That s a l l I wanted 20 know Mr.

Wurzel. I t

It was a f t e r t h i s ,

i n the opening

o f

the case for the respondent , that the

following passage ensued

Mr.

Way I say i t ' s conceded tha t

t he re

was

a hand

in jury .

Wheeler:

Perhaps

i t ' s

not

formally

conceded t h a t any other

p a r t

o f

h is

hand , o ther than the l i t t l e f inger ,

was

injured

that occasion, but

it seems p r e t t y c l e a r

that the evidence

i s t h a t some

o the r pa r t

the hand

was

injured.

The

You

say

tha t

i t ' s p r e t t y

c l e a r

t h a t

some

o ther

par t s

Tribunal: of the hand were Injured?

Mr.

Yes.

I have no evjdence

that

by and large

could

Wheeler: any way impinge upon the

evidence

given.

It may be

t h a t it would be

convenient i f the Tribunal

made a

formal f ind lng in respec t

vhether there

was

a g a r t

of the hand

inJUred

other

than

the

l i t t l e f i n g e r .

But

t h a t ' s n o t s t r i c t l y p a r t

the Tribunal 's present

func t ions in my

submission.

Even assuming the hand

in ju ry

a s

i s claimed by the

appl icant ,

which

for

the

, _

22.

purposes of the

main

argument,

I wish

t o p u t t o

the Tribunal ,

can be

assumed,

t he re

i s no

causative llnk i n my submission between

that and

his	present mental condition. 'I

Counsel for the respondent informed

that i n h i s

f l na l addres s

withdrew

the

concession

he had made.

The

matter proceeded

as f o l l o w -

Mr.

"That concession

was

s p e c i f i c a l l y withdravrn. I

Wheeler:

does not appear

i n t ranscr ipt because

it waa

a t

a time

f i na l addres ses ,

which

were

not

reported,

I think it p rope r

mention that ,

i n case your

Honour draws some conclusion

from

tha t , that Mr. Ballard had accepted a concession

and then not re l ied

upon a concession.

H i s	He	did n o t r e l y	upon it, anyway,	d id he?
Honour :

Mr.	No,	he did n o t r e l y	upon it.
Wheeler:

H i s

What happens i f you make a concession l ike that?

Honour :

What

was happenlng a t p .57; tha t was ea r ly , was

i t ?

Mr.

It was a t a time before

I had ca l l ed any evidence.

Wheeler:

His

You were c a l l i n g Plr.

Sull ivan?

You

d id not withdra',.

Honour :

t ha t un t i l t he addres ses

- you would

be the

first t o

go, I suppose?

M r .

t r y i n g t o r e c a l l

a t prec ise ly vlhat

s tage that

Wheeler:

occurred. I remember discussing it with my learned

f r i e n d

Mr.

Stot t , in the presence of the

tribunal.

His

?hat d id Mr.

S t o t t have

to say abou t t ha t ?

Honour :

M??,

I think he said he wanted

t o r e l y on any concessions

Wheeler:

I had made.

H i s

It i s a l i t t l e awlward,

i s it not, withdrawing

Honour :

concession a t the l as t moment

i n a case?

If the case has do you do t h a t ?

gone

ahead on

a c e r t a i n b a s i s ,

how

Mr.

Because,

as I say, a t a s tage a t which the appel lant

Wheeler:

had concluded h is evidence.

It d i d n o t ,

i n

submission. affect the evidence

o r the

course

t he

further evidence

i n the case.

His

Crnss-examination

might have been d i f f e ren t .

Honour :

j u s t shows you, everybody says:

I do not want

counsel 's address;

you nearly always

do.

Mr.

The

s i t u a t i o n is completely clar i f ied, but

c l a r i f i e d by

the sec t ion

a t the

Wheeler:

top o f the next page.

do not say

it i s

H i s

'I have no evidence

t h a t by

and

la rge ......(

reads)

Honour :

........ and I emphasise

the word illness.'

Mr.

Might

say

in r e l a t i o n t o the question you

Wheeler:

raised about

that concession, a l l I can say

i s

it was withdravm.	I am unsure vhether it vas
i n f ina l addres ses ,	where I thought it vas and

I assumed not taken

that because the f inal addresses

were

and the o-cher comnents

of Mr. S t o t t

and myself do recol lec t tha t a l though

not

appear on the

t r ansc r ip t .

I am

not sure

it was

not tha t a f te rnoon.

H i s

seemed more the t r ansc r ip t .

l i k e l y that it was

in the addres ses

Honour :

because

ga ther it was

not

i n t h e - o t h e r p a r t s

Mr.

No,

it ce r t a in ly does

not

appear.

I do not know

Wheeler:

that the re is any more 1 can help your

Honour w t h .

H i s

Natural ly , I accept vhat

you say but

I am

j u s t

Honour :

wondering i f you can

go around doing

that klnd of

thing. that does Mr. Wurzel say? He says:

That

is no good t o me; they conceded this.

My counsel

proceeded OK the basis t h a t it was concedes.

Might

he no t ask Dr. Sullivan a whole l o t o f questions

he did not ask him?

Mr.

A l l I can say i s t o tha t is there was no such

Wheeler:

submission

made

t o t h e t r i b u n a l .

H i s

Yes, I see.

You cannot remember qui te what Mr. S t o t t

Honour :

s a i d , but he

d id not say

that o r anything l i k e that?

Mr.

That is s o .

A s f a r as I can remember,

whenever

Wheeler:

vas

r a i sed and I sald that I, i n s o f a r as I had

think

the t r ibunal ra l sed the ques t ion

made a concession,

sought t o wthdraw

it and

th ink the t r ibunal then

sa id : That do you

say, Mr.

S t o t t .

M r .

S t o t t said:

seek t o r e l y

on any

concessions

tha t a r e made.

A s

f a r a s I remember t h a t was what happened and I bel ieve

a c c u r a t e t h a t

t h a t

is a s far as the dicussion

went.

H i s

He did not accept

it then on that basis.

He says:

Honour :

All r ight , the concession

was made;

I seek to r e ly

on it.

cur ious

s i tuat ion. Well .

that

i s your

recollection

of	it, is it, that it proceeded along those lines?

Mr.

The

t r a m c r i p t of it was not recorded.

the addresses could be

Wheeler:

obtained, but it was not taken

down a t a l l ;

H i s

Not recorded?

Honour :

H i s

wonder i f the tape

is still in ex i s t ence?

. Honour:

M r .

I will have enqui r ies made but I have a

' Wheeler:

recol lec t ion

the tape being

switched off ;

t h a t i s why

I d id not th ink

It was

recorded.

H i s	If the tape	comes t o ligh-c, you will	let 'me
Honour :	know?
Mr.	Certainly.

Wheeler:

In the absence

fur ther information

I assme

the tape

i s not avai lable .

This concession

is n o t r e f e r r e d t o

i n the reasons

f o r judgment of the Tribunal.

This

concession

could

not

properly be withdrawn

when it was, without the consent of

the

appellanx,

or a t l e a s t on appropriate condi t ions.

The

conduct

o f

the appellant 's case might have been different

had it not

been

made.

It was

a t the ve ry l ea s t

an admission

made

de l ibe ra t e ly wi th fu l l

knowledge and

as such of

much

importance.

7t is t o be observe

d tha

.t although there

was

p len ty

evidence that the appellant had

long s tandlng personal i ty

disorder of anxiety, depression, probably hypochondria

and

paranoia , there

no th ing to ind ica t e tha t t he appe l l an t

was

a conscious l i a r o r that he was incapable of remembering events

s ignif icance.

Certainly

i n evaluating'evidence

the

se rve r l ty of pain and

syrlp-l;vus, the statements of the appellant

would require

careful

scrutiny

because

of h i s paranoia.

Dr.

Sinc la i r s a id , r eac t ion

t o trauma would probably be

over-

react ion.

But I find

nothing

the

evidence

t o j u s t i f y

f ind ing tha t

on the question

of what p a r t of h i s hand was

squashed on 20th February

1968 the evidence

of the appellant

was t o be depreciated on the b a s i s t h a t

however ra'tlonal o r

s a t i s f a c t o r y o r credible it might otherwise appear,

it was

necessar i ly

t o be

t r ea t ed a s

l i t t l e weight because

his present

unfortunate

condition.

The

t a s k of

the

Tribunal

was t o consider it without

classifying

it as necessar i ly

o f l i t t l e welght, not, personal i ty

o f

course, ignoring the appel lant ' s

and

i l lness but valuing the evidence

reference

t o a l l appropr ia te cons ldera t ions

demeanour,

r a t i o n a l i t y ,

s i n c e r i t y ,

memory

and

the l i ke .

I n t h i s

appeal the appellant conducted

his

own

case

and h i s personality

necessarily

obtruded.

But

ce r t a in ly

exhibited a good memory.

If his present

condition

is anything

l i k e t h a t

June

1977 I would cer ta in ly not

think that

his

evidence

pas t events

was

necessar i ly

o f

l i t t l e v a l u e .

Having ind ica ted tha t

the evidence of the appellant

must

necessar i ly

o f

l i t t l e weight, the Tribunal attached

importance

t o t he f ac t t ha t t he appe l l an t f a i l ed

t o

explain

how a complaint

by him i n December 1967 of a

hot burning

sensat ion in the

palm

the

l e f t hand

did,

o r d i d n o t , r e l a t e

26.

70 the pain accident i n February.

which he subsequently claimed folloved the

A s t o t h i s the Tribunal

said -

j"Nevertheless, I would have expected

some explanatiori on

th i s mat te r ?despite

from

him."

"NeverthelessI1

apparently

means

his

evidence

being

l i t t l e weight. Ir

This

seems

t o be put t o the

appel lan t ' s

c red i t .

so , it is inapt and

operates

unfalrly

because

the

omission

give

an explanation,

i f there were one,

would r e su l t no t

from any i n i t i a t i v e of

the

appellant but

depended on the questions

he was asked by h i s ovm

counsel,

counsel

for

the

respondent

and the

Tribunal.

any

event the matter

was not one for explznation but f o r evidence

of the observed that

re levant

fac ts .

the point

substance it is t o be

the appellant I s case was t h a t h i s thenar was

injured on 20th

February

1968.

The

thenar

q u i t e d i s t i n c t

from the palm area of the hand and i f it was des i r ed to

argue

t h a t

some

o l d i n j u r y i n t h e

palm

caused the pains

i n t h e t h e n a r

then it was

f o r the par ty

making

tha t case

t o c a l l t h e

evidence t o support it.	This aspect of the	matter	i s discussed
hereaf te r .

There is no support

vidence

for the

suggest ion that the hot burning sensat ion in the

palm

reported

the appe l l an t i n

December

1967 and which had apparently not

recurred,

was

l i k e l y t o

have caused the pains

and

d i s a b i l l t y

in the thenar reg ion

which

came

on a f t e r 20th February 1968.

It would seem a l s o c red ib i l i ty the Tr ibunal a t tached impor tance to h is denia l

t h a t

i n

r e l a t i o n

t o the

appel lan t ' s

t ha t t he re

had been very frequent ninor injuries before the

accident.	But	t h e f a c t	i s tha t	t he appe l l an t	made	no	such	!
I

27.

denia l .

c e r t a i n l y said t h a t he

thought E30

visits t o

first aid was

a gross exaggeration,

but t h a t i s qu i t e a

d i f fe ren t

th ing .

gave

evidence

i n c h i e f

that he

has

had

many inJu r i e s ,

some ser ious and others of

a trivial na ture ,

and i n cross-examination

agreed he had suffered

"many many''

i n

j u r i e

S .

i s

c l e a r , t h e r e f o r e , t h a t t h e c r e d i b i l i t y

the

appel lant

was

discounted

on grounds which cannot be supported.

those grounds are ignored

and t h e r e s t

the evidence

regarded there

1s much

suppor t for the

view that the a2pel lan t

must have

hurt his hand in the thena r r eg ion

on 20th February

1968.

Really

the only matter of consequence whch

may

sa id

t o c o n f l i c t with

the appellant 's evidence

on t h i s poin t i s that

it i s said i n the reasons for

judgment of

the Tribm-al that

when

the appel lan t repor ted to

Dr.

Sul l ivan on

20th February

1968 he d id not mention

that the thenar region

was involved.

is t o be observed, however,

t h a t Dr.

Sul l ivan did nor say

thls

spec i f i ca l ly .

i s perhaps

reasonable

infer

it but it

I	was not said.

The

respondent

did not lead such evidence from

Dr.

Sull ivan.

The respondent d id not

cross-examine

the

appel lant

on that po in t ,

and the

appellant 's

counsel

d id not

cross-examine

Dr. Sul l ivan on it.

The inference, i f it was

involved i n what

the doctor

had wr i t t en dovm

i n 1968, vas,

a t that s tage of the

case, unimportant

i n view

the respondent 's concession as

the

injury

ther

pqrts

the

hand.

Had it been

otherwise

28.

the appellant should have been given

opportunity

t o

explain.

And of course

whether

the

inference

from

what

the doctor had writ ten

down

i s sound o r not it has t o be

considered

i n t h e l i g h t

the inherent probabi l i t i es

and

other

evidence. in ju ry t o tile l i t t l e f inge r was

i s c l e a r

t h a t

i n the

ear ly

s tages ,

the

giving the appellant

most

worry,

and

the appellant 's over-reaction

t o h i s

l i t t l e f i n g e r

was

there in evidence.

It is q u i t e l i k e l y

from what

appears

t o

have been

the nature

o f

the actual injury suffered by, the

appe l l an t t o t he r e s t

the

hand

t h a t i t s e f f e c t s a t I that t ime

were minor l i k e l y t h a t

compared

with

t h e

l i t t l e

f i n g e r .

It was

qu i t e

what was

engrossing Dr.

Sullivan on t h a t day rvas

i r r i t a t i o n a t ~II

x-ray

o f tha t in jury be ing

demanded,

and what

was

engrossing the appellant

t h a t

day

was

h i s f ea r t ha t t he re

was

bone

in jury

t o h i s l i t t l e f i n g e r .

I look therefore evidence it is a proper inference	a	t	the	other	evidence.	On	the
that the appel lant ' s	hand rvas

i n good condition on 20th February 1968

and t h a t on t h a t day he

squashed

the

l i t t l e f i n g e r .

Whether

d id some in ju ry t o the

thenar

region

is the

issue.

H i s evidence is t h a t he

reported

the incident evidence as called

t o f lrst a i d and t o h i s overseer

forthwith.

from first

a i d o r the overseer

t o ind ica te

what were t o t he appe l l an t t ha t

the

precise

terms

o f

the

report .

suggestion was put

t h i s

repor t

t o first

a i d

o r the overseer

was

r e spec t

i n ju ry t o t h e

l i t t l e

f i n g e r o n l y .

The

27th

February

1968

was the day on which the

appellant

sought

x-ray

from Dr.

Sullivan.

Whatever was

s a j d t h a t

day it

i s c l e a r t h a t

29.

I	-
!

on 15th Narch 1968 s t a t ed he had

the

appellarit consulted

D r . Muschin and

hur t the

whole

of the knuckle area

of the hand

and t h e b a l l do with the moverilelit o€ the thumb, he sa ld tha t there vas

o f

the

hand.

D r .

Muscnin

s a i d t h a t

it had

t o

pain and

tenderness

that region r ight across the

back of

the hand March D r .

d Muschin

a c e r t a i n amount o€

residual

bruis ing.

18th

referred the appel lant

t o Dr.

Rowlands who

conducted an X-r2y

f irst of

a l l of

t h e l i t t l e f i n g e r

and

shor t ly

a f t e r of the urhole hand. Nothing

was

revealed but tha appellant

s t i l l continued t o consult W.

Muschin who

c e r t i f i e d on 9th

September 1968

t h a t he was having "pains

m t h e l e f t hand which

i n j u r e d a t work i n February

l a s t and t h a t he needed

complete

r e s t and

general

t reatment

for

three

months from now. 'I

I n

September 1968

Dr. Matthews

of the department reported

tha-t the

appel lant had many

complaints and says the worst one

a t p r e s e n t

"is pain

and s~ve l l ing

o f

the

l e f t hand."

Swelling

was

something Dr. Matthew

could

see.

December 1968 the same

off icer reported that the appel lant had

his

l e f t arm

p u t i n

plaster about

month

before

and

tha t opera t ion for carpe l

tunnel was	recommended	but	h i s mental condition	d i d n ' t	permit
it.

In April

1969 Dr.

T h r i f t found t h a t the

appel lan t ' s

principal complaint

was

t h a t i n t h e l e f t

hand

and wrists which

the appel lant s ta ted he

had squashed

i n a door just over

a year

previously.

thought

there

had

been

contusion

In the muscle

o f t h e l e f t

thumb where there was tenderness.

considered

the

appellant

as one having a ~ O W

threshhold of pain.

He sa id

however,

t h a t a

crush injury

be twean

ob j e c ts o f considerable

mass can a l l proportion t o the

r e s u l t i n

a very painful condition frequently out

o r ig ina l	in jury	vtnere	there	are	nerves	' I
I

that

are

contused.

Any

inc rease

in mass such

these

small

lumps can April 1969 the appellant

r e s u l t

i n

a compression o f the median nerve.

t o l d him that he had

a burning pain,

no t cons t an t , f e l t t ha t t he compla in t s t ha t t he appe l l an t	pa r t i cu la r ly	a t	n igh t .	D r .	Th r i f t	s a i d	t h a t	he	, '
i

made

o f

pain

and

d i s a b i l i t y were

genuim.

May

1969 D r .

Thrif t accepted

that

the appel lant

was

still having canstant pain in

h i s l e f t

thumb.

In May

1969 D r .

Sullivan

found

the

appellant

complaining

o f

a burning sensation In the thenar

eminence

t h e l e f t

hand.

September

1969

D r .

Pluschin referred

the

appel lant

t o

Mr. Hooper.

So f a r a s

Nr.

Hooper

is concerned it is we l l t o t ake

into

account

the

comments of D r .

Aberdeen.

s a i d -

ll\erell I think Hr. Hooper is a very wise

and learned

man

and

quite sure he wouldn't need the records

the Postmaster-General's Department

t o sum Mr.

t h r z e l up."

Mr.

Hooper

took the appel lant ' s thenar

har?d condition

ser iously.

examined the

appel lan t ' s

hand

and

found

tenderness

in the r eg ion

of t he ba l l

of the thumb and a

s l igh t sugges t ion

a small the thumb.

lump

i n t h a t r e g i o n

and

s l i g h t s w e l l i n g a t -the b a l l

In December 1969

electro-myogram

was

carr ied out

I l

31.

l	disc los ing what IW. Hooper thought was a glomus tumour.	A t
l

I the opera t ion in

1971 t h e l m p

thcughT t o be

glomus

tumour was

not

found.

However, Mr. Hooper dlvid-ed a nerve t o reduce

;pain In

the a rea .

A t the second operation in January 1973

Mr.

Hooper

found what he had thought

i n December

‘1969

t o be the

glomus

tumour.

It was not a glomus

tumour

b u t was

s c a r t i s s u e

which

had become a painful

nodule.

Sczr t x s u e is t h e r e s u l t

haemorrhqyandMr. Hooper’s opinion

that the appe1lar;t had

had ahaemorrhageinto the bal l

t h e t h m b

and

t h a t t h i s

formed t h e s c a r

and

involved nerve ends

and became

a pa infu l

nodule.

The evidence

Mr.

Hooper t h a t

t h e

s c a r

tissue

was there said i n cross-exaimmation

before

the

operat ion

1971

i s qu i t e

c l ea r .

- “He d id not have a glomus tumour, but

he did have something

........ .

namely

the s ca r

tissue.Il

The

reasons for

judgment of

the Tribunal d isc lose

tha t cons iderable a t ten t ion

was

given to the question whether

there was

link

between t h e i n p r y t o t h e l i t t l e f i n g e r

and

the

pains subsequently suffered

the appe l l an t i n the thena r a rea .

The

question appears to have been posed

the bas i s

that

the

only par t

of the hand involved

i n the Incident

of 20th February

1968 was t h e

l i t t l e f i n g e r .

The

Tribunal

decided

that

there

was no

evidence

any

such

link.

In t h i s he was undoubtedly

r igh t .

A s t o such

a p o s s i b i l i t y ,

Dr.

Aberdeen

sa id

‘I

I n no

way .

The appel lant’s

case

depended therefore on h i s

es tab l i sh ing that the thena r pa r t

the hand was

in jured when

the hand was

caught between

the door

and t h e t r o l l e y

01: 20th

Fcbruary

1368.

If point the evldence is t h a t on 15th March 1968 the hand was

one

forgets the appel lant ' s evidence

this

found t o be in ju red in the

manner dzscribed by Dr. Nuuschin.

What he found was not only

what the appellant

t o l d him about

i n ju ry of

the thenar region

20th

February 1968 but residual

bruis ing which he

would

see apparent ly r ight across the

back

of the hand, thar; the

symptoms observed on 18th March were

consistent with contlnuing pain

and tenderness in the thenar

a rea

l a te r

examinat ions .

September

1968

D r .

Matthews

observed

swel l ing

the

lef t

hand.

September

1968 Dr.

Muschin

c e r t i f i e d p a i n s i n t h e l e f t

hand.

In Apri l

1969

Dr.

T h r i f t formed

the

opinion

there

had

been

contusion

the

area which

would

consistent

with

a crushing

injury.

September 1969 M r . Hooper detected the small

lump which turned

out

t o be

s c a r t i s s u e .

In these circumstances

the question arose as

t o -the

probable cause

the cont lnuing pains in the thenar region.

There was the incident

of 20th February 1968

which might have

caused it.

There was

in the appel lan t ' s case

evidence of

any

other

probable

cause.

Hmever

,the

Tribunal

was of oplnion

that

the pains

might have been

r e l a t ed t o and apparently a

development

in ju ry t o the middle r inger in respect

which

it appeared that in

December

1967 the appel lant had suffered

burning sensat ion in

some m-specified portion

o f the palm of the

l e f t hand.

t o th i s

the

ibunal

sa id

33.

"1 am n o t s a t l s f i e d b a l l of the hand was not the same pain as

t h a t the

pain t o the

t h a t complained of two months before the

accident.

I make no f inding

t o th l s .

does not really matter whether

this

i s

so o r whether it developed a f t e r -the

accident. I t

The

meaning

this i s not c lear , bu t

it ce r t a in ly

appears tha t in

his

considerat ion

t he poss ib i l i t i e s t he

Tribunal took into account

what was r e d l y a f lnding on h i s

p a r t t h a t the December 1967 in jury was the

evidence,

while

not

es tabl ishing

that

the

cause

t he

l a t e r

pa ins

i n

t he

thenar area, nevertheless pointed

with

s igni f icant persuas ive

force t o the December 1967 injury

the

l ikely

source

of the

troubles. !

thenar

subsequent

If o f recurrence o r aggravation of

vere tha t the thenar pa ins vere

a development

the i n j u r y of December 1967

which produced a hot burning sensation,

question would

immediately arise as

t o whether the recurrence

o r

aggravation

was not caused ignoring th i s question,

by the hand inJury o f 20th February

1968.

But

the s i t u a t i o n would be

t h a t if

the

evidence concerning the

December

1967 condition d id point

s ign i f i can t ly t o tha t cogdi t ion as

reasonable explanation

o f

the thenar pains , then in the absence

evidence

t o e x p l a i n t h a t

hypothesis away,

there would remain a doubt

on the balance

p robab i l i t i e s a s

t o which

two

competing possible czuses

was

the r ea l

one.

O f course

it was

necessary for the appel lan t to

e s t ab l i sh

the balance

p robabi l i t i es tha t the pa ins

were

34.

t h e r e s u l t by reference to the

o f inJury on 20th February 1968, and t o do that

whole of the evidence as

it s tood a t the

end of

the hearing.

A t that s tage there had

t o be

taken into account

what Banrick,	C . J .	s a i d	i n	Furkess v. Crit tenden, 114 C.L.R.	i
I

168 that “evidence ..

D . . . which,

i f

accepted,

would

e s t ab l i sh

with some reasonable measure o f p rec is lon , what the p e-existing

condition was

and ?!hat

i t s fu tu re e f f ec t s . . .

. t h e i r f u I,

re develop

ment

were l i k e l y t o b e Vhen such evidence has been giv

n then

the par ty against

whom

it operates will

n e g l e c t t o c a l l

explanatory o r contradlctory evidence at

hls per i l .

But the burden

of call ing such explanatory

o r

contradictory evidence does not arise

when

the

Lnost

than can

be s a i d o f exis t ing condi t ion

the existence

and

e f f e c t of

any such alleged pre-

is t h a t it

is merely a suggestion thereof.

And t h a t f a c t t h a t t h e r e

course

is more

than can be said in this case.

The

was

a burning sensation

i n t h e

palm

the hand

i n some unspecified place

and of some unspec i f ied in tens i ty

and

appa ren t ly r e l a t ing in

some

way

t o

the middle finger suggests

nothing about pains in the thenar region

where

there

was

bleeding

caus ing sca r t i s sue in tha t a r ea ,

even

i f

the pa ins in tha t a rea

were a t some was asked i n cross-examination whether

s tage descr ibed as

burning sensation.

The

appellant

i n December 1967 he

attended

f irst

aid complaining about discomfort

i n t h e

middle

f inge r of

t h e l e f t

hand

and

i n

t h e

palm of the

hand.

answered,

“NO, I complained with

regard to the middle finger

which

had

been

lanced.

He was asked

nothing

more zbout it.

In the respullclen t 1s f i l e s there appeared

an entry

“December 1967, discomfort

l e f t middle f inge r , a l so

palm of the

l e f t hand,

h o t burning sensation. Dressing applied

t o l e f t

mid f inger ‘I

Dr. Sull ivan who was giving

evidence when the

en t ry was read, was asked nothing about

it and said nothing

about it. It does

not

seem t o have

been

re fer red

t o elsewhere

in the evidence. the in jury re fer red

A s it stands It i s not

even

suggested

that

i n case your

Honour dram some conclusion

from

that , t h a t Mr. Ballard had accepted a concession

and then not re l ied

upon

concession.

I	His	He	d ld n o t r e l y	upon It, anyway,	d ld he?
I	Honour:

Mr.	No,	he d id no t r e ly	upon it.
Wheeler:

H i s

What happens i f you make a concession l ike that?

Honour :

What

was happenlng a t p .57 ; t ha t

was ea r ly , wae

i t ?

IW.

It was

a t a time before

I had ca l l ed any evidence.

Wheeler:

H i s

You were c a l l i n g Mr.

Sull ivan?

You

d i d not withdraw

Honour :

tha t un t i l t he addres ses

- you would be the

first t o

i	go, I suppose?

Mr.

t r y i n g t o r e c a l l - a t p r e c i s e l y

what

s tage tha t

Wheeler:

occurred. I remember dlscussing it with my learned

f r i e n d Mr.

S t o t t , i n the presence

the t r ibunal .

H i s	that	d id Mr.	S t o t t have	to say about that?
Honour :

Mr.	I think he	said he wanted	t o r e l y on any concessions
Wheeler:	I had made.

H i s

It i s a l l t t l e awkward,

is it no t , withdrawing a

Honour :

concession a t the las t moment i n a case?

If the case has do you do that?

gone ahead on a c e r t a i n basis, how

M r .

Because,

a s I say , a t a

s t a g e

a t

which the

appel lant

Wheeler:

had

concluded submission. affect the evidence or the course

his evidence.

I t did n o t ,

i n

the

fur ther ev idence in the case .

Mr.

The

t r a n s c r i p t

o f

the

addresses

could

Wheeler: obtained, but

it vas not taken

dovm

a t a l l ;

it was not recorded.

H i s

Not recorded?

Honour :

His

vronder i f the

t ape

is s t i l l in

ex is tence?

Honour :

Mr.

I wlll have

nquiries

made but I have a

Wheeler:

recollection of

the

tape

being

switched

off;

t h a t i s why

I d i d not th lnk

it was

recorded.

H i s

the

t ape

comes

t o

l i g h t ,

you will

let

Honour :

know?

Mr.

Certainly.

Wheeler:

In the absence

o f fur ther information

I assurce

the tape

i s not ava i lab le .

This

concession i s no t r e fe r r ed to

i n the reasons

for Judgment of the

Tribunal.

This

concession

could

not

properly be withdrawn when

it was, without the consent

o f

the appel lan t ,

o r a t l e a s t

appropriate

conditions.

The

conduct of the appellant's case might have been different

had it not

been

made.

It was

a t t h e v e r y l e a s t

an admission

made

de l ibera te ly with f u l l knowledge and

as such of

much

importance.

It i s t o be observed

that although there

was

p len ty

evidence

that

appellant

had

a long

s tanding

personal i ty

disorder of anxiety, depression, probably hypochondria

and

paranoia, there

is noth ing to ind ica te

t ha t the appel lan t

was

a conscious l i a r o r that he was incapable of remembering events

o f

s ignif icance.

Certainly

evaluat ing 'evidence

the

H i s

Cross-examination

might

have

been

difTercnt.

Honour :

j u s t shows you , everybody says:

I do not want

counsel’s address;

you nearly always do.

Mr.

The

s i t u a t i o n completely clar i f ied, but

i s c l a r i f i e d by

the sec t ion

a t the

Wheeler:

top of the next page.

I do not say

it is

H i s

‘I have no evidence that

hy and la rge ......(

reads)

Honour :

. . . . .. . . and

emphaslse the

word

illness.'

Mr.

Might

s a y i n r e l a t i o n t o t h e q u e s t i o n

you

Wheeler:

raised about that concession,

a l l I

can say

i s

It was withdrawn.

I am unsure

whether

It was

i n f i n a l a d d r e s s e s ,

where

thought

it vas and

I assumed t h a t because the f i n a l addresses were

not taken

and the o ther

ccmments of Mr.

S t o t t

and myself do recol lect that a l though

not

appear

on the

t r ansc r ip t .

I am

not sure

it was

I	not that af ternoon.

H i s

seemed more the t r ansc r ip t .

l i k e l y t h a t

It was

in the addres ses

Honour:

because

gather

was

no t i n the -o the r pa r t s o f

Mr.

No,

it ce r t a in ly does

not

appear.

I do not know

Wheeler:

that the re 1 s any more I can help your

Honour with.

H i s

Natural ly , I accept what you say but

I am

j u s t

Honour :

wondering i f you can go around doing

t h a t kind o f

thing. What does Dlr. Wurzel say? He says: That

is no good t o me; they conceded

this.

Is’Iy counsel

proceeded on the basis t h a t It was conceded.

Dllght

he not ask

Dr. Sul l ivan a whole l o t of questions

he d i d not ask

him?

A l l I can say

i s t o t h a t

i s the re was

no such

Wheeler:

submisslon

made

to the t r i buna l .

His

Yes, I see.

You cannot remember qui te what PIr. S t o t t

Honour:

sa ld , bu t

d id not say

tha t

o r anyth ing l ike tha t?

Mr.

That i s so .

A s f a r as I can remember,

whenever it

Wheeler:

vas ra ised

think

the t r ibunal ra i sed the ques t lon

and I said t h a t I , i n s o fa r a s I had

made

concession,

sought t o withdraw

it and

th ink the t r ibunal then

sa id : What do you say, Mr. S t o t t .

Mr. S t o t t said: I

seek t o r e l y

on any

concessions

that

are

made.

f a r as I remember t h a t was what happened

and I bel ieve

accurate that t h a t i s as f a r a s t he d i cuss ion

went.

His

d i d not accept

it then on

t h a t b a s i s .

says:

Honour :

A l l

r ight , the concession

was

made;

I seek to r e ly

on it.

cur ious

s i tua t ion .

Hel l ,

t h a t

i s your

recollection

of	it, i s it, t h a t it proceeded along those lines?

25.

se rve r l ty o f pain and

synptoms, the statemsnxs

of the appellant

;.rould require

careful

scrutiny

because

h i s

paranoia.

A s

D r .	S l n c l a i r said,	r e a c t i o n t o	trauma	would	probably be over-
I

*react ion.	But	I f ind no th ing	in	the	ev	idence	to	ju s t i fy	a
I

f inding th s t 0% the quest ion

of what p a r t of h i s hand was

squashed on 20th February

1968 the evidence of the appellant

was

t o be depreciated

on the bas i s

tha t however r a t iona l or

sa t i s f ac to ry o r c red ib le it might otherwise appear,

it was

necessa r i ly to be t r ea t ed a s

o f

l i t t l e weight because

o f

h i s present

unfortunate

condi t ion.

The

task of

the

Tribunal

was

cons ider

it without

c lass i fying

it as

necessa r i ly

of l i t t l e weight, not, personal l ty

of course,

ignoring the appel lant ' s

and

i l lness but valuing the evidence

reference

a l l appropr ia te cons idera t ions of

demeanour,

r a t i o n a l i t y ,

s l n c e r i t y ,

memory

and

t h e l i k e .

In th i s appea l t he appe l l an t

conducted

his

own

case

and h i s personal i ty e rh ib i ted a good memory.

necessar i ly

obtruded.

But

cer ta in ly

h is present

condi t ion

i s anything

l i k e t h a t

June

1977

IvOUld

c e r t a i n l y n o t t h i n k t h a t h i s

evidence

pas t events

was

necessa r i ly o f l i t t l e va lue .

Having

indicated that the evidence

the appel lant

must	necessar i ly be of l l t t l e weight , the Tr ibunal a t tached

importance

t o

the

f a c t

t ha t

t he appe l l an t f a l l ed to exp la in

how a complaint by

h i m i n December 1967 of

a hot burning

sensa t ion in the

palm

t h e l e f t

hand

did,

did n o t , r e l a t e

26.

t o t he pa in

which he subsequently clalmed followed the

accident In Wevertheless , I would have expected

February.

A s

t o

t h i s

t h e T r i b u n a l

said

some explanation on

this matter

from

him."

'INeverthclesst1

apparently

means

' 'despite his evldence

being

o f l i t t l e weight.

This

seems

t o be

p u t

t o

t h e a p p e l l a n t ' s c r e d i t .

s o ,

inapt

and

operates

unfairly

because

the

omlssion

glve

an explanation,

i f t he re were

one,

would

r e s u l t n o t

from any

i n i t i a t i v e of

the

appel lan t bu t

depended on the questions he

was asked by h i s own

counsel,

counsel

for

the

respondent

and

the

Tribunal.

I n any

event the matter

was not one for explandAon but

f o r evidence

t he

r e l evan t

f ac t s .

the poin t

substance it is to be

observed

tha t the appel lan t ' s case

was

t h a t

h i s

thenar was

- i n j u r e d on

20th

February

1968.

The

thenar

q u i t e d i s t i n c t

from the

palm area of the

hand and i f it was

d e s i r e d t o

argue

t h a t

some

o ld in ju ry

the

palm caused the pains

i n t h e t h e n a r

then

it was

f o r t h e p a r t y

making

t h a t c a s e t o c a l l t h e

evidence	to	suppor t	it.	This aspect of the	mat ter	i s discussed
hereaf te r .

There

i s no

suppor t in the ev idence for the

suggestion

that

the hot burning sensat ion in the

palm

reported

the appe l l an t i n

December

1967 and which had

apparent ly not

recurred,

was

l i k e l y t o

have caused the pains

and

d i s a b i l i t y

i n the thenar region

which came on

a f t e r 20th February 1968.

It c red ib i l i ty the Tr ibunal a t tached impor tance to

would

seem

a l so

that

i n r e l a t i o n t o t h e a p p e l l a n t ' s

his

denia l

t h a t t h e r e

had been very frequent minor injuries before the

accldent ,

But t he fact i s that

the

appel lant

made no

such

- . - . .

- .

. .

. . .

27.

denla l .

c e r t a m l y s a l d

t h a t

thought 80 v i s l t s t o

first a id was a gross exaggeration, but

that is qui te a

di f fe ren t

th ing .

gave

evidence

i n c h i e f

that he

has

had

many

i n j u r i e s ,

some

serious and others of

t r i v i a l n a t u r e ,

and

i n

cross-examination he agreed he had suffered

"many many"

i n j u r i e s .

c l e a r , t h e r e f o r e , t h a t t h e c r e d i b i l i t y

the

appel lan t was

discounted

grounds whlch cannot be supported.

If those grounds are ignored regarded there

and

the r e s t of the evidence

i s much

suppor t for the

view that the appel lant

must have

h u r t h is hand

in the thena r r eg ion

20th February

1968.

Really

the

only

matter

consequence

which may be sa id

t o c o n f l i c t

with

the appellant 's evidence

th i s

poin t

i s t h a t

it 1s said i n the r easons fo r

judgment

of the

Tribunal t h a t

when

the appel lan t repor ted to

Dr.

Sul l lvan on

20th February

1968 he

d i d not mention that

the thenar region

was involved.

i s t o be

observed,

however,

t h a t Dr.

Sul l ivan d i d no t s ay th i s

spec i f i ca l ly .

is perhaps

reasonable

infer

it but it

was	not sa id .

The

respondent

d id not lead such evidence

from

Dr.

Sull ivan.

The respondent d l d not

cross-examine

the

appellant

t h a t p o l n t ,

and

the appellant 's counsel

d i d not cross-examine

D r .

Su l l ivan on it.

The inference, i f it was involved i n what

the doctor

had wr i t t en down

i n 1968, was,

a t t ha t

s tage of

t he

case, unimportant

i n view of

the

respondent's concession

t o

t h e i n j u r y t o o t h e r p q r t s

o f

the

hand.

Had

been

otherwise

* I

. i .

!	I	c_
28.

the appellant should have been given an opportunlty

explain.

And of

course

whether

the

i?lference

from

what

the doctor had writ ten

down

i s sound o r no t

it h a s t o

considered

i n t h e l i g h t

of tne inherent probabi l i t i es

and

other

evidence.

It is c l e a r that m the

ea r ly

s t ages ,

t he

i n j u r y t o t h e l i t t l e f i n g e r

was

givlng the

appel lan t most

worry,

and

the appel lan t ' s over - reac t ion to

h i s

l i t t l e f i n g e r

was

the re i n evidence.

is q u i t e

l i k e l y

from

what

appears

t o

have been

the nature of the actual injury suffered

the

appel lan t t o t h e r e s t

the hand

t h a t i t s e f f e c t s

a t

t ha t

time

were mmor l i k e l y t h a t what was

compared

w i t h

t h e

l i t t l e

f i n g e r .

It was

qui te

engrossing Dr. Sull ivan on tha t day was

i r r i t a t i o n a t

an x-ray of

t h a t i n p r y b e i n g

demanded,

and what

was

engrossing the appellant

on that day was

h is f e a r t h a t t h e r e

was

bone

i n j u r y t o

his

l i t t l e f i n g e r .

I look therefore a t the evidence it is a proper inference

other

evidence.

the

that

the appel lan t ' s

hand was

i n good condition on 20th February

1968 and tha t on that day he

squashed

t h e l i t t l e f i n g e r .

Whether

d id

some

i n j u r y t o t h e

thenar

region

is the

i s sue .

Hls

evidence i s t h a t he

reported

t h e

i n c i d e n t

t o

f irst aid and t o h i s overseer

for thwith.

evidence

ca l l ed from first

aid

o r t he ove r see r t o ind lca t e

what were the precise

terms

of the

report .

suggestion was

put

t o t h e a p p e l l a n t t h a t t h i s r e p o r t t o

first

ald

o r

the overseer

was i n r e s p e c t February 1968 was the day on which the appellant sought x-ray

i n j u r y

t o

t h e

l i t t l e

f i n g e r o n l y .

The

27th

from Dr. Sullivan.

Whatever was

said that day it is c l e a r that

- - - I

29.

on 15th March

1968 the appel lant consul ted

D r .

Muschin and

s ta ted he had hurt the

wh01.e

the knuckle area

the hand

and the ball of do with the movement

the hand.

Dr. Muschin sa id that it had t o

the thumb,

he s a i d t h a t t h e r e

was

pain

and tenderness

in tha t r eg ion r igh t ac ross the

back of

the

hand

and

c e r t a i n amount

res idual

bruis ing.

18th

March

D r .

Iiluschin

r e fe r r ed the appe l l an t t o

D r .

ROV7hndS who

conducted an x-ray

first of

a l l of the

l i t t l e f i n g e r and

shor t ly

a f t e r of

t he whole hand.

Nothing

was

revea ledbut the

appel lan t

stlll cont lnued to consul t

Dr. Muschin who

c e r t i f i e d on

9 th

September 1968

t h a t he was

having "pains

i n t h e l e f t hand whxh

he in ju red a t

work

i n February las t and t h a t he needed

complete

r e s t and general

t reatment

for

three

months from now.

I n

September 1968

D r .

Matthews of the department reported

that

the

appellant had

many

complalnts and says the worst

one

a t p r e s e n t

"is pain

and swelling of t h e

l e f t

hand.

Swelling

vas

somethlng D r . Matthews could

see.

In December 1968

the same

o f f i ce r r epor t ed tha t t he appe l l an t

had

h i s l e f t

arm

put

i n

plaster about

a month

before

and

tha t ope ra t ion fo r ca rpe l

tunnel	was	recommended	but his mental condi t ion	d i d n ' t	permit
it.

In Apr i l

1969 Dr.

Thr i f t

found

tha t t he appe l l an t ' s

principal complaint

was

that i n t h e l e f t

hand

and wr i s t s which

the appel lan t s ta ted he

had

squashed i n a

door ju s t ove r

a year

previously.

He thought

there

had been a contusion i n t h e muscle

of t h e l e f t

thumb where the re was tenderness.

considered

the

appel lan t as

one having a low threshhold of pain.

sa id

however,

t h a t a

c r u s h i n p r y

between obJects of

considerable

mass

can

r e s u l t i n

very painful condition frequently out

a l l

propor t ion to the or ig ina l in jury

where

there are nerves

that

are

contused.

Any

i n c r e a s e

i n mass such as these

small

lumps

can

r e s u l t i n

a compression of t h e median nerve.

April 1969 the appel lant

t o l d him t h a t he had

a burning pain,

no t cons t an t , pa r t i cu la r ly a t n igh t .

Dr.

Thr i f t said that

f e l t tha t the complaints

that the appel lan t

made

of ga in and

d i s a b i l i t y were

genuim.

In May

1969 D r .

Thrif t

epted that

the appel lan t

was

s t i l l having constant pain

i n his l e f t

thumb.

I n May

1969 D r .

Sullivan

found

the

appellant

complaining

a burning sensation

i n t h e t h e n a r

eminence of

t h e l e f t

hand.

I n September 1969	D r .	Muschin	re fer red	the	appe l l an t t o
"I. Hooper.

So f a r as Mr.

Hooper

1s concerned it is w e l l t o t a k e

into

account

the

comments of D r . Aberdeen.

He said -

W e l l I think Mr. Hooper i s a very wise

and learned

man and of the Postmaster-Generalts Department to

quite sure he wouldn't need the records

sum

Mr.

Wurzel

up- It

Mr.

Hooper took the appellant 's thenar

hand

condition

ser ious ly .

examined the

appel lan t ' s

hand and found

tenderness

i n the region

the ba l l of

t he thumb and a s l ight suggest ion of

a small t h e thumb.

lump

i n t h a t r e g i o n

and

s l i g h t s w e l l i n g a t t h e

b a l l

In December 1969 an electro-myogram was

carr ied

out

* .#.

31.

disc los ing what PP. Hooper LhoughL W.IS d glonlus Luuiour.

t he ope ra t lon in

1971 the lump thought t o be a glomus t m o u r was

not

found.

However, Mr. Hooper divided a nerve

reduce

pain	i n the a rea .

A t the second operation

i n January 1973

Mr.

Hooper

found what he had

though-c i n December 1969 t o be the glomus

tumour.

It was not a glomus

tumour

but was

s c a r

t i s s u e

which

had become haemorrhageandMr. Hooper's opinion

painful nodule. Scar

t issue

i s t h e r e s u l t

is that

the appel lant

h d

had ahaemorrhageinto the

ba l l of the thumb and t h a t th i s

formed the sca r

and involved nerve ends

and became a pa infu l

nodule.

The evldence

Mr.

Hooper t h a t

t h e

s c a r

t i s s u e

was there said in cross-exaimination

before

the

operat ion

1971

i s qu i t e

c l ea r .

A s

- "He d id not have

a glomus tumour, but

he d id have somethlng ........ .

namely

the scar t i s sue . I '

The

reasons for

judgment of

t he Tribunal d i sc lose

tha t cons iderable a t ten t ion

was

given to the question whether

there was

link

between t h e i n p r y t o t h e l i t t l e f i n g e r

and

the

pains subsequently suffered

the appe l l an t i n the thena r a rea .

The

question appears to have been posed

the basis

t h a t the

only par t

the

hand involved

i n t h e i n c i d e n t

of 20th February

1968 was

t h e

l i t t l e

f i n g e r .

The

Tribunal

decided

that the re

was no

evidence

any

such

l i n k . I n

t h i s he was

undoubtedly

right.

t o such a p o s s i b i l i t y ,

D r .

Aberdeen said

I n no

way

The

appel lant ' s

case

depended therefore on h i s

es tab l i sh ing that

the thena r pa r t

of the hand

was

Injured when

the hand was

caught between the door

and the t r o l l e y on 20th

* .

32.

February 1968.

one

forgets the appel lant ' s evidence

this

point the evidence

i s that on 15th Piarch 1968 the hand was

found t o be i n p r e d i n t h e manner

described by Dr. Muschin.

What he found

was not only

what the appel lan t to ld

him about

in jury of the thenar reg ion

20th February 1968

bul;

res idua l

bru is lng which he

would

see apparently right across the back

the

hand,

that

the

symptoms

observed on 18th

March

were

and

t ende rness in the

thenar consistent with continuing pain

area i n later

examinations.

In September

1968 Dr. Matthews

observed

swelling

i n t h e l e f t

hand.

In September 1968 Dr.

Muschin

c e r t i f i e d p a i n s i n t h e l e f t

hand.

In Apr i l

1969 Dr.

T h r i f t

formed

the opinion

there

had been a

contusion i n t h e

area which would

cons is ten t xith

c r u s h i n g

i n p r y .

I n

September 1969 Mr. Hooper detected the small lump which turned

o u t t o

s c a r t i s s u e .

In these circumstances the question arose

t o t h e

probable cause of the continuing pains

i n

the thenar region.

There

was

the incident of 20th February 1968

which

might have

caused it.

There was i n the

appel lant ' s

case

no evidence

any

other

probable

cause.

However , the

Tribunal

was of

opinion

that

the pa ins

might have been

r e l a t e d t o

and

apparently a

development of

in Ju ry to the

middle f inge r i n respec t of which

It appeared that in

December 1967 the appel lant had suffered

burning sensation

i n some unspecif ied port ion of the

palm of the

l e f t hand.

t o

t h i s

t h e T r i b u n a l

s a l d

. .

33.

111

not saLisTied

t h a t the pain t o t h e

b a l l of

the hand was

not the same pa in a s

t h a t complained of

two

months

before the

accldent.

I make no f l n d i n g

t o

t h i s .

does not really matter whether

t h i s

i s

so or whether	it	developed a f t e r t h e
accident .

The

meanlng

t h i s 1s not c lear , bu t

it ce r t a in ly

appea r s t ha t i n h i s cons ide ra t ion o f t he poss ib i l i t i e s t he

Tribunal took into account

what

was

r e a l l y a f lnd ing dn

h i s

p a r t

tha t

the evldence, while not es tabl ishing that

December

1967 in ju ry was

the cause of the

l a t e r p a i n s i

i n t h e

thenar a rea , never the less po in ted

with

s lgnif icant persuasive

f o r c e t o t h e

December

1967

in jury as the l ike ly source

the

subsequent thenar troubles.

it were that the thenar pains

were a development

of recurrence

o r aggravatlon of the injury

of December 1967

which produced

a hot burning sensation,

a question would

immediately arise as to whether the recurrence

o r

aggravatlon

was not caused ignor ing th i s ques t ion , the s i tua t ion

the

hand injury of

20th February

1968.

But

would

that

i€

the

evidence concerning the

December 1967 condition

d id poln t

s i g n i f i c a n t l y t o t h a t c o n d i t i o n

reasonable explanation

the thenar pa lns ,	Then	i n t h e	absence	of	evidence	t o e x p l a i n t h a t	;
>

hypothesis away, t he re would remain a doubt on the balance of

probabilities as t o which of	two competing possible causes	vas
the rea l one .

O f

course

was

necessary for the appel lan t to

e s t ab l i sh	on	the balance of probabi l i t ies	that	the pains	were
l
I	I
I	34 .

I	.-
l

t h e r e s u l t	of	inJurjr	on 20th February	1968, and t o do t h a t
I

,by re ference to the

whole of

the evidence

as it stood a t t h e

end of

the hear ing.

A t that stage there had

TO be taken into account

what Banvick,

C . J .

said i n Purkess v.

Crit tenden, 114 C.L.R.

168 t h a t Ilevidence

. .

. which, if accepted, would establish

with

some reasonable measure of precision,

what the pre-existing

condition was

and

what

i t s f u t u r e e f f e c t s . .

. t h e i r f u t u r e d e v e l o p

’

ment

were l i k e l y t o b e When the par ty against

such evidence has been given then

whom

i t operates will

n e g l e c t t o c a l l

explanatory o r contradictory evidence

a t his p e r i l .

But the burden

o f call ing such explanatory

o r

contradictory evidence does not arise

when

the

most

than can

be sa id of exis t ing condl t ion

the ex is tence

and

effect of any such alleged pre-

is that it is merely a suggestion thereof.

And t h a t of course

i s more than can be

said i n this case. The

f a c t that there was

a burning sensation

i n t h e palm of the

hand

i n some unspecif ied

place

and

some unspecif ied

intensi ty

and

appa ren t ly r e l a t ing in

some

way

t o t h e

middle

f inger suggests

nothing about pains

i n the thenar region

where

the re was

bleeding

c a u s i n g s c a r t i s s u e i n t h a t a r e a ,

even

i f

t h e p a i n s i n t h a t a r e a

were a t some was asked i n cross-examination whether

s tage descr ibed as

a burning sensation.

The

appel lant

i n December 1967 he

attended

first

a id complaining about discomfort

i n t h e

middle

f i n g e r o f

t h e

l e f t

hand

and

i n

t h e

palm of the hand.

answered,

“NO, I

complained with regard

t o t h e

middle

f inge r

which had been

lanced.11

He was asked nothing

more about it.

ID - .

. L .

35.

In the respondent's

f i l e s there zppeared an en t ry

'''December

1967, discomfort

l e f t middle f inge r , a l so

palm of

the

l	e	f	t	hand, hot burning sensat ion. Dressing appl ied	to	lef t
I

Dr.

Sul l ivan who was giving evidenLe

when the

\mid f inge r .

en t ry was read, was asked nothing about

it and said nothing

about it. It does

not

seem t o have

been

referred

elsewhere

i n the evidence. t he in ju ry r e fe r r ed to cou ld

A s it stands it i s not

even

suggested

that

have developed

in to the in ju ry

i n the thenar prec ls ion and there i s

region.

It 1s not

descr lbed

with reasonable

nothing

to suggest

t ha t

it had

the

p o t e n t i a l f o r

any

f u r t h e r

development

l e t alone

t o have caused

the bleedlng

which

caused

the sca r t i s sue

i n the thenar .

And

of	course as a matter of p robabi l i ty lt i s impossible to think

tha t one surgeons would not have explained the

the large party of competent medical

men

including

symptom of the 1967

in ju ry

as re levant i f it had

any

relevance

and one would have

thought that the respondent with al l the

knowledge

had

about

the appel lan t ' s

hand would have done something about

it by way

o f

evldence.

was

not

open

for the Tribunal , act ing reasonably,

t o f i nd that t h a t i n j u r y

was

t o be reasonably regarded

as an

alternative cause of the thenar pains

xvhich

came

e a r l y i n

1968 and persisted

through

ensuing years.

directing

himself

t h a t t h e r e

was

some

burden

the appel lan t to ca l l ev idence

the matter , the

Tribunal was

i n e r r o r a s

matter of

law.

This i s an important matter

i n this case because

i f the

Tribunal had not consldered	tha t	It	was	f o r	the appel lan t to
I

.call evidence about the nature

and

e f f e c t

the a l leged

re-exis t ing condi t ion

some

d i f f i c u l t y would

have been

lexperienced

in expla in ing the fac ts o therwise than by

reference

to t he a re -

even t s

20th

February

1968.

The outs tanding

facts

( i ) that

the thena r r eg ion a t l ea s t

appellant

complained

about

pain

i n the

15th March

1968 and

bru is ing was actually observed by Dr. Muschin which indicated that an extensive area of the hand had been involved;

( i i )

t h a t

Dr. Muschin at tended

the

appel lant

number of occasions between

15th March 1968

un t i l abou t

1974

and

was

ab le to say to the

Tribunal,

know

that

I 've

go t

physical

evidence

Injury

his hand."

It is

c l e a r he

was

n o t t a l k i n g a b o u t t h e l i t t l e f i n g e r ;

(iii)

t h a t

h e r e

is medical

evidence

Commonwealth

doctor

swelling

i n

t h e a r e a

i n

September

1968;

( i v )

t h a t

i n

A p r i l

1969 Dr.

T h r i f t found

conditions

which

l e d him

t o conlude t h a t t h e r e

had been

contusion

i n t h e a r e a ;

(V)

t ha t i n 1969 Mr.

Hooper found a suggestion

lump

i n t h e a r e a

whxh he

vas

a b l e t o i d e n t i f y

a t

h i s

1973 operat ion as being scar t issue;

t h a t it was the opinion

o f Mr. Hooper that the

appel lan t

must have had ahaemorrhage into the ball

of the

thumb and that t h i s formed a sca r and

37.

involved nerve ends

;

t h a t when the re i s bruising blood escapes

and

may form f ibrous t issue

and the first onset of

pain due to b leeding may

not be for

months;

Cflere

i s no

suggest ion that the appel lant

suf fe red any	other	hand	injury af ter 20th February
1968;

the type of event

which occurred on 20th February

1968 was

such

that

an in ju ry to the so f t t i s sue

thenar area	would be	qui te wi th in the	bounds of
l ikel ihood.

It was

fo r t he Tr ibuna l t o

make

a f ind ing on the

ba lance c f probabi l i t i es .

had

approached

the ma t t e r fu l ly

appreciat lng

the

e f f e c t s

the evidence of the lr i tnesses,

e s p e c i a l l y t h a t

Dr.

Muschin

and

Mr.

Hooper, untroubled about

t he poss ib l e e f f ec t s

the December

1967 injury, without

writing down the appellant’s evidence

as necessar i ly of

l i t t l e

weight,

and

as s u b j e c t t o

comments

going t o I ts c r e d i b i l i t y

discussed above,

f a i l t o s e e

hov

he could have

f a i l e d t o

s a t i s f i e d

the p robab i l i t i e s t ha t t he re

was

in ju ry

the

thenar

region.

opinion

that

concluslon

was the

only

one open on

the evldence.

have spoken above

the basis that the evidence

of D r . Muschln and Mr. Hooper and the other medical witnesses

i s

cred ib le

and I think that this was not

ca l led

38.

in to ques t ion

the Tribunal.

That

does

not

mean

t h a t t h e i r

evidence should

ac ted upon

n t h o u t c r l t i c a l exammation.

M r .

Hooper's evldence

a t t h e t r i a l i n t h e

Supreme

Court was admltted by consent

both

parties.

The

mater ia l

por t ion which

have emphasised above

was

t o be understood

only on a close

exammation

of his testimony.

But when

understood,

vas quite unequivocal

the c r i t i ca l po in t about

t he ex i s t ence

1969 of

what turned out

scar

t issue.

D r .

Aberdeen's evidence

a t t h e t r i a l was

also admltted

by consent.

I found i n it no th lng

to qua l l fy

any

the

" fac ts" which

I have

s e t o u t

above.

reading

h i s evidence

it has

t o be

remembered

t h a t I n p o r t i o n s

o f his evidence

was speaking on assumptions wrongly

made by Counsel asking the

quest ions, and i n ignorance of the

unambiguous

evidence

M r .

Hooper

t ha t

t h e s c a r

t i s s u e ,

which

found

i n 1973 was the

. -

lump which he had d e t e c t e d i n

1969.

It is t h i s same item of

evidence which i s not mentioned

in the r eaaons fo r

Judgment of

the

Tribunal.

Its

s igni f icance 1s

course

very

great.

As appears from the foregoing

it 1s my

opinion that

the conclus ion re fer red to	above	flows	from	the evidence without	:
I

reference

the concession

which was made by the

respondent

a s t o t h e p a r t s

the

hand which were

i n j u r e d i n t h e i n c l d e n t

of 20th

February

1968.

Even if that concession is t o be t r ea t ed

as no more

than an admission

it mater ia l ly suppor ts the fac tua l

conclusion

reached.

reason of the foregoing

I am

s a t i s f i e d t h a t

it was chronlc paranoid hypochondria suffered

establ ished before the Trlbunal that the condi t ion

the appel lant

was

aggravated and accelerated

the in ju ry to the appe l l an t ' s

hand by

acc ident a r i s ing

ou t of and

In the course of the

< -

appel lan t ' s

employment

m t h the respondent

on 20th February

1968 and t h a t as

a resu l t thereof he

was

incapac i ta ted for

employment

and

is e n t i t l e d t o

compensation

i n respect of

such incapacity.

Accordingly

the

appeal

is allowed and the

ques t ion

quantum of

compensation

remains.

t h e r e f o r e g i v e l i b e r t y t o

the pa r t i e s t o ca l l ev idence

th i s

i ssue

they may

advised and adjourn the matter to

da te to be f ixed .

[1977] FCA 95

12 Dec 1977