[Home] [Databases] [WorldLII] [Search] [Feedback] Supreme Court of New South Wales

You are here: 

Moran Health Care Services V Ivy Alice Woods [1997] NSWSC 147 (18 April 1997)

40195/96; CC 32197/95

18 APRIL 1997

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, BEAZLEY JA, GROVE AJA

CATCHWORDS: Worker's Compensation - appeal against judge's finding of total incapacity - test of total incapacity

Words & Phrases - "total incapacity"

EX TEMPORE/RESERVED: RESERVED

ALLOWED/DISMISSED: DISMISSED

Worker employed as nursing assistant injures back whilst lifting patient - successful claim in Compensation Court - appeal by employer against finding of total incapacity by judge - whether judge misdirected himself as to the concept of "total incapacity":

Held: appeal dismissed:

There was no error of law in the judge's finding of total incapacity.

Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171; Ball v William Hunt & Sons Ltd [1912] AC 496; Lawarra Nominees Pty Ltd v Wilson, NSWCA unreported, 29 November 1996; applied.

ORDERS

Appeal dismissed with costs.

MASON P: This is an appeal from a decision of Burke CCJ in the Compensation Court of New South Wales.

The appellant appeals from that part of the award concerning total incapacity. Two separate grounds of appeal were pursued before the Court of Appeal. First, that there was no evidence to justify a finding of total incapacity. Second, that Burke CCJ misdirected himself in finding total incapacity in circumstances where his primary finding of fact was that the respondent was fit for work of some type, even if only on a part-time basis.

FACTS

The respondent, Mrs Ivy Woods, was employed by the appellant as a Nursing Assistant at the Norah Head Nursing Home. At the time of the hearing, the respondent was 49 years of age, married and with 3 children, none of whom are dependent.

On the morning of 14 May 1993 the respondent, accompanied by Ms. Fisher, was showering a patient by means of a Henry lifter. When it came time to take the patient out of the shower, the two nurses manoeuvred the lifter so that Ms. Fisher was at the front of the Henry lifter pushing it forwards while the respondent was at the back pulling it. In the process of moving the patient the wheels of the lifter locked as a result of which the respondent felt a sharp pain in her back. The respondent was able to continue her shift that day, albeit in considerable pain and with the assistance of some panadol.

The evidence established that the respondent went home and rested for the next few days. She first visited her general practitioner, Dr Wade on 17 May 1993. There followed a period of rehabilitation which included physiotherapy, hydrotherapy and a course of anti-inflammatory tablets.

The respondent returned to work on restricted hours and duties in early July 1993. By the end of August 1993 the respondent was back on full duties. However the evidence establishes that the respondent was suffering constant pain in her lower back, bottom and right leg. This caused her resignation on 6 September 1993 effective from 17 September 1993.

FINDINGS OF BURKE CCJ

The relevant findings of Burke J are summarised in his judgment as follows:

"(1) On 14 May 1993 the applicant received injury to her back and consequential injury to her right leg.

(2) The applicant incapacitated thereby at varying periods and varying degree and paid compensation in respect of all such periods up to and including 5 February 1995.

(3) The applicant totally incapacitated thereby 6 February 1995 to date and continuing.

(4) Probable earnings and currently weekly wage rate, $450 a week.

(5) As a result of such injury the applicant suffers permanent impairment of the back."

The grounds of the finding of total incapacity are found in the following passage in the judgment:

"I can, therefore, quite happily accept that the applicant suffers symptoms of the nature and degree to which she deposes. Once you accept those symptoms, and nobody has suggested I should not, it is patently clear the applicant cannot go back to the pre-injury field of employment. It is also clear that the applicant regards herself as not employable, other than perhaps a very short time and intermittent. Her work experience is in physical work. All the doctors have commented on the genuineness and the reality of the condition that she suffers. Accepting that the applicant has those conditions and suffers the symptoms as she complains of, it seems to me unrealistic to expect her to perform any sort of consistent activity in any sort of labour market. Therefore, on my view, the applicant is effectively totally incapacitated. The applicant clearly has an impairment of the back and that is equally clearly permanent."

With this background it is convenient to address the appellant's two grounds of appeal, but in reverse order.

1. Misdirection ground

The appellant contends that the passage in which the trial judge summarises his reasons for finding total incapacity reveals that the judge misdirected himself as to the concept of "total incapacity".

I do not agree.

The expression is not defined in the Act. However an authoritative point of reference is Ball v William Hunt & Sons Ltd [1912] AC 496. There Lord Loreburn LC said (at 499):

"In the ordinary and popular meaning which we are to attach to the language of this statute I think there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch."

Lord Macnaghten described incapacity to work (at 501) as:

"inability to earn wages or full wages as the case may be at the work in which the injured workman was employed at the time of the accident."

These passages have been frequently cited with approval: see eg Thompson v Armstrong and Royse Pty Ltd [1950] HCA 46; (1950) 81 CLR 585 at 602; McGale v Glad [1981] FCA 89; (1981) 36 ALR 81 at 90; A J Bartlett Pty Ltd v Drenkovski (1982) 64 FLR 328 at 331.

In Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171 at 177 Mason, Wilson, Deane and Dawson JJ said that "incapacity for work":

"means a physical incapacity for actually doing work, resulting from injury (or disease) and that, subject to ss11 and 13, compensation is awarded for that incapacity where it reduces the employee's ability to sell his labour in the open market ...."

Their Honours cited from judgments in Thompson v Armstrong & Royce Pty Ltd [1950] HCA 46; (1950) 81 CLR 585 at 595 (per Latham CJ) and 616 (per Fullagar J). While the Court emphasised that incapacity need not result in actual economic loss, the test of incapacity which was adopted in Arnotts was "physical incapacity for actually doing work in the labour market in which the employee was working or might reasonably be expected to work" (see at 177). In the same case, Brennan J cited the passage from Lord Macnaghten's speech in Ball that I have set out, adding (at 183):

"Perhaps that is too narrow a test. Regard must be had not only to the employment in which the injured worker was employed before his injury but also to other fields of employment in which he was accustomed to work or in which he might have been expected to seek and find work in the course of his working life."

To similar effect is the decision of this Court in Metropolitan Coal Co Ltd v Duffy (1966) 67 SR(NSW) 163 at 168. There Jacobs JA (with whose reasons Wallace P and Moffitt AJA agreed) said (at 168-9):

"In Ball v William Hunt & Sons Ltd [1912] AC 496 at 500, Lord Macnaghten stated that incapacity for work means `inability to earn wages or full wages as the case may be at the work in which the injured workman was employed at the time of the accident'. The reference in this passage to `the work in which the injured workman was employed at the time of the accident' is a reference not to the particular job which may or may not be available to him at the same wage but is a reference to the kind of work, the nature of the job."

The appellant submitted that Burke CCJ erred in law in finding total incapacity. It seizes upon the respondent's concession, mentioned in the passage already quoted, that she regarded herself as not employable "other than perhaps a very short time and intermittent" (sic). The appellant submits that occasional part-time work of a light nature may be available in the labour market with the result that it was not open for his Honour to find total incapacity.

It is important to recognise that the appellant is limited to attacking the judgment below for error of law. The relevant principles are discussed in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139.

In my view the appellant's "eye of the needle" test does not represent a correct approach to the concept of "total incapacity". There will be a number of cases where, despite evidence or concession that the worker might be able to perform some tasks in some circumstances, such a finding is sustainable in law. After all a manual labourer who is rendered a quadriplegic may be able to perform tasks using only his or her voice, yet one would not expect to see a finding of total incapacity challenged on the ground of legal error. In this as in most areas of the law, the requirement of reasonableness and the principles clustering around the maxim de minimis non curat lex have work to do. It must not be forgotten that workers' compensation legislation is remedial.

Lord Loreburn LC's test in Ball's Case does not require the Court to ignore the reality of the particular injured worker's situation . Also relevant is the restriction of opportunities open to a person who is disabled by reason of injuries: Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; (1938) 61 CLR 120 at 129; Watkins v Renata [1985] FCA 210; (1985) 61 ALR 153 at 157.

In Lawarra Nominees Pty Ltd v Wilson CA unreported, 29 November 1996 there was a finding of total incapacity in favour of a worker who injured his back whilst loading a truck in the course of a landscaping business. As s32 of the Compensation Court Act 1987 stood in relation to that matter, the appeal was by way of rehearing. The appellant attacked a finding of total incapacity. It pointed to evidence which suggested that, though the worker was injured, there were various things which he could do, for example sedentary work and work in the real estate industry. In rejecting this submission, Mahoney P (with whose reasons Handley JA and Powell JA agreed) said:

"The incapacity for work upon which the right to compensation depends is a physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work: Arnotts Snacks Products Pty Ltd v Yacob [1985] HCA 2; (1983) 155 CLR 171 at 177. That principle has been applied frequently by this Court: see, eg, Holden v Toll Chadwick Transport Ltd (1987) 8 NSWLR 222 at 226-9. As the Arnotts case illustrates, partial incapacity involves the physical incapacity for doing some but not all of such work.

Normally, a court in determining whether a worker is totally or partially incapacitated will, in a practical sense, ordinarily consider two questions: what is the relevant labour market, ie, what work was the worker doing or could he reasonably be expected to do; and of that kind of work, what is he physically able to do.

In considering the second of these, it is necessary to bear in mind that what is in question is capacity or incapacity "for work". The legislation is not concerned merely in the abstract with work or work capacities, as such. It is concerned with the capacity to do work of a particular kind or kinds and in a context which will produce income. I do not wish by what I say to narrow the scope of the inquiry to be undertaken in the assessment of capacity or of compensation. But in assessing whether a worker is wholly or partially incapacitated and to what extent, the Court will ordinarily not be concerned, for example, to determine in an artificial or theoretical situation what he could do if the work available to him would allow him to stand for a time, sit for a time, cease when the pain he suffers became unacceptable, and generally work as, in his condition, he would fairly wish to work. The Court does not, as it were, spell out according to the periods of time which could be spent at work in such a way and what he could do during those periods, the extent of his capacity for work. The exercise is, in my opinion, a more practical exercise. It involves the assessment of a capacity "for work" having regard to the realities of the labour market in which he is to be engaged. The Compensation Court, within the scope accorded to it in this regard, must assess whether, in a case such as the present, the pain and disabilities from which the worker suffers by reason of his compensable injuries are such that he is able to do those things which will permit him to do work in the relevant labour market. The provisions of, for example, s 70 of the Act contemplate in my opinion that, in an appropriate situation, the Court will make assessments of this kind.

In the present case, the injuries to the worker's back were serious. It is clear that he could no longer do the landscape work which previously he had done. It has been suggested that, in such a case, the worker is to be seen to be totally incapacitated unless the employer shows the contrary: cf Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530 at 539. It is not necessary in the present case to determine whether that is the approach to be adopted. I shall assume that the onus of proof upon the worker required that he show incapacity for the things in the "market" to which ordinarily he would be expected to go."

I would respectfully adopt this reasoning. I would add that it does not elide the distinction between inability to do relevant work and actual economic loss which cases such as Thompson & State Rail Authority of NSW v Bellgrove [1982] 2 NSWLR 738 emphasize must be maintained.

Applying these principles I conclude that no misdirection in law has been demonstrated.

2. No evidence ground

This alternative ground was but faintly pressed in argument. In my view counsel's diffidence was justified. There was clear evidence to support the finding, in the right of the principles to which I have referred.

(a) Mrs Woods

At AB 15, the respondent stated:

"Q: When you gave up work did it make any difference to how you felt.

A: No I still had pain but it wasn't the pain that I was experienced while working, not working I could have a lie down of a day or put a hot pack on the back and - "

At AB 17, the respondent gave evidence of the degree of her incapacity:

"Q: What is the situation now with your back.

A: Well I'm in constant pain with my back.

Q: You said that you have good days and bad days.

A: Yes.

Q: How is it on a good day.

A: Well I can tolerate it.

Q: What does that mean.

A: It means that ---

Q: In terms of your day to day activities are you restricted in your activities on a good day.

A: Yes.

Q: What do you do on a bad day.

A: I can't do nothing."

Later at AB 18, the respondent gave further evidence of her incapacity:

"Q: What about walking, are you restricted in walking.

A: Yes...

Q: What about bending or lifting, does that have any effect.

A: Yes...

Q: Are you still doing domestic work at home.

A: Partly...

Under cross-examination the respondent stated at AB 20:

"Q: You stopped work because you could not do the work.

A: Yes

Q: There is no work you could do at all in the nurses field do you think.

A: Not really, no."

The judge noted that there had been no attack on the respondent's credibility.

(b) The Doctors' Evidence

Evidence was received by Burke CCJ from various doctors who had treated the respondent. Critical elements of their written reports are extracted below.

Dr Wade

On 18 January 1996, Dr Wade stated:

"At this stage, Mrs Woods is unfit for work as she is in constant pain, has difficulty sitting, standing and walking and cannot lift any weights. Mrs Woods is disabled by her pain, and it appears as if her disability will be permanent as she has not responded to any treatment, and is not suitable for surgery."

Dr Isaacs

On 1 December 1996, Dr Isaacs stated:

"At the moment I feel her symptoms should be treated along conservative lines. Her complaints are consistent with the nature of the injury which was sustained in the course of her employment on 14 May 1993. I do not think that she will be able to take up any job which involves heavy lifting, constant bending, sitting or standing in one position for a prolonged period."

Dr Tinning

On 15 June 1995, Dr Tinning stated:

"Her complaint appears to have been consistent and not in any way exaggerated, as noted by the doctors who have seen her...

I do not consider that she would be fit to return to her pre-injury type of occupation.

She might with suitable therapy, and a suitable sedentary or semi-sedentary situation, be able to return to work of this sedentary or semi-sedentary nature.

I would not consider it advisable for her to attempt return to selected duties in the Nursing Home. Selected duties are rarely available in this environment and in dealing with the patients in a nursing home, there is always the risk of strain on the back due to an unforseen accident."

Given the unchallenged evidence by Mrs Woods of her symptoms and the evidence of her treating doctors it was open to the trial judge to make a finding of total incapacity.

For these reasons, I would dismiss the appeal with costs.

BEAZLEY JA: I agree with Mason P.

GROVE AJA: I agree with Mason P.