Broken Hill Proprietary Co Ltd v Mathiassen, Peter Edward [1997] FCA 1056

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 426 of 1997 GENERAL DIVISION ) Between:BROKEN HILL PROPRIETARY COMPANY LIMITED Applicant And: PETER EDWARD MATHIASSEN Respondent REASONS FOR JUDGMENT EINFELD J SYDNEY 14 AUGUST 1997

As I have reached a clear decision in this matter, it is appropriate that I give judgment immediately at the risk of a less than complete and ideally expressed set of reasons. Peter Edward Mathiassen made a claim for compensation in respect of an injury to his right shoulder and an aggravation to a pre-existing neck disability as a result, as he alleged, of a fall at work while he was employed as a seaman on the Iron Dampier on 17 April 1994. As a consequence of that injury he was off work and received compensation to 22 December 1994. He has not returned to work. His claim for continuing compensation after that date was rejected by an officer of the applicant who was his employer (BHP) on 16 May 1995. He subsequently sought a review of that decision which was also determined against him on 13 July 1995. By an application lodged on 29 August 1995, he sought a review by the Administrative Appeals Tribunal of his claim for continuing compensation. After a hearing which took place on 6 June 1996, the Tribunal brought down a decision almost a year later, on 8 May 1997, determining that BHP continues to be liable to pay compensation and medical treatment in respect of the condition in his right shoulder under the Seafarers Rehabilitation and Compensation Act 1992. It dismissed the application for continuing compensation in respect of the neck condition. BHP has appealed to this Court from the Tribunal's determination alleging in its amended notice of appeal three errors of law: 1. That the Tribunal wrongly attributed to Mr Holmes, an alleged witness to Mr Mathiassen's activities at the time of the alleged incident, a conceivable disability in his capacity to see what happened to Mr Mathiassen contrary to the evidence and in defiance of the fact that the alleged sight restriction was not put to him in cross-examination at the hearing 2. That the Tribunal confused the conditions of right shoulder pain and aggravation of cervical spondylosis and attributed to the right shoulder the disabling effects which should properly have been attributed to the cervical spondylosis which was not caused by the accident at work 3. That the 11 month delay in the delivery of the Tribunal's decision -- which was ultimately determined, at least on one matter, on the respective credit-worthiness of Mr Mathiassen and Mr Holmes -- denied procedural fairness to the respondent The third ground was not argued on this appeal and I therefore make no further reference to it. There was no cross appeal from the Tribunal's finding in relation to the neck condition. The first matter concerns the actual accident itself and on this matter there certainly is a degree of inconsistency in the evidence that was placed before the Tribunal. In point of time the first notification of the incident was written on the day of the incident by Mr Mathiassen himself. He there said that he had wrenched his left arm and shoulder on the dock whilst offloading a bolster and box. In a second document apparently written by him on 18 April, he said that whilst assisting to lower a spreader onto a bolster, he nearly jammed the fingers of his left hand under the spreader forcing him to jump clear, whereupon he stumbled and fell landing on his right hand which jarred his right shoulder. In another form headed Section 5 Injury and Work Related Illness Report, apparently completed by a person called the Master, Mr Whiteman, but in which Mr Mathiassen and Mr Holmes also participated, the events were recorded as: Tip of finger nearly caught between top of bolster and spreader. Spreader being lowered down onto bolster. Holding onto spreader to position over bolster. There is a diagram attached to this injury report which shows Mr Mathiassen standing on some packs of timber for the purpose of attempting to attach the spreader to the bolster. It is common ground that the spreader was being lowered by a crane driven by Mr Holmes. The Tribunal's assessments and findings in these regards are adequately covered in its reasons for decision and there is no great point in my repeating them again. It is, however, appropriate that I draw attention to Mr Mathiassen's own evidence in the matter before the Tribunal. He said that the spreader: ..... was coming down and you've got to get it exact because otherwise if it's not lined up in each corner, well, then, you know, it doesn't lock in. So it was coming down and Mr Holmes then -- because I couldn't signal to him. You know, I couldn't say: it's in position now, loaded, or: take it up as such, because I was holding the thing and then -- I don't know what he thought but he dropped it because maybe he thought it was in position and it banged down. You know, at that point, you know, drop, bang, whatever, and I was here and -- just an automatic reaction. I mean, I didn't think about it. Just, you know, the frame come down and I just went -- jumped out the way. He went on to explain that he went to the left of the frame and then fell, ending up eventually on his backside with his right arm extended. He said that he did not fall onto the deck but apparently the top part of what he described as the hatch, and that he fell on his right arm and then rolled over on his backside. There is reference to him falling ten feet (AB 118). The next thing that happened was the chief mate coming to "give me a hand to put the thing back in again or just load it" - I think he was referring here to the spreader - and he thought then that he went off for smoko and had a cup of tea. Mr Mathiassen also gave evidence that he and Mr Holmes normally communicated by two-way radio but as he could not hold the radio while he was fitting the spreader onto the bolster, he had to use hand signals. He said that he had to position himself so that Mr Holmes could see his signals, inferring that there were places he had to be while performing this work where he and Mr Holmes were not in each other's line of sight. The Tribunal also had the evidence of Mr Holmes who had earlier completed a statement, which is not dated, in which he said that while he was lowering the spreader Mr Mathiassen jumped back and shook his left hand. He said the chief officer was present shortly after and assisted the two of them with the positioning of the spreader onto the bolster. In his oral evidence to the Tribunal, Mr Holmes said that he did not see the fall at all and seemed to be suggesting that if it had happened he would have been able to see it because he had a line of sight to Mr Mathiassen at all relevant times. The Tribunal found Mr Mathiassen to be a truthful witness although understandably there was some variability in the history which he gave to various doctors. To that must be added that there was also a variability in his various statements and as between his statements and his evidence, but the Tribunal's view was that the applicant was not lying about these events and that he actually had the fall which he alleged. The Tribunal found that Mr Holmes' view might conceivably have been distracted and it used that finding as the basis for rejecting any inference from Mr Holmes' statement that no fall took place. There was ample evidence available to the Tribunal to accept that the applicant did in fact have a fall as he described. The Tribunal did draw attention, as I did during the course of argument, that in the statement written out by Mr Mathiassen on 18 April what was originally down as an R for right hand, has L written over the top of it, and later on when R for right hand is written, it is apparently overwriting what was previously an L. The first of these two alterations was actually initialled by Mr Mathiassen. In his evidence Mr Mathiassen admitted to being confused from time to time as to which is his left and which is his right hand as, in the Court's experience, is not an uncommon phenomenon. In the circumstances it seems to me that the Tribunal did not err in law by attempting to rationalise why Mr Holmes might not have seen the incident. It might have given a number of other reasons. One was that at the time he was driving a crane with a significant load on it, that he had another worker in the person of Mr Mathiassen in the dangerous vicinity, and that he may well have been concerned about safety and other matters such as to have missed the fall. It seems quite clear that Mr Mathiassen treated his fall at the time as quite incidental. He seems to have got up very quickly afterwards and together with the chief mate went on with the work he was previously doing. In the instant in which all this apparently happened, it does not take any imagination to accept that Mr Holmes might have been looking somewhere else, or at least not looking at Mr Mathiassen. By this observation I do not mean to attribute to Mr Holmes anything other than that he was looking wherever it was appropriate for him to look, including at the controls of the crane or other places relevant to what is clearly a highly responsible job. It was not a ground of appeal, and it was not suggested in argument, that the Tribunal's acceptance of Mr Mathiassen as a witness of truth in relation to the incident was erroneous or unavailable. For that reason as well, there can be no error of law in the Tribunal's handling of and conclusions from Mr Holmes' evidence. The second ground of appeal is more difficult. As it is required to raise a question of law, it amounts to an argument that the Tribunal's findings on Mr Mathiassen's shoulder disability and the cause for his ongoing incapacity which the Tribunal found to exist are irreconcilably inconsistent. There certainly was, as the Tribunal recognised, a stark difference of opinion in the various medical reports and the medical evidence given in the case. Dr Tooth, an orthopaedic surgeon, had operated on Mr Mathiassen in August 1991 following an injury to his right shoulder which he had sustained when he fell down a flight of steps while working as a seaman on the Seaway Hobart. In January 1994 he hurt his shoulder again when he fell at home. Whatever shoulder disability flowed from these injuries, it seems quite clear that Mr Mathiassen was able to do his work on the Iron Dampier which he joined in the month before he had the accident involved in the present case. As the Tribunal noted, Dr Tooth was of the opinion that the right shoulder condition had resolved by December 1994 at the latest, and that the pain that Mr Mathiassen now has in his shoulder and arm emanates from a longstanding degenerative cervical spondylosis which was not a work injury although it had been temporarily aggravated by the incident concerned. On 12 January 1995 Dr Tooth thought that Mr Mathiassen was likely to aggravate his neck if he returned to his previous job and recommended a neck collar and physiotherapy. In his report of 2 May 1995 Dr Tooth said that there was little wrong with Mr Mathiassen's shoulder and that the aggravation of the cervical spondylosis should eventually settle, presumably meaning by "aggravation", the aggravation caused by the employment incident in April 1994. As I have said, the Tribunal accepted the Doctor's opinion about the neck. The other evidence about the shoulder condition seems to be at issue with Dr Tooth's view. In July 1995, Dr Wolfenden found some limitation in the extremes of shoulder movement which he thought were due to the Iron Dampier injury. In February 1996, Dr Conrad reported a restriction of abduction in the right shoulder and was of opinion that the shoulder symptoms were in the main a direct result of the 1994 injury. In May 1996, Dr Millons found about half the normal range of shoulder movement and thought that at least part of the restriction resulted from the subject accident. He felt that some of the neck pain also stemmed from the accident. The Tribunal said that it gave considerable weight to the opinion of Dr Tooth but, at the same time, it appears to have rejected his conclusions on the shoulder condition. The Tribunal found that Mr Mathiassen's shoulder was not vulnerable before the incident of 17 April 1994 and, although it was now not the source of his ongoing symptoms, and he now has a virtually normal range of movement, he had an underlying vulnerable condition in the shoulder which precludes him from continuing to undertake heavy work, especially the work of a seaman on the Iron Dampier or similar activity. I have come to the conclusion that the Tribunal's apparently diverse findings in relation to Mr Mathiassen's shoulder can be resolved from the context in which they were made. The range of movement was dealt with in a context where the Tribunal was considering permanent impairment and the possibility of a lump sum payment, whereas the pain and other disabilities were dealt with in the context of Mr Mathiassen's being precluded from undertaking heavy work. I think that the Tribunal was drawing a distinction between the range of movement in the shoulder on the one hand, and the ongoing symptoms including pins and needles -- improving though they were -- and periodic pain on exertion, on the other. As it seems to me, what the Tribunal was saying was that he did not have a sufficient restriction of movement in his shoulder as to entitle him to any assessment of permanent impairment but he did have a shoulder which was sufficiently disabled by and vulnerable to pain and other symptoms on effort as to preclude him from doing his work as a seaman. The Tribunal made no finding as to whether this disability was permanent. Indeed, judging from the approach it made to the evidence, it seems to have been suggesting that at some time in the future, the continuing disability may well resolve altogether although as at the time it was considering the matter, the disability was persisting. So construed, the Tribunal's finding that there were continuing disabilities and symptoms in and from the right shoulder resulting from the Iron Dampier incident such as to conclude that he was still suffering from incapacitating effects of his fall after 22 December 1994 was supported by credible evidence. Its conclusion that BHP continued to be liable to pay compensation and medical treatment was therefore not tainted by error of law. The appeal must be dismissed. [After discussion] The respondent will pay the applicant's costs of the appeal.