PRESTO MEATS AND SMALLGOODS PTY LTD v ALCAN AUSTRALIA PTY LTD and ORS [1994] NSWCA 254

PRESTO MEATS AND SMALLGOODS PTY LTD v ALCAN AUSTRALIA PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, POWELL and COLE JJA 17 November 1994

[1994] NSWCA 254 Judgments and Orders — Reasons for — Insufficient

Gleeson CJ In this matter I will ask Powell JA to give the first judgment.

Powell JA This is an appeal from a Judgment delivered, and an Award made by Gibson CCJ on 28 February 1992 in proceedings which have been brought by a worker, Mr Wasilewski, against two companies, Presto Meat and Smallgoods Pty Ltd (to which I shall refer as "Presto") and Alcan Australia Pty Ltd (to which I shall refer as "Alcan'); in which proceedings Mr Wasilewski had Sought both periodic, and lump sum, compensation in relation to what he claimed to have been an injury, or injuries, suffered by him when in the employ of one or other of Presto and Alcan.

On the hearing of the application before Gibson A-CCJ there were represented, in addition to Mr Wasilewski, and Alcan, two of the three companies which, during the period of Mr Wasilewski's employ by Presto, had been Presto's Workers Compensation insurers, the reason for the representation of two of Presto's Workers Compensation insurers being that FAI Workers Compensation (NSW) Ltd (to which I shall refer as "FAT'), one of these Insurers, had been on risk only between | July 1987 and 30 June 1988, while the second of the insurers so represented, QBE Insurance Ltd (to which I shall refer as "QBE"), had been on risk from 1 July 1988 until after Mr Wasilewski had left Presto's employ.

Put shortly, the facts were that Mr Wasilewski entered the employ of Presto in 1985 and left that company's employ in late 1989, in circumstances to which I will later refer. During the course of his employment with Presto, Mr Wasilewski was, for the most part, employed as a process worker, his duties involving him in man-handling, cutting up and packing, large quantities of meat.

Apart from a minor injury which is not relevant to these proceedings, Mr Wasilewski appears to have exhibited no signs, or symptoms, of injury until about February 1989, when he commenced to suffer pain in the area of his right elbow.

Having consulted his doctor, Mr Wasilewski was, for a time, placed on light duties, following which he returned to his former position as a process worker.

As time went on, however, the pain in the elbow region increased, at a later stage radiating up the right arm, to involve the whole of the upper arm and the shoulder region as well as the neck.

Further periods of light duties followed, but without any significant improvement in Mr Wasilewski's condition, with the result that, when, at the end of November 1989, he was about to enter upon his annual leave, Mr Wasilewski determined that he would leave Presto's employ and seek employment elsewhere.

2 UNREPORTED JUDGMENTS

Although the evidence is not entirely clear, it would seem that the source of the pain which Mr Wasilewski suffered, and of his consequent disability, was one or other - or, perhaps both - of two conditions, the first being, a right of the right elbow - the second being an aggravation of existing cervical spondylitis - thus involving the upper right arm - each of these conditions being a condition involving inflammation of the relevant portion of the body and the surrounding tissues.

After he had begun his annual leave, Mr Wasilewski found that his condition improved significantly, even though he did not reach the stage where he was again symptomless.

Encouraged by the improvement in his condition, Mr Wasilewski, having looked around for other employment, decided to take a position with Alcan; that position, although it involved heavier work than was involved in his position at Presto, carried a significantly higher wage than did the position with Presto.

Mr Wasilewski commenced work in his new position with Alcan in late January, or early February, 1994, continuing in that position until about the latter half of July 1990, when his employment was terminated by Alcan.

Since the work which was required of Mr Wasilewski in his new position at Alcan not only involved heavy physical labour, but also involved a significant element of repetitive work, it is hardly surprising that, at least from May 1990, if not earlier, Mr Wasilewski began again to suffer pain in his right elbow and upper arm, and in his neck, which pain increased until about the latter half of July 1990, at which time, as I have previously indicated, his employment was terminated by Alcan - the circumstances which led to the terminated of Mr Wasilewski's employment are the subject of some dispute, but the issues with which we are concerned to deal do not make it necessary for us to resolve that dispute.

In August 1990, there was filed on Mr Wasilewski's behalf the application to which I have earlier referred. Insofar as the application sought compensation from Presto, the nature of the injury was described as "Injury to right arm, right elbow, right shoulder and neck", while the date and place of injury, the nature of the work in which Mr Wasilewski was engaged, and the cause of the injury, were said to be "Due to the nature and condition of the applicant's employment with the respondent between August 1985 and November 1989...". Insofar as compensation was sought against Alcan, the nature of the injury was again described as "Injury to right arm, right elbow, right shoulder and neck", while the date the place of injury, nature of work and cause of injury, were said to be; "Due to the nature and condition of the applicant's employment with the respondent between 22 January 1990 and 20 July 1990...".

The oral evidence at the hearing before Gibson A-CCJ was limited to the evidence of Mr Wasilewski and two employees - a Mr Gajic and a Mr Malhi - of Alcan, Mr Wasilewski being cross-examined by both Mr TM Wardell, who then appeared - as he does today - for Presto in the interests of QBE and Mr GMN Farkas, who then appeared for Presto in the interests of FAI and, as well, for Alcan, while each of Messrs. Gagic and Malhi was cross-examined by Mr PJ Menary who then appeared - as he does today - for Mr Wasilewski, and by Mr Wardell. To that oral evidence there were added the various reports and other documents which had been obtained from Dr Lipinski - Mr Wasilewski's general practitioner - Dr David Sloane - who seems to have been a surgeon, and who had been qualified for the purposes of giving evidence on behalf of Mr Wasilewski on the hearing - Dr James Bodel - an orthopaedic surgeon - Dr William Lyons -

URRESTO MEATS AND SMALLGOODS PTY LTD v ALCAN AUSTRALIA PTY LTD (Powe JA)

another orthopaedic surgeon - and Professor John Wright - a consultant surgeon and professor of surgery at the University of New South Wales - the reports of Dr Bodel and of Dr Lyons having been obtained by QBE, and that of Professor Wright having been obtained by Norwin (Workers Compensation) (NSW) Ltd ("Norwin') the insurer for Alcan.

A reading of the transcript of the hearing before Gibson A-CCJ would indicate that the principal issue which was debated at the hearing - which issue was joined between QBE and Alcan - was whether or not - as Alcan would have had it - the disability from which Mr Wasilewski suffered when he left Alcan was the same disability which had commenced in February 1989 - when Mr Wasilewski was at Presto - and continued unabated thereafter, or whether - as QBE would have had it - that disability was caused by a recurrence of the symptoms, or an exacerbation of the symptoms, from which Mr Wasilewski had Suffered while in the employ of Presto, but which had disappeared, or had subsided, after he had left Presto's employ.

The judgment which Gibson A-CCJ delivered at the conclusion of counsel's submissions was economical in the extreme. It was, in full, as follows: "in this matter I find that the applicant sustained injury by way of a repetitive strain to his right elbow and shoulder, by reason of the work he performed with the first respondent between February 1989 and November 1989. Apart from the lateral epicondylitis of his right elbow, he has also aggravated a condition of cervical spondylitis. I find that since 21st July, 1990, he has been fit for work not involving strenuous use of his right arm, and that in accordance with the medical panel finding, he has sustained a 20% permanent impairment of the right arm at or above the elbow. Having regard to the schedule of comparable earnings, I feel that the appropriate amount to award him under s40 is $90.00 per week. I make an award in that amount from 21st July, 1990 together with a sum of $14,480 under s66 in respect of the 20% permanent loss of use of his right arm at or above the elbow; $2,500 under s67 in respect of the pain and suffering. I award interest on the s66 amount at the rat of 12% from 21st July, 1990 and at the rate of 6% on the sum of $2,500 from the same date; medical expenses in accordance with s60; costs in accordance with Pt29. I allow one qualifying fee and certify to an advice on evidence. I certify to a second conference fee for applicant's counsel of $150. Liberty to the applicant to apply in respect of any permanent impairment of the applicant's neck."

Although it is true that the mere fact that a judgment is brief, and does not deal with every matter of fact and law which may have been raised on a hearing, is not, of itself, evidence of a Judge's failure to fulfil his duty sufficiently to indicate his reasons for dealing with a matter in the way which he did (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd! Soulemezis v Dudley (Holdings) Pty Ltd?), it seems to me that, in his Judgment, Gibson A-CCJ fell far short of fulfilling the duty which the law cast upon him, and, thus, was guilty of an error of law. In this regard, it is sufficient to note, first, that, in his Judgment, Gibson A-CCJ did not resolve what I have described as the principal issue - that joined between QBE and Alcan - which had been debated at the time, and, second, that, if that issue had been resolved in the way advocated by QBE, the award which ought then to have been made in favour of Mr Wasilewski was, not one against Presto, but one against Alcan, with a right in the latter to seek

1. [1983] 3 NSWLR 378 2. (1987) 10 NSWLR 247

4 UNREPORTED JUDGMENTS

contribution from the former pursuant to the provisions of either, or both, of s15(2), s16(2) of the Workers Compensation Act 1987.

It is no answer to this to say - as was submitted by Mr CT Barry QC, who has appeared today for Alcan - that Gibson A-CCJ's reasons for making the award which he did might be ascertained by reference to comments, which are recorded in the transcript, which he made during the course of counsel's submissions, for, in my view, the duty which the law casts upon a judge dictates that his Judgment should be sufficient, in itself, to explain his reasoning process (see James N Kirby Pty Ltd (Trading As Barr Plastics) v Kalinic3). It follows, in my view, that, at least insofar as Gibson A-CCJ determined - in substance - that liability to meet the award which he made in favour of Mr Wasilewski ought to be borne by QBE, the award cannot stand. However, although QBE has not - nor has Alcan - sought to submit that no award should have been made in favour of Mr Wasilewski - who has been jointed as a party-Respondent to this appeal - but has sought to submit only that liability to meet that award should not be borne by it, it seems to me that, if the award is to be set aside, it must be set aside in toto and the application remitted to the Compensation Court for rehearing.

ORDER

I would propose that the following Orders be made:

1. ORDER that the appeal be upheld.

2. ORDER that the award made by Gibson A-CCJ on 28 February 1992 be set aside.

3. ORDER that the application be remitted to the Compensation Court for reconsideration in accordance with these reasons.

4. ORDER that the Appellant pay the costs of the Second Respondent of this appeal.

5. ORDER that the First Respondent pay the costs of the Appellant of this appeal such costs to include any costs payable by the Appellant to the Second Respondent pursuant to the proceeding Order.

6. ORDER that the First Respondent, if qualified, have a certificate under the Suitors Fund Act 195.

Gleeson CJ I agree with the orders proposed by Powell JA and with his Honour'sreasons for those orders.

Meagher JA So do L.

Gleeson CJ: The orders of the Court will be as proposed by Powell JA. Counsel for the appellant (QBE): TM Wardell

Solicitors for the appellant (QBE): Tillyard and Callanan

Counsel for the respondent (Alcan): CT Barry QC

Solicitors for the respondent (Alcan): PW Turk and Associates

Counsel for the respondent (Wasilewski): PJ Menary

Solicitors for the respondent (Wasilewski): Noel Brown and Peter Wainberg

3. 1 July 1994 Court of Appeal (as yet unreported) per Clarke JA