(tho95022)
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

SC No. 90 of 1995

						IN THE MATTER of an appeal under the Workers Compensation Act

						BETWEEN:

						EIGEL THOMAS BJORVIG
							Appellant

						AND:

						BRAMBLES AUSTRALIA LIMITED
							Respondent

CORAM:  THOMAS J

	REASONS FOR DECISION

	(Delivered 1 December 1995)

	This is an appeal from a decision of the Workers Compensation Court.

	The appellant appeals from the decision of the learned stipendiary magistrate who held that the applicant worker's claim for compensation pursuant to the provisions of the Workers Compensation Act had not been established.

	The grounds of appeal, as set out in the Amended Notice of Appeal dated 14 September 1995, are as follows:

	"1.	concluding on the balance of probabilities that the applicant worker had no disability compensable as the result of the incident of 24 August 1978;

	2.	that there was no evidence to support his conclusion that the applicant by July 1979 had lost motivation to work and had little interest in work because of alcohol consumption and his domestic situation rather than the injury sustained in the accident of 24 August 1978;

	3.	finding that the applicant worker's sciatica developed in or about 1984 or 1985 and was not the result of or caused by or materially related to the accident of 24 August 1978;

	4.	making findings of fact in the absence of any evidence and against proper inference that the accident of 24 August 1978 was to no degree causative of the degeneration of the appellant's spine which resulted in the appellant's spinal fusion and current incapacity for employment;

	5.	dismissing the application in its entirety on the grounds that total incapacity had not been proved and in failing upon making such a finding to grant the appellant's application to prove in the alternative partial incapacity in that the appellant was denied the reasonable opportunity to advance evidence to support a finding of partial incapacity for employment which would have entitled the court to determine the level of compensation, if any, on that basis;

	6.	failing to make proper or any findings as to the capacity of the appellant to perform a range of movement and function which would in their turn entitle the court to make determinations as to suitable employment (and its availability) consistent with those capacities;

	7.	finding that if the factual basis of Dr Johnstone's opinions were not stipulated the Work Health Court would be bound to reject his opinion;

	8.	finding that the principals set out in Samuels v Flavell and R v Jenkins were determinative of the level of onus borne by the appellant to establish incapacity and the level of disability;

	9.	deciding the factual basis of Dr Johnstone's opinion by reference to complaints or the absence of complaints about irrelevant injuries sustained prior and post the injuries sustained on 24 August 1978;

	10.	finding in the absence of evidence that prior complaints of injury were in any way relevant to the disabilities that arose subsequent to 24 August 1978 or that the evidence of prior complaints would have altered the opinions of the treating doctors as to the likely consequences of the accident of 24 August 1978 and, further, in ignoring the fact that prior injuries when specifically put to the doctors did not alter their conclusions;

	11.	making findings that although the appellant generally attempted to tell the truth with respect to matters he could remember he should be discounted as a witness of truth on those issues because of his poor memory generally even where some contemporary evidence or any evidence did not contradict that memory;
	12.	inferring that matters not put to the appellant's medical advisers by either the appellant's or the respondent's counsel and which may have affected their opinions entitled the court to draw adverse inferences against the appellant;

	13.	finding that there was no evidence that the appellant's back complaints as at 17 December 1980;

	14.	making findings against all the evidence that low back pain or ache persisted only a matter of days or weeks after the accident of 24 August 1978;

	15.	finding that the absence of complaint of lower leg pain for periods of time after 24 August 1978 was in some way determinative of the issue as to causation and disability consequent upon the accident at work;

	16.	making contradictory findings as to the appellant's credibility and as to his levels of pain and that pain's duration;

	17.	discounting Ms Overall's evidence upon the basis that some materials she had read were not before the Court and in determining that she was not a competent witness to give evidence as to the placement possibilities for the appellant given found disabilities;

	18.	rejecting Mr Scofield as a witness upon the basis of the Learned Magistrate's finding of a perceived anti-employer bias in that such a bias, if it existed, had little or nothing to do with the witnesses evidence which was directed towards the question of the availability of suitable work for the appellant given his level of found disability;

	19.	finding that the full time occupations of taxi driver, short distance truck driver and short distance van driver, storeman, telemarketer and courier driver were occupations reasonably available to the appellant, were so available at all relevant times over the period of the claim, and that the appellant at all times had acquired and retained the capacity to perform the duties required in those occupations;

	20.	that its findings of fact as a whole were so demonstrably at odds with the available evidence upon which they could be based that such error amount to an error in law.

	21.	purporting to make findings (at p 23 and pp 44-45 of his reasons for decision) contrary to findings already made by Mr Justice Muirhead in previous proceedings in 1984 (No 119 of 1982) to which both appellant and respondent were parties when estopped from doing so and, in any event, in breach of the principles as set out in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 and Bryant v Commonwealth Bank of Australia (1995) 130 ALR 129.

	22.	in failing to give reasons for key findings made at pages 38(i), 39(v) and (vi), 44 (last paragraph), 48 (penultimate paragraph), 51 (penultimate and last paragraph)."

	The appellant seeks orders that:

	1.	That this appeal be upheld.

	2.	That the matter be referred back to the learned stipendiary magistrate to make a determination in respect of the other issues.

	The background to this matter is as follows:

	This was an application by the appellant before the Stipendiary Magistrate seeking weekly payments and other benefits consequent upon total disability.  The appellant also sought payment under s10 of the Workers Compensation Act, redemption and medical expenses arising out of an injury which occurred at work on 24 August 1978 at the premises of John Lysaght (Australia) Ltd.

	At the time of his injury, the appellant was a truck driver working for the respondent.  The appellant drove his truck to Lysaght's premises for the purpose of loading corrugated iron onto the back of his semitrailer.  It is not in dispute that he was knocked from the back of his truck and fell five feet onto the ground on his back.  He struck his head and was rendered unconscious momentarily.  He suffered a number of injuries.  He returned to work as a truck driver until 1979 when he commenced work as a taxi driver.

	In the appellant's application to the Workers Compensation Court dated 3 October 1994 (Exhibit 1), the appellant claimed in paragraph (3):

	"The Applicant resumed work with the Respondent one week later but increasing back pain forced him to cease working on or about 25th July 1979."

	In the learned stipendiary magistrate's Reasons for Decision delivered 13 April 1995, he stated at p23:

	"I find on the balance of probabilities that the Applicant had some minor lower back pain immediately after the accident in the area of a small bruise to the left of L4/5, but I am not satisfied on the balance of probabilities that any low back pain or ache (related to the fall on 24.8.78) persisted beyond a matter of days or weeks after the fall."

	The appellant brought a claim for damages suffered in respect of the accident on 24 August 1978 in the Supreme Court against John Lysaght (Australia) Ltd the defendant, and Brambles Holding Ltd (the respondent in these proceedings) as the third party.

	Judgment in this action Supreme Court No. 119 of 1982 was delivered by Muirhead J on 17 October 1984.  Muirhead J stated at p2:

	"The defendant and the third party have resolved their differences and at trial the issues were confined to the allegations that the defendant's crane operator was negligent and, if so, as to the assessment of damages."

	Muirhead J proceeded to award damages to the appellant in the sum of $38,000.

	The appellant claims there was a subsequent deterioration of his condition.

	In his report dated 31 August 1992 (Exhibit 4), Mr Baddeley states:

	"As you are aware this gentleman has been treated by me over many years with regard to a low back problem.  He underwent an L4/L5 central discectomy on 4/11/88 and underwent an intertransverse spinal fusion and C.D. instrumentation on 6/9/91."

	The issue before the Workers Compensation Court was the extent to which, if at all, the injury on 24 August 1978 was the original cause of this disability, or whether it contributed to it or aggravated the disability.

	The appellant seeks orders that the appeal be upheld and the matter be referred back to the learned stipendiary magistrate to make a determination in respect of the other issues.

	Counsel for the appellant submitted that he would be arguing the appeal by reference to four discrete issues:

	1)	That the findings of the learned stipendiary magistrate disclosed an error of law in that there was no evidence upon which he could rely upon in respect of key findings that he made.  These issues encompasses grounds of Amended Notice of Appeal No. 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19 and 20.

	2)	Ground of appeal set out as ground 5 of the Amended Notice of Appeal.

	3)	Grounds of appeal as set out in paragraph 21 of the Amended Notice of Appeal.

	4)	Ground of appeal No. 22 in the Amended Notice of Appeal.

	Counsel for the appellant advised that grounds No. 17 and 18 in the Amended Notice of Appeal were not pursued.

	I adopt with respect the principles to be applied in an appeal to the Supreme Court from the Workers Compensation Court as expressed in Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32, a decision of Mildren J, at p37:

	"It is necessary to bear in mind the limited powers of this Court on an appeal of this nature.  The supervisory jurisdiction of this Court is limited to the question of whether or not there is an error of law.  This Court has no jurisdiction to correct factual errors.  Whilst the borderline between errors of law and errors of fact is notoriously difficult to delineate, as Gallop J observed in Tiver Constructions Pty Ltd v Clair (1992) 110 FLR 239, certain principles have become well accepted.  In the process of arriving at an ultimate conclusion a trial judge goes through a number of stages.  The first stage is to find the primary facts.  This may involve the evaluation of witnesses who give conflicting accounts as to those facts.  If the trial judge prefers one account to another, that decision is a question of fact to be determined by him, and is not reviewable on appeal.  .........  If, on the other hand, there is no evidence to support a finding of fact which is crucial to an ultimate finding that the case fell within the words of the statute (for example, that injury by accident arose out of the course of the employment, or that the failure to give notice was occasioned by mistake), there is an error of law: Nicolia v Commissioner of Railways (supra); Tiver Constructions Pty Ltd v Clair (supra) per Martin and Mildren JJ (at 245); Haines v Leves (supra) (at 476); Azzopardi v Tasman UEB Industries Ltd (supra) (at 156)."

	I apply the principles on appeal from the Workers Compensation Court to the Supreme Court as expressed by the Court of Appeal in Wilson v Lowery (1993) 110 FLR 142 at p146:

	"	The authorities have been conveniently summarised by Mildren J. in Tracy Village Sports and Social Club v. Walker (unreported, Supreme Court, NT, Mildren J, File No 43/92, 10 November 1992).  We venture to repeat them:

		(1)	In the process of arriving at an ultimate conclusion a trial judge goes through a number of stages.  The first stage is to find the preliminary facts.  This may involve the evaluation of witnesses who gave conflicting accounts as to those facts.  If the trial judge prefers one account to another, that decision is a question of fact to be determined by him and is not reviewable on appeal.  It may be that the reason given for preferring one witness to another is patently wrong.  Nevertheless, no appeal lies: R. v District Holden at Sydney, Ex parte White (1966) 116 CLR 644 at 654; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156; Haines v Leves (1987) 8 NSWLR 442 at 469-70.

		2.	Regardless of the trial judge's reasons, if there is evidence which, if believed, would support the finding, there is no error of law: Nicolia v Commissioner of Railways (NSW) (1970) 45 ALJR 465.

		3.	If, on the other hand, there is no evidence to support a finding of fact which is crucial to an ultimate finding that the case fell within the words of the statute (for example, that injury by accident arose out of the course of the employment, or that the failure to give notice was occasioned by mistake), there is an error of law: Nicolia v Commissioner of Railways (supra); Tiver Constructions Pty Ltd v Clair (supra), per Martin and Mildren JJ (at 145-146); Haines v Leves (supra) (at 156).

		4.	But, a finding of fact cannot be disturbed on the basis that it is "perverse", or "against the evidence or the weight of the evidence or contrary to the overwhelming weight of evidence".  Nor may this Court review a finding of fact merely because it is alleged to ignore the probative force of evidence which is all one way, even if no reasonable person could have arrived at the decision made, and even if the reasoning was demonstrably unsound: Haines v Leves (at 469-70).

		5.	The second stage is the drawing of inferences by the trial judge from the primary facts to arrive at secondary facts.  This is subject to the same limitations that apply to primary facts.

		6.	If there are no primary facts upon which a secondary fact could be inferred, and the secondary fact is crucial to the ultimate finding as to whether or not the case fell within the words of the statute, there is an error of law.  If there are primary facts upon which a secondary fact might be inferred, there is no error of law.

		7.	It is not sufficient that an appellate court would have drawn a different inference from those facts.  The question is, whether there were facts upon which the inference might be drawn.  If a tribunal draws an inference which cannot reasonably be drawn, it errs in point of law and its decision can be reviewed by the courts: Instrumatic Ltd v. Supabrase Ltd [1969] 1 WLR 519 at 521; [1969] 2 All ER 131 at 132, Lord Denning MR, with whom Edmund Davies LJ and Phillimore LJ agreed; Edwards (Inspector of Taxes) v. Bairstow [1956] AC 14."

	I do not agree with the submission of counsel for the appellant that there are key findings made by the learned stipendiary magistrate which are not supported by the evidence. Neither do I agree with the appellant's submission that the learned stipendiary magistrate failed to make a finding on the key issue; that is whether the injury at work in 1978 aggravated an injury or itself was the injury which gave rise to the disability.

	Counsel for the appellant analysed the Reasons for Decision delivered by the learned stipendiary magistrate and I will address the points he has raised.

	On p8 of his Reasons for Decision, the learned stipendiary magistrate quoted from the report of Dr Johnstone dated 20 August 1994 and the opinion expressed by Dr Johnstone that the appellant's "spinal troubles commenced as a result of the injury he received to his back when he was knocked from the truck on 24/8/78".  Dr Johnstone also stated "I consider that he is totally unfit to return to the workforce in order to earn a living".

	On p9 of his decision, the learned stipendiary magistrate sets out the facts (a) to (i) on which it appeared from Dr Johnstone's report (Exhibit 11) that Dr Johnstone relied and based his opinion.

	"In my view it appears to follow from Exhibit P11 that in forming his opinion (that the Applicant's spinal troubles commenced as a result of the injury on 28/8/78 and his subsequent suffering, disability and necessary treatment arose from and were necessary because of the same incident) Dr Johnstone bases it, and relies, upon the following facts:

	(a)	the Applicant had no injuries to his back before the incident of 24/8/78;
	(b)	the Applicant had no injuries to his back after the incident of 24/8/78;
	(c)	the Applicant had low backache immediately after the accident;
	(d)	the Applicant had pain down the right leg when he exerted pressure on the brake and accelerator pedals when he returned to work one week after the accident;
	(e)	the Applicant had sub-liminal pain down the right leg from the time of the accident but over-shadowed by the greater degree of pain in the low back;
	(f)	the Applicant continued at his work until 25/7/79 albeit with low backache and pain down the right leg.;
	(g)	the Applicant had occasional days off work;
	(h)	the Applicant's separation from the job was due to a combination of persisting backache and an altercation with his overseer; and
	(i)	the Applicant worked as a taxi driver on a part-time basis but had to stop because of the effect on his back.

	I proceed to consider the opinion of Dr Johnstone on the premise that these facts were the basis of his opinion.  No other basis for the opinion is reasonably open from his evidence.  If the factual basis for the opinion was not stipulated by Dr Johnstone then I would be bound to reject the opinion without the need to consider it further."

At p10 the learned stipendiary magistrate stated:

	"..... the Applicant bears the onus of satisfying me that the opinions of Dr Johnstone and Dr Baddeley are correct and this can only be done:

		(i)		by stating clearly the facts on which the opinion is based;
		(ii)		by establishing the grounds of the opinion;
		(iii)	by stating what facts (if any) are critical to the opinion;
		(iv)		if the expert explains his process of reasoning;
		(v)		where the grounds of the opinion and the facts relied upon are found to be established, and the Court then considering for itself whether the facts and the theory justify first, the opinion expressed by the expert, and secondly, a finding on the ultimate issue which the opinion is said to support.

	If the Court were to proceed otherwise then it would be breaching the general principle that:

		'If the Court does not know or cannot understand the process of reasoning, if it were to adopt the opinion, it would abdicate its function of deciding the case in favour of the expert' - (1987) 61 ALJ 615 at 618; Samuels v Flavel (1979) SASR 256 at 260; R v Jenkins; ex parte Morrison (No 2) (1949) Argus LR 468 at 475-476."

	The learned stipendiary magistrate then made reference to the fact that when Dr Johnstone wrote the report of 20 August 1994, Exhibit P11) he was not aware he had examined the appellant on 17 December 1980, or that he had written a report following the examination.  Neither did he remember giving evidence in the Supreme Court in 1984 in relation to the appellant.

	From pp11-44 of his Reasons for Decision, the learned stipendiary magistrate analyses the facts on which Dr Johnstone based his opinion.  With respect to fact (a), Dr Johnstone gave evidence (transcript p252) that this was a very important part of the history.  The learned stipendiary magistrate found that the appellant had failed to establish fact (a) on the balance of probabilities.

	The learned stipendiary magistrate analysed the evidence of the appellant in respect of the other facts relied upon by Mr Baddeley and Dr Johnstone and found that in respect of facts (a), (b), (d), (e), (f) and (i), he could not be satisfied on the balance of probabilities the appellant had established these facts.  In respect of (c), the learned stipendiary magistrate made the following finding at p23:

	"I do not find on the evidence that the Applicant's "complaints-back" as set out above in fact were true on 17.12.80.  The Applicant sought no treatment for his back at all after leaving hospital in 1978 and I do not accept that by 17.12.80 the Applicant's back was aching all the time."

	In respect of (g) the learned stipendiary magistrate made the following finding at p43:

	"I am unable to find that the Applicant had any time off while he was working with the Respondent related to any back problem connected with the 1978 accident."

	In respect of fact (h), the learned stipendiary magistrate made the following finding at pp43-44:

	"Whilst the Applicant has attempted to blame his ceasing work with the Respondent in part on his alleged back problem, I am unable to accept the Applicant's evidence in this regard and reject it.  I find that the Applicant was fit for his duties as a truck driver with the Respondent on the date he resigned.  I further find that the Applicant resigned solely by reason of a disagreement with his boss and not related in any way to the fall on 24 August 1978."

	The learned stipendiary magistrate made specific findings that the appellant had failed to prove on the balance of probabilities that the matters referred to in (a) to (i) inclusive were factually correct.

	The learned stipendiary magistrate made the following findings at p48:

	"Accordingly, on the evidence the Applicant has failed to satisfy me on the balance of probabilities that:

		(i)	in the fall on 24 August 1978 the Applicant suffered a lumbar back injury with L4/5 disc prolapse;

	    (ii)	the fall on 24 August 1978 required the Applicant to undergo on L4/5 central discectomy on 4 November 1988 and/or an intertransverse spinal affusion and CD instrumentation on 6 September 1991;

	   (iii)	increasing back pain forced the Applicant to cease working with the Respondent on or about 25 July 1979;

	    (iv)	as a result of the fall on 24 August 1978 the Applicant has been totally or partially incapacitated for work for any period since 1 August 1981;

		(v)	the Applicant has suffered a permanent disability of his right lower limb in the fall;

	    (vi)	the Applicant has sustained any of the injuries specidied (sic) in Part I or the first column of Part II of the Third Schedule of the Act.

	I therefore find that the Appellant in (sic) not entitled to any of the relief which he seeks and his claim should be dismissed."

	In summary the learned stipendiary magistrate found, in respect of each of the facts on which Dr Johnstone and Mr Baddeley based their opinion, the facts were not substantiated by the appellant on the balance of probabilities.  Those findings were open to the learned stipendiary magistrate on the evidence.  I do not consider the analysis by the learned stipendiary magistrate of the evidence and his ultimate findings of fact disclose an error of law.

	I agree with the learned stipendiary magistrate's conclusion that if the essential facts on which the doctors based their opinion are not proved then the opinion may be for that reason undermined.  I accept that this is a reason to reject the opinions of Dr Johnstone and Mr Baddeley and does not disclose an error of law.  The learned stipendiary magistrate drew the inference from the evidence of Dr Johnstone and Mr Baddeley that these were the essential facts on which they based their opinion.  I consider the learned stipendiary magistrate was entitled to draw such an inference from the evidence of the two doctors.  This amounts to a finding of fact and does not disclose an error of law.

	Counsel for the appellant submits, in respect of (a), that there is no evidence to support a finding that the appellant suffered a prior "relevant" injury.  It is the applicant's argument the only evidence was he had been kicked by a horse to the kidney area, there was tenderness in the L2/3 area but no abnormality was detected in the x-rays.  Counsel for the appellant then refers to the sciatic manipulation to the appellant's lumbar spine in 1970 as described in the Royal Darwin Hospital notes.  It is the appellant's argument that this has not been shown to be relevant to the later injury on 24 August 1978.  However, I note that Dr Johnstone in cross examination (transcript p254) agreed that a sciatic manipulation to the lumbar spine would be significant.

	Counsel for the appellant put forward similar submissions in respect of (b) and argued that it had not been established on the evidence that the appellant had suffered any relevant injury since the injury on 24 August 1978.  I do not agree with this submission.  In his Reasons for Decision (pp17-18 and 20-21), the learned stipendiary magistrate summarised the Royal Darwin Hospital notes and itemises a number of injuries.  The learned stipendiary magistrate found that the 12 events he enumerated may have had relevance to the medical experts in arriving at their opinion, but neither Dr Johnstone nor Mr Baddeley knew about any of these events when they formed their opinion.  The learned stipendiary magistrate made clear findings to the effect that he found Mr Bjorvig an unreliable witness as Mr Bjorvig had been unable to remember any of those events and only agreed they must have occurred when he was shown the hospital records.  The learned stipendiary magistrate makes further findings as to the appellant's lack of credibility.  I am not persuaded that these findings can be subject to challenge.  They do not, in my opinion, disclose an error of law.

	Similarly, in respect of facts (d), (e) and (f), counsel for the appellant argues those facts were either not significant in forming the doctor's opinion or there was no basis in the evidence for the findings made by the learned stipendiary magistrate.  I do not agree with this submission.

	With respect to facts (g), (h) and (i), the submission by counsel for the appellant again is that neither Dr Johnstone or Mr Baddeley were tested as to whether these facts were significant and the learned stipendiary magistrate was not entitled to conclude they were relevant to the formation of the doctor's opinion.  There was, in my opinion, evidence to support the learned stipendiary magistrate's findings that these matters were relevant to the doctors' opinions.  The learned stipendiary magistrate was entitled to reject those opinions.  Again I am not persuaded there was an error in law on the part of the learned stipendiary magistrate.

	I agree with the submission by counsel for the respondent that the learned stipendiary magistrate at pp45-48 clearly addressed the evidence of Mr Baddeley and the evidence of Mr Baddeley is that the factual issues identified by the learned stipendiary magistrate in (a) to (i) were important facts in the foundation of Mr Baddeley's opinion.

	I agree there is support for the findings of the learned stipendiary magistrate's own assessment of Mr Bjorvig; that Mr Bjorvig was not serious at all about looking for work at any time since the accident.

	At p49.7 of his Reasons the learned stipendiary magistrate accepted the evidence of Mr Gray that there was no connection between the 1978 fall and the need for the subsequent operations, either in 1988 or 1991.  That at the time he saw the applicant on 1 February 1982 he was fit for his pre-accident employment.  I accept the respondent's interpretation of the evidence given by Mr Fry (transcript pp371-372) is that the effect of the fall from the truck on the appellant was minimal.

	I also agree that it was open to the learned stipendiary magistrate to accept the evidence of Mr Fry as he did in preference to the evidence of Dr Johnstone.

	I consider the learned stipendiary magistrate was justified in his finding that the appellant deliberately down-played his problems with alcohol.  This can be established by the admissions he made under cross examination, compared with his evidence during examination in chief.  The extracts from records of Royal Darwin Hospital indicate a history of problems with alcoholism.

	The learned stipendiary magistrate was justified in his findings that he could not rely on the appellant's evidence.

	I agree with the respondent's submission that in arriving at the significant facts (a) to (i) the learned stipendiary magistrate relied on the salient matters referred to in the doctor's own opinion as quoted on pp8-9 of the Reasons for Decision.

	The reports of Mr Gray and Mr Lowe were tendered before the learned stipendiary magistrate.  Mr Gray is now deceased and Mr Lowe was out of the jurisdiction at the time of the hearing.

	The cross examination of Mr Baddeley set out on pp7-8 of the Reasons for Decision, clearly indicates that when Mr Baddeley formed his opinion it was based on a history given to him by the appellant that there was no back pain prior to 24 August 1978.  Mr Baddeley agreed this was an important part of the history.  The other fact on which Mr Baddeley based his opinion was that there had been no other incidents since 24 August 1978.  Mr Baddeley agreed that if this history was incorrect, then there may be other causes for the L4/L5 disc prolapse which required surgery.

	In his report dated 20 August 1994, the opinion of Dr Johnstone is set out by the learned stipendiary magistrate on p8 of his Reasons for Decision.  Dr Johnstone said, inter alia:

	"Mr Bjorvig indicated to me that he had no injuries to his back either before or after the accident of 24/8/78.  Such being the case it would suggest that this accident precipitated his immediate symptoms and his ongoing deterioration."

	The learned stipendiary magistrate found this indication by Mr Bjorvig to Dr Johnstone to be factually incorrect.

	Under cross examination and after being referred to the Royal Darwin Hospital notes, Mr Bjorvig agreed that on 13 April 1970 he had a back manipulation for left sciatic back pain (Reasons for Decision p15).

	When cross examined, Dr Johnstone stated he was not aware Mr Bjorvig had gone to Royal Darwin Hospital before 1978.  Dr Johnstone agreed this was an important part of this history and that it was of significance Mr Bjorvig had a sciatic manipulation to his lumbar spine and had he known this it might alter his opinion.

	Counsel for the appellant complains that the cross examination should have gone further.  The effect of his submission is that counsel for the respondent should have asked both Mr Baddeley and Dr Johnstone what would their opinion be based on the true facts of the appellant's history.  The submission on behalf of the appellant is that the doctors may not have altered their opinion, but had no opportunity to state whether given a changed set of facts this would substantially alter their opinion or not.  It is the appellant's submission, Dr Johnstone and Mr Baddeley were not given an opportunity to indicate whether their diagnosis was in fact changed by some challenge to the underlying facts.  I do not accept this submission.  It is clear from the excerpts of evidence already referred to in the learned stipendiary magistrate's Reasons for Decision, that at least some of the appellant's history, as recorded by the doctors, was significant in the formation of the doctors' opinion.  These facts, as alleged by the appellant to the doctors, having been shown to be incorrect, the learned stipendiary magistrate was, in my opinion, entitled to conclude that he could not accept the opinion of Dr Johnstone or Mr Baddeley and in preference to their opinions, accepted the opinion of Mr Fry.

	At p17 of the Reasons for Decision, the learned stipendiary magistrate repeats evidence given by the appellant in chief to the effect he had no back injuries between 1978 and when he saw Mr Baddeley in 1987.  The learned stipendiary magistrate then refers to the Royal Darwin Hospital notes which were an exhibit before him and listed nine occasions when the appellant attended Royal Darwin Hospital.  Under cross examination, Mr Bjorvig agreed with these entries, including an entry that on 12 April 1979:

	"C/o fell off chair - hurt back 5/7 ago.  In bed for a couple of days."

	On p20 of his Reasons for Decision, the learned stipendiary magistrate sets out three entries from the Royal Darwin Hospital during 1988, all of which record injuries sustained by the appellant to his back and subsequent back pain.

	Neither Dr Johnstone or Mr Baddeley were aware of these incidents when they formed their opinions.

	Dr Johnstone stated (transcript pp265-266) before the learned stipendiary magistrate:

	"Do you accept the proposition that this man well have injured his back lifting suitcases during the course of his taxi-driving work?---There's always the possibility that he could have aggravated a pre-existing lesion.

	If the history I have put to you is correct in that we have a problem in his lumbar spine going back to 1970 that would be what the surgeons would call a long-standing problem, would it not?---Yes.

	If there was a back problem of long-standing when this man was working as a taxi-driver in 1982 any single act of lifting a heavy suitcase out of the boot of a taxi might be sufficient to create a disc lesion?---It's possible.

	So that could well be the origin of his problems?---It's possible.

	You are dependent in this regard in significant measure upon the accuracy and reliability of the history he gives, are you not?---Yes.

	If it is shown that the history that you have relied on is neither accurate nor reliable, then you would doubt your own opinion, would you not?---I don't really understand.

	Well, the reliability of your opinion is based upon the accuracy of the history you have been given?---Yes."

	Evidence as to the poor memory of the appellant can be found at transcript pages 184, 185, 191, 200, 204 and 237.  Two examples, p204:

	"MR NOSWORTHY:  You had trouble remembering that when you gave evidence in the Supreme Court, didn't you?---Yes.

	So it is true to say that you have had a defective memory over the years; do you agree with that?---Yes.

	You had a defective memory in 1984?---Yes.

	And you have always had problems with your memory?---More or less, yes.

	Did those problems with your memory coincide with your excessive drinking?---I can't answer that."

and pp237-238:

	"Do you agree that on 22 May 1988 you were brought into the Darwin Hospital by St John's Ambulance following a fall in which you injured your back?---No, I can't recall that.

	Well, I suggest to you that on 22 May 1988 you went to put out the garbage and slipped and landed on your back; do you remember that?---No, I can't recall that.  I might have slipped but.

	Sorry?---Yeah, I might have slipped, but I can't remember falling on my back.

	Would you have a look at the paper I put before you.  Do you agree that on 22 May 1988 you were brought into the Darwin Hospital by St John's Ambulance following a fall that afternoon when you received an injury to your back?---Yes, I had a fall.

	Do you agree that you told them that you'd injured your back?---I might have twisted my back when I slipped, I suppose.  I can't remember.

	Do you agree that that occurred when you went to put out the garbage and you slipped and landed on your back?---Might have twisted on the way downstairs hanging onto the rail.  I think I remember that.

	But do you agree that you slipped and landed on your back?---I don't think I really landed on my back, no.  I was sort of twisted around (inaudible).

	Would you agree that's what you told them?---Yes, it says here.

	Do you acknowledge that as accurate?---Yes.

	Thank you.  May I have the notes, please.

	Do you agree that about 10 days later on 5 June 1988 that you were treated again at the outpatients at the Darwin Hospital complaining of liver pain, throwing up and the presence of blood?---Yes, I do.

	Do you agree that you said that you'd had a liver problem for two years under Doctor Watson as a result of your drinking?---That's correct.

	Do you agree that you said that you had been drinking heavily of late, up to 12 glasses of moselle per day?---No, I can't recall the amount."

	At p38.4 of his Reasons for Decision, the learned stipendiary magistrate clearly rejects evidence given by the appellant that he had leg pain problems or symptoms shortly after the accident until about 1984.  In my opinion, the learned stipendiary magistrate was entitled to draw that conclusion.  On the evidence there was no mention of any right leg pain when the appellant gave evidence before the Supreme Court, it is not mentioned in the Statement of Claim nor in Answers to Interrogatories.

	In my opinion, the findings made by the learned stipendiary magistrate were open to him on the evidence.  The test is not whether the Court of Appeal would have made similar findings, but whether the appellant has demonstrated any error of law on the part of the learned stipendiary magistrate.  In my opinion, no such error has been demonstrated.

	I accept the argument of counsel for the respondent that grounds 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19 and 20 all relate to findings of fact.  I am not persuaded any of these grounds disclose an error of law.  There is evidence from Mr Bjorvig himself to support a finding that lower back pain or back ache related to the fall persisted only for a short time.  Also support for such a finding from Answers to Interrogatories sworn 26 August 1983 2(c), 3(a) and 3(b).  Two examples of transcript of evidence given by Mr Bjorvig to the Supreme Court on 1 October 1984 are p61.5:

	"What I'm asking you is this, is it not the case that in the year after this incident, with the exception of the time you spent in the Darwin Hospital, the 22 hours, you sought no medical treatment in relation to either your head or your back?---I had x-rays, I just laid in the bed there, that's all.

	That's the case, isn't it, after you left that hospital after 22 hours, and up until the time you left Brambles, you sought no medical treatment, did you?---No.

	In fact, you have not sought any medical treatment at all up until recently have you, this year?---I haven't had any treatment whatsoever for my back."

and p78.5:

	"Now yesterday, I put to you that you'd sought no medical treatment until the end of 1983, and you agreed with that, you remember?---Yes.

	Have you sought any medical treatment this year?---Yes.

	When did you first seek medical treatment?---Be approximately about 2 months ago, 2 and a half months ago, for physiotherapy at the Casuarina Royal Hospital.

	HIS HONOUR:  Is that the first physiotherapy you've had since the accident?---Yes."

	It is clear the learned stipendiary magistrate found the appellant to be an unreliable witness because of his inability to remember some very significant events in his life and this may have been attributable to the appellant's continued and long term abuse of alcohol.  These were findings open to the learned stipendiary magistrate on the evidence and do not disclose an error of law.  Ground 19 refers to a factual finding.  The actual finding was made by the learned stipendiary magistrate at p51 of his Reasons for Decision:

	"Even if the Applicant's current physical incapacities were related to the subject accident (which I do not find they are) I would still find that if the Applicant seriously wanted to work and ceased his excessive alcohol intake he would still be fit to perform work which did not involve:

		-	repetitive heavy lifting
		-	repetitive bending
		-	continual and extended standing
		-	continual and extended sitting

	I would not be satisfied that the Applicant was unable to perform the work of:

		-	taxi driver
		-	short distance truck driver
		-	short distance van driver
		-	storeman
		-	telemarketer
		-	courier driver"

	This finding was open to the learned stipendiary magistrate on the evidence.  At transcript p266.5 Dr Johnstone conceded that he thought the appellant was only partially incapacitated in 1984.  At transcript p166 Mr Baddeley accepted Mr Bjorvig was substantially fit for light work.

	All these grounds of appeal relate to the learned stipendiary magistrate's findings of fact.  In my opinion, such findings were open to the learned stipendiary magistrate on the evidence.  The appellant has not persuaded me there is any error of law in these findings.

	The second discrete issue as argued by the appellant is contained in ground 5 of the Amended Notice of Appeal.  I do not accept the argument of counsel for the appellant on this issue.

	The learned stipendiary magistrate, having found that the accident was not the cause of the appellant's incapacity and having made a finding that the appellant was not totally incapacitated, did not make an error of law because he did not at that time proceed to deal with the issue of partial incapacity.  The appellant had failed to satisfy the learned stipendiary magistrate, on the balance of probabilities, that the accident in August 1978 caused or contributed to any incapacity.  I am not persuaded, that in view of such a finding, the learned stipendiary had an obligation to go on and deal with the claim for partial incapacity.

	The next point of appeal argued by the appellant related to ground of appeal No. 21.

	On 17 October 1984, Muirhead J delivered a decision in the Northern Territory Supreme Court (Exhibit 3) awarding damages in favour of the appellant against John Lysaght Australia Ltd. It is not in dispute that the third party to those proceedings, Brambles Holding Limited, is one and the same as Brambles Australia Limited, the respondent to these proceedings.

	The appellant argues an estoppel does extend to the learned stipendiary magistrate because Muirhead J made the following finding at p13.7 of his decision referrable to the accident on 24 August 1978:

	"....  It is probable that he did suffer a ligamentous injury which is now well established and less likely to respond to treatment.  The flattening of the spinal curvature of the lower spine confirms the injury. ...."

and at p15:

	"	On balance I tend to view that at the time of the accident the plaintiff suffered back strain and some ligamentous damage. ...."

and at p17:

	"	I accept the plaintiff suffered an injury to his back as a result whereof he suffers discomfort. ...."

	This finding, the appellant argues, flies in the face of the finding made by the learned stipendiary magistrate as expressed in his Reasons for Decision at p44:

	"On the evidence I would find that the Applicant had been incapacitated for heavy work and in particular for the unrestricted duties of truck driving since about 1987 but I am not satisfied on the balance of probabilities that such incapacity for work is by the injury of 24.8.78.  I am not satisfied that any problems the Applicant had after about 1980 are in any way referable to the fall on 24.8.78.  I find that any back pain and leg symptoms after 1980 are not related to the fall of 24.8.78 or any aggravation, acceleration or recurrence of any pre-existing injury or degeneration."

	The appellant contends the learned stipendiary magistrate did not make findings to the effect that since 1984 the problem as described by Muirhead J had resolved or that they had no connection with his later disability.

	It is the appellant's submission that the learned stipendiary magistrate has made a contrary finding to that made by Muirhead J.

	In his Reasons for Decision at p52 the learned stipendiary magistrate states as follows:

	"Mr Nosworthy argued that I was bound by the findings of Muirhead J in the Supreme Court action.  If it were necessary to decide this point then I would hold that no issue estoppel arises as that was not a judgment between the same parties or their privies."

	The appellant argues that the appellant and the respondent were privies in the Supreme Court action before Muirhead J because there was a commonality of interest.  The employer third party had agreed with John Lysaght (Australia) Ltd to pay 10% of any damages awarded (Ramsay v Pigram (1968) 118 CLR 271 Barwick CJ at 276):

	"	Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. ....."

and Egri and Anor v DRG Australia Ltd (1988) 19 NSWLR 600:

	".... A final decision, once given by a competent tribunal, creates an issue estoppel in that it forever binds the parties and all those who claim through them in respect of any issue of fact or law which was legally indispensable to that decision.  However, no estoppel arises concerning evidentiary facts, no matter how fundamental they may have been in the chain of proof or reasoning concerning the decision on an ultimate issue."

	The appellant asserts the appellant and respondent have a privity of interest.  The learned stipendiary magistrate is entitled to make findings as to what may have occurred since 1984, however, according to the appellant he is estopped from making a finding that contradicts the finding of Muirhead J that the appellant did suffer an injury on 4 August 1984 entitling him to a claim for damages.

	It is the appellant's contention that the respondent had a liability in the Supreme Court hearing which was resolved between it and the defendant prior to the hearing of the appellant's claim for damages in the Supreme Court.  It was agreed between the respondent and Lysaght that the respondent be liable for 10% of any damages assessed by the Supreme Court.

	It is the appellant's argument there was sufficient privity of interest between the respondent and its employee, in relation to the appellant's legal liability to pay damages for disability, to create issue estoppel.

	In Manners v Transfield (1992) 110 ALR 70 Rowland J at 92 refers to the decision in Gleeson v J. Wippell:

	"	In Gleeson v J Wippell & Co Ltd [1977] 3 All ER 54 at 59-60 Megarry V-C, in discussing the privity of interest, conceded that it was 'difficult territory'.  Having discussed some earlier English and American authorities, he said at 60:

		'... it seems to me that the substratum of the doctrine is that a man ought not to be allowed to litigate a second time what has already been decided between himself and the other party to the litigation.  This is in the interest both of the successful party and of the public.  But I cannot see that this provides any basis for a successful defendant to say that the successful defence is a bar to the plaintiff suing some third party, or for that third party to say that the successful defence prevents the plaintiff from suing him, unless there is a sufficient degree of identity between the successful defendant and the third party.  I do not say that one must be the alter ego of the other: but it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party.  It is in that sense that I would regard the phrase 'privity of interest'.'"

	The appellant referred to the decision of Port of Melbourne Authority and Anshun Proprietary Limited (1981) 147 CLR 589 in support of the principle that estoppel existed because it had been open to the respondent to agitate the issue of liability in the earlier litigation and had failed to do so choosing instead to settle with the defendant its amount of contribution for damages.

	Accordingly, the appellant argues the "Anshun" principle can be applied to a third party where in the previous litigation the third party had the right to agitate the issue and failed to do so.

	In Bryant v Commonwealth Bank of Australia (1995) 130 ALR 129 at 139:

	"	It seems to us that the approach taken in Rahme should be followed in this court.  It is not inconsistent with anything stated in Anshun; indeed it is consonant with the High Court's placing emphasis on looking at the substance of the issue sought to be raised in the later case, rather than on its form. ...."

	In 1984 the respondent was a third party to the Supreme Court action which was a common law claim by the appellant for damages.  The respondent did not have the opportunity in those proceedings to have the issue of incapacity and entitlement under the Workers Compensation Act dealt with.  I am not persuaded this is a situation described as an Anshun estoppel.

	A comparison of the judgment of Muirhead J delivered on 17 October 1984 and the Reasons for Decision of the learned stipendiary magistrate demonstrates a clear similarity in their respective findings.  There are numerous examples, but for present purposes I refer to just one.

In the Reasons for Judgment of Muirhead J he says at p8:

	"	The plaintiff fell on his back, his head striking the concrete.  He lost consciousness only momentarily.  He was driven to hospital and admitted, being discharged the next day.  He complained of some headache and low backache.  A bruise was noted in the region of the left lower lumbar vertebrae.  Back movements were good - there was no muscular spasm.

		The plaintiff resumed his usual employment about one week later.  He was vague as to the duration of that employment, but from the meagre records introduced in evidence I find he remained in that employment until about 25th July 1979.  The plaintiff told me he carried out his normal work as a truck driver with some difficulty due to back pain.  He also drove a fork lift.  I am unable to find he left such employment as a consequence of his injury.  That may have been a factor but it followed 'a disagreement' with the manager which resulted in union intervention.  There is no evidence the disagreement resulted from any accident related difficulties. ....."

	This finding is substantially the same as the findings of the learned stipendiary magistrate at pp43-44 of his Reasons for Decision and repeated in part on p12 of these Reasons for Judgment.

	Muirhead J also makes reference to the appellant's vagueness, his disinclination to seriously look for work and his problem with alcohol, all matters referred to by the learned stipendiary magistrate.  Both Muirhead J and the learned stipendiary magistrate found the appellant did have an accident on 24 August 1978.  Both found he suffered an injury to his back when he fell from a truck.  Muirhead J specifically found he did not leave his employment as a consequence of his injury.  Muirhead J also makes reference to the fact that had he sought early medical treatment of a conservative nature this would have assisted his problem.

	My reading of the Reasons for Judgment of Muirhead J and the Reasons for Decision of the learned stipendiary magistrate, is that they have come to very similar conclusions on the evidence.  I am not persuaded the findings of Muirhead J act as an estoppel and, in my opinion, the appellant has failed to make out this ground.

	With respect to ground 22 of the Amended Notice of Appeal, I consider each of the key findings identified by the appellant were open to the learned stipendiary magistrate on the evidence before him.  I am not persuaded the learned stipendiary magistrate erred in law in making these findings.

	Accordingly, I would dismiss the appeal.  Leave is granted to the parties to apply on the question of costs.

	Counsel for the respondent indicated that if the appeal were dismissed then no ruling is required in respect of the Notice of Contention filed by the respondent on 12 September 1995.

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