PARTIES:					ROBERT HICKS

						v

						BRIDGESTONE AUSTRALIA LIMITED

TITLE OF COURT:			SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:				WORK HEALTH ACT

FILE NOS:					No. 6 of 1994

DELIVERED:				9 May 1996 Darwin 

HEARING DATES:				

JUDGMENT OF:				Kearney J

REPRESENTATION:
Counsel:					
	Appellant				P.M. Barr
	Respondent			J.A.C. Tippett

Solicitors:				
	Appellant				Cridlands
	Respondent			Ward Keller

Judgment category classification:	B
Judgment ID Number:				kea96013
Number of pages:				36

kea96013

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

No. 6 of 1994 

						IN THE MATTER of the 
						WORK HEALTH ACT

						AND IN THE MATTER of an appeal from a decision of the Work Health Court in Darwin 

						BETWEEN:

						ROBERT HICKS
							Appellant

						AND:

						BRIDGESTONE AUSTRALIA LIMITED
							Respondent

CORAM:   KEARNEY J

	REASONS FOR JUDGMENT

	(Delivered 9 May 1996)
	The appeal
	In the Work Health Court ("the Court") the appellant ("the worker") claimed weekly compensation payments and associated benefits from the respondent ("the employer"). He claimed under the Work Health Act ("the Act") on the basis that he was totally incapacitated for work as a result of an injury he alleged he had sustained on 17 March 1992 when working for the employer.  On 3 December 1993 the Court dismissed his claim.  Under s116(1) of the Act he appealed from that decision "on a question of law".  I rule on his appeal today.
	The injury relied on
	At the time of his alleged injury on 17 March 1992 the worker was employed by the respondent as a wheel aligner/tyre fitter.  The facts relating to his employment and the injury on which he relies appear at pp2-4 of his Worship's judgment, viz:-
"… 35 to 50% of the worker's time was spent doing wheel-aligning work and the balance of time was involved with tyre-fitting.  The tyre-fitting involved tyres ranging from wheelbarrow tyres up to tractor tyres.

The work of aligning car wheels was relatively easy …. The work of fitting car tyres was also relatively easy ….

The work on truck and similar size tyres was heavier work ….

When the worker was involved in tyre-fitting about 50% of his time was involved with truck tyres or similar.

…

The worker gave evidence that on 17 March 1992, whilst working at the [employer's] premises in the afternoon, he bent down and was in the process of lifting a truck wheel to turn it over when he felt a sudden sharp pain in the middle of his back, below the belt line.  The worker dropped the wheel and then straightened up.  After a minute or so the pain subsided although the worker was left with a small amount of pain, but [he] was able to continue his duties for the rest of that day.  This is the incident which the worker alleges caused "the injury".

That night the worker had an ache in the middle of his low back.

On 18 March 1992 when the worker presented for work he gave notice of the incident to Mr Munro (the assistant manager of the employer)…".

The evidence was that he worked next day, 18 March 1992.  His Worship did not accept that he worked that day “in great pain”, though he “may have had some pain” about which he made no complaint that day or showed “external signs”; he performed “his normal duties” and completed “his normal work day”.  On the night of 18 March, at home after work, the pain became worse, and he was taken to hospital by ambulance, and admitted.  He was seen at the hospital by Mr Baddeley, an orthopaedic surgeon, who noted that he complained of “low back pain”, being “quite stiff and sore”, and of suffering lower back on the right side “radiating to the buttock and down the right leg”.  On 24 March 1992 Mr Baddeley certified him unfit for work until 18 April, due to a “back problem” (Exhibit P2).  The worker was treated in hospital for “up to 1 week”; in that period his “pain settled down quite a lot”.  When he saw Mr Baddeley 2 weeks later on 2 April he had “improved a lot”, with “no complaints of pain”. On the evidence his Worship found:
“… whatever happened to the worker’s back on 17 March 1992 it had resolved by 2 April 1992, as it was not producing any symptoms or pain.”
On 2 April Mr Baddeley certified that the worker “would be fit to resume normal work on 6 April 1992’.  However, his Worship accepted Mr Baddeley’s oral evidence at the hearing that despite this certificate, he had advised the worker against returning “to very heavy work”, as it would be “likely to exacerbate/re-establish his back pain”.  His Worship considered that this mean that the worker was “at risk of re-injury”, and that was “the only reason he should not have returned to any heavy work on 6 April 1992”.  His Worship then embarked upon a consideration of why it was that the worker was “at risk of re-injury”; he expressed his conclusion on the matter as follows (judgment, p5):
“In my view, the evidence raises a number of possible options as to why the worker was in that risk category, which were not adequately canvassed or explained in evidence.  Accordingly, it is in my view impossible for me, on the balance of probabilities, to decide whether:

(1)	The injury (whatever that injury might be, which I will turn to shortly) had resolved by 6 April 1992 but that the worker was not suited to the heaviest of manual work due to some pre-existing underlying condition which persisted;

(2)	The injury had aggravated or exacerbated an underlying degenerative condition, and that the effects of that aggravation or exacerbation persisted beyond 6 April 1992 such that he was unable to perform the heaviest of manual work;

(3)	If there was an aggravation of an underlying degenerative condition, whether that aggravation was permanent (and if so, the extent and consequences of this);

(4)	Any aggravation of any underlying degenerative condition was temporary (and if so, whether the effects of the aggravation had resolved on or before 6 April 1992);

(5)	The injury (despite the absence of pain or symptoms) had not resolved completely by 6 April 1992.

None of these issues are canvassed in any of the medical reports tendered in this case nor were any of these issues the subject of any expert evidence before me.  In my view, I am left in a state of uncertainty as to what happened in the worker’s back on 17 March 1992 and up to 6 April 1992.  If it were necessary for me to come to a conclusion on these matters, on the state of the evidence as it stands, then I would favour the first of these possibilities, but I could not find that any were a probability”. (emphasis mine)

	The grounds of appeal
	Thirteen grounds of appeal were ultimately relied on.  Mr Barr of counsel for the worker submitted that his Worship had made errors of law of 3 types, in reaching his decision to dismiss the worker's claim; the first related to the injury sustained, the second to whether the injury sustained had resulted in incapacity, and the third to the refusal to allow a late amendment to the worker's claim to allow him to rely in the alternative on partial incapacity.  
	The first type of error of law related to his Worship’s failing to find on the balance of probabilities that on 17 March 1992 the worker had sustained an "injury", as defined in s3(1) of the Act, to his lower back.  Grounds of appeal nos.4-8 set out 5 specific instances of alleged errors of law in the following findings related to the failure to find that the worker had sustained an injury, viz:
“4.	… [the] finding that the appellant had not adduced in all the circumstances, and notwithstanding application of the Rule in Browne v Dunn [(1893) 6 R.67], any or, any sufficient evidence, for the court to conclude, on the balance of probability, that the appellant had sustained an ‘injury’ for the purposes of the [Act], in the course of his employment with the respondent on 17 March 1992.

5.	… [the] finding that, notwithstanding application of the Rule in Browne v Dunn [supra], and failure of the respondent’s counsel to cross-examine the appellant’s medical expert Mr Baddeley in respect of the basis of Mr Baddeley’s conclusion that the appellant had sustained an injury on 17 March 1992, in all the circumstances the Court could not find an ‘injury’ for the purposes of the Act unless the appellant adduced expert evidence of the exact physiological change which occurred in the appellant’s body to cause the injury, and that a finding of such exact physiological change was an essential pre-condition for any other findings of the Court in support of the appellant’s claim.

6.	… [the] finding as a matter of fact that it was impossible for the Court to find the appellant sustained an ‘injury’ as defined in the Act, notwithstanding the appellant’s uncontradicted medical evidence that the appellant sustained an injury to his lower back on 17 March 1992 which produced “a classic facet joint problem”.

7.	… [the] finding that, notwithstanding the Rule in Browne v Dunn  [supra] and failure of the respondent’s counsel to cross-examine the appellant’s medical expert Mr Baddeley concerning the precise nature of injury sustained by the appellant on 17 March 1992, [the Court] was not able, as a matter of law, to accept Mr Baddeley’s evidence as sufficient to found the appellant’s claim under the Act.

8.	… [the] finding that there was no or no sufficient evidence on behalf of the appellant for the Court to find he had sustained a compensable injury on 17 March 1992.”

	The second type of error of law assumes that the first alleged error - failing to find that the worker had been injured  - is established.  It lay in his Worship’s failing to find on the balance of probabilities that the worker’s ‘injury’ (as it should have been found) had resulted in, or materially contributed to, his incapacity (as found), from 17 March 1992 to the date of trial.  Grounds of appeal nos9-12 are 5 specific instances of alleged errors of law relating to the failure to find this resulting incapacity, viz:  
	“9.	That the learned Magistrate erred in law as to the meaning and combined effect and application of the definition of “injury” in Section 3(1) of the Act, together with the words of Section 64(2), 65(6) and 68 in finding that:

		(a)	if the appellant might have been able to obtain and/or meet the exigencies of a job with Kerry Holden (of which he was unaware at the time of its existence) such employment was, therefore, reasonably available to him throughout the period after 26 June 1992; 

		(b)	without any evidence from the employer of availability post-26 June 1992 of any jobs to the appellant involving performance of the following duties:

				Most sales positions
				Selling cars
				Spare parts salesman
				Motorcycle salesman
				Service station console operator;

			the Appellant might reasonably be expected to work, and has been able to do so, since 26 June 1992 [in] all of these jobs at the time of the hearing, notwithstanding that the appellant was undergoing rehabilitation and was not certified by his rehabilitation counsellor as having completed his rehabilitation.

	10.	The learned Magistrate erred in law in making the following findings of fact adverse to the appellant without any evidence to support the same.

					ADVERSE FINDINGS

		(a)	That any back injury sustained on 17 March 1992 had “resolved” by 2 April 1992, because it was not producing symptoms or pain;

		(b)	That the appellant’s reason for leaving Beaurepaires was not a personality clash with the manager;

		(c)	That the appellant was not in great pain at his work on 17 March 1992, and that he never complained of pain at work on 18 March 1992;

		(d)	That the appellant had to, and failed to, provide his medical expert Mr Baddeley with a full and accurate picture of what he was doing and capable of doing after 17 March.

	10A	In the alternative [to Ground 10], in making the said adverse findings, the learned Magistrate erred in law in failing to extend procedural fairness to the appellant. 

	11.	That the learned Magistrate erred in law in failing to find, notwithstanding the evidence, that the present incapacity of the appellant arose out of or was materially contributed to by, the injury on 17 March 1992.

	12.	The learned Magistrate erred in law in finding against the evidence, that the appellant might reasonably be expected to work as a taxi driver.”

	The third type of error of law - the refusal to allow a late amendment to the worker’s statement of claim - arose in this way.  Mr Barr rightly conceded that the worker in his statement of claim had claimed solely on the basis that he was totally incapacitated; and that he had failed to establish such total incapacity, on the evidence. On the fourth day of the hearing, after all his witnesses had testified, he had applied for leave to amend his statement of claim so as to plead a resulting partial incapacity, in the alternative to total incapacity.  His Worship refused this application, on the basis that it had been made too late. Mr Barr submitted that by erroneously concluding that there is a clear distinction between 'total incapacity' and 'partial incapacity', and by misconstruing ss64 and 65 of the Act, his Worship had fallen into error in refusing to allow the amendment sought, which, he submitted, would have raised for determination the real questions in issue between the parties.
	Three of the grounds of appeal, nos. 1-3, set out errors of law relating to the refusal to allow the amendment, viz:
“1.	The learned Magistrate erred in law in refusing to allow the amendment.

2.	The learned Magistrate erred in law in finding that the employer would have suffered prejudice as a result of the amendment, when there was no evidence to support that finding.

3.	Further or alternatively, if the employer did show that it would have suffered prejudice if the amendment was allowed (which is denied) then the learned Magistrate erred in law in deciding that [that] prejudice could not be adequately compensated for by an award of costs, when there was no evidence to support that finding.”

	I turn to the submissions in support of the grounds of appeal.
(1)	The failure to find that the worker had sustained an injury (see grounds 4-8, pp6-7)

The submissions 

	The concept of "injury" in the Act
	Mr Barr dealt first with "injury" as defined in the Act; as far as material s3(1) provides -
"'Injury' … means a physical or mental injury arising … in the course of [the worker's] employment and includes -
		
	(a)	disease; and

	(b)	the aggravation, acceleration, exacerbation, recurrence or deterioration of a pre-existing injury - - - or disease,

	…"  (emphasis mine)

He observed that s3(1) defines 'injury' in a self-referential way; that is, in part, it defines it by reference to the self-same word, 'injury'.  He submitted that 'injury' in s3(1) bears its ordinary meaning of harm or damage of any kind sustained by the worker’s body.  I note that the Oxford English Dictionary (1991 ed) defines ‘injury’ in terms of ‘hurt or loss sustained’, and ‘harm, detriment, damage’.  I accept this submission.
	I also note that the definition of "injury" in s3(1) embraces both a physical injury simpliciter, and a physical injury in the sense of “disease" as defined.  Here, the worker’s claim was based on a “physical injury”, simpliciter. Both conditions - ‘physical injury’ simpliciter and ‘disease’ - are compensable, as they fall within ‘injury’ as defined.  ‘Disease’ is itself defined in an inclusionary way in s3(1) as follows:
“disease” includes a physical or mental ailment, disorder, defect or morbid condition whether of sudden or gradual development …”  (emphasis mine)
  
Although defining ‘disease’ in this way presents difficulties in distinguishing a ‘disease’ from a ‘physical injury’ simpliciter, it is clear in this case that the worker based his case solely on an ‘injury’ in the sense of a ‘physical injury’ simpliciter.
	His Worship held that the question whether an 'injury' as defined in s3(1) had occurred in this case was "a question of law to be determined by this Court".  This finding was in the context of a submission by the worker that the Court had only to find that a work "injury" had occurred, without going further by identifying the specific injury; his Worship rejected this submission.  The context of his remarks and findings on whether the worker had sustained an ‘injury’ in terms of s3(1) is as follows (judgment, pp5-6):-
"In the course of final submissions I posed to both counsel the question as to what exactly was the  'injury' within the meaning of the Work Health Act that each side said the evidence disclosed.  Mr Tippett [of counsel for the employer] submitted that the evidence was insufficient to enable me to actually decide on the balance of probabilities what the injury was on 17 March 1992.

Mr McCormack [of counsel for the worker] firstly submitted that it was unnecessary to be specific, and all I had to find was that there was an injury at work without specifically finding what that injury was.

In my view the submission by Mr McCormack is erroneous.  It is not for this court to blindly accept the opinions of medical experts that an injury had occurred, but the court must bring its own mind to the question in the light of all the medical and other evidence, in deciding whether an ‘injury’, as defined in the Act, has occurred.  Medical opinion of injury is different to the question of injury under the Act and [sic, which] is a question of law to be determined by this court.

The court must be satisfied that the grounds of the opinion of Mr Baddeley that the worker suffered "an injury" on 17 March 1992, are established.  If the facts on which the opinion is based [are] not stated (R v Turner (1970) 1 QB 834 at 840) or the factual basis not established (Chamberlain v The Queen (No.2) (1983) 153 CLR 521), the opinion is undermined.

No mental injury is alleged in the statement of claim or in evidence or submissions before me and, accordingly, for there to be an injury it must have been a physical injury which I take to mean "a sudden and distinct physiological change" (The Commonwealth v Ockenden (1958) 99 CLR 215; Kavanagh v The Commonwealth (1960) 103 CLR 547).

On the evidence before me I find that I am unable to find on the balance of probabilities that any physiological change occurred in the back of the worker or any particular part of the back of the worker on 17 March 1992.”  (emphasis mine)
 
His Worship then turned aside to consider whether the claim fell to be dealt with under par(b) of the definition of “injury” (aggravation of a pre-existing injury), viz:
“In Beattie v The Commonwealth (35 ALR 369) (where a worker suffered a strain of the nerves in her groin in non-compensable circumstances but continued working until on a particularly busy day she felt increased pain) the Full Court of the Federal Court held that incapacitating pain brought on by activity undertaken in the course of employment may constitute an aggravation of a physical injury notwithstanding that such pain was not brought about by any further pathological change, and that such a question was a question of fact to be determined by the Tribunal.  Accordingly, incapacitating pain brought on by [employment] activity itself may constitute an 'aggravation' or 'exacerbation' but (as can be seen from the definition of 'injury' in the Act) there must [then] be a 'pre-existing injury' (therefore a pre-existing sudden and distinct physiological change) before there can be an 'aggravation' or 'exacerbation' of it.

The worker's case was not pleaded or put on the basis that there was a 'pre-existing injury' prior to 17 March 1992 such that there was any injury which might or could possibly have been aggravated or exacerbated, such as to constitute an 'injury' within the terms of [par(b) of s3(1) of] the Act, on 17 March 1992.  Nor was the worker's case pleaded or put on the basis that, after the worker's return to work on 6 April 1992, in the course of that employment there was the occurring of incapacitating pain which constituted an ‘aggravation’ of any identifiable 'pre-existing injury' within the definition [of ‘injury’ in s3(1)] of the Act.

The worker's case was pleaded and put on the basis simply that there was an injury on 17 March 1992, that the effects of that injury had not finished at the time of the return to work on 6 April 1992; and that the worker continues to be affected by that injury [of 17 March 1992] and incapacitated for work as a result thereof.” (emphasis mine)

Having thus rejected - rightly so, with respect - any suggestion that the worker could rely on par(b) of the definition of ‘injury’, his Worship returned to his conclusion (p12) that he was unable to find that “any physiological change occurred” in the worker’s back on 17 March 1992, and proceeded to explain it, viz:
”In my view the medical evidence does not assist me, nor is it sufficient for me to find that any physiological change occurred in the worker's back or any part of his back on 17 March 1992.” (emphasis mine)

The significance of this passage stems from the fact that apart from this finding that there was a lack of evidence of injury, there was an admission by the employer that an injury had occurred on 17 March 1992.  His Worship dealt with the significance of this admission as follows:
“I note that it is admitted on the pleadings that an injury occurred to the worker on 17 March 1992.  What that injury was is a matter of dispute on the pleadings.  I further note that the [employer] admitted liability under Section 85 of the Act and paid weekly compensation and other benefits under the Act up until the worker returned to work on 6 April 1992.

In my view, as the actual injury [sustained on 17 March 1992] is in issue between the parties it is necessary for me to determine, on the balance of probabilities what actual injury the worker incurred on 17 March 1992.” (emphasis mine)

His Worship then set out his view of what failure to make such a determination would entail, viz:
“If a finding is unable to be made in relation to this aspect on the balance of probabilities then, in my view, it is impossible for this court to determine what incapacity (if any), or what medical treatment (if any), reasonably or necessarily follows from that injury."

	Mr Barr’s first attack centred on the passage last emphasised on p12.  He submitted that it misstated the question which required to be addressed.  That question, to decide whether the worker had sustained an actual physical injury simpliciter on 17 March 1992, was not whether "any physiological change occurred in the worker's back or any part of his back" (p14), but simply whether on that date and in the course of his employment he had suffered harm or damage to his body. I accept that whether he had or had not suffered such bodily harm or damage, was a question of fact.  It can be seen that Mr Barr challenges his Worship’s view (p12) that “physical injury” in s3(1) involves “a distinct physiological change”. Mr Barr submitted that whether the harm or damage found to have been sustained amounted to an "injury" as defined in s3(1), was a question of law; I accept that.
	As to the 2 authorities relied on by his Worship for the proposition that ‘a physical injury’ means ‘a sudden and distinct physiological change’ (p12), Mr Barr submitted that, unlike this case, both were 'disease' cases and both were concerned with whether the injury was “by accident”.  The first point is wrong; the second, right.  
	Kavanagh was not a ‘disease’ case.  In Ockenden (supra) the question was whether a condition which had developed in the worker, as the result of gradual progression of a childhood disease in no way attributable to his employment, was an "injury by accident", as the relevant legislation then required.  The evidence was that while the degenerative process eventually leading to the worker’s aortic valve ceasing to function properly was gradual, the cesser of its proper functioning must have been "sudden".  The worker relied on this evidence to establish that "a distinct and sudden physiological change” had occurred at work, and that this amounted to an “injury by accident."  It was in that context - a ‘disease’ case and a requirement (not present in the Act) that the injury be “by accident" - that the High Court (Dixon CJ., Fullagar and Taylor JJ) said at pp223-4:
"In such cases the traditional view must still prevail that a physiological change, sudden or otherwise, is not an 'injury by accident' arising in the course of the employment, unless it is associated with some incident of the employment.  Indeed to hold otherwise would be to strip the word 'accident' of all meaning by treating as such any distinct physiological change which is nothing more than the sole and inevitable result of the ravages of a disease.  Such changes, even if they can be called "accidents", occur not in the course of the employment, but, it may perhaps be said, in the course of the disease … it is still true that a worker does not suffer personal injury by accident arising in the course of his employment where he suffers, at his place of employment, a sudden and distinct physiological change as the product of the inevitable development of a progressive disease from which he is suffering and where such change can in no way be attributable to or associated with some incident of his employment."  (emphasis mine)

It can be seen that their Honours were concerned to point out that “a distinct physiological change” which was the inevitable result of a worker’s degenerative disease must be in some way also attributable to an incident of his employment, to qualify as compensable personal injury where such injury was required to have occurred ‘by accident’. 
	Bearing in mind its factual context as a ‘disease’ case, Mr Barr submitted that Ockenden was not authority for the proposition that the meaning of "physical … injury" in s3(1) of the Act is limited to "a sudden and distinct physiological change"; it was authority  for the proposition that compensable “physical … injury” means such a ‘change’ where that "change" is properly characterised as “the product of” the worker’s "progressive disease", but nevertheless in some way is also “attributable to” his employment. The present case is not a "disease" case, but I consider that that factor does not appear to affect their Honour’s conception that an “injury by accident” by its nature involves “a sudden and distinct physiological change”.
	As to Kavanagh, Mr Barr observed that the legislation under consideration was the same as in Ockenden,  but the High Court was concerned with a different issue - whether there could be an "injury by accident" where the injury was not attributable to an agency external to the body, but resulted from some force or pressure within the body.  In Kavanagh, the worker had vomited at work, for an unexplained cause; as a result his oesophagus ruptured.  There was no suggestion that he was suffering from a degenerative disease.  Explaining the passage from Ockenden set out at pp16-17, Dixon CJ said at p555:-
"I do not think that this passage can, with legal correctness, be pressed beyond a physiological change which is produced by the development of a progressive disease.  In such a case if the physiological change can be attributed to an incident of the employment or can be associated therewith, that is, as having some causal relation, then it may be possible to regard it as an 'injury by accident' where otherwise it could be treated as "nothing more than the sole and inevitable result of the ravages of a disease"  (1958) 99 C.L.R., at p224.  It would not appear to me to be correct in point of law to apply the passage to such a case as the present where you have what is clearly enough an injury by accident though not occasioned by any external force or agency." (emphasis mine)

Both Fullagar J and Taylor J (the latter dissenting in the result) observed that it was clear from the medical evidence that the rupture of the worker's oesophagus was "a personal injury by accident", the live question in the case being whether it "arose in the course of his employment"; see pp558 and 562.
	Mr Barr submitted as follows.  In the passage emphasized second-last on p12 his Worship had erred in law, by propounding too technical a definition of "injury” for the present case, where what was relied on was a “physical injury" simpliciter,  not a “disease”. A definition in terms of "a sudden and distinct physiological change" was limited to injury in the course of a progressive disease, which was not the case here; see the passage from Kavanagh set out on p18.  What his Worship said in the passage emphasised second-last on p12 was not supported by the 2 authorities he had cited, since Ockenden was concerned with injury "by accident" arising from disease, as was pointed out in Kavanagh, and that was not the situation here.  Nor was it warranted by the ordinary meaning of the words in s3(1) of the Act which required that, to constitute the “physical injury" here relied on, it was necessary only that the body sustain harm or damage. Accordingly, he submitted that the question which his Worship should have addressed was whether the evidence established that the worker had sustained harm or damage to his body on 17 March 1992 in the course of his employment, and not whether any physiological change had occurred in his back.
	I note that Rainbow J dealt with the meaning of “injury” in Day v Concrete Constructions Ltd [1949] W.C.R. 103 at pp108-9:-
""Injury", taken as a word, simply means harm or damage, and "personal injury" means damage to a man, to his physical or mental structure.  Preliminary to injury there are the more remote and immediate causes of injury, then the injury and complementary to it is the result.  These divisions are obvious in a simple case, for example, I trip and I fall, those are causes; my body comes in contact with a hard object, as a result I bruise my flesh or break a bone or strain a ligament; the bruise, the fracture or the strain constitutes an injury.  As a result of the injury there may be pain, temperature, supervening infection with consequent loss of function or of a member of the body, these are results of injury.   The divisions between cause of injury, injury and result thereof are not always so clearly to be discerned in the case of disease, particularly in the case of a progressive disease.  Much of the English case law on a statute which still requires ‘injury by accident’ as a qualification for compensation has been from the earliest times to the present, directed to consideration of whether a particular injury could have been said to be ‘accidental’ according to whether it was the result of one minute unobservable trauma (e.g., the invasion of the unseen germ) or whether the result flowed from the continuous and repetitious process of some ordinary hazard or wear and tear, that it might more properly be said to be the result of a process rather than of an accident.

In Stewart v Wilson & Clyde Coal Company ([1902] 5 F. 120) Lord McLaren said that, "if a workman in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in … this is accidental injury in the sense of the Statute."

… 

In [Peart v Hume Steel Ltd] ([1947] W.C.R. 121) [(1947) 75 CLR 242], as [Latham CJ] states at page 124 [252], some English cases were excluded from compensation because they fell outside the category of ‘accidental injury’ but not necessarily outside the category of ‘injury’.  He continued [at p252]: "There is a distinction, according to the common use of language, between getting hurt and becoming sick.  The former would be described as an ‘injury’ and the latter would generally not be so described.  But it requires little analysis to show that an injury may be either external or internal.  It appears to me to be difficult to draw any satisfactory distinction between the breaking of a limb and the breaking of an artery or of the lining of an artery.  One is as much an injury to the body, that is, something which involves a harmful effect on the body, as the other.  Each is a disturbance of the normal physiological state which may produce physical incapacity …." (emphasis mine)  

	I note that in Favelle Mort v Murray (1976) 8 ALR 649 Barwick CJ said at 655:
“The removal of the word “accident” from the expression “injury by accident” did not … reduce the connotation of the word “injury”.  Rather it increased the occasion on which that connotation could be given effect”.  (emphasis mine)

	I consider that it is clear that in normal usage ‘physical injury’ means ‘physical hurt or harm, or damage’; this connotes disturbance of the physiological state of the body - see Accident Compensation Commission v McIntosh [1991] 2 VR 253 at 256-7, per Murphy J.  Physiological change is simply change to the functioning of the human body; compensable ‘physical injury’ embraces harmful physiological change to which the employment was a contributing factor - see Kellaway v Broken Hill South Ltd (1944) 44 SR (NSW) 210 per Jordan CJ at 212 and Oates v Earl Fitzwilliam’s Collieries Coy [1939] 2 All E.R. 498 at 502.
	'Injury' is commonly defined in workers' compensation legislation as it is in s3(1). I accept Mr Barr’s submission at p19 as to the formulation of the question to be addressed. However, whether ‘injury’ is regarded as meaning “harm or damage” or “physiological change” or “a harmful effect” or “a disturbance of the normal physiological state” does not matter; all of these expressions mean essentially the same thing.  I accept the submission by Mr Tippett of counsel for the respondent that his Worship’s formulation of the question did not affect the outcome.  The harm or damage to the body must of course arise "out of or in the course of" the worker's employment.
	(2)	The injury claimed, and resulting incapacity
	Mr Barr noted that the worker claimed that he had sustained a physical injury at work on 17 March 1992 by way of “an injury to his lower back when lifting [truck] tyres” which had “produced a classic facet joint problem”.  The employer admitted that the worker had suffered a work injury that day, but did not admit the nature of the injury claimed, as particularised.
	The worker spelled out the nature of his injury in his claim (March 1992) for compensation Exhibit P1 - “a sharp pain in my lower back”.  Mr Baddeley’s medical certificate (Exhibit P2, 24 March 1992) referred to the worker’s “back problem”.  The employer’s insurer accepted liability for compensation without qualification (Exhibit P3, 27 March 1992), under s85(1)(a) of the Act.  Against this background Mr Barr made the following submissions.
	(1) In the circumstances the acceptance of liability in Exhibit P3 amounted to an admission by the employer’s insurer of the nature of the injury as alleged by the worker. I do not accept that submission; it was not clearly made to his Worship, and it is clear on the facts that it was not admitted.
 	(2) The worker was not cross-examined on his evidence, and the respondent called no evidence (including Mr Munro, its assistant manager) to contradict his evidence.  Accordingly, it was “surprising” that his Worship had made a finding (p3) as to the worker’s lack of pain other than “may have had some pain” on 18 March, the day after the injury he had recounted. As to this submission, I note that at p4 of his judgment, having recounted the worker’s evidence of his injury on 17 March 1992, his Worship continued:
“That night [17 March 1992] the worker had an ache in the middle of his low back.  

On 18 March 1992 when the worker presented for work he gave notice of the incident [in which he was injured on 17 March] to Mr Munro (the assistant manager of the respondent).

I do not accept the evidence of the worker that he worked on 18 March 1992 in great pain and that he’d hobble around until he could stand up.  I am not satisfied that the worker complained of any pain throughout the course of 18 March 1992 or that his external signs were such that observers might have noticed something wrong with him.  I accept that the worker may have had some pain during the course of 18 March 1992, but that otherwise he was able to perform his normal duties and complete his normal work day.”

Mr Barr submitted that because his Worship gave no reasons for not accepting the worker’s uncontradicted evidence, this in itself amounted to an error of law.  I reject that submission, as being without substance.  I note in passing that his Worship said on a different point: “I found the worker’s evidence unsatisfactory on many aspects” (judgment, p13).
	(3) Even if it were open to his Worship to have rejected the worker’s evidence (above) as to 18 March 1992, it was unfair to reject it without first informing the worker that he intended to do so, and affording him an opportunity to be heard on that issue.  This was based on ground 10A on p8.  For that proposition Mr Barr relied on Marelic v Comcare (1993) 121 ALR 114, a case where the appellant contended that she had been denied procedural fairness. I note that that case was concerned with the quite different evidentiary situation where a tribunal in delivering judgment had relied on its own observations of the applicant, when concluding that she was capable of performing certain duties; before stating that conclusion, it had not informed the parties about what it had observed of the applicant, or afforded them an adequate opportunity of answering or dealing with its observations.  I reject Mr Barr’s submission as being without substance.
	(4) His Worship erred in law in finding that any injury sustained on 17 March 1992 had “resolved” by 2 April 1992.  This finding failed to take into account the fact that the worker had not worked in a ‘heavy capacity, or at all, since the injury on 17 March’; that fact meant that the finding that the injury had “resolved” by 2 April, was not open.  What was open was to find that the worker was not experiencing symptoms of pain on 2 April.
	As to this, I note that the evidence was that on 2 April Mr Baddeley, the worker’s treating doctor, issued his certificate (Exhibit P4) that the worker was able to return to “normal work”.  Mr Baddeley in evidence explained what he meant by that.
In evidence in chief, he said:
“(p201) I advised him at that time [2 April] that, although his back was feeling well, it was still very recent times from the end of his injury, and I … told him that it was not advisable for him to return to very heavy work and that, if he did return to very heavy work, that it was likely to exacerbate his previous back problem; or that, while he was feeling well at that time [2 April], that returning to heavy work was likely to re-establish a degree of back pain. He was very keen to return to work, and I recorded in the notes at that time, and he felt that he would be able to modify his activities around my advice.  I wasn’t absolutely convinced he was going to keep my advice to limit his heavy work, but he felt that he would be able to do his normal work, and I therefore gave him a certificate to return to normal work, with the advice that he avoid very heavy lifting and other heavy modalities of work.

When was the next occasion that you saw Mr Hicks?---He was seen again on 13 August 1992, approximately five months later, and I recorded that.  ‘Five months since last seen.  Having niggling pain persistently’.  …  He was experiencing some back pain with no leg pain.  He was on anti-inflammatory medication at that time, which gave him some relief, and his main complaint of pain was to the left of the lower spine, worse on extension of the spine.  Examination at that time revealed a … forward flexion with fingertips to the lower thirds of the tibiyi(?), which is a way of recording motion.  He demonstrated low back pain on rising from the forwardly flex position, and extension of the spine revealed pain in the lower back to the left side.  There was tenderness to both right and left of L5 S1 facet joints, more maximal on the right side.  It was my feeling at that time that he had a facet joint problem, possibly bilaterally.  I arranged for him at that time to have X-rays and a CT scan …”

Mr Barr submitted that the worker carried out in the course of his normal work some particularly heavy work, and that Mr Baddeley intended to certify him as not necessarily fit to resume all his normal work.
	In cross-examination Mr Baddeley said at pp223-4, 231 and 233-4:
(p223)  “… [on 2 April] I advised him that I really didn't feel that he was fit to get back to doing the heavy-type lifting and tyre changing part of it, … and he sort of assured me at that time that he would be able to get back to doing light stuff that didn’t involve too much of that, and he was very keen to get back to work and he didn’t think that his employer would take him back if I put him back on a restricted return to work without heavy lifting, so I put him back to normal work on his say-so that he could work around heavy work and manage reasonably well.”

(p224)  “Now, this niggling pain that he told you about [on 13 August 1992], was it an on and off thing, or was it worse some days and better others - the usual low back type experience - or was it constant, niggling pain at a particular level.  Could you tell us how, with those range of variables I put and any one you wish to add, what - - -?---I have no memory of him telling me other than what I’ve recorded here, so I really just have to go by my notes, is I’ve written down ‘niggling pain all the time’ was his main complaint.  So it was tender - it would appear to have been a persistent pain rather than a fluctuating or episodic pain.”

(p231)  “And it may well be that he can lift 25 kilograms on a relatively repetitive basis without feeling the degree of pain and discomfort that he expressed to you?---I believe that he has a very specific organic pathology and, as cases like this almost always do, that there is an emotional overlay and that therefore he is probably, if you remove that part and look purely at the organic element of his problem, he would probably be able to do more than he would appear to be able to do, to me, now.  How much more I am not qualified really to say.

Of course, specific organic pathology can be seen in many backs that don’t cause people difficulty at all?
---I believe that he has organic pathology producing true organic symptomatology.

Yes, because  - - -?---And signs.  You can’t put on a loss of lumbar lordosis.

That is because you accept him and his complaints?
---No, there - there are objective findings that he cannot synthesise - you cannot synthesise a loss of normal lumbar lordosis.  I mean, there is very little else which is - which - there is very little else in his back which is truly objective to examination.

There are many people in the work force doing very heavy work who have a loss of lumbar lordosis?---Not without back pain, in my experience.

Yes?---They may well be doing reasonably heavy work.”

(p233)  “… it is unusual for someone with a loss of normal lumbar lordosis to be in a group that have only trivial back problems.  When you’ve got a loss of lumbar lordosis it usually is - it signifies a significant back problem, sufficient for the anterior abdominal musculature to go into - or the interior paravertical musculature to go into spasm to flatten your normal curve of your spine.

Did you see whether he had a lordosis - have you any notes in relation to a lordosis when you first saw him?---Lordosis is the first thing I look at whenever I examine someone’s back, and it’s only recorded if there’s an abnormality in that; and there has never been an abnormality up until it was recorded on 27 May this year [1993].

…

… it was noted on 27 May that he had a loss of lordosis, so that it was - the normal curvature had gone, and that’s due to muscle spasm, but it’s muscle spasm tending to be of the anterior musculature that is not palpable, you can’t feel the spasm that causes your back to flatten.

MR TIPPETT:  But the loss of lordosis was not significant, as I understand it.  I mean, … it wasn’t something that was going to cause him - to giving him problems?---The loss of lordosis doesn’t cause anything; the loss of lordosis is purely an indication of the underlying condition.”

(p234)  “So he could go out - I mean, what you are saying is a person like - with the lordosis, spinal lordosis, could go out and do heavy work for 20 years and not have a problem?---Quite possibly.

…

Indeed, the only reason why you say this man should not do the heaviest of work, and that is heavy, repetitive work on a day-in day-out basis, is because he fits into that risk category?---Yes.

But there is no reason why you couldn’t say, ‘Well, look, go out, be careful with your back; you can lift, you know, two, three, four, five times at 50 kilograms.  Just go easy and don’t overdo it?
---Indeed, yes, I would agree with that.”

	Mr Barr submitted as follows.  In the light of Mr Baddeley’s testimony, his certificate of 2 April could not be construed as meaning that the worker’s injury was completely ”resolved”.  His Worship’s finding (see p3) that what had happened to the worker’s back had “resolved” by 2 April, did not take account of the fact that the worker had not carried out heavy work since 17 March.  The finding involved an error of law, in that although the worker was not experiencing symptoms of pain on 2 April, it did not follow in light of Mr Baddeley’s oral evidence, that the injury had resolved.  His evidence and report was strong evidence that the worker had suffered an injury, even though it was not specifically described.  There was no evidence to warrant his Worship’s finding, which stemmed from a misconstruction of Mr Baddeley’s certificate.
	His Worship had considered the medical evidence at length.  He noted the lack of evidence as to what a “facet joint” is, and how it was affected.  He considered Mr Baddeley’s report of 10 November 1992 (Exhibit P11) where the reference to “a classic facet joint problem” is made, and Mr Schaeffer’s report (Exhibit P2), concluding (at p8) that he could not find “what actual injury occurred on 17 March 1992”. He found that on the evidence he could not find that any of the abnormalities on the CT scan and the MRI imaging “were caused by the incident of 17 March 1992” (judgment, p8).  His Worship proceeded to make 9 findings (judgment, p9) as to matters which he was unable to find on the evidence which led to his concluding that he was not satisfied “that the employer is liable … to compensate the worker since 6 April 1992”.  I consider that all of those findings were open to be made, and, as his Worship observed, they “were sufficient to dispose of the worker’s claim before this court.”  However, he went on to consider whether the worker was totally incapacitated, as claimed, had he sustained an injury on 17 March 1992 “namely a classic facet joint problem”.  On this basis he said (judgment p10):
“The worker returned to working with the respondent on 6 April 1992.  … and for about 2 weeks the worker did work only involving car tyres and general sweeping and cleaning duties around the premises.  The worker in his evidence did not make any specific complaints of pain or problems during this period and made no specific complaints of problems doing any of this work.  Mr Carter [the manager] was keeping an eye on the worker after his return to work and noticed no signs that the worker had any problems with this work. There was no suggestion that the worker had any problem during this 2 week period that required him to seek any medical attention or any medication for pain.

I am satisfied on the balance of probabilities that the worker worked without pain or incapacity for work for the period of about 2 weeks after his return to work on 6 April 1992.

After the initial 2 weeks the worker then returned to his full normal duties with the respondent involving working on truck tyres and similar large tyres.

I am satisfied on the evidence on the balance of probabilities that the worker did suffer some pain in his lower back once he returned to full duties and that this pain restricted, to some extent, his ability to do work on larger tyres.  I accept the evidence of Mr Wittnall that during the period of about 2 weeks when he worked with the worker in June 1992 the worker was showing some signs of discomfort and pain in his back.  When the worker saw Mr Baddeley on 27 May 1993 he volunteered that “his pain was good until he was fired from work”.  Further, in his evidence the worker said he would have continued working if he hadn’t been fired on 26 June 1992.”

After considering the matter at length, his Worship concluded that the worker was not totally incapacitated.
	Mr Barr submitted that because of the way the respondent had conducted its case, his Worship was obliged to accept Mr Baddeley’s evidence to the effect that the worker had harmed or damaged his back on 17 March, producing a facet-joint problem.  He appeared to contend that this arose because the respondent had not put this in issue, by cross-examining Mr Baddeley.  I reject that submission as without substance.
	(3)	The refusal to allow an amendment
	Mr Barr submitted that it was necessary for the worker only to plead “incapacity” without indicating whether he relied on partial or total incapacity.  Here, however, the worker in fact pleaded total incapacity.  The pleading was as follows:
“7.	The Worker has been totally incapacitated for work since 26 June 1992.

PARTICULARS

	The Worker has been unfit to perform heavy work since attempting to return to work on 6 April 1992.  He is not fit to perform his initial work as a wheel aligner and tyre fitter.  The Worker is only fit to perform very light sedentary work.  He has no training or qualifications for such work.”

Mr Barr submitted that in this case the claim for total incapacity was clearly based on s65(6) of the Act, a deemed total incapacity, in that although the worker was fit to perform light sedentary work such work was not “reasonably available” to him through his lack of training or qualifications.  I accept that the claim for total incapacity was framed and pursued on this basis.  Mr Barr pointed to the fact that under s65(2) of the Act the approach to the calculation of “loss of earning capacity” is the same, whether the case is one of total or partial incapacity.  He drew from this that an employer was presented with no difficulties in meeting a claim which sought to rely on partial incapacity in the alternative, because the approach was the same.  I do not accept that; the approach in this case, including the cross-examination of the worker and his witnesses and the evidence sought to be relied on by the employer, could and would have been very different.  It is important that the issues for resolution in a claim include a clear specification whether the incapacity relied on is total or partial, or that the claim is in the alternative, even though in each type of case the worker bears the onus.  
	As noted earlier, his Worship had proceeded at the request of counsel to consider whether the worker was totally incapacitated on the basis of an (assumed) facet joint injury on 17 March 1992.  In doing so he determined the labour market in which the appellant had worked (judgment, pp14-15):
“I find that the labour market in which the worker had worked up to the time of the incident on 17 March 1992 included:

(a)	Tyre fitter;

(b)	Wheel aligner;

(c)	Assistant manager of tyre business;

(d)	Salesman of tyre business;

(e)	General labouring work;

(f)	Council work;

(g)	Truck driving.

The worker has the onus of satisfying me on the balance of probabilities that by reason of the injury (which injury I am presuming for present purposes to exist) he was no longer able to work in those jobs.”

He then proceeded to consider the worker’s capacity to work in these markets (judgment, pp15-16):
“Even accepting for the moment that the worker did have an injury, on the evidence I would only find that the worker is presently incapacitated for work involving heavy lifting, repetitive lifting and repetitive bending.  But I would be unable to find that that incapacity was by reason of “the injury”.

I would therefore find, on the balance of probabilities, that the worker is presently incapacitated for performing the work of a tyre fitter involving truck tyres or similar.  The aspects of that work which may be beyond him are lifting the truck tyres, breaking the beading on truck tyres by manual means and repetitive bending.  However, I note that the worker was doing his work up until 26 June 1992 and that if he had not been dismissed he would have continued doing this work.  Again I am unable to find that that incapacity is by reason of “the injury”.

I would also find that the worker would be incapacitated for general labouring work or gardening/council type work which involved heavy aspects.  Again I am unable to find that that is by reason of “the injury’.

I would not be satisfied, on the balance of probabilities, that the worker is unable to work as an assistant manager in tyre fitting, or be involved in sales relating to tyres or doing general labouring work not of a heavy nature.  On the evidence I would find that he is in fact capable of performing work in each of those areas.  I would make that finding even if I was satisfied (which I am not) that any incapacity is by reason of “the injury”.

Although the worker bears the onus on this aspect also, on the evidence I would find that there are a number of jobs in the labour market in which the worker might reasonably be expected to work which the worker has been able to do since 26 June 1992 and continues to be able to do so.  These jobs include:

(a)	Taxi driving and general driving duties;

(b)	Generally most sales positions;

(c)	Selling cars;

(d)	Spare parts salesman;

(e)	Salesman in a motorcycle shop;

(f)	Console operator in a service station;

(g)	Courier driver (so long as no heavy lifting involved);

(h)	Parts interpreter at a car yard.”

It can be seen that although his Worship considered it was not open to him to do so, he investigated the aspect of the worker’s partial incapacity thoroughly.  I should say that I do not consider that s75A of the Act prevents an employer from adducing at trial for the first time evidence of employment it contends is reasonably available to the worker, of which it has not given him prior notice; clearly enough, however, s75A would affect the weight of such evidence in those circumstances.
	Mr Barr suggested that the cross-examination of Mr Baddeley would have been no different than it was in fact, if the amendment (to claim for partial incapacity in the alternative) had been pressed on the third day instead of  then being withdrawn.  However, that cannot be safely asserted; I accept Mr Tippett’s submissions to the contrary, in that regard.  The application to amend, to rely on partial incapacity in the alternative, was ultimately made on the fourth day, after the worker had completed his case and when the respondent was about to call its only witness.  The application was opposed, and fully argued.  Mr Barr submitted that the recalling of a few witnesses for further cross-examination and an award of any costs thrown away, would have met all of the problems raised by the application to amend.  He submitted that his Worship had erred in the exercise of his discretion, by erroneously treating the issues of partial and total incapacity as being “clearly distinct and separate issues which must be separately and distinctly pleaded”, and in misinterpreting ss53 and 65 of the Act.
	I consider that there is no substance in these submissions.  It is clear that the amendment would have caused the employer substantial prejudice.  It cannot be said that the employer conducted its case as it would have done, had one issue been partial incapacity from the start.  Mr Barr submitted that all that was necessary was to plead incapacity; if so, it is necessary that the particular incapacity, total or partial, be adequately particularised so that the employer knows the case which it must meet.  It is clear that the Act draws a distinction between total and partial incapacity. 
	As Mr Tippett of counsel for the respondent submitted, his Worship made no legal error in his ruling, the issues between the parties had been clearly defined at numerous preliminary conferences held pursuant to s107 of the Act, the question of amendment had not arisen on the sudden as far as the worker was concerned, the employer had expressly relied on the worker’s conduct of the proceedings to its detriment if the amendment were allowed, and the worker had proceeded to press his claim on the basis of total incapacity simpliciter with full knowledge; in the result, his Worship’s exercising his discretion by refusing to allow the amendment was not plainly unreasonable or unjust.  His Worship gave full consideration to the matters placed before him on the point; see his reasons at pp25-8 of the transcript of 25 November 1993.  I note incidentally that it appears from s104 of the Act that it is still open to the worker to bring a further application based on partial incapacity.
	Conclusions
	As I have indicated in the course of these reasons, I consider that none of the grounds of appeal have been established.  The appeal is dismissed, and his Worship’s decision of 3 December 1993 dismissing the worker’s claim, is affirmed.
__________________