PARTIES:	GEORGE STARR

		v

		NORTHERN TERRITORY OF AUSTRALIA

TITLE OF COURT:	SUPREME COURT OF THE 
		NORTHERN TERRITORY

JURISDICTION:	Appeal from Work Health Court

FILE NO:	20 of 1996 (9403934)

DELIVERED:	23 October 1998

HEARING DATES:	14 August 1998

JUDGMENT OF:	MILDREN J

CATCHWORDS:

Appeal – Work Health – no time limit to bring proceedings once a claim has been made within the six month period – any further claim in respect of same injury can be made without regard to s182(1).

Appeal – Work Health – burden of proof rests upon employer to prove that any second incident is a novus actus interveniens and the sole cause of any subsequent incapacity in situation where worker establishes a work related injury subsisting at the time of a second non-work related incident – no novus actus interveniens found – correct burden of proof applied.  

Appeal – Work Health – questions of causation are questions of fact – appeal by way of questions of law only.

Appeal – Work Health – failure to provide reasons on essential findings of fact – sufficient reasons provided in relation to other findings.

Legislation

Public Service Act s65
Work Health Act s80; s3(1); 182(1);182(2)

Texts

1)	Mills, Workers’ Compensation (NSW) 2nd Edn., P237

Cases

1)	Murray v Baxter (1914) 18 CLR 622, followed.
2)	Collins v Australian Glass Manufacturers Ltd [1965] WCR (NSW) 79 followed.
3)	Alice Springs Town Council and Mpweteyerre Corporation and Others (1997) 115 NTR 25 applied.
4)	Australian Eagle Insurance Company Limited v Federation Insurance Ltd (1976) 15 SASR 282 followed.
5)	Migge v Wormald Bros. Industries Pty Ltd (1972) 2 NSWLR 29: (1973) 47 ALJR 236 referred.
6)	Pyrmont Publishing Co. Pty Ltd v Peters [1972] WCR (NSW) 27 followed.
7)	Morris v George and Others [1977] 2 NSWLR 552, referred.
8)	Harris v South (1998) NT Court of Appeal, unreported, 29 July 1998 referred.
9)	Bushy and Another v Morris and Others [1980] 1 NSWLR 81 referred.
10)	Wardlesworth v Green (1995 – 1996) 66 SASR 421 referred.
11)	Gordan v Metropolitan Water, Sewerage and Drainage Board [1943] WCR (NSW) 80 referred.
12)	Bower v Meggitt (11917) 116 L.T 178 referred.
13)	Watts v Rake (1960) 108 CLR 158 referred.
14)	Hogan v Bentinck West Hartley Collieries (Owners), Ltd [1949] 1 All ER 588 referred.
15)	March v E. and MH Stramere Pty Ltd [1991] 171 CLR 506 referred.
16)	Bennett v Minister of Community Welfare (1992) 176 CLR 408 referred.
17)	Pettit v Dunkley (1971) NSWLR 376, mentioned.
18)	Mombasa Pty Ltd v Nikic (1987) 47 NTR 48, mentioned.
19)	Sun Alliance Insurance v Massoud (1989) VR 8 distinguished.

REPRESENTATION:

Counsel:

	Appellant:	Mr G Algy
	Respondent:	Mr P M Barr

Solicitors:

	Appellant:	Morgan Buckley
	Respondent:	McBride & Stirk

Judgment category classification:	B
Judgment ID Number:	MIL98175
Number of pages:	20

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

No. 20 of 1996 (9403934)

		BETWEEN:

		GEORGE STARR
			Appellant

		AND:

		NORTHERN TERRITORY OF AUSTRALIA
			Respondent

CORAM:	MILDREN J

REASONS FOR JUDGMENT

(Delivered 23 October 1998)

MILDREN J:
Introduction
	This is an appeal from the Work Health Court.  The appellant worker was employed by the respondent as an orderly at the Alice Springs Hospital.  On the 8th November 1990, the appellant injured his lower back in the course of his employment whilst lifting a patient weighing approximately 104 kilograms from the floor to the patient’s bed.  The appellant continued with his normal duties but experienced discomfort in his lower back.  He obtained treatment from a hospital physiotherapist who, on 15 November 1990, recommended light duties for at least the next ten days.  On 22 November 1990, the appellant was certified by a medical practitioner as being unfit for work.  On 28 November 1990 the appellant made a claim for compensation.  Liability for the claim was accepted, and the appellant was paid weekly benefits from 22 November 1990 to 11 April 1991.

	In the meantime, the appellant’s employment with the respondent had been terminated by the respondent as from 27 December 1990 for reasons unconnected with his injury.  The appellant sought review of that decision under the Public Service Act, but the decision to terminate his employment was confirmed on 15 February 1991.  Because of this, the appellant was not able to return to his former employment when payment of his weekly compensation ceased.  The appellant, in his Statement of Claim, claimed still to be partially incapacitated by his injury.  The exact nature of his injury was in dispute.  The appellant claimed to have suffered a lumbar disc strain at the L5/S1 level.  The respondent claimed that he had suffered a right sacro-iliac strain.  The learned Magistrate found that there was no lumbar disc strain, but there is no clear finding as to precisely what injury he suffered.

	After April 1991, the learned Magistrate found that the appellant initially went onto unemployment benefits and other benefits including, apparently, sickness benefits.  In May 1992, during a period of new start benefits, he received training at the Alice Springs Tafe College as a barman and as a short order cook.  Apart from a two week period doing work experience as a barman, the appellant was not employed at any time between April 1991 and November 1992, and the learned Magistrate found that he had not obtained any employment at all in this period.  There is no specific finding as to whether or not the appellant had any physical incapacity for work during this period which may have limited his ability to obtain paid employment.  The learned Magistrate dismissed the appellant’s claim for weekly compensation during this period because first, the appellant had failed to prove “that he had sustained the relevant loss of earning capacity” (required by s65 of the Act), and secondly, he was not satisfied that the appellant was incapable of obtaining employment due to incapacity through injury.  The appellant complains in ground 1 of the notice of appeal that these findings were erroneous in law.

	At some time in 1992 the appellant, so the learned Magistrate found, obtained the chance of employment of an unspecified kind by an Alice Springs resident.  The employment was to be carried out in Cooktown, Queensland.  Prior to his departure, a farewell party was arranged by his friends on the 2nd November 1992.  The party was held outdoors.  Whilst at the farewell, the appellant had placed a can of beer from which he had been drinking, on a log.  He bent down to retrieve the can of beer and felt a pain which he said was similar to that experienced in November 1990 and in the same place.  His right leg gave way and he fell to the ground.  The following morning he consulted his general practitioner who prescribed painkillers.  He then left Alice Springs and went to Cooktown. During the next month he investigated the “unspecified employment opportunity”.  As well, he consulted a medical practitioner and a solicitor.  In December 1992 he travelled to Adelaide to seek further medical treatment.  At some stage before 14 September 1993, he instructed solicitors in Adelaide to initiate or reopen his workers’ compensation claim.  On 14 September 1993 his solicitors made a claim for compensation on his behalf.  This claim was rejected.  The appellant was on sickness benefits from 11 December 1992.  After a number of investigations of his back problems, he was referred by an orthopaedic surgeon, Dr Coats, to the Alfred Rehabilitation Centre, an offshoot of the Queen Elizabeth Hospital.  Thereafter he underwent extensive treatment between 9 September 1993 to 22 October 1993 and again between 4 October 1994 to 28 October 1994.  There is no precise finding as to the level of any incapacity for work during this period.  The learned Magistrate found that the appellant suffered double level intervertebral disc protrusions at the L4/L5, L5/S1 levels which were attributed to the “beer can” incident on 2 November 1992 and “which were caused in a non-work related work incident” and that there was no evidence which satisfied him that the injury of 8 November 1990 materially contributed to his incapacity after 2 November 1992.  His Worship found that the injury in 1992 was a fresh injury unrelated to his injury in 1990.  This finding is challenged in ground 2 of the notice of appeal as an error of law.

	The errors of law complained of in relation to both periods of alleged incapacity are based on the following propositions.  First, it was alleged that the learned Magistrate failed to consider the evidence of the appellant, whose evidence was largely uncontradicted, on the essential factual issues.  It was submitted that the learned Magistrate erred because he either made no findings at all based on the appellant’s evidence, or, to the extent that he must have rejected his evidence, failed to give any adequate reasons for so doing.  This error is complained of in ground 5 of the notice of appeal.

	The learned Magistrate also found that the appellant had failed to give notice of the claim as soon as practicable and had failed to make a claim within six months of the 1992 injury, and had failed to establish that this failure was due to mistake or other reasonable cause.  These findings are challenged in grounds 3 and 4 of the notice of appeal. 

	At the hearing of the appeal, counsel for the appellant sought leave to add a further ground of appeal as follows:

That the learned Special Magistrate erred in his application of the burden of proof regarding causation of the beer can incident.  It is submitted that the burden of proving that the beer can incident was a second and unrelated injury, the affects of the work injury having been spent, rested with the respondent.

Grounds 3 and 4 - The Notice Question and Time of Claim Question
	It is convenient to deal with these grounds first, because it was conceded by counsel for the respondent, Mr Barr, that his Worship erred in rejecting the claim on these grounds.

	The appellant’s case was that the incapacity after the beer can incident was due to the original injury in November 1990.  As the appellant had given notice of that injury and made a claim well within time which had been accepted, there could be no question about whether or not the appellant had complied with s80 and s182(1) of the Work Health Act.

	If the beer can incident in 1992 resulted in a separate injury to the appellant, that injury clearly did not arise out of or in the course of the appellant’s employment with the respondent, and therefore was not an “injury” as defined by s3(1) of the Act.  If that be so, s80 and s182 were irrelevant to the 1992 incident.

	Further, the learned Magistrate said (reasons, p18):

The period which elapsed within which no claim was made spanned 11.04.91 to September 1993.  That is a period of 2 years and 5 months.  S182(1)(a) WHA requires a claim to be made within 6 months.  That is proceedings shall be issued within period commencing in the 6 months after the date of the injury, that commences on 8.11.90 and terminates on 08.95.91.  The failure to make claim, that is issue proceedings within that period has not been satisfactorily explained. (sic)

This clearly is wrong.  The learned Magistrate has confused the need to make a claim for compensation vide s82 of the Act with the commencement of proceedings.  S182(1) places a six month time limit on the making of a claim under s82.  There is no time limit for the bringing of proceedings once a claim has been made within the six month period.

	If the appellant’s incapacity after the beer can incident was caused by the 1990 injury, there was no requirement for the worker to give any further notice, as the relevant injury was the 1990 injury.

	It is true that no further claim for compensation in respect of any period after April 1991 was made until September 1993, and that on the findings of the learned Magistrate the appellant became incapacitated for work again by no later than soon after November 1992, (if not before then).  Having become incapacitated again, there is an argument that, in order to reinstate his weekly payments, the appellant needed to make a second claim under s82.  But even if this be so, s182(1) does not preclude the appellant from taking proceedings.  S182(1) applies only to claims made outside of a period of six months from the date of the injury, i.e. by not later than 8 May 1991.  S182(3) provides that the failure to made a claim within this period is not a bar to the maintenance of proceedings if it is found that the failure was occasioned by mistake, ignorance of a disease, absence from the Territory or other reasonable cause.  The relevant period of enquiry is confined to the period between 8 November 1990 and 8 May 1991:  see Murray v Baxter (1914) 18 CLR 622.  The fact is that the appellant had made a claim and had been paid compensation up to 11 April 1991, i.e during the relevant period.  It was impossible to make a further claim within the relevant period relating to periods of incapacity which arose after the relevant period.  So far as the period between the date of cessation of benefits (11 April 1991) to the end of the relevant period (8 May 1991), if the findings of the learned Magistrate are correct, there was no incapacity resulting in financial loss during this period, and therefore, nothing to claim.  If that finding can be successfully challenged because the appellant was an “odd lot”, the appellant’s evidence was that at that stage the appellant was on unemployment benefits and, acting on medical advice, believed he was fit for work, and was in fact seeking work (Tr pps 18 and 30).  In any event, once a claim has been made within the relevant period, any further claim in respect of the same injury can be made without regard to this time limit:  Collins v Australian Glass Manufacturers Ltd [1965] WCR (NSW) 79.

	His Worship said that the claim failed “principally” because it was not brought within six months, and the failure to do so could not be excused.  Although I consider that this was wrong in law, because his Worship dismissed the claim on other independent grounds, it will be necessary to consider whether his Worship erred in law on any of those other grounds:  Alice Springs Town Council v Mpweteyerre Corporation and Others (1997) 115 NTR 25 at 35.

Ground 6 – Burden of Proof
	There is no doubt that the learned Magistrate was aware that the appellant’s case was that his incapacity after the beer can incident was caused by the 1990 injury.  It was submitted that his Worship approached that question as a matter which the appellant was required to prove, and thereby reversed the onus of proof.

In Australian Eagle Insurance Company Limited v Federation Insurance Ltd (1976) 15 SASR 282 King J said at 287:

It is clear since Harwood v Wyken Colliery Co [1913] 2 KB 158 that the injury at work need not be the sole cause of the incapacity in order to entitle the workman to recover.  Even when some no-compensable supervening cause aggravates its effect, liability is not excluded unless the new cause entirely supersedes the original injury:  Rothwell v Caverswall Stone Co Ltd [1944] 2 All ER 350; Hogan v Bentinck West Hartley Collieries (Owners) Ltd [1949] 1 ALL ER 588.  As Lord Reid said in Hogan’s case (supra, at 605) not only must the new cause come in but the old must go out; there must no longer be any cause or connection between the injury by accident and the present incapacity.

	These principles have been applied by Australian Courts on many occasions:  see for example, Migge v Wormald Bros. Industries Pty Ltd (1972) 2 NSWLR 29 at 41 ff per Mason JA whose dissenting judgment was approved on appeal:  (1973) 47 A.L.J.R. 236 at 237; Pyrmont Publishing Co. Pty Ltd v Peters [1972] WCR (NSW) 27; Morris v George and Others [1977] 2 NSWLR 552; Harris v South (1998) NT Court of Appeal, unreported, 29 July 1998; Bushy and Another v Morris and Others [1980] 1 NSWLR 81; Wardlesworth v Green (1995-1996) 66 SASR 421.

	Indeed in Pyrmont, supra, it was held by the New South Wales Court of Appeal that there is no requirement that any incapacity for work resulting in economic loss continue at the time of the second event.  As Jacobs JA put it:

There must be an underlying incapacity in the sense that there must be a continuing result of the earlier injury, but it need not at the time of the second injury be manifesting itself in the form of continuing economic loss.

	Where a worker establishes incapacity resulting from an injury arising out of or in the course of his employment which is subsisting at the time of a second non-work related incident, there is authority that the burden of proving that any second incident is a novus actus interveniens and the sole cause of any subsequent incapacity rests upon the employer:  Mills, Workers’ Compensation (NSW) 2nd Edn., p 237; Jordan v Metropolitan Water, Sewerage and Drainage Board [1943] WCR (NSW) 80; Bower v Meggitt (1917) 116 L.T. 178.  This would seem to be consistent with the observation of King J in Australian Eagle Insurance Co Ltd, supra, that “not only must the new cause come in but the old must go out; there must no longer be any cause or connection between the injury by accident and the present incapacity,”; and with the approach of the High Court in Watts v Rake (1960) 108 CLR 158 at 160; 164.

	In Australian Eagle Insurance Ltd, supra, at 292, King J said, in relation to the question of causation in a passage quoted with approval by the Court of Appeal in Harris v South and by the SA Court of Appeal in Wardlesworth v Green:

If, at the time of the second accident, the physical consequences of the first accident have stabilized to the degree that they can fairly be regarded as spent and as leaving only a vulnerability to injury from future trauma, the incapacity flowing from the second accident cannot be regarded as the result of the first accident but must be regarded as the result of the second accident only.  Such a case was La Macchia v Cockatoo Docks & Engineering Co. Pty. Ltd.  If, however, the workman’s condition is still unhealed or unstable and the incapacity would not have occurred but from that unhealed or unstable condition, the incapacity must be regarded as resulting from the first accident as well as from the second accident.  Moreover, where the second accident is a mere aggravation or recurrence of the injury sustained in the first accident and is brought about by ordinary and reasonable conduct on the part of the workman, the consequent incapacity must, in my opinion, be regarded as the result of the first accident as well as the result of the second accident.

	However, it is clear that questions of causation both in workers’ compensation cases as in other areas of the law are questions of fact:  see Hogan v Bentinck West Hartley Collieries (Owners), Ltd. [1949] 1 All ER 588 at 529, 595, 598; March v E. & MH Strainere Pty. Limited [1991] 171 CLR 506; Migge v Wormald Bros. Industries Ltd, supra, at 47 per Mason JA; Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 412-13.  Consequently, the remarks of King J quoted in the paragraph above represent conclusions of fact rather than any statement of binding legal principle:  see also the observations of Doyle CJ in Wardlesworth, supra, at 432 where his Honour described the passage as a discussion of the “factual situation which then arose”.  That being so, as appeals to this Court are on questions of law only, before the learned Magistrate’s finding can be disturbed, it is necessary for the appellant to show that his Worship made an error of law in reaching that finding.

	There are a number of difficulties in the way of the appellant’s contention that the learned Magistrate applied the wrong burden of proof.  First, the learned Magistrate made no specific finding that the appellant continued to suffer any underlying physical incapacity up to the time of the beer can incident.  All that was found in respect of the period up to 2 November 1992 was that there was no incapacity resulting in economic loss during that period.  Secondly, the learned Magistrate rejected the evidence of Dr Coats that the incapacity which followed the beer can incident could be attributed to the original injury.  Thirdly, the learned Magistrate found as a fact that the back injuries the appellant sustained were not caused by the lifting of the patient in November 1990, and were not an aggravation of that injury, but were attributable solely to the incident on 2 November 1992.  On those findings, it was not a case of novus actus interveniens and, unless these findings can be attacked as involving errors of law, they are fatal to the success of this appeal, and there is no question that the learned Magistrate erred in relation to the burden of proof.  Accordingly it is necessary to consider the other grounds of appeal.

Grounds 1 and 5 – failure to make findings or give reasons for rejecting the appellant’s evidence.
	As these grounds overlap, it is convenient to deal with them together.  As I understand the thrust of the appellant’s submissions, it amounts to this.  The appellant gave evidence that:

(1)	throughout the whole period up to the beer can incident, he still suffered back pain;

(2)	that the pain precluded him from obtaining work in any of the fields of employment he had previously experienced, (and, therefore, unless he was retrained, he was an “odd lot”); and
(3)	that the retraining he undertook did not enable him to undertake employment in the new fields unless he had a sympathetic employer (so that he remained in the  “odd lot” category).

The learned Magistrate made no finding as to (1), and he was bound to do so.  Had he accepted the evidence of the appellant, the burden was then on the respondent to prove that the beer can incident was the sole cause of his subsequent incapacity.  As the respondent called no evidence, and the only evidence on this topic was from Dr Coats, his Worship would have been bound to find that the appellant’s injury in 1992 was an aggravation or recurrence of the 1990 injury.  As to (2) and (3), the learned Magistrate must have either overlooked or rejected the appellant’s evidence, but he gave no reasons, or no proper reasons for having done so.

	As to these contentions, I am satisfied that the learned Magistrate did give adequate reasons for rejecting the appellant’s evidence to the effect that his back injury, in the period 1991 to 1992 precluded him from obtaining paid employment.  It is apparent, particularly with respect to the reasons at pp11 to 13 and at pp 20 to 21 that his Worship did not accept the appellant’s evidence that his injury resulted in any loss of capacity to earn income during the period.  The reasons his Worship gave may or may not be very compelling, but it is clear what they were.  They amounted to the following.  During the period up to May 1992, when the appellant received training at the Alice Springs Tafe College, the appellant received unemployment benefits or job search allowances.  He made no personal efforts to obtain employment.  There is no evidence that he was retrained as a result of a medical assessment as a result of any alleged back disability.  The inference is that he was retrained because of his long period of unemployment (and perhaps by the appellant’s self-assessment of his incapacity to gain employment).  After retraining, which involved courses in bar-work and food and beverage courses (enabling him to work as a fast food cook), even if he was unable to do bar-work, there is no evidence he sought work as a short-order or take-away cook.  The appellant at no stage sought to claim compensation from his employer.  He did not seek medical treatment except for painkillers and Serepax (which was for an anxiety state not referable to any lumbar injury).  At no stage did he have a paid job.  No attempt was made to call his general practitioner Dr Pevie, or his orthopaedic surgeon, Dr Schulz, or to even tender a report from the latter, and the inference is that the their evidence would not have assisted him.  A certificate from the latter dated 21 March 1991 stated that he would be fit for full duties after a couple of weeks.  This is inconsistent with the appellant’s claim that he suffered ongoing symptoms of pain and loss of mobility and flexibility in the lumbar region, together with an inability to lift weights such as a carton of beer.

	Counsel for the appellant, Mr Algy, submitted that the learned Magistrate gave no reasons for this finding other than that there was “a paucity of evidence”.  Clearly this is not so.  Mr Algy submitted that the learned Magistrate was wrong in his findings as to the appellant’s evidence as to his attempts to find work, and that this evidence was not challenged.  I do not accept that this is so.  The appellant’s evidence as to his attempts to find work was that he went to most of the local clubs looking for “bar work or cocktail work sort of thing”, but because of his back injury, he told his potential employers that he was “pretty limited to what (he could) do behind a bar”:  (Tr p 30).  It is a reasonable inference that the appellant was speaking of the period after he had finished the training courses in May 1992.  Consequently, the learned Magistrate’s findings about his efforts to find work were not contrary to the appellant’s unchallenged evidence, and I reject this submission.

	Mr Algy also submitted that the learned Magistrate appears to have accepted a submission that the appellant would have had employment available to him at the Alice Springs Hospital, had his employment not been annulled, (relying on the certificate of Dr Schultz).  It was submitted that either the employer had, in the circumstances, a duty to re-engage him or that the evidence was irrelevant.  Although his Worship recorded the submission (see pp s12-13 of the judgment), I am unable to find anything in his Worship’s reasons which suggests he wrongly relied upon that evidence or the inferences open to be drawn from Dr Schulz’s certificate.

	Mr Algy referred me to a number of decisions relating to the need to give adequate reasons, including Pettit v Dunkley (1971) NSWLR 376, Mombasa Pty Ltd v Nikic (1987) 47 NTR 48, and Sun Alliance Insurance v Massoud (1989) VR 8.  The latter case was heavily relied on, as an example where an appeal court has held that the reasons given were inadequate.  The principle reasons why the reasons in that case were inadequate was that the trial judge’s reasons were obscure and the trial judge had accepted the plaintiff’s evidence in the face of a large body of evidence to the contrary, without explaining why he had done so:  see esp. at p18.  That is not the case here.  Of course, the appellant’s case did not rest solely on his evidence.  It was supported by the medical specialist, Dr Coats.  But the learned Magistrate rejected his evidence, and gave his reasons for doing so.  In my opinion, the learned Magistrate was not bound to accept Dr Coats’ evidence, and, that being a question of fact for him to determine, that finding cannot be challenged.

	The burden of proof fell upon the appellant to how that he still suffered some incapacity from his back at the time of the beer can incident, (and, in order to obtain an award for compensation for the period prior to November 1992), that the incapacity was productive of financial loss.  It is clear that the learned Magistrate was not satisfied as to the latter for the reasons he expressed and that he found that the cause of his incapacity thereafter was unrelated to the original injury.  In those circumstances, grounds 1 and 5 of the appeal (so far as they relate to this period) must be dismissed.

Grounds 2 and 5 – The incapacity after the beer can incident was unrelated to the original injury
	The evidence relied upon by Mr Algy in support of the appellant’s case was the appellant’s evidence as to the extent of his continuing back problems, the evidence of Dr Coats, and two medical reports (Exts 12 and 15).

	As I have already said, the learned Magistrate was not bound to accept Dr Coats’ evidence, and he rejected it for reasons which he gave at pps 12-14 and 22 of the judgment.  It was his function, as the fact-finder to decide which witnesses he accepted and which he rejected, and if he rejected Dr Coats’ evidence, even for reasons which were not very convincing, that is not in itself an error of law.

	It was submitted however, that the learned Magistrate based his ultimate decision on pure conjecture, and that there was nothing to support the ultimate finding that the incapacity was due to a separate injury.  Mr Algy summised that the Magistrate:

…appears to have undertaken a diagnosis involving a comparison of two radiological reports, from which he purported to draw conclusions adverse to the worker and not supported by evidence from any other witness.  

As I understood Mr Algy, the submission was that it was not open to the Magistrate to draw this conclusion in the absence of expert evidence, of which there was none.

	I do not consider that there was no evidence upon which it was open to the learned Magistrate to find that the incapacity after the beer can incident was a separate injury.  Having rejected the appellant’s evidence as to the degree of incapacity he suffered at that time, and the evidence of Dr Coats which the latter conceded was to a “critical” degree dependent upon the appellant’s history, (Tr p 64) it was open to the learned Magistrate to conclude that the consequences of the first accident had stabilised to the degree that they could be fairly regarded as spent, which he appears to have done, and that the beer can incident was the sole cause of the injury.  Indeed, there was evidence from Dr Coats that a sudden twisting or bending over could cause such injuries as the appellant was found to have (Tr p 62).  Moreover, there was evidence, which the learned Magistrate was entitled to accept that after the initial injury there was no significant radiographic or clinical abnormality recorded.  

	On the other hand, Dr Coats’ report (Ext 10) referred to a “central disc protusion at the L5/S1 level” which the learned Magistrate says (at p 14 of his judgment) was “evidence from Dr Schultz, recounted by Dr Coats” as having being observed after the injury in 1990.  Dr Coats’ report was based on the Queen Elizabeth Hospital’s case notes, and it is therefore more likely that the CT scan referred to by Dr Coats was performed in Adelaide subsequent to the appellant’s beer can lifting incident:  see also Ext 14 which suggests that the radiological report referred to was dated on 22 March 1993.  There is no evidence from Dr Coats that he saw any report from Dr Schultz or indeed anyone else relating to any radiological reports emanating from Alice Springs in 1990 or 1991:  (see Tr p 64).  

	Consequently, the learned Magistrate was incorrect in recording that the report of a disc protusion emanated from Dr Schulz.  This may have been a slip by the learned Magistrate, because if there was evidence of a disc protusion in 1990 or 1991, I would have expected the learned Magistrate to have explained why this did not strongly support the appellant’s case.  Later in his reasons (p 22) his Worship correctly refers to radiological reports referred to by Dr Coats conducted in 1993, and does not further refer to the report of the single disc bulge, which supports my view that the reference to Dr Schultz was a slip.

	His Worship also found that by 1993 there were double level inter-vertebral disc protusions at the L4/L5 and L5/S1 levels.  He considered Dr Coats’ evidence that the lifting incident was more likely to be the cause of these disc protusion’s, and that a bulge (or bulge’s) may not have been detected earlier because of the angle at which the CT scan was placed, and he also noted Dr Coats’ evidence that patients with physical signs sometimes produce normal x-rays.  The difficulty for the appellant was that there had been no evidence of any physical signs according to Dr Pevie’s report (Ext 16), and the appellant failed to lead any evidence from the doctors who had been treating him prior to 1993.  Although the learned Magistrate’s reasons are somewhat rambling and disjointed it is apparent that these were the considerations which led him to concluded that the disc bulges were separate injuries unrelated to the original injury, and I consider that it was open to him to so conclude.

	Mr Algy referred to the reports of two other medical practitioners (Exts 12 and 15) which were admitted into evidence, (neither doctor gave evidence at the hearing).  As to Dr McLoughlin’s report (Ext 15), this does not offer any opinion as to the cause of the appellant’s incapacity, and does not assist the appellant.  As to Dr Mugford’s report (Ext 12), this does not refer to the lifting incident in 1992 at all, and assumes that, rather than expresses an opinion, the cause of his subsequent disability was the original injury.  In those circumstances it is not surprising that the learned Magistrate did not specifically refer to those reports in his reasons.

	Accordingly, this ground of appeal must be dismissed.

Conclusions
	I have some sympathy for the appellant.  The case he presented at trial was a strong one, and one I would have expected to succeed on the facts.  However, there were weaknesses in the evidence which the respondent was able to exploit successfully, and the learned Magistrate’s factual findings favoured the respondent.  As an appeal to this Court rests upon errors of law, I can only allow the appeal if such an error is shown, and in my opinion none has been shown which was determinative of the decision to dismiss the claim.  Accordingly, the appeal is dismissed with costs.