Broken Hill Proprietary Co Ltd v Holroyd

[1990] FCA 837

833

JuWUMT No. ,,,,,,,h-

I N THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY	)	N o . NG 295 of 1996
GENERAL	D I V I S I O N	)

B e t w e e n :	BROKEN	H I L L	PROPRIETARY	CO
-	LTD

A p p l i c a n t

And:  PETER HOLROYD

R e s p o n d e n t

REASONS FOR JUDGMENT

EINFELD J SYDNEY 17 JUNE 1990

In my opinion no basis has been shown at all for upsetting the decision of the Tribunal. Notwithstanding the earnest submissions of counsel for the applicant who has certainly made the best of a difficult job, I can see no error of law which the Tribunal has committed at all. Although attempted to be dressed up as an er'ror of law, the submissions of the applicant were all as to fact, leaving the only basis for upsetting the decision as that none of the evidence would have justified the findings of fact. Put another way, the applicant's submission was that there was no evidence to support the challenged findings of fact.

disability. The other is that the employment incident which is

As the argument went, there are in truth only two available options for the resolution of this appeal. One is that the worker's illness was an aggravation of a pre-existing condition by the work injury on 3 August 1993 which eventually settled down, so that what resumed was a pre-existing non injury-related

the subject of the matter remained the cause of the worker's

ongoing back problems.

.Cm'..

: ,,!

It was first submitted that the Tribunal simply didnot conside . . . .

these questions, but in my opinion that submiss:ion

The Tribunal outlined the respective argumentstthat werd 'put

'G , ... , B'

before it in this regard and came down on the. g$de th:&tj thfFpf

*L.>, P

worker had not recovered from the disability flowin>?FT%i%*Phis
employment injury. That is a finding of fact! which is made
virtually every day in every compensation tribunal in the country
and there is no way that it can be dressed up as question of law.

As the Court has often been required to point out, this is a busy Tribunal. The concept that because in the particular paragraph where the finding of non-recovery from the effects of employment injury is to be found, there was no comparison between that and the alternqtive argument, when in fact the alterpative argument was discussed on the previous couple of pages of the determination seems to me to be quite facile and ought not to be

accepted.

As a sub-argument to that overall argument, there was raised the question that the Tribunal wrongly addressed the date on which the worker was able to undertake suitable work. Once again, this is purely a question of fact, of a very common kind in this type of litigation. I can see no basis at all for the suggestion that the Tribunal failed to consider this question or considered it in some way totally unsupported by the evidence, I think that

it did address the matter quite clearly. Certainly, on the employer's own evidence, namely from Dr Maguire, a psychiatrist who saw the worker on 29 May 1995, there was an opinion that (AB

240):

At the present time Mr Holroyd is not suffering from an ongoing psychiatric disorder and remains psychologically fit to work or to be retrained in any area for which he is physically capable.

That is a statement that as at 29 May 1995 Mr Holroyd had recovered from any psychological disability. At best it would permit the employer to argue that as at the 29 May 1995 he should be found to be fit for selected duties on shore but of course the Tribunal is not bound to accept that opinion. I t is also entitled to take into account the evidence of the worker himself and its overall approach to the matter which requires a degree of commonsense, not merely a robot-like adherence to a particular medical opinion.

In this particular case, the Tribunal felt that for a further

couple of months after that date namely, at the time of the	second day of the hearing before it on 2 8 July 1995, the worker's
psychological condition had improved to the point where he was ready to be considered for suitable work. It also obviously took into account the fact that he had been trying to get work over the period of time before. Moreover, the summary of the Tribunal's views set out in paragraph 61 of its determination on
pages 2 8 0 and 281 of the appeal papers appears to me to be not
only unexceptionable but quite unchallengeable. There the
Tribunal explained very clearly how it came to its conclusions
such that it is not even appropriate to add tpat although a
reviewing court may have come to a different opihion, it should
give full weight to the opinion of the factfinding tribunal. In
this connection I add only that if I had been trying the matter
based upon my reading the appeal papers and the evidence, and the

l

Tribunal's summary of it, I would have found nothing different to the Tribunal's paragraph 61.

The second submission was that the Tribunal inadequately addressed the issues raised by a film shown to the Tribunal, which I have not seen, depicting the worker doing some sorts of activity which the employer submitted to the Tribunal was inconsistent with his claims of continuing unfitness for any or any appreciable duties at the time when the fiim was shot. I have carefully considered what the Tribunal said about the film, and in the circumstances can find nothing exceptionable about its treatment of the subject or about the handling of the submissions which were made to it in that connection.

Nor, anyway, could I establish any remote question of law arising

from the matter. As anybody who has ever seen films of this kind could attest, watching a film is also quite subjective. Tribunals of fact consider the evidence on film in the light of all the other evidence, including the medical' evidence, the evidence of the worker and his/her response to cross-examination based on the film, and various other impressionistic matters which invariably put the film in a context which the tribunal of fact has to construct.

A tribunal of law considering the matter later will very rarely, I should have thought, be willing to substitute another view or another impression, particularly when the reviewing body has not seen the film. It will even the more rarely find that the tribunal of fact which did see the film committed an error of law in reaching the findings made on the subject. In my view you would need some extraordinary misapplication of the film to substitute some other finding or find that an error of law had been committed in this respect.

I have thus concluded that the Tribunal considered this matter perfectly adequately and in accordance with law. The appeal must be dismissed with costs.

I certlfy that this and the

precedlng pages are a true copy of the
Reasons for Judgment herein of hls Honour

Justice Einfeld I

l

Dated: 26/9 176