Coca-cola Amatil NSW Pty Limited v DILELLO

[1999] NSWCA 102

CITATION:	COCA-COLA AMATIL NSW PTY. LIMITED v. DILELLO [1999] NSWCA 102 revised - 20/04/99
FILE NUMBER(S):	CA 40086/98
HEARING DATE(S):	14 April 1999
JUDGMENT DATE:	14 April 1999
PARTIES :	COCA-COLA AMATIL NSW PTY. LIMITED (Appellant) LISA DILELLO (Respondent)
JUDGMENT OF:	Powell JA at 1; Beazley JA at 29; Fitzgerald JA at 30

LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S) :	14825/97
LOWER COURT JUDICIAL OFFICER:	Truss CCJ

COUNSEL:	J.D. Hislop QC/G.J. Parker (Appellant) R.I. Goodridge (Respondent
SOLICITORS:	Dunhill Madden Butler (Appellant) Firths - The Compensation Lawyers (Respondent)
CATCHWORDS:	APPEAL AND NEW TRIAL - When appeal lies - From Compensation Court - Error of law - Failure to give reasons for decision - Question of law - What constitutes - Absence of evidence to found finding of fact - No question of principle involved
DECISION:	Appeal dismissed

7

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40086/98

POWELL JA
BEAZLEY JA
FITZGERALD JA

14 April 1999

COCA-COLA AMATIL NSW PTY. LIMITED v DILELLO

JUDGMENT

1 POWELL JA: This is an appeal from a judgment delivered, and award made, by her Honour Judge Truss in the Compensation Court in proceedings which had been brought by the Respondent to recover from the Appellant lump sum compensation pursuant to s 66 of the Act, weekly compensation and s.60 expenses as a result of injuries which she claimed to have sustained when in the employ of the Appellant, which injuries, so she said, caused a permanent disability and affected her capacity to work.
2 The case, shortly, was one based on disabilities said to have arisen as the result of the Respondent's employment with the Appellant as a data processor and, later, as an area sales supervisor, between 1993 and November 1995.
3 In the earlier part of that period the Respondent's employment was devoted entirely to data processing and associated duties, but, in the later period, she was appointed an area sales supervisor.
4 Although the Respondent claimed that, in the earlier part of the period, she felt some difficulties in carrying out her duties, those difficulties did not become sufficiently significant to require her to seek medical attention until about August of 1995.
5 At that time the Respondent was diagnosed as suffering from an inflamed tendon in her right hand, that problem, however, being resolved within a few days. However, shortly thereafter, the Respondent consulted her general medical practitioner complaining of pains in the area of the neck, shoulder and back.
6 Following that complaint, the Respondent undertook physiotherapy, the cost of which, at least in the early stages, was paid for by the Appellant's workers compensation insurer.
7 Shortly after the Respondent was appointed to the position of area sales manager she became aware that she was pregnant. Because of problems with the Respondent's pregnancy, in March 1996 she was admitted to hospital where she remained for the better part of a month pending the delivery of her daughter who was born three months premature.
8 After about six weeks, the Respondent returned to her position with the Appellant where she remained for a period until her child was discharged from hospital, at which time the Respondent entered upon twelve months maternity leave. This was about July of 1996.
9 Meantime, the Respondent had again consulted her general medical practitioner, on this occasion complaining of symptoms of pins and needles in her hand. When she did so, the Respondent was referred to a specialist physician a Dr Kannangra, who recommended that the Respondent refrain from data processing and like activities, at least for a time.
10 A few months later, the Respondent and her husband moved to Western Australia, the move initially seeming to have been for a holiday but, later - because of financial problems consequent upon the Respondent being on maternity leave and the reduction in the family income, which led to their being obliged to sell their house in New South Wales - becoming permanent as they hoped to obtain employment and cheaper accommodation in Western Australia.
11 At some time thereafter, which is anything but clear, the Respondent sought to obtain - seemingly with a company in Western Australia which was related to the Appellant a similar position to that which she had held with the Appellant when living in this State. The Respondent seems to have been led to make that application as her previous supervisor in New South Wales had moved to Western Australia where he held a similar position with the local company which seems to be related to the Appellant. However, nothing came of that application.
12 After the move to Western Australia, the Respondent sought medical advice and consulted both a general practitioner and a number of specialists with a view (inter alia) to ascertaining whether she might raise a claim against the Appellant for workers compensation.
13 By late May 1997, when the Respondent was due to return to her employment in New South Wales, the Appellant's Employee Relations Manager wrote to the Respondent seeking to ascertain when she would return. As a result of the Respondent's indication that she considered herself to be unfit for her position, and because she failed to attend medical examinations which had been arranged, her employment was ultimately terminated by the Appellant.
14 Meantime, these proceedings were commenced by the filing in August 1997 of an Application for Determination in which application, as I have previously indicated, the Respondent sought lump sum compensation pursuant to s 66 and weekly compensation, and with s 60 expenses.
15 As part of the preparation of the Appellant’s case for the purposes of the hearing, a private inquiry agent, in late November 1997, carried out observations over a period of about 1½ hours, and took video film, of the Respondent’s activities in the garden of the house occupied by her in Western Australia - those activities appear to have included lawn mowing, weeding the garden, and watering the garden.
16 As a further part of the preparation of the Appellant’s case, the Respondent was examined on behalf of the Appellant by a Dr. J.D.H. Bell, an orthopaedic surgeon carrying on practice as such in Perth - later the video film to which I have just referred was made available to Dr. Bell for his comments.
17 In his first report dated 7 January 1998 Dr Bell recorded his assessment of the Respondent's condition as being, inter alia:
“Soft tissue injury, cervical spine and upper limb region, musculo tenderness and ligamentous in nature, mostly in the upper trapezius muscle region. No radiculopathy present.”
Dr. Bell continued:
"It does appear that she does have some ongoing neck and upper limb discomfort related to her work after 1993 which she indicates to be related to occupational over-use and not really to any specific injury. As detailed above, I have assessed it essentially as a soft tissue injury problem in the neck and upper limbs.
………

Whilst I understand she has ongoing discomfort in her neck and upper limbs, I believe it is reasonable to assess her as capable of working at this stage as a sales representative.

………

As detailed above, it does appear reasonable to relate that she does have ongoing symptoms related to her work between 1993 and 1996.

Although she may remain with discomfort for some months I would not expect her neck and upper limb problems to leave her with any reasonable degree of impairment."
18 In a second report, dated 19 January 1998, and written after the video film to which I have earlier referred had been given to him for viewing and comment, Dr. Bell wrote (inter alia):
"I do assess the grade of activity shown as at least moderate and some of the activities are really fairly heavy grade.
This video film does make it difficult to support her claim that she has significant ongoing neck and right upper limb problems. She did not favour her right upper limb at all during these activities. During the activities shown in the video film there was no indication of any discomfort or any need to rest after the activity. It is difficult to support her view that she is having a lot of discomfort doing housework activities. As noted in my previous medical report, she does have a child aged 21 months and this usually does involve considerable activity lifting and bathing and carrying and presumably she is doing those activities as well.
The viewing of this video film does not really significantly change my medical report dated 7 January 1998, although it does throw some doubt on the issue as to whether there is any significant underlying neck discomfort problem."
19 The significance of the two reports by Dr Bell lies in the fact that they preceded the trial before Truss CCJ by a period of only two weeks, or thereabouts, that trial taking place in Perth.
20 During the course of that trial, the Respondent was cross-examined at some considerable length by Mr I.S. Judd who then appeared for the Appellant, a great deal of that cross-examination being directed toward what was ultimately to appear when the video film was played for her Honour. With one or two exceptions, the Respondent admitted her ability, at least on her good days, to carry out activities of the type that were revealed by the video film.
21 When she came to deal with the application in the judgment which she had reserved and delivered on her return to New South Wales, her Honour, after recounting the facts, and, in particular, the medical evidence that had been tendered on both sides, none of which had been the subject of cross-examination, said (RAB 16):-
"Having regard to the totality of the evidence I am satisfied that the work which the Appellant performed prior to 30 November 1995 resulted in injuries of a soft tissue nature to her neck and right shoulder. There are no objective signs with the result that both the Court and the doctors who examined her are dependent upon her truthfulness and accuracy when describing her symptoms and restrictions.
I do not accept that the Appellant is as incapacitated as she claims. It is now more than two years since she ceased data entry work yet although she stated that there has been improvement and in fact resolution in relation to the symptoms in her lumbar spine and left arm she maintains that the symptoms in her neck and right shoulder have increased in severity even since she saw Dr Billett in April last year.
Although the applicant obtained support from Dr Scullion she did not make any complaints to her about these injuries until about two and a half months after she first saw her. The applicant's explanation was that she was being treated for post-natal depression.
I have difficulty reconciling the claimed severity of the applicant's symptoms with her evidence that her application for re-employment by the Respondent in Perth was a genuine attempt to secure her position. In my view the film casts further doubts upon her evidence as to the severity of her symptoms. I am very conscious of the fact that the film showed activities recorded over a ninety minute period.
When cross-examined about the film the applicant admitted to all of the activities shown but said they caused her pain. On many occasions during cross-examination she made reference to the fact that she was working through the pain.
Dr Bell is the only doctor who has seen the film and he prepared a second report after viewing it. Having done so, he adhered to his previous opinion but said that the film did throw some doubt on the issue of whether there was a significant underlying neck discomfort.
Having regard to all these matters I am satisfied nevertheless that the applicant does continue to suffer from some residual problems in her neck and right arm as a result of her employment with the Respondent. Since it is now more than two years since she ceased the data entry work her condition can be considered permanent. I do not consider the impairment loss to be of the magnitude assessed by Dr Billett and having regard to the totality of the evidence consider the proper findings to be 1:20 in relation to the neck and 5 per cent of the arm."
22 Her Honour then proceeded to find that the Respondent was partially incapacitated and, having done so, proceeded to determine what was the appropriate amount to allow for weekly compensation. Neither the amount of the s 66 award nor the amount of the weekly compensation is challenged in this appeal.
23 The two challenges that have been made to her Honour's judgment and award are, first, that there was no evidence of any continuing disability on the part of the Respondent; and, second, that her Honour erred in that she did not adequately explain the basis upon which she proceeded to her judgment and award.
24 While it may be that, if I had been the trial judge, I would have found against the Respondent, that fact is irrelevant, because appeals in these matters are once more, as they had earlier been, restricted to questions of law and they do not involve a re-hearing.
25 There is evidence although, in my view, it is not particularly compelling - which was available to her Honour to enable her to find as she did, and I would not think that any further explanation of my view on that matter is called for.
26 So far as the second challenge to her Honour's judgment and award is concerned, it seems to me that the passage which I have extracted from her judgment, and which forms the central part of her Honour's judgment, sufficiently indicates that, although she did not accept all of the evidence which was given by the Respondent, nonetheless she was satisfied by some part, at least, of the evidence, which part drew support from other material that was available to her, and which part enabled her to conclude, as she did, that an award in favour of the Respondent was called for.
27 It seems to have become fashionable, of recent times, to seek, on appeal, to assert that the reasoning of the trial judge is, in some way, inadequate. Each such challenge involves an assessment as to whether or not the trial judge has adequately explained the process of reasoning which led him or her to the relevant conclusion. I think that, in this case, her Honour has done all that was required of her.
28 I would propose that the appeal be dismissed with costs.

29 BEAZLEY JA: I agree.

30 FITZGERALD JA: I agree.

31 POWELL JA: Such is the order of the Court.

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