David Jones (Aust) Pty Ltd v Ursula Arauner

[1982] FCA 247

Re: DAVID JONES (AUSTRALIA) PTY. LIMITED
And: URSULA ARAUNER
No. ACT G33 of 1982
Workmen's Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Woodward, J.
Keely, J.
Gallop, J.

CATCHWORDS

Workmen's Compensation - Appeal to Supreme Court of ACT - from Arbitrator's Award - nature of appeal - principles for appellate court to apply - Complainant's credibility and medical evidence - sufficiency of evidence.

Workmen's Compensation Ordinance, 1951 s.26 Court of Petty Sessions Ordinance, 1930 ss.208, 209, 215

HEARING

CANBERRA

#DATE 9:11:1982

ORDER

1. The appeal be dismissed.

2. The appellant pay the taxed costs of the appeal.

JUDGE1

On 21 October 1974 the respondent worker suffered personal injury by accident arising in the course of her employment by the appellant in its Woden Plaza store, Phillip, in the Australian Capital Territory.

By application made in 1979 and amended on 29 January 1980 she applied for arbitration of her claim for workers' compensation to the Court of Petty Sessions, Canberra, on the basis of total incapacity for work during certain broken periods and on a continuing basis from 7 June 1977. The claim was heard on 29 October 1979, 30 October 1979, 8 February 1980 and 1 May 1980. On 25 June 1980 Mr. W.K. Nicholl, Stipendiary Magistrate, made an award in the respondent's favour for weekly compensation during the broken periods of incapacity and on a continuing basis from 7 June 1977, together with hospital and medical expenses. This award was replaced by a fresh award on 27 January 1981 on which date reasons for the award were given.

The appellant instituted an appeal to the Supreme Court of the Australian Capital Territory on 6 Feburary 1981 and that appeal was dismissed by the Chief Justice on 7 July 1982. The present appeal is from that judgment.

The amended grounds of appeal are:-

(1) His Honour erred in law having reached a conclusion that the evidence as a whole did not enable him to reach a decision; failing to consider the question of who bore the onus in satisfying the court of the respondent's incapacity.

(2) His Honour erred in law in finding that he was not entitled himself to reconsider the evidence without taking into account the finding of the learned magistrate.

(3) The learned magistrate had erred in law in not giving reasons for his decision. His Honour erred in law in not upholding the appeal on that ground.

(4) The learned magistrate had erred in law in the consideration that he gave to the medical evidence as distinct from the lay evidence and particularly the film evidence. His Honour erred in law in not upholding the appeal on that ground.

The appeal to the Supreme Court was pursuant to s.26 of the Workmens' Compensation Ordinance 1951 which is in the following terms :-

"26. (1) Where a committee or the Court gives a decision or makes an order or award with respect to any matter which may be or is required to be settled by arbitration under this Ordinance, any party to the arbitration may appeal from the decision, order or award to the Supreme Court.

(2) The provisions of Division 2 of Part XI of the Court of Petty Sessions Ordinance 1930-1972 apply to and in relation to an appeal under sub-section (1) as they apply to and in relation to an appeal from an order of the kind referred to in paragraph (h) of section 208 of that Ordinance and, in the application of those provisions to and in relation to an appeal from a decision given, or an order or award made, by a Committee, the decision, order or award of the Committee shall be deemed to be a decision, order or award of the Court."

Sections 208 and 209 of the Court of Petty Sessions Ordinance 1930 are provisions contained in Division 2 of Part XI of that Ordinance. The reference to paragraph (h) of s.208 in s.26(2) of the Ordinance is designed to ensure that an appeal under s.26 of the Ordinance to the Supreme Court is heard in the same way as appeals in civil cases from the Court of Petty Sessions to that Court. In particular, s.215(2) of the Court of Petty Sessions Ordinance provides that the Supreme Court shall determine an appeal to which the section applies in accordance with the law as in force on the date on which the hearing of the appeal is concluded and on the evidence before the Court of Petty Sessions, together with any further evidence in respect of which leave is granted pursuant to sub-section (3).

As Mason J. said in Builders' Licensing Board v Sperway (1976) 14 A.L.R. 174 at 176 :-

"An appeal is not a common law proceeding. It is a remedy given by statute (Victorian Stevedoring and General Contracting Co Pty Ltd & Meakes v Dignan (1932) A.L.R. 22; 46 C.L.R. 73 at 108; Commissioner for Railways (N.S.W.) v Cavanough (1935) A.L.R. 304; 53 C.L.R. 220 at 225). Upon an appeal stricto sensu the question considered is whether the judgment complained of was right when given (Ponnamma v Arumogam (1905) A.C. 383 at 388), that is whether the order appealed from was right on the material which the lower court had before it. An appeal stricto sensu is to be distinguished from an appeal by way of rehearing . . . "

There are different meanings which can be attached to the word "rehearing" (Powell v Streatham Manor Nursing Home (1935) A.C. 243 per Viscount Sankey L.C. at 249). The exact nature of an appeal depends upon an examination of the relevant legislative provisions.

It is clear from the Ordinances referred to above that an appeal to the Supreme Court pursuant to S.26 is not an appeal in the strict sense referred to by Mason J., but is an appeal on facts given in evidence in the Court below, supplemented by any further evidence given by leave (there was none in this case) and based on the law applicable at the time of the appeal hearing.

An appeal under S.26 is thus properly described as a rehearing (Ruiz v Canberra Rex Hotel Pty Limited (1974) 5 A.C.T.R. 1) and it is clear that the Supreme Court is entitled to draw its own inferences of fact from the evidence given before the Magistrate (Wolmar v Travelodge Limited (1975) 8 A.C.T.R. 11). The appellant did not contend otherwise on the hearing of this appeal.

In order to succeed in her claim for compensation the respondent had to establish that :-

(1) On 21 October 1974 she suffered personal injury by accident (section 7(1))

(2) arising out of or in the course of her employment by the appellant (section 7(1)), and

(3) during the relevant periods she was totally incapacitated for work (First Schedule, para 1(b))

(4) by the injury (First Schedule, para 1(b)).

In his written reasons for award delivered on 27 January 1981 the Magistrate made findings on each of the above matters in favour of the respondent in the following terms :

"Having very carefully considered the whole of the medical evidence, I am satisfied that the applicant has been for the periods particularised totally incapacitated for work, is presently totally incapacitated for work and is likely to be totally incapacitated for work for an indefinite period hereafter. I am satisfied that it is more probable than not that her total incapacity has been brought about by reason of a combination of the pain which I am satisfied she experiences in her back and the psychological effect upon the applicant of the injury and the subsequent operations and pain which in my view, are causally related to the original injury at work on the 21st October 1974. I reach the conclusion that she is totally incapacitated as a consequence of the injury at work notwithstanding that I accept that she has to some degree exaggerated her symptoms. The applicant's return to work in 1975 and her efforts to remain at work notwithstanding the pain she was experiencing in her back coupled with her effort to train as a typist were among the factors involved in my reaching a finding in favour of the applicant."

In dismissing the appeal from the Magistrate's decision on 7 July 1982 the Chief Justice said :-

"My duty in this appeal is to decide what is the proper inference to be drawn from all the evidence, and in doing that, I must give respect and weight to the conclusion of the learned arbitrator, but once having reached my own conclusion, I must not shrink from giving effect to it. My conclusion can be explained and stated shortly. Had I to make a decision only on the evidence which is put before me, I would find it well-nigh impossible to do so. I have read the evidence, and seen the film, and considered the submissions of counsel; and I cannot say that the evidence as a whole enables me to make, with any confidence, either finding as more probable than the other - that the respondent was not capable of work at all, or that she was capable of some work. In this situation, when I give respect and weight to the conclusion of the learned arbitrator, it is immediately apparent that the appeal must be dismissed and the award affirmed. There will be an order accordingly."

The substantial ground of the present appeal is that the Chief Justice should not have been satisfied on the evidence before the Magistrate that the respondent was totally incapacitated for work after 7 June 1977 by reason of her injury. The appellant did not dispute the respondent's entitlement to compensation on the basis of total incapacity for the broken periods up to 7 June 1977 but claimed that on the evidence the respondent was not entitled to compensation on that basis after that date - apart from further broken periods for hospital treatment and recovery.

In view of the concession by the appellant that the respondent was entitled to compensation on the basis of total incapacity for the broken periods up to 7 June 1977, it is unnecessary to review the evidence in relation to the matters which she had to establish to succeed in her claim for compensation in respect of those periods.

Some fifteen months before she ceased work for the last time in June 1977 the respondent was referred by her general practitioner, Dr Federoff, to Dr Robson, a neuro-surgeon. He performed a myelogram investigation on 19 March 1976 and then performed an operation for excision of an invertebral disc on 15 July 1976. She was away from work for 10 weeks after that operation and then resumed in her capacity as a sales assistant. She said in evidence that she had relief for about 4 weeks and then suffered pain in the back again.

In June 1977 she was working in the menswear department of the appellant's store when she felt "a very, very sharp pain in the lower back, hips and down the right leg into the foot". She was taken by ambulance to the Woden Valley Hospital and was admitted for about 11 days. She went back to hospital in January 1978, when Dr Robson performed a second operation, grafting a bone into the disc space in the respondent's spine at the level L5/S1. She tried to go back to work with the appellant in May 1978 but there was no work available. She has not worked since because, according to her, she has a lot of pain in the back which never stops.

She said that she attended a typewriting class for two months ending in November 1978, but gave up because of pain on bending and now could not go back to being a shop assistant.

Also in evidence before the Magistrate was the opinion expressed in a report by Dr Tennant dated 18 December 1979 that the respondent was unable to work and that Dr Tennant did not expect her to be able to do so in the future because of the combination of her inadequate personality and the actual limitations caused by her physical handicap. The report continued :-

"When I saw her on 13 November 1979, she was extremely anxious about her future and quite convinced of her unemployability. She was depressed reactive to her feelings of insecurity and fears for the future. She is a rather inadequate person with a low threshold for pain and a diminished capacity to deal with stress and conflict."

Dr Tennant also said in evidence that the respondent was suffering from depression due to her physical disability and her failure to maintain herself in a working situation, and that the depression was incapacitating in that she had an inability to concentrate and adequately do her job. Dr Tennant expressed the view that the respondent was experiencing considerable pain due to her physical disability, by reason of which she was unable to concentrate and felt depressed and that the pain was a real pain to the respondent.

Dr Robson said in evidence, having seen films of the respondent going about her daily activities of walking in the street and performing certain household tasks in and about her home, which films were taken on 19, 25 and 26 September 1979, just a few weeks before the hearing, that he was unable to deduce from the films whether she had pain when doing the things portrayed or not. He said that he thought she was better than she was prepared to admit or was able to admit, and that he could not see any objective reason for the pain, but nevertheless pain is a subjective matter. He said that if you accept her subjective complaints of pain she is not curable. He also said that it is idle to pretend that she is not very much emotionally involved as a mental response to the initial unjury and its continued effects.

Thus there was medical evidence to support the evidence of the respondent.

However, on behalf of the appellant, it was submitted before us that there were a number of reasons why it was impossible to give credence to the case for total incapacity after June 1977. It was submitted first that her work record up to June 1977 was not that of a person who could not do any work at all, and secondly that the films do not portray a picture of a person totally incapacitated, nor does the evidence of Dr Tennant.

The Magistrate obviously recognised that there was a credibility issue to be resolved by him, but having considered the evidence he was satisfied on the balance of probabilities that the respondent was totally incapacitated from June 1977 as a result of the injury which occurred on 21 October 1974.

It is true that in expressing that conclusion the Magistrate said that he had "very carefully considered the whole of the medical evidence". However, it is quite clear that he did not confine his attention to the medical evidence because in the next paragraph he expressly stated that he had accepted "that she has to some degree exaggerated her symptoms". He had already referred to the present appellant's tender of "film of the applicant which related to her activities on the 19th, 25th and 26th September 1979". Notwithstanding those matters the Magistrate was satisfied "that her total incapacity has been brought about by reason of a combination of the pain which I am satisfied she experiences in her back and the psychological effect upon the applicant of the injury and the subsequent operations and pain which in my view, are causally related to the original injury at work on the 21st October 1974".

It was submitted on behalf of the appellant that the Supreme Court ought to have reviewed the evidence and made up its own mind on the question of whether the worker had established her entitlement to compensation on the basis of total incapacity.

The principles which should guide the determination of an appeal on fact and law where the appellate court hears the appeal on transcript of evidence and documents and not on oral evidence have been enunciated recently in Uranerz (Aust) Pty Limited v Hale (1980) 30 A.L.R. 193 per Gibbs J. at 197, 199. The present Chief Justice there said that such a court -

" . . . will generally defer to the conclusion which the trial judge has formed upon the question which of the witnesses, whom he has seen and heard, are credible . . . ". (The appellate court was) "not entitled to reverse the finding of the Tribunal which was based on its view of the credibility of the witnesses unless it was seen clearly to be wrong on grounds which did not depend merely on credibility - for example, on the ground that the evidence which was accepted was inconsistent with established facts or was so improbable that no reasonable person could accept it, or that the judgment of the Tribunal below disclosed that its conclusion was affected by some error of law or fact."

Some of the evidence of the respondent was such that it might have been viewed with suspicion; but the evidence which was accepted was not inherently improbable and it was not inconsistent with facts which were indisputable or established by other evidence which the Magistrate accepted. There was medical evidence to support her case.

We have been troubled in this case by the fact that the Magistrate did not formulate his reasons for some nine months after concluding a hearing which was spread over six months. When those reasons were formulated there was little reference to the credibility of the applicant (the respondent in this appeal) and no discussion of the film which was tendered in evidence and which seemed to show more freedom of movement than the applicant would admit. The Magistrate must have had these matters in mind, but he disclosed only his conclusions, not the steps which led him to those conclusions.

In these circumstances we have reviewed critically the Magistrate's findings of fact and the evidence before him. In doing so we have not been assisted by the facts that the film was not shown to Dr. Tennant and the applicant was not asked to comment on it.

Having reviewed the evidence we conclude that there was sufficient material on which the learned Magistrate could properly find as he did, having regard to the advantage he had in assessing the credibility of the worker. It could not be said that the conclusion he reached was against the weight of the evidence (Ruiz v Canberra Rex Hotel Pty Limited 5 A.C.T.R. 1 at 3).

In our view the Supreme Court has not fallen into any error in its approach to the appeal and the appeal to this Court should be dismissed with costs.