Ejaz v Thornoil Pty Limited

[2001] NSWCA 222

CITATION:	Ejaz v Thornoil Pty Limited [2001] NSWCA 222
FILE NUMBER(S):	CA 40057/00
HEARING DATE(S):	4 July 2001
JUDGMENT DATE:	16 July 2001
PARTIES :	Mohammad Ejaz v Thornoil Pty Limited
JUDGMENT OF:	Priestley JA at 1; Beazley JA at 27; Ipp AJA at 28

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	CC 15668/97
LOWER COURT JUDICIAL OFFICER :	His Honour Judge Bishop

COUNSEL:	Appellant - D. Baran Respondent - J.D. Hislop QC / D. Stanton
SOLICITORS:	Appellant - Buttar, Caldwell & Co Respondent - Hickson Wisewoulds
CATCHWORDS:	Workers Compensation - claim dismissed upon factual findings - no point of law raised in appeal
LEGISLATION CITED:	Workers Compensation Act - s40
DECISION:	Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40057/00

CC 15668/97

PRIESTLEY JA

BEAZLEY JA

IPP AJA

Monday, 16 July 2001

EJAZ v THORNOIL PTY LIMITED

The appellant’s claims for compensation under the Workers Compensation Act were dismissed in the Compensation Court consequent upon factual findings adverse to the worker. On appeal, which was permitted only on points of law, it became plain that the appellant’s grounds of appeal were on factual matters only and did not raise any point of law. Held: appeal dismissed with costs.

ORDERS

Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40057/00

CC 15668/97

PRIESTLEY JA

BEAZLEY JA

IPP AJA

Monday, 16 July 2001

EJAZ v THORNOIL PTY LIMITED

1    PRIESTLEY JA: The appellant/worker claimed compensation in the Compensation Court for injuries to his back and both legs at work on 21 August 1995. He claimed that the injury caused total incapacity for work.

2    The worker’s claim was heard by Bishop J on 2 October 1998 and 22 March 1999. The evidence was completed on the latter day. On 14 December 1999 Bishop J heard counsel’s submissions and then delivered judgment. He dismissed the worker’s application.

3    In his reasons, Bishop J summarised the worker’s evidence. The worker said in his evidence in chief that he had injured his back on 30 April 1995 when working for a previous employer. This had caused pain for one or two weeks. The worker further said the back was better when he started to work for the respondent/employer, and that the earlier injury had been in a different part of his back from that injured on 21 August 1995. He had worked from time to time in 1996, 1997 and 1998, but not since 1998.

4    Next Bishop J dealt with matters that were not in issue. He noted that the worker’s account of the episode on 21 August 1995 on which he based his claim, was not contradicted. He recorded that it was beyond doubt on the medical evidence that the worker had had a constitutional condition in his low back which pre-existed anything that occurred to him while he was working with the respondent. The pre-existing condition was an additional lumbar vertebra at L 5/6, together with pars defects associated with it. A little later Bishop J said that he was quite satisfied on the evidence that the worker's injury on 21 August 1995 occurred as the worker deposed and caused an aggravation of his pre-existing constitutional condition. He added that there was no evidence indicating an affirmative rupture of a disc, or any clear-cut evidence of sciatic involvement.

5    From the last mentioned matter (it seems) he was of the view that the evidence led to the conclusion that the worker had sustained a musculo-ligamentous problem superimposed on his pre-existing condition.

6    Having made those findings, Bishop J said that the issue for immediate determination was whether the aggravation of the pre-existing condition caused by the injury of 21 August 1995 had continued. There was evidence before him in the worker’s case from a specialist, Dr Lewington, and a treating doctor, Dr Maniam, that in their opinion the aggravation was still persisting. For the respondent, Dr Haynes and Dr Opie were of the contrary opinion. There was also evidence from Dr T. J. Connelley which Bishop J thought was not clear. This evidence consisted of two reports. Dr Connelley was not called to give oral evidence to clarify his opinion. (In fact, the worker was the only witness who gave oral evidence.)

7    Bishop J then said that while it was clear that the worker had an impairment to his back, the question was causation and on that question the worker's credibility was relevant. On the question of the worker's credibility Bishop J first noted that the evidence showed that he had memory problems going back as early as 1993. He further found that in certain areas of the worker's evidence he had been evasive. One of the matters he referred to in this connection was that the worker had not mentioned to any of the doctors the back injury of April 1995. Bishop J said that during the whole of the worker's testimony he had given an impression of both reticence and depression. Bishop J explained that by the term depression he meant the external impression that a lay person obtains. Bishop J said that overall he had come to the view that the worker could not be relied upon as a totally acceptable witness.

8    Bishop J said that the submission made for the respondent “that the acceptability of the ongoing consequences of the injury in 1995 depends upon the acceptability of the” worker was “a very valid one”.

9    Bishop J had earlier mentioned that the worker was a person with high abilities and qualifications. He now said that there was a “total dilemma” as to why such a person was in the position that he was. He said that the evidence did not enable that question to be answered. He went on:

“ All that can be said on the totality of the evidence is that the court is not satisfied that there remain any ongoing after effects of the injury of August 1995. ”

He added that that had been the position, in his view, since December 1995 when the workers employment with his employer came to an end. (It seems to have been common ground that this was 15 December 1995.)

10    It was on this basis that Bishop J entered an award for the respondent employer.

11    The workers compensation legislation limits appeals to points of law. This court, in an appeal, must ordinarily accept the trial judge’s findings of fact. This causes difficulties for appellants which frequently they (and sometimes their counsel) find difficult to understand. Except in circumstances which do not exist in the present case, this court cannot, on appeal, change the trial judge’s findings of fact. The court decides points of law only.

12    The amended written submissions dated 26 June 2001 filed on behalf of the worker relied upon the five grounds in the amended notice of appeal. In substance these were:

1. that the trial judge made an error in respect of s 40 of the Workers Compensation Act;
2. “ the unique position of a Compensation Court Judge in determining an award of compensation and the medical evidence before his Honour ”;
3. error of law in that the trial judge accepted the worker’s ongoing complaints of pain and restriction in the lower back yet entered an award against him;
4. failure to apply the common test of causation; and
5. that the trial judge took into account an irrelevant consideration in his fact finding.

Ground 1 .

13    This was not the subject of oral submission at the hearing. The worker’s counsel recognised that the ground could only become available, if at all, if the worker otherwise succeeded in the appeal.

14 The written submission was that the trial judge had failed to comply with s 40 of the Workers Compensation Act. However, the requirement to apply this section would only have arisen in the case if the trial judge had made different findings of fact from those which he made. On the basis of the factual conclusions the trial judge came to, the time never came for him to apply s 40.

Ground 2 .

15    This was the ground principally argued on the hearing of the appeal. It was submitted that, on the evidence before the trial judge, he was entitled to find that the injury claimed by the worker was an injury which had arisen out of or in the course of his employment and that it was still affecting him, contrary to the trial judge’s finding, after December 1995. It was then submitted that the trial judge should have undertaken an inquiry based not only on the evidence before him but further upon his own experience from cases of a similar nature as to whether or not it was more probable than not that the worker had an ongoing aggravation after December 1995 and that by declining to undertake that further task his Honour had erred in law. It was submitted that this error of law entitled the worker to a new trial.

16    I do not think this submission can be accepted. I agree that on the materials before him it was open to the trial judge to have taken a view in favour of the worker. He was not however bound to take that view. The materials equally left it open to him not to be satisfied that the worker had established his claim. Further, assuming without examining the broad proposition that it was also open to the trial judge to take his experience of cases of a similar nature as a supplement to the evidence before him and to found an opinion favourable to the worker upon it, in the manner contended for, there is no legal rule or authority that I am aware of that obliges a trial judge to take such a course. I do not think he erred in law in not doing what the submissions for the worker contend he should have done.

17    A further submission under this ground was that the trial judge’s approach to Dr Connelley’s evidence was wrong in law. This was based on one of various possible ways of reading Dr Connelley’s two reports. On the basis that the interpretation of the reports put forward on behalf of the worker was the only available interpretation of them, it was then said that it was not open to the trial judge not to accept that interpretation and act on it. Even if this were right, I very much doubt that, in light of the respondent’s other medical evidence, it would amount to an error in point of law. However, it is unnecessary to decide that point in my opinion, because I think it was well open to the trial judge to treat the two reports as unclear in material respects and place no reliance on them. That is, I do not agree with the major premise of the argument for the worker, that the reports had only one clear meaning. Once that premise is rejected, the argument cannot succeed.

18    Part of the written submission under this ground was that the trial judge’s reference to no application having been made to call Dr Connelley to clarify his opinion amounted to saying that there had been some onus upon the worker to call as a witness an expert from whom documentary evidence had been tendered by the employer. In my opinion what the trial judge said did not indicate that he had any such view. He was, again in my opinion, saying no more than that medical reports which were before him had statements in them which he found difficult to reconcile, leaving him in the position that, in the absence of clarification from the witness, he did not feel he could draw any conclusions from the evidence of that witness, in favour of either party. As I have already indicated, this was a factual conclusion which in my opinion the trial judge was entitled to reach in regard to that particular evidence. No question of onus arose.

19    I therefore do not accept the arguments under Ground 2.

Ground 3 .

20    The written submission in support of this ground seemed to make two points. The first is that in view of the trial judge’s acceptance of work related injury terminating as at December 1995, the trial judge should have made an award for compensation at least for the period which then terminated. No reliance was placed on this in the oral argument. Presumably this was because the worker’s amended particulars of application claimed compensation only from 15 December 1995. The trial judge could not be criticised for not awarding compensation which was not claimed.

21    The second point which appeared to be made under Ground 3 is that the trial judge’s reasoning was not sufficiently detailed, and that this, in the circumstances of the case, constituted an error of law. This also was, correctly, not pursued in the oral argument.

22    Although the trial judge’s reasons were brief, they nevertheless in my opinion made sufficiently clear what was the basis of his decision. That is that there was evidence before him concerning the state of the worker’s back after December 1995 which both supported the worker’s claim and was against it. In deciding whether he should accept the evidence favourable to the worker, the trial judge took into account the impression he had of the worker when giving his evidence. He was not prepared to accept that evidence. This led him to the position where he was not satisfied that the injury suffered by the worker on 21 August 1995 had any effect upon him after December 1995. As I have said earlier, it seems to me that it would have been open to the trial judge to find in the worker’s favour, but equally it was open to him to reach the conclusion which he did. To decide one way or the other was a matter of judgment which the trial judge was bound to make. The reasons he gave for deciding in favour of the employer were straightforward, and in my opinion did not involve any error of law.

Ground 4 .

23    Under this ground, which was only briefly mentioned in the oral submissions, it was submitted that the trial judge had had no real reason to deal with causation. He had decided that the worker had suffered an injury on 21 August 1995. It was submitted the real issue was whether or not an aggravation had continued. I agree with this last proposition, which was what the trial judge himself had also said. I also partly agree with the earlier submission that it may not have been necessary for the trial judge to discuss causation at all. However, I think he only did so in the sense that he was asking whether the uncontested ongoing problem with the worker’s back was wholly or partly caused by the injury of 21 August 1995. What his finding clearly was, was that as from December 1995 the condition of the worker’s back had nothing to do with the injury on 21 August 1995. The musculo-ligamentous strain which he had then suffered had, in the trial judge’s view, run its course by December 1995 and had no continuing effect on the worker after that date. Medical evidence was before him on which he could properly base that view.

24    In my opinion therefore Ground 4 should not be accepted.

Ground 5 .

25    This ground, which was not expounded in oral argument, was in part a repetition of Ground 1. In part also it involved a submission that the trial judge should not have taken the worker’s qualifications into account in forming a view of his credibility. I do not think either aspect of the ground should be accepted, the first aspect for the reason I gave in regard to Ground 1 and the second because I think it was quite open to the trial judge, in trying to assess the worker’s credibility and in doing so trying to understand how the worker came to present the demeanour in court which he did, to take into account the worker’s university degree, his other qualifications and his previous experience.

Conclusion .

26    In my opinion no error in point of law occurred in this case and it should be dismissed with costs.

27    BEAZLEY JA: I agree with Priestley JA.

28    IPP AJA: I agree with Priestley JA.

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