Gormley v Forrestania Gold NL
[2006] WASCA 55
•4 APRIL 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GORMLEY -v- FORRESTANIA GOLD NL [2006] WASCA 55
CORAM: STEYTLER P
ROBERTS-SMITH JA
PULLIN JA
HEARD: 16 JANUARY 2006
DELIVERED : 4 APRIL 2006
FILE NO/S: FUL 144 of 2004
BETWEEN: SHANE KEITH PATRICK GORMLEY
Appellant
AND
FORRESTANIA GOLD NL
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :YEATS DCJ
Citation :GORMLEY - v - FORRESTANIA GOLD NL [2004] WADC 132
File No :CIV 2552 of 1999
Catchwords:
Appeals - Appeal from trial Judge's findings of fact - Expert evidence - Credibility of witnesses - Turns on own facts
Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA), s93D
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr I L K Marshall
Respondent: Mr D R Clyne
Solicitors:
Appellant: S C Nigam & Co
Respondent: Mullins Handcock
Case(s) referred to in judgment(s):
Abalos v Australian Postal Commission (1990) 171 CLR 167
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Fox v Percy (2003) 214 CLR 118
Gormley v Forrestania Gold NL [2004] WADC 132
Jones v Hyde (1989) 63 ALJR 349
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
SS Hontestroom v SS Sagaporack [1927] AC 37
Case(s) also cited:
Commissioner of Main Roads v Jones (2005) 79 ALJR 1104
Lloyd v Faraone [1989] WAR 154
Skinner v Broadbent [2006] WASCA 2
State Government Insurance Commission (Western Australia) v Oakley (1990) 10 MVR 570
Stojkovski v Fitzgerald [1989] WAR 328
STEYTLER P: In this appeal, the appellant contends that his claim for damages arising out of injuries suffered by him in two accidents, both of which occurred during his employment with the respondent, was wrongly dismissed.
The first accident
The first of the two accidents occurred on 18 June 1997. The appellant was working underground in the Bounty Gold Mine in Kalgoorlie. He was standing with his back to a hanging wall when pieces of rock fell on him. He sustained injuries to his back and shoulder and suffered pain in his neck, shoulder and back and also referred pain in his left leg. The trial Judge found that his injuries included a soft tissue injury to his lower back: Gormley v Forrestania Gold NL [2004] WADC 132 at [53]. She found, at [79] ‑ [80], that the respondent was liable to the appellant in respect of his injuries. She said that, if mesh had been placed over the hanging wall, this would have prevented the accident and that, by failing to take this precaution, the respondent breached a duty of care owed by it to the appellant. She assessed the appellant’s damages for those injuries at a total sum of $40,171.
The second accident
The second accident occurred in the early hours of 31 January 1998. The appellant was driving a dump truck. The terrain over which he drove was rough, causing jolting of his lower back. He stopped the truck at a workshop in order to have a broken fuel nozzle attended to. He got out of the truck and used a two‑way radio to send a message. Having done so, he turned and, as he did so, his back spasmed, causing him to collapse in pain. The trial Judge found (at [61] of her reasons) that the appellant had failed to satisfy her that the injury which he so suffered was an aggravation of the lower back injury suffered by him in the first accident. Instead, she found that, by the time of the second accident, the appellant had fully recovered from the soft tissue injury sustained by him in the first accident and that the second accident caused "a new injury" (at [93] of her reasons). She considered that, in circumstances in which the earlier injury had completely healed, the respondent had been under no obligation to do anything further to protect the appellant's back (at [93] of her reasons) and that there had been no breach of duty by it in that regard.
Dismissal of the appellant's claim
This last conclusion had the consequence that the total award which might be made in favour of the appellant was the sum of $40,171 awarded in respect of the first accident. Section 93D of the Workers' Compensation and Rehabilitation Act 1987 (WA) ("Act") then provided that common law damages could only be awarded if the disability suffered by the worker resulted in his death or in a serious disability (defined to mean one of 30 per cent or more or which resulted in future pecuniary loss at least equal to the then prescribed amount of $122,139). Because the disability suffered by the appellant was one of less than 30 per cent, and because his future pecuniary loss fell well short of the prescribed amount, his claim was dismissed.
The grounds of appeal and notice of contention
After completion of oral submissions at the hearing of the appeal, and with the leave of the Court, the appellant filed an amended notice of appeal and the respondent lodged a notice of contention supporting the judgment of the trial Judge on a ground not mentioned by her. Each of the parties has also lodged written submissions in respect of the issues raised in these documents.
There is some overlap between the grounds raised on behalf of the appellant in the amended notice of appeal. Ground 1 contends that the trial Judge should have found that the second accident aggravated the injury sustained by the appellant in the first accident. By ground 2 the appellant challenges a finding made by the trial Judge to the effect that he had suffered no back pain in the three months prior to the second accident. Ground 3 challenges the trial Judge's finding that, by the time of the second accident, the appellant had fully recovered from the soft tissue injury to his lower back sustained in the first accident. The trial Judge is said to have misunderstood medical evidence given by a general practitioner, Dr David Syed, in that regard. Ground 4 challenges the adequacy of the trial Judge's reasons. She is said to have given no adequate reasons for concluding (at [61]) that she was not satisfied that the second accident aggravated the injury sustained in the first accident or for her conclusion (at [93]) that she was satisfied that the appellant had made a full recovery from the injury sustained in the first accident by 23 October 1997. She is also said to have given no adequate reasons for accepting the opinions of some medical practitioners over those of others as regards the question whether the second accident brought about an aggravation or exacerbation of the lower back injury sustained by the appellant in the first accident.
By its notice of contention, the respondent contends that, because the appellant failed to prove that he suffered a serious disability as defined in s 93D(2) of the Act even if the consequences of both accidents are taken into account, he is not entitled to any award even if the second accident did aggravate the injury sustained by him in the first accident.
I propose to deal with grounds 1, 2 and 3 of the grounds of appeal together and then to deal with ground 4. Before doing so, it is necessary for me to refer to the medical evidence and then to recite some of the material findings made by the trial Judge.
Medical evidence
Nine medical practitioners expressed an opinion on the question whether the injury suffered by the appellant as a result of the second accident was a new injury or an aggravation of that sustained by him in the first accident. I will summarise what was said, in this respect, by each of them, starting with those who answered that question by saying the second accident aggravated the injury sustained by the appellant in the first accident.
Mr Soni Narula
Mr Narula is a neurosurgeon. He saw the appellant on five occasions after the second accident. He provided reports dated 28 July 1999, 11 September 2000, 9 July 2003 and 24 July 2003.
In his first report he wrote:
"Between November 1997 and January 1998 … [the appellant] is said to have improved completely. On direct questioning … [he] said there was always a residual lower back pain, but not of such significance as to require input from a physiotherapist or time off work. During this time he was driving trucks on bumpy roads and remembers experiencing at least one instance where he had bad pain. Considering the work ethos in the mining industry, he did not make much of it."
Mr Narula went on to express the opinion that the appellant had suffered an injury at the L5/S1 level of his spine (in his oral evidence, he described the pain suffered by the appellant as facet joint pain) and said that he believed that the pain which originated at the time of the second accident and continued thereafter was directly related to the original injury caused by the first accident.
In his report dated 9 July 2003 Mr Narula wrote:
"There is no doubt in my opinion that … [the appellant's] injury of 18.06.1997 did not settle completely. The injury of 31.01.1998 was an aggravation of the 18.06.1997 injury. The initial injury did make … [the appellant's] lumbar spine more susceptible to the spasms that he experienced when he twisted on 31.01.1998 after having driven a truck underground for over 5 hours over bumpy and rough ground. Certainly, in the absence of the injury of 18.06.1997 … [the appellant's] injury sustained on 31.01.1998 would not have been as severe or may not have occurred at all. In my view the first injury materially contributed to the second."
Mr Narula maintained this opinion in the course of his oral evidence at the trial. He said that "facet type" injuries of the kind suffered by the appellant as a consequence of the first accident took a long time to heal, particularly in poorly vascularised areas. He said that a person might be asymptomatic while recovery was continuing and the injury segment was still vulnerable. In support of his conclusion that the same injury had recurred, he pointed to the fact that the symptoms "were reproduced in exactly the same distribution".
Dr Ross Goodheart
Dr Goodheart is a consultant neurologist. He examined the appellant on four occasions and produced four reports, respectively dated 27 April 1999, 12 September 2000, 8 November 2002 and 22 July 2003.
In his first report, Dr Goodheart expressed the opinion that the appellant's lower back discomfort and left shoulder discomfort could be directly related to the injury caused by the first accident. He said that the appellant’s history suggested that there was an exacerbation of the lower back symptoms following the second accident.
In his third report, dated 8 November 2002, Dr Goodheart wrote:
"I have read the records of the Occupational Health Unit and note that … [the appellant] was suffering ongoing back symptoms in the period between the two incidents ... It is my opinion that … [the appellant] was pre‑disposed to the symptoms that he developed on the 31st January, 1998 due to the soft tissue symptoms that he had sustained on 18 June, 1997. It is my opinion that the injury sustained on 18th June, 1997 was a material contributing factor to the injury sustained on 31st January, 1998."
In his oral evidence at the trial, Dr Goodheart accepted that the appellant's injury was a soft tissue injury but maintained his belief that the first injury had not resolved by the time of the second injury. He said that this could be so even if there had been no symptoms for six or seven weeks preceding the second injury. When asked how that could be so in the case of a person who had no "disc problems", he said that he did not think that anyone could answer that question and that the nuances of soft tissue injury were not understood in all cases.
Dr Brian Galton‑Fenzi
Dr Galton‑Fenzi is an occupational physician. He examined the appellant on two occasions and provided reports respectively dated 16 September 2000 and 2 August 2003.
In his first report, Dr Galton‑Fenzi wrote that there was "no doubt that … [the appellant] had a new incident (turning to walk back to his truck) which … [would] have caused a recurrence of the localised inflammation involving (most likely) the left L5/S1 facet joint". Importantly, he went on to write:
"In the normal course of events, I define a complete recovery as being painfree [sic] from low back symptoms for three months or more. In … [the appellant's] case, his symptoms appeared to have ceased by early November 1997, with this recurrence occurring to [sic] the end of January 1998. The evidence in the literature continues to indicate that an individual reporting episodes of back pain becomes more vulnerable to further events, and therefore, implies an ongoing link.
I would suggest that prolonged truck driving on uneven surfaces underground and 'the vibrations' in his spine may have been a factor, but there is no evidence in the literatures [sic] to support this contention specifically. I believe it was the event of turning on his heel to return to his truck on 31/1/98 that precipitated the recurred event."
In his second report, Dr Galton‑Fenzi wrote:
"It would appear that this initial injury in June 1997 rendered … [the appellant] more susceptible to any further discogenic events, and this seemingly occurred to a substantial degree in January 1998.
Therefore, the evidence does indicate that the first incident with its resultant injury was materially a contributing factor to this second incident with its aggravation."
In his evidence at the trial, Dr Galton‑Fenzi expressed the opinion that the appellant's injury was a disc injury or tear and that the second injury was an aggravation of the first. He said that, although the appellant may have been asymptomatic for some time, there was a distinction between an absence of symptoms and the absence of an underlying condition.
Dr Stephen Clarke
Dr Clarke is an occupational physician. He examined the appellant on two occasions and produced reports respectively dated 18 August 1997 and 27 August 2003. In his second report Dr Clarke attributed the appellant's ongoing low back pain to a soft tissue injury, possibly related to a midline annular tear in the lumbar sacral disc. He expressed the opinion that the appellant's ongoing incapacity was a result of his original injury.
In his oral evidence, Dr Clarke said that he had taken a history from the appellant in the course of which he was told that, notwithstanding that the appellant had been cleared for normal duties by Dr Syed, he was still having treatment. When asked whether that had "a role" in his assessment that the appellant's present problems related to the first accident, he responded by saying that his "rule of thumb" was that a patient had recovered when the patient had no symptoms, was not being treated and was "at normal work". He was asked what he would say in a case in which a person had had no symptoms and no treatment and had done normal work for three months. He responded by saying, "I'd probably say its over". In the course of cross‑examination, Dr Clarke added that "treatment" did not necessarily involve seeing a doctor or a nurse. He said that an injured worker could self medicate or undergo physical therapy on his own.
Dr Robert Warner
Dr Warner is an occupational physician. He saw the appellant on 30 July 2003 and issued a report dated 31 July 2003. He described the appellant's injury as an "L5/S1 disc degeneration with a midline post annular tear and associated disc annulus bulge". He wrote that the history given to him by the appellant was to the effect that he had at no time been symptom free. He expressed the opinion that the duties given to the appellant were not "specifically designed to his injury". He said, in his report and again in his evidence in chief at the trial, that he agreed with Dr Galton‑Fenzi, Mr Narula and Dr Goodheart that the incident in January 1998 was a recurrence or aggravation of the initial injury and that the initial injury was a material contributing factor to the second injury.
In the course of cross‑examination, Dr Warner said that he had assumed that the appellant had had constant symptoms of low back pain. It was put to him that, if the appellant had been "symptom‑free truck driving up and down this mine, 12‑hour shifts for three months", it was unlikely that the second injury was "simply an aggravation of the initial incident". He agreed with that proposition. He had earlier accepted that if the appellant had successfully completed a work trial, been certified as fully fit and then reported no symptoms over the ensuing three months as a truck driver, it was appropriate for him to continue as a truck driver.
Professor Andrew Harper
Professor Harper is an occupational physician. He examined the appellant on 18 October 2002 and prepared a report on that day. He said that the appellant's pain resulted from a soft tissue injury in the lumbar spine. He wrote:
"I would consider the episode of the 31/01/98 to have been an exacerbation of pain principally due to the injury of the 18/06/97 but resulting from aggravation from truck driving. Back pain had continued from the initial incident but had improved sufficiently for him to be working full time truck driving and doing some serviceman work. I definitely feel that the injury of the 18/06/97 made …. [the appellant] more susceptible to an injury of 'locking up' such as he experienced on the 31/01/98. Consequently I feel that the injury sustained on the 18/6/97 was a material contributing factor to the incident of the 31/01/98."
However, in the course of cross-examination at the trial, Professor Harper acknowledged that, if it had been the case that the appellant had had no symptomatology for the three months preceding the second accident, he would have "put a very large caveat" on the conclusion expressed in his report because his belief that the pain had continued from the initial incident was "one of the fundamental reasons … [he had] made that statement".
Mr H Schaeffer
Mr Schaeffer is a consultant neurosurgeon. He reviewed the appellant on three occasions, producing reports respectively dated 26 March 1999, 10 September 2001 and 25 July 2003. In his first report, he concluded that the appellant had made a total recovery from his injury and suggested that the appellant's general demeanour was suggestive of "a magnification of the consequences of injury". In his second report, he maintained the opinion that the appellant had made a total recovery as he could make no "true objective findings on examination". In his third report, he wrote:
"The injury that … [the appellant] described would be consistent with early symptoms of soft tissue injury, but I would have expected symptoms of this nature to have resolved long before now. Once again I am unable to correlate the circumstances of the accident with his current presentation so many years later."
He went on to say that an MRI scan which was performed in the previous year showed no evidence of true focal disc herniation or nerve root compression, with the consequence that there was no radiological explanation for any symptoms of sciatica. He expressed the opinion that the appellant had made a total recovery from his injuries.
Although Mr Schaeffer's reports were included in a book of medical reports tendered on behalf of the respondent at the trial, he did not give evidence at the trial. I have referred to his reports because they appear to have been considered by Dr Marsden, whose evidence is dealt with below.
Dr Andrew Marsden
Dr Marsden is an occupational physician. He reviewed the appellant on four occasions and provided five reports, respectively dated 14 April 1998, 2 July 1998, 5 October 1999, 24 July 2001 and 20 May 2003.
In the first of those reports, Dr Marsden mentioned that the appellant had told him that he had returned to work in his full duties, undertaking full normal shifts with no problems at all between November 1997 and January 1998.
In his report dated 5 October 1999, Dr Marsden wrote:
"Having considered Mr Schaeffer's report, as well as my own assessment of … [the appellant], I am not convinced there is any connection between the symptoms and signs arising out of the first accident, which occurred on 18 June 1997, and the second incident, which occurred on 31 January 1998. In my opinion the symptoms relating to these events should be considered individual and separate events. I am not convinced that it is possible to consider that the second event on 31 January … [1998] was medically reasonably related to the first accident, with his clear history of returning to work subsequently after the first accident, through a trial of normal duties and eventually settling to full normal duties. He gave a clear history that he returned to work in his full normal duties undertaking full normal shifts with no problems at all between November 1997 and 31 January 1998. On that basis it is medically reasonable to conclude that the original injury circumstances had entirely and wholly recovered."
His oral evidence at the trial was to similar effect.
Dr David Syed
Dr Syed was the appellant's treating doctor at the Carepoint Medical Centre. He reviewed the appellant on a number of occasions after the first accident but prior to the second accident. He issued a medical certificate dated 6 November 1997 in which he recorded that the appellant had recovered, that there had been no further low back pain over the last two weeks, that the appellant was coping with all normal duties and that he was fit to return to full‑time duties. He also reviewed the appellant after the second accident. He last saw him on 6 October 1998.
In a report which he prepared on 3 November 1998, Dr Syed said that his initial diagnosis had been one of various soft tissue injuries only and that, when reviewed in November 1997, the appellant had been completely asymptomatic and normal on examination. He mentioned that the appellant had told him that, other than a brief episode of backache lasting 24 hours some time between November 1997 and January 1998, he had been completely pain free.
Dr Syed's evidence at the trial was consistent with what had been said by him in his report.
Relevant findings by the trial Judge
The trial Judge made a number of findings in the light of the medical and other evidence. The more important of these, for present purposes, are set out below.
The appellant's credibility
The trial Judge formed a poor opinion of the appellant's credibility. The appellant was asked, in the course of his evidence, whether he did any work in Kalgoorlie. He responded by saying, "No work other than just around the home". When asked how he spent his days, he replied, "If my brother's got anything he needs doing I'll go to the bank for him or I'll go to the post office. I go and see my sister and my brother". He said that his brother "was actually talking about trying to help … [the appellant] push on to do some computer work". When cross‑examined, the appellant said that he had "just had a bit of hands‑on work with computers" for a friend of his. He said that his friend did not have a business, but was "very much into computers" and had helped him "with a few more details". He said that this was on an occasional basis. He said that he had been seeking work as a computer technician at Harvey Norman, without success. The trial Judge said (at [30] of her judgment) that the implication from this evidence was that the appellant had never been employed during the time he was in Kalgoorlie and that all he had done was to go to the bank or post office for his brother.
However, his evidence in that respect was contradicted by Mr Mark Braham, the owner of a business in Kalgoorlie known as "Sign Power". His evidence was that the appellant had carried out some 39 hours of computer installation and repair work for his business between 10 October 2002 and 9 August 2003. He produced a bundle of invoices in respect of that work. These showed that a business operated by the appellant's brother, Global Outdoor Services, had provided the computer services under the trade name "Global Computer Services".
After Mr Braham had given evidence, the appellant returned to the witness box. He admitted having done the computer work for Mr Braham's company. He admitted, also, that his own mobile telephone number had appeared on the invoices. However, he said that he had never been paid for that work by his brother. While he admitted that he did all of the computer work on behalf of Global Computer Services, he said that he did not receive any wages in that respect.
The trial Judge said, in this regard (at [33] of her judgment):
"The … [appellant's] admissions concerning his work with Global Computer Services damaged his credibility. His answers in both evidence-in-chief and cross-examination on the first occasion when he gave evidence can now be seen to be untruthful and misleading. Mr Braham's description of the work the … [appellant] did to deliver and install three computers at Mr Braham's business premises included evidence of the … [appellant] carrying the computers into the premises without assistance. Mr Braham said he thought each computer weighed 30 kilograms. The … [appellant] claimed that the heaviest component of each computer weighed only 10 to 15 kilograms but, given the … [appellant's] earlier misleading evidence, it is difficult to accept what he says about the weight of each computer."
The trial Judge mentioned that Mr Braham had said, in his evidence, that he had offered to help the appellant carry the three computers into his premises but that the appellant had not wanted any assistance. Mr Braham said that the appellant had told him that he hoped that he was not seen carrying the computers as otherwise he would not get "a payout".
The trial Judge also said (at [36] of her judgment) that the invoice numbers on the invoices provided by Mr Braham were not consecutive and that the extensive gaps in those numbers gave rise to the compelling inference that the computer work for Mr Braham was not the only computer work that the appellant had done for Global Computer Services during the period in question. She said that the appellant had been "very evasive under cross‑examination" concerning the extent of the computer work. She went on to say (at [36] of her judgment):
"That evasiveness and the … [appellant's] failure to provide full details of the extent of his work for Global Computer Services leads me to draw the inference that his work during this period was considerable. It is apparent from the invoice numbers and I am satisfied that the … [appellant] was involved in virtually full time work in computer sales, installation and services for Global Computer Services during the period he was in Kalgoorlie."
When dealing with a submission advanced on behalf of the appellant that Mr Braham had a motive to lie about him, the trial Judge said that, while the appellant's credibility was "seriously compromised", she found Mr Braham to be "a very believable witness" and that his evidence had been fully corroborated by documents and by the appellant's admissions. She said (at [39] of her judgment) that, for those reasons, she accepted Mr Braham's evidence about what the appellant had said to him as regards his concern that he might not get his "payout".
The trial Judge went on to say (at [42] of her reasons):
"There was one aspect of the … [appellant's] evidence in September 2003 that had puzzled me. Under cross-examination he admitted that several weeks prior to the trial in July 2003 he had been offered a teacher's assistant's job in Bunbury. He said he did not take the job because he lives in Kalgoorlie. He refused the employment because he didn't live in the area. The offer was from Eaton Community College a few kilometres out of Bunbury. It is a high school. Now it seems obvious to me that the reason the … [appellant] declined the Eaton employment was because he was already fully employed with Global Computer Services in Kalgoorlie. He did not need that work."
The appellant's condition after the first accident.
The trial Judge found (at [18] of her judgment) that the appellant's last attendance "for actual symptoms" was on 23 October 1997 and that he did not, thereafter, attend any medical practitioner or obtain medications or visit the respondent's Occupational Health Unit ("Health Unit") during the next three months leading up to the second accident on 31 January 1998 (the appellant's evidence at trial had been that, if he needed medication, he would ordinarily go to the Health Unit in order to see the nurse or a doctor). She also found that, during that three month period, the appellant had been involved in full‑time duties as an underground truck driver working two weeks on, one week off, doing 12 hour shifts. These findings are unchallenged.
In par [52] of her judgment, the trial Judge mentioned the divergence of views among the medical experts as to the cause of the appellant's ongoing pain in his lower back and radiating down his left leg. She referred, in that regard, to what had been said by Dr Galton‑Fenzi, Dr Syed, Dr Goodheart, Professor Harper, Mr Narula, Dr Warner, Dr Marsden and Dr Clarke. She went on to say (at [53]):
"Initially I was impressed with Mr Narula's reasoned diagnosis of facet joint pain being the pain generator but that opinion depended on whether the … [the appellant] was truthful in his account that he needs Endep and Temazepam in order to sleep. The … [appellant's] capacity to carry computers and install them seems to me quite inconsistent with a man suffering such serious back pain that he needs drugs of this nature in order to sleep. That evidence leads me to accept the evidence of Dr Syed, Dr Goodheart and Professor Harper that … [the appellant] suffered a soft tissue injury to his back. I am satisfied a soft tissue injury is the source of his lower back pain symptoms if any."
Whether the second accident aggravated the injury suffered in the first
In the course of considering whether or not the appellant had suffered a lower back injury in the first accident, the trial Judge canvassed the evidence of Dr Syed, Professor Harper, Dr Galton‑Fenzi and Mr Narula. She was critical of Dr Galton‑Fenzi's evidence. She said (at [49] of her judgment) that he "struggled in his cross-examination to take account of the suggestions put to him by defence counsel" and that she had eventually been required to intervene in order to ensure that he answered the question whether a seven week period without symptoms affected his diagnosis. She said that Dr Galton-Fenzi had denied that this affected his diagnosis, but that he had acknowledged that he had wondered if the first accident was the cause of the lower back pain. She said (at [51] of her judgment) that she had a good deal more confidence in Professor Harper's evidence. His qualifications and his capacity to provide well‑reasoned responses to questions gave her considerable confidence in his report and in his evidence. She said that he had not backed away from cross-examination that raised factual issues which differed from what he had been told by the appellant.
Then, when considering whether or not the second accident had involved an aggravation of the injury suffered by the appellant in the first, she went on to consider, in that respect, the evidence of Dr Syed, Dr Galton‑Fenzi, Dr Goodheart, Professor Harper, Mr Narula, Dr Warner, Dr Marsden and Dr Clarke. She mentioned, in the course of doing so (at [57] of her judgment), that the history given to Professor Harper by the appellant was not supported by the evidence at the trial and reiterated that there had been no evidence of any back symptoms from 23 October 1997, when the appellant had commenced a work trial, until the date of the second accident. Having reviewed all of this evidence, she said (at [61] of her judgment):
"It is for the … [appellant] to satisfy me on the balance of probabilities that the injury he suffered in accident 2 was an aggravation of the injury he suffered in accident 1. I have already found that the … [appellant] suffered a soft tissue injury to his lower back. In this case based on the factual history and relying in particular on the opinions of Professor Harper, Dr Warner and Dr Marsden I am not satisfied on the balance of probabilities that the second accident did aggravate the injury in accident 1. The … [respondent] has satisfied me that the … [appellant] recovered from the initial soft tissue injury and worked driving trucks underground for some three months without problems with pain. I consider his capacity to do that to be quite inconsistent with ongoing injury. For these reasons the … [appellant] has failed to satisfy me that the injury he suffered in accident 2 was an aggravation of the injury he suffered in accident 1."
Later in the course of her judgment (at [87] ‑ [88]), when considering the question of the respondent's liability for the second accident, the trial Judge again referred to her acceptance of Dr Marsden's evidence and also to Dr Warner's concession that, after the appellant had undergone a two week trial and then been symptom free for three months, it would have been reasonable to allow him to continue full‑time underground truck driving on a 12 hour shift. She reiterated that the evidence at the trial had not supported the appellant's assertions that he had never been symptom free. She ultimately went on to arrive at the following conclusion (at [93] of her judgment):
"I have already found that the back spasm the … [appellant] suffered in the second accident was not an aggravation of the injury suffered in accident 1. I am satisfied the … [appellant] had fully recovered from the soft tissue injury to his lower back suffered in accident 1. In these circumstances, having recovered and having produced a final medical certificate after completion of [a] two week work trial, I am not satisfied that a reasonable employer in the position of this … [respondent] should have done anything further to protect this … [appellant's] back. It would be different if the … [appellant] had complained of back pain at any time during the three months preceding the accident. The … [appellant's] initial response to accident 2 was that no event or hazard contributed to the accident; he said he just turned around. The … [appellant] failed to complain for 13 months after the accident of any aggravation to his back from the truck seat or the vibrations or the corrugations. Those factors confirm me in my view that accident 2 was a new injury and that the … [respondent] employer did not breach his duty of care to the … [appellant] by employing him as an underground truck driver after he recovered from his injuries in accident 1. To find otherwise would put an unreasonable burden on an employer and would prevent the re-employment of workers who recover from their injuries."
Grounds 1, 2 and 3
That brings me, at last, to grounds 1, 2 and 3.
It is obvious, from what was said by the trial Judge, that she did not accept the appellant's evidence that he had continued to suffer symptoms between November 1997, when Dr Syed had certified that he was fit to return to work, and the second accident on 31 January 1998. As I have said, she found that the appellant lacked credibility and she considered that his assertions of ongoing pain were inconsistent with the objective evidence. It was undoubtedly open to her to reach that conclusion. I have mentioned that the appellant said that, if he needed medication, he would ordinarily see the nurse or a doctor at the Health Unit but that there were no records of any such attendance by him between 6 November 1997 and 31 January 1998. I have also referred to the trial Judge's unchallenged finding that the appellant had been able to work, full‑time, for three months as an underground truck driver. The trial Judge's opinion concerning the appellant's approach to his claim was also supported by her findings concerning the evidence of Mr Braham which reflected, not only upon the appellant's credibility generally, but also upon his ability, later, to carry heavy equipment and upon his attitude towards his claim or "payout".
In reaching her ultimate conclusion the trial Judge took into account all of the medical evidence. She was entitled to decline to rely upon the evidence of those medical practitioners who had relied upon what she found to have been the misleading history that had been provided to them by the appellant and to accept that of the practitioners who considered that the injuries received in the first accident had fully resolved. I should reiterate, in this respect, that she did not accept Mr Narula's diagnosis of facet joint pain and also that each of Dr Clarke, Dr Warner and Professor Harper had relied upon the history provided to them by the appellant. I have said that Dr Clarke acknowledged that an injury of the kind suffered by the appellant in the first accident was probably "over" once he had been free of symptoms and working normally for three months and that Dr Warner (who had been told by the appellant that he had at no time been free of symptoms) expressed a similar opinion. I have also said that Professor Harper said that, if he had known that the appellant had been free of symptoms for the period of three months preceding the second accident, this would have "put a very large caveat" on his conclusion. Finally, it is apparent from what the trial Judge said of Dr Galton‑Fazi's evidence that she had not been impressed by it. The trial Judge had, in this respect, the advantage of seeing and hearing the witnesses (as to which see SS Hontestroom v SS Sagaporack [1927] AC 37 at 47; Jones v Hyde (1989) 63 ALJR 349 at 351; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 and Fox v Percy (2003) 214 CLR 118 at 125 ‑ 126 [23]) and was entitled to make her own assessment of the manner in which the evidence was given and to measure it against the objective facts as she had found them to be.
Counsel for the appellant contended, in support of the first three grounds of appeal, that those doctors who had considered that the appellant had been free of symptoms between 23 October 1997 and 31 January 1998 had been in error in that they had been unaware of the fact, mentioned earlier in these reasons, that, in his report dated 3 November 1998, Dr Syed said that the appellant had told him of a brief episode of backache lasting 24 hours which occurred at some time between November 1997 and January 1998. Counsel for the appellant also suggested that the trial Judge overlooked that fact and that this vitiated her finding that the appellant had completely recovered from the first accident. He said that she should not have relied upon medical evidence, particularly that of Professor Harper and Dr Warner, which assumed an absence of symptoms over the relevant period.
I am not persuaded that there is substance to these contentions. Dr Syed's report was written some nine months after the second accident. His comment concerning the solitary episode of backache was seemingly based upon what had been said to him by the appellant in the course of a consultation on 4 March 1998. (I should add that Mr Narula's report dated 28 July 1999, referring to the appellant's constant residual back pain and to at lease one instance of bad pain, was written some 18 months after the second accident). In his evidence at the trial, the appellant said that he had had an incident of low back pain while hanging mesh at the mine, which led him to see a nurse on 23 October 1997 (Appeal Book 162). It was put to him, firstly, that on 6 November 1997 he had told Dr Syed that he had had no symptoms for two weeks and, secondly, that he had then continued in his truck driving duties until 31 January 1998 without further back symptoms. He agreed with the first of those propositions. As to the second, he said that he could not recall having had any further back symptoms during the period in question. It seems to me that, in these circumstances, it was open to the trial Judge to find, as she did, that the appellant had in fact been free of symptoms during the relevant period and to rely upon the evidence of those doctors who made that assumption. I should add that, as I have earlier mentioned, Dr Marsden said, in his report dated 5 October 1999, that the appellant had given "a clear history that he returned to work in his full normal duties undertaking full normal shifts with no problems at all between November 1997 and 31 January 1998".
Grounds 1 and 2 have consequently not been made out.
Ground 3 also fails. There is no basis for the contention that the trial Judge misapprehended the evidence of Dr Syed. Her references, in the judgment, to his evidence were accurate and she was entitled to infer from his evidence, and from the other evidence to which she referred, that, in the three month period prior to the second accident, the appellant had been able to work without further symptoms and that he had fully recovered from the injury sustained by him in the first accident.
Ground 4
As to ground 4, it is, of course, necessary for a trial judge who has preferred one set of evidence over another to set out her findings as to how she has to come to accept the one over the other: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443. Also, a trial judge is required to provide understandable and logical reasons for making relevant findings of fact: Beale, at 443 ‑ 444; Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at 283.
In my respectful opinion, the judgment of the trial Judge adequately satisfied these requirements. I have already said that it was open to her, for the reasons given by her, to find that the appellant had in truth been free of symptoms during the three month period preceding the second accident. I have also said that that finding obviously played some part in causing her to prefer the evidence of those doctors, who, when given what the trial Judge found to have been an accurate history, considered that the first injury had completely healed and, hence, that the second accident gave rise to an entirely new injury. While the trial Judge made no lengthy
analysis of the medical evidence in that respect, she made it clear that she relied, in particular, on what had been said by Dr Marsden and Dr Syed and also upon what had been said in the course of the oral evidence of Professor Harper and Dr Warner. She plainly preferred that evidence to the evidence of those who had given conflicting evidence for the reasons which she outlined, being those which I have set out when dealing with grounds 1, 2 and 3.
Ground 4 has consequently not been made out.
Notice of contention
Because none of the grounds of appeal has, in my opinion, been made out, it is unnecessary for me to consider the respondent's notice of contention.
Conclusion
I would dismiss the appeal.
ROBERTS-SMITH JA: I have had the benefit of reading in draft the reasons for judgment prepared by Steytler P. I agree with those reasons and have nothing further to add.
PULLIN JA: I have read the draft reasons prepared by Steytler P. I agree with those reasons and having nothing to add.
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