NATIONAL TEXTILES LIMITED v ZIKOS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS AP, MEAGHER and HANDLEY JJA 23 October 1990, 23 October 1990 [1990] NSWCA 133 WORKERS COMPENSATION — no point of law and no point of principle. Appeal dismissed with costs. Samuels AP With one exception, this seems to me to be another brave attempt tomanufacture points of law where none exist in order to mount an appeal to this Court from the Compensation Court. There will be a day not far off when questions of fact, as I understand the amendment to the Act, will be raised in this Court on appeal, the prospect of which no doubt all of us will look forward to with the greatest enthusiasm. In this case there is undoubtedly one point of law and perhaps I might deal with that first of all. Mr Shore, who supported his brief with great ingenuity and persistence, submits that the learned judge erred in admitting a Medical Board certificate which, though it has statutory force for the purposes of s16, was of no relevance to the question of incapacity before the learned judge, Judge Burke. Mr Shore, who appeared in the Compensation Court, objected to the tender. The judge admitted it and refers to it in the course of his reasons. To my mind he refers to it, however, in a way which suggests that he regards it, at least in part, as supporting a view of the evidence which the judge himself was not disposed to accept. Judge Burke says that the totality of the evidence would suggest that any organic problem is limited probably to the lower forearm, wrist and hand area. The medical certificate, however, also speaks of a loss of use of the right leg, which appears to be an area which the learned judge did not regard as affected by the consequences of the injury he found. In my opinion, if one assumes that the document was wrongly admitted because it was not relevant, I cannot see that any substantial wrong or miscarriage was thereby occasioned and I would not intervene for that reason. Turning back to the main points, I hope I will not be thought to treat in any cavalier fashion the arguments put to us by counsel, but the case can really be shortly described and compendiously dealt with. The worker, of Greek origin and unhappy in the country which her husband, I suppose, had adopted on her behalf, has since 1979 suffered from a depressive illness of varying intensity. There was medical evidence which suggested that this was due, as I have implied, to the difficulties she found in settling in new surroundings. There were other problems apart from homesickness, including her apprehension that her children were becoming assimilated into their new environment and were thus becoming alienated from her. I need not dilate further upon the grounds for her emotional problems. She had received treatment for these symptoms. She had, however, continued to work with the present appellant, her employer, until in 1985 she complained that she had suffered pain at work in April or May of that year, had sought medical advice and, with the exception of a short period back at work later than 2 UNREPORTED JUDGMENTS year, had not worked again and sought a continuing award on the footing that she had sustained a work-related injury which had given rise to symptoms which were wholly incapacitating. The evidence of the injury is certainly not lavish. She was engaged in the spinning industry, tending seven machines, changing bobbins and doing tasks of that kind. The matter was complicated to a degree, I suppose, by the fact that she already had a history of depression and what I might call psychosomatic involvement. So Mr Shore submits that the question of whether she sustained a true physical injury in 1985 which led to a psychosomatic consequence, or whether what she had complained of as an injury was really the manifestation of her existing psychosomatic condition or depressive illness, or whether it was an aggravation of existing symptomatology, are equal possibilities, none of which on the state of the evidence could have been preferred to another. That being so, there was no evidence upon which the learned judge could find that she had sustained a work-related injury. If that were so of course that would be the end of the case. I find it difficult to imagine a more classic question of fact for a tribunal to determine. It is of course true to say that if there are hypotheses of equal probability then one cannot be preferred to another. And I add that one has to bear in mind the difference between conjecture or speculation and a true inference. But once there are consequences available which fall into the category of inferences properly so called, it is a matter for the tribunal of fact to see whether it can prefer one to the other. Here, despite criticisms made by Mr Shore, the learned judge over several pages of the reasons analysed the respondent's previous medical history, the earlier consultations with doctors named going back to 1979, the histories obtained by Dr Dent, in particular in 1985, and by other doctors. He deals carefully with the argument advanced by Mr Shore, which I have endeavoured to recapitulate just now, and then concludes that there probably was a physical injury sustained by the worker in or about April 1985 which generated some disability of her right hand and lower forearm. It seems to me there was beyond doubt evidence which could sustain that finding. Whether it was the right finding on the evidence is absolutely not to the point so far as we are concerned. But, in my view, evidence there was. However, it is then submitted that even if there was evidence upon which a finding of injury could be made the medical evidence which then links that with continuing physical disability and economic incapacity is defective because the doctors upon whom the learned judge relied did not obtain a full or correct history from her. Once again, it seems to me that whether or not a medical, or other expert opinion for that matter, is valid or useless for want of a factual underpinning, is a question of fact and not a question of law: Paric v John Holland Constructions Pty Ltd (1985) 59 CLR 844. One can I think also rely upon Watson v Ramsey (1961) 108 CLR 642 to support the same proposition. Of course, there may be cases in which any factual basis is wholly lacking and if that is right then such a circumstance would fall within the category of a no evidence objection: see, for example, Malleys Ltd v Kinkela, Court of Appeal, 15 December 1986, unreported. But, subject to that, the decision whether or not the opinion has weight, and if it has some weight how much, are matters reserved to the tribunal of fact. URJ NATIONAL TEXTILES LIMITED v ZIKOS (Handley JA) 3 I do not consider that in the present case a basis was wholly lacking for the medical opinions to which the learned judge referred. For example, the fact that Dr Dent appears not to have appreciated that he had seen the worker some six years before he saw her for the purposes of this case is not a no evidence point. It leaves unimpaired the opinions he expressed, but it may render them open to criticism because they are not assisted by a complete survey of his involvement with this patient. The learned judge, it seems to me, appreciated that and although he does not refer to cases such as Paric or explicitly pose the problem as Mr Shore has done and as I have endeavoured to do, it does not, in my view, mean that he did not carefully consider the medical opinions. Indeed, I think that he gave them every reasonable examination and used them only to support the worker's case to the extent to which they were reasonably capable. It is then submitted that, notwithstanding what I have said, his Honour's reasons were defective in that he failed adequately to expose the grounds of his conclusions. I think that the short answer to that is that his is, to my mind, a full and properly reasoned view, if I may say so with respect, which covers all of the material which could reasonably be thought relevant. I think that, as I have said, without injustice to counsel's argument, those considerations really dispose of the case. It was no doubt a difficult case from the employer's point of view and one which no doubt led some to take the view that the worker's complaints were highly exaggerated or contrived. It seems, from the learned judge's judgment, that both of these criticisms were named. But the fact that criticisms of that sort fail is not to be regarded as some sort of magic potion which when liberally applied to unpromising material will cause the growth of points of law. It simply means that the employer's indemnity insurers have failed on the facts. In my opinion, for those reasons, I would dismiss the appeal with costs. Meagher JA I agree. Handley JA I also agree. Appeal dismissed with costs. Counsel for Appellant: H Shore Solicitors for Appellant: Hunt and Hunt (Newcastle) Counsel for Respondent: BJ Gross QC with RF Wilkins Solicitors for Respondent: Moroney, Rutter and Mantach (Newcastle)