ACEVSKI v VAN KLOOSTER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MAHONEY and CLARKE JJA 4 October 1990, 4 October 1990 [1990] NSWCA 2 Appeal from Compensation Court — Whether appeal involves "a question of law" — Whether reasoning of trial judge to the conclusion that applicant had not satisfied him of necessary facts involved or can involve such inconsistencies or errors as to constitute a question of law — Appeal dismissed as not involving a question of law. Mahoney JA The appellant, Ilija Acevski, claimed that on 25 July 1984, on the first day of his employment with the defendants, he fell and injured his back. He claimed compensation accordingly. On 31 October 1988 his Honour Judge Moroney found against his claim and gave an award for the defendants. The appellant has appealed against his Honour's award. The grounds of appeal as originally filed were perhaps not correctly described as such; certainly they did not appear to satisfy the requirements of Pt15 R8 of the Supreme Court Rules. However, when the appeal was opened Mr Wood, for the appellant, sought leave to amend the notice of appeal by substituting four other grounds as the grounds of appeal. No objection was taken to his so doing and the court gave leave to amend by adding those grounds to the appeal. I shall not pause to say how each ground of appeal was ultimately amended, but the ground which has been relied upon is Ground 4. That ground is in the following terms: "That his Honour erred in law in finding for the respondent in that: (a) There was no basis in the facts on which his Honour could find as he did; (b) His Honour's reasons for the orders that he made demonstrate error in his Honour's reasoning process." It is accepted that in this appeal the appellant can succeed only if he demonstrates that there was an error and that it was an error of law. I am by no means satisfied that there was in fact any error, but, in deference to the argument which has been advanced by Mr Wood, I can refer briefly to the submissions made in support of the proposition that if there was an error, it was an error of law. The submissions turn upon the terms of the learned judge's judgment. His Honour in a judgment given, the court is informed, immediately following the conclusion of the evidence, said: "The applicant has failed to satisfy me that he received the injury, which is alleged to have occurred on 25 July 1984, because of the conflict of the worker's evidence and the employer's evidence, that is the male employer's evidence, as to the events of that day, I am left in the situation, where I do not know, precisely, or cannot find comfortably, is a better way of putting it, what did occur on that day. Also I am left in the situation where I cannot, with any degree of comfort, say that I would prefer the applicant's evidence to the employer's evidence and I am just left in the situation where I do not know whether or not this injury occurred with the consequences alleged. The applicant bears the onus of proving his case, on the balance of probabilities and I am afraid he has not discharged that onus. There will be an award for the respondent." 2 UNREPORTED JUDGMENTS The submission, at least in the form in which it was most often repeated, was I think to the following effect. It was submitted that his Honour had failed to be satisfied that the appellant had received the injury which he alleged "because of the conflict of the worker's evidence and the employer's evidence, that is, the male employer's evidence, as to the events of that day". The submission suggested that in fact that evidence properly understood disclosed no conflict. Therefore, it was submitted, the learned judge's reasoning process was defective because he had reasoned to the conclusion that he was not satisfied on the basis of a matter which was not true. He had based himself upon something which was not a fact. This, it was said, constitutes an error of law. I am not attempting to restate the various forms in which the submission was put, the propositions advanced by Mr Wood or the steps which he took to render the submission the more attractive, but what I have said states, I think, the main substance of it. There are a number of reasons why in my opinion this submission should not be accepted. Having read the evidence given by the appellant and by Mr Van Klooster, I am of the opinion that there was conflict between the evidence of the appellant and the employer, Mr Van Klooster. At least - and it need be put no higher than this - there was material on which his Honour could properly find that there was a conflict. The appellant's credibility as a witness was significantly in issue. He had been cross examined as to his prior history in relation to workers compensation claims. It appears from the transcript, and may well have appeared more strongly to the learned judge, that there was a question as to whether he should accept either that the accident occurred at all or that as the result of the accident the appellant suffered the disabilities which he described in the proceedings. The appellant had said that he had been pushing a trolley in the employer's premises, that there was mud on the ground and that as he pushed it he slipped, fell forward and injured his back. A number of things were put to him. It was suggested, for example, that he had described the accident to one of the doctors who he had consulted, Dr Guirgis, some little time later and had said that he had fallen on his back. And there was a conflict between his evidence and the evidence of Mr Van Klooster. The conflict related to the existence at the relevant place of mud and whether there was mud on the appellant when he went, as it was accepted that he did, to Mr Van Klooster to complain of the suggested injury. There was evidence from the appellant that there was mud in or around the area. Reading the evidence as a whole, I believe that the parties were at issue as to whether there was a relevant amount of mud there at all. The evidence, if read with textual precision, might support the view that the contest was whether there was mud in the sheds or mud just outside the sheds and whether the accident took place inside the shed or just outside the shed. But I do not think that that really was a difference that the parties saw between them at the trial. I think that the parties thought themselves at issue at the trial as to whether there was relevantly mud at the particular place and the amount of it. I think that when Mr Acevski said that there was mud up to his knees in the shed on the particular day, he had in mind the relevant place, namely, the place where he fell. He was attempting by what he said to assert that there was mud which could have been on his clothes at the particular time. URJ ACEVSKI v VAN KLOOSTER (Samuels JA) 3 Mr Van Klooster indicated that he looked at the appellant on the day when he was told of the suggested injury to the back. He was asked, "Did you notice any mud on his person?", and he answered, "No". It was not put to him that had there been mud he would have noticed it, but the underlying suggestion of the question was, I think, to that effect. I have stated these matters as conclusions. In my opinion, at the least his Honour could have taken the matters to which I have referred from the evidence as it was before him at the time. I am, therefore, satisfied that there was either in fact a conflict between the worker's evidence and the employer's evidence or that the learned judge as the judge of the fact was entitled to see a conflict between the evidence as he had heard it from the witnesses before him at the trial. On that basis, I would reject the submission which has been made. It was then put that there was an error of law because the learned judge had disclosed an error of principle in the manner in which he had reasoned from the facts to his conclusion of fact. Reference was made to what Glass JA had said in Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 156G to 157C inclusive. It may be that there is an error of principle which will constitute an error of law if a judge, in reasoning from facts to a conclusion of fact, applies a completely irrational and unacceptable principle of reasoning. It may be, to take the examples to which reference was made in evidence, that if a judge says, "All apples are oranges, therefore, I find the particular fact to be such and such" or if he says, "I do not believe a witness because he has red hair and all red-headed persons are congenital liars", that may constitute such an error of principle and so an error of law. I do not desire to postulate it to be so, but merely to reserve the possibility. Such extreme cases may be able to be accommodated within the phrase, "error of law". But the present case does not in my opinion approach such a situation. I do not think that there was such an error in the reasoning process of the learned judge as would justify such a conclusion. It may be that the learned judge in his judgment gave two separate reasons why he was not satisfied on the facts that the accident had happened, "with the consequences alleged". His Honour referred both to the conflict of evidence to which I have referred and also to the fact, as he described it, that he was not able to say that he preferred the applicant's evidence to the employer's evidence. His Honour said that that being so, "I am just left in the situation where I do not know whether or not this injury occurred with the consequences alleged". It may be that this second reason is of itself sufficient to justify the dismissal of the appeal. But I put that aside. It is sufficient to say in my opinion that within the grounds of appeal now pressed there does not appear to be an error of law. For that reason, I would propose that the appeal be dismissed with costs. Samuels JA The appellant rightly, I think, disclaimed reliance upon any "no evidence" point. Hence counsel was left with the very difficult task of endeavouring to manufacture a point of law out of the learned judge's alleged error in perceiving a conflict of fact in the evidence where none in truth existed. It seems to me that however perverse, mistaken, or unjustifiable that conclusion might be, it would remain a conclusion of fact and thus raise a question of fact and not a question of law. The situation does not seem to me to advance any successful argument that the learned judge was in error in any principle of law that he applied. He was simply, according to the appellant, wrong about what the facts established. 4 UNREPORTED JUDGMENTS In those circumstances, Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, which has been consistently approved, is fatal to the appellant's case. Accordingly, I agree with my brother Mahoney that the appeal must be dismissed with costs. Clarke JA I also agree with Mahoney JA's judgment. The order of the court is, therefore, that the appeal is dismissed with costs. Counsel for the Appellant: R WOOD Counsel for the Respondent: P. SWEENEY Solicitors for the Appellant: RADIN and ASSOCIATES Solicitors for the Respondent: ELEONORA G. SCARPARO