WELTON v ENITON PTY LTD TRADING AS DIAL-A-DINO'S PIZZA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS AP, CLARKE and HANDLEY JJA 14 October 1991, 14 October 1991 [1991] NSWCA 278 COURTS AND JUDGES — judges — statement of reasons for decision — duty to consider all evidence does not include requirement to refer to every piece of evidence led: held: it did not appear that the judge had failed to consider two pieces of medical evidence upon which appellant relied (Mifsud vy Campbell (1990) 21 NSWLR 725 referred to). Samuels AP In this matter the worker, who is the present appellant, applied for a continuing award of workers compensation asserting that he had incurred injuries in a fall on 16 February 1987. It is not necessary to deal in any detail with the circumstances of the fall save to say that he fell off the back of a truck which he was unloading. The report of injuries form complains of injury to the chest, but the application for determination filed much later than the injury, of course, complains of a constellation of problems including injury to the leg, chest, left arm and shoulder, ribs, neck and back. The learned trial judge, although apparently forming no adverse view in one sense of the worker's credit, did not accept the essence of his case, which was that the main disability sustained as a result of the fall was an injury to the back, that being, it would seem from the evidence as a whole, a complaint of incapacity stemming from injury to the cervical and thoracic spine. He had, I should perhaps interpolate, an earlier problem of injury to the back which occurred in 1979, and which had been disposed of by settlement before the later injury came before the Compensation Court. The issue which we are concerned with is whether there was evidence indicating a contemporary complaint of injury to the back or of pain or disability in that area which would have supported the case which the worker sought to make, but which was overlooked or ignored by Judge Burke who heard the application. The worker's local medical practitioner is a Dr Farina and he saw the worker on a number of occasions after 16 February 1987. His earlier certificates confine themselves to complaints of pain in the chest, but there is one which is undated, but which is presumably, because of its contents, written towards the end of February 1987 which adds a complaint of backache although the area is not more specifically identified. There is also a report dated 13 March 1989 which contains some history upon which counsel for the worker relies and to which I will return. In his judgment, the learned judge, having described the accident and having pointed out that in the fall a case of pineapples "landed on his chest", continues by saying that "The worker said he went and saw Dr Farina that day; not dealt with in report form, but there is a certificate of Dr Farina of that date in respect of marked spasm pain and marked bruising of the left chest wall." Counsel's arguments depend very substantially upon the construction to be accorded to the words, "Not dealt with in report form". It is submitted that that means that there was no report from Dr Farina, or so the learned judge thought; hence he 2 UNREPORTED JUDGMENTS overlooked or rejected without comment what was certainly a report, namely, the document of 13 March 1989 to which I have referred. I find it impossible to accept that construction of those words. It seems to me that what the learned judge was saying was that there was no report from Dr Farina of a contemporary kind, that is to say, he did not put his findings on examination of the worker on 16 February 1987 in a contemporary report, but confined himself to what the judge describes as "A certificate of that date." That being so, it seems to me that the argument suffers a severe reverse and the undated certificate, which is itself in equivocal terms as to the part of the back of which the worker was complaining, does not advance the worker's case either. Furthermore, when one examines the report of 13 March 1989, it is clear at least to me that it follows an earlier report which was never tendered in evidence; hence its contents and its date both remain unknown. The report relates to an examination which was conducted on 15 February 1989 and then goes on to say, "His injuries after the fall included soft tissue injury to", and there follow four areas which include the upper thoracic and cervical spine. Then the doctor sets out findings upon the examination which must be the one which took place on 15 February 1989. The argument, of course, requires acceptance of the proposition that the matters of history, which include complaints of injury to the spine, are intended to record those complaints which were made when Dr Farina examined the worker on the day of the accident. However, I, again, cannot accept that construction of the document. In particular, the doctor has specifically referred to an earlier report and perhaps I should quote the exact context in which that reference appears. It is, "The physical situation of Mr Welton has remained unchanged since the prior report", and then the examination which took place on 15 February 1989 is correctly described as a re-examination. The complaints which are then made may well include complaints which developed some time after the fall or, to be more precise, include complaints which were made to the doctor some time after the fall. There is no reason to suppose that the four matters which are set out all record complaints made on the day the accident happened. Indeed, if they did, they would be inconsistent with what is undoubtedly a contemporary certificate, the nature of which I think I have referred to and which does not complain of any injuries to the spine. I conclude, therefore, that the report of 13 March 1989, and I should perhaps add, the undated certificate, are not such as to compel a conclusion in the worker's favour and, indeed, are sufficiently equivocal to have been set aside by the learned judge as being of no assistance in the determination which he had to make. More than that though, I would not conclude from the judgment that the learned judge had ignored either of these pieces of evidence. It is not to be expected that a judge will or must refer to every piece of evidence which is led before him. I think that that proposition is of particular relevance when one is dealing with a court such as the Compensation Court which has a very heavy list, and which is bound to deal with the cases before it with considerable expedition, and which is staffed by judges who have become expert in the medico-legal matters which are daily brought before them and who, naturally enough, tend to adopt in some circumstances a 'judicial shorthand' which is not commonly used by tribunals which have more leisure to reserve and to polish the findings and holdings they make. URJWELTON v ENITON PTY LTD TRADING AS DIAL-A-DINO'S PIZZA (Handley JA) 3 In Mifsud v Campbell (1990) 21 NSWLR 725 at 728, which was relied upon, I endeavoured to make this point by saying, "It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected". Then (I leave out a passage) I continued: "Accordingly, the failure to refer to some of the evidence does not necessarily whenever it occurs indicate that the judge has failed to discharge the duty which rests upon him or her." I would, therefore, not conclude that the learned judge fell into the error of failing to have any regard to the two pieces of medical evidence which have been identified. That being so, it is unnecessary for me to pronounce upon whether a failure of that kind, had it occurred, amounts to an error of law or to an error of fact. My inclination in Mifsud was to regard it as an error of law, but the other judges who sat in that case were not of the same mind. Hence, I think that I need not consider the application of cases to which counsel referred us such as Baldwin and Francis Ltd v Patents Appeal Tribunal (1959) App Cas 663. Accordingly, in my opinion, the appeal should be dismissed with costs. J Clarke JA I agree. Handley JA I also agree. The order of the Court is that the appeal is dismissed with costs. Counsel for the Appellant: R W TREGENZA Counsel for the Respondent: C BRANSON QC and A QUIRK Solicitors for the Appellant: MORTON and HARRIS Solicitors for the Respondent: AO ELLISON and CO