SARLON INDUSTRIES PTY LTD v RODIC SUPREME COURT OF NEW SOUTH WALES KIRBY P, SAMUELS JA AND MAHONEY JA 27 August 1991, 27 August 1991 [1991] NSWCA 242 WORKERS' COMPENSATION — disputed in jury — whether evidence of worker "corroborated" — meaning of "corroborated" whether factual evidence of (a) a complaint to a superior; and (b) contemporary statement in compensation claim form are available to support the worker's evidence and sustain award — held: (1) 'Corroboration'', as used in criminal trials, is not required in establishing a claim for compensation and should not be introduced. Brown v Public Service Board of New South Wales and Ors, Court of Appeal, unreported, 5 August 1991; The Queen v The Statutory Committee of the Phamaceutical Society of Great Britain [1981] 1 WLR 886 applied; (2) In the sense of supportive evidence there was such evidence in the contemporary complaint and claim form. Dobson v Morris and Anor (1975) 4 NSWLR 681 (CA) referred to; (3) Accordingly, as there was some evidence to support the award it could not be disturbed in an appeal limited to a point of law. Azzopardi vy Tasman Industries Limited (1985) 4 NSWLR 139 (CA) applied. EVIDENCE — corroboration — civil trials — undesirability of introducing notions into claims for workers' compensation benefits. WORDS AND PHRASES — "corroboration". Evidence Act 1898, s14CE. Kirby P Mrs Andja Rodic (the respondent) was successful in a claim for compensation against her employer, Sarlon Industries Pty Limited (the appellant). On 25 May 1990 Judge Herkes entered an award in her favour under the provisions of the Workers' Compensation Act 1926. His Honour ordered the appellant to pay compensation at the statutory rate from 30 September 1988 to date and continuing. The appellant has appealed to this Court under the Compensation Court Act 1984, s32. As it stood at the time of the appeal, the appellant accepted that it was confined to establishing an error of law or an error in the admission or reaction of evidence. The stringent requirements necessary to establish an error of law are well known. They were stated by this Court in Azzopardi v Tasman Industries Limited (1985) 4 NSWLR 139, 142. I dissented in that case. However I am bound by its holding and I forswear the opportunity to repeat, once again, the view which I there expressed. The amendment of the Act has repaired the injustice to which I then called attention. However, the repair does not avail the appellant in this appeal. At least the appellant is prepared to accept that it was bound by s32 as it was originally enacted. As Azzopardi holds, even a perverse conclusion on the primary facts is immune from correction in this Court. I hasten to say I do not believe that the decision in this case was perverse. As I shall demonstrate, it is sustained by the material which was placed before Judge Herkes by the appellant itself. Compensation award for worker: trial judge's reasoning The respondent's injury was allegedly received on 26 September 1988. On that day she complained that she had received a static electrical shock on a loom on which she was working in the course of her employment for the appellant as a weaver. She claimed that, as a result of the injury, she suffered disability in the left arm, hip and an anxiety and depressive state. Judge Herkes dismissed the claim of 2 UNREPORTED JUDGMENTS disability in the arm and the hip so far as it was alleged to be based on a physical injury. He concluded there was no evidence to support either of those contentions. However, he decided that the respondent had established that she had suffered an injury causing an anxiety state. Upon that basis he awarded her compensation. In reaching his conclusion, Judge Herkes appears to have taken the following steps of reasoning. First the respondent had exhibited reasonably normal behaviour before her injury. She was not "a perfect happy, normal lady" but she did not; exhibit bizarre behaviour. She was described by a fellow worker as very excitable and easily upset. But she had an unremarkable work history and was certainly not incapacitated before whatever occurred at work happened to her. Secondly, the respondent after her injury exhibited quite unusual behaviour which, from his Honour's close observation as she gave evidence, led him to the view that she had a neurotic disorder. This was diagnosed by Dr Greenwood as acute dysfunction - a personality disorder. From his Honour's observation, the respondent was either a very good actress or was the victim of a serious behavioural disturbance. Although the evidence given for the appellant by Dr Shand suggested the former conclusion, Judge Herkes, at the end of the case, preferred the latter. His conclusion was reached largely on the basis of his close observance of the respondent as she gave her evidence. Thirdly, whilst the respondent's evidence of the injury was at times inconsistent, a fellow worker, Mrs Bruzgulis, was called by the appellant. His Honour accepted her evidence without reservation. He found that she was a perfectly honest witness. So far as the respondent's evidence varied from that of Mrs Bruzguilis, his Honour preferred the latter. Mrs Bruzgulis gave the following evidence: "I saw her standing at the machine and as I was the charge hand, everybody was supposed to report accidents to me. I thought, 'Why are they standing?' There were some other people. I went up and I asked what happened and she said, 'I had a static shock'. I said, 'Where?' and she said, "The back of the loom - the arm'. I said, 'Well, you had better go and see Janet, the first aid attendant'. She said, 'I have already told Frank'. I said, "Yes, but he is not the first aid attendant. Go and see her'. So she went to see the lady. I left her there, so I don't know what happened there." Reaching his conclusion, Judge Herkes said: "I am satisfied that the applicant has established a case and that her condition results from, in the sense in which it is used in the Workers' Compensation Act, the injury received by her. I am also satisfied that the applicant had a fragile personality and that what happened appeared to be a minor incident to other people, as indeed it was in fact, was blown out of all proportion by her and that what followed as her perception is what I have to look at when coming to a view as to whether or not she conceived or perceived the situation to be one where she was being hassled, as it were, at work. I am satisfied on the evidence that she so perceived the situation whilst on the other hand, as I have already said, I accept without reservation the evidence of Mrs Bruzgulis that no such hassling or the tactics which the applicant alleges have occurred. In those circumstances it seems to me there should be an Award for the applicant." The notice of appeal belatedly raises a point of law As originally framed, the appellant's notice of appeal was entirely defective. It asserted that there was not sufficient evidence to justify his Honour's finding; that his Honour should have found that the respondent did not sustain injury; that he erred in finding incapacity; that he erred in finding any incapacity resulting from injury and that he should have considered all the relevant factors and found any incapacity of the URJ SARLON INDUSTRIES PTY LTD v RODIC (Kirby P) 3 worker as not being a consequence of any work related to injury. Self evidently, none of these grounds raise question of law within the test laid down by Azzopardi. This Court despairs when reading notices of appeal in which appeals confined to correcting errors of law raise only questions of fact. This is simply the latest of such cases. Fortunately, counsel for the appellant in this case perceived the default. We were therefore not troubled by any of the grounds of appeal as filed. All of them were abandoned. On the return of the appeal, the appellant sought and was given leave - somewhat reluctantly I might say - to file the additional and new ground of appeal. This asserted: " 7. His Honour erred in law in regarding Mrs Bruzgulis' evidence as corrobaration of injury to the worker. " The respondent objected to this amendment. Her counsel complained of the late notice which he had received of it. However, the Court permitted the amendment to be made. It stated that it would protect the respondent in respect of the suggested surprise. Ultimately, however, the respondent was not called upon. I observe that the added ground is not addressed to the admission or rejection of any evidence by Judge Herkes. It is not the introduction into the case of the evidence of Mrs Bruzgulis which the appellant attacks but the use which his Honour made of that evidence in determining whether it amounted to "corroboration". It is unsurprising that the appellant did not object to the admission of the evidence. As I have said, it was the appellant itself which called Mrs Bruzgulis in its case. Its then counsel extracted the evidence which I have already incorporated in these reasons. In such circumstances, an objection on appeal to the receipt of that evidence, led and received without objection at the trial would have been a trifle unconvincing. "Corroboration" is irrelevant to a compensation case The essential complaint of the appellant was rather that Judge Herkes, having said that he required "corroboration" of the evidence of the worker, did not find any independent evidence in the nature of corroboration except the complaint of the worker to Mrs Bruzgulis. This, it was said, was not "corroboration" as required by law. It was merely hearsay - a self-serving statement by the worker. As such it should not have fulfilled the expressed need for "corroboration" and the claim should have been dismissed. There is no requirement in law for a worker to provide corroboration in order to establish an entitlement to compensation in the Compensation Court. No such requirement appears in the Workers Compensation Act 1987. Nor did such a requirement appear in the 1926 Act. It is a requirement which could scarcely be imported by judicial legislation. Many cases arise where injuries are received by workers in isolated circumstances where corroborative evidence, in the sense of "corroboration" as used in the criminal law, would simply not be available. There would be no warrant for importing notions of corroboration, developed for quite different purposes in the criminal law, to the claims of workers for compensation under a beneficial statute which is provided to allow compensation benefits in the event of a work injury. At a time when, in the criminal law, the trend is away from some of the earlier strict requirements of corroboration, it would be entirely wrong for judges to introduce notions of corroboration as a legal prerequisite to the recovery of compensation benefits. On the other hand, there are times when judges in non-criminal cases, such as compensation cases, express dissatisfaction with the evidence of a particular witness, possibly a worker. The judge may then state that he or she will not accept 4 UNREPORTED JUDGMENTS the evidence of a particular witness unless it is "corroborated". This is the sense in which Judge Herkes used the word in this case: "Insofar as the accident itself is concerned, there may well have been grounds for a Court having some doubts as to the authenticity of such accident, except that today a witness was called who I might say was cross examined as if she was almost a hostile witness and whose evidence, in my view, supplied the support which the applicant required for the injury itself. That witness quite frankly said that when she saw the applicant near her machine she apparently realized something was happening and she went to her and was told that she had had a static electric shock. Said at the time it was, that seems to me to be corroboration of the fact that the applicant did have such an accident at work." (emphasis added) I regard Judge Herkes' use of the word "corroboration" in this context as non-technical. It was not used for the purpose of introducing into this compensation case the complicated rules of criminal trials which sometimes require that a witness's evidence be confirmed in the way explained in those cases. It was simply a statement by Judge Herkes that he required that the evidence of the respondent should be confirmed or (as he elsewhere put it) "supported" in some appropriate way by other objective or believable evidence. This Court has said recently that care must be taken to avoid the introduction into civil cases of the strict requirements of corroboration which have been developed in the criminal law. See Brown v Public Service Board of New South Wales and Others, Court of Appeal, unreported, 5 August 1991. In that case, the Court applied the warning given by the English courts that notions of corroboration developed in criminal law should not be introduced, unmodified, into civil procedure. See The Queen v Statutory Committee of the Pharmaceutical Society of Great Britain [1981] 1 WIR 886, 869 (QBD). I remain of the view expressed there. There was confirmatory evidence to sustain the award Therefore, the remaining basis upon which the appellant attacked Judge Herkes' award is, in my opinion, misconceived. If, as I believe, Judge Herkes merely used the word as indicating the need for some external indication supportive of the worker's case, then the evidence which the appellant's witness, Mrs Bruzgulis, gave was sufficient for that purpose. The statement to Mrs Bruzgulis by the worker was admissible. Cf Dobson v Morris and Anor (1975) 4 NSWLR 681, 683 (CA). There was also tendered at the trial a form, being the compensation claim form, which was made out by the worker. In that form the statement of the circumstances of the injury attributed to the worker was: "At the time I was working on machine number 4, number HN7... electricity shock to right side of body and shoulder." The appellant attacked this statement as inconsistent with the assertion of static electricity. However, the distinction appears unimportant. In any case, it is one of fact to be evaluated not: by this Court but by Judge Herkes. I can understand the feeling of the appellant, that upon the evidence which was before his Honour the decision was a disappointing one. However, the decision is plainly one on the facts. There was evidence to support it. Because the appeal at the relevant time was confined to an appeal only on a question of law. This Court has no warrant to intervene in the conclusion which Judge Herkes reached. Orders The result is that, in my opinion, the appeal should be dismissed. The appellant must pay the respondent's costs. Samuels JA I had hoped. that we might determine this appeal without reference to the dissenting judgment in Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139, because the matter before us does not seem to me URJ SARLON INDUSTRIES PTY LTD v RODIC (Mahoney JA) 5 to raise any difficult questions of the distinction between issues of fact and issue of law. The only difficulties which the case presents are that the appellant has been unable to formulate the question of law, and that I believe that undue emphasis has been given to the learned Judge's reference to "corroboration" which, I think, appears at only one place in his judgment. What happened at the trial appears to have been this. The worker asserted that she had sustained a static electrical shock which was the injury of which she complained. The employer joined issue on this assertion, and she was thoroughly cross-examined to establish that she was, at the least, an unreliable witness, if not a lying one. His Honour obviously was inclined to reject her evidence. Then the employer called as a witness the charge hand, intending, it seems, to cover the worker's evidence on some matters other than the occurrence of the injury. However, the witness started off by recounting a conversation which she had had with the worker on the morning of the injury, although precisely how long after it is not established. Naturally enough, that evidence was not objected to by counsel for the worker because it was very much in the worker's favour. It seems to me that what really has happened is this. The worker's account had been challenged as a recent invention. It was, therefore, perfectly open to her to lead evidence of a prior consistent statement and, in fact, she gave evidence of two such. The claim form was tendered without objection. It was admissible, no doubt, under s14CE of the Evidence Act, although I doubt that any attention was directed to that provision, but it was a business record I would have though and, assuming proof of the other ingredients, established the facts which it contained. And then, obligingly, the employer gave evidence of a prior consistent statement which proved she had made the necessary complaint to her supervisor or charge hand at least on the morning of the alleged accident, and thus at a time sufficiently contemporaneous to permit evidence of that sort to be tendered. I would have myself thought that all that Judge Herkes meant when he spoke of "corroboration" was some evidence which supported the worker's account; which was, in other words, consistent with it, as this evidence was. If the question is whether she was lying when she said she had received an injury of this general kind, evidence that she had said she had, at about the time that she said she did, was admissible evidence in support of the case. That is what occurred. Whether it was admissible on other grounds or not we really need not stop to consider. As the President has said, there was evidence of corroboration that the judge was entitled to accept; and he did so. Of course, one appreciates that there might be considerable argument about the alleged symptomatology which developed following his injury. That is not something which we can investigate. I would agree with the orders that the President has proposed. Mahoney JA I agree that the appeal should be dismissed with costs. I do not desire to comment further upon Azzopardi's case. I note that the notice of appeal relates now only to one matter, whether his Honour erred in law in regarding Mrs Bruzgulis' evidence as being corroborative of injury. As my brethren have pointed out, the evidence was, in fact, before the Court. The only question, therefore, raised by the appeal is whether, in law, evidence which otherwise might be, for example, hearsay under the general law can yet be treated as corroborative of injury. In the circumstances of this case there appears to have been little point in the employer calling the evidence he did, at least the relevant portion of it, unless it was assumed by all parties that if that evidence was established it could so to the 6 UNREPORTED JUDGMENTS question of whether the accident, in fact, happened as the worker had claimed. It seems to have been assumed that the evidence would go to that point. There seems to have been, as I have said, in relation to the relevant part of it, no other reason to call it. If that is the basis on which the proceeding was conducted, I do not think that his Honour erred in law in regarding it, to the sense in which he used the term, as corroborative of the injury. Whether hearsay evidence can, once it has been admitted, be probative of the matter is a question upon which views have differed at least in respect of some aspects of hearsay evidence. I do not think it is necessary in the present case to pursue this issue. As I have said, I agree with the orders proposed. The order of the Court is that the appeal is dismissed with costs. Counsel for appellant: MJ McAuley Solicitors for appellant: JF Sharpe and Co Counsel for respondent: SJ Burchett Solicitors for respondent: Brock Partners