WATER BOARD v MILE CINDRIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and CRIPPS JJA 9 December 1992, 17 December 1992 [1992] NSWCA 264 Workers compensation — claim before Commissioner for continuing payments — incapacity to work — claim dismissed. Appeal to Compensation Court — s110 Workers Compensation Act 1987 — appeal on point of law — alleged failure by Commissioner to give sufficient reasons — appeal upheld — whether judge erred in law. Requirement to give reasons — Held: reasons of Commissioner not to be subjected to as rigorous an examination as those of a trained lawyer — in a case in which an appeal lies only in respect of a question of law it is sufficient for the tribunal to identify in its reasons the ground on which its decision is based. Commissioner's reasons sufficient — judge erred in upholding appeal. Clarke JA In 1976 Mile Cindric (the respondent) was employed by the Metropolitan Water Sewerage and Drainage Board (the appellant) as a labourer. On 16 September of that year he sustained an injury to his right elbow when the trench in which he was working collapsed. As a result he went off work and on 17 November 1976 Dr Bannister carried out an operation to his elbow. After about six months he returned to work on light duties. In the following months he suffered from a disability in his left elbow which he attributed to the nature and conditions of his employment. He claimed that in the following months the disabilities in both elbows made it impossible for him to continue working and he ceased employment in November 1977. He has not worked since that time. The appellant paid him workers compensation until July 1987 when it ceased making payments. He thereupon brought a claim for continuing payments alleging, in the alternative, that he was totally incapacitated for work, that he was partially incapacitated for work, or that his partial incapacity for work should be deemed total because of the operation of s11(2) of the Workers Compensation Act 1926. His claim for compensation was heard by Commissioner Kidd who found against him and made an award in favour of the appellant. The respondent appealed from that decision to a judge of the Compensation Court. His appeal was brought pursuant to s110 of the Workers Compensation Act 1987 and was consequently limited to a point of law. In his notice of appeal the respondent identified seven grounds of error. At the commencement of the hearing of his appeal before Judge Moroney his counsel abandoned all but one of the grounds of appeal. The remaining ground asserted that the Commissioner had erred in law in failing to consider the matters relevant to a determination on the claim that the respondent made for an award pursuant to the provisions of s11(2) of the Workers Compensation Act. During the hearing of the appeal it became apparent to the learned judge that the errors concerning Commissioner Kidd's determination of the claim under s11(2) would, if they in fact existed, constitute only errors of fact. When this was pointed out to counsel for the 2 UNREPORTED JUDGMENTS respondent he sought and was granted leave to rely on one of the grounds which he had abandoned, that being that the Commissioner had failed to give sufficient reasons for his decision. In a judgment, which may properly be described as terse, his Honour upheld the appeal upon the basis that the Commissioner had erred in law in failing sufficiently to disclose his reasoning process. It is, I confess, not easy to identify from the judgment under appeal the nature of the specific error. At one stage his Honour indicated that he did not believe the Commissioner had answered the question which had been posed and at another stage he expressed the view that he was unable to determine the basis upon which the Commissioner had reached the decision. In the appeal before this Court the appellant asserts that his Honour erred in law in concluding that the Commissioner had failed to give reasons. In the circumstances it is necessary to examine the reasons for judgment of Commissioner Kidd in order to ascertain whether his Honour was correct in his conclusion. Before embarking upon a consideration of those reasons it is appropriate to point out that there was no requirement under Pt8 of the Workers Compensation Act 1987 (or indeed under PtIVA of the Workers Compensation Act 1926) that commissioners appointed under those Acts be lawyers. Under s240 of the Workers Compensation Act 1987, for instance, a person was qualified to be appointed as a commissioner if, and here I state the position broadly, he or she had experience at a high level in industry, commerce, industrial relations or Government service or had not less than five years previously obtained an educational qualification in law, economics or industrial relations or some other field of study which had substantial relevance to the duties of a commissioner. Although this fact does not mean that a commissioner would not have been bound to give reasons in support of his or her decision it does tend to support the view that the reasons for judgment of a commissioner should not be subjected to the same degree of rigorous examination as might be carried out in respect of the judgment of a trained lawyer. Nonetheless, the established principles required the Commissioner to provide a sufficient indication of the ground of his decision in his reasons for judgment, considered in the context of the issues raised for determination, to enable an appellate court to understand the basis of his decision. In expressing the matter in that way I have been guided by the statements of principle of this Court in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In that case Mahoney JA analysed the requirement imposed upon a judicial officer to expose the reasons for his or her conclusion and said (at p273): "\.. in my opinion, it will ordinarily be sufficient if - to adapt the formula used in a different part of the law: see R v Associated Northern Collieries (1910) 11 CLR 738 at 740 - by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted." His Honour did indicate that while the duty to give reasons should be seen as an incident of the judicial process the fact that an appeal lies from the determination may be relevant in deciding the extent of the duty. His Honour did not direct his attention specifically to a case in which an appeal lay only on a question of law. However, McHugh JA dealt specifically with the obligation to give reasons in such a case. His Honour said (at 281): URJ WATER BOARD v MILE CINDRIC (Clarke JA) 3 "An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff's credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough." Later his Honour said (at 282): "While it is true that his Honour did not expressly give any reasons for the finding, his reasons for judgment show quite clearly in my opinion that he held that the applicant was fit for work because the CAT scan did not reveal any abnormality. It is not to the point that his Honour's finding was erroneous or, as counsel for the applicant claimed, perverse. An erroneous or perverse finding of fact raises no question of law and cannot be challenged by way of appeal. What is decisive is that his Honour's judgment reveals the ground for, although not the detailed reasoning in support of, his finding of fact. But that is enough in a case where no appeal lies against the finding of fact. Accordingly there was no failure to give reasons sufficient to constitute an error of law." Although the terms in which their Honours expressed their views in Soulemezis were not identical it seems to me that both judges were of the opinion that in a case in which an appeal lay only in respect of a question of law it would be sufficient for a tribunal to identify in its reasons the ground upon which its decision was based. And in this respect both judges emphasised that the reasons needed to be considered in the context of the evidence in the case and the issues between the parties. During the hearing of this appeal counsel for the respondent submitted that in Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 157 Mahoney JA had reconsidered the views which he had expressed in Soulemezis (and in Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378) and concluded that the obligation to provide reasons was somewhat more onerous than a reading of those earlier decisions would indicate. In Yates Mahoney JA said (p170): "In deciding whether a judge has given sufficient reasons for what he has decided, it is, of course, necessary to determine what he decided and why he decided it." Although on one view there is a difference of emphasis in the later case I do not understand his Honour to have been suggesting the law was otherwise than as he had previously expressed it. There are two reasons which lead me to that conclusion. The first is that immediately before the passage which I have set out his Honour indicated that the relevant principles were those which he had set out in Tatmar and Soulemezis and I think it is clear enough that in the following passage he was merely summarising the earlier expression of his views. The second reason that leads me to that conclusion is that in Soulemezis his Honour said that the necessity for reasons arose because of the expectation that in a judicial decision a sufficient explanation would be given of why the order was made (273). In my opinion nothing that his Honour said in Yates should be 4 UNREPORTED JUDGMENTS taken as imposing upon a judge or tribunal an obligation to give reasons higher than the obligation expressed in the earlier cases. I would add that in Russell v F J Walker Ltd (NSW Court of Appeal, 10 February 1989, unreported) Samuels JA expressed his agreement with the proposition which appears in the second passage from the judgment of McHugh JA in Soulemezis which I have set out. Like Samuels JA I respectfully agree with the approach of McHugh JA in Soulemezis and I propose to adopt that approach in the resolution of the present appeal. In his reasons for judgment the Commissioner set out the basic facts and the opinions of some of the doctors whose reports had been received in evidence. He then observed, correctly in my view, that there was considerable difference between those medical opinions and his observations make it quite plain to me that he recognised that he was required to consider which of the opposing views should be accepted. He referred also to the claim based upon s11(2) of the Workers Compensation Act 1926 and made specific reference to a report from a medical panel constituted under s51 of the Workers Compensation Act 1987 which indicated that on 8 May 1987 the respondent was fit for work. Having done that the Commissioner said: "The balance of probabilities is that the applicant has been fit for employment for some time and certainly since May of 1987. There are indications in some of the medical reports of symptoms of Duputryens Contracture, however, Dr Marshman Exhibit G finds there is no substantiation (sic) with the Applicant's (ie the respondent's) work. " The Commissioner then made an award in the appellant's favour. In my view there can be little doubt of the ground for the decision. The Commissioner rejected that body of medical opinion which supported the respondent's case and accepted the contrary opinions. The two most notable of those opinions were those of Dr Marshman, who saw the respondent in January 1987, and Dr Bodel who saw the respondent on 10 March 1988. Both of those doctors expressed the opinion that the respondent did not have any disability which precluded him from carrying out his work. In the light of this evidence a finding against the respondent on the issue of incapacity was well open to the Commissioner, and the contrary was not argued. In the circumstances I do not think it is difficult to discern from the passage I have set out that the ultimate conclusion was based upon the evidence supporting the view that at the times at which the doctors saw the respondent he was fit for work and therefore had failed to establish the incapacity which he asserted. It may be thought that the Commissioner was not prepared to act on the evidence of Dr Marshman alone given that he had expressed his opinion as at January 1987 but it would seem to me that the Commissioner concluded that the respondent had not been suffering from any incapacity for some time prior to the critical date (ie July 1987 when payments ceased) and that in the light of the evidence and the report of the medical panel in 1987 his incapacity had certainly ceased by May of that year. If this view is correct then the learned judge was mistaken when he concluded that the Commissioner erred in law. It was argued, however, that the fact that, and the manner in which, the Commissioner dealt with the claim based upon s11(2) of the Worker's Compensation Act 1926 introduced an air of uncertainty into the final paragraph of his reasons for judgment. In this respect it was submitted that if the Commissioner was not satisfied that the respondent had established any URJ WATER BOARD v MILE CINDRIC (Cripps JA) 5 incapacity for work after May 1987 there was no need for him to deal with the claim under s11(2), nor to make a finding, as he did, that the respondent had not been ready, willing and able to work in 1987. I accept that there was no need in the circumstances for the Commissioner to deal with that particular aspect of the respondent's claim but the fact that he did deal with it does not persuade me that there is any reason to doubt that the ground upon which he ultimately proceeded was the failure of the respondent to prove that he was incapacitated for work after May 1987. In my opinion the learned judge erred in upholding the appeal and his order should be set aside. In the circumstances the following orders should be made: (1) Appeal allowed; (2) Orders of Moroney J set aside and in lieu thereof order that the award entered in favour of the appellant employer on 17 August 1988 by the Commissioner be reinstated and confirmed; (3) That the respondent pay the appellant's costs of the proceedings before Judge Moroney and of the appeal; (4) The appellant is to have a certificate under the Suitors Fund Act in respect of the costs of the appeal to this Court. Meagher JA I agree with Clarke JA. Cripps JA I agree with the reasons and orders of Clarke JA. (1) Appeal allowed; (2) Orders of Moroney J set aside and in lieu thereof order that the award entered in favour of the appellant employer on 17 August 1988 by the Commissioner be reinstated and confirmed; (3) That the respondent pay the appellant's costs of the proceedings before Judge Moroney and of the appeal; (4) The appellant is to have a certificate under the Suitors Fund Act in respect of the costs of the appeal to this Court. Counsel for the appellant: G FARKAS Solicitors for the appellant: R GUTHRIE Counsel for the respondent: P BIGGINS Solicitors for the respondent: DENNIS AND CO