APOSTOLOVSKI v ALLCO STEEL PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBY P, HANDLEY and Cripps JJA 27 August 1992, 11 September 1992 [1992] NSWCA 8 WORKERS' COMPENSATION — appeal — limited to grievance in point of law — stringent requirements of — complaints about fact finding by judge — reference to earlier adjournment — appearance in witness box — inferences drawn from medical reports — held: No error of law — appeal dismissed. WORKERS' COMPENSATION — incapacity — determination of closed period of partial incapacity — appeal limited to error of law — suggested errors of law in reasoning and conclusions of trial judge (Davidson CCJ) — reference to significance of adjournment of proceedings before other judge — reference to "uncharacteristically short" opinion of medical witness — reference to "uncanny likeness" in findings of reports of medical witnesses — suggested incompatibility in evaluation of injury expressed in judgment — suggested errors in inferences derived from evidence — suggested error in conclusion as to pain, anxiety and depression from appearance as witness — held: None of the grounds of appeal raised an error of law in the stringent sense explained in Azzopardi v UEB Industries Ltd (1985) 4 NSWLR 139 — appeal dismissed. Compensation Court Act 1984, s32(1). Workers' Compensation Act 1926, s11. Kirby P The Compensation Court Act 1984, s32 has now been amended to permit appeals from the Compensation Court to this Court concerning disputes of fact. However, before 1989, when the amendment appeals were limited (relevantly) to grievances in point of law. Appeals so limited confine the appellate court severely as Glass JA (writing with the concurrence of Samuels JA) pointed out in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (CA), 153 at 155ff. In cases so limited, where a trial judge is said to have reached the wrong conclusion on the facts, the only bases for appellate intervention are: 1. If there was no evidence at all to justify the judge's conclusion; 2. If the conclusions reveal an error of law in that the primary facts found are necessarily within, or outside, a statutory description and a contrary decision has been made. Hope v The Council of the City of Bathurst (1980) 144 CLR 1, 10; or 3. If the facts found otherwise show that the trial judge misdirected himself or herself, as by defining otherwise than in accordance with law the question of fact which has to be answered. See Azzopardi, 156. The decision in Azzopardi recapitulated long standing legal authority. The Court there resisted the blandishments of advocates of judicial reform. The holding has been applied repeatedly in this Court to appeals from the Compensation Court limited (relevantly) to correction of errors of law. It has also been applied to appeals from other courts and tribunals similarly so limited. The principle in Azzopardi reserved to a judge of the Compensation Court the resolution of disputed facts. It excludes the Court of Appeal from 2 UNREPORTED JUDGMENTS correcting errors of fact, conserving its intervention to the very narrow class of errors of law so explained. The full extent of the stringency of the test was underlined by Glass JA when he pointed out that findings of fact which were demonstrably unsound, even to the point of perversity, could not be elevated from an error of fact to be an error of law. See ibid, 156. Cf R v The District Court of the Metropolitan District Holden at Sydney and Ors; Ex parte White (1966) 116 CLR 644, 654. Because the Azzopardi test left a number of perceived injustices uncorrected, judges of this Court drew attention, from time to time, to the severity of the limitation. They contrasted the facility of appeal available from factual decisions of the Supreme Court, District Court and other courts. They pointed out that these often concerned amounts smaller and benefits less significant than those determined in the Compensation Court. Eventually the judicial calls for legislative reform were heeded. Hence the amendments to the Compensation Court Act 1984, s32 in 1989. However, the present appeal predates those amendments. It is one of the last remaining matters awaiting hearing which must be judged by the stringent Azzopardi standard. Counsel for the appellant, in his extremely thorough approach to the issues in the appeal acknowledged the difficulty presented by the limitation to grievances in point of law. With the consent of his opponent and of the Court, he belatedly filed an amended notice of appeal. It will be necessary to consider seriatim the grounds of appeal set out in that document. None of them, in my view, demonstrates an error of law such as would justify the intervention of this Court to disturb the award of the Compensation Court which is challenged here. A worker is injured by a blow to the chest Mr Metodiga Apostolovski (the worker) was injured in the course of his employment for Allco Steel Pty Ltd (the employer) on 11 November 1986. There was no dispute about the injury. The worker was operating a large hand held grinder when it came back suddenly onto his body. The handle struck him in the sternum, an area of the chest. The worker ceased work. He was taken by ambulance to The Mater Hospital. He was discharged to the care of Dr B R Ingram, his local general practitioner. He returned to work in early December 1986, being then confined to lighter duties. After the Christmas break he suffered a supervening injury to his left eye which took him off work for a month. When he resumed he complained of continuing pain in the chest. Dr Ingram referred him to Dr AVB Isaacs, orthopaedic surgeon of Adamstown. He underwent a rehabilitation course and saw a psychologist. In August 1987 the worker was sent back to work. He was given duties which involved sorting bolts, nuts and screws. He was told that he could carry out the work in whatever manner he felt was appropriate to his condition. Although informed that he could work at a bench, it appears that he performed the duties provided sitting on the floor. He worked for only two and a half hours. He then ceased work and, to the date of the trial, he had not returned. There was a conflict of testimony as to whether the worker's undoubted physical injury on 11 November 1986 had caused a continuing physiological disability to explain the pain and other symptoms to which he ascribed his incapacity. Because most of the medical testimony did not provide physiological evidence to support the worker's claim of incapacity, he was referred to various other experts, including a consultant physician, a thoracic physician and a URJ APOSTOLOVSKI v ALLCO STEEL PTY LTD (Kirby P) 3 psychiatrist. Still further orthopaedic specialists, notably Drs Ghabrial and Guirgis were brought in to support his case. The litigation in the Compensation Court arose when, on 15 June 1988, the employer ceased payments of workers' compensation benefits to the worker. Within a week an application for determination was filed in the Compensation Court. That application was listed for hearing before McGrath CCJ, Chief Judge of the Court, on 25 July 1989. On that day the hearing was adjourned on the application of the worker. It was relisted on 26 March 1991 before Davidson CCI. The hearing continued on the following day. One day later, on 28 March 1991, Davidson CCJ delivered his reasons and made his award. By his award, his Honour rejected the worker's claim of total incapacity; rejected the claim of entitlement to a continuing award on the basis of notional total incapacity under s11(2) of the Workers' Compensation Act 1926; found that the worker was entitled to an award on the basis of partial incapacity under s11(1) of that Act from 15 June 1988 to 21 June 1989. Thereafter, his Honour found that the worker was not entitled to compensation. It was that finding which led to the appeal to this Court. Grounds of appeal The amended notice of appeal raised the following alleged grounds of law: 1. Error of law in taking into account an irrelevant consideration and drawing inferences adverse to the worker from the adjournment of the matter before McGrath CCJ on 25 July 1989; 2. Errors of law in the preference which Davidson CCJ expressed for the employer's medical evidence; 3. Errors of law in reaching conclusion which were mutually incompatible; 4. Errors of law in the analysis of the employer's medical evidence and the inferences drawn therefrom by Davidson CCJ; and 5. Errors of law in drawing inferences adverse to the worker based upon the judge's observations of him as not suffering great pain, when observed in the witness box. Adverse inferences from an adjournment The complaint made by the first ground of appeal arises from the following passage of Davidson CCJ's reasons. After describing certain of the medical reports and his assessment that the worker's orthopaedic witnesses, especially Drs Ghabrial and Guirgis, had relied on his complaints rather than objective clinical signs, Davidson CCJ made these comments: "Tt is of some significance again that the matter first came on before Judge McGrath on 25 July 1989 but was adjourned on the applicant's application on that occasion at which time of course Dr Isaacs' reports would have been available to the applicant's solicitor." The argument under this heading was that his Honour had erred in attributing any significance whatever to the adjournment of the proceedings before McGrath CCJ. No complaint was made about what McGrath CCJ did. The complaint was concerned with the significance which Davidson CCJ attributed to the adjournment. The record did not disclose the matters which weighed with the worker's legal advisers at the time the application was made. The fact that they considered that the case needed strengthening, as by obtaining further reports from consultant orthopaedic surgeons or a psychiatrist was not relevant to the determination of the existence and extent of incapacity attributable to the admitted work injury. 4 UNREPORTED JUDGMENTS I agree with the submission that little or no significance would seem to attach to the facts and circumstances of the adjournment before McGrath CCJ. Even if it were the case that the adjournment arose from a perceived weakness of the evidence of Dr Isaacs, or the then general state of the worker's case, this would not seem to have warranted conclusions adverse to him. However, in the evaluation of the conflicting medical opinions, it was for Davidson CCJ to seek to resolve the conflicts as best he could from the material before him. The medical witnesses were not called to give oral evidence. The only oral testimony was that of the worker himself. Inevitably, this situation left the tribunal of fact in a position of disadvantage, as this Court has repeatedly said for itself in appeals where a reassessment of damages is necessarily based exclusively upon medical reports not the subject of any oral elaboration. I see no error of law in Davidson CCJ's reference to what occurred before McGrath CCJ. If there was an error, it was one of fact finding. Even this is doubtful. In an extended decision covering thirteen pages, the paragraph objected to under the first ground of appeal comprises five lines. It appears at a point where Davidson CCJ is recounting the chronology of the proceedings. Evidence had been given before his Honour of the circumstances of the adjournment. The appellant conceded that the case had been adjourned because he believed that he had a heart condition which explained his ongoing chest pains. In these circumstances Davidson CCJ's allusion to the adjournment before McGrath CCJ was, if an error, an inconsequential one. Certainly it was not an error of law and thus it does not attract the intervention of this Court. Suggested errors in evaluating the worker's medical evidence The very way in which the second ground of appeal is expressed demonstrates the fact that it raises no error of law. Although that formula is used, the full terms of the paragraph should be noted: "2. The preference which his Honour expressed for the respondent's medical evidence and which his Honour expressly based on the analysis made on the judgment of the applicant's medical evidence, arose from the following errors of law made by his Honour in such analysis of the applicant's medical evidence." There then follow five suggested errors of analysis. However, these suggested errors are all directed to undermining the preference which Davidson CCJ expressed for the respondent's medical evidence. That preference, being one of evaluation, adjudication and judgment in resolving conflicts of fact is precisely the kind of decision which is immune from correction in an appeal such as this for the reasons explained in Azzopardi. An error of analysis in fact finding does not become an error of law simply because it is so described in the notice of appeal. The first itemised ground of complaint is his Honour's reference to Dr Ghabrial's report as being "uncharacteristically short". It was argued that, in this respect, his Honour had taken into account a matter which was not before the court of trial, viz his external knowledge of the ordinary length of Dr Ghabrial's reports. I see no error in the passage complained of. Davidson CCJ is a most experienced judge in a specialist court. He was sitting in Newcastle where, doubtless, he has often taken evidence in compensation cases. I would infer that Dr Ghabrial, as an orthopaedic specialist in Newcastle frequently gives evidence in the Compensation Court. I do not consider that it was impermissible for his Honour to refer to the brevity of Dr Ghabrial's reports. URJ APOSTOLOVSKI v ALLCO STEEL PTY LTD (Kirby P) 5 Indeed, the report looks brief to me too. It covers less than one page and this although Dr Ghabrial has been qualified as an expert to reinforce the opinions of Dr Isaacs. By the standards of expert orthopaedic reports that are frequently seen in this and other courts, the opinion expressed was extremely brief. Whilst brevity may not betoken error, it was open to Davidson CCJ, in evaluating the unexamined medical reports and deriving the preferable conclusion from them to take into account a comparison between the apparently thorough and detailed reports of other specialists (including Dr Isaacs for the worker) and the very short and seemingly superficial report of Dr Ghabrial. Next, it is complained that his Honour referred to the "uncanny likeness" between the findings and opinions expressed by Dr Ghabrial in a report of 18 June 1990, and those expressed in the reports of Dr Guirgis. It was suggested that the likeness was purely the result of the consistency of the complaints of the worker. Again, I see no error of law susceptible to correction in this Court. I do his Honour as suggesting dishonesty or plagiarism on the part of the doctors named. He was seeking, from the cold print of the reports, to derive a conclusion: evaluating the various opinions expressed. He was looking for objective signs which would have supported the worker's continuing complaints of pain. He was obviously unimpressed by Drs Ghabrial and Guirgis reports, at least by comparison with those of Dr Isaacs (for the worker) and Drs Millons and Bodel (for the employer). Dr Millons, by June 1989, was of the opinion that the worker was "totally besotted" by his symptoms and that he was quite fit to return to work without restriction. Dr Bodel considered that a graded reintroduction to work would see the worker restored to his preinjury level of activity within a two to three month period. It was open to Davidson CJJ, in evaluating these opinions against those expressed by the worker's doctors, to take into account the content of the several reports before him. The error in the way he did this, if any, is purely one of fact finding. It involves no error of law. Next it was said that Davidson CCJ erred in drawing an adverse inference from the format of Dr Guirgis' report in that, without Dr Guirgis being cross examined to support the suggestion, he concluded that the report was merely an endeavour to give an explanation for the worker's ongoing symptomatology in the most scientific way, rather than to provide an objective clinical diagnosis. It is true that one can infer that Davidson CCJ was unimpressed by the expression by Dr Guirgis of the worker's symptoms. But his essential conclusion was that that expression ultimately rested on the doctor's acceptance of the worker's complaints rather than upon any objective clinical findings recorded in the report. Far from being a matter from complaint, I consider that this was a correct approach to the evaluation and comparison of the competing medical opinions expressed in the reports which were tendered. Again, I see no error of law. Then it was complained that his Honour had erred in suggesting that Dr Isaacs ought to have been "more forthcoming" in his opinion. This too involved no error of law. Again, it was the exposed evaluation by a trial judge of his reasons for preferring the opinions in the reports tendered by the employer. Finally, under this ground of appeal, the worker complained that Davidson CCJ erred in drawing an adverse inference by treating the report of Dr Issacs of 16 June 1989 as merely involving that doctor in accepting the worker's claims. The report referred to states: 6 UNREPORTED JUDGMENTS "T am unable to confirm his symptoms with my findings... In view of his symptoms I feel he will not be able to take up any job..." The comment complained of is his Honour's observation: "The doctor took the course of merely accepting the applicant's claim." I believe that his Honour's comment fairly arose from Dr Isaac's opinion. But even if it did not, an error in so concluding would not amount to an error of law which this Court could correct. Allegedly mutually incompatible conclusion The third ground contended was that Davidson CCJ erred on the face of his reasons in concluding, at different points in his reasons, that the worker's injury was "not severe" and "quite severe". This is not an error of law. In the former comment, his Honour was referring to the injury as it had affected the worker since it occurred. In the latter comment he appears to be referring to the trauma at the time of the blow to the worker's stomach. The complaint is a minor one in any case and involves no error of law. Alleged errors in analysing the employer's medical evidence There follow, in the fourth ground of appeal, a number of suggested errors of law on the part of Davidson CCJ in "deriving meaning and drawing inferences from" the employer's medical evidence which "were not reasonably open on a fair reading of that evidence". The complaints involve the description of the prognosis contained in Dr Bodel's reports; an alleged error in paraphrasing the opinion of Dr Bodel; and a suggested misconception of the opinions expressed by Drs Millons and Bodel in follow up reports. I do not consider that it is necessary to examine each of these complaints in detail. They are in the same category as the complaints about the conclusions and inferences which Davidson CCJ was said to have derived from the worker's medical evidence. These are complaints about fact finding. There was certainly evidence on the basis of which his Honour could draw the conclusions which he did. Because the appeal is limited, relevantly, to a point of law, a complaint that his Honour drew the wrong conclusions or even misunderstood the facts proved would not amount to an error of law in the sense explained in Azzopardi. In saying this, I do not accept that Davidson CCJ did err in the ways complained in the fourth ground of appeal. But in this Court it is enough to say that any such error is not susceptible to our correction. Observations of pain and suffering The fifth ground of appeal was that Davidson CCJ erred in drawing inferences adverse to the worker's case based upon his own observations of the worker that: "\.. he was not a man suffering great pain nor one who was exhibiting any signs of anxiety or depression." It is frequently the case, where disputed issues of fact must be resolved, that a trial judge will come to his or her conclusions upon the basis of impressions made by a litigant or a witness. So much is virtually inherent in the public oral trial which is central to the administration of justice in this country. In a sense, the judge, reaching a conclusion on the impression of witnesses, is expressing for the community the resolution of a conflict of fact which is often not susceptible to scientific proof one way or the other. In many such conflicts it is necessary for the decision maker to choose. Somebody must do so. In our society, in cases such as the present, that obligation falls upon a judge. URJ APOSTOLOVSKI v ALLCO STEEL PTY LTD (Kirby P) 7 There was a conflict of evidence in the present case. The worker complained of continuing pain and disability. There was some evidence to support him. But there was also evidence against him. Such evidence was contained in medical reports which had to be judged by Davidson CCJ without the benefit of oral elaboration. One very important ingredient in the case was the truthfulness of the worker. Because the objective signs were either so few or absent and not such as to explain and justify the worker's complaints according to an established pattern of medical knowledge, much depended upon whether the worker was, or was not, accepted as a witness truthful about his complaints of unrelieved pain. The judge could have resolved the onus of proof. Or he could have resolved it by reference to the impression which the worker made upon him as a truthful person. Wisely, in my view, Davidson CCJ resorted to neither of these expedients. He endeavoured to apply reason to the conflicting opinions. He limited his expressed view about the worker's impression upon him to the following passage: "So far as the psychiatric evidence is concerned I prefer that of Dr Revai. I do not believe that there is any genuine functional overlay in this case which gives rise to the approach that Dr Lambeth takes. I had the opportunity of observing the applicant in the witness box for a relatively long period, over the two days in which his evidence extended. My opinion of him was that he was not a man suffering great pain nor one who was exhibiting any signs of anxiety or depression. Aided by my own observations of him and an assessment of all the evidence in the case, I prefer the view of Dr Revai to those of Dr Lambeth." I see no error in this passage; certainly no error of law which this Court can correct. By conventional theory, it is open to a judge to evaluate witnesses, such as the worker, by the impression which they make upon the judge in the courtroom. Such impressions, even if subtle and unexpressed, immure the conclusions which are derived by the judge from correction in this Court where the Court has jurisdiction to reverse findings of fact. See Abalos v Australian Postal Commission (1990) 171 CLR 167, 178f. Even more limited is the power of this Court to correct suggested error where its jurisdiction is limited to correcting errors of law. No error of procedural fairness occurred in the course which Davidson CCJ adopted in taking into account the impression which the worker's appearance made upon him. Cf Government Insurance Office of New South Wales v Bailey, Court of Appeal, unreported, 25 May 1992; (1992) NSWJB 54. The transcript shows that on 26 March 1991 the worker was extensively cross-examined about his complaints of continuing pain: "Q: You have told every doctor that you have seen, that you are in excruciating pain? OBJECTION BY MR KEARNEY - QUESTION WITHDRAWN. Q: Are you in excruciating pain today? A: That's why I am trying to support myself and to press onto tho chair here to give me support. It may be better for me to get out, to put - to go and put my corset on to be able to sit freely. Q: You are in very, very bad pain now are you not? A: These are not very bad - this is not very bad pain. I have worse pain than this. Q: Are you in no pain at the moment? A: I do. That's why I'm supporting myself onto this behind, I've got pain and I've also got to respond. Q: Simply sitting on this chair gives you pain does it not? A: I was sitting outside too. I had pain before and now I've got to support myself here, because I've got pain on this side here but the pain is not that bad. 8 UNREPORTED JUDGMENTS Q: Is it worse than what it was this morning? A: The pain is not - over there I was sitting in a different position, here I'm sitting in a different position. Q: Is the pain the same or is it worse than what it was this morning? A: Outside Thad a stronger pain before coming into the Court, now I can manage that pain with support." It is clear from the foregoing passage that the extent and level of the worker's pain in the courtroom was put to him directly in a way which provided him with the opportunity to put his own evidence forward concerning it. He did so. I do not read Davidson CCJ's comment as indicating an attempt to act as a sleuth or detective (as it was put) or to evaluate the worker's pain levels precisely from the unnatural circumstances of the witness box. But the case of the worker was that, if his disability was not founded in a physiological cause, it resulted from psychological causes, functional overlay and depression. It was therefore appropriate, to resolve the conflicting medical opinions, for the judge to form his own view. This he did. He gave voice to the conclusion which he reached. It was a conclusion wholly conventional in its expression. It was recorded in reasons which did not fall into the old assumption that judges have a magic capacity to evaluate persons from their appearance as witnesses. It merely expressed this experienced judge's opinion based upon an extended observation of the worker as a witness. I see in the opinion expressed. But even if there were error, like all the others, it would be an error of fact finding. It involved no error of law. It is therefore not available in an appeal to this Court limited to grievances in point of law. Conclusion and orders The result is that none of the grounds of appeal, although expressed as complaints about errors of law, present any such error to this Court. No error of law having been shown, this Court has no authority in law to interfere in the decision which Davidson CCJ reached or in the award which gave effect to that decision. The result must be that the appeal should be dismissed with costs. Handley JA I agree with Kirby P. Cripps JA I agree with the reasons and conclusions of Kirby P. ORDERS Appeal dismissed with costs. Counsel for Appellant: B J Gross QC/ J Kearney Solicitors for Appellant: Moroney Rutter and Mantach Counsel for Respondent:J N Gleeson QC/ P Morris Solicitors for Respondent: Moray and Agnew