FELTHAM v ST VINCENT'S PUBLIC HOSPITAL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY and SHELLER JJA 8 June 1993 and 31 August 1993, 1 October 1993 [1993] NSWCA 95 EVIDENCE — estoppel — previous determination of issue between parties — worker injured at work claims compensation — determination of Compensation Court as to injury, necessity of surgery and continuing incapacity — subsequent damages claim — whether employer estopped from denying matters found in Compensation Court — held: The trial judge erred in declining to give the worker leave to file a reply relying upon the estoppel. JUDGES — bias — fair procedure — excessive interference — allegation that trial judge interfered excessively in questioning of witnesses on issue that should have been determined by estoppel — whether ground for retrial — held: Whether or not there was excessive interference a retrial should not be granted. (By the Court): Because the trial judge was right to find that there was no negligence; (By Sheller JA): Additionally, because counsel for the appellant did not record his objection in a timely way to the alleged excessive interference and any miscarriage did not affect the outcome of the trial. NEGLIGENCE — employer's liability — injury to worker in use of compactus — movement of compactus against worker's hand — no previous such injuries — no previous complaints — judge excludes movement of compactus as caused by a lack of cleanliness — held: The judge was right to dismiss the claim of negligence as no want of care on the part of the employer was shown. Lombardo v Stuart Bros Pty Ltd (1967) 68 SR (NSW) 159 (CA) and Egri v DRG Australia Ltd (1988) 19 NSWLR 600 (CA) applied. Workers' Compensation Act 1926. Kirby P This appeal raises two questions arising from the dismissal by Holland AJ of a claim for damages for personal injuries, brought by Ms Sharon Feltham (the appellant) against St Vincent's Public Hospital (the respondent). An erroneous decision on estoppels The first issue is whether Holland AJ erred, in circumstances following earlier proceedings between the parties in the Compensation Court, in declining to uphold the right of the appellant to rely upon estoppels arising from the determination of such proceedings. I am in entire agreement with Sheller JA in his analysis of this point. In my view, Holland AJ erred in refusing to permit the appellant to have the benefit of the estoppels pleaded by her in her reply. The reply, which Holland AJ refused to permit the appellant leave to file, pleaded that the respondent was estopped from denying three facts, viz that: (a) On 30 April 1982 [the appellant] in the course of her employment with the respondent suffered injury; (b) The injury was to the ulnar aspect of the left hand and wrist and also a cervical disc prolapse with some nerve root irritation necessitating surgery; and 2 UNREPORTED JUDGMENTS (c) By reason of the injury [the appellant] had been totally unfit for work for [a period] and partially unfit for work thereafter to the date of the determination and continuing. The plea in para(c) may have been disputable cf Egri and Anor v DRG Australia Ltd (1988) 19 NSWLR 600 (CA) 603, 607. But for the reasons which Sheller JA has given, it is my view that the appellant was certainly entitled to rely upon the estoppels arising from the decision of the Compensation Court on issues (a) and (b). She would also be entitled to rely upon an estoppel, by reason of the injury found, that she had suffered prolonged unfitness for work, so far as this was relevant to an issue in her damages claim against the respondent. These estoppels related to the determination of the nature, extent and duration of the appellant's injury and disabilities consequential on the injury. They were therefore relevant to the determination of the damages to which she was entitled, if she could show negligence on the part of the respondent. At the trial, the respondent's defence to the appellant's claim for damages was not that her claim was fraudulent; that she had suffered no injury at all on 30 April 1982; or that the injury had not involved her left hand and wrist. It was scarcely open to the respondent to dispute any of these facts. They were well recorded. The appellant had received some treatment at the hospital. She had also been paid compensation by the respondent in respect of the injury. Instead, the appellant's claim against the respondent was dismissed upon the footing that the appellant had failed to prove that the respondent was negligent. This involved an elucidation of the precise mechanism by which the appellant was injured; the determination of whether the risk of an injury so happening was reasonably foreseeable in the circumstances; and a decision as to whether the respondent was negligent in failing to take precautions against the risk of such an injury, if the same were held to be reasonably foreseeable on the part of the employer. Upon none of these questions would the estoppels, for the benefit of which the appellant was denied, have assisted her case in proving negligence. To that extent, the refusal of leave to file the reply, although evidencing error, occasioned no miscarriage of justice requiring a retrial, provided the determination of Holland AJ on negligence stands. The plaintiff complains of an unfair trial This brings me to the second point in the appeal. This was put variously as a complaint that the trial miscarried because of the conduct of it by Holland AJ or that such conduct had occasioned procedural unfairness to the appellant or was such as to produce, in the eyes of a reasonable and impartial observer, an apprehension of bias against the appellant on his Honour's part. In this regard, the appellant called in aid the erroneous determination by Holland of AJ what was claimed to be a simple and straight forward entitlement of the appellant to the benefit of estoppels based on her Compensation Court award. Also relied on was the large number of questions asked by Holland AJ concerning his doubts about the link between alleged incapacity and her work injury. These questions were directed both to the appellant herself and to her medical witnesses. The appellant's case was that, had his Honour simply accepted the estoppels which clearly stood in the way of this line of interrogation, he would have avoided, the level of suspicion and apparent antipathy to her cause which infected the trial and deprived it of the reality and appearance of fairness which is every litigant's right in the court in this State. URJ FELTHAM v ST VINCENT'S PUBLIC HOSPITAL (Kirby P) 3 I have some sympathy for the appellant's complaint. His Honour's ruling on the application to file a reply raising the estoppels, together with his comments and extended questions, do suggest a much more active role in the proceedings on the part of the judge than is conventional. They also suggest a degree of suspicion on his Honour's part concerning an issue which the appellant, and those advising her, were reasonably entitled to assume had been decided in the appellants favour in the Compensation Court and would not be relitigated by proceedings in the Supreme Court. They could reasonably have been excused for thinking that these issues would not be relitigated in the proceedings in the Supreme Court. The refusal of an adjournment following his Honour's ruling on the estoppels adverse to the appellant, would undoubtedly have put the appellant's advisers on the wrong foot, as they were forced into litigating an issue, which, they had not expected they would be obliged to meet. The appellant suggested that these considerations were enough to entitle her to a re trial of her action in defence of the right to a manifestly fair proceeding. The defendant asserts that the unfairness is irrelevant In response to these arguments, the respondents raised four essential arguments: First, it pointed to the fact that, in strict logic, the determination of the application to file a reply, and to rely upon the pleaded estoppels, was relevant only to the damages claim and thus to issues which were not reached if the claim in negligence was rejected. I acknowledge the force of this submission. But I do not under estimate the way in which, by an apparently unfair conduct of the trial, the suspicions and doubts raised in one issue can wash over to affect approaches to another issue. Had Holland AJ determined the estoppel issue as this Court would now hold he ought, he would not have opened up the serious doubts in his mind on the issue of damages. Those doubts may have been logically separate from the determination of the liability of the respondent in negligence. But in the practical forensic circumstances of the trial, the adverse impressions which his Honour obviously gathered on the issue of damages may inescapably have affected his approach to the determination of the issue of liability. Secondly, the respondent pointed out that the trial took place over a seven day hearing and that the number and detail of the questioning by Holland AJ had to be considered in the context of such a proceeding. It took place without a jury. The questions principally objected to and directed especially to Dr Patrick, came towards the end of the cross examination of that witness. He was the fourth and last medical witness called for the appellant at the trial. In these circumstances, it was suggested that the number, nature, timing and tone of the questions asked by Holland AJ represented a permissible use by a judge sitting alone of his privilege to elucidate matters important to him for the purposes of his decision making. Cf Vakauta v Kelly (1989) 167 CLR 568, 575; Galea v Galea (1990) 19 NSWLR 263 (CA) 280f. I acknowledge the entitlement of the Judge (and perhaps the obligation) to expose matters of doubt so that they could be cleared up. But I still have a sense of unease especially about the number, timing and tone of many of the questions put by Holland AJ to the appellant's witnesses. Most of them were (as it happens) upon issues which, in law, were irrelevant and had already been decided between the parties in the Compensation Court. Thirdly, the respondent relied upon the failure of the appellant's then counsel, a most experienced trial advocate, to object to Holland AJ's conduct of the case until virtually its determination. Only at that time did counsel, following the lengthy questioning of Dr Patrick by his Honour, apply to him to disqualify 4 UNREPORTED JUDGMENTS himself. He then did so upon the grounds of his Honour's questioning of Drs Patrick and Strokon. Holland AJ declined to accede to this request. I realise that the authority of the High Court of Australia supports the proposition that a party can, by its conduct of a trail, waive an entitlement to complain on appeal about apprehended bias of the primary decision maker, or procedural unfairness occasioning miscarriage of justice. See Vakauta, above, 586. On the other hand, it is essential that appellate courts, reviewing complaints of this character, should not overlook the very real inhibitions which exist, both upon the parties and their representatives at a trial, to avoid publicly annoying, insulting or challenging, the judge, as by an accusation of apprehended bias. Appellate courts can say as often as they like that such allegations should not be viewed by the judge as personal to the judge in question. See eg Re JRL; ex parte CJL (1986) 161 CLR 342 at 352. But where a party depends upon persuading the mind of that judge to favour its cause, it will be rare indeed that the party will needlessly take the risks of alienation that may be inherent in some cases in an accusation of apprehended bias, ie by making an application that the judge should stand aside. In the present case, there would have been other practical considerations to inhibit such an application until, at a late stage, it became absolutely necessary. These would have included the large costs incurred in running the trial and, what may be inferred as, the modest means of a person such as the appellant to pay those costs. For my part, I am not inclined to attach critical significance to the failure of counsel earlier to object to the course of questioning by Holland AJ. In essence, the objection now voiced to this Court only became apparent in the cumulation of the instances of excessive questioning by the judge. The application was eventually made in this case, that his Honour should disqualify himself upon the ground of apprehended bias. To that extent, the point was clearly put on the record of the trial. It would be to adopt too rigid an approach to this Court's duty of vigilance in respect of miscarriages of justice if it were to hold that excessive judicial interference in the conduct of a trial could not be complained of because no objection was taken to that interference on each occasion when it occurred. At least, where, as here, the objection was ultimately voiced and in the clearest possible terms, I would not take the view that the appellant had waived her right to complain about the unfairness of the trial, including in respect of the earlier conduct which was then allowed to pass. Fourthly, and most critically, the respondent pointed out that the notice of appeal, filed for the appellant, did not dispute the correctness of Holland AJ's factual findings concerning the mechanisms by which the appellant's injury had occurred or his findings of mixed fact and law concerning the reasonable forseeability of such an injury and the lack of any want of care on the part of the respondent in failing to guard against such an injury. Conclusion: the decision on liability was correct It is clear law that departures from the rules of procedural fairness will not occasion a re trial where the appellate court is of the view that such a new trial will inevitably result in the making of the same order as that made by the primary judge at the first trial. See Stead v State Government Insurance Commission (1986) 161 CLR 141, 145. A similar philosophy runs through the jurisprudence upon the ordering of retrials for error in the conduct of the first trial. Retrials are commonly said to be an evil. They certainly involve great disadvantages to URJ FELTHAM v ST VINCENT'S PUBLIC HOSPITAL (Kirby P) 5 parties. They derogate from the principle of finality of litigation to which appellate courts must give weight. See Balenzuela v De Gail and Anor (1959) 101 CLR 226,233. The appellant's case was always rather a weak one on liability. here had never been a similar accident with the compactus upon which she was injured. There had not been prior complaints. There was no evidence that the compactus had earlier "jolted". The compactus was a perfectly ordinary one and a standard example of office equipment. Holland AJ, who had the advantage normally attributed to a trial judge of seeing the appellant, her experts, and the witnesses from the hospital, rejected, as a possible explanation of the jolt, a lack of cleanliness in the vicinity of the compactus, its rails or wheels. He accepted the evidence of the respondent's witnesses that the compactus was comparatively easy to move. And that it was not given to sticking, jamming or jolting. In these circumstances, the most likely explanation of the jamming of the appellant's hand was that she simply made a mistake herself in the way she used this rather conventional piece of equipment. In the absence of any evidence of any earlier like injury to the appellant, or to any other worker, or of complaint or proof that in some way this compactus was defective or outmoded technically, it was unsurprising that Holland AJ should have come to the conclusion that the appellant had failed to prove a breach of the employer's duty of care, either as alleged or otherwise. Bankstown Foundry Proprietary Ltd v Brasstina (1986) 160 CLR 301, 307f. In short, this was a case appropriate for worker's compensation benefits but not for damages for negligence. The risks of an injury happening, even as the appellant described, were infinitesimal. It was completely unreasonable to expect the respondent to have some exceptional means of protecting the appellant against such a rare accident occurring to her. The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40, 47. In my view, the conclusion reached by Holland AJ on the basal issue of liability of the respondent,as employer, to the appellant was impeccable. I see no error in it. I think it was correct. It is the one which I would reach upon the facts proved at the trial relevant to the issue of liability. It is one which I believe a judge, conducting the retrial would be bound to reach. The question then becomes whether this Court, as the guardian of due process at the trial stage in courts of this State, should nonetheless order a re trial of the appellant's action. She has certainly established an error in the ruling on the estoppels. She has also excited my sense of unease about the judge's conduct of the trial. Everyone is entitled to a manifestly impartial judge. That is a basic human right which our common law defends Australian Natural Industries Ltd v Spedley Securities Ltd (In Liq) and Ors (1992) 26 NSWLR 411(CA) 418. I can certainly understand a feeling that on the part of the appellant that her decision was arrived at at the end of a trial which had unsatisfactory features. Nevertheless, despite the established error and the unsatisfactory features, I have concluded that the result reached on the issue of liability was right. It was not affected, in any relevant way, by the error of law concerning the estoppels. The excessive questioning, if any, was overwhelmingly directed to issues of damages. The critical issue of liability was almost wholly untouched by it. Upon that evidence, it has not been shown that Holland AJ erred. Nor do I believe that a reasonable observer would have an apprehension concerning the correctness of the judge's ultimate determination of the issue of liability. Like myself, I consider that such an the observer would conclude that that decision 6 UNREPORTED JUDGMENTS was correct and indeed inevitable, however unsatisfactory were other features of the conduct of the trial and the rulings made on the way to it. Order: appeal dismissed It follows that the appeal must be dismissed. The appellant must bear the respondent's costs. Priestley JA I have had the benefit of reading in draft the reasons of Sheller JA. I agree with his analysis of the issues before the trial judge and his treatment of the two heads of matters which were argued on the appeal. There is nothing I wish to add to what he has said concerning the matters that were argued regarding estoppel as, in my respectful opinion, his discussion and conclusions concerning that matter are precisely correct. In regard to the matters urged concerning miscarriage of the trial. I need to add something for myself. In view of the nature of the complaint concerning the part taken by the trial judge in asking questions of medical witnesses, I read all the relevant transcript as critically as I reasonably could. What I read was quite different from what the grounds of appeal and the submissions had led me to expect. The only part of the submissions which seemed to me to be acceptable was that the trial judge had asked the medical witnesses many questions. The questions did not give me the impression that in asking them the trial judge was doing anything unfair or outside the scope of what is permissible to a judge. Taken as a whole, the questions seemed to me to be asked so the judge could better understand the evidence given by the particular witnesses. The questions did not appear to me to be intended to overbear any witness or to be asked on the basis of some preconception with which the judge was trying to coerce agreement. It may be that some of the questions gave an indication of the way the judge might eventually decide some of the medical questions, but the indications were not of some fixed and unfairly formed view or views, but of possible and provisional ones which any person listening to evidence cannot avoid forming, and, frequently, changing, as the evidence in a case proceeds. Perhaps as a counsel of perfection, it would have been better for the judge to ask fewer questions and to indicate to counsel the matters in the evidence which he wanted to be elucidated so that counsel could do the relevant questioning. On the other hand, perhaps not. It is easy to imagine that overuse of such a technique might likewise lead to protest by the counsel not being invited to ask the questions, on the ground that a partnership was being formed between the judge and opposing counsel. It is really impossible to lay down hard and fast lines defining the extent to which a trial judge may take some part in the conduct of civil trials without juries. Complete silence cannot be a desirable rule, because it is obviously fundamental that a judge should understand the evidence being given in the case, and if the judge does not, the only way of securing understanding is to ask questions either of the witness or counsel. A criterion. although not precise, but nevertheless workable in ordinary experience, is whether what the judge did in the course of the hearing brought about an unfair trial, in which description I include a trial in which to an objective observer the judge appears to be unfairly favouring one side at the expense of the other. On the question whether such unfairness occurred an appellate court can only form an opinion on the materials before it. On those materials it is a matter for the judgment of the appellate court, doing the best it can to create mentally an URJ FELTHAM v ST VINCENT'S PUBLIC HOSPITAL (Sheller JA) 7 accurate picture of what happened at the trial, whether the administration of justice requires that the judgment be set aside and a new trial ordered. On the facts of the present case, it is difficult for me to say more on this question than I have already done, because on my reading of the transcript my reaction is a negative one. That is, I do not see in the transcript any significant traces of the kind of unfairness required to set aside the trial judge's decision. It is for this reason that I agree with Sheller JA on this aspect of the appeal also. (at page 3) Having reached these conclusions it becomes necessary to return to the estoppel point in regard to which I agree with Sheller JA that the trial judge erred and to consider the following further matter. Can it be said that the decision by the trial judge to allow an issue to be re litigated which the defendant was estopped from raising at the trial had an effect on the case which can only be cured by granting a new trial? Undoubtedly there was much questioning of the appellant which, on the view of the law which I share with Sheller JA, should not have been allowed. Some of this may have affected the judge's view of the appellant's credit. It is possible, I suppose, that some of the questions and answers which should not have been before him affected his view of the case generally. Had it been submitted in this court that that had happened and had there been argument directed to the second and third issues, identified by Sheller JA at the commencement of his reasons, and found against the appellant by the trial judge, it is conceivable that there might have been a question of some awkwardness to consider. The question does not however arise in the appeal. First, there was no ground of appeal directed to the second and third issues. Second, although it may have been open to the trial judge to come to a different conclusion on the second and third issues, their decision was in no way directly dependent on his general view of the appellant. There was ample evidence unrelated to any such view upon which it was open to him to decide the second and third issues in the way he did. Third, and in any event, it seems unlikely to me that the evidence concerning the aspect of the case which should not have been before the court because of the estoppel made any significant difference to the trial judge's various conclusions about the two issues. The result is that I agree with Sheller JA's overall conclusions that no ground was shown in the appeal for disturbing the judgment appealed against. In my opinion the appeal should be dismissed with costs. Sheller JA INTRODUCTION The appellant Sharon Frances Feltham sued the respondent St Vincent's Public Hospital in the Common Law Division to recover damages for injuries allegedly suffered on 30 April 1982 while the appellant was employed at the respondent's premises at Victoria Road Darlinghurst. Her statement of claim was filed on 31 January 1986. The appellant alleged that while attempting to move parts of a compactus system her left hand was injured when it was caught and crushed in the compactus. She claimed this was caused by the respondent's negligence. The injuries particularised included crush injuries to the left hand involving nerve damage and injury to the cervical spine and neck. The proceedings were heard by Holland AJ who delivered judgment on liability on 31 August 1990. His Honour identified four issues to be decided: 1. How did the injury occur? 2. Was the risk of its occurring reasonably foreseeable by the defendant? 8 UNREPORTED JUDGMENTS 3. If reasonably foreseeable, did the defendant negligently fail to guard against its occurring? 4. If yes to 3, were her injuries causally related to that negligence? The appellant said that on the day of the accident, while she and a Ms Haynes were carrying out the daily stocktake of items that were stored in the compactus, in order to move it she took hold of a handle on it and commenced to pull it towards her. As she moved forward the compactus moved backwards. She attempted to pull her hand out from the handle, the compactus jolted and her hand would not come out. His Honour could not find any feature of the handle itself that could account for her claim that her hand would not come out or that she caught her hand in the handle. The appellant did not blame the handle itself. She attributed her experience to the movement of the compactus unit as she was pulling it, in particular, to the fact that it jolted. His Honour referred in detail to the appellant's evidence of the occurrence and the "jolting". He remarked that there was no dispute by the respondent that the appellant suffered a hurt to her wrist at the compactus on the day but the question was how. The only admissible evidence put forward in the appellant's case to explain the irregularity of movement was from an expert, Mr Osman, who advanced as a possible explanation lack of cleanliness of the compactus rails or wheels. His Honour was not satisfied that the lack of cleanliness suggested existed at the time of the accident. His Honour concluded that the probabilities favoured the respondent's witness' account of the behaviour of the compactus which was in summary that it was not difficult to move but moved slowly, freely and regularly with no sticking, jamming or jolting. Under the heading of the first issue identified Holland AJ concluded by saying: "I believe that the elaboration of her story by her account in this Court of the way the compactus behaved at the time was probably the product of reconstruction to try and strengthen her story of the mechanics of the event that she claims caused her injury and is of recent origin; but, if so, it fails, in my opinion to achieve the purpose because the elaborated version goes no closer to explaining how her hand got caught or would not come out than her original version. I am not satisfied that the alleged hurt to the plaintiff's wrist and neck occurred in the way she claims. She bears the burden of proving on the balance of probabilities what the injury causing risk was against which the defendant failed to take reasonable steps to protect her and this she has not done." This finding was sufficient to dispose of the appellant's claim and for his Honour to enter judgment for the respondent, as his Honour acknowledged. However he went on to make findings about the other three issues. On the assumption that the appellant did get her hand caught in the handle and that this showed there was a risk of this happening to a user of the compactus while moving it, his Honour was of opinion for reasons given as to the nature of the handle that the risk could not have been reasonably foreseen by the respondent. Even if the risk might have been foreseen by a reasonable employer it might reasonably be regarded as so slight as not to require any steps to guard employees against it. Coming to the third issue his Honour said: "Tn my opinion not only did the plaintiff fail to prove that the defendant did not take reasonable care to guard against the alleged risk, the evidence offered by the defendant proved the reverse. In any event there was no evidence of the presence at any time of the kind of sticky or adhesive substances or entrapable foreign objects that Mr Osman's evidence postulated as liable to cause the malfunction URJ FELTHAM v ST VINCENT'S PUBLIC HOSPITAL (Sheller JA) 9 described by the plaintiff and her witnesses. In my opinion the plaintiff failed to prove the breach of duty alleged or any other." Finally his Honour made some observation about the fourth issue he identified whether the appellant's injuries causally related to the alleged negligence. There was no dispute that the appellant hurt her wrist at the compactus on the day in question. Her wrist and hand were sore and swollen. Her hand was Xrayed and bandaged in the casualty department before she returned to work. She claimed that the catching of her hand in the handle of the compactus caused the pain that made her cry out and eventually led to her requiring an operation on her wrist that disabled her from working at the hospital and ultimately caused her to have two operations to fuse cervical vertebrae. His Honour said: remarkable failure on the plaintiffs part to call witnesses and tender evidence that gives the matter an entirely different perspective." His Honour referred to the evidence of Dr Richard Evans, a specialist in bone metabolism, who impressed him and whose evidence he accepted, of Dr Brian Somerville, and of Dr FJ Harvey. Dr Evans was of opinion that the swelling in the appellant's wrist was a vascular fibrous tumour not related to the injury to her hand. Dr Evans said: "Tt may be that the jerking movement to her hand in 1982 was a minor one, but drew attention to the slowly growing fibrous tumour. Clinically, it was reasonable to link the twisting injury to the development of the lump, but in view of the pathology, there is no possible relationship. " His Honour said: "The evidence of Dr Evans supports a conclusion that because of the underlying pathology of the plaintiff's wrist and the likelihood of some swelling being present before the accident only a minor strain may have been enough to cause the plaintiff to cry out as well as to draw attention to the swelling she described. Minor the effect must have been because she went straight back to work after the wrist was bandaged and carried on for two years before requiring an operation for what would appear to have been a pre existing condition unrelated to the accident. If this were so, the existence of such a condition would be a relevant factor in assessing whether the account given ultimately by the plaintiff of the mechanics of the incident was acceptable or whether it was possibly re constructed, built up and exaggerated, consciously or unconsciously, to account for the severity of the symptoms she long afterwards came to experience. The plaintiffs case seeking to relate her problems in and fusions of the cervical spine in 1986 and 1988 to the incident of 30 April 1982 was put on the basis of a progressive deterioration from that incident through the intermediate stage of trauma to and surgery of the wrist. In my opinion, on the evidence I accept, the two are, on the probabilities, unrelated. If it had been necessary to decide the question I would have preferred the evidence of Drs Evans and Harvey to the doctors relied on by the plaintiff on the issue as to whether the problems of the cervical spine leading to the fusions that were performed by Dr Strokon in 1986 and 1988 were related to the incident of 30 April 1982. In my opinion, on the probabilities, they were not so related. " WORKERS COMPENSATION AWARD On 15 December 1987 the appellant had applied under the Workers Compensation Act 1926 for compensation for alleged total incapacity "from 8 December 1987 to date and continuing" the result of the same injuries particularised in the common law proceedings. She had been paid compensation 10 UNREPORTED JUDGMENTS for the period from the accident to 7 December 1987. On 18 November 1988 Commissioner Ashford made an award for the appellant at the rate of $163.50 per week (as adjusted) from 8 December 1987 to 21 June 1988 pursuant to s9 and from 22 June 1988 to date and continuing pursuant to s11(2). The Commissioner observed that all matters were in issue. In her reasons she set out the appellant's background, the appellant's account of the accident and the medical evidence. She said: "In reviewing the other medical reports tendered I feel it is appropriate to return to the applicant's history of injury and compare her evidence with the histories taken by various Doctors. In doing so I should say that I accept the applicant as a truthful witness who neither sought to embellish nor exaggerate. Indeed there was no challenge to the applicant on credit, and little dispute by the respondent in relation to the injury to her left wrist. The respondent's challenge is to the nexus between the injury described by the applicant and the subsequent neck involvement requiring surgery." Later in her reasons the Commissioner said: "Obviously there is a wide divergence of medical opinion in relation to any nexus between injury and neck pathology. In reaching a conclusion I am persuaded by the medical evidence, in particular that of Dr Teychenne who has considered the possible mechanisms of injury and has formed a conclusion which is logical and related to the history given by the applicant. Indeed, Dr Evans lends some support to acceptance of Dr Teychenne although his final pendulum swings away from the applicant. On the balance of probabilities I am satisfied that the applicant sustained injury to the ulnar aspect of the left hand and wrist and also a cervical disc prolapse with some nerve root irritation necessitating surgery. I accept the opinions of Doctors Strokon, Teychenne and Patrick in preference to those of the respondent's doctors." The Commissioner was satisfied that the appellant was totally unfit as at December 1987 but that as at 21 June 1988 she was fit for some employment. A request in mid 1985 for suitable duties had been refused. This explained the form of the award to which I have referred. COMMON LAW HEARING The respondent's defence is marked as having been filed on 9 May 1990, the day the hearing started. In para5 the respondent pleaded that it did not admit the appellant's alleged loss, injury and damage and in para6 the respondent denied that the appellant's alleged loss, injury and damage was caused by anything done or omitted to be done by the respondent. On 9 May 1990 the appellant sought in court leave to file a reply which in answer to paraS and para6 of the defence pleaded that the following matters had been determined on 18 November 1988 by Commissioner Ashford: "(a) that on 30 April 1982 the Applicant in the course of her employment with the Respondent suffered injury. (b) that the injury was to the ulnar aspect of the left hand and wrist and also a cervical disc prolapse with some nerve root irritation necessitating surgery. (c) that by reason of that injury the Applicant had been totally unfit for work from 8th December 1987 to 21st June 1988 and partially unfit for work thereafter to the date of determination and continuing. " The appellant pleaded that the injury relied upon in the workers' compensation proceedings was the same as that relied upon in the common law proceedings and that in the premises the respondent was estopped from denying the facts set out in para(a), para(b) and para(c) and in particular from relying on para5 and para6 URJ FELTHAM v ST VINCENT'S PUBLIC HOSPITAL (Sheller JA) 11 of its defence. The application to file the reply was by notice of motion. Holland AJ heard argument and in a judgment given on 9 May 1990 granted leave to the appellant to file the reply but dismissed the notice of motion with costs. Since the notice of motion was one seeking leave to file the reply there is a certain illogicality in his Honour's order. However his Honour decided that the respondent was not precluded by estoppel from calling evidence upon the issues referred to in the reply. His Honour gave brief reasons on 9 May 1990 and further reasons, to be read with what he had already said, on 31 August 1990 in a separate judgment not part of his judgment on liability. He dealt with each of the three paragraphs separately. As to para(a) he said it was not a matter in dispute between the parties. Counsel for the respondent indicated at the commencement of the proceedings that there was no real issue that on 30 April 1982 the appellant suffered an injury while she was in the course of her employment with the respondent. As to para(b) his Honour said that the respondent's counsel had indicated that there was no issue as to the appellant's having suffered an injury to her left hand and wrist on the occasion in question. The issue raised was whether she suffered a cervical disc prolapse with some nerve root irritation necessitating surgery in consequence of the incident of 30 April 1982. In his reasons of 9 May 1990 Holland AJ said that, in his opinion, the evidence on which the appellant relied to establish that an estoppel arose with respect to a cervical disc prolapse was insufficient to enable the court to say that an essential condition of the ultimate finding made by the Commissioner was that such an injury was suffered by the appellant. "For reasons which I will give later, it seems to me that it is not possible, or if possible, it is not a reasonable construction to place upon the judgment that was given, that the Commissioner determined that, in order to find total incapacity by the applicant in the proceedings before her, she had to find that there was some nexus between the incident and cervical spine trauma. It would seem to me that if she had that in mind, she failed to say it, and what she did say, in giving her reasons for judgment, on a fair interpretation, would be that she would have arrived at total incapacity in respect of either of the types of injury that this estoppel seeks to depend upon. In brief, as to this aspect of the alleged estoppel, it would seem to me that the plaintiff has simply failed to make out a case that the finding as to a nexus between the incident and spinal injury was an essential ingredient of the ultimate finding at which the Commission arrived." In his further reasons of 31 August 1990 the trial judge quoted the following passage from the judgment of Walsh JA in Lombardo v Stuart Brothers Pty Ltd (1967) 68 SR (NSW) 159 at 162: "For the respondent, Mr Langsworth argued that a 'finding of injury or no injury' is a finding on a fundamental fact. This is correct. But the further argument to the effect that, when an applicant for workers' compensation sets up a case of two or more consequences to him of a happening at work, any finding made as to any of them must be a finding as to a fundamental fact, is an argument which should not be accepted. It may or may not be so. This must depend upon whether the reaching of a conclusion upon it is necessary in order that the Commission may come to a decision upon the case which it has to determine." His Honour also quoted from the judgment of McHugh JA, as he then was, in Egri v DRG Australia Ltd (1988) 19 NSWLR 600 at 603: 12 UNREPORTED JUDGMENTS "However, no estoppel arises concerning evidentiary facts, no matter how fundamental they may have been in the chain of proof or reasoning concerning the decision on an ultimate issue:.. " Before Holland AJ the respondent argued that findings by the Commissioner that the applicant suffered each one of the injuries alleged and that each one caused the incapacity for which the award was made did not make one of those findings essential to the ultimate decision. Holland AJ analysed the Commissioner's reasons and said that the words "I am satisfied that the applicant sustained injury to the ulnar aspect of the left hand and wrist and also a cervical disc prolapse with some nerve root irritation" were consistent with the incapacity on which the award was based being attributed by the Commissioner to each separately or both together. "The Commissioner does not seek to make any distinction between the two kinds of injuries in the manner in which her final conclusion as to the incapacity and its cause is expressed. As I have previously pointed out the Commissioner had previously noted that the plaintiff had originally ceased work in 1984 because of restrictions related to the injury to her hand and wrist which disabled her from resuming her full duties. In my opinion, the Commissioner's reasons do not establish that her conclusion that the plaintiff suffered a cervical disc prolapse was a finding essential to the making of the award and, therefore, on the authorities cited, I hold that the estoppel alleged in para(b) of the reply has not been sustained by the plaintiff." As to para(c) his Honour was of opinion that it depended entirely upon the findings in the Commission of the ultimate issues as to whether or not there was total incapacity or partial incapacity for the purposes of the workers' compensation jurisdiction. He referred to the judgment of Clarke JA in Egri v DRG Australia Ltd at 608 and following, which he said drew a distinction between the nature of the ultimate issues that fall for determination in the compensation jurisdiction, on the one hand, and those that fall for determination by a court of common law in a claim for damages for personal injury, on the other hand. "It would seem to me that what his Honour had to say in that case is clearly applicable to the circumstances under which this present form of estoppel is sought to be raised in the present case." He concluded his preliminary reasons by saying: "T would reject the claim to be entitled to rely upon this kind of estoppel in the present case, simply on the ground that the issues to be determined in the present proceedings are not identical with the issues that were determined in this respect in the workers' compensation proceedings." In his reasons of 31 August 1990 his Honour said that the findings of total and partial incapacity referred to by para(c) were ultimate conclusions and for an estoppel to arise out of those findings the issues with which the common law court was concerned must be identical with the issues on which those conclusions were reached in the Compensation Tribunal. His Honour again referred to the judgment of Clarke JA in Egri's case. He adopted this analysis as to the substantial and significant differences between the jurisdiction being exercised under the Workers Compensation Act and that being exercised in a court of common law in assessing damages for personal injury caused to employee by an employer's negligence. Holland AJ's opinion was that those differences were such as to lead to the conclusion that the identicality of issues requisite for the alleged estoppel to arise did not exist as between the Compensation Court URJ FELTHAM v ST VINCENT'S PUBLIC HOSPITAL (Sheller JA) 13 proceedings and the litigation before him and accordingly the respondent was not estopped in respect of the findings relied on to support para(c). APPEAL The appellant appealed from the decision of Holland AJ and sought to have his judgment of 31 August 1990 on liability set aside and a new trial ordered. The grounds in the notice of appeal were arranged in two groups. The first related to trial miscarriage. The appellant said that his Honour interfered in an impermissible manner in the examination of witnesses, refused to disqualify himself when asked to do so, used medical evidence which had not been put to the appellant's doctors to support a finding against her, gave no reasons for preferring the opinion of the respondent's medico legal witnesses and failed to refer to the appellant's history of gradually developing pain into the neck. The second group related to not allowing the appellant to rely upon the estoppels she raised in her reply. The appellant's written and oral submissions were directed first and foremost to the estoppel argument. The appellant urged that by allowing the respondent to relitigate the causation issue and in particular cross examine the appellant on this issue such unfairness resulted as required that the judgment be set aside and a new trial ordered. Into this part of the argument the appellant introduced a new ground, the failure of the trial judge, after dismissing the appellant's notice of motion, to allow the appellant an adjournment. The appellant submitted that she was caught by surprise and prejudiced by being required to proceed with the trial without an adjournment. This ground faded away when reference to the transcript made it plain that the only adjournment sought, the adjournment which his Honour refused, was one to seek further instructions to appeal the order. I do not understand that the refusal of the adjournment is now pressed as a ground of appeal. Because of the limited basis upon which the adjournment was sought, if it is still pressed, it is, my opinion, entirely without foundation. Because of the trial judge's findings against the appellant on the second and third issues which he identified, either of which defeated the appellant's claim, it is hard to see how error by his Honour on the estoppel question would require that the judgment for the respondent on liability be set aside. However I think it is preferable that I deal with the estoppel question and then consider what flows from my conclusion about it. ISSUE ESTOPPEL It is unnecessary to dwell on the language of para(a), para(b) and para(c). The essential issue to which the estoppel was said to be directed was found in the Commissioner's findings that the occurrence of 30 April 1982 caused the injuries to the appellant's left wrist and neck and rendered her totally and partially unfit. The Commissioner found that the appellant was injured in the course of her employment by the respondent on 30 April 1982. The Commissioner was satisfied that the appellant sustained injury to the ulnar aspect of the left hand and wrist and also a cervical disc prolapse with some nerve root irritation necessitating surgery. I have no doubt that when the Commissioner said this she meant that the appellant sustained these injuries as a result of the occurrence on 30 April 1982. She had said that there was little dispute by the respondent in relation to the injury to the appellant's left wrist but that the respondent's challenge was to the nexus between the injury described by the appellant and the subsequent neck involvement requiring surgery. The Commissioner then made findings about total and partial incapacity. The appellant argued that by 14 UNREPORTED JUDGMENTS application of the principle of estoppel these findings could not be relitigated in the common law proceedings brought by the appellant against the respondent. Putting aside for the moment Holland AJ's findings on foreseeability and the duty of care, his findings about the appellant's injuries were quite different from those of the Commissioner. Holland AJ found that there was a previously existing vascular fibrous tumour which explained the swelling on the appellant's wrist. Thus the wrist injury and what his Honour described as the progressive deterioration from that incident through the intermediate stage of trauma to and surgery of the wrist to fusions of the cervical spine in 1986 and 1988 were not related to the injury of 30 April 1982. His Honour proceeded on the basis that there was no issue as to the appellant's having suffered an injury to her left hand and wrist. But this glossed over what the nature of the injury was. I doubt that the Commissioner would have made the finding she did of total incapacity resulting from the incident of 30 April 1982 if the injury was no more than a minor strain which drew attention to the slowly growing fibrous tumour. Issue estoppel operates to treat an issue of fact or law judicially determined between the parties by a tribunal having jurisdiction as settled once and for all between them if the issue has been distinctly raised and found and if the judgment pronounced necessarily implies its determination as a matter of law. Once that is done, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding may be made by one of the parties against the other Mraz v The Queen (No 2) (1956) 96 CLR 62 at 69 and 70. The application of the principle of estoppel is not confined to the final legal conclusion expressed in the decision but extends to issues necessarily determined or facts necessarily established as the legal foundation or justification of the conclusion; those legally indispensable to the conclusion Blair v Curran (1939) 62 CLR 464 at 531 to 532. At 532 Dixon J, as he then was, said: "Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous." A party's inability to re agitate a particular finding of fact or reopen the determination of a particular issue depends upon the other party's proving the ingredients of the estoppel. If these are proved the consequence may be a complete answer to the other party's claim or defence and may be pleaded as such; Somodaj v Australian Iron and Steel Ltd (1961) SR (NSW) 305. Alternatively the effect may be limited to some facet or facets of the claim for damages. As such it could not be pleaded under the system of pleading in place in New South Wales prior to July 1972; Meskenas v British Paints (Australia) Pty Ltd (1964-5) NSWR 1640 at 1643; see now Ptl5 R13 of the Supreme Court Rules. In Tringali v Stewardson Stubbs and Collett Ltd (1966) 66 SR (NSW) 335 the Full Court held that there was an issue estoppel on the question whether the plaintiff had received the particular injury, even though that issue did not go to the whole cause of action; see Lombardo's case per Jacobs JA at 165. The plaintiff in the course of his employment had met with an injury to his right knee on two occasions, one in April 1962 and one in September 1962. On his claim for compensation the Workers Compensation Commission held that he had failed to show there was any substantial incapacity resulting from these injuries after 11 October 1963. In subsequent proceedings at common law to recover damages for negligence and for statutory breaches the trial judge granted a stay of proceedings until an undertaking was given by the plaintiff to limit his action in accordance with the finding of injury by the Commission. The estoppel was relied upon to URJ FELTHAM v ST VINCENT'S PUBLIC HOSPITAL (Sheller JA) 15 prevent the plaintiffs claiming any damages from the defendant resulting from the September incident for a period extending beyond 11 October 1963, that is to say during the period when the Commission had held that the injuries had not resulted in incapacity. On appeal the Court held that the condition of the plaintiff's knee was an essential fact at issue and decided between the parties in the Commission. If the issue so decided was a relevant matter in the subsequent action at law it might in appropriate circumstances be either pleaded or proved in evidence in the action. The defendant was entitled to rely upon the issue estoppel arising out of the proceedings before the Commission although it could not plead it since it did not go to defeat the entire cause of action but only to a portion of the damages claimed. At 342 in their joint judgment the Court said: "Ordinarily, therefore, the matter of the estoppel would be raised during the course of the trial as an evidentiary question (see Somodaj v Australian Iron and Steel Ltd (No 2) (1961) 79 WN (NSW) 837 at 838 and 846)". At 347 their Honours remarked that the proper forum, in general, for considering not only the nature but the extent of an issue estoppel is the trial of the action. Their Honours commented that the conclusion about incapacity was not relevant to some facets of damages known to the common law and not involved in an award in favour of an employer on the ground that incapacity no longer existed and said at 347: "The nature and extent of issue estoppel in respect of these types of damages, eg such matters as recurrence of an aggravation found by the Commission to have ceased by a particular date, was not fully explored before us and, apart from stating that in our opinion cases can occur when it will be correct to admit evidence at the trial on such matters, it is unnecessary and undesirable for us in this judgment to attempt to define them. " The facts in Lombardo's case are distinguishable from those in the present case. The judge in the Workers Compensation Commission had found that there was a heart injury which, coupled with other injuries and conditions, totally incapacitated the applicant and that total incapacity continued up to the date of hearing. He went on to say that he did not think the applicant had established "that the results of an infarction in October result from his injury". Because of his findings of total incapacity it was unnecessary for the judge to decide whether a coronary occlusion which occurred on 3 October 1962 was causally related to the work place accident. As Jacobs JA said at 165: "Tt became unnecessary for the Workers' Compensation Commission to find that the infarction was brought about by the injury once it found that a heart condition arose from the injury and was thereafter continuous beyond the October date and up to the date of the hearing before the Workers' Compensation Commission. The issue before the Commission was the nature of the injury, not its sequelae. " Thus his Honour was able to say that the judge's statement that he did not think the applicant had established "that the results of an infarction in October result from his injury" was not legally indispensable to any expressed conclusion of the Commission. This factual background explains the passage in the judgment of Walsh JA at 162 quoted by Holland AJ and earlier in this judgment. Walsh JA referred to the finding that the injury received in the course of employment with the respondent resulted in the applicant's total incapacity "such incapacity being due to a cardiac condition, an elbow condition and a functional condition, each of which conditions was caused by the said injury" and then said at 162: 16 UNREPORTED JUDGMENTS "Tt could perhaps be suggested that the only critical findings in that paragraph are (1) that the applicant received 'injury' arising out of and in the course of his employment; and (2) that the 'injury' resulted in total incapacity; and that strictly it was unnecessary to the the decision to go further than that, with the consequence that the further statements of the incapacity was due to a cardiac condition, an elbow condition and a functional condition and that each of those conditions was 'caused by the said injury' were not fundamental. If that were correct, then the present appellant would not have been entitled to claim, as he did at the trial, that the respondent was estopped from asserting that there was no causal relationship between the 'cardiac condition' and the happening at work. But, in my opinion, this is not correct. It is clear that in the formal award the word 'injury' is not being used to refer to each of the different 'conditions' mentioned but is used in a general sense to refer to all damage suffered by the applicant in an incident at work." As his Honour explained it was not enough in the Commission for the applicant to show that he had had some injury at work and that at the time of the hearing he was totally incapacitated. It was necessary to show a causal relationship between his physical incapacity and the incident at work. The judge in the Commission had said that he thought the incapacity stemmed from three different causes. At 163 Walsh JA said: "But he did not find that, at the time of the hearing, the elbow condition by itself was totally incapacitating. If he had found that, then it might be said that any finding about a 'cardiac condition' was unnecessary to the decision. But later in his reasons the learned judge said: I do not think he has established that the results of an infarction in October result from his injury but he does establish that there is some change in his heart as a result of the fall which brings about angina, and that is the result of the injury. I think that is his incapacitating condition'." Walsh JA having examined the judgment said that it appeared that the findings concerning a "heart condition" or a "cardiac condition" were essential elements in the finding of total incapacity but the negative finding as to the infarction in October was not; compare per McHugh JA in Egri's case at 604G. "The result is that there was an estoppel against the respondent in relation to the former findings, but no estoppel against the appellant in relation to the latter finding." (163) In Egri's case the question was whether a plaintiff in common law proceedings was estopped from asserting that in the course of his employment he suffered a disc lesion. On his application for workers compensation the judge in the Workers Compensation Commission had said that the main issue before him revolved around the question of whether the worker was still suffering disability and incapacity because of low back trouble. His Honour not being satisfied that the theory of the disc lesion had been established the particular period of incapacity could not be supported. The distinction between that case and Lombardo's case was said by McHugh JA at 605 to be that in Lombardo's case the decision as to whether there was an infarction in October formed no part of the reasoning process as to whether the worker had sustained either an injury or total capacity. Quite clearly in Egri's case the injury to the back did form part of the reasoning process. At 608 Clarke JA stressed the importance, leaving aside the question of essentiality, of the parties' joining issue on the question of the existence of the disc lesion so that a finding either way would have been sufficient in principle to sustain the estoppel relied upon. In the present case the parties clearly joined issue on whether or not the injury caused the neck problem. URJ FELTHAM v ST VINCENT'S PUBLIC HOSPITAL (Sheller JA) 17 If the Commissioner had found the levels of incapacity for the periods she did and found the incapacity was caused by injury to the appellant's wrist on 30 April 1982 a separate finding by her that she was satisfied or not satisfied that the incident had caused the appellant's neck problem would not have estopped either party from re agitating in the common law proceedings the issue of whether the incident caused the neck injury and the consequences thereof. But the Commissioner's findings seem to me to require the conclusion, consistent with Lombardo's case, that the respondent was estopped from asserting that the incident on 30 April 1982 did not cause the wrist and neck injuries alleged by the appellant. With the greatest respect I do not think it appropriate to speculate upon whether the Commissioner might have found total incapacity on the basis of the wrist injury alone. The fact is that she did not. She did not find the wrist injury was totally incapacitating. In the language of Walsh JA the findings both as to wrist and neck were essential elements in the finding of incapacity. To use the language of Dixon J in Blair v Curran at 531 the Commissioner's determination directly involved the issue of whether the incident caused the wrist and neck injuries. The Commissioner's finding that the occurrence did cause these injuries was the justification for her conclusion. In my opinion the appellant should have been permitted to raise and rely upon an estoppel which prevented the respondent alleging that the 30 April 1982 incident did not cause a cervical disc prolapse with some nerve root irritation necessitating surgery. The consequence of the Commissioner's finding that for the periods mentioned the appellant was totally or partially unfit is more difficult to determine. The connotation of the word "incapacity" as used in workers' compensation legislation is a special one which has been discussed and explained in cases concerned with claims under that legislation; Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171. Like Clarke JA in Egri's case I have difficulty in seeing the relevance of a finding in the Commission of incapacity to subsequent proceedings between the same parties to recover damages for negligence. It seems to have been accepted in Tringali's case that a finding that injury did not cause incapacity could be relevant. However the court was careful to say that the extent of operation of any estoppel had to be measured against the evidence as it emerged. In the present case this part of the Commissioner's determination was not much relied upon by the appellant. If the trial had proceeded on the basis that the respondent could not deny that the incident of 30 April 1982 had caused the cervical disc prolapse with some nerve root irritation necessitating surgery the question of what damages were recoverable would seem to me to have remained at large. In Egri's case at 609 Clarke JA said: "Furthermore ultimate findings of the Compensation Court, notwithstanding that they are essential to the award, may well be irrelevant to the issues in a common law claim for damages between the same parties. For instance, a finding that a worker was partially incapacitated within the meaning of the Workers' Compensation Act, during a specified period, would arguably not require that in later proceedings a tribunal of fact, be it judge or jury, assess damages for impairment of earning capacity in the past upon some restricted basis. Questions of partial or total incapacity under the Workers' Compensation Act are not in strictness in issue in damages proceedings. It is no doubt relevant in both cases to show that a plaintiff suffers from a disability or has lost some work capacity but in an assessment of damages the issues are whether his earning capacity has been impaired and, if so, what sum affords adequate compensation for the loss 18 UNREPORTED JUDGMENTS which that impairment has caused him. These issues require a consideration of many factors including the degree of disability, the worker's industrial background and education, mitigation of damages including attempts to obtain work and the state of the labour market generally. " If in this matter I thought it appropriate that a new trial should be ordered I would be inclined to leave to the judge hearing the matter the question of whether particular evidence led or cross examination by the respondent was inconsistent with the Commissioner's findings of unfitness. In this sense I do not agree with the global conclusion of Holland AJ that because the workers' compensation proceedings and the common law proceedings did not raise identical issues the respondent could not be estopped in respect of the finding set out in para(c). I remain sceptical about whether such findings could ever be relevant and therefore about their significance if the matter were to be reheard. ALLEGED MISCARRIAGE OF TRIAL Holland AJ said in his reasons for judgment on liability that the appellant's case seeking to relate her problems in and the fusions of the cervical spine in 1986 and 1988 to the incident of 30 April 1982 was put on the basis of a progressive deterioration from that incident through the intermediate stage of trauma to and surgery of the wrist. "In my opinion, on the evidence I accept, the two are, on the probabilities, unrelated." If the judgment in favour of the respondent had depended exclusively on this finding, the appellant would, in my opinion, have been entitled to have it set aside and a new trial ordered. It did not depend on this finding. Indeed his Honour did not have to decide this question. If his Honour's decision not to allow the appellant to rely upon estoppel had meant that the appellant's credit was challenged in ways which, had the estoppel been allowed to operate, would not have been available to the respondent and if the non acceptance of her evidence was the reason or substantially the reason for the judgment in favour of the respondent this may have been a ground for setting it aside. The appellant argued that the issue about how the injury occurred was related to causation. However the question of whether the respondent was negligent was an issue not touched by the estoppel. His Honour said that he was not satisfied that the alleged hurt to the appellant's wrist and neck occurred in the way she claimed. "She bears the burden of proving on the balance of probabilities what the injury causing risk was against which the defendant failed to take reasonable steps to protect her and this she has not done." I am not persuaded that this finding was in any way affected by his Honour's refusal to allow the appellant to rely upon the estoppel. The cross examination of the appellant might have been more limited; but his Honour's conclusion did not depend upon some general view of her credit but upon her evidence and the respondent's evidence about the incident itself. His Honour concluded that the probabilities favoured the evidence of the respondent's witnesses and led him to prefer their account of the behaviour of the compactus at the time of the accident. Quite apart from this the issues of foreseeability and duty found against the appellant did not depend at all upon her credit and had nothing to do with the issues to which the estoppel was directed. The findings unfavourable to the appellant on these issues were made on the assumption that the incident was as the appellant described it. These findings were not challenged. Faced with the trial judge's findings on foreseeability and the duty of the respondent to guard against the occurrence, the appellant turned to some of the other matters raised in the notice of appeal and argued that the trial had miscarried not only because of challenges made to the appellant's evidence about URJ FELTHAM v ST VINCENT'S PUBLIC HOSPITAL (Sheller JA) 19 the incident and causation but also because of what was said to be the trial judge's excessive interference in the conduct of the trial. The particular interference was said to be the questioning of witnesses, particularly medical witnesses. We were referred to Galea v Galea (1990) 19 NSWLR 263, Vakauta v Kelly (1989) 167 CLR 568 and Aardvark Security Services Pty Ltd v Ruszkowski (unreported) Court of Appeal 19 March 1993. The respondent submitted that there was nothing in his Honour's questioning of the expert witnesses which involved any basis for the parties or the public entertaining a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved, see per Dawson J in Vakauta v Kelly at 575. I refer to some particular passages in the transcript which illustrate the nature of the complaint made by the appellant. In her evidence in chief the appellant had said that when she went to pull her hand out from the handle the compactus jolted and her hand would not come out. During her cross examination by the respondent's counsel his Honour directed thirteen questions to her about her use of the word "jolt". He was seeking to find out what she meant and what she had experienced. No objection was taken to any of this. Later in the cross examination his Honour directed a number of questions to the appellant about her physical capacity to do work and payments she was making to a housekeeper. No objection was taken. In re examination his Honour asked for details about the complaints about the compactus and again about its jerkiness. No objection was taken. The appellant called Dr Andrew Strokon, a surgeon, who had performed two operations to fuse the appellant's cervical spine at C4/5 and C6/7 on 5 May 1986 and 1 February 1988. In the course of Dr Strokon's evidence in chief his Honour asked a number of questions designed to explain passages in his reports. No objection was taken. Then a little further into the examination in chief his Honour asked some sixteen questions directed to the cause of the condition leading to the operations. One such question was: "Q. You may be aware, I suppose you are, that the question for the court in this case is whether the injury she had back in 1982 at which time the only relevant symptoms were pain experienced in her wrist and she seeks to relate the cause of her operation to C6 and C7, to that original injury? A. I see the problem." The questions produced some rather diffuse answers. The appellant called Dr Patrick, a consultant surgeon. During his cross examination he was asked by counsel for the respondent: "Q. Of the various matters that you took into account in coming to the view that you did, namely that the neck injury was related to the accident; is it fair to say that age was the factor which you regarded as most significant?" This produced an answer which occupies about a page and a half of the transcript and was followed by some eleven questions from the trial judge directed to causation. At the end of these for the first time counsel for the appellant objected on the basis that the trial judge was taking too large a part in the proceeding and asked that the trial judge disqualify himself because, it was said, the questioning was directed not to neutral questions asking for a neutral answer but directed towards a certain answer "which your Honour seems to be seeking". Counsel also asked to be taken into account what he described as his Honour's cross examination of Dr Strokon. Holland AJ rejected these submissions. Iam conscious of what has been said in the cases about the undesirability of judges interfering too much in the examination of witnesses. The present case was unusual. The appellant claimed that she had caught her hand in a manner not 20 UNREPORTED JUDGMENTS easily explicable and claimed that the incident caused a neck injury which did not manifest itself for two years. Having carefully read those parts of the transcript about which complaint is made and having gone through the whole of the transcript I do not regard his Honour's intervention as in any way improper or inappropriate. It is I think significant that no complaint was made by the appellant's counsel until late in the day. CONCLUSION In my opinion his Honour wrongly refused to allow the appellant to rely upon estoppel to the extent that that prevented the respondent's denying that the appellant was injured at the work site on the day in question, that that injury resulted in the wrist and neck problems of which the appellant complained and, if in any respect it was shown to be relevant, that this resulted in total or partial unfitness during the periods found by the Commissioner. No doubt if the trial had proceeded on the basis that it was not open to the respondent to deny these parts of the appellant's case evidence would have emerged differently and some at least of the medical evidence would not have been called. The fact remains that the estoppel would not have affected his Honour's findings, adverse to the appellant, on how the accident occurred, on foreseeability, and on the respondent's duty of care. Even if the estoppel had been relied upon it seems to me inevitable that the plaintiff would have been called to give evidence about the circumstances of the accident so as to prove negligence and the respondent would have been entitled to cross examine her about that incident. Part of the case that the appellant set out to prove was that the compactus jolted. Clearly and understandably his Honour did not believe the appellant on this. Her account was quite different from that she gave to the Commissioner. His Honour found for the respondent on foreseeability and the duty of care and these findings had nothing to do with the matters the subject of estoppel or with the appellant's credit. Accordingly in my opinion no ground has been shown for disturbing his Honour's judgment on liability or for upholding the appeal. In my opinion the appeal should be dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: J Poulos QC / JM Curran Solicitors for the Appellant: Pope and Spence Counsel for the Respondent (on 8.6.93): V Bruce QC / AC Bridge / AS Kostopoulos Counsel for the Respondent (on 31.8.93): AC Bridge Solicitors for the Respondent: Government Insurance Office of New South Wales