LEES v BLUE CIRCLE SOUTHERN CEMENT LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MEAGHER and Cripps JJA 19 February 1993, 7 April 1993 [1993] NSWCA 158 WORKERS' COMPENSATION — impairment of back — award of lump sum under s66 Workers Compensation Act 1987 — proper steps in calculation of award — necessity to determine reasonable proportionality of the case to "a most extreme case" — judge orders lump sum of $3,000 — sum awarded amounts to 6.07% of maximum provided for "a most extreme case' — whether judge sufficiently determined relationship of proportionality having regard to sum allowed WORKERS' COMPENSATION — award — lump sum for permanent impairment of back — suggested errors of fact finding — whether worker exaggerated claims — whether clinical examination by medical practitioner consistent with conclusion of embellishment or exaggeration JUDGES — procedural fairness — impression of party's demeanour — obligation to call impression to notice of parties or representatives — whether sufficiently done by judge Held: (Meagher JA, Cripps JA concurring; Kirby P dissenting): No error was shown which requires correction. Award confirmed. Offset Printing Pty Ltd v Porteus, Court of Appeal, unreported, 30 October 1992 referred to; Jones Bros Bus Company Pty Ltd v Baker (1992) 26 NSWLR 322 (CA) applied. Held: (Meagher JA, Cripps JA concurring; Kirby P dissenting): It was open to the judge, upon the clinical examination (as distinct from the opinion) of the medical practitioner to conclude that the worker was fabricating although the medical practitioner found no evidence of embellishment or exaggeration - other suggested errors of fact finding rejected (by maj). Held: (by the Court): Adequate notice was given by the judge of the impression that the party was exaggerating and was not significantly impaired. Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 (CA); Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 (CA) considered. Workers Compensation Act 1987, s66. ORDERS Appeal dismissed with Costs. Kirby P This appeal from the Compensation Court of New South Wales (O' Toole CCJ) raises three points. The first concerns a complaint by Mr Phillip Lees (the worker) that a procedural unfairness occurred in the way in which the trial judge used her observations of him in the courtroom in coming to her conclusion on his claim for workers' compensation benefits. The second concerns various factual errors in her Honour's reasons which are said to undermine the correctness of her conclusions and, hence, of the award resting upon them. The third concerns the approach which her Honour took to the assessment of compensation payable to the worker under s66 of the Workers Compensation Act 1987 (the Act). 2 UNREPORTED JUDGMENTS Suggested failure to disclose judicial observations The first complaint was not originally raised in the Notice of Appeal. When the hearing of the appeal commenced, application was made to add a ground of appeal raising the point that her Honour had erred "in reliance upon her... observations of the appellant's movements and presentation in the courtroom during the proceedings in circumstances in which procedural unfairness resulted... those matters not having been drawn to the attention [of the appellant]". Counsel for the respondent, Blue Circle Southern Cement Ltd (the employer) resisted the application to amend. The resistance had some merit, given that the award, the subject of the appeal, was made on 31 May 1991 and the application to enlarge the grounds of challenge was not made until the very day of the hearing of the appeal. At first, difficulty was presented to the Court in considering the application because, we did not have the transcript of argument of counsel in the Compensation Court. However, in the course of the hearing of the appeal, that transcript became available. It was therefore possible for the Court to examine exactly what was put by the trial judge to counsel to give the worker the opportunity of responding to her Honour's concerns. The slightest acquaintance with modern psychological studies will caution any judicial officer against placing too much faith upon his or her impressions of the truthfulness of parties and witnesses in the artificial circumstances of the courtroom. In my view, it is usually preferable for judicial officers to reason to their conclusions on the basis of evidence rather than impression. Atkin LJ, one of the greatest jurists of the century, said once that he would prefer an ounce of intrinsic merit or demerit to pounds of judicial impression of demeanour. See Societe d'Avances Commerciales v Merchants' Marine Insurance Co (The "Palitana''J (1924) 20 LI L Rep 140 (CA) 152. This was a wise observation when it was said. Since then, it has been borne out by a great deal of empirical research, repeatedly demonstrating the unreliability of judicial, as of other, impressions. It is favoured by much modern judicial writing and by experienced judges. See eg Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd, trading as "Uncle Bens of Australia" (1992) 27 NSWLR 326 (CA) 348. Nevertheless, by conventional theory it is permissible for judicial officers to take into account their observations of parties and witnesses as they appear before them. Procedural fairness requires that, if such observations may affect the decision of the judicial officer, they should ordinarily be drawn to the attention of the parties or their representatives so that they may have the opportunity of responding to matters which might otherwise be unknown and yet influence the decision. The obligation to act fairly in this way is really self evident. The principles were so recently collected in Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 (CA), 309 ff, 323, that I am relieved of the obligation to re-state them. As Clarke JA pointed out in Bailey, at 323, the rule is a flexible one. It rests upon considerations of fairness and justice. Its governing principle is that stated by Napier CJ in Minagall v Ayres [1966] SASR 151 (FC), 156 to be one of "fair play and common sense": "The condition upon which a judge is at liberty to take notice of what he has seen for himself is that the parties should know or be informed of what he has noticed, and have an opportunity of answering or dealing with it." URJ LEES v BLUE CIRCLE SOUTHERN CEMENT LTD (Kirby P) 3 The transcript of argument in this trial, belatedly produced, indicates that O'Toole CCJ adequately drew her concerns arising from her impressions of the worker to the notice of the parties to these proceedings. The following passages illustrate that fact: "COUNSEL FOR THE EMPLOYER: In particular under the heading "Physical Examination' [Dr Berry] says: 'a man of average build who moved with normal posture and gait'. HER HONOUR: Well that certainly accords with my own observation" And later: "HER HONOUR: I would be inclined to look at - Ms Kavanagh might persuade me to a different view, I would be inclined to look at the observations that were made on clinical examination, compare that with my own observations, look at the way these various medical practitioners formulated percentages by inter alia regarding what they saw as a restriction on the worker's presentation..." Later still: "HER HONOUR: I do not know whether he is or not, but he appears to me to be a fit young man, if I had not read the medical reports I would not have had any reason to assume or question his fitness." And finally, during the address by counsel for the worker: "HER HONOUR: That I should conclude that there is a permanent loss of flexion, as a result of this injury. Thank you. COUNSEL FOR THE WORKER: Yes your Honour. And I would say to your Honour that any presentation in the witness box could not persuade your Honour otherwise. Because this is a flexion of a different nature from that of standing and sitting. HER HONOUR: Well let me say this, the presentation did not cause me to imply that this man has any apprehension about his back, he was able to walk and move, rise and sit in an apparently normal manner. That is consistent with the presentation to Dr Spigelman, it is consistent with the presentation to other doctors including Dr Lane. If this man has a disability, I think it is certainly not permanent and incapacitating kind that he says he has..." In the light of these judicial comments, I do not consider that any procedural unfairness occurred in the way in which O'Toole CCJ revealed the effect which the worker's appearance in her courtroom had influenced her thinking. Great care must be paid by a trial judge lest a serious injustice occurs from impressions derived from a very short encounter in a courtroom. In this case, the whole trial of the worker's claim apparently lasted no more than 25 minutes. It was conducted with remarkable economy by both sides. As Meagher JA has pointed out, it presented certain difficulties to the trial judge because of the absence of any oral medical evidence. The only oral evidence was that of the worker. The worker's claim of a compensable injury had not been disputed. It was never put to him directly that he was exaggerating his disabilities. No film or other investigations were tendered to suggest that his claim was false or deliberately exaggerated. The case was therefore one in which the judge was obliged to choose between the differing medical assessments before her with only limited evidence to assist in that task. In the Compensation Court, the expertise of the judges is such that a great deal of medical evidence that would be indispensable in another tribunal is not tendered, simply because it can be assumed the judge will be aware of it. But in a case such as the present, where (as the exchanged medical reports revealed) there was a significant difference in the assessments of the worker's degree of 4 UNREPORTED JUDGMENTS impairment, I am inclined to agree with Meagher JA that it was dangerous for the worker to proceed without the assistance of oral evidence from at least one of the medical practitioners who had attended him. Otherwise, the decision-maker is almost inevitably cast back upon his or her own impressions or observations. So far as this trial was concerned, these were limited to the judge's 25 minute exposure to the worker. That, of itself, seems somewhat unfair to the worker: even conceding heavy pressures upon the litigants and their representatives in the Compensation Court. But so far at least as the procedure followed by O' Toole CCJ is concerned, it did not offend the principles stated in Bailey. Her Honour's impressions were sufficiently signalled. It would have been open to the worker's counsel, being alerted to the judge's concerns, to have sought an adjournment to re-open the case to call oral evidence in order to dissuade her Honour from her expressed inclination. This was not done. In the circumstances, any unfairness to the worker did not derive from the conduct of the trial judge. Cf Ziade v New South Wales Ministerial Corporation, Court of Appeal, unreported, 26 March 1993. In closing this subject, it is worth commenting that if the result had seemed to be a serious offence to the principles of procedural fairness it might have been expected that the point would have been raised immediately after O' Toole CCJ's reasons were published and not as a seeming after thought when the appeal came on for hearing. Because the transcript of argument eventually became available and the point was fully debated, I see no procedural unfairness to the respondent in permitting the point to be determined by the appeal. But upon this ground, the appeal should be dismissed. Mistaken fact finding The worker next complains of four mistakes in O' Toole CCJ's fact finding. It is said that these mistakes affected her Honour's approach to the assessment of the permanent impairment of the worker s back. The first complaint related to the worker's participation in sporting activities. Her Honour relied upon what she took to be a concession on the part of the worker: "My conclusion that the Applicant is not severely disabled or incapacitated, is consistent with the Applicant's concession that the reason he does not play soccer or indulge in karate or judo, now, is not because of persisting and chronic pain or disability but because he fears, probably most reasonably, that certain movements would cause him symptoms." (emphasis added) The evidence on this point is found in the following passages of the worker's oral testimony. First, in his examination in chief the worker said: "Q: Did you play a number of sports? A: Yes. Q: What were they? A: Hockey, soccer, I used to do karate, judo, squash, or have I said - all those types of sports. Football when I was younger. Q: Would you be able to play soccer now? A: No, definitely not. Q: Why not? A: Well, I don't want to risk it. Q: Risk what? A: Hurting my back anymore. Q: What about hockey or squash? A: No. Q: Do you do any sport now at all? A: Just swimming. Q: Right. How do you find that for your back? A: For my back, it's good, yes." For the worker it is said that these passages contained no "concession" at all. They simply provided an explanation that unusual movement would cause the risk of the onset of symptoms of pain and disability in the back. This view of the evidence appears to be borne out by the cross-examination of the worker: "Q: So, surfing? A: Well, swimming. Not surfboard riding, no. URJ LEES v BLUE CIRCLE SOUTHERN CEMENT LTD (Kirby P) 5 Q: No, but body surfing? A: Yes. Q: Not surfboard riding? A: No. Q: And any other activities up there during your holiday? A: No. Q: Sorry? A: No. Q: What about karate, do you play karate or judo anymore now? A: No, I don't. Q: Do you do the exercises? A: I try to do some stretching, that's about all. Q: Do you - the practise of karate and judo. Perhaps if I could just clarify - were you practising both sports or... A: No, judo first and then I went to karate. Q: Then you went on to karate? A: Yes. Q: In the practise of both sports, however, in the training for them, the movements are not all fast movements, are they? A: Oh, karate can be, yes. Q: Yes, but in terms of your training, the training includes - not exclusively - but the training does include a number of slow discipline movements, does it not? A: No, no. Q: It does not. So there is no part of the karate exercises that you follow now? A: No. Q: You still keep yourself fairly fit though? A: Well, a little bit of walking, it's the best I can do. Q: And the swimming? A: The swimming, yes." A proper assessment of the foregoing evidence is that the worker was taking a great deal of care with his back and had cut down on his sporting activities almost to the point of terminating them. To say, therefore, that a "concession" made by the worker was consistent with the judge's conclusion that he was not "severely disabled or incapacitated" is, I believe, seriously to misread the worker's evidence. There is no such "concession". On the contrary, the worker s evidence (which was not disproved or even significantly attacked) is clearly to the effect that he was disabled and incapacitated. To the extent that the judge drew comfort from the suggested "concession", she rested her conclusion upon mistaken reasoning. The second complaint relates to her Honour's statement: "Dr Lane thought that the Applicant was exaggerating or embellishing his presentation..." In fact, Dr Lane in his report expressly stated: "There is some slight discrepancy between these two findings indicating some minor embellishment but the remainder of the presentation was not embellished...." Standing alone, I would not consider that this passage in her Honour's reasons indicated a mis-statement of Dr Lane' s opinion. But the passage cannot be read in isolation. It must be seen as one of the building blocks upon which her Honour was proceeding to her conclusions and explaining them. She appears to have thought that it was significant that Dr Lane considered the worker to be exaggerating or embellishing his complaints. She omits any reference to his view that any such discrepancy was "slight" and "minor". Most importantly, she omits Dr Lane's conclusion that "the remainder of the presentation was not embellished" (emphasis added). With respect, I do not believe that Dr Lane's report supports the conclusion for which her Honour used it. It was not put to the worker, as fairness would require, that he was exaggerating his symptoms and embellishing them. Cf Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 (CA) 589f. There was a diversity of medical opinion. But even Dr Spigelman, the only medical adviser (for the employer) who concluded that there was no permanent impairment of the worker's back, formed the view that he 6 UNREPORTED JUDGMENTS should not return immediately to pre injury work. The notion of exaggeration or embellishment seems to have originated chiefly in the mind of her Honour, based upon her impressions of the worker. She appears, in the brief period of the hearing, to have formed a rather adverse impression of him: "The applicant showed inappropriate amusement or embarrassment or awkwardness, at one time during his evidence; that could be consistent with his actual and apparent youth. His youth might also determine his tendency to exaggerate. " The third error of fact finding is the most important. O'Toole CCJ stated: "... Dr Fuller's subsequent clinical examination, is consistent with a conclusion that again the Applicant was embellishing or exaggerating his presentation. " In fact Dr Fuller's report stated: "Mr Lees' history and present complaints and clinical findings I believe are consistent with lumbosacral disc derangement. I think that his pain is discogenic in nature rather than due to musculoligamentous strain. I thought he had genuine disability and I found no evidence that he was fabricating when I examined him. I believe that he does have symptoms as he described and these are consistent with the findings on clinical examination. (emphasis added). The attempted justification of her Honour's conclusion which seems so inconsistent with the stated opinion of Dr Fuller is beguiling but unconvincing. It was suggested that her Honour was referring not to Dr Fuller's opinion but to his findings on clinical examination. During those findings, Dr Fuller recorded: "Forward flexion was limited to half normal range as was lateral flexion to both left and right. Movements were painful at the extreme of the range. Rotation was not restricted. On the examination couch forward flexion was still limited although flexion was possible to 2/3 normal range on the couch." From this evidence it was argued that the worker was restricted in his back movement to half normal range in ordinary flexion yet could perform 2/3 normal range on the couch. But this was well known to Dr Fuller who recorded these clinical findings. His expressed opinion was stated immediately following the record of these range differences. In my respectful opinion, it was not for her Honour to derive from these differences in clinical examination a conclusion which was totally different from that which was derived by the medical practitioner who actually conducted the examination. There could be a number of reasons why, with the support of the back by a couch, a person could perform a wider range of movements of the back than the person in a position of unsupported flexion. This is not a matter upon which even a member of an expert tribunal could take judicial notice. To ascribe to such a discrepancy (at least without specifically exposing it for the opportunity of answer) a conclusion that it supported an opinion of embellishment and exaggeration is quite unsafe. It reinforces the impression I have that her Honour had concluded from her own observations that the worker was exaggerating and then sought comfort from various parts of the evidence. In my opinion Dr Fuller's report gives no such comfort. On the contrary, Dr Fuller could not have been more clear: "\.. I found no evidence that he was fabricating when I examined him." (emphasis added) The fourth element of the fact finding which is challenged concerns the doubt which O' Toole CCJ apparently raised as to whether the worker had a "permanent impairment to the back" at all. Of the eight medical opinions placed before her Honour only one, that of Dr Spigelman suggested the absence of a physical basis for the worker s claim of back impairment. That opinion itself was qualified by URJ LEES v BLUE CIRCLE SOUTHERN CEMENT LTD (Kirby P) 7 the suggested need to repeat the CT scan. The other medical opinions ranged from a 40% impairment (Dr Berry) through a 25% impairment (Dr Crawford), a 10% impairment (the Medical Panel) and Dr Fuller s opinion which included the following report on a CT scan carried out in November 1988: "This showed a very minor disc abnormality at the lumbosacral level. This disc had a posterior convex margin and the X rays were consistent with a small central disc protrusion." In my respectful opinion, O'Toole CCJ's conclusion that the medical opinions favoured the view that the worker had "not suffered, at least at this time, a permanent impairment of his back" finds no real support in the overwhelming bulk of the medical evidence that was before her Honour. It was said that she elected to prefer Dr Spigelman's opinion. But that opinion was qualified in its expression as I have stated. With such strong and plentiful opinions to the contrary - and particularly in the context of a case with a positive CT scan - it is unconvincing to conclude that the impairment was as minor as her Honour ultimately decided. The result of the above analysis is that the reasoning upon which the conclusion expressed in O'Toole CCJ's award rests is faulty in significant respects. The only proper remedy is a retrial. At the retrial it might be hoped that the judge of the Compensation Court would be assisted by oral evidence, which was denied to O'Toole CCJ. Calculating the s66 lump sum The third substantive complaint of the worker is that O'Toole CCJ, having expressly declined to accept any particular medical diagnosis in the case, proceeded to form "some form of medical assessment of [her] own as to the nature and extent of disability, a term repeatedly employed throughout the judgment'. It is also complained that her Honour failed to apply the terms of the Act in reaching the allowance to be made under 8 66. This is what O' Toole CCJ said: "Having declined to accept one or other of the particular diagnoses in this case and having noted the strikingly diverse assessments which are expressed in percentage terms, I have not found any particular assessment of direct assistance. The clinical opinions, expressed arithmetically, proceed, at least partly, on the particular medical practitioner's observation of demonstration or test; on evaluation of the Applicant's bona fides; on acceptance or otherwise, of the veracity of certain complaints and particularly, complaints that the applicant has a chronic disability. At the same time, it does not seem to me that this is a case where I should formulate in percentage terms, my own view of 'impairment of the back'." Her Honour referred to the fact that this was not an extreme or most extreme case of "spinal disability". This remark involves a reference to an irrelevant consideration. What is in issue is not "spinal disability" but "impairment of the back". Her Honour went on: "At the same time and with the exception of Dr Spigelman's opinion, there is common ground that the Applicant has some kind of a disability... On the whole of the evidence, I think it is probable that the injury suffered on 31 January 1988, caused that disability. (emphasis added) Having noted the maximum amount payable as $49,380 her Honour shortly reached her conclusion in a rounded lump sum: 8 UNREPORTED JUDGMENTS "Doing the best that I can with the evidence, having to compute a sum which is not precisely related to any of the assessments which I have declined to accept, I award the Applicant $3,000, pursuant to s66 of the Act. The respondent is ordered to pay the Applicant $3,000, pursuant to s66, together with the costs of this application." Quite apart from the reference to "disability" and "spinal disability", the above reasoning omits an important step in the determination of the entitlement of the worker which the Act requires. This is the determination of proportionality. It is obligatory for the judge to decide where the case in hand is to be placed on the scale of compensation within the range limited by the percentage provided as referred to in the Table incorporated by reference into the Division of the Act. See Jones Bros Bus Company Pty Ltd v Baker (1992) 26 NSWLR 322 (CA) at 330. Cases of "impairment", other than in a most extreme case, are to be scaled by reference to such a case. A relationship must be determined, in accordance with the scheme of the Act, between the particular case in hand and "a most extreme" case. This determination is required because it increases the objective elements of the assessment. It is not for the judge to act as a jury would: awarding a lump sum of compensation by reference to general deserts. The judge's duty involves a greater degree of precision and of reasoning as the Act requires. One can criticise the scheme of the Act as being excessively artificial. One can object to the contortions of the mind that are required by that scheme. But it is the duty of judges to perform the steps laid down by the Act. It is a negation of that duty simply to pluck out of the air a figure which has no reference to the proportionality of the case before the judge when compared to "a most extreme case. It is reasonably clear that O'Toole CCJ did not take the step of determining where this case lay in the scale, as required by the Act. The amount that she hit upon was 6.07% of the maximum allowance for a most extreme case. This is such an artificial figure that it seems proper to conclude that her Honour did not have in mind, or intend to adopt, a relationship between this case and a most extreme case when reaching the $3,000 figure awarded. It is said that no error would be disclosed if her Honour had included in her reasons a determination that the case was one which bore a relationship to a most extreme case of 6.07%. At one stage during argument it was said that Her Honour might of thought of a ratio of about 5% was warranted but had thrown in the balance to "round" the figure payable to the worker. Had O'Toole CCJ taken the step required by the Act it is, to say the least, extremely unlikely that she would have reached the proportion of 6.07% of the maximum. What the rounded lump sum demonstrates is that a step required by law and by the decisions of this Court was simply not taken in this case. Cf Offset Alpine Printing Pty Ltd v Porteous, Court of Appeal, unreported, 30 October 1992, 14. This conclusion is, in turn, consistent with the view that the case was not tried in accordance with law. It affords a further reason why the award cannot stand. This Court which upholds the law and the just and lawful determination of cases under the law, must ensure that such errors The correction cannot be made in the Court of Appeal. The matter should go back for retrial. Orders The orders which I therefore favour are: 1. Appeal allowed; 2. Set aside the award of her Honour Judge O'Toole dated 31 May 1991; URJ LEES v BLUE CIRCLE SOUTHERN CEMENT LTD (Meagher JA) 9 3. In lieu thereof, order that the proceedings be remitted to the Compensation Court of New South Wales to be dealt with in accordance with this Court's judgment; 4. Order the respondent to pay the appellant's costs of the appeal but to have, in respect thereof, if otherwise so qualified, a certificate under the Suitors' Fund Act 1951; and 5. Order that the costs of the first trial in the Compensation Court abide the outcome of the second trial. Meagher JA In this appeal, Mr Lees, the appellant ("the worker') challenges the award given by her Honour Judge O' Toole in his favour in the sum of three thousand dollars for a claim under s66 of the Workers Compensation Act, 1987 and the dismissal of his claim under s67 of that Act. He alleged that he suffered a permanent impairment of his back to a marked degree, and consequently on appeal submitted that her Honour's award was derisory. The worker suffered his injury on 31 January 1988 when he was in the employ of the respondent ("the employer'). Her Honour heard the matter on 25 February 1991 at Goulburn and on 31 July 1991 at Sydney. Her Honour felt bound, naturally enough, by the employer's concession that even with surgery the worker's back would not return to its pre injury condition. Nevertheless, she came to the view on the evidence before her that the worker was "not severely disabled or incapacitated", much less in permanent, chronic or unrelenting pain, as he alleged. Her Honour's decision is attacked on a number of grounds, but in order to evaluate the attack it is necessary to appropriate exactly what evidence was before her. There were here a quantity of medical reports, in fact reports from eight different sets of doctors. It is necessary to refer to them in a little detail. There was a WorkCover Authority Certificate dated 1 August 1990 from Doctors Voss and Glick which opined a ten per centum permanent impairment of the worker's back. There was a report from Dr G Brook, a radiologist, who reported the results of a CAT scan as disclosing no abnormality of L/3/4/5 and a "very minor" abnormality at L5/S1. A report from Dr Crawford of 18 September 1989 diagnosed a "back sprain" and said that it was unlikely to improve without surgery. A day later he sent a further report stating: "Physical examination shows apparent fifty per centum restriction of all movements of the spine... In view of all things considered I estimate permanent disability at twenty five percent." There were two reports from Dr Berry. The first, dated 19 November 1990, included the following: "On the basis of today's examination this patient is unfit for his pre injury duties and any similar activities. He would be fit for work which did not require heavy lifting, repetitive bending and prolonged standing and crouching. His prognosis is guarded as his symptoms persist. I doubt that there will be any improvement in the foreseeable future. Surgery at this stage is unlikely to be of sufficient benefit for him to return to his pre injury duties but may relieve some of his discomfort. I would therefore treat him conservatively with simple analgesics and avoidance of aggravating activities. I would consider that he has lost 40% of the efficient use of his low back." The second, dated 21 November 1990, included the following: "The report should read forty (40) percent permanent impairment of his back. I hope this clarifies the situation for you". (sic) 10 UNREPORTED JUDGMENTS A report of 19 April 1989 from Dr Robson said, inter alia, " On examination he is tender at a very low level in the back, probably 15-S1, and knee and ankle reflexes are present and equal and there is no sensory loss. " The X rays show that he has one of these lower backs which are very difficult to count. I think 16 is very sacralised or perhaps it is LS which is very lumbarised. I never am much good at making that distinction. One of the discs of the lower back, the one which I think of as L5-6 is certainly malaligned and probably a little narrow as well, but it is nor very marked. " The CAT scan certainly shows a disc bulge at a low level but again because of this sacralisation and difficulty of counting, I am not absolutely certain which level that is shown on the CT, and then translated into X rays. " I have been through the implications of this problem with him, firstly he has had it for two years and it is really no better now, and I do not see any reason to think after two years that it is going to change much. " He attends physiotherapy diligently, but I think it is fair to say he gets practically nothing from that, sometimes it seems a little better, but by tomorrow it is back again to where it was." Dr Tinning also examined him, and, in a report dated 17 July 1990, said: "OPINION "He has a history that fits in with a low back strain. Shovelling, could cause this. "The persistence of symptoms and the presence of a central disc protrusion of LS5/S1, suggests that his low back strain was in fact a strain on the 15/S1 disc and I expect the Neurosurgeon in Canberra thought that this may have progressed enough to warrant further investigation, and probable surgery. His complaints fit in with the picture of a central disc protrusion and perhaps a little more so on the right side than the left, and involving the LS root of the right sciatic nerve. "T consider his present condition could be considered as due to his work and in particular shovelling. *T do not consider that he is fit for such work at present. "I do not consider that his condition has stabilised as he still has very restrictive symptoms and signs. "T do not consider that a percentage permanent impairment of his back could be assessed at the moment, as it has not stabilised." Dr Lane gives a somewhat different view, and in his report of 17 July 1990 says: "EXAMINATION "On examination today this man walked briskly into the surgery and did not walk with a limp. He had a straight leg raising of 90 degrees on the left and about 70 degrees on the right. He had good power bilaterally with normal reflexes and no wasting and normal sensation and on looking at his back, he had lateral rotatory movements with no paraspinal spasm and no crepitus nor was there any kyphoscoliosis. There was a normal lumbar lordosis. The pulses in his legs incidentally were full." His "Diagnosis and Opinion" was as follows: "Tt is reasonable to assume that this man suffered a small disc protrusion in January 1988 at work. The examination today reveals that he can sit directly upright on the couch and actually bend forward with only minor abnormalities in his straight leg raising. There is some slight discrepancy between these two findings indicating some minor embellishment but the remainder of the presentation was not embellished. This man would be fit for duties which do not involve heavy lifting for a long period of time. Heavy shaveling for a long period URJ LEES v BLUE CIRCLE SOUTHERN CEMENT LTD (Meagher JA) 11 of time as was his custom with the above company would aggravate his underlying problems. Therefore he remains not fit for work and indeed he should have a weight restriction of about 25 kgs. With this restriction he could resume any form of alternative work." (sic) An even clearer expression of opinion came from the same doctor on 27 September 1990 "This patient has not lost any permanent functional use of his leg. The reason for this is it is the normal natural history of disc protrusions to retract away from the nerve root and indeed, a large percentage of the population over 45 have numerous disc protrusions with no apparent functional loss. Therefore, at the present time, the permanent functional loss is zero." Dr Fuller's view was different again. On 29 August 1990 he reported the results of an examination the previous day. He said: "On spinal examination there was a decrease in lumbar lordosis. There was tenderness over the lumbosacral junction. There was no muscle spasm evident. Forward flexion was limited to half normal range as was lateral flexion to both left and right. Movements were painful at the extreme of the range. Rotation was not restricted. On the examination couch forward flexion was still limited although flexion was possible to 2/3 normal range on the couch. Straight leg raising was positive right leg. There was no sensory loss or muscle wasting recorded and tendon reflexes appeared present and equal." and he gave the following opinion: "Mr Lees' history and present complaints and clinical findings I believe are consistent with lumbosacral disc derangement. I think that his pain is discogenic in nature rather than due to musculo ligamentous strain. I thought he had genuine disability and I found no evidence that he was fabricating when I examined him. I believe that he does have symptoms as he described and these are consistent with the findings on clinical examination. The CT scan is not particularly helpful here, but certainly does not exclude lumbosacral disc derangement which I believe is the diagnoses here. Mr Lees at present is not having any treatment. He has had gastric upset following taking medication so no longer takes tablets. I think conservative treatment should be continued although according to Mr Lees he has been advised to have operation (Dr Robson). "Mr Lees I consider at this time is unfit for heavy work. He is fit for work of a restricted nature such as he was doing when he was employed in the laboratory. He is at present unfit for work that requires back bending or heavy lifting and I believe as it is now 2 1/2 years since the injury that it is unlikely in the long term he will ever be able to return to work of a very heavy nature such as he was carrying out previously. Any return to such work I think could cause aggravation of his back symptoms. Even if he should undergo surgery as he said he was advised it is unlikely he would ever be able to return to heavy physical employment." More adverse to the worker was the report of Dr Spigelman dated 18 February 1991, who, under the heading "Examination" said: "On examination, I noted that he was a very resentful young man. He kept telling me that as far a he was concerned, most people seemed to think that there was nothing wrong with him. He certainly looks very fit. His hands look far more callused than I would have expected for somebody who has done no physical work for perhaps more than 2 years. He seemed to have a normal gait though he was reluctant to walk on his heels and toes and he had a restricted forward kick with his right leg when standing. He seems tender in the lower lumbar spine and 12 UNREPORTED JUDGMENTS to the right in the para vertebral muscles but there is no muscle spasm and there is no explanation as to why this young can't reach the knees on forward flexion. Straight leg raising at 40 degrees on the right appeared to be very painful and he complained of a positive sciatic stretch test but I noted that he sat up on the couch with legs outstretched quite freely and without any problems. He then managed to bring has arms forward until they reached well beyond the midway point of his tibia. Sensation and reflexes appeared normal."; and under the heading "Conclusion" said: "T find no credible evidence that this young man has a disc lesion other than his own alleged history. My personal opinion would be that there are motivational and psychological factors which apparently make him want to give us a history of total incapacity when physical examination fails to substantiate objective signs of disease." The worker gave evidence for a very short time. The whole transcript of the oral evidence occupies no more than eight pages. No witness other than the worker gave evidence. In particular, no medical witness gave oral evidence. This case raises in an extreme form the problem which faces a judge when he or she is confronted with a quantity of medical evidence in written form and no doctor is called to give evidence. It is a problem which this Court has deplored, and rightly deplored, on a number of occasions. In the present case, a survey of the medical evidence, which I have endeavoured to summarize, could - depending on which parts of it are believed - result in findings which range from no impairment of the back to very grave impairment of the back. How is a Judge to determine which pieces of paper are worthy of credence? It is nearly impossible to come to any rational conclusion unless some at least of the authors of the documents give testimony concerning them. Moreover, if no witness is called and the matter proceeds on a multiplicity of conflicting written medical reports, the applicant, bearing the onus of proof, must be courting disaster. This is the situation which those advising the worker permitted to arise in this case. Her Honour, facing this problem, chose the only course which was open to her. She gave most weight to those medical reports which most accorded with her own observations. She paid particular attention to the oral evidence of the worker where he said that he now swims, "body surfs" (sic) and "stretches" (sic) - all activities which we were assured by Counsel require considerable physical agility. In addition, she placed reliance on what she saw of the worker. She said: "The applicant looks younger than his stated age. The appearance of his skin, his build and his movements, as I observed then, are all consistent with his evidence of sporting and similar activities and the swimming and surfing he now undertakes. He made brisk, fluid and unremarkable movement in Court, walking, sitting and rising. I have the strong impression that he was comfortable throughout the periods I observed him." The first argument advanced on behalf of the worker was that her Honour in effect denied him natural justice, in that she relied on her own observations of the worker and deprived him of any opportunity to deal with these observations. There are, it seems to me, two answers to this submission: the first is that her Honour did afford the worker's legal representatives such an opportunity. The transcript reveals that during final submissions her Honour said to counsel for the worker: "Will let me say this, the presentation did not cause me to imply that this man has any apprehension about his back. He was able to walk and move, rise and sit in an apparently normal manner. That is consistent with the presentation to Dr URJ LEES v BLUE CIRCLE SOUTHERN CEMENT LTD (Meagher JA) 13 Spigelman, it is consistent with the presentation to other doctors including Dr Lane. If this man has a disability, I think it is certainly not of the permanent and incapacitating kind that he says he has" At that stage there was nothing to prevent counsel for the worker seeking to call further evidence to deal with her Honour's observations, or even to seek an adjournment so that such evidence could be gathered. She chose not to do so. The second answer, although only a partial one, is that the objection ill becomes the legal representatives who, through failure to call medical witnesses, permitted a situation to arise which almost dictated a decision based upon observation of the worker. The second argument was that there were four major factual errors in her Honour's judgment, each of them integral to her conclusion. The first of those alleged factual errors is that her Honour had no reason to say that the worker feared "probably most reasonably, that certain movements would cause him symptoms". In fact, that is precisely what the worker did say. One passage of his evidence reads as follows: "Q. Would you be able to play soccer now? A. No - definitely not. Q. Why not? A. Well, I don't want to risk it. Q. Risk what? A. Hurting my back any more." It is true that in other passages he put it slightly differently. But her Honour was entitled to believe passages like that which I have quoted, and if she did this Court cannot interfere. The second of the four specific instances refers to her Honour's remarks about Dr Lane's report. Her Honour said: "Dr Lane thought that the applicant was exaggerating or embellishing his presentation but came to the conclusion that the applicant was not fit for substantial heavy lifting or heavy shovelling: that seems to me to be consistent with other evidence." I have set out already the relevant passage from Dr. Lane's report, and in my view her Honour's summary of it was accurate enough in the context in which her Honour used it. The third concerned Dr Fuller's report. What her Honour said was: "Dr. Fuller's subsequent clinical examination is consistent with the conclusion that again the applicant was embellishing or exaggerating his presentation." This is the strongest of the complaints about her Honour's judgment, and when Mr Hall QC, senior counsel for the worker, first raised it I was of the view it was unanswerable. What Dr. Fuller undoubtedly said was "I thought he had a genuine disability and I found no evidence that he was fabricating". At first blush, therefore, her Honour seems to be misrepresenting what Dr Fuller says. He finds no evidence of fabrication, her Honour apparently attributes to him an opinion that the worker was fabricating. However, Mr Poulos QC for the employee, convinced me that this is not so. Her Honour did not say Dr. Fuller made a specific finding of embellishment or exaggeration; she said the doctor's examination was "consistent with such a view" - presumably even if it was a view he eschewed. The doctor's examination showed that when standing the worker had fifty per centum lateral flexion, but on the examination couch had sixty seven per centum lateral flexion, those two findings being inconsistent and the former betokening embellishment. In other words, although the doctor explicitly absolved the worker from exaggerating, his own clinical observations suggested exaggeration was present. The fourth, and final, alleged specific factual error concerned the following passage in her Honour's judgment: "Counsel have not addressed the meaning of the word "permanent except to refer to 14 UNREPORTED JUDGMENTS terminology in which certain medical practitioners expressed their views; views that this Applicant had not suffered, at least at this time, a permanent impairment of his back." It is difficult to know what her Honour meant by these words. They are not conspicuously clear. But one thing which cannot be read into them was that which Mr Hall QC endeavoured to read into them; her Honour was not saying that there was a universal or even a majority medical view that the worker did not suffer a permanent impairment of his back. Rather, what her Honour seemed to have meant was that those doctors who denied the existence of a permanent impairment did not explain what they meant by the word "permanent". The next, and last, attack on her Honour's judgment was that she impliedly rejected the approach which this Court in Jones Bros Bus Co Pty Ltd v Baker (1992) 26 NSWLR 322, said should be taken in a s66 case when there is an impairment of less than a most extreme case. They should, according to the Act, be scaled by reference to such a case, but this her Honour declined to do in refusing to formulate in percentage terms the worker's impairment. This submission must be upheld, but in my view it is too insignificant an error to cause the whole appeal to be upheld. It hardly warrants a new bout of litigation because her Honour said "I will not strike a percentage, but award a round figure of $3,000.00." instead of "I will strike a percentage of five per centum and round it up to three thousand dollars". In my view the appeal should be dismissed with costs. Cripps JA I agree with the orders proposed by Meagher JA and his reasons. Appeal dismissed with costs. Counsel for the Appellant: PM Hall QC/ T Kavanagh Solicitors for the Appellant: Carroll and O'Dea Counsel for the Respondent: J Poulos QC Solicitors for the Respondent: Hickson Lakeman and Holcombe