BELLAMY v SBS ENTERPRISING PTY LTD Trading as DARBY'S PIE BAR AND OVEN DOOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and CRIPPS JJA 8 July 1993, 12 August 1993 [1993] NSWCA 22 WORKERS' COMPENSATION — injury — incapacity — primary judge (Moroney CCJ) rejects worker's claim — appeal — whether judge overlooked evidence of local medical practitioner's records containing report of history given at court — held: (Dismissing the appeal) (per Kirby P): The objective evidence of injury and incapacity was not such as to permit the Court of Appeal to disturb the decision of the trial judge based, as it was, in part on his impressions of the worker's credit; (per Cripps JA, Mahoney JA concurring): The trial judge, who had to assess credibility, did not accept the worker's history and that history contained inconsistent versions of the injury and complaints of incapacity justifying the conclusion which the judge reached. Kirby P In the Compensation Court, Moroney CCJ dismissed the claim of Mrs Annette Bellamy (the appellant). He did so on the basis that he was not able, on the probabilities, to decide affirmatively that the worker had injured herself as alleged or that she was incapacitated as a result from a work injury as claimed. It is important to note that his Honour did not actually record that he disbelieved the worker. There is a distinction between positive disbelief and being in a state of doubt such that the party, with the obligation affirmatively to prove his or her case, fails to convince the judge of the matters alleged. A lack of conviction upon a matter is not the same as a conviction that the matter has been disproved. The problems which the appellant faced in this appeal were the inconsistent histories she had given; the lack of history of injury on some occasions; the basically constitutional nature of her underlying pathology which could sufficiently explain her continuing symptoms; and, above all, the fact that her own account did not carry the day for her before the judge. She bore the onus of proving her claim. The judge held that she had failed to discharge that onus. He had various advantages which this Court does not enjoy - including that conventionally described by the law of seeing the witnesses give their evidence. I acknowledge the force of the point made for the appellant concerning the contemporaneous record of the local treating medical practitioner (Dr Ghabrial). It supports the appellant. However for a reason that seems astonishing in this disputed case (but which was never satisfactorily explained) Dr Ghabrial was not called at the trial to give oral evidence. His written report and history do not rise to the level of incontrovertible evidence, necessary to authorise this Court in the appeal to disturb the award of Moroney CCJ. That award must therefore stand. The appeal should be dismissed with costs. Mahoney JA I agree with the judgment of Cripps JA and the orders proposed. Cripps JA This is an appeal pursuant to s32(1) of the Compensation Court Act 1984 against an order of Judge Moroney of the Compensation Court dismissing the appellant's claim against the respondent for weekly payments of 2 UNREPORTED JUDGMENTS compensation and entitlements pursuant to s66 and s67 of the Workers Compensation Act 1987. Moroney CCJ said he was not satisfied she had made out her case. The appellant was employed by the respondent from November 1988 until April 1989. Her work involved packing pies and cakes into boxes and carrying the boxes to delivery vehicles. She was also required to pack cakes on large wooden trays and carry the trays to delivery vans. In her claim form, she alleged that between November 1988 and April 1989 the nature of her work imposed "stress and strain upon her neck and shoulders" with the result that she suffered injuries to her neck, shoulders and lower back. She also alleged that her work activity caused or aggravated the onset of an epigastric hernia. She claimed total and partial incapacity from 8 April 1989 and continuing as well as entitlements pursuant to s66 and s67 of the Act. Before Moroney CCJ the worker said she had worked without any problems until about 6 o'clock on the morning of Saturday, 8 April 1989. The onset of symptoms began, she said, shortly after she had been carrying pots of meat on that day after which she noticed pain in her neck, shoulders, middle of her back and lower back. On Sunday she attended a physiotherapist for treatment to her neck. She returned to work on Monday and while she was working noticed pain radiating down the back of her leg. She told Mr Smith, the manager, that she thought the pain in her leg related to a hormone implant and that she did not think it was caused by an injury to her back. Medical reports were tendered but no doctor gave oral evidence. The histories varied enormously. The history to the physiotherapist was that she had hurt her neck. In May 1989 she complained to her local general medical practitioner of pain in the left gluteal region radiating down the back of her thigh. On that occasion she did not complain about her neck. On 26 June 1989 she attended the Orthopaedic Casualty Department at the Royal Newcastle Hospital. The hospital notes record a history of left sided leg pain and also "there was no history of back injury". Dr Smyth, who examined her on behalf of the respondent, said she refused to give him any history concerning the accident and its alleged sequelae. In December 1990 the history she gave to Dr Harrington, also retained by the respondent, was that she had hurt her back. Dr Harrington was of the opinion, however, that any aggravation that may have been occasioned to her lower back by bending and lifting had ceased by the time he examined her. X rays taken in June 1989 and December 1989 revealed a disc herniation at LS/S1 and some "minor cervical spondylosis at the C5 - 6 level". The X ray evidence was accepted by Moroney CCJ. His Honour did not, however, accept the evidence of the appellant. If he had, there would have been an award in her favour. Her credit was in issue. The respondent denied she left work because she had injured her back. However, her sister, in evidence, said she gave no reason why she left work; only that she had pulled a muscle in her neck and wanted the name of a physiotherapist. The appellant attempted to explain the inconsistent histories. She said she was concerned that if she told the truth about being injured at work she might lose social security benefits. She said that was the reason she made no mention of any injury at work when she attended the Royal Newcastle Hospital on 26 June 1989. Moroney CCJ said he was prepared to accept her explanation but observed that, even after she had made her claim for compensation, she made no complaint to doctors of any injury preceding the onset of symptoms. UBELLAMY v SBS ENTERPRISING PTY LTD Trading as DARBY'S PIE BAR AND OVENS DOOR (Cripps JA) (Cripps JA) On 24 January 1990 she saw Dr Ghabrial at the Royal Newcastle Hospital and complained of history of low back pain and pain in the cervical dorsal region. In a letter dated 16 October 1990, he recorded: "She had no history of trauma and the pain was aggravated by changing positions, coughing as well as sneezing. However, Mrs Bellamy told me today that her duties involved lifting large pots and pans in a bakery and loading them on to vans. It was around April 1989 when she developed neck, shoulder and low back pain". Moroney CCJ dismissed her claim upon the following finding: "I am left in this matter in the situation of not being able to decide on the probabilities what, if any, injury the applicant did receive in April 1989 and what, if any, incapacity for work resulted from the receipt or alleged receipt of any such injury. And thus, the applicant must fail in the application as the onus, which is hers, has not been established." On behalf of the appellant, Mr Barry has submitted that Moroney CCJ overlooked two uncontested aspects of the medical evidence which, he asks this Court to infer, caused him to enter an award for the respondent when he should have entered an award in favour of the appellant. The first was that the appellant's general practitioner said she had consulted her at her surgery since October 1986 and had made no reference to "a back problem" until May 1989. The second was that in May 1989 it was thought by some of her medical advisers that her leg pain may have been due to a hormone implant. Later it was established that it was not. I am not persuaded the learned trial judge overlooked these matters. The circumstance that they were not mentioned in the judgment does not establish the proposition. We do not know what submissions were made on behalf of the appellant. It would be surprising if they did not include the matters it is said the trial judge overlooked. But the real difficulty facing the appellant is that the trial judge did not believe her evidence that she was injured at 5 or 6 o'clock on 8 April 1989 and that a work episode caused the onset of symptoms of back pain. Her credibility was a matter for the trial judge. He did not accept her evidence and was not satisfied she had made out her case. In my opinion, the appeal should be dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: CT Barry QC / M Perry Instructed by: Moroney Rutter and Mantach Counsel for the Respondent: JA McIntyre Instructed by: Hunt and Hunt