JLT SCAFFOLDING INTERNATIONAL PTY LTD (IN LIQUIDATION) v SILVA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and PRIESTLEY JJA 1 February 1994, 30 March 1994 WORKERS' COMPENSATION — appeal — proper approach to — significance of enlarge facility of appeal — significance of factual findings by specialist tribunal — necessity of appellant to establish error — proper approach of Court of Appeal to compensation appeals on medical and factual issues — discussion by Kirby P of matters of approach. WORKERS' COMPENSATION — incapacity — causes of — whether caused by significant injury when worker fell through four storeys of building site — whether earlier injuries with same and earlier employer inculpated — failure to cross examine medical opinions allegedly with inadequate histories — failure to tender earlier transcript allegedly inconsistent — failure to question worker on allegedly inconsistent earlier evidence — held: The transcript of earlier proceedings which was not tendered in the subsequent proceedings could not be admitted on the appeal. JUDGES — reasons — duty to state — obligation to express grounds for decision — adequacy of reasons — held: Reasons adequately stated — errors of fact finding insubstantial and not sufficient to require setting aside of award. Workers Compensation Act 1987, s66, and s67. Kirby P This appeal challenges a number of factual determinations of O'Meally CCJ. It also concerns a complaint that his Honour failed to give reasons for his determinations, as required by law. A worker sustains three compensible injuries Mr John Silva (the worker) is the respondent in this appeal. He came to Australia in 1974 from Chile. Thereafter, he was employed as a rigger. He worked successively for "Hoover", "Repco" and JLT Scaffolding International Pty Ltd (the employer), now in liquidation. The employer is the appellant in this appeal. The worker performed duties as a rigger and scaffolder with the appellant. The worker gave evidence before O'Meally CCJ of a number of injuries prior to an apparently more major accident which occurred in me course of his employment for the employer on 7 January 1989. This is what he said: "Q:... in January 1987 you had a fall onto your left leg and you saw Dr Peter Giblin about that. A: Yes. Q: I think that he put you off for a couple of days, you went back to work and that seemed to resolve itself, that aspect. A: That's correct, yes. Q: However in May 1987 you had another accident, you were carrying some braces. I think you had some sciatica at that time. A: Yes, sciatica. Q: On the left side, a couple of weeks off physiotherapy at Liverpool, back to work. A: That's correct. Q: You had some further physiotherapy I think in the end of 1987 again with no time off, again for similar problem that you were having. 2 UNREPORTED JUDGMENTS A: Similar - same problem, yes. Q: The problem in your left leg, was it. A: It was the sciatic nerve at the time that I damaged when I was carrying a whole bundle of braces on my shoulder... Q:... On 30 June 1988, you were tightening a scaffold and again had - you slipped and again had some problems, is that right, and that was to your back. I think that you saw a - you had some x-rays, a CT scan in July 1988 and you attended Dr Funnell at the Bankstown Occupational Health Service in July. You had about six weeks off at that time, is that right. A: Roughly, yes. Q: Then did you return to your full normal duties. A: That's correct. Q: As far as you were concerned, was there any restrictions on what work you were doing at that time, after you returned to work, did you have any problems at all. A: Not at all... Q: How did you feel, did you feel fine. HIS HONOUR: It is all right, I understood him to say that." It was at this point that the worker sustained a serious injury. He fell four floors in the course of his employment with the employer. Normally, such a fall would be fatal. The worker's survival was attributable to his grasping with his right arm objects which broke the falls but resulted in a dislocation of the right arm, the right shoulder being, as he described it, pulled out of its socket. He suffered a fracture dislocation of the right humerus; a fracture through the distal phalanx of the right ring finger; a large haematoma to his left buttock but the x-rays of his pelvis and lumbosacral spine appeared normal. This was so despite the fact that the worker, when he first landed, could not move and thought that he had broken his back. He was taken to Royal North Shore Hospital. He came under sustained medical treatment. He was paid worker's compensation benefits until March 1990, when they ceased. He brought a claim for continuing payments to the Compensation Court. This was heard on 22 October 1991, that Court being constituted by Moran CCJ. The worker gave oral evidence before Moran CCJ. The transcript of such evidence was not placed before O'Meally CCJ in the subject proceedings. However, his Honour was handed, and read, the transcript of the judgment of Moran CCJ. This has also been placed before this Court, without objection. Moran CCJ recounted the serious injuries which the worker sustained in the fall of 7 January 1989. He did not mention the earlier injuries so that it can be inferred that they were not in his opinion significant for the aetiology of the incapacity which he found. He determined that the worker, as a result of the injury on 7 January 1989 was partially incapacitated for work. He ordered the employer to pay the worker weekly compensation benefits. He granted leave to the worker to defer any claims he may want to pursue under s66 and s67 of the Workers Compensation Act 1987. It was this deferred claim which came before O'Meally CCJ and is the subject of this appeal. Questions on the significance of prior injuries The hearing of me claim took place, remarkably enough, at Bundaberg in Queensland, for reasons unexplained. It comprised oral evidence of the worker only, and a large amount of medical evidence tendered by way of reports. No other local witness was called to explain the venue of the hearing. URWT SCAFFOLDING INTERNATIONAL PTY LTD (IN LIQUIDATION) v SILVA (Kirby P) 3 The worker's evidence followed the course already described. He was then cross examined by counsel for the employer. Most of the cross examination concerned the extent of the complaints of pain to which the worker had deposed. However, at a certain point, the worker was cross examined about the injuries he had sustained prior to that of January 1989: "Q: Sir, you would agree with me that you were referred to Dr Giblin as a result of your injury in 1987. A: That's correct. Q: Do you agree with me that you had physiotherapy treatment referred by Dr Giblin in 1987. A: Yes. Q: You had been treated by Dr Ayscough, your local doctor at that stage. A: That's correct. Q: You complained of pain that radiated into your left buttock and left knee in May 1987 to Dr Ayscough. A: If it's written down, probably was at that time. If it was written down, yes. Q: You agree with me that he prescribed Indocid tablets for your to assist you with the pain at that time? A: Well, he gave me some type of tablet... but if it's written on the report that' II have to be the case. Q: You were certified unfit for work from 14 January 1987 until 12 June 1987, would that be correct. A: Must be if it's written on the report... Q: Is that your recollection as to the period of time you were off work as a result of the injury you had to your back in 1987? A: If it's written on the report - because what happened is when you working in the building industry... is not like working in an office, you always are liable to hurt yourself because of the simple fact that you're working with heavy materials. Now if you no fully recovered, is no point in going up in the building and make a mistake or hurt yourself or hurt someone else underneath of you because you can't afford mistakes and... Q: Do you recall you were off work about six months because of the injury in 1987, does that sound about right? A: Could be, could be. Q: I think that while you were employed with a company known as High Tech, is that right? A: High Tech, that's correct. Q: Did you go back to work with them? A: That's correct, yes, I went back to work with them and then I went back to JLT. Q: I think that you continued to see Dr Ayscough being treated for the problems with your back in August 1987, about eight months after the injury. That would be correct, would it not? The first injury was on 14 January 1987, does that sound about right? A: The one that was carrying the braces? Q: You slipped on loose dirt? A: That's it, that's it, yes. Q: That was on 14 January 1987? A: Must have been, yes. Q: You continued to see Dr Ayscough through that year. You saw him on 31 December 1987 and he suggested you lose weight? 4 UNREPORTED JUDGMENTS A: L always was a big fellow, that's nothing unusual. Q: I think you in fact saw him on 5 July 1988 in relation to a further injury you had had to your back. That is when you fell, lost your balance. A: Yes, I pulled a muscle then, but it wasn't a major injury. Q: The other one was a major injury in 1987, was it. A: No, well, I hurt my sciatic nerve which - that's what I said, it took a while to heal up.... Q: I think you finally resumed work in October 1988. A: Yes. Q: So that as a result of the fall you had in June 1988, you were off work for about three months, four months, would that be correct. A: Must be. If it's written down, it must be, I can't remember now. Q: The fact is, is it not, that you had continual problems with your left leg with pain radiating down your left leg from 1987 until the time you had your injury in 1989. A: Aha. Q: Is that correct. A: Well, you 're saying it, yes. Q: Is that correct or not. HIS HONOUR: Just because Mr Willis says it it does not mean it is correct. He is asking you whether it is correct and you let him know whether you say it is correct or whether you say it is incorrect. Q: Is it correct? A: Yes. " The worker was then cross examined about his alleged failure to tell the employer's doctors about the injuries before that of January 1989: "Q: I suggest to you that you did not tell [Dr Pheils] that you had any previous problems with your back or left leg. A: I said to every doctor that 1 seen that I - in the building game you always have accident; I mean no big ones, but pull muscle like pulling my sciatic nerve. I never even thought that it was going to be taking me that long to get back on order again, and he did, he just, you know, I was just totally a minor slip, obviously, I didn't think anything at the time but... Q: Sir, you were asked questions by Dr Anderson about whether or not you had had any previous problems prior to January 1989 with your shoulder, back or leg, is that correct or not? Can you remember him asking you that. A: He asked me... Q: Do you remember him asking you those questions? A: All I say was that 1 had pulled muscles in my back and things like that. I told every single doctor that I've seen that I'd had injuries before, yes, but no very major because this what I call a major injury. " In re examination the following questions and answers ensued: "Q: He asked you about any previous back problem and left sciatica problem. A: That's right. Q: You told him that 12 months before you had had low back pain and left sciatic problem. A: Yes. Q: That you had fully recovered and at the time of the 1989 incident you felt fully recovered. A: I was good as gold. Q: Was that the fact, that by the time of that accident you had fully recovered. A: That's correct..." URWT SCAFFOLDING INTERNATIONAL PTY LTD (IN LIQUIDATION) v SILVA (Kirby P) 5 The strategy of the foregoing questions in cross examination was not only to attack the worker's credit (by reason of what he had allegedly failed to tell the employer's doctors). It was also to deflect attention from the seriousness of the worker's employment injury of January 1989. From answers to questions by the Bench, it emerged that the reasons for this attempted deflection were twofold. First, as was disclosed, the injury in 1987, which was the first in the series, occurred in the course of the worker's employment for another employer ("High Tech) and thus involved, presumably, a different insurer. Secondly, it emerged from an uncontested statement from the Bar Table that the worker has commenced Common Law proceedings against the employer. The circumstances of the minor injury of mid 1988 were not such as to attract common law liability. But it was conceded that the injury of January 1989 was such as might give rise to a claim for damages. To this extent it was in the worker's interests to try to deflect responsibility for his continuing disabilities to the injury of January 1989 in order to secure any estoppels that might arise from the findings of the Compensation Court. On the contrary, it was in the employer's interests to try to deflect liability away from injury of January 1989. A further reason for the employer's strategy was, by emphasising the significance of the first injury of January 1987, to possibly escape the threshold fixed by the Act for the recovery of compensation for pain and suffering. The primary judge's determination O' Meally CCJ recounted the injuries which me worker had had prior to the injury of 7 January 1989 which the worker was claiming for his continuing disabilities: "Tn January 1987, he hurt his back and was absent from work, seemingly, for a period of some six months. Treatment, it is said, endured until the end of 1987. On 30 June 1988, whilst employed by the respondent, he hurt his back again. On this occasion it was accompanied by sciatica. His evidence is that he was absent from work for a period of six weeks, though there is a suggestion in the clinical notes of his general practitioner, which are before me, that he was absent from work for a longer period. The note under the entry for 12 October 1988 is "Clearance for work 21/10' From that I was invited to infer that he was absent from work until 21 October 1988. That fact has not been proved and if it were the case it would have been open to the respondent to prove it. The entry in doctor's clinical notes does not establish the applicant was absent from work until 21 October 1988 and I am not comfortable in drawing such an inference from the entry. " O'Meally CCJ was, however, unimpressed by the contention that the earlier injuries (one with another employer and the other with the appellant) were implicated in the continuing disabilities which sustained the claims based upon s66 and s67 of the Act. He said: "The significance of the earlier injuries is that investigative studies conducted before and after 7 January 1989 do not show any change in the pathology of the applicant's spine. CT studies conducted by Dr Lim on 18 July 1988 showed slight bulging at L4 - 5, but the thecal sac was preserved. Otherwise, there was no abnormality revealed. Dr Gale conducted similar studies in June 1991. The only change between 1980 and 1991 was the presence of early osteoarthritis at the lumbo sacro apophoseal joints upon which Dr Gale commented. Otherwise the condition was substantially the same. The applicant's evidence is that after returning to work as he said, some six weeks after the episode on 19 June 1988, he had no problems until the episode of 7 January 1989. This was a very nasty accident and followed a fall of some 15 6 UNREPORTED JUDGMENTS metres [and] the type of fracture sustained to his arm it is not surprising, nor is the haematoma which developed, nor his back pain." His Honour then dealt directly with the employer's submission that the impairment to the worker's back could not be said to have resulted solely from the "nasty" injury of 7 January 1989: "Tn my view that submission would have greater strength if there had been a continuity of symptoms. However, I accept the applicant as a witness of truth and I accept that, for a significant time before 7 January 1989, he was untroubled by pain or discomfort in his back. I am therefore of the view that such impairment of his back as affects him is the result only of the accident of 7 January 1989. " The employer's challenges Before this Court, the employer mounted its challenge in two ways. But the first was misconceived. At the opening of argument an attempt was made to place before the Court the transcript of the worker's testimony before Moran CCJ. Apparently this was ventured upon the footing that the evidence which had been given by the worker before Moran CCJ, in the claim for weekly benefits, was inconsistent with the evidence which the worker gave before O'Meally CCJ in his claims under s66 and s67 of the Act. For a number of reasons, the Court declined to accept the transcript so tendered: 1. As the official transcript of the proceedings before O'Meally CCJ revealed (and as was conceded) the transcript of the evidence before Moran CCJ was not tendered in those proceedings. The judgment of Moran CCJ was tendered and read as it was by this Court; 2. The cross examination of the worker contained not a single question directed at the inconsistency of his evidence before O'Meally CCJ when compared to that given before Moran CCJ; and 3. Counsel could not agree that it was the practice of the Compensation Court (assuming this to be proper) to act upon the transcript of earlier proceedings between the parties as if such transcript were tendered without requiring that formality. Given the care that O'Meally CCJ took to have it recorded that he was reading the judgment of Moran CCJ, and nothing else, it should not be assumed that the practice of the Compensation Court is different than that which the rules of evidence (and one might say procedural fairness) require. When these difficulties of admitting the transcript were pointed out, counsel for the employer properly accepted that he could not rely upon this attack upon the worker's evidence and credit. That left the attack which was ultimately presented. It was said that O'Meally CCJ had mistaken the evidence before him and mis stated it in relation to the period of time that the worker was off work following the injury of June 1988. O'Meally CCJ stated that this was "a period of six weeks". However, the combined evidence of the worker and of Dr Ayscough would appear to make it plain that the worker was actually off work until 21 October 1988. O'Meally CCJ's rejection of the note in the medical practitioner's report ("clearance for work 21/10") appears to have been misconceived. For the passage in which the worker was pressed during cross examination, he ultimately agreed that he resumed work in October 1988. This means that he was off work not for six weeks (as stated by O'Meally CCJ), nor six months, as the worker's then counsel at one stage stated, but three and a half months, ie fourteen weeks. This is a mistake of fact. It is not irrelevant to the determination of the seriousness of the URWT SCAFFOLDING INTERNATIONAL PTY LTD (IN LIQUIDATION) v SILVA (Kirby P) 7 injury of June 1988. Self evidently, the longer the period the worker was required to be off work following that injury, the more significant the injury could be ordinarily brought to be. Perhaps more significantly, the employer attacked O' Meally CCJ's conclusion: "... Laccept the applicant as a witness of truth and I accept that, for a significant time before 7 January 1989, he was untroubled by pain or discomfort in his back The cross examination of the worker did ultimately elicit the affirmative answer to the leading question: "The fact is, is it not, that you had continual problems with your left leg with pain radiating down from your left leg from 1987 until the time you had your injury in 1989. " Upon this footing, the employer suggested alternatively that: 1. O'Meally CCJ's conclusion concerning the cause of the worker's continuing incapacity was undermined by the mistakes of fact finding upon which that finding rested; or 2. That his Honour had failed adequately to expose the grounds for his conclusion and had thus not fulfilled the judicial obligation to state the reasons for the award which he entered implicating only the employer and the last injury in the sequence." Matters of approach It is convenient to state a number of matters of approach to a case such as the present. They can be stated briefly because I do not believe that they are controversial: 1. Parliament has provided the facility of appeal from the Compensation Court to this Court. See Compensation Court Act, 1984, s32. It has enlarged that facility by permitting, in cases such as the present, where proceedings were commenced after the appointed day, the appeal would no longer be limited to a complaint in point of law but would embrace complaints about fact finding in which, any tribunal, however expert and diligent, can make mistakes and occasion injustices. This Court must fulfil faithfully the jurisdiction which Parliament has conferred upon it and do so neutrally whether the complaint is by a worker or by an employer or other party; 2. Nevertheless, the procedure for ventilating the complaint is an appeal. It is not a primary hearing. This Court is not involved in the full conduct of the initial trial. It does not see the witnesses. Typically it is taken to selected parts of the transcript. The realities of the pressure upon this Court are such that it will rarely be possible for the Court to read every page of the appeal book with the care that might be expected of a primary judge. Necessarily the Court is dependent upon the parties or their representatives to draw to its attention the salient points of the evidence supportive of the respective cases of the parties. Being an appeal, it is for the appellant to demonstrate error. Otherwise, the authority of this Court to disturb the decision of the primary judge will not be enlivened. The mere fact that the Court may incline to a different opinion on the facts will not alone be sufficient to justify the disturbance of the decision at first instance; 3. The appeal comes to this Court from a specialised Tribunal which is dealing with compensation cases and conflicting lay and medical evidence every day. The flavour of the expertise of the Compensation Court can be found in the judgment under appeal. Medical conditions, unfamiliar to a lay body are stated in the judgment without definition simply because those practising in the Compensation Court are, or are taken to be, familiar with the medical terms used and the 8 UNREPORTED JUDGMENTS ordinary and oft repeated conflicts of medical opinions expressed. It can be inferred from the establishment of a specialised Compensation Court (one might say especially given the abolition of such bodies elsewhere in Australia) that the Parliament of this State has entrusted the decision making in (relevantly) questions of medical causation and the aetiology of incapacity to a specialist tribunal comprised of specialist members whose expertise is refined by the repeated performance of their tasks. This does not mean that error cannot be established. But it does impose upon a generalist Court of Appeal such as this a degree of care in substituting its opinion on such questions for that of the specialist judge; 4. Mistakes of fact finding can readily occur in a busy court which is required, in order to get through its list, to proceed to ex tempore judgments in order to permit the next case to start. The Court can take notice of the heavy list in the Compensation Court and the pressure on the judges, faced with claims, often for sustenance, by injured workers, to deal with such claims quickly. Excessive fastidiousness in fact finding cannot be required. What is required is accuracy in important facts. Where error of fact finding is demonstrated from the reasons of the Compensation Court judge, the question is then posed as to whether such error is sufficient to require the intervention of this Court and the setting aside of the award of the Compensation Court. Not even error of fact finding will require that result. Necessarily, it must be shown that the error is such as might have affected the outcome of the proceedings and, if corrected, might result in a different outcome warranting the serious step of displacement of the award and the requirement of a retrial; and 5. By the authority of this Court, judges of the Compensation Court are required to give reasons for their decisions. But those reasons do not oblige them to address every item of evidence called or even every argument of the parties. It is sufficient that the grounds for the decision reached are exposed, demonstrating the way in which the award was arrived at. See Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA), 274, 280. Conclusion: mistake but not significant The employer mounted a strong argument that, for the actual claims being considered by O'Meally CCJ (relevantly for the loss of the use of the left leg and permanent impairment of the worker's back) it was critically important to find accurately the significance of the radiation of pain into the left leg which the worker ultimately accepted that first followed his injury of 1987. I have some sympathy for this argument and for the complaint that the reasons given could have indicated more precisely the basis upon which his Honour rejected the significance of the earlier injuries, especially that of 1987. I regard this case as a borderline one. But in the end, I have concluded that the established errors of fact finding are not such as should occasion the intervention of this Court. My reasons are these: 1. O'Meally CCJ accepted the evidence of the worker as that of "a witness of truth". The decision which his Honour reached must therefore be approached upon that footing. It is perhaps worth noting that Moran CCJ earlier had reached a similar conclusion. But when this Court is asked to disturb the award of O'Meally CCJ it must approach its function bearing in mind the advantages which his Honour enjoyed and the conclusion which he reached concerning the worker's evidence. We do not have those advantages. We can only disturb an award resting upon the impression of the truthfulness of the worker in the very narrow circumstances permitted by the repeatedly expressed authority of the URWT SCAFFOLDING INTERNATIONAL PTY LTD (IN LIQUIDATION) v SILVA (Kirby P) 9 High Court of Australia. See Abalos v Australian Postal Commission (1991) 171 CLR 167, 178f. One may have reservations about the principles laid down in this authority which can often frustrate the utility of appeal and cloak injustice in primary decision making. But this Court is bound by the authority and must apply it; 2. Whilst it is true that the worker did not, as per O'Meally CCJ, uniformly state that "for a significant time before 7 January 1989 he was untroubled by pain or discomfort in his back", that was the general thrust of his evidence which I have troubled to set out in order to demonstrate the fact. It is correct, as the respondent states, that, ultimately, under cross examination, the worker agreed that he had had "continual problems" with his left leg from 1987 until the injury of 1989. But the reluctant way in which that question was affirmatively answered and the initial willingness to answer it affirmatively only because counsel had stated it may have led to the answer being discounted by O'Meally CCJ; 3. There was certainly contrary evidence which, by inference, his Honour must have accepted. This was the evidence most vividly encapsulated by the worker's evidence (in reply) that at the time of the 1989 incident he had fully recovered and was "as good as gold". If that statement was accepted, it provides a foundation for O'Meally CCJ's critical conclusion; 4. It is also borne out by the simple fact that the worker returned to full duties as a rigger and scaffolder. Indeed it is borne out by the very work which he was performing at the time he was injured in January 1989. This was arduous awkward work, not really suited to a person with a serious back or leg difficulty. Yet after that accident in January 1989, unsurprisingly given its gravity, the worker's symptoms were continuous and serious; 5. The employer failed to produce the records which were uniquely available to it to demonstrate exactly how long the worker was off work following the earlier injury with it in June 1988. Instead it relied upon cross examination of the worker and medical reports. In these circumstances, there can be little surprise that there was doubt and uncertainty about the precise times. To that extent, the employer failed to prove relevant evidence; and 6. The employer also failed to ask questions of the worker or to call medical witnesses who could have been questioned concerning the significance of the respective times that the worker was off work prior to the apparently major injury of January 1989. The matter was simply not addressed in terms to the medical reporters in a way that would throw up the issue and permit a confident conclusion to be reached that there is an important difference between an absence from work of six weeks and absence of fourteen weeks. Without such evidence it was not unreasonable for O'Meally CCJ to put store upon the worker's conclusion that injuries of various kinds were an incident of his work, that muscle pulls and the like were not major but that the injury in January 1989 was of major significance and was the true explanation of the symptoms of pain and disability that followed continuously thereafter. Remaining matters The employer also challenged the actual findings of permanent loss of the left leg. It pointed out that Moran CCJ had made no specific finding of an injury to the worker's left leg. However, this is irrelevant given the different purposes of the fact finding required of Moran CCJ and that required of O'Meally CCJ. The employer argued that O'Meally CCJ did not in his judgment give reasons for his decision that the worker was entitled to a 10% loss of the use of the left leg at or above the knee. It asserted that the worker's case was that such loss was 10 UNREPORTED JUDGMENTS related to referred pain from the back. By his failure to provide reasons, it argued that O'Meally CCJ had not permitted a proper examination of whether or not he had taken into account the evidence of the worker's previous injuries which had resulted in referred pain into the left leg at above and below the knee. For the reasons given above, I do not believe that this Court should intervene. As stated, the brief reasons given by his Honour are less than perfect in this regard. But it can be inferred that he concluded that any referred pain which had existed prior to January 1989 had sufficiently resolved by the time the major injury took place. That injury, falling through a distance of four stories of a building site was of the kind which commonsense suggests could cause the disabilities of which the worker complained, without positing any prior consideration. But commonsense in this case was supported by numerous medical opinions. Dr RF Ayscough (4 September 1989) attributed his incapacity "direct" to the fall he sustained and by inference the disabilities too. Dr Eric Caspary (19 May 1992) attributed the shoulder and left lower limb injuries to the incident of January 1989. So did Dr Ian Collins (13 August 1992) and Dr Alan Nicholls, who reported for the employer (29 September 1989). If the employer complains that some of these reports and opinions were based upon inadequate history, its proper course was to object to the reception of the reports with the incomplete history and/or to require that some or all of the medical practitioners who expressed their opinions should be tendered for cross examination upon the elaborated history. Instead of tendering the transcript of the earlier proceedings now said to give rise to inconsistencies and examining the doctors on the significance of those inconsistencies of the earlier injuries and disabilities, the employer relied upon a few answers in cross examination and the argument of its counsel rather than evidence. When the objective facts are examined, they remain these. The worker had earlier injuries. But he had returned to full arduous duties. He then had the major injury which was inculpated by O'Meally CCJ. From that point onwards, he had serious pain and disability as might be expected from the very nature of that injury. The employer might have had a case if it had been properly prepared and presented. But it cannot come to this Court to seek the repair of the way in which the case was placed before the primary judge at Bundaberg. Orders The appeal should be dismissed with costs. Mahoney JA I agree that the appeal should be dismissed. The essential facts are stated in the judgment of Kirby P which I have had the advantage of reading. I shall therefore state shortly my reasons for agreeing with the order which the President has proposed. It is clear that the worker was badly injured by the fall which occurred on 7 January 1989. In 1991 it was found that his injuries on that occasion arose out of or in the course of his employment and he was awarded periodic compensation. Subsequently, he pressed his claim for lump sum compensation under s66 and s67 of the Workers Compensation Act 1987. It is the order for lump sum compensation which is the subject of this appeal. I put aside the submission that the judge erred in failing to give sufficient reasons for his decision: I agree with Kirby P's conclusion that that submission should fail. It is the effect or significance of the worker's previous injuries to which attention was, in the main, directed. (The shoulder injury was, in argument, put aside. It was to the back and leg injury to which the argument was directed). UBU SCAFFOLDING INTERNATIONAL PTY LTD (IN LIQUIDATION) v SILVA (Mahoney JA) The worker had suffered at least two previous injuries. The evidence or the cross examination suggested one injury in January 1987 and another in about June 1988. There was, I think, little doubt that such injuries occurred. What is not clear is what is the relevance of them for the purposes of this appeal. During argument, two suggestions emerged: one substantive and the other evidentiary. The first suggestion was, I believe, that the previous injuries and not the instant injury of 7 January 1989 were the cause of the disabilities for which the worker sought the lump sum orders or at least that the previous injuries had contributed to such disabilities. The judge held that they were not relevant. He held in terms that, as far as concerned the back impairment, it was "the result only of the accident of 7 January 1989". The submission suggested, I think, that the judge's conclusion in this regard was wrong and that, on a rehearing by this Court, it should be reversed. It suggested that the judge's conclusion depended upon or was affected by an error of fact and that that error of fact invalidated the conclusion and required a re examination of the matter. The error of fact suggested was related to the period of time that elapsed between the injury of June 1988 and his return to work. The worker had said that he had returned to work some six weeks after that injury; it was, Mr Poulos QC suggested, not until about mid October 1988 that he returned to work. Mr Branson QC for the respondent worker conceded that in this regard the judge erred. I shall assume, without so deciding, that he did. It is, on this assumption, necessary to consider whether that error should lead this Court to conclude that the difficulties resulting from the accident of January 1989 were not caused by that accident but by the earlier injuries. To decide that it is necessary to consider the process of reasoning followed by the trial judge. Mr Poulos QC submitted that medical evidence strongly supported the conclusion that the worker's injuries resulted, wholly or mainly, from the earlier injuries and in particular those of June 1988. But the trial judge, in my opinion rightly, saw a fall of the kind which occurred in January 1989 as apt to produce the results claimed by the worker. His Honour pointed to the fact that previous investigations after the first two injuries had not shown any "abnormality" which he saw as significant. The worker said that when he returned to work he was "good as gold". He gave evidence to that general effect both in chief and in re examination. On this basis, his Honour concluded that the accident of 7 January 1989 was the only cause of the relevant impairment. In coming to this conclusion, his Honour placed reliance upon the fact, as he found it to be, that the worker said he had fully recovered from the earlier injuries. His Honour concluded that the worker had returned to work "some six weeks after the episode on 19 June 1988 (and) he had no problems until the episode of 7 January 1989". He said that the submissions in relation to the previous accidents "would have greater strength if there had been a continuity of symptoms". His Honour said "that for a significant time after 7 January 1989 (the worker) was untroubled by pain or discomfort in his back". It was this absence of symptoms "for a significant time" which played a part in his Honour's reasoning to his conclusion. It was to this point in the argument to which the submissions of Mr Poulos QC were directed. They were, or at least they involved, that the worker returned to work not six weeks but only after some three and a half months after the accident of June 1988, that the period between that return to work and 7 January 1989 was not "a significant period" within the judge's reasoning, and that when the medical 12 UNREPORTED JUDGMENTS evidence was weighed the proper conclusion was that when the worker was injured in January 1989 he was not fully recovered from the previous injuries. If the matter fell to be considered on that basis, I do not think that the submission should be accepted. I would conclude that, during the period between his return to work and the final accident, the worker had been free of symptoms suggesting ongoing effects from the earlier accidents. He was working in a construction industry, though not necessarily in the most strenuous of positions. His doctor had certified that he was fit to return to such work. And there was nothing directly to suggest that during that period of work he suffered any symptoms of the earlier accidents. But the matter goes further. As I have said, the worker said and repeated that, when he returned to work, his condition was, as he described it, "good as gold". His Honour accepted him as "a witness of truth". That finding, if accepted, adds significantly to the evidence that the worker was no longer suffering from the effects of the earlier accidents. Were the evidence and the findings such, I would, on a rehearing, conclude that the judge's findings in this regard were correct. That leads to the second suggestion made by or involved in Mr Poulos' arguments. He submitted that the court should not accept the worker as a witness of truth, should not find that, at the relevant time, he was "good as gold", and accordingly should find the impairment for which lump sum compensation was claimed as relevantly related to the earlier injuries. In this, Mr Poulos recognised, I think, that the acceptance of the worker as a witness of truth and accordingly the acceptance of his evidence as to his condition during this intervening period, was a matter of importance in determining the cause of this impairment. Mr Poulos was, of course, faced with the principle illustrated in Abalos v Australian Postal Commission (1990) 171 CLR 167. This may well have been one of the cases in which the advantage of seeing the witness in evidence was of assistance in deciding whether what he said in relation to this period was true. To take but one example, the way in which the witness, in cross examination, made concessions as to what he had said in chief and the suggestions of the cross examiner might well, and justifiably, have helped the judge in his assessment of the witness's credibility. The only, or only substantial, basis on which Mr Poulos could contend that his Honour's assessment of the witness as "a witness of truth" should be put aside was the mistake which his Honour made as to the period off work following the June 1988 injuries. It was in effect submitted that, because he had made this error, his Honour's assessment of the witness could be put aside. I do not doubt that if a trial judge's assessment of the acceptability of a witness is based on or affected by a finding of fact which is wrong, that assessment of the witness may be reconsidered. It is, of course, not every erroneous finding of fact which will affect the assessment of a witness: the finding of fact may have little or nothing to do with that assessment. The suggestion involved in the present submission is, I think, to the effect that had the judge recognised that the worker's statement that he had returned to work after about six weeks was wrong, he would or might have refused to accept him as a witness of truth. I do not think that, in the circumstances of this case, that would have affected his Honour's assessment of the worker. The worker had accepted in chief that he was off work for "about six weeks" as "roughly" correct. When it was put to him that he had been off work for the longer period, he said: "Must be. If it's written down, it must be, I can't remember now". His Honour might well have thought that the error in question resulted, not from an intention of the worker to deceive, UBU SCAFFOLDING INTERNATIONAL PTY LTD (IN LIQUIDATION) v SILVA (Priestley JAB but from uncertainty of recollection as to dates. Were I required to judge the matter upon the written evidence, I would so conclude. But, however that be, I do not think that the acceptance of error in this regard should lead this Court to put aside his Honour's assessment of the worker. His Honour found the worker to be "a witness of truth". That finding is to an extent ambiguous. It may mean that the witness was trying to speak the truth and was accurate or that he was trying to tell the truth but was inaccurate. A credible witness is sometimes not an accurate witness. I believe that his Honour's assessment was intended at least to indicate that he accepted the worker as attempting to tell the truth. Such a finding is, of course, not invalidated by the fact that a part of the witness's evidence is found to be inaccurate. If, with the advantage of a trial judge, a finding of credibility alone is made, an appeal court is not authorised to put aside that finding merely because some of the evidence given is in fact inaccurate. On the concession made, that was, in my opinion, the position in the present case. I do not think that the conceded error affects the acceptance of the worker as a witness attempting to tell the truth. This, of course, is of importance because in this regard the question is whether the worker should be accepted when he said that at the time of the 1989 accident he felt fully recovered and was "good as gold". The fact that he was inaccurate in the estimate of time off work in 1988 does not, I think, determine the acceptability of what in that regard he said. I therefore agree with the orders proposed by Kirby P. Priestley JA I agree with the conclusions of Kirby P and Mahoney JA on the facts of this case. The appellant was able to point to what may have been some misunderstanding by O'Meally CCJ of the evidence before him. I am not persuaded that all of the appellant's submissions about this are correct. Some answers which read on the printed page as admissions, seem to me not to have been treated as such by the trial judge, because of the way they were extracted in cross examination. This is a true instance of a trial judge having an advantage over an appellate court. He had the data, in addition to what appears in the transcript, of the attitudes and expressions, and manner and speed of speech, of counsel and party, of which this court has none. How could this court, on the transcript in this case, confidently decide the judge was wrong in the impression he formed of such answers as those at 20 of the transcript, at 28 of the Appeal Book (and see T 36, AB 44)? Only by persuading itself that with significantly less data than the trial judge had, it knows better than he what was meant by the witness, this being in the absence of any particular reason for such a conclusion. It would not be a reasonable path for this court to take in this case. In my opinion any factual misunderstanding by the trial judge did not detract from his substantial findings, which were fully grounded by the evidence as he saw it, and the way he saw it was in my opinion reasonable. Further, his reasons were adequate for an ordinary reader to understand why he reached the result he did. In my opinion the appeal should be dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: J Poulos QC / TJJ Willis Instructed by: PW Turk and Associates 14 UNREPORTED JUDGMENTS Counsel for the Respondent: CC Branson QC / MJ Cranitch Instructed by: Beilby Poulden and Costello