SYDNEY ELECTRICITY v MOURSELLAS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY AP, SHELLER and COLE JJA 1 September 1994, 1 September 1994 [1994] NSWCA 301 WORKERS COMPENSATION: aggravation pre-existing condition; finding of Commissioner on issues of fact or credibility; no incontrovertible evidence to the contrary of finding In 1981 the respondent was injured in a motor vehicle accident as a result of which he suffered injury to his right dominant arm. In 1985 he commenced work with the appellant and in 1990 applied for compensation for aggravation or acceleration of an existing arthritic disease in his right wrist and arm. The application was heard by a Commissioner who made an award in favour of the worker against the appellant. On the appellant's application for review under s36 of the Compensation Court Act the award was confirmed. The appellant appealed under s32 of the Compensation Court Act on two bases; first, that the respondent's credibility had been so undermined in cross examination and by comparison with the histories recorded by his doctors that his evidence of aggravation should not have been accepted and, second, that the medical evidence accepted by the Commissioner and the Judge on review was undermined by the inaccuracies of the histories upon which it was based. Held: (i) (On credibility). It has been repeatedly stated in the High Court that if a decision of fact is made after having seen a witness give evidence orally and is based upon an acceptance of the credibility of that witness, in the absence of incontrovertible evidence to the contrary, the Court cannot intervene with a finding so based. (ii) (On medical reports). The doctors' reports tendered on behalf of the respondent were admitted without objection and no doctor was required to attend for cross examination. It was open to the Commissioner and the Court on review to act on the opinions therein expressed. Sheller JA The employer, which is now known as Sydney Electricity, appeals from a decision of his Honour Judge Gibson given in the Compensation Court on 4 February 1992. The respondent worker, Manuel Moursellas, filed his application for compensation on 19 February 1990. Sydney Electricity was the first respondent to that application and another employer, Tempo Services Pty Ltd, was the second respondent. In the form of application the applicant said he was employed by the appellant as "Linesman Grade 1". In para5 when referring to the "date and place of injury, nature of work on which worker was then engaged, and cause of injury" he said: "Nature and condition of the Applicant's employment with the Respondent involving frequent lifting and working in awkward spaces, placing stresses on the Applicant's right wrist and arm, from date of commencement of employment in February, 1985 until July, 1989." The nature of injury was described as "injury to right wrist and arm caused and/or materially aggravated by the circumstances outlined in paraS hereof." The application was heard by Commissioner Cross; the hearing taking place in August 1990. At the hearing the worker gave evidence and was extensively cross 2 UNREPORTED JUDGMENTS examined. The respondent called one witness, Mr Ehsman, who gave some evidence which is not significant in this appeal. A number of medical reports were tendered and admitted into evidence without objection. These were reports from Dr Rowden, Dr Yip, Dr Rowe, Dr Thorpe and Dr McKessar; all of which were tendered by the applicant worker and all of which were tendered after the applicant worker had given his oral evidence. The second respondent tendered a report by Dr Wearne, again without objection. The facts as found by Commissioner Cross were as follows: "In 1981 the applicant was injured in a motor vehicle accident as a result of which he suffered injury to his right dominant arm. He was apparently unemployed at the time. He came under the care of Dr Roger Rowe. According to Dr Rowe in a report dated 20th July, 1982, there was a non union of the scaphoid which was excised and a silatastic replacement was implanted. Dr Rowe's prognosis at the time was This will leave him with what should be a pain free wrist but with some occasional discomfort and a permanent degree of weakness in the wrist.' The worker said and I accept his evidence, that in the time between 1982 and the beginning of 1985, the condition of his arm remained unchanged but with swelling on and off. It continued that way after he entered the first respondent's employment up to the time when he finished a six months linesman's training session. Apparently, it was from time to time necessary to have a day or two off because of that swelling. The applicant commenced with the first respondent in February 1985 as a labourer but after three weeks he became a bowserman at Menai. After a time he was appointed as a driver-courier, and following that as a fitter's labourer. Following commencement as a linesman, he started to do work involving the holding of an hydraulic drill gun in his right hand, drilling holes, then holding a bracket with one hand and inserting a cage screw. These actions required him to hold his right hand and arm, if not his left as well above his head. On the 25th February, 1988 the applicant started concurrent employment with the second respondent. This would have been around the time when his son was born. The job involved working four nights a week and sometimes Saturdays for a total of 12 or a little more hours per week. I think there are common grounds between the parties that the worker is suffering from incapacitating conditions of the right hand, wrist and arm." The Commissioner went on to say that the real issue was whether or not the applicant's condition was work-related. He then quoted from the opinion given by Dr McKessar on 3 May 1990 in which the doctor said: "In summary I believe it is unrealistic to have allowed this patient to indulge in linesman's work in the first instance and secondly, yes I believe there was aggravation of this underlying arthritic process in his wrist as a result of his work as a linesman." The Commissioner also referred to Dr Thorpe's opinion that work as a linesman aggravated the applicant's wrist. The Commissioner said, "Although the same doctor was of the opinion that work with [the other employer Tempo] was also an aggravating factor, the applicant himself had indicated in his evidence that such was not the case". In the award that he, made the Commissioner found in favour of the respondent employer Tempo. The Commissioner went on to say: URJ SYDNEY ELECTRICITY v MOURSELLAS (Sheller JA) 3 "Tt seems to me that the applicant is in the best position to say what was, and what was not, hurting his wrist, especially as by so stating he must have been aware that this would be likely to surrender any recourse he might have otherwise had to the second respondent for compensation. I accept Dr McKessar's opinion as to aggravation of the disease affecting the applicant's wrist. Clearly, also, the applicant is fit for a range of suitable work." The Commissioner made a number of specific findings as follows: 1. Applicant suffered injury arising out of or in the course of his employment as a linesman with the first respondent in 1988 and 1989, being the aggravation or acceleration of an existing arthritic disease in the applicant's right wrist and arm. 2. Applicant partially incapacitated thereby from 17th July, 1989 to date and continuing. 3. At all material times the applicant had one child dependent upon him for support. 4. Weekly amount which the worker would probably have been earning but for the injury - from 17th July, 1989 $421.44 and from Ist July, 1990, $472.71. 5. Average weekly amount which the worker is able to earn in suitable employment - from 17th July, 1989, $368 and from Ist January, 1990, $376. 6. No injury suffered by the applicant arising out of or in the course of his employment with the second respondent. It was proper on the available evidence for the applicant to have taken such proceedings. He made an award in favour of the applicant against the employer Sydney Electricity in the following terms: (1) That the first respondent pay the applicant, on the basis of partial incapacity, weekly compensation at the rate of- (a) $53.44 from 17th July 1989 to 31st December 1989. (b) $45.44 from 1st January 1990 to 30th June 1990. (c) $96.71 from Ist July 1990, such weekly payment to continue until the same be ended, diminished, increased or redeemed in accordance with the provisions of the Act. (2) That the first respondent pay the applicant's s60 expenses. (3) That the first respondent pay the applicant's costs forthwith after they have been agreed or taxed. (4) That leave be granted to the applicant to mention this matter in relation to the unquantified s66 claim. The appellant applied for review under s36 of the Compensation Court Act on a number of grounds which were set out in the notice of motion and then amplified in a very full written submission. This application for review was heard by his Honour Judge Gibson. No further evidence was led before the judge who dealt with the application for review, on the basis of the material that had been placed before the Commissioner and the written submissions which were furnished on behalf of the parties. In his judgment of 4 February 1992 his Honour confirmed the Commissioner's award and dismissed the application for review. In the course of his judgment his Honour said that employer's counsel, in his written submissions, had dissected the worker's evidence and the histories he had given to the various doctors, in minute detail and had been able to find a number of discrepancies. However, his Honour felt that looking at the main thrust of the worker's complaints, and in particular to the history obtained by Dr Yip on 9 4 UNREPORTED JUDGMENTS January 1989, those discrepancies did not persuade him that the worker should not be accepted as a reliable witness. Moreover, as stated by the worker's counsel, the learned Commissioner was able to observe the worker in the witness box during extremely rigorous and lengthy cross-examination and, no doubt, the discrepancies in the applicant's medical histories were brought to the attention of the learned Commissioner in counsel's addresses. However the Commissioner chose to accept the applicant's evidence of aggravation or acceleration of wrist symptoms in 1988 and 1989 whilst the worker was working as a linesman. His Honour said: "For my own part, I have formed the opinion that whatever the fluctuations or gradual worsening of the osteo-arthritis in the worker's wrist prior to 1988, there is no doubt in my mind that there was a significant aggravation brought about by his work as a linesman in 1988 and 1989, prior to his cessation of work on 17th July, 1989. Whatever criticism can be made concerning the report of Dr McKessar of 3rd May, 1990, he was firmly of the opinion that the work of linesman aggravated the osteo-arthritis in the right wrist. A similar view was expressed by Dr Thorpe in his various reports which were tendered." His Honour took account of the cases in which the function of a judge on review under the provisions of the Compensation Court Act has been discussed. The employer appeals to this Court under s32 of the Compensation Court Act. It is accepted by the respondent that the appeal lies both as to fact and as to law. The grounds of appeal filed have been, to some extent, abandoned and, to some extent, modified in counsel's written submissions. As they are now put, it is said: (ground 2) his Honour erred in finding that the respondent had suffered a work-related aggravation of a pre-existing medical condition resulting in an incapacity for work; (ground 5) his Honour erred in failing to analyse the conflicting medical evidence; (ground 6) his Honour erred in failing to consider both medical reports of Dr Rowe tendered in evidence; and (ground 9) his Honour erred in finding in the respondent's favour on the issue of the respondent's credit. It seems to me, listening to the submissions which were made with great care by Mr Nicholson who appeared for the appellant, that there were two fundamental grounds of complaint. First, that a review of the evidence as a whole would suggest that in cross-examination, and by comparison with the histories recorded by the doctors, the respondent's credibility was so undermined that his evidence of aggravation should not have been accepted either by the Commissioner or by his Honour or, at least, should not have been accepted without further explanation being given as to why it was accepted. Second, that the medical evidence, and particularly the opinion of Dr McKessar, was undermined by the inaccuracies of the histories upon which it was based. So far as the question of credibility is concerned, it has been repeatedly stated in the High Court that, if a decision of fact is made after having seen a witness or witnesses give evidence orally and based upon an acceptance of the credibility of that witness or witnesses, this Court cannot intervene with a finding so based in the absence of incontrovertible evidence to the contrary. Whatever may be one's views, having looked at the various parts of the cross examination to which Mr Nicholson took us and to the various matters in the history of the applicant before he became a linesman working for Sydney Electricity, I do not think that the grounds laid down by the High Court for our intervening have been established. URJ SYDNEY ELECTRICITY v MOURSELLAS (Cole JA) 5 It has been said, for example, that the applicant gave evidence reluctantly about a fall that he had in his own home in 1986 which apparently injured his wrist and called for medical attention. These were all matters which were before the Commissioner and were referred to as part of the extensive submissions that were put in writing to his Honour Judge Gibson. It may be that there was a high degree of probability favouring a conclusion that the applicant worker, prior to commencing employment with the appellant, had suffered greater injury or damage to or on-going symptoms in his right wrist than he was prepared to concede in evidence. However all that may be, I do not think that any ground has been shown for our intervening with the conclusion drawn by the Commissioner and by his Honour that during the time in which the worker worked as a linesman there was a work-related aggravation to his wrist injury. The second substantial basis for attack relates to the histories and, as I have said, particularly the history given in the report of Dr McKessar. Dr McKessar's opinion and the opinions of the other doctors were admitted without objection. None of the doctors was required to attend for cross-examination. In those circumstances it is difficult for the appellant to complain when his Honour accepts the opinions that those doctors gave. Once again, the matters that are now relied upon were put both to the Commissioner and in the extensive written submissions to his Honour Judge Gibson. I do not think that any ground has been made out for our intervening with the acceptance of those written opinions. In saying what I have said, I have paid careful attention to the various discrepancies as, for example, in that part of the worker's application which I read out, between his case as pleaded, his case as stated in parts of his history, his case as given in his evidence in chief and other parts of his evidence. I do not regard these matters as overcoming the fundamental problem that it was open to both the Commissioner and the Judge to accept the worker's own evidence that his injury had been aggravated, supported as it was by medical evidence which was not cross examined upon. Reference was made by the appellant's counsel to the decision of the High Court in Ramsey v Watson (1961) 108 CLR 642. It is, of course, correct that inaccurate history as a base for a medical opinion undermines that medical opinion but, in the present case, no objection was taken to the tendering of that opinion and the opinion was not examined upon. Therefore, as I have said, I think that the opinion was open in all the circumstances to be accepted. In conclusion, I do not think that any ground has been shown upon which we would say that either the Commissioner misused the advantage that he had in hearing the oral evidence of the worker, or that his Honour misunderstood the approach that should be taken on a review. I do not think any basis has been shown for our intervening with the conclusions reached. Accordingly, I would propose that the appeal be dismissed with costs. Priestley AP The appellant in this case had to overcome the rule which the High Court in a series of cases, including Abalos and Brunskill, has said intermediate appellate courts should apply when dealing with appeals asking that factual findings at first instance involving assessment of witnesses be changed. For the reasons given by Sheller JA, I do not think that the appellant was able to overcome the difficulties created by the High Court rule. This, in my opinion, leaves the court in the position where it must dismiss the appeal with costs. Cole JA I agree. 6 UNREPORTED JUDGMENTS Priestley AP: The order of the Court is therefore that the appeal be dismissed with costs. Counsel for the appellant: W B Nicholson Solicitors for the appellant: Bartier Perry & Purcell Counsel for the respondent: C J Wynyard Solicitors for the respondent: T D Kelly & Co