WOOD v COAL AND ALLIED OPERATIONS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, SHELLER and COLE JJA 11 September 1995, 21 September 1995 [1995] NSWCA 525 WORKERS COMPENSATION — application of Stead vy State Government Insurance Commission (1986) 161 CLR 141. Priestley JA I agree with Cole JA. Sheller JA I agree with Cole JA. Cole JA The appellant Robert Wood claimed workers compensation by application dated 26 October 1992 for disabilities said to prevent him performing overtime, though not from working as a fire patrol officer. The injuries said to cause the incapacity were particularised as having occurred on various dates between February 1981 and January 1992. The application stated the nature of injury as: "Severe injury to the upper back, lower back and legs and left hip. Anxiety and depression." However, that was not the manner in which the case was fought. The case made by the applicant was that he suffered incapacity by virtue of a physical disability which was said to be injury to his thoracic back. That is clear from the submissions recorded at pages 6 and 7 of the transcript of addresses on 31 March 1993. There the appellant/applicants counsel said: "T am really referring to the thoracic situation which the applicant perceived to be symptomatic and the most severe." He went on to note the lesser complaints relating to the low back and hip and suggested that by not relating a disability to those two asserted conditions, in respect of which there was some objective support, the credit of the applicant was established or improved. The applicant's counsel then said: "T am not saying he gets over the threshold because of that medical support per se." It is in my view clear that the case was fought on whether or not such incapacity as the applicant could establish flowed from a work related thoracic injury. Duck J perceived that to be the issue. In his judgment he said: "His case is, stated shortly, that by reason of accidents occurring in 1981 principally and thereafter, he has been prevented from earning as much as he would otherwise have earned by virtue of physical disability.... At the heart of this case is the absence of any objective signs which would explain his major disability, which he says is pain in the thoracic spine. This is so,despite x-rays, CT scans and thoracic myelogram. Ultimately, I think the absence of any objective medical sign which would serve to explain the applicant's complaints, persuades me that the opinions expressed by the respondent's doctors are, in this case, to be preferred to those proffered on behalf of the applicant" 2 UNREPORTED JUDGMENTS The applicant did not conduct the case before the trial judge upon the basis that he had suffered a psychological injury resulting from the accidents resulting in the incapacity alleged. His case, at trial was that the incapacity was a physical one. There was a clear division of medical opinion before his Honour. It was common ground that no x-rays, CT scans or myelograms showed physical damage to the thoracic back. Doctors qualified on behalf of the defendant said, in those circumstances, there was nothing wrong with the applicant. Doctors qualified by the applicant said that there was, the injury being in the nature of a soft tissue injury, though variously described. The trial judge was entitled to form the view that he preferred the medical evidence of the defendants. There is no basis upon which this court could, or should, interfere with that finding. The result is that the appeal must fail. The learned trial judge, having made the finding which I have recorded, and which determined the applicants case against him, went on to advert to "other matters". First, the applicant claimed he could not work overtime: indeed that was the basis of his claim for compensation. The judge was unimpressed by the applicants endeavours to work overtime they being six endeavours in 12 years. His Honour was obviously not satisfied that, even if some physical disability, or indeed some psychological disability had it been argued, had been shown, it had been established to his satisfaction that any incapacity resulted from it. Second, his Honour referred to some "straws in the wind which have a bearing on how one determines the outcome of this case". Three matters were referred to. The first was the varying location of the pain which the applicant had described to different doctors. The second concerned his asserted inability to sit down. The trial judge noted that he had told Dr Booth he could not sit for longer than 15 minutes, told Dr Millons that he could sit for half an hour, and referred to Dr Puflett's evidence that the applicant was able to sit for an hour without apparent trouble whilst giving his history. His Honour then noted: "Tn court, which was some years later, of course, he appeared to sit without apparent discomfort throughout the course of his evidence. When that was finished, he sat in the back of the court while the rest of the case unfolded." This last sentence was said to infringe principles enunciated in the High Court in Stead v State Government Insurance Commission! and by this court in Government Insurance Office of NSW v Bailey2. I do not so regard that sentence. It could not possibly have had a "significant influence" upon the trial judge's decision, he previously having resolved the appeal on the basis of the competing medical evidence, and further having made clear that he did not accept that any established disability resulted in incapacity to work overtime. The third "straw in the wind" adverted to was inconsistency in the histories given by the applicant to the various doctors concerning his capacity to fish with a rod. In concluding his judgment the trial judge made clear that none of the "straws in the wind" would themselves resolve the case but, taking them into account they reassured the trial judge in his finding that the evidence of the doctors qualified by the defendant was to be preferred to those qualified by the applicant. Although it is obvious that the trial judge did not accept the applicant as being 1. (1986) 161 CLR 141 at 145. 2. (1992) 27 NSWLR 304. URJ WOOD v COAL AND ALLIED OPERATIONS PTY LTD (Cole JA) 3 a witness of good credit, he properly found it unnecessary in resolving the case to make any finding whether, as at least one of the defendant's doctors contended, the applicant was a malingerer. The ultimate finding of the trial judge was: "T am not satisfied that the applicant has the incapacity for which he is contending". That finding is consistent with the two earlier findings that the thoracic back disability had not been established, and nor had the applicant satisfied the trial judge that, whatever his condition in fact may have been, he was incapable of performing the overtime for which claim was made. The appeal should be dismissed with costs. Appeal dismissed with costs. COUNSEL: Appellant: M Neil QC/D Benson Respondent: C O'Connor QC/K Rewell SOLICITORS: Appellant: Reid and Reid, Newcastle Respondent: Sparke, Helmore and Withycombe