ASANOVIC v SYDNEY WATER CORPORATION LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY CLARKE and HANDLEY JJA 12 May 1995, 26 May 1995 [1995] NSWCA 24 WORKERS COMPENSATION ACT — APPEAL — NO QUESTION OF PRINCIPLE FACTS The appellant made a claim in respect of injuries to his back, left leg, right leg and penis on 27 November 1990. The appellant also claimed medical expenses occasioned as a result of the injuries. The substantial dispute in the proceedings revolved around the question whether or not the appellant did receive injury to his low back, legs and his sexual organ on 27 November 1990. The judge found that the appellant was not a credible witness. He accordingly concluded that he could not accept the appellant's claim that he had sustained an injury on the morning of 27 November 1990 in the circumstances alleged by him and thus found an award for the respondent. Held (per Clarke JA; Priestley and Handley JJA concurring) It cannot be said that the evidence of the witnesses accepted by his Honour was glaringly improbable or inconsistent with facts incontrovertibly established or that the trial judge had failed to use or had palpably misused his advantage: Devries v Australian National Railways Commission (1993) 172 CLR 472, at 479. His Honour was correct in the import which he attached to the appellant's statement. I am not persuaded that any error has pervaded his Honour's judgment nor do I think that any of the exceptions referred in Devries apply to enable this Court to reverse his Honour's finding. Priestley JA I agree with Clarke JA. Clarke JA The appellant, Zija Asanovic, brought proceedings in the Compensation Court seeking lump sums for permanent impairment of the back and pain and suffering in relation to injuries which he alleged occurred on 7 May 1986. He made a further claim in respect of injuries to his back, left leg, right leg and penis on 27 November 1990. The appellant also claimed medical expenses occasioned as a result of both injuries. The case was heard by Judge Davidson who observed, at the start of his judgment, that the case itself was conducted on the appellant's behalf solely upon the basis of the injury of 27 November 1990. I will, therefore, confine my attention to that claim. The substantial dispute in the proceedings revolved around the question whether or not the appellant did receive injury to his low back, legs and his sexual organ on 27 November 1990. His case was that at about 8.30am on 27 November 1990, whilst working in a gang of six, he bent over to lift a cast iron shroud - that is, the cover over a fire hydrant - and on exerting himself in an endeavour to free the shroud he felt a pain in his back. Later that day he went to see his personal doctor, Dr Zaman, but thereafter he returned to work for three days. On Tuesday 11 December 1990 he was seen by the respondent's doctor, Dr Harrington, who concluded that he was obviously unfit for duties in manual and heavy construction areas. The case, as presented by the appellant, was a relatively straightforward one. 2 UNREPORTED JUDGMENTS The respondent, however, denied that the appellant had sustained an injury. It called the appellant's supervisor, Mr Wellings, and also another member of the gang, Mr Vrkic. Both said that the appellant was given instructions to remove all dirt, soil and clay away from the shroud to be removed and that immediately following the instruction the appellant said he was going to have an accident. Vrkic said that shortly after they embarked on the task of cleaning the dirt away from the shroud in order to lift it the appellant bent over to lift it and immediately said "I hurt my back". I should add to this short summary a reference to evidence called by the appellant from two other members of the gang, Mr Weyman and Mr Gialdini, who each said they did not hear the appellant say he was going to have an accident. In a careful analysis of all the evidence the judge concluded that he could not accept the appellant's claim that he had sustained an injury on the morning of 27 November 1990 in the circumstances alleged by him and found an award for the respondent. A notice of appeal was filed in which there were ten grounds of appeal. Ground 1 has been recast to read: "1. His Honour erred in law and fact in finding for the respondent because the evidence compelled a finding in favour of the appellant." Senior counsel for the appellant, Mr Barker QC, advised the court that this was the substantial ground of appeal and that it could be considered together with grounds 3, 4, 5 and 10. That is a convenient course to adopt for those grounds represent no more than another way of putting the proposition in ground 1. The appellant abandoned grounds 2, 6, 8 and 9 but did rely on ground 7 which asserted that his Honour denied the appellant natural justice in adverting, on a matter of credit, to an issue not canvassed at the trial. I will deal initially with the first ground. The case put on appeal by the appellant was relatively straightforward. The appellant had worked for the respondent since September 1974. He had a good work record. Although he had had a number of back injuries prior to November 1990 he had worked on full labouring duties for most of each working week since April 1988. He had worked the week preceding the alleged injury. Following the incident, however, he was found to have an undoubted injury. In a report dated 27 August 1992 Dr Zaman said: "The Patient saw me on 27/11/90 with severe painful back which he said was caused while he was excavating hydrant by hand.... He was sent for physio and he was given analgesics." He was next seen by Dr Harrington on 11 December 1990 who found, on examination, that he had "acute paravertebral muscle spasm with scoliosis and he had considerable restriction of lumbar flexion and right lateral flexion both of which caused considerable evident pain." The doctor's opinion at that time was that he had a moderately severe low back injury with possible disc involvement. I should add that the history given by the appellant to Dr Harrington was consistent with his case. He attended Amelia Lucas a physiotherapist in December and a CT scan carried out on 28 December 1990 disclosed that there was posterior protrusion of disc material to the left of the mid-line indenting the thecal sac and displacing the anterior epidural fat. He was seen by Dr Giblin, an orthopaedic surgeon for the first time on 21 December 1990 and thereafter treated by Dr Giblin who, on 18 March 1991, performed a left sided 4/5 laminectomy and undercutting facetectomy and neurolysis of the S1 nerve root. He found that the L4/5 disc space was very tight URJ ASANOVIC v SYDNEY WATER CORPORATION LTD (Clarke JA) 3 with overriding facets, the nerve root was bound down by adhesions over an inflamed disc. The doctor removed a mobile disc fragment from within the disc. Mr Barker took the court to a deal of medical evidence which demonstrated two things. First, that the appellant's story was consistent in the sense that his description of the incident was a suitable explanation for his injury and secondly that, upon the history he had given, the injury was caused in that incident. The essential thrust of the appellant's argument was that in the face of these facts a compelling case in favour of the appellant was made out and it was not answered by the evidence given on peripheral matters led by the respondent. Nowhere did the respondent suggest that after 27 November 1990 the appellant did not have a serious back injury. Rather it led evidence of the statements which I earlier mentioned and it demonstrated that statements in the possession of the appellant and respondent which appeared to have been signed by Mr Vrkic, and at least one of which was suggested during the case to have been signed by Mr Vrkic, in fact had not been signed by that witness. In addition the respondent relied on a long history of back injuries suffered by the appellant and contended that in all the circumstances the judge could not be satisfied that the appellant did suffer injury on 27 November 1990 as alleged by him. It also pointed out that there was a ready explanation for the fact that the other members of the gang did not hear the alleged statement made by the appellant for they were not in the immediate vicinity at the time it was made. Something more should be said about his history of back pain prior to the incident in question. In 1980 he was involved in a motor vehicle accident as a consequence of which he had back pain, paraesthesia in the right leg and right loin and was absent from work for at least two months. Thereafter it would seem he worked as a nipper and in May 1982 he was absent for, I think, one day and was then limping. In 1984 there were additional complaints of back pain and in 1986 there was another absence from work with back trouble. At that time he was, apparently, still working as a nipper. In his annual check-up in 1987 it was noted that he had been doing a nipper's job for four to five years but in 1988 the report indicated that he was getting better and that he had been doing two hours per day nipper work and the rest of the time in the gang. The recommendation was that he continue in the same work. Thereafter there was no report of back problems until the event in question. In his judgment Davidson CCJ noted that counsel for the appellant submitted that the court should act on those matters upon which the appellant has relied in this Court and which were then described as 'objective matters', and that he should not be side-tracked by a consideration of the credit of the appellant. The judge rejected that approach and said, correctly in my view, that the success of the appellant's case depended upon the acceptance of his evidence that he did have an incident on the morning of 27 November as he alleged and that that brought on his back problems. Of course the judge was required to consider the credit question in the context of all the evidence of the case including the appellant's history and the medical evidence but in the end success for the appellant depended upon the judge's acceptance of his evidence. His Honour then considered the impression that each witness had had upon him and noted that he had formed a favourable impression of Wellings and Vrkic. He also thought that Weyman and Gialdini were apparently truthful but that conclusion did not assist greatly in the context that they were not within earshot at the critical time. 4 UNREPORTED JUDGMENTS The judge formed a very different impression of the appellant. He thought he was "either very much a fool, or a liar, or perhaps both". He expressly based that conclusion not only upon his impression of the demeanour and the way in which he answered questions in his evidence but also upon a number of inconsistencies which emerged in the case in relation to his own evidence. He also observed that the appellant over-acted but, given that he had undoubtedly suffered incapacity, did not regard that as an important factor. There were, however, two factors which Davidson J thought were of particular importance. The first was that the evidence demonstrated that the site of the 1986 injury was to the appellant's low back and probably involved one or both of his legs. Insofar as the appellant steadfastly maintained that the site of that injury was higher in the back and did not involve leg injury there was a clear inconsistency between what the judge regarded as the fact and the appellant's evidence. The second matter was the evidence given by the appellant relating to District Court proceedings in respect of a motor vehicle accident in December 1986. The appellant said that he had given instructions for those to be discontinued when it was clear that that was not the case. Again the judge thought that the appellant was either being extremely foolish or lying in this part of his evidence. The respondent relied on both these matters on the question of credibility and the judge concluded that the submissions were well founded. Turning to the conflict between the appellant, who denied the statement attributed to him by Wellings and Vrkic, and those two persons his Honour concluded against the appellant. That is, he concluded that the appellant had made the statement attributed to him. On the issue whether Vrkic signed the witness statement presented to the court or, as Vrkic contended, did not, the judge accepted Vrkic. Weighing all these factors his Honour went on to say: "\.. the evidence of Mr Vrkic was that, to use my earlier expression, the applicant went through the motions of having the accident. I believe that is the case. Mr Vrkic said that he merely touched the object with his fingers and whilst there is not a great deal of evidence on this point I am satisfied that the applicant did not lift the object or engage in work at that time regarding it, which was likely to or, indeed, did bring about his injury." His Honour was not prepared to accept the applicant who, he thought had manufactured the case. As I have earlier said the finding on credibility was essential for the success of the appellant's case. If he was not accepted in his statement that the incident occurred in the manner he described on 27 November the consequence was, in the circumstances of this case, that he should fail in his case. The limitations placed on an appellate tribunal in those circumstances are clear as appears from the majority judgment in Devries v Australian National Railways Commission, (1993) 172 CLR 472, at 479. There it was said: "... this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'. URJ ASANOVIC v SYDNEY WATER CORPORATION LTD (Clarke JA) 5 It cannot be said that the evidence of the witnesses accepted by his Honour was glaringly improbable or inconsistent with facts incontrovertibly established. Nor, in my opinion, can it be said that the trial judge has palpably misused his advantage. Indeed Mr Barker did not contend that the trial judge had misused his position, except insofar as he contended that the objective evidence in support of the appellant was so strong that, given the matters to which his Honour adverted concerning the appellant's unreliability, only one conclusion was available to the judge. In support of this submission he pointed to what he said was the ambiguity in the evidence of the two witnesses who said that the appellant told them he was going to have an accident. In my opinion this proposition cannot be sustained. It was, I think, fairly plain that his Honour was correct in the import which he attached to the statement. Mr Barker also criticised his Honour's conclusion that Vrkic said that the appellant merely went through the motions of lifting the lid and complained that that finding was not supported by the evidence. I am unable to accept that submission for, while Vrkic did not use those precise words, his evidence in cross-examination clearly conveyed Mr Vrkic's view that the appellant had made no real effort to lift the lid. On the subject of the witness statements Mr Barker contended that the appellant had given an explanation for the fact that documents were put forward with Mr Vrkic's name on them when they had not been signed by him and that, in any event, there was so much confusion relating to the subject matter it was unsafe for his Honour to have acted upon them. Although there was some confusion it is clear that initially there was no cross-examination of Vrkic upon these statements. Notwithstanding, counsel for the appellant sought to tender them. Because Vrkic had not been cross-examined upon them his Honour indicated a doubt as to whether they should be admitted and counsel sought leave to cross-examine Vrkic. In that cross-examination he put the suggestion that one or more of the signatures on the three documents was Vrkic's signature and this suggestion was stoutly resisted. One of the documents bore the date 31 October 1991 and there can be no doubt that, at a later stage in the trial, the appellant said that Vrkic had signed the document. Later, however, he appeared to resile somewhat from that position. Notwithstanding the confusion there can be no doubt that the case for the appellant was initially conducted upon the basis that Vrkic had signed at least one of the witness forms when that was not so. This, on any view, was very damaging to the appellant's case. In all these circumstances I am not persuaded that any error has pervaded his Honour's judgment nor do I think that any of the exceptions referred to in Devries apply to enable this Court to reverse his Honour's finding. I would reject these grounds of appeal. The other ground concerns a statement made by his Honour at the end of his judgment which reads: "T would add as a postscript, and would emphasise that it had no bearing upon my review of the evidence, and the conclusion to which I have come, for the reasons I have given, that in Exhibit K the Report of injury signed by Mr Wellings on 29 November 1990 there appears in Pt(C) under the hand of the wages clerk, JE Pratt, an interesting observation that on 26 November 1990, that is to say, the day before the alleged injury, the applicant had a leisure day. One can say no more than that, and that is all I say." 6 UNREPORTED JUDGMENTS It was submitted that the matter there referred to was not raised during the hearing of the case and insofar as it must have played some part in his Honour's findings on credibility there had been a denial of procedural justice. The submission was put despite the introductory portion of the passage upon the grounds that the factor must have been on his Honour's mind for him to mention it. Clearly enough his Honour made an observation about the matter as a consequence of noticing it in his perusal of the written documentation but an upholding of the submission would involve a definite rejection of his Honour's statement that the matter he had observed had no bearing upon his conclusion. I am not prepared to reject his Honour's statement. Where a judge has carefully reasoned to a conclusion and has set out in detail the course of that reasoning I am not disposed to say that, on the grounds raised in this case, he did not follow the course which he said he had followed. The issue in the case was whether the injury occurred on 27 November 1990 in the circumstances alleged by the appellant. Much evidence was given, and much cross-examination carried out, designed to throw considerable doubt upon the reliability and acceptability of the appellant's contention. Weighing the competing cases his Honour found against the appellant and in my opinion there is no ground for upsetting that conclusion. The appeal should be dismissed with costs. Handley JA I agree with Clarke JA. Appeal dismissed with costs. Counsel for the appellant: I BARKER QC AND JA GRACIE Solicitors for the appellant: VICKOVICH AND ASSOCIATES Counsel for the respondent: PR STERNBERG Solicitors for the respondent! SYDNEY WATER CORPORATION LTD, LEGAL SERVICES BRANCH