GRIFFIN v BACTAND PTY LTD (T/as Southern Commercial Divers) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, CLARKE and MEAGHER JJA 14 August 1995, 29 September 1995 [1995] NSWCA 185 WORKERS COMPENSATION ACT — APPEAL — FAILURE TO PROVIDE ADEQUATE REASONS — PAYMENTS UNDER S40 — UNSUPPORTED BY EVIDENCE FACTS The appellant received an injury in the course of his employment as a diver. He sought weekly payments of compensation together with lump sums under s66 and s67 of the Workers Compensation Act, 1987. Judge O'Toole declined to make any awards under s66 and s67. The appellant challenged her Honour's failure to make any award under s66 and that the weekly payment was inadequate. HELD (per Clarke JA; Gleeson CJ 8 Meagher JA agreed) While it was open to Judge O'Toole to conclude that the appellant suffered a continuing incapacity, her reasoning process, to the extent that it was exposed in the judgment contained a number of errors. She failed adequately to explain how the observation that she mentioned led to her conclusion. As it seems to me her Honour seemed to think that once the reports of the equipment testing came to hand the doctors who supported the appellant changed their opinions or, at least, their perceptions. In the circumstances this was a fairly serious criticism of the doctors and was not, as I earlier pointed out, supported by any evidence at all. In the face of these errors and the lack of a satisfactory exposure of the reasoning process it is my opinion that the judgment cannot stand and must be set aside. The appellant was entitled to have his case tried and decided upon the basis of a properly reasoned judgment. Her Honour also failed to apply s40 of the Workers Compensation Act properly. Her award for weekly compensation does not appear to be supported by evidence. ORDERS (1) Appeal allowed; (2) Award of O'Toole CCJ of 16 December 1992 set aside except as to costs; (3) The proceedings be remitted to the Compensation Court for a new trial; (4) The respondents to pay the appellant's costs of the appeal and to have, if qualified, a certificate under the Suitor's Fund Act. Gleeson CJ I have had the benefit of reading in draft form the judgment of Clarke JA. I agree with the orders proposed by his Honour and with his reasons for those orders. Clarke JA Reginald John Griffin (the appellant) was employed by Bactand Pty Ltd (the respondent) when, in December 1990, he received an injury in the course of his employment as a diver. In due course he sought compensation under the Workers Compensation Act 1987 (the Act) in which he claimed total and permanent incapacity for work in his pre accident occupation. In his application he described the nature of his injury as a "Decompression sickness - Hypoxic insult to brain, Brain damage". He sought weekly payments of compensation together with lump sums under s66 and s67 of the Act. 2 UNREPORTED JUDGMENTS His case was heard by Judge O'Toole who awarded him $250 per week from 20 December 1991 but declined to make any awards under s66 and s67. The appellant has appealed from this decision claiming that her Honour was in error in declining to make any award under s66 of the Act and in awarding him an inadequate weekly payment. Before turning to the judgment it is necessary to refer shortly to the facts. The appellant, who was aged 40 at the time he received his injury, commenced employment with the respondent in 1985. Later on 7 July 1989 he received a class 1 diver's certificate. Prior to his work with the respondent he had been an automotive mechanic and then had been involved for eight years in hotel management. He was extremely fit. On 17 December 1990 he made a dive at Warragamba Dam. After the dive he was disoriented, felt woozy and was unable to drive back to Albion Park where he was staying. He repeated the dive the next day for six minutes, again becoming disoriented for some hours afterwards. In the following weeks he complained to his general practitioner and at Bateman's Bay Hospital of nausea and disorientation. On 14 January 1991 he dived again at Medlow Bath following which he felt terrible. He again went to Bateman's Bay Hospital and was then referred to the Hyperbaric Unit at Prince Henry Hospital under the care of Dr Mark Duncan (Staff Specialist Anaesthetist) and Dr Victor Gordon (Senior Neurology Registrar). In a report dated 27 March 1991 Dr Duncan said that he considered that the history was consistent with decompression sickness and the appellant was treated with Table 6 hyperbaric oxygen. The report continued: "During this treatment his symptoms improved and at the end of the schedule his elbow and chest pain had been completely resolved, this reinforced our impression of decompression sickness." He was discharged from hospital on 19 January but readmitted the following day after his condition had failed to improve. On this occasion he remained in hospital until 1 February 1991. Thereafter he continued to have symptoms. He said he was unable to control his body heat; that he suffered from headaches; had trouble finding words; had a bad temperament; was disoriented; found it hard to concentrate and had short term memory problems. He said that he spits his food, had trouble sleeping and had nocturnal jerks. He complained that performing work took him a lot of time. He was, he claimed, incapacitated for work. His case was that he had suffered a decompression illness and an hypoxic insult, or brain damage, during, and as a result of, the dives on 17 and 18 December 1990 which had left him permanently incapacitated. He relied primarily on the evidence of Dr Gordon and, additionally, on the evidence of the testing which showed deficiencies in the diving equipment, to establish his claim. The only evidence led by the respondent was the medical report of Dr Edmunds. In his first ground of appeal the appellant contended that her Honour was in error in rejecting the brain damage claim and his counsel sought to bolster his attack on her Honour's decision by referring to another ground of appeal, with which it is convenient to deal at the same time, to the effect that her Honour took into consideration matters which were not the subject of any evidence before the court and were not matters of which a judge could take judicial notice, even in a specialist tribunal. I have found it difficult to deal with the submissions for a number of reasons. First, her Honour, in saying that she did not wholly understand the evidence of the testing of the diving equipment, seems to have put it to one side. Secondly, her Honour, having said that she found it difficult to understand Dr Gordon's URJ GRIFFIN v BACTAND PTY LTD (T/as Southern Commercial Divers) (Clarke JA) 3 chain of reasoning, went on to make a cryptic comment which is incomprehensible to me. What is more those two statements effectively marked the beginning and the end of the discussion of Dr Gordon's evidence. Thirdly, her Honour at no stage made primary findings of fact. An even greater difficulty is the absence of any analysis of the medical evidence in the light of the primary facts duly found to be established. The judgment does not, I regret to say, proceed to a reasoned conclusion. Rather it consists in a series of unconnected observations, or thoughts, which culminate in the conclusion that the appellant had failed to discharge the onus. Further the complaints made by the appellant's counsel that her Honour reached, or apparently reached, conclusions upon the basis of material not in evidence and on her assessment of the appellant's presentation in court (which in the circumstances of this case may well have been misleading) seems to me to be well founded. The lack of clear findings and an explanation of the way that they led, in the light of the accepted medical evidence, to the ultimate conclusion means that I am unable to adopt the conventional practice of examining whether there is any error demonstrated in those findings or in the reasoning process applied in reaching them. There are, as I have indicated, specific criticisms which can be made of the judgment under appeal, such as her Honour's apparent reliance on her finding that some of the appellant's conditions could have been caused or aggravated by medication when the thrust of the only evidence was that the side effects of the various drugs were well appreciated by Dr Gordon and were separate from the appellant's specific complaints. The importance of these matters lies not so much in the fact that they show that the ultimate conclusion was tainted by error but insofar as they provide material support for the proposition that, as a result of failing to make the necessary findings and to carry out the consequential analysis, her Honour has either overlooked or misunderstood the evidence. In these circumstances it is necessary to examine the evidence more closely before returning to discuss her Honour's reasons. The lay evidence was given by the appellant and his brother. I have already recounted the appellant's own evidence but his more important complaints conceded his headaches, trouble finding words, temperament, disorientation, lack of concentration, short term memory problems and his nocturnal jerks, which emerged late in the piece. The appellant's brother gave oral evidence to the effect that the appellant was unable to concentrate and was utterly useless when performing work but, as her Honour was somewhat critical of his evidence I will put it to one side except to the extent that it was not contradicted in areas in which contradiction was reasonably practicable. The medical support for the appellant's case came from Dr Duncan and Dr Gordon, both of whom treated the appellant in early 1991 and, in the case of Dr Gordon, continued to see the appellant until September 1992. Both doctors noted that an EEG, an EMG and a CAT scan were normal although a single left temporal shunt wave was recorded in one of the EEGs. That last finding does not appear to have been regarded as important and I will put it to one side. On 7 February 1991 the appellant gave a history of a constant headache with episodes of dizziness, slurring of speech and of concern that he had to stop his car while driving because of episodes of dizziness. Dr Duncan commented "I think Mr Griffin has suffered an episode of decompression sickness, he has not fully recovered despite Hyperbaric treatment x 6 and still has neurological sequelae. Consequently I believe it unsafe for him to continue compressed air 4 UNREPORTED JUDGMENTS diving, HE HAS DAMAGED HIS BRAIN and his capacity to recover from further insults is diminished." (my underlining) For reasons which will later appear I would emphasise that this opinion was expressed in March 1991. Four reports of Dr Gordon were tendered, the earliest of which was dated 4 July 1991. In his first report the doctor referred to a history of defective equipment used by the appellant in the critical dive and went on to say: "Apparently it has been found that the air supply panel used on the deep dive which began his symptoms has been independently tested and found to be faulty. This raises the possibility of a hypoxic insult at the same time as the presumed decompression sickness. This may help explain why he has continued to have unusual symptoms despite extensive recompression therapy." At this stage it is convenient to interpose the observation that the diving equipment had indeed been examined by an apparently independent body and found to contain a number of leaks. The significance of those leaks was explained by Mr LJ Griffin in evidence which was not contradicted. He said that the effect of leaks is to reduce the pressure to the diver so that he may not receive sufficient oxygen. Hence Dr Gordon's reference to hypoxic insult. Dr Gordon next saw the appellant on 26 September 1991 when his clinical state remained essentially unchanged with irritability, dizzy turns and episodes of fatigue and lethargy. His concentration remained poor and he felt that he was unable to do mechanical tasks which he could previously do. The appellant had ceased taking Prothiaden (which had made him drowsy). The doctor observed that he had arranged a repeat EEG (which was normal) and went on: "I have arranged neuropsychological testing for that afternoon, to see if we can identify any focal areas of neurological dysfunction. Following these two tests, 1 would like to start him on Tegretol on the hypothesis that these symptoms represent sub-clinical abnormal brain activity, perhaps due to his presumed hypoxic insult." The doctor next reviewed the appellant on 7 November 1991 when he noted that he had suffered from ataxia, gait disturbance and confusion from Tegretol. He said that: "Neuropsychiatric testing showed that his pattern of performance was suggestive of bilateral frontotemporal dysfunction and is consistent with deficit expected as a result of hypoxic episodes." The doctor observed that the appellant's original presentation and subsequent course seem to be consistent with an hypoxic injury and that "Benzodiazepines, tricyclics and anticonvulsants have been tried with unacceptable side effects and little, if any, benefit." His next report was dated 7 May 1992 when the doctor expressed this opinion: "... that Mr Griffin is suffering from hypoxic brain damage, probably sustained during two very deep dives (to 30 feet), done a month before admission. The resultant brain injury has resulted in limitation of function of mild to moderate severity. The symptoms of which the appellant complained at that time were - episodes of aggression and irritability; several episodes of temporary unresponsiveness, on two occasions leading to injury; difficulty writing; memory problems; daily tension headaches and a tendency to lose food from the right side of his mouth." The doctor thought that in his current state he was unfit for any form of employment involving other than light duties. URJ GRIFFIN v BACTAND PTY LTD (T/as Southern Commercial Divers) (Clarke JA) 5 The doctor's last report is dated 17 September 1992 but before dealing with that it is convenient to refer to the report of Dr Edmonds, a psychiatrist, who was the director of the Diving Medical Centre at the North Shore Medical Centre, and who examined the appellant on behalf of the respondent. Dr Edmonds examined, in minute detail, the history relating to the dives and in the course of doing so he referred to other medical reports (apparently from doctors retained by the respondent) which were not before the trial judge. In this report, dated 17 September 1991, the doctor noted that the neurological tests, such as ENG and EMG and scans showed no specific focal lesions. The doctor thought that there were a lot of problems in the case which needed clarification. He considered that the complaint of lack of balance was somewhat dubious in the light of the fact that the appellant had admitted to being able to ride a surf board. In conclusion the doctor said he was not convinced that the appellant suffered decompression sickness and he gave a number of reasons for that conclusion. I will not detail those reasons for her Honour's acceptance of the appellant's claim that he was incapacitated strongly suggests that her Honour rejected this part of the doctor's evidence. While her Honour did not say what condition caused the incapacity it would seem that she found that the appellant had in fact suffered from decompression sickness and, as a result, was incapacitated at the date of trial. Dr Edmond's report concluded with the following paragraphs: "The diagnosis of neurological decompression sickness cannot be completely excluded, as sometimes neuropsychological sequelae are the only manifestations. Nor can other explanations for his current medical state, be excluded. These would encompass other causes of his neuropsychological symptoms (concussion, alcohol consumption, depression, malingering) and his headaches (chronic sinusitis)." Her Honour would, as I have said, appear to have rejected the substance of this evidence although in the absence of findings it is impossible to say whether she rejected the whole of it. In any event there was no evidence to support some of the alternatives and none seems to have been seriously put forward as a cause for the appellant's problems. Although Doctor Edmonds did not see any reports from Dr Gordon he did have Dr Duncan's report in which that doctor expressed the view that the appellant had suffered from brain injury. Dr Edmonds does not appear to have considered brain injury although it is unclear to me whether or not he was using the expression 'neurological decompression sickness' as a comprehensive statement covering brain injury. There is some support for the view that he did have this type of injury in mind in his later reference to the possibility that concussion was the cause of his neuropsychological symptoms, but, in the absence of further explanation from the doctor, it is impossible to determine precisely to what the doctor was referring when he used that expression. I come then to Dr Gordon's final report. It was written when he had Dr Edmond's report before him. In it Dr Gordon referred again to the neuropsychiatric testing and noted that with one exception the appellant's symptoms remained unchanged. The exception related to nocturnal jerks which the doctor believed were "suggestive of myoclonus, a known consequence of hypoxic brain injury". He stated that he agreed with the general thrust of Dr Edmond's conclusion but placed emphasis on aspects of the history which were different to those thought significant by Dr Edmonds. To him the significant fact was that the appellant was functioning well in every sense before the dive and was now no longer functioning 6 UNREPORTED JUDGMENTS but was suffering from very poor short term memory, poor impulse control, personality change, nightmares, nocturnal myoclonic jerks and other symptoms. The doctor concluded that the "... collection of symptoms and signs suggest diffuse brain pathology, particularly affecting the frontal and temporal lobes. Symptoms clearly began after the diving incident, suggesting some form of injury occurred at this time. This could have been either decompression sickness, or in view of the faulty divers control panel, a hypoxic insult." This paragraph shows that, while the whole thrust of Dr Gordon's approach to that time had been in favour of brain damage, his final opinion was less definite. In these circumstances it was clearly open to her Honour to conclude that she was not satisfied that brain injury had been established. But the difficulty in the case is that her Honour did not carry out the necessary analysis but seems to have rested her conclusion on a number of grounds or observations, some of which, at least, are not supportable. Those were as follows: (1) The clinical tests failed to demonstrate neurological deficit or abnormality - certainly a_ relevant consideration; (2) Some of the appellant's symptoms - confusion or interference with daily activity - could have been caused or aggravated by medication "which is commonly prescribed for a psychologically or psychiatrically determined condition". Apart from the statements made by Dr Gordon, which I have set out above, there is no evidence to support this proposition. What is perhaps of greater importance is that no doctor suggested that the critical symptoms of which Dr Gordon spoke were caused, or aggravated, by any form of medication. Her Honour was not entitled, in my respectful opinion, on the evidence in this case to reach the conclusion which I have just expressed and to the extent it formed a basis for her ultimate conclusion it undermines that conclusion. (3) Her Honour found it difficult to understand Dr Gordon's chain of reasoning and seems to have been critical of it insofar as she commented upon his failure to perform a test which he had mentioned in his report. This fact provided no basis for criticism of his theory. Nor did her Honour's earlier, and critical, comment that there had been a change in emphasis in the medical evidence about the time exhibits B and C (reports of the independent tests of the diving gear) came into existence. The only medical report which pre-dated that time was that of Dr Duncan who, as early as March 1991, spoke of brain injury. (4) The findings that - "There has been a marked improvement in the applicant's condition. His presentation in court, his apparent equilibrium, normal carriage and gait suggest that significant and distressing earlier symptoms have resolved" were, at best, controversial. The first statement is not supported by the evidence. In his last report Dr Gordon said the appellant's general clinical state remained unchanged and the appellant himself did not speak of a marked improvement. The second statement represents, in my respectful opinion, a misuse of the judge's own observations, particularly as the appellant was not cross-examined to suggest that his presentation in court was inconsistent with his array of complaints. An observation of the appellant's presentation in court, especially by an untrained person, provides, in a case of this nature, a flimsy foundation for a conclusion that brain damage has not been established. (5) The ability of the appellant to perform leisure activities (ie surfboard riding activities and others which required steady carriage) was a legitimate consideration. This statement of her Honour's observations, as I understand them, suggests the rejection of much of Dr Gordon's views but no acceptance of those of Dr URJGRIFFIN v BACTAND PTY LTD (T/as Southern Commercial Divers) (Meagher JA) 7 Edmonds. On the contrary her conclusion that there was continuing incapacity involved a rejection of the substance of that doctor's evidence. While, therefore, I think that it was open to the learned judge to reach the conclusion that she did I am satisfied that her reasoning process, to the extent it was exposed in the judgment, contained a number of errors and that her Honour failed adequately to explain how the observations she mentioned led to her conclusion. As it seems to me her Honour seemed to think that once the reports of the equipment testing came to hand the doctors who supported the appellant changed their opinions or, at least, their perceptions. In the circumstances this was a fairly serious criticism of the doctors and was not, as I earlier pointed out, supported by any evidence at all. In the face of these errors and the lack of a satisfactory exposure of the reasoning process it is my opinion that the judgment cannot stand and must be set aside. The appellant was entitled to have his case tried and decided upon the basis of a properly reasoned judgment. I regret to say that her Honour's judgment did not satisfy that description. It will, accordingly, have to be set aside and a new trial ordered. The appellant also challenged her Honour's conclusions in arriving at the amount of the award for partial incapacity and, in particular, her finding that his remaining capacity to earn should be valued at $350 per week. Her Honour provided no reasons for concluding that the award should be in the sum of $250 beyond saying that the hypothetical earnings that he could, if uninjured, have earned would have averaged $600 per week and that his remaining capacity averaged $350 per week. The only evidence of his earnings, if uninjured, ranged between $727 per week and $1,000 per week and in these circumstances it is difficult to understand how her Honour could have gone below the lowest figure in the range. In addition the medical evidence was to the effect that the appellant was extremely limited in the work that he could actually perform. Despite this evidence her Honour valued his remaining capacity at what seems to be a fairly high figure. It is, however, unnecessary to say any more than that I consider that her Honour has also failed properly to apply s40 of the Act. I propose the following orders: (1) Appeal allowed; (2) Award of O' Toole CCJ of 16 December 1992 set aside except as to costs; (3) The proceedings be remitted to the Compensation Court for a new trial; (4) The respondents to pay the appellant's costs of the appeal and to have, if qualified, a certificate under the Suitor's Fund Act. Meagher JA I agree with Clarke JA. (1) Appeal allowed; (2) Award of O'Toole CCJ of 16 December 1992 set aside except as to costs; (3) The proceedings be remitted to the Compensation Court for a new trial; (4) The respondents to pay the appellant's costs of the appeal and to have, if qualified, a certificate under the Suitor's Fund Act. COUNSEL: Appellant: K MORRISEY Respondent: TM ROWLES SOLICITORS: 8 UNREPORTED JUDGMENTS Appellant: HIGGINS DYSON AND WEBLEY, Wollongong Respondent: LEITCH HASSEN AND DENT, Surry Hills