SUKKAR v DAVIES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and HANDLEY JJA 8 May 1995, 23 August 1995 [1995] NSWCA 460 WORKERS COMPENSATION — INJURY FINDINGS OF TRIAL JUDGE — NO QUESTION OF PRINCIPLE The worker who had a disc lesion that ultimately required surgery claimed compensation based on alleged work injuries on 4 and 5 May 1992. He gave conflicting accounts of where and when on 4 May he sustained that injury. The Judge rejected parts of the worker's evidence relating to that injury and found that he had deliberately changed some of his evidence to advance his case. The worker's claim in respect of the first injury therefore failed. The judge also rejected the worker's claim to have suffered further injury on 5 May. He found that the worker's condition referred to in contemporary hospital and medical reports and his later actions were not consistent with a disc lesion at the time. The judge relied "as a final matter" on the absence of corroborative evidence, but there was some such evidence, and he also misread a medical report. Held: The appellant failed to establish that the trial judge's errors were such as to affect the result of the case. They did not affect the judge's views on the worker's credibility, or his findings on medical issues. The errors did not occasion a substantial wrong or miscarriage within SCR Pt51 R16(1)(d). ORDER Appeal dismissed with costs. Clarke JA I agree with the orders proposed by Handley JA. Like his Honour I do not consider that it has been shown that the trial judge made any appealable errors. Meagher JA I agree with Handley JA. Handley JA This is an appeal by a worker from an award by Neilson CCJ for the uninsured employers and the WorkCover Authority. On 4 May 1992 the worker commenced employment as a courier with Astro Couriers. His application for determination alleged injuries on 4 May "whilst picking up a parcel in the City" and on 5 May while driving on the Great Western Highway near the Penrith turn-off. He claimed to have been totally incapacitated for work since the second injury. The Judge found that by the time of the trial the worker undoubtedly had a bad back. He had had a disc lesion at L5/S1 which had ultimately required surgery. The real issues were whether he was injured in the course of his work and if so whether his disc lesion was causally related to the injuries relied on. The Judge did not accept the worker's claim that he was injured in the course of his employment on 4 May. The worker gave conflicting accounts of where and when on 4 May he had sustained his back injury while collecting a 15-20 kilo parcel. He also gave conflicting evidence of how he came to be given this job, first saying that it was on his daily worksheet. This was produced and it contained no record of any such job. The worker then said that it was a radio job. The Judge found that the 2 UNREPORTED JUDGMENTS employer had a reliable system for recording such jobs. When a customer phoned in with an urgent job the telephonist entered the relevant information on a card. Instructions were then given by radio to a driver who would attend to the pick up and delivery, recording the details in his worksheet. The cards for all radio jobs on 4 May were produced. They included four such jobs for the worker which were also recorded in his worksheet. There was no card for such a radio job that day. These cards were important because they were not only job records, they were also documents of account on which charges to customers were based. The worksheets were also important for the couriers because they were paid for the work actually done (72). The Judge rejected some parts of the worker's evidence, found that he had deliberately changed his evidence to advance his case and preferred where relevant the evidence of Mr Makin. The primary findings in relation to this injury were hardly challenged and cannot be disturbed. Counsel for the worker however submitted that the Judge erred in holding that no corroboration of the worker's evidence of this injury had been called and that "this was a case which required corroboration". He submitted that the law imposed no such requirement. The Judge however was not referring to corroboration required by law but to corroboration that a trier of fact would look for. The Judge also rejected the worker's claim to have suffered the further injury on 5 May. The worker attended that morning at the employer's premises at Lidcombe, loaded the day's work and drove to Penrith. He said that on his way his van was forced off the road by an overtaking truck. In the process he twisted his back and had a sudden onset of back pain. Another driver helped him get into the back of his van where he lay down for half an hour before driving himself to the Nepean Hospital a short distance away where he sought outpatient care. He gave the hospital a history consistent with his allegations of injury on the two occasions and complained of severe immobilising back pain. The hospital found tenderness over the L4 lumbar vertebra, no neurological abnormality and made a diagnosis of soft tissue injury. The worker was discharged with oral analgesics and a prescription for bed rest. The Judge noted that the picture in the hospital report was not consistent with a disc lesion at L5/S1. The worker went to his general practitioner on 7 May and again gave a consistent history to Dr Duggin whom he saw there. The medical report dealing with this visit does not refer to the findings on examination, or Dr Duggin's diagnosis. It did not refer to any x-ray or other substantive investigations or the prescription of painkillers. Dr Duggin was not called. The Judge appears, with respect, to have misread the report because he twice refers to the doctor having noted a complaint of "mild back discomfort" but this was the worker's description of his back condition before the second accident. The report states that the worker complained that this "was markedly exacerbated by the MVA". The fact remains that the visit to Dr Duggin was not followed by other visits or investigations prior to the worker's departure for Lebanon. The absence of further medical investigation of the worker's back during this period, as the Judge held, is not consistent with a major disc lesion at the lumbo-sacral level at that time. While at the hospital the worker arranged for a nurse to ring the employer to report his accident and she did this between 12 and 1. Another courier was then directed to the hospital to collect and deliver the freight in the worker's van. He rang Mr Makin that evening and an arrangement was made for him to come to the employer's premises the next morning. The worker's father drove him to the URJ SUKKAR v DAVIES (Handley JA) 3 employer's yard where he handed Mr Makin a certificate from the hospital but was told "we are not covering you for this" and he was dismissed. The worker said that the radio in his van had not been working on 5 May and that it had been removed by the other courier. Mr Makin however said that the worker told him he could hear Mr Makin calling on the radio but had not been able to reach it. Mr Makin said he removed the radio at the employer's yard the following day in the presence of the worker's father and that it was in working order. The father was not called. Mr Makin asked the worker: "Why didn't you call me, get on the two-way, let me know what was happening so, you know, I could help." The worker said that he couldn't reach the two-way (80), "I couldn't get to the microphone" (85). Mr Makin said: "Thanks very much. I would have liked to have heard from you there and then. I am going to let you go". The worker could obviously have reached the microphone on the two-way radio while he remained in the front seat before being assisted by the other driver to the back of his van. The Judge accepted Mr Makin's evidence. The worker's next visit to a medical practitioner in Australia was to his general practitioner Dr Jones on 23 November 1992. He said that during this time his pain was getting worse (49) but he had gone to Lebanon for ten weeks, leaving in July and returning late September. He gave what the Judge regarded as an unsatisfactory explanation for not having sought further medical treatment before leaving especially as he said he had noticed pain in his left leg for the first time (47) and was worried (54). He had a twenty four hour flight to Lebanon, changing planes in Singapore where he was in transit for a few hours (49-60). He went to the Lebanon because he couldn't take the pain any more. He was in "great pain" and coped by lying down and resting "all the time" (45). It got worse when he walked "a lot" or walked uphill or tried to bend down but he didn't do a lot of walking, only a bit of walking, sightseeing mainly (46-47). He said that in Lebanon while helping move a table for a party he picked it up a little bit and felt something pinching in his back, pain in his left leg, and couldn't lift the table. This caused him to consult a local doctor (47-48). The worker complained to Dr Jones on 23 November of recurrent pain in his left lower back going down into his left buttock and outer thigh. This was the first recorded complaint of sciatic pain. The doctor prescribed Dolamid and organised a CT scan. As the Judge said, "Clearly the doctor thought that there was something major going on". The worker was referred to Dr Pillemer, an orthopaedic surgeon who saw him on 1 December and noted that he was obviously in a lot of discomfort with marked restriction of low back movement, and a depressed left ankle jerk. By 8 December the left ankle jerk was absent. That doctor thought the worker had a lumbo-sacral disc lesion and referred him to Dr Besser, a neurosurgeon. The history taken by these doctors included the motor vehicle accident of 5 May but there was no reference to any injury on 4 May. The worker gave Dr Besser a history that he had had left sided low back pain and left leg sciatica ever since the accident of 5 May and that his symptoms were aggravated by any sort of movement or sitting but relieved by lying flat in bed. The doctor also noted left sided paraspinal muscle spasm and some muscle wasting in the left leg. The Judge said: "The picture which then presents itself is quite inconsistent with the picture painted by the Nepean Hospital... and by Dr Duggin... It is also inconsistent with the applicant's ability to survive without medical treatment for a period of over 4 UNREPORTED JUDGMENTS six months and with his ability to travel to the Lebanon on a 24 hour plane trip, economy class in each direction and of his activities in the Lebanon for about ten weeks." The Judge thought it significant that the worker did not tender a report from the doctor who had treated him in Lebanon and that there was no evidence that his solicitors had attempted to obtain such a report. It was apparently not uncommon for medical reports from the Lebanon and other overseas countries to be tendered in that Court. The Judge concluded: "Even if I were to accept that the applicant was injured on 5 May 1992, I could not be satisfied that the medical condition for which the applicant presented to Dr Jones on 23 November 1992 and for which he has subsequently undergone operative treatment, was causally related to the injuries relied upon. The gap in the medical evidence is too wide. Furthermore, the descriptions of the practitioners at the Nepean Hospital on 5 May 1992 and Dr Duggin on 7 May 1992 are not the pictures of a man suffering from the major herniated L5/S1 disc which the applicant undoubtedly had by December 1992." The Judge relied "'as a final matter" on the absence of corroborative evidence in relation to this injury and its consequences. However in a general sense there was such evidence. The worker did drive to Nepean Hospital and have himself admitted as an outpatient, giving a consistent history and presenting with clinical signs of a back injury. He promptly reported his injury to the employer. He said that he damaged a tyre in the accident and he produced a copy invoice from a tyre company in Alexandria dated 6 May for the cost of repair. He consulted his general practitioner on 7 May with complaints and a history consistent with a back injury in a motor vehicle accident of the kind he described in evidence. The Judge thought that the worker should have called members of his family to corroborate his complaints of back pain before he left for Lebanon and after his return. Such evidence in relation to the first few days would not have provided any greater corroboration than his complaints to the medical staff at Nepean Hospital and Dr Duggin but it could have covered the rest of the period prior to his departure and following his return. In Lebanon he met his future wife who came from Brazil. They were married in July 1993 not long before their first child was born but his wife was not called as a witness. The worker did not undergo surgery for his herniated disc until 12 May 1994. The appellant applied on the appeal for leave to adduce further evidence in the form of a report from Dr Fahed Succar relating to his examination of the worker on | August 1992. This application was rejected because the evidence was not "fresh". This Court must consider whether the errors identified affected or might have affected the ultimate result in the case and thus require its intervention. The errors related in the main to the claim based on the second injury. The Judge's general views on the worker's credibility are not affected. Moreover, it seems to me, the Judge's findings on medical issues are not affected either. Given the worker's evidence as to his pain and disability the gap between his visit to Dr Duggin on 7 May and his visit to Dr Jones on 23 November is extraordinary, particularly in the light of his presentation on the second occasion. There was also other evidence which supports the Judge's findings on the second injury. The histories given to the hospital and to Dr Duggin referred to a back injury on 4 May aggravated by the motor vehicle accident. The worker's oral evidence was to the same effect (21, 31, 41) as was his history recorded by Dr Innes-Brown on 19 October 1994. The worker's URJ SUKKAR v DAVIES (Handley JA) 5 evidence in relation to the two injuries is therefore not severable. The rejection of the first injury undermines the weight to be given to his histories and evidence in relation to the second injury. Dr Innes-Brown reported: "... normal discs do not rupture even with very large compressive loads,... for the simple act of lifting a moderate load on 4 May, 1992, even with what added stress there may have been on the following day in the motor vehicle incident, to produce disc herniation his L5/S1 disc must already have been the site of significant degenerative disease. It is my view therefore that the incidents on 4 and 5 May 1992 could not have been major contributing factors in the causation of his current disability, which is largely due to degenerative changes in his lumbar spine where the CT scan defined not only the herniation at L5/S1 but also circumferential bulging of the disc at L3/4 consistent with generalised degenerative disease in his lumbar spine." It would, of course, be sufficient for the worker to establish that the incident of 5 May aggravated or accelerated a pre-existing degenerative disease in his spine but the doctor's opinion indicates the possibility that the worker had a symptomatic back condition before his employment commenced and the further possibilities that this condition was significantly aggravated by the lifting incident in Lebanon and an incident reported to Dr Pillemer on 1 December about two weeks before when the worker "simply bent over and this has again aggravated his problem". In these circumstances I have reached the conclusion that the appellant has failed to establish that the errors of the trial judge affected or might have affected the ultimate result. In my opinion they were not such as to occasion any substantial wrong or miscarriage (SCR Pt51 R16(1)). The appeal should be dismissed with costs. Appeal dismissed with costs. COUNSEL: Appellant: T McKENZIE Respondent (1): G PARKER Respondent (2): JD HISLOP QC/A MITCHELL SOLICITORS: Appellant: LESLIE E ABBOUD Respondent (1): BRUCE AND STEWART TURTON Respondent (2): WORKCOVER AUTHORITY