VOUROS v AQUILA STEEL CO LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY AP, MEAGHER and SHELLER JJA 10 August 1995, 10 August 1995 [1995] NSWCA 488 Credibility of witness — Evidence of pain in left leg not as claimed — Limited order for weekly compensation on basis of partial incapacity Caution necessary in use of observations of witness in Court in making findings as to credibility APPEAL FROM COMPENSATION COURT — Finding that applicant is not a creditable witness — Evidence of pain in left leg not as claimed — Limited order for weekly compensation on basis of partial incapacity — Caution necessary in use of observations of witness in Court in making findings as to credibility. ORDER Appeal dismissed with costs. Mahoney AP This is an appeal from a decision of her Honour Judge O' Toole in the Compensation Court. The appellant, the worker, was injured on 19 April 1990 in the course of his employment with the respondent/employer. The injuries that he suffered are detailed in the evidence. Stated shortly and relevantly, he suffered a fracture of the left radius, damage to the neck of the left femur and some other incidental injuries to his teeth and to his cervical spine. He was admitted to Bankstown Hospital and was off work for some time. The essential problem that arises in the present case relates to the claim that he is incapacitated because of the pain that he claims he suffers in his left hip by virtue of the fractures to which I have referred. The applicant's case at the trial was that he suffered "unbearable" pain in the hip and his evidence was detailed as to what he could not do by reason of that pain and disability. He gave evidence that he could not stand up, in the circumstances referred to in his evidence-in-chief. He said that his left leg "gets numb and is very painful". He detailed his incapacity in respect of walking, he referred to the "terrible pain" and to the effect that that had upon him. It is not necessary for me to refer further to the detail of the case which he sought to make out. The judge did not accept that he had incapacity of the kind to which I have referred or that he was suffering from the kinds of difficulties of which he gave evidence. Evidence was given at the trial by a Mr Flanigan who was, at the relevant time, an employee of the employer, of the efforts that had been made to provide the worker with light work. Mr Flanigan gave details of the light work which was offered to him. There was evidently a programme in the company the object of which was that injured workers were rehabilitated or sought to be rehabilitated and were offered appropriate work within the organisation. Mr Flanigan said in his evidence that after the accident there was "a series of jobs that were offered to him". Ultimately, having offered the jobs to him unsuccessfully, Mr Flanigan said "... that if Steve was not prepared to do the light duties" his employment was 2 UNREPORTED JUDGMENTS to be terminated. It was apparently in such circumstances that his employment and association with the company came effectively to an end. The findings of the learned judge in relation to this matter were as follows: "On the whole of the evidence, I have real difficulty concluding that the applicant now suffers pain or discomfort as a consequence of the fall which occurred some two years ago. I am not persuaded that any persisting symptoms in the applicant's lumbar spine are caused by the fall in April 1990. Weighing the evidence as a whole, noting unchallenged evidence that the applicant saw Dr Scarf in March last year and that the respondent has not adduced his evidence, I think it probable that at some time between 21 March last year and the first day of the hearing, disability and incapacity occasioned by the applicant's injury on 19 April 1990, had resolved. On the evidence, it is necessary to be somewhat arbitrary in determining relevant dates and earning capacity at the relevant time. For those reasons I find: (1) that on 19 April 1990 the applicant suffered injury to his left upper limb and left lower limb; (2) that he was thereby totally or partially incapacitated for periods until 10 December 1990 and Paid compensation or wages; (3) that he was thereby partially incapacitated between 11 December 1990 and 30 June 1991; (4) that probable earnings averaged $580 per week, but for the subject injury, and the applicant's capacity to earn averaged $420 per week. In the exercise of the Court's discretion there will be an award for the applicant in the sum of $160 per week between 11 December 1990 and 30 June 1991, pursuant to s40." Upon this basis the judge made an award for weekly compensation as on the basis of partial incapacity up to 30 June 1991 but not thereafter. It is against that order that the present appeal has been brought. The notice of appeal was, at the commencement of the hearing, amended without objection. The first ground in the amended notice of appeal was abandoned. It was not suggested that her Honour should not rely upon her observations of the applicant in the manner to which I shall refer, or at all. The two grounds which were pressed were, as I shall describe them, the Jones v Dunkel ground and the ground that the judge's finding was, on the evidence, wrong. It is proper to note at once that her Honour did not accept the worker as a witness of credit. Whether she did this entirely upon the basis of her observations of him in the witness box or otherwise in the court, it is accepted that observations of this kind may be used by a trial judge in forming an assessment of the credit or credibility of a witness who gives evidence before her. If she is to do this, she must of course comply with the dictates of due process. It is not necessary for me to detail what is required in that regard because Mr Wynyard, who has pressed all of the points that can be pressed in favour of the worker, has accepted that no objection can be brought on that ground. Her Honour took the view that the applicant was not a witness of credit and approached her findings upon that basis. It is not necessary for me to detail the findings that were made or the grounds on which the findings were made. It is sufficient to refer, by way of example, to what was said by her Honour in relation to the evidence of one of the medical witnesses. She said that she "hesitated" over URJ VOUROS v AQUILA STEEL CO LTD (Mahoney AP) 3 whether the worker was "an accurate historian and a witness of truth". I take her "hesitation" to indicate that in the end she did not accept him as such. Faced with this problem and the difficulties that arise from the principles established in the cases such as Abalos (1990) 171 CLR 167 and Devries (1993) 67 ALJR 528, Mr Wynyard sought to circumvent those difficulties. He did this by seeking to show that her Honour's findings in this regard were, as he has put the matter, "inconsistent with established facts". He did this, no doubt, upon the basis of observations such as those appearing in Voulis v Kozary 180 CLR 177 and similar cases. His main submission in this regard was that the evidence in the medical reports that were produced at the trial indicated that there had been a degree of wasting of the worker's left leg. He took this to indicate or support the view that there was in fact some kind of disability in the left leg and I think the inference was suggested that pain was suffered by the applicant accordingly. The evidence as to wasting was by no means clear. I am not satisfied as to the existence of wasting or perhaps more accurately the degree of wasting that appeared at various times during the medical examinations of the worker. No doubt there may have been, and been observed, wasting during the period which, as her Honour found, he was incapacitated for work, that is, before 30 June 1991. What was the position thereafter is not clear. But, however this be, there was no medical evidence to establish what was the significance of the wasting of a limb, or the degree of wasting which was here found in determining whether there existed the difficulty which the worker asserted to exist in the present case. It was not established by medical evidence that such and such degree of wasting is a basis for inferring such and such a degree of incapacity or pain. That was left as a matter of speculation. In all the circumstances, I do not think that it has been shown that her Honour's findings as to the credit of the worker, to the extent to which she made that finding, is inconsistent with the established facts. The matter must, therefore, be approached upon the basis that the learned judge had the advantage, in that conventional sense, of seeing the witness and forming the conclusions as to his evidence which she did. Before leaving this aspect of the matter, I would add one observation. As I have said, it is established that a judge may, in assessing the credit or credibility of a witness take into account, amongst other things, what she sees of him, not merely by way of demeanour when giving evidence in the witness box, but by way of activity in the court before her. As I have indicated, she may do so, subject to conditions which it is not necessary to detail. But, for myself, I would emphasise that matters of that kind, and in particular observations as to what a witness could and did do in the witness box and in the court, are to be used with an appropriate degree of caution. Witnesses are in an unusual atmosphere and context when they give evidence in court and appropriate allowance is to be made for the possibility that they may, if I may use the phrase, "put their best foot forward" in giving evidence or conveying impressions to the judge before whom they come. It is important, in my opinion, that conclusions drawn from such matters be carefully checked against the facts to ensure that the impressions gained from such observations are not, in the particular case, misleading. However, having said that, I am satisfied that there is nothing to show that the learned judge acted otherwise than properly in her use of such observations in the present case. In fact, as the judgment shows, she examined the evidence placed before her in some detail and only after such examination came to the conclusion that she did as to the period for which compensation should be paid. 4 UNREPORTED JUDGMENTS I have myself reviewed the medical evidence in order to satisfy myself whether I should and can, within proper principles, depart from the observations which the judge made and the use which was made by her at the time of making them. The medical evidence placed before the court was purely in documentary form. One must then draw inferences and conclusions from the text of the written documents. There are, of course, obvious difficulties in this. In many cases, of which I think this is one, one would wish to have the opportunity of putting questions to the doctors as to particular matters of significance. However, I have had regard to the evidence in the medical reports on which the worker has relied. IT have had regard, for example, to the evidence of Dr Sachdev and particularly his last medical report of 1 April 1992. The reference to his condition in that report has been relied upon by Mr Wynyard. The doctor there opined that the worker, "... still has residual symptoms of chronic lumbosacral sprain". And he opined that, "as a result of these injuries" which must include the injuries here in question, "he is fit to do light work only. He has a permanent disability which I would assess to be approximately twenty-five per cent loss of the function of the lumbosacral spine as well as left leg". There was dispute as to what was the significance of what the doctor there said. The judge took one view of the matter and I am not satisfied that she was wrong. But, assuming that the doctor was of the opinion that there was still some pain, not merely from the lumbosacral spine but from the condition of the left leg of which he complains, that opinion must be set against the opinion of other doctors. Reference has been made, for example, to the evidence of Dr Nield in a report of 26 March 1991. Dr Nield, having examined the worker, gave the opinion that there was "... no present permanent impairment and no treatment required for his physical condition". It is not necessary for me to cite the whole of the opinion of the doctor but it was to the effect that the fractured femur had united and that the worker had "... good movement of his lower limb". The doctor said: "Unfortunately he has developed gross functional changes as evidenced by his severe limp and the bizarre movements of his cervical spine. Physically he is fit for work. Mentally he requires to be counselled into accepting that he has recovered and is physically fit. Following this he should he fit for his former work." The judge, I think, accepted the substance of what Dr Nield had said. There was also evidence to the effect that the worker's condition was not as he stated it, in the report of Dr Roberts. Dr Roberts stated in a report of 14 March 1991 that "There is no reason for Mr Vouros not being able to return to work at the present time". He referred, in the course of his report, to the depression of which the psychiatrist, Dr Takas, had given evidence. In all the circumstances there was, I think, evidence, and substantial evidence, to support the conclusion at which the judge arrived, that as far as his physical condition was concerned the appellant did not suffer from the incapacity to which he referred. It may be that there was some incapacity but having regard to the way in which the matter was contested at the trial there was not the incapacity claimed. It was not suggested to this Court that if there was incapacity of some other kind, that should result in a different order for payment of compensation. URJ VOUROS v AQUILA STEEL CO LTD (Sheller JA) 5 I have dealt, essentially, with the physical condition of the appellant because that was the basis on which the matter appears to have been argued before the learned judge. It is to be noted that the appellant had a psychiatric condition. The details of that are referred to in the medical reports and it is not necessary for me to restate them. The matter has been dealt with (I put the matter very broadly) upon the basis that if the applicant accepts that he does not have the physical difficulties that he asserts, the best thing for him is that he go back to work, doing appropriate work. The suggestion emerges from the evidence, I think, that if he does that his psychiatric condition will not seriously impede him and that that will be the best thing for his psychiatric condition. I mention those matters only for purposes of record. These are not matters to which complaints have been directed. I have dealt with the matter perhaps at greater length than is necessary in deference to the submissions of Mr Wynyard and having regard to what I have said as to the condition which the worker has exhibited. But, having regard to the advantages which the judge had at the trial, and her findings, I do not think that this is a case in which this Court can or should intervene. Treating the matter merely upon the basis of the evidence before the court, I would not intervene: I would come to the same conclusion as the learned judge. Upon this basis, in my opinion the appeal should be dismissed with costs. Meagher JA I agree. Sheller JA I also agree. Mahoney AP: The order of the court will therefore be that the appeal is dismissed with costs. COUNSEL: Appellant: C]) WYNYARD Respondent: JD HISLOP QC/GB BEAUCHAMP SOLICITORS: Appellant: JORDANS Respondent: DEXTER, HEALEY