KAPPOS v STATE TRANSIT AUTHORITY [1995] NSWCA 228

KAPPOS v STATE TRANSIT AUTHORITY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and SHELLER JJA 5 May 1995, 25 May 1995 [1995] NSWCA 228

WORKERS COMPENSATION — witness' credit — new trial The appellant, Patty Kappos, appeals from the decision of Judge O'Toole in the Compensation Court dismissing her application for compensation for injuries sustained while travelling from home to her place of employment.

Her Honour said that the appellant's credit was significant to her claim and that one would expect some sign or phenomenon consistent with the lower limb symptoms and serious spinal injury of which she complained.

The medical evidence was inconsistent as to whether the appellant suffered an ongoing incapacity as a result of her injuries. Her Honour said that her observation that the appellant was pregnant at the time of the trial could explain her presentation. No evidence was led of the appellant's pregnancy. Without undertaking any analysis of the medical evidence to resolve the conflicting opinions, her Honour concluded that the appellant was fit for her pre-injury duties.

In upholding the appeal, Held:

Judges may take into account the demeanour of witnesses; this may include their behaviour in the Court outside the witness box; Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304; Angaston and District Hospital v Thamm (1987) 47 SASR 177. Here, however, her Honour went one step further. She treated her "impression or suspicion" of the appellant's pregnancy as a fact to be weighed up in coming to her ultimate conclusion. If a judge regards observations as relevant, the parties must be apprised of their nature and the use the judge has in mind to make of them.

Clarke JA I agree with Sheller JA.

Meagher JA In the course of a judgment discussing Mrs Patty Kappos's application for an award, her Honour O' Toole CCJ four times commented on the fact that Mrs Kappos was pregnant. I might add that she did so in language of curious syntax and morphology. There was no evidence that Mrs Kappos was pregnant; there was no evidence that she was not. Nobody - neither the Judge nor either counsel - asked her whether she was pregnant. Her pregnancy - or lack of it - was not mentioned in argument before her Honour. Even counsel seeking to defend her Honour's judgment was unable to submit that the topic was in any way relevant. In these circumstances one must conclude that her Honour permitted a patently irrelevant factor to cloud her judgment.