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. I agree with the orders proposed by Sheller JA. Sheller JA The worker, Patty Kappos, appeals from a decision of Judge O' Toole in the Compensation Court on 2 July 1992 dismissing her application for compensation. The worker claimed she was injured on 4 October 1990 while on a journey between her home and place of employment when alighting from a motor vehicle or walking from the motor vehicle to the railway station at Bardwell Park. She alleged that she slipped and injured her coccyx, back, left hand and left leg and claimed to be totally or partially incapacitated from 24 June 2 UNREPORTED JUDGMENTS 1991. She received intermittent compensation payments during the period up to 6 March 1991. At the time of her injury the appellant was three months pregnant. The application was heard on 23 April, 23 June and 2 July 1992. In her reasons for judgment Judge O'Toole said that in important respects the appellant's credit was significant to her claim and that nearly two years after the event one would expect some sign or phenomenon consistent with the appellant's counsel's assertion that there was evidence of lower limb symptoms and a serious spinal injury. The medical evidence, which consisted of written reports, was divided about whether the appellant suffered an ongoing incapacity as a result of anything that happened to her on 4 October 1990. For example in January 1991 Dr Goldie, whose reports the respondent tendered, expressed the view that any impairment suffered by the appellant was related entirely to subjective complaints and might be exaggerated. On 12 November 1991 Dr Edwards, also qualified by the respondent, said there was considerable doubt that her back complaints were related to the incident on 4 October 1990 and there was evidence of exaggeration or fabrication. On the other hand on 24 February 1992 Dr Bannister, whose reports the appellant tendered, expressed the opinion that she had a 20 per cent permanent impairment of the back, together with a 20 per cent permanent loss of efficient use of the left leg at and above the left knee and a 20 per cent permanent loss of efficient use of the left leg below the knee due to the effects of this injury. Early in her judgment her Honour said: "T have the impression that, usually, the applicant is of slight build. When she appeared in the courtroom on 23 April this year, she had completed the first trimester of a pregnancy. When she appeared on 23 June and today, my impression was confirmed. Her appearance is consistent with the mid or later part of a second trimester pregnancy. There is not medical evidence to support my impression, but the last consultation documented took place on 24 February this year and the precise form Dr Bannister's physical examination took is unclear." Further on she said: "T suppose I can take judicial notice of the fact that many pregnant women complain of back pain or discomfort. Therefore, there seems a commonplace explanation for some symptoms of which the applicant complains, for a period or periods. If, from time to time, the applicant has been unable to bend or lift, that could be consistent with pregnancy." Her Honour referred to and commented upon some of the medical reports. Her overall impression of the evidence was, she said, generally consistent with that of Dr Bentivoglio that by August 1991 the appellant was fit for her pre-injury duties. "If I were wrong in that conclusion, and if, for example, the applicant required some cushion or other seating which would relieve the strain on her coccyx, I am not persuaded that that of itself would have incapacitated her." About Dr Bannister's reports her Honour said: "If Dr Bannister has conveyed to the applicant the gloomy predictions of serious surgery which are suggested or recorded in his reports, that might explain the applicant's perception. However, I am not persuaded that the applicant genuinely perceives that she has suffered serious injury as a result of a fall. At the same time, some or all of the applicant's complaints now, could be consistent with the applicant's appearance at this time." URJ KAPPOS v STATE TRANSIT AUTHORITY (Sheller JA) 3 Her Honour remarked that some of the documents upon which Dr Bannister based his opinion varied, materially, from others. She referred to a document called "Orthopaedic Dynamics", dated 29 October 1991 and gave reasons why the opinion of that organisation had been of no assistance in deciding the issues raised by the parties. The last part of her Honour's judgment was as follows: "Today, moving around the courtroom the applicant's gait might have been thought slightly wide-based or awkward. If, as I suspect, the applicant is in the second trimester of a pregnancy, that could explain her presentation. I have the strong impression that at all times in the courtroom the applicant has not been suffering relevant discomfort or disability. I am not persuaded that the applicant was relevantly incapacitated when she saw Dr Bentivoglio on 5 August 1991. Dr Clark's' certificate of two months earlier does not pronounce the applicant unfit for work. On 22 January 1991, Dr Goldie did not accept the applicant's complaint of disability or injury. On the whole of the evidence I am not persuaded that on, or after, 6 March 1991 the applicant was relevantly incapacitated. For those reasons there will be an award for the respondent." The appellant's principal ground of appeal was that the trial judge erred in law by taking into consideration her observations that the appellant was pregnant at the time of the hearing of the matter. Her Honour acknowledged that there was no medical evidence to support her impression of the appellant's pregnancy at the time of the hearing. No witness was asked about it. The following was said during submissions: "HER HONOUR: But there is a physical explanation, if she has had back pain over that period is it not. She has been pregnant, has she not - on one occasion? MISS COULTON: Yes, but she - HER HONOUR: Pregnant when it happened, and then she had another pregnancy, perhaps. Perhaps she has got back pain." Miss Coulton, who appeared for the appellant before Judge O'Toole and on the appeal, indicated to the Court that no other reference was made during the hearing to the possibility that the appellant was pregnant at the time of the hearing. Judges take into account the demeanour of witnesses. That may extend to behaviour in the court outside the witness box. In Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 323 Clarke JA, with whose reasons Hope AJA agreed, said: "Tn this case his Honour relied on his observations of the respondent sitting in the back of the court both before and during the course of the trial and, in addition, relied upon his observation of the manner in which she entered and left the witness-box. The latter observation took place in full view of both counsel and I find it difficult to see any basis on which this should not be regarded as part of the respondent's demeanour of which, on any view, a judge can take account. His Honour's observations of the respondent before the trial commenced raises a more difficult question particularly in so far as his Honour did not disclose the fact that he had observed the respondent's difficulties while she was sitting in the back of the court and thereby enable counsel for the appellant to attempt to deal with the situation which had arisen. The rule which should be applied in these circumstances is a flexible one based upon considerations of fairness and justice." 4 UNREPORTED JUDGMENTS His Honour cited from the judgment of King CJ in Angaston and District Hospital v Thamm (1987) 47 SASR 177 at 178-179. The learned Chief Justice, having said that the rule was not absolute in the sense that it must be applied rigidly to every observation which a judge might make of a party during the course of a trial outside the witness box, continued: "Tt is clear, however, that where the judge makes observations of the actions or demeanour of a party, which actions and demeanour are not observable by counsel, and makes use of those observations in a way which has a significant influence upon his decision of the case, he is required in justice, before making such use of those observations, to make those observations and the possibility of his using them in the course of his judgment known to counsel at a stage of the hearing at which counsel still has an opportunity of dealing with them in a proper and effective way." This is a matter of fair play and common sense. In the present case her Honour went one step further. The appellant argues that her Honour appeared to have treated what she referred to as an impression or suspicion of pregnancy as a fact to be weighed in coming to her ultimate conclusion, which she acknowledged depended in important respects upon the appellant's credit. The respondent's argument is that the statements about pregnancy were passing observations not relevant to the matter in issue. The respondent acknowledges that her Honour would have been better to say nothing about the matter. There was no evidence about it. It was not an issue. For my part I think great care must be taken by judges in assessing what weight if any is to be given to their observations about witnesses outside the witness box. Those observations may turn out to be very misleading. Generally it is desirable, if the judge regards the observations as relevant, that the parties be apprised of the precise nature of the observations and the use the judge has in mind to make of them. Nevertheless the respondent submits that in this case they were of little or no significance to the ultimate conclusion which was reached for other reasons. We were taken with some care through the judgment. We were referred to demonstrations given by the appellant in court. Her Honour said that one such demonstration included fluid rotation of her spine and movement of a lower limb. She walked, sat, rose and was again seated in a fluid and apparently normal manner. Her Honour was uncertain whether she genuinely perceived herself to be disabled or whether she simply wished the court to form that impression. Her Honour was concerned about the appellant's evidence of the precise manner in which she fell and said her evidence was implausible and difficult to reconcile with her own and her husband's descriptions of the place and mechanism of injury. Having reviewed some of the evidence about the description of the injury her Honour said: "On the whole of the evidence I think it probable that the applicant's assertions about a complicated, and in some ways implausible movement when she fell, relates to her own (and, I infer, her husband's) interest in persuading this court that the particular incident could have caused a severe spinal injury." Her Honour did not undertake any analysis of the medical evidence to resolve the conflicting opinions. She proceeded on the basis that rather than having any genuine perception that she was disabled, the appellant simply wished the court to form that impression. On this basis Dr Bannister's evidence was rejected. It may be, as the respondent submitted, that the reference to the appellant's gait in court and the other symptoms, which her Honour felt were explicable by her suspected pregnancy, was to soften any suggestion or exclude the need for her URJ KAPPOS v STATE TRANSIT AUTHORITY (Sheller JA) 5 Honour to say, if it was the fact, that she did not believe the appellant. However having carefully considered the judgment I am not satisfied that this was so. The resolution of this case required a decision as to whether the appellant's evidence about her injury and her subsequent symptoms and incapacity and the supporting medical evidence should be accepted. It was of course open for her Honour to reject the appellant as a witness of truth and to reject the medical evidence which supported her claim. If implicit in her Honour's reasoning is the conclusion that the appellant had symptoms consistent with her complaint but these could be disregarded because she was pregnant, such an approach was not an appropriate way in which to resolve the dispute and, regrettably, there must be a new trial. lam not satisfied that the conclusion that the appellant was pregnant at the time of the hearing did not play a part in her Honour's decision to make an award in favour of the respondent. When her Honour said that she had the strong impression that at all times in the court room the appellant had not been suffering "relevant" discomfort or disability it seems to me that she was saying that the discomfort or disability manifested was explicable by her pregnancy. This was based on judicial notice of the fact that many pregnant women complain of back pain or discomfort and the statement that therefore "there seems a common place explanation for some symptoms of which the applicant complains, for a period or periods." I propose that the following orders should be made: 1. Appeal allowed; 2. Matter remitted to the Compensation Court for re-hearing; 3. Respondent to pay the appellant's costs of the appeal; first hearing to be in the discretion of the judge re-hearing the application. Appeal allowed; Matter remitted to the Compensation Court for re-hearing; Respondent to pay the appellant's costs of the appeal; Costs of the first hearing to be in the discretion of the judge re-hearing the application. RYNP Counsel for the appellant: DM Coulton Solicitors for the appellant: Stephen Smart and Associates Counsel for the respondent: CRR Hoeben Solicitors for the respondent: Astridge and Murray