RUBERTO v HESONNE PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and SHELLER JJA 1 May 1995 [1995] NSWCA 399 WORKERS COMPENSATION ACT APPEAL — MISCARRIAGE OF JUSTICE RETRIAL ORDERED Clarke JA The appellant, Franco Ruberto, commenced proceedings in 1992 in the compensation court seeking an award for weekly compensation and other payments. He alleged he had suffered an injury to his back and his legs as a result of what is quaintly described as "the nature and conditions of his employment" with the respondent between March 1990 and June 1991. It is fairly clear from his evidence in chief and later references in medical reports that his complaint was directed to the on-set of back symptoms following heavy lifting at work in May 1991. The respondent denied that there had been any work involvement in any incapacity suffered by the appellant and his claim was for heard by her Honour Judge O'Toole on the 11 th February 1993. The hearing continued on a number of days until 10th March 1993 when her Honour delivered an extempore judgment in favour of the respondent. There are a number of grounds of appeal in the notice filed by the appellant but the Court has limited discussion to a ground that, in broad terms, a miscarriage of justice has occurred. The Court did this because it appeared, prima facie, to be the most solidly based ground of appeal. In her judgment her Honour was, I think it is fair to say, critical of the appellant's evidence. She described it as reconstruction and surmise. She thought he had not independent recollection of events which were crucial to his claim. She said he was argumentative and that his terminology and concessions made during his cross examination "permit proper inference that the applicant (that is the appellant) did not complain of a frank injury until some time after he ceased employment with the respondent". She made some other observations and then went on to say that the appellant's oral evidence regarding the onset duration and nature of particular symptoms was unreliable. The thrust of the appellant's argument was that her Honour was led to reject his evidence and to describe it in the terms which I have indicated because she laboured under a fundamental mistake which had been induced by counsel for the respondent. It was not suggested that counsel had deliberately misled her Honour. Rather that he honestly made a statement which her Honour and counsel for the appellant accepted and which was, as it turned out, completely erroneous. The appellant gave evidence that he attended a medical practice described as "Immediate Health Care". There he was seen at various times by different doctors. His first visit was on 17th May 1991. His next visit was on 7th June 1991 and he was then seen by Dr Gipps who gave a provisional diagnosis that the appellant was suffering from disc herniation and that he was unfit for work or fit only for light duties until 15th June. Dr Gipps referred to the appellant to an 2 UNREPORTED JUDGMENTS orthopaedic surgeon, Dr Kirsh, who the appellant saw on 14th June 1991. It is apparent from a medical certificate given by Dr Gipps, and a report dated 8th April 1992 written by the same doctor, that the appellant visited the clinic at Rockdale on 17th May 1991 when he was seen by another doctor and was seen by Dr Gipps on 7th June 1991. Dr Gipps said in his report that on 17th May the appellant complained that he had been lifting heavy weights at work. This history is not recorded in the medical certificate of that date and there is reason to believe it may have been given somewhat later. Dr Kirsh records seeing the appellant on 14th June and receiving a history that back pain, which had been present for a month, started up the day after he had done a hard day's work. In a report dated 25th August 1992 Dr Kirsh noted that he continued to improve but, on review in August 1991, the doctor reported worse sciatica and neurological examination revealed a marked deterioration. A myelogram was then ordered which confirmed an L4/5 disc prolapse with compression of the right L5 nerve root. He did not improve, according to the doctor and, in February 1992, a laminectomy/discectomy was performed by the doctor at Bankstown Hospital. His sciatica disappeared post operatively straight away and he settled quite well. What can be said about the matters I have recorded is that they reveal that the appellant first complained of back pain in May 1991 and continued to complain, albeit with periods when he felt there had been some improvement, until the time of the operation. The evidence to which I have referred would suggest a fairly straight forward claim. It must be accepted, however, that the respondent raised a real issue as to injury insofar as various persons who had been engaged in the employment of the appellant contradicted some of his evidence about the receipt by them of medical certificates from the appellant. I therefore accept that there was a real issue as to injury and that, upon the evidence, it was undoubtedly open to her Honour to find in favour of the respondent. The difficulty which arises is that counsel for the respondent cross examined the appellant upon some medical notes produced in answer to a subpoena and subsequently tendered those notes as being the notes of Dr Gipps. They did not sit happily with Dr Gipps' medical certificate of the 7th June, nor his report of 8th April 1992. Indeed, if one accepted that the notes were those of Dr Gipps, there were many puzzles in the case. When the appellant was cross examined by reference to these notes he was confronted with suggestions emanating from a document which were suggested to be the notes of Dr Gipps and various suggestions were put to the appellant about saying something to Dr Gipps in March 1992 which the appellant stoutly denied. He described one suggestion as being a false one. It is clear that a major thrust of this portion of the cross examination was the destruction of the appellant's credibility and, insofar as it was based upon notes allegedly being those of Dr Gipps, it seems to me to have been essential that counsel was correct in his assertion. Obviously it is one thing to prise from a witness an unlikely assertion by the use of authentic notes, and quite another thing to mislead a witness by putting suggestions upon the false basis that the notes are those of one doctor when they are in fact those of another. In any event the cross examiner was successful in having her Honour substantially reject the evidence of the appellant. URJ RUBERTO v HESONNE PTY LTD (Clarke JA) 3 If one then turns to the oral arguments put before her Honour one sees a number of references by counsel for the respondent to the clinical notes of Dr Gipps and the difficulty of fitting those clinical notes in with his certificates and report. When her Honour came to deal with the medical evidence she immediately stated that there were unsatisfactory features about it and that various documents were difficult to reconcile. She then referred to the medical certificates and said that it was not possible to correlate the certificates with the content of exhibit 3. She was, of course, quite correct in finding it impossible to reconcile the Dr Gipps' certificates with the notes because, as has become clear and is beyond dispute, the notes were not, and never had been, those of Dr Gipps. The only person who ever suggested they were was counsel for the respondent and unfortunately no one bothered to check and ascertain whether he was correct. Although it only matters so far as this appeal is concerned that they were not Dr Gipps' notes, I could point out that they are more than likely those of the treating specialist, Dr Kirsh, for they start on the day of his first consultation and their introductory words bear a degree of resemblance to the first paragraph of his report. What is important is that the appellant was cross examined on credit upon a completely false basis. Where does that leave the Court? It is said, and properly said, that her Honour does not expressly base her decision on credit on this cross examination and it may also be said that there was other material which would have entitled her to reject the appellant's evidence. That, however, would not entitle this Court to maintain her Honour's award unless, in my opinion, it is crystal clear that she had not been influenced by an adverse reaction to this portion of the cross examination. In my opinion it is impossible to exclude the possibility that that portion of the cross examination played a part in her Honour's ultimate rejection of his as a reliable witness. The appellant also relied on medical evidence which became rather dubious and difficult to reconcile upon the premise upon which her Honour worked. That was, as I have pointed out, a completely mistaken premise and the consequence was that her Honour was led to carry out a false exercise of attempting to endeavour to see how there could possibly be consistency between the documents. More importantly the lack of consistency tended to throw considerable doubt upon the appellant's case. I should add that her Honour did accept that the appellant did sustain at least a level of discomfort on 17th May 1991 associated with some feature of his employment. She seemed to think, however, that because there was a progressive improvement until a worsening in August that there must have been an end to the effect of the work induced back discomfort. Although there is some evidence of a congenital condition there is no medical evidence supporting the view that there was recovery from the work caused condition and the onset of a new and different set of symptoms. Indeed Dr Kirsh's evidence would suggest that the symptoms were substantially the same although in August there was a marked deterioration. In the end I am left with the strong feeling that there has been a miscarriage of justice. In saying that I do not wish to cast blame on any particular person although, unless courts conduct cases which are important to those who appear before them with scrupulous care mistakes of the nature which occurred in this case are likely to occur time and again. They should not be allowed to occur and 4 UNREPORTED JUDGMENTS it is important to emphasise the need for counsel and courts to ensure that the evidentiary material upon which a decision is based is accurately placed before the court. ORDER In my opinion the consequence of the miscarriage is that the appeal must succeed. I would propose that the appeal be allowed, the award of Judge O'Toole of 10th March 1993 be set aside, and the proceedings be remitted to the Compensation Court for a new trial. The question of the appellant's entitlement to costs in respect of the first hearing should lie in the discretion of the Judge who hears the new trial but the appellant should have the costs of the appeal. Meagher JA I agree with what Mr Justice Clarke says. If I were sitting at first instance I might well have come to the same conclusion as her Honour. That is irrelevant. What is relevant, however, is that her Honour reached her conclusions in part by making an entirely erroneous assumption on an important matter. In those circumstances a new trial is inevitable. Sheller JA I agree with the orders proposed for the reasons given by Mr Justice Clarke. Clarke JA: The order of the court will be as I have said. Counsel for the appellant: B McMANAMEY Solicitors for the appellant: TURNER FREEMAN Counsel for the respondent: C HOEBEN Solicitors for the respondent: PIETERSE AND PIETERSE