TUFEVSKA vy STATE RAIL AUTHORITY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and SHELLER JJA 11 August 1995, 8 September 1995 [1995] NSWCA 474 PERSONAL INJURIES — TRANSPORT AUTHORITIES ACT 1980 — FACTUAL ERROR — RETRIAL PERSONAL INJURIES — TRANSPORT AUTHORITIES ACT 1980 — FACTUAL ERROR — RETRIAL — worker claims compensation pursuant to Schedule 5 of the Transport Authorities Act 1980 — issue before trial judge whether undoubted incapacity of worker caused by work injury or home injury — trial dismisses worker's claim — trial judge's reasoning based on assumption that worker ceased work from the time of the home injury. Held: no basis for holding that the home injury happened while the worker was still working for the employer — trial judge got wrong a fact which was material to his reaching factual conclusion adverse to the worker — but for mistake different result possible — new trial necessary. ORDERS 1. Appeal upheld. 2. Orders made by trial judge set aside. 3. Case remitted to the Compensation Court for a new trial. 4. Respondent to pay appellant's costs of appeal. Priestley JA This is an appeal against a decision given by his Honour Judge Burke in the Compensation Court on 9 November 1990 dismissing the application of a worker for compensation. The worker's claim depended on the provisions of Schedule 5 of the Transport Authorities Act 1980. Judge Burke in his reasons noted mat on the facts of the case problems under Schedule 5 could have arisen, but that the way the parties presented the case did not raise those problems. He said that the whole case had been argued as one involving a decision as to the nexus of the worker's incapacity to the event alleged to have been its cause. It is therefore possible to state very simply and without referring to the provisions of Schedule 5 the factual issue which was presented to his Honour and which he decided adversely to the worker. The worker had suffered a back injury at work on 6 November 1986. She was off work for a time and then, Judge Burke found, she was "certified as being unable to do the full duties of a carriage cleaner and indeed... provided with a modified version of the duties". She then worked again doing her modified duties, until a date which was no later than 28 August 1989. Counsel for the employer put to her in cross-examination that she stopped work on 28 August 1989 because she was told by the Railways they had no more work for her. That date appears to have been accepted from then on for the purposes of the hearing as the date (at latest) when she stopped work: see AB 36W, AB 37B, AB 56N. The worker did not agree with the reason put to her for her stopping work. 2 UNREPORTED JUDGMENTS At some time the worker hurt her back at home. It seems the date was | September 1989. The trial judge took the issue which he had to decide as being whether the undoubted incapacity from which the worker suffered from at least September 1989 onwards was caused by the 1986 work injury or the 1989 home injury. His Honour summarised the position as he saw it: "After the work incident" [ie in 1986] "the applicant, having had time off, did this modified form of duty apparently without complaint and apparently without loss of time for something approaching two years during the greater part of which she did not even seek treatment from her general practitioner. It seems to me that the applicant was then much in status quo ante, mat she was able to keep going, doing that sort of work with whatever problem emanated from the employment injury. FROM THE TIME OF THE INCIDENT AT HOME she ceases work, she is incapacitated, she is under active and constant medical treatment proceeding through investigations to operation and confirmation of the problem." (my italics) He then expressed the opinion that: "... Prior to that home event the applicant was able to perform the duties of the classification to which she was at the time of injury appointed but after that home event she was unable to do so and in fact did not do so." (my italics) His reason for decision of the case then followed: "Tt seems to me that the incapacity and need for operation is more likely to be due to the second home incident than it is to the employment incident two years before. Whether that predisposed her to injury, the fact that the two incidents were of essentially the same nature does not allow any real discrimination. We cannot do a Clough v Dorahy Bros type ming and say it is really revelation of the first problem because the first problem was of precisely the same nature as the second. In those circumstances I am not satisfied that the applicant has established that the incapacity alleged results from the employment injury. I make an award for the respondent." His Honour's reasons make it quite clear mat he would not have decided against the worker in the way that he did had she been suffering from significant and relevant symptoms at the time when she ceased work. He held against her because of his findings that until the home injury she was "much in status quo ante" and was then still working. However, there was on the materials before the judge no basis for holding that the 1989 home injury had happened while the worker was still working for the employer. The first reference to the 1989 home injury in the documents was in Exhibit 1, the worker's claim form lodged with the employer, in which the worker said back and leg pain recurred on | September 1989. As I have already indicated, it appears to have become common ground at the hearing that the worker stopped work on 28 August 1989, or before. The next reference to the 1989 injury was in cross-examination by the employer's counsel who had earlier introduced the date 28 August 1989 as the date when the worker stopped work. The relevant passage was: "Q. What happened to you at home in September of last year." [1989] "What happened to your back. A---What happened to me at home. Q. Yes. A--""I was making the bed at home and as I was bending over I felt pain in my back. Q. Where else. A--In my leg, in my left - in my right leg. URJTUFEVSKA v STATE RAIL AUTHORITY OF NEW SOUTH WALES (Priestley JA) 3 Q. Also your left leg, or just your right leg. A---Also in my left leg, but most of the pain I felt was in my right leg." (AB 37) For some time after that, whenever the cross-examiner mentioned a month for this incident, the month spoken of was September. When later the cross-examiner suggested that the home injury had happened earlier than September the worker at no stage agreed. The evidence from the worker was mat she had been suffering back pain at least two weeks before 1 September 1989. Her position, so far as I can tell from the material in the appeal papers was as shown in the following questions and answers in cross-examination: "Q. You told us madam, that you stopped work on a date in August 1989, never to return. Is that right. A--When I cease work in August I did not go back to work, I couldn't work any more. Q. For about 2 weeks before mat time, you were in severe pain in your back, is that what you tell us. A---Yes. Q. That followed did it not, an episode at home when you bent over your bed. A---I had the pain before that. Regardless whether I worked or not, I still had the pain. Q. Yes madam, but the severe pain for the 2 weeks prior to your stopping work, followed an episode of bending over the bed at home, did it not. A---No. I had the pain all the time before that " Ihave not found any admission made by the worker inconsistent with position she maintained in these answers. There was independent evidence which supported the worker. Dr Hodoba's notes show (Exhibit 5) that the worker was consulting him about back pain on 17 August 1989. There was thus sufficient evidence in the worker's case for the trial judge to have decided the issue which the parties were contesting, in the worker's favour. It does not of course follow from this that the trial judge was bound to accept the worker's evidence and find in her favour. He could have taken the view that the visit to the doctor of 17 August 1989 was not about anything serious and disbelieved her evidence of significant symptoms prior to 28 August 1989 and then have gone on to find that the September home injury was the real cause of her incapacity. However, the trial judge did not make any such findings, nor can it be said that such findings are implicit in his reasons since it appears that it was part of his reasoning that the worker ceased work from "the time of the incident at home" (italicised above). Although the dates were very close, there was no basis for this. Even if the judge did not believe the worker, there was no evidence that the home injury happened before 1 September 1989. It therefore seems his Honour got wrong a fact which was material to his reaching the factual conclusion adverse to the worker. It may be there were reasons available to him, on the facts of the case, and such reasons may possibly have been in his mind, which could have justified his factual conclusion; if so, such reasons should have been explained, and were not. On me other hand, had he not acted on the basis of the wrong fact, and had he explicitly considered the acceptability of the worker's evidence she had severe pain for two weeks before she stopped work, he may have come to a different conclusion. In my opinion, whichever way the judgment is looked at, it should not be allowed to stand. It is not then open for this court itself to decide the matter because of the questions of fact and credibility involved which can only be decided at trial. 4 UNREPORTED JUDGMENTS In my opinion therefore this court should uphold the appeal, set aside the orders made by the trial judge and remit the case to the Compensation Court for a new trial. The employer should pay the worker's costs of the appeal. 6 Clarke JA I agree with Priestley JA. Sheller JA I agree with Priestley JA. 1. Appeal upheld. 10 2. Orders made by trial judge set aside. 3. Case remitted to the Compensation Court for a new trial. 4. Respondent to pay appellant's costs of appeal. Counsel for the Appellant: DW ELLIOTT 1S Counsel for the Respondent: M CRANITCH Solicitors for the Appellant: ANTHONY MALOUF AND CO Solicitors for the Respondent: SPARKE HELMORE253545