VELESKI v MARITIME CONTAINER SERVICES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and HANDLEY JJA 8 May 1995, 30 May 1995 [1995] NSWCA 485 WORKERS COMPENSATION FACTS: The appellant worker claimed in the NSW Compensation Court against the respondent employer under the Workers Compensation Act 1987 in respect of disabilities sustained in the course of his employment. The worker originally claimed that these disabilities were the result of a back injury sustained on 27 February 1989. He later amended his claim to allege that the general nature and conditions of his work played a part in his impairment and incapacity. In addition, he claimed an incurable loss of his mental powers, which he alleged arose from the taunting of the worker by his employees and fellow workers. Between the time of his alleged injury and the date of the first hearing, the worker was seen and treated by a number of psychiatrists. The trial judge found that the worker had no physical incapacity as a consequence of injury of 27 February 1989; that there was a complete absence of any complaint by the worker to the psychiatrists of taunting; and that the taunts suffered by the worker did not cause his mental condition. Senior counsel for the appellant worker argued that the trial judge had found that a minor problem persisted from the back injury, which on psychiatric evidence was said to have led to the worker's mental problems. Counsel for the appellant also argued that the trial judge had erroneously applied a criminal standard of proof when determining whether the taunts suffered by the worker contributed to his psychotic condition. Further, it was argued by the appellant that the trial judge's finding on the cause of the mental problems could not be reached without expert medical opinion as to what inferences can be drawn from the appellant's failure to complain promptly of the taunts suffered at work. HELD: (1) (By Meagher JA, Clarke and Handley JJA agreeing) Despite the trial judge having found that he could not be '100 per cent satisfied' that there was not a minor ongoing effect from the back injury, nevertheless the trial judge found that, on a balance of probabilities, the after-effects of the injury had disappeared. (2) (By Meagher JA, Clarke and Handley JJA agreeing) In saying that he was not satisfied that the taunts suffered by the worker 'must' be regarded as contributing to the worker's psychotic condition, the trial judge was using the word 'must' in a non-technical sense, and was not referring to a degree of proof. (3) (By Meagher JA, Clarke and Handley JJA agreeing) It is unreal to suggest that the trial judge could not come to his conclusion on the cause of the appellant worker's mental problems without expert medical opinion. It is part of a psychiatrist's business to persuade a patient to disclose all complaints. (4) (By Clarke JA) The absence from any doctor's report of a history of taunting suffered by the worker, and the lack of consideration of this added factor in the expression by the doctors of their written opinions, was a relevant consideration for the trial judge. The finding that the worker's mental condition was not caused by the worker being taunted was open to the trial judge without the need to call expert evidence. ORDERS: (1) Appeal dismissed with costs. 2 UNREPORTED JUDGMENTS Clarke JA I agree with the reasons and orders of Meagher JA. I wish, however, to add some observations on the issue relating to the appellant's claim that his incapacity was caused by the taunts of fellow workers. This claim was not made in the application for determination but was added following a successful application to amend the application which was made on the first day of the hearing, 27 May 1993. Between the time of his alleged injury and that date he was seen and treated by a number of psychiatrists. They included Drs Sokolovic and Gertler, who gave oral evidence, and Drs Chuchkovich, Grady, Jolly and Barry (the psychiatric registrar at the Rozelle hospital) whose reports were tendered. He was also seen by two psychiatrists at the behest of the respondent - Dr Shand and Dr Revai. His Honour found that there was a complete absence of an account by him of his being concerned by such treatment as he now alleges was being meted out to him at work. It was in fact only when doctors were called that they expressed opinions which provided the basis for the case that the appellant relied upon. The absence of a relevant history in the reports of any of the doctors and the lack of consideration of this added factor in the expression by the doctors of their written opinions must surely have been a relevant consideration for the judge. In particular he did not need expert evidence to reach a conclusion that he could not be satisfied that taunts played any part in the appellant's problems when he himself did not complain of them at relevant times and gave the doctors no indication that they troubled him. The finding was open to the judge and I am not persuaded he was wrong in his conclusion. Meagher JA This is an appeal by a worker who failed to obtain an award for compensation from Davidson CCJ in the Compensation Court. He had claimed continuing weekly compensation, together with a lump sum in respect of impairment of the back. He originally claimed that his disabilities originated in a back injury he suffered on 27 February 1989. He later amended his claim to allege that the general nature and conditions of his work played a part in his impairment and incapacity. In addition to the impairment of his back he claimed an incurable loss of his mental powers. This latter complaint was alleged to arise from the general conditions of work and from the consequences of the specific incident which led to the back injury. The "general conditions or work" about which complaint was made was the taunting of the worker by his employees and by his fellow workers, accusing him of homosexuality and asserting that his wife was being unfaithful to him. There is no doubt that some incident at work occurred on 27 February 1989. There is no doubt that at the time of the hearing before Davidson CCJ the worker was suffering from some mental trouble, probably either chronic depression or paranoid schizophrenia. Almost every other aspect of the case was and is very much in dispute. In particular, the nature of the back injury, the duration of its after effects, the nexus between that and the mental perturbation of the worker, the existence of the taunting and teasing, and the effect (if any) of such conduct, were all much in issue. His Honour had to consider the evidence, given either by witnesses in person or by tender of medical reports, of eight psychiatrists, six surgeons or orthopaedic surgeons, one general practitioner and one physiotherapist - in addition to the lay witnesses. URJ VELESKI v MARITIME CONTAINER SERVICES PTY LTD (Meagher JA) 3 His Honour's primary finding of fact concerned the back injury. In this regard he expressed himself in different ways at different stages of his judgment. His first - and, I think, his principal - finding on this matter is in the following words: "T have come to the conclusion that the applicant has failed to make out his case in respect of the claim that he has any physical incapacity as a consequence of the injury of 27 February 1989. In this respect, having weighed the competing evidence of the applicant, his wife, the two lay witnesses called in his case and Drs Maniam, Berry and Hodoba on his behalf, against the overall effect of all the available evidence including, particularly, the reports of the other doctors, apart from those I have already mentioned and more specifically, the evidence provided in report form by the respondent's doctors, Drs Bryan, Bodel and Slezak, the probability is that the applicant merely suffered a musculo ligamentous injury and did not suffer any disc lesion, and that he recovered, so far as the incapacitating effects of his back injury were concerned, from it in a very short space of time." It will be noted that his Honour's finding is expressed in unqualified language. When his Honour dealt with the matter a second time he said: "T leave open, as it is in my view only in the clearest of cases that one can be 100 per cent satisfied, the question of whether there is not some very minor ongoing effect from the injury. Experience leads me to the conclusion that the field of injury to the low back is such that there may remain a minor problem which is difficult to diagnose and which can, with the passage of time be better evaluated." When his Honour dealt with the matter a third time he said: "The plain fact of the matter is that, even given that there might be some minor after effect of the injury which I very much, at the moment, doubt, it certainly did not prevent the applicant from continuing his work from February 1989 until May 1991. That work was reasonably heavy at times. It included overtime." Mr Joseph SC learned senior counsel for the appellant worker, sought to argue that his Honour had found that a minor problem persisted from the back injury. The importance of this is that a number of the psychiatrists stated the worker's mental problems as diagnosed by them were triggered from time to time by the continuing organic effects of the back injury. However, this is not what his Honour was saying. His Honour was saying there were no after-effects at all, no continuing problem, the whole back injury had disappeared "after a relatively short period of time". He said, perhaps gratuitously, that he could not be 100% certain of complete disappearance, but found, which was all he was required to do, on a balance of probabilities, that it had disappeared. That disposes of one of Mr Joseph SC's grounds of appeal. Having thus disposed of the problem of back injury, his Honour turned to the mental disturbance. He found as a fact that the worker was mentally disturbed. But he also found as a fact that his mental state was in no way caused, in whole or in part, by the back injury. He then considered the conflicting evidence on the question whether the alleged teasing and taunting had happened, and found that it had not. In this regard, his Honour paid particular attention to the evidence of Mr Nikolski, a fellow countryman and close personal friend of the worker. His Honour then dealt with another aspect of the alleged teasing. It is necessary to quote his Honour's exact words: "However, even giving the applicant's case the benefit of accepting the evidence of Mr Spiseski and Mr Jovanovski, and of himself, that he was the subject of jokes and taunts, and may have been depicted in an unsavoury fashion 4 UNREPORTED JUDGMENTS in drawings on the toilet wall, and had been the subject of harassment concerning his wife and his own sexual conduct, having weighed all the evidence, I am not satisfied that that treatment so affected the applicant that it MUST be regarded as one of the stressors which it is alleged contributed to his psychotic condition." (italics supplied) These words provoked Mr Joseph SC to the second and third grounds of appeal. The first centred on his Honour's use of the word "must". The submission was that such language revealed that his Honour was applying inappropriate standards - indeed the criminal standard of proof, beyond reasonable doubt. In my view this is wholly to misread what his Honour said. His Honour used the word "must" in a non-technical sense, as meaning "should"; he was not talking about degrees of proof. The second problem which Mr Joseph submitted arose out of this section of his Honour's judgment is as follows. His Honour said that even if he found that the worker had been teased at work, such teasing could not have had the effect of causing the mental problems. His principal reason for coming to this conclusion was that for many years he failed to complain of it to his treating psychiatrists. He saw six psychiatrists without mentioning it. His Honour therefore concluded that it certainly lacked causal nexus with his condition. Mr Joseph's submission was that his Honour could not properly have come to his conclusion without expert medical opinion as to what inferences can be drawn from lack of complaint. This is unreal. A psychiatrist's business is to discover the causes of mental illnesses; and this must include persuading his patient to disclose all his complaints. The appeal should be dismissed with costs. Handley JA I agree with Meagher JA. Appeal dismissed with costs. Counsel for the appellant: M JOSPEH SC Solicitors for the appellant: CARROLL AND O'DEA Counsel for the respondent: JL SHARPE Solicitors for the respondent! MORAY AND AGNEW