TULK GONINAN LIMITED in the interest of AMERICAN HOME INSURANCE COMPANY v TALBOT SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL Kirsy ACJ, MAHONEY AP and CLARKE JA 11 July 1995 [1995] NSWCA 475 WORKERS' COMPENSATION — applicable legislation — whether worker's claims fell under Workers Compensation Act 1987 or Workers' Compensation Act 1926 — claim for lump sum benefits — primary judge (Davidson CCJ) takes into account his assessment of worker's credit — rejects arguments as to importance of later injury — uphold contention that primary injuries caused continuing back trouble — on appeal by the insurer of the employer at the time of the primary injuries to challenge the exculpation of the later — held: (Kirby ACJ; Mahoney AP and Clarke JA concurring): (1) As the judge's conclusion was based in part upon his assessment of the credibility of the worker, the Court of Appeal could only intervene if it were shown that the conclusion conflicted with incontrovertible facts or was otherwise palpably wrong. Abalos v Australian Postal Commission (1990) 177 CLR 167 applied; (2) None of the evidence relied on for the appellant justified such conclusion; (3) Appeal dismissed. Workers Compensation Act 1926, s16 Workers Compensation Act 1987, ss66, 67 Kirby ACJ. This is an appeal from an award entered by Davidson CCJ in the Compensation Court on 2 February 1993. It has been argued with commendable economy by Mr Hoeben, counsel for the appellant American Home Assurance Company, an insurer under the Workers Compensation Act, 1987. Parties to a multi party appeal melt away Gradually various parties who were joined in the appeal have melted away so that the only parties remaining at the end of this busy day of compensation cases are American Home Assurance Company and Norwin Workers" Compensation (NSW) Limited, originally the appellant and the fourth respondent respectively to the appeal. The other respondent which appeared was Mr Alan Talbot (the first respondent) (the worker). He was represented when the appeal was called this morning. However, it having been concluded that the worker could be in no worse position as a result of anything which the Court did in the appeal, counsel for the worker sought leave to withdraw. Hewas excused. It was ordered, without contest, that American Home Assurance Company should pay the worker's case. The complication in the case derives from the fact that the worker suffered six injuries to his back during his employment with Tulk Goninan Limited. That company, the worker's employer, was the only party named in the proceedings below. However, the interests of the various insurers over the times between the first injury (in 1983) and the last (in 1989) were represented in the Compensation Court. That is how the remaining parties came before this Court to represent their respective interests. Their right to do so was not questioned or contested. The first injury alleged occurred in 1983 when the worker was said to have injured his back when lifting armature. The second injury was on 2 August 1984, when the worker was said to have been injured when lifting motor parts. His next 2 UNREPORTED JUDGMENTS injury was in 1986 when he was lifting oxygen acetylene bottles. He was injured again in 1987 when lifting tubing. He was injured in 1988 when moving drums containing rubbish. Finally, he was injured on 8 August 1989 when lifting a coil onto a truck. All the foregoing injuries involved injuries to his back. As a consequence of the injuries to his back he suffered loss of efficient use of his right leg. Basis for the decision of the primary judge — assessment of the worker The question for the Compensation Court included the question whether, on the facts which were presented to that Court as found by the judge, it could be demonstrated to the satisfaction of Davidson CCJ that the case was one to be dealt with as a 'straddle case', enlivening entitlements in the worker to benefits under ss 66 and 67 of the Workers Compensation Act 1987, or whether the worker was confined to the benefits to which he would be entitled under s 16 of the Workers Compensation Act 1926. It was in the interests of the appellant (being the insurer for the 1983/84 injuries) to affix liability on the last insurer, Norwin Workers" Compensation (NSW) Limited, the remaining respondent to the appeal. It also happened to be in the interests of the worker to affix liability to Norwin Workers" Compensation (NSW) Limited. If the worker could affix liability to the last injury for which Norwin was liable to indemnify his employer he could arguably attract the wider benefits which are now provided in respect of back injuries and pain and suffering under the Workers Compensation Act 1987. Davidson CCJ had a somewhat difficult task before him in sorting out the aetiology and extent of the worker's back condition. The difficulty was compounded when film was shown and questions were raised as to the credibility of the worker. In the course of giving his reasons his Honour said this about his findings on the worker's credit: Similarly, the subsequent injuries of 3 June 1987, 20 May 1988 and 8 August 1989 have to be considered as to whether or not they were merely temporary aggravations of the already established partial incapacity as a consequence of the injuries in 1983 and 1984 or whether they themselves added something further and contributed to the incapacity which I am satisfied the applicant has suffered since 13 October 1989. Again, I have come to the conclusion that none of those subsequent injuries in June 1987, May 1988 and August 1989 furthered the incapacity that the applicant already had prior to them. Again, I am satisfied that they were temporary aggravations. I was more particularly concerned by the evidence of the applicant in respect of the effect of the last of those injuries, that is 8 August 1989. There is no doubt that his evidence was that after that event he had a lot more leg pain and that his leg pain and perhaps his back pain was more frequent, more constant and more severe after 1989 and generally speaking he was worse after that injury. I have discounted the effect of that evidence as I do not place a great deal of confidence in the accuracy of that evidence given by the applicant. I have already said that I found him to be a very poor historian. In addition to that, I feel that the applicant was not entirely truthful when regard is had to the effect of the evidence ofthe investigator, Mr Schofield, and the film which he took which was tendered in the respondent's case. I am reasonably satisfied that in that area of the case, which in the overall context is not greatly significant, the applicant probably lied.' His Honour further said: URWLK GONINAN LIMITED in the interest of AMERICAN HOME INSURANCE COMPANY 3 TALBOT (Kirby ACJ) I do not reject the applicant entirely as a witness of truth. Dr Harrington's reports I find to be a little laconic. What is of significance, in my view, is that he only finds the applicant to be fit as a storeman. That is my finding. He is not, in my view, fit for full labouring work and more particularly not fit for the work of a truck driver to the extent that he was required to do it for the respondent. It seems to me the applicant agrees with that proposition. Dr Tarrant specifically found the applicant unfit for truck driving and found him fit as a storeman. In the result, Davidson CCJ concluded that the worker was not entitled to compensation under the new Act. He was confined to benefits under the old. In reaching this conclusion he effectively relied upon his assessment of the worker's evidence. He also relied upon the sheer continuity of the complaints of back disability which remained to various degrees, over a period after the first injury. The case is not an unfamiliar one. It presents problems of the kind which are daily seen in the Compensation Court. Indeed, even this day in this Court amongst four appeals dealt with earlier, one raised a similar point. The final conclusion of Davidson CCJ was that the injury which had been suffered by the worker was probably 'a facet joint injury as distinct from a disc lesion.' He agreed with the medical evidence that it was difficult to pinpoint an accurate diagnosis. However, he ultimately concluded that, keeping in mind his assessment of the worker's own evidence, he preferred the view that the case was one to be dealt with as attributable to the original injuries when the appellant was on risk. The conclusion confined the worker to benefits under s 16 of the Workers Compensation Act 1926. It excluded benefits under ss 66 and 67 of the Act of 1987 and the 'straddling provisions' of the new Act. The suggested disproof by the worker's evidence fails. In contest to this conclusion, counsel has rightly acknowledged the difficulty of overcoming the determination of Davidson CCJ resting, as it did, in part upon his estimate as to the truthfulness of the worker. But the appellant relied upon two elements in the evidence. The first was the worker's own testimony during his examination when he said, in answer to cross-examination which (it was suggested) was at arm's length: Q Since 1989 has the pain been there more often? A Yeah it has. Q Since 1989 has the ache been there all the time? A No it hasn't. Q How often are you free with pain following the 1989 injury? A I can go for two, three weeks, all depends, then I might get it for a couple of days, then it will go again. The weather can make it ache even. Q Is that exactly the same as it has been since 1984? ANo. Q How long has it been since the 1989 injury that you have not been able to sit for a long time? A Since 1989 I can't sit hardly at all. Q So that in your mind the real problems that you are suffering now, the increase in those problems goes back in your mind to the 1989 injury? A Yeah, it would do. That's when it's got — the worser part of it is 1989.' With respect, I do not believe that this evidence comes anywhere near the incontrovertible facts or other proper basis which would be required to overcome Davidson CCJ's conclusion resting, as it did, on his Honour's assessment of 4 UNREPORTED JUDGMENTS thetestimony of the worker in this case. His Honour was not bound to accept the entirety of the evidence of the worker. He was not bound to reject the entirety of the evidence of the worker. He did not approach the evidence of the worker on this basis. He specifically said that he did not reject the evidence entirely, he simply had reservations about the truthfulness of the worker upon some matters given in evidence. The worker had reasons and motivation to endeavour to emphasise the importance of the last injury. Doing so might bring him arguably within the new Act with its wider benefits. Davidson CCJ was not convinced. The evidence of the worker cited above, even if accepted, scarcely produces a basis upon which this Court could disturb the conclusion to which his Honour arrived. The Court is obliged, in this regard, to conform to the authority of the High Court of Australia in such cases as Abalos v Australian Postal Commission (1990) 171 CLR 167. The suggested disproof by a contrary medical opinion fails. The second basis in the evidence upon which counsel urged that his Honour had erred was the report of Dr Kim Manhood dated 2 June 1990. It was said that this provided 'powerful evidence' of the importance of the 1989 injury. It is true that it does support the importance of that injury in that doctor's assessment. It also refers to a CT scan taken on 23 August 1989 which revealed a little central bulge at L5/S1 but within normal limits. I do not believe that this medical report comes close to providing the incontrovertible evidence or other proper basis which would be needed to entitle this Court to disturb the conclusion to which Davidson CCJ arrived, depending, as it did in part, on his Honour's assessment of the worker's credit and his assessment as an expert tribunal of all of the medical and other evidence in the case. That being the position, the two arguments upon which counsel for the appellant has advanced the appellant's cause fail. Accordingly, as between theremaining respondent and the appellant, I see no reason to disturb the conclusions which Davidson CCJ reached. The award was not at risk, in the sense that it was agreed between the parties that the worker would recover something. However, the award entered under s 16 of the old Act has not been shown to have been wrong. The award that Davidson CCJ entered will be sustained. Orders. The orders which I propose are: 1 The appeal should be dismissed. 2 The appellant must pay the costs as previously ordered of the first respondent and of the third respondent. 3 It having failed against the fourth respondent, it must also pay the fourth respondent's costs. Mahoney AP. I agree. Clarke JA. I also agree. Kirby ACJ. Such are the orders of the Court. Appeal dismissed with costs. Counsel for the appellant: (American Home Insurance) C R R Hoeben Solicitors for the appellant: Connery and Partners URWLK GONINAN LIMITED in the interest of AMERICAN HOME INSURANCE COMPANY & TALBOT (Kirby ACJ) Counsel for the first respondent: (worker) M J Perry Solicitors for the first respondent: Maroni Rutter and Mantach Counsel for the fourth respondent: P Sweeney Solicitors for the fourth respondent: Hunt and Hunt