HANNAH v ANSETT TRANSPORT INDUSTRIES LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and SHELLER JJA 4 May 1995, 4 May 1995 [1995] NSWCA 190 WORKERS COMPENSATION — EVIDENCE — ONUS PROOF INJURY — WITNESS OF TRUTH FACTS: Appellant/worker sought to appeal finding of trial judge that inconsistent evidence of worker precluded the making of an award in his favour. HELD: (1) In circumstances where the evidence of the worker is inconsistent a finding that the worker has not discharged the onus to prove injury cannot be disturbed. Clarke JA I will ask Meagher JA to give the first judgment. Meagher JA This is an appeal by a worker against the refusal by his Honour Judge Geraghty to make an award in his favour. The worker's story was clear, that he was a passenger on an internal vehicle on 5 November 1991 which was caused to jolt forward suddenly and thereby give him a whiplash injury. It is clear on all views that something did happen on 5 November 1991 at work, but what is not clear is what flowed from it. The onus of proving that some incapacity resulting from that incident was contributed to by that incident lay on the worker and his Honour found that he was not able to discharge it. His Honour I think found that the worker was not a witness of truth. His Honour did not say in terms that he disbelieved the worker or. worse still, that the worker lied, but he did find that the worker's account of what happened was not such as to convince him of its truth. It would seem that apart from the incident on 5 November 1991, the worker had had the following relevant injuries: he had admittedly some injury to his neck in 1990; on 20 October 1991 he had a neck injury caused by weight-lifting. The gravity of that injury is not entirely clear, although it is apparent from medical notes that it was far from trifling. It may be that at about the same time there was another incident at work which was not reported to his employer. He also had a surfing accident on 13 December 1991 after diving into a strong surf. He also hurt his back in some unexplained way in November 1991 in a scuffle at a nightclub. During the trial he first denied and later admitted many of these injuries. He gave differing accounts of each of them and almost in no case was any version of his sworn testimony about any of these incidents entirely consistent with what he apparently told his doctors at the time. In particular there is a great shortage of evidence as to his state of health in between 5 November and 13 December 1991. In these circumstances it is hardly surprising that his Honour found that amongst this multiplicity of injuries he was unable to prove that the incident he relied on caused or contributed to the condition that led to his incapacity for work. In my view the appeal should be dismissed with costs. 2 UNREPORTED JUDGMENTS Clarke JA: I agree. The significant injury from which the appellant suffered and which was exposed in January 1992 was a discal protrusion at C6/7 with spinal cord compression and indentation. This was a very serious condition and led the appellant to surgery. His case was that it had been caused by the incident at work on 5 November and then exacerbated by another incident in the surf on 13 December 1991. That case was consistent in broad terms with the history that he gave to Dr Jenny Saunders of the St George Sports Injury Centre at Kogarah, whom he saw on 17 January 1992. Dr Saunders expressed the opinion or appeared to express the opinion that in the light of that history the injury had been caused initially by the incident at work. As his Honour explained in his Honour's judgment, the appellant's case was straightforward and simple. Difficulty was, however, introduced into the case during the cross-examination when it was disclosed that the applicant had had an injury as a result of weight-lifting on 20 or 25 October 1991 which, according to a doctor whom he consulted on or about that date, involved neurological symptoms, and an injury resulting from a scuffle in a nightclub some time after 5 November, as well as the two incidents of which he spoke. The existence of the weight-lifting incident was not disclosed to a number of doctors, nor was its significance or lack of significance ever explained. Having regard to the fact that he was complaining then of neurological symptoms which may or may not have been like the neurological symptoms of which he complained after the diving incident, the judge was faced with a difficult problem to unravel. That difficulty was increased because the appellant gave different histories to the different doctors and was not regarded, I infer, by his Honour as a frank and open witness. There are in the judgment a number of references to the manner in which the appellant gave his evidence. Despite the complicating features of the case, the appellant's counsel rested the case solely on the evidence of the appellant and documentary evidence. The respondent replied only with documentary evidence, but as it seems to me there were a number of questions left up in the air at the end of all the evidence. The major one of these related to the causal relationship, if any, between the incident of 5 November and his disc lesion. His Honour considered all the problems in the case and having regard to a number of factors, including those that I have mentioned, concluded that the appellant had not discharged his onus. I fully appreciate the difficulty under which his Honour laboured, having regard to the multiplicity of incidents, the varying histories and particularly the apparent neurological symptoms suffered prior to the incident the subject of the claim. In all the circumstances and bearing in mind that the case essentially depended upon the judge's acceptance of the appellant as a reliable historian in the court and the fact that the judge expressed himself in terms which make it plain to me that his ultimate decision was in part demeanour based, I do not think it is open to this Court to say that the judge was mistaken. During argument Mr Cummins of Queen's Counsel put at the forefront of his argument two propositions. The first was that his Honour had not given adequate reasons for his conclusion. The judgment under examination was a lengthy one in which the judge recorded all the relevant history before pointing to the specific difficulty relating to the symptoms in October 1991 and leading to his ultimate conclusion. URJ HANNAH v ANSETT TRANSPORT INDUSTRIES LTD (Sheller JA) 3 I do not think there is any doubt but that the judge refused the application because he was not persuaded that the appellant had made out his case, nor do I think there is any doubt why he was left in the position where he felt he had to find against the appellant on the onus. The second proposition was that the trial judge had in his judgment sought to interpret handwritten notes which had been produced by Dr Chan, but which were clearly enough written by different doctors in the practice. As Mr Cummins pointed out, the judge interpreted one entry in terms which appear fairly clearly to have been mistaken. The entry related to the 7 November visit concerning the incident which occurred two days earlier. The judge seems to think that the incident on the tug, which I take it to be the incident at work, occurred two weeks before 7 November, whereas in the written notes it is fairly clear that it occurred two days before that date. Notwithstanding the judge's misunderstanding of that fact, I cannot see the slightest indication that the mistake played any part in his Honour's ultimate conclusion. Certainly his Honour does not mention it and although his Honour did refer on a number of occasions to difficulties with the history given by the appellant, it does not seem to me that he placed any weight on the particular matter to which our attention was drawn. In that context it must be said that there were a number of other problems with the appellant's history which his Honour spelled out in some detail. The appeal should be dismissed with costs. Sheller JA For reasons given by the other members of the court, I agree that the appeal should be dismissed with costs. Clarke JA. The order of the court will be the appeal is dismissed with costs. COUNSEL: Appellant: J CUMMINS QC/ V JURICICH Respondent: ADM HEWITT SOLICITORS: Appellant: MICHAEL E STEVENS AND CO Respondent: BRUCE AND STEWART TURTON