MASHIATI v AUSTRALIAN POULTRY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and SHELLER JJA 2 May 1995, 18 May 1995 [1995] NSWCA 277 WORKERS COMPENSATION — APPEAL — FAILURE TO PROVIDE ADEQUATE REASONS Facts - The appellant claimed that on 24 July 1990 he was pulling a heavily loaded pallet containing 62 boxes of chickens, and was attempting to walk backwards pulling the pallet jack in order to move the pallet to a freezer, when he sustained injury to the low back region. The Judge however made a finding in favour of the respondent. The appellant's case was that prior to the incident he had not suffered from symptoms in his lower back and that following the incident he had continuing problems which significantly disabled him. The appellant was supported by doctors who, although they accepted that he had some long standing degeneration, related the symptoms to that incident. The respondent had the evidence of at least one doctor who thought that the problems arose from a back condition which must have been symptomatic well before the incident in question and which, while temporarily aggravated, continued in their pre-incident condition following the aggravation. Held Although her Honour hesitated to accept the appellant, she made no clear finding rejecting his evidence. There was no analysis of the competing medical evidence and, consequently, no reasons given for preferring the evidence adduced by one side to that led by the other. Her Honour pinned her final conclusion in some inexplicable way to the appellant's behaviour before medical practitioners and in court. The appellant was entitled to a judgment based on findings and reasons which enable "a proper understanding of the basis upon which the verdict entered has been reached". Her Honour's judgment fails to meet the relevant test and cannot stand. Clarke JA On 26 August 1991 the appellant filed an application for determination in the Compensation Court of New South Wales in which he claimed that on 24 July 1990 he was pulling a heavily loaded pallet containing 62 boxes of chickens, and was attempting to walk backwards pulling the pallet jack in order to move the pallet to a freezer, when he sustained injury to the low back region. The accident occurred at the respondent's premises at Riverstone. The respondent denied injury and incapacity and the case was heard by Judge O'Toole who, on 17 September 1992, made an award in favour of the respondent. The appellant filed a notice of appeal which raised very general grounds but the argument before this Court focused on a number of grounds of appeal which were particularised in the appellant's written submissions and in respect of which the respondent had furnished its own submissions. The consideration of those grounds and in particular the assertion that her Honour's finding that the injury of 24 July 1990 did not cause or aggravate the disc lesion was erroneous, necessitated a close examination of the terms of the judgment. In the course of that examination the court indicated that it was more appropriate for the respondent's counsel to explain the critical passages in her Honour's judgment. 2 UNREPORTED JUDGMENTS Accordingly, counsel for the respondent undertook that task and sought to explain to the court precisely what it was that her Honour was deciding in the penultimate paragraph of her judgment (which will later be set out in full) and how that supported her ultimate conclusion. At the end of the argument the court reserved its decision. During his submissions counsel sought to support the statement in the respondent's written submissions that the appellant was not able to show 'the error required to invoke the intervention of an appellate court' referred to by this Court in Offset Alpine Printing Pty Ltd v Porteous (Unreported, Court of Appeal, 30 October 1992), that is a deficiency in the expressed reasons. It is, I think, necessary to set out in short form the cases which each party made at the trial and the evidence by which they supported those cases in order to enable a better understanding of the terms of her Honour's judgment. The appellant was born in 1944 in Iran and arrived in Australia in November 1982. He commenced employment as a machinist and later was involved in some businesses in partnership with, first his cousin and, secondly, his wife. In 1986 he had a heart attack and sometime later ceased working in the business and was unemployed for some time. He commenced working with the respondent as a process worker on 10 January 1990. During the course of his employment he asserted that he sustained the injury in the circumstances which were set out in the application for determination. He went off work and the next day was spoken to on the telephone by a representative of the respondent and he told her that he had received an injury on 24 July. One or two days later he returned to work but ceased on 20 August when he said that he could no longer continue. He attended Dr Nyun at Seven Hills who arranged for a number of investigations to be undertaken to ascertain the problems of which he was complaining. Those investigations included x-rays of the lumbar spine, the abdomen and an intravenous pyelogram. The x-ray of the lumbar spine revealed an abnormality and the appellant was referred to Dr Sanki who arranged a CT scan and physiotherapy. He was later referred to Dr Bleasel, on 7 January 1991, who observed that he was in very severe pain and noted that the CT scan indicated a rounded mass on the left side of L4, LS which the doctor thought was a separated disc fragment. The appellant claimed to have suffered from severe pain, extending into his left leg and Dr Bleasel noted that his left knee jerk (an objective indicator of nerve root problems) was much depressed. The appellant's case was that he had had no back problems prior to the incident at work which had set in train the disability which had continued to the time of trial. He was supported by the evidence of his wife who also said that he had had no back troubles prior to the accident but was severely disabled following it. The appellant also tendered the reports of a number of doctors, including Dr Bleasel who treated him for some months in 1991. In Dr Bleasel's opinion there was old standing disc degeneration but this had not been, according to the appellant's history, a cause of the symptoms prior to injury. The doctor was of opinion that he probably suffered from a disc lesion with nerve root compression and it is implicit in that report that the doctor considered that the disc lesion had been caused in the incident on 24 July. Dr A J Sanki's report, dated 23 April 1992, was also tendered. He is a general surgeon who first saw the appellant on 27 August 1990. In his opinion the appellant had "aggravation of the degenerative changes in his lumbar spine as a result of the lifting of heavy weight in his spine and that injury could have caused prolapse of the disc at L4-5 level with involvement of the LS nerve root". The URJ MASHIATI v AUSTRALIAN POULTRY LTD (Clarke JA) 3 lifting to which he referred related to an incident described to the doctor which was, clearly enough, the incident mentioned in the application for determination. Dr Peter Conrad saw the appellant on the reference of his solicitor and he concluded that as a result of the lifting incident the appellant sustained a back strain with some degree of possible disc prolapse at L4/S. In short the appellant's case was that prior to the incident he had not suffered from symptoms in his lower back and that following the incident he had continuing problems which significantly disabled him. There was what might have been thought to be a complicating factor to which her Honour referred in her judgment. This was a triple artery disease from which the appellant had suffered since 1986. When last seen by Dr Prabhu in March 1987 he had symptomatically remained good and surgery had been deferred. There was no evidence of any deterioration in that condition nor was it suggested in evidence that he had been restricted in his working by heart disease. The respondent's case was, in essence, that the appellant had indeed suffered from a disc lesion but that this condition was of long standing as at August 1990, when the x-rays were taken, and must have preceded the incident the subject of the claim. Further, the lesion was so well developed that it must have caused symptomatology before July 1990 and, although the incident may have caused a temporary aggravation of the condition, the symptoms suffered by the appellant since at least the middle of 1991 resulted from his damaged and degenerate spine. The evidentiary basis for the case was the evidence of Dr Terenty, a neurologist, who said, inter alia: "What he's got is one disc that at some stage ruptured with what would have been enormous pain and sciatica. Hardly forgettable. And then bone formed around it." Having said that the disc protrusion occurred years before August 1990 she went on to say "I have never seen an asymptomatic disc protrusion like that". The respondent also relied on the report of Dr Renton who accepted that the incident in July 1990 may have rendered disc degeneration at the L4-5 level symptomatic although he thought that the process was of a long standing nature. The contest was a not unfamiliar one. The appellant gave a history of low back symptoms following an incident at work and was supported by doctors who, although they accepted that he had some long standing degeneration, related the symptoms to that incident. On the other side was the evidence of at least one doctor who thought that the problems arose from a back condition which must have been symptomatic well before the incident in question and which, while temporarily aggravated, continued in their pre-incident condition following the aggravation. In this context the respondent invited her Honour to disbelieve the appellant when he said that he had no back pain prior to the incident. There was a problem in this invitation insofar as the appellant was supported by the evidence of his wife who was not, relevantly, challenged in cross examination. For reasons which will later appear that problem can safely be disregarded. Her Honour was alive to the importance of deciding whether the appellant could be accepted in the history that he gave for early in the judgment she adverted to it and said "I hesitate to accept the applicant as a witness of credit". Having said that she referred in some detail to what she described as the appellant's demeanour and inconsistent behaviour in the court room and said that it caused her "scepticism over his assertion that he is chronically and severely disabled". The judgment then discussed the nature of the appellant's work both in his businesses and in his employment and her Honour concluded that it was unlikely that the work was of a heavy nature. She referred to those opinions of 4 UNREPORTED JUDGMENTS Dr Terenty which I have already mentioned and then made specific mention to Dr Bleasel's statement that "his own doctor felt that the trouble could be kidney or even gall bladder so this was initial course of investigation" and concluded from that that there seemed to have been conscious or unconscious ex post facto reasoning by the applicant and one or more of his medical advisers to associate back pain with activity performed on or about 24 July 1990. This was not an unimportant conclusion for it led her Honour to "hesitate, therefore, to accept the applicant's assertions that he had not on any prior occasion experienced symptoms provoked by the condition of his back". For similar reasons her Honour had reservations regarding the evidence of the appellant's wife, notwithstanding that she was not challenged on this particular question. There can be no doubt that Dr Nyun was unclear as to the cause of the appellant's symptoms and he submitted the appellant to a number of procedures. These occurred on 20 and 21 August 1990. The x-rays of the abdomen were reported as normal, as was the intravenous pyelograrn. The only abnormality detected was that relating to the appellant's spine, particularly the lumbar spine and he was submitted to CT scan on 31 August 1990. In September 1990 he was admitted to Fairfield Community Hospital for bed rest and traction and on 23 October 1990 he was admitted to the Fairfield Community Hospital for manipulation. Again on 30 October 1990 he had a cortisone injection and, following his first visit to Dr Bleasel, he had a mylogram in January 1991. In these circumstances I can readily accept that Dr Nyun displayed commendable caution in determining the cause of the appellant's pain and symptoms but it appears clear that by 31 August 1990 the explanation, which has been accepted ever since, had been discovered. Her Honour's conclusion of ex post facto reasoning seems hardly to be justified in the light of this history but it is unnecessary to take further time with this aspect of the judgment for the real problems lie ahead. Her Honour then referred to Dr Renton and inconsistencies noted by him which were, in her opinion, generally consistent, with her impression of the appellant's demeanour in the courtroom. While it is not entirely clear what inconsistencies her Honour was referring to it would seem that during examination the appellant made a lot of noise, gave what the doctor thought were inappropriate responses to a number of tests and displayed "a stocking sensory loss below the left knee to pin prick sensation". As a result, no doubt, of this behaviour the doctor concluded that the appellant was grossly exaggerating his clinical signs. Her Honour had obviously formed a similar opinion as revealed in her earlier comment. While I have, necessarily, provided only an outline summary of the judgment under consideration enough has been said to demonstrate that there was no analysis of the competing medical evidence undertaken by her Honour. Furthermore, while she said on at least two occasions that she hesitated to accept the appellant, and expressed scepticism about his complaints, she made no clear finding rejecting his evidence. Although one can, I think, readily discern that rejection from the closing passages in the judgment the absence of any analysis of the conflict of medical evidence makes even more difficult an understanding of what led her Honour to her ultimate conclusion. The critical passage in the judgment reads as follows: "On the whole of the evidence I think it probable that although he did not realise it at the time, some feature of the applicant's physical activity at the respondent's premises about 24 July 1990 provoked symptoms which were caused by the long pre-existing URJ MASHIATI v AUSTRALIAN POULTRY LTD (Clarke JA) 5 condition of the applicant's spine. The applicant's demeanour and gait on different occasions in the courtroom and inconsistency recorded by medical practitioners, strongly suggest the existence of a condition which has, from time to time, caused symptoms or disability or incapacity. If I were wrong in those conclusions, the extent to which the applicant's cardiac condition interferes with his capacity to perform work probably performed on 24 July 1990, is peculiarly within his own knowledge. He also has a capacity to perform gainful non-physical work. Noting Dr Renton's opinion at the beginning of May last year, I am not persuaded that the applicant was, at relevant times, incapacitated by injury sustained in the course of employment." In the first sentence her Honour appears clearly to be accepting the proposition that there was an incident or event at work on 24 July which produced painful back symptoms. I would also understand her Honour to have been saying that there was in fact an aggravation of a pre-existing condition of the appellant's spine at that time. However, I find it difficult to discern in that passage any resolution of what, on one view, was the critical question - that is, whether the appellant suffered from symptoms before the incident. Her reference to the provoking of symptoms suggests an acceptance of the appellant but that view seems to be denied by what follows - "caused by the long pre existing condition". The combination of "provoked" and "caused" is, quite confusing. The meaning of the next sentence is also obscure. It is probably related to the question whether that aggravation was of a permanent or continuing nature, as the appellant's evidence suggested, or had been temporary, which was the view of Dr Terenty. If so it is far from clear to me that her Honour resolved that issue. It may be that her Honour was expressing the conclusion that the matters to which she referred established the validity of Dr Terenty's thesis. There are, however, a number of difficulties in reaching that conclusion. The first is that the words used by her Honour do not convey that message. Although it is necessary to read the passage in context her Honour's statement applies equally to the periods after the incident as to the pre and post accident periods. Secondly, and more importantly, I simply do not understand what the applicant's demeanour and gait in the courtroom, or his suggested florid demonstration to Dr Renton, have to do with the question whether he suffered back symptoms prior to July 1990. The demeanour of a witness is undoubtedly an important factor in determining the credibility of a witness and once a trial judge makes a credibility based finding this Court is bound to uphold that finding except in the limited circumstances referred to in Devries v Australian National Railways Commission, (1993) 177 CLR 472. Demeanour and gait may also be relevant factors for consideration by a trial judge in deciding whether an applicant or plaintiff is exaggerating his or her problems, although a degree of caution is necessary in deciding to place reliance on a view of a person's behaviour in court, particularly where the applicant's first language is not English and he or she is of a different culture. To the extent that her Honour thought that the appellant's demeanour reflected on his credibility or on the question whether he was exaggerating his conditions this Court is bound by her findings. While, therefore, demeanour may be relevant in determining whether to accept a person's evidence that he was not suffering from certain symptoms prior to a given time it is not a basis for directly deciding that the appellant was in fact suffering from particular problems many years previously. To put it another way, it is not possible to 6 UNREPORTED JUDGMENTS decide simply from the appellant's demeanour that he must have had back problems for many years prior to the date of the incident, which occurred two years before the trial. Similarly the presentation of florid behaviour to an examining medical practitioner may provide a basis for believing that a person is exaggerating or is not someone to be believed on his or her oath. But it does not, in my opinion, provide any basis for determining that the condition preceded an incident which occurred well before the time of making the florid presentation. The trial judge's reasons must be read in the context of the judgment as a whole and, no doubt, a certain degree of latitude should be allowed in the expression of those reasons. The problem in this case is that the meaning of the passage under examination is completely unclear, whether regarded in isolation or as part of the judgment. Counsel for the respondent argued that her Honour was there accepting Dr Terenty's thesis and concluding that while there had been an aggravation it was of a temporary nature. It was, I readily appreciate, open to her Honour to accept Dr Terenty's views and her Honour could have said that that was what she did. However, she did not expressly take that course. On the contrary she tied her apparent conclusion, which is itself unclear to me, to the appellant's behaviour which, in my opinion, provided no support for the view that the appellant had been suffering from symptoms in his back prior to September 1990. Ihave, since judgment was reserved, read and re-read the passage a number of times but I still do not understand on what basis her Honour concluded that the appellant had not discharged the onus of showing that at the relevant times he was incapacitated by injury sustained in the course of employment. There is no clear finding rejecting the appellant or his wife as credible witnesses. There is, importantly, no analysis of the competing medical evidence and, consequently, no reasons given for preferring the evidence adduced by one side to that led by the other. No doubt in some cases the acceptance or rejection of a history given by the injured person may lead to a resolution of the medical issue but her Honour seems to have accepted that the appellant suffered an injury at work on 24 July 1990 and nowhere said that her basis for preferring, if she in fact did prefer, Dr Terenty's evidence was that she could not accept the history of an asymptomatic back prior to that time. Even if, as her references to hesitation seem to indicate, she intended to follow that course she has certainly not expressed that course of reasoning in her judgment. On the contrary she has pinned her final conclusion in some inexplicable way to the appellant's behaviour before medical practitioners and in court. This case was an important one from the appellant's point of view and he was entitled to a judgment based on findings and reasons which enable "a proper understanding of the basis upon which the verdict entered has been reached". (See Pettit v Dunkley [1971] 1 NSWLR 376, at 382; NRMA Insurance Ltd v Taff and Anor (NSW Court of Appeal, 10 February 1989, unreported). Although a judge is not expected to deal with every argument put by counsel in the course of a trial, nor with every aspect of the evidence, he or she is obliged to conform with the test I have just mentioned - at least where there is an available appeal on fact and law. In my opinion her Honour's judgment fails to meet the relevant test and cannot stand. I should add that counsel sought to place some reliance upon the fact that the judgment was ex tempore and that judges in the Compensation Court have such a heavy workload that they are obliged to give many judgments at the end of a case rather than to reserve their decisions. This can readily be accepted URJ MASHIATI v AUSTRALIAN POULTRY LTD (Sheller JA) 7 as an explanation for an informality of expression but, whether a judgment be reserved or is delivered ex tempore, it must satisfy the test to which I have referred. The appeal should be allowed. The award of Judge O'Toole dated 17 September 1992 set aside and the proceedings remitted to the Compensation Court for a new trial. The costs of the first trial to be at the discretion of the judge hearing the retrial. The respondent is to pay the appellant's costs of the appeal. Meagher JA I agree with Clarke JA. Sheller JA I agree with Clarke JA. The appeal is allowed. The award of Judge O'Toole dated 17 September 1992 set aside and the proceedings remitted to the Compensation Court for a new trial. The costs of the first trial to be at the discretion of the judge hearing the retrial. The respondent is to pay the appellant's costs of the appeal. Counsel for the appellant: DW ELLIOTT Solicitors for the appellant: Malouf, Solicitors Counsel for the respondent: P PICKARD Solicitors for the respondent: GADENS