SALAS v BAYTON CLEANING CO PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE and MEAGHER JJA and ROLFE AJA 15 August 1995, 15 August 1995 [1995] NSWCA 411 WORKERS COMPENSATION ACT 1987 — CHALLENGE TO TRIAL JUDGE'S ADVERSE FINDING ON CREDIBILITY Clarke JA This is an appeal by a worker from an award made on 25 August 1993 by Judge Moroney in the worker's favour. In that award his Honour ordered that the worker be paid compensation between 16 September 1991 and 31 January 1992 on the basis of total incapacity and that thereafter he be paid compensation at the rate of $67.82 until 30 June 1992 on the basis of partial incapacity. In the Notice of Appeal the appellant worker sought an order that he be paid compensation on the basis of total incapacity from 16 September 1991 to date and continuing. In argument before this Court, Mr McManamey of counsel, who appeared for the appellant, did not seek to support that award. Rather, he submitted that his Honour erred in not making an award on the basis of partial incapacity from | February 1992 and continuing. The essential challenge to the award is that his Honour made errors, which were apparent in his reasoning process, leading him to form an adverse view on credit. The second step in the argument was that the formation of this adverse view permeated into the Judge's consideration of the evidence of the doctors, which on any view was contradictory, and led his Honour to reject the evidence of Dr Christine Harris in favour of the view of Dr Scarf, who examined the appellant on behalf of the respondent. It will be apparent from what I have just said that the foundation for the argument was an attack upon his Honour's adverse view on credibility. I will come in a moment to the way that attack was developed, but before I do so I wish to make two points. First, this was a reserved judgment in which his Honour went to a great deal of trouble to expose in a fairly full fashion the evidence in the case and the reasoning process which led him to his conclusion. In the second place, his Honour reserved the judgment because he was concermed to give full consideration to the whole evidence given by the appellant over a number of days, which consideration involved a deal of reflection upon the written words appearing in the transcript before concluding whether or not to accept the appellant as a reliable witness. In the event, his Honour said that despite the language difficulty, which was largely responsible for the difficulties he encountered, he formed the same view of the appellant's attitude as Dr Scarf had; that is, that he was guilty of making obviously inconsistent statements and providing inconsistent demonstrations and was demonstrative, by which I take his Honour to mean overly demonstrative. 2 UNREPORTED JUDGMENTS He was also concerned about the reliability of the appellant's evidence concerning his working and earning activities but, because of the way in which the case was conducted before him, he formed no adverse opinion on that ground. It has been said many times that this Court can interfere with a Judge's finding on credibility only in exceptional circumstances. Usually those are the kind of circumstances in which the findings of fact are glaringly improbable or are inconsistent with objectively established evidence. Neither of those conditions has been met in this case and for that reason counsel has aimed in another direction. He has said that there are demonstrable errors in the reasoning process which have led his Honour to an incorrect conclusion. Those errors focus on two statements made by his Honour in the judgment and other observations by his Honour during the course of the taking of evidence. In the judgment his Honour noted that the appellant changed from his treating general practitioner to a new one and from his treating orthopaedic surgeon to Dr Bannister. I think it fair to say that when his Honour used the expression "a more comfortable opinion was obtained from Dr Bannister" he was speaking in a sense critical of the appellant. This aspect of the case and the appellant's submissions were bolstered, so it was said, by what appeared later in the judgment. There his Honour referred to the fact that Dr Bentivoglio did not review the appellant six weeks after he said he would in August 1991 and he did not carry out the review because the appellant took himself off to Dr Bannister. Clearly, so the submission runs, the Judge formed a very adverse view of the appellant because of the way he had sought a more amenable medical practitioner. Counsel said that his Honour was completely wrong. On that point he has, I think, demonstrated that Dr Bentivoglio did in fact see the appellant in September 1991, when he gave the appellant a certificate stating that he was totally unfit for work for a period of six weeks. Counsel was also able to point to evidence given by the appellant that the reason for his change of doctors was that his treating general practitioner, Dr Tringali, would not come to his home to see him and he was forced to seek out another doctor, Dr Gill. One consequence of changing his general practitioner was that Dr Gill referred him to Dr Bannister. Iam quite prepared to accept that his Honour might have been more critical of the appellant on this score than perhaps was justified by the evidence. My difficulty with the appellant's argument, however, is that it does not seem to me that his Honour reached his adverse impression of the appellant either solely on that ground, or even partly on that ground. In saying that, I accept it may be that his Honour's adverse feeling played some minor part in his assessment, but there is nothing in the judgment, apart from the passages to which I have referred, which provide any support for the conclusion that his view on that aspect played a major part in his finding on credibility. On the contrary, what his Honour said in his conclusions indicates that he was basing his adverse impression upon the appellant's presentation in the witness box and his presentation of inconsistencies to various doctors. I would add that one aspect which did not feature in the argument before this Court was that the appellant, who had complained of a back problem, was not anxious, as his Honour pointed out, to disclose that following the injury which led to the present claim he was involved in a motor vehicle accident and injured URJ SALAS v BAYTON CLEANING CO PTY LTD (Rolfe AJA) 3 his back further. Clearly enough, his Honour thought that that matter was of some significance and was at least as important as the aspect to which our attention has been drawn. I have listened to the argument as carefully as I can and attended to various sections of the transcript to which our attention was directed. For my part, on a re-reading of his Honour's judgment, and in particular those parts to which I have referred, I can see no error at all. It was, as I have pointed out, a careful judgment, in which his Honour comprehensively dealt with competing cases and in which his Honour's conclusion was based primarily upon both the adverse view of the appellant and the acceptance of the evidence of Dr Scarf, which, it has been conceded, his Honour was entitled to accept and which was fatal, or largely fatal, to the appellant's case. I repeat, I can see no error in the judgment under appeal and I would be disposed to dismiss the appeal with costs. Meagher JA I agree. Rolfe AJA I agree with the orders proposed by Clarke JA and with his Honour's reasons. I would only wish to say for myself that I agree particularly with his Honour's comments about the careful consideration the learned trial Judge gave to the determination of the factual issues presented for his decision. Clarke JA: The order of the Court will be that the appeal is dismissed with costs. COUNSEL: Appellant: BG MCMANAMEY Respondent: GJ BEAUCHAMP AND TJ REIMAN SOLICITORS: Appellant: R COLEMAN SOLOMON Respondent: EDWARDS JOHNSTONE SULLIVAN