FYNA CONSTRUCTIONS (NSW) PTY LTD v SESAR SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE, MEAGHER and SHELLER JJA 3 May 1995 [1995] NSWCA 160 WORKERS COMPENSATION — error of law Sheller JA. Fyna Constructions (NSW) Pty Limited appeals from a decision of Judge Herkes in the Compensation Court on 13 December 1991 in which his Honour made an award in favour of the applicant worker, Ivan Sesar. The award was for payment of weekly compensation on the basis of total incapacity from 16 September 1988 and continuing. The respondent worker was injured on 7 May 1987. While placing form work timber over a trench he was struck on the head by a back hoe. The worker was voluntarily paid compensation until 15 September 1988. His Honour made a formal finding that the respondent's injury to the head, the neck, left leg, left hip, right arm and right side of his body together with a subsequent psychiatric state was an employment injury which totally incapacitated him from 16 September 1988 to the date of the judgment. In order to understand the award something must be said about the respondent'sIn order to understand the award something must be said about the respondent's condition and the claim he made. In addition to pain in the neck, severe headaches and various orthopaedic injuries the respondent claimed there was an aggravation, exacerbation or acceleration of a meningioma which was present at the time of the injury but caused no symptoms at that time and was unknown to the worker. The existence of the tumour was revealed by a CAT scan on 28 May 1987. It was removed by Dr Bleasel on 19 June 1987. Based on medical evidence, his Honour was not satisfied that there had been any aggravation, exacerbation or acceleration of the tumour by the blow on the head. He had no difficulty in finding partial incapacity to a fairly high degree based on the orthopaedic injuries and there is no challenge to that finding. That leaves for consideration the psychiatric condition. There seems to be no doubt that the applicant was totally incapacitated. The question was whether this resulted from the tumour and the operation to remove it and was hence not compensable or from the blow to the head received in May 1987 and hence compensable. The two psychiatrists who gave evidence were divided in opinion. Dr Lucire who was called on behalf of the employer was of the view that the meningioma was responsible for the psychiatric condition. Dr Chuchkovich, who was called by the worker, took an opposing view. He was of opinion that the physical injury to the head, the headaches and subsequent problems had brought about the psychiatric condition or had contributed markedly thereto. The learned judge said that in his view, to a large extent, the worker himselfhad solved the problem so far as the court was concerned, if his evidence that he was having nightmares about being pursued by a bob cat or a back hoe could be taken in conjunction with the medical evidence. His Honour said: 2 UNREPORTED JUDGMENTS If the applicant, as the transcript would suggest was having problems of that nature prior to his operation, it would be difficult in my view to say that all the problems of a psychiatric nature, were related to the removal of the meningioma, or to the fact that of meningioma present, of which the applicant had no knowledge whatsoever, and indeed on the evidence before me had not caused any problems prior to the accident, and its subsequent removal .... His Honour referred to evidence of a clinical psychologist, Mr Rawlings, and said that in the circumstances he preferred the evidence of Dr Chuchkovich to that of the psychologist. His Honour said that both psychiatrists were of the view that the worker was totally incapacitated. His Honour was of the view that the worker was totally incapacitated as a result of the accident and made his award accordingly. The employer appeals from that award to the extent that it is based upon a finding that the injury brought about the psychiatric condition complained of and therefore led to total incapacity. The appellant contends that his Honour failed to give sufficient reasons for his conclusion or, put another way, failed properly to address the principal issue. The appellant accepts that its appeal is limited to an error of law. The error of law is said to be the insufficiency of reasoning. It is submitted that in the passage which I have quoted and the judgment generally his Honour did not sufficiently explain why he preferred the evidence of Dr Chuchkovich that the blow to the head caused the psychiatric problems tothe evidence of Dr Lucire that it did not. As part of the submission it was said that his Honour gave insufficient reasons for accepting the worker as a witness of truth. His Honour was of the view that a decisive matter in the case was that the applicant was having nightmares or hallucinations before the operation performed by Dr Bleasel removing the tumour. He said that the fact that the worker was having those problems before the operation made it difficult to say that the psychiatric condition was related to the removal of the tumour or to the fact that the tumour was present. We were referred to the evidence of Dr Lucire which clearly related the hallucinations to brain damage. It was accepted in argument that the only cause of brain damage could be the operation to remove the tumour. Hence, it was open to say that the view expressed by Dr Lucire depended upon the hallucinatory condition commencing after the operation by Dr Bleasel. On the other hand, Dr Chuchkovich in his report referred, as part of the history, to the complaint about nightmares and concluded that 'the causality of [his] incapacitation', that is to say the psychiatric condition, was due in part to the head injury on 7 May 1987. In the course of his evidence in cross examination the respondent worker was asked about the nightmares: Q. How often were you having them after the operation on your head that Dr Bleasel did? Many times before and after. Before and after what? Before the operation and after it. POP ... 'It was open to his Honour to accept this evidence. If he accepted it, it was open to him to prefer the conclusions of Dr Chuchkovich to that of Dr Lucire. It seems to me, in reading that part of his judgment which I have quoted, that that is the way in which his Honour approached the matter. In my opinion he adequately and appropriately gave reasons for preferring one doctor to the other URJ FYNA CONSTRUCTIONS (NSW) PTY LTD v SESAR (Clarke JA) 3 and, on the basis of that preference, for reaching the conclusion that the injury in May was a cause of the psychiatric condition. Although, in the course of written submissions, other complaints were made about his Honour's reasoning process, the critical and principal matter was the finding based upon the psychiatric evidence. In my opinion this was a finding which was adequately explained by his Honour and was open to him. In my opinion the appellant has failed to show any error of law and accordingly the appeal should be dismissed with costs. Clarke JA. I agree. Meagher JA. I also agree. Clarke JA. The order of the Court will be the appeal is dismissed with costs. (Mr Barry made an application that the respondent's costs be on an indemnity basis as there was an offer of compromise.) CLARKE JA: The Court has been advised an offer described as an offer of compromise in which the respondent agreed to a settlement on the basis that the appeal be dismissed with each party to pay its own costs was made on 25 February 1993. It is highly questionable whether this is a genuine compromise or whether it is indeed asking the appellant to give everything away. In all the circumstances I am not disposed to make any special costs order and I order that the appellant pay the respondent's costs. Meagher JA. I agree. Sheller JA. I agree. Clarke JA. The order of the Court will be as set out. Orders accordingly. Counsel for the appellant: PR Callaghan SC/IW Raine Solicitors for the appellant: PW Turk and Associates Counsel for the respondent: CT Barry QC/DR Benson Solicitors for the respondent: Flannery Mura Costello