KOREL v COMMERCIAL INDUSTRIES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and SHELLER JJA 4 May 1995, 18 May 1995 [1995] NSWCA 248 WORKERS' COMPENSATION — APPEAL — POINT OF LAW- REASONS FOR DECISION — Soulemezis v Dudley (Holdings) Pty Ltd (1987) 1 NSWLR 247 and James N Kirby Pty Ltd v Kalinic (Court of Appeal, 1 July 1994, unreported) APPLIED. WORKERS' COMPENSATION — ERROR OF FACT — NON-APPEALABLE FACTS The worker lost his case for compensation and submitted that the trial judge, Gibson J, did not give adequate reasons or, alternatively, that his Honour made factual errors. Held (per Clarke JA; Meagher and Sheller JJA concurring) The trial judge gave adequate reasons as his Honour had explained what he was doing - rejecting the application - and why he was doing that - because he did not accept the worker's account of the incident. Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247 and James N Kirby Pty Ltd v Kalinic (Court of Appeal, 1 July 1994, unreported) applied. The Workers Compensation Act 1987 lays down a regime in which this Court has no jurisdiction to correct factual errors made by a trial judge. Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 applied. Clarke JA This is an appeal by a worker who lost his compensation case. He contends that the trial judge, Gibson J, did not give adequate reasons, or alternatively that his Honour made factual errors. Insofar as the appeal is limited to questions of law he has sought to argue that on the facts only one result could have followed. The appellant commenced working for the respondent in May 1989. He had previously sustained a back injury in January 1987 while working for another employer. This was a serious condition and led to surgery on 14 December 1987. He was off work for nearly twelve months after that operation and had been back in the workforce for about six months when he commenced working with the respondent. On 16 June 1989 he was working in a supervisory capacity for the respondent on a project known as Skygardens in Castlereagh Street, Sydney. On that morning he received a radio message from his superior, Mr Lorentz, asking him to move some heavy electrical cable. He was not particularly happy about being requested to perform this task and he suggested that Peter Karakatsianis (known throughout the case as Peter Kara) either help him or do the job instead of him. Lorentz denied his request and told him to get on with the job. He asserts that while he was performing this task he sustained an injury to his back. He says that shortly after the injury he reported its occurrence to Kara who was unable to recollect any such report. Later that day Lorentz arrived at the premises and called the appellant up to his office. Kara was there. All three witnesses agree that Lorentz dismissed the appellant and that as he was leaving the appellant said that he would have to go and see a doctor. Both the appellant and Kara said that he had then said that he 2 UNREPORTED JUDGMENTS had hurt his back or was to see a doctor about his back. Lorentz did not hear any comment about the appellant's back but that was said to be explicable in the circumstances. Lorentz also gave evidence that in the following week the appellant returned to the site and asked for his job back saying that "if I gave him his job back he wouldn't go on compensation". Lorentz declined to re-employ him. In his judgment his Honour referred briefly to the facts and concluded with the following paragraph: "The forceful submissions of counsel for the respondent have persuaded me that the uncorroborated evidence of the applicant as to sustaining an injury to his low back on the morning of 16 June 1989 cannot be accepted in view of the evidence of the two witnesses called by the respondent." The appellant submits that this paragraph is an inadequate representation of his Honour's reasoning process. I do not agree. The case was a relatively simple one in which the appellant claimed that he had received a back injury in circumstances where he was unable to corroborate his assertion. The question which confronted his Honour was whether he should accept that uncorroborated claim. The respondent led evidence from Kara and Lorentz which was, in some respects at least, inconsistent with the evidence given by the appellant and the respondent asked his Honour to reject the appellant's account of his accident. It is clear to me that his Honour accepted these submissions and expressed his inability to accept the appellant's evidence with the consequence that his claim failed. His Honour explained both what he was doing - rejecting the application - and why he was doing that - because he did not accept the appellant's account of the incident. The subject of a judge's duty to give reasons has been discussed so frequently in recent years that it is necessary only to refer to two authorities. The first is Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247. The two judges who constituted the majority were Mahoney and McHugh JJA. Mahoney JA said (at 271): "\.. the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion." And (at 273): "\.. in my opinion, it will ordinarily be sufficient if... by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted." McHugh JA said (at 280): "... itis necessary that the essential ground or grounds upon which the decision rests should be articulated". And (at 281): "Tn a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that URJ KOREL v COMMERCIAL INDUSTRIES PTY LTD (Meagher JA) 3 justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff's credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough." More recently in James N Kirby Pty Ltd v Kalinic (Court of Appeal, 1 July 1994, unreported) Mahoney JA described the obligation to give reasons in terms of a test bv which the present case can be resolved. He said: "His legal obligation will be discharged if (special cases apart) the parties are told what he did and why he did it and can exercise their rights accordingly." Although I would not describe the present judgment as a model to be followed I am satisfied that his Honour satisfied the test of which Mahoney JA spoke. It is clear that he rejected the applicant's claim because, in the circumstances to which he adverted, he could not accept his uncorroborated assertion. The appellant's counsel sought to reinforce his arguments by pointing out that his Honour had got it wrong. There was no contradiction, he submitted, between the evidence of the appellant and that of Kara. While, therefore, there was conflict on the issue of what was said when the appellant returned to the work site on the week following his dismissal it was quite wrong to say that anything which Kara had said could possibly lead to the rejection of the appellant's evidence. The respondent's counsel submitted that this view of the facts was an oversimplification. In circumstances where Kara had a fairly clear recollection of what occurred on the day of the appellant's dismissal his failure to recollect the earlier report of injury constituted, in essence, a denial that it had ever been made. Whichever view is taken it does not seem to me to affect the present case. Upon the assumption that there was no inconsistency between the appellant's evidence and that of Kara it would follow that his Honour made a factual error. But where, as here, the Statute lays down a regime in which this Court has no jurisdiction to correct factual errors made by a trial judge that is a matter of no moment. The trial judge has explained his reasoning process and, even on the assumption that in that explanation he has demonstrated factual error, it cannot be said that he has failed to comply with his legal obligation to give reasons. Furthermore, the factual error itself (on the assumption it was made) provides no basis for this Court to interfere. Counsel for the appellant sought to overcome this problem by saying his Honour went so badly wrong in fact that his error should be characterised as an error of law. The submission is inconsistent with the principle laid down in Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139. There Glass JA said, inter alia, at 156: "Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation." This decision has been applied many times in this Court and represents the law in this State. If there was error in this case it was an error of fact and is not appealable. The appeal should be dismissed with costs. Meagher JA I agree with Clarke JA. 4 UNREPORTED JUDGMENTS Sheller JA I agree with Clarke JA. The appeal is dismissed with costs. 5 Counsel for the appellant: NL McCAFFERY Solicitors for the appellant: KEDDIES, Redfern Counsel for the respondent: P MORRIS 10 Solicitors for the respondent: MORAY AND AGNEW