JRA LTD (FORMERLY KNOWN AS_ LEYLAND MOTOR CORPORATION OF AUSTRALIA LTD) v KASLIK SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY P, MEAGHER and POWELL JJA 22 April 1996, 22 April 1996 [1996] NSWCA 283 Worker's back injury — Common law trial — Subsequent proceedings in Compensation Court Mahoney P This is an appeal from the Compensation Court, from a decision given by Armitage CCJ on 10 March 1995. The circumstances are set forth in the judge's judgment and the arguments are dealt with in detail in the written submissions that have been prepared by Mr Coombs QC for the appellant company and by Mr Joseph SC for the respondent. I shall not rehearse in detail the facts as detailed in the judge's judgment and elsewhere. The arguments are set forth in significant detail in the written submissions of counsel for which the court is grateful. I shall state the basic facts only in so far as it is necessary to indicate the background against which the court's decision must be understood. The applicant worker, the respondent in the present proceedings, was employed by the appellant company for a number of years. He alleged that he had suffered an injury to his back on 29 January 1980. Upon the basis of that allegation, he brought proceedings against the company under the Common Law. His claim was tried in the Supreme Court before Campbell J and a jury. In March 1987 the jury gave a verdict for the defendant. The applicant worker subsequently pursued proceedings in the Compensation Court against the company claiming worker's compensation. Worker's compensation payments by way of periodical payments had been made for a substantial number of years up to the end of the Common Law trial. Then, for reasons which no doubt were understandable to the persons then concerned, the payments were stopped. No doubt the applicant's claim for compensation was prompted by the cessation of periodical payments. But, however that be, the claim for compensation which the applicant worker has made came before Armitage CCJ for decision on 10 March 1995. The proceedings before the Compensation Court had taken what to those not familiar with proceedings in that jurisdiction might regard as a somewhat unusual course. It would appear - and I put the matter broadly -that the applicant had made a claim in respect of two suggested injuries, one alleged to have occurred on 22 August 1979 and the other on 29 January 1980. When the matter came before the Compensation Court, the only substantial witness who gave evidence personally before the judge was the applicant. The other evidence placed before the judge was placed before him in written form. The manner in which the proceedings were conducted and the evidence placed before the judge are detailed in the judge's judgment: see 140 and the subsequent pages of the appeal papers relating to the compensation proceedings. I shall not lengthen this judgment by detailing them. But it is significant that the only witness who was before the judge, the substantial witness in the proceeding, was the applicant worker. 2 UNREPORTED JUDGMENTS His Honour having considered all of the evidence held that he was not satisfied that the worker had suffered an injury as he alleged on 22 August 1979. However, he was satisfied that the injury alleged on 29 January 1980 had occurred and upon that basis his Honour made the award against which the present appeal has been brought. No appeal or cross-appeal has been brought in relation to the 1979 injury and no claim is now made by the applicant worker in relation to that. The appeal relates solely to the judge's judgment in relation to the 29 January 1980 injury. The trial judge had in effect to decide two questions: firstly, whether any injury occurred on that day as alleged and, secondly, if it did whether that injury resulted in an incapacity for which compensation by way of periodical payments or otherwise was claimable by the applicant. It was to the first of these mainly, though I think not exclusively, that attention was directed before the judge and certainly before this Court on appeal. Mr Coombs QC has detailed his submissions in several pages of written submissions and I shall not repeat the submissions that have been made. The main submission that has been made is, I think, to the effect that the evidence as to whether an injury occurred on 29 January 1980 is essentially the evidence of the applicant or is dependent upon the acceptance of the evidence of the applicant; that that evidence should not be accepted because the applicant's credit had been thoroughly destroyed; and that his Honour in determining whether he should accept the applicant's evidence of what occurred on 29 January 1980 and thereafter fell into error in relation to matters which bring into question the judge's ultimate decision to accept that there was an accident on 29 January 1980 and that that accident gave rise to the incapacity to which I have referred. I do not in so stating the matter purport to cover the full detail of the submissions made by Mr Coombs. Those submissions are available in the transcript and in the written submissions. But what I have said indicates the general thrust of the matter as it has been presented to this Court. It may be accepted that in relation to his account of what occurred on the alleged injury of 22 August 1979 the applicant's credit was brought seriously into doubt. The trial judge did not accept it. He was not satisfied that an injury did occur in 1979 as the applicant alleged. His Honour gave reasons for that which are adequate for the purpose and it is not necessary for me to recount them. In the written submissions Mr Coombs has detailed reasons why, amongst others, the judge could - no doubt did - come to the conclusion that he was not satisfied that the 1979 injury occurred as the applicant alleged. There was, to say the least, very considerable confusion as to what had happened in relation to events said to have occurred in 1977, 1978 and 1979. At the least it may be said that the applicant had mixed together events which had occurred in at least those three years and that the account which he had given, no doubt brought together in a form which would assist his claim, was not consistent with a number of matters to which Mr Coombs has referred and to which the judge has referred in his judgment. It is clear, I think, that some of the matters alleged, and apparently vigorously alleged, by the applicant cannot be accepted as having been accurately recounted by him. Mr Coombs' submissions were, or at least inferred, that because of the nature of the discrepancies involved - I use the term "discrepancies" to describe the errors alleged - as set forth in his written submissions and in the oral submissions this morning, the applicant must have consciously misstated the events which occurred in 1977, 1978 and in particular in 1979. I am not sure that that was the URA LTD (FORMERLY KNOWN AS LEYLAND MOTOR CORPORATION OF AUSTRALI& LTD) v KASLIK (Mahoney P) finding of the trial judge. But the trial judge certainly did not accept the applicant as a witness of credit in the sense of accurately recounting what had happened. I do not think that any question now arises as to the accuracy or acceptability of that finding. However, the question arises as to the effect that that finding is to have upon the evidence which was available as to whether the injury alleged to have occurred on 29 January 1980 in fact occurred. It was the applicant's contention that on that day he was lifting a sheet of aluminium for the purpose of it being formed by a machine with which he was working and he suffered a serious injury to his back. The first question to be determined is whether anything of that nature took place. There was, in my opinion, significant evidence to support the conclusion that in fact something of that nature did occur on that day. There is before the court a copy of a document described as "a report of time lost" given to National Employers Mutual General Insurance Association Ltd, presumably the insurer of the appellant company. That is a report signed by the applicant and bearing date 1 February 1980. It was, I infer, tendered in the Common Law proceedings. In that report there is set forth what it is accepted the applicant said to a lady who was able to translate the applicant's language into English on or about that day. The account that was given by the applicant in that regard was: "T was working on machine cutting aluminium sheets. As I lifted one sheet I felt very bad back pain on my back which made me perspire. Then I have been taken to Bankstown Hospital." The particulars of injury were stated as "fractured L4-5". Various statements were made in the report which it may be accepted for present purposes were not accurate. But that is the account which was given by the applicant at the time. There was evidence from a Mr Miloshevic, one of the persons employed by the company at the relevant time, dealing with what in fact happened on that occasion. The trial judge read to the jury on the occasion of the Common Law trial the contents of the statement which had been made by that person at that time. It appears that on the day in question, namely, 29 January 1980, the applicant had told Mr Miloshevic that his back was sore. He said that "he had been lifting a sheet of aluminium up onto the marking table when he hurt his back". The witness then indicated that the applicant had said to him that he wished to go to the first aid station at the company's premises and Mr Miloshevic took him there, apparently for treatment or assistance. The paymaster or first aid attendant at the time was, he said, a Mr Ted Carden. Subsequently on 6 February 1980 Mr Miloshevic said, and he refers to this in his statement, that he signed a document as witness subject to certain qualifications to which he then referred, relating to the allegation that the accident had happened, as now contended, on 29 January 1980. Evidence was given by Mr Carden at the trial. That evidence, I infer, generally provides a support for the conclusion that on the day in question or thereabouts the applicant had come to Mr Carden to complain of an injury which I think may be inferred to be, at least could be inferred to be, an injury of the kind here in question. There is also evidence that the applicant at or about this time went to the Bankstown Hospital as was suggested in his evidence. There is a medical certificate providing for a day off work for him at that time. In addition, the evidence indicates that at or about this time the applicant went to a doctor, Dr Jacovic, and the evidence as to what was said to that doctor provides at least 4 UNREPORTED JUDGMENTS some support for the conclusion that an accident of the kind which he now alleges took place on or about 29 January 1980. There is also evidence, for whatever worth it is in the present circumstances, that following that time the applicant underwent a long series of medical and surgical procedures involving various doctors (including a Dr Bannister) in relation to the condition of his back. It is proper to record that the evidence which is before the court as to prior medical complaints by him, complaints prior to 29 January 1980, indicates that the applicant was suffering from a back condition involving spondylitis and it is no doubt to be inferred that some at least of his condition was related to that back condition. But the substance of his complaint is or is to the effect that the back condition was accentuated or accelerated and pain produced as the result of the injury of 29 January 1980. I have referred to a number of matters which, in my opinion, could provide support for the conclusion at which the judge in the Compensation Court arrived, namely, that on 29 January 1980 an accident occurred generally of the kind alleged by the claimant in the proceedings before that judge. There is no evidence to the contrary. Mr Coombs properly makes the point that no evidence to the contrary could be expected because, as he suggests, the whole of the evidence depends upon the acceptance of the credibility of the applicant in detailing what took place. However, giving full effect to the detrimental effect upon the applicant's credit of the evidence in relation to the previous claimed injury of 1979 and otherwise, I am of the view that it was open to the judge to arrive at the conclusion that he did. That, of course, is not the end of the matter because, as on a rehearing, this Court must determine what conclusion it arrives at in relation to the question of whether the accident occurred as alleged. The Court is faced with the situation that the judge, Armitage CCJ, had the advantage of seeing the applicant give evidence before him and his findings must have been influenced by what was there seen. The judge gave an assessment of the applicant in the course of his judgment. Mr Coombs has submitted that that assessment involved a limited acceptance only of what the applicant had said and that it is to be inferred that otherwise he would not have accepted him. At least the argument suggested, I think, that the judge did not base himself upon what he saw of the applicant giving evidence before him. I do not think that that accurately states the position. As far as the general principles relating to the advantage of the trial judge are concerned, the parties have been conscious of the effect of decisions such as Devries v Australian National Railways Commission (1993) 177 CLR 472 and the other cases referred to in that decision. It is not necessary for me to recapitulate them. I think that the court can and should act upon the basis that the judge's acceptance of the conclusion that the accident happened on 29 January 1980 was at least partly influenced by what he saw of the plaintiff as a witness before him. The question then is whether there is in the rest of the evidence a sufficient reason why, upon the accepted principles, this Court can and should go behind the judge's conclusion in this regard. Thave referred to the substance of the matter as put by Mr Coombs. Giving full effect to what the judge no doubt found in relation to the credit of the applicant generally, I do not think that there is material such as would force this Court to come to the conclusion that the judge's advantage should be put aside. Taking the matter as a whole, I do not think that this Court should come to such a conclusion. URA& LTD (FORMERLY KNOWN AS LEYLAND MOTOR CORPORATION OF AUSTRALIA LTD) v KASLIK (Powell JA) I think that the Court should act upon the basis that the judge's finding, based upon his assessment of the applicant before him, is one to which the Devries principles applied. However, even if this be not so, if this Court is to assess the evidence itself, Iam of the view that on a balance of probabilities it would be proper to conclude that there was an accident of the kind alleged on 29 January 1980. As Ihave said, there are a number of matters which provide objective evidence to support the occurrence of the accident on that day. I am conscious of the submission by Mr Coombs that those matters in the end depend upon the word of the applicant in the sense that it is his word which introduces the material in the accident report, what was said to Mr Miloshevic, what was said to Mr Carden and what was said to the medical attendants, at Bankstown Hospital and his own private doctor, Dr Jacovic. But - and I put the matter in general terms - if those matters are to be put aside, the conclusion must be essentially that the claimant had set out to manufacture a case on that particular day and that he manufactured the evidence to which I have referred and the other material in question. Iam not satisfied that that occurred. I do not think that is the proper conclusion to be drawn from the material. Therefore, putting aside the judge's advantage and considering this matter merely upon the evidence before this Court, I would come to the conclusion that probably the accident happened as alleged. That leaves the question whether because of the accident incapacity was caused at the time here in question. The judge had before him medical evidence, some of which was conflicting in relation to this. It is sufficient, in my opinion, merely to say that I do not differ from the judge's conclusion that incapacity resulted from the accident which he found to exist. Reference has been made in the evidence to the medical evidence in this regard. Mr Joseph has in his written submissions detailed evidence which would support the conclusion of the judge. I accept those submissions. I am not satisfied that the judge's conclusion was wrong. In these circumstances, I am of opinion that the appeal does not succeed. I have detailed a number of the matters, though of course not all of them, upon the basis of which an attack has been made by the company upon the applicant's credit and his case generally. It is proper that the substance of the matters set forth in the written and oral submissions should be taken into account in this regard. Having assessed the material as a whole, I do not think that the judge was wrong in the conclusions at which he arrived. I would propose that the appeal be dismissed with costs. Meagher JA I agree. Powell JA I also agree. MAHONEY P: The order of the Court is, therefore, that the appeal is dismissed with costs. Counsel for the Plaintiff: JS Coombs QC/D Davies Solicitors for the Plaintiff: NW Aussel Counsel for the Respondent: MJ Joseph SC/GB Curran Solicitors for the Respondent: Firths