BOURKE v PAN PACIFIC PTY LTD (IN LIQ); BOURKE v LINER SERVICES PTY LTD (IN LIQ); BOURKE vy CONAUST (NSW) PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY and SHELLER JJA and COHEN AJA 19 November 1996, 4 December 1996 [1996] NSWCA 58 NEGLIGENCE — workplace injury — assessment of damages — credibility of witness — trial Judge's findings of fact not disturbed — Devries v Australian National Railways Commission (1993) 177 CLR 472 The appellant suffered workplace injuries on four separate occasions during his employment as a tally clerk. He was employed at the relevant times by the three respondents. The appellant brought four different sets of proceedings claiming damages in negligence. The first two claims concerned injuries sustained by the appellant on 27 April 1982 and 24 January 1983, while he was employed by the first respondent. The appellant claimed against the second respondent for injuries suffered on 5 August 1985, and also against and third respondent in relation to injuries suffered on 4 July 1986. Sully J found that the 1982 injury was caused by the first respondent's negligence. His Honour found that the appellant had been incapacitated as a result of the injury, and that he should be compensated for loss of earning capacity and expenses up until his termination in October 1986. His Honour also concluded that the appellant's evidence should not be accepted on a matter of substance where it was not corroborated by independent evidence. His Honour give judgment in favour of the first respondent in relation to the second injury, because there was no evidence independent of the appellant himself to corroborate his allegations. In relation to the third and fourth claims, his Honour found negligence on the part of the second and third respondents, and awarded general damages in favour of the appellant. The appellant appealed against the trial Judge's findings and treatment of the evidence, and claimed that the awards of damages were inadequate. He also argued that there should have been a finding of negligence against the first respondent in relation to the second claim. HELD: 1. It was open to the trial Judge to find that the appellant probably suffered a muscular ligamentous injury in the 1982 incident, and that he was fit to work by October 1986, if not before. The award of damages based on this closed period was appropriate in the circumstances. 2. If a Judge finds himself or herself unable to rely on a party to tell the truth in relation to matters of substance, and there is no other acceptable evidence on the matter, the Judge may reject the party's evidence for that reason. The trial Judge rejected the second claim against the first respondent because there was no evidence independent of the appellant to corroborate his allegations, and he did not find the appellant to be a credible witness. This was a matter within his Honour's discretion, and his finding should not be disturbed: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. 3. There was no basis for challenging the conclusion that damages should have been awarded for the closed periods determined by the trial Judge. The amounts awarded in respect of the third and fourth claims were not outside the range of a sound exercise of discretion. ORDER Appeals dismissed with costs Priestley J I agree with Sheller JA. 2 UNREPORTED JUDGMENTS Sheller J INTRODUCTION The appellant, Colin George Bourke, appeals from decisions of Sully J given on 15 October and 30 November 1993. His Honour heard together four claims in different sets of proceedings against three defendants which, at the relevant times, employed the appellant as a tally clerk. Two of the claims were made by the appellant against the first respondent, Pan Pacific Pty Ltd, and concerned workplace injuries the appellant said he suffered on 27 April 1982 and 24 January 1983. The third claim was against the second respondent, Liner Services Pty Ltd, for workplace injuries suffered by the appellant on 5 August 1985. The fourth claim was against the third respondent, Conaust (NSW) Pty Ltd, for workplace injuries suffered by the appellant on 4 July 1986. After a detailed review of the evidence including his medical and employment history, Sully J formed the view that the appellant's credit was such that his evidence should not be accepted on any matter of substance which was not corroborated by credible independent evidence. Undoubtedly this conclusion was open. THE FIRST CLAIM AGAINST PAN PACIFIC The appellant alleged that on 27 April 1982 he was struck by a fork lift truck while in Pan Pacific's employ. The driver of the truck had alighted to assist two storemen. The truck then rolled back and hit the appellant on the right side, while he was stepping out of the way, and knocked him into a stack of pallets. Sully J accepted that the appellant had suffered an injury and that it was occasioned by a negligent failure on the part of Pan Pacific to ensure that the fork lifts, which were being used in loading and unloading containers of the kind on which the appellant was then working, were reasonably safe for the purpose. Sully J dismissed the defence of contributory negligence. His Honour said that the appellant's case on damages was simple. He alleged he had suffered a traumatic injury to his lumbar spine causing a disc protrusion at L5/S1, which had resulted in a constantly symptomatic back exacerbated by the supervening injuries alleged in January 1983, August 1985 and July 1986. He contended that he would have this symptomatic back condition for the rest of his life, that it had made him permanently unemployable after October 1986 and that it had catastrophic effects upon his personal and social life. The appellant's claim was for $657,000. Sully J found that the evidence did not support an overall award of that magnitude. His Honour said: "T have come to the conclusion that the evidence is in such a condition of confused and confusing possibilities, that the only safe finding on the probabilities is that the plaintiff should be compensated for wages lost and for out-of-pocket expenses incurred by reason of the condition of his back, up to the termination of his employment on 31 October 1986. It should be found on the probabilities that thereafter he was fit for his work as a tally clerk and remains fit for it." His Honour awarded $16,000 for general damages with interest on $11,000 of this for 11.25 years at 2 percent per annum computing at $2,530, $1,509.52 for out of pocket expenses and $3,300 for past economic loss with interest of $5,094. An amount of $1,298.20, representing payments of workers compensation, was offset against this sum to produce a verdict for the appellant on this claim of $27,135.32. His Honour ordered the first respondent to pay three-quarters of the appellant's taxed costs of the proceedings. SECOND CLAIM AGAINST PAN PACIFIC URQURKE v PAN PACIFIC PTY LTD (IN LIQ); BOURKE v LINER SERVICES PTY LTD (I LIQ); BOURKE v CONAUST (NSW) PTY LTD (Sheller J) The appellant claimed that on 24 January 1983, while employed by Pan Pacific, as he was walking along an alley way from the clerk's office in E shed, where he had gone to pick up a manifest, he tripped over some goods which were protruding into the alley way over yellow safety lines. He fell forward, put his hands out to protect himself and, as he saved himself from going down frontwards, went backwards onto another stack of pallets and hurt his back. Whereas the appellant's case was in some respects supported by other witnesses in the first claim, there were no independent witnesses of this incident. Having referred to what he regarded as curious features of the appellant's case, his Honour said that there was no evidence independent of the appellant himself which, if accepted, would corroborate his allegations in relation to this claim. "In those circumstances, and consistently with the approach earlier explained, I am not prepared to make a finding that the plaintiff has established on the probabilities that there was an incident as alleged, being an incident which can be sourced to actionable negligence on the part of Pan Pacific." His Honour gave judgment for the first respondent on this claim. CLAIM AGAINST LINER SERVICES The appellant alleged that on 5 August 1985, while he was employed by Liner Services, he was working up in the top shed going to unpack a container when a fork lift with pallets on it drove into his back and knocked him nine to twelve feet forward. The appellant called witnesses to support this claim and his Honour found that the totality of the evidence touching upon the overall system of work which was on foot at the relevant place and time sufficiently established that it would not have been far fetched or fanciful to understand that such a system was likely to result in workplace injuries of the kind which the appellant described. Again he dismissed a defence of contributory negligence and gave judgment for the appellant. His Honour said that the injury to his back was to be understood as having entailed the aggravation, for a closed period, of a pre-existing condition. He found that the appellant was incapacitated between 5 August and 2 September 1985, a period of four weeks. He assessed general damages at $2,000 and, after further argument about loss of wages and out of pocket expenses, gave judgment for $2,320. The addition represented interest. It was conceded that the appellant's normal salary for the period and out of pocket expenses were paid by way of workers compensation. He ordered each party to pay their own costs. CLAIM AGAINST CONAUST The appellant alleged that on 4 July 1986, while in the employ of Conaust, as he was moving out of the way of a vehicle he tripped on dunnage and injured his right ankle and right elbow. He claimed later to have developed pain in his back as a result of this episode. The appellant called a witness in support of his claim and his Honour found there was sufficient corroboration of the appellant's version to carry the day as to whether the incident occurred. He found negligence and dismissed the claim of contributory negligence. Sully J was not prepared to find that the appellant suffered any injury as a result of the incident of 4 July 1986 other than a twisting of the right ankle and a bruising injury to the right olecranon. He was satisfied on the probabilities that those injuries involved the appellant's absence from his employment for a period of eight weeks or thereabouts up to 2 September 1986. He awarded $2,000 for general damages adjusted after further argument by an amount of $140 for interest, which amounted to $2,140. APPELLANT'S GROUNDS OF APPEAL 4 UNREPORTED JUDGMENTS The solicitor then acting for the appellant filed four notices of appeal which were in substantially the same terms except that the second, directed to the dismissal of the second claim against Pan Pacific, asserted that his Honour had erred in making a finding that that respondent was not negligent. All the grounds of appeal were directed to his Honour's findings and treatment of the evidence. A claim that damages, in so far as awarded, were inadequate can be inferred from all the notices of appeal. On their face all appear to raise the difficulty that appellants encounter in seeking to have an appellate Court set aside the trial Judge's findings of fact: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. In the present case these difficulties were greater because of Sully J's detailed consideration of the evidence and findings about the appellant's credit. On the hearing of the appeal, the appellant appeared for himself. He filed no written submissions and, I think understandably, acknowledged that he was not capable of undertaking an analysis of the trial Judge's judgments and the evidence. The evidence, particularly the medical evidence, was complex. On a rough count there were thirty-nine medical reports from fifteen doctors in evidence. Sully J said: "These reports were, to speak bluntly, dumped upon the Court at trial in an uncollated and undigested mass from which the Court has been left to do the best it can to deduce rationally a reasonable overview of the plaintiff's medical and employment histories. So far as this mass of documentary material is concerned, I share the views of a number of the doctors whose opinions I have been summarising. That is to say, I, also, find it impossible to arrive at a confident overview of the plaintiff's medical and employment histories. There are so many conflicting opinions expressed in the medical reports that, without the benefit of cross-examination, any drawing of conclusions on the probabilities from that mass of material necessarily involves as much intuitive response as logical deduction. I presume to say that there must be, in my opinion, a more satisfactory way of getting at the truth of a plaintiff's medical and employment histories." The appellant made short oral submissions in which he emphasised one point which suggested an argument of some force in his favour. Sully J said that the only safe finding about the April 1982 injury, on the probabilities, was that the appellant should be compensated for wages lost and for out of pocket expenses incurred by reason of the condition of his back up to the termination of his employment on 31 October 1986. "It should be found on the probabilities that thereafter he was fit for his work as a tally clerk and remains fit for it." His Honour's reasons do not demonstrate why this date was chosen. He had found that in April 1982 the appellant suffered a low back injury, probably involving a muscular ligamentous injury. He did not think that the disc protrusion shown, in particular, by a CAT scan of the appellant's lumbar spine performed in 1989 could be related back to the April 1982 injury. Mr Bourke referred us to Conaust's answer of 22 November 1988 to a request for information about the date the appellant's employ ceased and the reason for this: "He was deregistered 31.10.86 'medically unfit'." On 22 October 1986 the New South Wales Superintendent of the Association of Employers of Waterside Labour wrote to Mr Bourke, referred to an earlier letter of 18 September 1986, which was not in evidence, and continued as follows: URQURKE v PAN PACIFIC PTY LTD (IN LIQ); BOURKE v LINER SERVICES PTY LTD (IIs LIQ); BOURKE v CONAUST (NSW) PTY LTD (Sheller J) "As previously discussed with you, by your submission of subsequent medical certificate issued by Dr JG Blyth on 19th September, the content of that letter was nullified. In view of the medical reports however, we did arrange for you to be medically examined at the Trade Union Medical Co-Operative Society on 23rd September. The report from the examining medical officer, Dr P Honeyman, was issued on 6th October. As the doctor seemed of the opinion that the duties of a disability clerk did not entail standing or moving around, we had to seek clarification of his opinion. That clarification was received in a letter of 16th October in which the doctor states 'if you say that the job involves 7 hours or more of standing, I also consider under that definition he would not be fit at present to do that sort of job.' The doctor also states in that letter that 'it would not be safe to employ him in this sort of job...'. In view of the doctor's report, we have no option but to terminate your employment on medical grounds. Accordingly, we hereby give you notice that your employment with AEWL will terminate as from Friday 31st October, 1986. We will arrange for payments in lieu of your outstanding leave credits to be available for you at the AEWL. Accounting Office, MSB No 4 Bond Store, Hickson Road, Sydney, on Thursday, 6th November 1986. We also shall advise the Secretary of the Waterfront Retirement Fund of your termination of employment on medical grounds. A cheque covering your benefit from that fund will be sent to you by the Fund Secretary as soon as practical." Dr Honeyman's report of 6 October was not in evidence nor was he called to give evidence. On or about 24 December 1986 the new South Wales Superintendent wrote to the Union on a without prejudice basis that: "1. Mr Bourke will be re-registered to the shipping clerks disability roster forthwith. 2. Mr Bourke's registration will be reviewed on receipt of the specialist report from Dr Selby-Brown. 3. The re-registration of Mr Bourke is on the clear and absolute understanding that Mr Bourke and the Federation will not pursue any claims for wages for the period since 31st October 1986 and Mr Bourke's re-registration." The appellant refused to give any such undertaking. Sully J referred to Dr Honeyman's report of 6 October 1986 which triggered the notice of termination from 31 October 1986. Mr Bourke pointed to the inconsistency between his Honour's finding that after 31 October 1986 the appellant was fit for his work as a tally clerk and remained fit for it, and the medical evidence that at that time he was not fit to do the duties of a disability clerk and in consequence his employment was terminated. His Honour's resolution of this apparent inconsistency was as follows: "The assessment of damages in relation to the plaintiff's first action against Pan Pacific is a matter of special difficulty. The case is not one where it can be found on the probabilities that the plaintiff has never worked at all since 27 April 1982, and that for reasons capable of being sheeted home by reliable medical evidence to the injury which I have found him to have suffered on that day. All to the contrary, the plaintiff was off work for a comparatively short time and then worked on and off until the date, (24 January 1983), of the alleged second incident. As soon thereafter as August 1983, the plaintiff was completing an application form for employment by Liner Services, obviously considering himself fit for his normal work as a tally clerk. In December 1983 after Pan Pacific went out of business, the plaintiff, although apparently enrolled on the 6 UNREPORTED JUDGMENTS disability roster at least for some time, appears to have been 'picked up' fairly regularly for various work assignments. In March of 1986, when the plaintiff returned to the 'Pick-up Centre', he was eventually enrolled, as it would seem, on the fit roster and was so enrolled when 'picked up' by Conaust. The termination of the plaintiff's employment on the waterfront on 31 October 1986, cannot simply be attributed, on the probabilities, to the injury which he suffered in April 1982, even if some allowance be made for the exacerbating injuries which I have found him to have suffered on 5 August 1985. All to the contrary, the termination in October 1986 of the plaintiff's waterfront employment was the culmination of a tangled skein of events which included, very significantly as it seems to me, a course of behaviour on the part of the plaintiff that was both aggressive and abrasive, both towards his employers and his Union colleagues. Superimposed upon all of that is the further consideration that the plaintiff's general physical condition left a great deal to be desired: there are several references throughout the various medical examinations of the plaintiff of his obesity and general lack of condition. In addition, the plaintiff's medical and employment histories show, quite apart from the four incidents in respect of which he now sues, constant alleged workplace injuries, involving especially his right ankle, and associated absences from work. I do not think that it can be merely coincidental that the plaintiff has attracted, time and time again, comment from examining doctors remarking upon his aggressiveness, non-co-operation and obvious lack of motivation. There is, finally, the impact of the following evidence given by the plaintiff during his cross-examination by learned counsel for Liner Services: 'Q. You at no time since you first suffered injury in respect of which these proceedings are brought considered yourself unfit for work as a tally clerk have you A. No. Q. In fact, as recently as last year you considered yourself fit for that work? A. Yes. Q. You still do? A. That's correct.' There followed, immediately, this passage of cross examination by learned counsel appearing for Conaust: 'Q. The reason you don't get offered that work is because of problems with your Union? A. Beg your pardon. Q. The reason you don't get offered that work is because you have problems with your Union? A. Problems with both parties, the Union and the employers, Sir" In short, Sully J did not accept that if unfitness was the reason for the appellant's termination, and this was doubtful, that that had anything to do with the injuries for which the appellant sought to recover damages. I shall return in a moment to deal specifically with the appeal against his Honour's assessment of damages in the first claim against Pan Pacific. APPEAL AGAINST DISMISSAL OF SECOND CLAIM AGAINST PAN PACIFIC His Honour rejected this claim because he did not accept the appellant's account of the incident. In particular his Honour was of the opinion that there was no evidence independent of the appellant to corroborate his allegations. He had already expressed his view about the appellant's credibility. If a Judge finds himself or herself unable to rely upon a party to tell the truth on matters of substance, and there is no other acceptable evidence on the matter, the Judge may reject the party's evidence for that reason. However, this should not be simply a URQURKE v PAN PACIFIC PTY LTD (IN LIQ); BOURKE v LINER SERVICES PTY LTD (IM LIQ); BOURKE v CONAUST (NSW) PTY LTD (Sheller J) mechanical exercise. Parts of an unreliable witness's evidence may be true. Whatever the Judge's overall view of the party's reliability, the party's evidence on particular matters must be weighed and considered. However Sully J did not approach the evidence in any limited mechanical way. Amongst other things his Honour noted that although the appellant was well acquainted with the existence of the accident report book maintained at his place of employment and familiar with the management requirement that any such injury as he alleged be reported promptly and formally, he never recorded the alleged occurrence in this book. He had no explanation for the absence of an appropriate notation. There was no other corroborating evidence. In my opinion the appeal against the rejection of this claim must fail. APPEAL AGAINST ADEQUACY OF DAMAGES AWARDED AGAINST LINER SERVICES His Honour's conclusion was based upon the contemporaneous notes made by the port doctor, Dr Blyth, who treated the appellant until June 1988, from which, his Honour said, it was possible to glean a number of valuable indications concerning the progress of the appellant's medical and employment situations. Those notes referred to the incident on 5 August 1985, recounted the nature of the injury, and, after four intervening notes, recorded on 29 August 1985 that the appellant was fit for work as from 2 September 1985. This conclusion was supported by a report of Dr Bloch of 12 August 1985 except that, on that date, Dr Bloch thought the appellant was fit for his tally clerk duties forthwith. He reported that no disability had resulted from the injury of 5 August. In my opinion there is no basis for challenging his Honour's conclusion that the effect of the injury did not extend beyond the closed period. The manner of assessment of special damages for this period was not in dispute. The amount of general damages awarded was not outside the range of a sound exercise of discretion. The appeal against the judgment in respect of this claim fails. APPEAL AGAINST ADEQUACY OF DAMAGES AWARDED AGAINST CONAUST For like reason this appeal fails. It was open to Sully J to find based on Dr Blyth's notes that the injury on 4 July 1986 involved a twisting of the right ankle and striking of the right elbow with some bruising and that the appellant was fit for work on 2 September 1986. For such a closed period of injury an award of general damages in an amount of $2,000 was not outside the range and the parties were agreed that workers compensation payments for the period equalled or exceeded any amount that could be claimed for wage loss and out of pocket expenses. APPEAL AGAINST ADEQUACY OF DAMAGES AWARDED AGAINST PAN PACIFIC ON THE FIRST CLAIM If Sully J was correct in concluding that the appellant's right to compensation ended on 31 October 1986, the damages he awarded for economic loss were said to accord with the evidence that no more than approximately eleven weeks of incapacity were certificated. If anything, it appears from the submissions about economic loss that his Honour's award may have been generous. This however leaves open the question whether his Honour erred in concluding that the effects of the injury ceased in terms of the appellant's fitness for work on 31 October 1986. Unassisted by full submissions from the appellant, it has been necessary to examine the evidence, particularly the medical evidence, in some detail. It should be noted that two CAT scans were performed on the appellant's lumbar spine, the 8 UNREPORTED JUDGMENTS first on 11 May 1983 and the second by Dr Roberts on 8 March 1989. The second revealed that at L5-S1 there was a little narrowing of the AP diameter of the bony canal and the L5-S1 disc bulged centrally into the canal where it indented the caudo equina. No other abnormality was seen. The medical evidence covered two periods, the period up to the end of 1986 and the period thereafter, which in terms of medical evidence starts in 1988. Most of the evidence consisted of written reports or notes. Four doctors gave oral evidence, namely Drs Thomas, Selby-Brown, Ganora and Smith. Sully J made no express reference to the oral evidence of Dr Ganora though he did to the oral evidence of the other three doctors. This appears to be an oversight. For reasons of fairness to which he referred his Honour gave no weight to a report of 18 March 1983 by Dr Vago, to whom the appellant was referred by an insurer, and I shall say no more about it. Sully J dealt with the medical reports chronologically, quoting the significant passages from them, and with the oral evidence of the three doctors, again quoting the significant passages from their evidence. Having done so, he said he was not prepared to accept that this evidence tended to corroborate the appellant's own evidence as to his developing medical situation following the April 1982 incident. The first thing to observe is that his Honour accepted Pan Pacific's submission that as a result of this injury the appellant was entitled to no more than $300 per week for a period of eleven weeks "representing the aggregate of a number of individual periods which are set out in self explanatory detail in the relevant portions of the defendant's written submission." That written submission is available to us and indicates that the eleven weeks were between late January 1983 and the end of May 1983. During that time the appellant consistently complained of pain in the back, cramps and paraesthesia in his legs down to the feet. Apart from a complaint on the day of the accident to the port doctor, there was no other contemporaneous record of complaint until 18 June 1982 when the appellant saw his family doctor, Dr Sekel, who found on examination an area of slight tenderness over the lower four thoracic vertebral spines and made no other significant findings. He prescribed some conventional medication and furnished a medical certificate for home rest of one week which notified a diagnosis of "strained back at work". The appellant was next examined on 21 January 1983 by Dr Sekel's partner, Dr Lowy, who could find no abnormality of the appellant's lumbar sacral spine. Commenting on Dr Lowry's examination Dr Sekel said: "He had an enlarged liver, which had been present for many years and had previously been related to his significant alcohol intake. Dr Lowy felt that the majority of his symptoms were due to his enlarged liver and advised him accordingly." Dr Lowy felt that some part of the back pain could be related to muscle strain from his playing squash for one hour a few days previously. Dr Sekel last saw the appellant on 16 February 1983 when he referred him for physiotherapy and advised him that he was fit for his normal duties as a tally clerk. He advised him to return to work. Thereafter the appellant saw Dr Elliott, an orthopaedic specialist, who opined on 28 February 1983 that he may have sustained a soft tissue injury to his back. The doctor did not believe that he had done any serious damage to his back and believed he was fit to do his job as a clerk. Dr Smith, who gave oral evidence, and whom Sully J found to be an impressive witness, in April 1983 thought there URQURKE v PAN PACIFIC PTY LTD (IN LIQ); BOURKE v LINER SERVICES PTY LTD (IN LIQ); BOURKE v CONAUST (NSW) PTY LTD (Sheller J) was a tenderness well localised to the fifth lumbar spinus process and was of opinion that the appellant was fit for work not involving lifting, bending, prolonged sitting or standing or bending particularly in awkward positions. He regarded the appellant as fit for work as a tally clerk. Dr Smith arranged for the appellant to have the first CAT scan. In May 1983 the appellant saw Dr Bornstein, who could find no objective physical signs in the patient and thought it reasonable "to allow him to have a manipulation, he should thereafter at least attempt to resume work, and I have told him this in no uncertain terms." Dr Bornstein said: "His disability depends entirely upon symptoms but there are no physical signs to back him up." On 7 November 1983 Dr Bornstein said that the appellant was "certainly" fit for his clerical duties. He thought that the appellant appeared to have a genuine complaint of back pain but noted "a certain measure of hyper reactivity on examination" and felt this indicated "a marked exaggeration of his complaints although he may well have some mild pain." Dr Smith, who had seen the appellant on a number of occasions, thought it reasonable to leave any further assessment of his fitness to Dr Bornstein. The appellant saw Dr Bornstein again on 24 August 1984. Dr Bornstein said: "In view of the total absence of corroborating special investigations and muscle spasm in the lumbar spine, I have to conclude that this patient is malingering. I consider him fit for his present duties despite the fact that he is entering complaints into the entry book." On 28 September 1984 the appellant was examined by Dr Millons, who concluded that it was doubtful whether the appellant had suffered anything more than a contusion to his back in the incident of 27 April 1982. He felt that the appellant's general picture was of an unfit man exaggerating his complaints. He was of the view that the appellant was well able to perform his work as a tally clerk. Dr Smith again examined the appellant on 12 July 1985. He expressed the view that he was then fit for work "provided he is able to avoid heavy lifting and prolonged bending....... although I think work as a tally clerk would be associated with some increase in his pain I think this should be tolerable and acceptable." On 9 August 1985 the appellant was examined by Dr Bloch, who expressed the conclusion to which I have already referred. Both Dr Bornstein and Dr Bloch considered that the CAT scan performed on 11 May 1983 showed nothing abnormal. There is nothing in the evidence so far referred to which would persuade me that his Honour erred in the conclusion he came to. The most that can be said is that his Honour may have been generous to the appellant in extending the period of incapacity for the April 1982 injury up to October 1986. The medical consensus was that the appellant was fit for work as a tally clerk well before that date. It was open to his Honour to conclude, as he did, from the medical evidence that in April 1982 the appellant suffered a low back injury probably involving a muscular ligamentous injury. Dr Selby-Brown saw the appellant once on 18 December 1986. He was unable to find any abnormal neurological findings in either of the appellant's lower limbs. He found a variable degree of tenderness to palpitation and diagnosed a muscular ligamentous injury to his back but could not exclude a disc lesion. On the assumption that in 1983 there was no abnormality on the CAT scan and that the appellant had continued over the years to be grossly overweight and obese, Dr Selby-Brown was asked whether it would be fair to ascribe the changes seen 10 UNREPORTED JUDGMENTS on the 1989 CAT scan to natural degeneration taking place within his spine over those years, particularly having regard to his weight. He said: "T certainly consider that it would be a factor to be considered. The narrowing of his canal, of course, is a congenital situation, but the central disc bulging certainly would have to be looked at whether it was of a degenerative nature, and overloading a disc is one way to make it degenerate. Q. If a CAT scan taken some 18 [sic] months after the accident in April 1982 was clear, and the CAT scan in 1989 shows the abnormality which you have seen, it would be more likely, would it not, that those changes are due to age rather than anything that happened to him on 27 April? A. That's one of the possibilities. One would have to consider that it is age, secondly, that he had a further injury or, thirdly, that possibly there was damage done in 1982 which had not become apparent on the scan and it was only with the passage of time that such - that further changes occurred in addition to being injured at that time, such that they became visible on the scan." Beginning on 6 September 1988 the appellant was examined by a number of doctors during the period up to the date of the trial in August 1993. On 6 September 1988 Dr Bornstein said that there were no objective physical signs whatever and "it would appear that there is a strong psychogenic component to his presentation - either conscious or unconscious." As the result of an examination on 31 January 1989, Dr Opie expressed the conclusion that the appellant's physical examination revealed several inconsistencies which cast doubt on the validity of his claim. On 8 March 1989 Dr Roberts performed the second CAT scan of the appellant's lumbar spine. In November 1989 the appellant was referred to Dr Morse, a consultant psychiatrist, who reported: "He said he would be able to carry out the work as he did under the disability scheme but couldn't do other work required in the normal day-to-day operations of a tally clerk. As mentioned, sporting and other activities have been very much reduced and restricted. I see the prognosis as very poor. This is stated because of the length of time he has had both the physical and emotional symptoms and the other factors which are causing his distress and are continuing and I see him as being physically and emotionally disturbed probably for the rest of his life due to the effect of the accident and the other factors that have occurred." On 23 November 1989 Dr Bornstein examined the appellant and reported that he did not consider he suffered a significant injury but as the result of an examination conducted on 8 October 1990, Dr Bornstein said he believed the appellant "psychologically to be totally unfit for any form of employment." "However I do not believe that this incapacity is in any way related to a physical problem....... Physically I believe him fit for employment, psychologically probably unfit." Dr Tooth reported a definite exaggeration and a magnification reaction and factors other than the actual injury as determining the causation and being responsible for the perpetuation of symptomatology. The appellant was assessed on 3 October 1991 by Dr Shand, a consultant psychiatrist, who summed up his impressions as follows: "Tt must be said that he has been accident prone. Not much by orthopaedic diagnosis comes out of the reports. Lumbo-sacral strain appears to have been the favoured diagnostic label by those Orthopaedic Surgeons who did offer diagnoses. X-rays have not disclosed serious or significant organic disorder. From my assessment whatever nervous disorder he may still have would URQURKE v PAN PACIFIC PTY LTD (IN LIQ); BOURKE v LINER SERVICES PTY LTD (iN LIQ); BOURKE v CONAUST (NSW) PTY LTD (Sheller J) certainly not prevent him from working. Prognosis for future health and employment remains largely in the orthopaedic sphere." In the same month the appellant was re-examined by Dr Bornstein, who considered him to have a strong overlay which was clouding both his own perception of discomfort and his real disability, if any, to the point that it was virtually impossible to assess if there was a disability. "Under these circumstances and with the lack of actual physical signs of a hard nature, I can only come to the conclusion that there is very little, if anything, wrong with this man's back." On 6 November 1991 Dr Lennon, who had previously seen the appellant, re-examined him and reported there was significant embellishment of the symptom complex and evidence of exaggeration of the disability. Dr Lennon had little doubt that the appellant could resume his prior work as a tally clerk but that there appeared to be little motivation to do so. Dr Ganora, who examined the appellant on 3 March 1992, at the request of his solicitors, felt that it was not possible to arrive at a specific diagnosis as to the cause of his persisting symptoms on the basis of clinical assessment alone. He said: "Accepting the possibility that Mr Bourke has sustained lumbar intervertebral joint injury as a result of the episodes he described, he would be unfit for work that requires substantial manual handling or repeated bending or twisting. This would not preclude him from performing the work of a tally clerk, which does not require substantial manual handling. It should be noted, however, that his persisting symptoms and ongoing difficulties have led to a state of considerable inactivity and de-conditioning which would substantially have diminished his tolerance of sustained work activities. Therefore he would require extensive work conditioning and up-grading of physical tolerance to cope with re-employment. He would find this difficult because of his persisting pain. Therefore, his fitness for work as a tally clerk will be diminished by his de-conditioning." Unfortunately the history given to Dr Ganora was incomplete. Towards the end of his cross examination he gave the following answers: "Q. However, with the combination of the history I gave you and the negative CAT scan at the time, on the balance of probabilities, giving regard to those matters, it is unlikely that anything of a serious nature happened to him on twenty-second of April 1982, do you agree with that? A. It is much less likely. The treating doctor would be entitled to not act upon that possibility. Q. And at best you could elevate it to a possibility having regard to the material which I have now? A. Within the scenario you have described the likelihood of there having been a disc prolapse at that time is not a probability." On 18 December 1992 Dr Tooth re-examined the appellant and commented that it was impossible to assess the true impairment of his back and its relationship to his work injuries but in his opinion it would be no more than 10 percent. Dr Lennon, who re-examined the appellant in May 1993, agreed with this diagnosis. Dr Smith expressed the view that the 1983 and 1989 CAT scans showed essentially the same things and were consistent with the complaints of back pain that the appellant had made following the incident of 27 April 1982. Sully J, having referred to this evidence, said: "T must say that, re-reading the evidence at T 326 and 327, I cannot escape the impression that there was some confusion in the exchanges between witness and counsel between the scan taken on 11 May 1983 and the scan taken later and in 12 UNREPORTED JUDGMENTS 1989. I am not quite clear, at the end of the day, whether Dr Smith is saying that he was shown outside the Court on the morning on which he gave evidence the 1989 scan and was able therefore to compare it with a note made somewhere in his records about the 1983 scan. It is clear enough that Dr Smith is saying that if one looks at the 1983 scan, one can see a disc protrusion at L5-S1, and that the radiologist's report in 1983 was in terms of a normal finding, for the reason that in 1983 a disc bulge at L5-S1 was not thought to be abnormal. What is not clear to me is where Dr Smith finds the evidence of an L5-S1 disc protrusion recorded as found by the 1983 CAT scan. Be all that as it may, Dr Smith went on to say, in cross-examination, that he had not been able to find much by way of objective support for the plaintiff's complaints of pain, and that he had been almost entirely dependent upon the plaintiff's own history of complaints of pain and disability. Dr Smith agreed that it is possible to get a bulging of the L5-S1 disc by reason of degenerative change, and that such bulging could well be sufficient to cause an indentation of the kind described in the 1989 CAT scan report." Dr Thomas purchased Dr Blyth's practice in 1988 and first saw the appellant thereafter. In November 1991 he found the appellant to be suffering from a severe spasm in lower back muscles. He accepted the possibility that the protrusion of LS-S1 compressing the caudo equina he observed in the CAT scan report could possibly have been brought about by the appellant's age. In respect of the April 1982 injury, his Honour awarded damages based on a closed period and allowed nothing for economic loss following the close of that period up to the time of the trial or for future economic loss. In the way the medical evidence was presented "in an uncollated and undigested mass", it is not surprising that the trial Judge found it impossible to arrive at a confident overview of the plaintiff's medical and employment histories. His Honour recognised that the assessment of damages in relation to the first claim against Pan Pacific was a matter of special difficulty. His Honour referred specifically to the facts that the plaintiff was off work for a comparatively short time, in August 1983 completed an application form for employment by Liner Services, in December 1983 although enrolled on the disability roster for some time appeared to have been 'picked up' fairly regularly for various work assignments and in March 1986 was eventually enrolled on the fit roster and when so enrolled was picked up by Conaust. An examination of the whole of the medical evidence does not persuade me that his Honour erred in concluding that the appellant suffered a muscular ligamentous injury as a result of the incident of April 1982 and was fit to work by October 1986, if not before. His Honour did not expressly deal with the evidence of functional overlay and whether this could be attributed to that injury or indeed any of the injuries for which the appellant claimed damages. If such a claim was made it seems that his Honour rejected it and there is nothing that I have seen which would persuade me that he was wrong in doing so. The suggestion of functional overlay was dealt with only in written reports. None of the doctors who spoke of it was presented for cross examination. Only Dr Morse related it to the appellant's injury. Dr Shand expressed the view that prognosis for future health and employment remained largely in the orthopaedic sphere. I do not think the appellant at trial made a case for damage based on anything but his physical injury. CONCLUSION In my opinion the appeals should be dismissed with costs. URQURKE v PAN PACIFIC PTY LTD (IN LIQ); BOURKE v LINER SERVICES PTY LTD (18 LIQ); BOURKE v CONAUST (NSW) PTY LTD (Cohen J) Cohen J I agree for the reasons given by Sheller JA that the appeals should be dismissed. Appeals dismissed with costs The appellant appeared in person. Counsel for the respondent (Pan Pacific): CE O'Connor QC/EG Romaniuk 10 Solicitors for the respondent (Pan Pacific): Moray and Agney Counsel for the respondent (Liner Services): GR Petty Solicitors for the respondent (Liner Services): Gadens Ridgway 15 Counsel for the respondent (Conaust): L King SC/R Dalgliesh Solicitors for the respondent (Conaust): William K Chambers