IOSIF v S and M MOTORS PTY LTD (in Liquidation) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, POWELL and BEAZLEY JJA 20 May 1996, 18 December 1996 [1996] NSWCA 266 Workers' Compensation — Proceedings for compensation — Award — Appeal — Jurisdiction of Court of Appeal — Application for determination filed prior to October 1989 — No right of appeal on question of fact. Priestley JA The circumstances of these proceedings are recounted in Powell JA's reasons which I have had the benefit of reading in draft. With one exception the grounds of appeal as amended seek to overturn factual findings of the trial judge. After consideration of the arguments seeking to support these grounds, it is sufficient for me to say that, despite the earnest efforts of counsel for the appellant to show some mistake in the trial judge's fact finding, I do not see that his Honour made any finding with which this court would be justified in interfering. The remaining ground of appeal was of reasonable apprehension of bias. I do not think the circumstances of the reconsideration of the matter by Manser J, or his reasons on that reconsideration, which the parties had asked him to undertake, show any basis for such apprehension. In my opinion the appeals should be dismissed with costs. Powell JA On 27 March 1979, the Appellant, who appears to have been by trade a motor mechanic and who was, at that time, employed in that capacity by the Respondent, sustained injuries while attempting to remedy some defects in the engine of a motor vehicle upon which he was working. There does not appear at any time to have been any dispute but that, as a result of what occurred, the Appellant sustained burns to the right side of his face and to his right arm and hand but it seems always to have been disputed that, at the time, the Appellant fell heavily on his right shoulder, sustaining the rotator cuff muscle tear which was later diagnosed, and the degenerative changes in the right shoulder, and the cervical, and lumbar, spine which so it seems to be said have flowed from it - later, the Appellant also sought to attribute the degenerative changes to his spine to the "nature and conditions" of his employment, and to "functional overlay". Following the accident the Appellant was taken to the Marrickville District Hospital ("the Hospital") where, after having first been treated in Casualty, he was admitted for treatment, being discharged on 3 April 1979. The Discharge Summary (Exhibit "G'") records only a diagnosis of multiple burns for which the Appellant was treated conservatively using local dressings and antibiotics administered under the supervision of Dr West, one of the visiting medical officers at the hospital. Following his discharge, the Appellant was examined on several occasions by Dr West who, on 11 July 1979, reported (Appeal Book p65): "In summary, Mr Iosif suffered first degree burns due to scalds and he has made a complete recovery." 2 UNREPORTED JUDGMENTS Despite the terms of Dr West's report, the Appellant claimed to have been incapacitated - both partially and totally - for varying periods over the following 6 years or more, despite which fact, and despite the fact that the Appellant was paid compensation for only the 4 weeks immediately after the accident, no proceedings seeking compensation were commenced before 26 September 1985 - by which time the Respondent was in liquidation - when there was filed an Application for Determination. In that Application for Determination, the Appellant sought, in addition to weekly compensation, pursuant to s9, s11(1), s11(2) of the Workers Compensation Act 1926 ("the 1926 Act') and expenses pursuant to s10 of the 1926 Act, a lump sum pursuant to s16 of the 1926 Act "in respect of right leg, right hand and arm and back". It should be noted, here, that, as at 26 September 1985, s32(1) of the Compensation Court Act 1984 ("the Court Act") provided: - "Tf a party to any proceedings before the Court (other than proceedings before a Commissioner or Registrar) is aggrieved by an award of the court in point of law or in relation to the admission or rejection of any evidence that party may appeal to the Supreme Court." As this Court pointed out in Azzopardi v Tasman UEB Industries Ltd! the nature of the appeal provided for by s32(1) of the Court Act, as it then stood, was a very limited one and did not permit this Court to correct errors of fact even in a case in which it might be said that a finding of fact was perverse and contrary to the overwhelming weight of the evidence. The apparent lack of urgency in prosecuting the Appellant's rights, if any, to receive compensation continued after the filing of the Application for Determination, the Application apparently having been struck out of the list, or adjourned generally, on several occasions before it finally came on for hearing in the first instance on 18 April 1991. Before 18 April 1991, the Respondent's solicitors had caused to be served upon the Chief Executive Officer of the Hospital a subpoena requiring the production of the Hospital records relating to the Appellant. Whether or not the fact was that the hospital records had not been delivered, to the Court by 18 April 1991, or, the fact was that they had been delivered but had been misplaced in the Registry, it would seem that, on 18 April 1991, the hearing of the Application before Manser CCJ was adjourned after the completion of the Appellant's evidence in chief pending "return of subpoenaed doe's Marrickville Hospital". On 2 May 1991, the Appellant's then solicitor caused to be served on the Medical Superintendent of the Hospital, as subpoena requiring the production of the Hospital records relating to the Appellant. Although the Appellant's then solicitor claims to have been informed by the Officer in Charge of Medical Records at the Hospital that no records could be found, it is clear that, by no later than 7 June 1991 - that is, four days prior to the date on which the hearing of the Application for Determination had been adjourned - the Hospital's file had been delivered to the Registry, and had been inspected by a clerk in the employ of the Respondent's solicitors who had copied a number of documents which were in the file. When the matter came before Manser CCJ on 11 June 1991, the evidence of a Mr Kottakis was taken, and the hearing then adjourned part-heard until 13 August 1991, on which day, so it would seem, Manser CCJ, on the application of the Appellant's counsel, granted the Appellant leave to file and serve an 1. (1985) 4 NSWLR 139 URJ IOSIF v S and M MOTORS PTY LTD (In Liquidation) (Powell JA) 3 Amended Application for Determination "claiming nature and conditions and functional overlay", that Amended Application for Determination to be filed and served within 14 days thereafter. The Amended Application for Determination (Appeal Book p1) was filed in the Registry on 28 August 1991, following which Manser CCJ, on 30 August 1991, having given directions for the provision by the Appellant of further particulars, fixed the Application for Determination for further hearing on 12 November 1991. On | November 1991, Commissioner Cross granted to the parties access to the documents which had been produced by the Hospital and by a number of doctors. The Appellant's then solicitor claims that, although he inspected the packet produced by the Hospital it contained only a copy of the Discharge Summary dated 3 April 1979 which Discharge Summary (Appeal Book p29) referred only to the Appellant's burns and did not refer to any musculo-skeletal injuries. When the hearing of the Application for Determination resumed before Manser CCJ on 12 November 1991, the Appellant was cross-examined by counsel appearing for the Respondent. The nature of that cross-examination makes it clear that counsel for the Respondent had available to him copies of the documents produced, inter alia, by the Hospital and the several doctors upon whom subpoenas had been served. At the conclusion of the Appellant's cross-examination, he was not re-examined and, after the tender of a number of documents, the Appellant's case was closed. Among the documents tendered in the Appellant's case was a letter (Exhibit "O") dated 7 May 1991 from the Director of Medical Services of the Hospital to the Appellant's then solicitor, which letter, omitting formal parts, was as follows: "T am sorry that my report of 17th April 1991, did not refer to the visits of Mr EVANGELOS IOSIF on 15th October 1979. These were not included as they did not appear to be related to the injuries sustained on 27th March 1979. Mr IOSIF presented to the Casualty Department on the 15th October 1979, for admission under Dr Kumar, Visiting Surgeon, for the removal of multiple Lipomas. Dr Kumar in the operating theatre removed eight lipomas from his right arm and his anterior chest wall, his loin and his right thigh, and he was discharged on the 16th October 1979. While awaiting admission in casualty, Mr Iosif mentioned to the Casualty Doctor, that he had suffered an acute strain to his right shoulder about six months previously, and that an X-ray, at the time had been normal. He complained that for the last 3 days he had recurrence of pain in his right shoulder. On examination his right shoulder was painful on abduction and flexion, he was advised to rest the shoulder for two days and to take aspirin, for the pain. On the 24th October 1979, Mr Iosif returned for the removal of sutures from his operation sites. The sutures were removed, Mr Iosif stated that his shoulder was still painful On examination the range of all his shoulder movements was full and the power in the shoulder was normal." The Respondent's case on the Application for Determination was limited to the tender of a number of medical reports, at the conclusion of which, Manser CCJ adjourned the hearing until 14 November 1991 for addresses. Although, on 3 May 1993, the relevance of which date will shortly appear, Handley JA was informed that Manser CCJ did not deliver his Judgment until about 3 or 4 weeks previously, a note on the Compensation Court file bearing date 14 November 1991, reads as follows: 4 UNREPORTED JUDGMENTS "Addresses (Flett) 10.33 am to 10.55 am (Morrissey) 10.55 am to 11.20 am Judgment 12.39 pm to 1.04 pm "Not satisfied applicant has made out his case I dismiss his application and make an award for the respondent" That that note correctly records what happened on 14 November is indicated by the form of Award (Appeal book p84) later settled by the Registrar of the Compensation Court on 22 January 1992, which form of Award bears at its foot the following notation: - "In accordance with the rules of Court a copy is forwarded to each of the parties and the insurer(s). (initials) 22/1" In his Judgment (Appeal Book p76-p83), Manser CCJ, after referring to various aspects of the evidence which had been tendered before him, concluded (Appeal Book p82-p83): "There seems little doubt that the applicant is currently disabled from a multitude of musculo-skeletal problems and that he has serious limitations upon his working capacity. However the applicant's task here is to satisfy me that the disabilities from which he suffers are causally related to the burning incident on 27 March 1979. For reasons which I hope I have made clear from the analysis of the contemporaneous material I am not satisfied that the applicant has made out his case. The worker in addition to the burns incident also pleaded the nature and conditions of his employment with the respondent as a cause of his musculo-skeletal difficulties There is nothing in. the evidence apart from the worker's evidence that he felt pain while he worked which would established that the work itself was a cause of or produced an aggravation of his various problems. All of the doctors have proceeded upon the basis of a history given by the worker which is that the onset of these difficulties coincided with the occurrence of the burning incident. As I have said I am not satisfied that the worker has made out his case and I dismiss his application and make an award for the respondent. On 16 February 1993, there was filed in these proceedings a Summons in which there was sought on behalf of the Appellant (inter alia): "1. An order that leave be granted to the Appellant to appeal to the Court of Appeal from the decision of His Honour Judge Manser dismissing the Application for Determination of the Appellant and making an award in favour of the Respondent." The hearing of that Summons having been adjourned, meantime, on a number of occasions, on 16 April 1993 there was filed in these proceedings an Amended Summons in which was sought on behalf of the Appellant (inter alia): "1. An order that the time for filing Notice of Appeal from the decision of his Honour Judge Manser dismissing the Application for Determination of the Appellant and making an award in favour of the Respondent, be extended to such date as the court shall fix." URJ IOSIF v S and M MOTORS PTY LTD (In Liquidation) (Powell JA) 5 The Amended Summons came before Handley JA on 3 May 1993, on which day, as I have earlier recorded, his Honour was informed by counsel for the Appellant, that Manser CCJ had not given Judgment on the Application for Determination until 3 or 4 weeks previously, an assertion, one observes, which not only was not supported by the Affidavit which had been sworn by the Appellant's then solicitor, but also was difficult to reconcile with the fact that the Summons in these proceedings had been filed on 16 February 1993. Be all that as it may, Handley JA, in the light of the doubt which apparently existed as to the date on which Manser CCJ delivered Judgment and when copies of that Judgment were made available to the parties, and in the light of the fact that the Opponent did not then seek to submit that the proposed appeal was futile, ordered that the time within which the Appellant might file a Notice of Appeal be extended up to and including 7 May 1993, the costs of the application to be costs in the appeal. I confess to being surprised that the Respondent did not oppose the application for an extension of time on the ground that the proposed appeal was futile and did not draw to the attention of Handley JA the date upon which the Application for Determination had been filed and the grounds of appeal in the form of Notice of Appeal attached to the Amended Summons in these proceedings, which latter two matters, in my view, made it clear that the proposed appeal was futile. I say that since, although the Compensation Court (Amendment) Act 1989 amended s32 of the Court Act so as to read (inter alia): "32(1) A party aggrieved by an award of the court constituted by a judge may appeal to the Supreme Court. (3) If an appeal involves neither: (a) a point of law or the admission or rejection of any evidence; nor (b) compensation amounting to $10,000.00 or more, the appeal lies by leave of the Supreme Court. (4) In any other case, the appeal lies as of right." cl5(1) of Pt2 of Schedule 4 - Savings and Transitional Provisions - of the Court Act, which Schedule was introduced into the Court Act by the Compensation Court (Amendment) Act 1989 provides: - "5(1) An appeal that does not involve a point of law does not lie in respect of an award given in proceedings commenced before the commencement of the amendments made to s32 of the Act by the Compensation Court (Amendment Act) 1989." As the operative date for the amendments made to s32 of the Court Act is 1 October 1989, the only right of appeal which, in the circumstances, it was open to the Appellant to invoke, was one limited to a point of law or the admission or rejection of any evidence. This notwithstanding, the grounds of appeal sought to be taken in the Notice of Appeal attached to the Amended Summons were: "That His Honour was in error in finding that the appellant did not sustain musculo-skeletal injuries whilst in the Respondent's employment on 27 March 1979. That His Honour was in error in finding that if the applicant fell it happened whilst the applicant was still alight and in the period of time between the explosion and the arrival of the witness Kantakas (sic). That His Honour was in error in finding that the medical records of Dr Yiannoukis, the applicant's treating general practitioner were not lost at the time of the hearing. 6 UNREPORTED JUDGMENTS That His Honour was in error in not accepting the evidence of the applicant as to a fall at work whilst employed by the Respondent on 27 March 1979. That His Honour was in error and made findings against the weight of the evidence contained in the reports of Dr Yiannoukis, Marrickville Hospital and Dr Sloane." which grounds of appeal clearly do not involve a point of law. On 24 October 1995, there was filed by the Appellant's present solicitors, a Notice of Motion in which was sought (inter alia) an order: "1. That the Amended Application for Determination in proceedings numbered 12905 of 1985 before the Compensation Court be remitted back to the Compensation Court for reconsideration pursuant to subs17(4) of the Compensation Court Act 1984." the basis upon which that order was sought seemingly being that, in mid-September 1995, the Appellant's present solicitor had received a copy of the Clinical Notes of the Hospital relating to the Appellant, which Clinical Notes for 4 April 1979 - or, perhaps, it is for 5 April 1979 - a notation: "Pain (R) shoulder for 8 days (since fire)." which note, so it was suggested, if tendered in evidence on the hearing before Manser CCJ 1. would have provided corroboration for the Appellant's evidence and would have led Manser CCJ to find that the Appellant had established his case. It should, however, be pointed out that immediately following the note which I have set out above, and apparently forming part of the same note is: "O/E - minimal pain in shoulder Full range of movt. No swelling, oedema. PD muscular problem. To physio. " and that the Clinical Notes for 11 April 1979 contain the following: "XR (R) shoulder - NAD" which further note I take to record that, on 11 April 1979, the Appellant's right shoulder had been X-rayed but that no abnormality was detected. In the event, no order was made on the Notice of Motion as, on 24 November 1995, there was filed in the Compensation Court a Notice of Motion, made returnable on 8 December 1995, in which there was sought on behalf of the Appellant an order: "1. That the Amended Application for Determination f led in these proceedings be reconsidered by (the Compensation Court) pursuant to subs17(4) of the Compensation Court Act 1984." As chance would have it, that Notice of Motion was listed before Manser CCJ who, as it would seem, was due to retire shortly thereafter. In the light of one of the submissions which was advanced on the hearing of this appeal, it should be noted that although Manser CCJ indicated to counsel then appearing that the application could be dealt with by another Judge of the Court notwithstanding his impending retirement, counsel then appearing for the Appellant sought to proceed with the matter. The hearing of the application appears as if it occupied the better part of the day, by far the greater part of that time being occupied by submissions advanced by counsel who then appeared on behalf of the Appellant. In the course of those submissions, his Honour appears to have had his attention drawn, first, to the evidence which had been tendered on the hearing in 1991, then to the additional material which had been obtained in September 1995 with a view to persuading URJ IOSIF v S and M MOTORS PTY LTD (In Liquidation) (Powell JA) 7 his Honour that the basis of the Judgment which he delivered in 1991 was undermined by the additional material which had been obtained in September 1995. At the conclusion of counsels' submissions, his Honour delivered an ex tempore Judgment dismissing the application but refusing to make an order that the Appellant pay the Respondent's costs of the application. Manser CCJ commenced his Judgment in the following way: - "This is an application by way of Notice of Motion for the Court to reconsider a decision made by it on 14 November 1991. The matter comes back to the Court during the currency of an Appeal by the worker against the Court's decision. The circumstances were roughly that material was discovered by the applicant worker's current solicitors which was clearly not presented to the Court at the time that the matter was originally tried The applicant, Mr Iosif, claims that on 27 March 1979 whilst he was employed by the respondent as a motor mechanic he suffered an injury when he was working on a motor vehicle owned by a Mr Kartakas (sic) and there was a fire and he suffered burns and he alleges he also suffered a fall, falling upon his right side, injuring his neck, his right arm, his hand, his low back and his thigh. The applicant notwithstanding the pleadings in the amended application for determination really pleads two injuries although each was part of the same transaction. In my judgment at page two, which was an ex-tempore judgment, there is a statement as to the applicant's evidence in respect of when it was that he is alleged to have had this fall onto his right side. It may be that that is an incorrect statement attributed to him, but the conclusion I would affirm, that conclusion being in the next succeeding paragraph. This is what I said then: 'This evidence was given in the context of evidence which clearly pointed to the applicant having fallen whilst he was still alight. Consequently if a fall occurred it must have occurred in the short time that it took between the explosion and the ignition of the applicant's clothing and the arrival of the witness Kartakas at the rear of the vehicle." The matter that exercised my mind at the time was that the worker, who was undoubtedly suffering from real physical problems at a later time, had no corroboration of the injury to his right side, to use a generic term, in the contemporaneous records. I referred in my judgment to the discharge summary of the Marrickville District Hospital and to the report of Dr West, the doctor who treated the applicant for his burns. The current application is based upon the revelation that the application (sic) did indeed complain of pain in his right shoulder. The Court is asked on the basis of that substantiation to reconsider its decision with a view ultimately, one would anticipate, that it would come to a contrary conclusion to that which it had come to in 1991." Having then recorded some of the history of the proceedings leading up to the delivery of his Judgment in 1991, and the additional material relating to the circumstances in which the Appellant's present solicitor had obtained the documents in September 1995, his Honour then continued: - "The real thrust of the judgment seems to me to have been that the applicant had not made good the allegation that he had injured his shoulder at that time. The worker's evidence was tested against the contemporaneous records which - did not at the time of my consideration reveal any corroboration of his assertion that he had trouble in the right shoulder. Clearly enough the evidence which has 8 UNREPORTED JUDGMENTS now emerged from the records of the Marrickville Hospital substantiate that there were claims made on 2 and 4 April 1979 and that an x-ray was taken at that time and physiotherapy treatment rendered. Consequently if I were deciding this case again with the benefit of that material any conclusion that I reached that there was no contemporaneous complaint would not stand However that is not the end of it. It would have still been necessary for the Court to have been satisfied that the worker had injured himself in the manner that he said and that he continued to have the complaints which he alleged. The worker was clear and unequivocal in his evidence about the parts of his body which he hurt at the time of the alleged fall. True it is as Mr Montgomery says, the witness Kartakas (sic) did not positively state that the worker was standing up at the time that he first saw him after the explosion but it seems to me that the conclusion which I drew that that was the thrust of his evidence, remains valid so that if there was any such fall it had to have occurred in the very limited time span which I described. The fact that the applicant suffered some pain in his shoulder does not mean that he injured his shoulder at that time although one would be hard pressed to explain the co-incidence of a complaint of pain at that time arising from some other source than something which may have occurred during the course of the explosion. What is missing and what remains missing from the contemporaneous record is any suggestion that there was at the time any problems with the applicant's back or neck and that remains true even at October 1979 when the applicant returned to Marrickville Hospital for surgical treatment for some other condition. Although the hospital's records make it clear that he was complaining of pain in his right shoulder at that time, the applicant was suggesting an association with an injury some months before. The history, which was taken at that time strongly suggests that so far as this Court is concerned, is that the worker was suffering from the effects of a more recent injury. True it is as Mr Montgomery points out that the worker's evidence was that his shoulder would get sore from time to time and indeed as I understood his evidence on the previous occasion, progressively so over a period of time and as he worked, but there is no evidence even at that time that the applicant was maintaining a fall in April 1979 which was the basis of his evidence before me on the previous occasion. I have been referred to the principles governing the setting of a new trial upon the basis of fresh evidence in the decision of the High Court of COMMONWEALTH BANK OF AUSTRALLA v QUADE AND OTHERS, 1993 178 CLR 134 at 140. Those principles and the discussion by the Court of the relevant considerations are of course of great assistance to me in determining this matter. This Court however is a Court which is constituted to deal with claims by injured workers for compensation from their employers. The jurisdiction which this Court exercises is one which is concerned with a piece of beneficial legislation and that the Court has been enjoined from time to time to remember the nature of the legislation which it administers. So that it would be inappropriate to think for the Court to rigidly adhere to any fixed principles in relation to governing these sorts of matters in other areas of the law. Even the fairly generous and elastic principles which the High Court referred to in QUADE are in my view more demanding than the principles which this Court ought to apply in matters of this nature." URJ IOSIF v S and M MOTORS PTY LTD (In Liquidation) (Powell JA) 9 Then, after considering some of the matters which appeared in the documents which had been obtained in September 1995, his Honour concluded: "The difficulty it seems to me with the applicant's case is that he left no room for an alternative explanation. His history was that of a fall and it was that fall which produced the injury to his shoulder and his neck et cetera. It is nothing to the point for doctors to speculate as to what might have happened during the course of Mr Iosif's attempts to extricate himself from his difficult situation and to escape from the flames. The fact is that he came and swore before me that he had hurt himself in a particular way. The fact is that even the histories given to his treating doctors at an earlier time do not support the history which he gave to me in his evidence. It is not for the Court to make good the applicant's case, even bearing in mind the injunctions by higher courts to observe and respect the character of the legislation which the Court administers. Even if I had been in possession of the evidence which now has been revealed from the notes of the Marrickville District Hospital, would I have not necessarily have come to a different conclusion, indeed as presently advised and having regard to the submissions that have been made to me, I would not. I DISMISS THE APPLICATION." On 29 April 1996, Mahoney P, on the application of the Appellant ordered that the time within which a Notice of Appeal against the Judgment delivered, and Orders made, by Manser CCJ on 8 December 1995, be extended up to and including 6 May 1996 and that that appeal be consolidated with the appeal against the Judgment delivered and Award made, by Manser CCJ in November 1991, which appeal had been listed for hearing on 20 May 1996. In pursuance of the order made by Mahoney P there was, on 29 April 1996, filed in Court an Amended Notice of Appeal, which Amended Notice of Appeal added to the five grounds of appeal taken in the Notice of Appeal filed 16 April 1993, two additional grounds of appeal, they being: "6. That his Honour was in error in his Judgment of 8th December 1995 in finding that the hospital notes in which the complaint of right arm/shoulder pain was recorded would have made mention of the history of the injury to which it related, when there was no evidence to support such a finding. 7. That his Honour was in error in that a reasonable person may apprehend that his Honour was bias (sic) in the circumstances referred to in para6 herein." Although, by the time when the Amended Notice of Appeal was filed, s32 of the Court Act had been repealed and a new s32 substituted, that amendment to operate as from 1 February 1996, cl7 of Pt4 of Schedule 4 to the Court Act, which was inserted into the Court Act at the same time, makes it clear that that amendment has no relevance to the present proceedings. When the appeal came on for hearing on 20 May 1996, Mr B O'Sullivan appeared for the Appellant while Mr J Poulos QC appeared for the Respondent. Although, as I have earlier recorded, the effect of the provisions of the Court Act which are relevant is that the only right of appeal which was open to the Appellant to invoke was one on a point of law or relating to the admission or rejection of evidence, both in his written submissions and in his oral submissions on the hearing of the appeal, Mr O'Sullivan proceeded upon the basis that the Appellant had a general right of appeal, a submission which, not surprisingly, was strongly challenged by Mr Poulos. 10 UNREPORTED JUDGMENTS As I have earlier recorded it is, in my view, clear, that the five grounds of appeal originally taken, and repeated in the Amended Notice of Appeal, are grounds of appeal which it was not open to the Appellant to seek to raise and that, to that extent the appeal is incompetent and must be dismissed. So far as the sixth ground of appeal is concerned, it seems to me that this, too, does no more than seek to challenge the correctness of Manser CCJ's Judgment on a question of fact. But, even if this were not so, the ground, in fact, is not made out. What his Honour, in fact, said in this regard is: "Tt is apparent that the worker made no complaint to the hospital in either of those periods that he fell during the course of this unfortunate incident with the vehicle. It could be argued I suppose that Mr Iosif might not have been sufficiently cognisant of the hospital procedures to have mentioned the matter to those who were treating him. Similarly it may be argued and Mr Montgomery did, that the hospital was concerned with the worker's treatment and would not have been as concerned to take a history from him about any other explanation for his complaints in the right shoulder. It seems to me that the latter submission is inconsistent with my experience and inconsistent with the hospital's records. Although one may excuse the applicant for having failed to refer specifically to the fall at the time of his admission to the hospital, it is difficult to understand why he would not have done so some days later if it were his then belief that his right shoulder pain was due to a fall rather than the burns that he had suffered. Similarly if that had been his then view in October 1979, I would have expected him to inform the hospital of the fall rather than telling them that he had had a three day history of pain in his right shoulder associated one presumed from the notation with his work as a mechanic." So far as the seventh ground of appeal is concerned, I content myself with saying that, even if it be regarded as raising a point of law, what I have earlier written, in my view, makes it clear that there is no substance in the point. For these reasons I would propose that the appeals be dismissed with costs. Beazley JA This is an appeal from two decisions of Manser J in the Compensation Court. The first judgment was an ex tempore judgment given on 14 November 1991. The second judgment, in which his Honour reconsidered his earlier decision pursuant to s17(4) of the Compensation Court Act 1984, was dated 8 December 1995. BACKGROUND In an amended Application for Determination dated 28 August 1991, the appellant claimed compensation for incapacity allegedly resulting from injuries he sustained on 27 March 1979 whilst employed by the respondent as a mechanic. On that day, a Mr Kottakis (referred to as "Mr Kartakas"' in Manser J's judgments) had taken his motor vehicle to the respondent at Dulwich Hill in Sydney for service and repairs. In the course of attending to Mr Kottakis' vehicle, the appellant was standing at the rear of the van where the engine was situated, while Mr Kottakis turned the ignition key. According to the amended application, "a flame came from the engine and burnt" the appellant. The appellant alleges that in addition to serious first degree burns, he suffered injuries to his right leg, right side of his back, the right arm, shoulder, hand, neck and to his head which he sustained when, in the course running from the vehicle to seek aid, he fell on his right side. Mr Kottakis also gave evidence at the trial. His Honour noted that "in cross-examination, [Mr URJ IOSIF v S and M MOTORS PTY LTD (In Liquidation) (Beazley JA) 11 Kottakis] appeared to concede that [the appellant] was standing at the time that [Mr Konakis] came upon [the appellant] ablaze." THE FIRST JUDGMENT: 14 NOVEMBER 1991 In his first judgment, Manser J observed that: "there seems little doubt that the applicant is currently disabled from a multitude of musculo-skeletal problems and that he has serious limitations upon his working capacity". However, the appellant failed to satisfy his Honour that these disabilities were caused by the work accident on 27 March 1979. His Honour's rejection of the appellant's case was based upon an absence of any contemporaneous complaint by the appellant in respect of the particular musculo-skeletal injuries, either when he was hospitalised at Marrickville Hospital from 27 March 1979 to 3 April 1979, or in the following period when he was discharged into the care of Dr West. The appellant had given evidence that Dr West had been treating him for the burn injuries only, and that during the same period he had been consulting his own medical practitioner, Dr Yiannoukis, for the musculo-skeletal complaints. Dr Yiannoukis, however, gave evidence that he could not produce any medical records regarding his contemporaneous treatment of the appellant because he had left them at a prior medical practice. Manser J found Dr Yiannoukis' evidence to be unsatisfactory. His Honour found the overall lack of corroboration by the appellant's medical practitioners inexplicable, stating that in his opinion: "\..the natural thing to do would have been for the applicant to have inquired of his doctor what was the explanation for the maintenance or the existence of the pain when his burns were apparently resolving." His Honour entered an award for the respondent employer. THE FIRST APPEAL The respondent sought and was granted leave to appeal from this determination. On 20 November 1995, this Court ordered that the matter be remitted to the Compensation Court for reconsideration under s17(4) Compensation Court Act 1984, based on the discovery by the appellant's new legal representatives of contemporaneous notes made by staff at Marrickville District Hospital which indicated that the appellant had complained of right shoulder pain while at the hospital directly after the explosion incident. These hospital notes had been produced on subpoena prior to the first hearing. The evidence revealed that the appellant's former solicitor, Mr Izzo, had subpoenaed these documents. However, it appears that Mr Izzo had been misled by a person identifying himself as "the officer in charge of medical records" at Marrickville Hospital, who said no hospital documents were in existence other than the discharge summary relating to the appellant. Subsequently, the respondent's solicitors received a telephone call from "Mr Barry of Marrickville Hospital" who advised that "documents had now been located and forwarded to the Court in response to a subpoena". A clerk employed by the respondent's solicitors inspected the documents. Mr Izzo did not, as he was not privy to the information that the hospital had forwarded documents to the court and so remained under the misapprehension that there were no documents. The hospital records substantiated that the appellant complained of shoulder pain on 2 and 4 April 1979, that an x-ray was taken at that time and that the appellant had physiotherapy for his shoulder injury. 12 UNREPORTED JUDGMENTS The hospital records also included a further report in respect of a subsequent attendance by the appellant at the casualty department of Marrickville Hospital on 15 October 1979, for removal of multiple lipomas. That report noted that the appellant: "had suffered an acute strain to his right shoulder about 6 months previously, and that an x-ray at the time had been normal. He complained that for the last 3 days he had recurrence of pain in his right shoulder." THE SECOND HEARING The second hearing proceeded by way of a reconsideration under s17(4) of the Compensation Court Act. At that hearing, his Honour reviewed all the evidence presented to him at the first hearing in light of the material contained in the hospital records. His Honour considered the question for him to answer was: "..accepting that there was a complaint by the worker in April 1979 to the hospital authorities and accepting that there was a further complaint in October 1979 to the same authorities of pain in the right shoulder, would I have been more likely than not to have come to a different view?" Manser J found that the hospital records provided evidence of contemporaneous complaint of pain in the right shoulder. However, his Honour concluded: "The difficulty it seems to me with the [appellant's] case is that he left no room for an alternative explanation. His history was that of a fall and it was that fall which produced the injury in his shoulder and neck et cetera." In concluding that, even had he had the benefit of the evidence as revealed by the hospital records, he would not have come to a different conclusion than that previously reached, his Honour relied upon the following evidence which he obviously considered to be critical. First, the appellant at no time made any complaint to the hospital that he had fallen during the incident of 27 March 1979. The right shoulder pain experienced and complained of by the appellant on 2 and 4 April 1979 was not specifically attributed to a fall as opposed to the burns which he sustained in the incident. Secondly, and following on from the first point, in October 1979 on the appellant's second visit to the hospital, he alleged no relationship between the acute shoulder pain he had been suffering from for 3 days and the fall on 27 March which he maintains caused that shoulder pain. Thirdly, his Honour refused to assume that Dr Yiannoukis' contemporaneous medical notes, if they did exist, would have been "of the requisite quality to justify a conclusion that the [appellant] fell during the course of this unhappy affair in the circumstances" that he alleges. Fourthly, his Honour found that the histories that the appellant had given to his treating doctors did not support the history which the appellant had given in evidence. Finally, Manser J made reference to the complete absence from the contemporaneous records of any suggestion that there was at the time any problems with the [appellant's] back or neck". THIS APPEAL An appeal from a decision of the Compensation Court to this Court is made pursuant to s32 Compensation Court Act 1984. $32 was amended in 1989 to allow for appeals on a question of fact. Counsel for the respondents submitted that as these proceedings were commenced by Application for Determination on 25 September 1985 in the Compensation Court, prior to the 1989 amendments, the appeal is limited to questions of law or in relation to the admission or rejection of any evidence. In my opinion, this submission is correct, having URJ IOSIF v S and M MOTORS PTY LTD (In Liquidation) (Beazley JA) 13 regard to Schedule 4 of the Savings and Transitional Provisions of the Compensation Court Act 1984. Cl5 of the Schedule provides: 5. (1) An appeal that does not involve a point of law or the admission or rejection of any evidence does not lie in respect of an award given in proceedings commenced before the commencement of the amendments made to s32 by the Compensation (Amendment) Act 1989. (2) The amendments made to s32 by the Compensation Court (Amendment) Act 1989 do not affect any appeals commenced before the commencement of those amendments. As the proceedings in this appeal were commenced prior to the 1989 amendments, the present appeal is brought under the previous wording of s32 of the Act, and accordingly must be confined to one in which the appellant "is aggrieved by an award of the Court in point of law". In this regard, I agree with Powell JA's detailed review of the legislative history affecting this matter. The first five grounds raised in the a needed notice of appeal were that his Honour erred in finding that: "1. The appellant did not sustain musculo-skeletal injuries whilst in the respondent's employment on the 27th March, 1979. 2. If the [appellant] fell it happened whilst the [appellant] was still alight and in the period of time between the explosion the arrival of the witness Kantakas [sic]. 3. The medical records of Dr Yiannoukis, the [appellant's] treating general practitioner were not lost at the time of the hearing. 4. That His Honour was in error in not accepting the evidence of the [appellant] as to a fall at work whilst employed by the respondent on the 27th March, 1979. 5. That His Honour was in error and made findings against the weight of the evidence contained in the reports of Dr Yiannoukis, Marrickville Hospital and Dr Sloane." These grounds clearly raise only questions of fact and accordingly are not amenable to appeal in this matter. Grounds 6 and 7 were put in this form: "6. That His Honour was in error in his judgment of 8th December, 1995 in finding that the hospital notes in which the complaint of right arm/should pain was recorded would have made mention of the history of the injury to which if related, where there was no evidence to support such a finding. 7. That His Honour was in error in that a reasonable person may apprehend that His Honour was bias in the circumstances referred to in para6 herein." In his second judgment, Manser CCJ stated that the matter which had exercised his mind in the first judgment was that the appellant: "had no corroboration of the injury to his right side... in the contemporaneous [medical] records." Counsel for the appellant submitted that this statement reveals error because his Honour gave no reasons, other than lack of corroborative evidence, as to why he rejected the appellant's evidence. In particular, he made no express adverse finding as to credit. Further, he gave no reasons as to why corroboration was required. Counsel further submitted that his Honour's apparent requirement for corroboration before accepting the appellant was to impose an onus which, at law, the appellant did not bear. 14 UNREPORTED JUDGMENTS The first part of this submission appears to rely upon the obligation upon a judge to give reasons for decision. This principle is well established. A failure to give adequate reasons is an error of law: see Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. This requirement does not involve a detailed examination of all the evidence or a "minute explanation" in the reasoning process. Rather, it calls for the judge "at least...to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues" (per Kirby P at 259). In my opinion, Manser CCJ satisfied this obligation. Although his Honour did not say that he disbelieved the appellant on his oath, both judgments of his Honour make it clear that he did not accept, on the appropriate standard, that the appellant had fallen. One reason for this was that the only eye witness to the accident did not support the appellant's version of the accident. Another was that the contemporaneous medical records did not support that version. His Honour used the word "corroboration" when explaining this part of his reasoning process. In my opinion, he did so only to explain his reasons why he did accept the appellant's version of the cause of his musculo-skeletal injuries. When the judgment is understood in that way, the answer to the second of the submissions also becomes obvious. His Honour did not apply the wrong onus. Rather, given the whole of the evidence, his Honour was not satisfied, as he stated, that the appellant had discharged the onus which he clearly bore. The appellant also submitted that his Honour erred in not accepting the additional evidence adduced at the second hearing, and that his Honour improperly relied on his own "experience" of hospital record-keeping practices as a reason for rejecting that evidence. His Honour's reference to his "own experience" was, perhaps, inappropriate, particularly as it is not clear what he meant by that statement. His Honour made the remark in circumstances where counsel for the appellant had submitted that the hospital, being concerned with the appellant's treatment, would not have been concerned to take a history from him about the cause of his complaint of shoulder injury. That submission was purely speculative. His Honour's remark read in that context, is properly viewed as irrelevant. It was also submitted that, in respect of the second judgment "a fair-minded observer would conclude that His Honour had formed opinions which might affect his determination of outstanding matters." The appellant at all times bore the onus of satisfying the Court that the injuries of which he complained were actually caused by the work explosion incident. His Honour was not so satisfied. In coming to his conclusion, his Honour considered the whole of the evidence. The conclusion to which his Honour came was open to him, although it was a matter upon which minds might differ. As the conclusion to which his Honour came was open to him, no error of law has been demonstrated. It was also submitted that the trial judge "failed to consider whether the right shoulder injury arose or was aggravated by the appellant's nature and conditions of employment". This submission can be disposed of shortly. At both hearings before Manser J, the appellant's case was put on the basis that the injuries resulted from the "frank incident" of the explosion, and in particular, the alleged fall. The evidence adduced by the appellant did not support the allegation that the injuries arose from the general nature and conditions of his employment. His Honour made no specific reference to this issue in the judgments. However, this does not amount to a failure to discharge the judicial duty to consider all the URJ IOSIF v S and M MOTORS PTY LTD (In Liquidation) (Beazley JA) 15 evidence and refer to that which has been accepted or rejected, as it was not critical to the case: Mifsud v Campbell (1990) 21 NSWLR 725 at 728 per Samuels JA. The appellant has failed to show that Manser J erred in point of law in either 5 judgment. The appeal should be dismissed with costs. Appeal dismissed with costs. 10 Counsel for the appellant: B O' Sullivan Solicitors for the appellant: Peter Bouzanis and Associates (Bankstown) Counsel for the respondent: J Poulos QC 15 Solicitors for the respondent: Abbott Tout