GEBERT v STATE TRANSIT AUTHORITY OF NSW SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY P, HANDLEY and BEAZLEY JJA 16 July 1996, 16 July 1996 [1996] NSWCA 205 WORKERS' COMPENSATION — nature and condition of employment — aggravation of injury PROCEDURE — procedural fairness — relevant cross-examination: Browne v Dunn (1894) 6 R 67 The appellant, a bus driver, suffered an injury to his left leg at work on 13 December 1986 entitling him to compensation. The appellant returned to work and after a few years was promoted to inspector. He alleged that while in that position the repeated climbing on to and descending from buses aggravated the injury to his left knee and caused an injury to his right knee. The trial judge was not persuaded that the nature and condition of the worker's employment had caused an injury to the right knee or aggravated the injury to the left knee. The appellant contended that the trial judge had misdirected herself by referring to disease of gradual onset rather than the exacerbation of a pre-existing degenerative condition or trauma-affected knee. He further contended that contrary to the rule in Browne v Dunn (1894) 6 R 67, the appellant had not been cross-examined to impeach the credibility of his account of the condition of his knees. HELD, dismissing the appeal: (1) The trial judge had not misdirected herself on the issues to be determined; (2) There was no procedural unfairness of the kind encapsulated in the so-called rule in Browne v Dunn (1894) 6 R 67; (3) The decision of the trial judge could not be disturbed. Mahoney P Ex tempore I will ask Handley JA to give the first judgment. Handley JA This is an appeal from awards made by O'Toole CCJ on the ground that her Honour's awards were inadequate. The appellant worked for many years for the State Transit Authority of New South Wales or its statutory predecessors, initially as a bus driver and then, after March 1990, as an inspector. He sustained a frank injury at work on 13 December 1986 which affected his left leg. There is no doubt that the appellant is entitled to compensation for that injury and no question directly turns on that issue. Following that injury and medical treatment, including an operation by Dr Mahoney, the appellant returned to work as a bus driver and some years later was promoted to inspector. The appellant's case before the trial judge, which has been repeated in this court, was that the nature and condition of his employment as an inspector involving repeated climbing on to and descending from buses caused an injury to his right knee and aggravated the earlier injury to his left knee. Her Honour was not satisfied that this case had been made out for reasons which she gave which included the absence of any report of a complaint by the worker during his medical treatment over the three years he was working as an inspector. There were also gaps in the evidence adduced on behalf of the worker to which her Honour drew attention in her reasons. Ultimately she was not persuaded that the 2 UNREPORTED JUDGMENTS nature and condition of the worker's employment had caused an injury to the right knee or aggravated the earlier injury to the left. Mr McKenzie, who appeared for the appellant, submitted that her Honour misdirected herself when she said: "The applicant does not allege a disease of gradual onset and his counsel argues that the nature and conditions of employment between the relevant period and, in particular, the applicant's favouring one leg caused injury to the other knee". Mr McKenzie suggested that her Honour's reference to a disease of gradual onset indicated that she had failed to consider the worker's case which was that the nature and condition of his employment had aggravated, accelerated or exacerbated the pre-existing degenerative condition in his right knee and a pre-existing degeneration and trauma affected condition in his left knee. I am not persuaded that her Honour fell into any such error. Indeed, at p61 when expressing her final conclusion on this aspect of the case she said: "On the whole of the evidence I am not persuaded that the applicant's left thigh or knee was injured or its condition exacerbated by the nature and condition of his employment". indicating that she had correctly directed herself as to the issue before her on the left knee. There is no reason to suppose therefore that she fell into error in considering the applicant's case on his right knee. The second matter relied upon in support of the appeal was the failure, so it was said, of counsel for the employer to relevantly cross-examine the worker contrary to the rule in Browne v Dunn. The failure relied upon relates to the period during which the worker was employed as an inspector and the extent to which he was then experiencing difficulties with his right knee "However, at AB29, 30 the worker was cross-examined by Mr Sternberg, appearing for the employer, about the condition of his right knee and the extent to which it had been permanently affected by a motor vehicle accident in Mauritius in 1960. He was also asked questions about the extent to which the pain in his right knee was getting worse over this 3 year period and the conditions in his right ankle. The worker had been admitted to hospital in November 1991 complaining of pain and symptoms in his right ankle, but it has not been suggested that these were in any way employment related. Mr McKenzie was asked by the Court to identify the questions which he submitted should properly have been asked of the worker in cross-examination, but his answers indicated that the questions were of a medico-legal nature which could not properly have been asked of the worker. In those circumstances I have not been persuaded that the trial was vitiated by procedural unfairness of the kind encapsulated in the so-called rule in Browne v Dunn. The appellant's case at the trial in relation to his right knee was affected by the evidentiary gaps identified by her Honour at AB60. It appears that an x-ray of the right knee was taken on 13 November 1990, which is referred to in the report of Dr Mahoney of 17 February 1994. The result of the x-ray was there described as: "Degenerated changes were apparent and there did appear to be a loose body in the knee". The history given by the worker to Dr Mahoney in November 1993 was that his right knee pain commenced in 1991. It is apparent, therefore, that whatever was visible in the 1990 x-ray related essentially either to degenerative changes or the effects of the motor vehicle accident. URJ GEBERT v STATE TRANSIT AUTHORITY OF NSW (Mahoney P) 3 There was medical evidence before her Honour which would have supported an award for the worker in respect of the right knee, treating its condition after he ceased work in April 1993, as having been caused in part by the aggravation of the pre-existing degenerative and arthritic condition. On the other hand, there was other evidence before her Honour, particularly in the report of Dr Edwards, which supported the view that the condition in the worker's knee was not due at all to the nature and condition of his employment, but was the result of degenerative changes. Her Honour was not satisfied that the nature and condition of the worker's employment had contributed to the condition of the worker's right knee and the evidentiary gaps she identified, which I have previously referred to, were particularly important. Ihave been unable to discern, any error in her Honour's approach which would entitle this Court to intervene. In my judgment the appeal in relation to the condition of the right knee therefore should fail. The appellant's case in relation to his left knee is in no different position. Her Honour was not persuaded of the necessary causal link having regard to the condition of this knee prior to the worker undertaking duties as an inspector, and its condition after those duties had ceased. In my opinion the judgment in this respect also was not affected by any error which would attract the intervention of this Court. In my opinion therefore the appeal fails on all grounds and should be dismissed with costs. Mahoney P I agree with what Handley JA has said. The case advanced by Mr McKenzie in respect of the right knee suggested in essence that its condition had deteriorated because of two things, either because of the additional weight put on the right leg because of the left leg's injury in 1986, or because of the conditions of work endured by the worker during the post-1987 period. The report of Dr Kim Edwards of 19 September 1995 was to the effect that that had not occurred. The doctor's opinion which her Honour, I think, accepted was that the difficulties arising from the right knee, such as they were, had been the result of an accident in the 1960s unrelated to work. That accident had set up a condition leading to osteoarthritis and to the pain and difficulties of which he complains subsequently, insofar as these were accepted by the judge. The doctor did not accept that the difficulties of the right knee came either from the condition of the left knee or from the conditions of work as an inspector, to which the worker pointed. The judge clearly accepted this and it was a view which was open to her. Reading the evidence, I would not come to a different conclusion. It was said that there was no cross-examination about the right leg. I put the submission in that brief form to comprehend what Mr McKenzie has said. However, to take the one example, in the course of cross-examination, it was put to the applicant that in fact the condition in the right knee had been getting worse since he had retired from work. He agreed to that. The inference was no doubt to be suggested that his right knee had been getting worse both before and after he had ceased work and accordingly it was not the work that was contributing to the condition of the right knee but the osteoarthritic condition of it due to the 1960 accident. I do not see that there is in this any basis for complaint of the kind made by Mr McKenzie in his submissions. 4 UNREPORTED JUDGMENTS As to the left leg, Dr Edwards suggested that it was quite stable and as I read his report of 19 September 1995, came to the conclusion that his work had not caused any aggravation or exacerbation of "any" pre-existing condition. This would include the left leg as well, I think, as the right leg. Her Honour clearly accepted that view; at least in view of what Dr Edwards had said, she was not convinced that the worker's case had been made out. As Handley JA has said, the case may well have gone the other way. But, reading the evidence and considering the terms of the judge's judgment, I do not think that I would come to a conclusion different to that from which she came. I agree with the order proposed. Beazley JA I agree with the reasons of Handley JA and the orders proposed by him. Mahoney P The order of the Court is, therefore, that the appeal is dismissed with costs. Appeal dismissed with costs Counsel for the appellant: T McKenzie Counsel for the respondent: P R Sternberg Solicitors for the appellant: Messrs Matthews Folbigg Solicitors for the respondent: Messrs Astridge & Murray