BRENNOCK v FYVIT PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER and BEAZLEY JJA, and SHEPPARD AJA 26 August 1997, 27 October 1997 [1997] NSWCA 49 Workers Compensation — Claim for weekly compensation — Whether injuries caused relevant incapacity — Medical evidence — Whether trial judge misunderstood medical evidence — Determination of post-accident capacity Evidence — Credibility This appeal arose from a decision of the Compensation Court in which an award had been entered for the respondent on the appellant's claim for weekly compensation. The appellant was the managing director of the respondent company, which engaged in speculative building work. The appellant performed labouring and administrative work for the company. On 19 May 1990 the appellant fell 4-5 metres from the roof of a construction site, striking his head during the fall. He suffered significant head injuries and whilst hospitalised exhibited symptoms typical of frontal lobe brain damage. The issue on appeal, on questions of both fact and law, is whether the trial judge erred in finding that the appellant's injuries did not cause relevant incapacity. The central contention was that the trial judge had misunderstood the medical evidence such that the trial miscarried. The appellant also contended that the trial judge's findings of credit adverse to the appellant were consequently flawed and thus did not attract the application of the principle in Abalos v Australian Postal Commission (1990) 171 CLR 167. Held, allowing the appeal: 1) While a finding based on a witness's credit is, except in limited circumstances, immune from appellate interference, this case fell within the limited circumstances referred to in Abalos because the trial judge misunderstood the medical evidence; 2) The trial judge did not properly understand the medical evidence because she did not determine the appellant's case on the basis that his post-accident work capacity had to be determined by way of comparison with the work performed prior to the accident. The respondent, by way of cross appeal, contended that even if the appellant was suffering from any incapacity for work, he was not employed by the respondent at the time of the accident. Held, dismissing the cross appeal: The resolution of this issue depended upon the acceptance or rejection of the evidence of Mrs Brennock and Mr Byrnes that a group certificate which had been issued to the appellant was issued in error. As the trial judge made no adverse finding as to the credit of these two witnesses on any matter, her Honour's finding should not be interfered with. Meagher JA I agree with Beazley JA. Beazley JA This is an appeal from a decision of O'Toole J in the Compensation Court of New South Wales in which her Honour entered an award for the respondent on the appellant's (applicant's) claim for weekly compensation. The issue on the appeal, which is on questions of both fact and law, is whether the trial judge erred in finding that the worker's injuries did not cause relevant incapacity. The central contention on the appeal was that the trial judge misunderstood the medical evidence in a significant way such that the trial miscarried. The appellant also contended that the trial judge's findings of credit 2 UNREPORTED JUDGMENTS adverse to the appellant were consequently flawed and thus did not attract the application of the principle in Abalos v Australian Postal Commission (1990) 171 CLR 167. Background The appellant was born on 7 September 1951 and was educated to Year 9. He gained trade qualifications as a carpenter and shortly thereafter commenced building work on his own account. He established two companies through which he carried on his building work one being the respondent, of which he was the managing director. By 1990, the respondent was carrying on speculative building work on the Central Coast of New South Wales, engaging 30 - 40 employees and subcontractors. The appellant performed both labouring and administrative work for the company. On 19 May 1990 the appellant was working on the construction of factory premises at West Gosford. He was on the roof putting up steel purlings when he fell 4 - 5 metres, striking his head during the fall. His significant injuries were a left occipital fracture, a left spheroid fracture and fractures of the L2, 3 and 4 left transverse processes. A CT scan revealed a right frontal haematoma 2cm in diameter, associated with bilateral frontal lobe contusions and a subarachnoid haemorrhage. He was initially treated at Gosford Hospital and then transferred to the Royal North Shore Hospital. He was discharged 10 days later to the care of Dr Buckley, a general practitioner specialising in rehabilitation of brain damaged patients at Mount Wilga Private Hospital where he was a patient until 12 June 1990. Whilst hospitalised, both in Royal North Shore and Mount Wilga, the appellant was aggressive, impulsive, perseverative and lacked insight - typical symptoms of frontal lobe brain damage. The appellant's lack of insight caused him to be difficult to manage because he retained reasonable cognitive function. He was found to be totally anosmic, which is also an indicator of frontal lobe damage. The appellant returned to some work shortly after his discharge from Mount Wilga. The Appellant's Evidence The appellant gave evidence that he had pain in the head and back and suffered from severe headaches. He said he could not concentrate and could not do the administrative work he had done previously. He said he occasionally engaged a subcontractor, but the job of engaging and organising contractors and subcontractors was now undertaken by someone else, a Mr Brian Munday. His short term memory was poor and he had difficulty remembering names, facts, figures and dates. He said he made continuous efforts to return to work up until 8 August 1993, the date upon which payments of weekly compensation ceased. The appellant said he experiences headaches on an almost daily basis. The headaches commence as a dull ache and get "really severe', lasting a few hours and which he normally sleeps off. He also suffers neck pain. His concentration is poor, he gets tired and concentrating causes his headaches to worsen. He said that he could not "sit down and negotiate with people and talk to people". If he has to read something he will miss key words or figures in a contract. He has become aggressive and has a "very low tolerance level with a lot of people". During the course of his evidence, the appellant had poor recollection of the dates that he had worked and the extent of the work he had undertaken. The general thrust of his evidence, however, was that he was "very limited as to what [he] could do". He said that throughout 1991, 1992 and 1993 he did a range of physical work - from URJ BRENNOCK v FYVIT PTY LTD (Beazley JA) 3 driving a bobcat, to using a shovel and pouring concrete. He said his ability to work varied from | - 2 hours to 1 - 2 days. He said even on "good days" he would still have a mild headache and pain in his back. He considered that, since 1993, he had had more bad days than good. He consistently described the work he had done as "a little bit of physical work" involving the bobcat, carpentry and concreting. In relation to the concreting he said he could "only virtually screed concrete" and had trouble using a shovel. He said he could "finish concrete off with a machine". He said that he could not do "anywhere near as what I used to be able to do and what I do is only for a short period of time". He had particular difficulty with "any work that's heavy or physical and co-ordination, using machinery". In cross-examination he described his problems as being with his back, neck and head. Constant heavy lifting caused problems with his low back. He said he could manage times varying from 5 minutes to a couple of hours doing lifting work. He said there were a number of lifting jobs he could do and had done but he would get "extra pain" and would have to stop. He agreed he had used an eight pound sledge hammer, but said that had been for a very short period of time. The Video Evidence The respondent adduced evidence by way of video, involving approximately 6 hours of film. By consent, this Court was shown an edited version of the film and viewed part of it. The video recorded the appellant engaging in activities at different times during the following days and approximate periods of time: 7 April 1993 over 5 hours; 8 April 1993 over 9 hours; 1 June 1993 over 6¥2 hours; 3 June 1993 over 8 hours; 8 June 1993 over 8 hours; 4 November 1993 over 4 hours; 9 March 1994 over 3 hours; 10 March 1994 over 6 hours; 11 March 1994 over 7 hours; 25 January 1995 (time unspecified); 30 January 1995 over 3 hours. The activities which were filmed involved the appellant driving from his home to three different building sites, including one at the Gosford Railway Station; speaking to workers on the site; walking around the sites; doing some sweeping on site; operating a forklift; doing some formwork; lifting and carrying timber roof trusses; unloading; assisting a carpenter to erect roof trusses; carrying tools from a building site to a storage area on site; operating a grinder to remove rust from an RSJ; operating a bobcat; levelling sand with a shovel; operating a "whacker packer", a machine which vibrates the ground and compacts it; screeding the ground; moving reinforced steel with one other workman; covering a section of the building site with plastic; and taking measurements on site. In addition, he was videoed going to the bank; going to various venues to have coffee, lunch or a drink; going to the post office; going to a real estate agents office; carrying documents to or from these offices; going to the respondent's offices; and driving to various places, including a building supplies shop. The video revealed that the appellant undertook work activities on the following days: on 7 April 1993 he measured a driveway; on 8 April 1993 he may have done some formwork; on 3 June 1993 he did "bits and pieces" on the Gosford Railway site for approximately 3 hours. On this day he also drove to 2 other properties, where he was seen talking to workers on the site, he also climbed up onto the roof on one of the sites, he went to a building supplies shop, a bank and a post office. On 8 June 1993 he did formwork for a total of about 342, hours, 2% hours in the morning and | hour in the afternoon. On this day he also spent time talking to employees, he went to another site where he again spoke to 4 UNREPORTED JUDGMENTS employees, went to a building supplies shop, a bank and a real estate office. On 10 March 1994 the appellant worked on site for approximately 5 - 6 hours. The Medical Evidence As the central plank in the appellant's case was that the trial judge misunderstood the medical evidence, it is necessary to deal with that in some detail. Medical evidence was adduced by way of reports from Dr Buckley, a general practitioner specialising in rehabilitation medicine with approximately 20 years experience in that field, particularly with brain damaged patients; Mr Rawling, a clinical neuropsychologist; Drs Wolfenden and Garrick, neurologists; Drs Patrick and Scarf surgeons; Dr Ganora, a general practitioner specialising in physical and rehabilitation medicine; and Dr Spinks, a general practitioner. The appellant was examined on 6 occasions by 4 doctors on behalf of the respondent. No medical evidence was adduced from them. Leaving aside the evidence of Dr Buckley and Mr Rawling, the neurological evidence was that the appellant had CT evidence of quite marked damage to the right frontal lobe and of some slight degree of damage to the left frontal lobe. According to Dr Wolfenden, this would "seriously affect his ability to plan forward and to execute tasks in proper sequence to achieve a desired aim". In providing an assessment of the degree of impairment which the appellant suffered as a result of the brain damage, Dr Wolfenden relied upon the American Medical Association's "Guides to the Evaluation of Permanent Impairment" 3rd Edition. Based upon the scaling specified in the Guides, he classified the appellant as being in Category 2, that is, as having "a degree of impairment of complex, integrated cerebral functions such that daily activities need some supervision and/or direction". He noted that the impairment of the whole person quoted for that category was 20-45 per cent. Dr Wolfenden pointed out that identical degrees of brain damage will produce greatly differing functional impairments in different people depending upon the degree of function to which the brain is normally put. Thus, a given degree of brain damage could produce much less impairment in a person doing simple undemanding manual tasks of a repetitive nature than the same degree of brain damage would produce in a person reliant upon complex cerebral functions for memory, judgment and forward planning. Given the appellant's background as the managing director of a construction company, Dr Wolfenden considered that he would fall into the latter category. He assessed the appellant as being at the higher range of impairment for that category, that is 45 per cent, stating that that assessment was particularly dependent upon the alteration described in the appellant's capacity for employment. Dr Garrick, neurologist saw the appellant in September 1994. An EEG, performed at about the time of examination, which showed frontal slow wave activity with a right sided preponderance and some paroxysmal tendency on hyperventilation. Dr Garrick diagnosed the appellant as having suffered a significant cerebral injury with predominantly right frontal damage. He based his diagnosis upon the EEG, the psychometric testing which had identified patchy abnormalities consistent with frontal lobe damage, and his own examination. As to the latter, Dr Garrick reported upon the appellant's slightly fatuous and irritable effect during examination, but noted that conversational speech was excellent and that there was no obvious disturbance of judgment or orientation. Dr Garrick was of the opinion that the appellant's neurological state would not improve in the future. He considered that his disability was related mainly to the URJ BRENNOCK v FYVIT PTY LTD (Beazley JA) 5 "intellectual and cognitive changes from his injury". He said that this would be best timed by repeated psychometric assessment. The other neurological evidence was to the same effect. Dr Ganora, a general practitioner, who specialises in physical and rehabilitation, noted that there was radiological, historical and neuropsychological evidence of frontal lobe damage with residual impairment of cognitive function. He considered that there was continuing neuropsychological evidence of persisting cognitive impairment affecting the higher executive functions manifested as impairment of insight, planning and concentration. He assessed the appellant as having a permanent impairment of brain function in the order of 40-45 per cent. He considered the appellant's headaches to be post-traumatic in nature. Mr Rawling, clinical neuropsychologist who carried out neuropsychological testing in December 1991, considered that the appellant had a 40 per cent impairment of the whole person due to his brain damage, but noted, as did Dr Wolfenden, that there were difficulties in giving any such assessment. Mr Rawling's opinion was based not only upon his own testing, but also the CT scans and the appellant's behaviour in the immediate post accident period. Mr Rawling described the appellant's deficits as having "produced a mild to moderate degree of impairment on standard tests of intelligence and memory". He further observed that at a behavioural level "his frustration tolerance was markedly reduced leaving him intolerant of stress and easily irritated". He noted that the appellant, as at the date of assessment, demonstrated a less than optimal insight into the nature and extent of his disabilities. Mr Rawling was cross-examined as to the validity of his opinion, having regard to what was alleged to be the demonstrated evidence that the appellant had worked for 8-9 hours a day on a regular basis and demonstrated no tiredness or lethargy. Mr Rawling did not accept that this would affect his opinion. He commented that an assessment could not be made based on a sample of one day or even a week. He said "you've got to do it over time and you'd be looking for errors of judgment, poor decision making, inability to... manage problems, to deal with difficult clients". He did not accept that five hours of film over three years would be enough of a sample of the appellant's performance to enable a proper assessment of his capabilities and abilities. Mr Rawling also doubted whether a film of that nature would be sufficient to demonstrate the matters of significance in respect of frontal lobe damage. As he commented, all one would be likely to see "would be a man moving around a building site". Mr Rawling observed, and I should note that this seems to be a point completely overlooked by her Honour, that the appellant had retained intellectual skills and he could still perform trade skills. What the appellant required because of his brain damage was for "someone [to be] there really acting as his frontal lobe, someone to direct and control him". He stated that patients with frontal lobe damage could perform in specific small time units, but if their performance was assessed over time one would find "a great amount of variability". Mr Rawling's evidence was also challenged on the basis that his neuropsychological assessment was dependent upon the veracity of the appellant. Mr Rawling accepted the proposition that results of such testing could be affected in that way, however, he said the test was structured to eliminate falsification to overcome that possibility. In order to demonstrate how this had been achieved, he gave examples of results in the testing which were not likely to be the result of fabrication. 6 UNREPORTED JUDGMENTS There were three reports of Dr Buckley in evidence. In his first report, dated 30 July 1991, Dr Buckley recorded that at the time that the appellant was transferred from the Royal North Shore Hospital to Mount Wilga he was difficult to manage and that "[t]his was due to his reasonable cognitive function but with a total lack of insight into his brain injury". Dr Buckley reported that the appellant had returned to work shortly after his discharge from Mount Wilga but had encountered difficulties with his concentration, tiredness and headaches. He also had some difficulties at work due to his loss of temper and his ability to maintain relationships with his staff and clients. Dr Buckley noted that although he had been at work for a significant period over the 12 months between the date of his discharge and the date of his report, the appellant relied upon his employees rather than his own business and building acumen. He noted that he had a number of senior employees who were loyal to him, a factor which had been of assistance in enabling the appellant to continue with his business. Dr Buckley saw the appellant on three more occasions before providing his next report of 3 August 1994. He noted that he continued to have poor concentration and marked fatiguability, both associated with a poor short term memory. He was of the opinion that "[d]ue to on-going cognitive deficits he is unfit for employment on the open employment market for the foreseeable future". He also commented that it was common for people with such cognitive deficits to ascribe their problems to physical symptoms such as headache and back pain, a feature which he said the appellant exhibited. In his final report dated 2 February 1995, Dr Buckley devoted some attention to the reasons why the appellant focused upon his physical deficits when it was cognitive deficits due to brain damage that were really limiting his capacity to work. He commented "[i]t is simply too much to ask the brain damaged person whose type of brain damage specifically causes reduced insight, to accept such a position in public. However, it does explain the real reason why Mr Brennock has had difficulty working over the last few years, he might be seen carrying out some physical tasks, and why he is unlikely to obtain sustained employment in the building industry in any capacity, including that of labourer". In cross-examination Dr Buckley was questioned about the basis of his assessment. In particular, it was suggested that, assuming the appellant was outside the profile he had of the appellant, that is, as a person who was not able to manage a construction company, his assessment of the appellant's mental capacity could not stand. Dr Buckley responded that he did not believe that the appellant could conduct his own business successfully over an extended period of time. He considered that he could not co-ordinate the running of a building project appropriately. He said that if the appellant was attempting to run a company himself, he would assume that the appellant would lose money unless he was doing it with major checks and balances, for example from an accountant or other involvement. He conceded however, that if he had "really" successfully co-ordinated building projects his argument was difficult to sustain. Lay Evidence of Incapacity Dr Buckley's response, to which I have just referred, was in answer to questioning which was based on an assertion by the cross-examiner that the respondent's profit had increased threefold since the accident. No evidence was adduced to support the facts asserted in this cross examination. In contrast, the appellant called the respondent's accountant, Mr Byrnes. He gave evidence that since the accident the respondent "has been going down to the extent that the URJ BRENNOCK v FYVIT PTY LTD (Beazley JA) 7 bank... is forcing the sale of the main asset of the company which is rented properties. There will be a deficit situation in the proceeds of the sale...It's only a matter of time before the bank thinks it prudent to force the sale and possibly consider liquidation ". Mr Byrnes also gave evidence that, since the accident, the appellant had found it difficult to answer questions for him, for example, as to whether things were income or not income and the like. He said that if he was attempting to discuss a business problem with him, the appellant would be able to provide correct information to start with but that he "seems to wander off; his attention, I find it hard to keep a serious conversation going with him for a long time on business". The appellant also called a Mr Randall, who owned a construction company and had been in the construction business for 40 years, to support his case that he was incapable of adequately managing and supervising his business. Mr Randall had only become acquainted with the appellant since the accident. He said that over a number of social occasions he had discussions with the appellant about building work and in particular the pricing of the contract for the renovation of the Gosford Railway station. He said he discussed with the appellant some problems he could see arising from the plans. He said that the appellant became "aggressive at times", "quite agitated" and "couldn't concentrate on what he was doing". "He wasn't able to sit down normally and discuss the problem". During his cross examination, Mr Randall gave evidence that it would not normally be expected, even in a small company, that a person who was supervising two or three construction jobs would also be involved in doing any of the labouring work on the job. He also said that a bobcat was an easy vehicle to drive although it was necessary to be careful whilst doing so. Trial Judge's Treatment of the Evidence The trial judge disbelieved the appellant. This was the essential foundation for her rejection of the appellant's claim that he was incapacitated from performing the work he had done prior to the accident. A finding based on a witness's credit is, except in limited circumstances, immune from appellate interference: Abalos v Australian Postal Commission; Devries v Australian National Railways Commission (1993) 177 CLR 472. Counsel for the appellant submitted, however, that this case falls within the limited circumstances referred to in Abalos, because the trial judge misunderstood the medical evidence. The trial judge dealt with the appellant's evidence in these terms: "The [appellant's] oral evidence includes surmise, reconstruction, and broad generalities. He was not frank with the Court, and is not a reliable witness. If the memory lapse which Mrs Brennock describes was of clinical significance, a medical report indicates that the phenomenon occurred long ago. There is other medical evidence from which I infer that since 19 May 1990, there has been a lightening of the [appellant's] affect, an improvement in his... memory... ". The reference to the memory lapse of which Mrs Brennock gave evidence was a reference to her response to a question that she give an example of how the appellant's short term memory was, as she had described it as "pretty poor". Mrs Brennock said: "We could watch a movie one night and the very next night he'd ask to watch the movie and I 'd have to explain to him that we've already seen that particular show. Even - I could tell him where I 'm going to be of a day, a few hours later he is phoning me up looking for me, has completely forgotten that - what I told him earlier, where I would be". 8 UNREPORTED JUDGMENTS Mrs Brennock's evidence on this matter was neither contradicted nor cross-examined. The trial judge made no finding about Mrs Brennock's credibility. She merely found this evidence not to be of assistance because it related to circumstances long past. Her Honour did not distinguish between the two parts of Mrs Brennock's answer, but whatever be the intended extent of the reference, there is nothing in the medical reports which supports her conclusion that the phenomenon occurred long ago. Therefore, her Honour dismissed this evidence as irrelevant on a basis which was not open to her. This had a compound effect on her determination. First, her Honour treated as irrelevant evidence which was relevant to a central issue in the case, namely, the appellant's capacity to perform the work he performed prior to the accident. Secondly, her Honour's dismissal of this evidence was an integral part of her reasoning as to the appellant's credit. Her Honour's assessment of the appellant's credit was based upon two other factors - the video evidence and the medical evidence. The video evidence showed that the appellant, on the occasions on which the video was taken, was able to perform a range of tasks, including work on a building site. Her Honour concluded that he was "able to work normally on construction sites". A video can, of course, be a powerful evidentiary weapon. However, it is necessary when assessing such evidence to do so in light of the question in issue. It is also important to be wary about the capacity of such evidence to convey a false or misleading impression. It is vital not to make assumptions or to draw inferences as to the generality of the evidence presented on the video unless there is a firm evidentiary basis upon which to do so. When the activities on the video are analysed, the most that is revealed is that it was on 5, or possibly 6, of 13 days in a 3 year period that the appellant was observed doing physical work on a building site. It was only on 2 of those days that he was possibly observed doing anything like a full day's work. Indeed, to the extent that it might be relevant and to the extent that it could be discerned, on one of the occasions that the appellant was to be observed walking away from a building site, he appeared to be walking stiffly. Contrary to the trial judge's finding, the video evidence is entirely consistent with the appellant's evidence that the extent to which he could work varied from 1 - 2 hours a day to | - 2 days a week and that he could only do a limited range of activities. It must be remembered that it was not the appellant's case that he could not engage in physical activity or in tasks of a clerical or administrative nature. Therefore, there was nothing inconsistent in the appellant being seen on the video undertaking tasks such as going to a bank or a post office, driving a car or using a mobile phone. The question in issue was whether he was able to manage a construction business. The video did not assist on this issue. As to the medical evidence, I have already referred to her Honour's inference that since the date of the accident there had been an improvement in the appellant's memory. Her Honour also preferred the evidence of practitioners trained in neurological medicine over that of Dr Buckley whom she noted was not a neurologist, although her Honour made no express comment in relation to Dr Ganora, who is also a general practitioner. It would seem however, that her Honour meant to prefer only the evidence of Drs Wolfenden and Garrick. Her Honour recorded that as early as February 1992, there was no neurological sign to corroborate the appellant's complaints. She accepted the opinion of Dr Wolfenden that identical degrees of brain damage can have vastly different effects. Finally, she referred to Dr Garrick's report of September 1994 that URJ BRENNOCK v FYVIT PTY LTD (Beazley JA) 9 "various forms of testing would be necessary if one wished to chart, definitively, the [appellant's] recent intellectual progress". In my opinion, her Honour misunderstood the neurological evidence. That evidence dearly established that the specific problems which arise from frontal lobe damage are short term memory deficits, the ability to effectively forward plan and execute tasks sequentially, and usually, personality deficits relating to irritability, aggression, and an inability to get on with people. These were all matters which would be likely to impact on the appellant's ability to manage a construction company. There was evidence that the appellant suffered from each of these deficits. However, her Honour did not deal with them. The only matters of neurological significance with which she dealt was the evidence that as early as February 1992, there was no neurological sign to corroborate the appellant's complaints and the inference which she drew that there had been an improvement in the appellant's "memory". As to the first, her Honour misunderstood the neurological testing referred to. That testing was the basic testing undertaken of physically demonstrated neurological signs. It had nothing to do with the testing necessary to assess frontal lobe damage. As to the second, her Honour's reasoning is flawed in a number of respects. First, she did not distinguish between short and long term memory. This is a critical distinction when dealing with frontal lobe damage. More significantly, the neurological evidence does not support the inference drawn. Dr Wolfenden, in his report of 20 February 1992, stated that "the most notable feature in [the appellant's] case is his very poor memory retention". This opinion was based upon testing which Dr Wolfenden carried out as well as on the psychological testing conducted by Mr Rawling. There is nothing in Dr Garrick's evidence which enabled her Honour to draw the inference she did. Further, her Honour, in my opinion, has not understood Dr Wolfenden's statement that the same degree of brain damage can affect different people differently. Dr Wolfenden explained this statement by reference to the case of a person carrying our simple manual tasks to one involved in tasks requiring complex cerebral functions for memory, judgment and forward planning. The appellant's pre-accident work capacity involved the latter. Her Honour fails to have appreciated this. In my opinion, the reason why her Honour did not properly understand the medical evidence is because she did not determine the appellant's case on the basis that his post accident work capacity had to be determined by way of comparison with the work he performed prior to the accident. This is apparent from her Honour's finding on present capacity. She said: "On the film, alone, I have no difficulty concluding that the applicant is able to work normally on construction sites. Clothed as a construction worker, he knelt, squared, rotated his spine, used both arms to lift objects above his head, and walked briskly. The building work which the applicant performed also required hand-eye co-ordination, and agility over rough ground, strewn with building materials. The applicant moved normally, and apparently, had no fear that spontaneous vigorous movement would cause him pain, discomfort, or any difficulty." Nowhere does her Honour refer to the appellant's pre-accident capacity. Nor does she refer to the evidence relevant to the interference with that capacity and the economic consequences which followed. She does not, for example, deal with the evidence of Mr Byrnes, the respondent's accountant, who gave evidence of the differences he observed in the appellant post accident; or with Mr Randall's evidence as to his observations of the appellant to deal reasonably with any 10 UNREPORTED JUDGMENTS discussion about work even in a social atmosphere. Nor does her Honour deal with the neurological evidence which was relevant to this issue, that is that the type and extent of brain damage suffered by the appellant interfered with his work capacity as it was prior to the accident. The appellant never purported to make out a case that he was incapacitated from engaging in a wide range of activities. He is neither bed ridden nor housebound. He has retained a large degree of his physical capacity. Relevantly, he has also retained a significant degree of his cognitive capacity. There was no suggestion in his case that he cannot undertake banking transactions, or attend to some tasks at a post office. His case was that the disturbance to his frontal lobe capacity has interfered with his capacity to adequately carry on the work as the owner of a construction company as he had prior to the accident. All the evidence indicated that the appellant had suffered such interference. Apart from the video, the respondent did not call any evidence as to the appellant's relevant work capacity. The cross-examination of the appellant reveals that the respondent sought, through the video, to establish that the appellant was supervising and directing workmen on the building sites, and that he could not work consistently for 8 - 9 hours a day. However, there was no evidence to support these assertions. All that could be seen on the video was the appellant talking and walking around the site on the days to which I have already referred. Nor was there evidence that the appellant's business had continued to operate successfully under the appellant's supervision and control. The evidence was all the other way. Likewise the evidence as to the appellant's capacity to manage and supervise his business all pointed in the direction that he could not do so. The only suggestions to the contrary came from unproved assertions made in cross-examination. In my opinion, the appellant has demonstrated that her Honour erred in her understanding of the relevant medical evidence. Accordingly, subject to the question of whether the appellant was employed by the respondent, I am of the opinion that the appeal should be allowed. Was the Appellant Employed by the Respondent? The respondent, by way of cross appeal, contended that even if the appellant was suffering from any incapacity for work, he was not employed by the respondent at the time of the accident. The evidence on this issue was limited. The appellant's group certificate for the year ended 30 June 1989, was issued in the name of Wantop Pty Ltd. Mrs Brennock had been responsible for its issue. She, and the respondent's accountant, Mr Byrnes, gave evidence that the certificate was issued in error and that the appellant remained employed by the respondent in that year, as in previous years. The trial judge accepted that this was the case. An accountant called by the respondent gave evidence that an inspection of the respondent's books revealed that there were some payments made by the respondent to the appellant in the year in question but that there was no entry in its books of account for that year which indicated that the appellant had been paid any amount by way of wages. He said, however, that there were some inaccuracies in the books. He also said that he had not included the appellant on a list of employees which he had caused to be drawn up for the year ended June 1990 because there was no group certificate for him. The respondent had issued group certificates to the appellant in earlier years. However, the amounts included in the books of account by way of cash payments did not always reconcile with the amount specified in the group certificate. There was URJ BRENNOCK v FYVIT PTY LTD (Sheppard AJA) 11 also in evidence a Certificate of Workers Compensation insurance in favour of Wantop for the period 16 June 1989 to 16 June 1990 which was described on its face as a "new business policy. Counsel for the respondent referred to this policy of insurance, submitting that the fact it was a new policy supported the view that there had been a structural change in the appellant's two companies such that for the 1990 year he had ceased to be employed by the respondent and was employed by Wantop. It is not apparent on the face of this certificate that the appellant was covered by this policy and there was no other evidence directed to it. In my opinion, the resolution of this question depended essentially upon an acceptance or rejection of the evidence of Mrs Brennock and Mr Byrnes that the group certificate had been issued in error. Her Honour made no adverse finding as to the credit of these two witnesses on any matter. Indeed, to the extent that she could be said to have made a finding on this issue, she accepted their evidence. In those circumstances, I am of the opinion that her Honour's finding should not be interfered with: see Abalos. Accordingly the cross appeal should be dismissed with costs. In my opinion, therefore, the orders of the Court should be 1. Appeal allowed. 2. Order of the Compensation Court quashed. 3. Matter remitted to the Compensation Court for rehearing. 4. Respondent to pay the appellant's costs of the appeal and of the hearing below, but is to have, if so qualified, a certificate under the Suitors' Fund Act 1951 (NSW). 5. Cross-appeal dismissed with costs. Sheppard AJA I agree with Beazley JA. Appeal allowed. Order of the Compensation Court quashed. Matter remitted to the Compensation Court for rehearing. Respondent to pay the appellant's costs of the appeal and of the hearing below, but is to have, if so qualified, a certificate under the Suitors' Fund Act 1951 (NSW). 5. Cross-appeal dismissed with costs. RYN Counsel for the appellant: J Leslie QC/W Strathdee Solicitors for the appellant: Neil Lawson & Co Counsel for the respondent: J H Shore QC/Roche Solicitors for the respondent: Glover & Glover