EMAIL LTD v STEDMAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, HANDLEY and STEIN JJA 27 March 1998, 29 April 1998 [1998] NSWCA 75 WORKERS COMPENSATION - whether sufficient reasons were given by the trial judge — apprehended bias — failure to ask trial judge to disqualify himself The worker (respondent) received an injury to his right ankle while working for the appellant. At soccer training, on the night before the injury at work, he experienced a minor problem with his foot. On the Saturday after the injury he participated in a soccer match as goal keeper. The appellant claimed that the respondent sustained fractures to his ankle at training in the week after the accident. The respondent denied this. The respondent received an award for compensation in the Compensation Court of New South Wales for weekly payments and lump sum payments under s66 and s67 Workers Compensation Act 1987. On appeal: (1) that the reasons given by the trial judge were insufficient; (2) that the trial judge questioned the appellant's witnesses in such a manner as to portray bias or prejudgment of the issue; (3) that there was no evidence to support the trial judge's finding that there was evidence that the nature of the employment incident was of the kind that could cause the extent of the injury. Held: (1) the trial judge gave sufficient reasons for being satisfied that the respondent had established his case. (2) neither the transcript of the evidence or the tape recordings played to the court reveal any indication of bias or prejudgment. In addition, the failure of the appellant to ask the trial judge to disqualify himself was fundamental in the appellant's claim of apprehended bias. Vakauta v Kelly (1989) 167 CLR 568 applied. (3) there was evidence to support the finding that the nature of the injury at work was of the kind that could cause the fracture. Mason P I agree with Stein JA. Handley JA I agree with Stein JA. Stein JA LEAVE TO AMEND This appeal was instituted on 28 February 1997. On 23 July 1997 a Notice of Appeal with 7 grounds was filed. At the commencement of the hearing, leave was sought to add 8 further grounds. Counsel for the respondent opposed leave being granted. Applications to extensively amend or supplement grounds of appeal seem to be commonplace in this court. Indeed, they appear to be almost the rule rather than the exception. I do not think that they should be encouraged. The original grounds included insufficiency of reasons (No 1), bias (Nos 2-6) and disallowance of a question in re-examination (No 7). The proposed additional grounds all appear to raise alleged errors of fact finding in the 2 UNREPORTED JUDGMENTS reasoning process of the trial judge in his approach to the evidence. Only one ground (No 13) raises a no evidence point. I would refuse leave to amend except in relation to ground 13, which is as follows: His Honour erred in holding (193 O) that there was evidence that the nature of the employment incident was of the kind that could cause the fractures, there being no such evidence. In my view there is much to be said for appellants, and those who advise them, to have a hard look at a case at the time that grounds of appeal are filed and not put off that assessment until shortly before the hearing. This is particularly so in an appeal such as this which is limited to questions of law (s32 Compensation Court Act 1984). Not to take a 'hard look' at the time that the grounds of appeal are formulated also works a potential detriment on the respondent. FACTS The respondent, Robert Graham Stedman, was working for the appellant, Email Ltd, on the 22 June 1995 when he suffered an accident. He went to get some pieces of scrap in order to finish the particular job he was engaged in and had to step over a track. As he did so his right ankle gave way. He heard a crack and felt severe pain. The injury and subsequent incapacity and disability lead him to make a claim for compensation. This was heard by Johns CCJ in February 1997 at Orange. His Honour delivered an ex tempore judgment at the conclusion of the trial on 21 February 1997. He made an award of weekly compensation and lump sum awards under s66 and s67 of the Workers Compensation Act 1987. Immediately following the accident the respondent attended a nurse at first aid where ice was applied to his ankle. Later that day he visited Dr Leslie, a general practitioner. His ankle was very painful with swelling on the lateral side. He was found to have a tear of the lateral ligament. An x-ray and physiotherapy were ordered. The x-ray showed no bony injury, although it was performed without an 'inversion strain film'. It did, however, reveal a small joint effusion and soft tissue swelling of the lateral side of the ankle. In the medical report (AB 136) the doctor speculates that the worker could have an injury to the dome of the talus. Because of a lack of response to physiotherapy, the respondent returned to Dr Dunlop (Dr Leslie's associate) on 30 June 1995. He was referred for a bone scan which took place on 6 July. This revealed a healing fracture involving the distal right tibia and also the talar dome. Accordingly, the ankle was placed in a short-leg plaster and the respondent was ordered off-work. Mr Stedman liked his sport and was a soccer goalkeeper. He played for Millthorpe in the Orange area. His evidence was that he had gone to training on the night before the work injury (June 21) and suffered a minor problem with his ankle which necessitated stopping training for 5 to 10 minutes. However, he completed training without any problem or restriction and the ankle was normal when he went to work the next day. It is appropriate to pause for a moment to emphasise that it is undisputed that the respondent suffered an injury to his right ankle at work on 22 June 1995S. There is ample proof of this, including evidence corroborative of the worker. The following Saturday (June 24) he played as goalkeeper for Millthorpe against CYMS, a Catholic young men's team. There was evidence from Mr Garvin (an insurance investigator) and Mr Brogden that they saw Mr Stedman playing. Mr Garvin watched part of the game involving Mr Stedman, in part another game on an adjacent field and was also involved with his wife who was catering at the sporting venue. Mr Garvin said that he did not recall the URJ EMAIL LTD v STEDMAN (Stein JA) 3 respondent having much to do in the game. He saw him touch the ball only very occasionally (AB 72). Mr Brogden was a spectator and watched some of the game in which the respondent was involved. He saw him kick the ball out of the goal mouth on one occasion (AB 82). Mr Brogden agreed that his concentration was on 'my game' (which was on an adjacent pitch) but every now and then he would have a look at Millthorpe's game. The respondent's evidence was that he took the field with his ankle strapped and without laces in his boot. He was not heavily involved in the game and there were not many attempts on his goal except one which went straight between his legs (AB 16). He agreed that he did not tell any doctor about the game. In vigorous cross-examination the respondent generally confirmed his evidence in chief adding that he never took goal kicks, but left that to the field players. Importantly for the appellant's case, the respondent was cross-examined to the effect that he attended training on the Wednesday after the match (28 June 1995) and that this was when he injured his ankle. Mr Stedman denied this saying that it sounded like the Wednesday before. The respondent's credit was strongly challenged. Mr Garvin gave evidence that he interviewed the respondent about 2 weeks after the match and saw that his leg was in plaster. At this stage he had instructions from the insurer in relation to Mr Stedman. Mr Garvin says that he said to the respondent 'I understand that you have injured yourself at training'. The respondent's version was that Mr Garvin said 'I'm told you've injured yourself at training'. Mr Garvin took no notes. The trial judge was critical of him for this omission. The appellant's case depended, in part, on the evidence of a Mr Campbell. He was also a member of the Millthorpe team. Mr Campbell recalled an incident at training where the players were having shooting practice at the respondent, the goalkeeper. On one occasion the respondent went to block a shot and then he left the field (AB 77). Mr Campbell was unsure as to the date of the training but placed it at the Wednesday after the Saturday game (viz 28 June). THE JUDGMENT His Honour posed the central question of whether, in the accident at work on 22 June 1995, the worker 'also suffered some minor fractures' or whether these fractures were suffered at soccer training on 28 June 1995. The trial judge canvassed the evidence relating to the respondent's participation in the game on 24 June. Although it was not the appellant's case that the match caused the fractures, the fact that he had played a full game after his work injury was part of the appellant's case (see Dr Opie AB 175). I reject the appellant's submission that the trial judge misconceived its case. The judgment demonstrates that this was not so. Johns CCJ found that nothing occurred at the game which would convince him that there was an event that caused a fracture. His Honour was perfectly entitled to make this finding. It matters not that this was not the appellant's case. His Honour then turned to the appellant's case that the fracture was caused by the training on 28 June. He said: The stronger contention of the respondent in this regard is that the applicant attended at training the following Wednesday, and that on that Wednesday he suffered symptoms to his ankle and the nature of what happened on the Wednesday was such that it caused the fracture. In other words, whatever he was doing on the Wednesday which he was thereafter unable to continue was the time 4 UNREPORTED JUDGMENTS that the fracture occurred. That evidence was given by Mr Campbell who was a member of the team and who says that this event took place on the Wednesday after the Saturday football match. Having noted the 'wide divergence' on the evidence on the issue, the trial judge referred to the attack on the respondent's credit. His Honour accepted the respondent's evidence (AB 195 H - J). Indeed, he gave extensive reasons why he accepted the credit of the respondent (AB 195 K - 196 D). His Honour found that it was 'unlikely that a fracture occurred at training on the Wednesday night [28 June] if, indeed, I accepted the evidence of Mr Campbell'. Even if Mr Campbell's version was accepted, the trial judge did not think his evidence was such as to draw the inference that there was an incident at training which caused the fracture. It seems clear to me that the trial judge was saying that he accepted the worker's evidence and, by inference, where it differed from other witnesses eg, Mr Campbell and Mr Garvin, he preferred the respondent. But his Honour went on to say that even if he accepted Mr Campbell, his evidence did not satisfy him that the fracture occurred at training on 28 June. For my part, I can see no error in this. When one examines Mr Campbell's testimony, it is apparent that the findings were perfectly available. In his judgment, Johns CCJ rejected Dr Opie's opinion that it was unlikely that the respondent would have been able to play a full game had there been prior fractures of the tibia and dome of the talus, because there was no evidence of upon what history the opinion was based. In particular, there was no evidence whether Dr Opie knew that the respondent was a goalkeeper rather than a field player. Neither Dr Opie (nor any other medical practitioner) was called to give evidence. REASONS As to ground 1, which alleges a failure to give adequate reasons, it seems to be abundantly clear that his Honour gave sufficient reasons. In my opinion, he sufficiently exposed his reasons for being satisfied that the respondent had established his case. The additional ground of appeal alleges that there was no evidence to support the finding of his Honour that the nature of the injury at work was of the kind that could cause the fracture (AB 193 0). It appears, however, there was ample evidence to support the finding. There was the evidence of the respondent and Mr Owens (a co-worker called by the respondent) as to the circumstances of the accident and its aftermath. Further, there was expert evidence from Drs Leslie and Dunlop, which also finds some support in the report of Dr Opie dated 22 November 1995. BIAS The remaining grounds of appeal (with one exception) relate to a claim of apprehended bias in favour of the respondent by the trial judge. The fundamental problem with this ground is that no application was made for his Honour to disqualify himself (Vakauta v Kelly (1989) 167 CLR 568 at 572, 577 and 587). The only answer offered for the omission to make such an application is that several matters of which the appellant complains did not arise until the judgment was given, hence there was not the opportunity to deal with them. URJ EMAIL LTD v STEDMAN (Stein JA) 5 However, it is apparent that the content of grounds of appeal 2 to 6 all occurred during the trial. They are, that the judge intervened so frequently in the evidence of Messrs Girvan and Brogden so as to portray bias and that his Honour prejudged the case in his exchanges with the appellant's counsel during submissions. Besides being taken through the transcript of the evidence, the tape recording of portion of Mr Girvan's cross-examination and re-examination was played to the court. I listened carefully. An analysis of the transcript of the evidence of Mr Girvan and Mr Brogden, aided by the tape recording, and a reading of the submissions, discloses not a hint of bias. In my opinion, it would be impossible for a party, or a member of the public, to entertain a reasonable apprehension that the judge may not bring an impartial and unprejudiced mind to the case or that he has or might prejudge the matter. I do not agree that his Honour's questions over-stepped the mark, indeed they appear to be pertinent. There is no glimmer of prejudgment. The tape recording reveals that the judge remained passive throughout, although persistent and firm with the witness. He did not bully the witnesses. I am satisfied that there is nothing in the bias argument. REJECTION OF QUESTION IN RE-EXAMINATION The last issue is his Honour's rejection of a question in the re-examination of Mr Girvan. No written submissions were produced by the appellant in support of this ground. Nevertheless, the ground was pressed at the hearing. It may be disposed of shortly. The question sought to be put was: Where did the "at training" part come from as far as you are concerned? This was objected to and counsel appearing for the appellant at the trial submitted that it arose from cross-examination and from questions asked by the judge during cross-examination. The simple fact of the matter is that the question did not so arise and the trial judge was entitled to reject it. The appeal should be dismissed with costs. Appeal dismissed with costs Counsel for the appellant: R Burbidge QC/F Corsaro Solicitors for the appellant: Hickson Wisewoulds Counsel for the respondent: J Maconachie SC/J Tancred Solicitors for the respondent: Matthew Savage & Associates