SAMARA v FRANKLINS LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, SHELLER JJA and FITZGERALD AJA 14 September 1998, 8 October 1998 [1998] NSWCA 200 WORKER'S compensation action — failure of trial judge to discharge duty to give adequate reasons for decision — error of law — Compensation Court Act subs32(1). Meagher JA In this matter, when the applicant was presenting what would prima facie appear to be an unlikely claim, when there was a cascade of medical reports no two of which were in agreement with each other, when there was no cross-examination of any expert, and when there was a major dispute as to whether at the date of trial the applicant was suffering from any health-related consequences at all, his Honour dismissed the applicant's claim. What his Honour said relevantly was: "The applicant bears the onus of proving her case. She has the responsibility, on the balance of probability, of persuading me that the condition which she now suffers is truly related, in a relevant sense, to the injury sustained in April 1995. She has not met that onus of proof I am not persuaded she has demonstrated, on the balance of probability, that her present condition is related as I do not know what that present condition might be." Although the language encasing this fairly unambiguous conclusion certainly lacks elegance and probably, (as Fitzgerald AJA points out) coherence as well, the conclusion itself is clear, and justified by the evidence. His Honour is saying that he was not, on the balance of probabilities, satisfied that the medical problems of the applicant (whatever they were) had any connection with her injury. To say that the reasons are inadequate seems slightly ludicrous; if a judge finds that a fact does not exist, he can never be obliged to say anything more than that it does not exist. I would dismiss the appeal with costs. Sheller JA I agree with Fitzgerald AJA. Fitzgerald AJA The appellant was injured in the course, of her employment by the respondent on 24 April 1995. She was paid weekly compensation until 20 September 1996 and, in a proceeding in the Compensation Court of New South Wales, No 11810 of 1996, claimed weekly compensation from then until the determination of her claim, medical expenses, and a lump sum payment for future compensation. Her claim was dismissed on 2 October 1997, and she has appealed to this Court. It is common ground that, for the appellant to succeed, she must demonstrate that the judge who constituted the Compensation Court erred on a point of law!. The only evidence before the Compensation Court consisted of the testimony of the appellant, a large number of medical reports, and a few other documents of no present significance. The appellant tendered reports from Dr A L Ghaly, a 1. Compensation Court Act 1984, subs32(1). 2 UNREPORTED JUDGMENTS general practitioner, Dr B C T Kwok, a neurosurgeon, Doctors Stuart Myers and Bruce Trevitt, orthopaedic surgeons, and Doctors Neil Berry and David R Sloan, general surgeons. The respondent tendered reports from Doctors C Presgrave, Ross Mellick, and J-P Halpern, neurologists, Dr Allan Skapinker, a specialist in occupational medicine, Dr Anthony J Christie, an occupational physician, Dr David Millons, a general surgeon, and Doctors Samuel S Gerber and Steven Cahill, radiologists. A wide-range of medical opinions were expressed, which cannot be reconciled. None of the doctors gave sworn evidence or was cross-examined. The appellant's case was that, while she was packing merchandise onto shelves in one of the respondent's stores, she picked up a 12 kilogram box from the floor to hand it up to another employee, which necessitated her lifting the box above the level of her head, when she felt a very sharp pain in her right wrist. She later described the pain in more detail, together with other symptoms, including pain in her fingers and thumb, a change in colour of the palm side of her right thumb to either purple or blue, an inability to straighten the fingers on her right hand, and pain extending to her upper arm and shoulder and into the right hand side of her neck and "... half of my head". More detail could be given from the appellant's evidence, but I do not think that it is necessary to do so. What is of importance is that the appellant swore that, although she had never previously had such problems, she still had pain in her right wrist, hand, arm, neck and head, and could not fully open her hand at the time of the hearing. While in the witness box, she demonstrated some of the difficulties which she claimed to the trial judge. The trial judge summarised the appellant's evidence and, although seemingly unimpressed, made only one negative comment prior to his conclusion. which is set out below. In the course of his summary of her evidence, his Honour said that the appellant's involvement in a rehabilitation programme for one day on 5 March 1996 when she performed about two hours work "... was a surprisingly brief attempt at return to work". No finding was made rejecting her evidence. His Honour's summary of the appellant's evidence ended: "The applicant is convinced she is unable to do her old work and she is looking for employment in the Merrylands Shopping Centre. She has also applied to the CES where goes every week and checks on the computer. She said she thought she would be able to work for three or four hours a day, certainly not full-time, and that she would be able to work in a dress shop if the work was not heavy there and she could use her left hand. The applicant has consulted with a psychiatrist, Dr Chaudhary who has prescribed medication for anxiety and stress." (Emphasis added). The trial judge then went on to note the assessments of the appellant's loss of function in her right arm and neck according to various doctors, following which he summarised the medical evidence. His Honour made some criticism of some of the doctors. For example, he said that Dr Ghaly's "construction" of a cervical CT scan was "rather exaggerated". Some of Dr Trevitt's reports were described as "somewhat mysterious", and one of those reports was said to contain a strange observation which flies in the face of the history". A later report of Dr Trevitt was said to record "an inaccurate history", and his Honour said that he did not "place much weight" on that report. There was implicit criticism of Dr Sloan's report, in that it was said that some of his findings were not supported by any other URJ SAMARA v FRANKLINS LTD (Fitzgerald AJA) 3 doctor. One of Dr Mellick's findings was described as "peculiar". However, no indication was given by his Honour concerning which, if any, medical evidence, he accepted, and which he rejected. According to the trial judge, the respondent's case was that the appellant's injury, which was admitted, had had no lasting effect, so that the appellant was either deliberately fabricating her symptoms or they had no connection with the incident which occurred in the course of her employment. It is difficult to understand the latter submission which possibly led to confusion. If the appellant had all or some of the symptoms which she described, irrespective of whether they were exaggerated and whatever their nature, there was no possible cause identified for those symptoms other than the incident at work which the respondent conceded had occurred. Conversely, unless the appellant was still experiencing symptoms, there was no basis for her claim. On the evidence, the only possibilities were that the appellant did not then have the symptoms which she described at the hearing, or any such symptoms which she had, even if exaggerated in her evidence, were a physical, psychological or psychosomatic consequence of the injury which she had sustained at work. The judgment ended: "Tn Conclusion There is no doubt an incident occurred in April 1995, and no doubt the respondent paid the applicant for some time. The applicant has had treatment, by doctors initially, has continued to seek treatment from a physiotherapist, and has continued to complain of symptoms which have increased in severity and become in some sense more bizarre. The question is whether the present condition the applicant now suffers has any relationship with her injury, and in order to determine that, one has to know what the present condition is. There is a variety of diagnoses and a very wide variety of findings. There is, on one side, the complaints the applicant made of symptoms and the findings which Dr Sloan made as distinct from the findings all the other doctors made, and the various nerve conduction study findings. The possible explanations of the applicant's condition are; firstly, that she is fabricating, or secondly, there is a very substantial psychological overlay, or thirdly, that the applicant has a physical condition which is related to her injury. The only psychiatric that can be of any assistance is Dr Chaudhary and he simply concludes the applicant has a physical condition and is suffering from anxiety. No one has looked seriously at the questions of fabrication or psychological overlay. It is surprising that some doctors were not called to give oral evidence as there is a variety of findings, a lack of medical treatment and an extraordinary variety of diagnoses. The applicant bears the onus of proving her case. She has the responsibility, on the balance of probability, of persuading me that the condition which she now suffers is truly related, in a relevant sense, to the injury sustained in April 1995. She has not met that onus of proof I am not persuaded she has demonstrated, on the balance of probability, that her present condition is related as I do not know what that present condition might be. I might have been assisted by the doctors if they had come to court and reflected on one another's reports, but that was not forthcoming. I therefore make an aware in favour of the respondent, and I make no order as to costs." 4 UNREPORTED JUDGMENTS Regrettably, that critical portion of the judgment is complicated by his Honour's reference to the question whether the appellant's "present condition has any relationship to her injury" and the lack of clarity concerning what is meant by her "present condition". However, this Court does not uphold appeals in cases such as this on the basis of semantic quibbles or because of incidental imperfections, although a coherent, consistent reasoning process which justified the conclusion arrived at must be discernible. Most of the appellant's grounds of appeal plainly do not raise points of law and need not be discussed. There is one, and only one, matter which requires further discussion. If the "In Conclusion" portion of the judgment fell for analysis free from the trial judge's earlier discussion of the appellant's evidence, I would take the his Honour's references to the appellant's "present condition" to mean health-related consequences of her injury, whatever their nature. Whatever might be the position when there is a conflict of expert opinion, and the experts - or at least some to them - give oral evidence, the course adopted by the parties in this case of merely tendering numerous conflicting medical reports left it open to his Honour, who saw and heard the appellant give evidence, simply to hold that he was not persuaded on a balance of probabilities that, at the time of the hearing, she still had any health-related consequences from her injury. Under the heading "In Conclusion", his Honour said that "[n]o one has looked seriously at the question of fabrication or psychological overlay." However, the appellant's cross-examination contains suggestions of exaggeration, but not fabrication in the sense that she is entirely symptom-free. Secondly, there was considerable medical evidence supportive of "psychological overlay". Thirdly, as noted above, his Honour found that, irrespective of the physical consequences of her injury, the appellant "... is convinced she is unable do her old work". In my opinion, that finding, in context, effectively rejected both a physical basis for the symptoms asserted and demonstrated by the appellant in the witness box and a conclusion that those symptoms were fabricated, and amounted to an acceptance that she had symptoms which had a psychological foundation. The result is a fundamental incompatibility between the trial judge's finding that the appellant "is convinced she is unable to do her old work" and his "... Conclusion". In the circumstances, his Honour's judgment cannot be accepted as a discharge of his duty to give adequate reasons for his decision. His omission to do so involved error of law. Since this Court plainly cannot make the necessary findings, the appeal must be allowed and a retrial ordered. The respondent must pay the appellant's costs of the appeal. The notice of appeal did not ask for an order in respect of the costs of the trial which has been held, which should be reserved to the judge conducting the retrial. Appeal allowed and retrial ordered. An order in respect of costs of the trial which has been held are reserved to the judge conducting the retrial. Counsel for the appellant: J Hislop QC/D Rich Solicitors for the appellant: D La Rosa Isso & Co Counsel for the respondent: L King SC/J Kearney Solicitors for the respondent: Hunt & Hunt