DUNN v MARITIME SERVICES BOARD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, POWELL and STEIN JJA 5 May 1998, 9 June 1998 [1998] NSWCA 72 WORKERS COMPENSATION — further lump sum payment sought — whether an increase in loss of use of limb — credit of applicant — trial judge entitled to reject medical evidence — relevance of rule in Browne v Dunn — whether trial judge failed to draw a Jones v Dunkel inference — procedural fairness In January 1989, the appellant received a lump sum payment compensating him for 15% permanent loss of efficient use of his right leg as a result of a work-related injury in December 1986. In 1997, the appellant contended that he had suffered an increased loss of the use of the leg and sought a further lump sum payment in respect of a 30% permanent loss of efficient use. The evidence comprised that of the appellant, two video films and a number of medical reports. The medical evidence tended to support the appellant's contention, however, the video evidence revealed the appellant engaged in vigorous leisure activities. The trial judge was unpersuaded that the applicant had suffered any increase in the loss of use of the leg. Central issues of concern to the judge were the credit of the applicant and the extent of his incapacity. On appeal it was argued: (1) that there was no medical evidence to support the trial judge's finding that the appellant's disability had not increased; (2) relying on Browne v Dunn [1893] 6 R67 HL, that there was a failure to cross-examine any medical practitioner as to the content of the films; (3) that the trial judge misdirected herself in accordance with Jones v Dunkel (1959) 101 CLR 298 in failing to draw an inference that, had the doctors been shown the films, they would still have adhered to their opinions; and (4) that the appellant was denied procedural fairness by the use the trial judge made of her observation of his gait as he entered the witness box and by failing to draw her observation to the attention of counsel. Held: (1) The trial judge did not substitute her own medical opinion for that of the doctors. She rejected their opinions because of her finding that they were based on an inaccurate history supplied by the appellant. No error of law was demonstrated. (2) Re the rule in Browne v Dunn: there is no requirement that the court must accept evidence not subject to cross-examination, especially if that evidence is contradicted by other evidence. Bulstrode v Trimble [1970] VR 840 (3) No error of law demonstrated. (4) Although the trial judge did not draw her observations to the attention of her counsel, it is plain that the question of the applicant's limp was canvassed in submissions. It is not clear that what the judge saw was not also observable by the advocates or that the observation had a significant influence in her decision. Videski v Australian Iron & Steel Pty Ltd (unreported, Court of Appeal, 17 June 1993) Angaston & District Hospital v Thomm (1987) 47 SASR 177 2 UNREPORTED JUDGMENTS Government Insurance Office v Bailey (1999) 27 NSWLR 304 considered. Priestley JA I have had the benefit of reading in draft the reasons of Stein JA for dismissing this appeal with costs. I agree with his reasons and conclusions but wish to make two observations in addition. The trial judge seems to have fallen into the habit of saying, when not satisfied, on the balance of probabilities according to the civil standard of proof, of some matter in issue, that she is "uncertain" of that matter. There are three examples of this habit in the first passage cited by Stein JA from her Honour's reasons for judgment. There are other examples later. From the context it seems relatively (although not completely) clear that her Honour's usage is intended to indicate, as I have already said, that she has not been satisfied of the particular matter on the probabilities as required by the civil standard of proof. However, it seems to me it would be much better if her Honour were to use the conventional formula. The word "uncertain" may mean doubtful or not certain. There are other possibilities. If her Honour were taken to mean that she was not certain that something had been proved, she would leave herself open to a submission on appeal that she was applying the criminal rather than the civil standard of proof. The other matter is that it would have been much better practice for her Honour to have mentioned to counsel in the course of their addresses to her what she had noticed about the appellant's walk as he went into the witness box rather than to leave them and the parties to discover what her thoughts were while she was giving her reasons for judgment. However, her failure to do this in the present case does not seem to me to have led to an error of law, both for the reasons given by Stein JA and for the further reason that since the judge gave her reasons for judgment extemporaneously immediately after the addresses had ended, there was still an opportunity for the appellant's counsel to raise with her Honour, had it seemed to him that the matter was of sufficient significance to warrant his doing so, the questions whether, before she pronounced judgment, he should be heard further on what she had observed or be allowed to reopen the case to deal with it. The opportunity not having been taken up at the trial, I do not think the point can be relied on in the appeal. I agree with the orders proposed by Stein JA. Powell JA I agree with Stein JA. Stein JA This is an appeal from a decision of O'Toole CCJ who made an award in favour of the respondent Maritime Services Board. On 14 December 1986 the appellant, Colin Dunn, suffered an injury to his right knee while in the employ of the respondent. On 11 January 1989 an award was entered by consent compensating the appellant by way of a lump sum payment for a 15% permanent loss of efficient use of the right leg. In 1997 the appellant sought a further lump sum in respect of his right leg, either under s16 of the Workers Compensation Act 1926 or s66 of the 1987 Act, in each case in the order of 30% loss of efficient use. The appellant contended that there had been an increased loss of use of the limb above that previously compensated. The application was heard at Port Macquarie Court House, her Honour giving an ex-tempore judgment following counsels' addresses. The evidence comprised that of the appellant, two fairly lengthy video films of the appellant and a number of medical reports. No doctor was called for cross-examination. Central issues for her Honour concerned the credit of the applicant and the extent of his incapacity. She concluded by stating: URJ DUNN v MARITIME SERVICES BOARD (Stein JA) 3 I am uncertain whether, at any relevant time, the applicant has been incapacitated by the 1988 injury. I am uncertain whether the applicant suffers a loss of efficient use of his right leg, greater than the fifteen per cent to which the parties agreed, some eight and a half years ago. Indeed, were I asked to determine, for the first time, the loss of efficient use of the applicant's right leg, the evidence before this Court, today, would leave me uncertain whether the applicant's loss should be quantified as the parties agreed in 1989. [AB 32 Q-T] Her Honour stated that in oral evidence the appellant had deposed that since the original injury he had been significantly incapacitated and that he limps. She further stated that after the showing of the video film, the applicant conceded his ability to perform the types of activities shown therein. Her Honour summarised the videos thus: The applicant's leisure activities are of the most vigorous kind. In February and March 1996, the applicant stood in the water, then with rapid, fluid movements of both legs, hoisted himself into a surf craft and manned an oar. The applicant assisted other persons to carry a surf craft across unmade surfaces, including sand. At one time, the applicant broke into a smooth, loping jog, across sand. Neither Exhibit 1 nor Exhibit 2 conveys to me the slightest suggestion that the applicant was suffering discomfort, nor that he apprehended such, as a result of his activities. [AB 32 N-Q] The judge said that she was uncertain whether to accept the appellant's allegations regarding the sequelae to the injury. Although the videos did not depict the appellant moving in the precise manner necessary to climb ladders (an integral part of his previous work) they contradicted the appellant's complaints to medical practitioners and to the court. She concluded that the films did not depict the applicant limping. While Dr Perrett had observed a varus deformity in the leg and asymmetry in the circumference of the thighs, her Honour was uncertain whether it would prevent the appellant scaling ladders, as he had deposed in evidence. She was also uncertain whether any degeneration in the knee was caused by or related to the injury. Before turning to the grounds of appeal, one further matter should be mentioned concerning her Honour's judgment since it led to a discrete point in the appeal. Early on in delivering her reasons, the judge noted that: Approaching the witness' box from the vicinity of the Bar table, the applicant's gait was hesitant: he moved slowly, favouring one leg. I would not characterise the movements I saw as a "marked right sided limp" (Dr Perrett's description of whatever he saw on 14 May 1997, of the applicant's gait) but the applicant did not walk normally. Weighed against the balance of the evidence, I infer that the applicant's gait was intended to mislead is Court. [AB 31 B-D] As I understand the submission made on behalf of the appellant by Mr Coombs QC, he raises four matters, each of which he has categorized as an error of law. An appeal such as this is confined to questions of law. The four claimed errors of law are: 1. There was no medical evidence upon which her Honour could have found that the appellant's level of disability had not increased. 2. There was a failure to cross-examine any medical practitioner on the films (relying on Browne v Dunn [1893] 6 R67 HL) and it was therefore impermissible for her Honour to substitute her own opinion based on the films. 3. Her Honour should have applied Jones v Dunkel (1959) 101 CLR 298 and concluded that if the doctors had considered the films, they could give no evidence which would assist the respondent's case. 4 UNREPORTED JUDGMENTS 4. Her Honour's observation of the gait of the appellant in entering the witness box, and her use of it in her judgment, denied procedural fairness to the appellant because it was not exposed to counsel at any time before judgment. In relation to the first point, it is submitted that the medical evidence was all one way and her Honour could not reject the opinions proffered. and substitute her own medical opinion. Learning to one side whether this issue is other than a question of fact, it is necessary to briefly examine the medical evidence. Dr Deveridge examined the appellant on 7 December 1995. He took a history including his then present complaints. He stated that the appellant said that he was unable to run but swam for exercise. In examination, the doctor found that the appellant walked without a limp. He thought that the work injury had aggravated and accelerated degenerative changes in the knee and assessed a 20% loss of efficient use of the limb. Dr Perrett saw the appellant in February 1996. He took a history and noted his complaints. He was told by the appellant that he swam one-half mile a day. The doctor noted an obvious right sided limp. There was noted to be present the varus deformity and the wastage mentioned by her Honour in her judgment. The doctor believed the deterioration was due, to some extent, to the natural progression of the condition stemming from the 1986 injury. He thought that there was a 30% loss of efficient use of the limb. Dr Perrett saw the appellant again in May 1997. He stated that the only leisure activity the appellant claimed he could enjoy was regular swimming. His conclusions were similar to his earlier report. Two medical reports emanating from the respondent were tendered in the appellant's case. Dr Tooth saw the appellant in January 1996 and asked his history and complaints. The appellant said that he was unable to run but swam regularly. On examination he walked with a normal gait. He had a mild varus deformity and lcm wastage in his quadriceps. Dr Tooth assessed a 20% loss of efficient use of the leg. Dr Evans also saw the appellant on behalf of the respondent. The doctor took a history and noted the appellant's complaints. On examination, Dr Evans observed that the appellant walked without a limp. Like Dr Tooth, he assessed the loss of efficient use at 20%. Two things, at least, may be noted from the medical reports. First, there is a difference of opinion between the observations of the doctors as to whether the appellant walked with a limp, all but Dr Perrett saying that he did not limp. Second, it is clear that the appellant did not disclose to any doctor his fairly rigorous surf club activities. Having viewed the films and hearing the appellant's agreement to what was depicted in them, her Honour was obviously concerned that the appellant had not provided the doctors with accurate histories of his complaints. It was apparent that the medical practitioners placed reliance upon what the appellant told them he could do and not do, despite some objective signs on physical examination. What her Honour was saying was, that having viewed the films and the confirmation of them given by the appellant in his evidence, she did not accept that the medical opinions were based upon accurate histories. It followed, in her view, that she did not accept their ultimate opinions. Contrary to the submission made by counsel for the appellant, her Honour was not substituting her own medical opinion for that of the medical practitioners. She was, in fact, rejecting their opinions because of her finding that they were based upon an inaccurate history supplied by the appellant. This was a finding of fact and cannot be elevated to a question of law. URJ DUNN v MARITIME SERVICES BOARD (Stein JA) 5 The second issue in the appeal concerns the application of the rule in Browne v Dunn because none of the medical practitioners were cross-examined as to the content of the films. It is submitted that her Honour ought to have relied on the failure to cross-examine the doctors and, accordingly, have accepted their opinions. Failure to do so is said to be an error of law. It is perhaps unfortunate that it is rare, (or at least unusual) that a medical practitioner is called to give oral evidence in the Compensation Court (indeed also the District Court). This often leaves trial judges in a difficult situation where there is conflict in the medical reports. Here, neither side requested any medical practitioner to attend for cross-examination. The appellant was however challenged in cross-examination as to the history of complaints which he gave to the doctors. In particular, it was put to him that he had not informed any doctor of his surf club activities. The appellant was also confronted with the films, which he accepted, making various explanations. One might ask, what was her Honour expected to do? The medical reports were not tendered until the close of evidence. One may assume that her Honour then read them, a task she would undertake, no doubt in the light of the films and the evidence of the appellant. It seems to be somehow assumed that she should have ignored the films, and the appellant's acceptance of them, and accepted the conclusions of the medical practitioners based upon incorrect histories and without any knowledge on their part of the films. Alternatively, it is suggested that her Honour should have insisted that the doctors attend and, I assume, that she cross-examine them since no party had asked for them to attend for cross-examination. This exposes the difficulty in applying the rule in Browne v Dunn in circumstances such as these. In any event, there is no requirement that the court must accept evidence not subject to cross-examination, especially if that evidence is contradicted by other evidence, see for example, Bulstrode v Trimble [1970] VR 840. Again, I am unable to detect any error of law in her Honour's approach to this issue. It was not for her to cross-examine the doctors. Even assuming it to be an error of law, it is difficult to perceive that it necessarily led to a miscarriage of justice in the particular circumstances of the case. On the third issue the appellant maintains that the trial judge mis-directed herself in accordance with Jones v Dunkel. It is said that she failed to draw the inference that, had the doctors been shown the films, they would still have adhered to their opinions. I do not see that failing to draw such an inference was an error of law. As I have said, her Honour simply rejected the opinions of the doctors because she was not satisfied that the history of complaints by the appellant, upon which they were to a large extent based, were accurate. The last point concerns her Honour's use of her observation of the gait of the appellant as he approached the witness box. It is common ground that she did not draw her observation to the attention of counsel, so there was no opportunity for it to be dealt with in evidence or submission. However, it is plain from her Honour's reasons that the question of the applicant's limp was canvassed in submissions, see AB 32M-N of the judgment. In Videski v Australian Iron & Steel Pty Ltd (unreported, Court of Appeal, 17 June 1993) Cripps JA discussed the obligations of judges when making observations of witnesses outside the witness box and out of sight of the advocates. He stated that in Government Insurance Office v Bailey (1992) 27 NSWLR 304, the court expressed the view that it was a fundamental rule that a case should be decided upon evidence which all parties had the opportunity to 6 UNREPORTED JUDGMENTS question. In Videski's case, however, what the judge saw was observable to everyone else in the Court, including counsel. I am not prepared to assume, absent evidence, that what O'Toole CCJ saw was not also observable by the advocates. The second reason why the appellant's point is not a good one is the question of its significance for the decision. In Angaston & District Hospital v Thamm (1987) 47 SASR 177, King CJ said that when the judge makes observations of a party, which are not observable by counsel, it is only when the use has a significant influence upon the decision that she or he is bound to disclose the matter. This authority was followed in Bailey and Videski. Bearing in mind the context of the remarks in her Honour's reasoning, and reading the judgment as a whole, I would not conclude that the observation of the gait of the appellant entering the witness box, looked at as a discrete matter, had a significant influence on her decision. Given her other findings, and setting to one side the observation, it would have led to the same result. Again, no error of law has been demonstrated. Before departing from the appeal I would wish to observe that it would have been desirable for her Honour to have, at an appropriate time, drawn the attention of counsel to her observations. This is especially so since her Honour was the judge appealed from in Videski. It follows from what I have said earlier in these reasons that the appeal should be dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: J S Coombs QC/R F Wilkins Solicitors for the appellant: Maurice May & Co Counsel for the respondent: M J Jenkins Solicitors for the respondent: Eleonora G Scarparo