New South Wales Court of Appeal CITATION : FRESH FARM PRODUCE PTY LIMITED v THUC ANH TU [2001] NSWCA 448 FILE NUMBER(S) : CA 40470/00 HEARING DATE(S) : 2 November 2001 JUDGMENT DATE : 3 December 2001 PARTIES : FRESH FARM PRODUCE PTY LIMITED v THUC ANH TU JUDGMENT OF : Mason P at 1; Sheller JA at 48; Mathews AJA at 49 LOWER COURT JURISDICTION : Compensation Court LOWER COURT CC 4794/98 FILE NUMBER(S) : LOWER COURT Moran CCJ JUDICIAL OFFICER : COUNSEL : Appellant: J M Ireland QC/ P Evans Respondent: A Morrison SC/ B McManamey SOLICITORS : Appellant: A O Ellison & Co Respondent: Stacks the Law Firm CATCHWORDS : Workers Compensation - injury from potato-brushing machine - worker suffered laceration to ear and face and blow to the head - Commissioner found worker totally incapacitated for employment - award for weekly payments made - challenge to award - whether Commissioner failed in judicial obligation to give reasons - causation - schizophrenia - whether accident was contributing factor - whether causal link a possibility or probability - several possibilities established by evidence as triggers for schizophrenia, including worker's divorce or underlying condition- factual finding that no loss of consciousness followed the accident - medical reports favourable to worker were based on substantial loss of consciousness - evidence of treating doctor not analysed in judgment - no findings resolving conflicts between opinions - remitted to Compensation Court for rehearing. (ND) CASES CITED: Mifsud v Campbell (1991) 21 NSWLR 725 DECISION : 1. Award of Hunt C that was confirmed by Moran CCJ set aside.; 2. Proceedings remitted to the Compensation Court for rehearing.; 3. Respondent to pay appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40470/00 MASON P SHELLER JA MATHEWS AJA Monday 3 December 2001 FRESH FARM PRODUCE PTY LIMITED v THUC ANH TU JUDGMENT 1 MASON P: The respondent worker was employed by the appellant as a potato grader. On 7 May 1987 she was injured when she came into contact with the potato-brushing machine. She suffered severe laceration to the right ear and face and a blow to the head. 2 She was taken to the Repatriation General Hospital at Concord. The immediate history taken by the resident medical officer was: Lacerated upper portion pinna of right ear at work on a potato machine – piece almost severed. No loss of consciousness. The injury was sutured and the worker was discharged on the day of admission. Two days later she returned to Concord Hospital complaining of a very painful ear, headaches, flu-like symptoms and fever. The diagnosis was "early infected ear and flu". Daily dressings were prescribed . 3 On 17 June 1987 the appellant terminated her services. Workers Compensation payments were made for a few months and thereafter she went onto sickness benefits. She never returned to work. 4 On 25 June 1987 she presented to a general practitioner, Dr Vo complaining of headache, dizziness, painful right ear lobe, ringing in the ear and vomiting. During 1987 she returned on eight further occasions. Her right ear was not improving and had poor cosmetic appearance. The doctor treated her with various medications and subsequently referred her to an ear, nose and throat specialist who told her that she had "just an outer problem". In 1988 she presented eighteen times with the same complaints to the general practitioner. She was referred to a neurologist and an otorhinologist. 5 On 17 October 1988 she was interviewed by a consultant psychiatrist, Dr Wong, in the presence of her elder brother. The brother gave the history that: Some ten days ago there was a marked change in her in that she suddenly behaved very irrationally. She threw away a lot of food at home and woke everybody up very early in the morning. She told her brother there was no need for him to go to work as she had bought a factory. She also mentioned that her mother had bought a house in Hurstville, which was entirely untrue. She repeatedly removed books from a bookcase, put them on the floor and then replaced them on the book case. She took several showers a day, at times in the middle of the night and on one occasion came out of the shower with her hair dripping wet. She went without food for 2-3 days during which she drank only water. She did not express any unequivocal paranoid ideas, although she mentioned on one occasion that she would no longer have to die now that she "was back". Her brother recalled that she had one similar but more severe episode 10 years ago, when she was in a refugee camp in Malaysia. On that occasion she cried and laughed for no apparent reasons and complained of being harmed, although she did not elaborate on that. That episode came shortly after she arrived in the refugee camp and subsided gradually with medication after 1-1½ months. She has had no recurrence until the present episode. 6 In his report, Dr Wong recorded that the worker was reasonably cooperative when she saw him, although her answers were rather laconic. She told him: in a rather matter-of-fact manner the accident she had in her factory. She said that since the time of the accident she had been having gripping pain on the right side of her head associated with discomforts on the right side of the neck, the right shoulder and the right upper extremity. However, she appears rather reluctant to go into her personal history although later during the interview she appeared rather more forthcoming. However, she displayed no incongruities in her emotions or any other unequivocally psychotic features. Dr Wong was unable to come to a firm diagnosis on the basis of the interview, although his initial impression was that the worker had had a "hysterical reaction" . 7 Dr Wong saw the worker again on 25 October and 8 November 1988. He subsequently reported that: … her condition had settled down quite considerably. She slept well and she manifested no further unusual behaviour. Both she and her brother gave the further history that all along she had led a very sheltered existence. She has very few friends and rarely went out and when she did, it was only with her family which is very closely knit. She has few hobbies and was used to occupy herself with listening to music, watching television and reading the newspapers. She is now 27 but her mother would not allow her to go out except to visit her sister who is some 10 minutes away. When she went to work her sister took her to and from work as her mother was concerned that she would otherwise be let astray. Apparently her parents have been over protective towards not only Miss Tu but her siblings as well and they got to know their spouses through introductions by their parents. Miss Tu told me that she was not unhappy with her present lifestyle and not too worried, even though she was unable to resume work. 8 In his report stemming from these visits, Dr Wong referred to his earlier, initial impression about an hysterical reaction. He stated that the further history he obtained and the "prompt disappearance of her symptoms" supported that diagnosis. He felt that the reaction had come about as a result of stress acting upon the worker's rather vulnerable personality. 9 Unfortunately the worker's psychiatric condition deteriorated. By 1991 at the latest she was diagnosed as suffering a form of schizophrenia whose present symptoms are extremely debilitating. 10 In June 1998 the worker filed an application in the Compensation Court claiming weekly compensation from 29 May 1987 onwards. The injuries stipulated in the application (as subsequently amended) were: (i) injury to the head; (ii) injury to the right ear; (iii) lacerations to the face (iv) precipitation of schizophrenia. 11 The proceedings came on for hearing in the Compensation Court in May 1999 before Commissioner Hunt. By that stage the issues had clarified so that the sole question for determination was whether the accident on 7 May 1987 was a contributing factor to the worker's schizophrenia which, by then, was clear and profound. 12 The appellant employer put the worker to proof (see Red 7). 13 There was no eye witness account of the accident. The worker was unable to give any substantial evidence in the proceedings (see Black 2). Her principal witness was her sister Jennifer Au who described what she observed at the hospital on the day of the accident, and subsequently. She was her tutor in the proceedings. 14 Ms Au gave evidence of the circumstances in which her sister descended into ultimately uncommunicative mental illness. The critical issue addressed in her evidence in chief and cross examination was when and in what circumstances the symptoms later diagnosed as schizophrenia first manifested themselves. Her answers in cross-examination substantially qualified the chronology of immediate signs of mental deterioration given in her evidence in chief (Black 18-19). 15 One workmate and one family friend of the worker gave evidence (Black 20-24), but they were unable to cast any real light on the details of the accident or the critical causation issue. 16 The worker's counsel tendered a number of medical reports. They included reports from Concord Hospital, Dr Wong, Dr Vo and Bankstown/Lidcombe Hospital (where the worker was admitted on a number of occasions after August 1991 when her schizophrenia was already manifest). 17 The worker's counsel also tendered three reports of Dr Frith, a neurology-internal medicine specialist who first treated the worker on 30 May 1988. He took a history that the worker had been unconscious for six hours as a result of the accident. He diagnosed a severe crush injury of the right ear with subsequent disfigurement. He observed the appearance of super-added anxiety state causing nausea and hemicrania. X-rays of the worker's cervical spine and skull taken in 1987 revealed no abnormality. Later reports of Dr Frith recorded the worker's piteous state compared to her earlier condition. 18 There was also a report from Dr Lorentz, a consultant psychologist who saw the worker in April 1988. He too was given a history of loss of consciousness for "up to a few hours or perhaps a day". At that stage the worker was able to answer questions through an interpreter "in an oblique fashion" (Black 76). Dr Lorentz found her post-concussional headaches difficult to classify. He expressed no opinion as to the present issue of causal link, which is hardly surprising given that he did not diagnose schizophrenia. 19 The other reports were from consultant psychiatrists, being those of Dr Grace, who treated the respondent from 1992 onwards, Dr Law, who first saw her in October 1994 and Dr Strum, who saw her for medical-legal purposes in 1999. 20 In his reports, Dr Grace recorded that the worker had never spoken a word to him and that she spent her whole interview muttering inaudibly to herself whilst twiddling her thumbs. Her history was provided by her mother through an interpreter. Dr Grace was told that the worker had lost consciousness in the accident (Black 99). The history was also to the effect that headaches and dizziness had occurred in the months following the accident. Her change of behaviour, including refusal to go outside the home, led to the breakup of the marriage. 21 Dr Grace's reports diagnosed schizophrenia. He cited the history given by the worker's brother to Dr Wong (par 5 above). In his report of 25 January 1994 his conclusion was that I believe that the accident possibly precipitated or unmasked the current episode of psychosis in a lady who had shown previous evidence of psychosis. 22 A later report (16 July 1996) referred to the evidence from Concord Hospital to the effect that the accident caused no loss of consciousness. Based on this, Dr Grace concluded (Black 104): In my opinion this extract of report is inconsistent with Ms Tu having sustained a significant head injury of the kind likely to lead to brain damage. As mentioned in my report dated 24 January 1994, Ms Tu has been investigated for brain damage by CT Brain Scan, EEG and SPECT Scan. None of these investigations found definite evidence of brain damage. … In relation to whether Ms Tu's condition is a result of her injury on 7 May 1987, it should be emphasised that although it is possible that the accident precipitated her becoming psychotic at that time, it could no way explain her having ongoing illness as there was no brain damage caused by the accident. 23 Dr Grace was the only medical practitioner required to attend for cross-examination. He sat through the evidence of the worker's sister and he expressed a slightly revised opinion in light of his interpretation of the symptomology she described. He was, however, firm in concluding that a causal link was only a possibility, not a probability (Black 27-28). 24 The Commissioner was faced with a difficult task. Neither side called any direct evidence concerning an accident that occurred over ten years before. Most of the histories recorded by the medical practitioners were given entirely through the medium of family members who could not speak English. And there was evidence, accepted by the Commissioner, that those histories were materially false insofar that they represented that the worker was unconscious immediately after the accident. 25 The appellant bore no onus. Nevertheless, through its counsel, it indicated that its case was that the effects of the respondent's divorce had produced the onset of the psychiatric symptoms in October 1998. She had married a Vietnamese man in 1983. Her sister's evidence was that the couple were divorced on 31 March 1988. Whilst there was considerable evidence to indicate that the worker's increasingly bizarre behaviour contributed to the breakdown of the marriage, there was little exploration of the precise chronology of the disintegration of the relationship. There is some evidence that the husband left in June 1987 (Black 97). Decision of Hunt C 26 The Commissioner gave judgment on 24 November 1999. 27 He recounted the worker's personal history down to the date of the accident in May 1987. She was born in Vietnam in 1961. In the late 1970s the family moved to a refugee camp in Malaysia. While there she was normal and attended school. There was an occasion when she was frightened by a monkey and was very nervous for about one week before returning to normal (see par 5 above). The family migrated to Sweden where they remained for two years. The worker attended school and behaved in a normal manner. In 1983 the worker migrated to Australia. She studied English. There were various jobs: at a sewing factory, a cake shop, a sausage factory and as a packer at a factory. In her job with the appellant at the potato factory the worker spoke English and Cantonese and had a lot of friends. 28 The Commissioner held that: • the worker was physically capable of holding down regular employment up to the date of the accident; • she had not worked since the date of the accident; and • she had succumbed to schizophrenia which rendered her totally unfit for any form of employment. 29 These matters were never in dispute. 30 The Commissioner recorded that: … one of the key issues to be determined in this case is what was the cause of the applicant's present condition and among the factors most likely are her injury and her divorce. 31 Reference to "the" cause was inappropriate, but nothing turns on this. 32 The Commissioner recorded a summary of Ms Au's testimony as to what she observed as to her sister's condition following the accident (Judgment §§10-15, 17). It included evidence that between 1987 and 1988 she frequently complained of pain, and that between 1988 and 1995 her eyes looked different from the way they were before and that she always carried her head with a tilt. After 1995 the worker needed greater attention. She ceased to be able to conduct conversations and had not been normal since at least 1995 when her mother died. This was a summary of Ms Au's oral testimony, but it does not appear to involve any findings either way as to the acceptance of that testimony. This, despite it being clear from a reading of the transcript that Ms Au's evidence was substantially qualified in cross-examination in a manner most material to the critical causation issue (see Black 18-19). 33 The judgment then records extracts from the reports of the various medical practitioners. 34 The nub of the judgment is found in the following three paragraphs. 34. On all the evidence before me there can be no doubt that this applicant does suffer from Schizophrenia which renders her totally unfit for any form of employment. It does not assist me that the applicant is unfit to give evidence on her own behalf and that the history of her condition as given to various doctors by members of her family varies to a different extent. 35. What is clear is that up until 7 May 1987 the applicant was physically capable of holding down regular employment. It is also clear that on that day while at her place of work something happened which resulted in a rather severe laceration to her ear. It is also apparent that apart from that incident there have been two other incidents namely the break-up of her marriage and the death of her mother which would have the capacity to bring about Schizophrenia in a person predisposed to that condition. All of the psychiatrists who have reported on this applicant report a continuing deterioration in her condition. That leads me to the conclusion that each of the events referred to above have added to the severity of her condition. There is no evidence whatsoever before the Court which suggests that the applicant has been fit for work at any time since May 1987 and I must therefore conclude that her total incapacity for employment results from the events of that day albeit that her condition may have suffered further as a consequence of later events in her life. 36. I therefore find that the applicant is totally incapacitated for work and has been so since 7 May 1987. 35 Hunt C made an award for weekly payments pursuant to s9 of the Workers Compensation Act 1926 for total incapacity from 22 May 1987 to the date of the award and continuing thereafter. 36 The appellant appealed under s34A of the Compensation Court Act 1984. It was contended that the Commissioner had erred in law in various respects. That appeal was heard by Moran CCJ. His Honour found that the Commissioner had made no error of law and he confirmed the Commissioner's decision and award. He said: 13. I accept the submissions made by counsel for the worker that the Commissioner disclosed his reasoning process. After he reviewed the evidence he reach his conclusions set forth in paragraphs 34 and 35 of his reasons. 14. My interpretation of what the Commissioner's reasoning process was is that the worker suffered injury to her ear in the course of her employment on 7 May 1987 which precipitated schizophrenia in a person predisposed to that condition. That as a result she has been totally incapacitated for work from 7 May 1987 to date and continuing. That the breakdown of her marriage and the death of her mother were events which added to the severity of her condition, however she has been totally incapacitated by the work incident anyway. 37 The appellant now appeals to this Court. 38 It was initially contended that the award was unsupported by evidence, but this submission was not ultimately pressed. There is medical evidence to the effect that the accident could possibly have been the trigger for the schizophrenia. And there was evidence (though severely qualified in cross-examination) from the respondent's sister to the effect that early signs of breakdown were emerging from the time of the accident. 39 Ultimately the challenge to the award was based upon the submission that the Commissioner failed in the judicial obligation to give reasons. Many cases have discussed this legal duty. It is sufficient to refer to Mifsud v Campbell (1991) 21 NSWLR 725 where (at 728) Samuels JA, with whom Clarke JA and Hope AJA agreed, said that: … it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case. Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge – as the defendant's denial of having consumed alcohol – may promote a sense of grievance in the adversary and create a litigant who is not only "disappointed" but "disturbed" – to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in what I would take to be an error of law which is reviewable on appeal. 40 In my view this ground of appeal is made good. Unfortunately, there must be a new trial. 41 The various medical reports, including the oral evidence of Dr Grace, established several possibilities as a trigger for the schizophrenia. I recognise that more than one event could contribute to a disease in the eye of the law. With this qualification, there was medical evidence suggesting at least three possible candidates, namely: 1. The unconnected recurrence of a condition that first manifested itself in Malaysia in the late 1970s; 2. The subject accident, whether operating as: (i) an acceleration of the underlying disease; (ii) a physical trauma involving significant loss of consciousness; or (iii) a stress-inducing event stemming from the significant ear injury; 3. The breakdown of the marriage. 42 There was medical evidence indicating either the possibility or, in the opinion of some doctors, the probability that the accident was a contributing factor. However, on my reading, much of that evidence turns upon a history involving an accident that caused immediate loss of consciousness lasting several hours. 43 The problem for the worker is that the immediate history taken by the medical officer at the Concord Hospital on the day of the accident records that there was no loss of consciousness following the accident. Hunt C accepted this evidence, as I read his judgment (see par 32). Senior counsel for the worker also accepted that the Commissioner's judgment must in effect stand or fall on the basis that loss of consciousness was not established. 44 In these circumstances, the evidence of the treating doctor, Dr Grace is very significant, yet it is not analysed in the judgment. The judgment contains no mention of the oral evidence of Dr Grace who, alone of the experts, grappled with the history given and tested in the evidence of Ms Au. And there are no findings resolving the obvious conflicts between various opinions, nor explaining the impact of the rejection of the history of loss of consciousness upon which several of the opinions favourable to the worker's case are substantially based. 45 The reader of the Commissioner's judgment simply does not know what view he formed as to the following critical issues that were fought at trial and/or raised by unchallenged medical evidence: 1. The extent to which the evidence of the worker's sister was accepted. 2. Which doctors and which theory or theories of causal linkage were accepted. 3. What, if anything, the Commissioner thought about the obviously material evidence of Drs Wong and Vo. 46 In the extract set out at par 34 above Hunt C states compendiously that: All of the psychiatrists who have reported on this applicant report a continuing deterioration in her condition. In the context, this seems to be a finding that all of the psychiatrists have reported about a deterioration that continued from the date of the accident. The problem is that the reports of Drs Law, Frith and Lorentz are suppositioned upon a history of a substantial loss of consciousness immediately following the accident, contrary to the facts as found. 47 In my view the following orders should be made: 1. Award of Hunt C that was confirmed by Moran CCJ set aside. 2. Proceedings remitted to the Compensation Court for rehearing. 3. Respondent to pay appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act . 48 SHELLER JA: I have had the benefit of reading the reasons for judgment prepared by Mason P and Mathews AJA. I agree with those reasons and have nothing to add to them. I agree with the orders proposed by Mason P. 49 MATHEWS AJA: I agree with the orders proposed by Mason P and the reasons given by his Honour. I would like to add that there was, in my view, a further matter in respect of which Hunt C failed to provide adequate reasons in his decision. 50 The key issue for determination by Hunt C was whether the accident, which took place in May 1987, was a contributing factor to the worker's psychiatric condition, the other possible factor being her divorce which took place the following year. 51 It was the employer's case that it was the divorce, not the accident, which produced the onset of the worker's symptoms. There were medical reports before the Commissioner which supported this contention in that they suggested that it was not until October 1988, 17 months after the accident, that the worker first exhibited what Dr Wong described as an "hysterical reaction". 52 This material was relied upon by the employer as negating the proposition that the accident had any causal relationship with the worker's illness. But Hunt C failed to mention this in his decision. He said, in para 35 of his decision (quoted in para 34 of Mason P's judgment), that "all of the psychiatrists who have reported on this applicant report a continuing deterioration in her condition." In one sense this was correct. However, it left open the question as to when her condition first manifested itself. This was a crucial issue in the case, but the evidence relating to it was not mentioned by the Commissioner. In particular, he failed to mention that one of the psychiatrists, Dr Wong, described her symptoms as having commenced late in 1988. 53 In my view, the Commissioner's failure to discuss this issue, and his failure to give reasons for rejecting evidence which supported the employer's contentions, constitute a further ground for finding that his reasons were inadequate and that the proceedings should be remitted. ***************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.