New South Wales Court of Appeal CITATION : BHP Steel (JLA) Pty Ltd v Khan [2001] NSWCA 215 FILE NUMBER(S) : CA 40751/00 HEARING DATE(S) : 27 June 2001 JUDGMENT DATE : 4 July 2001 PARTIES : BHP Steel (JLA) Pty Ltd - Appellant Mohammed Khan - Respondent JUDGMENT OF : Giles JA; Hodgson JA LOWER COURT JURISDICTION : District Court LOWER COURT DC 9434/98 FILE NUMBER(S) : LOWER COURT Herron DCJ JUDICIAL OFFICER : COUNSEL : G M Watson & J L Fredman - Appellant M Aldridge SC & A Lidden - Respondent SOLICITORS : Sparke Helmore, Sydney - Appellant L J Sharpe & Co, Rockdale - Respondent CATCHWORDS : PERSONAL INJURY - damages - evidence given in other proceedings - judgment in the other proceedings tendered - objected to but admitted - judge relied on what was said in the judgment for evidence given in the other proceedings - not admissible for that purpose - conclusion based in part on this evidence - judge's findings vitiated - new trial as to damages. DECISION : (1) Appeal allowed with costs; (2) Verdict and judgment for the respondent set aside; (3) Proceedings remitted to the District Court for a new trial limited to assessment of damages; (4) Respondent to have a certificate under the Suitors Fund Act if otherwise qualified. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40751/00 DC 9434/98 GILES JA HODGSON JA Wednesday 4 July 2001 BHP STEEL (JLA) PTY LTD v KHAN JUDGMENT 1 THE COURT: The respondent, Mr Mohammed Khan, was employed by the appellant, BHP Steel (JLA) Pty Ltd, at its steel processing centre at Chullora in New South Wales. His duties included controlling the movement of skids containing steel moved by conveyor. He claimed that he suffered a back injury on 17 January 1996 when attempting to keep a deviant skid on its conveyor. He brought proceedings against the appellant. Herron DCJ found that he had suffered an injury for which the appellant was liable and awarded damages of $387,255. This appeal was concerned only with the assessment of damages. 2 The respondent had claimed to have suffered a back injury on 15 October 1986 whilst working for Brake & Clutch Industries Australia Pty Ltd ("Brake & Clutch"). He had brought proceedings against Brake & Clutch, and on 19 July 1996 was awarded damages by Garling DCJ. The appellant's case before Herron DCJ included that the respondent's impairment from injury to his back following the 1996 injury was not as great as the respondent maintained, indeed that the respondent was fit to undertake any employment within his skills, and that to the extent to which the appellant had an impairment it was due in whole or in part to the 1986 injury rather than the 1996 injury. His Honour effectively found that there was an impairment following the 1996 injury and that the 1986 injury did not contribute to that impairment. The respondent's damages were not tempered by an actual or potential effect of the 1986 injury on the respondent as at 17 January 1996 or thereafter. 3 While the appellant asserted more particular errors, its principal submission was that his Honour had erred in his findings in these respects. It was particularly said that his Honour failed to determine the nature and extent of the respondent's pre-existing injury; that so far as he determined that its effect was spent by January 1996 such a finding was not reasonably open on the evidence; and that the issue over the effect of the 1986 injury on the respondent as at 17 January 1996 gave rise to questions of the respondent's credit relevant not only to that matter but also to the extent of the respondent's impairment following the 1996 injury with which his Honour did not deal. As part of the submission, it was said that his Honour erroneously relied on the judgment of Garling DCJ in the Brake & Clutch proceedings for his acceptance that the effect of the 1986 injury was spent by January 1996. 4 In our opinion this last error was made out, and was of such significance that the judgment below can not stand. Regrettably, there must be a new trial limited to assessment of damages. The issue over the effect of the 1986 injury 5 The respondent was born in Fiji on 18 August 1962. He came to Australia on a student visa in 1980, and remained in Australia illegally under the false name Yanus Ali. 6 The respondent claimed to have suffered the 1986 injury when lifting materials. He received specialist treatment and had traction, manipulation and physiotherapy. He did not work again prior to serving a custodial sentence for a criminal offence from March1992 to March 1994. In April 1994 he obtained employment with Franklins. The work was filling shelves at night, and involved lifting and bending and handling cartons up to 20 kg in weight. The respondent said that his back "coped alright". He began work with the appellant on 11 July 1994. 7 In his evidence in chief before Herron DCJ the respondent said that some of his work with the appellant was heavy work, and that he was called on to lift up to 30 kg. Mr Mackinder, a production foreman under whose supervision the respondent worked, said that "it would be fairly light type of work", although he agreed that lifting up to 30 kg was involved. 8 The respondent gave evidence that he performed his duties "without any problem" and that he was "coping alright". His evidence in chief included - "Q. Can you tell me please over this period of 18 months generally what level of back pain, if you had any, you would have during times of particularly heavy work? A. Very slight difference." This may have been intended to indicate that there was some back pain, although not sufficient to interfere with the respondent's performance of his duties. 9 In the early part of the cross-examination the respondent agreed that when he started work with the appellant in July 1994 the pain and restriction of movement following the 1986 injury had "resolved or near to resolved", that he did not have any problems in 1994, and that he was able to bend, sit or stand for long periods without aggravation of back pain and do heavy work. He said that the back problems brought about by the 1986 accident had "fixed". This was not perversity on the part of the cross-examiner. He was setting the stage for comparison with the histories recorded in the reports of doctors who had examined the respondent in connection with the 1986 injury. 10 Mr Mackinder regarded the respondent as a regular and reliable worker, who did not shirk any aspects of lifting. He said that he did not notice anything physically wrong with the respondent. 11 The respondent also said in his evidence in chief that in the four of five years prior to January 1996 he played golf nearly every weekend, engaged in recreational fishing and did "a little bit of jogging". This also was affirmed in the early part of the cross-examination. 12 The respondent said that he had severe pain after the 1996 injury, and that after a little time it radiated down into his legs and buttocks. He had physiotherapy and hydrotherapy. He returned to work on a limited basis, but his employment was terminated in June 1996. He consulted a number of doctors, but the pain continued. It interfered with his sleep and made him "a bit aggro and upset, sad". Long walks, long periods of sitting down, and bending all aggravated it. He could not play golf, his fishing was affected and he could not jog. His condition after the 1996 injury was such that he had difficulty putting on underpants and tying shoe laces. 13 The respondent's evidence of his condition when working for the respondent before the 1996 injury was in marked contrast with his claims in the proceedings against Brake & Clutch and the histories recorded by doctors who had examined him in connection with the 1986 injury. 14 In particulars filed on 16 January 1995 in the proceedings against Brake & Clutch the respondent claimed that he continued to suffer pain and limitation of movement of the back and pain radiating from the back to the back of the left leg, and that his social, domestic, recreation and work activities had been severely affected. He said that he was totally or partially incapacitated for work and claimed past and future economic loss, alleging "serious diminution in earning capacity and employability on the open labour market". 15 According to a report by Dr Roderick McEwin, when examined on 14 May 1990 the respondent complained of back pain at the L4/5 level, occurring after walking for 10 minutes or sitting for about 30 minutes, and said that he "cannot lift virtually anything because of the aggravation of his back pain". He said that he could not lift more than one or two kilograms. The respondent told Dr McEwin that there had been no improvement in his back pain since 1986. (Dr McEwin nonetheless was of the opinion that the respondent had no impairment of his back and no incapacity.) 16 According to a report by Dr Ronald Rivett, when examined on 4 February 1992 the respondent complained of bilateral sciatic pain and paraesthesia extending to all the toes when walking for 20 minutes, occasional tremors in the leg muscles, and constant lumbar pain. The respondent said that he could sit for about 45 minutes and stand for 60 minutes without discomfort. (Dr Rivett opined that the respondent was unfit for heavy lifting, excessive bending and prolonged sitting or standing, in the very long term, and estimated a permanent loss of efficient use of the lumbar spine in the vicinity of 60 per cent.) 17 According to a further report by Dr McEwin, when examined on 19 December 1994 (which was some 5 months after commencing to work for the appellant) the respondent said that he still had back pain at the L3/4 level, which was constantly present and was worse if he did any bending or lifting. The respondent said that he could only lift 5 to 10 kilograms, and that the back pain was worse with sitting for about 20 minutes or driving a car. When the pain was worse it went to both legs, to the anterior aspects of the thighs, the back of the calf and the upper surface of the foot to the toes. The back pain affected the respondent in that it made him irritable and agitated, and the respondent attributed the break-up of his marriage to the pain. The respondent told Dr McEwin that he was lucky to have such a light job with the appellant, that all he had to do was press buttons, and that he could stand and move around and take whatever posture suited his pain. 18 According to a report by Mr Patrick, when examined on 30 January 1995 the respondent complained of low back pain radiating to the lower limbs, with difficulty with frequent bending and inability to do any heavy lifting and aggravation if he sat or stood for too long. The respondent again said that the back injury made him irritable and contributed to the break-up of his marriage. He said that he was unable to engage in, amongst other recreations, golfing and fishing. Again the respondent said that his current work was light work, and that it "mostly entails pushing buttons". 19 In the latter part of the cross-examination the histories as recorded by these doctors were put to the respondent. In substance, he variously maintained that he could not recall what he told the doctors, that he would have told them that he did not have any major problems with his back, and sometimes that he did not tell the doctor what was recorded. The exercise was not persisted in when counsel for the respondent agreed that the doctors' reports could be tendered and it was not necessary to put the histories "laboriously". It was specifically put to the respondent that he had "played down the real effects of the 1986 accident … in order to mount a case here", which he denied. From a reading of the printed word in the transcript, the explanations of the histories as recorded were far from satisfactory, and the respondent's credit was and remained very much in question. 20 Doctors do not necessarily record histories accurately or in terms truly reflecting their patient's complaints. The consistency in the reports to which I have been referred, and the claims in the Brake & Clutch proceedings, suggested that this was not a problem from which the reports suffered. There was a clear issue as the contribution of the 1986 injury to any impairment of which the respondent complained following the 1996 injury, and as part of that issue a real question as to the respondent's credit. The Brake & Clutch judgment 21 Since the judgment referred to the 1996 injury, the hearing before Garling DCJ must have been after 19 January 1996. The judgment included - "The plaintiff gave evidence that he commenced work with the defendant about twelve months before his injury. He was doing relatively light work as a machine operator. There was no real bending or heavy lifting. As a result of the accident he injured his back. The next day he saw his doctor. He could not do the heavy lifting involved at work and his employment was terminated in May 1987. He was paid worker's compensation until 18 June 1989. He was sentenced to two years imprisonment from March 1992 to March 1994. Before he went to gaol he said he could have done light duties. But he was having problems with his back with lifting and repetitive bending. He was looking for suitable work. In late 1989 he had worked as a furnace man for about one month. In March 1994 he obtained a casual job at Franklins. On 11 July 1994 he commenced work at BHP Steel as a packer. The job did not require much bending or lifting. On 17 January 1996 he was injured at work. His position prior to that injury was that his back was not too bad. He had problems with his back from time to time. Heavy lifting continued to cause pain in his back . Under cross-examination the plaintiff admitted that until he married he was illegally in Australia. He had submitted various statutory declarations claiming his spouse was dependent when she was not. He had a different name. He had not told BHP about his back injury. I must say I was not impressed by the way the plaintiff gave his evidence and I am not prepared in the light of the various lies he has told over the years and lies he has told in statutory declarations to accept his evidence unless it is corroborated. He has shown he is prepared to make false statements and to lie". (Emphasis added) 22 Garling DCJ held that Brake & Clutch was liable to the respondent. He found that the respondent had pain and disability until 18 June 1989, and that if he had any pain and disability after that it was not of a serious nature and he was fit for work. He awarded damages of $82,511, which amount included economic loss to 14 June 1989 but not thereafter. 23 The respondent tendered the judgment. The appellant objected to the tender. The bases on which the judgment was tendered, on which the tender was objected to, and on which the judgment was received into evidence are unclear from the transcript: I will return to this. The judgment was not marked as an exhibit, but it was common ground in the appeal that it had been received into evidence. The reasons of Herron DCJ 24 At a fairly early point in the reasons his Honour said - "There are some problems in the matter, mainly that in 1986 he had a back injury and it was put to him in cross-examination that even whilst he was working with the BHP company he was complaining for example to Dr Patrick and others that he was still having problems in relation to the 1986 accident. It may be that it was just before he started with the BHP company, but that was the position and indeed he had an action on foot so far as that particular matter was concerned. I shall come back to that in a moment." 25 His Honour addressed liability, and concluded that the appellant had been negligent. He went through a number of reports of doctors qualified for the respondent and supportive of impairment from the 1996 injury. He then came back to the 1986 injury and the Brake & Clutch proceedings. 26 His Honour said - "As I say the fact of the matter is that he suffered an injury in 1986 and incredible as it may seem although the action apparently was brought in this Court in 1990 there was not a final resolution of it until 19 July 1996, a time of course when he was working with the defendant company. Tendered in evidence were reports from Dr Patrick and Dr Rivett,by whom he was examined in connection with this 1986 accident and it was put to him, there is a report for example, of Dr Patrick, dated 30 January 1995 and a report of Dr Rivett, 19 February 1992 and it was put to him that indeed he was complaining in 1995 of problems in relation to his back then before the incident which brings us here and Dr Patrick was of the view that the probability was that Mr Ali, and incidentally he went under that name at some stage, had: 'Sustained a significant low back injury in the lifting incident at work on 15 October 1986 now more than eight years ago. He has probably sustained some low lumbar disc injury at this time.' He spoke about his having significant ongoing problems. Of course, it was submitted to me that what he is now suffering is merely a continuation of the symptoms about which Dr Patrick was speaking. The plaintiff himself, however, says that by the time the matter came on for hearing, at least before his Honour Judge Garling, who gave judgment in the matter on 19 July 1996, he was not having in effect much trouble with his back and he pointed to the fact that he had been continuously employed by the defendant for over two years and had he had any real difficulties with his back then that would have prevented him from doing this work. I think that Mr McKinder's [sic] evidence to which I have already referred is important in this regard and the fact of the matter was as I have already said there was never any complaint by the defendant through its foreman about the work which he was performing for the defendant and indeed he was on the road to advancement and might I add earning what would seem to be very generous wages which is another reason to wonder why a person in the plaintiff's position, notwithstanding his past history would elect to leave such a reasonably lucrative position, but for the fact of some disability he had. Dr Rivett in 1992 spoke about his being unfit for heavy lifting as a result of the 1986 accident and Dr McEwen [sic], who was a well known medical practitioner, and of some eminence in the medical profession incidentally, which I suppose comes from my own knowledge, but be that as it may he examined him on 19 December 1994, and observed: 'He is a pleasant cheerful man and he looks physically well. He appeared to move easily and was able to undress quickly and easily including taking off his shoes and socks and trousers.' That is the observation of a skilled practitioner and bears out to some extent, if not to a great extent, the proposition which the plaintiff puts in answer to questions in turn put to him in cross-examination. At the time when he began with the BHP company his back was not troubling him that much. Likewise, even in 1990 Dr McEwen [sic] seemed to think that he was not very incapacitated and I would refer to a report of 14 May 1990. Nevertheless, when the matter came before Judge Garling, either on or sometime before 19 July 1996 the plaintiff was complaining about back problems, he did however say as his Honour quotes in his judgment which has been put before me that his back was not too bad prior to the present injury about which he spoke. On 17 January 1996 his Honour said he was injured at work, that is the accident which brings us here. His position prior to that injury was that his back was not too bad and I merely quote his Honour's judgment to record that obviously was what the plaintiff told his Honour in Court. I am not of course concerned with respect with his Honour's judgment in the matter relating to what in fact the plaintiff had proved in relation to his back, but it is important to bear in mind that his Honour did not allow any future loss of income earning capacity in relation to that matter. Mr Lidden referred me to the Kempsey Hospital v Thacum [sic: Kempsey District Hospital v Thackham ] (1995) 36 NSWLR at 492 where there is a discussion as to future entitlements which have to be deducted. But the Court of Appeal seems to me to be dealing with Workers' Compensation problems rather than the problems of damages at Common Law. But be that as it may, I would accept the submission that it is important to bear in mind here that his Honour found that the plaintiff was not entitled to future loss of income earning capacity for example so there is no danger if I should award him such that there is a double dipping if I can use that expression." [Emphasis added] 27 His Honour then referred to reports of doctors qualified for the appellant to the effect that the 1996 injury did not contribute to the respondent's impairment, indeed in some cases that the respondent was exaggerating his present condition. He expressed the conclusions "that indeed this procedure which brings us here did in fact have an effect upon this man's back" and that "the probabilities are that this man is suffering the problems which he complains of". Saying that the respondent was "still suffering from disability in relation to this accident and that he will go on indefinitely" although he was "not by any means completely incapacitated", his Honour proceeded to find amounts for various heads of damages. They included $154,868 for past loss of wages, $133,100 for future loss of wages and $65,610 for non-economic loss. Discussion 28 We are fully aware of the pressures under which judges of the District Court operate. Nonetheless the reasons are, with respect, expressed in a manner which leaves a number of matters unclear, and are at times not easy to understand. 29 It is evident that his Honour did not accept the submission recorded in the terms that what the respondent was suffering was "merely a continuation of the symptoms about which Dr Patrick was speaking". That is, his Honour must have found that the respondent was not suffering from any material consequences of the 1986 injury during his employment with the appellant, and his Honour must have found that there was a significant 1996 injury with consequences for which damages were assessed without any contribution from the 1986 injury. 30 On our reading of the reasons, his Honour so found because of two matters. One was that the respondent had given evidence before Garling DCJ to the effect that prior to the 1996 injury his back was satisfactory. The other was that, in the light of the evidence of Mr Mackinder, because the respondent was able to perform his duties whilst employed by the appellant without apparent difficulty it was unlikely that he was in fact affected in the manner claimed in the Brake & Clutch proceedings and recorded by Drs Rivett and McEwin and Mr Patrick. Both matters were, in our view, material to and the foundation of his Honour's conclusions. 31 That takes us to the submission that his Honour erroneously relied on the judgment of Garling DCJ in the Brake & Clutch proceedings. We note that his Honour did not directly explain why he found as he did in the face of the claims in the Brake & Clutch proceedings and what the respondent told Drs Rivett and McEwin and Mr Patrick, and did not advert to the question as to the respondent's credit – a question with significance beyond the respondent's true condition whilst employed by the appellant. It is not necessary to consider the appellant's submission that his Honour's reasons were thereby appealably unsatisfactory. 32 The respondent submitted that his Honour had not used the judgment in the Brake & Clutch proceedings as proof of evidence given by the respondent in those proceedings, but had used it only for the permissible purpose of ascertaining that the damages awarded had not included a component for future economic loss. The respondent referred in particular to the words, "I am not of course concerned with respect with his Honour's judgment in the matter relating to what in fact the plaintiff had proved in relation to his back … ". However, we consider that in those words his Honour was disclaiming reliance on Garling DCJ's findings, which is not the same as disclaiming reliance on the respondent's evidence given in the proceedings as revealed in the judgment. 33 That his Honour used the judgment in the Brake & Clutch proceedings as proof of evidence given by the respondent in those proceedings is apparent, in our view, from the emphasised parts of the passage from his Honour's reasons set out above. As to the part of the passage first emphasised, the respondent's evidence before Herron DCJ did not include evidence to the effect that by the time of the hearing before Garling DCJ he was not having much trouble with his back. It could hardly have done so, because the hearing before Garling DCJ was after the 1996 injury. His Honour could only have been referring to what the respondent said in evidence before Garling DCJ, and the only source for that was the judgment. Then in the part of the passage secondly emphasised his Honour expressly took from the judgment that the respondent had said that his back was not too bad prior to the 1996 injury. 34 As we have said, the bases on which the judgment was tendered, was objected to and was received into evidence are not clear from the transcript. The appellant's objection included that "nobody has for what it is worth, the complete transcript of what was … ". Presumably the objection was understood as referring to the complete transcript of what was said before Garling DCJ. From this it seems that the objection included that Garling DCJ's rendition of the evidence given before him could not be received in place of the transcript of the evidence itself. 35 The judgment was evidence of a previous representation by the respondent and as such was prima facie excluded by the hearsay rule. It was far less satisfactory evidence of such representation than the transcript would have been, because the respondent's evidence would best have been seen in context and subject to any nuances or qualifications apparent from the transcript as a whole. The respondent did not submit that the judgment was admissible to prove the respondent's evidence under an exception to the hearsay rule or by virtue of s 60 of the Evidence Act 1995, and accepted that the judgment was not admissible to prove what the respondent had said in evidence before Garling DCJ and that it was not open to his Honour to use it for that purpose. His Honour's reliance on the judgment for that purpose was erroneous. 36 In our opinion, that aspect of the judgment in the Brake & Clutch proceedings must have been important to his Honour's conclusions earlier noted. What the respondent said in the Brake & Clutch proceedings was his most recent expression of his condition as a result of the 1986 injury, given in circumstances when he might have had particular regard for the truth and potentially qualifying his complaints to Drs Rivett and McEwin and Mr Patrick: it seems, although the reasons are unfortunately obscure, that his Honour gave it prominence for that reason. The erroneous use the judgment to provide one of the grounds which combined to produce the conclusions favourable to the respondent vitiates the conclusions. We do not think that we can regard them as supported by the reliance on the evidence of Mr Mackinder alone. 37 It is unnecessary to deal with the other matters raised in the appellant's grounds of appeal. Orders 38 (1) Appeal allowed with costs. (2) Verdict and judgment for the respondent set aside. (3) Proceedings remitted to the District Court for a new trial limited to assessment of damages. (4) Respondent to have a certificate under the Suitors Fund Act if otherwise qualified. _______________ 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.