New South Wales Court of Appeal CITATION : O'Brien Glass Industries Pty. Limited v. Bahmad [2001] NSWCA 224 FILE NUMBER(S) : CA 40710/00 HEARING DATE(S) : 8th June 2001 JUDGMENT DATE : 11 July 2001 PARTIES : O'Brien Glass Industries Pty. Ltd. - appellant Robert Bahmad - respondent JUDGMENT OF : Powell JA at 1; Beazley JA at 2; Hodgson JA at 3 LOWER COURT JURISDICTION : Compensation Court LOWER COURT CC31064/99 FILE NUMBER(S) : LOWER COURT Judge Walker JUDICIAL OFFICER : COUNSEL : Mr. J.D. Hislop QC with Mr. J.W. Catsanos for appellant Mr. S. Walmsley Sc with Mr. P. Stockley for respondent SOLICITORS : PricewaterhouseCoopers Legal, Sydney for appellant Paul A. Curtis & Co., Sydney for respondent CATCHWORDS : WORKERS COMPENSATION - Appeals - Error of law - Denial of procedural fairness - Finding as to credibility - Whether stereotypes wrongly applied - Whether judge should have signalled need for interpreter. ND CASES CITED: Marelic v. Comcare (1993) 121 ALR 11 DECISION : Appeal dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40710/00 CC 31064/99 POWELL JA BEAZLEY JA HODGSON JA Wednesday 11 July 2001 O'BRIEN GLASS INDUSTRIES PTY. LTD. V. BAHMAD JUDGMENT 1 POWELL JA: I agree with the reasons on Hodgson JA as set out below. 2 BEAZLEY JA: I also agree with the reasons of Hodgson JA as set out below. 3 HODGSON JA: This is an appeal by an employer O'Brien Glass Industries Pty. Limited against an award of workers compensation in favour of a worker Robert Bahmad made by Judge Walker on 10th August 2000. BACKGROUND 4 The respondent had commenced employment with the appellant as a glazier on 25th June 1998. On 3rd July 1998, he attended with another glazier to repair a broken window high up a steeply pitched iron roof of a church at Newtown. Their extension ladder did not reach from the ground to the window, and it was placed on a steel exhaust duct suspended above the roof of an annex at the side of the church. The other glazier climbed the ladder to repair the window, and the respondent held the ladder while he was doing this, for a period of up to twenty-five minutes. 5 The respondent's claim was that, because of the insecure position of the ladder, in order to ensure that it stayed in place, he had to push with all his force from a braced position, demonstrated (as described by the primary judge) as involving bending the right leg at the knee, holding the left leg straight, leaning forwards bent at the waist with arms straight pushing at shoulder height. The respondent claimed that he felt a sharp pain in his elbows and shoulders during this time. 6 The respondent did not report his claimed injury to the appellant, and did not consult a doctor until some days later. He continued to work for the appellant until 12th August 1998, when his employment was terminated for reasons unconnected with any injury. Since that time, the respondent claimed that he had done some unpaid work and some small paid jobs as a glazier, but that otherwise he had been unemployed. 7 In his application for determination, the respondent claimed that he had suffered "injury to both arms, injury to both shoulders, injury to both elbows, injury to lower back", and he claimed total incapacity for work from 12th August 1998 and continuing. 8 The primary judge made the following findings and awards: I summarise my findings as follows: 1. Arising out of and in the course of his employment with the applicant on 3 July 1998 the applicant sustained the following injuries: (a) Chronic musculo-ligamentous strains to his: (i) back (ii) neck (iii) both arms (b) Bilateral epicondylitis (c) Bilateral carpal tunnel irritation (d) An aggravation of a pre-existing degenerative condition of his cervical and lumbar spines resulting in discal damage at C4/5, C5/6, L4/5 and L5/S1 together with nerve root irritation and referred pain into his head, both arms and both legs. 2. The applicant has sustained the following losses and impairments: (a) a permanent impairment of his back (b) a permanent impairment of his neck (c) a permanent loss of the efficient use of his right leg (d) a permanent loss of the efficient use of his left leg (e) a permanent loss of the efficient use of his right arm (f) a permanent loss of the efficient use of his left arm 3. The applicant is entitled to lump sum compensation pursuant to s 66 for: (a) a 30 per cent back impairment (b) a 20 per cent neck impairment (c) a 10 per cent right leg loss (d) a 10 per cent left leg loss (e) a 15 per cent right arm loss (f) a 15 per cent left arm loss 4. I apply s 68A to make the following reductions in the applicants s 66 entitlements (a) The back by 3 per cent to 27 per cent (b) The neck by 2 per cent to 18 per cent (c) Both legs by 1 per cent to 9 per cent (d) Both arms by 1.2 per cent to 13.8 per cent 5. The applicant is entitled to lump sum compensation pursuant to s 67 representing 50 per cent of a most extreme case. 6. The applicant was totally incapacitated for work from 12 August 1998 and continuing. The applicant is therefore entitled to weekly benefits for 26 weeks from 12 August 1998 at the rate for $573 per week and thereafter at the rate applicable under s 37 from time to time for a worker with a dependent wife and 3 dependent children. AWARDS I therefore make the following awards: 1. The respondent pay the applicant pursuant to s 66: (a) For his 27 per cent back impairment $16,200 (b) For his 18 per cent neck impairment $7,200 (c) For his 9 per cent right leg loss $6,750 (d) For his 9 per cent left leg loss $6,750 (e) For his 13.8 per cent right arm loss $11,040 (f) For his 13.8 per cent left arm loss $10,350 2. The respondent pay the applicant pursuant to s 67 $25,000 3. The respondent pay the applicant the following weekly benefits: (a) From 12 August 1998 pursuant to s 36 for 26 weeks at the rate of $573 per week. (b) Thereafter pursuant to s 37 at the rate applicable from time to time for a worker with a dependent wife and three dependent children. I grant leave to apply if the parties cannot agree on these payments. 4. The respondent pay the applicant interest on the arrears in weekly benefits at the rate of 3 per cent per annum from the date the claim was duly made. I grant leave to apply if the parties cannot agree on this amount. 5. The respondent pay the applicants medical expenses pursuant to s 60. 6. The respondent pay the applicants costs. 9 The respondent's credibility was a major issue at the trial. The primary judge found to the effect that he was a credible witness, and in substance the primary judge accepted the respondent's evidence. He made the following statement in his judgment prior to dealing with questions of fact: 160. Before I make any determinations on these questions of fact I should first make some comments about some communication and related cultural problems I discerned in conducting the hearing. 161. I hold the view that judges at first instance should strive to be aware and understand difference arising from gender, race, religious conviction, culture, ethnic background, sexual orientation and disability. 162. The applicant did not use an interpreter and notwithstanding Mr Catsanos' submissions to the contrary I found his comprehension skills to be extremely poor and his communication skills in English little better. Mind you, the applicants evidence is that he received only a brief education in war torn Lebanon and I suspect that his language comprehension and expression may have been just as inadequate in the Arabic language. 163. Mr Bahmad also had very poor attention skills and frequently failed to concentrate on counsels questions. He seemed to try to get the general gist or direction of the question rather than focussing his attention on its specifics. He became extremely confused when asked to compare past and present situations. 164. Mr Bahmad was also a very emotional personality given to dramatic reaction and outbursts when accused of being a liar. He also had the disconcerting habit of suddenly leaving the witness box to demonstrate a point. In reserved Anglo Saxon culture these character traits would no doubt be frowned upon as "histrionics" as Mr Catsanos described them or to use the more restrained language of Dr Bornstein "very demonstrative". 165. I make these observations only in relation to the applicants credit taking the view that it would not be fair for this Court to characterise conduct which would not be seen to be out of the ordinary in Mr Bahmads culture as evidence, in itself, that his testimony should not be believed. Nor do I believe it is fair to accuse Mr Bahmad of falsehoods or inconsistencies on occasions when he clearly did not grasp the gravamen of the question. 10 The primary judge gave the following reasons for finding total incapacity for work: 269. The applicant claims weekly benefits on the basis of total or alternatively partial incapacity for work. 270. His actual earnings since leaving the respondents employ have totalled $533 from two glazing jobs. 271. Access Rehabilitation conducted a vocational assessment on 15 February 1999 concluding that he had the following transferable skills: • Competency in design and manufacture of stained glass • Management experience • Computer experience on Cad-cam programs • Cutting and design of stained glass figures after functional assessment. 272. They felt he was unfit for work involving repetitive shoulder movements, working overhead and repetitive bending, crouching or prolonged sitting, standing or walking. 273. Dr Bleasel says his is unfit for any strenuous work with no ladder climbing. 274. Dr Searle says he is permanently unfit for any form of work which requires strong or repetitive movements of the hands or static loading of either hand, arm, sustaining the neck flexion posture, prolonged sitting or staining, lifting or repeated bending, or regularly travelling moderate distances. 275. Dr Mahony on 26 March 1999 considered him unfit for work. 276. Mr Catsanos suggests on behalf of the respondent that I should find the applicant is exaggerating and fit for all work. I have not accepted that view about the applicants credibility. 277. Alternatively Mr Catsanos suggests he could work in a shop or drive a taxi or perform flight industrial work or flight cleaning. 278. The Court of Appeal in Moran Health Care Services v Woods (1997) 14 NSWCCR 499 held that in assessing whether a worker is totally incapacitated the Court is involved in the assessment of a capacity " for work" having regard to the realities of the labour market in which the worker is to be engaged. The Court must assess whether the disabilities or pain or both from which the worker suffers by reason of his or her compensable injuries are such that the worker is able to do those things which will permit the worker to do work in the relevant labour market. 279. The Court went on to say that there will be a number of cases where, despite the evidence of even concession that the worker may be able to perform some tasks in some circumstances that a finding of total incapacity is sustainable in law. 280. The applicant has had a very limited education but has managed to gamer some useful qualifications in the glass industry and some elementary learning in management. His English is good enough to work in a factory or a shop. 281. His labour market uninjured is very much in the glazing industry including stained glass work. 282. The medical evidence that I accept is that he cannot do the work of a glazier. His poor track record as a manager and businessman when fit and healthy does not hold out much hope that he could make a living for himself given the restrictions imposed upon him by his medical advisers. Work as a taxi driver which involves prolonged sitting and some heaving lifting is out of the question on the medical evidence. Light industrial work usually involves prolonged standing sitting or repetitive movements and lifting. Light cleaning involves prolonged standing, bending, crouching and some lifting. Again I cannot see the applicant performing such work. 283. The fact is that given his compensable injuries and the significant restrictions they bring with them, his limited education and his narrow training for work in Australia it is impossible to realistically identify a market into which the applicant could sell his labour. 284. Taking all the evidence into consideration on the balance of probabilities I determine that the applicants labour is unsaleable in the relevant labour market. 285. Accordingly on the balance of probabilities I determine that Mr Bahmad has been totally incapacitated for work from 12 August 1998 and continuing. 286. The applicants current weekly wage as at 12 August 1998 according to the Wage Schedule was $573. 287. The applicant is therefore entitled to weekly benefits pursuant to s.36 at the rate of $573 per week for 26 weeks. Thereafter he is entitled to the rate applicable from time to time under s.37 for a man with a dependent wife and 3 dependent children. 11 The appeal is brought on the following grounds: 1. This appeal is of right based on Compensation Court Act 1984 Section 32, being an appeal from the award of Judge Walker down on 11 August 2000 involving (directly or indirectly) a claim for, or question relating to, an amount of $100,000. 00 or more. 2. His Honour failed to accord the Appellant procedural fairness in that His Honour: a. Permitted the Respondent to give evidence without an interpreter when, in His Honour's opinion, the Respondent's poor communication skills in English were little better than extremely poor; b. Did not promptly bring to the attention of the Appellant His Honour's opinion of the Respondent's communication skills in English; c. Proceeded to determine the case (where the Respondent's credit was a critical issue) by excusing matters adverse to the Respondent on the basis of the Respondent' (sic) poor communication skills in English; d. Determined issues of credit adversely to the appellant by reference to the Respondent's culture without informing the Appellant that such would be relied upon by His Honour or indicating the basis for His Honour's belief as to what conduct would not be seen to be out of the ordinary in the Respondent's culture; e. Relied upon His Honour's opinion of the Respondent's comprehension and attention skills in determining the case adversely to the Appellant but at no stage did His Honour raise the matter with Counsel for the Appellant. 3. His Honour misdirected himself as to the appropriate test to apply to determine if the Respondent was totally incapacitated for work. 4. There was no evidence to support His Honour's conclusion that the Respondent was totally incapacitated for work from 12 August 1998. 12 I will deal in turn with the ground relating to lack of procedural fairness and the grounds concerning the finding of total incapacity from 12th August 1998. LACK OF PROCEDURAL FAIRNESS Submissions 13 Mr. Hislop QC for the appellant first pointed out that there was a major credit issue in the case. He submitted that the respondent's allegations were inherently unlikely, involving as they did extensive injury arising out of holding a ladder for no longer than twenty-five minutes, in circumstances where there was no suggestion of any traumatic incident, and where the respondent did not report the injury until five to eight weeks later, did not consult a doctor until about ten days later and then complained only of waking up with right shoulder pain, and continued employment for more than five weeks, when it was terminated for reasons unconnected with the incident. The respondent alleged that he complained about the injury to the other person present, and this was denied. 14 Mr. Hislop submitted that the respondent was cross-examined at length, and performed very badly. Referring to paragraphs 160 to 165 of the primary judge's reasons, quoted above, Mr. Hislop submitted that the racial, cultural and ethnic differences referred to by his Honour were not identified, nor were they the source of any observations during the hearing. Had these matters been referred to during the hearing, at least they could have been the subject of cross-examination and submission, if not of evidence. 15 In so far as the primary judge relied on the absence of an interpreter, Mr. Hislop submitted, it must be the case that the judge had formed an impression during the hearing that this was the case, and accordingly that he knew that, if the hearing continued without an interpreter, there was a risk of injustice to one side or the other. It was a matter for the respondent and his advisers to determine whether an interpreter was necessary, and to call the respondent without an interpreter amounted to a representation to the appellant and to the Court that the respondent was capable of understanding questions and communicating the truth to the Court. If the judge considered this not to be the case, then he should have raised it during the hearing, to give the appellant an opportunity to address the problem. The matter was adverted to in final submissions, but this was too late. 16 Mr. Hislop submitted that the cumulative effect of these matters, and other matters referred to in paragraphs 160 to 165 of the judgment, was that the primary judge took the view that he would not hold inconsistencies in the respondent's evidence against him. By taking that view on the basis of matters not squarely raised and debated before him, the primary judge had denied the appellant procedural fairness. Decision 17 It was conceded by Mr. Hislop that a finding as to the credibility of a witness is a finding of fact, as to which there is no appeal. However, Mr. Hislop submitted that a denial of procedural fairness does amount to an error of law. 18 In my opinion, there are circumstances where a finding as to the credibility of a witness could be vitiated by denial of procedural fairness. If a judge did not take account of plain inconsistencies in a party's evidence, on a ground never canvassed at the hearing either in evidence or in submissions, then this certainly could amount to a denial of procedural fairness and could constitute an error of law. 19 In this case however, there is no part of the judgment which suggests that the primary judge disregarded inconsistencies in the respondent's evidence. It is true that paragraph 161 of the judgment, in isolation, could read as suggesting that the primary judge was proposing to give weight to stereotypes concerning the race, culture and ethnic background of the respondent, these being matters as to which no evidence had been led or could be led. However, my opinion is that, on a fair reading of all the paragraphs 160 to 165, they indicate rather that the primary judge was concerned to avoid giving weight to stereotypes of any kind, and to assess the respondent as an individual on the basis of his own observation of him; and on that basis, to have regard to observed limitations in the respondent's ability to understand questions and to deal appropriately with them, and also to his observed emotional character. These are matters appropriately taken into account in assessing the credibility of witnesses, and do not generally need to be explicitly raised during the course of the hearing. In my opinion, there was in this case no occasion for the primary judge to signal any view as to the need for an interpreter. 20 In my opinion also, the case is very different from Marelic v. Comcare (1993) 121 ALR 114, referred to by Mr. Hislop: in that case, a tribunal had found that an applicant had exaggerated or contrived symptoms that she relied on in relation to a compensation claim, in circumstances where there had been no cross-examination on this matter, and where the other party had expressly disavowed the suggestion that the symptoms were feigned or exaggerated. In those circumstances, the Court held that the tribunal should have communicated the possibility of using its observations of the applicant so as to come to this conclusion. In the present case, however, what was relied on by the primary judge was no more than very ordinary and usual considerations relied on by courts in assessing the credibility of witnesses. 21 Accordingly, in my opinion this ground of appeal is not made out. FINDING OF TOTAL INCAPACITY Submissions 22 In relation to grounds 3 and 4 of the appeal, Mr. Hislop submitted that the primary judge's finding that the respondent was totally incapacitated from 12th August 1998 was one which could not properly have been made on the evidence. 23 Mr. Hislop submitted that the respondent had been doing his normal job, and probably also overtime, right up to the last day that he worked, and he ceased work for reasons unrelated to any alleged incapacity. There was no evidence of any change in his capacity to work at that time. 24 Mr. Hislop submitted that the only medical evidence which could support the primary judge's finding was that of Dr. Kanawati and Dr. Mahoney. Dr. Kanawati saw the respondent on 17th August 1998, and gave a medical certificate that the respondent was fit for suitable duties from 10th July 1998 to 10th December 1998, with restrictions "no bending and no pushing and no lifting of heavy objects (less than 5kgs)"; while Dr. Mahoney did not see the respondent until 10th February 1999, when he considered him "unfit for work". 25 Mr. Hislop referred to Ambulance Service of NSW v. Daniel (2000) 19 NSWCCR 697, and submitted that, since the onus was on the respondent to establish fitness for work, the appeal court could and should consider whether the evidence, if fully accepted, could properly base that finding of fact. 26 Mr. Walmsely submitted that there was evidence which could support the finding of fact. He also pointed to evidence from the respondent himself that he felt something serious was wrong about a couple of weeks after the accident. Decision 27 No appeal lies from the Compensation Court on the questions of fact, so it is not for this court to consider whether the decision was a reasonable decision on the facts. 28 The case of Moran referred to by the primary judge establishes that the question of total incapacity is to be assessed having regard to the realities of the labour market. In my opinion also, this is an area where the expertise of the Compensation Court as a specialist tribunal is particularly relevant. 29 The primary judge's finding was not that the respondent was incapable of doing any work, but rather that the appellant's ability to work was such that his labour was "unsaleable in the relevant labour market". Having regard to the decision in Moran, that was not an incorrect test; and in my opinion the evidence referred to by the primary judge could properly support that conclusion. Although there was no sudden change in the respondent's ability to work on 12th August 1998, there was then the sudden change that he could not be gainfully employed from that time, unless he was able to sell his labour in the relevant market. As I have stated, there was evidence which could support a finding that he could not do this. conclusion 30 For those reasons, in my opinion the appeal should be dismissed with costs. ********* 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.