Boral Besser Masonry Ltd v Jabarkhill

COUNSEL : Appellant - J.D. Hislop QC / J. Catsanos Respondent - P. Webb QC / B. Batchelor SOLICITORS : Appellant - Moray & Agnew Respondent - Galuzzo Golotta Adriano Simone CATCHWORDS : Workers compensation; trial practice CASES CITED: Belan v Liner Freight Services Pty Ltd (1994) 10 NSWCCR 357 MMI Workers Compensation (NSW) v Kennedy (Court of Appeal, 17/9/93, unreported) DECISION : Appeal allowed - new trial ordered

WORKERS COMPENSATION - TRIAL PRACTICE - orders made for applicant worker on basis neither pleaded nor otherwise contended for by worker - no notice by trial judge of intention to decide case on this basis - per Mason P and Priestley JA, (Stein JA dissenting), no opportunity to employer to be heard in regard to the case as decided by trial judge - orders set aside - new trial ordered. ORDERS 1. Appeal allowed. 2. Orders of trial judge set aside. 3. There is to be a new trial of the worker's claims in the Compensation Court. 4. Respondent to bear appellant's costs of appeal. 5. Respondent to have a certificate under the Suitors Fund Act.

1 MASON P: I agree with Priestley JA. 2 PRIESTLEY JA: As applicant in the Compensation Court, the respondent to this appeal claimed and obtained orders for weekly and lump sum compensation in respect of back and neck injuries sustained on 11 February 1996 and 30 May 1996. The employer appealed to this court on five grounds which can be stated under two headings: denial of natural justice (or denial of procedural fairness as it is often also called today) and absence of evidence for material findings. 3 The course of the trial. The trial judge's reasons. The worker's claim was presented to the court, both in his written claim as amended and at the trial itself, as an "orthopaedic injury" case. His counsel explicitly declined to plead or rely upon any psychiatric injury or condition both during the giving of the evidence, and in address, as was twice noted by the trial judge in his reasons for decision ("... the applicant's legal advisers chose to conduct the case as an orthopaedic injury" (p 4 of his reasons); "there is no psychological work injury particularised or claimed" (p 16 of his reasons)). 4 In consequence, throughout the hearing the appellant had no reason to believe that the claim would be determined otherwise than on the basis only of its being an "orthopaedic injury" claim. Counsel for the respondent was quite clear about this in address. 5 Apart from the orthopaedic injuries alleged, the respondent suffered from a large number of non-work related problems, notably a myelopathy, diabetes, an ulcer, a thyroid abnormality, liver problems, a hiatus hernia, heart problems and a psychiatric condition. 6 This court has available to it a full transcript of the evidence and submissions in the case. From some of the matters raised by the judge with counsel in the course of their final submissions, it appears that his Honour was concerned about how he should deal with the credibility of the respondent. The respondent had given evidence on two days, and on one of these had behaved in a way which was described as "bizarre". There had been occasional references in the evidence to the fact that the respondent had had psychiatric treatment. The judge raised the question with counsel whether he might take that into account in assessing the respondent's credibility. 7 In the trial judge's reasons he gave extended consideration, under the heading "The applicant's credit", to the question whether he could accept any parts of the respondent's evidence as reliable. In reaching his conclusion on this he took into account his understanding of the respondent's psychiatric condition and the effect upon him of the medication he was taking from time to time. His conclusion was that the respondent was telling the truth about some relevant matters but that for the period between June 1996 and June 1998 he would give no weight to his evidence. 8 Later in his reasons the trial judge considered a further question, quite distinct from that of the respondent's credibility, namely, whether on the evidence he could draw the inference that the respondent's symptoms were connected with his work injuries. After reviewing the sequence of facts, the trial judge said: " The applicant's medical advisers accept that the pain is ongoing and the injuries have become permanent. What needs to be explained by the evidence if I am to make a determination in the applicant's favour is his lack of objective signs, his dramatic presentation of pain that does not fit normal anatomical explanations and the progression of that pain to other parts of his body. " 9 He then proceeded to say that the explanation was to be found in the combination of a number of factors: there was evidence that the respondent's pain was "essentially somatic"; one doctor had said if malingering could be excluded then there was a significant functional and/or psychiatric element prompting the respondent's symptoms and the judge's view was that the respondent was not a malingerer; evidence of depression which helped to explain the respondent's memory loss and theatrical presentation; and his own opinion that the respondent had developed "sympathetically maintained pain". He then referred to evidence from two doctors that it was possible that the work injuries had caused the respondent to develop a functional condition causing him to somatise pain through his central nervous system. 10 It seems clear that the trial judge's conclusion that there was a causal relation between the respondent's work injuries and his eventual symptoms was based on his opinion that those eventual symptoms, although not explicable orthopaedically, were "functional". This was an essential element in the trial judge's conclusions about liability. 11 Denial of natural justice (procedural fairness). For the appellant it was submitted that the appellant had been denied procedural fairness at the trial by the judge's use of the psychiatric aspect of the case to decide both questions of credibility of the respondent and causation. 12 To succeed in setting aside a judgment on the natural justice ground it will not always be sufficient for an appellant to show a denial of natural justice. Occasionally it may appear that it was highly likely that the same judgment should have been arrived at in any event, so that it would be pointless to order a new trial. When that appears sufficiently clearly the court may refuse to uphold the appeal; but that position would have to very clear before the court would withhold relief. 13 In the present case I do not accept that there was anything procedurally unfair in what the trial judge did in his consideration of aspects of the respondent's credibility. On my reading of the transcript, the possibility the judge would adopt the method he did in dealing with the respondent's credibility was sufficiently raised with counsel for counsel to be able to make any submissions that may have been open to him on that matter. 14 However, the situation is different in regard to the use the trial judge made of the psychiatric aspect of the case in determining liability. The respondent did not base his case on the matters used by the judge. No particulars of such a case had been given. It was the practice of the Compensation Court to require particulars to be given in advance of such a case. The trial judge did not indicate in the course of discussion with counsel during their addresses that he might approach the issue of liability in the way that he did. 15 One of the arguments put to this court in defence of the claim of procedural unfairness was that in the practice of the Compensation Court, where many cases are routinely disposed of very expeditiously, practitioners become used to shorthand approaches, both by practitioners themselves and the judges, to many medical matters, where there is a common understanding of medical knowledge much greater than is regularly available to practitioners in other jurisdictions. It was submitted that the judge was entitled to use his own medical knowledge, the references to the psychiatric situation were in the materials before the court and, in the way that things are habitually done in that court, it was not unfair for the judge to have decided the case the way he did. Implicit in this is the idea that had the judge made known his intentions nothing would in any event have happened differently in the course of the case. 16 Without expressing any opinion on the bulk of the argument in the preceding paragraph I nevertheless do not accept the proposition in the last sentence. It does not follow from the fact that the appellant's counsel dealt with the psychiatric possibilities in the way that he did when they were relevant only to the issue of credibility, that he would have done nothing more if he had ever had any inkling that the judge would widen his use of them to the questions of liability and causation. In fact, I myself would draw the inference that some further steps would have been taken and in that event, it could not be said, in my opinion, that there was not some real possibility that the result of the case may have been different. 17 It may be that had the judge made known to counsel what he had in mind, counsel would not have taken the step that to someone outside the jurisdiction seems obvious, namely, in view of the unexpected development, an application for an adjournment for the obtaining of a psychiatric report. But counsel, even if he did not ask for that, once he knew what was in the judge's mind as a possibility, would have been able to make submissions to the judge about the psychiatric situation, relying on his own medical knowledge; that is, on the common ground in that jurisdiction of more than usual medical expertise amongst judges and practitioners, counsel at the very least would have been able to argue with the judge about this matter of psychiatric connection between the injuries and their eventual (alleged) consequences. The opportunity of obtaining psychiatric evidence to meet the psychiatric case not previously raised was a matter of importance to the appellant; so too was the opportunity to deal with the psychiatric approach to the causal question and to put detailed submissions to the judge about it. The result underlines just how important the opportunities were. Yet counsel had no chance to take up either position with the judge. 18 In my opinion this constituted a significant procedural unfairness, and one which requires that the orders of the trial judge be set aside and the claims of the respondent dealt with afresh in the Compensation Court. 19 In these circumstances it is unnecessary to deal with the other head of the grounds of appeal. 20 I propose that the court uphold the appeal with costs, the respondent to have a Suitors Fund Certificate and make the orders I have indicated. 21 STEIN JA: I have had the benefit of reading the judgment of Priestley JA in draft. I agree with his Honour's conclusion that there was nothing procedurally unfair involved in the trial judge's consideration of the credibility of the respondent. However, on the issue of whether the judge denied procedural fairness to the appellant in the determination of liability I have found myself unable to agree. 22 On this latter aspect, it seems clear that the trial judge did not explicitly draw counsels' attention to the possibility that he might approach the issue of liability in the way that he did. Assuming that his Honour had made his mind known to counsel, what might have occurred? One possibility suggested to us was that the appellant would have asked for an adjournment to obtain a psychiatric report on the respondent. 23 When one considers the context of the link between the issue of the respondent's credit and whether he was suffering from a 'functional' condition, I do not see that it was at all likely that an adjournment would have been sought to obtain a psychiatric report on the respondent. This is because of the evidence that was before the Compensation Court from Dr Black and Dr McDonald. The latter's report said that when he first assessed the respondent, he felt that 'he had essentially somatic pain'. More to the point is Dr Black, a medico legal consultant retained by the appellant to examine the respondent. His report concludes with the opinion that: If malingering could be excluded, then I was of the opinion that he was exhibiting a significant functional element and I cannot exclude the possibility of some neurosis or psychosis. [Black AB 91 L - M] 24 This and other evidence (including the respondent himself) fairly and squarely placed before the Compensation Court the scenario of a functional or somatic condition, assuming the respondent's credit could be accepted, as his Honour did. 25 The situation is not uncommon in the Compensation Court. Indeed, it can be said to be the stuff of much litigation there and well understood by the participants, judges, counsel, solicitors and medico legal practitioners. 26 In Belan v Liner Freight Services Pty Ltd (1994) 10 NSWCCR 357 at 365 Mahoney JA said: … it is not every case in which a finding is made or an argument is upheld which has not been explicitly dealt with below which will involve a denial of procedural fairness. Particularly is this so in a court such as the Compensation Court. It is a busy court in which proceedings are dealt with not infrequently at the end of several and disjointed hearings. Every argument or every issue relevant in the proceeding may not be explicitly canvassed by counsel. There may be arguments or issues which, though present to the minds of those concerned, are not or need not be explicitly canvassed. It does not follow that a judgment which takes account of such an argument or issue must be set aside. An appellate court must be conscious of the expectations of those who practise in such courts. 27 In my opinion, this statement is pertinent and apposite to the present case. Counsel for the employer in the Compensation Court was well and truly apprised of the functional issue and its relevance to the respondent's credit. Once the respondent's credit was accepted, there was material before the court (including in the employer's case) which would support a finding on liability. Counsel should have been, and probably was, well aware of the possibility and could have taken the occasion to address on it. As Mahoney JA points out in Belan it is not every finding or argument in the Compensation Court which has to be explicitly dealt with so as not to involve a denial of procedural fairness. It does not follow that a judgment which takes account of a finding or argument not paraded before counsel must be set aside as lacking in procedural fairness. In my opinion, this is one such case. 28 I am unable to conclude that the failure of his Honour to draw attention to the issue on liability amounted to a denial of procedural fairness to the appellant so as to justify a new trial. 29 It was also submitted that his Honour determined questions based on his own theories of medical science. I do not think that this is so. His Honour's findings were based on evidence before him. Moreover, the Compensation Court is a specialist tribunal, accepted as having special knowledge derived from matters frequently proved before it. It is seen as having the experience to enable it to draw inferences which an ordinary court may not. See MMI Workers Compensation (NSW) v Kennedy (Court of Appeal, 17 September 1993, unreported) and the authorities collected at 10. In particular, Mahoney JA said that the Compensation Court may accept from its judicial knowledge that with the worker there in question, what occurred in an incident post injury, was apt to disturb the physiology of his back. I would also reject this aspect of the appellant's case. 30 The appeal should be dismissed with costs. **********

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