Container Terminals Australia Ltd v Huseyin

Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Huseyin v Container Terminals Australia Ltd [2006] NSWCA 382; (2006) 46 MVR 1 CASES CITED: Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; 140 CLR 675 Mifsud v Campbell (1991) 21 NSWLR 725 Najdovski v Crnojilovic [2008] NSWCA 175 Skinner v Frappell [2008] NSWCA 296 Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127

PARTIES: Container Terminals Australia Limited (Appellant) Yusuf Huseyin (Respondent)

COUNSEL: K Andrews (Appellant) P R Sternberg (Respondent)

SOLICITORS: Leitch Hasson Dent (Appellant) Smallwoods Lawyers (Respondent)

• IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40569/07 DC 2482/04

BASTEN JA MACFARLAN JA

Wednesday 3 December 2008 CONTAINER TERMINALS AUSTRALIA LTD v YUSUF HUSEYIN Judgment

1 BASTEN JA: This appeal involves a challenge to an assessment of damages in the District Court in respect of a workplace injury. For the reasons given by Macfarlan JA, I agree that the appeal must be dismissed and that the appellant must pay the respondent's costs. I would add the following further reasons.

Inadequacy of reasons 2 The grounds of appeal alleged that her Honour failed, in six separate respects, to give reasons, or adequate reasons, for factual findings. Whilst such challenges are commonplace, they often constitute an insufficient or imprecise basis for appeal, and not infrequently suffer from both defects. Such a challenge may be insufficient because it fails to take into account the nature of the appeal. On an appeal by way of rehearing, pursuant to s 75A of the Supreme Court Act 1970 (NSW), this Court has the powers and duties of the Court below to draw inferences and make its own findings of fact: s 75A(6). In particular, those powers include the assessment of damages. Accordingly, it will only be in cases where this Court is unable to proceed to make its own findings that a ground alleging inadequacy (or absence) of reasons will be sufficient. An appeal is against the orders of the Court and it is those which must be shown to be erroneous in a relevant sense. The type of case where a challenge based on lack of reasons will be sufficient is one where this Court is not able to draw its own inferences. The most obvious examples arise where the trial judge has failed to make a proper assessment of the credit of an important witness which has been challenged at trial. The relevant authorities were discussed in Najdovski v Crnojlovic [2008] NSWCA 175 at [21]-[22]. 3 A challenge based on lack of reasons will often be imprecise in the sense that it does not identify the real nature of the complaint, which may involve one of the following:

(a) failure to consider a material issue raised by the parties; (b) addressing an issue without considering all the relevant evidence; (c) disposing of an issue by taking into account some irrelevant material; (d) misapplying the law, or (e) committing some other unidentifiable error in the fact-finding process. 4 These concerns have been set out in more detail, with reference to relevant authority, in Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [149]-[157]. Four further qualifications should be noted which are relevant in the present case. The first is the well-established point that 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": see Mifsud v Campbell (1991) 21 NSWLR 725 at 728 (Samuels JA, Clarke JA and Hope AJA agreeing); Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127 at [59] (Ipp JA, Bryson JA and Stein AJA agreeing); Ali at [167]. 5 Secondly, the obligation to refer to evidence is sometimes said to be engaged by reference to evidence which is "important or critical" to the proper determination of the matter: see Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443 (Meagher JA). These words have different connotations and should not be treated as a form of hendiadys. Furthermore, it is necessary to ask in whose view the material is to be treated as important or critical. The fact that reference has been omitted in the judgment below may suggest that the trial judge treated the material as unimportant. The burden is on the appellant to show that the trial judge either omitted reference for some other insufficient reason, or that his or her conclusion that the material was unimportant was erroneous. 6 Thirdly, an appellate court must be alert to the subtle influence of matters of impression which will arise in the course of a trial. These will often play a part in the drawing of inferences and the formation of evaluative judgments. Because such influences can be subtle, they are often not easily reduced to explanation or justification. To require a trial judge to articulate such factors with any degree of particularity is likely to be unhelpful. To seek to impose such an obligation is a modern development, and its limits should be approached with caution: cf Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; 140 CLR 675 at 684-685 (Stephen J). The point may be illustrated in the present case by the complaint that the trial judge erred in finding that the plaintiff's wife "was an impressive witness without giving details [sic] reasons addressing the evidence which was adduced during the course of the trial". 7 Fourthly, such complaints frequently reduce to little more than the proposition that the reasons were deficient because they would have been different if a different finding had been made: see Ali at [173].

Challenge to factual findings 8 I agree with Macfarlan JA that the appellant undertook a difficult exercise in seeking to challenge findings of credit, both with respect to the plaintiff and with respect to his wife. The manner in which the established principles are to be applied was considered recently in Skinner v Frappell [2008] NSWCA 296 at [4]-[16]. In the present case the appellant sought to challenge the acceptance of oral testimony of the plaintiff in part on the basis of inconsistent histories given to medical practitioners. The apparent inconsistencies were put to the plaintiff in cross-examination, without obtaining any significant concession. Her Honour was entitled to discount the inconsistencies, for reasons which might have been repeated, but which are too commonplace to require repetition. They include the following:

(a) the medical practitioner who took the history was not cross-examined about the accuracy of what was recorded (often, for good reason, because it is unlikely that he or she will have any real recollection of the circumstances in which the record was made);

(b) medical histories were taken in furtherance of a purpose which is not identical with the purpose of establishing liability in tort;

(c) the histories did not make reference to the questions which elucidated the replies;

(d) the material recorded was a summary of answers rather than a verbatim recording, and

(e) there may be a range of factors, including fluency in English, the practitioners knowledge of the background circumstances of the accident and the patient's understanding of the purpose of the question, which will affect the content of the history. 9 MACFARLAN JA: On 15 June 2001, the respondent was injured whilst operating a rubber tyre gantry in the course of his employment by the appellant. The respondent sued the appellant in the District Court under the Motor Accidents and Compensation Act 1999 alleging that his injury was within the Act and was caused by a motor accident resulting from negligence of the appellant as his employer. A rubber tyre gantry is a large moveable structure used to load and unload containers from vessels and to move them around the loading area. 10 After a hearing in the District Court, judgment was entered for the appellant. There was however a successful appeal, as a result of which judgment for the respondent for damages to be assessed was entered (Huseyin v Container Terminals Australia Ltd [2006] NSWCA 382; (2006) 46 MVR 1.

11 The assessment of damages subsequently proceeded before Balla DCJ who directed entry of judgment for the respondent in the sum of $880,743.70 less credits for workers' compensation payments of $86,237.41, representing a net amount of $794,506.29. 12 Her Honour accepted the respondent's evidence, including that as to the low back and left leg pain he said that he suffered following the accident, and continued to suffer at the time of the hearing. Her Honour rejected the submission made on behalf of the appellant that the respondent "had a minor temporary aggravation of a symptomatic degenerative back condition the effects of which lasted for a closed period of say six months after the accident" (Red Appeal Book 19T). She allowed an amount in respect of past economic loss and loss of superannuation upon the basis that although the respondent had not taken reasonable steps to try and find work, it was unlikely that he would have been successful if he had (Red Appeal Book 22M). The respondent claimed future economic loss on the basis of an ongoing total impairment of his earning capacity. Her Honour accepted that claim, making an allowance for improvement in the respondent's condition in the future. The award extended to various other lesser items such as past and future out of pocket expenses. 13 The challenges made to her Honour's findings can conveniently be dealt with under the headings which appear below.

Respondent's Credit 14 As indicated earlier, her Honour accepted the respondent's evidence. Her Honour's principal finding in this respect was as follows: "Counsel for the defendant invited me to find that the plaintiff was not a reliable witness. As I have already said there were some inconsistencies in his evidence in relation to the movement of his body at the time of the incident. Counsel for the defendant also referred to incomplete histories given to various doctors and other similar matters. In my view such minor matters do not impact on the reliability of the plaintiff's evidence. It was supported by his wife who was an impressive witness. I accept the evidence of the plaintiff which was not significantly challenged in any material respect." (Red Appeal Book 19 M-R).

As this finding of her Honour is a finding based at least in part on the credibility of a witness, the constraints on challenges to such findings identified by the High Court need to be applied: "[t]he finding must stand unless it can be shown that the trial judge has failed to use or has palpably misused his or her advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or was glaringly improbable" ( Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479, citations omitted; affirmed in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [26-7]). 15 On appeal, the appellant complained in relation to this finding that "[t]he trial judge failed to provide any analysis of the evidence or address any part of the Appellant's case" (Orange Appeal Book 9V). A number of matters were then referred to by the appellant. I will come to these shortly. 16 Before doing so, I point out that it is not incumbent upon a trial judge to refer to all of the evidence before him or her. That would impose an unreasonable and unnecessary burden. As Meagher JA put it in Beale v GIO of NSW (1997) 48 NSWLR 430: "[W]here certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it …" (at 443; see also Young v Cesta-Incani [2007] NSWCA 229 at [56]. 17 There was of course a good deal of evidence to which her Honour did not refer but the question which needs to be addressed is whether there was anything "important or critical" to which she should have referred, but did not refer. If there was, it may indicate that there was an error in her Honour's process of fact finding (see Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [130] per Hayne J), such that her Honour's conclusions may be amenable to challenge consistently with the principles stated in Devries and quoted above. 18 The first matter referred to by the appellant was evidence given by the respondent and his wife concerning work performed by the respondent at his wife's business. That evidence was not, by reason of any conflict between the respondent's evidence and that of his wife or otherwise, "critical or important". There was nothing in it which in my view needed to be referred to by her Honour. 19 The appellant then complained of deficiencies in her Honour's treatment of the evidence as to the pre-accident condition of the respondent's low back. It made reference to the evidence of Dr Lee, the cross-examination of Dr Evans, worker's compensation claim forms which the respondent completed, the evidence "contained within any of the Exhibits" and the evidence of Dr Smith (Orange Appeal Book 10J-P). 20 As to these matters, evidence of Dr Lee as to the respondent's ongoing incapacity was sufficiently referred to by her Honour (Red Appeal Book 19D) and there was in fact no cross-examination of Dr Evans. Further, none of the evidence comprising the claim forms or the other Exhibits to which the Court was taken on the appeal were in my view of a sufficiently significant nature to require mention by her Honour. 21 The remaining evidence to which the appellant referred was that of Dr Smith, who was called as a witness by the appellant. He expressed the view that the respondent was "manufacturing his illness". Her Honour referred to that evidence and gave reasons for rejecting it (Red Appeal Book 20T-21G). As is apparent from those reasons, her Honour's conclusion as to Dr Smith's evidence was very much bound up with the view that she took about the respondent's evidence. Once her Honour had concluded that the respondent had ongoing pain in his low back and left leg and that his perception of that pain had been heightened by a depressive condition which he had (Red Appeal Book 22F), it followed that the proposition propounded by Dr Smith that the respondent was manufacturing his illness was liable to be rejected, as in fact occurred. Her Honour's conclusion concerning Dr Smith being dependent to a significant extent upon the credit based finding in relation to the respondent, I see no basis upon which the conclusion is open to attack consistently with the Devries' principles. 22 The appellant also complained that the primary judge did not refer to numerous occasions upon which the respondent gave evidence to the effect that he could not remember certain matters about which he was asked. Those answers did not in my view reflect adversely on the credit of the respondent and it was certainly open to her Honour to take that view, as she apparently did. There was nothing about the answers which characterised them as "important or critical" matters which needed to be the subject of reference by her Honour. 23 Finally under this heading, the appellant criticised her Honour's statement that the evidence of the respondent "was not significantly challenged in any material respect" (see the passage from the judgment quoted in [6] above). This statement by her Honour needs to be understood in the context in which it appears, namely, at the end of a paragraph which she commenced by referring to the submission of the appellant that the respondent "was not a reliable witness" and which identified matters relied upon by the appellant. Understood in its context, her Honour's statement is an expression of a view that the matters relied upon by the appellant to challenge the respondent's credit were not significant matters. That being her Honour's view, and it being a view that I share, there is no justification for a complaint that she did not descend to any greater detail in her judgment. 24 Support for her Honour's view is to be found in a reading of the transcript of the appellant's oral address at the trial. Counsel for the appellant described as the "hub" of the appellant's submissions the proposition that what occurred by reason of the accident was "an aggravation that's lasted for a limited period of time". He said that the respondent's pre-existing back condition would have continued to deteriorate and would have "overtaken" the aggravation caused by the accident (Black Appeal Book 113P-T). This submission did not sit well with the proposition advanced by Dr Smith that the respondent was "manufacturing" his illness. Rather, the submission assumed that the respondent had significant continuing pain but that after a period of "say six months" after the accident that pain was attributable not to the accident but to a progressive deterioration of a pre-existing back condition. Having described the "hub" of his submissions in this way, counsel for the appellant then said that he was going to "address a couple of other issues and then turn to the schedule of damages". He said in this context that "your Honour would have a concern about the evidence of the plaintiff"(Black Appeal Book 113U). Limited matters were then referred to. Her Honour could in these circumstances well be forgiven for not regarding the challenge to the respondent's credit as a major one based on matters of telling significance.

The Credit of the Respondent's Wife 25 The primary judge said that the evidence of the respondent was supported by his wife "who was an impressive witness" (Red Appeal Book 19Q). There was nothing in the evidence to which the Court was taken on the appeal which amounted to "critical or important" evidence relevant to the credit of Mrs Huseyin. In those circumstances there was no requirement for the primary judge to refer to any of that evidence. Furthermore, there was no reason why she should not have expressed the view, presumably based at least in part on demeanour, that Mrs Huseyin was an impressive witness.

Whether Injury a Temporary Aggravation of a Degenerative Back Condition 26 As pointed out earlier, this is the point which counsel for the appellant described at the trial as the "hub" of his submissions. The appellant complained on appeal that her Honour did not give sufficient reasons for rejecting the appellant's proposition. Her Honour did however give reasons for her conclusion (Red Appeal Book 19X-21J) which I consider sufficiently disclosed the matters upon which the conclusion was founded. In effect, her Honour took the view that the evidence did not establish significant continuing low back pain up to the date of the accident and accepted the plaintiff's evidence that he had been experiencing significant ongoing back pain since the accident. Her Honour did not find it remarkable that the early post-accident reports suggested some settling of the respondent's symptoms after the initial acute injury. 27 The appellant further submitted that the primary judge "failed to consider" the evidence contained at specified places in the transcript. However, none of the references given were to evidence which was of sufficient importance to necessitate it being dealt with specifically by her Honour. 28 Complaint was made by the appellant that the primary judge had failed to indicate why in the absence of any significant change in the respondent's radiology between the position before and after the accident the respondent's injuries should not simply be regarded as a temporary aggravation of a degenerative change. 29 This submission cannot be sustained as the evidence did not suggest that the absence of radiological change was inconsistent with the respondent's case. It was sufficient in these circumstances for her Honour to identify the basis upon which she accepted that the respondent had ongoing pain and note that his perception of that pain was heightened by his depression which had been caused by the accident (Red Appeal Book 21P, 22F).

Concessions by Dr Smith 30 The appellant complained that the primary judge had not identified the basis for her conclusion that one of the appellant's doctors, Dr Smith, had conceded that there were objective signs consistent with the respondent's complaints (see Red Appeal Book 21G). During the hearing of the appeal the Court was taken to answers given by Dr Smith in the course of his cross-examination which formed a proper basis for her Honour's conclusion. It was unnecessary in my view for her to give specific references to that cross-examination.

Future Economic Loss 31 The notice of appeal asserted that the primary judge "failed to provide adequate reasons for the determination of the Respondent's future economic loss" (Red Appeal Book 32U). 32 Her Honour did not accept that the respondent had shown that he was totally incapacitated for work. She concluded that there was a real possibility that there would be an improvement in his depression, and therefore his overall condition, over time. She made a limited allowance to reflect that prospect of improvement. 33 Her Honour's conclusions on economic loss were bound up with her acceptance of the respondent's evidence as to his continuing condition and her finding as to the cause of that condition. For the reasons given earlier, challenges to these findings are not in my view well-founded. As her Honour's conclusions on future economic loss involved an evaluative judgment based on the earlier properly reasoned findings, her Honour's brief reasons for these conclusions were sufficient.

Orders 34 In my opinion the appeal should be dismissed with costs.

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