J & K Clothing Pty. Limited v. Mahmoud [2004] NSWCA 207 - NSWCA 2004 case summary — Zoe

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J & K Clothing Pty. Limited v. Mahmoud [2004] NSWCA 207

[2004] NSWCA 207

Court of Appeal (NSW)|2004-06-10|Before: Hodgson JA, McColl JA, Burke AJ, Coll JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2004-06-10

Before

Hodgson JA, McColl JA, Burke AJ, Coll JA

Source

Original judgment source is linked above.

Judgment (33 paragraphs)

[1]

CITATION : J & K Clothing Pty. Limited v. Mahmoud [2004] NSWCA 207 revised - 09/07/2004 HEARING DATE(S) : 10 June 2004 JUDGMENT DATE : 22 June 2004

[2]

JUDGMENT OF : Hodgson JA at 1; McColl JA at 26; Cripps AJA at 27 DECISION : 1. Appeal allowed. 2. Order for weekly compensation set aside. 3. Matter remitted to the District Court. 4. Respondent to pay appellant's costs, and to have a certificate under the Suitors Fund Act if otherwise eligible.

[3]

CATCHWORDS : WORKERS COMPENSATION - Finding of "functional overlay" - No claim of psychological or psychiatric contribution to respondent's incapacity for work made in application, evidence or submissions - Whether procedural fairness denied - Whether finding available on the evidence. Azzopardi v. Tasman UEB Industries Pty. Ltd. (1985) 4 NSWLR 139 Boral Besser Masonry Ltd. v. Jabarkhill [1999] NSWCA 476 ICI Australia Operations Pty. Ltd. v. The Workcover Authority of NSW [2004] NSWCA 55 CASES CITED : Industrial Galvanisers Corporation Pty. Ltd. v. Parmar [2002] NSWCA 255 MMI Workers Compensation (NSW) v. Kennedy (1993) 9 NSWCCR 482 Peakhurst v. Fox [2004] NSWCA 74 Stead v. State Government Insurance Commission (1986) 161 CLR 141 Woods v. Multi-Sport Holdings Pty. Ltd. (2002) 208 CLR 460 PARTIES : J & K Clothing Pty. Limited - appellant Samaher Mahmoud - respondent FILE NUMBER(S) : CA 40624/03 COUNSEL : Mr. S. G. Campbell SC with Mr. P.R. Stockley for appellant Mr. P. Menzies QC with Mr. S. Porthouse for respondent SOLICITORS : Hicksons, Sydney for appellant Cameron Gillingham Boyd, Sydney for respondent

[19]

Dr. Potter annexed to his report a three page document entitled "Abnormal Illness Behaviour Commentary", which did not assist in making it clear whether Dr. Potter was asserting that the complaints were or were not genuine. 11 There was no evidence from any psychiatrist or psychologist. Dr. Potter was a rheumatologist. 12 No explicit submission was made that the respondent suffered from any psychiatric or psychological condition as a result of the injury. Nor was there any explicit withdrawal of the claim for weekly payments on the basis of total incapacity. However, in the course of submissions, there were relevantly the following exchanges between the primary judge and Mr. Porthouse for the respondent. MR PORTERHOUSE (sic) Firstly with respect to submissions about exaggeration is it only really Dr Herlihy who talks at any length about that. Even Dr Potter in his analysis of a hysteric-type reaction, his material that he annexes about conversion disorders and chronic pain and abnormal illness behaviour, does not actually say anywhere in his report that she is exaggerating or malingering. He says her presentation is not explained by the organic nature of her injuries, but he does not say that she is lying about her symptoms or that they are feigned and he does not actually say in his report that in his opinion she is exaggerating. He says that he got a hysteric reaction and that comes from psychosomatic and behaviourally she is, but he does not say that this applicant is - HIS HONOUR I do not know that that is going to do you much good. I do not think there is any suggestion of a psychiatric problem or anything that in the application for determination. MR PORTERHOUSE I do not put it on that basis but I put it in terms of the presentation of the plaintiff as being genuine in her reporting of pain and in terms of her disabilities. We have not seen - HIS HONOUR Most people tell it true. MR PORTERHOUSE - we have not seen any film, there was not really a lot of cross-examination directed to specifically contradicting the applicant about the nature and extent of what she said her problems were. So, in my submission, there really is not very much by way of evidence of exaggeration or certainly nothing that goes to show malingering or that the applicant is feigning any of these symptoms. …

[30]

SUBMISSIONS 16 Mr. Campbell SC for the appellant submitted there was no evidence before the primary judge which could have justified a finding that was in substance a finding of a psychiatric or psychological condition; and this was an error of law: Azzopardi v. Tasman UEB Industries Limited (1985) 4 NSWLR 139. The absence of evidence could not be made up by the capacity of the Court as a specialist tribunal: in so far as the contrary is suggested by MMI Workers Compensation (NSW) v. Kennedy (1993) 9 NSWCCR 482 at 489, the statement in that case was too broad. Further, it would a denial of procedural fairness to act on this capacity without giving the appellant an opportunity to deal with the question: Woods v. Multi-Sport Holdings Pty. Limited (2002) 208 CLR 460 at [160]-[165]. 17 In any event, he submitted, it was a denial of procedural fairness to decide the case on the basis of a psychiatric or psychological condition, when this issue was not identified by the pleadings, the evidence, or the submissions, and in fact had been discounted during submissions: Boral Besser Masonry Limited v. Jabarkhill [1999] NSWCA 476; Industrial Galvanisers Corporation Pty. Limited v. Parmar [2002] NSWCA 255. Also, it was a denial of procedural fairness to award weekly compensation on the basis of total incapacity, when the respondent's submission was for 50% partial incapacity. 18 Mr. Campbell submitted that the appellant had been deprived of the possibility of a successful outcome: Stead v. State Government Insurance Commission (1986) 161 CLR 141; Peakhurst v. Fox [2004] NSWCA 74. 19 Mr. Menzies QC for the respondent submitted that the appellant's submissions addressed the incorrect question. The correct question was, was the respondent suffering disabling pain? If she was, it did not matter how the pain was categorised so long as the pain was genuine and disabling. This was a live issue: it had been squarely put to her that she was exaggerating. Even in the absence of a finding of physical injury fully explaining the pain, the genuineness of her complaint had support from Dr. Potter's evidence. That evidence had been tendered by the appellant, and the relevant passages not omitted. The case was unlike Jabarkhill, in that the primary judge did not make a medical diagnosis, but rather believed the plaintiff, acknowledging in effect that some people feel more pain than others. 20 Mr. Menzies also submitted that, even if there was a denial of procedural fairness, it did not make any difference to the case. Psychiatric evidence which might have been called for the appellant would have been most unlikely to have made any difference; and further submissions would have been most unlikely to have made any difference.

[31]

DECISION 21 There is force in the consideration that the genuineness of the respondent's complaints was squarely in issue, and that the extent of her physical injuries was also in issue; and that if the latter were found to some extent adversely to the respondent, but the respondent was accepted as a truthful witness, it was almost inevitable that the respondent would be found to be suffering from a psychiatric or psychological condition generally referred to by the expression "functional overlay", this being something with which workers' compensation practitioners are very familiar. A generally similar approach found favour with the dissenting judge in Jabarkhill. 22 However, in my opinion this consideration is insufficient in this case to overcome the appellant's contentions. An allegation of psychiatric or psychological contributions to the respondent's incapacity for work was never part of the respondent's case. Had it been, the appellant could have obtained an expert's report on that issue. So evidence was lacking, which could have been relevant to the question whether the respondent should be accepted as a truthful witness. Furthermore, the finding made by the primary judge that the respondent was a truthful witness does not of itself establish that her condition was caused by the injury. In my opinion, the case is relevantly similar to Jabarkhill, and the appellant was denied procedural fairness. Furthermore, it cannot be said there is no possibility that a different result would have been obtained, but for the denial of procedural fairness. 23 It is not necessary to decide the other grounds of appeal. However, I would comment that in my opinion, there was some evidence on the basis of which the primary judge could have made the finding in the respondent's favour, and the appellant's arguments have not caused me to doubt the correctness of what is said in Kennedy. However, in so far as the primary judge relied on his expertise, his failure to give the appellant a fair opportunity to deal with the matter compounds the denial of procedural fairness: ICI Australia Operations Pty. Ltd. v. The Workcover Authority of NSW [2004] NSWCA 55 at [229]. 24 Further, in my opinion there was no independent denial of procedural fairness as regards the finding of total incapacity: total incapacity had been claimed, and a lesser claim informally made in the course of submissions does not involve an abandonment of that claim or a denial of procedural fairness.