Moran v Amoret Installations Pty Ltd [2000] NSWCA 106 | Case summary

1 MEAGHER JA: I ask Heydon JA to give the first judgment. 2 HEYDON JA: This is an appeal from a decision by O'Meally CCJ in the Compensation Court making an award in favour of the respondent. The applicant below commenced his employment by the respondent on 8 November 1995. Though he resided on the Central Coast he was sent by the respondent to install air conditioning ducts at Petersham College of Tertiary and Further Education in Sydney. While doing that work he and his fellow employees were accommodated at the Enmore Hotel. It is in substance common ground that by 22 November the applicant had suffered an injury to his left shoulder. 3 The applicant put a case having two aspects at trial. The first was he suffered an injury to that shoulder in a particular way. The trial judge rejected that case. His alternative case was based on the decision of the High Court in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473. The argument which the applicant was propounding was that his employer had induced or encouraged him to spend time at a particular place or in a particular way, that an injury had occurred during that time and, therefore, the injury had occurred in the course of his employment. 4 The trial judge observed that the applicant bore the onus of proving the injury occurred in the course of the employment "in the extended sense", meaning thereby that he was in Sydney for purposes of employment. The trial judge said that the applicant had not proved that the injury to his shoulder occurred while he was in Sydney or while he was at the Enmore Hotel. He said that the only evidence on the question was that on 8 November the applicant had no problem with his left shoulder but he said: "there is no evidence that the applicant's left shoulder was normal and unaffected by trauma on the morning of 21 November 1995, nor indeed, on the morning of the preceding day, a Monday." 5 The applicant who appeals to this court has contended that that finding is erroneous for two reasons. The first suggested reason is that in a medical report provided by Dr Fuller in which there is recorded an extensive history given by the applicant, the following appears: "There was no relevant past history and Mr Moran denied any injury or disability with regard to the left shoulder prior to the work accident of 21.11.95." 6 Ms Katzmann of senior counsel contended that by reason of s 60 of the Evidence Act 1995 (NSW) that statement of history by Mr Moran was admissible not merely to establish the basis for Mr Fuller's opinions but also as evidence of the facts actually asserted. 7 Mr Hoeben of senior counsel did not controvert the submission that s 60 has that effect and it is accordingly not necessary to go to the authorities which support Ms Katzmann's submission. Ms Katzmann submitted that an error in admitting the evidence, that is to say an error in noticing that there was evidence before the court admissible for a certain purpose, was an error permitting the appeal to succeed. 8 The second basis on which the appellant attacked the trial judge's conclusion that there was no evidence that the applicant's left shoulder was normal at the material time turned on a reference to the applicant's evidence in chief in which he had said that, at the time he started with the employer which was 8 November 1995, he had no problem with his left shoulder and that the totality of his employment was at Petersham and it followed the left shoulder was normal at least until injury to it was reported on 22 November. 9 The respondent drew attention to the terms of the reasons for judgment of the majority justices in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 at 484 and 485. The respondent submitted it was not sufficient simply to show that the applicant had been in Sydney from 8 November to 21 November at the Enmore Hotel or at the place of work, but that there to be demonstrated, in effect, an exclusion of the possibility that the applicant may have injured himself by, for example, drinking for many hours and injuring himself in a fall. 10 Counsel for the respondent read the concluding paragraphs of the trial judge's reasons for judgment which involved quotation from Hatzimanolis v ANI. 11 In my judgment the trial judge was not directing his mind to the possibility that there was some period in which the applicant had been guilty of gross misconduct engaging in behaviour that was not something induced or encouraged by the employee. Rather, the trial judge appeared to be directing his mind solely to the question as to whether the applicant's left shoulder was in truth normal and unaffected by trauma during the relevant period and, in particular, on 20 and 21 November. 12 The respondent reminded the court of the well-known passages in the reasons for judgment of Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-6. 13 In my judgment those passages do not have any preclusive effect on the validity of the appellant's appeal. There is no attempt falsely to disguise what are in truth complaints about his Honour's factual and logical reasoning as errors of law. Rather the appellant's position is a simple one, namely, that his Honour made a finding of fact which he regarded as important to the case as he saw it and that finding, namely, that there was no evidence, was erroneous. 14 The respondent drew attention to a passage in the reasons for judgment of the primary judge in which he said that, in his experience, histories as recorded in medical reports are not notorious for their accuracy. He said coincidence between what a patient tells a doctor and what a doctor records is not universal. He said: "I refer to this phenomenon because submissions have been made by counsel that the histories either give strength to or take it from the applicant's evidence." 15 It is not entirely clear what the submissions were which the trial judge had in mind. Independently of s 60 and independently of the Evidence Act generally a disparity between the history which a patient gives and the patient's sworn evidence can be relevant to questions of credit. Further, statement of contemporaneous symptoms by a patient can be admissible as evidence of their truth. It does not seem possible to read what his Honour said in that earlier part of his reasons for judgment as in some way amounting to a statement that he had taken into account the history given to the doctor but regarded it as not being worthy of credit and therefore concluding that there was "no evidence" in the sense of there being "no satisfactory evidence" of the normal condition of the applicant's left shoulder. 16 In my opinion the appellant has made good the first ground of attack upon the primary judge's reasoning. Though a new trial will be the third trial of the applicant's complaints, I see no alternative to the making of an order that there be a new trial. 17 Ms Katzmann also complained that the primary judge had not permitted the applicant to reopen his case below in order to call direct evidence from the applicant as to the normality of his left shoulder. 18 In the circumstances it is not necessary to give detailed reasons but, in my judgment, that challenge to the trial judge's discretionary decision is not made out. 19 The primary point Ms Katzmann made was that the trial judge had not invited the respondent below to indicate whether the respondent was prejudiced and said that the evidence which it was intended to call was entirely uncontroversial. I am not persuaded that had the evidence been given it would have been uncontroversial and, in those circumstances, the prejudice to the respondent essentially goes without saying because the course of the argument would have placed readily in the applicant's mouth the evidence which it would be expected that he would give. 20 I propose the following orders: (1) That the order of the trial judge be set aside; (2) That there be a new trial; (3) That the respondent pay the appellant's costs of the appeal. 21 MEAGHER JA: I agree. 22 GILES JA: I also agree, but would wish to summarise the matter as follows. 23 The trial judge was in error in saying there was no evidence that the appellant's left shoulder was normal and unaffected by trauma on the morning of 21 November 1995, at the least because the history in the report of Dr Fuller was evidence to that effect. That was an error of law, being failure to give recognition to s 60 of the Evidence Act. 24 Had the trial judge regarded the history given to Dr Fuller as evidence of the fact he may, although I do not think it can be said with sufficient certainty to avoid a retrial that he would, have been persuaded that the injury occurred in the course of the applicant's employment by the respondent in the extended sense. 25 The error of law means that the trial miscarried, and hence the orders proposed must be made. 26 MEAGHER JA: The orders of the court therefore will be the orders proposed by Heydon JA.

Moran v Amoret Installations Pty Ltd

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