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[2013] NSWCA 33
respondent. Appeal dismissed; stay on past payments of compensation and expenses lifted; appellant to pay respondent's costs in this Court.
A coal miner could no longer work underground after several frightening safety incidents left him anxious, sleepless and distrustful of his colleagues and supervisors. His psychiatrist said the incidents at work had caused a serious adjustment disorder with anxiety and depression that stopped him working in mining or anywhere else for the foreseeable future. The mine owner argued the judge should not have believed the miner because his diaries said little about the incidents, he had drunk heavily before, his wife's pregnancy troubles might have caused his distress, and he had looked up PTSD symptoms online. The trial judge listened to the cross-examination, looked at the incident reports that matched the miner's story, watched how he gave evidence, and decided the work events had indeed caused the injury. She ordered the employer to pay compensation for total incapacity. The employer appealed, saying the judge had not properly considered all the contradictory material or explained why she believed the miner. The Court of Appeal majority said that, because this was an appeal only on legal mistakes and not on the facts, the judge's reasons were sufficient. She had shown she knew what the challenges were and had decided the key questions. The miner's victory and the compensation orders were upheld. One judge dissented, saying the failure to spell out why the miner's evidence about the impact of the incidents was accepted meant the decision looked as though it had not been fully thought through.
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Resource Pacific Pty Ltd employed Jonathon Wilkinson as a mining technician at its Ravensworth underground coal mine in the Hunter Valley from 2008 until June 2010. Mr Wilkinson gave evidence that he began work loving the job but that three clusters of events caused him to decompensate psychologically. In December 2008 a large piece of coal fell from the roof, knocked a bolter from his hands and pinned him against the armoured face conveyor. He suffered only bruises but thereafter became hypervigilant, jumped at roof noises and worried constantly about rib spoil and safety. Ten months later, in October 2009, he and a colleague struggled for 30–45 minutes to remove a staple from a hydraulic hose. The colleague assured him the line was isolated. The following shift Mr Wilkinson learned that day shift had removed the staple easily but a worker had suffered a high-pressure injection injury from hydraulic fluid. This triggered anger, insomnia, nightly thoughts of his family and a complete loss of trust in his workmates. He raised safety and drug-use concerns on the Xstrata hotline and with deputies, only to be labelled a troublemaker. Finally, in June 2010, escalating arguments with supervisors, including one particularly graphic confrontation, caused him to cease work on 27 June 2010 and never return.
He consulted a psychologist in December 2009, a general practitioner on the day he stopped work, Dr Allan White (for the employer) in August 2010 and Dr Jonathan Phillips (for himself) in September 2010. Dr Phillips diagnosed a chronic adjustment disorder with mixed anxiety and depressed mood caused by the workplace stressors, rendering Mr Wilkinson totally incapacitated for mining and likely for any regular employment in the near term. Dr White thought the presentation more consistent with an angry tantrum than a psychiatric disorder. No expert was cross-examined. The diaries Mr Wilkinson had kept since 2008 contained little contemporaneous complaint about the incidents, recorded “sleep” entries before the first incident, noted heavy drinking and recorded that he had looked up PTSD symptoms on the internet. The employer relied on these matters, the chromosomal defect diagnosed in his unborn child (which ended in stillbirth) and a low-range PCA conviction years earlier to argue that any psychological problems were not caused by work.
Because the claim was a “coal miner matter” under s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) it was determined in the District Court’s residual jurisdiction (District Court Act 1973 (NSW), s 142G). Truss DCJ heard the matter over two days in October 2011. On 11 November 2011 she delivered an ex tempore judgment essentially accepting Mr Wilkinson’s account of the incidents, accepting that documents corroborated their occurrence, accepting Dr Phillips’ causal opinion once the history was established, and awarding compensation at the coal-miner total-incapacity rate from 28 June 2010 plus s 60 expenses. On 9 December 2011 she stayed payments pending appeal. Resource Pacific appealed to the Court of Appeal under s 142N of the District Court Act, an appeal confined to errors of law. The grounds, refined at the hearing, asserted constructive failure to exercise jurisdiction by overlooking “material and uncontested” evidence and failure to give adequate reasons for the credibility, causation and incapacity findings. By majority (Beazley and Basten JJA, Macfarlan JA dissenting) the appeal was dismissed on 26 February 2013, the stay lifted and the employer ordered to pay costs.
Basten JA (with whom Beazley JA agreed) began by cautioning against uncritical importation of supervisory-jurisdiction language into a statutory appeal limited to errors of law. He accepted that it is an error of law to fail to exercise the constitutional function of resolving the dispute according to law and proper procedure, but emphasised that the appellate court must not breach its own statutory limits by demanding an optimal rather than a minimum standard of reasoning. The reasons of Truss DCJ, read as a whole, showed she was aware of every issue the employer had raised. She noted the diaries’ silence, the pre-existing “sleep” entries, the stillbirth, the internet research on PTSD and the suggestion that the last confrontation was mere anger rather than psychiatric decompensation. She recorded the competing views of Drs White and Phillips and expressly preferred Dr Phillips once she was satisfied the underlying history had been proved. That satisfaction was implicit in her conclusion at [66] that “as a consequence of the work-related incidents upon which he relies he developed a psychological injury”. Because the appeal lay only on questions of law, it was unnecessary for her to spell out why she rejected each diary omission or each alternative causal hypothesis; the minimum standard was met by identifying the live challenges and reaching the ultimate findings.
On the demeanour point, Basten JA held that the trial judge had not diagnosed depression from the witness box. She had merely recorded that her impression of Mr Wilkinson’s flat affect and irritability matched Dr Phillips’ description. That did not breach Strinic v Singh principles. The procedural fairness complaint arising from the exchange with counsel was also rejected; the judge had not done what she had warned counsel would be dangerous.
Macfarlan JA dissented because he considered the impact of the work incidents on Mr Wilkinson to be the single critical issue. Once the judge had correctly identified that the medical opinions depended on acceptance of the claimant’s history, she was obliged to expose her reasoning for accepting that history in the face of the diary omissions, the stillbirth and the alcohol history. An implicit finding buried in the ultimate conclusion at [66] did not suffice; the losing party was left with a legitimate sense of grievance because it could not know whether the judge had simply preferred the claimant’s demeanour or had rationally discounted the contrary inferences. Macfarlan JA accepted that the standard is less elaborate on a law-only appeal but insisted that the principle that justice must be seen to be done still required reasons on any critical issue. Because none were given on the decisive question, the decision-making process had miscarried and a new trial was required.
The majority view prevailed. The Court therefore dismissed the appeal, lifted the stay and ordered costs against the employer.
Before Resource Pacific v Wilkinson the leading authority on the content of the duty to give reasons in New South Wales was Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. That case arose from the Compensation Court, where appeals were also limited to errors of law. Mahoney JA had said that a judge need not make an express finding on every fact or reason sequentially from one subordinate fact to the next; it was enough to apprise the parties of the broad outline and constituent facts of the reasoning. McHugh JA had emphasised that dissatisfaction with a factual finding must not be transmuted into an assertion that no reasons were given. The High Court in Public Service Board of New South Wales v Osmond had described the duty as a normal but not universal incident of the judicial process. Subsequent decisions such as Mifsud v Campbell, Beale v Government Insurance Office of NSW and Pollard v RRR Corporation Pty Ltd had refined the obligation to expose reasoning on critical issues, but the precise intensity of scrutiny depended on the nature of the appeal right.
Resource Pacific v Wilkinson did not change the law; it applied Soulemezis in the specific context of a coal-miner psychological injury claim heard in the District Court’s residual jurisdiction. Basten JA reaffirmed that the standard is “undemanding” for credibility findings on a law-only appeal and that the appellate court’s role is to police the minimum acceptable level, not to impose an ideal. The judgment clarified that the language of “constructive failure to exercise jurisdiction” taken from migration and administrative law (Dranichnikov, SZMDS, SZJSS) must be handled with care on a statutory appeal. It also noted, without resolving, a possible tension between the minimalist Soulemezis approach and the more intensive requirements suggested in Goodrich Aerospace Pty Ltd v Arsic for appeals by way of rehearing. After the decision, trial judges in the District Court dealing with psychological injury claims where appeal lies only on law could be confident that implicit acceptance of a claimant’s history, coupled with identification of the cross-examination challenges and preference for an unchallenged expert, will usually satisfy the Soulemezis minimum standard. The decision reinforced that the intensity of the reasons obligation scales with the breadth of the appeal right.
At paragraph 9 Basten JA stated: “It is, no doubt, an error of law for the trial court to fail to exercise its constitutional function, which is to resolve a dispute presented to it by the parties by applying the law in accordance with proper procedure.” In plain English, a judge must actually decide the real dispute; simply going through the motions is not enough, but on a limited appeal the higher court will not rewrite the trial judge’s factual conclusions.
Paragraph 48 contains the doctrinal core: “The requirement to give reasons is an incident of the judicial process. However, the requirement is neither universal in application nor consistent in nature. The function of an appellate court is to determine, not the optimal level of detail required in reasons for judgment, but rather the minimum acceptable standard.” Translation: Judges must explain themselves, but how much explanation is needed changes from case to case. The appeal court’s job is not to grade the quality of the reasons but to decide whether they fall below the bare legal minimum.
At paragraph 60 the majority observed that the trial judge had “identified the significant challenges to the claimant’s evidence and, at least implicitly, made the necessary factual findings”. Plain English: Even though the judge did not write a separate paragraph saying “I reject the diary argument for the following ten reasons”, everyone could tell from reading the whole judgment that she had thought about the diaries and still believed the miner.
Macfarlan JA’s dissent at paragraph 78 is equally important: “the failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done”. Translation: If the decisive point is whether the work incidents really affected the miner as he claimed, the judge must show she grappled with that point; otherwise the loser feels the case was not properly decided.
Paragraph 71 concludes the majority reasoning: “the minimum acceptable standard for disclosure of reasoning in respect of findings of credibility is undemanding and there can be no doubt that the reasons satisfied the standard articulated in Soulemezis”. In plain English: For cases where you can appeal only on legal mistakes, a judge does not have to write an essay on why one witness seemed truthful; a short, practical explanation that shows the judge understood the fight is enough.
The decision is triggered whenever a District Court judge sitting in the residual jurisdiction on a coal-miner psychological or psychiatric injury claim is appealed to the Court of Appeal on the ground that the reasons are inadequate or that the judge overlooked material evidence. It applies with particular force where (a) the claimant’s evidence is the only direct evidence of subjective impact, (b) the employer mounts a credit attack by reference to diaries, social media, prior alcohol use, domestic stressors or internet research on symptoms, (c) the competing psychiatrists are not cross-examined, and (d) the appeal is confined by statute to errors of law. The precedent also speaks to any statutory appeal limited to questions of law in which the complaint is that the trial judge failed to record an express finding on every subordinate factual dispute or failed to give elaborate reasons for preferring one expert once the history was accepted. It is not limited to workers’ compensation; the principles stated about the variable content of the duty to give reasons and the caution required before labelling a decision a constructive failure to exercise jurisdiction apply to any tribunal whose decisions are reviewable only for legal error.
Although the judgment itself is the present authority, Basten JA’s careful treatment of Soulemezis has been treated as authoritative guidance on the minimum standard. The judgment explains at paragraphs 54–58 that Soulemezis remains the benchmark for law-only appeals and that the more expansive dicta in Goodrich Aerospace (which arose on a rehearing) should not be transposed. Later courts looking at this decision have therefore understood that the intensity of scrutiny of reasons scales with the width of the appeal right. The majority’s insistence that reasons be read as a whole and that implicit findings can suffice has been applied in other District Court psychological injury appeals where diary inconsistencies were relied upon but not separately answered line by line. Macfarlan JA’s dissent has been cited for the proposition that on any critical issue the judge must expose the essential ground or grounds of the conclusion so that the losing party can understand why it lost. The decision’s treatment of the demeanour complaint at paragraphs 63–69 has been followed as an illustration that a trial judge may compare a witness’s presentation with an expert’s description without thereby making an impermissible lay diagnosis. Overall the case stands as a working example of how Soulemezis is to be applied in practice: identify the live challenges, accept or reject the history, state the ultimate findings, and leave the appellate court satisfied that the constitutional function has been performed.
The judgment expressly leaves unresolved the “apparent tensions” between the minimalist Soulemezis standard for law-only appeals and the more intensive approach suggested in Goodrich Aerospace for rehearings. Trial judges therefore still lack a bright-line test for exactly how many subordinate factual disputes must be addressed when the appeal route is hybrid. The boundary between an implicit finding that satisfies the minimum standard and an impermissible failure to address a “critical issue” (as Macfarlan JA classified the impact of the incidents) remains fact-sensitive and therefore productive of argument. The judgment also notes but does not decide whether a trial judge’s observation that it would be “very dangerous” to diagnose from demeanour could, in other circumstances, create a legitimate expectation that such observations will not be used at all. Finally, the precise interaction between the principle that justice must be seen to be done and the undemanding standard for credibility findings on law-only appeals continues to generate debate; the majority and the dissent in this very case illustrate that reasonable judicial minds can differ on whether an implicit acceptance of evidence is enough. These questions will no doubt be revisited in future coal-miner or analogous psychological injury appeals.
Qushair v Raffoul [2009] NSWCA 329 Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 Strinic v Singh [2009] NSWCA 15 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sun v Hatoum [2011] NSWSC 516 Wainohu v New South Wales [2011] HCA 24 Category: Principal judgment Parties: Resource Pacific Pty Ltd (Appellant) Jonathon Wilkinson (Respondent) Representation: Counsel:
Mr M Joseph SC/Mr D Stanton (Appellant) Mr R Stanton (Respondent) Solicitors:
Sparke Helmore Lawyers (Appellant) Carroll & O'Dea (Respondent) File Number(s): CA 2011/398276 Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-11-11 00:00:00 Before: Truss DCJ File Number(s): DC RJ708/10
HEADNOTE [This headnote is not to be read as part of the judgment] From 2008, the appellant employed the respondent as a mining technician at an underground coal mine in the Hunter Valley. The respondent alleged that from mid-2010 he could no longer work due to a psychological or psychiatric disorder which was an injury suffered during his employment. The respondent claimed that his incapacity was total and sought compensation under the Workplace Injury Management and Workers Compensation Act 1998 (NSW). On 11 November 2011, Truss DCJ upheld the claim and ordered payment of compensation. The issues in the appeal were whether the trial judge had erred by: (i) constructively failing to exercise the jurisdiction of the Court by failing to consider "material and uncontested" evidence, and (ii) failing to give any or any proper reasons. The Court held, dismissing the appeal: In relation to (i): (per Basten JA, Beazley JA agreeing)
Judgment 1BEAZLEY JA: I agree with Basten JA. 2BASTEN JA: From 17 September 2007 until 27 June 2010 the respondent, Mr Jonathon Wilkinson, worked as a mining technician at the Ravensworth underground coal mine in the Hunter Valley. (It is convenient to refer to him as "the claimant".) From 2008 he was employed by the appellant, Resource Pacific Pty Ltd. 3The claimant alleged that from mid-2010 he could not continue working at the mine due to a psychological or psychiatric disorder which was an injury arising out of his employment. He claimed that his incapacity for work was total and that he was entitled to compensation accordingly. 4The employer disputed the claim and, it being a "coal miner matter" as defined in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), the dispute was heard and determined in the District Court, in its residual jurisdiction: District Court Act 1973 (NSW), s 142G. 5On 11 November 2011 Judge Truss gave judgment upholding the claim and ordered payment of compensation at the weekly rate applicable to a coal miner on the basis of total incapacity from 28 June 2010. She also ordered the appellant to pay the claimant's medical and like expenses. On 9 December 2011 the trial judge ordered a stay in respect of payments for the period prior to the date of judgment and in respect of payments for expenses. Such stays were to operate until further order of the District Court or another court. 6The present appeal, brought pursuant to s 142N of the District Court Act, is limited (relevantly for present purposes) to points of law. In broad terms, the appellant asserted that the trial judge: (a) relied upon expert evidence in circumstances where the underlying assumptions of fact had not been proved; (b) failed to make findings as to critical facts, and (c) to the extent that she did make appropriate findings, failed to give adequate reasons for her conclusions. 7At the hearing of the appeal, counsel for the appellant sought to rely upon a new ground of appeal with five "particulars". Each was said to constitute an error in point of law because it involved "constructively failing to exercise jurisdiction". Each asserted, with minor linguistic variations, that the trial judge had failed to take into account "material and uncontested evidence". The matters raised did not expand the issues already identified in earlier grounds. 8The belated formulation of this ground appears to have owed something to the reasoning of this Court in Goodwin v Commissioner of Police [2012] NSWCA 379 at [19]-[24]. In particular, the grounds picked up the language of Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24] that "[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice". Similar language was adopted by the Full Court of the Federal Court (North, Logan and Robertson JJ) in LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 289 ALR 244. The Full Court stated at [5], that the Tribunal, by simply adopting one party's submissions as it reasons, "had failed to bring its own mind to bear on the issues before it and thus ... had constructively failed to exercise its jurisdiction": see also at [91]. 9The adoption, on an appeal limited to errors in point of law, of language derived from the supervisory jurisdiction of the court must be undertaken with caution. It is, no doubt, an error of law for the trial court to fail to exercise its constitutional function, which is to resolve a dispute presented to it by the parties by applying the law in accordance with proper procedure. In the present case, that function was almost entirely satisfied by the resolution of disputed factual issues. The term "constructive failure to exercise jurisdiction" is used to describe a situation where the court has purported to resolve the parties' dispute but has not in fact done so. Thus, particularly with a court or tribunal required to provide reasons for its decision, it may become apparent from those reasons that a material issue has simply not been addressed or that material evidence has been overlooked. Examples of circumstances which may properly give rise to a concern on this kind were referred to by Gummow ACJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [23]. On occasion, the function of the decision-maker (which should include a court) has been identified as being to "give proper, genuine and realistic consideration to the merits of the case": Kahn v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 (Gummow J). (The language probably derived from its use in equity to describe the proper exercise by a trustee of a discretionary power in relation to the trust.) Although the nature of the exercise, particularly with respect to discretionary powers, involves no bright-line boundary, care must be taken that the statutory mandate of the appellate court, limited to errors of law, is not breached by adopting as a standard inherently value laden language: see Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [30]. 10As will be apparent from the summary of the reasons given by the trial judge set out below, her Honour had in mind all of the issues raised by the appellant in its grounds. Beyond noting that, there is little benefit in addressing the particulars of the new ground on a clause-by-clause basis. For example, particular 2 identified "the cross-examination" (presumably of the claimant) as "material and uncontested evidence". However, there is no factual basis for asserting that the trial judge did not take the matters raised in cross-examination into account and, to the extent that it assisted the appellant, it was presumably inconsistent with the evidence-in-chief of the claimant and thus could not on any view be described as "uncontested". 11For the reasons set out below, the appeal must be dismissed, the stay lifted and the appellant ordered to pay the respondent's costs in this Court.
Procedural and factual background 12It was not alleged that the trial judge wrongly admitted or rejected evidence, or misunderstood or misapplied the substantive legal principles applicable to the case. Nor was it suggested that there was a total absence of evidence capable of supporting the key findings of fact. Rather, the appellant contended that the process of decision-making had miscarried. For that reason it is necessary to explain the factual and procedural background to the appeal in greater detail than is usually necessary on an appeal limited to legal error. 13The evidence relied upon by the claimant was not extensive: it included his own evidence as to events which occurred at the mine and his responses to them and a report of Dr Jonathan Phillips, consultant psychiatrist, dated 21 October 2010, together with two supplementary reports. Dr Phillips was not required for cross-examination. His primary conclusion was expressed in the following terms (principal report, p 13): "There is no doubt in my mind that the work place incidents mentioned above, and related stressors, which occurred in the course of his employment at the Ravensworth mine, have caused Mr Wilkinson to develop an adjustment disorder with mixed anxiety and depressed mood. The reaction is serious enough to cause a substantial incapacity. It is critical to note that he has changed to the point where he will no longer be able to work in any capacity at the Ravensworth mine or to work more generally within the mining industry. More likely than not the plaintiff will remain incapacitated, at least in the near future, and he will struggle with any form of regular employment. Hopefully, this will become less of an issue in the future." 14On 9 August 2010 the claimant obtained a report from Dr Allan White, consultant psychiatrist, which expressed a contrary view as to the respondent's psychiatric state in August 2010. On 1 February 2011 Dr Phillips provided a further report, in response to Dr White's opinions. Dr Phillips saw the claimant again on 22 March 2011 and provided a third report dated 5 April 2011. Dr Phillips noted that Mr Wilkinson had been (and continued to be) abstinent from alcohol but expressed concern as to his prognosis, concluding that he suffered from a "now chronic adjustment disorder with mixed anxiety and depressed mood": paragraph 23. He confirmed his view that his employment had been a substantial contributing factor to the condition. 15There can be no doubt that Dr Phillips' opinion was a sufficient basis for the findings of the trial judge on all critical issues, if its assumptions were established. As Dr Phillips had himself noted in his primary report, his opinion was based on the assumption that the history provided by Mr Wilkinson was true and correct: report, paragraph 3. In his third report, he noted that "it is always wise in a medico legal context to try and determine whether a person has given a self-serving history or has feigned symptoms (malingered)" but expressed the opinion that neither applied to Mr Wilkinson. Although no objection was taken to that opinion, it was undoubtedly a matter for the trial judge to determine, on the evidence of the claimant before her, whether she accepted the underlying factual history upon which the psychiatric opinion was based. 16It is convenient to outline the circumstances said to have given rise to the psychological decompensation of the claimant before descending to the detail and the manner in which challenges were dealt with by the trial judge. 17Mr Wilkinson gave evidence that when he started working at the mine he had no problems with his health and loved the job, considering it "the best job I've ever had": Tcpt, 24/10/11, p 10(15)-(30). He described the first significant incident, which occurred in December 2008, in the following terms (Tcpt, p 12): "A. We were conducting a process on the long wall section of the mine called a bolt up process to finish that section of mining and we were halfway along the face of the mine and a large piece of coal detached from the roof and rolled towards me and another fellow and knocked the bolter that we were using out of our hands and pinned me up against the section of the mine called the armoured face conveyor and I was helped out. ... Q. Did you suffer any physical injuries in that incident? A. Bruises and abrasions to my knees and elbow, it was nothing major. Q. After that incident apart from those physical injuries, did you notice anything else about yourself? A. Not immediately, there was a lot of adrenalin and, but yes, not long after that it just started to haunt me. Yeah, I just became very cautious and just nervous about being underground. Q. When you say it started to haunt you, tell us what was it you noticed? A. Well like I said it wasn't immediately, but just thinking about it at home, I talked to my wife a fair bit about what happened and it just - maybe 'haunt' is the wrong word, but it just scared me, it just - I nearly could have died very easily that just kept, just kept realising how close it was and I just - yeah, it just rattled me pretty much." 18In a further passage, the claimant noted that "there's always cracks in the roof, the roof is always moving, there's always noises and if I'd hear them I'd just, I'd jump all the time and yeah, just nervous, edgy": Tcpt, p 13(15)-(20). The claimant also noted a state of heightened anxiety about safety in the mine and, in particular, failures to clean up "rib spoil" resulting from fallen pieces of coal: Tcpt, pp 14(45)-15(42). 19A second incident occurred some 10 months after the first, in October 2009. The incident occurred in two stages; the first involved Mr Wilkinson directly, with a fellow worker, Fidel Vial. The claimant described the incident as follows (Tcpt pp 18-19): "Fidel and I were a two man team involved in installing roof supports on the long wall ... I was receiving shields from the heavy transport and Fidel asked me if I could give him a hand to pull a staple out, just put some extra weight on it. I went over to give him a hand for the next half an hour, 45 minutes. We both tried all we could, spanners, shifters, chain blocks, to remove this staple, we couldn't get it out. I've had a fair bit to do with long walls and hydraulics, working for a hydraulic company or anybody in mining knows that staples don't have to come out that hard, they come out quite easily. I asked Fidel if it was isolated, if there was pressure behind it. He said, 'No there's not'. ... Subsequently, we couldn't complete the job and we were put onto another task ... on arrival the next night I found out that the day shift had successfully removed the staple and the person who'd done it had been sent to hospital with suspected high pressure injection, had been blasted with an intake of solcenic fluid, which is the hydraulic fluid that is inside the hoses." 20The claimant was then asked as to how he felt when he learned of the outcome to the incident and stated (Tcpt, p 19): "I was angry at first. We had a huge meeting at work that night with some mechanical engineers. Stan Slack was the main person that headed the meeting. Informed everybody of what had went wrong and that there'd been ongoing investigation and I suggested more training. ... Stan Slack advised me that all mechanical tradesmen, including Fidel, had already been trained on the isolation. I waited for the meeting to finish, then I approached Fidel and just said ... in my own words, I said, 'For fuck sake what were you doing?' And he just put his head down and just said, 'I don't know, I don't what happened, I thought it was isolated', words to that effect and then I noticed Bob Bell, who was the long wall co-ordinator at the time, walking towards to the lamp cabin and I've followed him and had a conversation with Bob Bell regarding the incident and that's, yeah, it's pretty much shaken me up a little bit and I'm just not comfortable with it. Bob Bell's reply was, 'Well there was only a hundred bar of pressure behind it, so there's no need to worry'. ... ... I almost immediately started not being able to sleep because of that. I thought of my family every night, not being around and I felt extremely unsafe working with the people that I was working with. I didn't trust them and I didn't want to be there, I felt, I felt like something bad was going to happen." 21The claimant then gave evidence of a call he had made on the Xstrata hotline (Xstrata then having control of the mine) and expressed his concerns about safety failures and drug use by miners. 22There followed a series of incidents when the claimant sought to raise issues with deputies who were his immediate supervisors, only to have his views disregarded or rejected. On occasion, he expressed concerns to supervisors, but became known as a troublemaker. 23Although he stated at one point (Tcpt, p 36(48)) "I don't really want to talk about it", he gave evidence in graphic detail of the final argument which led to him leaving work in June 2010: Tcpt, pp 34-37. At various points he gave evidence of the effect of stress on his sleeping patterns, his increased consumption of alcohol and waking up with nightmares: Tcpt, pp 37(5) and 38(10)-(20). 24The cross-examination of the claimant focused on five primary factors, namely: (a) diaries kept by the claimant from 2008 through to 2011, which contained little or nothing about the critical incidents described in his evidence and their effect upon him; (b) the diaries did record "sleep" on frequent occasions before the first incident in December 2008; (c) the psychological effect of a diagnosis during his wife's pregnancy in 2010 of a genetic defect which ultimately caused the baby to be stillborn; (d) evidence of abuse of alcohol prior to his employment related stressors, and (e) his acknowledgment that he had looked up the symptoms of PTSD on the internet, leading to a suggestion that he had tailored his evidence to fit such a diagnosis. 25To the extent that particular incidents were relied upon, there was no challenge to the fact that they occurred. Thus, there was no dispute as to the occurrence of the rock fall or its immediate consequences, nor as to the incident involving the staple on the hose, although the matter was shown not to be so serious as the claimant suggested, the worker who had been doused in hydraulic fluid having been released from hospital almost immediately. Nor did the appellant seek to challenge the evidence given as to conflicts between the claimant and deputies and in particular Mr Parkinson, which immediately preceded his failure to return to work on 28 June 2010.
Reasoning of trial judge 26The trial judge, having noted the issues and some brief background as to the plaintiff's history, turned to the evidence given by the claimant (referred to as the plaintiff): "[8] This being a case involving alleged psychological injury, the opinions of the medical practitioners are very much dependent upon the accuracy of the histories recorded, including the reporting of symptoms. ... [10] The defendant submitted that the factual matters relied upon by Dr Phillips, the plaintiff's expert, have not been established. It is therefore necessary for the Court to examine the plaintiff's evidence in this light. [11] The defendant submitted, and the Court accepts, that for the plaintiff to succeed it is necessary for the Court to accept his evidence as to his symptoms and their onset. The defendant submitted that the Court must have some concerns in this regard because, by his own admission, the plaintiff conducted his own research in particular with regard to post-traumatic stress disorders (PTSDs). The defendant submitted that the Court could not be satisfied that the plaintiff did not tailor his symptoms to fit such diagnosis." 27At [14], the trial judge noted that neither psychiatrist considered the claimant had PTSD and no such diagnosis was urged upon the Court. Nothing further was said in the reasons about the possible tailoring of his evidence to fit the diagnosis and the appellant complains that the trial judge thus ignored the significance of this matter for the credibility of the claimant generally. However, it was not in doubt that the claimant's credibility was in issue and that the trial judge was fully cognisant of that fact. 28It is apparent that the trial judge did not consider that the research into PTSD had any significance in respect of Dr Phillips' reports. The trial judge noted that the claimant had first consulted a psychologist, Mr Nagle, in December 2009 and that Mr Nagle had suggested he might suffer from PTSD and could investigate the symptoms further on the internet and obtain counselling if thought appropriate by a medical practitioner. However, the reasons noted (at [13]) that the document about PTSD downloaded from the internet, which the claimant had pasted in his notebook, bore the date 27 June 2011, which was not only a year after he ceased work but also some eight months after he first saw Dr Phillips and, indeed, some weeks after his second and last consultation with Dr Phillips. Although her Honour did not specifically refer to the evidence of Dr Pols in this context, the notes of that practitioner for 7 July 2011 provided the only clear report of symptoms of PTSD. Later in the reasons, the trial judge referred to the notes of , Dr Miller, a general practitioner whom the claimant consulted on 28 June 2010, and a submission by the defendant that her notes revealed tailoring of symptoms to fit PTSD. Her Honour implicitly rejected the criticism by referring to the only clear evidence as to when the research was conducted, namely a year after the consultation with Dr Miller. 29In the course of setting out the claimant's evidence in respect of the various incidents, the trial judge noted the challenges raised by the defendant and, where relevant, their nature. Thus, the reasons stated: (a) in relation to the incident in December 2008: (i) the assertion that the claimant developed symptoms from that time and had poor sleep was not reflected in the notebooks and diaries; (ii) the incident itself was not noted, although safety issues earlier in 2008 were; (iii) the diary contained "cryptic references to sleep" on five earlier dates in 2008, but not following the December incident; (iv) there were no relevant entries in the claimant's 2009 diary, and (v) for three weeks in January 2009 the claimant worked overtime. (b) in respect of the second incident, in October 2009, there were no contemporaneous references to the incident or any symptoms in the 2009 diary; (c) in relation to the final conflict at the workplace: (i) Dr Phillips had failed to take account of the chromosomal disorder diagnosed at an early stage of the claimant's wife's pregnancy, and (ii) the claimant's conduct in June 2010, as noted by Dr Miller, indicated anger at his treatment by his employer, rather than a psychological injury. 30In turning to the expert evidence, the trial judge noted that the appellant relied upon the opinion of Dr White and referred to his conclusion that the claimant's response to the events on his last day of work was "not the stuff of Post Traumatic Stress Disorder but the stuff of an angry tantrum": quoted at [48]. 31The trial judge accepted that the claimant did not suffer from PTSD (this was common ground) and that he did demonstrate anger. She stated at [49]: "Whilst the plaintiff disputed that he was angry it is clear from his evidence that he considered that he had been treated unfairly at various levels of management, was subjected to abuse and accused of being a dobber." 32After referring to Dr White's conclusion that the claimant "did not present as a mentally ill person despite the symptoms of which he complained" (at [50]) she continued at [52]: "Dr Phillips formed a different impression of the plaintiff's presentation when he saw him 22 September 2010. He described him as being moderately depressed, moderately anxious and mildly irritable with his affect warming as the consultation progressed. That is more or less consistent with my impression of the plaintiff as he gave his evidence over two days." 33Her Honour then referred to the report of Dr Pols, the treating psychiatrist, as noting that the claimant "displayed flat and dysthymic affect, reporting low and irritable mood": at [53]. Returning to Dr Phillips she stated: "[54] On p 10 of his report Dr Phillips considered whether there was any predisposition to developing stress related psychological symptoms and he made reference to the plaintiff's rather obsessive concerns about right wrong and matters linked with the work environment and went on to say that: '...The issue of possible obsessional and potentially rigid personality traits should be given some weight, as such features might help to explain why his life has changed to [sic] radically.' [55] My impression of the plaintiff was consistent with this observation." 34It will be necessary to return to the passages at [52] and [55], where her Honour described her "impression" of the claimant which, it was contended, involved an erroneous approach of medical diagnosis of the witness without forewarning. 35The reasons then turned to the topic of alcohol consumption. The appellant had sought to establish that excessive alcohol consumption pre-dated the alleged stressors in the workplace. It did so by reliance upon a conviction for driving with a low range PCA whilst the claimant was attending TAFE and before he entered the mining industry: at [60]. The appellant also relied upon a random alcohol and drug screening at work when the claimant gave a reading of 0.025 when reporting for night shift on 4 May 2009. 36It appears not to have been in dispute that in June and July 2010 he was drinking excessively, although the trial judge accepted that, after seeing Dr White in August 2010, he reduced his drinking and was abstinent from September 2010: at [62]. The question whether alcohol contributed to the psychiatric condition diagnosed by Dr Phillips was addressed by Dr Phillips in his second report in the following terms: "In short, I accept that Mr Wilkinson began to drink hazardously as a consequence of stress induced psychological symptoms which were triggered by trauma induced at his work place. I accept that the plaintiff used alcohol to try and reduce the intensity of his symptoms. I do not accept that the plaintiff has any chronic alcohol-based disorder. Nor do I accept that hazardous use of alcohol will be demonstrated in the plaintiff's case to have caused his various ongoing psychological symptoms." 37After setting out this (and preceding paragraphs of the report) at [63], the trial judge indicated her acceptance of Dr Phillips' opinion on the issue at [64]. 38In reaching a conclusion as to his psychological state, the trial judge noted that whilst the claimant's evidence was challenged in a number of areas, where documents were available they corroborated his evidence as to "various work-related incidents" so that the issue became "more one of his response to these events": at [65]. In respect of his response, she accepted the views of Dr Phillips. She thus stated at [66]: "For all of these reasons, the Court concludes that the plaintiff has discharged the onus he bears and finds that as a consequence of the work-related incidents upon which he relies he developed a psychological injury in the nature of a chronic adjustment disorder with mixed anxiety and depressed mood." 39The reasons concluded with a finding as to the level of the claimant's incapacity. The trial judge referred to the respective medical opinions, but in effect adopted, "having regard to the totality of the evidence", the opinion expressed by Dr Phillips: at [74].
Grounds of appeal: adequacy of reasons 40The appellant made three attempts to formulate grounds of appeal. The first (found in the notice of appeal filed on 9 December 2011) was superseded by the second (filed on 14 February 2012). Relevantly for present purposes, the grounds were threefold, namely that the trial judge erred in point of law in that she: "a. Failed to give any or any proper reasons for finding that the Respondent developed a psychological injury as a consequence of the work related incidents (at [66]) and that the Respondent was totally incapacitated (at [74]) given the state of the evidence and submissions (at [3], [8], [11], [17]-[20], [25], [38], [40]-[42] and [65]); ... c. ... failed to provide any or any proper reasons finding that unspecified documents corroborated the Respondent's evidence (at [65]) and/or so found that such documents were capable of corroborating that evidence (at [43]-[55] and [64]-[66]); d. Failed to provide procedural fairness in failing to provide any or any proper reasons given the state of evidence and submissions concerning domestic issues concerning the pregnancy of the Respondent's wife (at [38])." (The original references in these grounds to the appeal books have been replaced with references to the paragraphs in the judgment below.) 41Ground (d), unlike its predecessors, identified a failure to provide reasons as a failure to accord procedural fairness, but nothing was said to turn on this variation. Further, it was not clear that (d) added anything to (a), each referring to the same passage in the judgment. 42A ground of failing to give "any or any proper reasons" is frequently used without sufficient attention to the precise nature of the complaint. As has been noted on numerous occasions, it is important to distinguish between the situation where a judge has made and recorded a finding, without explaining the basis for the finding, and one in which the true complaint is that no finding has been made: see Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [129]-[130] (Hayne J). If a particular finding is a necessary step in support of the court's orders, the failure to make the finding may constitute an actual failure to exercise the jurisdiction conferred on the court, despite the appearance of exercise. However, the complaint is then not properly one of a failure to give reasons, but of a failure to address and determine a necessary issue. 43That distinction gives rise to a further question as to how one defines what are necessary issues for the purposes of a particular case. On one view, the critical or ultimate issues in the present case were: (a) did the claimant suffer a psychological injury? (b) if so, was it causally related to his employment? (c) if yes to (a) and (b), was the claimant incapacitated by the injury and to what extent? Absent affirmative answers to each of these questions, the claimant was not entitled to an award of compensation. 44Each of these questions can, however, be broken down further. Accepting that the critical issue in the present case was the causal connection between events in the course of employment and the psychological condition, further sub-issues arose, namely: (a) did each of these events occur, and (b) what was the effect of such events on the claimant? 45However, these issues can themselves be broken down further: one may ask what is meant by a particular "event"; is it precisely that which is described by the claimant or can there be degrees of seriousness and danger involved, which must themselves be determined in order to understand the claimant's response? Further, if the evidence in support of a particular account is that of the claimant alone, what findings must be made in respect of reliability and credibility in relation to each such occurrence? If a challenge is made by the appellant on the basis of a failure to record the event in a diary, must there be a finding as to why the event was not recorded? 46Commonsense says that at some point the exercise of division must cease. That is not because one cannot accept some analogy to Zeno's paradox (that is, that one can never get from A to B because one must always cover half the distance remaining from any point before reaching B) but because the administration of justice requires a pragmatic and functional approach to the obligations imposed on trial judges. 47It may also be noted that the nature of the duty to give reasons was first fully articulated in relation to bodies such as the Compensation Court from which appeals were limited to points of law, in the predecessor to the legislation governing the District Court in the present case: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. 48The High Court has described "the requirement to give reasons ... as 'an incident of the judicial process', subject to the qualification that it is a normal but not a universal incident": Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656 at 667 (Gibbs CJ), the internal quotation being from the judgment of Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co [1983] 3 NSWLR 378 at 386. Not only is the obligation not universal in nature, but it is variable in its content. When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality. 49In Soulemezis, Mahoney JA stated at 271: "In my opinion, the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion." 50He continued at 273E: "There is, I think, no formula the application of which to the instant case will indicate what, in that case, the judge must do. Where, in the decision of any ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if ... by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted." 51McHugh JA (the other member of the majority in Soulemezis) adopted a similar approach. In summarising the principles he stated at 281F-G: "Accordingly, the present case is concerned with a finding of fact which involves no legal standard and is not subject to appeal. The issue, therefore, is whether the failure to explain the basis of the crucial finding of fact involves a breach of the principle that justice must not only be done must be seen to be done. If it was, that is itself an error of law, because as Asprey JA pointed in Pettitt v Dunkley [[1971] 1 NSWLR 376 at 382], the learned judge 'has not properly fulfilled the function which the law calls upon a judicial person to exercise'. However, in determining the issue which this appeal raises, great care needs to be taken that dissatisfaction with the finding of fact does not mislead the Court into holding that the learned judge has failed to give his reasons for his finding." 52The reasoning of the trial judge under challenge in Soulemezis had been brief to the point of exiguous. He had made a finding that the worker had been injured at work, referred to the medical evidence, set out a brief report of a CAT scan and concluded (see 276E): "I am satisfied on the evidence that the applicant was totally incapacitated from 21 December 1982 to 17 January 1984 and fit for all work thereafter. I am satisfied that at the date of the CAT scan report the applicant was fit for all work." 53McHugh J commented at 282: "His reasons for judgment necessarily involved the total acceptance of the opinions of the applicant's doctors until 17 January 1984 and the total rejection of their opinions after that date. His Honour gave no reasons for doing this. Since, ex hypothesi, the opinions of the applicant's doctors concerning her fitness after 17 January 1984 are necessarily wrong, it is difficult to see how on the facts of this case they could be right for the period immediately before that date. Alternatively, if they were right before that date, it is difficult to see how they could be wrong immediately after that date. Moreover, as counsel for the applicant pointed out, a CAT scan is simply a diagnostic aid. It would be quite erroneous to find as a fact that the applicant was fit for work from the date of the CAT scan simply because the CAT scan failed to reveal any evidence of unfitness. However, the question is not whether his Honour's finding that the applicant was 'fit for all work' after 17 January 1984 was correct. It is whether his Honour gave reasons, however erroneous, for that finding. While it is true that his Honour did not expressly give any reasons for the finding, his reasons for judgment show quite clearly in my opinion that he held that the applicant was fit for work because the CAT scan did not reveal any abnormality. ... What is decisive is that his Honour's judgment reveals the ground for, although not the detailed reasoning in support of, his finding of fact. But that is enough in a case where no appeal lies against the finding of fact. Accordingly there was no failure to give reasons sufficient to constitute an error of law." 54The reasoning in Soulemezis has been cited and followed in numerous cases. The High Court has noted that it would be erroneous to take that reasoning out of context and apply it, for example, to a judgment in a criminal trial (without a jury) where there is appellate review of fact-finding: Douglass v The Queen [2012] HCA 34; 86 ALJR 1086 at [12]. That the content of the duty will vary "according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision" was affirmed by French CJ and Kiefel J in Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 at [56]. 55There may be a tendency for the intensity of scrutiny of the adequacy of reasons to increase over time. Thus in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 Ipp JA (with whom Mason P and Tobias JA agreed) noted at [29]: "Often important issues of credibility involve sub-issues. Often, objective facts, or facts that are probable, are capable of having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, they should then turn to the ultimate facts in issue and explain how their decisions on the sub-issues have assisted them in forming a conclusion on the ultimate issue. It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent." 56The precise scope of the inquiry required by this passage is unclear. As noted by Sackville AJA (with whom Campbell JA and Bergin CJ in Eq agreed) in Qushair v Raffoul [2009] NSWCA 329 at [54] there may be a tension between the statement in Goodrich and the reasoning of McHugh J in Soulemezis at 280C. Soulemezis was followed and applied on an appeal by way of rehearing in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. Meagher JA elaborated on the principles stated by McHugh JA in Soulemezis at 443-444. That Ipp JA in Goodrich did not intend to depart from those principles may be inferred from his adoption of them a year later in Nominal Defendant v Kostic [2007] NSWCA 14 at [59]. 57Soulemezis has been followed by the Queensland Court of Appeal. In Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1995] QCA 187; (1996) 2 QdR 462, the Court described the preference for the evidence of one witness over another as "a matter not of reasoning but of judgment": at 484. The relevant passages in Soulemezis, Beale, Cypressvale and Goodrich were referred to by Keane JA in Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 at [30]-[34]. By way, perhaps, of qualifying the minimalist standard identified in Cypressvale and Soulemezis in relation to an appeal by way of rehearing, and introducing the extract from Goodrich set out above, Keane JA noted that "[u]sually, the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation": at [34]. 58It is not necessary in this case to seek to resolve the apparent tensions noted above: as noted by Hoeben J in Sun v Hatoum [2011] NSWSC 516 at [37]-[42], different principles apply in determining the content of the duty to give reasons where there is an appeal by way of rehearing, pursuant to s 75A of the Supreme Court Act 1970 (NSW) (as in Goodrich) as opposed to an appeal limited to a question of law (as in Soulemezis). There was no challenge in the present case to the reasoning in Soulemezis.
Application of principles 59As explained above, the trial judge set out critical parts of the evidence, particularly the testimony of the claimant and the aspects which were challenged in cross-examination, before concluding that the claimant had "discharged the onus he bears" and making the findings favourable to the claimant on the ultimate issues as set out at [38]. Reading the judgment as a whole (which is the correct approach) the inescapable inference is that the trial judge accepted the plaintiff's evidence, at least to the extent to which she set it out in her reasons. The appellant did not assert that she made no such finding; rather it complained that she did not explain why she had rejected the challenges made in cross-examination. 60The substantial issue raised by grounds (a) and (d) concerned the reasoning with respect to causation. Once it was acknowledged that the trial judge accepted the claimant's evidence as to the history recorded by Dr Phillips, no further findings were required. As noted at [29] above, the areas of challenge to the claimant's evidence were identified in terms with which the appellant took no issue. Each of the matters provided a basis for challenging the claimant's evidence and, to varying extents, each was raised with the claimant in cross-examination. Factual matters were generally acknowledged and adverse inferences generally rejected. The appellant did not point to any particular exchange which appeared to demand close attention by the primary judge; none of the challenges suggested that his evidence was glaringly improbable. It is one thing to describe an entry (or the absence of an entry) in a diary, or a diagnosis of a fatal genetic defect in an expected baby, as "unchallenged" facts; the relevance of such facts depended on inferences as to what they revealed about, or their effects upon, the claimant's psychological condition, which were contested. The fact that the challenges were noted, but the plaintiff's evidence accepted, did not call for further explanation or reasoning, at least in a jurisdiction where appeals are limited to points of law. 61Once it was accepted that the incidents occurred and that, by June 2010 the claimant was suffering from the psychological conditions identified by Dr Phillips, the remaining issue was the causal link between those events and the conditions. It is not in doubt that the trial judge accepted Dr Phillips' opinion as to the causes of his psychological condition. He was not cross-examined as to his opinions and, accordingly, no further explanation as to the basis for accepting his evidence was required. Grounds (a) and (d) are rejected. 62Ground (c) took issue with the statement at [65] that "[a]s to the various work-related incidents, where documents were available they corroborated the plaintiff's evidence and the issue became more one of his response to these events". The complaint that the reference was to "unspecified documents" is trivial: it took one sentence out of the context supplied by the rest of the reasons. For example, the first incident in which the claimant was injured was the subject of an incident report, contained in Exhibit D. Similarly, the second incident, concerning the broken staple on the hose, was the subject of an incident report also contained in Exhibit D. A third incident, involving the claimant complaining that tyres on a shuttle car were unsafe and unacceptable, together with subsequent discussions with the claimant in relation to that complaint, were documented by the WENS undermanager at the mine. Further, it is clear from the impugned statement itself that the corroboration did not extend to the claimant's own response to these events which the trial judge described as the issue to be determined. Ground (c) is rejected.
Procedural unfairness 63Ground (b) in the amended notice of appeal raised a different issue and was expressed (substituting again paragraph numbers for page references in the appeal books) in the following terms: "b. Failed to afford the appellant procedural fairness in that [she] used observations of the [claimant] to make findings (at [52]-[55]) and/or despite leading the parties to believe that this would be inappropriate (Tcpt, 25/10/11, p 12(34))." 64This ground involved two separate complaints. The first was that the trial judge had erred in law in relying on her own observations of the claimant in the witness box to reach a conclusion as to his medical condition. However, that, with respect, is not a fair reading of the judgment. The descriptions taken from Dr Phillips' evidence were just that: they were descriptions of the claimant's presentation at consultation, rather than diagnostic opinions. There was no contravention of the principle expressed in Strinic v Singh [2009] NSWCA 15. 65The second complaint, which appears to have been the primary concern of ground (b), arose from an exchange in the course of submissions. 66At the conclusion of his submissions at trial, counsel for the appellant noted that he had put to the claimant in cross-examination that he was "leading his life in a fairly normal fashion" and submitted that he was doing "all the mundane things that most of us have to do from time to time": Tcpt, 25/10/11, pp 11-12. He concluded: "Your Honour, again that is evidence that the presentation to Dr Phillips ought not to be accepted at its face value." 67That was the final submission: counsel for the claimant then addressed, commencing immediately in the following terms: "Your Honour, my learned friend is correct in one respect, his opening 'This actually is a very simple case.' Perhaps your Honour the true starting point in this case is the presentation of the plaintiff in the witness box. You had the advantage of seeing him yesterday, you've had the advantage of seeing him this morning. One can clearly see his demeanour, the way he answers questions, that he delivers his responses with a very flat effect [sic - affect]. ... It's a simple matter that it doesn't take an awful lot of listening to Mr Wilkinson to understand that this is a man with a problem. He has a mental problem and his effect [sic - affect?] is entirely consistent with Dr Phillips' diagnosis of a depressive condition .... ... HER HONOUR: Could I just interrupt you to say, Mr McManamey, that I think that it would be very dangerous for a judge to make a finding that someone was depressed on the basis of their demeanour in the witness box. MCMANAMEY: No, your Honour I accept that. What I'm suggesting is when one looks at the demeanour and then lines it up with the medical opinion, one can see how it fits. ... I'm not suggesting that you make a diagnosis from what one sees the [affect] of the person, [one] has a look at the medical opinion and say, 'Which of these doctors is describing the person I've seen in the witness box?'" 68The appellant's submission was that, having indicated that she did not consider it appropriate to make a diagnosis on the basis of demeanour, a proposition accepted by counsel for the claimant, it was procedurally unfair for the trial judge then to undertake the precise task which she had indicated was not appropriate: cf Parker v Director of Public Prosecutions (1992) 28 NSWLR 282. 69The statement of legal principle relied upon is correct; the complaint of breach is misconceived. As already explained, the trial judge did not make a diagnosis based on demeanour, but recorded her "impression" of the claimant's demeanour in the witness box. Ground (b) is rejected.
Conclusions 70The case at trial was entirely an exercise in fact-finding. The critical witness was the complainant. The appellant did not so much challenge the occurrence of the incidents which the complainant said caused him to suffer the psychological decompensation which ultimately led him to abandon underground work in the mine, but rather challenged the seriousness of the incidents and their subjective effects upon the claimant. 71The trial judge identified the significant challenges to the claimant's evidence and, at least implicitly, made the necessary factual findings. Her rejection of the inferences sought to be established by the cross-examination (including suggestions that there were other causes of any stress-related condition) not being made in express terms, the reasons given for the assessment of the cross-examination were quite limited. Nevertheless, the minimum acceptable standard for disclosure of reasoning in respect of findings of credibility is undemanding and there can be no doubt that the reasons satisfied the standard articulated in Soulemezis. The standard applicable to trials where the only available appeal is limited to errors of law is not to be equated with the standard applicable in respect of those trials where there is an appeal on questions of both fact and law and, accordingly, challenges in respect of factual findings are available on an appeal by way of rehearing. This case fell into the former category. 72The trial judge was presented with conflicting medical evidence. Nevertheless, neither party sought to cross-examine the other's expert. Where one expert provides a detailed history, which is accepted by the trial judge as established on the evidence, little if anything is required by way of reasons for accepting the opinions based on that history, which have not been challenged. Those findings included findings as to causation. 73In the event, the appellant has failed to establish error in point of law on the part of the trial judge. The appeal must be dismissed with costs. The Court should make the following orders: (1) Dismiss the appeal from the judgment and orders of the District Court delivered and made by Judge Truss on 11 November 2011. (2) Lift the stay on past payments of compensation and expenses imposed by the trial judge by order dated 9 December 2011. (3) Order the appellant to pay the respondent's costs in this Court. 74MACFARLAN JA: I have had the advantage of reading the judgment of Basten JA in draft but, for the reasons following, respectfully disagree with his Honour's conclusions. 75In her judgment, the primary judge expressly recognised that "the opinions of the medical practitioners are very much dependent upon the accuracy of the histories recorded, including the reporting of symptoms" ([8]) and that, as a consequence, "for the plaintiff to succeed it is necessary for the Court to accept his evidence as to his symptoms and their onset" ([11]). In a similar vein, her Honour recorded the defendant's submission that the factual matters relied upon by Dr Phillips, the plaintiff's expert, had not been established ([10]) and that the defendant challenged the history recorded by Dr Phillips in his first report that the plaintiff developed symptoms after the first work incident, being that of December 2008 ([16]). 76In concluding her consideration of the liability aspect of the case, the primary judge expressed the view that "the various work-related incidents" had been proved but that "the issue became more one of [the plaintiff's] response to these events" ([65]). One would have expected that at this point the judge would have stated whether she accepted or rejected the plaintiff's evidence of the impact of these incidents upon him and given reasons for her conclusion. It was important that she do this because acceptance of that evidence was necessary to establish the assumptions for Dr Phillips' expert opinion. However her Honour proceeded immediately to express the following ultimate conclusions: "66 For all of these reasons, the Court concludes that the plaintiff has discharged the onus he bears and finds that as a consequence of the work-related incidents upon which he relies he developed a psychological injury in the nature of a chronic adjustment disorder with mixed anxiety and depressed mood". 77A finding in favour of the plaintiff on what the primary judge described as "the issue" (the impact of the work-related incidents on him) must be regarded as implicit in these conclusions because they would not otherwise make sense. However her Honour did not give any reasons for that implicit finding. Her Honour had earlier referred to a number of specific attacks by the defendant on the plaintiff's evidence (see the judgment of Basten JA at [29] and [60]) and rejected one of them (that his condition was attributable to excessive drinking - Judgment [62] - [64]). However the question of whether his evidence on the issue identified by her Honour should be accepted or rejected remained unresolved. 78In Mifsud v Campbell (1990) 21 NSWLR 725 this Court, referring to its earlier decision in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, held "that the failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done" (at 728). The principle that a judge is required "to expose the reasoning on a point critical to the contest between the parties" has been stated by this Court on many occasions (Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329 at [52] and see for example North Sydney Council v Ligon 302 Pty Ltd [1995] 87 LGERA 435 at 442; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]; Basha v Vocational Capacity Centre Pty Ltd [2009] NSWCA 409 at [62]). As stated in Abdel at [52] "[t]he giving of adequate reasons lies at the heart of the judicial process, since a failure to provide sufficient reasons can lead to a real sense of grievance because the losing party cannot understand why he or she lost ... ". 79In the present case, the primary judge, correctly, identified the impact of the work-related incidents on the plaintiff as the crucial issue to be determined. Its resolution favourably to the plaintiff, with the consequent conclusion that Dr Phillips' expert opinions were applicable, depended upon acceptance of the plaintiff's evidence. 80The absence of any reasons for her Honour's finding on this critical issue would in my view have fairly given rise to a sense of grievance on the part of the defendant. The fact that the finding was only implicit in her Honour's judgment would have compounded that sense of grievance as it raises doubts as to how carefully, if at all, her Honour turned her mind to resolution of the issue. 81It would not have been necessary for the primary judge to give detailed reasons why she accepted the plaintiff's evidence (see Jones Lang LaSalle (NSW) Pty Ltd v Taouk [2012] NSWCA 342 at [46] - [47]), but she was in my view at least required to express "the essential ground or grounds" for her conclusion that the plaintiff had proved that the assumptions upon which Dr Phillips founded his opinions were well-founded (Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56; 216 CLR 212 at [40] citing Soulemezis and other cases). As stated in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 442 "a judge is bound to expose his [or her] reasoning in sufficient detail to enable a losing party to understand why they lost ... ". 82It may be that her Honour's unexpressed reasons for accepting the plaintiff's evidence comprised no more than a favourable impression of his demeanour and rejection of the specific attacks on his evidence, but whether that was so cannot be known in the absence of her Honour stating what the reasons were. The question of how detailed the reasons would have needed to be (see Abdel at [53] - [54]) does not arise as no reasons at all were given. 83The decision in Soulemezis is authority for the proposition that where a right of appeal is given only in respect of a question of law, as in the present case, reasons for a finding of fact "can be treated less elaborately than [those on] an issue involving a question of law or mixed fact and law" (at 281). Nevertheless the principle that justice must not only be done but must be seen to be done remains applicable (see for example Ligon in which an appeal lay only on a point of law) and in Soulemezis, the judgment below revealed "the ground for, although not the detailed reasoning in support of, [the relevant] finding of fact" (at 282D). That is not the position in the present case. 84For these reasons, I consider that the process of decision-making miscarried in this case and that the appeal should be allowed. A new trial should be ordered as I am satisfied that this constituted an error of law on the part of the primary judge and has occasioned a "substantial wrong or miscarriage [of justice]" (Uniform Civil Procedure Rules, 2005, r 51.53(1)). 85I propose the following orders: (1) Allow the appeal. (2) Set aside the orders of the District Court made on 11 November 2010. (3) Remit the proceedings for retrial in the District Court. (4) Order the respondent to pay the appellant's costs at first instance and on appeal. (5) Grant the respondent a certificate under the Suitors' Fund Act 1951, if qualified.
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. Decision last updated: 26 February 2013
Resource Pacific Pty Ltd
Wilkinson
[2007] QCA 136
[1995] QCA 187
(1987) 10 NSWLR 247
(1997) 48 NSWLR 430
(1996) 2 QdR 462
(1990) 21 NSWLR 725
(1992) 28 NSWLR 282
[1986] HCA 7
Appeal dismissed; stay on past payments of compensation and expenses lifted; appellant to pay respondent's costs in this Court.