Workcover/Royal and Sun Alliance (Adelaide Casino Pty Ltd) v Hunter [2003] SAWCT 63

4 Thereafter followed a period of conflict between the worker and the employer regarding the suitability of modified duties that it offered and his capacity to undertake those duties.

5 It seems that from at least 12 October 1999 the worker had been the subject of periodic surveillance and the Corporation had in its possession video film, which disclosed amongst things the worker playing golf. The Corporation placed the video film before the worker's treating occupational physician, Dr David Cullum and this led Dr Cullum to provide the Corporation with a report in the following terms:-

"As you know we discussed this case. He is employed at the Adelaide Casino. I recently had an interview with Rohan Clifford, who showed me some video of this man playing golf. He also showed me more disturbingly the history of his golfing achievements in the last few months, particularly six competitions in September. He did not appear to have any impairment of the cervical spine. I believe this man is fit for normal duties."

6 On the strength of this report the Corporation resolved to make a determination pursuant to s 36(1)(b) of the Act to discontinue the worker's weekly payments of income maintenance that it was then paying him on account of the claimed disability. This was the determination that was before the learned Deputy President.

7 The contents of the video film is accurately described in a report of Kingswood Investigations Pty Ltd dated 28 September 2000 as follows:-

"During this period of observations the claimant initially was not sighted, however, on Saturday, 23 September 2000, the claimant was sighted near his vehicle, holding a saucepan in his right hand, as he appeared to be splashing water over frosted windows of his vehicle. He then reached into his vehicle, collected articles from within the car and carrying the saucepan in his right hand, returned to the house."

8 The report details the observations made in connection with the worker's golf playing. It records as follows:-

"7.01 am The claimant arrived at the golf course [ie the Mawson Lakes Golf Course] driving a light blue VN Commodore Sedan ... The claimant then proceeded to alight from the vehicle and bent over freely and picked up a small item from the ground using his right hand before entering the club house.

7.04 am The claimant returned to his vehicle and removed a golf bag containing golf clubs from the boot. The claimant then proceeded to move both arms freely as he connected the golf bag to a trolley and assembled components in an unrestrictive manner.

7.05 am The claimant cleaned and proceeded to put on a pair of golfing gloves, again moving freely during this time. The claimant then placed small items into the golf buggy before then pulling the golf buggy with his right hand out of sight and into the club house.

7.14 am The claimant was seen to stand on the first tee of the Mawson Lakes Golf Club ... The claimant had both arms raised in the air above shoulder height. The claimant was wearing a white glove on his left hand and was holding a golf club in that hand. The claimant reached into the right pocket of his shorts using his right hand. The claimant turned his head to his right, looking or speaking to other golfers. The claimant moved forward, bent over and placed a golf ball on a tee into the ground. The claimant took four paces backwards and whilst doing so, he swung the golf club across the front of his body from right to left on two occasions. His left and right elbows was seen to bend quite easily. The claimant did not show any discomfort. The claimant took steps forward and addressed the golf ball. Whilst walking forward he again swung the golf club in a free, flowing motion, showing no discomfort. The claimant then swung the golf club practicing his swing. His elbows were bent and the claimant again did not show discomfort. The claimant then teed off and swung the golf club and hit the ball down the fairway. The claimant took four steps forward and appeared to watch his golf ball. The claimant walked around and searched for his tee. The claimant walked to his golf buggy and used his right hand to place the golf club back into its bag. The claimant then walked off and pulled his golf buggy behind him, using his left hand. The claimant's right arm could be seen to move/swing in a normal manner as he walked along. The claimant was then seen to look behind himself, twisting at the hips and used his right arm/hand to wave his arm towards other golfers in a `come-on' type motion. The claimant then was seen to `pump' his right arm forward and rolled his right arm over at the shoulder. The claimant also pumped his right arm in a backwards motion and his right elbow was seen to be clearly bent as he again pumped his right arm forward. The claimant then `rolled' his right arm over three times in a cricket type bowling action. The claimant then did the same sort of actions with his left arm, while he pulled the golf buggy by his right hand. The claimant continued to swing his right arm about, after having changed the golf buggy back into his left hand."

9 At trial, there was evidence from two medical experts who supported the worker in his assertion that he had an ongoing incapacity for work, they being Dr Gary Clothier and Dr Bruno Rositano.

10 Both of these doctors had conceded in the course of their evidence that they were unable to establish any objective signs to substantiate the worker's symptoms.

11 Dr Clothier explained why he was not influenced by the video film. The learned Deputy President described his evidence at par 34:-

"Dr Clothier dealt with why the blackjack arm movement was harmful though the same did not apply to golf. It depended on distinctions in muscle group usage. In short one involved the static usage and the other `a lengthen, contract and expand' phase. It was on this analysis that Dr Clothier concluded one would pain the worker and the other would not. In particular he disagreed with Dr Champion's contention that the golf was at odds with any significant shoulder joint disability. In his view there was no true gleno-humeral joint involvement which would be relevant in a golf stroke. He also disagreed with Dr Champion's view that any soft tissue injury of this type would have resolved by now."

12 Dr Rositano, in his evidence dismissed the video film as contradicting the worker's complaints for the following reason (tr 146):-

"I think, as I said, his movements haven't been a problem, so the isolated swing in golf is just a one-off thing. It's different to sitting in a hunched-up type position, because of his height, dealing 1500 times an hour."

13 It will be apparent that Dr Clothier and Dr Rositano had different opinions as to why the video film was not inconsistent with the worker's alleged incapacity; one saying because different muscle group usage was involved, the other saying because of differences in frequency of movement and posture.

14 In asserting the contrary position the Corporation relied upon Dr Cullum and Dr Gary Champion. Dr Cullum's views as to the significance of the video film are as set out above.

15 As for Dr Champion, he did not personally examine the worker. His brief was to provide expert evidence based upon the medical reports of the other medical experts involved in this matter and his viewing of the video film.

16 Dr Champion was quite forthright about his views about the inconsistency with what was displayed on the video film and the worker's assertion of an ongoing incapacity for work. For example, in his medical report of 8 March 2001 at p 2 and 3 he wrote:

"Despite his self reported symptoms of ongoing pain in the right periscapular region, he has been demonstrated to play golf with a degree of proficiency, which is inconsistent with a patient with a significant, if any, musculo-ligamentous injury to the shoulder joint mechanism/apparatus.

If indeed one accepts that Mr Hunter had a so-called `strain' of the muscles associated with those attaching to the scapula, the natural course of such a muscle strain would be a recovery over the course of several weeks, and almost certain resolution after several months. A muscular or ligamentous strain can easily be treated with local therapy, with the use of simple analgesia, and to indicate that such chronicity could exist six years since the incident is incompatible with pathogenic mechanisms involved in such an event. A strain is no more than an overstretching of the micro-structures of the muscles or ligaments, and recovers generally in the space of a few days or, at the most, one to two weeks. Therefore, this man who has shown a chronicity far and beyond the normal circumstances for a muscular strain of the posterior shoulder muscles, as far as I am concerned, could not under any circumstances be regarded as having an ongoing valid complaint.

My opinion regarding the improbability of Mr Hunter having an injury to his shoulder is supported by the video of him playing golf on 23 September 2000. This shows a large, tall man who appears to me to play golf without restriction, with a strong swing, and shows no evidence of any pain behaviour whatsoever. In one section of the video he was able to swing both his right and left arms (right arm in particular) with a bowling type action, and this is completely inconsistent with a muscular injury of the thoraco-scapular muscles.

The video of Mr Hunter playing golf establishes unequivocally the lack of disability related to his right shoulder. The game of golf relies significantly on appropriate shoulder movement. With driving, for example, the stroke requires significant power delivered due to shoulder movement, associated of course with appropriate eye coordination. Mr Hunter has no disability related to his shoulder, as displayed by his playing golf, and by understanding the requirements in golf of having adept shoulder control."

17 The learned Deputy President identified the issue as being whether, notwithstanding what the worker acknowledged to be a minimal disability, it nevertheless prevented him from dealing blackjack for a full shift because that is an activity that required 1500 arm movements per hour.

18 In that context he approached this case on the basis that it was the worker's credibility that was the critical issue.

19 In relation to his evidence, there were some aspects of the worker's evidence that on their face were a cause of some concern. For example, he gave the following testimony at tr 152-153:-

Q Can I ask you to look at this first document, which is a certificate of sickness dated 5 July 99, indicating unfitness for work from 5 to 14 July 99.

Q I take it that you were away from work for that period.

Q And in the middle of that period you played golf on 10 July 99.

A If stated in the record, yes, that would be correct.

Q Now, does that tell us that you were more committed to your golf than you were to your work at that time.

Q Can you explain how you were fit enough to go and play golf, but not fit enough to go to work.

A If I was playing golf that would be because I was on the improve.

A That is not an assumption that I would make or deny. ... I cannot specifically answer why I would not return to work given that I was given off until the 14th.

Q Did you take the position that because you had a sick certificate until the 14th, you weren't going back to work until that period had expired.

Q Well, why then could you play golf but not go to work.

A I cannot give you a direct answer for your particular question. I would have played golf on that date and returned back to work at the end of the sickness certificate, with no other hidden agendas."

20 The learned Deputy President stated that this evidence caused him considerable concern in relation to the worker's credibility.

"Q Is the picture then, Mr Hunter that as of about February this year you'd had some exercises given to you by Dr Clothier, it seemed to improve you to the point where you had minimal symptoms, but you haven't gone back to try any of your normal duties.

A I can't truthfully answer that in regards to this case as being presented, and I am unaware of what the legislation allows on when a court case has already been answerable.

Q But by the time you'd reached the stage of minimal symptoms, that was surely an indication that you may be able to do your previous work.

Q Well if you had minimal symptoms what was preventing you from going back to your work.

A I have not - I have been available for alternate duties since August of 2000, so by February 2001 the same had applied.

Q I understand that you've been available for alternate duties. I'm putting to you why couldn't you have gone back to try your normal duties.

22 This did not particularly trouble the learned Deputy President. He said at par 25:-

"The appropriate treatment of this evidence is not to treat it as a concession that there was no disability. The chance of testing that proposition required a return to work and I accept the worker may have been confused as to his obligations."

and, after referring to the medical evidence that supported the worker he concluded at par 26 that "there were some real obstacles between the worker's improved state and the chance of being able to walk straight back into his former work".

23 As for the video film, there had been prior disclosure by the worker to those who had been treating him that he had been playing golf. This in turn led the learned Deputy President to make the observation at par 21 of his reasons:-

"The point of all this is that by October 2000 the issue of golf was hardly news. For that reason I agree with Mr Durkin that the film of him playing golf did not per se damage his credibility. The issue is whether the activity on the video contradicts the possibility of pathology or disability in the shoulder."

24 Having discussed the competing medical evidence and having reminded himself of the observations made by Bright J in Dibbins v Dibbins Supreme Court of South Australia (unreported 23 October 1978) the learned Deputy President concluded at par 52:-

"In considering the question of credit and reliability I have had careful heed to the existence of any inherent consistency in the worker's evidence. Also the consistency of the story he tells to other witnesses, to the degree to which they inter-relate, (ie the giving of histories and collateral circumstances). Moreover what inherent probabilities and improbabilities there are in the various stages of the case the worker has put forward. As indicated there are aspects of his recount which have caused me some concern (viz playing golf when on sick leave), on the other hand the matter must be considered in the overview. I have been at pains not to overrate the likelihood of the worker to tell the truth. There is manifest motive available for him to perpetuate complaints of disability after they have resolved. However upon completing that overview I have concluded in his favour. I find him a reliable witness."

25 Mr Hackett-Jones QC, counsel for the Corporation, in attacking the decision essentially relied upon three grounds.

26 The first was that there was no evidence to support the learned Deputy President's finding. Hence, the primary relief the Corporation sought was an order allowing the appeal, setting aside the determination of the learned Deputy President and substituting it with one, upholding its determination to discontinue the worker's weekly payments.

27 The second was that the learned Deputy President committed an error of law in failing to give sufficient reasons for the critical finding that the worker had not ceased to be incapacitated for work and on that ground, the appeal should be allowed and the matter be remitted for a rehearing. In considering the submissions put to us on this point we thought that it might be important to consider the transcript of the submissions and exchanges between the learned Deputy President and counsel. These were not included in the appeal books. We invited the parties to address us on this. At a later hearing by consent they were formally tendered. A further issue that arises in connection with them is whether they should be taken into account in considering the adequacy of the learned Deputy President's reasons.

28 In developing submissions on these two grounds, Mr Hackett-Jones was highly critical of the learned Deputy President's approach to his assessment of the evidence, the methods by which he analysed and dealt with the evidence, and the way in which he went about making relevant findings. It was suggested for example, that the learned Deputy President had become exasperated by the employer's apparent refusal to provide the worker with duties that accommodated the worker's claimed restrictions and that this compromised his impartiality in dealing with the issues before him.

29 The third was that the learned Deputy President made an error of law in determining that the onus was on the Corporation to prove that the worker had ceased to be incapacitated. It contended that the onus in fact lay with the worker to prove that he had not ceased to be incapacitated and that for this reason the trial, and hence the result miscarried.

30 The first and third bases upon which the appeal is made can in our view be easily disposed of and we commence with these. It is convenient for us to deal with this last point first.

31 In putting this submission Mr Hackett-Jones relied upon the decision of the Workers Compensation Appeal Tribunal (Presiding Member Judge Allan) in Liccione v The Corporation/Caltex Oil Australia Pty Ltd A39/1992. In that case it was said:-

"The applicant had the onus of establishing that he continued to be incapacitated for work as a result of the compensable disability suffered by him on 28 March 1989."

32 In our view, in light of the decision of the Full Supreme Court in WorkCover Corporation of SA v Warren (1998) 72 SASR 7, that approach must now be regarded as incorrect. In the context of review of a determination made pursuant to s 42A of the Act, Cox J, with whom the other members of the court agreed, said that: "the Corporation was obliged, by evidence or admissions, to satisfy the Review Officer of the soundness of its assessment" (supra at 18). By parity of reasoning it must, in our respectful view, also follow that in a s 36 case the relevant compensating authority is obliged to establish by evidence or admissions that its determination that the worker had ceased to be incapacitated (or whatever the ground of discontinuance might be) has been made out. See also: Royal Adelaide Hospital v Withers and WorkCover Corporation [1999] SAWCR 132. Accordingly, with respect, the learned Deputy President was right to adopt this approach. This ground of appeal therefore fails.

33 We now turn to consider the first basis for the appeal.

34 The task of identifying an error of law in connection with findings of fact is an onerous one. If there is evidence which if accepted by the trial Deputy President justifies the conclusion reached, an appeal that seeks to attack the findings made by endeavouring to persuade the Full Bench that contrary findings should have been made, will invariably fail. See, for example: South Australian Police Department v Barber [2001] SAWCT 100 at par 76 and WorkCover Corporation/CGU Workers Compensation SA Pty Ltd (KC & MR Boult Pty Ltd) [2002] SAWCT 92 at par 5.

35 In our view, it was open, despite the evidence to the contrary, for the learned Deputy President to have come to the conclusion that the worker continued to be incapacitated for work. There was medical evidence that supported that outcome and despite attacks upon his credibility the worker maintained that he was unable to work as a blackjack dealer and the learned Deputy President was entitled to accept that evidence. Accordingly, the complaint that there was no evidence to support the learned Deputy President's finding has not been made out.

The learned Deputy President's reasons and statements to counsel - Issues of adequacy and pre-judgment

36 We now turn to consider what we have found to be the most difficult aspects of this appeal and they are whether the learned Deputy President gave adequate reasons for making the critical finding that he did and what we are to make of the statements he made to counsel. This task is especially difficult because as McHugh JA (as he then was) explained in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 257 at 281:

"...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."

37 In other words, in determining these issues we cannot permit ourselves to be swayed one way or the other by our views as to the findings made by the learned Deputy President. The fact that we might agree with them does not mean that there is nothing in the complaint. The fact that we might disagree with them does not mean that the complaint has substance.

38 There are cases of the highest authority that suggest that a mere statement in a decision that I prefer A to B - or that I find X - is always sufficient to discharge the obligation to provide adequate reasons for decision. So much was said by the Judicial Committee in Selvanayajan v The University of West Indies [1983] 1 WLR 585.

39 But that case has not in recent times been followed in Australia. See, for example: Soulemezis v Dudley (Holdings) Pty Ltd (supra) and in light of the decision in Papps v Police [2000] SASC 183; (2000) 77 SASR 210, it cannot be regarded as the law that we must apply.

40 Moreover, whilst we acknowledge that there are legitimate differences of opinion as to what does or does not amount to adequate reasons, as a comparison of the majority judgments of Mahoney and McHugh JJA to that of Kirby P in Soulemezis v Dudley (Holdings) Pty Ltd and the judgment of Prior J in Papps v Police [1999] SASC 545 to that of the Full Court of the Supreme Court in Papps v Police (supra) will reveal, the position for us is clear. We must apply the law as declared by Gray J speaking for the Full Court in Papps v Police (supra) at 218 - 9 where he said:-

"The courts have encountered difficulty in articulating a test to determine whether or not reasons are adequate. Much must depend upon the circumstances of each case. As was said in Lawson v Lee, the reasons must be `coherent, intelligible and comprehensive'. But there is more. The reasons must be adequate to allow an appellant court to perform its function and they must be such that justice is seen to be done. As was said in Sun Alliance Insurance v Massoud: `The adequacy of the reasons will depend upon the circumstances of the case. But the reasons, will, in my opinion, be inadequate if:

(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or

The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.'

In my view the need for justice to be seen to be done represents a basis against which the adequacy of reasons are to be assessed." (emphasis ours)

41 To this we must add a qualification because the appeal to this Full Bench is limited to a question of law. But as McHugh JA makes clear in Soulemezis (supra) at 281 that does not abrogate from the responsibility for the reasons to meet the threshold that justice must be seen to be done. His Honour said:-

"In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than the issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff's credibility. But, if, in addition to the issue of credibility, other matters were relied on going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough."

Consideration of the learned Deputy President's reasons in light of these principles

42 It was apparent, even on the worker's own case before the learned Deputy President, that he was alleging a very minor incapacity for work.

43 The medical evidence in this case revealed that there was no objective proof that the worker continued to have a disability in his right shoulder.

44 It is clear that the video film was largely responsible for the polarised views of the medical experts involved in this case.

44 The learned Deputy President stated that he regarded the worker's response to the condition as unusual, but he attributed that in part to his acceptance of Dr Rositano's evidence that the worker has a low pain threshold.

45 The learned Deputy President alluded to a stand off between the worker and the employer and although he expressly dismissed, as he was entitled to, the assertion that the worker's allegation of an ongoing incapacity was motivated by the pursuit of industrial grievances, there was evidence indicating that issues between the worker and the employer were lurking and may have been of some influence in how the worker was behaving. See, for example tr 31-32.

46 With these observations in mind we now turn to consider some notable features of the learned Deputy President's reasons for decision.

47 First there was the learned Deputy President's reference to the worker's playing golf as "hardly news" (par 21 reasons). That statement, in light of the fact that the learned Deputy President did not in his reasons elaborate on what was contained in the video film, might have given the impression that he did not fully appreciate what it revealed. We have viewed the video film and having done so we think that the Corporation was entitled to assume that it would be regarded as showing much more than a man playing golf. What it showed was an ostensibly fit and adept golfer untrammelled by pain and discomfort who demonstrated an unrestricted range of movements of his arms and shoulders. It comprised of evidence that objectively might reasonably be thought to have gone a long way to establishing, in the context of an alleged injury to the shoulder, that the worker no longer continued to be incapacitated for work.

48 The learned Deputy President stated that he regarded it as relevant that Dr Champion "did not have the opportunity of a clinical examination and ability to make a clinical judgment to this worker", but he did not explain why that followed.

49 Drs Cullum and Champion had both given evidence that swinging a golf club and dealing in blackjack involved the same muscles. The learned Deputy President did not say whether he accepted or rejected this evidence.

50 Then there was the statement by the learned Deputy President at par 54 of his reasons:-

"I have also formed the view that the analysis and conclusions drawn by Drs Clothier and Rositano are more probably correct than that later drawn by Dr Cullum and invariably held by Dr Champion. I therefore make the findings consistent with Drs Clothier and Rositano."

51 Absent a further explanation this statement may have given the impression that the learned Deputy President did not appreciate that the evidence of Drs Clothier and Rositano was different in a number of important respects. They did not share the same opinion as to the correct diagnosis of the worker's alleged disability nor were they as one as to why the video film was not inconsistent with the worker's assertion of an ongoing incapacity for work.

52 This may have created the impression that the learned Deputy President gave insufficient weight to this in evaluating their evidence and the evidence of those he did not prefer, Drs Cullum and Champion.

53 These observations must however be qualified. They merely raise possibilities. It should not be assumed that this is what in fact occurred. Those reading a judge's reasons for decision should assume that even where there appear to be gaps in the process of reasoning, the judge has in his or her own mind gone through the process. The relevant authorities were discussed by the Full Bench in The Smith's Snackfood Company Ltd v Zienkiewicz [2002] SAWCT 48 at par 4-6:-

"Where there are arguable gaps in the reasoning the presumption favours the judgment. In Gardiner v Land Agents Board (1976) 12 SASR 458 Walters J stated the rule as follows (480):-

`I recognise the import of the rule that a tribunal "will be presumed to have found as a fact everything necessary to support its conclusion although the same are not explicitly stated" (Watts v. Welch (1950) SASR 289, per Mayo J at p 292). But as his Honour went on to add, there is a proviso to the rule, namely, that `there be evidence upon which such findings may be satisfactorily based, and in the reasons disclosed there is no indication conflicting with that assumption". ...'

A recent expression of the rule describes similar sentiment to those found in Gardiner. In Carian v Elton (2000) NSWCA 175 at par 50, Handley JA stated:-

`... An appellant must establish that the judgment appealed from was wrong (Warren v. Coombs [1979] HCA 9; (1979) 142 CLR 531, 539), and will give respect and weight to the trial judge's conclusions (ibid 551). In an appeal from the exercise of a judicial discretion Lord Wright said that an appellate court will make every reasonable presumption in favour of upholding the judge (Heyman v. Darwins Ltd (1942) AC 356, 388). In my view this was the approach adopted by McHugh J in the passage last quoted, (i.e. Abalos v. Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 178-9), and in my judgment it requires this Court to conclude that the Judge rejected the evidence of Mr Cooper that Elton had admitted that he was the driver of the bike.'

These rules must be understood without compromise to the requirement for adequate reasons: Commissioner for Railways for the State of Queensland v Peters and Another (1991) 24 NSLWR 407 at 416 - 417 per Kirby P, see also Fresh Farm Produce Pty Ltd v Tu [2001] NSWCA 448."

54 We now turn to consider the statements the learned Deputy President made during the hearing.

55 In the course of closing submissions the learned Deputy President in response to a submission that the worker's movements as disclosed by the video film: "are a long way from someone who has got neck stiffness to the point where it's incapacitating" said this:

"I would be more concerned with the opinions of experts about what - the conclusion I should draw from the film than just independently look at the film, if you can understand what I mean. Can I say this to you: there's many a person who will tell you that they have no symptoms, although they've had a history of say, shoulder girdle strain, and come in and - I don't want you to get me wrong, but they've bowled three overs at a hundred miles an hour and then they turn to you and say `Look, I'm gone.' During that space of the three overs they look like they were on fire, but then that's them; they're gone.. All I'm saying is that we can't take an awful lot from our personal experience because it's all over the shop. What the experts think of the film, I think is more significant." (tr 262)

56 However in discussing the video film with the worker's counsel and in particular Dr Champion's opinion that the video film established unequivocally the lack of disability in the worker's right shoulder, the learned Deputy President said as follows:

"I don't accept that Dr Champion can say that, with the greatest respect to him, because of the very reason that I won't indulge myself in speculation about those things. For the reason I gave you about the cricket: that you can have a person put in three extraordinary overs and then just come to you and say, `Look, the shoulder is buggered'." (tr 278)

57 The learned Deputy President is not to be criticised for the fact that he embarked upon this exchange. Of themselves these statements did not compromise the principle that justice must be seen to be done. Indeed to have denied counsel the opportunity of knowing what he was thinking of the significance of the video film might have been regarded an injustice. For as Brennan, Deane and Gaudron JJ noted in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571.

"Nor will that requirement of the reality and appearance of impartial justice be infringed if a judge with preconceived views about the general reliability of the evidence of a particular medical witness discloses the existence of such views in the course of the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case. In the course of an eloquent passage in his judgment in Reg. v. Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, at p 294, Jacobs J. expressed the view that judicial `silence' is a `counsel of perfection'. We respectfully disagree with the application of that observation to a trial judge sitting without a jury. It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated."

58 But that said, statements made by the person hearing the case have to be taken into account in determining the threshold issue whether justice has been seen to be done. As Doyle CJ observed in IOOF Aust Trustees v Seas Sapfor (1999) 151 SASR 151 at 177, "a judge must be sensitive to the impact that his remarks and views might have upon the fair-minded observer".

59 The attributes to be afforded to the fair-minded observer whom Kirby J described in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 as the fictitious bystander were said by his Honour at 506-7 to be these:

"However, the test which the law calls for interposes a fictitious bystander. It hypothesises a person whose judgment in the matter is taken to be determinative. One might consider that the fiction should not be taken too far. Indeed, it is important to reserve to the appellate court a capacity to review the facts and the complaints having regard to the `serious and sensitive issues' raised by an allegation of prejudgment.

Nevertheless, the interposition of the fictitious bystander and the adoption of a criterion of disqualification expressed in terms of possibilities rather than `high probability' are both intended to serve an important social interest which must be restated in disposing of this appeal. Each of these considerations lays emphasis on the need to consider the complaint made ultimately, not by what adjudicators and lawyers know, but by how matters might reasonably appear to the parties and to the public. ...

These considerations leave open the other matters which the fictitious bystander is assumed to know, or to attempt to obtain, in order to make the hypothetical decision. Does the law assume that the bystander is simply a member of the public who may have sat in the back of the courtroom and heard no more than the particular statement of the primary judge about which the appellant complains? Most members of the public, if they visit courts at all, stay only for a matter of minutes, rarely for hours, and almost never for days. Even parties, if represented, may absent themselves entirely or for extended periods of time. Does the law presume that, to make the hypothesised decision, given its serious consequences, the fictitious bystander will secure acquaintance with at least the five considerations mentioned above? If such knowledge is to be attributed to the bystander, does that fact undermine the modern test adopted by this Court and restore once again a restrictive judgment according to the opinion of lawyers rather than the public? Would that be effectively to shift the balance back to the test previously favoured? Or at least towards the `real danger' test adopted by the House of Lords in Gough despite its recent rejection by this Court in Webb?

It is important to face these questions in this appeal both because differences of view have been expressed upon them within Australia and because some overseas decisions have suggested that the attribution of increasing knowledge to the fictitious bystander, about the law and its ways, is the means by which, in practice, the `vigilant' or `Spartan' test (depending on one's point of view) is revealed as no different in application from the alternative test which requires affirmative proof of a `real danger' of apparent bias before the adjudicator is disqualified.

There is no simple answer to the foregoing questions. As is usually the case when a fiction is adopted, the law endeavours to avoid precision. The nature of the fiction involved in this instance is illustrated by the many ways in which the hypothesised bystander is described. Phrases that have been used include the `lay observer', `fair-minded observer', `fair-minded, informed lay observer', `fair-minded people', `reasonable or fair-minded observer', `reasonable and intelligent man', the `parties or the public', a `reasonable person', or (as has sometimes been favoured in England and Canada) the somewhat quaint and circular phrase, a `right-minded' person. Obviously, all that is involved in these formulae is a reminder to the adjudicator that, in deciding whether there is an apprehension of bias, it is necessary to consider the impression which the same facts might reasonably have upon the parties and the public. It is their confidence that must be won and maintained. The public includes groups of people who are sensitive to the possibility of judicial bias. It must be remembered that, in contemporary Australia, the fictitious bystander is not necessarily a man nor necessarily of European ethnicity or other majority traits.

The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious." (footnotes omitted)

60 Although his Honour's remarks were in the context of an allegation of prejudgment, they are in our view apposite to the matter under consideration here, which concerns an assertion that the combined effects of what the learned Deputy President said and wrote leads to the conclusion that justice has not been seen to be done.

61 In cases where the result is reasonably clear, the failure to give explanations as to why certain conclusions were reached which thereby may create the impression that the judge has misunderstood some evidence or given it more or less weight than it deserved, might not necessarily lead to a conclusion that there has been a miscarriage of justice. The totality of the evidence might point clearly in one direction or critical and well reasoned findings of fact contained elsewhere in the judgment might do so.

62 But in other cases where the result is less certain, reasons that do not explain or adequately explain why certain conclusions relating to important findings were reached, might lead to the conclusion that justice has not been seen to be done.

63 In this case the stated reservations expressed by the learned Deputy President in his exchanges with counsel about the value of the video evidence suggested a misapprehension of its potential evidentiary value. This was not a case in which it was being contended that the video film might be misleading as to the range of movements that the worker was capable of over a sustained period. The worker took no issue with what the video film depicted. His challenge to its weight was his assertion that it was not inconsistent with his asserted inability to deal blackjack, on the basis that different movements were involved.

64 In our opinion those statements might lead the fictitious bystander that Kirby J described to conclude that the learned Deputy President had erroneously prejudged the evidentiary value of the video film. That observer might have been fortified in reaching that conclusion by the fact that the learned Deputy President did not undertake a detailed analysis of the video film, or conclude his detailed summary of the medical evidence with an analytical explanation as to why certain medical evidence was accepted and other medical evidence was rejected. That observer might have thought that for the video film to be adequately dealt with what was required was a detailed analysis of it, not just from the perspective that it showed the worker playing golf, but by reference to all of the other things it showed, namely the unrestricted range of shoulder and arm movements and the absence of any signs of pain or discomfort.

65 It appears that the learned Deputy President reached his ultimate conclusion with some hesitation.

66 What is at issue here is not whether the result reached was right or wrong or whether the learned Deputy President did in fact misapprehend the evidence. The issue is whether in light of what the learned Deputy President said and wrote the hypothetical reasonable observer who reflects the parties' and the public's need for justice to be "manifestly and undoubtedly be seen to be done": R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ would consider whether in all the circumstances this has not occurred.

* the workers' evidence that cast some doubt on his credibility

* the lack of objective evidence to support his ongoing complaints

* the fact that his treating physician had gone from supporting to not supporting him

* the conflicting medical opinions as to the significance of the video film

* the statements made by the learned Deputy President about the video film in his exchanges with counsel

the reasons needed to demonstrate an analysis of what the video film revealed. They also needed to provide a detailed explanation as to why the evidence of those medical specialists who relied upon the video film in concluding that it demonstrated an absence of an incapacity for work was rejected. In our respectful opinion, reasons that did not achieve these would cause the hypothetical reasonable observer to conclude that the evidentiary weight of the video film was prejudged and not given the serious consideration that it deserved. That observer might reasonably feel a sense of unfairness and injustice: Papps v Police (supra) at 219, with the result that justice has not been seen to be done.

68 In this case, having regard to all of the matters that we have discussed, , in our respectful opinion, to avoid the appearance of prejudgment and for justice to be seen to be done through the eyes of the hypothetical reasonable observer, the analysis set out above, was what was required. Because that did not occur, the only proper course is for there to be a new trial and we so order.

69 Before concluding there are some important observations that we wish to make.

70 Firstly, in making our observations about the conclusions of the hypothetical reasonable observer we do suggest that an analysis of the type suggested above will be necessary in every case.

71 Secondly, we wish to make it abundantly clear that we do not find that the learned Deputy President did not adequately consider the video film. To adopt the words of Mason, Murphy, Brennan, Deane and Dawson JJ in Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 299 what is in issue here, is not the actuality of prejudgment, it is the appearance of prejudgment.

72 Thirdly, we unreservedly reject the criticisms made by Mr Hackett-Jones of the learned Deputy President's approach to this case. There is no reason to expect that the learned Deputy President did other than hear and determine this case with an open mind and that he discharged his duty as adjudicator of the facts in accordance with his oath or affirmation. See: Vakautu v Kelly (1989) 13 NSWLR 502 at 527 per McHugh JA..

73 Fourthly, in coming to our conclusion in this case we have not overlooked the restraints that apply to us given that the appeal rights are limited to a question of law and the limited construction that has been given to those rights as declared in State of South Australia v Barber (supra). In our view issues of prejudgment and adequacy of reasons constitute questions of law and nothing that was said in Barber should be construed as restricting the Full Bench's capacity to deal with these issues.

74 Fifthly, in view of our discussion about the nature of the evidence adduced before the learned Deputy President, given the outcome of this appeal, we think it imperative to issue the instruction that Stephen J gave in Agbaba v Witter [1977] 51 ALJR 503 at 507 where he said:-

"Since that new trial will be a judge sitting alone I would add a reference to what was said by McArthur J in Falcke v The Herald and Weekly Times Ltd [1925] VicLawRp 8; [1925] VLR 56 at p 80. His Honour there observed that although an appellate court, in ordering a new trial, might be obliged to comment upon facts or evidence `it must be understood that it is for the purposes of this appeal only that these comments have been made'."

75 Finally, it needs to be understood that this appeal has been decided on its own peculiar facts and nothing that we have said in these reasons should be understood as providing any encouragement to those who seek to persuade the Full Bench that contrary findings should have been made at trial or indicating what the outcome of the new trial in this case should be. An appeal on a question of law will rarely present the occasion to submit that some alternative findings of fact should have been made and attempts to disguise such a request through a complaint about what was said by the trial Deputy President during the course of the hearing or a complaint about the adequacy of the reasons for decision will almost inevitably fail.