Trevor Albert Blewitt v Spiros Brendas Trading As Kenross and Kenross Pty Ltd Sca [1988] ACTSC 62 (3 November 1988)

SUPREME COURT OF THE ACT

TREVOR ALBERT BLEWITT v. SPIROS BRENDAS trading as KENROSS and KENROSS PTY.
LTD.
S.C.A. No. 92 of 1987
Appeal

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Appeal under the Workmen's Compensation Ordinance 1951, nature of appeal, obligation to put the nature of the case upon which the cross-examiner proposes to rely, rule in Browne v. Dunn, general fairness.

Workmen's Compensation Ordinance 1951.

Court of Petty Sessions (Civil Jurisdiction) Ordinance 1982.

Selleys Chemical Co. Pty. Ltd. v. Graham ACTSC (unrep) Miles CJ 8.10.86.

O'Callaghan v. Tiger Waste Control Pty. Limited ACTSC (unrep) Gallop J. 11.6.86.

Browne v. Dunn (1984) 6 R 67 (HL).

Reid v. Kerr 9 SASR (1974) 367.

Uranerz (Aust.) Pty. Ltd. v. Hale 30 ALR (1980) 193.

Lend Lease Developments Pty. Ltd v. Zemlicka & Others (1985) 3 NSWLR 207.

HEARING

CANBERRA
3:11:1988

Counsel for Appellant: Mr D.G.T. Nock

Solicitor for Appellant: Colquhoun Murphy

Counsel for Respondents: Mr G.J. Lunney

Solicitor for Respondents: Gillespie-Jones & Co.

ORDER

The appeal be dismissed.

DECISION

This is an appeal against the decision of Magistrate Ward sitting as an arbitrator in respect of the appellant's claim for workers compensation arising out of, or in the course of, his employment with the respondent. The appellant's claim before the Magistrate was for workmen's compensation for total or partial incapacity dating from 10 October 1986 and continuing. He did not claim to have suffered an injury in some distinct accident, his claim was that he injured his lower back in a series of incidents at work between August and October 1986 and was forced to cease work on 10 October 1986.

2. The right of appeal is conferred by s.26 of the Workmen's Compensation Ordinance 1951. It provides, inter alia, that a right of appeal is the same as an appeal from a judgment or order of a kind specified in s.282C(2) of the Court of Petty Sessions (Civil Jurisdiction) Ordinance 1982. Under the latter Ordinance this court is to have regard to the evidence given in the proceedings out of which the appeal arises and has power to draw inferences of fact and in its discretion to receive further evidence (s.282G).

3. The nature of an appeal pursuant to those provisions is something more than an appeal in the strict sense and would be better described as a rehearing on the evidence before the Magistrates Court with power to receive further evidence (Selleys Chemical Co. Pty. Limited v. Graham, (unreported judgment of Miles CJ, ACTSC 8.10.1986, O'Callaghan v. Tiger Waste Control Pty. Limited (unreported judgment of Gallop J, ACTSC 11.6.1986.

4. The appeal before this Court was conducted on the evidence given before the Magistrate. The Magistrate was not satisfied that the appellant had suffered any injury to his lower back arising out of, or in the course of, his employment and that there was not and had not been during the relevant period any total or partial incapacity for work.

5. In his short reasons for judgment delivered on 17 December 1987 he made the following comments about the appellant.
"The appellant himself was an unconvincing

witness. At times he could not or would not give
a straight answer to a simple question, he
prevaricated at times and at other times was
shifty and evasive."

6. The Magistrate had the advantage of seeing the appellant giving evidence in the witness box and also viewed a film of some 50 minutes duration portraying the appellant performing a range of activities at his home on 22 May 1987. I also viewed the film as part of the evidence in the court below.

7. The appellant's case before the Magistrate was that he was born on 9 April 1946, had left school at the age of 14 years and for virtually the whole of his working life had been involved in the building construction industry. From 1975 to 1981 he owned his own business in contract logging. For a few years prior to his alleged incapacity he had been engaged as a plant operator of larger heavy plant. He said that he commenced work with the respondent in late 1985 driving a large articulated vehicle known as a 613 scraper. The vehicle had no suspension; it did have an air cushion seat in the driver's seat but, according to the appellant, it could not be used. The appellant drove the scraper on a continuous basis in the employ of the respondent, but in August 1986 he said that he started to get headaches and neck and back problems. He continued at work, but had to give up on 10 October 1986 because his physical problems were getting worse. He said that he told the head contractor at the site that he was giving up work.

8. He sought medical treatment from his own medical practitioner, Dr M. Brown of Evatt. The doctor put him off work for two weeks. He said he telephoned his employer and notified him of his inability to work. According to the appellant his condition deteriorated till about the middle of 1987 and then improved sufficiently to enable him to do lighter work. Up to the date of hearing he had not resumed work.

9. In cross-examination the appellant conceded that he had not consulted a doctor between August and October 1986. He said that after ceasing work he persisted with his general practitioner and only once saw Dr Cairns, an orthopaedic surgeon.

10. It is unnecessary to deal at length with the appellant's evidence in cross-examination. It was put to him that he had demonstrated full capacity to do any labouring work at all and that he had chopped trees. He denied both matters in evidence. Referring to a tree which had been chopped down, he said that his brother had chopped it down and he had not. He admitted that he had "dragged it around the back". He was shown the film referred to above and readily agreed that it was him depicted in the film. It showed him chopping the tree vigorously for a sustained period and doing other energetic tasks.

11. At the end of his cross-examination it was put to the appellant that his claim for compensation was an entire sham and that there was nothing at all wrong with his back that would prevent him from working in any heavy job, including the job of scraper driving. He denied those matters.

12. He was referred by his solicitors to Dr Anthony Cairns, orthopaedic surgeon, on 7 February 1987. Dr Cairns examined the appellant and made a provisional diagnosis of lumbar intervertebral disc protrusion, possible cervical disc injury with possible systemic disorders all of which conditions required further investigation and treatment. Dr Cairns could not provide a prognosis without further investigation to establish an accurate diagnosis of the appellant's complaints.

13. The activities depicted in the film were put to Dr Cairns in cross-examination and he agreed that, on the assumption that the appellant had done those things, he would have cause to doubt the consistency between the appellant's complaints during the consultation and his ability to engage in the activities portrayed in the film. Dr Cairns agreed that the ability to engage in those activities would indicate that the appellant was capable of light manual work but he would still have reservations about heavy manual work.

14. On 26 May 1987 the appellant consulted Dr John R. Corry, consultant in rehabilitation medicine, on referral from his general practitioner. After examining the appellant Dr Corry concluded that the appellant had a structural problem in the back and said it was possible that this could have been aggravated by the work that the appellant had been doing, but Dr Corry could not find any evidence to suggest a disc lesion and on examination there was very little to find. The appellant had quite a good range of movement and no local tenderness. In his evidence Dr Corry said that at the time he saw the appellant he had already made a decision himself that he was not going to go back to scraper work. The pain seemed to Dr Corry to be under pretty good control when he saw the appellant and whilst it was still an issue it was not a major one. Dr Corry thought that the appellant at that stage could cope with moderate labouring work provided it was not continuous and he would be able to take breaks.

15. On viewing the film, Dr Corry said that the appellant had displayed no evidence of pain or discomfort but maintained that there was nothing in the film which would change his view that the appellant was not fit to go back to driving the scraper.

16. The appellant was examined by Dr Arnold Mann, consultant surgeon, on behalf of the respondents on 21 April 1987. As a result of his examination, Dr Mann concluded that the appellant had developed injury to the lumbar discs and was quite significantly disabled and not able to work at that time. He recommended alternative employment once his back settled down. By the time he gave evidence Dr Mann had seen the film. He said in evidence that there were many forms of labouring work for which the appellant was suited, that the thing that was outstanding about the film was the alacrity with which the appellant moved, the ease with which he moved, flexing his knees, bending, picking things up, whacking into a tree with an axe, all of which seemed to indicate, at least on that day, that the appellant was very fit. The film cast grave doubts on the information that the appellant had given Dr Mann.

17. The appellant was also examined on behalf of the respondents by Dr Colin John Andrews, consultant neurologist, on 23 October 1987. In his physical examination of the appellant Dr Andrews found some tenderness in the midline over L5/S1 but no other abnormality. Likewise, x-rays and CT scan of the lumbar spine showed no abnormality and there was no evidence of nerve root irritation. At that time Dr Andrews could not find much in the way of clinical signs to suggest that the appellant would not be capable of returning to work as a plant operator.

18. The Magistrate considered all that medical evidence and dealt with it in his short reasons for judgment in the following terms.

After viewing the film, Dr Cairns agreed that
the activities depicted in the film were
inconsistent with the picture presented to him by
the applicant when he examined him in February
1987. Dr Corry agreed that the film showed the
applicant was fit for heavy labouring jobs, but in
re-examination stopped short of saying that he was
fit to drive a scraper. It is worth noting that
Dr Corry saw the applicant four days after the
observation. Dr Mann thought the applicant was
deliberately exaggerating his disabilities."

19. It was submitted on behalf of the appellant that there were material portions of his evidence upon which the appellant was not challenged either in cross-examination or by evidence called on behalf of the respondents. The submission was that in regard to those particular matters of evidence, the Magistrate was obliged to accept the appellant's evidence in the absence of such a challenge or rebutting evidence. Counsel relied upon the ruling in Browne v. Dunn (1894) 6 R 67 (HL). In my opinion, this submission fails. The obligation on counsel appearing for the respondents was to put to the appellant in cross-examination the nature of the case upon which it proposed to rely in contradiction of the appellant's evidence. The nature of the case upon which the respondents proposed to rely was squarely put to the appellant in the form of the film which the appellant was shown in cross-examination and direct questions based upon the proposition that the appellant had demonstrated a full capacity to do any labouring work at all, that his claim for compensation was an entire sham and that there was, and never had been, anything at all wrong with his back such that he would be prevented from work in any heavy job, including the job of scraper driver. Those matters having been put, the appellant denied them.

20. The ruling in Browne v. Dunn is directed to fairness as was emphasised by Wells J in Reid v. Kerr (1974) 9 SASR 367 at 374. The Magistrate, having heard all the evidence, was asked on behalf of the respondents simply to disbelieve the appellant's evidence of disability. He was asked to disbelieve the appellant after the appellant had been given an adequate opportunity to deal with the challenge to his evidence. In those circumstances the Magistrate was not obliged to find for the appellant on each of the particular aspects of his evidence upon which he was not cross-examined. There was nothing unfair about the conduct of the respondents' case before the Magistrate. I reject the submission that the rule in Browne v. Dunn was not complied with.

21. I am not satisfied that justice miscarried in any way in the proceedings before the Magistrate. I am obliged to defer to the conclusion of the Magistrate as to the credibility of the appellant. I may only depart from that principle when the findings of the Magistrate, based on his conclusion as to the credibility of the appellant, are clearly wrong on grounds other than credibility, such as inconsistency with established facts or accepted evidence, inherent probability or error of fact or law. See generally Uranerz (Aust.) Pty. Ltd. v. Hale (1980) 30 ALR 193, Lend Lease Development Pty. Ltd v. Zemlicka & Others 1985 3 NSWLR 207 per Kirby P. at 210. No such grounds have been established on the hearing of this appeal.

22. The appeal is dismissed. I shall hear counsel on the question of costs.