Farrokh Vaziri Kashani v Granites of Australia Pty Limited Sca [1990] ACTSC 27 (31 July 1990)

SUPREME COURT OF THE ACT

FARROKH VAZIRI KASHANI v. GRANITES OF AUSTRALIA PTY LIMITED
S.C.A. No. 69 of 1989
Workers' Compensation

COURT

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

CATCHWORDS

Workers' Compensation - appeal from Magistrate's decision - function of appellate court on appeal by way of rehearing - Workmen's Compensation Ordinance 1951 - Magistrates Court (Civil Jurisdiction) Ordinance 1982.

Uranerz (Aust) Pty. Ltd. v. Hale (1979-80) 30 ALR 193 at p 199

Selleys Chemical Company Pty. Limited v. Dee Irene Graham (unreported, 8 October 1986)

Peter Joseph O'Callaghan v. Tiger Waste Control Pty. Ltd. (unreported, 11 June 1987)

Warren v. Coombes and Another [1979] HCA 9; (1979) 142 CLR 531

HEARING

CANBERRA
31:7:1990

Counsel for the appellant: Mr. J. Purnell

Solicitors for the appellant: Sly and Weigall

Counsel for the respondent: Mr. Knoch

Solicitors for the respondent: Gary Robb and Associates

ORDER

The Magistrate's determination be confirmed and the appeal be dismissed with costs.

DECISION

This is an appeal by a worker against a determination in favour of an employer by a Magistrate sitting as an arbitrator pursuant to the Workmen's Compensation Ordinance 1951.

2. The principles applicable to an appeal of this nature are set out in Uranerz (Aust) Pty. Ltd. v. Hale (1979-80) 30 ALR 193 at p 199 per Gibbs C.J. They were discussed by me in Selleys Chemical Company Pty. Limited. v. Dee Irene Graham (unreported, 8 October 1986) and Gallop J. in Peter Joseph O'Callaghan v. Tiger Waste Control Pty. Ltd. (unreported, 11 June 1987). It is not necessary to repeat them, except insofar as in Graham's case there appears to be an error in the published reasons. In that case I expressed the view, following the High Court decision in Warren v. Coombes and Another [1979] HCA 9; (1979) 142 CLR 531, that an appellate court will defer to a decision of the lower court based on credibility of witnesses except when that decision can be shown to be wrong on grounds other than credibility, such as inconsistency with established facts or accepted evidence, inherent improbability or error of fact or law. In the published reasons in Graham's case the word "only" erroneously appeared in place of the word "except".

3. The case for the appellant worker presented before the Magistrate was as follows. The injury upon which the appellant relied was described in paragraph 4 of the application for arbitration dated 12 February 1988 as follows:
"The applicant injured his right shoulder and neck region

in or about the month of October 1987 when he was
required to lift extremely heavy stones."

4. The application was amended at the beginning of the hearing to allege total or partial incapacity, but not amended in relation to the particulars of injury.

5. The appellant was born in Iran in May 1950 and became a senior technical officer in the Air Force. After spending some time during the early 1980s in Australia and in the United States, he returned to Australia in 1986. The Magistrate noted that "his technical qualifications were not accepted and he has therefore to seek work in an area in which he was not properly trained."

6. Towards the end of 1986 the appellant commenced work with the respondent at the new Parliament House site. The nature of his employment was described to him as that of a stonemason's assistant, but it included acting as a nipper and being available generally to assist the stonemasons as required.

7. On the unspecified day in October 1987 on which the appellant's alleged injuries occurred, the gang was working in an area to which there was no access for machinery that was normally used by the stonemasons to move the substantial pieces of granite. Evidence was given to the Magistrate by the appellant that he was requested by his foreman, Mr. Ozzie Harsh, to assist him to lift stones.
(The term "stones" was used to mean granite slabs.) The appellant described the incident:

I felt a lot of pressure on me. It was really heavy .....
When I lifted and felt it is really heavy and then I did
not say anything because Ozzie was completely red .....
and then Ozzie started to cough non-stop for fifteen minutes."

8. No written report of the incident was made at the time and the appellant lost no time from work. He continued his normal duties which included mostly nipper-type work or general labouring with occasional lifting of stones until December 1987 when his services were terminated upon the completion of the project.

9. However, the appellant gave evidence that a few days after the October incident his shoulder began to burn "strong". He consulted his general practitioner, Dr David Lee, who prescribed medication and physiotherapy. The appellant was assured that the shoulder would improve and he made arrangements to take up work with a landscaping firm in January 1988.

10. When that time arrived, the appellant felt unable to commence work with the landscaper as his shoulder was too painful. In February 1988 he sought advice from Dr John Hannaford, who diagnosed that he had a rotator cuff injury.

11. The Magistrate found that there was no dispute that the appellant sustained an injury to the rotator cuff. According to the medical evidence, that condition can be brought about by a direct trauma, or it can be brought about by a repetition-type situation.

12. No evidence was given other than that of the appellant to support his version of the incident in October. Three witnesses who were called by the appellant - three men of Portuguese background - gave evidence of a very general nature covering several months which was not in any specific way directed to any incident such as that described by the appellant. There was no evidence from any of those men of any incident like that described by the appellant or which could be supportive of the appellant's evidence that there was a particular reason why he and Mr. Ozzie Harsh were required to lift the heavy pieces of granite on that day. Mr. Harsh's evidence was that such an incident, as related by the appellant, did not occur. Furthermore, he gave two reasons to support an assertion that it was unlikely that such an incident would have occurred. First, to have asked the appellant for help in lifting heavy granite would have constituted a grave risk to himself and, secondly, he would not have done so because of the difficult situation prevailing at that time with the unions on the site.

13. The appellant did not report the incident until two months later, in December 1987. He was aware of the usual procedures for reporting having reported an injury for which he claimed compensation earlier in the year. In such circumstances it would be expected that the incident would have been reported by either the appellant or Mr. Harsh. However, it was not reported, except to the extent that the appellant in October 1987 mentioned in passing to Mr. Costa, one of the Portuguese stonemasons, that he had a shoulder problem.

14. The Magistrate had to be satisfied that the appellant had established that in or about the month of October 1987 whilst lifting heavy stones, he injured his right shoulder and neck. The Magistrate did not accept the appellant's account of the incident and neither did he accept that Mr. Harsh would have permitted a situation to develop as outlined by the appellant.

15. There is no doubt that in December 1987 the appellant was suffering from rotator cuff injury as diagnosed by Dr Hannaford. Whether he sustained that injury at work or in some other circumstance, the Magistrate was not able to say. In particular the Magistrate was not satisfied that the injury to the appellant in this appeal occurred in the way that the appellant alleged. Therefore no award was made to the appellant.

16. Counsel for the appellant submitted that there were a number of matters in the Magistrate's comprehensive reasons for his decision which indicated that he had fallen into error. It was submitted that the Magistrate had erroneously concluded that there was no evidence to support the worker's version of the incident in October. In coming to that conclusion he submitted that the Magistrate failed to take into account a number of relevant factors namely whether Mr. Harsh was telling the truth when he said that he had not lifted heavy stones with the appellant and, secondly, that there had been corroborative evidence of the appellant's evidence. The broad answer to the submission is, I think, that having seen and heard the evidence of Mr. Harsh and of the three Portuguese workmen, the Magistrate recognized that there was a conflict in that evidence compared with the version of the appellant.

17. In his reasons for decision the Magistrate said that he was satisfied that the appellant's version was not the correct one; that his injury had not occurred in October on the job as he alleged. In coming to this conclusion the Magistrate was in a superior position to observe the witnesses and assess their evidence in the light of all the circumstances.

18. Further, the Magistrate was entitled to form an opinion regarding the failure to report the incident to the foreman as the appellant had done after suffering an accident on the job at an earlier date. On this subject the appellant said, in giving his history to Dr Cairns (Exhibit K) that he did not report it at work "because I thought that I'd lose my job". The Magistrate was entitled to question this reasoning as evidence was given that the contract of the respondent on the Parliament House site was finishing in December 1987 and that the appellant would be leaving the job in any event.

19. The Magistrate accepted the evidence of Mr. Harsh against the evidence of the appellant and in the end that was the matter to be decided. The exercise in which the Magistrate was engaged was the making of an assessment of the evidence of two witnesses who were in conflict about a critical matter in the case. The authorities plainly show that the finding of a trial judge (or in this case a magistrate) on primary facts will not be interfered with unless those findings are inconsistent with the other facts which are clearly established. The question of the reliability of the two witnesses was a matter for the Magistrate. The primary facts which the Magistrate found depended to a significant degree on the credit of the witnesses whom he observed. It is a case in which one should not interfere with the Magistrate's findings in that respect: Warren v. Coombes and Another [1979] HCA 9; (1979) 142 CLR 531.

20. It was submitted on behalf of the appellant that the Magistrate failed to take into consideration the evidence given by the three Portuguese workers that there were occasions on which Mr. Harsh had assisted them to lift stones. That evidence flatly contradicted the evidence of Mr. Harsh himself, who claimed that he never lifted stones. The evidence of the co-workers, it is true, went to a relevant issue in the case since if it was proved that Mr. Harsh assisted them to lift stones then it was more likely that Mr. Harsh would assist the plaintiff likewise. However, whilst the Magistrate did not deal with the precise point in his reasons, he did mention some of the evidence given by the co-workers. It is not as though he overlooked them altogether. Clearly, he was of the view that the evidence of Mr. Harsh was so compelling that if it conflicted with that of the co-workers, then the evidence of the latter was to be rejected. Again this is a situation where the trial court is in a position superior to that of the appeal court and its conclusions are to be respected.

21. Another submission was that the Magistrate failed to give proper weight to the undisputed fact that the usual mechanical method of lifting and transporting stones was unavailable at the time of the appellant's alleged injury and that there was increased demand for manual lifting. Accepting that to be the case, I fail to see why it follows that the appellant was more likely to injure himself in the way upon which his case was based, that is to say by frank injury in an incident in which he was being assisted by Mr. Harsh.

22. The final matter to be decided is whether the Magistrate, despite his rejection of the appellant's account of injury, should have found in his favour on the basis of what was called a "nature and conditions" approach. That approach involved treating the appellant's claim as one which relied, in the alternative to an allegation of a single injury on a particular occasion in October 1987, upon an allegation of repetitive strain over a period of time between October and December 1987 during which there were repeated but unspecified acts of lifting stones in the course of the appellant's employment with the respondent. The short answer to the submission is that the particulars in the application relied upon a single incident in October 1987, there was no amendment to those particulars and no application to amend was made at the hearing. It may well be that a case has been conducted between parties in such a way as to make it clear that the issues are other than those circumscribed by the formal documents in the nature of pleadings. In such a case justice demands that the tribunal decide the case according to the way in which the parties have conducted it. This is particularly so in a tribunal which is not a court of strict pleading. Nevertheless, for the very purpose of an appeal such as this the parties should assist the tribunal to the extent of making it clear on the record how their actual dispute differs from that defined by the documents. Where that is not done an appellate tribunal may not be easily persuaded that the case should have been approached in some different way. I have read the transcript of the proceedings before the Magistrate, which took place over a period of three days. It is true that the appellant gave evidence that he was engaged in lifting activities between October and December 1987 and that some of the medical evidence supported the proposition that lifting in that period was likely to aggravate or contribute to a rotator cuff condition, but on a reading of the whole of the case, it was clearly conducted as one which relied on a precipitating injury in October which occurred in the precise way in which the appellant swore it occurred. It is too late now, in my view, for the appellant to seek to pursue his claim on an alternative basis which excludes a reliance upon the precise injury he described.

23. I am not convinced that the Magistrate fell into any error. I would not have come to any different conclusion myself, bearing in mind the Magistrate's findings as to the credit of the appellant and the other witnesses and the weight given to the overall probabilities and surrounding circumstances. The Magistrate's determination must be confirmed and the appeal dismissed with costs.