Kobas v Electromagnetic Spectrum Pty Ltd and Anor [2007] ACTSC 59 (3 August 2007)

Last Updated: 28 July 2008

CHRIS KOBAS v ELECTROMAGNETIC SPECTRUM PTY LIMITED and ANOR [2007] ACTSC 59 (3 August 2007)

WORKERS COMPENSATION - appeal - function of appellate court on appeal - credibility finding said to follow from reasoning rather than demeanour - finding that incident giving rise to claim did not take place based on credibility finding - necessity to deal with effect of evidence of a witness to the incident - finding that worker not incapacitated from the incident if it did occur - challenge to finding of incapacity not made out.

Workers Compensation Act 1951 (ACT)

Magistrates Court Act 1930 (ACT)

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

CSR v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458

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

Kashani v Granites of Australia Pty Ltd (1990) 100 FLR 380

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 7 of 2006

Judge: Gray J

Supreme Court of the ACT

Date: 3 August 2007

IN THE SUPREME COURT OF THE )

) No. SCA 7 of 2006

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CHRIS KOBAS

Appellant

AND: ELECTROMAGNETIC SPECTRUM PTY LIMITED

ACN: 001 045 763

Respondent

AND: NOMINAL INSURER

Intervenor

ORDER

Judge: Gray J

Date: 3 August 2007

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. Chris Kobas, the appellant, appeals against the dismissal by a magistrate of his application for arbitration in respect of a claim for compensation under the Workers Compensation Act 1951 (ACT) (the Act). The appellant's claim for compensation is in respect of an injury which is alleged to have occurred on 17 May 2002 whilst he was working as a salesman for Electromagnetic Spectrum Pty Limited (the employer). That company was effectively carried on by a Mr George Vok.

2. The employer had a workers compensation insurance policy with Allianz Australia Insurance Limited (Allianz) but that policy covered only employees working in New South Wales (NSW), not the Australian Capital Territory (ACT). Initially, Allianz made some payment of medical expenses but at an early stage in the proceedings for compensation brought by the appellant, declined to further indemnify the employer presumably on the ground that the appellant was not an employee covered by the policy. As a consequence, the Nominal Insurer intervened in the proceedings to contest the appellant's claim. The appellant's claim was also contested by Mr Vok, who was given leave to represent the employer. Mr Vok's fundamental concern was that the employer had paid insurance premiums to Allianz but was being denied coverage. However, he also strongly contested the fact that the appellant sustained any injury in the course of his employment with the employer. The Nominal Insurer, as intervenor, contested the appellant's claim to compensation and, in addition, maintained that the appellant was not an employee covered by the Act.

3. Although Mr Vok, in the course of resisting the appellant's claim, produced documents and invoices as well as giving his evidence in chief, he did not attend the final day of the hearing for the cross-examination that counsel for the appellant had begun of him but had not completed. Subsequently, Mr Vok has not sought to take any further part in this matter.

4. When the matter came before me for this appeal to be heard, with the consent of Mr King, appearing as counsel for the Nominal Insurer, I made an order joining the Nominal Insurer as respondent to this appeal and the matter proceeded on the basis of the Nominal Insurer being the appropriate respondent to the appeal.

5. The magistrate was asked to rule in respect of an issue raised at the outset as to whether or not the appellant was a worker for the purposes of s 7A of the Act. At that time, s 7A was the applicable provision that limited the payment of compensation under the Act to those workers that fell within its ambit as workers of the Territory. The evidence before the magistrate established that the appellant provided some sales and service to clients in Sydney and the Southern Highlands of NSW. Nevertheless, the magistrate was satisfied that the worker usually carried out the work of his employment in the ACT and accordingly was a worker of the Territory. There is no cross-appeal from that finding in the appellant's favour and it is a finding which the Nominal Insurer does not contest. Accordingly, the appeal proceeded on the basis of the Nominal Insurer being the proper respondent to it.

The appeal

6. The appeal challenges the magistrate's finding that she could not be satisfied that the appellant suffered an injury on 17 May 2002. It should be noted that the magistrate makes a further finding that "There may have been some incident on or around that particular date but I am not satisfied that the incident, if it occurred, resulted in any injury".

7. The grounds of appeal set out in the appellant's notice of appeal are:

(a) The Magistrate erred in:

(i) Misapplying the standard of proof and the burden of proof;

(ii) Failing to decide the Application for Arbitration in accordance with her role as an arbitrator;

(iii) Failing to give proper weight to the evidence presented;

(iv) Reaching a decision inconsistent with the weight of the evidence.

8. Mr Lunney, who appeared as counsel for the appellant, in his oral submissions, did not specifically address any of these grounds of appeal but rather directed his submissions to the magistrate's finding that she did not find the appellant to be a credible witness. His particular challenge was to the reasons given by the magistrate as supporting this finding. In that regard, the oral submissions made seem to me to be only really pertinent to grounds (iii) and (iv) of the grounds of appeal that I have set out above. Although the written submissions attempt to address grounds of appeal (i) and (ii) under the headings of "burden of proof" and "arbitration", I am not able to see how those submissions provide any real support for those latter grounds in the way that they are framed. Rather, the written submissions express a general dissatisfaction with the magistrate's approach without demonstrating any specific error as to the conduct of the arbitration or any misapplication of the burden and standard of proof. As far as the written submissions are pertinent to appeal grounds (iii) and (iv), particularly under the headings in those submissions as to "weight" and "consistency of evidence", they were taken up in Mr Lunney's oral submissions which I later set out.

This court's role on appeal

9. The principles governing appellate intervention in appeals to this court under the Magistrates Court Act 1930 (ACT) are not in contest between the parties. The legislation has the same features as the legislation governing appeals that was under consideration in a series of High Court cases which define an appellate court's role in such circumstances. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at 127), Gleeson CJ, Gummow and Kirby JJ refer to:

... the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not.

They also say in that case (at 128):

Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable"  or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses.

10. Those principles are reiterated by Kirby J, with whom Gleeson J agreed, in CSR v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 at 466 [21]. Kirby J also says (supra at 466 [22] citing Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551):

However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be determined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It "will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it".

11. The present case is one which does not permit inferences to be drawn from undisputed or unequivocal facts but rather substantially relies upon the evidence given by the appellant in the hearing before the magistrate.

12. In fact, on this appeal, the appellant's submissions concentrate on canvassing the matters before the magistrate and saying that she should have come to different conclusions. Whilst accepting that I have a duty on appeal to "rehear" this matter, the tests to be fulfilled that might justify a reversal of the decision are still those referred to by Kirby J in Della Maddalena (at [21]) as the primary decision-maker having:

"... failed to use or has palpably misused [the decision-maker's] advantage" or where "incontrovertible facts or uncontested testimony" demonstrates the findings to be erroneous; or where they are "glaringly improbable" and "contrary to compelling inferences".

13. It is in light of the observations of the High Court in these cases that I consider the submissions put on this appeal.

The appellant's evidence of the incident

14. The magistrate describes the evidence before her as to the occurrence of the incident upon which the appellant based his claim:

At about 1:45pm on 17 May 2002 the [appellant] said he went to the School of Music to pick up a coffee machine for removal to Sydney. He borrowed a trolley and as he lifted the machine he said he felt great pain in his lower back towards his right side. Nevertheless, he pulled the trolley to his van which was parked at the kerb. He said that as he was attempting to unload the machine into the van the trolley rolled backwards toward him and pushed him against the door of the van. He claimed he struck the door at the area of his left shoulder blade towards the middle of his back. The applicant said he felt pain but continued to work. Ms Elizabeth Christos, a friend of the applicant, was there and helped him load the machine into the van. He then drove home.

Ms Christos gave evidence that at some time in 2002 (she thought April but could not remember the date) she went with the applicant to the School of Music to look after his son while the applicant collected some equipment. She saw him come out with the equipment on the trolley and he looked to be in pain. He tried to manoeuvre the trolley towards the van but lost control and was pushed against the door. She told him to see a doctor.

Later that afternoon the applicant consulted his general practitioner, Dr Hugh Pratt because he was in pain, particularly in his lower back region. Dr Pratt prescribed medication for pain and suggested the applicant attend for physiotherapy. He drove to Sydney two days later on Sunday 19 May to deliver the machine to the head office of the company. He said he was in pain in the right hand side of his leg and his lower back.

The magistrate's approach to that evidence

15. Having described the incident in the terms set out above, the magistrate sets out a narration of the appellant's evidence of his work history and the effect of the injury that he said he had sustained. The magistrate also refers to an incident on 1 October 2002 of the appellant lifting a coffee machine and consequent back pain which resulted in him seeking further medical attention. The magistrate refers to Mr Vok's evidence that the appellant was not in Canberra but in Sydney at the time that the appellant had said the first incident occurred and that the appellant had ceased being an employee of Mr Vok's company after 1 July 2002. The magistrate then sets out the medical evidence that had been placed before her by both the appellant or respondent but made no specific findings with respect to it. She then says the following:

Having reviewed all the evidence, several issues have arisen which need to be considered because, in my view, they have a direct impact upon the [appellant's] credibility and therefore the veracity of his claim for compensation. Some of these issues are more significant than others but all are, nevertheless, relevant. Before listing these issues I should say that I did not find the [appellant] to be a credible witness, the reasons for which will be apparent from the following listed issues.

16. The magistrate next sets out 16 matters which, in general, I take to be her reasons for her finding that the appellant was not a credible witness.

17. It is this approach that gives rise to the appellant's complaint on this appeal that the magistrate has not properly had regard to the whole of the evidence that was before her.

The findings of the magistrate

18. The magistrate's conclusion is framed in these terms:

Based on all of the aforementioned issues and the serious concerns I have expressed about the credibility of the [appellant] I cannot be satisfied that the [appellant] did suffer an injury on 17 May 2002, as he claims. There may have been some incident on or around that date but I am not satisfied that the incident, if it occurred, resulted in any injury. On the other hand, there appears to be evidence that the [appellant] did experience some event on 1 October 2002 which resulted in him being incapacitated from work. However, as at that date, the [appellant] was self-employed and no longer in the employ of the respondent company. Consequently, the respondent is not liable for any compensation payment to the [appellant] for any injury he may have sustained and I make no award in the [appellant's] favour. (My emphasis.)

19. The conclusion that the magistrate has reached is somewhat unsatisfactory because the magistrate has not expressed serious concerns about the appellant's credibility except for the reasons that she says are related to the issues that she lists. In other words, it is unclear as to what effect the magistrate's opportunity to see and hear the appellant give evidence has had on her assessment. However in saying that, I cannot overlook "the subtle influence of demeanour" on the magistrate's determination (see Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179 per McHugh J). It also follows that the appellant needs to demonstrate that the conclusion reached by the magistrate as to the "serious concerns" that she expresses about the appellant's credibility either are not based on matters other than conclusions that are available after a consideration of the identified issues or that there is demonstrable error in the magistrate's consideration of those issues.

20. It is true that, as shall appear, the magistrate's conclusion seems to intermix a finding as to the appellant's credibility with issues not strictly relevant to that finding, although arguably relevant to the magistrate's ultimate conclusion. As I have earlier noted, that conclusion, namely that the magistrate was not satisfied that there was an injury suffered by the appellant on 17 May 2002, is coupled with a separate finding based upon the incident occurring, but with the magistrate finding that if it did occur, it did not result in any injury to the appellant. Mr King wishes to rely on that latter finding and he put it at the forefront of his oral submissions. However, at the time I expressed some difficulty with the degree of equivocation involved in the circumstance of the magistrate making an express finding that no such incident occurred. That factor requires me to distinguish findings relevant to the occurrence of the incident alleged from those relevant to the question of the incapacity claimed to arise from it.

The appellant's submissions

21. The appellant's submissions on this appeal challenge the magistrate's conclusion as to the occurrence of the incident on the basis that her consideration of the evidence is only directed towards "issues" that affect her assessment of the appellant's credibility, rather than assessing the evidence overall. Whilst it seems to me that this criticism has some validity, it is complicated by the fact that overall it seems the magistrate is not prepared to accept the appellant as a credible witness and that she had the opportunity, which I do not have, of seeing and hearing the evidence given by the appellant. However, she does not appear to rely upon that circumstance in her assessment of the appellant's credibility.

The principal submissions on behalf of the appellant

22. As far as I can deduce from the written submissions and oral argument put on behalf of the appellant, the principal complaint is that the magistrate concentrates her attention solely on an assessment of the appellant's credibility without regard to the whole of the evidence before her.

23. There is a clear contest between the employer, Mr Vok, and the appellant as to whether the incident occurred at all. Mr Vok's evidence is that the appellant was in Sydney at the relevant time and there was not a coffee machine at the School of Music to be picked up as the appellant alleged. The magistrate makes no findings in respect of this conflict.

24. The appellant's complaint relates to what is said to be the magistrate's failure to reject Mr Vok's evidence and to find that at least the appellant was, in fact, in Canberra on the day that he said the incident occurred. This fact is said to be also supported by the appellant's mobile phone records. It is also put that the magistrate should have found by inference from the documentary evidence produced by Mr Vok, that there was a coffee machine at the School of Music which the appellant had a responsibility to pick up at about that time. It is then said that the evidence of the appellant as to the occurrence of the incident is supported by the clinical notes and report of Dr Pratt who saw him on the day of the alleged incident. It is this matter that the appellant particularly relies upon as confirmation of the fact of the incident having occurred as he deposed.

25. In addition, the appellant points to the evidence of Ms Christos as to the occurrence of an incident of the nature described by the appellant. The appellant then complains that apart from reciting the evidence given by Ms Christos, the magistrate makes no further reference to that evidence or any effect it might have on her conclusion. This latter factor is significant but it is by no means conclusive as it cannot be said that the magistrate completely overlooked her evidence.

The material concerning Dr Pratt

26. Dr Pratt was the appellant's general practitioner. He was consulted by the appellant on Friday, 17 May 2002, the day that he says the incident which caused his back injury took place. Dr Pratt was not called to give evidence. By consent, his clinical notes, workers compensation certificates and a report dated 13 May 2004 were admitted in evidence before the magistrate. In the report of 13 May 2004, Dr Pratt reported:

Mr Kobas consulted me on 17/5/02 complaining of low back pain with (r) sided sciatica which he stated was sustained after lifting and moving heavy equipment into a van on 17/5/02 on a background of having lifted heavy weights at work for some 2 years.

27. As the magistrate notes, the contemporaneous note made when the appellant saw Dr Pratt on 17 May 2002 does not support the occurrence of an injury on 17 May 2002. The notation made on that occasion is "lifting heavy weights for 2 years of work, now complains of LBP [low back pain] with pain down (r) [right] leg".

28. It was put at the forefront of Mr Lunney's oral submission that this notation supported the fact of an injury being sustained on 17 May 2002. However, the note makes no reference to a specific injury that is said to have occurred at any particular stage and more pertinently indicates an on-going past contribution by reason of the nature of the work undertaken by the appellant.

29. The appellant's Application for Arbitration is expressed as encompassing an injury on 17 May 2002 "and during the previous 2 years". However, it is clear that his case was conducted in reliance upon the injury having occurred on 17 May 2002. It was not conducted on an alternative basis of an ongoing contribution of the appellant's past employment to the occurrence of the injury and such a basis is expressly disclaimed by the appellant in his written submissions in reply. In Kashani v Granites of Australia Pty Ltd (1990) 100 FLR 380, Miles CJ observed that where, on consideration of the whole of the case a precipitating injury was relied upon, it was too late on appeal to seek to pursue a claim on other than the precise injury that was described by a plaintiff. I consider that to be the case here.

30. The magistrate also noted that Dr Pratt was again consulted on 15 July 2002 and his note at that time was "still complaining of LBP [lower back pain]" and "muscle pain in the forearms on lifting weights". There was again no reference to any precipitating injury. On that occasion Dr Pratt gave the appellant a medical certificate for unfitness for work from 16 July 2002 to 23 July 2002.

31. The magistrate comments adversely on the fact that between the date of the alleged incident on Friday, 17 May 2002 to 15 July 2002 the appellant took no time off work although the appellant's evidence was that he reduced the number of hours that he was working to less than the 40 or so hours that he had been working until the injury bothered him enough in July to revisit Dr Pratt. The magistrate's comment was that the appellant gave no credible explanation as to why he kept working. She also considers it to be inconsistent behaviour for someone who claimed to have sustained a significant injury. I cannot say, as I was urged to say, that this comment was completely unjustified although it seems to me that it was open for the magistrate to be of the view that the appellant was doing the best he could in light of having suffered an injury. However, that was not the view that she took and I consider that the view that she did take was open to her.

32. What is significant on this aspect, as the magistrate notes, is that the appellant ceased his employment with Mr Vok's company on 1 July 2002. Up until that time he had not had any time off work. After that time, he became self-employed using Mr Vok's company as his supplier and, in effect, undertaking the same sort of sales and delivery activities as he had previously done whilst employed. Having obtained the medical certificate for this week in July, it appears that the appellant continued to work and took no time off nor made any claim for compensation. It may also be noted that the medical certificate certifying that the appellant was not fit for work from 16 July 2002 to 23 July 2002 specifically does not describe or assert a compensable injury. As I have said, Dr Pratt's notes do not describe any specific precipitating cause on that occasion. The notes on the certificate do not assist the appellant in establishing that the incapacity for work on this occasion can be related to the incident that the appellant says took place on 17 May 2002.

33. What is very significant is that it is not until 3 October 2002 that the appellant attends Dr Pratt's offices again and at that time is seen by a locum, Dr Stevens. Dr Stevens' notes record a "sore back" attributable to:

...lifting coffee boxes and coffee machines at work on 2/7 ago 1.10.02. Pain lower back to right knee. Paraesthesia, hypo-asthesia. O/E [on examination] tender L5 and ROM [reduced range of movements] and lateral tension. Straight leg raising 45º on left, 30º on right.

34. The medical certificate that was completed declaring the appellant's unfitness for work from 3 October 2002 to 10 October 2002 described the injury as "lower back pain when lifting on 1.10.02" and described the diagnosis as "soft tissue pain lower back possible sciatica". The treatment prescribed "Physiotherapy. X-ray L/S [lumbar sacral] spine. Voltaren. Avoid lifting/bending arm". As to the diagnosis suggesting a pre-existing condition or aggravation of a pre-existing condition, the form notes, "17.5.02 with heavy lifting 2 years with lower back radiating into (R) leg". That notation appears to derive from Dr Pratt's earlier note. It gives no support to the view that there was an earlier singular injury. A further certificate was given by Dr Stevens on 11 October 2002 confirming the date of the injury as 1 October 2002, the initial assessment 3 October 2002 and declaring an unfitness for work until 18 October 2002.

35. The appellant completed a workers compensation claim form dated 9 October 2002. That claim form specified a date of injury of 17 June 2002 and describes the incident which the appellant claims took place on 17 May 2002. In any event, the medical certificate that was given and which presumably precipitated this claim is that of Dr Stevens and, as I have said, that certificate was in respect of an injury said to have occurred on 1 October 2002. Dr Stevens gave a further certificate on 11 October 2002 and that is followed by a further certificate by Dr Pratt on 22 October 2002 and subsequent certificates also from him, all of which declare the appellant to be unfit for work in effect from 3 October 2002 until 18 November 2002 and then from 30 January 2003 until 30 April 2003. These certificates are generally for low back and neck pain and, whilst expressed to be referring to an injury stated as occurring on 17 May 2002, because of their general continuity, seem more directly referable to the incident that the appellant described to Dr Stevens as having been sustained on 1 October 2002. The magistrate regards this as "compelling evidence that the incident of 1 October 2002 was of far greater significance than that what he claimed to have happened to him on 17 May". That conclusion might well have been better expressed as a causation finding, namely, that any injury that caused the appellant's incapacity for work in the period covered by those certificates was caused by an injury sustained on 1 October 2002 as a consequence of lifting coffee boxes and coffee machines at work (as noted by Dr Stevens). I take her finding to be as I have expressed it.

36. The magistrate then goes on to discuss why she has reservations in accepting the assertion in Dr Pratt's report of 13 May 2004, to which I have referred earlier, that the appellant had told him on 17 May 2002 that he had sustained an injury after lifting and moving heavy equipment into a van on 17 May 2002. I consider that the magistrate was correct in not regarding this matter as assisting the appellant's case but I would have thought that the significance of Dr Pratt not having made such a note permits the drawing of the positive inference that it was unlikely that Dr Pratt was told of that incident at that time. In that regard, it is significant that the first reference to an accident on 17 May 2002, in either Dr Pratt's notes or in the medical certificates that he signed, is the notation on the certificate of 22 October 2002, "accident 17.5.02 work related". That certificate was issued after the appellant had made his claim for workers compensation and with a background of having seen Dr Pratt's locum on two occasions related to the injury that he says he sustained on 1 October 2002.

37. Although the magistrate goes on to criticise aspects of Dr Pratt's report for not recording each and every attendance of the appellant at his surgery in this period, and his use of inappropriate medical certificates, I cannot see how these criticisms of Dr Pratt are at all relevant in assessing the material that he provides. I agree with the appellant's criticisms of the magistrate in relation to these matters but, as I have said, the most significant feature that can be drawn from this material is the fact that Dr Pratt's notes do not support the appellant's claim that there was an incident which caused him to attend on Dr Pratt on 17 May 2002. Rather, Dr Pratt's notes are evidence that the appellant's attendance on him was to complain of back pain which the doctor took to be consequential upon a background of lifting heavy weights for two years of work.

38. In the consultation of 17 May 2002, Dr Pratt advised the appellant to seek physiotherapy. It seems that the appellant did not do so at this stage and it was only after the injury that he claims was sustained on 1 October 2002 that he attended for such treatment. That is some confirmation, as the magistrate notes, that the injury of 1 October 2002 had far worse consequences for the appellant as far as pain was concerned and motivated him to attend for physiotherapy.

39. It follows that although there may be some substance to the criticisms of the magistrate's reasoning on these aspects, I am not able to say that her treatment of the material provided by Dr Pratt does not entitle the magistrate to take an adverse view of the appellant's credibility. However, further, and more importantly, Dr Pratt's material does not support a demonstrable incapacity for employment consequent upon the appellant's attendance upon Dr Pratt on 17 May 2002 up to the attendance on Dr Pratt's locum on 3 October 2002.

What is said to be misleading evidence given by the appellant

40. A question arose during the appellant's cross-examination as to the extent of an earlier injury that the appellant had sustained in 1993 when he injured his lower back in a fall from a chair. The magistrate formed the view that the appellant had been misleading in his evidence about that injury as to the time that he had been out of work and as to whether he had given a complete history about it to certain of the doctors who he had seen in respect of these proceedings. Whilst there is material there that might support the magistrate's conclusion on this aspect, I agree that allowance does not seem to have been made for some ambiguity in the appellant's responses in cross-examination. The magistrate forms the view from this material that the appellant was not being honest in his evidence. I must say that I am left in some uncertainty as to whether this is an observation based on demeanour or is a conclusion derived from the impression that the magistrate gained that the appellant was attempting to minimise the effects of that earlier incident. Whichever it is, does not appear to particularly rely upon the appellant's responses in cross-examination and I am not prepared to set aside the magistrate's impression because of what is now said to be the ambiguity in those responses.

Inconsistencies in the appellant's claim

41. The magistrate notes two inconsistencies in the claim form made by the appellant and dated 9 October 2002. One is the 17 June 2002 being given as the date of the injury now said to have occurred on 17 May 2002. The other inconsistency is the appellant's failure to disclose the casual employment that he had had working for Sam Catanzariti Men's Wear on an on-and-off basis since the year 2000. I would have thought that both of these matters have little impact on an assessment of the appellant's credibility. However, I am not prepared to say that the magistrate made too much of them or that they overly influenced her judgement of the appellant's credibility.

The evidence of Ms Christos

42. There seems to me to be considerable force in the appellant's submission that the magistrate did not bring to account evidence given by Ms Christos as to the occurrence of an incident which caused injury to the appellant on 17 May 2002. The evidence of Ms Christos is, to an extent, confirmatory of the incident having taken place as described in the appellant's evidence. Mr King, in the written submissions that he filed after the last day of the hearing of this matter, submitted that no analysis or explanation of Ms Christos' evidence was necessary as it did not advance the appellant's case and, if anything, cast doubt upon it. It is said that her evidence conflicted with that of the appellant. That conflict was said to be with the appellant's evidence that he felt great pain in his back when he lifted the coffee machine to put it on the trolley inside the premises at the School of Music. The appellant then went on to describe pulling the trolley outside of the premises towards his van, losing control of the trolley and the upper part of his body striking the door of the van. It is said that the thrust of Ms Christos' evidence is that the appellant hurt his back outside the premises. That is so and, as such, it is confirmatory of the appellant's evidence of what took place outside the premises. However, her evidence about what she saw before this incident is some confirmation of an incident occurring inside the building. She was asked, and answered, in examination-in-chief:

And what happened when you got there? What did you see? --- Actually, I just went where their van was parked and his son and Mr Kobas got out. I stayed with the son while Mr Kobas went inside in the Canberra Music to pick up their equipment. I saw him coming out with a trolley, a big trolley, flat trolley, with equipment on top of it. And he looked to me like he was in pain and when he came to the van he told me that actually he had got hurt while moving the equipment...

At that point, an objection was taken and after discussion, the magistrate permitted Ms Christos to continue. She was then asked:

Could you tell us what Mr Kobas said to you as he approached the van, please? --- The exact words I don't remember, but he told me that these things were really heavy and actually it's not what he said but it was what I saw. He was really pain [sic] and he looked like he was in pain ... (indistinct) ...

43. In view of the magistrate's finding that she could not be satisfied that the appellant did suffer an injury on 17 May 2002, it seems to me that it was necessary to deal with this evidence given by Ms Christos. It seems to me to be confirmatory not only of an incident occurring as deposed to by the appellant, but also of the appellant's evidence that his low back pain could be attributed to lifting a coffee machine inside the School of Music Building. It seems to me that the magistrate was in error in not dealing with this evidence and the effect that it might have on her reasoning.

The other findings of the magistrate

44. However, that conclusion does not dispose of the matter. The magistrate made two further findings. Firstly, that she was not satisfied that the incident, if it occurred, resulted in any injury. Mr King, in his oral submissions, said that the magistrate must have meant "incapacitating injury" and I accept that was what the magistrate intended to convey. The second finding was that there was an event on 1 October 2002 that incapacitated the appellant from work. From that finding, I draw the implication that any later incapacity, if shown, is referable to that event. At the time of the event on 1 October 2002, the appellant was self-employed. Accordingly, if there was any incapacity referable only to an incident on 1 October 2002, no award in the appellant's favour could be made.

45. Putting to one side the magistrate's finding as to the appellant's credibility insofar as it affects the consideration of whether there was an incident on 17 May 2002, the magistrate made findings relevant to the appellant's credibility which can be strictly confined to whether there was an incapacity based on Dr Pratt's examination of the appellant on 17 May 2002. Based on that reasoning and those findings, it seems to me that the appellant has not, and cannot, establish that any incident that occurred on 17 May 2002 resulted in an incapacity for work.

46. I have already discussed the evidence of Dr Pratt. His evidence does not assist the appellant on the question of incapacity. The treatment he recommended was conservative, relative rest, no heavy lifting and analgesic therapy. This is so also in respect of his seeing the appellant on 16 July 2002 and, although he gave the appellant a certificate for the period 16 July 2002 to 23 July 2002, there is evidence that the appellant did not take that time off work. Dr Pratt's subsequent certificates and notes do not refer to his locum, Dr Steven's note of an incident on 1 October 2002 and, it seems to me, that any incapacity after 1 October 2002 can fairly be said to be referable to that particular incident.

47. The magistrate refers to the fact that none of the specialist doctors, apart from Dr Griffith, support the appellant's position on the significance of the incident on 17 May 2002. Dr Griffith, it appears, was not apprised of an incident on 1 October 2002. Dr Griffith, Dr Smith and Dr Billet, the specialist doctors referred to by the magistrate, gave their reports in 2004. Their reports are reliant upon the history given by the appellant. The other specialist doctor, Dr Oates, who was also called to give evidence, saw the appellant on 10 December 2002. I would have thought that his account and opinion, taken as it was at around the relevant time that the appellant was claiming incapacity for work from the injury that he said he had sustained, was the most pertinent. Dr Oates' report stated (AB 483):

HISTORY

He says on 17.5.02, he was moving a large heavy espresso coffee machine on a trolley from the Australian National University School of Music. He got it out to his van and then it rolled down a slight incline pinning him against the van and he hit his neck and left upper back on the van. He had to get his female partner to help him get the coffee machine into the van. He felt a bit of upper back discomfort, but was able to keep working. He saw his LMO, Dr Pratt, Garran, a few weeks later complaining of weakness in his left arm with a nerve type pain radiating from the left scapula down to the left arm and hand. I presume this was 16.7.02 as there is a sickness certificate on file from this date, but with no diagnosis on it. He decided not to stay off work as he had resigned from Electromagnetic Spectrum and was self-employed but still representing them. He would use a trolley to lift the bags of coffee and the coffee machines.

On 1.10.02 he developed onset of low back pain when he bent over to pick up a box of coffee from the floor and he developed right leg pain. He saw Dr Pratt (sic) on 3.10.02 and was advised to go off work, but he told the LMO he could do lighter office work. He was sent to physiotherapy. He was treated for his upper and lower back with benefit. He was also given home exercises and continues treatment twice a week. He has been attending for about two months now. He continued to be marked unfit when reviewed on a weekly basis by the LMO, but from what I can ascertain he was working on office and supervisory work. At last review on 19.11.02 he was apparently issued with two medical certificates, one certifying him fit for modified duties from 17.5.02 until 30.1.03 from the point of view of low back pain and right sciatica, and a second certificate from 17.5.02 to 30.1.03 for his lower neck pain with weakness of the left arm. The doctor said if he did not continue to improve he may need a scan of his lower back to check the right leg pain. His next review with the doctor is in January 2003 unless there are problems sooner. He has had no subsequent injury to the neck and back. He does office work and gets help when doing deliveries of coffee from people working at the restaurants, cafes or clubs that he is visiting. (My emphasis.)

48. That report, in the clearest terms, distinguishes the incidents of 17 May 2002 and 1 October 2002 and indicates that the appellant was not incapacitated for work as the certificate of 16 July 2002 might have indicated. In cross-examination, Dr Oates was asked to assume an injury on 17 May 2002 causing severe low back pain. Not only is that assumption contrary to what Dr Oates records, it fails to put what is clearly Dr Oates' view, supported by Drs Smith and Billet, that any injury that had occurred on 17 May 2002 had resolved before 1 October 2002.

The magistrate's assessment of the appellant's claim as to his incapacity for work

49. Of significance on this aspect are the appellant's claims for incapacity in respect of the periods 16 July to 23 July 2002, 3 October to 18 November 2002 and 30 January to 30 April 2003. The appellant claimed to have not worked in the period 16 July to 23 July 2002 and to have performed "modified" work from 1 October 2002 to 31 January 2003. Later in his evidence, the appellant claims that from 3 October 2002 to 18 November 2002 he did not do any work during that period. No attempt was made to show that either the fact that he did not work or that the modified work that he undertook adversely effected his earning capacity. There were a large number of invoices placed before the magistrate. There were also other papers representing the dealings that the appellant's former employer had with the appellant over the period July 2002 to June 2003. Those papers were not a complete record but they showed a significant number of orders that had been placed for stock. The magistrate calculated that sum at approximately $34,000.00 over the 12 month period. That sum is in error, as the respondent conceded, and should have been approximately $25,000.00. However, that error does not appear to be material to the reasoning used by the magistrate. What the magistrate points to is the fact that these invoices are evidence that the appellant was trading and placing orders on several days where he was certified unfit for work in a situation where he has given sworn evidence before her that he did not work. In those circumstances, I consider that the magistrate is entitled to regard that factor as damaging to the appellant's credibility on the issue as to his incapacity for work. More particularly, it is evidence contrary to the appellant's assertions that he was incapacitated for work at the times in respect of which he had medical certificates certifying him unfit for work. And, as I have earlier observed, the medical evidence also gives the lie to the appellant's assertions of incapacity in the period up to 1 October 2002.

50. The question of the appellant's capacity for work is also touched upon when the magistrate deals with the physiotherapist's view that, in a treatment plan dated 6 November 2003, the appellant had returned to full duties but was restricted to not lifting weights greater than seven kilograms. I accept that there is no reference made as to whether that would restrict the full performance of the appellant's work, but the magistrate does seem to consider that it would raise a serious doubt about the veracity of a claim for partial incapacity if that were to be the only restriction. The evidence of the physiotherapist does not seem to contradict that conclusion.

51. To further the appellant's claim for incapacity for work, the magistrate was given schedules detailing what was alleged to be the appellant's lost income and the income that the appellant had earned over the various periods. In discussing these documents and the appellant's tax returns, the magistrate observes "the [appellant's] financial statements and tax returns are evidence that he has been working industriously through these years since May 2002 which is contrary to his claim and therefore impugns his veracity". I would accept that as a fairly speculative comment having regard to the material upon which the magistrate refers. However, over that period of time, the gross income shown for the various years up to 2005 and the apparent value of the sales made, does not necessarily demonstrate the appellant was incapacitated for work. I would be inclined to not place this evidence any higher than that. But as the respondent submits, it is for the appellant to demonstrate that he was incapacitated for work and, in my view, not only does his evidence fall short of doing so, the appellant derives no support from the medical evidence for his proposition that he was incapacitated.

Conclusion

52. Overall, I am satisfied that the magistrate erred in not bringing to account evidence that may have affected her finding as to whether the incident occurred that the appellant claimed caused his injury. However, I am not persuaded that she erred in finding, as I think that she must be taken to have found, that no incapacitating injury occurred whilst the appellant was employed by Electromagnetic Spectrum Pty Ltd.

53. Accordingly, I dismiss the appeal.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 3 August 2007

Counsel for the appellant: Mr G Lunney

Solicitor for the appellant: Bradley Allen Lawyers

Counsel for the respondent: Mr L King

Solicitor for the respondent: Mallesons Stephen Jaques

Date of hearing: 10 August 2006

Date of judgment: 3 August 2007