Waldon v Westlake & Hall t/as Wh Bricklaying [1993] NSWCC 2; (1993) 9 NSWCCR 34 (4 February 1993)

[1993] NSWCC 2; (1993) 9 NSWCCR 34 (2316-91)

WALDON v. WESTLAKE & HALL t/as WH BRICKLAYING

Compensation Court of New South Wales: Burke J

4 February 1993

PROCEEDINGS TO OBTAIN COMPENSATION - APPEALS - APPEALS FROM COMMISSIONERS - NATURE OF APPEAL - ADVERSE FINDING ON WORKER'S CREDIT - WORKER ONLY ORAL WITNESS - DOMINANT POSITION OF PRIMARY DECISION-MAKER - COMPENSATION COURT ACT 1984, SECTION 36

R.A. Sorby, for the claimant

N.T. Robson, for the opponent

Cur adv vult

BURKE J: By Notice of Motion the Claimant seeks review of a decision of Hopkins SC given on 12 February 1991 when the Senior Commissioner entered an award in favour of the respondent employer. There was no issue between the parties as to injury. The contested issue was resulting incapacity after the cessation of voluntary payments on 1 May 1987.

[His Honour then considered matters not calling for report - Ed]

Broadly, the Senior Commissioner gave two major grounds for rejecting the worker's application; the lack of credit of the worker and a preference for the views of the doctors adduced by the respondent. The reason for the former is illuminated by a number of factors adverted to by the Senior Commissioner, the reasons for the latter are unexpressed.

BACKGROUND FACTS

The claimant was born in 1939 in the U.K. and emigrated to Australia in 1972. He worked as a bricklayer in both countries variously as an employee or as an independent contractor. He came into the employ of the opponent in September 1986 as a bricklayer. He deposed to the nature and extent of his duties, and it was not suggested that it was otherwise. For the first two weeks the work was essentially at ground level and, thereafter was performed from scaffolding some five or six feet above ground on most occasions. Contrary to usual practice access ladders to the scaffolding were not available. It was therefore necessary to climb the scaffolding to do the work and to jump down for breaks or to change to another scaffold. The worker actually tended to use a barrow as a means of ingress to the platform of the scaffold. The worker suggested that the scaffolding provided for doing only short stretches so this changing around was reasonably frequent. He estimated not less than eight times per day.

A couple of weeks before seeing Dr Wiseman the worker became aware of bilateral knee pain. This was first noticed when jumping down from the scaffolding. He worked on until an occasion when he was ascending scaffolding about 18 feet high, where a ladder was provided. When he was two-thirds of the way up his knees seemed to lock and were painful. He was unable to proceed, solicited help and was assisted up to the platform. He did some bricklaying until the morning tea break. He was unable to descend the scaffolding because of the knee problem and, eventually, a brick hoist was used to lower him to the ground.

Thereafter he consulted his general practitioner, Dr Wiseman, and was referred for specialist consultation with Dr Rowden. The latter suggested the use of a bicycle. The worker procured a bicycle, rode it and found that it exacerbated his knee symptoms. With a flair for hyperbole he told Dr Wearne that the bike made his knees "a hundred times worse". He was then referred to Dr Drummond. Noting the effects of the bicycle riding he countermanded that prescription and substituted physiotherapy. The worker tried the physiotherapy and found that it, too, exacerbated his knee symptoms, so that form of treatment was discontinued by Dr Drummond. Dr Drummond then essayed treatment by injection of hydrocortisone. This effected no relief and was also discontinued.

In the interim the worker had claimed compensation and was in receipt of voluntary payments, initially through the employer and more latterly through the insurer.

In April 1987 the worker arranged to return for a period to the U.K. He gave a terse account of presenting to the insurer, with an appropriate certificate to cover the period of projected absence, to advise it of this fact and arrange for future payments and being informed that all payments would be terminated virtually immediately.

The intended short stay in the U.K. was protracted by his mother-in-law's death in a hit-run accident while he and his wife were there and in all he was away about six months.

When he returned in the September or October of 1987 he again saw Dr Wiseman and Dr Drummond.

The worker deposed that while he was receiving weekly payments such were initially collected from the employer's premises and, on such occasions, he had discussed with either or both of the two partners the possibility of getting some modified form of work. No such work was available. On return from overseas he again sought to approach the employer only to find that it had ceased operation. In that circumstance he sought work elsewhere and obtained a position with Yorkshire Bricklaying Co as a supervisor. This was on a multi-level construction site. There were four levels at the time he worked there and the job was intended to go to 17 levels. The worker suggested that as supervisor he was fairly constantly commuting between the various levels and that this activity tended to exacerbate the pain and disability in his knees. Eventually, he said, "I wasn't doing any good so I packed it in". He felt he was just too slow in getting about the site and suggested that he would probably have been sacked had he not left.

About a week later he obtained another job with Jennard Constructions (or Jonnard Constructions) on the site of some Villa Homes at Strathfield. This was a single level site with no scaffolding or climbing and he spent the two or three weeks to the completion of the job doing bricklaying work which was restricted to dwarf walls and fences.

At some time in 1987, and after the work for Jennard Constructions, the worker had a few weeks work with a friend, Rene Waters doing a bit of supervision and pricing.

His next, and final employment, was with the Arncliffe RSL Club doing one or two days per week of general handyman type work for a period of about six weeks.

As to that general outline there appeared little dispute. The employer suggested that it was probably incomplete but appears to have accepted that, as far as it went, it was reasonably accurate.

CREDIT ISSUES

In BERRO v. NEWS LTD, Compensation Court, No. 2877/90, 9 April 1991, unreported, I expressed firmly the view that findings of a commissioner relating to credit were reviewable. It was not a case of whether they could be reviewed but whether they should be reviewed. I did so in that matter and reversed a finding of a commissioner that the particular worker was entirely unworthy of credit. An appeal was launched to the Court of Appeal. Unhappily I note that it was subsequently dismissed by consent. This I gather was not for any lack of enthusiasm to argue the issue so raised but due to settlement of concurrent common law proceedings between the parties. I had rather hoped that case would be a vehicle for a consideration by the Court of Appeal of this fairly vexing issue.

For reasons fully set out in Berro I concluded:

"In principle this is a review, not an appeal in the strict sense. Such a review is tantamount to a hearing de novo and calls for a complete reconsideration of the evidence.

On such a review, indeed as on an appeal, the findings of fact below may be considered again and, if appropriate, reversed. It is not a question of whether it can be done but, rather, whether it should be done.

On a review it is not a pre-condition to reversing findings of fact that the findings below be shown to be glaringly improbable or incontrovertibly otherwise.

In reviewing a finding of fact that the evidence of a litigant is entirely unworthy of credence this Court will have regard to the circumstances of the trial in which the finding was made.

Such a finding is more readily open to review where it is founded on an evaluation of the corpus of the evidence and does not arise from any confrontation of competing evidence as to the same matter where the evaluation of the credibility of the competing witnesses may be a material element in the resolution of the conflict."

A considerable portion of those propositions would appear to have the concurrence of the Court of Appeal in WATSON v. HANIMEX COLOUR SERVICES PTY LTD (1992) 8 NSWCCR 190; BOSTON CLOTHING CO PTY LTD v. MARGARONIS (1992) 8 NSWCCR 290 and AGFA-GAVAERT LTD v. LEE, Court of Appeal, No. 40808/90, 1 May 1992, unreported.

It is notable that all the cases in which appellate courts have enunciated and applied the doctrine of the dominant position of a judge of first instance in evaluating issues of credit have all been cases of overt conflict between competing witnesses and never the more covert situation where a litigant is regarded as untruthful on the face of his evidence alone or on a weighing of the totality of the evidence which was essentially documentary. Overt conflict was the situation in such cases as ABALOS v. AUSTRALIAN POSTAL COMMISSION [1990] HCA 47; (1990) 65 ALJR 11; JONES v. HYDE [1989] HCA 20; (1989) 63 ALJR 349; PALMER v. CLARKE (1989) 19 NSWLR 158; GALEA v. GALEA (1990) 19 NSWLR 263; CHAMBERS v. JOBLING (1986) 7 NSWLR 1.

An adverse finding on the credit of a witness or party cannot be elevated by the supposed dominant position of a trial Judge to such a position as to render it immune from appellate interference. As Kirby P observed in PALMER v. CLARKE (at 163):

"It is not to say that a party is denied appellate review by a mere incantation of, or reference to, the credibility or demeanour of witnesses by a trial Judge. So much is denied by Asprey JA in PETTIT v. DUNKLEY [1971] 1 NSWLR 376 at 382. It is also demonstrated by cases in other courts: see for example SUN ALLIANCE INSURANCE LTD v. MASSOUD [1989] VR 8."

This view he re-affirmed in BOSTON CLOTHING COMPANY PTY LTD v. MARGARONIS (at 300):

"Care must be observed against elevating the 'dominant position' theory, and the opinion about the 'subtle influences of demeanour' at trial, so that they neuter the facility of appeal or review as Parliament has provided in this Court. In virtually every case a worker gives evidence in his or her case in the Compensation Court, whether before a commissioner or a judge. Therefore, in virtually every case, the primary decision-maker will have an opportunity of observing the worker, and perhaps (as here) no other witness. If it could then be said that, because an impression could include an unexpressed impression of truthfulness or the subtle impact of demeanour upon the decision-maker's conclusion so as to put him or her in the 'dominant position' of effectively deciding conclusively the worker's claim, this would nullify the provision of 'review' as section 36 of the Compensation Court Act provided and 'appeal' to this Court as section 32 of that Act allows. Because Parliament afforded the facility of 'review' (and 'appeal') and because it is a beneficial facility for the correction of mistakes and the great injustice which they can cause, such a reading of the section, in the context of the operation of the Compensation Court, would nullify the provision made by Parliament. This is plainly not what Parliament intended. Accordingly, a narrower approach to the so-called 'dominant' position of the primary decision-maker must be adopted and one compatible with the facility of review (and appeal) provided by law."

In CHAMBERS v. JOBLING where the majority of the Court of Appeal reversed findings of fact made by the trial Judge on the basis of his assessment of credibility, Mahoney JA, dissenting, (at 26-29) presented a compelling and salutary defence of the established doctrine of "dominant position". Nonetheless, within that doctrine, his Honour did not regard a finding so made as immutable:

"It does not, as was suggested in argument, prevent an appellate judge differing from the trial Judge's conclusions which depend in however small a part upon his acceptance of the credibility of a particular witness. A finding of fact may be reversed notwithstanding that it was based on the trial Judge's impression of a witness: appellate courts have so said and so decided."

His Honour proceeded to quote a long passage from the judgment of Lord Wright in POWELL v. STREATHAM MANOR NURSING HOME [1935] AC 243 at 266-268. Perhaps, relevant to what I think critical in this matter, a passage regarding the function of the trial Judge may be cited:

"He will not necessarily distrust a witness simply because he finds him inaccurate in some details: he can give such inaccuracy its proper place, particularly if he sees that the witness is tired, or antagonized, or confused, or perhaps impatient, and especially if the matter of the inaccuracy is of minor or collateral importance."

With regard to fact-finding relating to credibility based upon the observations of the witness by the trial Judge the third point extracted above from the judgment in Berro may have some problems. I there took the view that it was not necessary, to warrant reversal on review, for it to be shown that such finding was glaringly improbable or incontrovertibly otherwise. In GALEA v. GALEA there is a long passage from the judgment of Kirby A-CJ (at 265-267) which clearly suggests it is otherwise in an appeal. That there are differences between an appeal and this review is clear from WATSON v. HANIMEX COLOUR SERVICES PTY LTD and the cases that followed it. Just how different, particularly in regard to this matter, is rather speculative.

From MANSINI v. DIRECTOR GENERAL OF EDUCATION, Compensation Court, No. 303/89, 30 January 1990, unreported, onwards I have taken the view that the review contemplated by section 36 of the Act is tantamount to a hearing de novo even though conducted on the transcript of the evidence taken before the Commissioner. In consequence I regard myself as free to come to a different conclusion of fact, including the fact of the credibility of the worker. True, in Berro and other cases I acknowledge that, in regard to such findings of credibility, there are inhibitions on what I should do as distinct from what I can do.

My basic approach to a review is to read the transcript of the evidence adduced before the Commissioner and form tentative conclusions as I go. Having completed that exercise I turn to the Commissioner's judgment. If I then find a stark contrast between the views I have tentatively formed and those expressed by the Commissioner I endeavour to analyse the reasons predicated in the judgment and the material upon which they are founded. I do a similar analysis of the factors which lead me to a preliminary contrary conclusion. If I then find that there is as much, or nearly as much, going for one view as the other I tend to uphold the decision of the Commissioner notwithstanding my own inclinations to find otherwise. But when there appears to me to be a substantial weight of evidence contrary to the view of the Commissioner I reverse the decision below.

Where the primary finding upon which the Commissioner has based his judgment is an assessment of credibility and the review is conducted only on the transcript I tend to distinguish two situations. Where there is conflicting evidence from multiple witnesses and the Commissioner has chosen to believe one rather than another I will intervene only where it appears to me demonstrable that the decision is clearly wrong and quite contrary to the evidence. That would be a rare case. Where, as in most cases, the finding of credibility relates to the worker who is the only relevant oral evidence, I am less loathe to intervene. In that case I am an afficionado of the Lord Atkins approach who proclaimed an ounce of evidence as worth pounds of impression. If the facts favour the worker and there is no material contradiction of the basic premisses of his case I am disinclined to accord an impression by a Commissioner, based not so much on what the man says as how he says it, such weight as to override the general trend of evidence. Besides, some commissioners seem to display a reasonably jaundiced view of humanity at large. I have little faith in my own capacity to perform this implicitly complete character analysis of a witness as he transits the witness-box let alone a commissioner's. Indeed, intra-murally, I have implored commissioners to forgo, as far as possible, the use of their statutorily acquired perceptiveness in detecting liars, real or assumed.

I subscribe to the gently implied suggestion of Kirby A-CJ in GALEA (at 266):

"Nevertheless legislation providing for appeals permits and requires this Court to reconsider the fact-finding of a trial Judge in a case such as the present. The Court must therefore perform that function. In many cases today, conscious of the mistakes that can be made about credibility based upon the impression of witnesses in the artificial circumstances of a courtroom, judges at first instance disclaim the resolution of factual disputes by reference to witness demeanour; see, e.g., CHAMBERS v. JOBLING (1986) 7 NSWLR 1 at 9 and RAMA FURNITURE PTY LTD v. QBE INSURANCE LTD, Court of Appeal, 20 June 1986, unreported."

SEEING AND HEARING THE WITNESS

The underlying assumption upon which the dominant position doctrine is founded is that the trial Judge is always advantaged by this facility. I tend to think in a number of cases, it could well be otherwise. For practical reasons it is fairly clear that there is questionable advantage when evidence is adduced through an interpreter. In the original judgment in Margaronis I cited the familiar passage from the judgment of Brereton J in FILIOS v. MORLAND (1963) 63 SR 331 to that general effect.

However, in any case, the "subtle influences" are not all necessarily helpful. Without going into any self psychoanalysis or deep and meaningful philosophical evaluation of human nature we are all affected by a wide variety of factors probably at a subliminal level. A tone of voice, a mannerism of speech, an accent, a peculiar deportment, a perceived truculent attitude, an unusual physical characteristic such as rapid blinking and a multiplicity of similar factors can grate on a particular individual. Such can tend to produce unconscious bias. I have an innate reluctance to feel that a pretty girl would lie on oath. True, I have seen some attractive women lie like the proverbial pig in mud. Such, I might add, was deduced not from their charming attitude and demeanour but rather from a compelling body of contradictory evidence on fact.

I am not so sure that abstracting from other sensory input and just gleaning the facts from a transcript may not have more compensations than disadvantages. I feel that the dominant position doctrine founded as it is on ephemeral, transient and even unconsciously perceived events is as capable of leading to error as rectitude. We all make such judgments almost daily. How often do you meet a fellow and form an impression that you like or dislike him to find, on better acquaintance, it seems the other way?

I guess we all present with a host of personal idiosyncrasies acquired along the way but they seem to offer an unreliable way of judging a man's veracity.

THE WORKER'S CREDIT IN THIS MATTER

The Senior Commissioner embarked upon a consideration of the worker's credit or lack thereof with the observation:

"I accept the submission from the respondent's counsel the question of credit has a high priority in determining this matter."

There are a number of matters mentioned in the judgment any or all of which he may have weighed in resolving that issue. Such include:

* "During cross-examination the applicant was very evasive, and vague, and difficult to get direct responses."

* The applicant's evidence was inherently contradictory on four issues:

- work in son's business

- the driving of vehicles

- number of overseas trips

- wife's work

* The applicant had demonstrated an ability to earn in excess of comparable employees.

* The applicant had himself terminated his employment with Yorkshire Bricklaying.

* Dr Collins refers to other work related injuries and the Commissioner is only aware of one such involving an ankle.

* Symptoms had been aggravated by work subsequent to that with the respondent.

* An arranging of work with Jennard before going overseas.

* Lack of medical treatment after returning from overseas.

* An acceptance by the Commissioner of the medical opinions of Drs Bloch, Edwards and Wearne.

As concisely as possible (and I fear that will not be all that brief) I will attempt to comment on these several matters. Most, the first matter clearly excepted, are fairly independent of demeanour and involve inferences to be drawn from facts deposed to in evidence.

ATTITUDE AND DEMEANOUR

If the worker was evasive, vague and unresponsive I would have thought such a tendency would be discernible on the transcript. I've read a few transcripts in my time and such is usually clearly detectable. At the time I am writing this judgment I am contemporaneously writing another in a matter of UNAL v. GOODMAN FIELDER INDUSTRIES LTD, Compensation Court, No. 379/92, 4 February 1993, unreported. It is also a review of a decision of the Senior Commissioner. In that matter he made similar observations concerning the credit of the worker in that case. On a reading of the transcript I had no difficulty in confirming, in my view, that it was so. I thought that the transcript demonstrated the correctness of the Senior Commissioner's assessment. The worker was, as he suggested, evasive and prevaricating. If the transcript can show the correctness of such an assessment in one case I would anticipate it could equally do so in another. Particularly if the perceived effect is to render unacceptable otherwise uncontroverted evidence.

Yet, reading the transcript in this matter, I had quite a contrary impression. Certainly it was quite apparent to me that the worker at times exhibited a degree of frustration, at other times, exasperation, and on more than one occasion, clear annoyance, irritation or antagonism. Some responses were tinged fairly markedly with sarcasm. But nowhere did I detect any response which showed a tendency to seek to mislead. Clearly, on occasion, the worker thought the questions irrelevant and responded tersely, even curtly but, when appreciating that the questioner regarded the matters as pertinent, he showed what I thought to be an openness and frankness in volunteering information on the subject being discussed. Rather than being vague I thought the evidence of the worker quite precise. Whenever he gave estimates of time he emphasised that they were estimates and, when often enough, such were put back to him in a more definitive form he repeated that such were only estimates. On the matters being dealt with no one could reasonably expect more precision.

I guess that there is an analogy between modern word-processing programmes and cross-examiners. In the one it is a case of what-you-see-is-what-you-get and in the other it is what-you-give-is-what-you-get-back. If the cross-examiner gets a bit prickly in his questions the witness is likely to get a bit prickly in his answers. Much of the transcript of the cross-examination of the worker, to me, reflects such an interplay.

Even so, it may be said, the Senior Commissioner may have been impressed by the subtle influences of attitude and demeanour. He saw and heard the witness. Which is the more important, what the man says or the way in which he says it? If what a man says is inherently reasonable and acceptable I find difficulty in believing that the manner in which he says it renders it any less so.

THE FOUR SUGGESTED SELF-CONTRADICTIONS

THE SON'S BUSINESS

The worker's son was also a bricklayer. He had his own business. There was quite a deal of innuendo concerning the worker's involvement with those activities - and even a little evidence. The son leaves his utility with mixers and other equipment on board at his sister's place where the worker was residing. The worker was prompt to concede that he would on occasion drive the utility with or without the equipment. He specifically denied any use of the equipment. It was clear from the cross-examination that the worker had been the subject of what is frequently termed "discreet observations". He had clearly been observed to drive the utility. He equally clearly had not been observed to use the equipment. Nor indeed to do anything else inconsistent with his purported knee disability judging from the cross-examination.

The nett result of this area of the cross-examination was to elicit that on a couple of occasions the worker had inspected a potential job - a couple of barbeques it seems - and had advised his son of a price to quote for the job. The worker obviously wasn't underpricing since the son got neither job. The suggested contradiction was apparently with the worker's general statement that he hadn't worked since the Arncliffe RSL Club job and the last such "quotation" was just a few months before giving evidence in September 1990. Such doesn't appeal to me as the stuff of which credit issues are made. There is no real inconsistency. I doubt that a man such as the worker would regard assisting his son in this fashion as "work" in any real sense.

It was suggested to the worker that he could have done the barbeques himself. The worker had already said that his knee condition precluded him from a variety of activities including wheeling barrows of bricks. As Mr Neilson pressed forward with the cross-examination the worker became quite tart. Mr Neilson suggested that he could carry a couple of bricks at a time and the worker readily agreed but added wryly that he could also go broke with the time it would take to move 500 bricks or so over an awkward approach. Since the knee condition mostly affected the worker in reaching down Mr Neilson suggested he would be untroubled taking bricks from a stack. The worker somewhat acerbically observed that stacks get lower. A quite entrancing interchange. I would have scored the points to the worker.

THE DRIVING OF VEHICLES

The worker's general evidence was that he still drove when necessary but it was uncomfortable to do so. The end result of detailed cross-examination was that he drove to the local shop most mornings to get the paper (he needed it early to look for jobs); he drove his wife to work on occasion (perhaps fortnightly) though she mostly used public transport; he had driven to look at a unit or two that he and his wife contemplated renting; he had driven to have the windscreen wipers fixed; he had driven to look for work. He didn't own a vehicle but drove either the son's utility or the daughter's car - preferably the latter as it's an automatic. The worker explained the drive to get the morning paper as preferable to the walk up hill which was even worse on his knees - and the drive was rather quicker.

I guess one man's necessity is another man's frivolity but I see no inherent contradiction between the substance of the worker's evidence in chief and that elicited in cross-examination. Certainly I would not regard such a value judgment, as whether such driving was necessary, as suggesting that the man was unworthy of credence when on oath.

NUMBER OF OVERSEAS TRIPS

That a worker's inclination to make trips overseas is relevant in a claim of this nature is obvious. But relevant to what issue. Clearly, in my view, it would be relevant to quantification of an award. If a worker is likely to spend considerable times overseas on holiday then, overall, his likely earnings are reduced because of his unavailability to work. Its relevance to credit though is another matter.

The Commissioner's appreciation of the evidence seems to be that the worker had deposed that he had only made one trip overseas since injury, it eventuated that he had made two, therefore his original evidence was erroneous, therefore he was not a witness whose evidence could be relied upon on anything. The problem with that is the presence of the "only" in the first premiss of this extended syllogism. Nowhere do I read the worker as ever saying he had made only one trip overseas since the injury. Certainly in evidence in chief he referred to one such trip as the occasion for the termination of voluntary payments by the insurer and also as the occasion on which his wife's mother died. But he did not exclude other such trips. It became apparent that since coming to this country in 1972 he had frequently returned to the U.K, and elsewhere. During the cross-examination on this aspect he rather acidly remarked to Mr Neilson that he, Neilson, had the worker's passport in his hands and could readily ascertain dates of departure and return. I fail to appreciate any issue as to credit arising in the course of this aspect of the case.

In any event it hardly seems that the worker was attempting to conceal his visits overseas. He happily recounted them to doctors, including those retained by the employer (see report Dr Edwards 26 September 1989 and report Dr Wearne 24 October 1989 where there is recorded an account of the two trips overseas since injury).

THE WIFE'S WORK

Mr Neilson seemed palpably upset that the worker should be aware that his wife was working part-time and yet claim her as a dependent in his initiating process and assert so at the beginning of evidence in chief. Even assuming that the worker had an intimate knowledge of section 37(4), though that is unlikely, the juxtaposition of those two elements discloses no problem to me. There is no rule of law that a wife working part-time cannot be mainly dependent for support upon her husband. It is a question of degree. It may be so: it may not be so.

Nowhere did the worker say that his wife was not working. There was no contradiction in that sense. The most that could be said adverse to the worker was that he said she was dependent and did not then volunteer that she also did some part-time work. I would tend to the view that the worker's evidence connoted no more than that his wife spent a reasonable proportion of his money and that she depended upon it. In my view, it is fairly specious to magnify that into an issue of fact that discloses the worker to be unworthy of belief.

I do not believe that any of the supposed contradictions were in fact such and I do not believe that considered rationally and reasonably in the context they could be considered so.

DEMONSTRATED ABILITY TO EARN MORE THAN COMPARABLES

Perhaps the Senior Commissioner did not regard this as a matter going to credit. If he did then it appears to me that the suggested ability is a conclusion not shown on the evidence. The worker's evidence was that he earned with the employer around $600 per week nett, after tax. He deposed to earning with Yorkshire Bricklaying around $750 per week gross, before tax. Now I have some personal acquaintance with the proclivities of Messrs Dawkins and Keating to arbitrarily confiscate large proportions of one's gross income and, allegedly, devote it to the purposes of the peace, order and good government of the country. When due allowance is made for such an impost it seems to me that the disposable income generated in the two positions would not be notably different. In any event it doesn't seem to me that one could properly draw any inference adverse to the worker's credibility even if it were otherwise.

RESIGNING FROM YORKSHIRE BRICKLAYING

It is difficult to see how this could raise an issue as to the worker's credit. What the worker said had no aura of inherent improbability. He merely said he wasn't doing any good in the job, he thought he would likely be sacked, so he packed it in. Given the first premiss the balance seems rational. The worker, in cross-examination, gave a fairly detailed account of the situations he dealt with and the types of difficulties that he had on this multi-level site. If one accepts that he had the knee problems to which he deposed then such appear completely reasonable. What adverse inference as to credit is available from such a sequence? None that reveals itself to me.

Even had the man left the job for no stated reason. Perhaps he just didn't wish to work. It is still difficult to apprehend how such would reflect adversely on his credibility. It may be relevant to quantification of an entitlement but I fail to see that it generates a credit issue.

OTHER WORK INJURIES

The Senior Commissioner was in error in believing that, the knee problem apart, the only other work injury of which he was aware was the antecedent ankle injury referred to briefly in the evidence. He himself had directed questions to the worker concerning a prior back problem for which the worker had undergone laminectomy, twice I gather. Indeed there was a reasonably protracted cross-examination concerning this problem. It eventuated that it had occurred decades ago in England and that the worker had been off work for two years, ultimately resumed bricklaying and carried on thereafter unimpeded.

In any event the reference by Dr Collins to such other injuries is highly ambivalent. The phrase occurs in the section of his report headed: Diagnosis - where he states:

"Diagnosis:

Damage to retro patellar cartilage arising out of repetitive jumping from scaffolding and other work related injuries.

Obesity."

The history section of his report records the repetitive jumping down from scaffolding and the ultimate incident when the worker's knees seized (he uses the word "cease") on the ladder. He mentions no other source of injury. I would think that the doctor, in adverting to other work injuries, is fairly clearly referring to the general stress to the knees involved in bricklaying rather than any specific event with this or some other employer.

The form of Dr Collins report provides an exceedingly tenuous basis for a suggestion that this worker was seeking to conceal other work injuries and so derogate from his credibility. So tenuous as to be non-existent.

SUBSEQUENT AGGRAVATION OF SYMPTOMS

Again, perhaps the Senior Commissioner did not regard this matter as relevant to credit. It is difficult to see how it could be. The worker freely conceded that working in his trade, after the injury relied upon, tended to make his knees feel worse. If anything it could only be conceived as an admission against interest. Such would not appear to go to credit. It is inherently consistent with the proclaimed problem and, if any inference was reasonably available, it was such as to tend to confirm the general complaints of the worker.

ARRANGING WORK WITH JENNARD

The passage from the Senior Commissioner's reasons dealing with this matter is also ambivalent but it seems that this was a matter which he regarded as impugning the credibility of the worker from the context in which he refers to it. The relevant passage is set out hereunder:

"The medical evidence is conditional upon what he tells the doctors. This is evident in Dr Drummond's report of 30 March 1987. The applicant at this date was not working and was receiving compensation from the respondent. The doctor writes: 'The applicant has arranged an alternative form of employment as a Supervisor'. This was prior to him going overseas for the first time."

It would appear superficially that the reference is to the job with Yorkshire Bricklaying which the worker commenced after his return from the trip to the U.K. That job was the one in which the worker was employed as a supervisor. There was a six month gap in time between the consultation with Dr Drummond referred to and the commencement of this employment. I gather that this is seen by the Senior Commissioner as reflecting adversely on the worker's credibility. The implicit assumption is that the reference was to the job with Yorkshire Bricklaying. That, of course, may or may nor be so. Even if it were so the relevance to the worker's credit is difficult to see. It was not a matter that was explored in a lengthy cross-examination nor is it adverted to elsewhere in the evidence. In MARGARONIS v. BOSTON CLOTHING COMPANY PTY LTD, Compensation Court, No. 4805/89, 12 September 1990, unreported, I indicated that I regarded it as improper to take material recorded as history by a doctor and seek to use that adversely to the credit of a worker without any opportunity being afforded the worker to offer an explanation or give some clarification. That was a view tentatively accepted by the Court of Appeal when that matter came before it (vide per Kirby P).

In this case I therefore feel that no proper inference adverse to the worker's credit could be drawn in the way the Senior Commissioner appears to have done.

LACK OF MEDICAL TREATMENT

The Senior Commissioner clearly infers that a want of continuing treatment suggests that the worker does not experience the symptoms and disabilities of which he complained and therefore, in so complaining, the worker is lying.

That is an inference available in the circumstances predicated. Whether it should be so inferred can be influenced by other matters. The obvious primary matter would be that some effective form of treatment is reasonably available and the worker chooses not to have it. In that regard it is noted above that the worker accepted the advice of Dr Rowden to procure a bicycle and use it with consequent exacerbation of symptoms. Dr Drummond countermanded that advice and substituted physiotherapy which the worker duly underwent, again with exacerbation so it too was abandoned. He then submitted to the suggested injections of hydrocortisone which were administered without effecting any improvement.

What other treatment has been suggested to the worker? Apparently none. What treatment appears available on the evidence? Dr Drummond in his report of 9 March 1988 suggests:

"No specific treatment is indicated for this pathology. It is apparent that he should avoid bricklaying work which involves work with knees flexed and climbing steps or scaffolding."

In his report of 13 September 1989 Dr Drummond re-affirms this view:

"The continuing disability is unlikely to change in the future. No active treatment is indicated."

Drs Bloch, Edwards and Wearne suggest no form of treatment. Nor do Drs Collins and Wiseman - avoiding bricklaying apart.

So what inference adverse to the worker's credit is reasonably available from the failure to have active treatment? In my view none.

ACCEPTANCE OF EMPLOYER'S MEDICAL OPINIONS

This presents the opportunity for the same type of inference as was discussed under the immediately preceding heading. If the accepted medical opinion is that the worker is problem free and the worker protests that he has problems there is an inference available that he is lying about the claimed symptoms and disabilities.

However, such could not be a reason for deciding the substantive claim adversely to the worker. The issue of whether he has or has not the alleged problems is determined independently of any issue of credit and that determination then used to assess his credibility. The so-called credit issue becomes otiose and unnecessary of decision. The worker has lost his claim irrespective of any determination of the credit issue. That issue not only becomes irrelevant to the ultimate decision but there is every reason to ignore it. There is no reason to add insult to injury (as seen by the worker). Credit is a material issue only where its resolution is relevant to the ultimate outcome. I am minded of the old aphorism whose source I now forget:

"He who steals my purse steals trash.

He who steals my good name steals that which enricheth him not but leaves me poor indeed."

THE GENERAL ISSUE OF CREDIT

Just as a worker may have several injuries, none of which alone would incapacitate him but, in combination, could reasonably be seen as rendering him less competitive in his accessible labour market, so too, a judicial officer may have misgivings about the credibility of a worker for a multiplicity of reasons, no individual one of which would reasonably appear persuasive, but, in combination, convey an impression of unreliability. In my view, in this matter, if the adverse finding as to the worker's credit is to be sustained it must be on a basis such as this.

Contrary to the position in UNAL v. GOODMAN FIELDER INDUSTRIES PTY LTD this was not a case in which the worker gave evidence contra any, even peripherally, relevant fact upon which the balance of evidence showed him to be in error. Virtually no fact to which the worker deposed has been the subject of contradiction. The most that can ever be suggested is that he did not volunteer particular information at particular times. That is hardly a fault. Doing so is a practice upon which lawyers tend to frown. Often enough the form of a question does not seek a general excursus on a subject. Add to that the fact that this witness, on a number of occasions, was enjoined to confine himself to the particular question and not to add unsolicited material. It appears to contravene basic fairness that a man's credit should be impugned upon such a basis.

In in-house seminars directed to the formation of judicial attitudes in commissioners I have expatiated at length on this problem of credit issues. I have propounded two general points to which I firmly adhere. Firstly, to call a man a liar on his oath is a serious matter and not to be contemplated unless necessary to the resolution of a matter and then never in the absence of very persuasive material. Secondly, a finding directed to credit is not the fact-finders easy panacea to all factual problems. It is not a matter to which one has recourse when nothing else appears to justify a particular conclusion. The passage from Lord Wright cited by Mahoney JA in CHAMBERS v. JOBLING at 27-28 reinforces that view with its insistence on the wide background experience that trial Judges bring to the task of resolving factual disputes. The commissioners, on occasion, appear to demonstrate a want of that experience and legal ambiance. That is hardly surprising when their background is, for the greater part, non-legal.

The traditional formulation of the "dominant position" doctrine includes within it an acceptance that the trial Judge may not be capable of explaining, in any real sense, the bases for his impression that a witness lacks credibility. Such an impression, it is said, may emanate from matters so amorphous as to preclude rational adumbration of a reasoning process. That, I must confess, is where I find difficulty with the doctrine. If I can tell a man he loses then I should be able to tell him why. If the reason be that he is adjudged a liar who cannot be relied upon then I should be able to give him an account of why he is found to be a liar. And that account should be reasonably convincing to an appellate or reviewing tribunal, and, at least, give the man, who may well not accept it, a sense that it wasn't just an arbitrary conclusion arrived at by no apparent rational process.

There is a noticeable developing dichotomy and inherent contradiction with this intrinsic ability of trial Judges to intuitively determine matters of credit in the approach to the necessity for judicial officers to give reasons for their decisions. A few decades ago a judge could just state the result and assign no reasons. See FOURNARIS v. BRITISH MOTOR CORPORATION [1964] NSWR 555; [1963] 37 WCR (NSW) 95. All prior appeals from the former Commission had been by Stated Case. It was the first to come before the Full Court by Notice of Appeal. The Court lamented the absence of any reasons by the trial Judge but proceeded to confirm the decision without thought that such constituted error of law. Gradually the necessity to give reasons has firmed and is approaching, if, perhaps, not yet quite at, the position that the reasons assigned must logically support the matters found. WATER BOARD v. CINDRIC, Court of Appeal, No. 40495/89, 17 December 1992, unreported, seems to contemplate that perhaps the obligation of a commissioner to give reasons could be less onerous than that upon a judge.

If the need for reasons does come to mean reasons that support the decision, as I think it surely must, then what of matters which are resolved solely by reference to the credit of the only oral witness in a matter. Will the Judge be exculpated from the need to justify his ultimate conclusion by the supposition that he couldn't express coherent reasons so why should he try? He would always have had the advantage of seeing and hearing the witness so the "subtle influences" are always available to justify a conclusion as to credit. In such an eventuality there is no need to furnish any reasons other than a bland statement "I don't believe the worker".

In my view, to accept such a situation is to accept decision by whim. If the function of the judge includes giving the parties, and an appellate court, a rational explanation of his conclusions then such as is suggested above would be insufficient to satisfy any aggrieved litigant that he had received justice in any abstract sense and should, I would think, be insufficient to satisfy an appellate court that justice had been done and that the decision was legally unassailable.

Therefore, it seems to me, there must be something more available before the decision-maker relies upon mere personal impression of a witness on his attitude and demeanour to justify an adverse finding on credit. There must be some controversial area of fact in the trial which requires resolution by recourse to the question of credibility. I can readily accept the operation of the doctrine where the tribunal is dealing with an overt conflict of evidence concerning the same events or transactions. As I said before I accept that there are cases, though not so frequent, where resolution of the factual conflict can only really be reached by determining who is giving the probably correct account and that this involves a decision as to which witness or group of witnesses are accepted by the tribunal as deposing to the probably correct facts. That necessarily involves, where it is a matter in which the competing witness or group of witnesses are in a position to know the particular facts, a finding, explicit or implicit, that the latter are unreliable or are lying. That situation, as I said before, is the only situation in which I am aware that the appellate courts have relied upon the dominant position of the trial Judge.

In this matter there is no apparent area of fact in which anything the worker has said is contradicted by other evidence or by his own. The primary facts seem almost beyond dispute. Certainly the conclusions drawn by the worker from such facts or the value judgments that he makes of them are assailed but never as I apprehend it is any fundamental fact to which he deposed the subject of contradiction. As I read the evidence what he says is inherently plausible. There is nothing bizarre or contradictory in the general account that he gives of his problems. Why should he not be believed? The only reason apparent in this case is that it is not for what he said but rather how he said it.

The passage cited from the judgment of Lord Wright in Powell's case (see above) placed emphasis on the ability of the seasoned and astute trial Judge to divorce the superficial appearances from the realities and to make allowances for personal characteristics of a witness in the unfamiliar surroundings of the courtroom. I get the clear impression that this worker was antagonistic and impatient (to borrow the words of Lord Wright) in the course of cross-examination. Indeed I get the clear impression that the cross-examination was designed to produce just that effect. Reading it I was minded of the late Robert Adam-Smith who had a great facility for producing a cross-examination from minimal material which had an aura of plausibility notwithstanding the absence of any substantial factual support. The same Adam-Smith also had an ability to use real material with quite devastating effect. Since the ability to produce both results doesn't necessarily co-exist perhaps the contrast was more noticeable in his case.

I have the impression that the Senior Commissioner was more impressed by the form than the substance - as indeed the cross-examiner sought that he be. I doubt that the Senior Commissioner, in this case, displayed the abilities of the archetypical trial Judge, with whom the appellate courts deal, to distinguish the important from the peripheral.

On the totality of the material before him, in my view, justice was not done when the Senior Commissioner adjudged the worker as unworthy of credibility. Review being "a beneficial facility for the correction of mistakes and the great injustices which they can cause" this review should, in my view, be an occasion for the restoration of Mr Waldon's good repute and an assessment of his entitlements under the Act, subject only to the second major ground on which the Senior Commissioner founded his decision.

PREFERENCE FOR EMPLOYER'S MEDICAL EVIDENCE

This was the second basis of the Senior Commissioner's judgment - the expressed acceptance of the views of Drs Bloch, Edwards and Wearne on the question of the worker's fitness for work. As I said at the outset no explication is attempted to show why these views were accepted.

Such is acceptable compatibly with SOULEMEZIS v. DUDLEY (HOLDINGS) PTY LTD (1987) 10 NSWLR 247. The necessity to give reasons requires only that some indication be given of the fundamental bases of the decision and not the detailed reasoning process leading to that ultimate fundamental reason. In WATER BOARD v. CINDRIC the dictum of Mahoney JA in YATES PROPERTY CORPORATION PTY LTD (IN LIQ) v. DARLING HARBOUR AUTHORITY (1991) 24 NSWLR 157 at 170:

"In deciding whether a judge has given sufficient reasons for what he has decided, it is, of course, necessary to determine what he has decided and why he decided it."

was not thought to have extended that concept in any way.

So the Senior Commissioner committed no error of law. But what of fact?

As I said earlier, on a review, when a question arises as to whether a major finding of fact is correct or not, I tend to look to the reasons why it was so found to gauge whether a contrary finding, to which the evidence inclines me, should, or should not, be substituted. Even though not explicit, the reasoning process can often be inferred from what has been discussed in preceding passages of the judgment. One can reasonably clearly deduce the likely mental process which lead to it. There is no real discussion by the Senior Commissioner of the medical evidence concerning incapacity. An overall impression from the judgment is that the Senior Commissioner so found because of his prior conclusion that the worker was not a witness worthy of credence. He therefore did not accept that the worker had the symptoms and disabilities of which he complained. It therefore followed that the conclusions of those medical witnesses who regarded the worker as fit were correct.

For the reasons I have discussed above I do not believe that the credibility of the worker was materially impugned by anything that transpired at the hearing before the Senior Commissioner. It follows that I am not impressed that a finding based on the contrary assumption should not be reversed on review if it be that the alternate view is supported by the weight of relevant evidence. The issue of incapacity or not will be addressed in the immediately following section of this judgment.

The inclusion in judgments of sentences to the general effect "I prefer the view of Dr A to that of Dr Z" or some such formula has a long and hallowed tradition. It may constitute an adequate protection against error of law but, in my view, alone it adds little to the resolution of any disputed question of fact. It would be different where the issue was exceedingly narrow and the competing witnesses had fully disclosed their reasoning processes and fundamental medical views. Then, the suggested formula clearly chooses one line of approach to another. Where it is otherwise I would be doubtful that in every case it even serves to immunise a judgment against error of law.

The reductio ad absurdum situation would occur were I to deliver a judgment that merely says: "On the issue of injury I prefer the evidence of Mr A to that of Mr B. On the issues of incapacity and relevant nexus I prefer the views of Dr X to those of Dr Y. I make an award for. ..". Even if preceded by a recitative section tersely outlining the competing accounts and views I wouldn't feel that I had enlightened the parties in any real way as to the reasons for the decision.

[His Honour considered incapacity and other matters not the subject of the report - Ed]

REVIEW GENERALLY

I note that in KREZO v. STATE RAIL AUTHORITY [1992] NSWCC 10; (1992) 8 NSWCCR 260, Manser J has ordered that the reviews in those matters proceed as hearings de novo and the evidence be called afresh before the Judge. Whatever else may said of such a course it is pragmatically easier and probably less time consuming than this task of parsing and analysing reasons for judgment and wading laboriously through a deal of transcript which has to be annotated and digested in regard to the various issues and then sitting down to construct an inordinately long judgment where the prolixity arises from the perceived need to dot every "i" and cross every "t" on this vexing matter of credibility so the parties, and the Court of Appeal, can see what has been done. A measure of the longwindedness is also attributable to a pedagogical intent to enlighten the commissioners as to the views of at least one judge on these contentious areas. In any event I could have heard the evidence and decided the matter in a fraction of the time on a hearing de novo. And been considerably terser.

[His Honour then made findings not calling for report - Ed]

I hereby order and award that:

1. The order and award of Senior Commissioner Hopkins made 12 February 1991 be discharged.

2. In lieu thereof be substituted an order and award that the opponent pay the claimant:

(a) a weekly payment pursuant to the former section 11(1) of $159 per week from 2 May 1987 to date and continuing (excepting the period between 1 November 1987 and 30 November 1987) such payment to be adjusted in accordance with section 40(3A) but so that no weekly payment exceeds $230 per week., and

(b) medical and other expenses in accordance with section 60, and

(c) costs of the proceedings before the Senior Commissioner, and

(d) costs of this review.

Solicitors for the claimant: F.J. Kavanagh & Co

Solicitors for the opponent: Hunt & Hunt