El-Issa v Palture Pty Ltd & Another [1994] NSWCC 37; (1994) 10 NSWCCR 812 (21 December 1994)

[1994] NSWCC 37; (1994) 10 NSWCCR 812 Matter No.11617 of 1994

EL-ISSA v. PALTURE PTY LTD & ANOTHER

21 December 1994

Compensation Court of New South Wales: Armitage J

Proceedings to obtain compensation - Determination of claims - Evidence - Procedural fairness - Evidence of worker - Inconsistent with medical history - Duty to cross-examine - Findings on credit adverse to worker - Review

Appeals from commissioners or registrars - Review of decisions - Nature of review - Finding based on credibility - Lack of procedural fairness in making findings on credibility - Hearing de novo review - Leave to adduce oral evidence

D.W. Elliott, for the applicant

M. Choat, for the respondent

Cur adv vult

ARMITAGE J: This is an application by Jalil El-Issa for review pursuant to section 36 of the Compensation Court Act 1984, as amended, of a decision of Senior Commissioner Hopkins, given on 18 May 1994 in Matter No. 12217/92, in which he initially proceeded against two respondents, Palture Pty Ltd trading as Jefferson Ford and Portseal Pty Ltd trading as Dale Ford, in respect of three separate injuries, the first two alleged to have occurred in the employ of the first respondent and the third in the employ of the second respondent.

The applicant gave evidence of the happening of all three injuries and they may be briefly summarised.

The applicant firstly alleged that he suffered injury to his right foot in the employ of the first respondent on 6 November 1989, in the course of his use of what was described as a hydraulic joist, which seems to be a type of jack.

He secondly gave evidence that in March 1990, again in the employ of the first respondent, he was using a jack handle and again suffered injury to his right foot.

I deal with these injuries rather superficially because, by the time the Commissioner gave his decision, a settlement had been entered into, implemented by the making of orders in accordance with Short Minutes handed up to the Commissioner, in respect of both of the applicant's injuries to his right foot in the employ of the first respondent and, therefore, the only outstanding issue with which the Commissioner had to deal in his judgment was the occurrence or otherwise of any injury to the applicant in the course of his employment with the second respondent to his left foot or if such injury occurred, the ongoing effects of it, if any.

In relation to the third injury to the applicant's left foot in the employ of the second respondent, to which I have referred above, the applicant gave evidence, as recorded in the transcript of the proceedings before the Commissioner on 10 November 1993, that on 23 August 1991 he suffered injury to his left foot in the employ of the second respondent, when a motor vehicle drove over it.

Although the answer of the second respondent quite clearly put the occurrence of that injury in issue, as well as its ongoing effects, if I may use a loose expression, it was clear from the manner in which the defence was conducted by the second respondent that its real defence was that the applicant suffered no ongoing effects of any injury that might have occurred in the employ of the second respondent by the date from which the applicant claimed weekly payments of compensation.

According to what I was told was the last application for determination filed before the hearing of the matter by the applicant on 19 October 1993, the date from which compensation was claimed against the second respondent was 16 January 1992, it being asserted in that amended application that all benefits were paid until that date, when they were discontinued.

Some amendments not recorded in the transcript were made, I am told by Mr Elliott, counsel for the applicant, before the commencement of the hearing before the Commissioner, but none concerned the date from which compensation was claimed.

The second respondent's defence in respect of the claim of injury to the applicant's left foot on 5 May 1992, was two pronged. Firstly, it was asserted that the applicant had no ongoing pathological condition in his left foot at all from the date when compensation benefits ceased as above and, secondly, it was asserted that if the applicant did have such a condition it did not result from the injury the applicant alleged in the employ of the second respondent as set out above.

An important part of the second respondent's defence to the applicant's claim was to assert that he had some problems with his left foot before the occurrence of his injury to that organ in the second respondent's employ.

When the Commissioner came to decide the matter he gave an award for the second respondent. The bases upon which he did so are multiple and consisted, essentially, of a number of instances of inconsistent evidence being given by the applicant, which led the Commissioner to conclude that, to quote the Commissioner at 17 of his judgment:

"...I am also of the view that the applicant exaggerates his condition in that he was clearly prepared to say anything that may further his claim against the second respondent. I do not accept the applicant was open and completely truthful with the Court."

Another reason for the Commissioner's rejection of the applicant's claim is that canvassed at 14-17 of the Commissioner's judgment. Broadly, the Commissioner concludes that the view of Dr Aroney, a doctor whose report dated 3 March 1993 was tendered in the respondent's case, is to be preferred in relation to what occurred to the applicant in the employ of the second respondent.

As revealed in the sections of Dr Aroney's report quoted by the Commissioner, Dr Aroney formed the view that, certainly by the date of his examination, the applicant had recovered from the effects of injury to his left foot in the employ of the second respondent and, indeed, that such recovery appeared to have occurred within several weeks of that injury.

It was an important step in his acceptance of Dr Aroney's view for the Commissioner to consider what was the state of the applicant's left foot before the injury he asserted in the employ of the second respondent.

In order to consider this issue, the Commissioner refers at 15 of his judgment to the fact that a Dr Reid, who examined the applicant for the respondent, engaged in measurements of both of the applicant's legs before the occurrence of the alleged injury in the employ of the second respondent. Dr Reid gave two reports dated 2 November 1990 and 8 March 1991, which were tendered in the respondent's case and to which the Commissioner refers at 15 and 16 of his judgment.

I say that the Commissioner's consideration of Dr Reid's measurements and their significance is important, because it is apparent that Dr Aroney, whose view the Commissioner accepted, considered that Dr Reid's measurements were of significance, for that fact is evident from the sections of Dr Aroney's report quoted by the Commissioner, although the Commissioner correctly observes that Dr Aroney mistakes Dr Reid for a Dr Eggins, who is in the same practice as Dr Reid who, in fact, saw the applicant at a later time. Therefore, in the context of the trial, it was important for the applicant's counsel to attempt to discount in the Commissioner's mind the significance of Dr Reid's measurements. The submissions of the respective parties are recorded at the bottom of page 15 of the Commissioner's judgment, where he records, first, that the respondent's counsel submitted that Dr Reid's measurements were significant and that the applicant's counsel submitted that they were not.

The significance of the measurements was that the measurement of the left calf by Dr Reid before the applicant's alleged accident in the employ of the second respondent disclosed that it measured less than the right calf, that is to say, at a time before any injury in the employ to the second respondent to the applicant's left foot had occurred.

As I have said, it was that difference in measurements, in part, which led Dr Aroney to the conclusion that the applicant had no ongoing pathology in his left foot resulting from injury in the second respondent's employ.

Counsel for the applicant, in an attempt to diminish the significance of Dr Reid's measurements, referred to a history given to Dr Reid by the applicant, as recorded in that doctor's first report of 2 November 1990, where the applicant said that he played soccer, jogged every second day and played table tennis at least every second week. Presumably the intention of that submission was to show that if the applicant could do those things it was unlikely, at that time, there was much wrong with his left foot.

However, the Commissioner did not accept that submission and his reason for not doing so is at the top of page 16 of his judgment where he quotes from Dr Reid's second report of 8 March 1991, in the following words:

"At that time he had described many activities which he indicated had been continued up to the initial alleged injury on 6 November 1989. He had said that he played soccer and jogged every second day and played table tennis at least every second week.

When this was reviewed on 8 March 1991, he said that he had never been a particularly serious table tennis player and that he had not played for more than one year before the accident. He said that he had never really played soccer but just kicked the ball around with his children and that would have been more than one year before the accident. He spends time standing watching his children playing soccer. Strangely he said he had never jogged."

Following that quotation, the Commissioner says this:

"...and in my view that is a classic example of the applicant's inconsistency in his evidence before me and history to the doctors."

What I regard the Commissioner as doing in that passage is comparing the applicant's protestations of having nothing wrong with his left foot before injury in the employ of the second respondent with his history to Dr Reid, as recorded in that doctor's second report of 8 March 1991, which the Commissioner himself describes as an "inconsistency".

Because it was a necessary step in the acceptance of Dr Aroney's opinion by the Commissioner for him to consider the significance of Dr Reid's leg measurements following the applicant's injuries to his right foot in the employ of the first respondent and before his alleged injury in the employ of the second respondent to his left leg, it was a necessary step for the Commissioner to consider the applicant's evidence of how his left foot was during that period of time, that is to say, before the alleged injury to the left foot in the employ of the second respondent.

One of the Commissioner's expressed reasons for finding the applicant an unreliable witness on this question is the inconsistency of his histories to Dr Reid, as recorded in that doctor's first and second reports, and it is clear that that inconsistency figured large in the Commissioner's mind in his non-acceptance of the applicant's evidence. That seems to me to be clear from the Commissioner's use, at page 16 of his judgment, of the words quoted above, that is:

"...and in my view that is a classic example of the applicant's inconsistency in his evidence before me and history to the doctors."

The point upon which this review turns is that the applicant submits that the applicant's histories about soccer playing to Dr Reid, as recorded in his first and second reports of 2 November 1990 and 8 March 1991, were never put to the applicant in cross-examination. So much is conceded by the respondent's counsel, Mr Choat.

What Mr Choat says is, firstly, that this failure does not matter because the Commissioner, in the passage of the judgment to which I have referred, was not considering the question of the applicant's credit at all, but rather a medical question, that is to say, whether any ongoing condition the applicant suffered in his left foot was the result of an injury in the employ of the second respondent or, alternatively, pre-existed that injury and was unrelated to it.

Mr Choat's second submission was that if that be wrong, then the applicant's evidence was so riven with inconsistencies, many of which were referred to in the Commissioner's judgment, that his inconsistent histories to Dr Reid about soccer playing, referred to above, were so insignificant as to form either no part or, alternatively, a very small part of the Commissioner's reasons for disbelieving the applicant, which were primarily based on the applicant's presentation in the witness box and his manner of answering questions.

I am considerably attracted by that submission, but I think in the end I must reject it, because it seems to me that the Commissioner's acceptance of Dr Aroney's view is essentially interwoven with his consideration of the significance from a clinical point of view of Dr Reid's leg measurements which, in turn, was predicated on the acceptance or rejection of the applicant's evidence about the state of his left foot and leg before the injury alleged in the employ of the second respondent.

In so far as the Commissioner adopted inconsistent histories to Dr Reid, as one of several reasons for disbelieving the applicant about this, it seems to me that those histories were of significance and, indeed, considerable significance in the conclusion to which the Commissioner came in accepting Dr Aroney's opinion and finding against the applicant.

The Court of Appeal had occasion to consider the rule in BROWNE V. DUNN (1893) 6 R 67 (HL), on appeal from this Court, in BOSTON CLOTHING CO PTY LTD V. MARGARONIS (1992) 27 NSWLR 580. That case was a far more egregious example of a breach of the rule in BROWNE V. DUNN, because in that case a Commissioner of this Court found against the applicant, based purely on a comparison between her evidence and a number of histories to doctors, none of which were put to the applicant in cross-examination.

However, at 590, Kirby P, with whom Waddell and Samuels JJA agreed, said this:

"I am inclined to believe with Burke CCJ that the practical rule of fairness enshrined in the Browne v. Dunn principle required that the suggested contradictions in the worker's history should have been put to the worker before they were used as a basis not of challenging the opinions resting on them but of challenging the truth of the worker's evidence. No such challenge was put to the worker by counsel for the employer in his economical cross-examination. If the Commissioner himself intended to rely upon the evidence in the way he did, procedural fairness required that he should have drawn the suggested inconsistencies which were troubling him to the notice of the worker or of counsel. Then the worker would have the opportunity of explaining the suggested inconsistencies. Her counsel would have had the chance of calling oral evidence from her medical advisers to supplement the written opinions which they had provided. In the course adopted by the Commissioner there was a real risk of injustice to the worker. Burke CCJ recognised that risk and his review dealt with it."

The rule in BROWNE V. DUNN was previously considered in a well-known passage by Hunt J in ALLIED PASTORAL HOLDINGS PTY LTD V. COMMISSIONER OF TAXATION [1983] 1 NSWLR 1 at 16 - 18 and by the Court of Appeal in PAYLESS SUPERBARN (NSW) PTY LTD V. O'GARA (1990) 19 NSWLR 551 per Clarke JA at 556 - 557, but the practical effect of the rule in operation would seem, with respect, to be as adumbrated by Kirby P in MARGARONIS in the passage to which I have referred above.

It seems to me that once it is established that the Commissioner relied to a significant extent on the inconsistent histories to Dr Reid, as he found them to be, to which I have referred above and once it is conceded, as it very fairly was by Mr Choat of counsel for the respondent in this application that these inconsistent histories were never put to the applicant in cross-examination, it follows that the application for review must be upheld.

This is so because the applicant was denied the opportunity, as a matter of procedural fairness, in the way described by Kirby P in MARGARONIS to explain in cross-examination, or alternatively to call other evidence about, the condition of his left foot before the injury he alleged in the employ of the second respondent, and in particular to explain his history to Dr Reid about playing soccer.

He could, for example, have called a witness to corroborate his own evidence about soccer playing. He could have explained his answers to Dr Reid either by denying that they occurred or by explaining the context in which they were made and his understanding of Dr Reid's questions.

This does not end or exhaustively define the ways in which the applicant could have dealt with these alleged inconsistencies, but what matters is that he was denied the opportunity to deal with these suggested inconsistencies, because they were never put to him in cross-examination and the Commissioner never indicated aliunde that he regarded them as of significance before the applicant had closed his case or, for that matter, before counsel addressed or at least no such indication occurs in the transcript.

This being so, I uphold the application for review and discharge the decision and orders of the Commissioner.

The next question is what steps I should take in the further rehearing of this matter.

The applicant's first submission, rather curiously, was that I should decide the matter on the transcript. His second submission was that if I felt unable to do justice by so doing, I should give the applicant leave to give oral evidence again, pursuant to the discretion conferred upon me by Part 30, rule 5 of the Rules of the Compensation Court.

That rule has been held by the Court of Appeal to be a valid one in LITYNSKI V. ALBION STEEL PTY LTD (1994) 10 NSWCCR 287 despite earlier reservations about its validity expressed by Handley JA in WATSON V. HANIMEX COLOUR SERVICES PTY LTD (1992) 8 NSWCCR 190 at 210.

The Compensation Court Rules 1990, Part 30, rule 5 reads:

" (1) On a review under section 36 of the Act of the decision of a Commissioner, evidence that was not adduced before the Commissioner shall not be adduced without leave of the court.

(2) The court may if it thinks fit refuse to grant leave under subrule (1) unless it is satisfied that there was good reason why the evidence was not adduced before the Commissioner."

This rule has been considered by a number of Judges of this Court in such decisions as LITYNSKI (above); KREZO V. STATE RAIL AUTHORITY OF NSW [1992] NSWCC 10; (1992) 8 NSWCCR 260 (Manser J); BOURKE V. PONDEROSA MEAT CO PTY LTD, Compensation Court, No. 15534/92, O'Toole J, 8 June 1993, unreported; Traversi Jones Pty Ltd v. Kirk [1993] NSWCC 1; (1993) 9 NSWCCR 1 (Moroney J); GARCIA V. KELLY COUNTRY PTY LTD [1993] NSWCC 13; (1993) 9 NSWCCR 364 (Geraghty J) and CAMPBELL V. GROUP GARAGES (AUSTRALIA) PTY LTD, Compensation Court, No. 4860/94, Bishop J, 18 August 1994, unreported.

All of these decisions seem to me to embody the principle that the discretion is not to be exercised automatically in favour of the applicant and that the applicant must show good reason why he or she is entitled to give evidence again or to call other oral evidence again, particularly when that evidence could and perhaps should have been called before the Commissioner or where it was called before the Commissioner.

However, I gain most guidance in the present case from the remarks in obiter of Handley JA in Watson at 211, where his Honour said this:

"The scope of the judicial discretion to allow a hearing de novo may have to be worked out on a case by case basis. However where, for example, it appeared to the Court that, on ordinary principles, an applicant would have been entitled to a new trial, it would generally be appropriate for the Court to then allow the review to take the form of a hearing de novo. In other cases, it may be that the review could properly be restricted to the written record."

This seems to me to be precisely the sort of case considered by Handley JA, where a new trial is required.

The respondent's submission in this case agreed with the applicant's first submission, which was that I should deal with this matter on the transcript. However, in AUSTRALIAN GAS LIGHT CO V. SAMUELS (1993) 9 NSWCCR 616, the decision of a judge of this Court on review from a Commissioner was reversed on the basis that the Judge had reversed a Commissioner's findings on credit without rehearing the oral evidence of the applicant and so had not given sufficient prominence to the advantage of first instance referred to by the High Court in JONES V. HYDE [1989] HCA 20; (1989) 63 ALJR 349; 85 ALR 23, ABALOS V. AUSTRALIAN POSTAL COMMISSION [1990] HCA 47; (1990) 171 CLR 167 and DEVRIES V. AUSTRALIAN NATIONAL RAILWAYS COMMISSION [1992] HCA 41; (1993) 177 CLR 472.

It seems to me that it was precisely that situation which Handley JA was very likely referring to when he remarked in Watson that ordinarily leave should be given to the applicant to conduct a hearing de novo where a new trial was required.

In light of the subsequent remarks of the Court of Appeal in Samuels, it seems to me that it would be impossible to do justice to either party were I not to give such leave, because the advantage of first instance would inevitably lie with the Commissioner and it would be impossible for me properly to consider the question of the applicant's credit in the manner required by the Court of Appeal in Samuels without granting such leave. In the circumstances, and with some reluctance, because I am conscious of the cost involved to both parties, I am inclined to accede to the applicant's second and alternative submission that I should give the applicant leave, pursuant to Part 30, rule 5, to give oral evidence himself again. Such leave is not to extend, at least at this stage, to the calling of further oral evidence by the applicant, although I will hear such an application if and when it is made, nor does it extend to the respondent calling oral evidence, although it would be very difficult indeed, on ordinary principles, to deny such an application, were it brought by the respondent in these circumstances, having regard to the advantage that the applicant will enjoy from giving oral evidence himself before me.

As indicated, I uphold the application for review. I discharge the decision and orders of the Commissioner, and I give leave to the applicant to give oral evidence pursuant to Part 30, rule 5 before me.

I stand the matter over to a date to be fixed with my associate today.

As to the question of costs, I accede to the submission of Mr Choat, counsel for the respondent, that I should reserve costs in the proceedings. True it is that the applicant has won the day on the question of whether the application should be reviewed, but the eventual result is unknown and should the applicant ultimately fail on the merits in the hearing before me, it would then be necessary to consider whether the applicant should have his costs of the earlier part of the review application, which dealt only with the question of whether the decision should be reviewed and I prefer to await the outcome of the ultimate proceedings before determining that question.

The orders therefore are:

1. Application for review upheld.

2. Decision and orders of Senior Commissioner Hopkins dated
11 May 1994 discharged.

3. Applicant given leave under Part 30, rule 5 to give oral evidence himself on further hearing of review application.

4. Stood over to date to be arranged today with my associate.

5. Costs reserved.

Solicitors for the applicant: Malouf Solicitors

Solicitors for the respondent: Nevill & Edwards