BURKE v DJURISIC t/as ALTONA NURSING [1990] NSWCA 34

BURKE v DJURISIC t/as ALTONA NURSING

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY and CLARKE JJA 30 April, 16 May 1990, 8 June 1990

[1990] NSWCA 34

WORKERS COMPENSATION — Appeal from Compensation Court — application to amend after evidence and addresses completed and immediately before judge commenced to give judgment — application to raise new case — refused — no question of principle.

ORDER Appeal is dismissed with costs.

Samuels JA This is an appeal from orders made by Judge O'Toole in the Compensation Court and therefore lies only upon questions of law. The error of law alleged is her Honour's refusal to allow the appellant to amend para 5 of her application for determination so as to include as a cause of injury "the nature and conditions" of her employment with the respondent.

The appellant's application for determination in para 5 asserted the occurrence of a specific injury on 6 August 1984 when the appellant, in the course of performing her nursing duties, lifted a patient who had collapsed in the lounge room of the respondent's nursing home. The appellant claimed workers' compensation from 21 November 1984 and continuing. Her application was filed in April 1985. In December 1986 an amended application was put on, which joined as a second respondent one Michael Rublewski, trading as St Anthony's Nursing Home, and originally claimed compensation against him for a closed period from 17 October 1981 to 19 April 1982. That period was 'opened' because, when the matter came before Judge O'Toole on 4 June 1987, it became apparent that the first respondent intended to assert that the disability for which he was said to be responsible from 19 November 1984, was due to an injury sustained in the course of the appellant's employment by the newly added respondent, Rublewski.

The appellant's counsel opened the specific incident asserted in the application for determination. At that stage the appellant was asserting alternative claims. But at the end of the first day of the hearing, at the invitation of counsel for Rublewski, counsel for the appellant stated that he had no evidence of any incapacity since 1984 resulting from her employment by Rublewski; and on 24 September 1987 the appellant redeemed her rights against Rublewski and he was dismissed from the case which proceeded as a claim against Djurisic and Altona Nursing Home only.

In her evidence the appellant swore that she had sustained an initial injury in the employment of Rublewski; and thereafter had returned to work, left that employment, obtained other employment (all of this as a nursing aide) with Maroubra Junction Nursing Home, had left that employment and gone to another nursing home called Daintrey Crescent, and had finally entered the employment of Altona on 26 April 1984. She gave precise evidence of the specific incident which had been claimed in her application and opened by her counsel. She said that she had reported it to the matron, and explained how it happened when an alcoholic geriatric called Mr Arthur had fallen out of his chair.

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She sought medical treatment in the form of cortisone injections from a Dr Frith who attended the nursing home to treat the patients there. Dr Frith was called and said that on 6 August he saw the appellant at the nursing home while he was visiting patients and she asked him to have either "a quick look" or "a little look" at "some pains that she was having in her back - in the low back". According to Dr Frith the appellant told him that she had had a long history of back pain, particularly in the lower sacral area, and that normally she would have received a periarticular injection of cortisone from her usual doctor. She asked whether Dr Frith would give her that treatment, which he did, formally in his surgery on the following day. His recorded history includes this: "Long history of pain in low sacral area and has had previous periarticular injections".

Not unnaturally, the appellant in cross-examination was challenged about the specific incident which she had related. It was suggested to her that, as she had told Dr Frith, she had had a long history of pain in the low back and that it was that disability, in no way connected with any incidents sustained during the course of her employment at Altona, which had led to the incapacity for work which commenced in November, 1984.

However, she resolutely denied that she had ever had, prior to August 1989, any trouble with her back. She said: "TI was feeling great up until that time, yes"; that is to say up until the alleged incident in August 1984. She was asked these questions and gave these answers:

"Q. No problems at all until this particular day when you felt pain at the very moment you lifted, is that right? A. That's right, because I used to do a lot of sport and ten-pin bowling and things like that and never had any problems with that.

Q. No pain at all? A. No pain at all.

Q. Wouldn't have complained to anybody at work of pain in your back at any time at all? A. At Altona I did, quite a fair bit.

Q. You told us that you were fine up until the very moment when Mr Arthur fell, you picked him up and felt a sharp pain in your back? A. That's right, yes.

Q. And it was after that wasn't it that you -- A. That was after that when I started getting the niggly pains in my back.

Q. And so from way back in 1980 with St Andrews and your recovery untiL this moment your back had been fine, no problems, is what what you say? A. That's right, no problems at all.

Q. I want to put it to you that your account, that is of going to pick up Mr Arthur, having Bilma say she couldn't help you, feeling a sharp pain in your back and saying I think I've done my back in or I think I've done my back, I suggest to you that that story is just that. It's one that you have made up for the purposes of making a claim for compensation against Altona, what do you say about that? A. No, I don't agree with that because when I picked - I can remember it plain as day, when I picked Mr Arthur up off the floor as I picked him up I felt my back go then, then after that my back was just aggravating me all afternoon but not too bad until the next morning till I got out of bed to go to work, and that's when it started playing up, then it was getting worse."

And then: Q. "Yes. I suggest to you that you had had a sore back throughout the time that you were at the Altona NursIng Home and that you were just biding your time to set up a [the next word is missing]. Now is that correct or not? A. No, it is not. I didn't know such a thing that you could get a claim until Dr Casamento told me."

URJ BURKE v DJURISIC t/as ALTONA NURSING (Samuels JA) 3

She also said that when she got married to Mr Burke on 9 June 1984 it was before she had hurt herself and at a time when her back was fine with no hint of a problem. Then she was asked these questions and responded as follows: "Q. In room 3 before your marriage working with Jenny Stephens you said while making a bed, my back, you said that didn't you, correct? A. I don't think so.

Q. Is it likely that you had pain in your back that led you to say my back while working making beds? A. No, I don't recall saying that.

Q. I suggest that after you said that Jenny said to you what's wrong with your back, do you recall that? A. No, I don't.

Q. You said I hurt it at Maroubra Junction didn't you? A. No, I did not.

Q. You said don't tell matron to Jenny didn't you? A. That's ludicrous. No, no I did not.

I think it sufficient to summarise this evidence by saying that throughout her test:imony the appellant stuck firmly to the story that she had hurt her back in a specific incident on 6 August 1984, that prior to that event her back had been fine without pain or disability save for the earlier particular incidents from which she had recovered. In particular, she denied that she had ever complained that she had hurt her back at Maroubra Junction Nursing Home or had aggravated an existing back injury during her work with Altona. This evidence was taken on 4 June and 24 September 1987. Counsel addressed on 9 June 1988 when the matter was stood over to 20 June for judgment.

On that day the appellant's counsel applied to amend para 5 of the application for compensation in order to allege in the alternative that her injury was occasioned by "injury suffered by the applicant at the Altona Nursing Home from 24 April 1984", a claim of a type commonly known as a "nature and conditions claim" because it relies not upon a particular incident but upon the accumulated effect of stresses imposed by the nature of the work undertaken. The learned judge rejected the application and I should set out the terms in which she did so: - "During the course of addresses it probably became apparent to the applicant's counsel that the applicant's version of relevant events may not be accepted. This is a lat, e attempt by the applicant to keep her matter alive by putting her case on quite a different footing that that upon which it was presented.

I have come to the conclusion that to permit the applicant to now make the allegation she wishes, would be unfair to the applicant's opponent but also would be a waste of the court's and the parties' time and effort. The applicant seeks now to make an allegation which she flatly rejected when giving her evidence for tactical or whatever other advantage or reason. From the outset the applicant's case was deliberately not put in the way in which the applicant now seeks to allege injury.

For those reasons I refuse the applicant's application."

Counsel for the appellant has displayed considerable persistence and ingenuity in challenging her Honour's ruling but, in essence, recognizing the difficulty of overcoming this classic exercise of discretion, has submitted that the amendment should have been allowed because it did no more than reformulate in formal terms evidence which had already been given. It was contended that the appellant had provided evidence capable of sustaining the alternative claim; and counsel relied strongly upon a passage in her Honour's judgment in which she says this:

"Considering the type of work performed by nurses and nurses' aides and the evidence before me, I think it is probable that at some time the applicant lifted or assisted to lift Mr Arthur in circumstances described by her, or in similar circumstances. Perhaps the applicant alone lifted Mr Arthur or other patients on

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more than one occasion. I note that even on the 20 August 1985 an incident involving Mr Arthur was only one of incidents which were the subject of the applicant's complaint to Dr Pillemer. I think it probable that ex post facto, the applicant has attempted to fix a particular incident with culpability for symptoms which brought her to laminectomy."

So it was argued that the appellant should not be precluded from litigating a claim which her Honour found had been established by the evidence, and which, therefore, she must ultimately have rejected merely because it had not been pleaded; and reliance was placed upon cases such as Leotta v Public Transport Commission (1976) 50 ALJR 666, in particular at 668 and 669, and Water Board v Moustakas (1988) 62 ALJR 209.

However, I do not consider that in the passage which I have quoted her Honour was making a finding that any such incident (when the appellant may have lifted Mr Arthur) probably caused either an initial injury or the aggravation of an existing spinal lesion. It is perfectly consistent with this part of her Honour's judgment that the appellant came to Altona carrying an injury which troubled her, and of which she complained to her follow workers (although she denies this).

Her complaints to Dr Frith are entirely consistent with her awareness of a level of disability which she brought with her to her then current employment, and which was not aggravated or exacerbated by anything that she did at Altona. The incapacity which caused her to cease work in November, and which ultimately required surgical intervention, may very well have been the natural progression of an injury sustained in employment preceding her arrival at Altona. There is therefore, in my opinion, no basis for the suggestion that her Honour's findings are in some way inconsistent with the grounds she assigned for the rejection of the application to amend.

So far as that goes, there is no doubt whatever but that the appellant's case had been solely and explicitly founded upon one particular incident, and that she had declined absolutely to concede any spinal disability of any sort at the time she arrived at Altona in April 1984. That being so, it would have been unfair to the opponent to permit the appellant after the whole of the evidence in the case had been concluded to raise an entirely different case which had never been litigated. Furthermore, the reference to "waste" in her Honour's reasons for rejecting the application is, I infer, an indication that even if the amendment were made, there was no evidence in the case which was capable of sustaining a "nature and conditions" claim. This conclusion is also a powerful factor in leading me to reject the construction which counsel sought to place upon the later passage in her Honour's judgment.

It must be remembered that after addresses on 9 June the matter was specifically stood over to 20 June for judgment; and, as her Honour says, no doubt during the course of addresses on 9 June, it became apparent that the Court might not be prepared to accept the appellant's account of her injury. Notwithstanding that, no application was made for amendment or for adjournment on 9 June, and no application for an adjournment was made on 20 June either.

In these circumstances I am unable to see that the exercise of the learned judge's discretion miscarried in any way; and, indeed, in my view she was perfectly right to refuse the application. Reasonable perceptions of justice and the modern disinclination to be unduly bound by the rigidities which entrenched procedures sometimes involve do not require the courts to permit a claimant, having unsuccessfully made a claim based upon one series of allegations of fact,

URJ BURKE v DJURISIC t/as ALTONA NURSING (Clarke JA) 5

to start all over again by promoting another. Such licence, if permitted, would not only cause grave uncertainties in the legal process and unfairness to an adversary, but would in some cases tend to prejudice the obligation upon which our whole system depends, that parties and witnesses must give the court a truthful account of the transactions that brought them there.

I would dismiss the appeal with costs.

Priestley JA I agree with and adopt what Samuels JA has said down to and including the sentence in his reasons which says "So far as that goes, there is no doubt whatever but that the appellant's case had been solely and explicitly founded upon one particular incident, and that she had declined absolutely to concede any spinal disability of any sort at the time she arrived at Altona in April 1984". As my reasoning from that sentence on may be slightly different from that of Samuels JA, I think I should make it explicit.

The appellant was asking the Judge on 20 June 1988 for leave to amend her claim by adding a claim, which although it was apparently to be based on the facts already before the court, was a quite different claim. On 20 June 1988 the case had been listed for judgment to be given. Addresses had been completed on 9 June 1988.

The evidence had been given in 1987. The claim the appellant was now seeking to make was a "nature and conditions" claim for the whole period of the appellant's employment by the respondent, commencing on 26 April 1984. The application for amendment was not accompanied by an application for leave to reopen for the purpose of putting further evidence before the court, or by an application for an adjournment for such a purpose. That this was a position consciously adopted by the appellant was made clear in this court, where her counsel told us that when the application for amendment was made, it was not known whether any further evidence was available.

The trial judge was plainly of the view that on the material before her, the case to be made on the amended claim, if the amendment were allowed, could not succeed. In this court, the appellant's counsel argued that the trial judge was wrong in this view. Simply on the record of evidence, I do not think she was. However, even if I am wrong in that, the case had gone past the point of evidence being put before the court. The evidence had been the subject of addresses, the trial judge had formed a view on the evidence and was about to give judgment. Thus, when she indicated that on the material before her she did not think a "nature and conditions" claim could succeed she was in an appropriate position to do so, and further, as she had heard the evidence of witnesses at some conflict with one another, was in a better position to form a conclusion on that matter than this court now is.

On the basis of the facts and materials set out by Samuels JA in that part of his reasons which I have earlier said I agree with and adopt, and on the basis that the trial judge was in an appropriate position to form the conclusion that the granting of the amendment asked for, in the absence of any indication on the part of the appellant that any further evidence was available, would be pointless, I do not think it can be said she made any error of principle or misunderstood the facts in refusing to grant the appellant's application. There is thus no foundation for the appeal.

I agree with Samuels JA's opinion that the appeal should be dismissed with costs.

Clarke JA I agree with Samuels JA.

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Appeal dismissed with costs.

Counsel for the Appellant: A Hughes

Solicitors for the Appellant: Phillip Malouf and Co Counsel for the Respondent: P Perry

Solicitors for th Respondent: Hunt and Hunt