Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170

Court of Appeal (Vic)|2009-07-28|Before: REDLICH JA and BEACH AJA

Abdulle v Advanced Wire & Cable Pty Ltd [2008] VCC 1344 (Judge Anderson)

ACCIDENT COMPENSATION - Serious injury application under s 134AB(16)(b) of the Accident Compensation Act - Application granted by County Court - Appeal to Court of Appeal under s 134AD - Whether serious injury established - Severity of injury - Whether a psychological component - Failure to cross-examine applicant as to observations made by medical practitioners - Rule in - Applicant who satisfies loss of earning requirements of may claim damages for pain and suffering - Appeal dismissed.

1 Mr Mohammed Abdulle, the respondent, made application under s 134AB(16)(b) of the Accident Compensation Act 1985 ('the Act') for leave to issue a proceeding for the recovery of damages in respect of injuries allegedly sustained on or about 26 June 2003. The application was heard by Judge Anderson of the County Court on 10 and 13 October 2008. The respondent relied upon a low back injury which he claimed satisfied paragraph (a) of the definition of 'serious injury' contained in s 134AB(37) of the Act. The appellants conceded that that the evidence established the respondent had sustained an organic injury in compensable circumstances.

2 The evidence adduced on the hearing of the application consisted of:

(a) the respondent's affidavit sworn 28 May 2007 and additional viva voce evidence given by the respondent;

(b) reports from the respondent's GP, Dr Macaulay, Dr Macaulay's file and additional viva voce evidence given by Dr Macaulay;

(c) medical reports from Mr A Razif (orthopaedic surgeon) and Mr M Fogarty (orthopaedic surgeon) on behalf of the respondent;

(d) medical reports from Dr P Mutton (consultant occupational physician), Dr V Botvinik (consultant psychiatrist), Dr P. Kornan (consultant psychiatrist), Mr B Dooley (orthopaedic surgeon), Dr A Gallichio (presiding member for and on behalf of a medical panel), Mr I Jones (orthopaedic surgeon), Dr J Douglas (consultant psychiatrist) and Mr P Scott (consultant surgeon) on behalf of the appellants;

(e) a letter from Flexi Personnel (tendered by the respondent);

(f) reports from WorkFocus Australia and Farquhar Associates (tendered by the respondent);

(g) an X-ray report, CT scan report and MRI report dated 25 November 2003, 5 October 2005 and 15 February 2006 respectively;

(h) a WorkCover claim form, employer claim report and register of injuries form dated 24 October 2005, 24 October 2005 and 26 June 2003 respectively; and

(i) a DVD of surveillance of the respondent on 14 August 2007 (tendered on behalf of the respondent).

3 Apart from the respondent's GP (Dr Macaulay), none of the doctors, allied health professionals or other persons whose reports and correspondence were put in evidence were called viva voce. To the extent that the material tendered by a party was contradicted by or was inconsistent with the material tendered by the other, neither party attempted to specifically address such inconsistencies in the course of the viva voce evidence of the respondent or Dr Macaulay.[1]

4 Judge Anderson granted the respondent's application. His Honour delivered written reasons for judgment on 27 October 2008.

5 By notice of appeal dated 10 November 2008, the appellants seek to have the judgment and orders of his Honour set aside and judgment entered in their favour. The appellants rely upon the following grounds:

The learned trial judge erred in finding that the Respondent had suffered an injury to her (sic his) low spine which constituted a 'serious injury' within the meaning of sub-paragraph (a) of the serious injury definition, in that -

(a) his Honour failed correctly to apply Section 134AB(38)(e), (f) and (g) of the Accident Compensation Act 1985 (the Act) to the evidence, and, in particular, posed and answered the wrong question, namely 'whether the plaintiff will, in the foreseeable future, be capable of engaging in

suitable employment which will return at least 60 per cent of his without injury earning capacity' (paras [5] and [37] of the Reasons);

(b) his Honour concluded, contrary to the evidence and the weight of the evidence, that the Respondent had established a loss of earning capacity of more than 40 per cent entitling him to bring a claim for damages;

(c) his Honour misapprehended the purpose of the vocational assessment evidence (para [11] of the Reasons);

(d) his Honour concluded, contrary to the evidence and the weight of the evidence, that there was not suitable employment which would permit the Respondent to earn more than 60% of his without injury earning capacity, namely $675.12 or more per week;

(e) his Honour concluded, in the absence of any or any proper evidentiary foundation, that the conclusions of the medical practitioners in reports obtained on behalf of the Appellants 'lacked objectivity' (para [12] of the Reasons);

(f) his Honour concluded, against the evidence and the weight of the evidence, that there was no basis for the suggestion that psychological symptoms of the Respondent masked the effects of physical injury to his low back (para [23] of the Reasons);

(g) his Honour failed to apply Sections 134AB(38)(h) and (i) of the Act to the evidence, in that his Honour failed to disentangle and exclude the psychological or psychiatric consequences of physical injury and any physical consequences of a mental or behavioural disturbance or disorder;

The learned trial judge erred in failing to give adequate reasons for decision in accordance with Section 134AE of the Act.
The Court of Appeal should decide for itself pursuant to Section 134AD of the Accident Compensation Act 1985 (the Act) that the Respondent did not suffer a serious injury within the meaning of sub-paragraph (a) of the serious injury definition, as measured in terms of loss of earning capacity consequence and/or pain and suffering consequences.

6 At the hearing, ground two was abandoned. For the reasons given below, we are of the view that the appeal should be dismissed.

7 The relevant principles for determining whether an injury is a serious injury or not are set out in s 134AB of the Act and the various authorities that have

7 considered that section.[2] The principles are well known and do not need to be restated here. So far as the approach to be taken in this Court is concerned, as was said by Kellam JA[3] in Doolan v Rayners Sawmills Pty Ltd & Anor:[4]

The correct approach to appeals governed by s 134AD of the Act was set out by Ashley JA in Church v Echuca Regional Health.[5] In that case Ashley JA accepted that the effect of Dwyer v Calco Timbers Pty Ltd is that whenever there is a challenge to a finding of serious injury, or of no serious injury, it is unnecessary for the appellant to demonstrate error. Rather, it is for this Court to decide the issue of serious injury for itself, in reliance upon 'the evidence and other material before the judge who heard the application' and upon any other evidence which the Court may receive.[6] Accordingly I turn now to consider the evidence before the trial judge.[7]

8 In ground three of the notice of appeal, it is asserted that this Court should decide for itself pursuant to s 134AD that the respondent did not suffer a serious injury within the meaning of sub-paragraph (a) of the definition of 'serious injury'. The appellants do not seek to have the matter remitted to the County Court: their notice of appeal seeks judgment for the appellants; and their outline of submissions[8] contends that this Court should decide for itself that the respondent did not suffer a serious injury. It is, in the circumstances of this case, unnecessary to consider the appellants' assertions of specific error in their notice of appeal. If we wished to attach any weight to certain findings made by the trial judge because of his advantage in having observed the witnesses give their evidence, the nature of the errors alleged would not preclude us from doing so. Accordingly, we turn now to consider the evidence in this matter.

9 However, before turning to consider the evidence in detail, it is necessary to deal with one matter that occurred during the course of the hearing. As is the common practice in these cases, the medical reports that the parties relied upon were treated as being in evidence (they were formally tendered by each party in the course of their own cases) at the commencement of the proceedings. At the outset of the appeal, Senior Counsel for the appellants advanced the submission that certain observations and conclusions (to which we will refer in more detail below) and which were recorded in the medical reports tendered by the appellants, had not been challenged by the respondent at the trial and must therefore be accepted as fact. These observations and conclusions, which were of the sort that are often recorded in medical reports, were said to be uncontested, because the respondent had not attempted to deal with them in the course of his evidence in chief and the respondent had not required the relevant medical practitioners to attend for cross-examination. This submission was not foreshadowed by the appellants' outline of submissions and had not been anticipated by the respondent.[9] Upon expressing our tentative view that the submission was attended with substantial difficulties,[10] the appellants elected to withdraw the submission. The appellant then proceeded on the basis that the material they relied upon formed part of the evidence, rather than a set of uncontested facts.

10 Both at trial and on appeal, the appellants drew attention to these parts of their medical reports. They were said to be inconsistent with the respondent and Dr Macaulay's evidence as to the severity of the respondent's injury. This court was therefore required to address those suggested inconsistencies in order to determine whether the respondent had established his case.

11 In these types of application, the practice that is generally followed of providing the court with all of the medical reports and other documentary material upon which both parties rely at the outset of the hearing, and the parties not calling or being required to call their medical witnesses, may be a convenient and practical course. But for the purpose of the rule in Browne v Dunn the sequence in which the evidence was called and tendered remained unaltered. The applicant first adduced his evidence, both oral and documentary, so that the applicant and their witnesses should be cross-examined in compliance with the rule. The appellants then tendered their evidence which was entirely documentary.

12 In Rees v Bailey Aluminium Products Pty Ltd & Anor[11] this court said concerning the rule in Browne v Dunn:

The rule arises from an obligation of fairness to both the witness and the party calling the witness. The cross-examiner must confront the witness whose evidence is to be contradicted by other evidence or to be otherwise challenged. The obligation will also arise where the cross-examiner intends to adduce evidence as to the conduct of the witness which may be a matter of controversy. The rule rests upon notions of fairness and is designed to give the witness and the party calling that witness an opportunity to meet that challenge. The rule facilitates the tribunal's assessment of the reliability and accuracy of the witness. Consequently if matters in controversy are not 'put' to the witness in cross examination the tribunal's capacity to assess the merit of the allegation subsequently to be made and the credit of the witness is likely to be impeded.[12]

13 Browne v Dunn[13] is a rule of law and practice. It is necessary to give the witness the opportunity to deal with such evidence - or such inferences as may be drawn from the evidence - as the other party proposes to rely upon and which contradict the testimony of the witness. In civil cases where material such as affidavits are exchanged before the viva voce evidence is given, it can sometimes be said that the parties and the tribunal are clearly on notice as to what facts are truly in issue and are thus provided with the opportunity to call other evidence to answer the allegation.[14] In accident compensation and personal injury claims, there has never been a practice in this State, that the exchange of medical reports prior to the hearing constitutes notice which would relieve a party who wishes to rely upon the content of a medical report from compliance with the rule in Browne v Dunn. In such proceedings, and often in other types of civil proceedings, the point upon which a party or his expert witness is to be impeached will not be manifest but is rather a matter of arguable inference to be drawn from the other party's reports. Even where the inference to be drawn is clear, such notice, by way of exchange of reports, does not absolve the party who seeks to impugn the witness's credibility, from cross-examining as to those issues that the party intends to ultimately submit are of significance. This provides the basis upon which the tribunal of fact can make the necessary assessment of the witness in relation to those issues.[15] It is the primary means by which the tribunal of fact can determine whose evidence should be accepted on important matters in dispute. In Bulstrode v Trimble Newton J explained that the rule in Browne v Dunn has two aspects:

In its first aspect the rule... is a rule of practice or procedure designed to achieve fairness to witnesses and a fair trial between the parties. In the second aspect it is a rule relating to weight or cogency of evidence.

14 Thus to the extent that the appellants' medical practitioners made observations or drew conclusions that the appellants regarded as significant and which were to be ultimately relied upon as being inconsistent with the testimony of the respondent or Dr Macaulay or as otherwise contrary to the substance of the respondent's case, it was for the appellants to put such matters to them.[16] That is not to say that the failure to cross-examine in accordance with the rule means that the evidence led in contradiction of the evidence that should have been challenged, cannot be considered. It is a matter of weight for the Court to take into account.[17]

15 The respondent was born on 21 October 1962 in Somalia. He was educated to Year 12 in Somalia. He then went to university. He left Somalia in 1991 when civil war broke out. He was a refugee in Kenya until 1995 when he then migrated to Australia.

16 The respondent started work for the first appellant in February 1996. He was employed as a machine operator. He gave evidence that the work he was required to perform was heavy manual work associated with the manufacture of steel cable.

17 In approximately March 2003, the respondent developed some low back pain whilst performing his work for the first appellant. From the records and evidence of the respondent's general practitioner, Dr Macaulay, it would appear that the respondent consulted the general practitioner in respect of this back pain, once in March 2003 and then on 23 April and 23 May 2003.

18 On 26 June 2003, the respondent slipped on water which was on the floor at work. The respondent's evidence was that the machine that he operated had cold water run through it to cool down the steel cables. The water was supposed to stay within the machine. However, on this occasion, the water sprayed onto the floor beside the machine. The respondent landed heavily on his buttocks and low back and suffered pain in his back at that time ('the incident'). The occurrence of the incident is not disputed in this proceeding.[18]

19 The respondent's evidence was that following the incident he attempted to continue at work and tried to put up with his back pain. He consulted his general practitioner (Dr Macaulay) on several occasions. An X-ray of his lumbosacral spine was taken in November 2003. Subsequently, the respondent underwent a CT scan in October 2005 and an MRI in February 2006. The MRI of February 2006 disclosed an annular fissure at L5/S1 associated with a broad right paracentral disc protrusion. The disc protrusion was reported as contacting, without compressing, the right S1 nerve root.

20 Dr Macaulay referred the respondent for physiotherapy. The respondent also said that he had some acupuncture. Additionally, Dr Macaulay prescribed a range of medications for the respondent, including Panadeine Forte, Voltaren and sleeping tablets.

21 In November 2004, the respondent suffered an injury to his right shoulder when pushing heavy reels of cable at work. He gave evidence that he was off work for approximately one month. This fact was not disputed by the appellants.[19]

22 The respondent gave evidence that in approximately mid 2005, while he was continuing to perform his heavy manual work, the pain in his back started to increase. Eventually, on 8 October 2005, the respondent returned to see Dr Macaulay and was put off work. In December 2005, the respondent was referred by Dr Macaulay to the orthopaedic surgeon, Mr Razif. It was Mr Razif who arranged the MRI which was performed in February 2006. In March 2006, the respondent was made redundant.

23 The respondent's evidence was that he has not worked since October 2005 because of his back injury. Further, he gave evidence that he believed that he could not do manual work because of his back injury. As to the possibility of other employment, he said:

I have no qualifications or training which are recognised in Australia. I have been doing some English classes, however my English is not good. I would not have enough English to do a desk job.[20]

24 As to pain and suffering, the respondent swore:[21]

I continue to have pain in my back and left leg which is there all the time, although the pain fluctuates. I also have some occasional right leg pain. At times I have episodes of severe back and leg pain.

I have difficulty with a range of day-to-day activities. I have difficulty sitting for long. Because of my poor sitting tolerance I have given up driving. I walk my son to school which is not far from my home. At times walking my son to and from school significantly increases my pain. I now pay a gardener because I am unable to garden properly with my back. I feel bad because I cannot help out as I would like around the home or help my partner with the children. Because of the pain I often have trouble sleeping and that is why I take the sleeping tablets. When I am in pain I am less tolerant of my children and I now seem to get upset and angry. At times I have had increased back pain whilst toileting. At times back pain has interfered with sexual activity with my partner. I have had a loss of self-confidence and a loss of self-esteem from not working. I am not as social as I was before I hurt my back.

25 From the transcript of the hearing before Judge Anderson, it is clear that the respondent does not have a particularly good command of the English language. Further, it is apparent that so far as the respondent is concerned, there is at least some language and/or cultural barrier which must be taken into account. Indeed, that appears to be the basis upon which the application proceeded in front of his Honour.[22] While the respondent was cross-examined at some length and shown a DVD of surveillance taken of him on 14 August 2007, nothing emerged that significantly impaired his credibility. Judge Anderson described the surveillance video in the following terms:

There was, however, surveillance taken over the period from about 9.00am to 3.00pm on 14 August 2007 which was played in court and tendered in evidence. The total length of the video was quite short and showed only brief sections of activity. The plaintiff appeared to be away from home for at least three and a half hours. During this time he accompanied his wife whilst she shopped, he walked through various shopping areas, had coffee and eventually travelled home by bus. It is difficult to draw any conclusions from this material and certainly no obvious inconsistencies with his oral evidence were revealed.[23]

26 We have watched the DVD and agree generally with his Honour's description of it. There is nothing in the DVD which is relevantly inconsistent with the respondent's evidence. In fact, the DVD provides some support for the respondent's case. The DVD shows the respondent holding his back in a very straight position while he was being filmed. Further, on two occasions the respondent was observed to bend[24] keeping his back straight and bending at the knees. On these occasions, the respondent appeared to be protecting his back. Additionally, when shopping with his wife, the DVD discloses that it was the respondent's wife who lifted their small child out of the car; it was the respondent's wife who pushed the shopping trolley (which at the end was fully laden); and it was the respondent's wife (rather than the respondent) who unloaded the shopping bags into the boot of the car at the conclusion of the trip.

27 When these matters were put to Senior Counsel for the appellants during the course of the hearing, the appellants gave an alternative basis upon which they said the DVD was supportive of their case. Originally, the appellants had contended that the DVD showed the respondent engaging in activities suggesting that he was not seriously injured. We reject this submission. In our view, the DVD is consistent with the respondent's evidence and case. As an alternative, the appellants contended on appeal that the fact that the DVD shows the respondent bending in a protective manner and allowing his wife to do all the lifting and carrying demonstrates a psychological or functional component, rather than a physical disability. We shall later consider the submission that the respondent suffered from a psychological condition which contributed to his level of impairment or alternatively that he was feigning the severity of his condition. Plainly the DVD does not provide support for the contention that the extent of his injury is feigned.

28 As to the respondent's evidence generally, Judge Anderson said:[25]

There were some features of the plaintiff's evidence which would lead me to conclude that his recollection of events is not entirely accurate. I do not, however, consider that there has been any matter which would require me to reach adverse conclusions about his credit. The plaintiff's injuries have affected his memory and concentration. He suffers a degree of depression and anxiety and is very upset about the consequences of his injury and his capacity to provide for his family.

While we will consider the medical and other evidence below, having examined all of the evidence and material, we have reached the same conclusion as Judge Anderson. It is clear from the evidence that the respondent's memory is not as good as it could be. However, we do not accept the suggestion that the respondent's impaired memory, or such discrepancies in his evidence as can be identified, impact adversely on his credit.

29 As we have already said, during the trial and on appeal, a significant amount of time was devoted to various findings and observations made by the medical practitioners (and in particular, those engaged on behalf of the appellants). These findings and observations were used for a number of purposes, including attacking the credit of the respondent. We will deal with these matters in greater detail below. However, as will appear from what we say below, the various observations and conclusions of medical practitioners relied upon by the appellants do not cause us to conclude that the respondent's evidence should not be accepted.

30 The respondent's general practitioner, Dr Macaulay, was the only medical witness to give viva voce evidence. In his report dated 31 July 2006, Dr Macaulay summarised the position as it then existed in the following terms:

Mr Abdulle has a proven L5/S1 disc injury which is likely to have occurred as a result of his work and which has a poor prognosis for recovery and limited treatment options.

31 In his most recent report,[26] Dr Macaulay stated:

Mr Abdulle has significant back pain secondary to a disc bulge at L5/S1.

...

Mr Abdulle is now five years down the track from his injury with limited improvement overall. His condition is now quite chronic and it is unlikely that he will undergo significant improvement in future.

...

In my opinion Mr Abdulle has no capacity for pre-injury work.

Also, I believe his work capacity in general to be very limited if present at all. He continues to be limited by education and language, whilst any manual task or heavy labour would be impossible. Even prolonged standing or sitting or work in a cold environment would not be likely to be tolerable for him. Mr Abdulle continues to have a psychological effect from his injury which would make consistent work difficult in the presence of ongoing pain. This comprises habitual avoidance of aggravating activity and a probable de-conditioning to returning to work given the chronicity of the injury, this may not be able to be corrected.

Future work capacity is unlikely to change as his injury is now chronic. It is unlikely at this stage that improved language skills will be sufficient to effect any change.

32 Dr Macaulay's reference to a 'psychological effect' raises for consideration the application of paragraphs (h) and (i) of s 134AB(38). These paragraphs provide:

For the purposes of the assessment of serious injury in accordance with sub-sections (16) and (19) -

(h) the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;

(i) the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;

33 In his oral evidence, Dr Macaulay was asked and answered the following questions:

What is your opinion as to the relationship of the disc injury you've described with that slipping incident?---The history that I have been given, it fits very well with that injury causing a disc injury. The history, if I recall, was that Mr Abdulle was pushing something like a trolley in a slightly bent forward position and slipped on - I'm not sure if it was a wet floor or whether there was something on the floor that he slipped on and as a result hit the ground. So he was in a position where he was pushing and using the back muscles at the same time and then slipped. I can see that sort of injury causing sufficient force to cause a disc injury.

...

You have described him in response to a question as a stoic man. Has he struck you as [a] man who has lacked motivation in treatment that you've offered him?---No.

Has he struck you as a man who has exaggerated his sickness?---No.

In the last 12 months, what has been the presenting symptom when you've seen him in your clinic?---It generally relates to his back condition.

In respect to the back, you've been giving him certificates of total incapacity for work, what is his capacity by reason of the back injury and the back injury alone?---I feel the back injury is the major contributing factor to his work - his inability to work.

So from the back injury alone, do you see him as having a capacity for work? ---As I've said, it is possible that if we could find something that was suitable in terms of his skills, his language ability, something where he could move around on an as arranged basis and where he didn't have to do any lifting, that he may be able to do some work - perhaps more on a part-time basis - but I can't realistically think of what occupation would allow him to do all ... those sorts of things.

You say 'move around'. I take it you mean a freedom to sit and stand?---Sit and stand and be able to stretch and move around and try and relieve stiffness in the back.

He would need to have some form of break or rotation offered to him?---He would at least have to have a break, but he also needs to have the ability, whatever job it is, that if the pain is bad at the time, that he can actually move around to relieve the pain at the time, not waiting until he has break time.

You mentioned there the probability, I think, or you said the suggestion of part-time employment. When you say 'part-time', are you able to put an estimate on hours?---Again, I would be looking - if he was able to do something like that - at commencing at a low number of hours, possibly two hours a day for three to four days a week, but very much on a trial basis. Again, that would be subject to finding something that would be suitable.

If there was a job that involved him to stand for long periods, would that be something that you see as suitable?---I think, again, that would be a problem. I think he would be too uncomfortable on standing, and I think there is a real risk that if he was doing that for any length of time that he would actually deteriorate.

The reverse of that: if there was a job that required him to sit for extended period[s]?---The same applies.

34 While an attack was made on the credit of Dr Macaulay (in the hearing before Judge Anderson senior counsel for the appellants described Dr Macaulay as an 'advocate' for his patient who was therefore not objective), this attack was unwarranted. We agree with Judge Anderson when he said:

The conclusion that Dr Macaulay was not objective is unwarranted and is inconsistent with the fact that Dr Macaulay supported the [respondent's] decision to continue his heavy employment for more than two years after he was injured and had consistently expressed the view that the [respondent] should be encouraged to return to the workforce.[27]

35 Dr Macaulay saw the respondent before the incident. He has also seen the respondent over the years since the incident. Dr Macaulay's opinion is in substance that the respondent is unfit for his pre-injury employment and, realistically, anything other than very light employment on a part-time basis where the respondent has the ability to move around freely, change his position and stretch to try and relieve stiffness and pain in his back. Further, while Dr Macaulay raised the issue of a 'psychological effect' in the medical reports[28] provided by him, it is apparent from Dr Macaulay's viva voce evidence that the respondent's back injury is the only significant factor that explained the respondent's inability to work. While Dr Macaulay gave some evidence in cross-examination concerning psychological issues,[29] it was his evidence that the back injury alone was the major contributing factor to the respondent's inability to work.

36 Putting to one side the 40% requirement in s 134AB(38)(e), if Dr Macaulay was the only medical witness in this case, then one would readily conclude that the loss of earning capacity consequences sustained by the respondent as a result of the back injury he sustained in the incident satisfies the 'at least very considerable' test referred to in s 134AB(38)(c). Further, taking into account the oral evidence of Dr Macaulay, the application of paragraphs (h) and (i) of s 134AB(38) would not alter this outcome. However, both parties tendered reports from surgeons and the appellants tendered reports from psychiatrists, a consultant occupational physician (Dr P Mutton) and a certificate of opinion from a medical panel. All of these documents need to be considered.

37 The respondent tendered a report from Mr Razif,[30] an orthopaedic surgeon. Mr Razif saw the respondent on referral from Dr Macaulay on 5 December 2005. Mr Razif expressed the opinion:

Mr Mohamed Abdulle ... slipped and fell injuring his back in June 2003. He sustained a lower lumbar disc disruption which appeared consistent with the stated cause.

One would have expected however that the disrupted disc at L4/5 and L5/1 levels as indicated on the CT scan would, with time, settle with appropriate conservative treatment. However in the case of Mr Abdulle his symptom persisted although it was slowly improving with conservative treatment.

He showed signs of anxiety which one would expect with any chronic condition which in turn would influence his response to his ongoing chronic pain as well as his treatment.

38 The respondent also tendered a report from Mr Michael Fogarty,[31] an orthopaedic surgeon who saw the respondent on 21 July 2008. Mr Fogarty expressed his opinion as follows:

1. Diagnosis of your client's injuries. L4/5 and lumbosacral degenerative disc disease with disc protrusion causing low back and left leg pain but without nerve root pressure.

2. My prognosis of your client's injuries is that he is likely to continue having symptoms and will not be able to engage in heavy work.

3. This worker's current capacity for pre-injury work is nil.

4. Your client's current capacity for work generally is that he may be able to do light, bench type work not involving lifting of greater than five kilograms and not standing for long periods.

5. Your client's capacity to undertake work in future is very limited and the likelihood of his obtaining work is very small. He obviously has a limitation in his education and language skills, thus limiting his opportunity for lighter work not involving any heavy lifting.

39 The respondent was seen by Mr Brendan Dooley, an orthopaedic surgeon engaged on behalf of the appellants. Mr Dooley's opinion[32] was that the respondent sustained a low back injury with aggravation of disc degenerative changes in the lumbosacral spine with the onset of referred pain to his legs. Mr Dooley described the prognosis for recovery and return to work at the time he saw the respondent (1 March 2007) as 'probably poor'. However, Mr Dooley also noted evidence of a functional overlay.

40 Mr Ian Jones, an orthopaedic surgeon, saw the respondent on behalf of the appellants on 12 September 2007 and 20 February 2008. Mr Jones did not question the existence of an organic component to the respondent's injury but described what he said were voluntary and feigned restrictions in various spinal and leg movements. Mr Jones thought the respondent was suffering from a marked functional overlay with evidence of exaggeration. Nevertheless, at least at the time of the first examination, Mr Jones did not believe that the respondent had the capacity to undertake his pre-injury employment.

41 The respondent was seen by Mr Peter Scott on 7 May 2008. Mr Scott was a consultant surgeon engaged by the appellants. In his opinion, the respondent was fit for light work only (that is, work which does not involve prolonged standing, prolonged sitting, repetitive bending, twisting or turning, or heavy lifting) because of his back injury. Mr Scott described the diagnosis as 'one of chronic pain syndrome, with aggravation of degenerative change in the lumbosacral spine, intermittent lumbosacral nerve root irritation, and associated apparent right rotator cuff lesion'. To some extent the effects of the back injury and the right shoulder injury are considered compendiously by Mr Scott. A number of the opinions in his reports do not seek to disentangle the effects of the injury sustained in June 2003 from the injury sustained in November 2004.

42 The respondent was examined on behalf of the appellants by a consultant occupational physician, Dr Phillip Mutton, on 31 October 2006. Dr Mutton acknowledged there were language difficulties. Inconsistent findings were said to be obtained upon clinical examination. Nevertheless, Dr Mutton expressed the view that there was 'cause based on MRI for Mr Abdulle to suffer a degree of low back pain ... [with] some referral into the lower limbs'. Dr Mutton expressed the opinion:

Mr Abdulle suffers from chronic low back pain. He has evidence on MRI of L5-S1 disc pathology by way of disc prolapse and annular fissure. There was also evidence of facet joint changes at L4-5.

43 While Dr Mutton thought that the respondent's complaints and symptoms appeared to be excessive, he also expressed the opinion that 'on the basis of presentation and history, Mr Abdulle is unfit for all work'. However, 'on the basis of imaging and clinical findings', Dr Mutton expected that the respondent would be able to undertake 'light to moderate work with a weight limitation of ten kilograms where he can sit and stand and interchange'.

44 The appellants tendered a medical panel certificate of opinion signed by Dr Anthony Gallichio as the presiding member. The certificate answered a question concerning the respondent's degree of permanent whole person impairment and whether the respondent had 'an accepted injury' which had resulted in a 'total loss injury' as referred to in the table in s 98E(1) of the Act. The mere answers to these questions (absent any history and reference to clinical examinations and findings) does not, as the appellants agree, assist in the resolution of this appeal.

45 The respondent was seen, at the request of the appellants, by three consultant psychiatrists as follows:

46 Dr Botvinik stated in his report:[33]

The worker presented to me with the symptoms of emotional overlay. He was not interested in my assessment, was totally indifferent, evasive and lacking cooperation, as I mentioned above.

...

From a psychiatric point of view the worker presented to me as a very angry, negative, emotional, frustrated person with symptoms of mild depression and with symptoms of a chronic pain syndrome which is related to his physical injury sustained at his workplace, according to the worker.

From a psychiatric point of view the worker is not totally and permanently incapacitated for employment. I believe that from a psychiatric point of view he should be able to perform suitable employment of a light nature on a gradual resumption basis but this is, as I stated above, from a pure psychiatric point of view if you totally take aside and totally ignore the severity of his physical injury and pain.

47 Dr Kornan[34] expressed the opinion that the respondent presented with 'an adjustment disorder with mixed disturbances of emotion, and conduct (gross illness behaviour)'. However, Dr Kornan also expressed the view that from a psychiatric viewpoint the respondent was fit to work and that it was not his psychiatric state which prevented him from working.

48 Dr Douglas expressed the view[35] that the respondent 'does not have a diagnosable psychiatric illness'. However, Dr Douglas was of the opinion that the respondent had some symptoms of depression or sadness and irritability. Dr Douglas concluded:

He continues to suffer back pain.

Any psychiatric symptoms have resolved to the point where they do not cause any incapacity for work or the need for treatment services.

His capacity for work will be restricted by his back and shoulder pain. It will not be restricted by any psychiatric symptoms. From a psychiatric point of view he is fit for work. He has some mild symptoms of depression or sadness and irritability. However these are not sufficient to prevent him working.

49 In paragraph 12 of his reasons for judgment, Judge Anderson stated that the conclusions of the appellants' medical practitioners appeared to lack objectivity. It is unnecessary for us to delve deeply into this issue, having regard to our task of determining for ourselves whether or not the respondent has suffered a serious injury. However, having read the reports of Dr Mutton, Dr Botvinik, Dr Kornan, Mr Dooley, Dr Douglas and Mr Scott, we see nothing which would justify a conclusion that their opinions lacked objectivity. While it appears that Mr Jones may have been precipitate in forming the conclusion that the plaintiff 'feigned' certain restrictions of movement, we would not for that reason discard his opinion. In our view, each of the reports provided by the appellants' medical practitioners must be considered and given the weight appropriate to them in all the circumstances.

50 Much of the medical evidence in this case suffers from the difficulty that the relevant witnesses have not sought to differentiate between the effects of the back injury on the one hand and the effects of conditions which must be ignored (not taken into account) for present purposes (for example, psychological consequences and the shoulder injury). The only medical witness to specifically address this aspect is Dr Macaulay, whose evidence we have referred to above. The evidence of Dr Macaulay is internally consistent, consistent with the respondent's evidence and not inherently unlikely. Further, he is the medical practitioner who has seen the respondent on many more occasions than each of the medico-legal witnesses who conducted examinations in this case. Notwithstanding what might be described as an obvious lack of cooperation by the respondent in some of the examinations performed on behalf of the appellants, as we have said above, no significant damage was done to the respondent's credit in cross-examination. Further, we have not reached any adverse conclusions about the respondent's credit and accept that within the confines of the language and cultural barriers of this case, he attempted to give an accurate account of his condition and the effects it has had on him.

51 During the hearing of the appeal, the appellants sought to make much of the findings on examination made by the medical practitioners and observations made of the respondent during the course of consultations. For example, Dr Mutton recorded:

On lying supine, straight leg raising was negligible. There was decreased sensation in the left lower limb not meeting any peripheral nerve or dermatome distribution. ...

Mr Abdulle was seen to sit upright with his legs extended whilst sitting on the edge of the examination couch which contradicted his negligible straight leg raising.

On standing Mr Abdulle indicated that he had pain with laterally flexing and he could barely touch the knees, left and right. He would not undertake a forward flex or backward extension due to pain.

On examination the patient presented walking unaided. On formal examination he feigned a restriction of spinal movement voluntarily limiting his range of flexion to one third of normal or 30 degrees. On casual observation the patient was noted to have normal mobility in his lumbar spine both getting on and off the examination couch. On formal testing lateral flexion was not possible beyond the zero position and extension was similarly limited.

There was no hint of such severe restrictions when observed casually.

Neurological assessment revealed an apparent diminution of sensation to pin prick affecting the skin over the whole of the left leg to the level of his umbilicus on the left. Sensation on the right was said to be normal. Reflexes at knee and ankle joint level were present and equal.

Formal straight leg raising test achieved approximately 30 degrees on both left and right sides with the patient complaining of disabling back pain with this manoeuvre. On casual observation it was noted he was able to sit with his knees fully extended and his hips flexed to 90 degrees with no complaint of either back or leg pain.

Attempts at assessing power in his left leg were accompanied by a voluntary loss of ability to actively flex or extend his great toe. This was inconsistent with casual observation and his ability to stand on his toes equally on both left and right sides.

53 To like effect, the appellants relied upon observations recorded by Mr Razif,[36] Mr Fogarty,[37] Mr Dooley,[38] Mr Jones on the second occasion he saw the respondent[39] and Mr Scott.[40] While it is fair to say that these doctors recorded observations that were not entirely consistent with the way in which the respondent sought to portray himself to the appellants' doctors, only Mr Jones described his observations in terms of 'feigning'. The appellants submitted that the respondent's presentation varied depending upon who was conducting the examination. They also pointed to the observations of Dr Mutton and Mr Jones that he appeared to move relatively freely until he was asked to perform particular movements. There was no cross-examination of the respondent or Dr Macaulay as to these observations made by the appellants' medical practitioners.[41] Notwithstanding the failure to 'put' such matters, the evidence of those observations and any inference to be drawn from them remain matters which we have taken into account.

54 In assessing this case, it is necessary to give proper consideration to cultural and language barriers. Additionally, it is proper to have regard to the very real prospect that a person in the position of the respondent might experience significant levels of anxiety in being required to attend for examination by medical practitioners engaged on behalf of 'the insurer'. If one doubted the correctness of this proposition, one only has to look at the report of Dr Botvinik in this case. While it may be said that the respondent did not entirely do justice to himself in all of the medical examinations arranged on behalf of the appellants, nothing that is recorded in the appellants' reports causes us to draw any unfavourable conclusion against the respondent so far as his veracity is concerned. Further, while the various medical practitioners recorded the observations and findings upon which the appellants rely, ultimately they expressed the opinions concerning the respondent's capacity for work, to which we have already referred. There was a consistent view expressed in almost all the medical reports that the respondent's injury had produced chronic pain over a protracted period.

55 This is not a case in which there is a need to unravel psychological or psychiatric consequences from physically disabling consequences of an injury. We conclude, considering all the evidence, that on the probabilities, the respondent suffered a physically-based impairment which satisfies the statutory test. No identification of the quantum of any supervening psychological overlay was required. The evidence of Dr Macaulay (to which we have already referred) persuasively established that the physical consequences of the injury for the respondent constituted a serious injury[42]. Moreover the appellants' psychiatrists in effect, disavowed the notion of any significant psychiatric illness or condition having been sustained by the respondent. The preponderance of the evidence in this case discloses that the respondent sustained a physical injury to his back as a result of the incident and that, as a result of that physical injury, the respondent is largely (if not totally) precluded from all forms of employment for which he is reasonably suited. The appellants drew attention to every occasion when the issue of psychological and/or psychiatric consequences had been raised in a medical report[43] but an analysis of all of this evidence discloses that the respondent did not sustain a psychological or psychiatric injury or illness (consequences) which has prevented (or is preventing) him from engaging in suitable employment or that it is a factor which materially contributed to that disability.

56 While there is the theoretical possibility of a trial of light employment of the kind contemplated by Dr Macaulay, in reality the evidence discloses that the respondent is and will remain unfit for all employment for which he might reasonably have been suited. The reports of WorkFocus Australia and Farquhar Associates do not gainsay this proposition. The identification of specific jobs in what is said to be a 'growth industry'[44] does not qualify the conclusion that the respondent is unfit for employment as described by Dr Macaulay.

57 Similarly, the identification of positions described as 'machine operator', 'assembler' and 'usher' with the various tasks associated with those positions[45] is of little assistance in the resolution of the respondent's application. Properly understood, such parts of the evidence of Dr Macaulay that related to the respondent's capacity for suitable employment (which we have already said that we accept for the reasons given above) does not lead to a conclusion that the respondent could successfully perform any of the jobs identified on a full-time or realistic part-time basis. It is to be remembered that with all the caveats imposed by Dr Macaulay as to abilities to have breaks and move around and change position as required, Dr Macaulay supposed that it might be possible 'very much on a trial basis' to look at a position commencing two hours per day for three to four days a week. Dr Macaulay's evidence does not suggest the possibility of the respondent realistically being able to engage in employment of the kind described in the WorkFocus and Farquhar reports. To the extent that the Farquhar report might suggest otherwise, we would reject it as being inherently improbable.

The requirements of s 134AB(38)(e) - (g)

58 A Court is not to grant leave under sub-s 134AB(16)(b) on the basis that a worker has established the loss of earning capacity required by s 134AB(38)(b) unless the worker has a loss of earning capacity of 40% or more and will, after the date of hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40% or more (as measured and determined in accordance with paragraphs (f) and (g) of s 134AB(38)).

59 The parties agree that the respondent's without injury earning capacity is $1,125.19 per week.[46] There is no suggestion that the respondent's condition is likely to improve. In our view, while one can talk about theoretical trials of returning to light duties two hours a day for three to four days a week, the reality is that the respondent's capacity for suitable employment[47] has all but been destroyed. Like Judge Anderson, we also conclude that the respondent has established a loss of earning capacity of more than the 40% as required by s 134AB(38)(e). While whatever cultural or language barriers exist in this case may have been the cause for the appellants' medical experts to find abnormal illness behaviour, we accept Dr Macaulay's evidence that the respondent was not a man who lacked motivation and was not one who exaggerated his illness (either to Dr Macaulay, or before Judge Anderson).

60 It follows from what we have said above that the respondent has established that when judged by comparison with other cases in the range of possible impairments, the loss of earning capacity consequences of the respondent's back injury can fairly be described as more than significant or marked and at least very considerable.[48] Further, the respondent has established the 40% loss of earning capacity required to be established by s 134AB(38)(e). These conclusions are the same as those made by Judge Anderson. Having made those conclusions, his Honour said:[49]

The conclusion I have reached on the issue of loss of earning capacity should, as a matter of statutory interpretation, entitle the plaintiff to also have leave to commence proceedings for pain and suffering damages. This question has not yet been authoritatively determined and it is therefore appropriate to briefly consider the evidence.

61 Judge Anderson is undoubtedly correct in his conclusion concerning the matter of statutory interpretation to which his Honour refers. From the text of s 134AB(38)(b) and (c), it is apparent that the legislature, in enacting s 134AB, sought in part to codify the test for 'serious injury' enunciated by the majority in Humphries v Poljak.[50] In that case, the Full Court said that to qualify for the description of 'serious injury', the consequences of the injury must be serious to the particular applicant. The majority said:[51]

Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as 'very considerable' and certainly more than 'significant' or 'marked'?

62 Following the Full Court's decision in Humphries v Poljak, and up to the enactment of s 134AB, it has never been doubted that when an applicant establishes consequences that relate either to pecuniary disadvantage on the one hand or pain and suffering on the other hand, then (assuming the necessary aspect of 'long term' or permanence is established) the applicant is entitled to bring a proceeding for both pain and suffering damages and pecuniary loss damages. However, in enacting s 134AB, in order for loss of earning capacity consequences to be considered serious for the purposes of that section, the 40% requirement referred to in s 134AB(38)(e) was added as an additional requirement. At the same time, s 134AB(17) was enacted. That section provides:

For the purposes of paragraphs (a) and (b) of sub-section (16), a worker who satisfies sub-paragraph (i) of sub-section (38)(b) but not sub-paragraph (ii) of that sub-section, is entitled to bring proceedings in accordance with sub-section (16)(b) for the recovery of damages for pain and suffering only.

In other words, an applicant who satisfied only the pain and suffering aspect of the test can only get leave to bring a claim for pain and suffering damages.

63 There is no analogue of s 134AB(17) limiting an applicant who satisfies the loss of earning capacity requirements of s 134AB, but not the pain and suffering requirements, from claiming pain and suffering damages. The appellants eventually conceded that this was so. A plain reading of s 134AB permits a plaintiff who satisfies the loss of earning capacity requirements of that section to claim damages for both loss of earning capacity and pain and suffering. The history of s 134AB confirms this proposition. If there was any further reason for doubt, this is dispelled in the Second Reading Speech relating to s 134AB.[52] In the Second Reading Speech, the Minister for WorkCover said:[53]

The Bill introduces a new concept in relation to the worker having a limited entitlement to bring proceedings if, on the serious injury application, the Court is not satisfied the worker has met both the pain and suffering and loss of earning capacity thresholds. If a worker satisfies the pain and suffering threshold but not the loss of earning capacity threshold, then the worker will be limited to an entitlement to bring common law proceedings for the recovery of pain and suffering damages only. If, however, the worker satisfies the economic loss threshold, the worker will be entitled to bring proceedings for pain and suffering damages and economic loss damages.

The necessity for a worker to satisfy either the pain and suffering or the economic loss threshold and the importance of the decision itself creates a need for detailed reasons to be given by a Court in respect of each category of the application partly to determine if there is a right of appeal.

64 The conclusions we have reached entitle the respondent to leave pursuant to s 134AB(16)(b) to bring proceedings in accordance with s 134AB for the recovery of damages - being both pain and suffering damages and pecuniary loss damages as therein defined. However, if it was necessary to consider whether the respondent has established the pain and suffering required by s 134AB(38), then we would conclude that he has done so on the basis that the pain and restrictions that have so seriously affected his earning capacity can also fairly be described as being at least very considerable in pain and suffering terms when making the necessary comparison with other cases in the range of possible impairments.

65 For the reasons given above, the respondent has affirmatively satisfied us that he has sustained a serious injury within the meaning of s 134AB, entitling him to leave to commence a proceeding. It follows that in our view the appeal must be dismissed.

[1] Cf Church v Echuca Regional Health [2008] VSCA 153, [7] (Ashley JA).

[2] For example, Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; (2005) 14 VR 622; Victoria v Rattray [2006] VSCA 145; Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; (2007) 15 VR 649; Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124; Church v Echuca Regional Health [2008] VSCA 153; Jayatilake v Toyota Motor Corporation Australia Limited [2008] VSCA 167; Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 and Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143.

[3] With whom Neave JA and Cavanough AJA agreed.

[5] [2008] VSCA 153, [104]-[113].

[6] In the appeal before us, neither party sought to adduce further evidence.

[10] Not the least of which appeared to us to be that the submission was contrary to the basis upon which this case proceeded below. The respondent and Dr Macaulay had not been cross-examined about such matters. Further, the submission was contrary to authority in this Court (namely Smith v Transport Accident Commission [2005] VSCA 251; (2005) 12 VR 277, 284 [30]). We have no experience of a personal injury case or serious injury application in which it has been suggested that it is for the plaintiff to give evidence in chief dealing with observations made by a defendant's medical practitioner which may be inconsistent with the plaintiff's account of his or her injuries.

[14] White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806.

[15] Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840; Reid v Kerr (1974) 9 SASR 367, [373]-[374] (Wells J).

[16] See, for example, Sabanovic v Atco ControlsPty Ltd [2009] VSCA 143, [21]-[24]

[17] Bulstrode v Trimble (supra 849); R v McDowell [1997] 1 VR 473, 482.

[18] See paragraph 4 of the summary of facts and issues dated 5 March 2009.

[19] See paragraph 4 of the summary of facts and issues dated 5 March 2009.

[20] See paragraph 14 of the respondent's affidavit sworn 28 May 2007.

[21] In his affidavit sworn 28 May 2007.

[23] Judgment of Judge Anderson, [17].

[24] According to the timer on the DVD, these occasions were at 10.58.46 and 14.08.26.

[25] Judgment of Judge Anderson, [18].

[27] Judgment of Judge Anderson, [29].

[28] See for example p 1 of Dr Macaulay's report dated 31 July 2006, p 2 of the same report, p 2 of his report dated 4 July 2007 and p 1 of his report dated 11 June 2008.

[29] See, for example, T46.29, T53.31 and T56.28-57.2.

[32] As disclosed in his report of 7 March 2007.

[36] Page 1 of his report dated 28 September 2006.

[37] Page 2 of his report dated 28 July 2008.

[38] Page 2 of his report dated 7 March 2007.

[39] Page 2 of Mr Jones' report dated 21 February 2008.

[40] Page 3 of his report dated 11 May 2008 and p 2 of his report dated 30 July 2008.

[41] Although we note the limited cross-examination of the respondent at T 83.23-85.5.

[42] Shock Records Pty Ltd & Anor v Matthew James Jones [2006] VSCA 180, [69]-[70]; Zivolic v Hella Australia Pty Ltd [2007] VSCA 142, [19]-[20]; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 [22].

[43] See for example T46.29, T53.31, T56.27 - 57.2, the reports of Dr Macaulay dated 31 July 2006, 4 July 2007 and 11 June 2008, pp 2 and 3 of the report of Mr Razif, the WorkCover claim form at AB D18, pp 4, 7 and 8 of the report of Dr Mutton, pp 3 and 4 of the report of Dr Botvinik, pp 3 and 5 of the report of Dr Kornan, p 2 of the report of Mr Dooley, pp 1 and 2 of the report of Mr Jones dated 17 September 2007, p 5 of the report of Dr Douglas, p 4 of the report of Mr Scott dated 11 May 2008 and p 1 of his supplementary report dated 26 May 2008.

[44] See p 9 of the report from Farquhar Associates.

[45] See Appendix 1 of the 130 week vocational assessment report provided by WorkFocus.

[46] Judgment of Judge Anderson, [33].

[47] Cf the definition of 'suitable employment' in s 5 of the Act and see further s 134AB(38)(g).

[49] Judgment of Judge Anderson, [39].

[50] [1992] VicRp 58; [1992] 2 VR 129, 140. See also the Second Reading Speech in relation to s 134AB in which the Minister for WorkCover said (Legislative Assembly Hansard Volume 446 at p 1002):

The narrative serious injury test contained in the Bill has been codified to broadly reflect the test established by the Full Court in Humphries v Poljak ... as well as introducing a new loss of earning capacity consequence with a threshold of 40%.

[52] Section 134AB was inserted into the Act by s 18 of the Accident Compensation (Common Law and Benefits) Act 2000.

[53] Legislative Assembly Hansard 13 April 2000 (Volume 446, p 1005).

Compensation Act 1985

At a glance

Court

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Judgment (146 paragraphs)

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Legislation Cited (1)

Cases Cited (5)