Allsmanti Pty Ltd v Ernikiolis [2007] VSCA 17

Court of Appeal (Vic)|2007-02-07|Before: MAXWELL P and ASHLEY and NEAVE JJA

Accident Compensation - "Serious injury" - Whether trial judge had erred by not deciding application in reliance on doctors who had viewed surveillance films - Whether judge had speculated as to what evidence would have been given by other doctors had they viewed the films - Whether judge should have drawn inference adverse to respondent because her solicitors had not sought opinion from doctors upon whose opinions she relied as to the significance of the films, and then adduced pertinent evidence from those doctors - Whether judge's reasons sufficiently explained his conclusions - No error revealed - Court not persuaded that the proper conclusions were other than those reached by the trial judge

2 The respondent, Panagiota Ernikiolis, sought leave to commence a proceeding pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 ("the Act"). She claimed that she had sustained permanent serious impairment of a body function[1] or, alternatively, a severe mental or behavioural disturbance or disorder.

3 The application was heard over three days in March 2006. The respondent gave viva voce evidence, as did a treating neurologist, Dr Gordon. Otherwise a large body of documents, including many medical reports, went into evidence.

4 The judge found that the respondent had suffered compensable injury to her right wrist on or after 20 October 1999. That finding is not challenged on this appeal.

5 His Honour further found that the injury was "serious injury". He did so although he concluded that the respondent had consciously exaggerated her symptoms to many examining doctors, and although he found that there were inconsistencies between the respondent's evidence and surveillance films.

6 In the event, his Honour granted the application. Now the employer appeals, challenging the conclusion that any injury suffered by the respondent constituted serious injury as defined. Section 134AD of the Act applies to the hearing of the appeal. The operation of that section was analysed by Phillips, J.A., for the Court, in Barwon Spinners Pty Ltd and Ors v Podolak.[2] That analysis, which has been often applied, equally guides consideration of this case.

The grounds of appeal

7 The grounds of appeal, some of which seem to reflect indignation that the learned trial judge should have found in favour of the respondent in the face of the "surveillance film" and in the face of the "deliberately false picture" given by the respondent, are as follows:

"1. The learned trial judge erred by failing to have any or proper regard to the evidence of those doctors who had seen the surveillance film of the respondent.

2. Having apparently disregarded the evidence of those doctors who had not seen the surveillance film of the respondent, the learned trial judge's conclusions as to the extent and consequences of the respondent's injury were not open on the evidence alternatively were against the evidence and the weight of the evidence.

3. Alternatively to 2, the learned trial judge erred by having regard to and acting upon, or speculating as to, the opinions of doctors to whom, the learned trial judge had found, the respondent had given a deliberately false picture and who had not seen the surveillance film of the respondent.

4. The learned trial judge erred by failing to give adequate reasons for his conclusion that the respondent had an organic injury and his conclusions as to the extent and consequences of that injury.

5. The learned trial judge erred by failing to draw an inference adverse to the respondent from the unexplained failure by her to call evidence from doctors that were treating her, or that had been retained by her, that took into account the activities shown of her in the surveillance film, which film was provided to the respondent 13 months prior to the hearing.

6. The learned trial judge's conclusion that the consequences as found by him for the respondent of her injury were serious to her within the meaning of section 134AB(38)(c) of the Act, was against the evidence and the weight of the evidence, alternatively involved speculation.

7. The learned trial judge's conclusion that the respondent had had satisfied the tests set out in section 134AB(38)(e) to (g), was against the evidence and the weight of the evidence, alternatively involved speculation."

The Judge's reasons

8 In light of the criticisms made of the learned trial judge's reasoning, and consistently with this Court's task as it was explained in Barwon Spinners and in Calco Timbers, I go immediately to his Honour's detailed reasons for judgment. I need make no detailed reference to his conclusion concerning the controversy, alive at trial, whether the respondent had established that she had sustained compensable injury on or after 20 October 1999.

9 His Honour noted that the respondent was aged 49. Born in Greece, she had migrated to Australia at age 18, and married the following year. She had begun employment with the appellant in 1997, working as a cleaner in the food court at the Chadstone Shopping Centre. In the preceding 20 years she had been successively employed in three jobs. Her work with the appellant had involved the stacking of cutlery and crockery onto trays and then returning them to the appropriate food outlets, also mopping, sweeping and other cleaning duties. Her account of her duties, thus summarized, was unchallenged at trial.

10 The respondent, his Honour recorded, gave evidence that in about November 1999 she had the onset of pain and tightness in her right arm, which went down to her right hand, together with numbness of the fingers of the right hand. The symptoms gradually worsened and her work affected their intensity. Plainly, his Honour accepted that evidence.

11 Next, the reasons record, and it was in truth uncontroversial, that the respondent first consulted her general practitioner in April 2000 and that he, suspecting carpal tunnel syndrome, arranged for a nerve conduction study. It was also uncontroversial, the study confirming his suspicions, that he referred the respondent for surgery, which was eventually undertaken in February 2001; and which the surgeon described as "straightforward". The respondent, I interpolate, had remained at work, but on her account had worked with difficulty, up until the time when surgery was performed.

12 His Honour's reasons then record that -

• The respondent was six weeks off work after surgery. She thereafter had problems both with her work and with her employer.

• In July 2001 the respondent was referred to a neurologist, Dr Bower. He reported that further nerve conduction studies showed "severe right median[3] neuropathy of the wrist", and also a long-standing right C6 radiculopathy.

• The respondent's employment was terminated on 9 October 2001, when her employer refused to accept her light duties certificate and insisted that she provide a clearance certificate. Thereafter she had been off work up to the time of trial.

13 I pause to mention two matters. First, the right C6 radiculopathy, mentioned by Dr Bower and other doctors, was not relied upon by the respondent. Second, it was not suggested that the respondent had engaged in any employment subsequent to 9 October 2001.

14 Returning to the narrative, his Honour noted that Dr Bower had referred the respondent to Dr Victor Gordon, the neurologist who gave evidence at the trial, for a second opinion; and that Dr Gordon had reported on a number of occasions. The essence of that doctor's opinion, set out in his report of 12 January 2006, was that the respondent suffered a severe medial neuropathy of the wrist, complicated by complex regional pain syndrome (which he also described as reflex sympathetic dystrophy) and an abnormal dystonic (or clawed) posture of the hand. The features of the complicating problem were pain, vasomotor and sudomotor alterations, tremor and flexion contraction deformities. Vasomotor alterations described changes in the colour of blood vessels. Sudomotor alterations described abnormal sweating in the hand. The doctor had noted atrophy of the skin and nails of the hand.

15 His Honour then found that the respondent had suffered compensable injury - physiological changes leading to the symptoms of carpal tunnel syndrome.[4] That led on to him addressing the question whether the respondent had established that the injury was serious in its consequences for her. He considered that question at very considerable length, recognizing at the outset that it would "involve careful consideration of the [respondent's] credibility - which was the subject of sustained criticism by [appellant's counsel]". His Honour first considered credibility in the course of his analysis of the opinions of many doctors who had assessed the respondent - a course which was both understandable and logical in light of the appellant's submission that the respondent had exaggerated complaints to medical practitioners.

16 At an early stage in his analysis of the medical evidence, the judge referred to two pieces of surveillance film relied upon by the appellant. The films had been shown to Dr Gordon in the course of the trial. This is what his Honour said about them:

"35. That brings me to film taken of the plaintiff in May 2004 and January 2005. Both pieces of film are very brief - under a minute in each case. The film taken in May 2004 shows the plaintiff entering a bank. On entering, she pushes her sunglasses onto the top of her head with her right hand. She then approaches a counter and appears to be making a withdrawal of cash. Then comes the most significant part of the film. As she is leaving the bank, she uses her right hand to place what appears to be a bank book and a pen into an external pocket of her jacket level with her waist. The pocket has a flap which she has to contend with. There is no hesitation or apparent difficulty in the performance of this task. As I say, she has to grasp the bank book and pen sufficiently firmly to push them into the pocket, and then re-adjust the pocket flap. She folds the cash in half, using only her right hand - that is to say, by pressing down on the middle of the bundle of the cash with her thumb - then places the cash, with her right hand, into her handbag, which is held in her left hand. Again this is done without hesitation or apparent difficulty. If an observer had been told 'this woman is injured, you are about to see a piece of film, see if you can spot the part of her body which is injured', it would never occur to the observer that the plaintiff had an injured right hand.

36. The next piece of film shows the plaintiff pushing a shopping trolley a short distance, using both hands. The trolley is not full: It contains, perhaps, two or three plastic bags only partly filled with groceries. The plaintiff is in the company of another woman, apparently her daughter. Using her right hand, she lifts two of the plastic bags, containing grocery items, from the trolley and hands them to her daughter. This footage is of less significance, in my opinion. Dr Gordon, who saw it several times, said she picked up the bags by using her hand as a hook, with her palm upwards, rather than taking hold of the bags, as one normally would do, with the palm downwards. Dr Gordon says this is consistent with weakness and/or limitation of movement in her thumb preventing her achieving a strong pincer movement with her thumb of sufficient power to grasp the bags in normal way."

17 I pause to make this comment upon the films, which I have watched a number of times. I consider that his Honour's conclusion concerning the second film, his understanding of which was assisted by the evidence of Dr Gordon, was well justified. With respect to the first film, however, I consider that his Honour's conclusion was unduly favourable to the appellant. It seemed to me that the respondent exhibited throughout a flexion deformity of at least her thumb.

18 His Honour noted in his reasons Dr Gordon's response to seeing the first film. The doctor had conceded that what was depicted was in marked contrast to the respondent's presentation to him. He could not say whether the exaggeration was conscious or unconscious. Whilst complex regional pain syndrome does vary, the respondent's use of her hand was much better than he would expect from a person suffering from that syndrome.

19 I pause for a moment to note two matters. First, the doctor was not squarely asked if he abandoned the diagnosis. Second, in re-examination he described clinical findings consistent with its presence.

20 Returning to the narrative, his Honour next considered the evidence of Dr Savas, the respondent's general practitioner. He noted the doctor's observation, in October 2002, that the respondent exhibited atrophy of the thenar muscles of her right hand; and added "... there is uncontradicted evidence of the wasting of those muscles, which is (apparently) a classic indication of medial nerve neuropathy". He noted also the doctor's opinion that the respondent's original carpal tunnel injury had been exaggerated by a concurrent sympathetic dystrophy, that the respondent now had a "claw hand deformity," and that her prognosis was guarded and unlikely to improve in the foreseeable future.

21 The judge then made reference to the report of Dr Warren Kemp, a rheumatologist, who had examined rhe respondent once, in August 2002. That doctor had noticed the muscle wasting to which I referred a moment ago, fixed flexion of the right thumb, limited movement of joints of the hand, and a glove-like sensory disturbance which indicated functional amplification of symptoms. The doctor having seen the respondent only once, and his report being old, his Honour understandably did not find it to be of much assistance.

22 His Honour then referred to the report of a neurologist, Dr Sedal, who had examined the respondent only once, on behalf of the appellant, in February 2003. He noted that the report was relied upon by the appellant only to show exaggerated presentation by the respondent. The respondent had presented to that doctor with a flexion deformity of the hand, general restriction of movement and non-specific sensory disturbance. The doctor had concluded that the respondent continued to have "symptoms and signs suggestive of medial nerve dysfunction", whilst suspecting that there was "a significant functional overlay".

23 His Honour then turned to the reports of Mr Stapleton, a hand surgeon, who had examined the respondent on the appellant's behalf in March 2003 and March 2005. His Honour recorded the circumstance that the doctor had advanced the opinion that carpal tunnel syndrome is unrelated to work - a proposition that counsel for the appellant had not invited him to accept. In that setting, his Honour observed that there was a real risk that Mr Stapleton's view had "infected other observations" which he had made. Mr Stapleton's observations, which led him to say that the respondent's presentation did "not make sense as far as the anatomy of the problem is concerned", and to express the conclusion that he saw "no evidence of complex regional pain syndrome" had been supplemented by viewing the films. They led him to say that "the videos ... certainly indicate that this lady's presentation is, to say at least, inconsistent".

24 Next, the learned judge considered the reports of Mr Flanc, a general and vascular surgeon, who had examined the respondent in October 2002 and October 2005. The appellant's counsel, he noted, relied upon the respondent's account to Mr Flanc as to the extent of her disabilities, and upon her presentation with a claw hand, as evidencing her exaggeration. The doctor, it should be said, initially opined that the respondent had suffered a right carpal tunnel syndrome, had possibly residual significant compression of the median nerve, and also exhibited features to support a significant degree of functional overlay. I will return to his Honour's consideration of Mr Flanc's reports a little later in these reasons.

25 His Honour next noted the report of Dr Blombery, a vascular physician who had examined the respondent in late 2004. She had presented with her right arm virtually immobilised. It exhibited a slight tremor. The wrist was splinted, and the hand was in a semi-flexed position. The patient reported changes in temperature and colour in her hand in association with pain. The doctor diagnosed complex regional pain syndrome type 1. It was not in debate, I interpolate, that this was a diagnosis of an organic, not a functional, illness. The doctor further opined that this condition was secondary to a carpal tunnel compression of the median nerve, and that the respondent's prognosis was poor.

26 The learned judge observed that the doctor's opinions were "called into question by the marked difference between the respondent's presentation to the doctor and her behaviour when filmed five months earlier". There could be no suggestion that his Honour failed to appreciate the difference between the respondent's presentation to the doctor and the apparent freedom with which she had used her right hand when filmed earlier on. It is implicit in what his Honour said that he treated the doctor's opinion, at least in terms of the severity of the diagnosed condition, with some reservations.

27 His Honour then returned to consideration of Mr Flanc's evidence, specifically the doctor's report arising out of his examination of the respondent on 31 October 2005. The doctor, at that time, was in receipt of Dr Blombery's report. The judge observed, shortly, that the degree of limitation of movement exhibited by the respondent to Mr Flanc was much greater than shown in the films, and greater than that which she had demonstrated in the witness box. His Honour understandably commented that "(t)here is something odd here".

28 This was but one instance of his Honour using his impression of the films to gainsay the reliability of examination findings - and so reflect upon the conclusions expressed by a medical witness. Mr Flanc's conclusions, it may be noted, were that the respondent's probable permanent loss of arm function was attributable mainly to non-organic factors - the residual carpal tunnel syndrome not being significant, and complex regional pain syndrome type 1, if present, being mild.

29 The learned judge then considered the evidence of the general surgeon Mr Karna. He had reported in May 2004 after examining the respondent on the appellant's behalf. At examination, the respondent had held her right hand in a clawed position. She complained of a non-anatomical numbness of the lower arm, and she could not make a pincer movement. This last finding, his Honour noted, was at odds with actions performed by the respondent in the first of the surveillance films.

30 The film having been shown to Mr Karna, he had commented that it re-affirmed his "clinical impression that her presentation realistically is being exaggerated". The same was his opinion, in essence, when contrasting his examination findings in March 2005 with the second surveillance film.

31 Then the learned judge considered the evidence of a surgeon, Mr Hadj, who had examined the respondent in October 2002[5] and in October 2005. On the second occasion, she had complained of pain along the length of her right arm, and had presented as being very restricted in use of her right arm, which was splinted. She had exhibited constant flexion of the thumb and fingers. His Honour noted that this presentation contrasted with the situation revealed by the second film.

32 Next, his Honour referred to the evidence of Mr Mangos, a general surgeon, who had examined the respondent at her solicitors' request in October 2005. That doctor had noted, as had others, "marked wasting in the thenar eminence of the right hand and the small muscles of the right hand also". His Honour added -

"I was told that the thenar eminence is at the base of the thumb and that wasting of this muscle mass is a classic sign of medial nerve damage."

33 Mr Mangos had opined that the respondent was suffering from "(i) chronic arm pain; (ii) persistent right carpal tunnel syndrome; (iii) radiculitis ...." The last-mentioned, his Honour noted again, was not relied upon by either party.

34 The learned judge then briefly mentioned the evidence of Mr Troy, the general surgeon who had examined the respondent July 2000 - that is, before her surgery. The doctor had not doubted that the respondent then had a genuine, work-related carpal tunnel syndrome.

35 Mr Battlay was the last of the general surgeons whose reports were considered by his Honour. That doctor had examined the respondent in January 2004. She had exhibited the claw deformity, lack of movement and alleged sensory change which was her common presentation. The doctor could give no physical explanation for her presentation. He thought that there was an hysterical component. He did not doubt the original diagnosis of carpal tunnel syndrome.

36 I need not dwell upon his Honour's consideration of the reports of Mr Moran, orthopaedic surgeon, and Dr Milton, occupational physician. Shortly, the respondent's presentation on examination by those doctors was consistent with her presentation on many other occasions.

37 That takes me to his Honour's analysis of the reports of no less than five psychiatrists. One, Dr Piperoglou, had been treating the respondent since August 2003. Each of the other four appeared to have seen her on one occasion only. With the exception of a Dr Shan, who opined that the respondent was "engaging in illness behaviour", all of them considered that the respondent was suffering from psychiatric illness. They variously described it as a "major depression" with "some hysterical (conversion) symptoms," an "adjustment disorder with features of anxiety and depression," a "chronic adjustment reaction", and an "adjustment disorder with mixed emotion, quite depressed and anxious". Of the psychiatrists, his Honour noted, only Dr Shan had seen (a report of) the first surveillance film.

38 Having reviewed the medical evidence, his Honour turned to analysis of the respondent's affidavit and viva voce evidence.

39 He said this, comparing part of an affidavit sworn by the respondent in August 2004 with what was shown by the first film:

"In my opinion there are many inconsistencies between the description of disability in this affidavit and the appearance of the [respondent] in the May 2004 video."

40 Then, having referred to parts of an affidavit sworn in March 2006 in which the respondent deposed that her condition had worsened since she swore her first affidavit, his Honour turned to her presentation at trial. This is what he said:

"103. I now come to the plaintiff's evidence at the hearing. She showed me her hand. It was held in a slightly clawed position, nowhere near the degree of clawing observed by most of the medical examiners. I could not detect much of a colour difference between the two hands. As I observed to counsel at the time, her thumb appeared almost to be dislocated. It had the appearance of being totally out of alignment. The plaintiff could not achieve full extension of any of her fingers of her right hand. She was asked to make a fist and was able to flex the fingers at the proximal and distal interphalangeal joints, but not at the metacarpo-phalangeal joints. She was able to touch her fingers and thumb together when requested to do so. She said: 'Dr Savas has given me a type of ball that I use to squeeze and exercise and he has also told me to use it as much as I can, so it doesn't become even weaker'. She said she can use a knife in her right hand 'if it's something soft', but not for 'a hard steak'. She said 'There will be times when I use my right hand but most of the time I use my left hand ... but there are times when I feel like cramping up, tightening up."

41 It will be immediately noted that his Honour not only saw and heard the respondent, but that he also inspected her hand and noted its apparent abnormality. That was a very considerable advantage by comparison with the position in which this Court is placed.

42 I turn now to his Honour's conclusions. Importantly, he said this:

"104. This is a tangled web. I am satisfied that the plaintiff has consciously exaggerated her symptoms to many of the examining doctors. Though this cannot in any way be condoned, I think it occurred in the following circumstances. The plaintiff has a genuine organic residual disability in her right hand, though it is not as severe as she suggests. I am also satisfied that she has CRPS 1 of mild to moderate severity. The plaintiff has limited education. She is an unskilled worker. She is in her late 40s. Her only hope of employment is in work involving the use of her hands, particularly her dominant (right) hand. When she is examined by doctors, she wants to convince them of what she genuinely believes to be true, namely that she has a disability in her dominant hand. To this end, she exaggerates her disability, fearing that the extent of her disability might not otherwise be appreciated.

105. I describe the case as a tangled web because I am satisfied that there is genuine organic disability, the assessment of which is complicated by conscious exaggeration and further complicated by secondary psychiatric factors, which must be stripped away. This is no easy task. It is almost impossible for me to speculate as to what the doctors might have said if there had been no conscious exaggeration and if they had seen the films. Then the psychological factors must be put aside, further complicating the task.

106. In many cases such a scenario would be fatal for a plaintiff. Yet in my consideration of this case I kept coming back to the stark reality that I am here considering a poorly educated, unskilled, middle-aged immigrant woman with poor English who has a real disability in her dominant right hand. I repeat, the disability is not as severe as she suggested to a number of the medical examiners, though it is not far removed from what was demonstrated in the courtroom, in my opinion. The disability markedly affects the strength and agility of the right hand and, due to its chronicity, no improvement can be expected in the foreseeable future. Further, I am satisfied that although the early signs of carpal tunnel syndrome were present, though quiescent, prior to 20 October 1999, it was the course of events since that date (including the plaintiff's employment since that date) which produced the very marked symptoms which brought her to surgery and to her current unhappy state."

43 Having got so far, his Honour then addressed the question whether the injury was serious in its loss of earning capacity and pain and suffering consequences. In the former connection he took into account the respondent's age, ethnicity, lack of education and skills, prior history of manual work and what he found was the real disability affecting her dominant right hand. He concluded that she was in substance unemployable and permanently so.

Submissions on the appeal

44 The gist of the appellant's case on the appeal was that -

• There was evidence that interference with the medial nerve had been improved by the carpal tunnel decompression surgery.

• The respondent had nonetheless presented to many doctors in a way that exaggerated any disability which she may have had.

• The surveillance film was inconsistent with her presentation to the doctors. Dr Gordon had conceded so much in viva voce evidence. Messrs Karna and Stapleton had expressed conclusions adverse to the respondent, observing, inter alia, that what they had seen was at odds with her presentation.

• The respondent's solicitors had been provided with the films in February 2005; but apparently they had not sent them to any of the doctors upon whose opinions the respondent relied; and they had provided no explanation for not doing so.

• The learned judge had said in his reasons that it was almost impossible to speculate what doctors might have said if the respondent had not consciously exaggerated her symptoms, and if they had seen the films.

• The evidence of the doctors who had seen the films was critical; but the judge had ignored their opinions, without explaining why he had done so. (see ground 1).

• There was no reliable evidence of the nature of the respondent's physical condition, and its extent, when once the evidence of the doctors who had not seen the films was put to one side. The judge must have engaged in impermissible speculation as to what those doctors would have said. (see grounds 2 and 3).

• The learned judge had not in his reasons identified the evidence which he accepted nor said why he had accepted it. His reasons were defective. (see ground 4).

• The judge should have inferred that, had they seen the films, the doctors relied upon by the respondent would not have assisted her case. (see ground 5).

• Once the evidence of the doctors who viewed the films was accepted, as it must have been, the injury could not have been found to be serious. (see ground 6).

• There was no reliable evidence upon which a finding of the requisite extent of loss of earning capacity could have been made. Further, the learned judge did not make the necessary comparison of figures.[6]

45 For the respondent, counsel submitted, inter alia, that -

• There was plenty of evidence to support the judge's conclusion of the persistence of genuine organic disability of the respondent's right hand. It was to be found in the written and oral evidence of Dr Gordon, post-operative EMG reports, and the reports of other doctors,[7] together with the respondent's own evidence and inspection of her hand by his Honour in the course of the trial.

• The judge had made use of the advantage of seeing and hearing the respondent, and inspecting her hand.

• His Honour had conscientiously reviewed the evidence. No specific error was detectable in his reasons. Whilst the appellant was not put to show specific error, its absence made it harder for the appellant to show the judge's decision was wrong.

• There was nothing to suggest that his Honour had engaged in impermissible speculation.

• His Honour had sufficiently explained his conclusions.[8]

• No inference adverse to the respondent should be drawn because her solicitors had not had the films seen by doctors upon whose opinions she relied. The appellant could have called any of the doctors for cross-examination had it chosen to do so.

• The judge's findings sufficiently established the necessary reduction in earning capacity.

The appeal should be dismissed

46 In my opinion the appeal should be dismissed for these reasons.

47 First, in my opinion there was plainly evidence which enabled a conclusion that the respondent suffered long-term and substantial organic disability affecting her dominant right hand. The learned judge identified the evidence in his reasons, concluding, as I perceive it, that the respondent was suffering from continuing medial nerve neuropathy and complex regional pain syndrome type 1, the latter being of mild to moderate severity. The evidence which he identified was as follows:

• Continuing medial nerve neuropathy, demonstrable by marked wasting of particular musculature of the right hand - an abnormality observed by a number of doctors - and to some extent revealed by the sequence of EMGs.

• A significant fixed flexion deformity of the thumb. It was observed by a number of doctors, was confirmed by his Honour's inspection of the respondent's hand, and was further confirmed at least by the second surveillance film.

• Evidence of the presence of complex regional pain syndrome type 1, notwithstanding findings that the respondent had exaggerated her symptoms, and notwithstanding the surveillance film. Dr Gordon identified relevant features, not least in re-examination. He did not unequivocally abandon his diagnosis after he had viewed the films. He was only one of a number of doctors who made the diagnosis.[9]

• The films which, contrary to the appellant's submissions, gave support for the conclusion that the respondent had suffered a persisting organic disability of her right hand. The judge's reasons show his acceptance that this was so in respect of the second film. I would go somewhat further than did his Honour, but that is not decisive.

48 Second, it is true that there was inconsistency - leaving aside the question of its extent - between the surveillance film and the respondent's common presentation to the doctors. It showed, as the judge accepted, and as I would accept, that the respondent's presentation was an exaggerated one. But the film was only part of the evidence in the case. It did not disable the learned trial judge, nor does it disable this Court, from considering all the evidence. That evidence, for reasons already discussed in part, in my opinion justified the conclusion reached by his Honour that the respondent had a long-term organic disability of her right hand, one that was so significant as to constitute serious injury.

49 Third, it is true that Messrs Karna and Stapleton, having seen the surveillance films, expressed conclusions adverse to the respondent.[10] But it does not follow, as the appellant contended, that the learned trial judge was then bound to dismiss all the other evidence adduced at trial, and to conclude that the respondent had not made out a case of serious persisting organic injury; or that this Court would be bound so to conclude. It is noteworthy that, although a number of doctors had physically examined the respondent on the appellant's behalf, only two were asked to consider the film. Those two were doctors who had already expressed opinions which were wholly or largely adverse to the respondent. Mr Stapleton, indeed, was of opinion, inter alia, that carpal tunnel syndrome is unrelated to occupation; a position disavowed at trial by appellant's counsel. The learned trial judge was not obliged to conclude that the respondent was injury-free simply because those doctors, having wholly or substantially dismissed the respondent's claim, saw the films and then made the obvious point that they showed a situation which departed from the respondent's presentation in the consulting room - a presentation which they had already rejected as conveying the true situation.

50 Fourth, so far as Mr Stapleton and Mr Karna drew attention to the obvious, it cannot be said, in my opinion, that the learned trial judge failed to give "proper regard" to their evidence. His Honour did give attention, many times, to the gulf between the respondent's presentation and what the films depicted, a matter highlighted by the evidence of Messrs Stapleteon and Karna. But the question for determination remained: What was the burden of all the evidence in the case?

51 Fifth, in my opinion it is a misreading of his Honour's reasons to contend[11] that he "apparently disregarded the evidence of those doctors who had not seen the surveillance film", for which reason his conclusions were not open, or were against the evidence and weight of evidence. What his Honour actually said was that it was "almost impossible for [him] to speculate as to what the doctors might have said if there had been no conscious exaggeration and if they had seen the films". I take his Honour to have been saying that the evidence constituted by the reports remained evidence in the case, but that its persuasive strength had to be weighed against the fact that the respondent, as his Honour found, had exaggerated her presentation. Obviously, the persuasive force of a particular doctor's opinion would be influenced by whether the doctor had detected objective signs of disability - for example, muscle wasting, particular deformity, skin atrophy, colour change, or sweating abnormality.

52 Sixth, it is a corollary of what I have just said, I reject the submission that his Honour erred by having regard to, or speculating as to, the opinions of the doctors who had not seen the films. I think that there was no element of speculation in what he did. Rather, I think it is clear that he gave each opinion the significance which, after analysis, he considered that it could legitimately bear.

53 Seventh, I reject the submission that his Honour should (or must) have drawn an inference adverse to the respondent because the doctors upon whose opinions she relied had not been shown the films - they had been provided to the respondent's solicitors well before trial - and so had not expressed opinions which were informed by them having done so. All the medical experts upon whose opinions the respondent relied were called, albeit that their evidence was in written form. The situation was one in which the appellant presumably considered that it had gathered material which could discredit the opinions expressed by those witnesses. There was a conventional way of making the challenge - to call the witnesses for cross-examination. But what the appellant did was to eschew that course, at the same time seeking to impeach the doctors' opinions in reliance upon the material which was not put to them, but which was got into evidence. That was a forensic tactic. It had the advantage, from the appellant's standpoint, that it was able to impugn the evidence of the witnesses without putting the material to them, and without running the risk that their answers might be adverse. It was a tactic which worked in the appellant's favour, because the judge recognised that there was a divide between the respondent's presentation to the doctors - which was a greater or lesser part, as the case may be, of the material on which their respective opinions were founded - and the situation revealed by the films. Evidently that caused his Honour to treat the opinions of the doctors who had not seen the films with some reservation. By its forensic tactic, in the event, the appellant got, substantially, the advantage which it could have obtained by calling the doctors for cross-examination and extracting favourable answers; and it did so without taking the risk that the doctors might not have given answers favourable to it.

54 The advantage which the appellant got is one thing. It is quite another matter whether his Honour must have drawn an inference adverse to the respondent - the precise content of which was not elucidated, and which might not have been the same in the case of the different doctors - from what may be assumed to have been the failure of the respondent's solicitors to obtain reports from the doctors commenting upon the films.

55 In support of a submission that his Honour should (or must) have drawn such an inference, counsel for the appellant called in aid the rule described in Jones v. Dunkel,[12] and illuminated in Reichard v. O'Donnell.[13] In my opinion, those authorities do not assist the appellant.

56 First, counsel was unable to cite any case akin to the present - that is, where all pertinent witnesses were called by a party, and the complaint was that in evidence in chief they had not addressed some part of the opposing party's case - in which Jones v Dunkel had been applied. I do not accept counsel's submission that this was explained by the matter being obvious.

57 Second, regardless of the want of relevant authority, I cannot see that Jones v Dunkel could sensibly apply in a case such as the present. Consider this situation. It is commonplace in personal injuries litigation that the parties exchange medical reports. Indeed, it happened in this case. It is also commonplace that clinical findings made by different doctors vary widely; likewise their opinions. According to the logic of the appellant's position, if a doctor called at trial - for whichever party[14] - was not asked to address inconsistent findings or opinions expressed in exchanged medical reports, the opposing party might eschew cross-examination, but instead submit in final address that in the circumstances described an inference must be drawn adverse to the party who had called the particular witness. The same position would presumably apply in the case of reports of other experts which were exchanged before trial. In all, if the appellant's submission was correct, the role of examination in chief in the trial process would stray from its traditional path;[15] whilst the conventional means of challenging a witness's evidence - that is, by cross-examination - would or could be downgraded in favour of reliance upon inference in the absence of cross-examination. These would be far-reaching developments in the law, and counsel did not cite any texts or authorities which presaged such developments.

58 I should add this: no submission was made at trial that an inference as described should or must have been drawn against the respondent. It is quite unsatisfactory that the judge should be said to have erred by not drawing such an inference - this constituting an alleged specific error - in those circumstances.

59 Eighth, I do not accept the submission that the learned trial judge failed to identify the evidence which he accepted, and say why he accepted it. To the contrary, whilst recognizing that he did not say in the case of every piece of evidence whether he accepted or rejected it, I consider that his Honour clearly signposted -

• Evidence which he accepted and which was relevant to his conclusion favourable to the respondent - for instance, particular muscle wasting, EMG abnormalities, skin atrophy.

• Evidence which had been given but which was not relied upon by one or other party - for instance, an aspect of Mr Stapleton's evidence, and an aspect of evidence given by Dr Bower and Mr Mangos.

• Evidence which had been given but which was weakened or controverted by his conclusion that the respondent had exaggerated her symptoms - for instance, evidence given by Dr Blombery and Mr Flanc.

• Evidence of findings which bespoke a condition - for example a secondary functional overlay, or psychiatric injury - which had to be stripped away when considering whether the respondent had sustained serious injury involving impairment or loss of body function - for instance, some of the evidence given by Dr Sedal and Mr Flanc, and the evidence of the psychiatrists.

60 In all, I accept the submission of counsel for the respondent that his Honour's reasons sufficiently illuminated the path to his conclusions. Indeed, I would go further. In my respectful opinion the reasons of the learned trial judge stand very favourable comparison with reasons which I have examined from time to time in appeals of this kind.

61 Ninth, in my opinion it was well open to the learned judge to conclude, having isolated the nature of the relevant injury, that in its consequences both economic and otherwise it was serious for this worker. His Honour surely employed his very considerable experience in making the necessary value judgment, which involved assessing the significance to the respondent of a real disability affecting her dominant right hand, markedly affecting its strength and quality, chronic in nature and such that no improvement could be expected in the foreseeable future. That injury, as his Honour noted, existed in the setting of a poorly educated, unskilled, middle-aged immigrant woman with poor English, whose pre-injury work, over a long period, had been manual in character.

62 I should specifically address, for sale of completeness, his Honour's finding that the respondent had made out her application that the injury was serious in its loss of earning capacity consequences. His Honour concluded, in substance, that the respondent had no remaining worthwhile capacity for work, and no potential to be re-trained.[16] But then he made an assumption, probably favourable to the appellant, as to the respondent's without-injury earnings. He estimated that to earn 60% of that amount the respondent would need to have a permanent part-time position, at least a .5 position. Regular attendance at work, exhibiting an appropriate level of concentration, would be required. But this, his Honour considered, would be beyond the respondent, and permanently so. She was not simply a one-armed person, but a two-armed person one of whose arms was chronically painful.

63 To my mind, his Honour did all that was necessary to make out his conclusion that the respondent's injury was serious for her in its loss of earning capacity consequences. Having measured the respondent's without-injury earnings, he reached a conclusion as to what work the respondent would need to do to

generate 60% of those earnings, and he concluded that the respondent could not do what was necessary to achieve that outcome. Indeed, in substance, he went further and concluded the respondent was permanently unemployable.

64 In all, I consider that no error has been demonstrated in his Honour's resolution of the application. That makes it more difficult to persuade this Court, in re-hearing the matter, that some different result ought to be arrived at. For my part, I am quite persuaded on consideration of all the evidence, most of which was analysed by the learned judge, that the result at which he arrived was the correct one.

65 I agree that the appeal should be dismissed for the reasons which his Honour has given. I add some brief comments of my own.

66 In Dwyer v Calco, the Court summarised what was said in Barwon Spinners about the approach to appeals in serious injury matters. The judgment of Eames JA sets out a number of propositions, of which the following seem to me to be particularly pertinent to this matter:

"3. The appeal court must recognise and give appropriate weight to the advantages of the trial judge, who has seen and heard the witnesses. Those advantages are particularly important in cases arising out of the gateway of "serious injury" in the Accident Compensation Act. In Podolak, the Court, following Abalos v Australian Postal Commission, acknowledged that the obligation of the appeal court to give appropriate weight to the advantages of the trial judge included making allowance for the fact that the judge might have had an in-court demonstration.

6. Some County Court judges are dealing with [serious injury] cases almost daily and have become expert in the area. They see the worst and the least of like cases and are in the best position to assess a given case within the spectrum of such cases. That is an advantage which can be highly significant and it is one not ordinarily enjoyed by the appellate court. It is one to which an appellate court should have regard, giving it such weight as it deems appropriate. I add the observation that this is, in effect,

an appeal from a specialist tribunal."

67 The issue which confronted the judge in this case was exceptionally difficult. His Honour was satisfied that there was genuine organic disability but its assessment was complicated by the plaintiff's conscious exaggeration and by secondary psychiatric factors which - as he said - had to be "stripped away". His Honour is to be commended for the care with which he undertook this difficult task. As I suggested in argument, his Honour was peculiarly well placed to make that assessment. In particular, he had - as we have not - the opportunity to observe the plaintiff give her evidence and also to observe her hand movement.

68 In my opinion, the reasons for judgment were exemplary. What his Honour said conveyed to the parties and their legal representatives that this application had been dealt with by someone who knew what he was doing, who understood the applicable law and was well on top of the facts as presented to him in the evidence. Most importantly, it conveyed why the judge had concluded as he did. Parties cannot reasonably expect more than that.

69 It is regrettable, in my view, that a number of clinicians who had provided reports, based on the respondent's presentation in their consulting rooms, were not asked to review their opinions in the light of the video evidence before the court. His Honour should not have been left to speculate as to what the doctors might have said if they had been shown the videos. Doctors called as witnesses are experts giving impartial opinions, and whatever answers they might have given could only have assisted the judge in arriving at the correct answer to the serious injury question. It remains unclear to me why counsel for the Victorian WorkCover Authority, as the statutory insurer with conduct of the litigation for the employer, would not have been instructed to ask the necessary questions in cross-examination. The Authority, at least, should not shrink from asking such questions, if the answers will assist the judge to do justice between the parties.

70 I turn finally to the general subject of serious injury appeals. As has often been said, the decision on a serious injury application involves matters of judgment, degree and impression. Whether somebody has a serious injury or not is, essentially, a medical question, not a legal question. Legal issues do arise from time to time - for example, concerning interpretation of the Act - but in the vast majority of such cases, the court is called on to evaluate competing medical opinions, in order to decide whether -

"the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;".[17]

71 Of course, Parliament has made it perfectly clear in s 134AD that this Court must decide for itself whether a worker has a serious injury as defined. My own view as President of the Court, however, is that to have the Court of Appeal sitting as - in effect - a medical tribunal is not a good use of scarce judicial resources. Having a full rehearing on appeal is apt to undermine the conscientious work of County Court judges at first instance, since it is an invitation to the losing party to rerun the facts in the hope that the appeal court will take a different view.

72 In my view, the interests of parties to these proceedings would be amply protected if appeal to this Court was limited to a question of law. A serious injury application is, after all, only a gateway. It is not the substantive common law proceeding. If the "question of law" requirement were introduced, a decision like the present - where the judge has seen the applicant and considered very carefully all of the evidence and all of the credit questions - would not be appellable unless it could be shown that the decision was not reasonably open on the evidence before the court. There is, I think, an analogy with what this Court does in sentencing matters, where we are astute to respect the judgments made by the sentencing judge who has conducted the substantive proceeding and seen the witnesses and heard the submissions. We only interfere where something has gone badly - obviously -

73 In the present case, had the test been "were the findings open on the evidence?", I doubt the appeal would have been brought. Of course, if the judge had misdirected himself on a question of law, that would be a quite different matter. But when it is a purely factual investigation, as this was, it seems to me that the interests of justice, and the interests of other litigants waiting to get their appeals heard in this Court, would be better served if there was a more limited right of appeal.

74 None of this is to deny the importance of serious injury applications. On the contrary, they are so important that they should not be delayed by appeal proceedings unless that is really necessary.

75 For the reasons given by Ashley, J.A., I would also dismiss the appeal.

[1] See para (a) of the definition of "serious injury" in s 134AB(37) of the Act, also s 134AB(38)(b);

[2] [2005] VSCA 33 at [35]- [50], with a pithy summary at [49]; and see, more recently, the summary by Eames JA of the applicable principles in Dwyer v. Calco Timbers Pty Ltd [2006] VSCA 187 at [8].

[3] Throughout the reports, there is reference to "median" and "medial" nerve damage. The judge used "medial" in his reasons. For sake of consistency, so will I.

[4] His Honour's analysis, which preceded Grech v Orica Australia Pty Ltd [2006] VSCA 172, was in my respectful opinion an entirely accurate one.

[5] The reasons at [75] say "October 1982", but that is presumably a typographical error.

[6] Citing Hayhill v Hodge [2006] VSCA 194.

[7] "Even", counsel claimed, in the reports of Mr Karna.

[8] Citing Hayhill at [18], Barlow & TAC v Hollis [2002] VSCA 26 at [23] and Hesse Blind Roller Co Pty Ltd v Hamitoski [2006] VSCA 121 at[3] and [9]-[12].

[9] Dr Savvas, Dr Blombery, Mr Flanc (doubtfully), Mr Hadj and Mr Mangos. Their opinions were subject to qualification because of the respondent's exaggerated presentation. But that is not equivalent to their opinions being valueless.

[10] As did the psychiatrist Dr Shan, who saw a report concerning the first film.

[11] See Ground 2.

[12] [1959] HCA 8; (1959) 101 CLR 298.

[13] [1975] VicRp 89; (1975) VR 916 at 929.

[14] Counsel for the appellant made the point that the respondent had carried the burden of persuasion in the present case. If that was decisive, then exactly the same conduct by opposing parties would or would not give rise to the inference described depending upon where the general burden, or perhaps an issue burden, lay.

[15] Which is not to cast doubt on the propriety of the forensic tactic, used often enough, of anticipating particular cross-examination in an attempt to dilute its likely impact.

[16] Reasons [108].

[17] Section 134 AB (38)(c).

At a glance

Court

Decision date

Before

Source

Judgment (58 paragraphs)

Parties

Cases Cited (1)