Borazio v State of Victoria [2015] VSCA 131

67 The judge was obliged to consider whether the appellant had satisfied him that the inference of spinal injury was more probable than not.[39] The use of the word 'unsustainable' in respect of competing hypotheses was unfortunate. It might be understood to mean not reasonably open or it might be understood to mean not equally probable.

68 If the words in issue were utilised in a charge to a civil jury, they would not be adequate and they should not be used as a shorthand for the relevant standard of proof in reasons for a decision of a judge sitting alone.

69 There is in turn substantial force in the submissions of counsel for the appellant that the use of the word 'unsustainable' reflects the error of approach explained by Hasluck J (with whom Murray and Parker JJ agreed) in Delta Corporation Ltd v Davies.[40] Whilst the appellant was required to demonstrate that the hypothesis for which he contended was more probable than not, he was not required to negate all other hypotheses. Hasluck J summarised the relevant principles as follows:

1. The possibility of a contrary finding does not prevent a finding reached on that standard from being appropriate. It is not enough for a plaintiff to fail that his account may not be correct. For example, in Goodwin v Nominal Defendant (1979) 54 ALJR 84 the plaintiff driver suffered head injuries and could not remember the relevant events. The surviving passenger was thought by the trial Judge to be unimpressive as a witness. The High Court held that the trial Judge had erred in concluding that the plaintiff must fail if there were valid reasons for taking the view that the hypothesis which supported his case may not be correct having regard to two alternative hypotheses adverse to the plaintiff's case.

82 The High Court said at p 86:

It was, we think, this process of analysis, involving initial assumptions and the postulating of what were three hypothetically probable explanations, together with the approach that the plaintiff must fail if there were valid reasons for taking the view that the hypothesis which supported his case may not be correct, which led to the conclusion that the plaintiff's claim should fail. Had the matter been approached by confining the inquiry to the question whether the plaintiff had satisfied the onus of establishing that it was more probable than not that the accident was caused by the negligence of the driver of an unidentified vehicle, his Honour must, we think, in view of his own careful assessment of the evidence as disclosed in his reasons for judgment, have found in favour of the plaintiff. His Honour did, of course advert to that question in the course of his judgment but seems never to have escaped the effect of the general approach which he adopted.[41]

70 Nevertheless, when his Honour's statement is read in context,. I am not satisfied that he in fact misdirected himself as to the standard of proof. When his reasoning as a whole is examined I take him to be saying that the appellant was required to demonstrate that the inference sought to be drawn was more probable than competing inferences. It was, of course, necessary for the appellant to go beyond 'conflicting inferences of equal degrees of probability so that the choice between them is (a) mere matter of conjecture.'[42]

71 Moreover, I am satisfied in any event that even if his Honour misstated the relevant standard, he in fact applied the correct standard. This was not a case like Goodwin's Case[43] in which the general approach adopted by the trial judge reflected error.

72 Immediately, after the passage complained of, the trial judge went on to positively prefer the opinions of Mr Brighton-Knight, Mr Hooper, and Professor Brazenor to those of Mr Kudelka and Mr Slesenger. These opinions address the probabilities of a causal connection between the work complained of and the appellant's condition at the time of the expression of the opinion. The preference for the opinions of the treating surgeon and the respondent's experts was necessarily dispositive of the appellant's case on causation.

73 The trial judge stated that he placed particular reliance upon the opinion of Mr Brighton-Knight. In this context, he said that Mr Brighton-Knight's position must mean that he considered that the disc injury

occurred by another cause, or perhaps causes. It is an opinion consistent with the observation by Professor Brazenor that there might be other hypotheses which can equally be implicated in the causation of the disc injury.[44]

This passage confirms that ultimately his Honour concluded that he was not persuaded that the causal connection postulated by the appellant was more probable than not. It was not more probable than other hypotheses which were equally open.

74 Other passages in the judgment also demonstrate that his Honour made a series of intermediary findings on the balance of probabilities. The most significant of these was the finding at [66] which I have quoted above.

75 I am not persuaded that the trial judge erred in the standard of proof he imposed upon the appellant. The passage complained of does not demonstrate error with respect to the standard of proof which the trial judge in fact applied to the appellant's case.

Did the trial judge materially misconstrue the evidence?[45]

76 The appellant submits that independently of the question of the standard of proof, the last dot point of [72] of the judge's reasons demonstrates that he mischaracterised the evidence. It is further submitted that there were differences in the way Mr Brighton-Knight, Mr Hooper and Professor Brazenor dealt with the probabilities of alternative hypotheses, and that it was wrong to describe them jointly as holding the opinion that the wearing of the equipment belt 'cannot be implicated in the causation of the disc injury.' I accept that there were differences in the way each of these witnesses expressed their opinions, but it remains true that, fundamentally, none of them accepted that the initial injury could be positively implicated as a cause of the appellant's discal condition.

77 I also accept that Mr Brighton-Knight did not positively state that the wearing of the equipment belt could not be implicated in the causation of the discal injury. However, Mr Brighton-Knight said that 'medical research suggests that disc herniations occur spontaneously secondary to intrinsic genetically determined disc factors plus the passage of time' and that 'there is no specific work place which has predisposed patients to disc herniation.' The judge was therefore right to say that Mr Brighton-Knight would not accept the proposition put to him by the appellant that the wearing of the equipment belt was the cause of the discal injury. Professor Brazenor stated that he did not believe the appellant's employment with the Victoria Police had significantly contributed to his lower back condition and that there was no mechanism involved in the use of the belt which would cause lasting back injury. In his view, the appellant suffered from degenerative change in his L5-S1 disc and facet joints. Mr Hooper also diagnosed degenerative disc disease in his back and regarded the appellant's symptoms as age-related, constitutional and degenerative.

78 There are differences of emphasis in these reports which may partly be explained by the fact that Mr Brighton-Knight's report was not made for medico-legal purposes. The nuances between them are not fully reflected in the language of the last dot point in [72] of the judge's reasons. Nevertheless, it seems to me that in so far as he erred, the judge understated the extent to which Professor Brazenor and Mr Hooper were adverse to the appellant's case. Professor Brazenor did not simply say that there might be other hypotheses that could be equally implicated in the causation of the disc injury, he rejected the proposition that use of the belt could be implicated. Mr Hooper also postulated other causes as the probable cause of the injury.

79 In summary, the medical opinions the trial judge preferred:

• state that the initial injury cannot be positively implicated as a cause of discal injury; and
• postulate alternative hypotheses which are at least equally if not more plausible than that for which the appellant contends.

80 The judge preferred these opinions for the reasons he stated in the context of the matters identified by him in the previous dot points. In particular, he preferred the expertise of the three surgeons upon whose opinions he relied. There was no error in this approach.

81 It is necessary next to turn to a series of discrete points raised by ground 3 of appeal.

82 His Honour said at different points in his reasons that no medical report of a conventional type had been received from Dr Courtney. At one point, he also stated that a conventional report would set out the chronology of the appellant's treatment. It may be accepted that in this sense Dr Courtney's report was not a conventional medico-legal report and that this inadequacy bore on significant contextual circumstances in the case. Indeed the appellant's counsel addressed the court on appeal in reply by reference to Dr Courtney's clinical notes, precisely in order to put the appellant's case in respect of the chronological aspects of the matter. His Honour did not err in referring to the absence of a conventional medical report. Nevertheless, it seems clear that the judge ultimately overlooked Dr Courtney's report entirely and that, for this reason, he erred in that it constituted a relevant piece of evidence.

83 The difficulty from the appellant's point of view is, however, that that report was directly adverse to the appellant's case on the issue of causation. Dr Courtney's view was that it could not be concluded that the equipment belt probably caused the appellant's current condition. Accordingly, the error identified cannot sensibly be regarded as vitiating the judge's conclusion.

84 It is next submitted that the judge failed to acknowledge that the MRI scan report of 20 August 2012 (Exhibit 3) and a CT scan report of 22 July 2014 (Exhibit 8) were tendered at trial. It seems, however, that the MRI scan was not tendered as part of Exhibit 3, which comprised the clinical notes of Dr Courtney.

85 Insofar as the CT scan is concerned, his Honour referred to the substance of that scan, namely that it showed a mild bulge at L4-5 and a broad-based disc bulge at L5-S1 bulging to the left and to the opinions based on this imaging. Further and more fundamentally, none of the medical opinion suggested that the medical imaging undertaken between four and six years after the appellant left Victoria Police could be regarded as demonstrating, of itself, the causal connection for which the appellant contends.

86 Next, it is submitted that his Honour was wrong to say that no conventional medical report was received from Mr Brighton-Knight. I have quoted the relevant letter above and it is plain Mr Brighton-Knight did express an opinion on the critical issue of causation. That opinion was again adverse to the appellant. Whether or not the letter amounted to a conventional medical report is thus of little moment.

87 It is further submitted that the judge did not have proper regard to correspondence from Dr Lovell which was relevant because it demonstrated approval by the respondent's insurer for medial branch blocks relevant to compensable spinal injury. Dr Lovell's report of 4 August 2011 says however that the first facet medial branch block was negative and it could be concluded that the appellant did not have facet joint pain. He concluded the pain was most likely from the sacroiliac joints and treatment continued on this basis. There was never any doubt the appellant suffered some injury in 2008. The question was what injury. Dr Lovell's investigation did not establish spinal injury. At trial, the judge queried the sense in which a relevant admission could be implied from the insurer's approval of the investigation. No Ansett Australia Ltd v Taylor[46] point was ultimately pressed. In my view, approval of this procedure did not evidence admission of the fact of injury of the type now contended for. Further, Dr Lovell's report did not materially advance the appellant's case. Indeed, the outcome of the procedure now relied on favoured the respondent's case.

88 It is further submitted that on balance the evidence established that the appellant suffered injury to the lumbar spine as a result of stress caused by the equipment belt.

89 In my view the underlying factors identified by his Honour at [72] of his reasons well justified his conclusion. I would add the following:

• the opinions expressed by the appellant's chief treating general practitioner, Dr Courtney, and the treating specialist, Mr Brighton-Knight, do not support his case;
• the medical imaging demonstrating spinal degeneration and discal protrusion post-dates the alleged injury by a number of years;
• the appellant's statements to prospective employers and his engagement in a series of strenuous jobs and activities are inconsistent with the substantial persistence of symptoms of the type of which he initially complained;
• the opinions of Mr Kudelka and Dr Slesenger were retrospective opinions in that they did not examine the appellant until many years after the initial injury;
• the opinions of Mr Kudelka and Dr Slesenger were essentially predicated upon the appellant's history of persistence of symptoms;
• this history fell to be assessed in the light of the evidence as a whole and was subject to significant doubt;
• Mr Shutz postulated chronic soft tissue symptoms when he saw the appellant in January 2012;
• Mr Hooper and Professor Brazenor rejected the causal mechanism postulated and identified alternative probable causes;
• Mr Brighton-Knight, when specifically asked, would not implicate the use of the equipment belt in the causation of the discal injury and identified alternative causes generally supported by medical research;
• the evidence as a whole, including the appellant's work history, favours the conclusion that the initial injury was a muscular injury;
• the weight of the medical opinion favours the view that it cannot be positively established that the equipment belt caused a permanent back injury.

90 The trial judge squarely addressed the evidence in detail and correctly identified the critical issues. The fundamental reasons he gave for his conclusions

with respect to those issues were cogent, albeit that aspects of his reasoning were, as explained, poorly expressed and that he made some incidental mistakes of detail concerning the evidence. Moreover, his conclusions accorded with the weight of the evidence in any event. Specific error has not been demonstrated in the judge's conclusion with respect to causation.[48]

92 I agree with Osborn JA, for the reasons he gives, that the appeal should be dismissed. I specifically agree that the language of unsustainability, as used by the primary judge, should be avoided in describing the standard of proof in serious injury applications, but that when the reasons of the primary judge in this case are read as a whole it is clear that, despite using such language, he applied the correct test. Even if that were not so, for the reasons explained by Osborn JA, the judge's conclusions accorded with the weight of the evidence and should not be disturbed.

93 Although stating that a plaintiff is required to demonstrate that competing hypotheses are unsustainable may well suggest, as a matter of ordinary language, that the plaintiff is required positively to disprove all competing hypotheses, in my view it may also mean no more than that the plaintiff must show that his or her hypothesis is to be preferred (or 'sustained'), as against the other possible explanations. The latter meaning is consistent with the correct test, because it does no more than require the plaintiff to prove his or her case, based on all the evidence, on the balance of probabilities.

94 At the same time, the decision in Delta Corporation Ltd v Davies[49] shows that the former meaning would incorrectly state the law. For that reason, as Osborn JA states,[50] the formulation would be confusing and inadequate if used to direct a jury. However, the question what the judge in the present case meant by the expression in question can only be answered by considering the language used in the context of the whole of the reasons for decision. In my opinion, the analysis undertaken by Osborn JA, amplified by the additional reasons of Tate JA, shows that, in stating that the plaintiff had to demonstrate that the competing hypotheses were 'unsustainable', the judge intended to convey only that the plaintiff had to demonstrate that his case on causation was to be preferred to the competing hypotheses.

[1] Borazio v State of Victoria [2014] VCC 1567 [72] ('Reasons').

[2] [2002] WASCA 125 ('Delta Corporation').

[3] With whom Murray and Parker JJ agreed.

[4] Delta Corporation [2002] WASCA 125 [93] (emphasis added). Hasluck J went on to say (at [105]): 'The respondent as plaintiff was not obliged to negate all alternative hypothesis and the Court was not required to assume that the effect of the appellant's evidence was to "shift" the burden of proof so that the respondent was bound to fail unless the appellants' evidence was rebutted.' See also reasons of Osborn JA [69].

[5] Reasons of Osborn JA [67].

[6] Ibid [71]-[75].

[8] The judge accepted that the appellant suffered a level of discomfort from using the equipment belt which resulted in lower back pain: Reasons [51].

[11] Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182, 196 [34]; see Kocis v SE Dickens Pty Ltd [1998] 3 VR 408, 410, 420, 430.

[12] See the definition in s 129N of the Act.

[13] See s 134AB(38)(j).

[14] Section 5(2) of the Act incorporates the definition set out in s 3 of the Workplace Injury Rehabilitation and Compensation Act 2013.

[15] Borazio v State of Victoria & Anor [2014] VCC 1567 [51], [66] ('Reasons').

[17] At the junction between the sacrum and the pelvis at the base of the spine.

[19] Herniation through an opening in the vertebral bones.

[26] [1998] 3 VR 833, 842.

4. The Trial Judge erred at [71] and [73] in failing to determine the Appellant's case as opened (T11) and closed (T80), namely that the compensable injury was not confined to discal injury but included aggravation of degenerative changes in the Appellant's lumbar spine.

5. The trial Judge should have determined on the balance of probabilities whether the Appellant suffered compensable injury to his lumbar spine (whether by way of aggravation and/or acceleration of degenerative changes or discal injury) to which employment with the Respondent was a contributing factor, and thereafter determined the impairment consequences of that compensable injury.

[34] AG Staff Pty Ltd v Filopowicz [2012] VSCA 60; (2012) 34 VR 309, 314-5 (Kyrou AJA, with whom Mandie and Bongiorno JJA agreed) and the cases there cited.

1. The trial Judge erred in law at [72] in requiring of the Appellant 'if there are competing hypotheses, then the Plaintiff must demonstrate that the other competing hypotheses are unsustainable'.

[36] Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547, 556 (Dixon J).

[37] [2006] VSCA 141 [8]-[9].

[39] Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 536 (Gibbs CJ and Mason J); Chapman v Cole [2006] VSCA 70; (2006) 15 VR 150, 154 [15] (Callaway JA).

[40] [2002] WASCA 125.

[42] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5 (Dixon, Williams, Webb, Fullagar and Kitto JJ.

[43] (1979) 54 ALJR 84.

[45] Grounds 2 and 3 of appeal relevantly state:

2. The trial Judge erred at [72] (and [65] and [69]) in treating Orthopaedic Surgeon Mr Brighton-Knight as having determined that the wearing by the Appellant of his police equipment belt could not be implicated in the causation of the discal injury when that practitioner had specifically refrained from commenting on the issue.

3. The trial Judge erred at [72] in finding that there were 'no conventional medical reports' from-

• treating General Practitioner Dr Courtney when a report from that practitioner dated 30 July 2014 was tendered at trial;

• treating orthopaedic surgeon Mr Brighton-Knight when a letter from that practitioner dated 1 September 2012 to like effect was tendered at trial;

• from treating pain management specialist Dr Lovell when a report dated 5 October 2011 was tendered at trial.

[46] [2006] VSCA 171.

[47] Ground 6 of appeal is expressed somewhat differently but as argued it was directed to this issue. Ground 6 of appeal:

6 The trial Judge failed to adequately consider, or alternatively to provide adequate reasons having given adequate consideration, to the whole of the evidence including -

(a) the Appellant's evidence as to the symptoms of injury commencing in 2007 and continuing thereafter;

(b) letter of general practitioner Dr Nolan to the Respondent dated 24 November 2007;

(c) report of general practitioner Dr Courtney dated 30 July 2014;

(d) reports of Mr Kudelka Orthopaedic Surgeon dated 18 July 2013 and 31 July 2014;

(e) report of Mr Schutz Orthopaedic Surgeon dated 31 January 2012;

(f) report of Dr Slesenger Occupational Physician dated 31 July 2014;

(g) MRI scan 20 August 2012 and CT scan 22 July 2014 (which contrary to [49] were respectively tendered in exhibit 3 and exhibit A);

(h) letter of Mr Brighton-Knight Orthopaedic Surgeon, dated 1 September 2012;

(i) report of Mr Hooper Orthopaedic Surgeon dated 22 May 2013 accepting that the Appellant's symptoms did start during his work with the Police Force in 2007;

(j) report of Mr Brazenor Neurosurgeon 26 April2014 accepting that wearing of police equipment belt by the Appellant could cause temporary back discomfort in circumstances where the evidence disclosed the continuation of ongoing lumbar spine symptoms from 2007 and continuing thereafter.

[48] Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 (Redlich & Tate JJA); Merhi v Ford Motor Company Australia Ltd [2014] VSCA 328 (Neave JA, Tate and Santamaria JJA agreeing).

[49] [2002] WASCA 125.

[50] See above at [68].