Burgess v Y-Trans Pty Ltd & Anor [2010] VSCA 28

1 I agree with Weinberg JA, for the reasons his Honour has stated, that the appeal should be dismissed.

2 This appeal concerns a refusal of leave to bring proceedings for the recovery of damages in respect of injury pursuant to s 134AB of the Accident Compensation Act 1985 (Vic) ('the Act'). The primary judge concluded that the appellant had failed to establish the existence of a compensable injury. The appeal is against that finding. As such, it does not fall within the scope of s 134AD of the Act, but is to be determined instead as a traditional civil appeal, pursuant to s 74 of the County Court Act 1958 (Vic).[1] It follows that his Honour's decision, which turned largely on the credibility of the appellant, as compared with that of his treating doctor, is not to be overturned unless this Court is persuaded that the decision was 'glaringly improbable', or 'contrary to compelling inferences'.[2]

3 The appellant had for many years been employed as a truck driver. From 1999 he worked for PPB Freighters Pty Ltd, a company that he himself had established to do transport contracting work. Most of that work was done for Collex Pty Ltd ('Collex'), a company involved in waste collection and disposal.

4 In September 2004, the appellant formed a new company, Y-Trans Pty Ltd, which is the first respondent to this proceeding. The appellant is its sole director and shareholder. The new company took over the business of PPB Freighters Pty Ltd, and employed the appellant to provide services to Collex.

5 Y-Trans Pty Ltd was obliged, under its contract with Collex, to provide a truck suitable for collecting and carrying waste bins. These bins were hoisted onto the tray of the truck by a crane. Collex supplied the crane, and arranged to have it fitted to the Y-Trans Pty Ltd truck. The crane at all times remained the property of Collex.

6 The evidence was that the crane was installed behind the cabin of the truck, on its near side. To operate the crane, the driver stood behind the cabin, at its near side, where the control levers were located. In a box, the cover of which was missing, there were various hydraulic valves. The appellant had complained in the past about the unreliable operation of these valves, but Collex had done nothing to remedy the situation.

7 Collex maintained a repair unit which, in the event of difficulties encountered by drivers, would be on call to repair any faults in the crane operations on sub-contractors' vehicles.

8 On the morning of 24 February 2005, the appellant drove to Dandenong in order to collect some waste bins. He began to load some of the bins onto his truck. At about 5am, while operating the crane to load another bin, it struck a restrictor valve on the main boom. This caused that bin to fall onto those that had already been loaded. For whatever reason, this resulted in the crane's hydraulics being damaged so that it could no longer operate properly.

9 Collex sent a mechanic, Mr Shannon Woodward, to repair the faulty valve. However, the boom was in an awkward position and he could not carry out any repairs until the crane was moved to one side. That could not be done using the control panel at the side of the truck. Therefore, Mr Woodward procured a forklift vehicle, and used the tines of that vehicle to shift the boom to a more convenient location so that he could work on it.

10 During this process, the appellant was directed by Mr Woodward to the controls in order to operate what was known as the 'slew valve'. The aim was to have part of the boom swing around while Mr Woodward brought the other section around on the tines of the forklift. Mr Woodward said that as he brought the fallen section of the boom around from its original position, it suddenly and unexpectedly fell from the tines and crashed down, striking the appellant as it fell.

11 According to the appellant, the boom struck him on the right hip, from behind. He said that he was catapulted to the side of the truck, and fell to the ground. He claimed that, in addition to the blow to his hip, he suffered a cut on one arm, and also a cut to his head.

12 In his first affidavit, the appellant said that, after the crane was repaired, he continued working throughout the day. However, he was in pain, and limping. He said that he continued working because he thought the pain would subside. He said that he went to see his local general practitioner, Dr James Demirtzoglou, that same evening.

13 However, Dr Demirtzoglou's contemporaneous, computerised notes, recorded that the appellant came to see him at about 10:55am on the day of the incident. Dr Demirtzoglou gave evidence confirming that the appellant presented shortly before 11am, and that he had referred him for x-rays of his left hip only.

14 Later that same day, x-rays were taken of both the appellant's hips. The results were as follows:

Marked degenerative changes appear to involve the left hip joint. The joint spaces appear to be significantly reduced. Degenerative changes were also seen to involve the right hip joint associated with joint space narrowing.

15 The appellant's case was that he had been struck on or about the area of the right hip when the boom fell. The injury that he sustained became worse over time, and led him to put greater weight on his left leg, which then caused injury to an otherwise healthy left hip. He submitted in the alternative that if there had been pre-existing degeneration of the left hip, the injury to his right hip had aggravated that condition. In either case, the injury to his right hip had ultimately led to the need for hip surgery, and had rendered him unable to continue working.

16 The respondents' case was that, even assuming that the appellant had been injured in some way by the collapse of the boom, it was not established that the injury had been to his right hip. In that regard, the respondents relied upon Dr Demirtzoglou's contemporaneous notes, and his recollection such as it was. The notes made clear that the appellant's complaint, on the 24 February 2005, related only to his left hip. Moreover, the appellant made no mention, during that consultation with Dr Demirtzoglou, of any incident involving a crane, or having been injured in any way at work that morning. Rather, he spoke only of pain in his left hip which he told Dr Demirtzoglou had been present for 'several weeks'.

17 The respondents noted that, according to Dr Demirtzoglou, it was not until late 2006, almost two years after the consultation in February 2005, that the appellant first mentioned that he had injured his right hip on the day of the incident. It was only then that the appellant told Dr Demirtzoglou that this had necessitated his having to put extra weight on his left leg, thus causing pain in his left hip.

18 In a report to the appellant's solicitors, dated 20 July 2008, Dr Demirtzoglou reiterated that the appellant had not complained of any incident involving a crane, or injury sustained at work, as having led him to see the doctor on 24 February 2005. He insisted that the appellant had told him, on that day, that he had had ongoing pain for the previous 'several weeks'. The doctor proffered the opinion that it was possible that the appellant's work, involving as it did getting into and out of trucks, and loading and unloading them over several years, had aggravated ongoing degenerative changes in his hips. In the doctor's view, however, this degeneration had nothing to do with any incident involving a blow to his right hip.

19 Indeed, Dr Demirtzoglou went further. He claimed that the appellant had told him, in September 2006, that he had injured his left hip in 2004, while at work. According to Dr Demirtzoglou, the appellant had said that, on that occasion, he had slipped off his truck and landed on his left leg. There were no clinical notes of that discussion. However, according to the doctor, that was probably because the incident had only been mentioned in passing.

20 The appellant's case was that he had never told Dr Demirtzoglou, on 24 February 2005, or at any other time, that his left hip had been causing him problems. He denied having said that his left hip had been giving him trouble for 'several weeks'. He claimed that Dr Demirtzoglou's notes were totally inaccurate in that respect.

21 According to the appellant, he continued to work without interruption following the February 2005 incident, though with the assistance of pain-killing medication. He agreed that, in August 2005, he had spent more than $100,000 on the purchase of a new truck. When asked in cross-examination why he had done so, given the nature of his injury and its ongoing effects, he said that he thought he could 'work his way through it'.

22 The appellant said that, by October 2005, his knees were giving him trouble. He continued to see Dr Demirtzoglou and, on 6 March 2006, CT scans were done of both his hips. These showed marked degenerative changes, reported as worse on the left side. Dr Demirtzoglou then referred the appellant to Mr Sam Patten, an orthopaedic surgeon and specialist in hip surgery. Mr Patten saw the appellant on 22 March 2006. In a report to Dr Demirtzoglou, dated 31 March 2006, Mr Patten described the appellant as a 'healthy, active, 63 year old truck driver who presents with bi-lateral lower back and hip pain'. He noted that the appellant had 'no significant past history of injuries to his hips or back', and that he was otherwise healthy and took no medication on a regular basis. He concluded that it was likely that the appellant had a combination of lumbar spine degeneration, and hip degeneration.

23 It was the respondents' case that Mr Patten's letter demonstrated that the appellant had not mentioned the incident of 24 February 2005 to Mr Patten and, importantly, had not suggested at that time that the problem with his left hip might have resulted from an injury to his right hip.

24 The evidence was that, on 6 September 2006, the appellant, on the advice of Mr Patten, had ceased his employ as a truck driver. He had not worked meaningfully since. The pain in his hips had reached a point where work was intolerable.

25 Put simply, the respondents' version of events was that the appellant had not sustained an injury to his right hip, as claimed, on 24 February 2005. They relied upon his failure to mention any such incident or injury, to Dr Demirtzoglou or Mr Patten, until late in 2006.

26 From that point on, the appellant's case assumed a different complexion. He stated, consistently, that the problems with his left hip stemmed from the injury to his right hip, sustained when the boom struck him in February 2005. Dr Demirtzoglou provided a number of certificates, all of them post-dating late 2006, which reflected that newly stated position.

27 The primary judge considered that Dr Demirtzoglou was a careless note-taker. That finding was entirely justifiable. There were patent differences between what the doctor's contemporaneous notes recorded, and what he later indicated had been the source of the appellant's difficulties when he issued certificates for Workcover purposes.

28 By December 2006, Dr Demirtzoglou was stating, in correspondence with a Conciliation Officer at the Victorian Workcover Authority ('Workcover') that the appellant had advanced degenerative osteoarthritis of the left hip. He recorded, at that stage, that the appellant had sustained injury to his right hip in 2005 and, as a result, had suffered increased demands on his arthritic left hip. He added that the appellant required hip replacement surgery, and expressed the opinion that his work handling rubbish skips had accelerated the progression of the degeneration of his left hip.

29 That letter was apparently written in order to obtain approval from Workcover for surgery to be performed on the appellant's left hip. However, it once again made no mention of the specific crane incident of 24 February 2005, and though it spoke of his having sustained injury to his right hip in that year, attributed that injury to his work in handling rubbish skips.

30 It follows that neither Dr Demirtzoglou's notes, nor his correspondence with Workcover, aligned with the appellant's account of how he came to be injured, in support of his application to recover damages under s 134AB of the Act.

31 As his Honour noted, Collex eventually rejected the appellant's claim for recompense. Accordingly, he was obliged to lodge a claim against his own employer, Y-Trans Pty Ltd, which he did on 23 December 2006. By that time, in answer to the question 'how exactly were you injured?', the appellant said: 'Crane arm came down and struck me on the right hip'. In other words, it took the best part of 22 months, from 24 February 2005 until 23 December 2006, before the appellant finally, and unequivocally, attributed his inability to continue working to having been struck on the right hip by the crane.

32 His Honour observed that the appellant's wife gave evidence in support of his account. She said that, a day or two after 24 February 2005, she observed a large bruise on the bottom part of her husband's right hip. She said that she applied 'Tiger Balm' to it. She said that a month or so later, she noticed him putting more weight on his left leg, and walking awkwardly. She said he increasingly complained of pain in his right hip thereafter.

33 The primary judge described the wife's evidence as lending 'peripheral' support to the appellant's case. Just why his Honour took that diminished view of its significance is unclear. The wife was not required for cross-examination. Her evidence was not therefore challenged. Perhaps his Honour had in mind, when characterising the wife's evidence in that way, that the appellant himself said that he had no recollection of any bruising after the 24 February 2005 incident.

34 In any event, his Honour described the wife's evidence as puzzling, having regard to the fact that, radiologically speaking, the x-rays and CT scans consistently showed the appellant's left hip to be in a far worse condition than his right. That must have been the position well before 24 February 2005.

35 The appellant's case was also supported to some degree by the evidence given by Mr Richard Hofer, a contractor and colleague of the appellant, as to the events of 24 February 2005. Mr Hofer noted the appellant's apparent pain and discomfort on that morning. He was unable to say, however, which side of the appellant's body appeared to have been injured.

36 In assessing the appellant's credibility, his Honour noted that Mr Patten's reports did not mention any traumatic incident as having caused or contributed to the appellant's difficulties. Those reports did, however, give rise to another dispute, this time between the appellant and Mr Patten. On 12 April 2007, after the appellant's operation on his left hip, Mr Patten wrote to Dr Demirtzoglou reporting that the appellant was 'making excellent progress' and was 'very happy with his left hip'. He reported that the appellant had said that his left hip was 'not painful at all'.

37 The appellant insisted that Mr Patten's report was entirely inaccurate. He claimed that he had always complained, both before and after hip surgery, that his left hip was very painful. He maintained that Mr Patten must have misunderstood what the appellant had repeatedly told him.

38 As his Honour observed, there was no dispute in this case that the appellant's hip condition was permanently disabling. In other words, if compensable injury had been established, there was no issue as to whether it would qualify as 'serious injury'. The problem that confronted the primary judge was that, each of the opinions advanced by the various orthopaedic surgeons was based entirely upon the appellant's version of what took place on 24 February 2005. Those opinions were all predicated upon acceptance of his claim that he was obliged to favour his right hip by transferring the load to his left hip.

39 After referring to a number of the relevant authorities governing the interpretation of s 134AB, his Honour said the following:

The first observation that I now wish to make is that on the evidence there is no doubt that an incident as generally described by the plaintiff occurred on the 24th February 2005. Mr Woodward's affidavit confirms the happening of the incident. He says, inter alia, that the plaintiff was struck by the boom end, ". . . it swiped him". He said it was hard to recall exactly on which part of the plaintiff's body he was struck - "he ended up with a limp and . . . a grazed arm".

That it was an incident of some significance I do not doubt, for notwithstanding the plaintiff's assertion that he went to his local doctor, Dr Demirtzoglou, that night, rather than as the doctor's records indicate, at about 11.00 am, it seems plain that it must have been that incident that sent him to the doctor.

It does not seem otherwise possible to reconcile the accounts of Dr Demirtzoglou and the plaintiff as to the reason for the plaintiff's attendance at the doctor's surgery at that time. Given the nature of the blow described by the plaintiff, and having seen photographs of a similar crane in the materials, it would seem to be more probable than not that it was because of that incident.

Again, it seems odd that the doctor did not record the plaintiff's reason for that morning consultation. He was cross-examined about other attendances by the plaintiff upon him where he had sometimes, in detail, recorded the reason for the attendance. But that recording, or lack of it in this instance, of course was not something over which the plaintiff had control.[3]

40 His Honour then closely analysed Dr Demirtzoglou's evidence and concluded that he had 'not always been a pristine historian'.[4] As I have indicated, that conclusion was entirely justified.

41 His Honour then turned to the appellant's credibility. He said:

The plaintiff showed himself to be an historian with some limitations as well. I need not dwell on them, but he was not a good witness in that regard and in other respects concerning his previous (unrelated) medical history.

At the same time he is the one who has undoubtedly been struck by the crane and has a better reason than anyone to particularly remember the events of the 24th February 2005.

The plaintiff's credit was not enhanced by his flat contradiction of Mr Patten's history of past left hip post-operational progress. No doubt the subsequent development of bursitis in that area has been a real trial for the plaintiff. But there is no reason to think why Mr Patten would have made a mistake in this regard.

There is, I regret to say, a real flavour in the plaintiff's evidence of his flatly contradicting any piece of evidence that is inconsistent with his own [new] account of events.[5]

42 Having made that finding, his Honour felt constrained to dismiss the application. He gave the following as his reasons for doing so:

I regret to say that I am unable to conclude, as the plaintiff is obliged to persuade me, that he sustained an injury to his right hip on the 24th February 2005. Although Mr McGarvie referred to a form of alternative argument, in reality the plaintiff's case was put squarely on that basis.

Although it may perhaps not be strictly necessary for my reasons in this regard, I think the likelihood is that when struck by the crane, the plaintiff suffered some exacerbation of his greatly degenerated left hip and earlier discomfort of which Dr Demirtzoglou spoke.

I should add that if I am wrong in my assessment of the plaintiff's case put before me, I would have had no hesitation in giving him leave to proceed under the heads of pain and suffering and pecuniary loss damages. So far as the latter is concerned, I would have some hesitation in accepting that the plaintiff would have been able to work, in any event, until the age of seventy years.[6]

43 The issues on the appeal were in relatively short compass. They focussed primarily upon the last three paragraphs of his Honour's judgment, as set out immediately above.

44 When his Honour said at [123] that the appellant had failed to persuade him 'that he sustained an injury to his right hip on 24 February 2005', it was submitted on behalf of the appellant that this did not amount to a rejection of his account of having been struck by the boom on his right hip on 24 February 2005. In that regard, it was said that the word 'injury' was significant. It was submitted that his Honour should not be understood as having rejected the appellant's account of the crane incident, particularly since he had earlier said, in his reasons for judgment at [104] to [105], that there was no doubt that such an incident 'as generally described' by the appellant had occurred.

45 It was further submitted that there was independent evidence to support the appellant's claim. Mr Woodward had confirmed the incident's happening, and it must have been, in his Honour's words, 'an incident of some significance'. The only explanation for his Honour's statement at [123], that he was not satisfied that the appellant 'sustained an injury to his right hip on the 24th February 2005', must be that he did not regard the blow to the appellant's right hip as having any relevant connection to his subsequent inability to work. It was submitted that such a finding was contrary to the evidence, and could not be supported.

46 The respondents, however, submitted that this was a fanciful interpretation of his Honour's finding at [123]. Had he accepted the appellant's account of having been struck on the right hip by a crane, it would have been inconceivable to think that he had not sustained any 'injury' to that hip. The only explanation for his Honour's finding, so it was submitted, lay in the qualified language he had used when he stated earlier that he accepted that the 24 February 2005 incident had occurred as 'generally described' by the appellant. In other words, his Honour, on this submission, was prepared to accept that the appellant was struck by the boom, but not prepared to accept that there was an injury to the right hip, as the appellant later claimed. It would follow that his Honour was not prepared to accept that the injury to the left hip occurred in the manner described by the appellant, and upon which he relied.

47 It is unfortunate that his Honour did not formulate his conclusion at [123] with greater precision. However, doing the best that I can, and reading the reasons as a whole, it seems to me that the respondents' contention as to the nature of that finding should be accepted.

48 The primary judge was obviously unimpressed with the appellant as a witness. He was entitled to come to that view. If the appellant had been struck by the boom on the right hip, in the way he later described in December 2006, it is difficult to imagine why he would not have mentioned that to Dr Demirtzoglou when he saw him on 24 February 2005. His Honour concluded that whatever Dr Demirtzoglou's deficiencies as a note-taker, he would certainly have recorded an incident such as the appellant later described, had he been told of it during that February 2005 consultation.

49 Perhaps more tellingly, Mr Patten at least would have made a note of the crane incident if it had been mentioned it in March 2006 when the appellant saw him. It was open to his Honour to conclude, as he seems to have done, that the appellant's complaint regarding his right hip as the source of the problems in his left hip was something of an afterthought, introduced to overcome the difficulty that degradation to the left hip, over many years, was not a compensable injury.

50 Of course his Honour might reasonably have come to a different conclusion. It could be said that Dr Demirtzoglou's evidence was almost worthless, given his deficiencies as a note-taker. That assessment, however, was a matter for the primary judge. It was he, after all, who had the advantage of having seen and heard both the appellant and Dr Demirtzoglou give evidence, and be cross-examined at some length. The fact is that neither the appellant nor Dr Demirtzoglou appear to have presented as reliable witnesses. There were many criticisms that could be levelled at each of them.

51 It was acknowledged, by the appellant, that if his Honour's finding at [123] bore the meaning attributed to it by the respondents, and if that finding remained undisturbed, this appeal must fail. That concession was properly made. The appellant's case, in whatever variant it was advanced, depended entirely upon his persuading the primary judge that he had sustained a blow to the right hip, on 24 February 2005, which eventually led to the problems affecting his left hip. He did not advance a case involving direct injury to his left hip. There was, in any event, no medical evidence to support such a case.

52 I was at one stage concerned about the process that was followed below. In my view, the appellant's wife ought to have been required for cross-examination, so that she could be challenged directly as to her claim that there had been an injury done to her husband's right hip. The rule in Browne v Dunn[7] is no less applicable to serious injury applications in the County Court than it is to other contested litigation.

53 Likewise, it can be said that counsel who appeared for the respondents below ought to have put squarely to the appellant, in cross-examination, that whatever may have happened on 24 February 2005, he had not been struck on the right hip, as he claimed. No such direct challenge was made. Instead, the appellant was cross-examined on the basis of his failure to have told Dr Demirtzoglou, when he saw him on that day, that he had sustained an injury to his right hip. The same line of cross-examination was adopted in relation to his failure to mention the crane incident, or any injury to his right hip, when he first saw Mr Patten.

54 It is a rule of professional practice that, unless notice has already clearly been given of counsel's intention to rely upon such matters, it is necessary to put to an opponent's witness, in cross-examination, the nature of the case upon which it is proposed to rely in contradiction of that witness's evidence. The primary justification for the rule is so that the other party, relying upon the witness, has the opportunity to call evidence to support the witness's account, or contradict any contrary inference sought to be drawn.[8]

55 An indirect challenge to the appellant's credit of the kind mounted below will not always satisfy the requirements of the rule. After all, one of its central tenets is the need to treat witnesses fairly. If it is to be suggested, ultimately, that a witness has lied, that should be put squarely to the witness so that he or she has the opportunity to answer that suggestion.

56 In this case, however, I am satisfied that no real prejudice was done by the failure to comply strictly with the rule. It was always clear that the respondents did not accept the appellant's account of having been struck by the crane on the right hip, and thereby injured, as being the source of the problems he later sustained with his left hip. Otherwise, there could be no point in cross-examining him at length as to why he had not told either Dr Demirtzoglou or Mr Patten about the crane incident, and the blow to his right hip. In that regard, it was put to the appellant quite specifically that Dr Demirtzoglou, despite his general inaccuracy as a note-taker, had correctly recorded, on the day in question, what he had been told.

57 So far as I can tell, and it was not suggested to the contrary, the appellant could not have called in aid any further evidence to support his claim that he had sustained injury to his right hip. He had already led such evidence from his wife. To a limited extent, Mr Hofer, who spoke of injury to the appellant's 'hips', using the plural, also supported that claim. Nothing more could be done to bolster the appellant's credit in response to a direct challenge of the kind that might, ideally, have been mounted. The same can be said of the failure to cross-examine the appellant's wife.

58 In short, any failure in this case to comply with the requirements of Browne v Dunn did not give rise to a miscarriage of justice.[9] The matter was ultimately one for the primary judge, and he was in a position to give it such weight as he deemed fit.

59 I should add for the sake of completeness that it was submitted that the description of the 24 February 2005 incident, as supported by Mr Woodward, made it inherently probable that any blow sustained by the appellant would be to the right side, in the vicinity of the right hip. I do not accept that submission. Much would depend upon the exact position that the appellant occupied at the moment of impact. Even a half turn would affect the outcome, and, apart from the appellant, there was no witness to the event who could say either way.

[1] Kovacic v Henley Arch Pty Ltd [2009] VSCA 56, [4] (Ashley JA).

[2] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 128 (Gleeson CJ, Gummow and Kirby JJ). See also Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551; Jones v Hide [1989] HCA 20; (1989) 63 ALJR 349, 351-2; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 179; and Devries v Australian National Railways Commission (1993) 177 CLR 472, 479 and 482-3.

[3] Burgess v Y-Trans Pty Ltd & VWA [2008] VCC 1482, [104]-[107].

[8] Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1, 16 (Hunt J).

[9] See generally the cases on Browne v Dunn which establish that failure to comply with the rule will not necessarily mean that there has been appealable error. The rule does not apply where the witness is on notice that his or her version is disputed. That notice may come from the general manner in which the case is conducted, see Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, 236. See generally Thomas v Van Den Yssel (1976) 14 SASR 205, 207 (Bray CJ).