Cakir v Arnott's Biscuits Pty Ltd [2007] VSCA 104

Cakir v Arnott's Biscuits Pty Ltd [2007] VSCA 104 - VSCA 2007 case summary — Zoe

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8 The appellant, Mr Cakir, claims that he sustained a serious injury to his back, in the course of his employment. He applied to the County Court for leave to bring an action for common law damages against his employer, Arnott's Biscuits Pty Ltd ("Arnott's").[1] He now appeals against refusal of that application.

9 The factual background to this appeal is as follows. The appellant was born on 12 April 1953 in Turkey. He had only five years formal schooling and his English is poor. He came to Australia in 1977 and began work at Arnott's in 1980. He continued working there until December 2001, except for a break in 1993, when he returned to Turkey for a year.

10 Mr Cakir's claim relates to an injury which he says he suffered while he was working on 26 October 2001. His main work involved operating a forklift to manoeuvre large bins and other heavy items around the factory. The accident occurred when he delivered a large trough to a machine. An empty trough normally weighed between 270-280 kilograms. On 26 October 2001, the forklift that was carrying the trough could not get close enough to the machine and the appellant had to manually manoeuvre it, because the wheels of the trough were faulty.

11 Mr Cakir said that while he was manoeuvring the trough, he experienced a pain in his back, which he reported to his team leader. Because he was still having pain three days after the accident he was sent to the Valley Hospital, where he was given Ducene and Voltaren. The next day, Mr Cakir attended the Wheelers Hill Clinic, where he was referred for physiotherapy and a CT scan. He also saw his general practitioner, Dr Allchin, on that day.

12 The appellant again attended on Dr Allchin, on 1 November 2001, and was prescribed Tramal capsules to relieve the pain. He continued to work until 6 November when she put him off work. By 11 November he was feeling better and returned to work on normal duties. The appellant went to see Dr Allchin again on 4 December and said that he still had back and leg pain, but wanted to continue working.

13 Over the next few months the appellant had diagnostic tests and received medical treatment and physiotherapy. He continued to work for most of the time until about Christmas 2001, although he was experiencing lower back pain, which radiated into his legs. He has not worked since that time. He now claims that he is suffering from a "serious injury" as defined by the Accident Compensation Act 1985 (Vic) ("the Act").

The judgment below

14 Under s 134AB(2) of the Act a worker can recover damages in respect of a serious injury which arose on or after 20 October 1999. The definition of injury includes:

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40 An MRI ordered by Dr Pun in January 2002 showed desiccation of the lower two intervertebral discs with a moderate to large L4-L5 disc bulge containing a left sided radial fissure and displacing the left L5 nerve root. There was a moderate sized disc bulge at L5-S1 containing a radial fissure without any neural compression. Further diagnostic tests in 2002, 2004 and 2005 continued to show disc protrusions at L4-L5 and L5-S1, with some minor canal stenosis at the L4-L5 level.

41 I note that his Honour did not refer to the reports of Dr Taft and Dr Allchin, which provided objective evidence of an organic basis for the appellant's pain, shortly after the injury on 26 October 2001.

42 Fourthly, as I have said, clinical notes kept by the Arnott's Medical Centre and the appellant's general practitioner show that the appellant had a number of episodes of back pain before 26 October 2001. Many of these were reported only to the Arnott's Medical Clinic. On some of these occasions the appellant was treated with physiotherapy, or the application of heat. On others he was prescribed an anti-inflammatory medication.[10] He was absent from work for some hours in November 1986, and had two days off in November 1987 for back related complaints. The appellant had time off between 12 May and 2 June 1989 for injuries arising out of a motor vehicle accident. The appellant had two further periods of time off between 13 August and 11 September 1990, and between 10 January and 17 January 1992. He did not have any time off work for back pain after 1992, though he reported pain to the Arnott's Medical Centre on a number of occasions in August 1995, October and November 1996, October 1997, June 1998, September 2000 and January 2001. After 1997 he had nine minor recurrences of pain which did not require time off work. Between 1986 and 2001 he visited Dr Allchin for back related maladies on 11 occasions.

43 The question, then, is whether the evidence should have led the learned Judge to conclude that the appellant had established, on the balance of probabilities, that he suffered a serious injury on 26 October 2001, despite his finding that the appellant was not a credible witness.

44 In determining this question it is necessary to review the medical evidence in some detail. The evidence is as follows --

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46 The Court in that case emphasised that where a finding of fact is challenged, this court must "recognise and give appropriate weight to the advantages of the trial judge who has seen and heard the witnesses."[12]

47 I must therefore give considerable weight to His Honour's conclusion that the appellant was not a credible witness, so far as the effects of the accident were concerned. I must also take account of the extent to which the medical reports in evidence were based on the inaccurate history which the appellant gave his doctors. In his reasons his Honour acknowledged that the appellant reported previous back problems to Dr Baker and Dr Mutton, though he said that the history given was incomplete.

48 I also note that Mr Cakir reported earlier back pain to his physiotherapists, Mr Gately and Ms Howison, and that Mr Gately's examination was the subject of a report by Mr Perriman. That report was made available to Dr Mutton. Associate Professor Mendelson's report said that Mr Cakir had reported problems with his memory and could not recall attending a previous appointment. Although his Honour was in a better position than this Court to assess the appellant's credibility, I would be reluctant to attribute the appellant's inconsistent references to his previous back condition to deliberate dishonesty.

49 However, even if the appellant deliberately denied that he had previously suffered from back problems, an adverse finding on the appellant's credibility did not, in my view, justify refusal of the appellant's application. In order to conclude that the appellant was not entitled to leave to commence common law proceedings it was necessary for his Honour to analyse and give appropriate weight to all the evidence both as to the cause and as to the seriousness of the appellant's injury. That evidence is set out above. It includes the circumstances in which the injury was reported, the appellant's physical condition before and after the accident, evidence as to the cause of the appellant's pain provided by diagnostic tests and the opinions expressed by the appellant's treating doctors and the other experts.

50 Prior to the incident of 26 October 2001 the appellant was doing heavy physical work in the factory. Although he was suffering from age-related degeneration of the spine and had had previous incidents of back pain, he had not taken time off work because of his back condition for nine years. His previous incidents of back pain were usually treated with medication and/or massage and the application of heat or ice packs.

51 Almost immediately after the incident occurred on 26 October 2001 the appellant reported that he was suffering from back pain. He gave a consistent history about the onset of that pain to all the doctors and physiotherapists from whom he sought treatment shortly after the accident. He returned to full-time work after the accident and it was not until December that he told his doctor he could not continue.

52 The diagnostic reports obtained shortly after the accident show that the appellant's pain had a physiological basis. Although the appellant did not tell all of his doctors about his previous history of back pain, there was objective evidence in the form of a CT scan and an MRI that his pain at that time was attributable to disc prolapse and/or an annular tear at L4-L5 level, and possibly to disc damage at L3-L4 as well, which aggravated changes caused by the ageing process. Mr Barrett's and Mr Shannon's reports suggested that the severity of the appellant's symptoms may be partly due to functional overlay, but this issue was not mentioned in his Honour's reasons. His Honour did not find that Mr Cakir exaggerated the severity of his pain or that it was the product of functional overlay, but rather that he misled the doctors as to its cause.

53 There is also a consensus in the medical reports that the appellant continues to suffer from disc injury which prevents him from doing heavy physical work of the kind he was doing before 26 October 2001. Indeed, as his Honour noted:

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54 The medical reports are based in part on the objective evidence provided by diagnostic tests and do not depend solely on the history which the appellant gave to the doctors.

55 His Honour took the view that the appellant's inconsistent or incomplete reports of a prior history of back pain meant that there was no evidence from which it was possible to infer that the appellant's pain and other symptoms were referable to the incident of 26 October 2001. I do not agree.

56 It is theoretically possible that a CT scan prior to 26 October 2001 would have revealed that the appellant was already suffering from a disc injury not diagnosed until after that date. However there is no evidence that this was the case. The appellant was suffering from age-related spine degeneration prior to 26 October 2001. However, as counsel for the appellant submitted, the objective fact was that he was doing heavy work on a full-time basis in the Arnott's factory up until 26 October 2001. The appellant had had no treatment more serious than exercise, plaster and Codis since October 1997, and his back condition had not resulted in him taking time off work since 1992.

57 Comparison of the appellant's condition prior to and after the accident, in combination with the objective findings in the medical reports, supports the inference that his current condition was caused by the accident on 26 October 2001. Although the appellant must prove, on the balance of probabilities, that the injury causing his impairment occurred after 20 October 1999, and that that injury was serious, the court can rely on the inference arising from a comparison of the appellant's condition before and after 26 October 2001. In my opinion this does not impermissibly reverse the burden of proof cast on the appellant. The inference which can be drawn from the facts does not, in the circumstances of this case, depend solely on the finding of the learned judge below as to the appellant's credibility.

58 I therefore reject the respondent's submission that the inaccurate history given by the respondent to some of the doctors meant that there was no reliable evidence that he suffered an injury of any consequence on 26 October 2001. In my opinion the medical evidence, including the evidence provided by the diagnostic tests, when combined with the inference which can be drawn from the difference between the appellant's pre-and post-accident condition, was sufficient to establish on the balance of probabilities that the appellant's inability to work was caused by that accident.

59 It is not necessary for me to point to a specific error made by the learned trial judge. In my view, however, his Honour was led into error by giving insufficient weight to the evidence of the appellant's treating doctors about the physical cause of the pain experienced by the appellant shortly after 26 October 2001 and to the comparison between the appellant's physical condition pre and post 26 October 2001. It was at that date that the appellant's position changed from that of a man whose physical condition allowed him to do heavy physical work, albeit with some back pain, to a man whose injury prevented him from doing such work, or, in the opinion of some of the medical experts, any work at all.

60 My conclusion on this matter makes it unnecessary to consider the ground of appeal relating to the adequacy of his Honour's reasons.

Did the aggravation of the appellant's previous back condition amount to a "serious injury"?

61 Because his Honour found that the appellant had not satisfied the onus of proving that his injury was caused by the accident on 26 October 2001, he did not consider whether the appellant's injury amounted to a "permanent serious impairment or loss of body function". In his particulars of injury the appellant sought leave to commence common law proceedings to recover damages for both pain and suffering and loss of earning capacity. To obtain leave in relation to pain and suffering the appellant must satisfy the "narrative test" for serious injury, which requires him to show that, when compared with other cases in the range of possible impairments or losses of body function, the pain and suffering consequences can "fairly be described as being more than significant or marked, and as being at least very considerable."[13]

62 In the case of loss of earning capacity damages the appellant must also show that at the date of the hearing of the application he had a loss of earning capacity of 40 per centum or more and that after the date of the decision he will continue permanently to have a loss of earning capacity which will be productive of financial loss to 40 per cent or more.[14] Section 134AB(38)(f) provides that a worker's loss of earning capacity:

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Judgment (64 paragraphs)

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