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[2007] VSCA 104
Court of Appeal (Vic)
2007-05-23
MAXWELL P, BUCHANAN and NEAVE JJA
Original judgment source is linked above.
ACCIDENT COMPENSATION - Back injury - Appellant denied leave in County Court to bring an action for common law damages against employer because appellant failed to give accurate medical history to physicians - Adverse finding by trial judge as to appellant's credibility - Whether accident at work caused injury - Whether a serious injury - Appeal allowed because other evidence sufficient to establish accident at work caused injury - Case remitted to County Court - Accident Compensation Act 1985, s 134AB.
1 I have had the advantage of reading in draft the reasons for judgment of Neave JA. I agree with her Honour that the appeal should be allowed and I do so for the reasons which her Honour gives.
2 I agree with Neave JA that the appeal should be allowed for the reasons stated by her Honour.
3 The failure of the appellant to inform most, though not all, of the medical practitioners who examined him, of past injuries to his lower back and his silence as to previous back problems in his evidence in the County Court may have been due to the appellant's limited ability to communicate. I would accept, however, that the trial judge, having seen and heard the appellant being cross-examined, was entitled to conclude that the appellant was not a credible witness.
4 Nevertheless, there was potent evidence, which was not affected by any want of credibility on the part of the appellant, that on 26 October 2001 he sustained injury to his lower back which was a serious injury within the meaning of s 134AB(37)(a) of the Accident Compensation Act 1985.
5 It was not in issue that the appellant felt pain in his back while manoeuvring a large trough at work on 26 October 2001 and that he reported he had injured his
back. In the ensuing weeks the appellant complained to doctors about lower back pain, and the treatment he sought and received was consistent with injury to his lower back. The results of examinations and diagnostic tests made soon after the accident confirmed the existence of the injury. Finally, the appellant, who had demonstrated a strong desire to keep on working despite episodes of back pain, ceased to work at the end of 2001 and the consensus of the medical evidence was that he was no longer capable of performing manual work and was permanently incapacitated.
6 The trial judge failed to deal with this body of evidence, which, in my view, bore upon the question whether, on 26 October 2001, the appellant suffered serious injury in the form of aggravation of the condition of a spine affected by degenerative disc changes.
7 I agree with the orders proposed by Neave JA.
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:
"(c) the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker's employment was a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration."[2]
15 Section 134AB(37)(a) defines a "serious injury" as a "permanent serious impairment or loss of body function". Under s 134AB(38)(c) an injury is not to be held to be serious, unless 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... fairly described as being more than significant or marked, and as being at least very considerable."
16 The appellant had a number of episodes of back pain between 1986 and 26 October 2001. The fact that the appellant had a back condition which caused him pain from time to time before 20 October 1999, does not, of itself, prevent him from satisfying s 134AB(2). But in order to obtain leave to commence proceedings under s 134(16)(b), it was necessary for him to prove, on the balance of probabilities, that his injury (in this case the aggravation of a pre-existing degenerative condition of his back) occurred after 20 October 1999 and that it was serious.[3] As was recognised in Barwon Spinners Pty Ltd v Podolak[4]--
"It then becomes critical for a plaintiff to identify, for the purposes of sub-s.(1), compensable injury that is referable to employment on or after 20 October 1999 but not to employment before it. Without that identification, the plaintiff fails to establish how far and to what extent s.134AB applies and in particular to what specific injury the section applies (including the leave provision in subs.(16)(b)), which means in turn that the plaintiff fails to establish just what was the injury that has to satisfy the description "serious injury" if leave is to be given."
17 In this case he claimed that his injury was the result of the accident on 26 October 2001. Thus the issues to be determined by the learned trial judge were whether the appellant had established, on the balance of probabilities, that the accident which occurred on that day caused an injury and whether that injury was serious.
18 The learned judge below refused the application for leave on the basis that the appellant had not discharged the onus of proving, on the balance of probabilities, that the accident on 26 October 2001 caused him to suffer from a "serious injury". His Honour's conclusion was largely based on the view that the appellant was not a credible witness as to the cause or the extent of his injury and that the medical reports put in evidence could not be relied upon, because they were based on the inaccurate medical history which Mr Cakir had given to the doctors who examined him.
19 The plaintiff had deposed by affidavit that--
"Prior to suffering my injury on 26 October 2001 I can not recall having suffered any other back injury. I have been advised that I had a claim when working for the Defendant in 1990 for back pain and that I was off work for a short time before returning to full-time work. I did not have any ongoing problem with my back as a result of it."
20 His Honour referred to a number of medical reports which showed that Mr Cakir had not given an accurate medical history to some of the doctors who examined him. Mr Michael Shannon, a consultant surgeon, saw the appellant on several occasions and provided reports to the respondents. His first report noted that Mr Cakir--
"When I first examined Mr Cakir in November 2003 he indicated that he had no previous history of back trouble.
However he is noted to have had treatment with his GP/works doctor in March 1986 for recurrent back pain and he had a further episode in November 1986 and again in November 1987, May 1989, August 1990, February 1992, August 1995, September 1995, November 1996, October 1997, September 2000.
In other words he had chronic recurrent low back pain but the relationship of these various events to his employment is somewhat obscure."
22 Similarly Mr Brian Barrett, a consultant orthopaedic surgeon, who first saw the appellant at the request of his general practitioner in November 2003, reported that the appellant:
"told me he had no history of back pain or lumbar injuries prior to October 2001 and his general health has otherwise been good in the past."
23 Nor did Mr Cakir give a history of back pain to Dr Pun, the specialist rheumatologist to whom he was referred by his general practitioner in December 2001.
24 His Honour acknowledged that Mr Cakir had told Dr Baker, who examined him on 9 August 2005, that he:
"had a minor back problem about 15 years ago and had about one month off work "
25 His Honour also referred to the report of Dr Mutton, who examined the appellant on 27 November 2001, shortly after the accident occurred. In his report to the respondent's insurers, Dr Mutton noted that--
"Mr Cakir provides a history of low back pain consequent upon heavy straining whilst performing his activities at Arnott's."
"Mr Cakir provides a history of back injury more than five years ago requiring some two months off work. "
26 Dr Mutton also noted that there was evidence of pre-existing degeneration of the spine.
27 His Honour referred to other evidence showing that Mr Cakir had first complained of pain in his lumbar spine on 25 March 1986 and had complained of back pain on many other occasions since that time. Although he had not had much time off work over the years, his Honour said that the reported mechanism of the injury was significant.
28 His Honour said that--
"It can be seen that the plaintiff has been injured a number of times over the years pushing or pulling troughs or trolleys or lifting things. Given the absence of any significant physical injury evident to the medical practitioners who examined and treated him immediately after 26 October 2001 which was apparently referable to the incident on that day, it was important, in my opinion, for the plaintiff to give a full and frank history of his back complaints so that an accurate diagnosis could be made and opinions formulated as to treatment and causation."
29 When the contents of medical reports were put to the appellant in cross-examination his consistent response was that he could not recall most of the occasions on which he suffered injury or had time off work. His Honour rejected this evidence, commenting that--
"I do not accept the plaintiff's evidence on this issue nor his assertions that he told treating and reporting medical practitioners, with the exception of Drs Mutton and Baker, of his prior history of back problems. Further, I note that the relevant histories provided to those two doctors were fairly limited. All in all, I was not impressed with the plaintiff as a witness."
30 His Honour found that the appellant could not be relied upon as a witness of truth and concluded that:
"...in the absence of any contemporaneous medical evidence confirming a frank injury to [the appellant's] lumbar spine apart from an age related degenerative condition, I have considerable difficulty reaching satisfaction on the balance of probabilities that a cause of his present claims of pain, restriction of movement and incapacity for work was the accident on 26 October 2001."
It was on this basis that he refused the appellant's application for leave.
Grounds of appeal
31 The appellant contends that his Honour's findings were contrary to the weight of the evidence. In essence, grounds of appeal 1 to 5 contended that the learned trial Judge did not give sufficient weight to the evidence supporting the appellant's claim that his injury was caused by the accident on 26 October 2001. Particular reference is made to evidence of the doctors and physiotherapists who examined Mr Cakir shortly after the accident occurred. Grounds of appeal 6 and 7 contended that his Honour's reasons for decision were inadequate.
The appeal
32 Section s 134AD of the Act requires this Court to decide for itself whether the injury is a serious injury, on the evidence before the judge who heard the application and any other evidence which this court may receive under any other Act or rules of court.
33 The onus is on the appellant to persuade the Court that the decision below should be reversed or set aside. The decision must be reversed or set aside if the Court decides that the decision below was wrong, even if a specific error or errors made by the trial judge cannot be identified. The Court must, however, give appropriate weight to the advantages of the trial judge, who has had the benefit of seeing and hearing the witnesses.[5]
34 The appellant gave viva voce evidence, through an interpreter. As is common practice, medical reports were tendered at trial and the medical witnesses were not cross-examined.
35 In Barwon Spinners Pty Ltd v Podolak[6] it was said that Brooking JA's statement in Mobilio v Balliotis[7] remains pertinent. His Honour said that:[8]
"where, as is often the case when personal injuries are in question, the opinions of medical experts are to a considerable extent dependent upon the accuracy of the claimant as historian, the advantage which the primary judge has in assessing the claimant's credibility assumes an importance that is, so to speak, both direct and indirect, when the judge comes to evaluate the lay and expert evidence that has been given."
36 As I have said, the central issue in the appeal is whether his Honour was wrong in concluding that the appellant had failed to establish, on the balance of probabilities, that his injury was caused by the incident on 26 October 2001, and that the injury had caused an impairment or loss of body function coming within the definition of serious injury.[9]
37 The evidence relevant to Mr Cakir's claim can be summarised as follows. First, it is common ground that an incident occurred on 26 October 2001, after which Mr Cakir reported that he had injured his back.
38 Secondly, the appellant gave a consistent history about the onset of his pain to the doctors and physiotherapists, from whom he obtained treatment shortly after the accident. It is useful to set out a chronology of the events which occurred shortly after the accident.
•
29 October 2001: the appellant presented at the Valley Private Hospital Emergency Department, complaining of back pain from pushing a heavy trolley on 26 October 2001.
•
30 October 2001: the appellant presented to a doctor at the Wheelers Hill Clinic complaining of lower back pain after pushing a tray at work on 26 October 2001.
•
30 October 2001: the appellant presented to his GP, which he said was because of an injury sustained to his lower back when trying to push a heavy trolley at work on 26 October 2001.
•
30 October 2001: the appellant was assessed by a physiotherapist, Mr Justin Gateley, and reported "an acute onset of back pain when pushing and pulling a large bin at work, three days earlier". He reported "constant pain in the back and left groin, and some difficulty urinating." He told the physiotherapist that he had had pain in his low back on and off over the past 20 years.
•
9 November 2001: the appellant attended upon a physiotherapist, Ms Howison, at the Lakeview Clinic, complaining of back injuries arising from pushing a "large trow" at work on 26 October 2001. Ms Howison commented that--
"As Mr Cakir has limited English it was difficult for the physiotherapist to get a very good history from him but there was mention of some lumbar spine soreness previously in 1986/87, however I am unable to comment on the nature, comparison or relation to the 2001 injury."
•
12 December 2001: the appellant saw Dr Pun, a specialist rheumatologist in relation to back pain arising from moving a trolley on 26 October 2001.
39 Thirdly, diagnostic tests performed shortly after the accident identified a physiological basis for the appellant's symptoms. A CT scan of his lumbar spine on 30 October 2001 reviewed by Dr Taft, a doctor at the Wheeler's Hill Medical Clinic, showed:
"mild-moderate bulge L4/5 minimal L4/5 bulge but no evidence of significant canal stenosis resulting."
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 --
•
Examination of the appellant's spine by the Valley Private Hospital Emergency Department shortly after the accident showed a restrictive range of movement, as well as tenderness and muscle spasm over facet joints on both sides of the lumbar spine. Straight leg raising was 90 degrees on both sides and there were no neurological deficits.
•
Dr Allchin saw the appellant on 30 October 2001. In his report of 14 April 2003, he referred to scans which showed:
"a minimal L3-L4 disc bulge and a moderate sized disc bulge at L4-5 which was pressing on the Theca....[An] MRI revealed a moderate to large disc bulge, which was displacing the left L5 nerve root posteriorly."
I note that, although that report made no reference to a history of back pain, Dr Allchin is recorded in the Arnott's Medical Records as having attended upon the appellant a number of times over the years prior to assessing him after the incident on 26 October 2001. It is difficult to conclude that the appellant sought to keep his history of back problems from Dr Allchin, who had treated him on several previous occasions for complaints relating to his back.
•
Dr Pun first saw the appellant on 12 December 2001. Her report referred to the CT scan and MRI discussed above. Dr Pun arranged for the appellant to have an epidural cortisone injection, but reported that this course of action did not help. Dr Pun said the prognosis was not optimistic and she expressed the view that the respondent had no capacity to perform strenuous work, and that his condition was likely to remain chronic and may deteriorate with time and increasing age.
•
Dr Woo is a general practitioner. In his report dated 2 December 2005 he said that Mr Cakir was "permanently unfit for any type of work due to a severe lumbar disc condition".
•
Mr Johnson is an orthopaedic surgeon who saw the appellant on 5 April 2002, at the request of Dr Pun. In April 2003 he reported that it was most likely that the appellant's symptoms were related to a left sided annular tear at L4-L5 level and that he believed Mr Cakir was incapable of performing his previous work. He expressed a similar, but more tentative, conclusion as to the cause of Mr Cakir's pain in later reports, but again concluded that "his prognosis will be poor". In his report of 27 July 2005, Mr Johnson commented that in his most recent examination Mr Cakir demonstrated a number of non-organic signs which made exact determination of his level of physical disability difficult. Overall the appellant's prognosis was poor. Mr Johnson noted that--
"He has now had his symptoms for a prolonged period and in the absence of any improvement I think it likely they will persist for the foreseeable future."
•
Mr Brian Barrett was an orthopaedic surgeon who saw the appellant at the request of his general practitioner in November 2003. Mr Barrett discussed the CT scan and the results of a myelogram performed in July 2002. He concluded that the myelogram showed posterior disc bulges at both the L3-4 and L4-5, particularly involving the left L5 nerve root, and that there was some nerve root pressure on the left at L5-S1 as well. He explained to Mr Cakir:
"that he should not return to heavy physical activities or similar work in the future, and that his symptoms would be kept to a minimum by avoiding prolonged stooping and heavy lifting situations as much as possible."
•
Mr Shannon, a surgeon, examined Mr Cakir on behalf of the respondent, in October 2003, and again in July 2004 and August 2005. His 2003 report concluded that "Mr Cakir has sustained aggravation of pre-existing lumbar disc degeneration in the form of a left sided L4/5 disc prolapse, with neurological involvement" and that employment was a significant contributing factor. Mr Shannon also expressed the view that the respondent had developed functional overlay but that:
"[n]evertheless he does appear to have some genuine restriction of movement and some minor spasm in his back and I doubt his capacity to perform significant physical work."
By 2005, Mr Shannon concluded that given the appellant's age, lack of qualification and lack of motivation, the chances of him seeking or obtaining employment in the future were negligible.
•
Dr Fish, a consultant occupational physician, interviewed Mr Cakir on behalf of the respondent on 19 September 2003, with the assistance of a Turkish interpreter. He reported that "the cervical spine revealed reduced mobility in all directions. The lumbar spine revealed no specific tenderness but his range of motion was grossly restricted". He also said that the appellant "ha[d] clearly suffered an aggravation of previous lumbar spondylosis."
•
Dr Clayton Thomas, a consultant in rehabilitation and pain medicine, interviewed Mr Cakir for the respondent on 11 August 2005, with the assistance of a professional interpreter. His report referred to Mr Cakir's previous long term back injury. Mr Thomas reviewed the findings relating to the disc injury mentioned above. Based on his injury and his age Dr Thomas concluded that--
"the nature of [Mr Cakir's] incapacity and restrictions would preclude success in gaining any mainstream employment."
•
Mr Troy (FRCS FRACS) saw the appellant on 17 March 2004. In his report of that date, he diagnosed the appellant with--
"Age-related degenerative changes of the lumbar spine, namely the discs at L3/4 and L4/5. Degenerative spondylosis of the cervical spine."
•
A medical panel to which the appellant was referred for the purposes of s 104B(9) of the Act reported on 28 July 2004 that he had a whole person impairment of 10% resulting from the "physical aggravation of degenerative changes in lumbar and cervical spine injuries". The impairment was permanent.
•
Dr Baker examined the appellant on 9 August 2005 and reported on 22 August 2005. He reviewed earlier reports and radiography and reported that Mr Cakir was:
"suffering with degenerative disc changes in the lower lumbar spine and... a symptomatic disc at the L4-5 level and possibly at the L5-S1 level. It is noted that he also complains of left leg symptoms although at the time of my assessment there is no objective evidence of radiculopathy. I consider that he has had symptomatic disc pain around 1986, but based on his history there was an aggravation of the symptomatic disc in October 2001 and he has not undertaken any sustained work since."
He considered that Mr Cakir was not capable of undertaking his pre-injury employment, but would be capable of restricted work. Mr Cakir was, however, exhibiting pain behaviour and perceived himself as totally incapacitated.
Was the appellant's injury caused by the accident on 26 October 2001?
45 In Barwon Spinners v Podolak, this Court said that: [11]
"it is for the appellant ... to carry the burden of persuasion [as to error below], and that burden is the more difficult to discharge when the finding below was against the person on whom the onus lay in the first place and credit was in issue."
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:
"...it is agreed among most of the medical reporters that the plaintiff is incapable of returning to his pre-injury duties although Dr Baker and Mr Shannon are of the view that he could do some light work with appropriate restriction. Mr Barrett, the plaintiff's treating orthopaedic surgeon, was of the view... that the plaintiff was unfit for any work."
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:
"is to be measured by comparing the worker's gross income from personal exertion (expressed at an annual rate) which the worker is earning or is capable of earning in suitable employment as at that date with the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred."
63 On the basis of the material before this Court[15] I would be inclined to find that both the "narrative test" and the additional loss of earning capacity test in s 138AB(e) and (f) are satisfied. However the submissions made to this Court did not directly address the statutory tests for serious injury.
64 In these circumstances it is appropriate to remit the case to the County Court for a determination of the question whether the injury suffered by the appellant as the result of the accident on 26 October 2001 had serious loss of earning capacity and pain and suffering consequences. I note that this will also require the disentangling of the physical consequences of Mr Cakir's injury from its psychological consequences.[16]
65 I would allow the appeal and remit the case to the County Court to determine whether the appellant should be granted leave to commence proceedings for the recovery of pain and suffering damages and damages for loss of earning capacity with respect to the back injury suffered as the result of the accident on 26 October 2001.
[1] Under s 134AB(16)(b) of the Accident Compensation Act 1985.
[2] Note that under section 259 of the Act, this definition of "injury" applies to injuries that occur before the date of commencement of section 3 of the Accident Compensation and Transport Accident Acts (Amendment) Act 2003, Act No. 95/2003. Section 3 of that Act came into operation on 3 December 2003, being the day after Royal Assent was received (Gazette n 49, 4 December 2003, page 3064).
[3] Grech v Orica Australia Pty Ltd and Anor [2006] VSCA 172. The fact that he had asymptomatic physiological changes, which did not produce any symptoms before 20 October 1999, would not preclude the appellant from obtaining leave.
[4] [2005] VSCA 33, [13].
[5] Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33, [45]-[46]; see also Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187.
[7] [1998] 3 VR 833, 836.
[8] Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33, [46].
[9] Under Accident Compensation Act 1985, s 134AB(37).
[10] For example, after the episodes in March 1986, massage and Metsil rub were diagnosed. In 1990 an X-ray was taken and Brufen was given. In 1992, a back complaint was treated with an ice pack. 1995 saw the appellant treated with ABC plaster, Brufen, Neurofen and a referral to the physiotherapist. In 1996, the Arnott's Medical Clinic recommended Neurofen and Voltaren gel. In 1997, massage, plaster and Codis were applied and a physio was recommended. In 2000, exercise was the recommended treatment for his back pain.
[11] [2005] VSCA 33, [45].
[12] Ibid.
[13] Accident Compensation Act 1985, ss 134AB(38)(b) and (c).
[14] Accident Compensation Act 1985, ss 134AB(38)(e)(i) and (ii).
[15] The appellant's tax returns for the years 1997-2001 were tendered in evidence.
[16] Accident Compensation Act 1985, s134AB(38)(h) and (i). See now Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46.
Cakir
Arnott's Biscuits Pty Ltd [2007] VSCA 104