Dalton v Dandenong Scaffolding Hire Co Pty Ltd [2003] VSCA 183

Court of Appeal (Vic)|2003-11-20|Before: BUCHANAN and CHERNOV, JJ.A. and ASHLEY, A.J.A.

Accident Compensation - Application for leave to bring common law proceedings - Reliance on aggravation or acceleration by employment of pre-existing degenerative spinal condition - Appeal against dismissal of application - Whether approach in Petkovski v. Galletti [1994] VicRp 32; [1994] 1 V.R. 436 must always be adopted - No material errors in reasons of trial judge - Decision not plainly wrong.

For the reasons given by Ashley, J.A. I agree that the appeal should be dismissed.

Kenneth Dalton brought an application in the County Court by which he sought leave pursuant to s.135A (4)(b) of the Accident Compensation Act 1985 ("the Act") to bring a proceeding for damages for spinal injury which he alleged he had sustained in the course of his employment by Dandenong Scaffolding Hire Co Pty Ltd between June 1993 and July 1996. The application was heard in June 2002 and by judgment given 5 August that year it was dismissed. Now Mr Dalton appeals.

In order to understand the matters raised by the appeal it is necessary to appreciate what was in issue at the hearing below. It should first be noted that many matters were not in dispute. Thus, the appellant, then aged 62, was a scaffolder by occupation. He had worked in that trade for 35 years, the last 3 years of them for the respondent. His work with the respondent had involved repetitive lifting of scaffolding parts. Mainly they weighed between 7-8 kgs and 40-50 kgs. Some of them weighed up to 75 kgs. In July 1996 he had been laid off work. After working in his garden for some days during the period of his lay-off he had developed low back and left leg pain. He had attended his general practitioner on 13 August 1996. Medical investigations had ensued. There had been an opportunity for him to resume work with the respondent; but his low back condition had precluded it.

I referred a moment ago to medical investigations. What they revealed may be summarised as follows: x-rays performed shortly after 13 August 1996 showed marked narrowing at L5-S1 with degenerative changes. A CT scan dated 11th September, 1996 confirmed narrowing of the lumbo-sacral disc and mild degenerative changes in the lower lumbar facet joints. A CT scan on 17th February, 1998 demonstrated a calcified central disc annulus bulge at L5-S1 with degenerative change at the facet joints and lateral recess canal stenosis, more marked on the left. A L4-5 a left postero-lateral disc protrusion was demonstrated with lateral extension and displacement of the left L4 nerve root. An MRI scan on 23rd August, 1999 demonstrated multi-level disc degeneration with broad based left para-central disc protrusion at L4-5 and mass effect on the left L5 nerve. Retrolisthesis and marginal spur was demonstrated at L5-S1 resulting in bilateral bony foraminal stenosis, worse on the left than the right, resulting in minimal compromise of the left exiting S1 nerve root.

Apart from the matters which I have so far identified as not being in dispute four others may be added. First, in April 1994 the appellant attended a locum of his general practitioner. A diagnosis of left sciatica was made. Medication was prescribed. Symptoms disappeared within a few weeks. No history was given of the sciatica being triggered by a work incident. The relevant entry on the doctor's card read: "No specific aggravation - work as scaffolder very heavy and tiring."

Second, in May 1996 the appellant attended his general practitioner. He was then complaining, according to the doctor's notes, of problems with micturition, calluses, and "pain/cold feet". The notes show that his peripheral pulses were tested, and were satisfactory. It is further common ground that at this time the appellant was advised to use, and obtained, mouldable orthotic inserts. The doctor's notes, it should be added, did not record any asserted relationship between work strains and the "pain/cold feet."

Third, the appellant attended his general practitioner on 12 June 1996 and 18 July 1996. Nothing was recorded in the doctor's notes on those occasions to suggest any complaint of "pain/cold feet"' or, for that matter, any problem with back pain.

Fourth, the appellant claimed and was paid compensation under the Accident Compensation Act 1985 in respect of incapacity resulting from his back condition.

By a claim form dated 23 October 1996 the appellant described the allegedly compensable injury simply as "back injury". He alleged that his injury was caused by "constant repetitive heavy lifting, bending and carrying." Asked about prior relevant pain or disability he mentioned "pain for four weeks in 1994." This was the first occasion, it seems clear, on which the appellant made a claim for compensation against the respondent in respect of a back condition.

So much for matters which were not in dispute on the hearing of the application. It is next convenient to refer to the Particulars of Injury relied upon by the appellant in connection therewith. Thus, relevantly,

"(a) Injury to the lumbar spine involving broad based para-central disc prolapse at L4-5 level with compressed left L5 nerve root, retrolisthesis and marginal spur, together with bilateral bony stenosis at L5-S1 level causing compromise of the left S1 nerve root. (b) Referred left leg pain.[1]"

That particularisation, in part explicitly and in part implicitly, addressed two types of injury: that is, lumbar intervertebral disc prolapse and aggravation or acceleration of pre-existing lumbar spinal degeneration. Looking at the matter from the standpoint of "injury" as defined by the Act, the particularisation was apt to raise allegations that the appellant had suffered:

* A specific episode of employment - caused disc prolapse, albeit in the context of a man with a degenerate lumbar spine;

* A general aggravation or acceleration by work strains of pre-existing lumbar spinal degeneration.

Although, perhaps, the appellant might have sought to contend that disc prolapse (first detected on CT scan performed 16 February 1998) occurred at the time of onset of sciatica in April 1994, or that it occurred in May 1996, and in either event was a consequence of work strains at the time, no such precise case, as I apprehend it, was ever advanced. Rather, the appellant's case was simply that at the end of the period of his employment by the respondent he was suffering a serious long-term impairment of his lumbar spine which was sufficiently connected with that employment to satisfy the requirements of s 135A (4)(b), (19). That connection was to be discerned from these circumstances: the presence as at 1993 of asymptomatic lumbar spinal degeneration; the fact of repetitive work strains between 1993 and 1996; the development of sciatica in April 1994; the development of leg symptoms - the significance of which was misunderstood by the general practitioner - in May 1996; and the fact that the appellant could go about his ordinary work in 1993 but was incapacitated by 1996. The breakdown which occurred in August 1996 was said to be, in effect, a consequence or reflection of the compensable injury.

It can be seen that the approach taken for the appellant involved no real attempt to define the injury which he had allegedly suffered in his employment by the respondent; and then to delineate its impairment consequences. It presumed that there had been an injury, in the sense that there had been some employment aggravation or acceleration of a pre-existing degenerative spinal condition; then pointed to the extent of impairment as at August 1996. No doubt that approach took comfort in the fact that the appellant had been paid compensation for a "back injury".

Neither from the respondent's standpoint, as it appears, was there any attempt to delineate the alleged injury, and then to consider its impairment consequences. In all, the matter seems to have been pursued for the respondent on the simple footing that any contribution to the appellant's impairment as at August 1996 caused by three out of 35 years work stresses and strains should be considered inconsequential.

A considerable number of medical reports were put in evidence below. None of the medical practitioners gave viva voce evidence. Many of the doctors had been provided with an incomplete history by the appellant. Sometimes he had said nothing about the 1994 episode of sciatica. Sometimes he had not mentioned development of symptoms in May 1996, or his attendance on his general practitioner at that time. Where he had given incomplete history to a particular doctor, in some instances he remedied the default on the occasion of a further consultation.

Given the fact that doctors at times expressed opinions founded upon an incomplete history, these matters are clear:

* First, almost all the doctors considered that the appellant's employment stresses and strains over the whole period of his work as a scaffolder had contributed to his lumbar spinal degeneration and ultimate impairment; and expressly or impliedly, that the contribution had been material or significant.

* Second, no doctor whose report was tendered for the appellant addressed the question whether the appellant suffered [serious] injury to his lumbar spine which arose out of or in the course of his employment by the respondent.

* Third, with the exception of Mr Strangward, no doctor whose report was tendered for the appellant addressed the question when the disc prolapse had occurred, the further question whether the prolapse was causally related to the appellant's employment by the respondent, and the further question again whether the prolapse - as distinct from the spinal degeneration - constituted serious injury. Mr Strangward's opinion concerning the L4/5 disc prolapse was that almost certainly it happened when the appellant was working in his garden; but that "disc problems have arisen consequent upon heavy work over the years at least aggravating a probable underlying tendency to degenerative change."[2]

* Fourth, three doctors who examined the appellant on the respondent's behalf expressed opinion when disc prolapse occurred, and its relationship with employment. Mr Doig, who examined the appellant on 27 April 2000, opined and that "from [the] history the prolapse[3] probably started in 1996 when [the appellant] started to develop severe pain in his left leg". He considered that the employment had aggravated the appellant's condition, giving the appellant the actual prolapse. But that opinion was founded on a history of onset of back and leg pain at work in 1996; and a history that made no mention at all of the gardening episode. Doctor Symington, who examined the appellant on 17 April 1997, diagnosed the problem as disc protrusion at the L4-5 level. He expressed uncertainty when the prolapse had occurred. Mr Shannon, who examined the appellant on 16 October 2000, considered that the problem was one of L4-5 disc prolapse. On the basis of a history that "for some time prior to 1996 [the appellant] was getting some pain down the left leg", and "in 1996 he developed low back pain at home" when gardening, the doctor said there could be a "fair argument" that the initial disc prolapse occurred in the course of the employment and was subsequently aggravated by gardening at home.[4]

* Fifth, in summary, some doctors opined that the disabling problem was disc prolapse. Two, each of whom had examined the appellant on the respondent's behalf, related the prolapse to the appellant's employment by the respondent. One expressed uncertainty about the matter. One of the two doctors whose opinion was favourable to the appellant, Mr Doig, plainly acted on a wrong history. The other doctor, Mr Shannon, founded his opinion on a history which did not sit quite comfortably with the appellant's attendance on his general practitioner in May 1996; a history which, as will be seen, the judge rejected.

The appellant's evidence about symptoms in April 1994, May 1996 and thereafter

The appellant swore an affidavit on 2 February 2000 in support of his application. He averred that:

"I first developed pains in my lower back during 1996 whilst working on scaffolding on Spencer Street railway offices..."

"[Whilst laid off work] I was out digging and pruning in the garden one day and the level of my lower back pains became more severe again. The pain also radiated down my left leg and I could hardly walk."

"By early 1998 I had also developed muscle spasms in my left calf and pins and needles in my left foot."

The affidavit made no mention of the 1994 episode of sciatica.

The appellant gave viva voce evidence. He mentioned the 1994 episode. He said that in May 1996, when he was prescribed orthotics, the pain was:

"In my leg again and - mainly - my back but in my leg."

Given orthotics, the pain resolved but not fully.

The back and leg pain which came on after gardening was not different, he said, to the pain experienced in May 1996.

When cross-examined about the events of May 1996 the appellant said that he went to the doctor for "the leg". He had pains in his left leg, "near the bottom". He said also:

"... my feet were tingling, and my back - mostly the back of my legs."

He said that it was the left leg and just occasionally pain in the other leg.

"When I was on Spencer Street railway station that is when I got the pain in my leg and I went to the doctors."

Asked about the general practitioner's notes of the consultation of 29 May 1996 which referred to complaint of "pain/cold feet" the appellant replied "... like I said, the pain started in my leg".

He said also that he had told the doctor that he had been carrying heavy weights on his shoulder and "I were getting leg pains".

The variant histories which the appellant had given to various doctors about the nature and circumstances of symptoms experienced before August 1996 were put to him. I need not refer to that cross-examination.

The way in which the Trial Judge resolved the application

There was really no argument at trial but that from August 1996 the appellant had been permanently incapacitated for his old work by his lumbar spinal condition. There was also, in truth, no denial that this condition had inhibited his non-employment activities over that period. There was evidence of other conditions - thoracic and cervical spinal degeneration, and a heart attack in February 2000 - which would have had some incapacitating effect; and the existence of which would or might have affected the quantum of damages had the appellant been granted leave to bring a proceeding in respect of serious injury to his lower back. But those other conditions would not bear upon the question whether the appellant had suffered such serious injury; and they did not distract the judge from his task.

His Honour evidently accepted that there had been an episode of sciatica in 1994, the symptoms of which had quickly settled.[5] His Honour misstated the history when he referred to the appellant having suffered back and leg pain in 1994[6]; but nothing turns on it.

His Honour recorded the appellant's evidence that when he attended on Dr Stobart on 29 May 1996 the pain was in his leg again, but mainly in his back; and that he first suffered from this pain when carrying material.[7] The judge noted, however, the variable history given by the appellant, including instances when he had given no history of suffering low back or leg pain before August 1996[8], or had provided a history only of discomfort in his feet.[9]

The judge expressed these conclusions about the episodes of symptoms of which the appellant had given evidence, and upon which the general practitioner's notes cast some light:

"This is not a case where the plaintiff can point to any particular work incident as a cause of the serious injury. The history which the plaintiff related to Dr Stobart, when he saw him in August 1996, contains no reference at all to any back injury sustained at work. He was seen by Dr Stobart in May 1996 complaining of pains in his leg when Dr Stobart gave him a pair of orthotics to insert into his shoes. No complaint was made to Dr Stobart of back pain at that time and no diagnosis was made of any back injury by Dr Stobart. Apart from one incident in 1994 which, in any event, cleared up quickly and was said not to have been work related according to the history given to Mr Wilson Carter, there is no support for the view that the plaintiff had been suffering from any back problems until he injured himself in July 1996 "[10]

The precise language used which his Honour used might be criticised. But it seems to me that what his Honour was saying, in substance, was that whilst he accepted that there had been an episode of sciatica in 1994, he was not satisfied that it occurred in response to specific employment trauma; that he was not satisfied that the appellant had suffered low back pain at the time when he attended on the general practitioner in late May 1996; that the attendance at that time had not been shown to be attributable to the low back condition which must then have been present; and that in any event any symptoms then present had not been provoked by any specific employment injury. It cannot be doubted, in my opinion, that his Honour did not accept, on balance of probabilities, aspects of the history given by the appellant concerning symptoms experienced in May 1966. That non-acceptance necessarily had implications for the opinions expressed by Messrs Doig and Shannon concerning the circumstances of development of the disc prolapse.

The judge, then, approached the matter on the footing that there had been no proven specific incident of low back injury in the appellant's employment by the respondent; and that the symptoms which took the appellant to his doctor in late May 1996 were not spinal symptoms at all. Those conclusions were certainly available.

"... there is no challenge to the fact that the plaintiff is now incapable of working in his former occupation as a scaffolder. It might be said that his incapacity arises from a number of factors apart from the condition of his back, including his age and the fact that he has suffered from a heart condition. However, accepting that his back injury has at least brought his career as a scaffolder to an earlier close that (sic) might otherwise have been the case, if there were no other factors I would accept that his back injury should regarded as a serious injury."[11]

"In my view, the major problem facing the plaintiff is one of causation. It cannot, in my opinion, be said that the injury was suffered or substantially caused to the plaintiff by the work that the plaintiff performed whilst in the defendant's employ."[12]

"The plaintiff's case is put on the basis that the injury sustained by him when digging in the garden was `the straw that broke the camel's back' however, the plaintiff had been working as a scaffolder for some 35 years prior to working for the defendant. The plaintiff had provided me with no basis whereby I can conclude, even if I accept `the straw that broke the camel's back' type analysis, that the back injury was substantially caused or contributed to by the work the plaintiff performed whilst in the employment of the defendant. If there was any contribution it could not have been other than to a very minor degree."[13]

It is, in my opinion, very clear that the judge used the phrases "his back injury" in [29] and "the injury" in [30] as meaning the entirety of the appellant's back condition as a physical fact - this including its impairment consequences. The same may be said of use of the phrase "the back injury" in [32]. That may be contrasted with his Honour's reference to "the injury" in [32]. The last-mentioned is sensibly a reference to some discrete but undefined (by the judge) spinal injury which the appellant sustained by reason of digging in his garden in August 1996.

Counsel for the appellant argued three matters. First, he submitted that the learned judge failed to undertake an exercise in assessing impairment said to be made necessary by Petkovski v Galletti[14] and R.J. Gilbertsons Pty Ltd v Skorsis[15]; for which reason there was specific error[16]. Second, he submitted that the judge's conclusion that the appellant's employment with the respondent did not substantially cause or contribute to his back injury was erroneous, contrary to findings of fact, or alternatively based on mistakes of fact. Here again there was said to be specific error. Counsel placed considerable emphasis on what were said to be misstatements by the judge of opinions expressed by three doctors; and the adoption in any event of wrong tests in proof of serious injury. Third, counsel submitted that, viewed overall, the decision below was clearly wrong.[17]

Section 135A(4)(b) applications: the correct approach

In considering an application under s. 135A(4)(b) a court must, in my opinion, first focus upon the injury which the appellant claims was caused to him in compensable circumstances. That is so for the reasons which I set out in Alcoa of Australia Ltd v McKenna[18]. In a case where the injury is allegedly an aggravation or acceleration of a pre-existing degenerative condition the court must decide whether there was such an injury; not, at the outset, its extent or its impairment consequences. If there was no compensable injury, then the question whether there was serious injury would not arise.

Where aggravation or acceleration of a pre-existing condition is alleged, reliant upon the stresses and strains of employment, it will be necessary for the worker to establish that the employment was a significant contributing factor to the injury constituted by that aggravation; see the definition of "injury" and s. 5(1B) of the Act. It is not easy to understand how determination of that issue could be aided by consideration of the matters set out in s. 5(1B)(a) - (d) in circumstances where the question would not be whether the employment was a significant contributing factor to injury constituted by the entirety of a condition but only whether it was a significant contributing factor to injury constituted by the aggravation or acceleration of a pre-existing condition. Nonetheless, some consideration must be given to those matters. In any event, it is only when "injury" has been identified that consideration must be given to the question whether that injury constitutes serious injury. It will do so if its impairment consequences meet the description in one of paragraphs (a) - (c) of the definition of "serious injury" in s. 135A(19).

The appellant's primary submission; Petkovski v Galletti

Petkovski involved the meaning and application of s. 93 of the Transport Accident Act 1986. It involved an applicant who had a history of back problems antedating a transport accident which occurred in June 1987. It was common ground both that the accident had occurred and that the applicant had suffered further injury to his back therein. Southwell and Teague JJ noted that:

"In substance, it is common ground that the appellant suffered an exacerbation of the pre-existing degenerative condition of the spine, probably involving some prolapse of the disc at L5/S1, which in turn produced sciatic pain."[19]

"... it has for long been the law that the injured person is to be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident. While the wrongdoer must take the victim as he finds him, he must compensate only for the damage he was wrought. The Act does not affect that long-established principle. And so it is that when a person is given leave to sue, the principle applies; and the court in assessing damages, where the case is one of the aggravation of a pre-existing condition, must consider what the evidence discloses as to the prior condition of the claimant."[20]

"It is necessary now again to examine the language of s. 93. `(2) A person who is injured as a result of a transport accident may recover damages in respect of the injury if - (a) the Commission has determined the degree of impairment of the person under section 46A, 47(7) or 47(7A); and (b) the injury is a serious injury.' That must mean that the injury which has been caused by or is the result of the relevant accident is a `serious injury'. And so it is that upon application to the court for leave to bring proceedings under s. 93(4)(d), sub-s. (6), provides (to repeat, with emphasis added, part of the sub-section): `A court must not give leave...unless it is satisfied that the injury is a serious injury.' The accident did not cause the pre-existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury. But, next, `the injury' - that is, the injury which resulted from the accident - `must involve serious long-term impairment.... of a body function.' That must follow, as we believe, both as a matter of ordinary construction, and from the statement of the majority in Humphries where it is said at p. 140, in a passage already quoted: `To qualify for such a description [that is, "serious injury"] there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term." (Emphasis added.)[21]

The second passage cited has been applied, cited and considered. An instance of its application is RJ Gilbertsons Pty Ltd v Skorsis[22].

Counsel for the appellant submitted that in this case the judge failed to compare the extent of impairment at the beginning and end of the period of his client's employment by the respondent; whereby he failed to apply Petkovski. I agree that the judge, literally, did not apply Petkovski. But I consider that in the particular circumstances he was not required to do so; that there was no specific error in that connection.

It needs to be clearly understood that in Petkovski there was no debate whether injury had occurred. It was common ground that it had. The essential nature of the injury was also common ground. Nonetheless, the appellant had to establish what injury had been caused; and whether by its impairment consequences, it was a serious injury. It was in the context thus described that the court referred to "an analysis... of the extent of impairment of a body function before and after the relevant injury".

In Petkovski, then, the occurrence and general nature of compensable injury was not in issue. In Skorsis, although there was no frank incident, there was a worsening pattern of relevant pain throughout a period of impugned employment. But here, as the judge found the facts, there was no frank injury in compensable circumstances and there was frank injury in non-compensable circumstances. The appellant was left with the assertion that he had sustained compensable injury throughout his employment in the absence of any employment-related symptomatic episode. In such a case the threshold question was: had the appellant suffered any compensable injury at all?

In answering that question very little if anything was to be gleaned by a comparison of the levels of impairment before the employment began and after the gardening episode. It could certainly be said that there was a level of impairment at the latter time which had not been present in 1993. It could also be said that the impairment present in and after August 1996 was such that the appellant's back condition viewed overall could be described as a serious injury. But those conclusions would not lead, in the circumstances of this case, to a conclusion that compensable injury had been sustained, let alone a conclusion as to its extent, or that it constituted serious injury. The point is emphasised if one was to compare the extent of impairment in 1993 and its extent when the appellant last worked in late July 1996. The likely conclusion would be that the level of impairment at the two times was the same. Would this necessarily lead to a conclusion that compensable injury had not been sustained?

In my opinion, for the reasons explained, it was not possible in the particular circumstances of this case to apply Petkovski slavishly. What the judge had to do, with what he was given, was to decide whether the plaintiff had suffered compensable injury; and to decide whether that injury by its impairment consequences constituted serious injury.

Because of the way in which the trial had been conducted, and because of the way in which this appeal was conducted, with primary reliance upon the judge's alleged failure to apply Petkovski, almost no attention was specifically focussed upon the question whether his Honour's approach was apt to disclose whether any and what compensable injury had been sustained by the appellant; and whether any such injury constituted serious injury. I consider that in fact his Honour's approach was not wholly satisfactory; but that in the particular circumstances, using what he had, it should not be considered so wrong as to oblige the success of the appeal. I add that in my opinion the outcome of the application was not only rational but dictated by the evidence.

What his Honour did was this: having made findings concerning the symptoms experienced by the appellant in April 1994 and May 1996, and as to their relationship with his employment, the learned judge did not frame and answer the question whether the appellant had nonetheless suffered compensable injury; and, if so, what it was. Rather, he concluded that the appellant's low back condition, viewed overall, constituted serious injury; and then looked at the question whether that condition was suffered or substantially caused by the appellant's work with the respondent. This, it must be said, was looking at the matter backwards. It was beside the point that the impairment attributable to the low back condition at large met the definition of serious injury. Moreover, to ask whether the overall condition was suffered or substantially caused by the appellant's work with the respondent was not a satisfactory means for determining whether the appellant had sustained some and what compensable injury; and whether any such injury constituted a serious injury.

It seems to me clear, however, that the manner in which the learned judge approached the matter was very much dictated by the way in which the matter was presented to him. The appellant, apart from his failed reliance on specific episodes of symptoms, relied on the circumstances that he had worked hard for three years with the respondent and that he was symptom free at the commencement of that employment but not symptom free shortly after its conclusion. The respondent, on the other hand, relied on an absence of specific injury, the development of frank symptoms after employment had ceased, and medical evidence that the appellant's condition, reflected by its impairment consequences, was attributable to 35 years' hard work, of which period the appellant's employment with the respondent had occupied but three years. The medical evidence, as I have said, for the most part focussed on the role of long-time employment in the aetiology of the appellant's low back condition. There was an absence of evidence directed to the effect of the appellant's employment with the respondent upon his back condition and in turn the impairment consequences of any such effect. The judge, it seems to me, did the best he could with what he was given.

In some instances a short period of employment, by its stresses and strains, might aggravate or accelerate a degenerative process which had been caused or at least substantially aggravated by many earlier years of similar work; and it might be the case that the injury constituted by aggravation or acceleration of the condition by that short period of employment would have disproportionately large impairment consequences and so constitute serious injury. For that reason a comparison of the length of an impugned employment with the overall length of employment in similar work (always assuming no frank episode of injury in either period) might lead to a quite erroneous conclusion whether injury sustained in the impugned period was serious injury. But in the present case, as the evidence emerged, and having regard to his Honour's findings concerning the 1994 and May 1996 episodes, I do not consider that the approach which he adopted led to a wrong result; rather the contrary.

Counsel for the appellant described the "erroneous findings" submission as one of two "supplementary submissions". Counsel contended that the judge's finding that the appellant's employment with the respondent did not cause or substantially contribute to his back condition was -

(1) Erroneous.

(2) Contrary to the facts found.

(3) Based on wrong findings of fact.

(4) Based on the premise, unknown to the Act, that it must be determined that serious injury was suffered or substantially caused to the appellant by his work.

and

(5) Assumed, wrongly, that work must be the sole significant contributing factor.

In my opinion there is nothing to matters (1) and (2). His Honour was well entitled to conclude that the 1994 episode of sciatica was not causally related to the appellant's employment with the respondent, that the May 1996 episode was unrelated to the appellant's low back problem, and that in those circumstances, and in the absence of proof that the disc prolapse was precipitated by any work incident, the contribution made by the appellant's 3 years of employment with the respondent to his back injury - that is, the overall condition, including its impairment consequences - was minor indeed.

In my opinion, a propos (3), the judge did misstate the evidence of Messrs Shannon and Symington. But in the light of his Honour's conclusions about the nature of the May 1996 complaints those opinions, founded on histories which were in substance rejected, could not have produced any different outcome.

I turn to (4). The judge did consider whether "the injury" - by which he meant the appellant's overall low back condition, including its impairment consequences - was "suffered or substantially caused" to the appellant by work performed in the respondent's employment. He also used the formula "substantially caused or contributed to" in his Reasons. Neither formula appears in the Act in a relevant connection[23]. His Honour did not purport, however, to use either formula as a term of art. In the particular circumstances which I have described, following a path dictated by the approach taken by the parties, his Honour simply used broad notions of causation to resolve the issue posed by s. 135A. In my opinion those notions should not ordinarily be considered apt in determining an application such as this; but in the present case I would not criticise their use; or the result which they produced.

I go to (5). For the reasons which I gave in Alcoa at [42]-[48] the requirement in s. 135A(2)(a) that "employment of that nature be a significant contributing factor" to injury applies to cases of injury "due to the nature of employment", but not otherwise. This was a case of alleged injury the compensability of which could be established in reliance on s. 82 of the Act. So the requirement had no operation.

The specific argument advanced for the appellant must be rejected as not being in point. On the other hand, the alleged injury was of a kind which called para (c) of the definition of "injury" in s. 5 of the Act into play. It was necessary, therefore, in deciding whether the appellant had sustained injury within the introductory words of s. 135A(2) to determine whether the appellant's employment with the respondent was a significant contributing factor to any injury which was caused to him arising out of or in the course of that employment. In the circumstances which I have described his Honour did not squarely address that question. It need only be remarked, in the circumstances, that neither in the relevant parts of the definition of "injury" or s. 135A(2) is the definite article used. In that connection, although it leads nowhere in this case, the argument advanced for the appellant was correct.

Argument was founded on Mobilio. On the evidence adduced, and as the case was run and decided below, in my view this ground was hopeless.

In my opinion the appeal should be dismissed.

[3] The doctor did not say whether he was speaking of the L4/5 or L5/S1 area.

[4] Report 18 October 2000, CB, C122; see also C123 at para numbered 2

[8] For example, Reasons, [20], [25]

[16] Citing Mobilio v Balliotis [1998] 3 VR 833 and House v The King [1936] HCA 40; (1936) 55 CLR 499

[22] [2000] VSCA 51 per Winneke P at [2] and Chernov JA at [40]

[23] Although notions of "cause" and "material contribution" are found in the Act - the former, for example, in s. 82, the latter in s.93

At a glance

Court

Decision date

Before

Source

Judgment (93 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)