Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219

2 I am fortified in that view by the fact that the appellant returned to work at Rayners Sawmills Pty Ltd after suffering a back strain in May 1999 and that he continued to perform heavy work lifting timber between 15 June 1999 and the occurrence of the incident on 17 February 2000. In my opinion, there is insufficient evidence to suggest that the motor vehicle accident in which he was involved in June 2000 made any significant contribution to the back condition from which he now suffers. I would, therefore, allow the appeal.

3 On 5 July 2005 the appellant, John Doolan filed an originating motion in the County Court seeking leave under s 134AB(16)(b) of the Accident Compensation Act 1985 to bring a proceeding to recover damages for pain and suffering, and loss of earning capacity, in respect of injury said by him to have been suffered in the course of his employment with the first respondent, Rayners Sawmills Pty Ltd ('Rayners'). The injury alleged to have been suffered by him was to his lower back. It consisted of a lumbar disc lesion with consequential immobility, sciatica and pain.[1]

4 On 26 September 2006 a judge of the County Court dismissed the appellant's application for leave to commence proceedings against Rayners.

5 By notice of appeal dated 9 October 2006 the appellant sought to rely upon two grounds of appeal, namely that the judgment was 'against the evidence and the

weight of the evidence' and secondly that in determining that the appellant did not suffer serious injury, the trial judge 'did not apply the proper test'. However, upon the matter coming on before us for hearing on 1 November 2007 the appellant sought leave to amend the notice of appeal by the addition of the following five further grounds.

"(iii) whether the trial judge gave sufficient or adequate reasons for his decision;

(iv) whether the trial judge erred in finding that the appellant's physical injuries did not fit into the 'very considerable' range;

(v) whether the trial judge erred in finding that the appellant had failed to adequately connect his current symptoms to the events of February 2000;

(vi) whether the trial judge erred in finding that whilst satisfied that the incident in February 2000 played a part in the appellant's current condition, the magnitude of such contribution did not fit into the 'very considerable' range; and

(vii) whether the learned trial judge erred in the application of the test of 'serious injury'."

6 In the course of the hearing of the appeal, senior counsel for the appellant contended that if, as he submitted, there was specific error on the part of the trial judge, then the proceeding should be remitted to the County Court for rehearing. Senior counsel for Rayners submitted, on the basis of Barwon Spinners v Podolak[2], that it was for the appellant to persuade the appeal court that the decision of the County Court was the wrong decision and should be set aside. It was submitted on behalf of Rayners that if, contrary to this submission, this Court were to conclude that the trial judge was in error, then the court should decide the issue of serious injury for itself.

7 On 16 April 2008 and prior to judgment in this appeal being delivered, the High Court handed down its decision in Dwyer v Calco Timbers Pty Ltd[3]. Shortly thereafter, and in view of the decision in Dwyer v Calco Timbers Pty Ltd, the parties were informed by the Court that in consequence of that decision, if they wished to make further submissions, either orally or in writing, they would be permitted to do so. The parties chose to make further submissions in writing and consent orders were made setting out a timetable for the making of such submissions. The appellant's further submissions were filed on 7 October 2008 and Rayners' further submissions were filed on 22 October 2008.

8 The written submissions filed on behalf of Rayners concede that in the light of Dwyer & Calco its earlier submission that the appellant must satisfy this Court that the judgment below was wrong is not correct, in that it was 'too widely expressed'. However it is nevertheless submitted that insofar as the appellant asserts specific error on the part of the trial judge, he must still persuade this Court of that error.

9 The correct approach to appeals governed by s 134AD of the Act was set out by Ashley JA in Church v Echuca Regional Health.[4] In that case Ashley JA accepted that the effect of Dwyer v Calco Timbers Pty Ltd is that whenever there is a challenge to a finding of serious injury, or of no serious injury, it is unnecessary for the appellant to demonstrate error. Rather, it is for this Court to decide the issue of serious injury for itself, in reliance upon 'the evidence and other material before the judge who heard the application' and upon any other evidence which the Court may receive.[5] Accordingly I turn now to consider the evidence before the trial judge.

10 The trial judge heard evidence only from the appellant. Largely because his evidence-in-chief was given substantially on affidavit, his oral evidence consisted mainly of cross-examination. Other than that, many documents went into evidence. Most of them were medical and like reports. To all the doctors he had given, to a greater or lesser extent, the history of his back problem. None of the many doctors gave evidence viva voce. Accordingly, and to the extent that there was disagreement or conflict in the material before the court such matters remained unresolved before the trial judge. As stated by Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd[6] the situation that applications such as this must be determined in circumstances whereby any conflict in the history given to and/or in the opinion of medical practitioners, physiotherapists and vocational consultants is neither elucidated nor resolved by cross-examination is entirely unsatisfactory. As Ashley JA said:

A judge must attempt to conduct what is essentially a trial but with one hand tied behind his or her back. That is not a new observation. This Court repeatedly made the point when considering appeals against s134AB(16)(b) determinations in the years before the High Court's decision in Dwyer. That said the Court must decide the application as s134AD commands and with whatever problems there may be in the state of the "evidence and other material".

11 By affidavit sworn 28 June 2004 the appellant deposed to his background and the circumstances under which he suffered injury. He was born on 1 July 1973 and had left school in 1987 having participated in year eight. For the next ten years he worked in various employments as a shearer, labourer and trades assistant. In particular, between 1993 and 1997 he was employed by AB Metals Limited as an oxy cutter and crane driver.

12 He deposed that he commenced employment with Rayners in Warburton as a timber mill worker in May 1998. His work involved him in lifting and stacking timber. He deposed that he had suffered a muscle strain to his back in May 1999 whilst he was stacking timber in the course of his employment with Rayners. He stated that this muscle strain required him to take three weeks off work, but that on 15 June 1999 he was 'cleared for full time unrestricted activities'. He deposed that from that time he continued to perform unrestricted work 'despite the fact that the work was heavy'. He stated that after that 'incident' he made a complete recovery and had no symptoms nor did he have any medical treatment. Indeed, he gave evidence that thereafter he engaged in football training and returned to playing cricket in the caravan park where he lived.

13 However, in February 2000[7] he suffered what he described in his affidavit as a 'severe injury' to his back as a result of having to stack and lift green, sawn hardwood timber as it came off a conveyor. He deposed that this work involved him and another employee in lifting pieces of timber weighing between 66 and 98 kilograms from the conveyor and then swinging the timber in a twisting motion on to the top of a stack. The timber was green, which meant that it had a high moisture content and was very heavy. In addition he was required to turn over slabs of timber. This required him to stand by the side of a conveyer belt and to lean over the slab of timber and lift and pull it against the motion of the conveyer belt. He described this work as being awkward, difficult and heavy and which required considerable twisting on his part. He deposed that as a result of this injury he attended upon the 'company doctor' in Warburton. He said that he also undertook physiotherapy and although he attempted to return to work he was unable to do so because his work 'involved a considerable amount of lifting and stacking.'

14 He deposed that thereafter he 'attempted to work with Murray Goulburn' and was in their employment for nine or ten months 'on and off' where his duties included 'mainly forklift driving, but some stacking of milk powder boxes' which he said he was unable to do because of his back injury. He said that he also worked for '3 or 4 months for Davison & Sons driving a front end loader and roller and a bit of roustabout work casually in late 2002 to 2003 for approximately two months'. Otherwise, he stated that he had been unable to work since he had injured his back.

15 In evidence in chief the appellant adopted the affidavit referred to above, and stated that the contents were true and correct. In addition, he gave evidence that whilst he was employed by AB Metals in 'about 1994/95' he was diagnosed as suffering from schizophrenia. He said that he had suffered back pain for 'a couple of days' whilst working for AB Metals. He said that he went to a chiropractor once, and his back was 'pretty well fixed on the spot'. He said that 'four or five months' after leaving the employment of Rayners, he went to work at Murray Goulburn. He said that he suffered from pain 'the whole time' that he worked for Murray Goulburn. In giving evidence the appellant stated that after the back pain suffered by him in May 1999 he had had three weeks off work and then went back on to full duties. This evidence is confirmed by contemporary medical records. He stated that he worked for the following six months without any problem until 17 February 2000. He said, however, that the pain had not gone away since 17 February 2000. He said that on that date and after suffering the injury he was 'stuck in the one position'. He said that he then made his way slowly over to the local doctor whose surgery was opposite his place of employment. The medical evidence before his Honour confirmed that the appellant consulted Dr Church of the Warburton Medical Centre on 17 February 2000.

16 The appellant was cross-examined over the course of three days. The appellant stated that after his return to work following the injury suffered in the course of his employment with Rayners in February 2000, he continued to have pain, but was generally able to undertake the light work in which he was then engaged.

17 The appellant was cross-examined about the circumstances under which he left employment with Rayners in May 2000. In his evidence in chief he stated that he left Rayners because he felt 'the same thing was going to happen again'. In the course of cross-examination the appellant agreed that he had told general surgeon Mr Maling in October 2003 that after his return to work he was given light duties, and as they were so light and there was very little to do he finally resigned. The appellant said in evidence that the work was light and boring, and that he was doing such work, but still suffering from pain. He said that the agreement that he had made with Rayners was that he would pick up sticks around the machines and clean out sawdust. It should be observed that this evidence of the appellant was generally consistent with other material before the court. The respondent's insurer had obtained a worksite assessment in consequence of the injury sustained by the appellant. A Dr Mutton visited the worksite on 23 March 2000 and provided a report dated 3 April 2000. Dr Mutton, who did not interview or examine the appellant, suggested that the light work of placing racking sticks in place could be undertaken by the appellant upon a return to work upon light duties. However the appellant gave evidence that the work of stacking dry timber which he was given, although being lighter than that of handling green timber as he had done previously, nevertheless caused him back pain. He also said that, as he was still required to bend and twist, he was worried that he might suffer further injury.

18 He then obtained employment in a casual capacity as a fork lift driver with Murray Goulburn for 'nine months or a year'. He said that he obtained that employment in August 2000. He commenced as a casual employee and in due course there was consideration as to whether he would become a permanent employee. He was examined medically on 14 June 2001. He completed a medical questionnaire form which he signed, and which form made enquiry as to whether he had ever strained his back. He provided an answer 'strained back four-and-a-half years' ago, Rayners'. Furthermore, he stated that he had last consulted a doctor six months previously for a 'check-up'. However, as a result of that medical examination his employers became aware that he suffered from schizophrenia. He said that when his employer became aware of his schizophrenia he was told that he could no longer drive the forklift truck and that he would be required to stack boxes. He said that the stacking of boxes caused him back pain.

19 The appellant agreed that he had been involved in a motor car accident in approximately June of 2000 and that in consequence thereof he had attended the Yarra Junction Clinic. He said that he suffered a sore left leg which was bruised in that accident. The appellant agreed that the circumstances of the accident were that the car had run off the road and hit a tree. He agreed that the impact of the collision was 'reasonably heavy' and that there was sufficient damage to the vehicle, a Valiant station wagon, for it to be not repairable. It was put to the appellant that when he attended at the Yarra Junction Clinic on 10 June 2000, he attended by reason of pain in his neck and lower back. He said 'I could have been a bit stiff and sore, yes. My main problem was my left leg at the - after the accident'.

20 The appellant was cross-examined in detail about the history that he had given to the various doctors and that he had reported in his claim forms. On 3 March 2000 the appellant had signed a workers' compensation claim whereby he stated that he had suffered lower back injury whilst lifting and stacking wood on 17 February 2000. In response to a question on the form as to whether he had suffered any previous pain or disability he agreed that he had stated 'Same thing happened 12 months' ago, same place. Happen previce (sic) at AB Metal five years' ago.' The appellant agreed that he had said that but he stated that the difference was that previously he had recovered, whereas he stated that he had never been free of back pain subsequent to 17 February 2000.

21 There was extensive cross-examination of the appellant as to the medical questionnaire which he had signed in June 2001 whilst employed by Murray Goulburn. The applicant agreed that in completing the questionnaire he had stated that he had strained his back four and a half years earlier whilst working for Rayners. The explanation given by the appellant for this inaccurate answer, and in effect accepted by the trial judge as being reasonable, was that had the appellant disclosed the full history of events to Murray Goulburn the prospect of employment would have been 'zero'.

22 Furthermore, there was extensive cross-examination of the appellant about two aspects of the history given by him to various doctors. The first aspect upon which counsel for Rayners placed considerable reliance was the fact that a medical report of general surgeon Mr Maling dated 10 October 2003 stated that the history given to him by the appellant was as follows:

One day in about May 1999, his back "locked up" and he could barely move. He lay on the floor of his sister's house for two or three days. This claim was accepted by WorkCover and his back improved. He then returned to normal duties for three or four months, then the same thing happened and he had more time off work.

23 It was also put to the appellant that he had told a psychologist, Mr Radley, who had conducted a vocational assessment in April 2005 that 'about 6 months before the injury of February 2000 he had 'started getting back pain while stacking timber and spent two days lying on the floor after seeing his doctor.' In addition, it was put to him that he had said or implied the same thing on three other prior occasions as well.

24 Throughout the cross-examination, the appellant maintained that he was in error about the dates at the time that he spoke to Mr Maling, and to Mr Radley, and on the other occasions, and that his back had not locked up in May 1999, but had done so in February 2000. He said that the occasion when he had lain on his sister's floor was in February 2000 and not in May 1999.

25 It is apparent that the appellant was either in error about this matter or he was not being truthful. The trial judge gave consideration to this matter. It was submitted to his Honour by counsel for Rayners that the fact that the appellant had told Mr Maling and others that his back had 'locked up' in May 1999 demonstrated that that was the origin of his present complaint. It was submitted that the history given to Mr Maling was not as a result of confusion on the part of the appellant but an accurate statement of events. The trial judge, accepting that the appellant was a poor historian, nevertheless concluded that the appellant had been confused about the sequence of events and that it was 'more likely that the plaintiff was in fact referring to February 2000 when from time to time he made reference to events in 1999.' That conclusion is a conclusion of considerable weight in all the circumstances and is most relevant to the task before this court. I have read the whole of the transcript and each of the tendered documents on several occasions and I conclude that his Honour's observation in this regard, assisted as it was by his observation of the appellant giving evidence, is a conclusion I should accept as being soundly based. I will return to this in more detail later.

26 The second aspect of history upon which counsel for Rayners placed much reliance was related to the fact that the appellant gave evidence that since the incident of 17 February 2000 his back pain had always been on his right side.

27 The issue of whether the appellant suffered left sided or right sided back pain occupied a considerable amount of time in cross-examination. The trial judge made no finding as to that matter nor did he conclude that the appellant's credit was in doubt by reason of the apparently conflicting histories. It can be observed that there had been some confusion on the part of at least one of the medical practitioners who saw him. In his report to the appellant's solicitors Dr Slattery reported that at the time that he first saw the appellant in April 2002, pain was radiating down the left leg. In a separate later report to Rayners' insurer he stated that when he saw the appellant in 2002 he was having an episode of 'increased severe pain radiating down his right leg and was tender in the L4 distribution'. Both versions cannot be correct and it would appear that Dr Slattery had made an inaccurate statement in one or other of the reports. Furthermore the contemporary reports of examination of the appellant in the period February to April 2000 refer to tenderness on the left side of the loin and musculature. However the CT scan taken less than one month after the events which culminated on 17 February 2000 clearly establish prolapse of the L5/S1 disc with a broad-based posterior bulge of the disc margin slightly more prominent on the right side. The medical reports of Mr Maling, Mr Brearley, Mr Han, Mr Conroy and Mr Jones were all consistent with a conclusion that the appellant's present condition is consistent with lumbosacral disc deterioration in the context of a congenital spondylolisthesis. In my view the probabilities are that such a condition is clearly related to work in which the appellant was engaged in February 2000 and directly connected with the CT observations of 15 March 2000. In such circumstances any variation in the complaint of pain made by the appellant is of little relevance.

28 Furthermore, the appellant was cross-examined about his failure to attend for medical treatment in relation to his back for the period between June 2000 and April 2002. The appellant's answer to this was that he had problems with his back 'every day' but that ' ... you can't just run to a doctor every day and say my back's sore ...' He said 'you learn to live with these things'. My reading of the transcript leads me to conclude that the appellant was a person who did not make complaint of his back disability readily and that these statements can be viewed as an honest summary of the view that the appellant took as to obtaining treatment in relation to his back injury.

29 In the course of re-examination the appellant stated that 'even when I worked at Murray Goulburn I still wore me (sic) back brace every day'. He gave evidence that he took up to ' four or five' Panamax tablets per day and that whilst he worked at Murray Goulburn his mother rubbed 'Deep Heat' into his back 'probably every second day'.

30 It will be recalled that the evidence of the appellant was that in May 1999 he had suffered a muscle strain to his lower back which required him to take three weeks off work, but that thereafter he made a complete recovery. Three certificates signed by a Dr Kirwan of the Woori Yallock Medical Centre relating to this matter were tendered before his Honour. The first such certificate was dated 24 May 1999 and recorded that the appellant complained of 'back pain'. The diagnosis was 'Lumbar disc prolapse'. The certificate certified that the appellant was unfit for any work duties from 24 May 1999 to 31 May 1999. The second certificate dated 31 May 1999 was also signed by Dr Kirwan. The diagnosis was stated to be 'minor lumbar disc prolapse'. It should be observed that this diagnosis was apparently made in the absence of any investigation at all. The appellant was certified as being unfit for any work duties from 31 May 1999 to 6 June 1999. He was certified as being fit for modified duties involving no repetitive bending and no lifting of heavy objects greater than 10 kilograms in weight from 7 June 1999 to 14 June 1999. The third certificate was signed by Dr Kirwan on 15 June 1999. It certified the appellant as being fit for 'normal duties' from 16 June 1999. As stated above, the appellant gave evidence that thereafter he returned to his full heavy duties.

31 There was no evidence before his Honour that the appellant had sought any medical treatment in relation to any back condition thereafter until 17 February 2000. Nor did Rayners produce any evidence to demonstrate that the appellant had not so returned to heavy work.

32 The progress notes of the Yarra Junction Medical Centre for the period 21 January 2000 until 16 November 2000 were tendered before his Honour. There was evidence before the Court that the appellant attended upon the Yarra Junction Medical Centre on 25 January 2000 and on four other occasions prior to 17 February 2000 in relation to psychiatric and medication issues associated with his schizophrenic condition. The notes of the appellant's attendance at the clinic on those dates make no reference to any complaint of back injury or of symptoms of such an injury.

33 In relation to the work incident of 17 February 2000, a report from Dr David Church of the Warburton Medical Group dated 20 January 2004 was tendered. Dr Church stated that the appellant had attended upon the Warburton clinic on three occasions, the first being 17 February 2000 when Dr Church examined him. Dr Church reported that that the attendance of the appellant upon him 'was regarding back pain which he attributed to his work'. Dr Church reported further as follows:

When he attended me on 17 February 2000, he told me that he had pain in his left loin which had worsened over the previous week. He attributed this to lifting wood in the sawmill where he was working. He told me that he had had two previous episodes which had taken months to resolve. There was no radiation of pain to other areas. On examination he was tender in his left loin, and neurological examination of his legs was normal. I did not request any tests, X-rays or scans, and did not refer him to anybody.

Opinion

I diagnosed him to have "mechanical low back pain", gave him a WorkCover certificate for two days off work and suggested that he return for review in four days' time so that I could attempt a return to work plan, with him performing different duties. He did not return to see me.

34 However the report of Dr Church stated that the clinic records show that the appellant had returned to the Warburton clinic on 10 June 2000 and on 13 June 2000 when he saw Dr Joyce Kok regarding 'neck and back and leg pain which he attributed to a motor vehicle accident'.

35 Although the appellant did not return to see Dr Church at the Warburton Clinic after 17 February 2000, the records of the Yarra Junction Medical Centre reveal that the appellant attended upon that clinic on 19 February 2000. The notes of the clinic state 'Back pain since. Starting treatment (indecipherable), been off Thursday, Friday. Tender left full length, seeing (indecipherable) physio'.

36 It would appear that this note was made by a Dr Fox of the Yarra Junction Medical Centre, as a report of physiotherapist Paul Frijlink dated 22 April 2004 which was tendered before his Honour contains the following note: 'John was originally sent to me by Dr Frank Fox with a strain of left erector spinae (lumbar and thoracic). John did not respond to treatment as expected'. An earlier report of Mr Frijlink dated 20 January 2004 notes that the appellant received physiotherapy treatment from 2 February 2000 to 18 April 2000 and although he made progress it was 'not sufficient to make him to go back to work'.

37 The progress notes of the Yarra Junction Medical Centre which were tendered before his Honour contain many entries which are indecipherable. However, it is clear that following his initial attendance on 19 February 2000 the appellant attended upon that clinic on a number of occasions over the following four months in relation to his back pain. A note of 28 February 2000 contains a reference to 'back pain still painful ... attending for physio - this is helping - works in timber mill'. A note of 6 March 2000 contains the following statements: 'Having physiotherapy 3-4 times a week, swimming ... ' A note of 14 March 2000 contains the following: 'No spasm. Not fit to RTW? ... '

38 On 15 March 2000 a CT scan of the appellant's lumbar spine was obtained by Dr Fox. The findings were that there was a:

minor narrowing of the L5/S1 disc space. This is associated with a broad based posterior bulge of the disc margin which is slightly more prominent on the right side posterio-laterally, however the disc margin is separated from the theca and the S1 nerve roots by epidural fat. Bone windows demonstrate a bilateral pars inter articularis defect through the neural arch of L5. However there is no significant separation or evidence of significant forward shift of L5 on S1 vertebral bodies.

39 The appellant was cleared by Dr Fox at the Yarra Junction Clinic as being fit to return to work on 6 April 2000. The appellant did not continue his physiotherapy treatment with Dr Frijlink after 18 April 2000. However there is a note in the progress notes of the Yarra Junction Medical Centre dated 16 May 2000 which states 'Had to leave sawmill due to back pain'. There is also a note dated 21 June 2000, 'Recently involved in MCA, still swollen and bruised left lower leg'. There is no reference to any back complaint being made by the appellant in consequence of the motor car accident at the time of this consultation. It will be recalled that the records are that the appellant attended upon the Warburton Medical Centre on 10 and 13 June 2000 in relation to injuries that he attributed to a motor car accident.

40 There is no record of the appellant having attended upon the Yarra Junction Medical Centre after 21 June 2000.

41 Subsequently, in approximately August of 2000, as I have already mentioned, the appellant obtained employment with Murray Goulburn Co-operative Limited as a forklift driver. The appellant gave evidence that he could manage fork lift driving which he described as 'bearable' but that he suffered back pain if he engaged in stacking boxes of powdered milk as he was required to do from time to time.

42 The appellant consulted Dr Slattery, a general practitioner at Warrnambool, on the first occasion on 9 April 2002. There is no evidence that the appellant had any medical treatment for his back between May 2000 and his attendance upon Dr Slattery in April 2002. By report dated 28 October 2003 Dr Slattery stated that he saw the appellant on 9 April 2002. He obtained the following history:

.... in 1994 and 1995 John appeared to have some episodic back problems. At some point in 1999 he had a significant flair (sic) and increase in his back problems while working at a sawmill. He has had episodic pain since this time in 1999 with low back pain, worse in the morning and on lifting. At this time this pain has been radiating down his left leg, at this time a CT was reviewed which showed that he had a small disc bulge and a bilateral pars defect, with no obvious nerve impingement signs on the clinical examination. Conservative treatments were adopted in relation to physical therapies and anti-inflammatories.

43 Dr Slattery saw the appellant on a number of occasions between 9 April and 5 September 2002 during which time 'back pain was still troubling him'. Dr Slattery last saw the appellant on the latter date at which time he recorded that the appellant 'still had tenderness in the L5 distribution on the left hand side which had been worse for the preceding two days'. Dr Slattery stated that 'once again anti-inflammatories and heat were used in relation to what appeared to be a flair (sic) or strain of his previous problem'.

44 On 1 October 2003 the appellant saw general surgeon Mr William Maling at the request of his solicitors. The history obtained by Mr Maling from the appellant is as follows:

One day, in about May 1999, his back "locked up" and he could barely move. He lay on the floor of his sister's house for two or three days. This claim was accepted by WorkCover and his back improved. He then returned to normal duties for three or four months then the same thing happened and he had more time off work. He was again returned to normal duties but was given light duties at the mill ... This was very boring as it was so light and there was very little to do, so he finally resigned, he thinks in May 2001.[8] Ever since then the back pain has varied. He wakes in the morning with pain in the low back and down into both hamstrings more so on the right than the left.

45 Mr Maling obtained plain X-rays of the lumbar spine which reveal a spondylolisthesis with about five millimetre forward slipping of L5 on S1. In addition on 7 October 2003 he obtained an MRI of the lumbar spine which confirms a grade 1 spondylolisthesis at L5/S1 with associated disc protrusion to the right. That disc material was observed upon the scan to be compressing the right L5 nerve root as it entered the neural foramen. Mr Maling concluded as follows:

It is likely that your client has had an underlying spondylolysis due to defects in the pars interarticulares at the L5/S1 level. He began a heavy job at Rayners sawmills in May 1998, as described. In May 1999, his back "locked". It is likely that the spondylosis has begun to shift and has become a spondylolisthesis which is revealed in plain x-rays taken on 07.10.2003 and the MRI taken on the same date. It is noted that in March 2000 spondylosis only was present, without shift. It is apposite to conclude here that he has injured the disc at L5/S1 and the addition of lack of support by this injured disc has allowed the spondylolysis to shift. As a result of the injured disc he also has a prolapse and pressure on the right L5 nerve root.

46 The appellant was referred by his general practitioner Dr Slattery of Warrnambool to neurosurgeon Mr Han in June 2004. Mr Han saw the appellant on 19 July 2004 and reviewed him further on 25 October 2004. The history which Mr Han states that he was given by Mr Doolan is as follows:

Mr Doolan allegedly injured his back in 1999 when working in a sawmill. While flipping a six metre long piece of timber into a pile, he developed severe low back pain. He continued to work and over the 12 months prior to seeing me, the pain was so severe that he had to stop work altogether. His main pain was in his lower back on the right side and was associated with spasms in his leg and back.

47 On 11 January 2005 the appellant attended upon general surgeon Mr Conroy at the request of the insurer of Rayners. Mr Conroy obtained a history that the appellant told him that he had not worked since 17 February 2000 because of pain in his back, with a tendency to pains in his right leg. Mr Conroy obtained the history that the appellant said that there had been a similar, but minor, episode some months previously which had settled completely, but during the course of the day on 17 February 2000 there was increasing pain and stiffness in his back, which did not improve despite physiotherapy and exercises.

48 On 10 February 2005 the appellant was seen by orthopaedic surgeon Mr Roy Carey at the request of his solicitors. The history Mr Carey states he was provided with was that:

In the course of his normal work perhaps in 2000 he was stacking hardwood planks. He developed right sided low back pain "on that day" and his back "locked up".

49 On 29 June 2005 the appellant saw orthopaedic surgeon Mr Clive Jones at the request of Rayners' solicitors. The appellant gave a history to Mr Jones that he had strained his back in June 1999, as the result of heavy lifting at work, but the back 'came good' after four weeks absence, and there were no residual symptoms from that injury. The appellant told Mr Jones that in January 2000 he and another worker were lifting lengths of green timber when he suffered acute back pain. Mr Jones concluded that the lifting work in which the appellant was engaged in January 2000 may have caused the extrusion of an already degenerative disc. He concluded that the employment with Rayners was 'a significant or materially contributing factor to his present problem'.

50 On 9 March 2006 and at the request of the solicitors for the appellant, Mr Brearley, a general surgeon, reviewed the plaintiff. Mr Brearley was given a history that in May 1999 the appellant developed pain in the lower back whilst working. The appellant told Mr Brearley that he was off work for a week thereafter and then resumed his usual work and had no further trouble until some time in February 2000. Mr Brearley recorded that the appellant said that whilst he was lifting and stacking heavy hardwood planks he felt severe pain in the right side of his lower back, after which he was put off work by his local doctor for a period of three months. Mr Brearley concluded that the appellant had suffered a rupture of the L5- S1 disc whilst he was engaged in heavy lifting work with Rayners. He considered the spondylolisthesis to be associated with earlier than average deterioration of the lumbo-sacral disc. In his opinion the spondylolisthesis was asymptomatic until the incident which occurred at work.

51 As well as the medical reports tendered before his Honour a number of reports from other professionals were placed in evidence.

52 The appellant attended upon a vocational counsellor and psychologist, Mr Radley, at the request of his solicitors on 4 April 2005. Mr Radley stated that the appellant gave him the following history in relation to injuries and accidents:

Mr Doolan reports that he injured his back when he was employed by AB Metal in the mid-1990s. He went to see a chiropractor and was able to return to full time work duties. He also injured his left ankle at the age of 17 but had no ongoing impairment. He says about six months prior to his injury in January 2000 he started getting back pain while stacking timber and spent two days lying on the floor after seeing his doctor. He says his back has been weak ever since, although he managed to return to work after about two weeks and got back to full work duties. He reports no other significant motor vehicle or work accidents, nor any other serious health problems.

53 Mr Radley conducted an assessment of the appellant's concentration and short-term memory. He observed that the appellant performed slowly and with a high error rate. The appellant was unable to perform a 'serial sevens' task, thus demonstrating 'very poor numeracy skills'. His general level of intelligence was found to be well below average with a full IQ score of 74. This placed him in the lower 5% of the general population, suggesting that he 'would not be able to undertake any kind of mentally demanding work activities'. His only 'marketable work skills' in the opinion of Mr Radley were of a 'manual practical work' nature. On the basis of the material provided to him Mr Radley concluded that the appellant had no current capacity to be employed as a sawmill labourer, or to be engaged in any other type of heavy manual work. The appellant had no real capacity for occupational retraining.

54 A report from a Mark Zampatti on the letterhead of Work Hab FC systems dated 22 April 2001, provided apparently to the appellant's solicitors and another report on the letterhead of Australian Vocational Link Assessment dated 29 June 2005 and addressed to the solicitors acting for Rayners were tendered before his Honour. Neither of the copies of these reports contained in the appeal book provides any information as to the qualifications of the author, and insofar as they express any opinion they have no relevance.

55 I turn now to his Honour's findings. The issues before his Honour can be summarised as being three-fold. First was the issue as to whether the lifting work of February 2000 was a cause of the appellant's back injury. The second issue was whether the injury with its consequences could be said to be a serious injury with respect to pain and suffering, and the third issue was as to whether or not the injury with its consequences could be said to be a serious injury with respect to loss of earning capacity.

56 His Honour found that he could not be satisfied that the injury from which the appellant suffered was caused by the lifting work in February 2000 'to the exclusion of any of the other possible contributing causes'. He did not proceed to consider whether the injury was a serious injury in its pain and suffering consequences or in its loss of earning capacity consequences because he concluded that the appellant had not discharged the onus of establishing that the injury was caused in the course of employment in February 2000.[9]

57 At the outset his Honour identified the way in which the appellant put his claim, that is that it rested on injury allegedly sustained in 'early 2000'. He said:

An issue before me is whether his subsequent injuries are the consequence of the incident in which he was involved early 2000 or a legacy, in part at least, of what occurred in May of 1999. That is important because, of course, in October of 1999 the legislation was changed. The plaintiff cannot bring a common law claim in respect of any injury sustained before the 19th of that month. Accordingly an important issue is whether the plaintiff had already developed the injury upon which this proposed action is based, in whole or in part by 19/10/99.

That statement of the issue to be determined was not strictly correct. It was clear that the appellant conceded that he had suffered a compensable back injury in May of 1999. However, the issue in question was whether he had shown that he had sustained compensable back injury after 19 October 1999. Of course such an injury could have been either discrete injury or the aggravation of some pre-existing injury which aggravation was by itself an injury the consequences of which could be regarded as serious.[10]

58 Next his Honour entered upon a description of the medical treatment obtained by the plaintiff following the lifting incident in February 2000. He referred to the CT scan of 15 March 2000 which showed that the bilateral pars neural arch defect at L4/5 was not associated with any discernible spondylolisthesis. He noted that the subsequent development of spondylolisthesis was relied upon by Rayners 'as indicating that whatever was the state of the plaintiff's back as at [15 March 2000] there was a subsequent deterioration, and accordingly the deterioration cannot be necessarily attributed back to the lifting episode upon which the plaintiff relies in February of 2000'.

59 His Honour then turned to the evidence that the appellant had been involved in a motor vehicle accident on 10 June 2000. He said as follows:

As indicated in the report from Dr Church, the plaintiff was involved in a motor vehicle accident on 10 June of 2000. Details are scanty, but what details there are and which were elicited with some difficulty in cross-examination indicated that the collision was quite a substantial one. The plaintiff was the driver of a vehicle which left the road and hit a tree head on. His car was written off. Its value is not indicated, but I do not ignore the possibility that it was an old one of little value. However on any view it was a serious collision and must have involved very significant trauma to the plaintiff.

The plaintiff says that the only consequence was some leg pain or leg problems, but the clinical notes of Dr Church, to which I have already referred, would indicate otherwise. There was at least a complaint of pain, including back pain, low back pain on two occasions, first, the day of the accident and again a couple of days later.

The circumstances and details surrounding that motor vehicle accident are, in my view, unsatisfactory. It has been treated as an unimportant incident by the plaintiff but that is not a view that I accept. It seems to me that it was an instance of some considerable trauma and cannot be trivialised as the plaintiff sought to do.

60 Thereafter his Honour observed that in August 2000, following the car accident, the appellant obtained employment with the Murray Goulburn Co-operative as a casual employee. He noted that the appellant did not disclose to Murray Goulburn at the beginning that he had any history of back injury and that when he was required to undertake a medical examination in June 2001, the appellant was 'not particularly forthcoming with regard to his medical history, save that he acknowledged that he had in the past strained his back'. He noted the appellant's explanation that if he had disclosed the full history of events his prospects of employment would have been 'zero', and, as I have already mentioned, his Honour said that he did not discount the plaintiff's explanation as to the disclaimer of any ongoing disability. Nevertheless, his Honour observed that the appellant stayed in employment with Murray Goulburn until late 2001 when the job ended 'in circumstances that have not been made clear'. However, his Honour noted that the plaintiff stated that he was able to cope with forklift driving, but when his employer became aware of the fact that he had a history of schizophrenia he was not permitted to drive a forklift and was required to change to labouring duties.

61 His Honour noted that the appellant stated that he had difficulty coping with this work and that such difficulty may have contributed to the termination of his employment late in 2001. His Honour stated that the plaintiff had had little medical attention throughout 2002. However his Honour referred to two reports which were produced by the appellant's general practitioner, Dr Slattery. He said:

I have a report from Dr Slattery, his current GP, who reported to the compensation insurer in a report that is not dated. I also have another letter from him dated 28 October 2003. I will read just a segment of both documents. In the earlier report he said "John Doolan has been my patient since April 2000.[11] John had problems associated with his back at this time when I met him. In 1994 and 95 he had had some mild back pain. This resolved. However in 1999 whilst working at a sawmill lifting heavy beams he developed acute episodic pain which was quite severe in his lower back region at times radiating down his right leg. He continued to work but with episodic difficulties. A CT done at the time showed a disc bulge and bilateral pars defect. When I saw him in April 2000[12] he was having an episode of increased severe pain radiating down to his right leg and was tender in the L4 distribution. This was the pain that John related in 1999."

Then in the other report, the doctor made it clear that he did not see the plaintiff until - I'll quote some of the report of 28 October 2003 - "However, I have seen John in relation to his back in the past. Primarily on 9 April 2002 I saw John in regard to this previous history of his back." This reads as follows: "1994 and 1995 John appeared to have some episodic back problems. At some point in 1999 he had a significant flair (sic) or increase in his back problems whilst working at a sawmill, he has had episodic pain since this time in 1999 with low back pain worse in the morning and on lifting".

The plaintiff did not seek any medical attention for his back between June 2000 and April 2002, when it appears that he first consulted Dr Slattery. He had been, it emerged, to that clinic as early as 1994 and 1995 with regard to the back pain that he experienced in his employment with AB Metals.

My reading of the reports provided by Dr Slattery does not lead me to conclude, as the judge did, that 'He had been, it emerged, to that clinic as early as 1994 and 1995 with regard to the back pain that he had experienced in his employment with AB Metals'. Furthermore there is nothing else in the materials before the court to suggest that the appellant did so attend upon Dr Slattery's clinic prior to 9 April 2002. Furthermore, the evidence upon which his Honour concluded that the collision was 'quite a traumatic episode' was limited indeed.

62 His Honour then turned to the issue of causation. He accepted, as is apparent, that the histories given by the appellant to medical practitioners were contradictory, but he said that he did not doubt that the precise dates were 'unimportant' to the appellant. He said that his view was that the appellant was 'a poor historian' and that he had been 'confused about the sequence of events'. He said this made it more likely that the plaintiff was 'in fact referring to February 2000 when from time to time he had referred to events in 1999'. This is an important finding made by the trial judge. However, allowing for that, his Honour stated that the events of May 1999 were not irrelevant. He said:

They are, in my opinion, part of a series of events, traumatic events in which the plaintiff has been involved over the years. Of more significance is the motor vehicle accident to which I have already referred. The evidence surrounding this satisfies me that it was quite a traumatic episode.

The plaintiff was cross-examined about it, but nothing more than I have already outlined emerged. What is of relevance and a matter of concern to me is the fact that the motor car accident doesn't seem to have been subsequently disclosed to any medical practitioner or to anybody else for that matter. It's not referred to in the affidavits and it's not disclosed to the vocational experts or anyone. There are two possible explanations for that; firstly that it was unimportant in the sequence of events, or secondly the plaintiff has attempted to conceal the motor vehicle accident, because he wished it not to be taken into account in considering his condition. I reach no firm conclusion with regard to this. Both elements may play a part.

His Honour thus made no finding adverse to the credit of the appellant in relation to these matters. At best his Honour's conclusions were equivocal.

63 His Honour then returned to the evidence that the appellant had not disclosed his true medical history at the time of the medical examination conducted by Murray Goulburn in June 2001. As I have mentioned, he said that he regarded the failure to disclose his history at that time as understandable from the appellant's point of view. However the fact that the appellant worked for a length of time in a demanding position without a lumbar injury becoming known to the management at Murray Goulburn was, in his Honour's opinion, not without significance. He observed that this coincided with a long period during which the appellant was not seeking any medical assistance. He noted that the appellant made no complaint to a medical practitioner between June of 2000 and April 2002 of any ongoing lumbar problem notwithstanding the fact that he did have contact with medical practitioners in that period. Nevertheless his Honour accepted the possibility that the appellant may well have been 'attempting other therapies' during that time, the appellant having given evidence that his mother rubbed 'Deep Heat' into his back every second day and that he had on occasions worn a back brace. Turning to his conclusions as to causation his Honour said:

The difficulty for the plaintiff with regard to causation seems to me that the injury that is the basis of the application which he attributes to the events of February 2000 is a long standing injury of a character that is characterised by periods of more florid symptoms and then remission. To some extent the more florid presentation is activity related.

There is a significant history of other events. I have referred to them: 1994, the incident with AB Metals; May 1999 the first incident with Rayners; February 2000 the incident upon which this case is based; June 2000, the motor vehicle accident and late 2001 when he was engaged in lifting work with Murray Goulburn and may have exacerbated his symptoms. Finally, a similar incident when working at Davidsons.

64 In fact the evidence of a significant history was limited in terms of relevance to the issue of causation. Certainly it is true that the appellant in completing his claim form on 3 March 2000 stated that the 'same thing' had happened five years previously at AB Metals. However that was in the context of stating that he had what he believed to be a lower back strain. Certainly he gave a history to Mr Maling that whilst he was working at AB Metals he was doing a lot of bending and lifting and that 'one day his back did lock and he was off work for a week'. However he also told Mr Maling that he went to a chiropractor and he had no further problems with his back. Likewise it would appear that the appellant told Dr Slattery that between 1994 and 1995 he had some mild back pain which resolved. That said, however, the evidence was that he had continued since that time in heavy employment with AB Metals and then with Rayners until May 1999 without difficulty.

65 Likewise, the fact that, as the trial judge observed, 'he was engaged in lifting work with Murray Goulburn and may have exacerbated his symptoms', could not be described as a 'significant history' of another event.

66 Furthermore the statement that there had been 'a similar incident when working at Davidson's' was not in my view justified by the evidence. The evidence of the appellant was that after leaving Murray Goulburn he found employment with an earth moving contractor, Davidsons. He said in evidence in chief that he obtained work driving a front end loader and that occasionally he worked on a shovel which he 'had difficulty in doing'. The appellant had given a history to Mr Brearley that he had driven a front end loader whilst working for Davidsons but finally had to do some shovelling which worsened his back pain. Accordingly the evidence did not support the conclusion that there was a similar incident when the appellant was working at Davidsons. Rather, the evidence was that working at Davidsons exacerbated the appellant's pre-existing back pain.

Assuming that the plaintiff satisfied the standard that he would need to in respect of the injury from which he now suffers, it seems to me that there is no logical reason for me to conclude that that injury was caused [by] the incident in February 2000 to the exclusion of any of the other possible contributing causes. I'm satisfied that the incident in February 2000 played a part in his current condition. It is one thing to say that that has played a part in his current presentation, but it is another altogether to say that it is the cause of his current condition or that the magnitude of its contribution can be measured and assessed as of sufficient severity.

I have come to the conclusion that I cannot discount the contribution and perhaps the significant contribution from the other episodes to which I have referred; namely May 1999, the motor car accident and employment at Murray Goulburn. The legislation is very specific. It imposes an onus on the plaintiff to satisfy me of the injury, the impairment caused by it, the magnitude of that impairment and that the consequences reached the standard of what is called "very considerable".

His Honour expressed the view that the plaintiff had not connected his current symptoms adequately to the events of February 2000 and accordingly he refused the application.

68 Upon the appeal counsel for the appellant submits that in using the words 'there is no logical reason for me to conclude that that injury was caused [by] the incident in 2000 to the exclusion of any other possible contributing causes' his Honour failed to consider the consequences of the injury and moreover, applied the wrong template in rejecting the appellant's claim for serious injury by approaching the claim on the basis that as the appellant did not show the compensable injury to be the sole cause of the consequences of compensable injury, then the claim failed.

69 On the other hand, counsel for Rayners submits that whilst the trial judge may have stated the appropriate test infelicitously, if one uses the word 'condition' rather than 'injury' in the above quotation, and then considers the above statement of his Honour in the whole context of his reasons for decision, it is clear that the proper test was applied by the trial judge. That is, it is submitted that on a fair reading of the whole of the judgment the trial judge concluded that the appellant had not established the nature of the injury which had been suffered by him in February 2000, nor had the appellant established what the consequences of any such injury were.

70 As stated in Church v Echuca Regional Health it is not necessary to determine whether his Honour was in error in coming to the above conclusion. The finding of the trial judge that the appellant had not established that he suffered from a compensable injury as a result of the work related incident in February 2000 being under challenge on appeal, it is for this Court to decide the issue itself on the basis of the 'evidence and other material before' his Honour.

71 In giving consideration to the evidence I observe first that the plaintiff has the overall burden of proof in this matter, together with the specific burden of proof referred to in s 134AB(19)(b) in relation to diminution of earning capacity. The appellant must establish that on or after 20 October 1999 he suffered an injury, or more than one injury, such injury or injuries arising out of, or in the course of, or being due to the nature of his employment with Rayners and that the consequences of such injury meet the statutory definition of serious injury.[13] To the extent (if any) that the injury sustained in the present case represents an aggravation of a pre-existing condition, then there is a need to identify the nature of the aggravation and identify the related impairment or loss of body function and the consequences flowing from that impairment or loss. The Court must identify the injury and impairment occurring after 20 October 1999 and then must examine the consequences of that injury and impairment by making comparisons relating to the plaintiff's condition and degree of impairment before and after that injury. Then, bearing in mind the consequences of that injury, and in light of those consequences, it must determine whether the injury, impairment and consequences fall within the relevant statutory descriptions or definitions.

72 The appellant's evidence was that although he suffered a back strain in May 1999 in the course of his employment with Rayners, he took three weeks off work and was cleared as fit for fulltime unrestricted activities which he then continued to perform until February 2000. This evidence was confirmed by Rayners' own records which contain medical certificates certifying that the appellant was unfit for any work duties from 24 May 1999 to 6 June 1999 ( a total of 11 working days) and was fit for only modified duties between 7 June and 15 June 1999. He was certified fit to undertake normal duties from 16 June 1999. Moreover, the medical certificates in question, although stating that the diagnosis was 'minor lumbar disc prolapse' also state that the treatment to be provided was merely that of exercise. This confirmed the evidence given by the appellant that the general practitioner he saw, Dr Kerwan, did not prescribe any medication, physiotherapy or other treatment or refer him for any investigation. On any view, and by comparison with the medical treatment provided to the appellant subsequent to the injury of 17 February 2000, the medical treatment provided to him at that time was minor. It appears, notwithstanding the clinical diagnosis of Dr Kerwan in the absence of any investigation, to have consisted merely of several visits to Dr Kerwan to obtain medical certificates and the advice of Dr Kerwan to engage in exercise. The fact that the appellant returned to his heavy timber work from 15 June 1999 until 17 February 2000 is a factor of considerable weight in concluding that the injury sustained in May 1999 was of limited significance in terms of its contribution to the back disability suffered subsequently by the appellant and in particular in comparison with the consequences of the work being done around the time of the subsequent incident in February 2000. In my opinion the plaintiff's condition as of 20 October 1999 was that he had made a satisfactory recovery from the incident which occurred in May 1999 and was able to perform his normal employment duties on a full time basis.

73 Then followed the lifting incident in the course of his employment with Rayners in February 2000. CT scanning undertaken on 15 March 2000 showed 'minor narrowing of the L5/S1 disc space' associated with a 'broad-based posterior bulge of the disc margin'. Although the medical records of the Yarra Junction Clinic establish that the appellant was considered fit to return to work on 6 April 2000, there is also a record dated 16 May 2000 that he had to 'leave the sawmill due to back pain'. That note is consistent with the evidence of the appellant that he attempted to return to work at the sawmill but was unable to do so because the work involved a considerable amount of lifting and stacking. Accordingly, the contemporaneous records of that medical clinic support the plaintiff's version of events.

74 The trial judge found that the appellant was a 'poor historian' and that he had been 'confused about the sequence of events'. That much appears clear from a reading of the histories given to various medical experts. The evidence was that the appellant was a man who left school 'having participated in year 8'. He has since then worked in various employments of a labouring nature. There was evidence before the trial judge that the appellant was of limited intellect and that he had clinically established problems at least with short-term memory. It might well be inferred that he was relatively unsophisticated in terms of keeping records and remembering details of matters which did not appear to be of significance to him at the time of their occurrence.

75 However nothing in the histories given to various doctors suggests that the appellant was endeavouring to exaggerate or be evasive. There is no suggestion whatsoever in any medical report that the complaints of the appellant were other than organically based. Although he remarked upon the unreliability of the appellant's memory, the trial judge did not conclude that the evidence of the appellant should be disbelieved, nor did he reject any part of his evidence on grounds of credit.

76 However, clearly one matter assumed significance in the trial judge's consideration of the facts. In a report dated 20 January 2004 Dr Church of the Warburton Medical Group stated that the records of the Group reveal that the appellant had attended the clinic on 13 June 2000 when he saw Dr Joyce Kok 'regarding neck and back and leg pain which he attributed to a motor vehicle accident'. The Yarra Junction Clinic notes which were tendered before his Honour also contain a notation that the appellant had attended upon that clinic on 21 June 2000. The notation was 'Recently involved in MCA - still swollen - bruised left lower leg'. The appellant was cross-examined about the motor car accident. He said that there was ice on the road and that his car ran off the road and into a tree. He agreed that the impact had been 'reasonably heavy' and that his Valiant station wagon was a 'write-off'. He said that he could have been a bit stiff and sore in the neck and lower back but no more so than previously. He said his main problem immediately after the motor car accident was a bruised calf muscle. That is consistent with the note of 21 June 2000 of the Yarra Junction Clinic which refers only to that injury. The appellant commenced employment with Murray Goulburn about two months after his car accident.

77 The trial judge said that the above evidence of the motor car accident satisfied him that it was 'quite a traumatic episode'. He noted that the fact of the motor car accident had not been disclosed to any medical practitioner who examined the appellant, nor was it referred to in the appellant's affidavit. His Honour stated that there were two possible explanations for that, the first being that it was unimportant in the sequence of events, and the second being that the appellant had attempted to conceal the motor vehicle accident. However he stated that he reached no firm conclusion with regard to this.

78 In my view there is no basis to conclude that the motor vehicle accident bore any significant relevance in terms of causation of the conditions suffered by the appellant at the time of the hearing before the trial judge. The contemporary evidence that the injury suffered by the appellant in February 2000 was of significance is strong. On 17 February 2000 Dr Church diagnosed 'mechanical low back pain'. Subsequently the appellant was referred for physiotherapy and attended three times per week upon his physiotherapist from 21 February 2000 to 18 April 2000. During this period he was reviewed by Dr Fox at the Yarra Junction Medical Centre. The examination revealed a decrease in the range of movement of the lumbosacral spine. The CT scan of the lumbosacral spine taken on 15 March 2000 showed an L5/S1 disc injury. The physiotherapist to whom the appellant had been referred observed that as at 18 April 2000 the appellant had not made sufficient progress to enable him to return to work.

79 Although Dr Fox cleared him for work on 6 April 2000, the appellant gave evidence that by agreement with his employer he undertook only light work upon his return to work.

80 In my view it is speculative on the evidence to conclude that the motor car accident played any significant part in the subsequent condition of the appellant, particularly when one considers that the note of the Yarra Junction Clinic of 21 June 2000 refers to a bruised and swollen left lower leg and makes no reference to back pain or to any other difficulty suffered by the appellant in relation to the car accident. Moreover, the likelihood of the motor accident having caused a serious aggravation of the appellant's pre-existing back condition is lessened by the fact that the appellant recommenced employment within six to eight weeks of the occurrence of the motor car accident.

81 In August 2000 the appellant gained employment with the Murray Goulburn Co-Operative. He remained in employment there as a forklift driver and labourer until November 2001. He was employed as a forklift driver and engaged in stacking boxes on to a pallet. He said that he suffered pain 'the whole time' whilst he worked there. He said that when he was driving the forklift truck his back was 'not too bad' and the pain was bearable, but the work of stacking boxes caused him considerable pain in the back. He said that he did not fully inform Murray Goulburn about his back condition, because he wanted to keep the job. His evidence was that he left Murray Goulburn in approximately November 2001 because, as a result of a medical examination, his employer had established that he was schizophrenic and he was thereafter not permitted to drive the forklift. He was then required to stack boxes which work he found to be too heavy for his back condition. Thereafter he obtained employment for three or four months with Davidson & Sons driving a front end loader and roller and he undertook some casual roustabout work in late 2002.

82 As stated above, the trial judge made no adverse finding as to the credit of the appellant and there is no reason why the appellant's evidence as to these matters should be rejected.

83 The trial judge regarded it as a significant matter that the appellant did not make any complaint to a medical practitioner between June of 2000 and April of 2002 of any ongoing lumbar problem although he did have contact with medical practitioners during that period by reason of his psychiatric condition. Nevertheless his Honour accepted that the appellant 'may well have been attempting other therapies'. In doing so his Honour referred to the evidence of the appellant that the appellant's mother was rubbing 'Deep Heat' into his back every second day and the fact that in his evidence the appellant had made reference to wearing a back brace, (which issue it would appear was not explored in either examination-in-chief or cross-examination). However the other events in the appellant's history - the incident with AB Metals in 1994, the first incident with Rayners in May 1999, the appellant's motor vehicle accident of June 2000 and the apparent exacerbation of symptoms in the course of lifting work with Murray Goulburn - were matters of significance in his Honour's view. He stated that he could not discount the contribution, and 'perhaps the significant contribution from the other episodes' to which he referred. In my view that conclusion did not take into account sufficiently the medical evidence which was before the Court. The evidence is clear that following the lifting incident in February 2000 a CT of the lumbar spine demonstrated narrowing of the L5/S1 disc space with a broad-based posterior bulge, more prominent on the right.

84 By August of 2003 when neurosurgeon Mr Han obtained an MRI scan, a grade 1 spondylolisthesis was established at L5/S1 with disc protrusion to the right, compressing the L5 nerve root. A later scan obtained by general surgeon Mr Maling in October 2003 reveals a similar picture. Mr Maling concluded that the appellant injured the disc at L5/S1 and that the lack of support provided by the injured disc allowed the spondylolisthesis to shift forwards.

85 General surgeon Mr Kenneth Brearley expressed the opinion that the appellant suffered mechanical lumbar back pain secondary to L5/S1 internal disc disruption with long standing pre-existing lumbosacral spondylolisthesis. Mr Brearley expressed the opinion on the symptoms given to him that the appellant had suffered a 'rupture of the L5/S1 disc' whilst engaged in heavy lifting'. Mr Brearley accepted that the employment of the appellant at Rayners' Sawmill was a significant contributing factor to the occurrence of the injury.

86 Likewise orthopaedic surgeon, Mr Clive Jones, who saw the appellant on behalf of Rayners in June 2005, expressed the opinion that the work in January 2000 'may have caused an extrusion of an already degenerate disc'. He said it was his view that the employment of the appellant with Rayners 'has been a significant or materially contributing factor to his present problem'. In general it should be observed that the history given by the appellant to Mr Jones is consistent with that given by the appellant before the Court with the exception that Mr Jones noted that the appellant was not able to resume work at the sawmill after the incident of February 2000 as there were no light duties. In the light of the evidence, this discrepancy in Mr Jones' note of the history obtained by him does not appear to me to be of any real significance.

87 There can be little argument that the back condition from which the appellant now suffers, that is disc prolapse at the L5/S1 level impinging on the S1 and L5 nerve root, is a significant injury with substantial consequences for the appellant. The first issue to be resolved is whether, on the evidence, employment with Rayners in February 2000 was a material contributing factor to that injury.

88 In my view, on the balance of probabilities the evidence does establish that the appellant suffered a back injury of significance in February 2000. This conclusion is supported by the contemporaneous clinical findings of the medical practitioners and the physiotherapist consulted by the appellant at that time. It is further supported by the findings obtained upon CT scanning in March 2000. On the balance of probabilities, I am satisfied that the appellant suffered an injury to the L5-S1 disc as observed in the CT scan of 15 March 2000, which was either a discrete injury or a significant aggravation of pre-existing degenerative change in that disc. I am also satisfied on the balance of probability that such disc injury precipitated the subsequent spondylolisthesis.

89 The evidence of the appellant is that he had suffered back pain in May 1999 in respect of which medical certificates were issued but that thereafter he was able to return to his usual heavy employment without difficulty. There is no basis to reject the appellant's evidence that after he suffered back strain in early 1999 he had returned to work in a full time capacity at Rayners' timber mill, engaging in heavy work until such time as he sustained further injury in February 2000. The appellant has continued to suffer back pain since 17 February 2000. Whilst it is true that he did not consult with doctors about back pain during the period between May 2000 and April 2002, his evidence is that throughout that period he continued to have pain and restriction. As stated above, the trial judge concluded that the incident of February 2000 played 'a part' in the 'current condition' of the appellant.

90 In my view, looking at the whole of the evidence, the appellant has, on the balance of probabilities, established that he suffered an identifiable injury to his L5/S1 disc on or about 17 February 2000, which injury has resulted in, or materially contributed to, the pain and suffering consequences which he now claims establish that, as at the date of the hearing below, the injury was a serious injury as defined. That injury may not be the sole cause of the appellant's condition, the injury of May 1999 possibly bearing some relationship, as may be the case with the subsequent employment of the appellant, but I am satisfied that notwithstanding a number of inconsistencies in the histories apparently given to a number of doctors, and the appellant's confusion about dates that some of those histories reveal, an analysis of the whole of the evidence establishes that a disc injury suffered in February 2000 has materially contributed to the condition of the appellant as it was at the time of the hearing before his Honour.

91 I should say immediately that, for the purposes of s 134AB(38)(h), the evidence of any psychological or psychiatric consequence of the physical injury is non existent.

92 Having reached such a conclusion it is necessary to consider whether the appellant has established that the consequences of the injury meet the statutory description in relation to serious injury. By reason of his conclusion that the appellant had not suffered an injury in February 2000 which could be related sufficiently to the current condition of the appellant, his Honour gave no consideration to that matter.

93 The appellant deposed as to the consequences of his condition upon him. He stated that he has 'ongoing low back pain'. He said that he struggles to stand in one spot for long. He stated that he cannot sit for any length of time in one position. He suffers spasm in his right leg on a daily basis. Cutting the lawn, doing dishes and other household tasks cause him back pain. Physical activity makes his pain worse. He now uses a ride on mower to cut his mother's lawns but sitting on the mower for any length of time causes him pain. He uses a 'whipper snipper' to tidy his mother's garden for approximately 10 minutes of each month, but that causes him pain. On one occasion, he attempted to change a fan belt of a motor car, but found that bending into the engine area of the car caused him pain.

94 Neurosurgeon Mr Han gave consideration to whether surgery would improve the appellant's situation, but expressed the opinion that surgical intervention 'would probably carry a low likelihood of improvement of his back pain'. His opinion was that the appellant's prognosis was 'guarded' and that he would expect 'ongoing back pain and discomfort in his right leg'.

95 In my view the appellant has discharged the burden of proof in relation to pain and suffering. When compared with other cases in the range of possible impairment or loss of a body function, the pain and suffering consequences from which he suffers could be described fairly as being more than significant or marked, and as being at the least very considerable. Because of his back pain, he has considerable trouble with a large number of everyday activities. No great challenge was made to his affidavit evidence in this regard nor to his assertion that he has ongoing back pain which is worse after engaging in physical activity. In my view the appellant succeeds in relation to this aspect of his application.

96 The appellant's submission is that, but for suffering the injury, he had the capacity for full-time manual work, as demonstrated by his history which was essentially in manual work. It is submitted that the appellant's 'without injury' earning capacity is most fairly reflected by reference to his earnings in the financial year ending 30 June 1998. His gross earnings from employment that year were $24,009. It is submitted that the appellant has not worked since ceasing his work in 2002/2003 and that he was placed on a disability pension in 2005. Thus, it is submitted, his earning capacity is nil. Accordingly it is submitted by the appellant that he has a loss of earning capacity of 40 per cent or more, and will continue permanently to have such loss.

97 Counsel for Rayners submits that the consequences of back injury sustained by the appellant are not such as to meet the statutory test for seriousness in respect of loss of earning capacity, given the appellant's subsequent employment history. Rayners relies upon the evidence that in the financial year ending 30 June 2000 the appellant earned $22,229 gross and in the following year he earned $22,700 gross from Murray Goulburn, thus demonstrating his physical capacity to work as a forklift driver.

98 In essence, counsel for the appellant puts the argument in relation to loss of earning capacity on an 'all or nothing' basis. The approach adopted and the absence of any persuasive figures as to earnings means that if the court were to find that the appellant has a capacity to engage in suitable employment within the meaning of the Act, then the burden of proof would not be discharged. The requirements of s134AB(19)(b) and (38)(e), (f) and (g) would not be satisfied.

99 It is necessary to consider the evidence before the court as to loss of earning capacity. First, of course, is the fact that the evidence establishes that the appellant had a pre-injury earning capacity. In the year ending 30 June 1996, he earned a gross income of $27,269. In the year ending 30 June 1997, he earned a gross income of $25,284. In the year ending 30 June 1998, he earned a gross income of $24,409. In the year ending 30 June 1999, he earned a gross income of $19,714. In the year of sustaining the injury, that is the year ending 30 June 2000 he earned a gross income of $21,811 whilst employed with Rayners (which sum presumably includes workers compensation payments made to him in the course of that year). In the following financial year, ending 30 June 2001, the appellant earned $22,700 gross in his employment with Murray Goulburn. In the year ending 30 June 2000 the appellant's gross earnings from employment totalled $12,989 and in the year ending the 30 June 2003 the appellant earned $8,170 from employment. As stated above, the evidence was that the appellant was placed upon a disability pension in 2005. The evidence does not establish the medical basis upon which he was placed upon such a pension and accordingly it is not clear if he was placed upon such a pension on the basis of his back condition or by reason of his psychiatric condition of schizophrenia or in consequence of both disabilities.

100 It is necessary to consider the medical and other evidence as to the capacity of the appellant to engage in suitable employment.

101 Mr Maling expressed the opinion that the appellant 'will not be able to carry out any significant manual work' and that surgical excision of the L5 disc was required. He said that 'depending on the success of the surgery' the appellant may be able to return to light labouring' work and 'perhaps in the fullness of time, to quite heavy work'.

102 On the other hand neurosurgeon Mr Han considered that surgery was unlikely to reduce back pain. He stated that the appellant has no capacity to carry out his previous occupation.

103 Reporting to Rayners' solicitors in June 2005, Mr Clive Jones stated that the appellant has a permanent incapacity for heavy work.

He is quite unfit to undertake manual labour. Theoretically, he is fit to do some do some suitable light work, whereby he could avoid lifting beyond 5kg and where he could sit or stand as he wished. He would need to avoid bending and stooping. There is no suitable work at all. He left school at age 14, and apart from a basic welding course, he has had no further education. His work has all been of a heavy labouring nature, and he had worked as a shearer for some years. Otherwise, he has had a variety of heavy labouring jobs. Quite clearly, he is not fit at all for this type of work in the future. Taking into account his ongoing back disability, he is unlikely to ever be employed in a capacity for which he is reasonably qualified by education, training or experience. In fact, he is permanently unemployable in today's labour market. There is no likelihood of any improvement at all in the future. His condition has stabilised. His inability to undertake manual labour is permanent.

105 Mr Clive Jones, who reported to Rayners' solicitors on 29 June 2005, said as follows:

There is an ongoing and I believe a permanent incapacity for heavy work, particularly as a labourer, shearer or concrete worker. I would not expect him to return to work of this nature. The worker is not totally and permanently incapacitated, and I believe that a light duties capacity does exist or could be developed. Precisely what this is, is difficult to say ... the worker has only had experience of employment in the heavier end of the industrial scale. Substantial retraining, and equally substantial loss of weight will be required if he is to re-enter the workforce in any meaningful and durable way. I imagine that both of these eventualities are unlikely to happen.

106 Mr Radley, the psychologist who conducted a vocational assessment of the appellant at the request of his solicitors in April 2005 , concluded that the appellant's injury and physical impairment 'will now preclude him from returning to work in extremely heavy manual-practical occupations'. However, he noted that for the previous two years the appellant had been able to work in moderately physically strenuous occupations with some success. He concluded that the appellant would not be able to work as a shearer, sawmill labourer, trades assistant or roustabout. However, on the basis of the medical reports provided to him, he did not consider that the appellant is precluded from returning to work as a factory worker, forklift driver, front end loader driver or similar type of worker in the future. He considered that the appellant has some potential for alternative employment of a light to medium work nature.

107 Pursuant to s 134AB(19)(b) of the Act and for the purposes of proving a loss of earning capacity, the appellant bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such disability. Although Mr Radley concluded that the appellant's low level of intelligence and general education (year 8) and poor literacy skills suggest that he has no real capacity for higher education retraining, Mr Radley did consider that the appellant should enrol in a basic literacy and numeracy course and that he should be referred to a rehabilitation provider for vocational assistance. He did not conclude that the appellant has no earning capacity. He considered that the appellant has some potential for alternative employment of a light to medium nature. There is no evidence before the Court as to what earnings might be derived from such employment. In such circumstances and bearing in mind that the appellant has the burden of satisfying the Court of the requirements of s 134AB(38)(e) to (g) I am not able to be satisfied that the appellant has established that he has a loss of earning capacity which meets the statutory requirements.

108 I would allow the appeal, set aside the judgment below and in lieu thereof order that the appellant have leave to bring a proceeding for damages in respect of the pain and suffering consequences of serious injury, that is to say disc prolapse at the L5/S1 level impinging on the S1 and L5 nerve root.

109 I have read in draft the judgment of Kellam JA. For the reasons that his Honour gives, I agree that the appeal should be allowed and that orders should be made in the form proposed by his Honour.

[1] The full description of the alleged injury was set out in the appellant's proposed statement of claim pursuant to cl 5 of the Ministerial Directions under s 134AF of the Accident Compensation Act 1985. ie. "Lumbar disc lesion; chronic low back pain, back immobility, referred leg pain, nerve root irritation, sciatica, abdominal pain, anxiety and nervousness".

[2] [2005] VSCA 33; (2005) 14 VR 622, [45].

[3] [2008] HCA 13; (2008) 244 ALR 257.

[4] [2008] VSCA 153, [104] to [113].

[5] In the appeal before us, neither party sought to adduce further evidence.

[7] Although the appellant stated in his affidavit of 28 June 2004 that he had suffered the injury in January 2000, all of the evidence appears to confirm that he suffered a back injury in February 2000. In particular, an employer claim report completed by Rayners on 9 March 2000 states that the appellant had reported suffering back strain at 10 a.m. on 17 February 2000.

[8] It is common ground that the appellant left Rayners in May 2000 not May 2001.

[9] See Accident Compensation Act 1985 s 134AB(17), (37) (definition of 'serious injury') and 38(b).

[10] Grech v Orica Australia Pty Ltd and Anor [2006] 14 VR 602.

[11] In his judgment the judge stated that the report said that the appellant had been a patient of Dr Slattery since April 2000. It is clear that the report of Dr Slattery actually said the first time he saw the appellant was in April 2002.

[13] Grech v Orica Pty Ltd (2006) 14 VR 602 at 615 - 617, [49] - [58].