2 The appellant, Lydia Dordev, who is now aged 31 years, appeals against the decision of a judge of the County Court, made on 21 November 2005. His Honour dismissed the originating motion that was filed on the appellant's behalf on 17 December 2004 by which she sought leave to commence proceedings for damages against the respondents under s.134AB of the Accident Compensation Act 1985 ("the Act") in respect of an injury to her lumbar spine that she said she sustained on 17 October 2001 in the course of her employment with the first two respondents. The appellant claimed that the injury is a serious injury within the meaning of that term in paragraph (a) of s.134AB(37) of the Act. More particularly, it was said, it resulted in a permanent serious impairment or loss of a body function, namely, the lumbar spine. Before dealing with her submissions it is necessary to set out the circumstances relevant to the claim and the appeal.
Background circumstances
3 The appellant completed her secondary school education to Year 11 at Benalla High School in 1992 and from 1994 had various jobs that were seasonal or otherwise temporary in nature. In 1996, she commenced work with the first named respondents who carried on a business of growing mushrooms and remained there until 2001 when she sustained the injury. The appellant's job involved picking and packing mushrooms that were grown either in crates or in sacks. On 17 October 2001, while lifting a 4kg box of mushrooms, the appellant says that she experienced a sudden and severe sharp pain in her lower back with associated shooting pain in her left leg that caused her to drop the box. She reported the injury to her employer and was told to go home. She was then taken by her father to see her general practitioner, Dr Peter Slot, but in the event she saw his colleague, Dr Gary Berryman. He organised for a CT scan of her spine and advised her to take Panadol to manage the pain and gave her a certificate for light duties. The appellant returned to work on the following day and then remained on light duties for one and a half days. She claimed, however, that the prolonged standing and twisting that were required by the tasks that she was performing aggravated her injury and that, by 19 October, she was experiencing severe back pain. She said in her evidence that she did not return to work thereafter. The appellant again saw Dr Berryman on 24 October 2001, having undergone a CT scan on 22 October 2001 which showed that she had a minimal central L5-S1 disc bulge that would be unlikely to be causing symptoms. Dr Berryman prescribed Vioxx tablets and referred her to a physiotherapist and also provided a letter requesting that she be confined to light duties at work. She first saw Dr Slot in relation to this matter on 1 November 2001. He referred her to Mr Barrett, an orthopaedic surgeon. As noted by the trial judge, the notes of Dr Slot state that the appellant presented to him complaining of lower back pain that had gradually worsened for 12 months. Dr Berryman's notes are to a like effect. Importantly, Dr Slot's notes make no mention of the fact that any claim was made to him of a specific incident that brought about the injury. At the trial the appellant denied that her back pain had progressed over the preceding period.
4 When, however, the appellant first saw Mr Barrett, who became her treating surgeon, on 12 December 2001, she told him that she first suffered lower back pain following the incident at work. So far as is relevant, Mr Barrett ordered a discogram to be performed that showed, he said in his report dated 17 May 2002, that the appellant's symptoms arose from a ruptured L5-S1 lumbar disc and recommended that a localised compression and fusion operation at the L5-S1 level might result in considerable improvement. The appellant was advised that she would have to cease smoking for the surgery to be a success, but because, it seems, she declined to do that the proposed operation did not take place. Instead, from about early 2002 she took Kapanol and other prescribed drugs to cope with her back pain.
Case at trial
5 The appellant's case at trial was that, because of the injury that she sustained at work as described, she was essentially an invalid who was unemployable and who suffered continuously from severe pain in the back and in her left leg, in respect of which she took Kapanol that was prescribed by her general practitioner. Kapanol is a morphine-based substance that is used for relief of significant pain and it seems that the appellant became addicted to it. The evidence before his Honour consisted principally of the appellant's sworn affidavits[1] and a number of medical reports filed on behalf of the respective parties, to which reference will be made later. Oral evidence, pursuant to a notice to attend for cross-examination, was given only by the appellant, her general practitioner, Dr Slot, Dr Wilkie, a consultant radiologist and Mr Barrett.
6 In summary, the principal medical evidence for the appellant was that of Mr Barrett to which reference has been made earlier and to which I will refer again. The majority of the medical specialists who examined the appellant for the respondents considered that her presentation as an invalid due to her back pain was disproportionate to the radiological and clinical findings relating to the injury. Thus, for example, Mr Cullen, an orthopaedic surgeon who examined the appellant on 25 February 2002 and 16 September 2002, noted on the last occasion that, although the appellant claimed marked tenderness over the lumbar sacral area with a minimal palpation, on the examination couch she could reach forward without obvious discomfort. Mr Elsner, also an orthopaedic surgeon who saw the appellant on 20 August 2003 opined, on reviewing the lumbar discogram, that she aggravated some degenerative changes at the L5-S1 level but that he could not find any evidence of disease of the spinal nerve root. He saw the appellant again on 12 May 2004 and found that her lumbar movements were zero, essentially because she told him that she would not even attempt to move. He said that he considered her level of incapacity to be disproportionate to the clinical findings and that, although the disc injury would cause her some lower back pain, the level of pain that she claimed was well out of proportion to the injury. Mr Elsner again noted her addiction to narcotic medication and thought that surgical intervention would not assist in those circumstances. Following an examination on 3 August 2005, he said that the appellant's spine showed a normal posture and varying degrees of flexion. He found that she was not experiencing any sciatic pain and concluded that the appellant's presentation, when contrasted with relatively mild radiological changes, indicated a "marked degree of inappropriate illness behaviour". He considered that any impairment to the appellant's lower back did not require treatment other than occasional mild analgesia and that surgery may be especially detrimental in that it may increase her dependence on narcotic medications. Otherwise, Mr Elsner considered that she was fit for full-time employment that did not involve heavy lifting.
7 I mention for completeness that the reports of Dr McIntosh of 31 July 2003 and Dr Wyatt of 6 August 2003 and 30 August 2003, as well as that of Mr Chamberlain, orthopaedic surgeon, dated 26 July 2005 that were obtained on behalf of the respondents showed that, although the appellant presented as a virtual invalid, with significant pain and restrictions on movement, they considered that to be a manifestation of illness rather than disability. Thus, for example, Dr McIntosh said that her symptoms were due to abnormal pain behaviour and hyper medication. Dr Wyatt considered that the appellant's reported disability was disproportionate to a "straight-forward back problem" and thought that "psycho-social" factors were playing a key role in her claims.
Credit issues
8 A key issue in the case was the appellant's credit. The respondents pointed to a substantial body of material that they said demonstrated the appellant's lack of credibility or reliability which, in turn, showed that she was an unreliable historian to the doctors both as to the source of her injury and its consequences for her. Thus, it was pointed out, as was the case, that the clinical records of the appellant's general practitioners did not support her claim to the medical specialists that she first sustained her back injury at work on 17 October 2001. Yet, as has been noted, she told Mr Barrett, for example, that she had first suffered back pain as a result of the workplace accident and that in the past she had enjoyed good health. Apart from the occasional lumbar aches associated with long working hours, she had had no loss of working time, she said. However, the medical evidence that was subpoenaed disclosed that she had told both her general practitioners that she had experienced a gradual onset of lower back pain over a period of time without specific incident. That evidence also showed that the appellant had attended another medical practice in 1993 complaining of pain in the lumbar spine as a result of a car accident. In the same year, the appellant had attended Benalla Hospital following an alleged assault on her by her father. The hospital records showed, further, that in December 1995 she had attended complaining of pain in the lower lumbar spine caused by a fall. When these, amongst other, matters were put to the appellant at the trial she claimed to have "no recollection" of the events. There was also evidence before his Honour that showed that the appellant had a drinking problem prior to 2001 and a heroin problem for which she had sought advice from Dr Slot in 1998. Similarly, the appellant's evidence that she did not return to work after approximately 19 October 2001 was discredited by her former employers' records, which indicated that she had worked every working day, save 2 November 2001, between 17 October 2001 and 7 November 2001.
9 Importantly, the respondents tendered in evidence video film surveillance taken of the appellant on four occasions during 2002 that showed the appellant behaving in a manner that did not display the restrictions that she described to the medical practitioners. When these matters were put to the appellant in cross-examination she said that she had "good days and bad days".
10 Another matter that went to the appellant's credit was her admission in cross-examination that she was receiving New Start Allowance at a time when she was working and not entitled to it. She also admitted receiving the disability pension at the rate of a single person despite living with her partner for many years and could provide no satisfactory explanation for that.
Decision below
11 In a comprehensive set of reasons his Honour concluded that, on the evidence, the appellant was not a credible witness such that none of the doctors whose reports were before the court obtained from her an accurate picture of her history or condition, with the result that their opinions were "seriously compromised". For like reasons, his Honour concluded that no credence could be placed on the assessment of the appellant's work capacity. While his Honour accepted, for the purposes of the application before him, Mr Barrett's opinion that the appellant was suffering from an injury to the lumbosacral spine, he noted that it was not in dispute that the ruptured disc did not impinge on the nerves of the spine. The judge concluded that, in the circumstances, the appellant has failed to satisfy him that the injury is a "serious injury". Consequently, his Honour dismissed the appellant's originating motion.
Appeal
12 As I have said, the appellant now appeals against that decision. Section 134AD of the Act makes it plain that, in an appeal of this nature, it is for this Court to decide whether the injury in question is a serious injury. But as has been explained by this Court in Barwon Spinners Pty Ltd v. Podolak[2], this does not mean that the appeal is to be conducted by way of a hearing de novo. The appeal is justified by s.74 of the County Court Act 1958 so that it must be shown that the decision below was wrong and should be reversed or set aside. This is of significance when the appeal is concerned primarily with findings of fact, particularly where credit was in issue, as was the case here. It would be plainly counter-intuitive, I think, if in those circumstances this Court were to reconsider such issues afresh merely on the reports that were tendered below and the transcript of the viva voce evidence. That such a process is not contemplated by the legislation was made plain in Barwon Spinners. Rather, it was accepted by the Court[3] that "it is for the appellant ... to carry the burden of persuasion [as to error below], and that burden is the more difficult to discharge when the finding below was against the person on whom the onus lay in the first place and credit was in issue". Moreover, in circumstances where a finding of fact is attacked, the appellate court must "recognise and give appropriate weight to the advantages of the trial judge who has seen and heard the witnesses".
13 In order to obtain leave to institute a claim for damages for injury the appellant was required to establish that her injury was a serious injury as that term is defined in para. (a) of s.134AB(37) of the Act - "permanent serious impairment or loss of a body function", the body function relied on being the lumbar spine. More particularly, the appellant was required to demonstrate by admissible evidence, in the first instance, that the consequences of the physical injury[4] that she said she suffered by reason of the accident were, in terms of pain and suffering and/or pecuniary loss, "when judged by comparison with other cases in the range of possible impairments or losses of a body function ... fairly described as being more than significant or marked, and as being at least very considerable".[5] And in an endeavour to establish those matters the appellant relied principally, as I have said, on her own evidence and that of Mr Barrett, whose view that the appellant's injury required an operation for the purpose of remedying the defect was supported by Mr Ritchie, a surgeon who examined the appellant at the request of her solicitors.
14 It is not surprising, however, that the appellant's credit was the principal focus in the case, given that the respondents contended that she was, in effect, fabricating or otherwise impermissibly exaggerating the effects of the injury on her in terms of pain and suffering and ability to work. It is plain enough that the appellant's credibility was relevant not only to the question whether her own evidence in that regard was to be accepted, but it was also relevant to the reliability of the medical evidence on which she relied to establish her case, because the opinions of her specialists were essentially dependent on the credibility or reliability of her account of the history of the injury and its effects on her.[6] This was well recognised by the learned trial judge. As I have noted, after a comprehensive analysis of the evidence, his Honour concluded that the appellant was not a credible witness and that she did not give to the medical practitioners an accurate account of the history of the injury and of its effects on her in terms of pain and suffering and disability. These findings were, I think, plainly open to his Honour and were not challenged by the appellant. It follows that his Honour was entitled to take the view that he could accord only limited probative weight to the evidence of the medical practitioners called by the appellant and little or no credence to the assessments made as to her capacity for work. And it is apparent that the judge was unpersuaded on this issue by the appellant's own evidence. Consequently, his Honour was in a position where he could not say what was the nature and extent of the consequences of the back injury to her.
15 In the circumstances, it is unsurprising that his Honour concluded that, although the appellant suffered from a back injury, he was not satisfied that the pain and suffering, or the loss of earning capacity, consequences were "when judged by comparison with other cases in the range of possible impairments or losses of a body function ... fairly described as being more than significant or marked, and as being at least very considerable".
16 I now turn to the appellant's submissions and do so in the order in which they were argued.