Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317

2 I have had the advantage of reading in draft the reasons for judgment of Ashley, J.A.

3 I agree with his Honour, for the reasons which he gives, that the appeal should be allowed and that the matter should be remitted to the County Court for a rehearing of the appellant's application.

Statement of the Case

4 This is an appeal by right from the order of a County Court judge dismissing the appellant's application under s.134AB(16)(b) of the Accident Compensation Act 1985 ("the Act") for leave to bring a proceeding in respect of serious injury allegedly arising out of the appellant's employment with his employer on or after 20 October 1999.

5 The appellant, Dennis Franklin, was employed by Ubaldi Foods Pty Ltd, the respondent, between early 1998 and December 1999. His work involved preparation of Italian foods of different kinds. It was not in dispute at the hearing of the application that he was required to lift and otherwise handle crates, bags, and other containers of food stuffs which weighed between 10 and 25 kilos; and to do so regularly.

6 The evidence showed clearly that by December 1999 the appellant was

suffering from an L5/S1 intervertebral disc prolapse with nerve impingement**.** This was evidenced by lower back pain and symptoms affecting the left buttock and thigh.

7 The matters which the appellant had to establish under s.134AB (16)(b), as that section was explained by this Court in Barwon Spinners P/L v. Podolak[1], were these:

•

First, that he had suffered compensable injury.

•

Second, that such injury had been sustained in employment on or after 20 October 1999.

•

Third, that such injury was serious injury - as to which see sub-ss. (37) and (38).

8 The matters may be so simply identified because, despite certain intimations in advance of the hearing, the appeal proceeded without any aspect of Barwon Spinners being challenged[2]; and without any question there left open[3] being addressed.

9 The learned judge heard viva voce evidence only from the appellant. Largely, because his evidence in chief was given on affidavit, it consisted of cross-examination.

10 Other than that, many documents went into evidence. Most of them were medical and like reports. It seems that, in the period between October 1999 and trial, the appellant had been treated and/or examined by no less than 17 doctors. A number of the practitioners had seen him more than once. In addition, he had attended other doctors for spinal investigations; and for a period of time he had been in the hands of rehabilitation consultants. No less than eight of the doctors who examined him had done so on behalf of Work Cover. To all of the doctors he had given, to greater or lesser extent, a history of his back problems.

11 None of the many doctors gave evidence viva voce. Issues arose from the appellant's evidence concerning the development of his back condition, and from the histories which he had provided - or was said to have provided - to various doctors, which in an ordinary trial would surely have been closely examined. But the way in which the hearing of the application proceeded, as is customary with such matters, left the learned judge much less than ideally equipped to dispose of such issues, so far as they needed to be decided.

12 The judge held that the appellant had sustained compensable injury to his lower back "by way of a disc prolapse at L5/51 as a result of his employment which involved heavy repetitive lifting." He did not proceed to consider whether the injury was serious injury because he concluded that the appellant had not discharged the onus of establishing that the injury arose on or after 20 October 1999.

13 There were two threads to the appeal as it was finally argued:

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First, the judge in substance had not considered the appellant's case that he had suffered compensable injury on 29 October 1999. He had not considered the appellant's clear evidence upon the point, supported - as counsel submitted was the case - by the report of a doctor whom the appellant had attended that day, by a statement given by the manager of the employer, by the sequence of radiological findings, and by the report of one of the surgeons, Mr Wylde. His Honour had been distracted from doing so by relentlessly focussing on the fact - which was not in dispute - that the appellant had suffered from symptoms indicative of spinal injury before 20 October 1999. His Honour's failure to consider the appellant's case was evident from the fact that he had not decided the application in the appellant's favour.

•

Second, the reasons for decision did not reveal the judge's path of reasoning. His Honour had not found that the appellant, in the broad, was not a creditworthy witness. He had made one adverse finding as to credit, but that finding was unsustainable. The judge had not explained, having accepted that compensable injury had been established, and having accepted also that spinal symptoms had been present before 20 October 1999, how he had reached the conclusion that it would be "speculative as to the date the plaintiff sustained the injury to his low back." The judge had said nothing about the appellant's specific evidence concerning events on 29 October, the local doctor's report, the manager's statement, or the sequence of events. By the last-mentioned matter, counsel was referring at least to the circumstances that, so far as the evidence revealed it, the appellant had not consulted a doctor about symptoms referable to his spine, or lost time off work by reason of any such symptoms, before 29 October.

14 Counsel submitted that, if error of one or both kinds was established, the matter should be remitted for re-hearing. That was also the course proposed by counsel for the respondent in the event that the court was of such opinion.

15 Two points may be made immediately. First, it was not in dispute that remitter for re-hearing is an available remedy. This Court said so much, having considered s134AD of the Act, in Barwon Spinners[4]. Second, the parties were in substance agreed that, if there was to be remitter, both the pain and suffering consequences and the loss of earning capacity consequences of any relevant injury should be left open for consideration. That was so despite it being at least doubtful, upon the evidence which was before this Court, whether a finding favourable to the appellant on the latter criterion could have been available.

16 Before going on, I should note the principal threads of the submissions advanced for the respondent. They were as follows:

•

The judge at first instance had correctly understood, and had considered, the case advanced for the appellant. Both of those matters were shown by his reasons.

•

The attack on the adequacy of the reasons was late-made and ill-founded.

•

The appellant has essayed to prove injury on 29 October 1999. He had failed to prove such injury. It was incompatible with the history which he had given many doctors - that is, of spinal-related symptoms antedating 29 October 1999, and of no increase in symptoms that day.

•

The appellant's credit had played a "huge part" in determination of the application. The judge could not have found for the appellant unless he considered him creditworthy; and he did not. Cross-examination of the appellant had been directed to credit, and to whether his Honour could be satisfied that work on 29 October 1999 had caused injury.

•

The fact that the appellant consulted a doctor on 29 October did not bespeak injury that day. The doctor's notes recorded no history of work-caused injury.

•

The Manager's statement showed no more than awareness of complaint of back problems on 29 October. It did not bespeak injury that day.

•

The finding that the appellant was aware of the significance of the date 20 October 1999 did not depend upon the appellant's answers to particular questions directed to that issue, it was based upon consideration of the appellant's evidence generally, and was an available conclusion.

The appellant's case below and the reasons for decision

17 In order to understand the matters agitated on the appeal it is necessary to both understand the way in which the appellant put his case on the hearing of the application, and the course of the reasons for decision.

18 As to the former, the appellant particularised his injury this way:

"a) Disc protrusion and/or prolapse at L5/S1 level causing neurological impairment of the L5/S1 nerve root;

b) Onset and/or aggravation and/or acceleration of degenerative changes in the L5/S1 disc;

c) Referred symptoms affecting the left leg;

d) Chronic pain and loss of function in the lumbar spine;

e) Pain, anxiety and depression."

19 Those particulars said nothing about the date or circumstances of injury. But the appellant's allegations in those respects were not in doubt. In his affidavit sworn 29 October 2002 he deposed as follows:

"10. As a result of my work activities I first developed symptoms of injury in the middle part of 1999. I initially suffered pain in the front of my left thigh, but I carried on with my duties and to the best of my recollection used pain relieving medication but did not otherwise receive medical treatment until approximately October, 1999.

On 29th October, 1999 I consulted Dr Chan at Summerhill Medical Centre, 830 Plenty Road, Reservoir. This was because of a sharp increase in my level of pain after lifting at work on that day."

20 In short, the appellant acknowledged the development of back-related symptoms before 29 October**,** but asserted that his symptoms - and by necessary inference his condition - had worsened in response to lifting at work on 29 October. He did not implicate any particular lift on that day, but rather an effect produced by "lifting at work on that day."

21 In cross-examination, the appellant reiterated that theme. He acknowledged the presence of prior symptoms; but he also asserted the significance of events on 29 October. Thus for example, these exchanges:

"I've had pain now and then but it wasn't nothing so severe, like, on the - like the day, October, when - while I was working lifting up, I just - left leg just...

We will get to...?...It just went on me and I couldn't - I couldn't lift any more that day so I went and saw a doctor.

You say that that the first doctor you saw about this was Dr Chan?...Yes.

You say that was because of a sudden deterioration on 29 October, is that correct?... That's correct."

22 The appellant was pressed in cross-examination to agree, by reference to histories which he was said to have given - or admitted giving - to a number of doctors, that he had experienced spinal-related symptoms for months before 29 October 1999; and he was pressed to agree that his accounts of the period over which he had experienced such symptoms, and as to their extent, had not been consistent. No doubt there had been variations in the history which, as recorded by the doctors, he had given them.[5] No doubt, also, he had not mentioned to almost any doctor a sudden worsening of symptoms on 29 October 1999 in response to lifting that day. It would have been open to the judge, I do not doubt, to have concluded that the appellant's evidence that his condition had worsened in response to lifting that day ought not be accepted. But regardless whether or not the judge accepted that evidence, this at least is clear: having regard to the way in which the appellant put his case, it was surely the lynchpin of the claim. For if his evidence of symptomatic worsening on 29 October was accepted, that must have led on to consideration whether, on balance, such worsening was indicative of some and what compensable injury.

23 I turn to his Honour's reasons. At the outset, the judge correctly identified the way in which the appellant put his claim; that is, that it rested on injury allegedly sustained on 29 October 1999.

24 Then his Honour said that it was significant in this particular case that the Plaintiff carried the onus of showing that "the injury, which he alleges is a serious injury, arose on and after the 20 October 1999." That, strictly, was not quite correct. It being clear that the appellant contended that he had suffered compensable back injury before and after 20 October 1999, the question was whether he had shown that he had sustained compensable injury after that date - it could have been either discrete injury or the aggravation of some pre-existing injury - which was itself serious injury.

25 Then his Honour entered upon a description of what he described as "uncontradicted evidence." It included reference to the appellant attending medical practitioners on 29 October and 5 November 1999, and to radiological investigations in January and June 2000 and in October 2001 which variously described L5/S1 disc prolapse and degenerative disc damage.

26 The learned judge expressed this conclusion:

"I am satisfied by the evidence that the plaintiff sustained an injury to his low back in the course of his employment. The threshold issue is when that injury arose."

At that stage in his reasons, he said nothing about what he found the "injury" to be.

27 Thereafter his Honour referred to the definition of "injury" in the Act, to the appellant's particularisation of injury, to the fact that the case had been opened on the basis of "a discrete incident in which (the appellant) suffered a disc prolapse on the 29 October 1999", and to the fact that he had not been addressed on the principles enunciated in Petkovski v. Galletti[6].

28 It is, of course, one thing to say that the appellant's case was that he suffered an employment-contributed disc prolapse on 29 October 1999. It is quite another thing to say, in the face of an admitted history of spinal-related symptoms pre-dating 29 October, that no issue arose whether any such prolapse represented an aggravation of pre-existing injury or disease.

29 His Honour next went to the evidence - that is, the appellant's affidavits and cross-examination, and the many exhibits tendered by each side - noting first that

"the plaintiff bears the onus of proving when he suffered the injury to his low back which was confirmed by the objective tests carried out."

By that reference to "the injury", the judge was presumably speaking of the "injury to his low back by way of a disc prolapse at L5/S1 as a result of his employment" to which he referred much later in his reasons.

30 Having summarized the appellant's evidence in chief, which highlighted the development of increased symptoms in response to lifting on 29 October 1999, the judge exhaustively catalogued cross-examination and documents which revealed a constant, though variant, history of symptoms referable to spinal injury before 20 October 1999. It was an exercise, in truth, which sought to batter down a door which the appellant had never closed[7].

31 Two other aspects of his Honour's analysis of the evidence should be mentioned. First, he noted the appellant's contention that

"it was not after a particular lift or a particular job that [he, the appellant] felt a sharp and pressing pain."

Second, he noted cross-examination of the appellant in which the latter had, as the judge summarized it,

"den[ied] that he had any knowledge of the importance of the legal requirements of injury before and after a particular date in October 1999."

As to the first of those matters, this may immediately be said: it was not the appellant's case that a particular lift had caused the increase in his symptoms - this being indicative of disc prolapse - on 29 October 1999. The supposed concession was no more than a reiteration of the appellant's case. It was, I should think, consistent with him telling one of the doctors, although probably it was the doctor's language rather than the language of the appellant, that the pain had come on gradually, "without any clear cut history of injury."

32 I turn to the second of the matters which I mentioned a moment ago. It led on, later in his Honour's reasons, to a particular conclusion which was adverse to the appellant. This is what his Honour pertinently said:

"However, there is one further factor that must be taken into account and that is my assessment of the plaintiff himself. He was asked questions at one stage in cross examination about his awareness of his statutory entitlements and particular dates in October 1999, relevant to his application. Effectively the plaintiff disclaimed any knowledge in this regard but that was certainly not the impression which I formed watching him give evidence. I am satisfied that from one source or another the plaintiff had been made aware that unless he could demonstrate an injury to his back after the 20th October 1999, then his present application would fail."

Of that conclusion, more later.

33 It was after his recitation of aspects of the evidence, and the conclusion just noted, that the judge made his finding of compensable injury, and its character. Having done so, he added:

"However I am satisfied that the plaintiff was suffering from significant low back pain and equally significant referred pain in his legs before the 20th October 1999. I am satisfied that the plaintiff chose to press on with his employment and it was only after he had formally given notice of his intention to resign by letter dated 14th October 1999, that for the first time he consulted a doctor in respect of what he now describes as 'a severe pain in his low back'."

34 That led on to his Honour's ultimate conclusion, which was as follows:

"...bearing in mind the onus of proof which an applicant bears in proceedings of this kind to establish that the injury which is the basis of the application arose on or after the 20th October 1999, I am not satisfied by the evidence supporting this application that that onus has been discharged on the balance of probabilities. I find that to do other than dismiss the application at this stage would involve the Court in mere speculation as to the date the plaintiff sustained the injury to his low back ultimately shown by the two MRI examinations."

Were the reasons for decision adequate?

35 Section 134AE of the Act says this:

"The reasons given by the court in deciding an application under section 134AB(16)(b) shall not be summary reasons but shall be detailed reasons which are as extensive and complete as the court would give on the trial of an action."

In Barwon Spinners[8], this Court said that the section was 'surely addressed primarily to the trial court'.

36 The gist of s134AE is plainly that, on a s134AB(16)(b) application, albeit that the reasons will address issues more limited than those which will arise at trial, such reasons are to be of no different quality, with respect to the issues determined, than is required in respect of issues which must be determined at trial.

37 The following observations of Nettle, J.A. in Hunter v. Transport Accident Commission[9], are in point:

"21. When a judge decides an application under s.93(4)(d) of the [Transport Accident] Act the judge is under a duty to provide reasons for his or her decision. Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.

22. These points are encapsulated in the judgment of Chernov, J.A. in Barlow & Anor v Hollis. As his Honour there said, the fact that a judge may not mention some matter relevant to the disposition of a s.93(4)(d) application does not necessarily mean that his or her judgment is deficient. For example, matters which are obvious need not be restated, and the element of value judgment involved in the determination of such an application does not always lend itself to the degree of precision in expression that can be achieved in other matters. But interlocutory in nature though these applications have now been determined to be, in reality they are finally determinative of rights. If an application is rejected, it is the end of the road for the applicant. And if the application is successful, it is odds on that the matter will settle. Logic and fairness dictate that the reasons for judgment of such an application should be of a standard which is commensurate with that degree of finality.

and

28. The judge may have thought that it was enough simply to set out the evidence and other material upon which her findings were based and then to state her conclusions. But for the reasons already explained that was not enough. The requirement to refer to the evidence upon which findings are based is a requirement to analyse the evidence and to explain why some parts of it do and others do not lead to the ultimate conclusion. And that analysis must be recorded in the reasons. In general, and in this case in particular, the mere recitation of evidence followed by a statement of findings, without any commentary as to why the evidence is said to lead to the findings, is about as good as useless."

38 I hope that I do not underestimate the difficulty that confronts a County Court judge who is faced with resolving applications such as this, one after the other, upon inadequately exposed material. I accept that in such circumstances reasons for decision may lack the precision which could be expected if the judge had the luxury - some would say it is most often the necessity - of hearing witnesses viva voce, and then having time for reflection; and yet that such reasons may be adjudged adequate. But one thing is clear. Reasons must be such as reveal - although in a particular case it may be by necessary inference[10] - the path of reasoning which leads to the ultimate conclusion. If reasons fail in that respect, they will not enable the losing party to know why the case was lost, they will tend to frustrate a right of appeal, and their inadequacy will in such circumstances constitute an error of law.

39 In my respectful opinion, the learned judge's reasons in the present case, although they were quite extensive, do not satisfy the 'path of reasoning' requirement.

40 First, the starting point for the appellant's case, as I have said earlier, was his evidence that after hard work on 29 October 1999 his pre-existing symptoms got much worse. At no point in his reasons did the judge say whether he accepted or rejected the appellant's evidence as to events on 29 October.

41 Second, if the judge was disposed not to accept the appellant's account, he needed to address, in my view, objective circumstances which gave it some support. Thus, so far as the evidence revealed it, the appellant -

•

Had not lost time off work before 29 October 1999 by reason of back-related symptoms.

•

Had consulted the doctor whom he consulted on 29 October 1999 on an occasion earlier that year - on which earlier occasion he had made no complaint about any such symptoms.

•

Had not consulted any other doctor concerning any such symptoms before 29 October.

Conversely, the appellant had attended a doctor on 29 October complaining of back symptoms. The doctor's contemporaneous notes were silent about any alleged work relationship; but contrast his more extensive report.

42 Third, if his Honour was disposed to reject the appellant's account of events concerning 29 October, on the footing that it did not sit comfortably with histories which the appellant had given to one doctor or another, then he did not say so. Simply to recount the various histories, and the appellant's response when faced with them in cross-examination, left their significance, as the judge perceived it, unexplained. The judge might have concluded that a particular history had been accurately recorded, and that it involved an admission that there had been no worsening of symptoms on 29 October. Alternatively, he might have treated the various histories, and the appellant's attempts to deal with them in cross-examination, as bearing only upon the appellant's creditworthiness. Perhaps, again, he might have put aspects of the evidence in question to both uses. But what use or uses the judge did make of that evidence is not disclosed by his reasons.

43 Fourth, if his Honour rejected the appellant's account of events concerning 29 October on the footing that the appellant, generally, was not a creditworthy witness, then he made no finding which was squarely in point.

44 Fifth, his Honour's expressed satisfaction that

"from one source or another the appellant had been made aware that unless he could demonstrate an injury.. after 20 October 1999, then his present application would fail"

was probably unsound. Certainly it did not meet some of the objective circumstances revealed by the evidence upon which the appellant could rely.

45 The pertinent cross-examination was in short compass:

"Look Mr Franklin, you understand the significance of dates in this matter, don't you, you understand the significance of dates in October and dates in September in relation to your claim, don't you?...No, I...

Mr Franklin, I'm going to ask you this again, has it ever been discussed with you what the importance of the legal requirements of injury before and after a particular date in October 1999 would mean to your case?...No, I don't.

[His Honour] I'm just wondering if the question was objectionable, anyway, inquiring into his consultation with his solicitor.

[Counsel] All right, perhaps I'll put it this way. Mr Franklin, do you understand the significance of a date in October 1999 in relation to the importance, legal importance of whether your injury occurred before or after a particular date in October of '99, do you understand?...No, I don't understand."

46 It seems clear that this cross-examination was directed to the appellant's state of knowledge at the time of trial; and that it enquired into what, if anything, his solicitors had told him about the significance to his claim of the date 20 October 1999. It was not suggested to him that he had possessed relevant knowledge as at 29 October 1999.

47 It follows from what I have just said that even if it was open to the judge to conclude that the appellant understood the significance of 20 October 1999 at the time of trial, that could have had no bearing on the circumstances that the appellant had worked up until 29 October, had seen no doctor about back-related symptoms (so far as the evidence revealed the situation) before that day, and first saw a doctor about such symptoms on that day. Those circumstances, at least, still required some explanation if the judge was not to accept the appellant's evidence as to what happened on 29 October.

48 Further, it was one thing for his Honour not to accept the appellant's evidence about his state of knowledge at time of trial. But non-acceptance of that evidence did not mean that the questions, not assented to, became the evidence.

49 It may be, however, that his Honour's conclusion, whatever its possible significance, was really founded on questions and answers more generally in the appellant's evidence; and was on that account available. Even so, for reasons indicated it did not eliminate the need for his Honour to address other circumstances which gave support to the appellant's evidence that something significant had occurred on 29 October.

50 Sixth, it was an inevitable conclusion that the appellant had been suffering from significant back-related symptoms before 20 October 1999 - though not exactly the symptoms which his Honour described[11]. Following his conclusion to that effect, the judge said this:

"I am satisfied that the plaintiff chose to press on with his employment and it was only after he had formally given notice of his intention to resign by letter dated 14 October 1999 that for the first time he consulted a doctor in respect of what he now describes as 'a severe pain in his low back."

51 If his Honour meant thereby to convey that the appellant had 'cooked up' an injury only after having given notice of intention to resign, then it stood opposed to his conclusion that the appellant had indeed suffered a compensable low back injury. Moreover, it might be thought very improbable that a worker would give notice of resignation and then allege injury, specifically when that person had been suffering from work-contributed spinal injury for months. If the judge meant to convey, alternatively, that it was only after the appellant had resigned that he had felt free to consult a doctor, and that such attendance was not supportive of the appellant's evidence that his symptoms had worsened on 29 October, then his Honour did not say that. In all, the intended import of what the judge said in that important paragraph in his reasons is, in my respectful opinion, quite uncertain - this bearing upon the patency of his path of reasoning.

52 Seventh, I have given much consideration to the question whether, despite the apparent gaps in the reasons, it should necessarily be inferred that his Honour's ultimate conclusion was founded on him treating the appellant as an unreliable witness in the broad, and on that account rejecting his evidence that his symptoms had worsened after lifting at work on 29 October 1999; such finding making it unnecessary for his Honour to consider whether any worsening in symptoms was indicative of compensable spinal injury suffered that day. The main difficulty that I have had in so rationalizing his Honour's ultimate conclusion is that, in considering whether the appellant's evidence should be rejected as being the evidence of a person who generally was not creditworthy, certain objective evidence tending to the contrary required consideration; and his Honour's reasons were silent as to that evidence.

Did the judge consider the appellant's case?

53 Because I have concluded that the reasons for decision did not adequately disclose the learned judge's path of reasoning, this constituting error of law, the remedy agreed in by the parties is called into play. It is therefore strictly unnecessary to address the argument that his Honour did not engage with the substance of the appellant's case. Two things may be said, however, in that connection: first, investigation of the merits or otherwise of the appellant's contention is really impossible for the very reason that the attack on the judge's reasons has, in my opinion, succeeded - that is, that the reasons do not adequately disclose his Honour's path of reasoning. Second, I do not agree that his Honour must have failed to address the appellant's case because he did not find for the appellant. I do not accept the submission of the appellant's counsel that, in effect, his client's evidence, together with the additional circumstances which were said to support that evidence, really admitted only a conclusion favourable to the appellant.

Orders

54 In my opinion the appeal should be allowed, and the appellant's application remitted for re-hearing in the County Court.

[1] [2005] VSCA 33.

[2] Which would have necessitated, presumably, convening a court of five.

[3] For example, at [89].

[4] At [76]-[78].

[5] Concerning the history as recorded, two observations may be made. First, the question what history was given to a doctor potentially raised questions both as to what the history-giver said, and what the history-taker recorded. To assume an inevitable monopoly of right on one side or the other would run counter to experience. Second, in the present case it would have been remarkable if there had not been some variations in the appellant's history as recounted to the very large number of doctors who had examined him over the years.

[6] [1994] VicRp 32; [1994] 1 VR 436.

[7] There is a question, however, whether his Honour's assessment of some of the evidence was accurate. I mention for example, his reference to the medical certificate supplied on 29 October 1999. The doctor's report, if not the certificate, asserted a history which connected the appellant's work with his symptoms.

[8] At [140].

[9] [2005] VSCA 1, albeit directed to an appeal from an application which was unequivocally interlocutory in character.

[10] Sun Alliance Insurance Ltd v. Massoud [1989] VicRp 2; [1989] VR 8 at 19 per Gray J.

[11] That is, "significant low back pain and equally significant referred pain in the legs."