Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317

Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 - VSCA 2005 case summary — Zoe

[7]

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:

[18]

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:

[35]

"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."

[44]

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.

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Parties