Hesse Blind Roller Company Pty Ltd v Hamitoski [2006] VSCA 121

1 I agree, for the reasons given by Redlich, J.A., that this appeal should be dismissed.

2 I agree with Redlich, JA, for the reasons which his Honour gives, that this appeal should be dismissed.

3 I should add this: The question of adequacy of reasons has been much considered by this and other courts in recent years. There is no occasion to review the many judicial statements about the matter. There is occasion to emphasize that what is required of a judge by way of reasons, in order that they be adequate, is not to be decided on a "one size fits all" basis. The adequacy - or otherwise - of reasons in a particular case falls for evaluation having regard to the matters which were in issue at trial, together with such matters as were common ground, or were conceded by one or other party; and in that evaluation, in the particular case, the path of reasoning may emerge by way of necessary inference.

4 This is an appeal from a decision of a judge of the County Court made on 21 June 2005 granting leave to the respondent to commence proceedings to recover damages for pain and suffering pursuant to s 135AB of the Accident Compensation Act 1985 (the Act) in respect of a work related injury to the respondent's lower back sustained on 4 July 2000. The issue before the learned trial judge was whether the injury had produced pain and suffering consequences which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, should be fairly described as being more than significant or marked and as being at least very considerable (s. 134AB(38)(c)). The appeal is of the nature described by this Court in Barwon Spinners v. Podolak.[1]

5 The relevant facts may be briefly stated. The respondent, who is presently aged 51, commenced work for the appellant in 1990. During his 11 years of employment with the appellant he had never complained of any back ache or showed any sign of pain or restriction in his back. On 4 July 2000 he injured his back whilst unloading a truck (the accident). The appellant acknowledges that the respondent aggravated a pre-existing symptomatic lower back condition. On the day of the accident, shortly after it occurred, the respondent attended his general practitioner, Dr Velkov, complaining of lower back pain. His general practitioner referred the respondent to Mr Hooper, orthopaedic surgeon, whom the respondent saw on 7 July 2000. X-rays taken the same day revealed signs of degenerative disc disease together with a spondylolysis. An MRI scan taken after the accident showed significant change with multi level disc desiccation, annular tears and an unstable spondylolisthesis. The medical opinions tendered in evidence before her Honour were to the effect that the respondent had suffered from a non-symptomatic spondylolisthesis which was rendered symptomatic by the accident. The respondent commenced a program of physiotherapy. On 4 August he was seen by Mr Kudelka, orthopaedic surgeon, who noted that he had restriction of movement in his back with some suggestion of irritative right sciatica. The respondent returned to work in mid July 2000 working four hours five days a week with a weight restriction of seven kilograms. His back pain continued and worsened and on 12 January 2001 he saw another general practitioner, Dr Pjesivac, as Dr Velkov was on holidays. He was unable to work for a further month and was again referred to Mr Kudelka who he saw on six occasions between 2001 and 2002. The respondent returned to work in February 2001 on restricted duties, again working four hours per day five days a week. After a further two and a half months, the respondent ceased work because of increasing pain and discomfort to his lower back. The respondent has not worked since that time and it had been conceded by counsel for the appellant at trial that the injury would prevent the respondent from returning to his former work.

6 As the respondent's case was one of aggravation of a pre-existing condition, it was for him to establish what injury was caused by the accident. That required an analysis to be undertaken of the extent of the impairment of a body function before and after the accident and required a determination of whether the additional impairment involved serious long term impairment of a body function.[2]

7 It was not in issue that her Honour had applied the correct test in determining that the respondent suffered from a "serious injury" within the meaning of s 134AB(37) and (38) of the Act. One of the appellant's contentions was that the learned trial judge had erred in failing to conclude that the evidence did not disclose a permanent serious impairment of the back in relation to pain and suffering. This argument, however, was only faintly pressed during the course of the appeal, no attempt being made to demonstrate that the evidence could not support the conclusion that the respondent had suffered a "serious injury" within the meaning of the Act. In any event, in my view, such a submission could not be sustained as there was sufficient evidence to warrant such a conclusion. Be that as it may, counsel for the appellant went on to contend that the learned trial judge made the following errors:

(a) Her Honour did not adequately analyse and identify the symptoms of the respondent which were referrable to medical conditions other than the compensable injury.

(b) Her Honour failed to adequately analyse the evidence relating to whether the injury sustained by the respondent constituted a permanent serious impairment of the back.

(c) Her Honour did not identify those consequences of the compensable injury which led to her Honour's conclusion that the impairment of the back should be classified as a "serious injury".

(d) The reasons of the learned trial judge did not enable one to determine the path by which her Honour had concluded that the respondent had, in regard to pain and suffering, permanent serious impairment or loss of a body function.

(e) Her Honour did not give any or any adequate weight to the failure of the respondent to lead evidence from one of his general practitioner, Dr Velkov.

8 As is commonly the case with these applications, the respondent relied upon the reports of numerous medical practitioners who had examined or treated him since the accident. None of these practitioners were called to give evidence and the appellant did not require them to attend for cross-examination. The respondent also tendered the notes of his general practitioner, Dr Velkov, who was not called as a witness. It appears that those notes were contained within the respondent's Court Book for the trial but it is not clear upon what evidentiary basis the doctor's notes, which included communications to and from other medical practitioners, were admitted into evidence.

9 The trial judge, in her reasons, referred in some detail to the content of the medical reports and concluded that it was the common view of the medical practitioners who treated the respondent or examined him that the injury in 2000 had aggravated the respondent's underlying spondylolysis of the lumbar spine. Amongst those opinions to which her Honour referred were further reports from Mr Kudelka who in his most recent report of February 2005 had concluded that the physical consequences of the respondent's back injury were significant. Before us, it was accepted that the medical evidence was to the effect that the respondent's low back injury in 2000 had significantly aggravated his pre-existing condition.

Pre accident medical condition

10 The appellant's case at trial was that the respondent was suffering from significant health problems at the time of the accident. Counsel for the appellant had contended in final submissions at the trial that the respondent's pain and suffering was in large measure attributable to his pre-existing injuries and other medical conditions and not to the compensable injury. Counsel further submitted that when a proper evaluation of the respondent's pre accident medical conditions including his pre existing back problem was undertaken by the trial judge, it would be concluded that the injury arising from the accident only minimally added to the respondent's pain and suffering. In accordance with the approach set out in Petkovski v. Galletti the appellant had argued that the aggravation of the respondent's pre existing back condition did not satisfy the serious injury test set out in s. 134AB(38)(c).

11 It is true that, for some time prior to the accident, the respondent suffered from other medical conditions, including Type 2 diabetes. Thus, he was seen by Dr Laska, rheumatologist, in March 2000, who stated in a report to Dr Velkov that the respondent had suffered from musculo-skeletal pain for some four to five years as a consequence of his diabetes mellitus. Dr Laska noted the respondent suffered from pain in the neck, down the upper limbs to the fingers, the back and also the knee, that he suffered from stiffness of the fingers primarily in the first few hours of the morning and pain in the lateral aspect of the knee when he tried to stand up. Dr Laska also noted that after activities the respondent would sometimes "collapse" and at times had trouble maintaining his capacity to work during the course of the day as a truck driver. The respondent also experienced a loss of energy. Dr Laska reported that the respondent presented "as being well" with demonstrable signs of rheumatism with fibromyalgic characteristics with a possibility of some degree of arthropathy from diabetes with a component of autonomic neuropathy.

12 In April 1999 Mr Frank Alford, an endocrinologist at St Vincent's Hospital Melbourne, reported that the respondent had diabetes for five to six years and was complaining of symptoms including severe pain in his legs and in particular the left foot which was typical of diabetic neuropathy. He noted that the respondent complained of tiredness and fatigue between 3 and 6 pm each day. The respondent was also examined in August 1999 by a neurologist, Dr David Freilich, who reported that the respondent woke each morning with stiffness and soreness of his arms, shoulders and back. He noted that by 2 or 3 in the afternoon the respondent felt weak and tired and sometimes had to sleep before continuing to work. He also noted that the respondent experienced some lumbar back pain.

13 The respondent suffered from other ailments which were referred to in various reports that were tendered. In September 1999 he complained to the St Vincent's Hospital of chest discomfort worsened by exertion. In December 2001 and June 2002 this condition was assessed by the Cardiology Unit of the hospital. In May 2000 he complained of epigastric tenderness. In September 2000 the respondent complained to the St Vincent's Hospital that he suffered from early morning headaches that were increasing in severity and becoming disabling. In January, April and May 2001 the respondent attended at the St Vincent's Hospital in relation to skin and lymphoma problems which were subsequently treated in August 2001 by the Peter MacCallum Cancer Institute with "localised electron beam treatment" with subsequent attention in the skin lymphoma clinic. In his evidence the respondent confirmed that he had "cancer on the skin" and spent some weeks at St Vincent's and the Peter MacCallum Institute having chemotherapy and that he treated his ongoing problems with creams.

14 The respondent also had rotator cuff problems in both of his shoulders. In July 2001 it was noted that he had tendonitis and impingement on an ultrasound of the left shoulder. The respondent had referred to a right shoulder injury that caused him to tend to use his left arm to perform tasks he had previously done with his right arm and to the development of shoulder pain. Mr Kudelka reported in July 2002 that his right shoulder had become worse than his left and that the respondent's shoulder problems would preclude him from returning to factory work in the foreseeable future.

15 At the trial, in accordance with the usual practice in such applications, the respondent adopted the content of his affidavit and gave oral evidence before the trial judge. In her reasons for judgment her Honour extensively set out the respondent's account of the manner in which the injury he had sustained in the accident had disabled him and affected his daily existence.

16 During the course of oral argument before us counsel for the appellant placed particular reliance upon the three reports referred to earlier, submitting that they demonstrated the extent to which, prior to the accident, the respondent's lifestyle had been affected by his earlier medical conditions. It was not in dispute on this appeal that during the course of the respondent's testimony he acknowledged the nature of his other medical conditions and the manner in which they affected him. In substance, the respondent acknowledged in evidence all of his earlier medical conditions and accepted that he suffered from symptoms of various conditions prior to and since to the accident. The respondent also acknowledged in the course of his testimony that he had experienced back pain from time to time prior to the accident when he did heavier work. In her reasons for judgment the trial judge noted that the respondent had testified that the back pain which he had experienced before the accident was infrequent and was a "much lesser pain" than that which he has experienced since he was injured in July 2000.

17 It was common ground between the parties that the issue which the learned trial judge was required to determine was the extent to which the respondent's pain and suffering after the accident was attributable to his compensable injury and not to any pre-existing injury or other medical condition. The respondent's account of his pain and disability subsequent to the accident was largely unchallenged. Video evidence was introduced during the course of the trial which revealed that there were "good days", consistent with the respondent's evidence, when the respondent was relatively unaffected by any disability when walking and driving. It was accepted at trial and on this appeal that the respondent's credit as to his account of his medical conditions and their effects on him before and since the accident, and the effects upon him of the injury that he sustained in the accident, had not been put in issue at the trial.

18 The learned trial judge in her reasons, under the heading "The Effects of the Injury," extensively referred to the respondent's testimony as to the manner in which he had been affected by his injury. Then her Honour referred to the manner in which the respondent was affected by his other medical conditions and the fact that he had suffered some back pain before the accident. Counsel for the respondent submitted that the trial judge should be understood as having concluded that the respondent's prior medical conditions did not significantly contribute to his post accident pain and suffering from his back condition. Her Honour found that the respondent had previously been able to work satisfactorily despite his previous medical conditions. The trial judge found that it was the opinion of the medical practitioners who had treated or examined him that the accident had aggravated his lumbar spine condition. Her Honour referred to the test laid down in Barwon Spinners & Ors v. Podolak[3] and concluded that the extent of the physical consequences of the respondent's low back pain were very considerable and constituted a permanent serious impairment.

19 As has been noted, the appellant contended that her Honour's decision was vitiated by the inadequacy of her reasons. It was argued that the reasons were inadequate as her Honour had done no more than set out the evidence of the respondent and the opinions of the medical practitioners and stated her decision. Complaint was made that her Honour had not complied with the requirement that she analyse the evidence and explain why it led to her ultimate conclusion. In this respect, the appellant relied upon Hunter v. Transport Accident Commission[4] and Franklin v. Ubaldi Foods Pty Ltd[5] and contended that her Honour's failure to record in her reasons the analysis of the evidence and her reasoning process constituted an error of law. In Franklin's case Ashley JA recognised that there may be cases in which the path of reasoning which led to the ultimate conclusion may be necessarily inferred. In my view this is such a case.

20 It is true that her Honour did not, in terms, identify those consequences which her Honour considered to be referrable to the impairment of the respondent's back nor did her Honour make any express findings as to the extent to which consequences for the respondent were attributable either to his pre-existing back condition, his compensable injury or his other medical conditions. It was submitted that her Honour was required to do so because the issue raised by the appellant before her was that, in light of the respondent's other medical conditions and his pre-existing injury, the consequences of any back aggravation were not serious for the respondent. It was also contended that her Honour had made no findings as to what evidence she accepted. It was said that one would have expected each of these matters to have been expressly adverted to in the course of her Honour's reasons. Speaking generally it will not be sufficient for a trial judge merely to advert to the testimony of witnesses or the evidence tendered without making clear what evidence has been accepted. The relevant conclusions drawn from the accepted evidence should also be set out in the reasons for judgment.[6] It will often be necessary to explain in the reasons why such conclusions have been reached.

21 There are a number of features of this trial, however, which must be borne in mind when considering the adequacy of the learned trial judge's reasons. There was substantial evidence placed before the trial judge which, if accepted, warranted the conclusion that the respondent had sustained a serious injury within the meaning of the Act. It is important to note that the substance of the respondent's account of his condition both before and after the accident was not in issue. Neither was the history given by the respondent to medical practitioners or their opinions put in issue. Her Honour's approach and reasons for judgment must be viewed in this context. In Barlow and Transport Accident Commission v. Hollis[7] Chernov, J.A. with whom Winneke, P. and Buchanan, J.A. agreed examined the requirements of a judgment concerned with determining serious injury applications. Like the present case complaint had been made that the trial judge had failed to give adequate reasons for his decision. In concluding that the trial judge's reasons were adequate Chernov, J.A. observed:

"The ultimate finding which he made did not allow for much elaboration given that it involved a value judgment on his part. Moreover, for reasons I have given, His Honour stated with sufficient particularity the relevant medical and other facts on which he based his judgment, thereby demonstrating the steps in his reasoning which led to the ultimate conclusion."

22 I consider that the trial judge's path of reasoning was apparent despite the absence of specific findings. Although her Honour did not say so, it is sufficiently clear that the evidence which her Honour set out was the evidence upon which she was prepared to act. That unchallenged evidence described the respondent's pre and post accident condition. Her Honour accepted the respondent's account of the extent to which the compensable injury had affected him and caused him pain and suffering, and concluded that the injury which he had sustained constituted a serious impairment of the back. Her Honour also examined in her reasons the consequences flowing from the respondent's other medical conditions and his underlying back condition which existed prior to the accident. The consequences of the accident which the respondent described, and which I infer that her Honour accepted, were consequences which her Honour was entitled to conclude satisfied the "serious injury test" under s 134AB(37) and (38) of the Act.

Failure to call the respondent's general practitioner

23 Counsel for the appellant in both their written and oral submissions placed heavy reliance upon the ground of appeal which alleged that the learned trial judge had erred by failing to draw what is known as a Jones v. Dunkel[8] inference from the respondent's failure to call opinion evidence from one of his treating general practitioners, Dr Velkov. Dr Velkov had been the respondent's general practitioner since the early 1990s. As I have said, the respondent had seen Dr Velkov on the day of the accident, and he continued to be under his care for the balance of the year 2000. Although he was treated by another general practitioner from January 2001 onwards he continued to see Dr Velkov in relation to his other medical conditions. The appellant contended that Dr Velkov was thus particularly well positioned to express an opinion on any material change in the respondent's back condition following the accident and was also well placed to give evidence as to the effect upon the respondent of his other medical conditions. In particular, it was said, Dr Velkov's opinion would have been relevant to the issue of the extent of the respondent's aggravation of his back condition as a result of the accident, in identifying the symptoms referrable to the back and those relevant to other medical conditions from which the respondent suffered and as to the permanence of the back impairment produced by the accident. Consequently, counsel submitted, the failure by the respondent to produce a report from Dr Velkov gave rise to an inference against the respondent.

24 In her reasons for judgment the trial judge referred to the submission that she should draw an adverse inference from the lack of a report from Dr Velkov. Her Honour noted that the clinical notes of Dr Velkov had been tendered as well as a report from Mr Hooper and Dr Kudelka to whom the plaintiff was referred very early on by Dr Velkov. Her Honour found that there was a wealth of medical material pertaining to that period in the respondent's treatment and also x-rays from the year before the injury. Her Honour stated that the lack of a report from Dr Velkov should be viewed against that background.

25 The appellant submitted that the body of evidence pertaining to the respondent's treatment in the immediate aftermath of the accident was not a proper reason for not drawing an inference that Dr Velkov's evidence would not have assisted the respondent. It was claimed that the failure to adduce evidence from Dr Velkov was relevant to the evaluation of the evidence as to the respondent's overall medical condition and particularly his medical condition, including his back condition and the effect of other medical problems, prior to the accident.

26 Dr Velkov's notes reveal that during the period of 10 years that the respondent consulted him prior to the accident there were only three references to the respondent's lower back. Thus, Dr Velkov's record was consistent with the respondent's testimony as to the condition of his lower back prior to the accident. The absence of any significant or continuing pain or discomfort from his lower back prior to the accident was also consistent with the evidence that the respondent had worked for the appellant for approximately 11 years prior to the accident without making any complaint to his employer about any back injury. Similarly, Dr Velkov's clinical notes of his attendance upon the respondent on the day of the accident and his subsequent records of the respondent's condition was consistent with the respondent's testimony as to the manner in which the injury which he sustained in the accident had disabled him causing him pain and suffering.

27 The rule in Jones v. Dunkel has been explained in the frequently cited joint judgment of Newton and Norris JJ. in O'Donnell v. Reichard.[9] Their Honours said:

"Where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person's evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person's evidence would not have helped that party's case; if the jury draw that inference, then they may properly take it into account against the party in question for two purposes, namely: (a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken."

28 The logical process to which Newton and Norris JJ. advert in O'Donnell deals with the distinct purposes to which a failure to call evidence may be put in evaluating evidence that has actually been given including the drawing of other inferences.[10] Where it is not suggested that there is any conflict, ambiguity or doubt about the matters which have already been the subject of evidence, the trial judge is not called upon to embark upon the evaluative process arising from the absence of testimony from a witness who might have spoken on the matter. Once it is appreciated that a Jones v. Dunkel inference can only make evidence which has been given more or less probable,[11] no inference can arise unless evidence is given in relation to a matter and, as a consequence of the pleadings or the course of the evidence in the case, a party would be expected to answer, qualify, explain, confirm or contradict that evidence.

29 The learned authors of Cross on Evidence[12] suggest that, where no challenge is made to the evidence of witnesses who are called, no Jones v. Dunkel inference can arise in respect of other witnesses who could have been called to give the same evidence. Thus, in Packer v. Cameron[13] the Court found that the trial judge had drawn an impermissible inference from the failure of the plaintiff to call a number of medical practitioners when the evidence that they might have given did not relate to a fact which had been put in issue. In that case, like the present, no suggestion had been made that the plaintiff's symptoms were not genuine or that he was a malingerer. Cox, J., with whom Duggan and Mulligan, JJ. agreed, did not consider that the plaintiff was obliged to call further medical evidence in those circumstances and said that no adverse inference could be drawn from his failure to do so. That case should be contrasted with Ronchi v. Portland Smelter Services Ltd[14] where there was doubt about the circumstances in which the plaintiff came to be injured and whether those circumstances were sufficient to constitute negligence by the defendant. It was in that context that the failure of the defendant to call witnesses who "had a unique perspective as to some critical issues in the case and were likely to have had evidence to offer which others would not have been in a position to give" required a Jones v. Dunkel direction.[15] The proposition referred to in Cross that

the rule only applies where the issues, as identified by the pleadings or the course of evidence, requires a party to explain or contradict something, was cited with approval in the judgment of Nettle, J.A. in Ronchi.[16] His Honour further observed that the rule does not require a party to call further witnesses who would give "merely cumulative evidence ... where there is no challenge made to the evidence which is called".

30 The issue for the trial judge here was whether the additional impairment to the respondent's lower back as a result of the accident constituted a "very considerable" injury within the meaning of the Act. The respondent's condition prior to the accident, the nature of the respondent's pre-existing injury and his other medical conditions were not matters of dispute. He had testified as to his condition prior to the accident and his credit was not called into question.

31 As has been mentioned, since there was no challenge to any fact or inference arising from the respondent's evidence, no occasion arose for the respondent to call Dr Velkov to give evidence bearing upon those facts or inferences. Moreover, Dr Velkov's opinion as to the respondent's condition following the accident would have been of limited utility as he was not the primary physician who treated the respondent for the injury caused by the accident. The opinions of the specialists who treated or examined the respondent after the accident were all tendered in evidence. Many of the specialists' reports were contained within the clinical file of the general practitioner, Dr Pjesivac. The respondent's account of his condition following the accident was not challenged at the trial and his credit on that issue was not called into question. Viewed against that background, there was no error in her Honour's conclusion that the absence of Dr Velkov's evidence and opinion could not give rise to the adverse inference for which the appellant contended.

32 In my opinion the appeal should be dismissed.

[1] [2005] VSCA 33 at [45], [49].

[2] Petkovski v. Galletti [1994] VicRp 32; [1994] 1 V.R. 436.

[3] [2005] VSCA 33.

[4] [2005] VSCA 1 at [28] per Nettle J.A.

[5] [2005] VSCA 317 at [38] per Ashley J.A.

[6] Hunter v. Transport Accident Commission [2005] VSCA 1 at [28] per Nettle, J.A.

[7] [2000] VSCA 26 at 15.

[8] [1959] HCA 8; (1959) 101 C.L.R. 298.

[9] [1975] VicRp 89; [1975] V.R. 916 at 929.

[10] Kidman v. Corstorphan (1999) VSCA 28 at [24] per Tadgell, J.A., with whom Batt and Chernov, JJ.A. agreed.

[11] Schellenberg v. Tunnel Holdings [2000] HCA 18; [2000] 200 C.L.R. 121 at 143 [50] per Gleeson, C.J. and McHugh, J.

[12] Cross on Evidence Australian Edition at [1215]; Cubillo v. Commonwealth [2000] FCA 1084; (2000) 174 A.L.R. 97.

[13] (1989) 54 S.A.S.R. 246 at 253-4 per Cox, J.

[14] [2005] VSCA 83.

[15] At [31] per Eames, J.A.

[16] At [81].