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: