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[2020] VSCA 10
General information, not legal advice.
Court of Appeal (Vic)
2020-02-07
Beach JA, Kaye JA
Original judgment source is linked above.
[2019] VCC 28 (Judge Millane)
ACCIDENT COMPENSATION - Application for leave to appeal - Workplace accident - Serious injury application - Lower back injury - Credit issues - Credibility of applicant - Adverse credit findings - Surveillance evidence - Use of surveillance evidence - Church v Echuca Regional Health [2008] VSCA 153; referred to - Implausible evidence - Findings not glaringly improbable or contrary to compelling inferences - Reasons - Adequacy of reasons - Not reasonably arguable that reasons inadequate - Application for leave to appeal refused - and .
1 On 16 March 2015, the applicant injured his lower back while lifting a heavy box in the course of his employment with the respondent ('the accident').
2 By an originating motion filed in the County Court on 28 June 2018, the applicant sought leave pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 ('the Act') to commence a proceeding at common law claiming damages for his injury.
3 The application was heard over two days in December 2018. At the hearing of the application, the applicant relied upon paragraph (a) of the definition of 'serious injury' in s 325(1) of the Act ('permanent serious impairment or loss of a body function'). The body function relied upon by the applicant was the function of his spine. The applicant sought leave to commence a proceeding claiming both damages for 'pain and suffering' and 'pecuniary loss damages'.[1]
4 At the hearing of the application, the respondent did not dispute that the applicant had suffered a compensable injury. The respondent, however, disputed whether the applicant's injury was serious within the meaning of s 325(2)(c) and whether, in any event, the applicant had established a loss of earning capacity of 40 per cent or more as required by s 325(2)(e) of the Act.
5 On 1 February 2019, the judge dismissed the applicant's application.[2] The judge dismissed the application because she was not satisfied that the applicant's injury was serious within the meaning of the Act.[3] The judge was also not satisfied that the applicant had established the 40 per cent loss of earning capacity required by s 325(2)(e). The foundation of the judge's decision against the applicant was an unfavourable view her Honour took of the applicant's credit.
6 The applicant now seeks leave to appeal against the order dismissing his application. His grounds of appeal make complaint about the adverse credit findings made against him by the judge, the judge's use of surveillance material (grounds 1 to 3) and the adequacy of the judge's reasons (ground 8).[4]
7 The applicant seeks an order that the judgment below be set aside and that this Court 'determine for itself' the applicant's application for leave to commence common law proceedings. In the alternative, the applicant seeks to have the judgment set aside and the matter remitted to the County Court for retrial by a differently constituted court. In light of the existence of credit issues, in argument, senior counsel for the applicant accepted that if error was established then the matter would probably have to be remitted for retrial.
8 On the hearing of the application in the County Court, the applicant relied upon two affidavits that he swore on 5 February 2018 and 5 December 2018. The parties tendered various documents, including medical reports, radiological reports and vocational assessment reports. In addition, the applicant tendered a letter of termination of his employment dated 23 June 2018, and a 'certificate of capacity' completed by his general practitioner, Dr Stesin, on 4 December 2018; the respondent tendered two DVDs containing surveillance footage taken of the applicant on 8 October 2018 and 26 November 2018.
9 The only witness to give viva voce evidence on the application was the applicant. In his examination-in-chief, the applicant adopted his two affidavits. He was then cross-examined, and subsequently re-examined.
10 The applicant was born in 1972. He was 42 at the time of the accident and 46 at the time of trial. His immediate family consists of his partner and teenage son with whom he lives in suburban Melbourne. His partner is in paid employment.
11 The applicant completed Year 10 at a technical school and Year 11 at a high school, but left school before completing Year 12. He then commenced a metal fabrication course at a TAFE college. He completed three years of a four-year boilermaker's apprenticeship. He holds a heavy rigid licence, and has previously held a crane proficiency certificate and a forklift ticket.
12 In June 2010, the applicant commenced employment with the respondent as a dispatch and factory worker. His employment before June 2010 largely involved manual handling work, including work as a welder, a bar attendant, a kitchen hand, a machine maintenance operator Grade 3, a labourer, a store person and a truck driver. At one time, the applicant worked for 12 months in employment which involved the hanging and sorting of garments. In that employment, the applicant said that 40-50 per cent 'was computer work'.
13 While the applicant described his work with the respondent as mainly involving dispatch and factory work, the histories contained in some of the medico-legal reports suggest that the applicant's duties with the respondent included welding, spray painting, crane and forklift driving and the use of a computer when working in the dispatch office. In cross-examination, however, the applicant said that he did very little computer work for the respondent, and that what he did in that regard was limited to printing labels.
14 As we have already said, the accident occurred on 16 March 2015 when the applicant was lifting a heavy box. His evidence was that he twisted his back to lower the box into a kit which was situated at about ankle height. While doing this, he experienced the onset of significant lower back pain. Nine days later (24 March 2015), the applicant attended his general practitioner, Dr Low. He was placed on light duties, prescribed anti-inflammatory medication, referred for physiotherapy and advised to rest.
15 In April 2015, a CT scan was performed on the applicant's lower back. In his first affidavit, the applicant said that Dr Low told him that he had 'suffered a L5/S1 disc problem'. Dr Stockman, a rheumatologist to whom the applicant was referred in August 2015, reviewed the April CT scan and concluded, however, that it showed only minor degenerative changes.
16 Between April and July 2015, the applicant continued on at work despite suffering from what he described as 'ongoing significant back pain'. The applicant's evidence was that by July 2015, his pain had not improved and, if anything, it had become more of a problem, particularly when he was attempting to perform work duties.
17 In August 2015, Dr Stockman referred the applicant for an MRI. The applicant's evidence was that Dr Stockman told him that he suffered from significant disc problems with his lumbar spine and in particular disc prolapses at L1/2 and L2/3, and a problem at L5/S1 with nerve root involvement. The MRI requested by Dr Stockman was, however, reported as follows:
No significant pathology seen in the thoracic spine.
In the lumbar spine there is a conjoined left L5-S1 nerve root sheath origin which can increase the likelihood of some impingement on the left L5 and S1 nerve root sheaths at the L5/S1 level. Whilst there is abutment on the nerve roots, there is no obvious compression seen.
Mild degenerative desiccation of the L1-2 and L2-3 discs seen.
Paravertebral soft tissues are unremarkable in appearance.
18 Following August 2015, the applicant continued with conservative treatment and continued to perform light work until 30 June 2016. By letter dated 23 June 2016, the respondent terminated the applicant's employment from 1 July 2016. The letter provided:
I can confirm that we have received a copy of the IMR from your medical examination with Dr Berry on 19 May 2016. In light of the medical opinion contained within the report and discussions held with yourself, it is evident that the light duties return to work program that you have been working to over the past 15 months has not assisted with your rehabilitation to try and get you back to normal duties. In fact, in your opinion, you have stated that there has been no noticeable improvement.
Given the lack of progress with the light duties return to work program and the IMR's medical assessment of your condition, I must inform you that we will be withdrawing the current light duties return to work program effective from 1 July 2016.
19 At the time his employment with the respondent was terminated, the applicant had been working 16 hours per week on modified duties, subject to restrictions involving lifting, pushing or pulling more than 5 kilograms. The applicant has not returned to any form of employment since the termination of his employment with the respondent. He has continued to receive treatment of a basically conservative nature, including attending a pain management and rehabilitation course for three days per week over a ten-week period, undergoing medial branch nerve blocks, taking medication, receiving physiotherapy, engaging in exercise programs, and undergoing psychological counselling at various times.
20 In August 2018, the applicant was given approval to have an assessment by a physiotherapist for the implanting of a spinal cord stimulator. While the applicant has been 'cleared by the physiotherapist to proceed', the procedure had not been performed at the time of trial because of the applicant's uncertainty about its efficacy.
21 On 1 February 2018, the applicant underwent an 'erect weightbearing' MRI scan of his lumbar spine. The conclusion of this scan was reported as follows:
Mild broad-based disc bulge L5/S1, with a small left paracentral disc protrusion component, contacting but not displacing the proximal traversing left S1 nerve root.
22 In his first affidavit (sworn 5 February 2018), the applicant deposed to the effect of his injury on his social, recreational and domestic capacities as follows:
My injury has had a significant impact on my social, recreational and domestic capacities. I find that I tend to stay at home most days and avoid socialising due to my injury. I have also become easily aggravated and angry which is affecting my emotional state. This in turn affects my personal family life.
I continue to take medication for pain. I experience lower back pain every day. I have tried to stop taking medication however the pain is too significant which causes me to continue taking pain killing medication. I tend to get very frustrated and angry when taking antidepressant and/or pain medication. I have suffered significant side effects from taking most medications.
My back has also caused me a lot of problems preventing me from doing recreational activities. Before my injury I particularly enjoyed working around my house. I built a pergola at the rear of my house from materials provided by my employer. I also enjoyed doing the gardening and lawn mowing however since my injury I have been restricted in doing a lot of these activities as I suffer flare ups of back pain.
Before my injury I enjoyed helping out at Steam Rail Victoria and would work voluntary at the kiosk. Since my injury I have had to stop this voluntary work as I find it very difficult to stand or sit for long periods of time due to ongoing increasing back pain.
My sleep has been affected by my injury. I regularly wake throughout the night due to lower back pain. I wake up about 3 or more times per night. I find it difficult to go back to sleep as I have developed anxiety as a result of my injury and also uncertainty about my financial security in the future.
23 In relation to the effect of his injury on his earning capacity, the applicant deposed in his first affidavit to having lost his ability to work. He said that while he has been certified fit to return to only part-time light duties, 'there is little or no work opportunities available for me given my level of disability'. The applicant's evidence was that he had looked for jobs on the internet, in the daily papers and through vocational service providers. The work he has applied for has been mainly manual work, and due to his injury he has 'limited ability to perform this work'.
24 In his second affidavit (sworn 5 December 2018), the applicant addressed specific matters in respect of which he said he had 'a lot of problems'. He deposed that his partner:
does a lot of the household chores and has to assist me in a range of activities such as cooking, cleaning, washing, ironing, vacuuming and other household activities.
25 With respect to his son, he said that his son assisted him:
in a range of activities and does a lot of the outdoor work such as mowing, gardening, cleaning, sweeping external areas of the house, weeding, putting the rubbish bins out and lifting anything heavy.
26 In his second affidavit, the applicant deposed to continuing to suffer from significant problems with sleeping, saying that he wakes up regularly throughout the night and rarely has an unbroken night's sleep.
27 In his second affidavit, the applicant also referred to the effect of his injury on his earning capacity. He said that he has little or no clerical skills. Jobs such as dispatch clerk, sales administrator and stock clerk, referred to in a vocational assessment report, were said to be unsuitable because of his lack of relevant skills. He said that a bookkeeping course which he attended 'was of such a limited scope that [he] obtained no sellable work skills from it'. He concluded:
I say that due to my age (46 years of age), my lack of alternative employable skills, the impacts of my injury and the restrictions that it has caused me on a physical level, my inability to retrain into alternative employment, my limited employment history performing non-physical work, I say that I have suffered a total incapacity from my pre-injury employment and I have limited or no capacity for alternative duties.
28 The medical evidence consisted largely of letters and reports from treating medical practitioners and medico-legal experts.
29 The judge referred to Dr Stesin's report of 30 August 2018 as representing 'the most recent medical evidence from a treating doctor', apart from the certificate of capacity completed on 4 December 2018. In his report, Dr Stesin described the conservative treatment to which we have already referred to, saying that the CT and MRI scans of the applicant's spine 'show minor degenerative changes in his lumbar spine'. Additionally, Dr Stesin gave the following opinions in answer to specific questions from the applicant's solicitor:
With regards to activities of daily living. He can do some cleaning and cooking at home. He can do shopping. Provided time spent on his feet is limited to two hours. He doesn't take part in any sporting activity. He is not doing fishing which was his hobby prior to his injury.
...
He will require intermittent anti-inflammatory medications, painkillers, regular swimming, exercises and occasional visits to physio.
...
[He] has capacity for work.
...
He has no capacity for his pre-injury work, however he has capacity for alternative duties. He may be able to perform light physical work or sedentary work for 2 - 4 hours a day.
...
The type of work he may be capable of doing is part-time quality control or security work. I accept it may be very difficult to find [a] job like that with the existing injury. Ideally, he should be retrained to perform some sedentary clerical work.
...
I believe he should have the opportunity to sit or stand at will and should do minimal lifting or twisting.
...
He is likely to be able to work 2 - 4 hours per day four days a week. It means his work hour will be 8 - 16 hours per week.
30 In light of the terms of the applicant's proposed grounds of appeal, it is not necessary for us to refer to all of the medical evidence tendered at trial. This evidence was canvassed by the judge in some detail in her reasons for judgment. Having already referred to the evidence of Dr Stesin (and Dr Stockman's opinion concerning the CT scan performed in April 2015), it is sufficient for present purposes to refer only to the following additional evidence given by four medical witnesses: Dr David Eaton, Mr David Brownbill, Associate Professor Umberto Boffa and Mr Kevin Siu.
31 At first instance, and in this Court, the applicant relied upon the evidence of Dr Eaton and Associate Professor Boffa in relation to the issue of his incapacity. Associate Professor Boffa's opinion evidence also assumed some prominence in the judge's reasons for judgment, as did the evidence of Mr Siu.
32 Dr Eaton is a specialist occupational and environmental physician. In a letter dated 22 September 2016 to Dr Symon McCallum (a treating pain physician and specialist anaesthetist who performed 'T8/9 medial branch blocks' on the applicant in July 2016), he expressed the following opinion which the applicant relies upon in this Court:
In this case, the functional limitations and disability result from the potential for some activities to aggravate (permanently worsen) [the applicant's] condition rather than an inability to perform the activities. Therefore, they would still apply if the present symptoms were to resolve.
33 In December 2015, May 2017 and October 2018, the applicant was examined, on behalf of the respondent, by Associate Professor Boffa, a consultant occupational and environmental physician. Following his final examination, Associate Professor Boffa expressed the following conclusions:
[The applicant] is unable to return to pre-injury duties and hours.
He has a variable and unreliable capacity for duties that allow change of posture and avoid repetitive bending, twisting, pushing, pulling, lifting and carrying more than 5 kg, working two-hours per day on three non-contiguous days per week in the first instance.
[The applicant] may need to work from home for a set number of hours but with self-managed breaks because work capacity is currently too variable for other employment or volunteering.
[The applicant] is fit for home-based call centre and administrative duties.
If his condition improves as a result of a self-managed walking program, graduating from ten-minute walks twice daily to 30-minute walks three times daily, clenching his buttocks at every driveway he passes to improve core strength, he would be fit for security gatehouse, concierge and control room duties.
I am unable to specify particular workplaces or employers.
[The applicant] will require intensive bookkeeping and computer training and vocational training such as in security but I am unable to specify particular service providers.
34 The judge referred to these conclusions in her reasons for judgment.[5] In his written case, the applicant emphasised those parts of Associate Professor Boffa's opinion that stated that he was unable to return to pre-injury duties and hours; had a variable and unreliable capacity for duties requiring him to avoid repetitive bending, twisting, pushing, pulling, lifting and carrying more than 5 kilograms or working more than two hours per day on three non-contiguous days per week; and that he would only be fit for security gatehouse, concierge and control room duties if his condition improved.
35 The applicant was seen by Mr Brownbill, a consultant neurosurgeon, at the request of his solicitor, in August 2017. Following his examination, Mr Brownbill expressed the following opinion:
Examination on the 2nd of August 2017 has shown marked restriction of thoraco lumbar spinal movements (with his demeanour indicating some likely emotional reaction component to pain). There was no objective neurological abnormality of the lower limbs. There were no signs of radiculopathy.
Radiological examinations have demonstrated multiple level minor lumbar spine degenerative changes but without frank prolapse or nerve root compression.
On the information provided I consider this man on probability (sic) has sustained some soft tissue injuries to structures about the lumbar spine with likely aggravation of pre-existing degenerative change giving rise to local pain but without neurological damage and without frank disc prolapse.
An assessment of any emotional reaction component to initial pain (suggested by his demeanour) lies outside the neurosurgical province.
It is prudent for him to avoid heavy lifting, forced spinal mobility, prolonged standing or sitting. From a physical neurosurgical point of view I consider he would be capable of attempting a return to work program avoiding those actions. The number of hours he could work would be dictated by his responses.
I do not anticipate any untoward neurological sequelae.
36 In November 2018, the applicant was examined, on behalf of the respondent, by Mr Siu, a neurosurgeon. Following his examination, Mr Siu expressed the following opinions:
My diagnosis is exacerbation of lumbar spondylosis but superimposed on that is some specific tenderness in the mid to lower thoracic spine. However, I could not identify any pathology in the thoracic spine.
...
The prognosis is uncertain. Symptoms have persisted.
...
I do not think he can return to his pre-injury duties, but would agree with the occupational physician that he should be and most likely can be retrained if he increases his computer skills.
...
His pain level is 5/10 and although he is on Panamax and anti-inflammatory medication, I think if one of the other proposals is to return to another pain management course, preferably a different one, then his medication could be adjusted and provide the opportunity for him to be retrained as well.
37 At trial, each side relied upon a vocational assessment report: the applicant relied upon a report completed by Mr Glen Dwyer of Evidex ('the Evidex report'), and the respondent relied upon a report of Ms Janette Ash of Recovre ('the Recovre report').
38 The Evidex report concluded that the applicant's functional restrictions precluded him from performing all occupations for which he has qualifications and/or experience, 'and more generally they preclude him from working in fulltime employment'. A capacity (acknowledging that the applicant 'may need to be selective in his work choices to ensure work is within his functional capacity') was however accepted for a maximum of two hours per day, four days per week (not working more than two consecutive days) as a sales representative and/or a sales assistant.
39 The Recovre report concluded that there were three roles that existed within the open labour market for which the applicant might be suited: dispatch clerk, sales administrator, and stock clerk.
40 In a supplementary report obtained on behalf of the respondent, Associate Professor Boffa expressed the opinion that the applicant was able to return to each of these roles specified in the Recovre report 'because they all involve duties that allow change of posture and avoid repetitive bending, twisting, pushing, pulling, lifting and carrying more than 5 kg'. Associate Professor Boffa went on to say that it would be advisable for the applicant to commence working two hours per day on three 'non-contiguous days per week in the first instance'. He then set out a regime over which he said the applicant was 'fit for graduation to pre-injury hours' over a period of ten weeks.
41 The respondent tendered two DVDs of surveillance footage taken of the applicant on 8 October 2018 ('the first film') and 26 November 2018 ('the second film').
42 The first film comprised footage of the applicant taken at intervals between 11.45 am and 5 pm on 8 October, and ran for approximately an hour and three minutes. The second film comprised footage of the applicant taken at intervals between approximately 10.23 am and 12.27 pm on 26 November, and ran for approximately eight minutes. As the judge observed, there were breaks of varying duration in each film. Moreover, at trial, the respondent conceded, as the judge noted,[6] that there had been surveillance of the applicant totalling some 32.5 hours.
43 In the first film, the applicant was seen largely in the front of his house, mostly working in the garden, but also spending some time working under the bonnet of a Jeep parked in the driveway. The film showed the applicant using a pole saw to remove several overhanging branches from a neighbouring tree. The judge described this work as involving 'sustained and repetitive activity in cutting and at times vigorously pulling large and awkward to manage overhead branches'.[7]
44 In addition, the applicant was seen cutting and feeding pieces of branches into a mulching machine, and carrying buckets of mulch which he then distributed around the garden. At one point in the first film, the applicant was seen carrying a quite large black rectangular bucket across his front yard, prior to squatting down and spreading mulch from the bucket onto the garden. The applicant was extensively cross-examined about this surveillance footage.
45 In the second film, the applicant was seen carrying a large container, which he said contained a grinder. He was also seen carrying what was described as a 'metal computer frame', which the applicant estimated weighed four to six kilograms.
46 On the day of the second film, the applicant met with another man, whom he identified as a neighbour and the owner of an auto mechanics shop. His evidence was that, on this day, he performed welding work on the metal computer frame, which belonged to this other man. He said that he enjoyed the work but would not be welding again in a hurry because welding work caused him back pain, both during and after performing the work. The applicant was cross-examined about the nature and extent of the activity he performed on 26 November.
47 The judge commenced her reasons for judgment by identifying the issues in dispute between the parties, and the matters the applicant was required to prove.[8] She said that the applicant's credit was 'central to the determination of [his] application', noting that the respondent contended that he had 'exaggerated the extent of pain and incapacity due to injury-related impairment of his spine'.[9] The judge said that this 'was said to be an important consideration in the evaluation of medical opinions where doctors may have relied on an inaccurate description of [the applicant's] physical symptoms and restrictions'.[10]
48 Before dealing in detail with the issue of the applicant's credit, the judge, foreshadowing an adverse credit finding, said (favourably for the applicant):
Where, as in this case, there was objective radiological evidence of lumbar spondylosis, despite making adverse findings on credit, I proceeded on the basis that the restrictions to which doctors had referred applied. These likely limited [the applicant's] employment options to occupations that: allowed changes in posture and an opportunity to sit and stand at will; did not require repetitive bending, twisting, pushing, pulling, lifting or the carrying of weights exceeding 5 kg.[11]
49 The judge then turned to the question of the applicant's credibility as a witness. Under the heading 'Was [the applicant] a credible witness?', the judge said:
The surveillance film obtained in the weeks prior to the hearing, particularly that depicting [the applicant] pruning a tree overhanging from a neighbouring property as well as undertaking related gardening activities over the course of some hours, provided a strong, but not the only, basis from which to evaluate [the applicant's] credit. For instance, I also found implausible several of the responses given by [the applicant] when he was challenged under cross-examination.
I concluded that [the applicant] had likely exaggerated the extent of his symptoms and restrictions due to injury-related impairment of his lower back as at the date of hearing. [The applicant] also impressed as someone who was reluctant to concede any capacity for suitable alternative employment and retraining.
In making my finding on credit, I also took into account reports made by several doctors to the effect that psychological factors may have been impacting [the applicant's] presentation. However, allowing for all of the evidence including the film, I could not be satisfied that psychological factors adequately explained an apparent discrepancy between [the applicant's] physical activities and his claimed disability. It follows from my assessment of [the applicant's] credibility that the weight attached to his account of his pain experience and of his capacity for retraining for and employment in suitable alternative employment was less than it might otherwise have been.[12]
50 The judge then said that her reasons for these findings 'are more fully addressed in [her] discussion of the evidence that follows'.[13]
51 Next, the judge referred to what she described as 'uncontroversial background facts'.[14] As part of this analysis, the judge noted that the applicant had not applied for any form of alternative employment in the two years preceding the trial - concluding that this was 'unlikely due to any deficit in [the applicant's] current level of computer skills or an inability to upgrade those skills for the purpose of engaging in suitable alternative employment'.[15]
52 The judge then set out in some detail a description of the applicant's treatment, the progress of his injury, his employment following the accident, and the conclusions of what were then the recent medico-legal examinations conducted by Associate Professor Boffa and Mr Siu.[16] In the course of her analysis of these issues, the judge made the following points:
(1) When the applicant's employment with the respondent ceased on 1 July 2016, he had been working 16 hours per week on modified duties, subject to restrictions. While he said that even with medication he had been struggling, at the hearing, the applicant agreed that he stopped work because he had been terminated, not because he was unable to continue working.[17]
(2) While the applicant reported that the medial branch nerve blocks performed in July 2016 had not reduced his pain, it was notable that Mr Siu cast doubt that the blocks had been administered in treatment of low back pain when they were in fact administered in the mid to low thoracic region.[18]
(3) While it was the applicant's evidence that his condition had worsened since he stopped work, the radiological and objective clinical signs found and reported by doctors since 2016 had not indicated any deterioration in his underlying condition.[19]
(4) The applicant's evidence that he could not recall taking painkillers for four weeks at a time when he was able to walk 10,000 steps a day was not credible.[20]
(5) While the applicant had told his treating psychiatrist, Dr McQuillan, in May 2017, that he 'anticipate[d] finalisation of his claim towards the end of the year and then would pursue [his interests in bookkeeping and business ventures that he was considering for the future]', in evidence he rejected the proposition that he had decided to finalise his application for leave to commence a proceeding before making any attempt to return to work.[21]
(6) Given that the applicant had not made any job applications since December 2016, the judge could not be confident that he had not in fact delayed a return to work or delayed establishing a business pending resolution of his application for leave.[22]
(7) Mr Brownbill noted a discrepancy between the pathology and the results of his clinical examination on the one hand, and the restrictions and complaints with which the applicant presented in August 2017 on the other hand, and concluded that these were likely due to psychological factors.[23]
(8) In cross-examination, the applicant appeared to accept the proposition that, based on information he had previously provided to Dr McCallum, his walking tolerances had increased from 3,000 steps per day in January 2018 to 6,000 steps per day in July 2018. The judge said that, 'at the very least this evidence acted to contradict the claim that [the applicant's] lower back condition had deteriorated in the years since he ceased working'.[24]
(9) The judge had 'reservations about the reliability of [the applicant's] account of his symptoms and restrictions'. This coupled with his equivocation on whether he would undergo the spinal cord stimulator implant procedure prevented her from making an allowance for potential implant therapy as a component of the applicant's pain and suffering consequences.[25]
(10) The assessment of the applicant's capacity for suitable employment made by Associate Professor Boffa was to be preferred, in part, because there was an absence of medical evidence that explained the change (if any) in the applicant's physical condition since Dr Stesin's report in August 2018 that justified a further reduction in the recommended maximum hours worked in suitable employment.[26]
53 The judge then dealt with the applicant's pain and suffering consequences, primarily by reference to his second affidavit. The judge accepted a submission made by the respondent that the applicant's second affidavit 'significantly overstated the problems [the applicant] had with housework and cooking'.[27] As to the applicant's evidence about gardening, the judge said:
The impression given both through the affidavit evidence and responses under cross-examination was that, whilst [the applicant] was able to garden for limited periods, due to back pain, he depended on assistance from his son for the majority of the gardening tasks, including any physically strenuous tasks. [The respondent] submitted and I have accepted, that based on [the applicant's] evidence his role in gardening was essentially supervisory in that he oversaw his son's work and provided advice if the task was in [the applicant's] words: 'technical'.[28]
54 The judge then turned to the DVD surveillance evidence. The judge described this evidence in some detail.[29] The judge acknowledged the breaks in the film which we have already referred to and the fact that there had been surveillance totalling some 32.5 hours which had produced films that ran for 1 hour and 3 minutes (the first film) and 8 minutes (the second film).
55 The judge referred to the respondent's cross-examination of the applicant about the films and made the following points:
(1) There was a discrepancy between what the applicant told Associate Professor Boffa about walking downstairs backwards due to back pain and the film of the applicant descending the steps from his veranda without any sign of restriction or physical distress. The applicant sought to explain the discrepancy by distinguishing between a full flight of stairs (necessitating descending backwards) and the smaller flight of five steps that ran between his veranda and driveway. The judge noted that the unusual activity of walking downstairs backwards was not mentioned in either of the applicant's affidavits or recorded in other materials tendered. However, she did not find the applicant's explanation distinguishing between a full flight of stairs and the smaller flight of five steps to be plausible.[30]
(1) The large black bucket that the applicant carried in front of his body between about knee and thigh height 'presented as a heavy and awkward load'. The judge did not find plausible the applicant's evidence that the buckets of mulch carried by the applicant on 8 October 2018 had not been heavy.[31]
(3) The applicant's rejection in evidence of the proposition that the use of the pole saw to cut branches involved strenuous use of his arms and that it was 'all under weight' was implausible, given the content of the first film.[32]
(4) The applicant gave two different explanations in respect of the work he was shown performing in the first film. As the judge put it:
Notably, the failure of the recent affidavit evidence to explain, for example, that on a good day [the applicant] might work harder and longer in the garden without needing his son to assist, or to mention the scenario that [the applicant] had paid for a long day of hard work in the garden with significant pain over a two day period, were among the matters for which I made allowance when determining that [the applicant's] affidavit had created a misleading and exaggerated impression of the extent to which lower back pain restricted his capacity to perform gardening activities.[34]
57 Ultimately the judge was not satisfied that the applicant's evidence 'adequately explained the extent of the activities captured on film on separate occasions; or the omission of particularly the gardening activities from the second affidavit; or the inconsistency between [the applicant's] presentation on film and the constant and worsening low back pain of variable intensity to which the reports of Dr Stesin and Associate Professor Boffa referred in August 2018 and October 2018 respectively'.[35] The judge concluded this section of her reasons by saying:
As my discussion of the evidence so far has shown, the revealed pathology and the medical assessment of the underlying condition supported a finding that [the applicant] will likely continue to experience some level of injury-related lower back pain and impairment through the foreseeable future. However, based on the evidence as a whole, I was not satisfied that [the applicant's] account of his symptoms and restrictions given to doctors and the Court was reliable.
I proceeded to assess the loss of earning capacity claim on the basis that the frequency and intensity of low back pain reported at hearing was likely exaggerated, and it followed that [the applicant's] evidence of the extent to which back pain impaired his ability to retrain for and to reliably engage in suitable employment was not a sound basis upon which to determine this aspect of his application for leave.[36]
58 Next, the judge dealt with the applicant's loss of earning capacity consequences.[37] In a detailed and comprehensive analysis, the judge considered the issue of 'suitable employment' as defined by the Act, the question of whether the applicant had suffered the 40 per cent loss of earning capacity required by s 325(2)(e) of the Act, the Evidex report, the Recovre report, the applicant's evidence and the medical evidence. As part of her analysis, the judge noted the applicant's submission about this Court's decision in Richter v Driscoll[38] which held that consideration of the question of 'suitable employment' required consideration of more than simply a worker's physical capacity to undertake the performance of duties of one occupation. As the judge put it, a consideration of 'suitable employment' necessitated a consideration of 'the injury caused incapacity and the entirety of the worker's personal circumstances'.[39]
59 Notwithstanding her concern that the applicant had exaggerated his symptoms and restrictions, the judge accepted that the applicant's pre-injury employment, which involved manual handling of heavy loads, was beyond the applicant's physical capacity 'in the context of an unresolved aggravation injury'.[40]
60 The judge then turned to the vocational assessment evidence. Starting with Mr Dwyer from Evidex, the judge said:
However, given my assessment of the evidence as a whole, including [the applicant's] credibility, I could not be satisfied that the Assessor's conclusion that [the applicant's] functional restrictions precluded full-time employment and employment in all occupations for which he had qualifications and experience, and his further conclusion that employment as a Sales Representative or a Sales Assistant should be limited to a maximum of two hours per day, four days per week (and not for more than two consecutive days), were well-founded.[41]
61 The judge accepted that significant weight should be attached to the Recovre report. She said that this was 'especially so given Associate Professor Boffa's evidence that the positions outlined in the report met the restrictions on which, in this case, doctors have largely agreed, save for the hours worked'.[42]
62 The judge then referred to concessions made by the applicant that with training he could perform the computer-based tasks required to be a dispatch clerk or stock clerk; that, subject to the rider that he might not be fit to work the next day, the applicant did not envisage a problem in performing the largely computer-based dispatch clerk job; and that the sitting requirement of the stock clerk position would not be a problem if he was free to move around at regular intervals.[43] The judge also said that the applicant's responses given in cross-examination 'tended to reinforce the impression that, during the ... two years [before trial], factors other any injury-related physical disability for alternative employment of any kind best explained [his failure to seek "even part-time employment" during that period].'[44]
63 The judge concluded her analysis of the applicant's loss of earning capacity consequences as follows:
Where, as in this case, [the applicant] had likely exaggerated the extent of his symptoms and restrictions and had failed to demonstrate a worsening of the low back condition, the allowance the doctor made on 20 November 2018 for a graduated return to work over a 10 week period was probably generous.
Having regard to both the statutory definition of suitable employment and the various matters discussed above [the applicant] did not satisfy me that one or other of the positions identified in the Recovre report and endorsed by Associate Professor Boffa as suitable was beyond him for the foreseeable future or, for that matter, that either of the positions to which the Evidex report referred was beyond him for the foreseeable future.
In summary [the applicant] did not discharge the burden he carried of proving:
64 The judge then returned finally to the applicant's pain and suffering consequences.[46] After referring to earlier conclusions, and after saying that she had made the comparison required by the Act, the judge said that she formed the view that the applicant's pain and suffering consequences, 'which included the likely presence of some level of pain and the impact of this and the restrictions the lower back condition imposed', was not indicative of a serious injury for the purpose of the Act.[47]
65 The complaints ultimately pursued in this Court by the applicant concerned the judge's conclusions with respect to surveillance material and the applicant's credit (grounds 1 to 3) and the adequacy of the judge's reasons (ground 8).
Grounds 1 to 3: surveillance, applicant's credit and judge's findings
68 The gravamen of the applicant's complaint under grounds 1 to 3 was that, properly considered, the DVD surveillance evidence did not impugn the applicant's credit in any relevant way, or at least in any way sufficient to disentitle him to an order that he be given leave to commence a proceeding claiming damages for pain and suffering and pecuniary loss damages. The film contained multiple gaps; each passage in it ran for minutes before another gap occurred; and it only showed 3.6 per cent of the time the applicant was under active surveillance.
69 The applicant also submitted that the judge failed to give any proper consideration or analysis of the extensive surveillance which had been undertaken of the applicant which either did not produce film or did not warrant the taking of film.
70 In support of these submissions, the applicant relied upon what this Court said in Church v Echuca Regional Health.[48] In Church, this Court upheld a complaint about inadequacy of reasons where, amongst other things, the trial judge's reasons for refusing a worker leave to commence proceedings, by reference to her want of credibility 'left large portions of the relevant evidence unremarked'.[49]
71 In respect of a conclusion by the trial judge in that case that a film of the worker (which film was described by Ashley JA[50] as revealing 'a woman engaging in mundane, physically undemanding tasks for short periods') impugned her credibility and reliability, Ashley JA said:
That conclusion, notably, failed to address the potential significance of the respondent 'having arranged surveillance of the appellant on 20 other occasions between October 2004 and August 2007'. His Honour said nothing about the small quantity of films which was produced despite there having been many hours of surveillance over many days. I agree with the submission of counsel for the appellant that this circumstance was relevant in his client's favour - regardless whether other film had been taken but not shown, or whether other film had not been taken because it was not warranted, or because the appellant had not been observed doing anything.[51]
72 Additionally, the applicant submitted that there was no inconsistency between his affidavits and histories to medical practitioners on the one hand, and the DVD surveillance evidence and his responses in cross-examination, on the other hand. The affidavit evidence and medical histories were submitted to disclose difficulties and restrictions facing the applicant which made his injury serious within the meaning of the Act. The applicant contended that nothing in this material suggested he was precluded absolutely from performing some particular activity shown in either of the films. The applicant's case was that he gave a truthful account with respect to his physical capacity, and the films were 'confirmatory of that capacity'.
73 In the course of oral argument, the applicant also took issue with two statements made by the judge which were said to be relevant to his credit.
74 The first statement was at Reasons [80], where the judge said that the applicant's walking tolerance increasing from 3,000 steps per day in January 2018 to 6,000 steps per day in July 2018 contradicted the applicant's claim that his lower back condition 'had deteriorated in the years since he ceased working'. This conclusion was said to be wrong by reference to the judge's acceptance at Reasons [47] that in August/September 2016 the applicant had been walking an average of 10,700 to 11,000 steps per day.
75 The second statement was at Reasons [105], where the judge said that the unusual activity of descending stairs backwards 'was not mentioned in either affidavit or recorded in other materials tendered'. While the judge was correct to say that it was not mentioned in either of the applicant's affidavits, she was incorrect when she said it was not recorded in other materials tendered. It was recorded by Associate Professor Boffa in his report of 23 October 2018, under the heading 'Current Status' as follows:
He finds walking downstairs and extending his back difficult and consequently comes back [scil, down] backwards.
76 As has been said many times before, in cases of the present kind the credit of the applicant will often be critically important.[52] This was such a case. In order for the applicant to succeed in his application, he needed to persuade the judge that his evidence about the extent of his injury was credible and reliable. He also needed to establish the reliability of the histories he gave to the medical witnesses, whose opinions were premised on the accuracy of the applicant's account.[53]
77 The judge took a view of the surveillance DVD evidence that was perhaps stern so far as the applicant was concerned. Questions of fact and degree were involved in her Honour's assessment of the films, the applicant's affidavit evidence and the way in which he dealt with issues in cross-examination. A different judge may have taken a different view. But her Honour had the benefit of hearing and seeing the applicant, and in particular the benefit of observing his reaction to the film as it was shown to him in cross-examination.[54]
78 Having read all the material and watched the DVDs for ourselves, we are not persuaded that her Honour's analysis and conclusions were attended with any material error - notwithstanding her Honour having perhaps overstated the effect of the evidence of the applicant's tolerance for walking in 2018[55] and that the applicant's account of walking backwards was not recorded in any medical report.[56]
79 The judge was alive to, and recorded in her reasons for judgment, the fact that there were gaps in each of the films and that they represented a mere fraction of the time under which the applicant had been subjected to surveillance. Contrary to the submission of the applicant, the judge was entitled to say that her 'concern was with what was depicted in the film shown and tendered, not with unsupported assertions about the time [the applicant] may have been inactive'. [57]
80 The facts in this case are very different from the facts in Church - a case concerning the inadequacy of reasons, where the judge at first instance had failed to deal with a number of matters that were critical to the proper resolution of the case. Church, so far as the issue of the surveillance footage was concerned, was a case that was dependent on its own facts and the treatment given to them in the first instance reasons. Church does not purport to lay down any particular test concerning the use or utility of surveillance evidence. The applicant's submission that the judge 'failed to adopt the proper test in respect of the utility of surveillance'[58] must be rejected.
81 In the course of oral argument, senior counsel for the applicant submitted that the judge's acceptance of the applicant's inability to engage in his pre-injury employment, involving manual handling of heavy loads,[59] militated against, and was inconsistent with, the unfavourable credit findings made by her. This submission must be rejected.
82 The judge's credit findings were directed to the extent to which the applicant did (or did not) exaggerate the extent of his pain and incapacity due to his injury. There was no error, or inconsistency, in the judge accepting (perhaps generously to the applicant) an inability to perform pre-injury employment while also finding that the applicant's evidence was exaggerated and implausible in part, such that he failed to establish that his injury was serious within the meaning of the Act .
83 The applicant's submissions in respect of grounds 1 to 3 appeared to suggest that the surveillance DVD evidence was the only basis upon which the judge made her unfavourable credit findings. The films were not, however, the only matter taken into account by the judge when she made her credit findings. As the judge stated expressly, the films 'provided a strong, but not the only, basis from which to evaluate [the applicant's] credit'.[60] Moreover, as is plain from a reading of the whole of the reasons for judgment, her Honour's credit findings were to a significant extent based upon answers the applicant gave in cross-examination which the judge found to be implausible (and to which we have already referred).
84 The judge ultimately held that the applicant had not established his case. In coming to that conclusion, the judge made factual findings which were plainly affected by impressions about the credibility and reliability of the applicant, formed by the judge as a result of seeing and hearing the applicant give his evidence. In such circumstances appellate restraint is required with respect to interfering with the judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences'.[61] In the present case, the judge made factual findings about credit based upon the whole of the evidence; there were many instances of the judge not accepting the applicant's evidence or explanations in cross-examination; the applicant bore the onus of proof; and the judge was not bound to accept the applicant's evidence on disputed matters. In the circumstances, we see no basis for interfering with the judge's conclusions. Grounds 1 to 3 must be rejected.
85 In ground 8, the applicant contends that the judge failed to provide adequate reasons for determining that he did not satisfy the pain and suffering consequences test set out in s 325(2)(c) of the Act (namely, whether the impairment 'is, when judged by comparison with other cases, in a range of possible impairments ..., fairly described as being more than significant or marked, and as being at least very considerable').
86 In support of this contention, the applicant submitted that the judge failed to consider the extent of the consequences in respect of the applicant's pain and suffering as identified in the evidence. In his written case, the applicant referred to the evidence given in relation to the applicant's impaired sleep; his back pain; his need to take pain-relieving medication; the prospective implanting of a spinal cord stimulator; the applicant's loss of mobility; the MRI taken in February 2018; Dr Eaton's opinion concerning functional limitations that would still apply even if the applicant's symptoms resolved; and concerning the unreliability, and intermittent nature of, any capacity the applicant might have on 'good days'.
87 In oral argument, senior counsel for the applicant also submitted that the judge's reasons were inadequate because, having found that the applicant was unfit for his pre-injury employment, she did not explain why this was not of itself a serious pain and suffering consequence. Additionally, he submitted that the judge dealt with the issue of pain and suffering consequences in a mere (and inadequate) 11 paragraphs.
88 There is no substance in any of these submissions. Four points may immediately be made.
89 First, it is not correct to say that the judge's reasons for not accepting that the applicant had established that his pain and suffering consequences were serious were contained in only 11 paragraphs. While the judge's conclusions, and a summary of her reasoning, on the issue of pain and suffering consequences were set out in 11 paragraphs under the heading 'Pain and suffering consequences',[62] the judge had earlier (and over dozens of paragraphs) set out the relevant evidence, her analysis of it and reasons which led to the ultimate rejection of the applicant's case that the pain and suffering consequences of his injury were serious.
90 Secondly, the evidence relied upon by the applicant was the subject of detailed reasoning throughout the course of her Honour's reasons. There is no basis for the applicant's contention that the judge failed to consider the extent of the consequences described or asserted in that evidence.
91 Thirdly, while there may be cases where the loss of an ability to perform pre-injury employment constitutes a pain and suffering consequence which is serious, the applicant gave no such evidence in this case - and thus the judge was not required to address any such question. For the judge to have been required to give reasons why the loss of the applicant's ability to perform pre-injury employment was not serious so far as pain and suffering consequences were concerned, would have required (at the very least) the applicant to have given some credible evidence that it was a matter of some serious concern to him that he was now precluded from performing work which he previously enjoyed.
92 The applicant's complaint about the judge's reasons is, in truth, no more than a complaint that the judge did not engage in the reasoning process contended for by the applicant. A judge's reasons are required to disclose the judge's path of reasoning for the particular conclusion reached. The reasons must enable the losing party to know why he or she lost the case. In a detailed and comprehensive analysis, the judge set out her reasons for concluding that the applicant had not established his case. The judge's path of reasoning was fully disclosed. Ground 8 is devoid of merit and must be rejected.
93 The applicant's proposed appeal has no real prospect of success. Leave to appeal must be refused.
[1] As those expressions are defined in s 325(1) of the Act.
[2] Johns v Oaktech Pty Ltd [2019] VCC 28 ('Reasons').
[4] During the course of the hearing, the applicant abandoned grounds 4 to 7 which contained complaints about the judge's failure to be satisfied that the applicant had established that his injury was serious, the making of two specific findings by her Honour and her treatment of two vocational assessment reports.
[48] [2008] VSCA 153; (2008) 20 VR 566 ('Church').
[50] With whom Buchanan JA and Pagone AJA agreed.
[51] Church [2008] VSCA 153; (2008) 20 VR 566, 586 [98].
[52] See Mobilio v Balliotis [1998] 3 VR 833, 836; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439, 448; Gjorgovska v AFM Cleaning Services Pty Ltd [2006] VSCA 104, [27]; Woolworths Ltd v Warfe [2013] VSCA 22, [88] ('Woolworths v Warfe'); Veljanovska v Verduci [2014] VSCA 15; (2014) 42 VR 222, 231-2 [39]-[40]; Haidar v Transport Accident Commission [2016] VSCA 182, [30] ('Haidar'); Fenton v AIA Aust Ltd [2017] VSCA 331, [91]; Rowe v Transport Accident Commission [2017] VSCA 377, [89] ('Rowe'); Petrovic v Victorian WorkCover Authority [2018] VSCA 243, [74] ('Petrovic'); Yilmaz v Specialty Fashion Group Ltd [2019] VSCA 100, [73].
[53] See Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598, 1609 [60]; Rowe [2017] VSCA 377, [89]; Petrovic [2018] VSCA 243, [74].
[54] As to benefit enjoyed by a judge at first instance in observing the reaction of a plaintiff, in a personal injury proceeding, to film shown in cross-examination, see CSR Ltd v Maddalena [2006] HCA 1; (2006) 80 ALJR 458, 492 [179] (per Callinan and Heydon JJ). See also, Woolworths v Warfe [2013] VSCA 22, [116]-[117].
[61] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 126-127 [25] per Gleeson CJ, Gummow and Kirby JJ; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679, 686 [43]; Lee v Lee [2019] HCA 28, [55] per Bell, Gageler, Nettle and Edelman JJ.
Johns
Oaktech Pty Ltd [2020] VSCA 10
(2014) 42 VR 222
(2003) 77 ALJR 1598
(2006) 80 ALJR 458
(2003) 214 CLR 118
(2016) 90 ALJR 679
(2016) 51 VR 95
(2008) 20 VR 566