1 The respondent sought leave to commence proceedings against the appellant for pain and suffering in respect of concurrent claims for 'serious injury' to her left wrist (carpal tunnel syndrome) and to her left knee. The claims were heard together. The trial judge granted leave in respect of the left wrist and dismissed the application in respect of the left knee.

2 The respondent appeals against that grant of leave on the grounds that her Honour erred in her finding that there was a causal connection between the respondent's employment with the appellant and the claimed injury; and that her Honour's reasons for so doing were inadequate.

3 The respondent bore the onus of establishing compensable injury which included establishing the causal connection between her left wrist injury and her employment.[1]

4 The undisputed evidence was that, until the end of February 2005, the respondent worked between 30 and 38 hours per week. On 24 February 2005, she sustained a left knee injury and was absent from work, undergoing surgery in March 2005 and a manipulation under anaesthetic in April 2005. She resumed work with restrictions imposed by Dr Andrews from June 2005 until December 2005. She ceased performing cleaning work in January 2006, as certified by Dr Steele, and commenced maternity leave in early 2006 shortly prior to the birth of her child in March. She returned from maternity leave in late July 2006 working 4.5 hours per week until commencing maternity leave again in late January 2007. She returned to

4 work 4.5 hours per week from 1 August 2007. Shortly prior to trial in May 2011, she increased her hours to between 9 and 11.5 hours per week.

5 The respondent did not seek any relevant medical treatment until 15 July 2008. Her signed claim form identified 19 May 2008 as the date she first noted her condition. She deposed, however, to the onset of left arm symptoms 'in about 2005' and gave differing accounts to different doctors at different times.

6 The judge's decision that causation was established depended substantially upon opinions of medical practitioners, who in turn rested their opinions on several differing histories related by the respondent as to the onset of symptoms in the context of full-time repetitive cleaning work. Her Honour made the following findings with respect to the medical evidence:

In this case, all medical practitioners agree the plaintiff suffered the syndrome and required surgery in relation thereto in 2008. Dr Fraser is alone in the view that the syndrome resolved post operatively and that the plaintiff's ongoing symptoms and signs are not convincing and due to no organic factors. The debate in relation to the syndrome is whether it is work related. Mr Scott, on a number of occasions, having been provided with more and more material by the insurer, maintained his position that the syndrome was related to the plaintiff's work duties with the defendant - a view shared by the plaintiff's treating doctors and medico-legal examiners, Dr Hjorth, Mr Reid and Dr Andrews. I am not attracted to the view that a carpal tunnel syndrome is a constitutional condition affected by middle age, pregnancy and obesity as Dr Kostos, Mr Stapleton and Dr Fraser believed.[2]

7 The medical opinions are set out in the judgment of Davies AJA but, for present purposes, it is enough to refer to those aspects of the reports which reveal the extent to which the medical opinion were based on false or misleading histories given by the respondent as to the nature of her duties with the appellant; when she ceased to do heavy cleaning; the time at which she commenced to experience symptoms; and the nexus between the heavy cleaning work and the onset of symptoms:

(1) In a report dated 24 July 2008, Dr Steele stated that the respondent 'has been having left sided CTS symptoms for the past 6 months and is probably related to her work as a house cleaner.' In a report dated 9 September 2008, Dr McCarten stated that the respondent 'has been bothered for over a year with tingling, pain, pins and needles and numbness in her hands and waking at night'. Dr Fraser, rheumatologist, examined the respondent on 9 June 2010 and noted that the respondent was extremely vague regarding the circumstances surrounding the onset of numbness in the left hand, which was some time in 2005/6. He reported that, when it transpired that she was pregnant with her first child in that period (the baby was born late March 2006), she changed her history to suggest that the left hand symptoms had commenced about two years previously, around 2003. Dr Tony Kostos, rheumatologist, examined the respondent on 5 December 2008. His report listed the respondent's onset of carpal tunnel syndrome symptoms as beginning in 2005. Mr Stapleton, a plastic and hand surgeon and medico-legal consultant, reported the onset of symptoms as beginning during 2004, having assessed the respondent on 4 November 2010.

(2) Mr Peter Scott, general surgeon, examined the respondent on 24 September 2008, and reported that the respondent 'developed tingling and pins and needles in the left thumb, index and middle fingers in about 2007 that is after her first pregnancy'. In a supplementary report dated 3 November 2008, Mr Scott stated that 'one would have to accept that the problem of a carpal tunnel syndrome occurred as a result of the repetitive nature of the work performed by her after the birth of her first child.' He concluded that the onset of the respondent's symptoms was caused by 'repetitive activities performed by her...while working 30-38 hours per week.'

(3) Dr Hjorth, neurologist, examined the respondent on 14 September 2010. Dr Hjorth stated in his report that the respondent told him that 'she developed tingling and numbness in the 2nd and 3rd fingers of the left hand in 2004.' Dr Hjorth reported that the respondent's symptoms began in 2004. He described the respondent's employment duties as 'full-time work and it varies. The key part of the work is cleaning'.

(4) Mr Reid, general surgeon, examined the respondent on 1 November 2010. He reported that the respondent developed symptoms in 2005. 'The symptoms increased over the course of the next two years and were bad in 2007.' Mr Reid took a history of the onset of symptoms over a period of two years leading up to 2007, noting that the respondent worked 30 to 38 hours per week performing cleaning duties that required repetitive use of the left hand.

(5) Dr Andrews, occupational physician, stated in a report dated 10 March 2010 that 'around 2 years ago [the respondent] found that she was starting to get nocturnal symptoms of pins and needles in that hand which would wake her up. She did not note any change in her duties at that time that may have explained the change.' Dr Andrews reported that 90 per cent of the respondent's full-time work with the Council was cleaning work.

8 As can be seen, each of the medical reports which the judge treated as supportive of the respondent's claim depended upon the onset of symptoms coincidentally with almost full time repetitive cleaning work. Yet, during cross-examination, errors in the respondent's histories were exposed to show that, from the beginning of 2006, she was either off work because of maternity leave or working with the Council between 4 ½ and 7 hours per week on average, and that respite care and personal care were part of her duties which did not involve any heavy or repetitive cleaning. By the first half of 2008 she worked a total of 87.5 hours with the appellant. The evidence also showed that during 2008 she worked a total of 68.5 hours with an employer PNR, and 44 hours with another employer AHC. Furthermore, the histories also differed materially as to when the symptoms commenced; the nominated onset date ranging from 2003 to 2008.

9 On that basis, the appellant submitted with considerable force that none of the medical opinions upon which the judge relied could support the conclusion that the work she was actually performing for the appellant after 2006 could have caused the onset of symptoms.

10 Dr Kostos, Mr Stapleton and Dr Fraser all concluded that the injury was caused by 'constitutional' factors including the respondent's weight problems and her pregnancy. Each of those doctors had received a history of the onset or deterioration of symptoms in the setting of pregnancy. Two also referred to obesity, there being other evidence that the respondent was overweight in 2008 and had consulted her GP and tried to lose weight. There was no medical opinion provided from any doctor that contradicted the opinion that carpal tunnel syndrome could be precipitated by constitutional conditions. The judge, however, dismissed the opinion of Dr Kostos, Mr Stapleton and Dr Fraser as one to which her Honour was not 'attracted'.

11 Her Honour was conscious of the conflicting accounts which the respondent had given and gave the following assessment of her credibility:

I accept the plaintiff was a genuine witness although a terrible historian. At times her answers were totally inconsistent with her frequently having difficulty understanding relatively simple questions and giving totally contrary answers to the same question on different occasions. Whilst the plaintiff has given different accounts of the date of onset of her left hand problems, I accept that for a period leading up to that first attendance on a doctor in July 2008, she had experienced numbness and pins and needles. The plaintiff is not required for the purposes of this application to identify a precise date of injury. I accept the plaintiff's evidence as to her ongoing pain and restriction which was not significantly challenged by counsel for the defendant. Further, there was no surveillance film or other evidence relied upon by the defendant in this regard.[3]

12 The first two sentences of that paragraph also appear in the trial judge's reasons for judgment in the related knee injury application.[4] In rejecting the respondent's knee injury application her Honour made adverse findings as to the respondent's lack of credibility:

The plaintiff's evidence as to the work hours she returned to after surgery was totally contradictory. At first she said she returned to full time normal duties with difficulty some time after the surgery, having had physiotherapy for a couple of months. She then said she had never returned to her pre-injury workload of thirty to thirty eight hours per week.[5]...Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff's claim must be looked at in the light of my views as to the plaintiff's credit.[6]

13 The judge, however, did not explain why she considered that the same concerns did not apply to the claim of left wrist injury.

14 At relevant times and for the time being, the reasons to be given by a judge in deciding an application under s 134AB(16) of the Accident Compensation Act 1985 are required by s 134AE to be not summary reasons but detailed reasons which are as extensive and complete as the court would give on the trial of an action.[7] It is also well recognised now that these applications, though interlocutory, are generally determinative of the rights of the parties. Logic and fairness dictate that they should be of a standard commensurate with that degree of finality.[8] It is therefore important that the reasons, when read as a whole, expose a path of reasoning.[9] They should provide an intelligible explanation of the process of reasoning as to findings on material facts and the reasoning which has led from those findings to the finding as to the ultimate conclusion.[10] Occasionally, a recitation of the facts may be enough where the path of reasoning is 'necessarily implicit'[11] from the reasons as a whole but it is unlikely to be sufficient where the Court is required to weigh conflicting evidence or opinion. Reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. A failure to expose the path of reasoning is an error of law.[12]

15 The requirement to refer to the evidence upon which findings are based is a requirement to analyse the evidence and to explain why some parts of it do and others do not lead to the ultimate conclusion. That requirement is not limited to the evidence that has been accepted and acted upon but extends to evidence or material which the judge has rejected. See Hunter v Transport Accident Commission,[13] Franklin v Ubaldi Foods Pty Ltd,[14] Dwyer v Calco Timbers Pty Ltd,[15] Hesse Roller Blind Company Pty Ltd v Hamitoski[16] and Church v Echuca Regional Health.[17] Where evidence or an argument or an issue is rejected from consideration the trial judge is under an obligation to advert to and assign reasons for the rejection or exclusion of that matter.[18]

16 Davies AJA has concluded that there was a basis upon which causation could be made out as her Honour found, notwithstanding the unreliability of the respondent as a historian. In our opinion, however, the judge's reasons were inadequate to disclose any process of reasoning to her conclusion or the basis upon which the contrary medical opinions were rejected.

17 The judge rightly observed that respondent was not required to identify a precise date of injury for the purposes of this application.[19] But that did not relieve her Honour of the need to explain which of the respondent's accounts of the onset of symptoms she accepted and how the circumstances to which that account related could be causally linked to her employment. In determining whether the respondent's injury was a consequence of her employment with the respondent, her Honour was obliged to assess the nature and scope of the respondent's employment duties with the Council at that time. That was particularly so in light of her Honour's finding that the respondent gave different accounts of her working hours and duties.[20]

18 Contrary to that requirement, there is little analysis in the reasons as to the nature of the respondent's duties and in particular the extent to which they involved heavy or repetitive cleaning duties. The reasons do not examine the significance of the misleading or false histories that the respondent was performing full time heavy repetitive cleaning work at the time of the onset of symptoms. There is no analysis as to how those histories affected the medical opinions which supported the respondent's claim and upon which her Honour relied.

19 There is, too, no explanation of how her Honour was able to conclude that the respondent's injury could have arisen in the context of her working a small number of hours per week for the appellant since 2006 when she was not performing heavy repetitive cleaning and when she was engaged in similar duties for other employers. In our opinion, the trial judge's silence on those matters make it impossible to divine her Honour's path of reasoning that led to her findings on causation.

20 Additionally, as we have observed, the medical practitioners who examined the respondent arrived at two very different findings as to the cause of the respondent's condition. Mr Scott, Dr Hjorth, Mr Reid and Dr Andrews all concluded that the respondent's carpal tunnel syndrome was caused by her work duties with the defendant. Dr Kostos, Mr Stapleton and Dr Fraser all concluded that the injury was caused by 'constitutional' factors. There was nothing in the reports of Mr Scott, Dr Hjorth, Mr Reid and Dr Andrews that refuted the general proposition that carpal tunnel syndrome can be caused by constitutional factors. Therefore, her Honour's acceptance of their opinion does not carry with it an implied basis of reasoning for rejecting the contrary view.

21 Given the legitimate conflict in the causation findings of the medical experts, her Honour was obliged to do more than merely indicate a lack of attraction for one view. Where there is a conflict on the evidence, and one version is accepted and the other rejected, the judge must advert to and assign reasons for preferring one version of the evidence over another.[21] Her Honour's reasons do not explain why her Honour preferred the finding that the injury was a result of work duties with the appellant.

22 The judge was plainly aware of the respondent's inconsistent and unreliable accounts of her employment duties and when symptoms relating to her left wrist commenced. The respondent's credit in both matters was inextricably linked; the respondent having given oral evidence in both applications at the same time. The nature of her work duties were common to both claimed injuries. Many of the conflicting reports given by the respondent to the medical practitioners were in respect of both complaints. Given the trial judge's concerns about the respondent's inconsistent answers during cross-examination and the respondent's contradictory evidence regarding her work hours, the decision to rely on the credit of the respondent in one application and not in the other required explanation. The judgment, however, does not enable the reader to determine the reasoning which led her Honour to disregard any concerns about the respondent's credibility in her claim of left wrist injury.

23 In failing to disclose a pathway of reasoning on each of these matters the trial judge's reasons were substantively inadequate and constituted error of law.

24 In Church v Echuca Regional Health, Ashley JA explained the task of an appellate court in disposing of an appeal in which a ground is sustained complaining as to the adequacy of the reasons of the trial judge.[22] The Court may remit the application for rehearing but whether it does so 'will depend upon whether the Court considers itself as well placed as the judge below to decide the matter itself.'[23] In Hunter, the Court decided the matter itself, a remitter being considered unnecessary because the credit of the applicant was not in issue in that case,[24] and it appearing to the Court that it was as well placed as the judge below to decide the matter.[25] Similarly, in Rodda v Transport Accident Commission,[26] the Court decided not to remit the matter on the basis that the trial judge made no material findings about the credibility of any witness. In Pisano v Precision Solid Plasterers Pty Ltd,[27] the Court chose to remit the application under s 134AB to the County Court for fresh hearing and determination on the basis that there were credit issues that needed to be resolved. Additionally, the approach taken by the trial judge in Pisano meant that a number of matters about which evidence was called had not been the subject of any finding.[28] A similar conclusion was reached in Hennes v

Hobsons Bay City Council.[29] The proceedings were remitted to another judge of the County Court for rehearing.[30]

25 In the present case, the credibility of the respondent is a significant, if not decisive issue. Notwithstanding the delay and additional costs that will ensue, we think it is appropriate for this matter to be remitted back to the County Court for re hearing and determination.

26 The respondent ('Ms Braunack') was diagnosed in 2008 with a carpal tunnel syndrome injury to her left wrist. She claimed that her injury arose out of, or in the course of, her employment with the respondent ('the Council') between 2005 and 2008 and sought the leave of the County Court to bring proceedings to recover damages from the Council in respect to her injury. The Court found that the injury was work-related and granted the leave. The Council has appealed the grant of leave, contending that the trial judge's finding that the injury was work-related was affected by legal error because the conclusion that the injury was work-related was contrary to the evidence, and the weight of the evidence, and because the trial judge's judgment did not adequately explain the reasons on which Her Honour's conclusion was based.

27 Ms Braunack's case was that the symptoms of her injury first appeared 'in about 2005',[31] when she developed a sensation of pain in her left arm and tingling in her left hand, although at the time she was not aware that she had the syndrome.

She was then employed as a home carer, working between 30 to 38 hours per week for the Council and another 2 hours per week for a different employer. Medical reports obtained from her treating doctors and some of the medico-legal doctors were to the effect that the carpal tunnel syndrome resulted from the cleaning work involved in her duties as a home carer. Those medical opinions were expressed by Dr Steele, Dr Williams, Mr Scott, Dr Hjorth and Mr Reid. Another medico-legal doctor, Dr Andrews, opined that the carpal tunnel syndrome may be a 'constitutional problem' but that in Ms Braunack's situation the condition had been aggravated by the nature of the cleaning work that she did, although Ms Braunack's work practices had to be observed in order fully to determine the relatedness.

28 The case for the Council was that those medical opinions were unreliable because they were based on 'false' histories or no histories at all. The Council obtained and relied on medical opinions that carpal tunnel syndrome is a constitutional condition strongly associated with pregnancy and obesity and that in Ms Braunack's case her condition was a complication of both those factors. These opinions were given by Dr Kostos, Dr Fraser and Mr Stapleton.

29 There were inconsistencies in the histories that Ms Braunack gave to the doctors who provided medical reports at trial. The inconsistencies included when Ms Braunack first noticed the symptoms and the amount of hours she worked performing cleaning duties. The Council argued that the different histories that Ms Braunack gave to the medical practitioners substantially explained the differing medical opinions. Further, it was said that each supportive medical opinion depended upon a history of the onset of symptoms coincidental with almost full-time, repetitive cleaning work for the Council, which was contrary to the evidence actually elicited at trial.

30 The reasoning of the trial judge that Ms Braunack's injury was related to her employment with the Council appears in paragraphs 148 to 157 of the judgment below:[32]

1. In this case, all medical practitioners agree the plaintiff suffered the syndrome and required surgery in relation thereto in 2008.

1. Dr Fraser is alone in the view that the syndrome resolved post operatively and that the plaintiff's ongoing symptoms and signs are not convincing and due to no organic factors.

150 The debate in relation to the syndrome is whether it is work related.

1. Mr Scott, on a number of occasions, having been provided with more and more material by the insurer, maintained his position that the syndrome was related to the plaintiff's work duties with the defendant - a view shared by the plaintiff's treating doctors and medico-legal examiners, Dr Hjorth, Mr Reid and Dr Andrews.

1. I am not attracted to the view that a carpal tunnel syndrome is a constitutional condition affected by middle age, pregnancy and obesity as Dr Kostos, Mr Stapleton and Dr Fraser believed.

1. The plaintiff's duties with the defendant required the use of both hands, particularly in cleaning activities. Whilst the plaintiff uses her right hand to write, she predominantly uses her left hand for other activities.

154 The defendant, having initially rejected the plaintiff's claim for weekly

payments, subsequently agreed, following conciliation, to pay for the decompression surgery and household expenses. The request for the second surgery has been denied.

1. In this case, I am satisfied the plaintiff has suffered a compensable injury being injury to her left carpal tunnel as a result of her employment duties with the defendant in the period leading up to her first seeking medical attention in 2008.

1. I accept the plaintiff was a genuine witness although a terrible historian. At times her answers were totally inconsistent with her frequently having difficulty understanding relatively simple questions and giving totally contrary answers to the same question on different occasions.

1. Whilst the plaintiff has given different accounts of the date of onset of her left hand problems, I accept that for a period leading up to that first attendance on a doctor in July 2008, she had experienced numbness and pins and needles. The plaintiff is not required for the purposes of this application to identify a precise date of injury.

31 There were three primary submissions put on behalf of the Council. First, that the reasons for decision were inadequate because the causation findings were expressed in broad terms and did not necessarily follow a logical sequence and because the trial judge did not discuss or make appropriate findings on relevant and important evidence. Secondly, that the reasoning disclosed error in the conclusion that the syndrome was work-related to her employment with the Council as the trial judge found that Ms Braunack first suffered symptoms in July 2008 and thereby 'seems to have rejected [Ms Braunack's] claim that her symptoms came on in 2005'.[33] Thirdly, that the trial judge did not address Ms Braunack's 'credit' as a witness, which was called into question by the inconsistencies in her evidence and in the histories that she gave to the medical practitioners.

32 I disagree. In my opinion, the reasons, fairly read, sufficiently disclose the process of reasoning. Furthermore, it was plainly open on the evidence for the trial judge to find that the carpel tunnel syndrome was work-related.

33 It is necessary to say more about the facts and evidence before returning to the submissions for the Council.

34 Ms Braunack's relevant employment history spans the period between 2002, when she started work as a home carer for two employers, one of which was the Council, and 2008, when she first sought medical treatment for her left wrist. Ms Braunack predominantly worked for the Council over that period, working significantly lesser hours in her other jobs. Between May 2002 and February 2005, Ms Braunack worked 30 to 38 hours per week. In February 2005 she damaged her knee and was off work for several weeks. On returning to work in June 2005, she initially worked 27 to 28 hours per week but reduced her hours to between 20 and 25 hours for most weeks until December 2005. She stopped work in early 2006 to have her first baby who was born in March 2006. She returned to work in July 2006, her working hours varying from three to 13 hours a week. In early January 2007 she stopped work to have her second baby, born in May 2007. She returned to work in August 2007, working four and a half hours a week until 2011 when her hours increased again.

35 Ms Braunack's work as a home carer involved general cleaning work including vacuuming, cleaning bathrooms, dusting, changing beds, wiping down benches, and washing people's dishes. She stopped doing work of that nature from early 2006 because of a knee injury.

36 Ms Braunack first went to see a doctor about her symptoms in her left wrist in July 2008, although her evidence was that her symptoms had first appeared in about 2005. She gave the following explanation for the delay in seeing a doctor:

Can you tell Her Honour why it is that you didn't see a doctor immediately when you had symptoms in the left hand? ---Yes because at first when it just started, it wasn't too bad but over the years it did get a little bit worse and worse and worse and then I ended up I couldn't put up with the pain, it even used to keep me awake at night and that's why I went to the doctors.

Did you know in the early stages that you had carpal tunnel? --- No, because I knew nothing about it.

When did you first realise you had carpal tunnel syndrome? --- When I went to the doctor.

In 2008? --- Yes.

(i) Dr Steele and Dr Williams

37 The doctor that Ms Braunack first saw about her left wrist in 2008 was Dr Steele. Ms Braunack was also seen by Dr Williams, who practises at the same clinic as Dr Steele. Both doctors were of the view that Ms Braunack's carpal tunnel syndrome was caused by the repetitive wrist and hand use related to Ms Braunack's occupation as a cleaner. Dr Steele noted that Ms Braunack had been having left-sided carpal tunnel symptoms 'for the past six months'.

38 Mr Scott, a general surgeon, examined the plaintiff on behalf of GIO Insurance on 24 September 2008. Mr Scott took a history that was confused in some respects but included the onset of symptoms after Ms Braunack returned to work following the birth of her first child. Mr Scott opined that her left carpal tunnel syndrome resulted from 'repetitive activities performed by her particularly while working 30-38 hours per week at the Wodonga City Council'.[34] Mr Scott also noted that Ms Braunack had indicated that there was not any worsening of her symptoms following the birth of her second child and, in his opinion, if pregnancy was a factor in the development of the syndrome in the first place, 'one would have expected that the further pregnancy would have aggravated the problem but she denies this'.[35] Mr Scott concluded that:

... persistently severe symptoms from a carpal tunnel syndrome should be considered related to the nature of her employment particularly that employment prior to the 24/04/07.[36]

Mr Scott noted that it could be argued that deterioration of the problem might have occurred as a result partly from the nature of her activities with the Council and partly from caring for her two children but, in his view, the work with the Council was more likely to have been the initiating factor with the development of her problem, which had slowly deteriorated, with the passage of time.

39 Dr Andrews, an occupational physician, also saw Ms Braunack for medico-legal purposes in March 2010. Dr Andrews took a history from Ms Braunack that she had worked as a home carer with the Council for the preceding six to seven years and that her hours had generally been from 32 to 40 hours per week with significant amounts of overtime being worked at times and that the duties involved were cleaning, respite, personal care and other work such as shopping for clients. Ms Braunack told Dr Andrews that she noted the gradual onset of pain with associated pins and needles of the left thumb, index finger and palm of left hand and in particular she noted that the cleaning work that she was performing, which constituted 90 per cent of her duties, seemed to aggravate those symptoms more than anything else. She further told Dr Andrews that initially those symptoms would tend to resolve over night but that 'around two years ago' she found that she was starting to get nocturnal symptoms of pins and needles in that hand which would wake her up and that 'she did not note any change in her duties at that time that may have explained the change'. She did, however, note that she was working a fair amount of overtime at that time.[37] Dr Andrews noted that carpal tunnel syndrome is 'thought to be a constitutional problem' but expressed his view that in Ms Braunack's situation, this condition had been aggravated by the nature of the repetitive duties involving the use of the left hand. He opined that the absence of symptoms in the right hand raised the question of work-relatedness but did not express a concluded view.

40 Two other medical practitioners gave opinions favourable to Ms Braunack. Mr Reid did so on a history that the symptoms had developed when working as a personal carer for the Wodonga City Council prior to 2005. The report stated:

She writes with her right hand. She does everything else with her left hand as her dominant hand.

In the course of her duties at work, she did sweeping, vacuuming, cleaning of toilets and showers and scrubbing, all of which required repetitive use of the left hand. She developed a sensation of pins and needles of gradual onset in the left thumb, index and middle fingers and the left palm.

The symptoms increased over the course of the next two years and were bad by 2007. The pain and tingling in the left hand and fingers woke her up at night ... [38]

Mr Reid concluded that Ms Braunack's work with the Council was a contributing cause of carpal tunnel syndrome.

41 Dr Hjorth, Consultant Neurologist, opined to similar effect that Ms Braunack developed carpal tunnel syndrome while she was doing 'moderately heavy manual work' which in his opinion was a 'major cause of the carpal tunnel syndrome'.[39] Dr Hjorth noted that not everybody agreed that manual work can cause carpal tunnel syndrome but he thought that doctors who held that view were in a minority and that the view that he held, which was that manual work can frequently precipitate or cause carpal tunnel syndrome, was in the majority. This opinion was expressed on a history that Ms Braunack had been working in home care most of the time since she had left school after year 10, that it was full-time work and it varied, and that the key part of the work was cleaning. The report made no mention of Ms Braunack's pregnancies.

42 Dr Fraser, on the other hand, opined that an association with occupational factors involving repetitive use of the hands was no longer widely accepted. Dr Fraser considered that her pregnancy was likely the cause and that obesity may have contributed. Dr Fraser did not consider that there had been any work-related injury. This opinion was expressed on a history that Ms Braunack had been employed as a permanent part-time home carer by the Council for about eight and a half years and normally would work 35 to 38 hours per week. He stated that 'beyond that she was extremely vague regarding the circumstances surrounding the onset of numbness in the left hand, sometime in 2005/6' and that when it transpired that she was pregnant with her first child in that period, born late March 2006, she changed her history to suggest that the left hand symptoms had commenced around 2003.[40]

43 Dr Kostos, a rheumatologist, expressed a similar view that there is no connection between work practices and carpal tunnel syndrome. In his view, the development of the carpal tunnel syndrome was a local factor which was aggravated by her pregnancy. His opinion was expressed on a history that Ms Braunack in 2005 developed a burning sensation and tingling in her left hand which she thought was due to arthritis and did not do anything about it at the time but that her symptoms deteriorated when she became pregnant with her first child and following delivery there was some improvement but then she felt her symptoms deteriorated again when she went back to work and that during her second pregnancy her symptoms also deteriorated but did not improve following delivery. Dr Kostos opined that if her work was a significant contributing factor it would obviously have affected her dominant hand. Therefore, he did not believe that her employment caused her symptoms to begin in the first place.

44 In my view, this opinion must be considered with some caution as, in fact, the evidence was that whilst Ms Braunack's dominant hand was her right hand, she predominantly used her left hand for cleaning.

45 Finally, Mr Stapleton, Plastic and Hand Surgeon, also opined that the work-related activities were not the cause of the carpal tunnel syndrome which, in his view, was a genetically predetermined problem. Mr Stapleton explained as follows:

Activities during her employment which requires flexing of the wrists are no different from her activities at home when she flexes the wrists and the suffering of symptoms by so doing does not indicate that employment has caused or has made the problem worse. Flexing of the wrist which is, afterall, the basis of the Phalen's test, does no more than indicate that the underlying midian nerve is compressed for reasons unknown. Carpal tunnel syndrome is now known to be a genetically predetermined problem. It is not an injury, nor has her activities at the workplace made the problem worse. Her occupation, therefore, is irrelevant.[41]

In Mr Stapleton's opinion, Ms Braunack's condition was aggravated by her two pregnancies and her body weight. This opinion was based on statements that the development of her symptoms began during her first pregnancy and her employment duties were home caring activities 'of a domestic nature'.[42] These statements were made against a history that Ms Braunack told Mr Stapleton that in 2004 pins and needles began in her left thumb index and middle fingers and became more severe which, Mr Stapleton commented, 'one would expect as carpal tunnel syndrome is a condition of gradual progression'.[43]

46 There is an obvious disconformity between the history that Mr Stapleton took and his statement that the symptoms first developed during her first pregnancy. The inconsistency was unexplained.

Was the causation finding affected by legal error?

47 It was argued for the Council that the trial judge's finding of causation was erroneous because:

(a) her Honour did not discuss or make appropriate findings in respect to relevant and important evidence concerning the work and other activities of the Appellant, especially in the period leading up to July 2008. The finding of causation was seemingly based upon the Respondent's "employment duties" with the Appellant, without addressing what those duties were and the fact that at the same time the Respondent was undertaking duties for more hours on average per week with other employers;

(b) the finding depended upon medical opinions which were compromised by false and incomplete histories from the Respondent;

(c) her Honour wrongly swept away other medical opinions that she was "not attracted to"; and

(d) the finding relied upon the good credit of the Respondent ("genuine witness"), albeit that in the left knee claim heard at the same time her Honour concluded that the Respondent's credit was impugned in a manner which undermined the supportive medical opinions.[44]

48 The reference to the 'left knee claim' was a reference to Ms Braunack's application for leave to bring proceedings for damages for the injury that she suffered to her left knee in February 2005. This application was heard at the same time as the carpal tunnel syndrome application and the trial judge delivered separate reasons for judgment. The trial judge in her reasons for decision on that application expressly stated that the medico-legal opinions supportive of Ms Braunack's case had to be looked at in the light of the trial judge's views as to Ms Braunack's credit, the trial judge having accepted that Ms Braunack was a genuine witness but a terrible historian.[45]

49 It was submitted for Ms Braunack that by necessary implication the trial judge rejected the opinions of Dr Fraser, Dr Kostos and Mr Stapleton. It was further submitted that the Council's contention that the Court's findings were erroneous because the trial judge did not make findings about Ms Braunack's employment duties was misguided because it was sufficient for Ms Braunack to establish that the nature of her work with the Council materially contributed to the consequences which were said to be serious.[46] Reliance was placed on Grech v Orica Australia Pty Ltd & Anor,[47] to which the trial judge was referred. In Grech v Orica Australia Pty Ltd & Anor Ashley JA held that a worker in a serious injury application need only establish that he or she suffered a compensable injury which materially contributes to the consequences which are said to be serious. A consequence is compensable if it 'results from or is materially contributed to by an injury'.[48] His Honour went on to say that a 'consequence may have a multiplicity of causes, including a multiplicity of compensable injuries'.[49]

50 In my view, the trial judge's reasoning process for the rejection of the Council's medical evidence is sufficiently evident in the reasons given.

51 First, it is not a fair reading of Her Honour's decision that the trial judge 'swept away' the opinions of Dr Kostos, Mr Stapleton and Dr Fraser on the basis that she was 'not attracted' to their view and without further explanation. There was a clear conflict on the medical evidence as to whether carpel tunnel syndrome can be caused by manual work or is a constitutional, pre-determined problem. The trial judge clearly preferred the medical opinions that carpel tunnel syndrome was related to repetitive manual work of the kind involved in the type of cleaning activities that Ms Braunack performed.

52 Secondly, the trial judge supported her view in paragraph 153 by reference to the fact that Ms Braunack predominantly used her left hand for activities other than writing. As Dr Kostos and Dr Fraser had both reasoned, if Ms Braunack's work was a significant contributing factor it would have affected her dominant hand. This was the anomaly presented in the evidence. Ms Braunack's dominant hand was her right hand, yet the injury manifested in her left wrist. The reports of Dr Kostos and Dr Fraser both indicate that neither medical practitioner was aware that Ms Braunack predominantly used her left hand for cleaning. The fact that Ms Braunack predominantly used her left hand for activities other than writing was, in my view, a proper basis for the trial judge's preference for the medical evidence that the syndrome was related to Ms Braunack's work duties with the Council. Dr Kostos, Mr Stapleton and Dr Fraser all took a history from Ms Braunack that she first noticed the symptoms in her left wrist before her first pregnancy, although Mr Stapleton, despite recording that Ms Braunack first developed symptoms in 2004, nonetheless presented the development of symptoms as beginning during her first pregnancy. This disconformity reduces the significance of his opinion. The trial judge properly took into account the fact of Ms Braunack's use of her left hand, which relevantly concerned the causal relationship between her evidence that she first noticed the symptoms in about 2005 before her first pregnancy, and her work for the Council in the period up to 2005.

53 Thirdly, the fair reading of paragraph 154 is to link the work-related injury with Ms Braunack's employment with the Council. I agree with the submission for the Council that the trial judge was wrong to have placed any weight on that fact because the Council's agreement to meet those expenses was not made with an admission of liability. However, the process of reasoning for the conclusion that the injury was related to Ms Braunack's work with the Council, which conclusion was expressed in the very next paragraph of the judgment, was there.

54 I would, in any event, reach the same conclusion on the evidence that the injury was related to Ms Braunack's work with the Council. It was open to the trial judge on the evidence to conclude that Ms Braunack's work with the Council in the years between 2002 and 2005 was a material cause of the condition, even if a constitutional condition, as believed by the Council's medical witnesses. Ms Braunack did not have to prove that her condition was solely the consequence of the work she did for the Council. It was sufficient to show that this work materially contributed to the condition. The condition may have been aggravated by her pregnancies or her weight but the uncontroverted fact was that Ms Braunack only developed the condition in her left hand, consistent with her use of that hand to perform cleaning tasks. It was also an uncontroverted fact that Ms Braunack worked some 30 to 38 hours per week for the Council between May 2002 and February 2005.

55 The fair reading of paragraph 157 of the judgment is that her Honour was of the view that Ms Braunack did not have to establish when she actually developed the syndrome because the causation issue depended on whether there was sufficient evidence before her Honour on which to conclude that the work for the Council either caused or materially contributed to the development of the syndrome.[50] The medical evidence supported a conclusion in favour of Ms Braunack, regardless of the inconsistencies in the medical histories.

56 Next it was submitted for the Council that the trial judge also failed to explain how Ms Braunack's evidence that the symptoms arose in about 2005 should be accepted in light of the trial judge's finding that Ms Braunack was a terrible historian, albeit a genuine witness. I reject this submission. The inconsistencies in Ms Braunack's evidence were addressed by the trial judge in paragraph 156 where her Honour noted that Ms Braunack was 'frequently having difficulty understanding relatively simple questions and giving totally contrary answers to the same question on different occasions'.[51]

57 Next it was argued for the Council that the trial judge failed to consider material evidence concerning the nature of the work that Ms Braunack had been doing for the Council. In evidence was an affidavit from a Mr Mackinnon, the Aged Services Assessment Coordinator of the Council. He deposed as follows:

1. In general, as a Home Carer her duties involve a combination of Home Care, Personal Care and Respite Care. The tasks for each client and home visit are assigned and agreed to by the worker. Again, generally speaking, a visit to a client's home would approximately 80 percent home care duties and the remainder of time being spent on personal and respite care. This varies in relation to the needs of a client and their degree of disability. [Sic]
2. General home care services are as outlined in the City of Wodonga "Guidelines for Home Care Workers". These include meal preparation; shopping, accompanying clients to do shopping or pay bills; essential house cleaning of areas regularly used by the client such as bathrooms, toilets, kitchen, living areas and bedrooms; cleaning bench tops, mopping or vacuuming floors. At each home, the applicant would spend between 0.5 hours and 1.5 hours. We confirm that at the time of the alleged onset of injury the Applicant was attending two to four homes on one day per week only. As stated, she would not be cleaning for this entire period.
3. There are some tasks that are considered 'one-off' such as window cleaning, cleaning the oven and cleaning out cupboards. These would be the only tasks we would consider to involve any rigorous cleaning and were certainly not undertaken on any regular basis.
4. Home carers are advised that when undertaking cleaning duties at a client's premises that they must pace their work. For example, they are instructed to vacuum part of the house then do another task before finishing the vacuuming. The cleaning duties undertaken by the Applicant should not have involved any level of repetitive activity.[52]

58 It was submitted for the Council that this evidence showed that Ms Braunack was not engaged in a repetitive activity but this evidence had not been referred to by the trial judge. That evidence, in my view, does not gainsay the medical opinions that her work was the cause, or at least a material cause, of the syndrome. Mr Mackinnon's evidence has little probative value, if any, because it is very generalised and unspecific. If anything, it is confirmatory that Ms Braunack did undertake cleaning duties regularly.

59 Finally, it was argued for the Council that the judgment below did not explain the trial judge's reasons for concluding that the cause of the syndrome was work related, having regard to the trial judge's finding that the injury arose in 2008. This submission must also be rejected. The actual finding was that Ms Braunack suffered injury 'for a period leading up to that first attendance on a doctor in July 2008', not that the injury arose in 2008.[53] For the reasons already stated, the trial judge relevantly based her conclusion on Ms Braunack's work duties with the Council. The medical evidence supported a finding that the hours worked in that activity of 30 to 38 hours per week was the cause, or a material cause, of the syndrome in her left wrist, whereas the factors of her pregnancies and her obesity did not explain why she did not have it in both wrists.

60 The judgment sufficiently disclosed the process of reasoning and the ground of appeal that her Honour's reasons were not adequate must fail. The ground of appeal that Ms Braunack had not discharged her onus of proof also fails. It was open to the trial judge to reach her conclusion that Ms Braunack had suffered compensable injury to her left carpal tunnel as a result of employment with the Council. Furthermore, in my view, that conclusion was correct, having regard to the whole of the evidence. Critically and importantly, the pregnancies and weight as potential causes for the syndrome did not explain the existence of the condition in her left wrist only. Contrary to the submission for the Council, there was cogent and reliable evidence in support of Ms Braunack's application. Accordingly, I would dismiss the appeal.

[1] S 134AB(2) Accident Compensation Act 1985. Church v Echuca Regional Health [2008] VSCA 153; (2008) 20 VR 566, 587 [106] (Ashley JA); Jayatilake v Toyota Motor Corporation Ltd [2008] VSCA 167; (2008) 20 VR 605, 608 [8] (Ashley JA), 630 [142] (Neave JA).

[2] Braunack v Wodonga City Council (No 2) [2011] VCC 958, [148]-[152].

[3] Braunack v Wodonga City Council (No 2) [2011] VCC 958, [156]-[158].

[4] Braunack v Wodonga City Council [2011] VCC 957, [170].

[7] S 134AE of the Accident Compensation Act 1985; see, however, Justice Legislation Amendment (Miscellaneous) Bill, 2012, cl 3.

[8] Hunter v Transport Accident Commission [2005] VSCA 1; (2005) 43 MVR 130, 136-137 [21]-[22] (Nettle JA).

[9] Ibid 136-137 [21]-[22]; Church v Echuca Regional Health [2008] VSCA 153; (2008) 20 VR 566, 584-585 [89]-[92].

[10] Hunter v Transport Accident Commission [2005] VSCA 1; (2005) 43 MVR 130, 136-137 [21]-[22] (Nettle JA).

[11] Murray Goulburn Co-Op Co Ltd v Filliponi [2012] VSCA 230, [28] (Neave JA and Beach AJA).

[12] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279-280, 282 (McHugh J); Fletcher Constructions Australia Ltd v Lines Macfarlane & Marshall Pty Ltd [2001] VSCA 167; (2001) 4 VR 28, 35 [18] (Chernov JA).

[13] [2005] VSCA 1; (2005) 43 MVR 130.

[14] [2005] VSCA 317.

[15] [2006] VSCA 187.

[16] [2006] VSCA 121.

[17] [2008] VSCA 153; (2008) 20 VR 566.

[18] Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37; (2011) 244 CLR 239, 303 [170] (Kiefel J).

[19] Braunack v Wodonga City Council (No 2) [2011] VCC 958, [157].

[20] Her Honour's remarks on the respondent's credibility are included below at [27].

[21] Rodda v Transport Accident Commission [2008] VSCA 276, [98] (Hargrave AJA).

[22] Church v Echuca Regional Health [2008] VSCA 153; (2008) 20 VR 566, 590-592 [117]-[127].

[23] Ibid 585 [92], citing Hunter v Transport Accident Commission & Anor [2005] VSCA 1; (2005) 43 MVR 130, 143 [37] (Nettle JA); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279-280, 282 (McHugh JA); and Fletcher Constructions Australia Ltd v Lines MacFarlane & Marshall Pty Ltd [2001] VSCA 167; (2001) 4 VR 28, 35 [18] (Chernov JA). In Church, Ashley JA noted that '[t]he fact that a "credit issue" arose on the hearing below may tend in favour of remission for re-hearing. Whether remission is required is likely to depend upon the particular "credit issue" which arose. These observations, of course, say nothing about the duty imposed on this Court by s 134AD.' (Footnote 10.)

[24] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551 (Gibbs ACJ, Jacobs and Murphy JJ); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 126-7 [24]-[26] (Gleeson CJ, Gummow and Kirby JJ).

[25] Hunter v Transport Accident Commission & Anor [2005] VSCA 1; (2005) 43 MVR 130, 143 [37].

[26] Rodda v Transport Accident Commission [2008] VSCA 276, [108] (Hargrave AJA).

[27] [2012] VSCA 226.

[28] Ibid [41]-[42] (Harper and Tate JJA, Beach AJA).

[29] [2012] VSCA 215.

[30] Ibid [15]-[17] (Harper JA, Beach and Davies AJJA).

[31] Affidavit of Gabrielle Maree Braunack sworn 27 May 2010, [3].

[32] Braunack v Wodonga City Council (No 2) [2011] VCC 958.

[33] Appellant's outline of submissions, [14].

[34] Report of Mr Scott (25 September 2008).

[35] Supplementary report of Mr Scott (10 October 2008).

[37] Report of Dr Andrews (9 March 2010).

[38] Report of Mr Reid (2 November 2010).

[39] Report of Dr Hjorth (16 September 2010).

[40] Report of Dr Fraser (11 June 2010).

[41] Report of Mr Stapleton (4 November 2010).

[44] Appellant's outline of submissions, [24].

[45] Braunack v Wodonga City Council [2011] VCC 957, [170], [186].

[46] See Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602.

[50] Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602.

[51] Braunack v Wodonga City Council (No 2) [2011] VCC 958, [156].

[52] Affidavit of Glen Mackinnon sworn 28 April 2011.

[53] Braunack v Wodonga City Council (No 2) [2011] VCC 958, [157].