Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2008] VSCA 85

In determining whether the act or omission of the employer was a cause of the injury, the employer must take the worker as it finds him/her. Any special susceptibility or vulnerability on the part of the worker may explain why the particular act or omission is of causal significance. The fact that the act or omission would not have caused injury to a worker who did not have the susceptibility or vulnerability of the injured worker does not alter the causal character of the act or omission.

**81 If the trial judge, in rejecting the cause alleged by the appellant, had adopted, albeit superfluously, a different but patently flawed causal explanation which was unsupported by evidence, it would clearly call into question his reasoning and ultimate conclusion. In such circumstances, there could be no confidence that the rejection of the appellant's case was not dictated or influenced by a false assumption.

82 In my view, however, there was considerable evidence to support the conclusion that the appellant could not work, either on 30 May 2002 or, (to the extent to which his Honour implicitly so found), in the short term thereafter.

83 On 14 April 2002, the appellant had sustained the left knee injury in a heavy fall. She conceded that she suffered pain following 14 April 2002, and was limping and off work. The physical injury was initially diagnosed as a ligamentous strain and a possible contusion of the patella. In November 2002, it was diagnosed as a torn medial meniscus. The appellant was again unable to work on 29 May 2002 due to problems with her knee. On 30 May 2002, she was, from the outset, distressed, crying and limping. The supervisor did not sack or ill treat her. Dr Gorgioski did not provide her with a certificate, although aware that she urgently required one in order to satisfy her employer's request. He did not satisfactorily explain his failure to do so.

84 The appellant informed Ms Coe on 20 October 2002 that she was unable to work due to the knee injury. She also informed the Austin Hospital on 13 March 2003 that she was unable to work due to the knee injury.

85 The appellant underwent an arthroscopy on the knee on 2 July 2003. She was subsequently scheduled for a further arthroscopy.

86 Some of the expert medical evidence also supported the view that the appellant was prevented from working due to her left knee injury. Dr Shannon stated that her 'left knee problem' would have 'interfered with her work capacity at the time leading up to the surgery'. Mr Kostas assumed that the knee injury prevented the appellant from working. Dr Gorgioski conceded that the appellant may have needed time off if (as was the case), arthroscopy was required.

87 The appellant, in relation to ground 1, faced the high hurdle of establishing that there was no evidence to support the relevant factual finding. It was not sufficient to point to contrary or inconsistent evidence. The facts and circumstances referred to above constituted evidence on which it was open to his Honour to find, as he did, that the appellant was unable to work on 30 May 2002 and for a time thereafter. As the respondents contended, that finding was, moreover, but one element of six supportive findings based on evidence which, in its totality, entitled the learned judge to conclude that the appellant's chronic adjustment reaction did not arise out of the workplace incident, but was due to her realisation that the left knee injury prevented her from working.

88 It follows that, in my opinion, the first ground of appeal is not made out.**

**89 The appellant also contended that the trial judge failed to provide sufficient reasons to justify his findings of fact that the appellant was unable to work at the relevant times.

90 On appeal, counsel for the appellant reiterated that a finding that the knee injury prevented the appellant from working was not open on the evidence. He also submitted that paragraph 6 of his Honour's reasons failed to address the question whether the appellant could have continued to work despite the left knee injury, which demonstrated that his Honour did not analyse the causation issue properly.

91 Counsel submitted that even if the finding that the appellant was unable to work due to the knee injury were open on the evidence, the trial judge had failed to explain his finding that her reaction to that circumstance was the only cause of the psychiatric injury. Further, he did not address the equivocal quality of Dr Fail's evidence.

92 The appellant's more substantial complaint concerning the reasons for judgment thus went significantly beyond that contained in the Notice of Appeal. Before us, however, no objection was taken.

93 The standard required of reasons for judgment has been considered in numerous authorities.[2] Although the precise content of reasons may vary according to the nature, complexity and volume of the particular case, they must be of a quality sufficient to fulfil the fundamental function of informing litigants why they lost, so that they are not 'left to wonder'.

94 Where conflicting evidence is essential to the determination of a case, the reasons must acknowledge it and disclose why particular evidence is preferred. In Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis,[3] Maxwell P stated that the obligation to give adequate reasons entailed a rational explanation for preferring one witness's opinion over another. Nettle JA, in Spence v Gomez,[4] observed that the judge is obliged to expose the reasons for 'resolving a point critical to the contest between the parties ... ; in other words, to 'enter into' the issues canvassed and explain why one case is preferred over another.'[5]

95 In Hunter v Transport Accident Commission,[6] Nettle JA stated that a 'mere recitation of evidence followed by a statement of findings, without any commentary as to why the evidence is said to lead to the findings, is about as good as useless.' [7] His Honour further stated:**

Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those findings are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.

**96 The complaint in the Notice of Appeal that the trial judge failed to provide sufficient reasons to justify his findings of fact that the appellant was unable to work at the relevant times, is not, in my opinion, made out. As discussed above, his Honour set out the relevant evidence and his related findings in a comprehensive, logical sequence, which both supported and made plain his path of reasoning on that issue.

97 Similarly, in my view, the appellant's more general complaints in relation to causal analysis and the treatment of Dr Fail's evidence (which were not the subject of the Notice of Appeal) are not made out.

98 In the present case, the medical evidence revealed a diversity of opinions as to whether the plaintiff had a psychiatric injury and if so, what caused it. The oral evidence of the medical experts did not, in all cases, completely coincide with the written reports.

99 On the history and case presented by the appellant, the employer's request for the full medical certificate was unjustified (as she was capable of working) and the request for the certificate was the sole cause of the psychiatric injury. An alternative cause of the psychiatric injury was the appellant's realisation that the knee injury would prevent her from working. According to a third view, the supervisor's request was a trigger, without which the psychiatric injury would not have happened. There was support for all three causal explanations in the expert evidence of Dr Fail.

100 A significant element of Dr Fail's evidence on cross-examination however, supported the view that the cause was the appellant's realisation of the consequences of her physical state, namely, that she could not go back to work.

101 His Honour found Dr Fail to be the most impressive medical witness and accepted his diagnosis of chronic adjustment reaction. He was, however, as his reasons reveal, alive to the inconsistencies in Dr Fail's evidence about the causal role if any, of the request for the medical certificate. The trial judge expressly referred to elements of Dr Fail's evidence which supported the view that the request for the certificate was the cause, the view that it was a trigger and the view that it had no causal effect.

102 His Honour also expressly stated that counsel for the respondents and counsel for the appellant 'both accepted that there was support for each of their respective cases in the evidence of Dr Fail.'

103 Having noted the contradictory aspects of Dr Fail's evidence, his Honour accepted his acknowledgement in cross-examination that the 'true linkage' of the appellant's reaction was to her appreciation 'that she was not going to be able to work by reason of her left knee condition.'

104 His Honour stated: 'Thus the [appellant] was reacting because she knew she wasn't going to be able to go back to work. It was a reaction to the consequences rather than the actual request.'

105 In the context of the above (including the medical evidence, the diversity and inconsistency of which his Honour clearly recognised), the evidence of the physical state of the appellant's knee prior to and after 30 May 2002 and her conduct and statements in relation to it, his Honour concluded that he was not satisfied that the injury arose from the appellant's employment.

106 The six supportive findings, in my view, constitute a clear and comprehensible pattern of reasoning which, in the light of the evidence, sufficiently demonstrate how his Honour reached his conclusion.

107 There is a fine distinction between, on the one hand, a reaction caused by the appellant's realisation that she was unable to work due to an injury (from which incapacity her inability to obtain a medical certificate followed) and, on the other hand, a reaction caused by a request to obtain a medical certificate.

108 The subtle distinctions involved were inherent in the conflicting evidence,**

which his Honour adequately acknowledged. It was open to his Honour to adopt a view of causation supported by relevant evidence, including significant elements of Dr Fail's testimony. He made his path of reasoning manifest to the requisite degree.

**109 It was not, in principle, essential to the validity of his Honour's reasoning (which focussed on the appellant's apprehension of her physical injury and its consequences) to find that she sustained a physical injury that prevented her from working on 30 May 2002 and for the short term thereafter. The appellant's apprehension of the nature of her injury, even if mistaken, could have caused a reaction. The trial judge's reasoning is nevertheless predicated on the assumption that the appellant understood, correctly, that the knee injury prevented her from working on 30 May 2002 and shortly thereafter. While an absence of evidence to support that assumption could undermine the reasoning process, there is, in my view, as discussed above, ample evidence to support the finding not only that the appellant apprehended on 30 May 2002 that her physical injury prevented her from working, but that the injury in fact had that effect. The fact of the symptomatic physical injury bore on the probability of the cause of the mental reaction.

110 His Honour adequately addressed the conflicting evidence on causation. He sufficiently explained his finding that the appellant's psychiatric injury was a reaction to her apprehension of the nature and consequences of her knee injury, rather than the supervisor's request for a medical certificate.

111 In my opinion, the third ground of the appeal is not made out.**

112 In my opinion, the appeal should be dismissed.

113 I also agree that for the reasons given by Dodds-Streeton JA, the appeal should be dismissed.

[1] [2006] VSCA 141.

[2] Nichols v Robinson [2001] VSCA 11 (per Winneke P, with whom Phillips and Charles JJA agreed), approved by Eames JA in Dwyer v Calco Timber [2006] VSCA 187. See also Dressing v Porter [2006] VSCA 215, [26] where Ashley JA stated that 'what will be sufficient in a particular case will be influenced by the ambit of the dispute at trial'.

[3] [2007] VSCA 46.

[4] [2006] VSCA 48.

[6] [2005] VSCA 1.