ACN 005 565 926 Pty Ltd v Snibson
[2012] VSCA 31
•29 February 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2010 0144 | |
| ACN 005 565 926 PTY LTD | Appellant |
| v | |
| KENT DAVID SNIBSON | Respondent |
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JUDGES: | MANDIE and HANSEN JJA and KYROU AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 February 2012 | |
DATE OF JUDGMENT: | 29 February 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 31 | |
JUDGMENT APPEALED FROM: | Snibson v Victorian Workcover Authority & Ors [2010] VCC 1633 (Judge Kings) | |
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ACCIDENT COMPENSATION – Appeal against order granting leave under s 135A(4)(b) of Accident Compensation Act 1985 to commence common law proceedings – ‘Serious injury’ under s 135A(19) – Whether application made under s 135A(2B) within three-year period after date of incapacity became known – Legal principles for establishing serious injury incapacity; assessment of applications under s 135AC(b); appellate interference; adequacy of reasons – Correct principles applied – Conclusion open on whole of the evidence – Reasons adequate – Appeal dismissed – Accident Compensation Act 1985, ss 135A(19), 135AC(b).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S O’Meara SC with Ms J M Forbes | Lander & Rogers |
| For the Respondent | Mr R P Gorton QC with Mr M J Ruddle | Clark Toop & Taylor |
MANDIE JA:
I agree with Kyrou AJA.
HANSEN JA:
I also agree with Kyrou AJA.
KYROU AJA:
Introduction and summary
This is an appeal by ACN 005 565 926 Pty Ltd (‘ACN’) against an order made by a judge of the County Court on 22 October 2010 in favour of ACN’s former employee, Kent David Snibson.[1] By that order, the judge granted leave to Mr Snibson, pursuant to s 135A(4)(b) of the Accident Compensation Act 1985 (‘Act’), to commence a common law proceeding against ACN seeking damages for pain and suffering and loss of earning capacity allegedly arising out of his previous employment with ACN.
[1]See Snibson v Victorian WorkCover Authority [2010] VCC 1633 (22 October 2010) (‘Reasons’). Leave to appeal was granted by Bongiorno JA and Vickery AJA on 3 December 2010.
In the County Court proceeding, Mr Snibson alleged that he sustained an injury to his cervical spine in the course of his employment as an optometrist with ACN in the period from 1 December 1992 until 12 November 1997; that the injury was a ‘serious injury’ within the meaning of para (a) of the definition of that expression in s 135A(19) of the Act; and that he became aware that it was a serious injury after 22 December 2005.
Paragraph (a) of the definition of ‘serious injury’ in s 135A(19) of the Act provides that ‘serious injury’ means ‘serious long-term impairment or loss of a body function’.
The date of 22 December 2005 is significant because of s 135AC of the Act. That section relevantly provides:
135AC Limitation of Actions Act 1958
Despite anything to the contrary in the Limitation of Actions Act 1958, proceedings in accordance with section 135 or 135A must not be commenced—
(a)subject to the Limitation of Actions Act 1958, unless paragraph (b) applies, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before 1 September 2000; or
(b)if the cause of action arose before 12 November 1997 and the incapacity arising from the injury was not known until after 12 November 1997, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before the expiration of 3 years after the date the incapacity became known.
Section 135A(2B) requires the Victorian WorkCover Authority (‘VWA’) or a self-insurer to determine a worker’s degree of impairment as a result of an injury within 120 days of receiving a written application from the worker. In the present case, Mr Snibson’s application was served on the VWA on 22 December 2008. Accordingly, s 135AC had the effect of rendering Mr Snibson’s proceeding in the County Court statute barred unless he satisfied the Court that he made the application within three years after the date the serious injury incapacity became known to him.
The trial judge decided that Mr Snibson’s injury was compensable; that the injury was sustained before 12 November 1997; and that the injury satisfied the definition of ‘serious injury’ in s 135A(19) of the Act. ACN does not challenge these findings.[2]
[2]The County Court proceeding also involved an application by Mr Snibson for leave to commence a common law proceeding against Luxottica Retail Australia Pty Ltd in respect of an injury to his neck sustained in the course of his employment with that company from 20 October 1999. The trial judge’s decision to grant leave for the commencement of that proceeding is not the subject of an appeal to this Court.
The trial judge also decided that, for the purposes of s 135AC(b) of the Act, the incapacity arising from the injury became known to Mr Snibson after 22 December 2005, such that his proceeding was not statute barred. The sole issue on the appeal is whether her Honour erred in arriving at this decision.
For the reasons that follow, I have concluded that her Honour’s decision is not vitiated by any error and that the appeal should be dismissed.
Brief overview of the facts
Mr Snibson was born on 3 July 1962. Between 1989 and early February 2006, he worked as an optometrist. He worked with ACN in that capacity from 1989 until 1998.
Mr Snibson’s duties as an optometrist involved leaning forward with neck extension and with arms abducted and held above shoulder height. There was an element of lateral translation of the neck with rotation and flexion.
In the mid-1990s, Mr Snibson experienced the onset of pain in his neck and shoulders. He experienced pain periodically. In April 1997, he lodged a claim for worker’s compensation in relation to his shoulders.
An MRI scan of Mr Snibson’s cervical spine taken on 30 November 1999 indicated a moderate central disc protrusion and a right posterolateral disc bulge at the C5/6 level and a small central disc bulge at the C3/4 level.
The pain in Mr Snibson’s neck and shoulders persisted and progressively worsened. There was a correlation between his level of activity and the level of pain. Due to the pain that he was experiencing, his study commitments and other reasons, Mr Snibson commenced working reduced hours as a casual employee in 2003.
In December 2005, Mr Snibson’s condition worsened. By early February 2006, the pain was so severe that he ceased working as an optometrist. An MRI scan taken on 7 February 2006 indicated multilevel disc degeneration, and a large right paracentral/foraminal disc protrusion at the C6/7 level in addition to the pre-existing conditions at the C3/4 and C5/6 levels.
In April 2006, Mr Snibson lodged a claim for worker’s compensation in relation to his neck and shoulders.
At the County Court trial, Mr Snibson gave evidence that he appreciated the full significance of his injury after the 7 February 2006 MRI scan.
Evidence at the County Court trial
Before turning to the evidence adduced at the County Court trial, it is necessary to refer to an issue that became contentious on the appeal, namely, the scope of the injury that was the subject of the application for leave to commence a common law proceeding. In this Court, Mr Snibson submitted that the injury was confined to his neck, whereas ACN submitted that the injury included his shoulders because the impairment to his shoulders was a consequence of the injury to his neck. In February 2001, Mr Snibson was advised by an orthopaedic surgeon, Mr Stephen Doig, that the impairment to his shoulders was causally related to the injury to his neck. In the light of this fact, I am of the opinion that Mr Snibson’s knowledge prior to 22 December 2005 regarding the impairment to his shoulders is relevant for the purposes of s 135AC(b) of the Act.
(a) Radiology
In early 1998, Mr Doig organised an ultrasound of Mr Snibson’s right shoulder which showed some minimal subacromial bursitis and bunching.
On 30 November 1999, an MRI scan was taken of Mr Snibson’s cervical spine. The MRI report described Mr Snibson’s clinical history as ‘chronic persistent neck pain radiating to the right shoulder’. The report concluded that ‘[a] moderate central disc protrusion and right posterolateral disc bulge at C5/6 mildly indent the cord and compress the right C6 nerve root’ and that ‘[a] small central disc bulge at C3/4 mildly indents the cord’. Mr Snibson was aware of the results of the MRI scan around the time that it was taken.
An MRI scan was not taken again until 7 February 2006. The MRI report at that time concluded as follows:
Multilevel disc degeneration with small central disc protrusion at C4/5 without neural compromise. At C5/6 there is a broadbased central/right paracentral disc protrusion with minor mass effect on the right C6 nerve and mild cord indentation. At C6/7 there is a large right paracentral/foraminal disc protrusion, obliterating the exiting right C7 nerve resulting in mild cord compression and rotation. The appearances at C4/5 and C5/6 are unchanged in comparison to previous MRI (Cabrini Hospital 30/11/99). The C6/7 level was within normal limits on previous examination.
(b) Evidence relating to medical examinations and treatment
Since the 1990s Mr Snibson has attended various general medical practitioners, including Dr Adrian Tang of the Blackburn Clinic. It is not clear what, if any, treatment the general practitioners have provided for Mr Snibson’s neck and shoulders. According to a fax dated 23 February 2006 from Mr Snibson to a chiropractor, Dr Rhonda Farquharson, she has been ‘the primary treating practitioner rather than [his] GP’s’.[3]
[3]This fax is discussed in more detail below. See, in particular, at [30].
Between 17 March 1997 and 5 November 1998, Mr Snibson was treated by a manipulative physiotherapist, Mr Andrew Mitchell. He attended Mr Mitchell on a regular basis. In a report dated 16 May 2006, Mr Mitchell stated that Mr Snibson’s treatment for the shoulders consisted of ultrasound, heat, interferential, shoulder mobilisation, soft tissue massage, scapula mobilisation, shoulder taping and a home exercise program. The treatment for the neck and back consisted of cervical and thoracic mobilisation/manipulation, heat to the cervicothoracic region and soft tissue mobilisation. This treatment improved Mr Snibson’s ability to keep his arm abducted and decreased his pain and sleep deprivation. However, increased workloads on return to work re-exacerbated his pain. Over the period from 17 March 1997 until 5 November 1998, Mr Snibson’s improvement was ‘sporadic with several relapses’.
On 1 December 1997, 29 December 1997, 27 January 1998, 19 October 1998, February 2000 and February 2001, Mr Snibson attended Mr Doig. Mr Doig injected Mr Snibson’s right shoulder with some local anaesthetic and steroid. This provided only temporary relief. Mr Doig advised Mr Snibson that the 30 November 1999 MRI scan explained several of his problems but those problems did not warrant surgery.
On 19 February 2001, Mr Doig wrote a referral letter to a neurosurgeon, Mr Peter Dohrmann. In that letter, Mr Doig stated that Mr Snibson had ‘significant problems with his right shoulder’ and ‘ongoing neck problems and neck pain’. The letter went on to say:
At the moment his major problem is neck pain. He has some brachialgia although this is not marked and he said he gets some odd feelings in the right upper limb. Sleeping is a problem. Clinically, he has a decreased range of movement of the cervical spine, particularly to left rotation but normal power and sensation in the upper limb. He has a subjective change in feeling in the upper limb.
In a report dated 2 May 2006, Mr Doig used expressions such as ‘very tender’ and ‘still a little sore’ to describe Mr Snibson’s condition in December 1997 and January 1998. In mid-1998, Mr Snibson told Mr Doig that, overall, he felt that he was improving. In February 2000, Mr Snibson told Mr Doig that his neck ‘was still causing him some troubles’. In February 2001, Mr Snibson told Mr Doig that ‘his neck was still sore’ and that he was ‘also getting pain radiating towards the right shoulder and some odd feeling in the right arm’. Interestingly, although Mr Snibson saw Mr Doig on 6 October 2003 in relation to his knee, Mr Doig’s report does not mention any discussion about Mr Snibson’s neck or shoulders during that consultation. On 9 February 2006, Mr Snibson told Mr Doig that, in the previous 18 months, his neck had improved with a reduced workload but the pain got worse when he tried to increase his workload. In his report, Mr Doig stated that Mr Snibson’s right shoulder and cervical spine had caused him ‘a significant problem’. Mr Doig also described Mr Snibson’s problems as ‘ongoing’.
Between February 2001 and 9 February 2006, Mr Snibson did not attend Mr Doig in relation to his neck or shoulders. On 9 February 2006, Mr Doig advised Mr Snibson that he was a candidate for operative treatment. Mr Doig gave Mr Snibson ‘a certificate of capacity for work-cover to limit [his] movement from 09.02.06 - 09.03.06’.
Between 1998 and 2001, Mr Snibson was treated by a chiropractor, Dr Peter Bourke. In a report dated 16 May 2006, Dr Bourke stated:
From the beginning of care Mr Snibson has complained of pain and discomfort in the head, neck and shoulder-upper limb region. These symptoms varied from more superficial (trivial) discomfort to deep (disquieting) pain, sometimes well localised, sometimes radiating. The discomfort over many years was often associated with Mr Snibson’s work posture.
Examination of Mr Snibson consistently revealed localised cervical muscle spasm and reduced ranges of motion. The care we provided reduced these symptoms.
On 23 February 2006, Mr Snibson prepared a four-page document which he faxed to Dr Farquharson (‘fax to Dr Farquharson’).[4] In the fax, Mr Snibson requested Dr Farquharson to prepare a report in support of his WorkCover claim. He stated that Dr Bourke ‘trialled remedial massage, acupuncture and naturopathy … to no effect’. He also stated that frequent physical/manual therapies varying from once to three times per week were sufficient to keep him functioning at work with moderate levels of discomfort that quickly built up with intense work or reduced treatment. Soft collar use was also intermittently helpful. In approximately 2000, when Mr Snibson worked in Ivanhoe and Northcote rather than in the Melbourne CBD, the distance from Dr Bourke’s chiropractic practice meant that he received treatment less frequently, usually once a week. This was sufficient because ‘work was a little less intense … in the new locations’.
[4]Although the document is undated, in it, Mr Snibson stated, ‘Presently 23.02.06’.
On 9 May 2001, Mr Snibson attended Mr Dohrmann. Mr Dohrmann advised him that surgery was an option. In a letter dated 10 May 2001 to Mr Doig, Mr Dohrmann stated that there was little to find on neurological examination; that neck movements were unrestricted; that Mr Snibson was currently comfortable and there was no pressure to intervene; and that one could regard Mr Snibson as having low grade instability at the level of the C5/6 disc lesion.
In his fax to Dr Farquharson, Mr Snibson stated that Mr Dohrmann ‘concluded that although c5/6 could be fused, it may or may not relieve the neck pain and the multiple level degeneration would increase the risk of biomechanical sequelae aggravating adjacent levels’. He and Mr Dohrmann ‘elected to not operate and continue as status quo’.
At the County Court trial, Mr Snibson was cross-examined about his consultation with Mr Dohrmann regarding the prolapse shown on the 30 November 1999 MRI scan. Mr Snibson stated that, although Mr Dohrmann raised surgery as an option, Mr Dohrmann also said that he expected that surgery would not be required. Mr Dohrmann also urged him to be sensible and not to ‘over-dramatise the event’. From the middle of 2001 until the end of 2005, he had ‘[o]ngoing intermittent treatment, but there was no intense … quest … to deal with the issue’.
Mr Snibson did not attend Mr Dohrmann again until 20 February 2006. On that day, Mr Dohrmann indicated that Mr Snibson was unable to work and again discussed the surgery option.
In a report dated 6 May 2006, Mr Dohrmann stated:
Mr Snibson was first seen on 9 May 2001. He had been suffering from neck pain, gradually worsening over several years, though there was no specific history of injury. His posture in his work as an optometrist had been an aggravating factor and Mr Snibson had had intermittent time off work over the years. He described chronic neck pain with radiation into the right shoulder and arm. There were similar symptoms on the left side though less severe.
… At the time of that consultation, Mr Snibson was advised that surgery in the form of anterior discectomy and fusion was an option but no specific arrangements were made.
The next attendance was on 20th February 2006. Mr Snibson explained that his hours of work as an optometrist had been gradually declining over the intervening five years because of continuing neck problems. In 2005, he increased his hours of work and his neck symptoms worsened. In mid-2005, he developed recurrent right brachial neuralgia and tingling in the right upper limb.
In December 2005, there was a marked increase in the right brachial neuralgia and Mr Snibson developed significant weakness of the right upper limb.
…
Mr Snibson has symptoms of chronic cervical disc disease with a previous episode of right cervical radiculopathy caused by a C5-6 disc prolapse and a more recent and continuing episode of right cervical radiculopathy caused by C6-7 disc prolapse.
From 2002, Mr Snibson has been treated by Dr Farquharson. Prior to 22 December 2005, Dr Farquharson’s treatment predominantly consisted of low-force chiropractic therapy.
(c) Evidence relating to medication
It appears that in the period from 1997 until 22 December 2005, Dr Tang prescribed some medication for Mr Snibson. However, the precise nature of that medication, its dosage and the periods in which it was used are not clear. In a report dated 19 May 2006, Dr Tang stated that Mr Snibson has required ‘a number of therapeutic modalities, including anti-inflammatories, Cortisone, Panadeine forte, Tramal and also sleeping hypnotics’.
In his fax to Dr Farquharson, Mr Snibson stated that, from the mid-1990s, he used analgesia to manage the constant pain. At the County Court trial, Mr Snibson gave evidence that he periodically used anti-inflammatories.
On 1 and 29 December 1997, Mr Doig injected Mr Snibson’s right shoulder with some local anaesthetic and steroid. Prior to that time, Mr Snibson had been using Voltaren but ceased using it because it was ineffective.
(d) Evidence relating to pain
In a report dated 16 May 2006, Mr Mitchell stated that on 17 March 1997, Mr Snibson told him that he had ‘pain that extended into the neck with shoulder movements and a generalised tightness in the shoulder blades and mid thoracic region’. The pain increased over the course of a day and was better with rest over the weekends. On 27 March 2006, Mr Snibson told Mr Mitchell that over the previous seven years, he had had very few pain-free periods.
In a report dated 27 January 2006, Dr Farquharson stated that she had provided to Mr Snibson ongoing low-force chiropractic treatment ‘for chronic cervical and referred upper limb pain which is subject to a current exacerbation’. The report referred to ‘episodes’ of local cervical pain, including an episode in June 2005 ‘which resolved over 3 weeks with a combination of ice, anti-inflammatories and low force chiropractic mobilisation/myofascial trigger point therapy’.
In a subsequent report dated 24 February 2006, Dr Farquharson stated that, when she first saw Mr Snibson in 2002, he was experiencing ongoing cervical pain and that ‘[u]pper limb referred pains and/or paraesthesias were noted on an intermittent basis’. Dr Farquharson noted that periods of increased workload have correlated with periods of further pain increases, that no significant pain-free intervals have occurred, and that the nature, location and subjective description of pain have been mostly consistent.
In her report dated 24 February 2006, Dr Farquharson also stated that, in 2005, Mr Snibson reported more consistent episodes of right upper limb paraesthesia, referred pain and interscapular pain. Return to full-time work at the end of 2005 precipitated an increase in multiple pain sites and this situation further progressed throughout January 2006, with deterioration in function, significant pain increase and the emergence of neurological findings.
On 30 January 2006, Dr Peter Lovass of the Blackburn Clinic wrote a referral letter to Mr de la Harpe. In that letter, Dr Lovass relevantly stated:
[Mr Snibson] has right arm pain, presumably related to a cervical disc problem.
He has actually had this as an issue for several years, although has found it an exacerbation in the last few months, and particularly so in the last week or two, wherein he is experiencing increasing, constant right arm to hand paraesthesia and pain that it interfering with his occupation as an optometrist, and in his general life.
In a report dated 19 May 2006, Dr Tang stated that Mr Snibson has had ongoing fluctuations of right shoulder, neck and right arm pain since 1997 and that, in January 2006, he presented ‘with a description of further right arm pain and weakness of certain functions of his hand’.
In his fax to Dr Farquharson, under the heading ‘Timeline’, Mr Snibson set out the history of his symptoms. The salient parts of the fax may be summarised as follows:
(a) In the period from 1990 until 1995, Mr Snibson had ongoing symptoms of neck and shoulder pain. The pain was exacerbated by work intensity and was relieved by rest. Intermittent physiotherapy and chiropractic care gave limited relief.
(b) From 1995 there was a steady increase in symptoms. Mr Snibson was unable to sustain arm positions above his shoulder without extreme pain. For a while, abduction was impossible on his right side and, to a degree, on his left side.
(c) During the time that Mr Snibson was being treated by Dr Bourke, between 1998 and 2001, he had ongoing pain which treatment alleviated from time to time but did not fully resolve. When he commenced attending Dr Farquharson in 2002, ‘fluctuations in the severity of the problem were multifactorial and the neck resumed its earlier primacy and the shoulder symptoms abated over 2000-2002, leaving somewhat reduced shoulder function and reduced ability to sustain positions and only mild pain’. He had recurrent episodes of increased neck pain.
(d) At the time that Mr Snibson saw Mr Dohrmann in 2001, ‘the fluctuating neck pain variably limited neck movement, intermittent interscapular pain was bothersome and the shoulder issues were largely background discomfort and manageable especially when the neck was more mobile and there was less intense work’. Periodic treatment with Dr Farquharson helped sustain function. Many fluctuations in intensity continued from 2001 until 2006. Other supportive therapies that Mr Snibson trialled showed little substantial benefit.
(e) Mr Snibson experienced ongoing problems during 2003 which caused him to slowly reduce his work hours. During 2004, he increased his workload and found that the pain fluctuated with the level of the workload.
(f) Around mid-2005, Mr Snibson ‘started noticing increasing interscapular pain and some paraesthesias in the [right] arm’. This fluctuated throughout the year. By Christmas 2005, ‘the patterns of nerve pain were increasingly obvious referring to the hand, wrist and elbow (bone)’. The pain increased in the general back and interscapular area and neck pain decreased around January 2006. Unusual muscle twitching began around December 2005 and increased over January 2006. Muscle strength was fine in December 2005 but rapidly declined over January 2006. Paraesthesias intermittently and slowly increased throughout late 2005 and Mr Snibson reduced his work hours accordingly. He was unable to sit for more than 20 minutes.
At the County Court trial, Mr Snibson gave the following evidence during cross-examination:
(a) The level of pain had increased since the mid-1990s. The pain was sometimes severe. The pain limited the range of movement of Mr Snibson’s head, particularly rotation and bending forward. Holding his head in one position sometimes relieved the pain and sometimes exacerbated the pain.
(b) It is likely that Mr Doig discussed the 30 November 1999 MRI scan with Mr Snibson. He understood that it was likely that there was a correlation between the MRI findings and the symptoms that he was experiencing.
(c) Mr Snibson agreed that the description of his condition in Mr Doig’s referral letter to Mr Dohrmann ‘sounds like a fair summary of most of the issues’. The pain that he experienced was gradually increasing in intensity and was enough to cause him to take some time off work. However, he did not use up all his sick leave. It was fair to say that, from 9 May 2001, there was a continuing deterioration in his neck.
(d) In 2003, Mr Snibson’s neck problems were periodically severe and periodically annoying. They fluctuated and caused him regular pain. They limited the movements of his head and neck.
(e) Things were escalating during late 2005 and they continued to escalate. There was a ‘flare-up’ in June 2005.
(f) Mr Snibson had concerns about an unpredictable future. He was relying on advice that ‘it was unlikely to become bad quickly’, but he ‘had enough experience to know that it was continuing to trend in a negative direction’.
(g) Mr Snibson accepted the accuracy of his fax to Dr Farquharson and an updated version of that document that he prepared on approximately 28 April 2006 (‘April 2006 document’).
(e) Evidence relating to the effect of the injury on daily activities
Prior to the neck injury, Mr Snibson enjoyed social squash and tennis and he regularly ran.
On 17 March 1997, Mr Snibson informed Mr Mitchell that the pain in his neck and shoulders woke him at night and that he found it difficult to get to sleep.
In his fax to Dr Farquharson, Mr Snibson stated that, from the mid-1990s, his sleep was ‘very affected by constant pain’. He also said that, in December 2005/January 2006, ‘[p]ain levels [were] interfering [with activities of daily living], work, eating, driving and very much with sleep’.
At the County Court trial, during cross-examination, Mr Snibson said that his neck problems caused a ‘slow, progressive intrusion into [his] life’. He continued to play tennis in 2002 and still exercised fairly regularly. In re-examination, he said that in 2005 he was able to play tennis.
(f) Evidence relating to the effect of the injury on capacity to work
In his fax to Dr Farquharson, Mr Snibson stated that, from the mid-1990s, his condition had the effect of limiting his work, requiring him to take periods of annual leave to rest.
In the April 2006 document, Mr Snibson explained his changing work arrangements in the period from 2003 until 2005 as follows:
Due largely to these ongoing problems I slightly reduced work … hours in late 2003 by slowly using up accumulated annual leave (around 28 hours/week varying up to 45 hours – normal rosters were 40 hours but extra hours were usual) with additional sessions as requested by OPSM to the degree I was available to oblige them. This general reduction in my hours saw significant temporary improvements in pain patterns which was lost whenever I returned to greater workloads. During mid 2004 I substituted an additional locum/casual position (Strachan Eyecare) on days I had been having off routinely, and 2005 I reduced my OPSM load further, going casual/locum also there concurrently, and I later undertook some additional locum work in other locations but have found the fluctuations in pain continuing and the work level was increasingly fluctuating in mutual response. Over the 2003-2005 period my hours fluctuated but generally tapered. I estimate it fell to average around high 20’s.
By 2005 the reduced hours became more financially difficult and necessitated increased income so I felt the need to increase my hours/income and the overall neck pain had become a little relieved by the reduced work pattern. So I increased my availability to OPSM and upped my casual hours more to a more [full time] total load consisting usually of 2 days at Strachan Eyecare, 1 short day elsewhere, and between 1 and 3 days at OPSM.
At the County Court trial, during cross-examination, Mr Snibson broadly agreed with the proposition that, between May 2001 and 2006, his hours of work as an optometrist had been gradually declining because of continuing neck problems. He gave the following evidence about the reasons for ceasing full time work in 2003:
[Cross-examiner]: Now was the change in your work regime in 2003 caused by your neck pain?
[Mr Snibson]: In several ways, yes. …
[Cross-examiner]: Was it primarily caused by your neck pain?
[Mr Snibson]: The change in my work hours in 2003 was a continuation of other changes that were going on. I had changed location and practice and that also changed things.
[Cross-examiner]: Had you changed location and practice to accommodate your neck pain?
[Mr Snibson]: No.
[Cross-examiner]: Was your neck pain relevant to the change in your work practices?
[Mr Snibson]: Neck pain was always relevant to my work practices but the change of my location was for organisational reasons, it wasn’t for me. I just observed that when I reduced my intensity of work the pain reduced in its persistence temporarily.
[Cross-examiner]: So having observed that your pain decreased with the lessening of your work hours…[d]id that give you some insight into your ability to work full-time as an optometrist?
[Mr Snibson]: It brought into question how long I’d be able to work full-time… [o]r in what way…
[Cross-examiner]: These were things which were going through your mind in 2003?
[Mr Snibson]: Yes.
Mr Snibson was cross-examined extensively about his enrolment at the RMIT University in 2003 in a psychology honours course. He said that he looked at the option of psychology ‘[a]s a safety net, fallback position’. He completed both semesters in 2003. The first semester ‘was basically the whole day’ and the second semester was four or five hours per day. He was also enrolled in semester two in 2004 and semester one in 2005.
Mr Snibson gave evidence that he had been considering the psychology course for a while and began to explore the option in 2002. In the period following his consultation with Mr Dohrmann in May 2001, he began to ‘get pretty concerned’ about where his life and work were going. He was looking to move away from optometry because it was an aggravating factor in relation to his neck problems. He was making provision for the possibility of a career change and provision for changing his optometry circumstances. He had some concerns about the future and, based on the advice from Mr Dohrmann, he thought about long-term planning for an alternative to either dilute his optometry work, or in the distant future, to replace it.
Mr Snibson explained that the ‘most specific’ reason for undertaking the psychology honours course was that, having regard to the time that he had completed his undergraduate studies in psychology, 2003 was ‘the last time that [he] could have taken advantage of that opportunity’. He agreed that, to some degree, he had a fear of ‘future decline’ when he started the psychology honours course.
In re-examination, Mr Snibson agreed that he had the capacity to work full time as an optometrist until late 2005 if he had chosen to do so.
(g) Evidence relating to the effect of the injury on earnings
Mr Snibson declared the following salary and wages as an optometrist in his tax returns for the period from 1 July 1998 until 30 June 2005: 1998-1999: $53,364; 1999-2000: $58,179; 2000-2001: $61,054; 2001-2002: $61,465; 2002-2003: $67,003; 2003-2004: $47,696; 2004-2005: $53,137.
At the County Court trial, during cross-examination, Mr Snibson said that he did not suffer reduced income as a result of reduced hours of work because he used up his leave. He believed that, if he had not been able to take leave, his income would have decreased. He agreed that, from 2000 onwards, he thought that he was missing out ‘on a bit of income’.
Trial judge’s findings and reasons
The trial judge stated that, under s 135AC(b) of the Act, the plaintiff must prove that, prior to 22 December 2005, he was not aware of the serious injury consequences of the injury arising from pre November 1997 employment.[5] After discussing AEP Industries Australia Pty Ltd v Mahmoud[6] and Papercorp Pty Ltd v Nicolaou,[7] her Honour said:
The issue then is, what was the plaintiff’s knowledge of the extent and probable duration of his incapacity arising from his neck injury as of 19 December 2005? What is relevant is his knowledge of facts which, when viewed objectively, constitute serious injury capacity.[8]
[5]Reasons, [104].
[6](2007) 17 VR 144, 146 [11] (‘Mahmoud’); Reasons, [105].
[7][2006] VSCA 143 (7 July 2006) [33], [50] (‘Nicolaou’); Reasons, [106]-[107].
[8]Reasons, [108].
Her Honour then discussed Smith v Canberra Press Pty Ltd[9] and Mahmoud[10] and continued:
Thus, knowledge means the subjective knowledge of the worker, not suspicion or knowledge as objectively assessed.
The knowledge is not knowledge of serious injury, but rather knowledge of ‘incapacity arising from injury’.
…
I infer from the authorities that, while it is the subjective knowledge of the plaintiff that is to be taken into account, that knowledge must be realistically appraised. Thus, the example is given in Papercorp Pty Ltd v Nicolaou of the worker who loses a limb but claims he or she does not care and the consequences are not serious. Matters such as the worker’s optimism as to prognosis and the ability of the worker to block out pain may be taken into account.[11]
[9][2009] VSCA 200 (4 September 2009) [11] (‘Smith’).
[10](2007) 17 VR 144, 150 [28].
[11]Reasons, [109]-[114] (citations omitted).
The trial judge reviewed the plaintiff’s affidavit and oral evidence and the medical evidence that was tendered and reached the following factual conclusions:
I accept that prior to 2006, the plaintiff’s condition was, and the plaintiff knew it to be, a fluctuating condition with highs and lows, though generally progressively worsening.
The plaintiff suffered neck pain which continually declined in the period 1995 to 1997, resulting in him consulting with Mr S Doig, orthopaedic surgeon, for treatment of his neck.
In March 1997, the plaintiff was referred to Mr Mitchell, manipulative therapist, for treatment over a number of years. April 1997 was the date of injury for a WorkCover claim submitted by the plaintiff. The plaintiff underwent an MRI scan of his cervical spine in November 1999 which revealed a prolapse at the level of C5-6. The plaintiff said that he understood that there was a correlation between his symptoms and the MRI findings.
In 2001, he was referred to Mr Dohrmann, who said that surgery was an option but he expected the plaintiff would not need surgery. At that stage the plaintiff said he would have had a few days off work here and there, he would not have lost income at that point as he did not use up all his sick days. The plaintiff continued to work, and in 2003, enrolled at RMIT to complete is honours psychology degree whilst working as an optometrist. He was playing tennis and exercising fairly regularly at that time, albeit with some difficulties.
The plaintiff described paresthesia affecting his right arm in late 2005. In re-examination, the plaintiff agreed that until the escalation of pain in late 2005, he had the capacity to work full-time as a clinical optometrist if he chose. The medical reports of 2006 put the paresthesia as in December 2005 or January 2006.
I accept that the plaintiff did have treatment from a chiropractor and physiotherapist well before 2005 but the evidence is the treatment helped him to continue functioning for work and for his recreational activities. The fact was, until late 2005, he had the capacity to work full-time as a clinical optometrist if he chose. I accept that the plaintiff became aware of the serious injury incapacity, namely the likely long-term incapacity for employment and restrictions in activities of daily living around February 2006.
Up until that time, February 2006, the plaintiff was able to work, albeit reduced hours, and was able to manage his symptoms with minimal conservative treatment. From February 2006, he ceased work and became aware of the second disc prolapse.
The plaintiff’s evidence between 2001 until the end of 2005 was that he was having intermittent treatment but there was no intense quest to deal with the issue. The plaintiff appreciated that whilst the problem was undulating, he was managing it and coping with it.
The plaintiff’s medical evidence supports the plaintiff’s lack of knowledge until February 2006. His general practitioner forwarded a letter to Mr David de la Harpe, orthopaedic surgeon, dated 30 January 2006, where he said:
He has actually had this as an issue for several years, although has found it an exacerbation in the last few months, and particularly so in the last week or two wherein he is experiencing increasing constant right arm to hand paresthesia and pain that is interfering with his occupation as an optometrist and in his general life.
In a report dated 19 May 2006, his general practitioner said he presented in January 2006 to Blackburn Clinic with a description of further right arm pain and weakness of certain functions of his hand. He said:
These symptoms have certainly re-flared since December 2005.
…
In a history to Mr Brownbill, the plaintiff reportedly said:
In late 2005, there was a gradual further increase in right arm and hand pain with pain between the shoulders and he reduced his working hours. He has not worked since January 2006 because of the pain.
…
Having undertaken an assessment of the plaintiff’s knowledge as at 22 December 2005, I am of the view that the plaintiff did not have the necessary subjective knowledge of the serious consequences imposed by the injury to his neck, particularly in relation to his work capacity. I take the view that the plaintiff’s actual knowledge of matters which, viewed objectively, constituted a serious injury incapacity in terms of pain and suffering or economic loss, or both, occurred in February 2006.
Accordingly, the plaintiff’s application for determination was issued within the expiration of three years after the date that he became aware of the serious injury incapacity arising from the injury. Thus, his application for leave to bring proceedings for damages pursuant to s.135A(4)(b) is granted.[12]
[12]Reasons, [116]-[125], [132], [134]-[135] (citation omitted).
Relevant legal principles
The legal principles that are relevant to the determination of this appeal were not in dispute. For convenience, they are summarised below.
(a) Principles for establishing a serious injury incapacity
Paragraph (a) of the definition of ‘serious injury’ in s 135A(19) of the Act is set out at [5] above. It was common ground before this Court that a determination of whether a worker has sustained a serious injury within the meaning of that paragraph must be determined in accordance with Humphries vPoljak[13] and the cases that have applied Humphries. I will refer to such a serious injury as ‘serious injury incapacity’. What follows is a brief summary of the principles for determining a serious injury incapacity.
[13][1992] 2 VR 129 (‘Humphries’).
Paragraph (a) of the definition of ‘serious injury’ focuses upon impairment or loss of body function, rather than on the injury resulting from employment. A body function must not be equated with an injury, as the impairment of a person is not the same thing as the impairment of a person’s body function. Paragraph (a) of the definition requires that the impairment or loss of body function be both ‘serious’ and ‘long-term’.[14]
[14]Humphries v Poljak [1992] 2 VR 129, 134. This was the submission of the defendants, the correctness of which Crockett and Southwell JJ accepted.
The test for determining whether an applicant for leave under s 135A(4)(b) of the Act has suffered serious long-term impairment or loss of a body function is subjective, in the sense that it is the effect on the particular applicant’s body function that must be considered. That determination, however, must be objectively made: it is the judge’s opinion as to the seriousness of the impairment or loss – not that of the applicant or his or her medical practitioners – that is decisive.[15]
[15]Humphries [1992] 2 VR 129, 137.
In determining whether an applicant has suffered a serious long-term impairment or loss of a body function, it is impermissible to aggregate impairments or losses of different body functions. Each body function must be considered separately and a determination must be made as to whether that function has been impaired or lost and, if so, whether the impairment or loss is serious and long-term. A body function may be impaired or lost by reason of two or more injuries acting together to cause such impairment or loss.[16]
[16]Humphries [1992] 2 VR 129, 138.
The applicant has the burden of proving, on the balance of probabilities, that he or she has suffered an impairment or loss of a body function that, as a result of the infliction of the injury complained of, is both serious and long-term. In order to be ‘serious’, the consequences of the injury must be serious to the particular applicant in relation to either pecuniary disadvantage and/or pain and suffering, or both. Moreover, it must be established that the injury, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[17]
[17]Humphries [1992] 2 VR 129, 140.
A stoic applicant who has been prepared to put up with pain and suffering and make the best of his or her situation should not be treated less favourably than an applicant who, being of less strength of character, simply resigns himself or herself to the injury.[18]
[18]Dwyer v Calco Timbers Pty Ltd [No 2] [2008] VSCA 260 (17 December 2008) [3].
The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.[19]
[19]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 (28 November 2007) [199].
(b) Principles relating to s 135AC(b) of the Act
Under s 135AC(b) of the Act, the onus lies upon the worker to establish that his or her application was made under s 135A(2B) within the three-year period after the date the incapacity became known.[20]
[20]Morris & Joan Rawlings Builders and Contractors v Rawlings [2010] VSCA 306 (18 November 2010) [31] (‘Rawlings’).
For the purposes of s 135AC(b), it is sufficient to bar a worker’s claim if, prior to the relevant date, he or she knew of facts that, viewed objectively, constituted the serious injury incapacity.[21] The fact that the worker does not subjectively appreciate that the injury is serious until after the relevant date is not necessarily determinative.[22]
[21]Rawlings [2010] VSCA 306 (18 November 2010) [36], citing Nicolaou [2006] VSCA 143 (7 July 2006) [6]; Mahmoud (2007) 17 VR 144, 150 [28]; Smith [2009] VSCA 200 (4 September 2009) [8].
[22]Rawlings [2010] VSCA 306 (18 November 2010) [36].
Section 135AC(b) of the Act involves a two-step process. First, the trial judge must identify what the worker in fact knew in relation to his or her injury at the relevant time. Secondly, the judge must determine whether, in the judge’s opinion – and this is a matter of fact and degree and value judgment for the judge – those known facts constitute knowledge of serious injury incapacity.[23]
[23]Mahmoud (2007) 17 VR 144, 146 [11].
The words ‘the incapacity arising from the injury’ in s 135AC(b) mean any consequence, known to the worker, deriving from compensable injury, whether constituted by pain or suffering, or pecuniary disadvantage, or both, which would found a successful serious injury application.[24]
[24]Nicolaou [2006] VSCA 143 (7 July 2006) [33].
(c) Principles relating to appellate interference
The principles relating to appellate interference in the context of an application for leave to commence common law proceedings under s 93(4)(d) of the Transport Accident Act 1986 also apply to an application under s 135A(4)(b) of the Act.[25]
[25]An appeal from a determination of the County Court under s 93(4)(d) of the Transport Accident Act 1986 is governed by s 74 of the County Court Act 1986 (‘County Court Act’). An appeal from a determination of the County Court under s 135A(4)(b) of the Act is also governed by s 74 of the County Court Act, because such a determination is not within the exclusive jurisdiction of the County Court: see Victorian Workcover Authority v CE Heath Underwriting & Insurance (Australia) Pty Ltd [1998] 2 VR 427, 432-3. See also Nicolaou [2006] VSCA 143 (7 July 2006) [50]-[51]; Rawlings [2010] VSCA 306 (18 November 2010) [5].
The basis upon which this Court will interfere in a judge’s finding that a person is suffering from a ‘serious injury’ within the meaning of s 93(17) of the Transport Accident Act was discussed at length in Mobilio v Balliotis.[26] The relevant principles were summarised as follows by Winneke P in Richards v Wylie:[27]
It is not in doubt that this court will not lightly interfere with a judge’s finding that an applicant is suffering from ‘a serious injury’ within the meaning of s 93(17). It is for the appellants to persuade us that the primary judge was wrong, and that is no easy task where the decision appealed against is one involving elements of fact, degree and value judgment … Furthermore, the court must be astute to have regard to the advantage which the primary judge had in assessing the respondent’s credibility and determining disputed issues of fact. As this court said in Mobilio v Balliotis … a judge’s finding that an applicant had suffered a ‘serious injury’ within the meaning of s 93 of the Act will only be disturbed if it is vitiated by specific error or can otherwise be shown to be plainly wrong.[28]
[26][1998] 3 VR 833, 835, 841, 854, 858, 860.
[27](2000) 1 VR 79.
[28](2000) 1 VR 79, 86 [15] (citations omitted); Spence v Gomez [2006] VSCA 48 (9 March 2006) [8].
(d) Principles for determining adequacy of reasons
It is well-established that judicial reasons for decision must sufficiently explain the basis for any findings that are made in reaching that decision. It has been said that the reasons must disclose ‘the route that led to the answer’, ‘how or why the conclusion was reached’, ‘the process of reasoning’ or ‘the path of reasoning’.[29]
[29]Transport Accident Commission v Kamel [2011] VSCA 110 (20 April 2011) (‘Kamel’) [70]; Church v Echuca Regional Health (2008) 20 VR 566, 584 [90] (‘Church’).
Thus, for example, in Franklin v Ubaldi Foods Pty Ltd,[30] Ashley JA, with whom Warren CJ and Nettle JA agreed, said:
Reasons must be such as reveal – although in a particular case it may be by necessary inference – the path of reasoning which leads to the ultimate conclusion. If reasons fail in that respect, they will not enable the losing party to know why the case was lost, they will tend to frustrate a right of appeal, and their inadequacy will in such circumstances constitute an error of law.[31]
[30][2005] VSCA 317 (21 December 2005). This case has been either cited or applied in numerous subsequent decisions. See, for example, Hesse Blind Roller Co Pty Ltd v Hamitoski [2006] VSCA 121 (8 June 2006) [19] (‘Hesse’).
[31][2005] VSCA 317 (21 December 2005) [38] (citation omitted).
Similarly, in Rodda v Transport Accident Commission,[32] Hargrave AJA, with whom Ashley and Dodds-Streeton JJA agreed, said:
… it is established that adequate reasons will provide an intelligible explanation of the process or path of reasoning which has led to the conclusion reached, and that a judge is required to consider and give adequate reasons in determining each of the substantial issues which have been raised for determination in the proceeding. 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.[33]
[32][2008] VSCA 276 (18 December 2008) [98].
[33][2008] VSCA 276 (18 December 2008) [98]. Similar observations were made by Hargrave AJA, with whom Ashley and Dodds-Streeton JJA agreed, in ACN 087 528 774 Pty Ltd v Chetcuti (2008) 21 VR 559, 566 [20].
Reasons for decision have to be read fairly and particular parts have to be read in the context of the reasons as a whole and the manner in which the parties conducted the trial.[34] Reasons can be adequate by a combination of what is expressly stated and the inferences that necessarily arise from what is expressly stated.[35]
[34]Shock Records Pty Ltd v Jones [2006] VSCA 180 (7 September 2006) [85]; Hesse [2006] VSCA 121 (8 June 2006) [3], [19]-[22]; Church (2008) 20 VR 566, 585 [91].
[35]Kamel [2011] VSCA 110 (20 April 2011) [86].
In general, the 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 insufficient to disclose a path of reasoning.[36]
[36]Hunter v Transport Accident Commission (2005) 43 MVR 130, 140 [28].
Grounds 1, 2 and 4: the trial judge applied the wrong legal principle
In essence, grounds of appeal 1, 2 and 4 allege that the trial judge applied the wrong test in determining whether Mr Snibson had satisfied s 135AC(b). ACN submitted that her Honour asked herself the wrong questions, namely, ‘what was the Plaintiff’s knowledge of the extent and probable duration of his incapacity arising from his neck injury as of 19 December 2005’ and when did he become ‘aware of the serious injury incapacity’. ACN contended that her Honour should have asked herself whether, prior to 22 December 2005, Mr Snibson had knowledge of facts which, when viewed objectively, constituted serious injury incapacity.
The trial judge’s reference to ‘as of 19 December 2005’, according to ACN, indicated that her Honour decided the question of Mr Snibson’s knowledge as at a particular date, rather than by reference to the period prior to 22 December 2005.
ACN also submitted that the trial judge failed to apply the correct test because her Honour gave determinative weight to evidence concerning ‘exacerbation’ and symptoms that had ‘re-flared’ in late 2005 or early 2006.
There is no substance to ACN’s submissions.
In para 105 of the trial judge’s reasons, her Honour referred to the explanation in Mahmoud of the two-step process under s 135AC(b). Her Honour described the first step as ‘the trial judge must identify what the injured worker in fact knew in relation to his injury at the relevant time’ and she described the second step as ‘whether those facts constituted knowledge of serious injury incapacity as explained in Humphries v Poljak’.[37]
[37]Reasons, [105].
Her Honour then quoted a passage from Smith[38] in which Beach AJA stated that ‘the fact that a worker does not know that his injuries constitute a serious injury is not relevant for the purposes of s 135AC’ and that what is relevant is ‘knowledge of facts which, when viewed objectively, constitute serious injury incapacity’.[39] Her Honour also referred to a similar statement by Redlich JA in Mahmoud.[40]
[38][2009] VSCA 200 (4 September 2009).
[39][2009] VSCA 200 (4 September 2009) [11].
[40](2007) 17 VR 144, 150 [28].
In para 134 of the trial judge’s reasons, her Honour considered the timing of Mr Snibson’s actual knowledge of ‘matters which, viewed objectively, constituted a serious injury incapacity in terms of pain and suffering or economic loss or both’.
In paras 78 to 83 of the trial judge’s reasons, her Honour summarised the principles in Humphries relating to the definition of serious injury incapacity.
In the light of the above, it cannot be seriously contended that the trial judge was not aware of the principles summarised at [72] to [75] above.
Although the trial judge stated that the issue was ‘what was the plaintiff’s knowledge of the extent and probable duration of his incapacity arising from his neck injury’, her Honour immediately went on to clarify that ‘[w]hat is relevant is his knowledge of facts which, when viewed objectively, constitutes serious injury incapacity’.[41] Her Honour’s subsequent reference to when Mr Snibson ‘became aware of the serious injury incapacity’[42] must be viewed in this context.
[41]Reasons, [108].
[42]Reasons, [121].
Moreover, the trial judge’s discussion of the evidence indicates that her Honour applied the correct test. Her Honour reviewed the radiological evidence and the medical practitioners’ opinions in the lead up to 22 December 2005 and analysed Mr Snibson’s contemporaneous statements about his knowledge up to that date as well as his oral evidence about that knowledge.
Although her Honour used the expression ‘as of 19 December 2005’, it is clear that she did not confine herself to the plaintiff’s knowledge as at that date or as at 22 December 2005. The context in which her Honour used that expression indicates that it was intended as a reference to the end point of the period that was relevant in relation to Mr Snibson’s knowledge. It is also readily apparent that the reference to 19 December 2005 was intended to be to 22 December 2005.
There is no merit in ACN’s submission that the trial judge erred in focusing upon the evidence concerning ‘exacerbation’ and symptoms that had ‘re-flared’ in late 2005 or early 2006. Her Honour considered the evidence concerning exacerbation of Mr Snibson’s condition and the re-flaring of his symptoms in late 2005 and early 2006, in the context of seeking to ascertain the time at which he had knowledge of facts which, when viewed objectively, constituted serious injury incapacity. Her Honour found that that time arose in early 2006 following the exacerbation of Mr Snibson’s condition and the re-flaring of his symptoms. Contrary to ACN’s submissions, her Honour’s consideration of the evidence relating to the exacerbation of Mr Snibson’s condition and the re-flaring of his symptoms did not divert her attention from a proper consideration of the evidence in the context of the two-step process set out in Mahmoud.
As the judge applied the correct legal principles and considered the evidence by reference to those principles, grounds 1, 2 and 4 are not made out.
Ground 3: the trial judge’s factual findings were not open on the evidence
Under cover of ground 3, ACN attacked the trial judge’s factual findings on the basis that they were internally inconsistent and were against the evidence and the weight of the evidence. Specific findings of the judge were dissected and compared for the purpose of establishing that they were not open on the evidence and could not be sustained having regard to other factual findings.
In particular, ACN submitted that it was not open to the trial judge to accept Mr Snibson’s evidence in re-examination that he had the capacity to work full time as a clinical optometrist until late 2005 if he chose to do so. This was said to be inconsistent with the evidence, which her Honour accepted, that in the period leading up to late 2005, Mr Snibson had reduced his work hours and was in constant pain.
ACN also impugned the trial judge’s finding that, up until February 2006, Mr Snibson was able to manage his symptoms with minimal conservative treatment.
ACN’s submissions must be rejected.
On the whole of the evidence before the trial judge, a conclusion that, prior to 22 December 2005, Mr Snibson was not aware of facts which, when viewed objectively, constituted serious injury incapacity, was not only open to her Honour, it was the only conclusion that could be reached.
The evidence that was adduced at the trial relating to the condition of Mr Snibson’s neck and shoulders prior to 22 December 2005 and his knowledge of facts relating to that condition have been summarised at [20] to [60] above. The general picture that emerges from that evidence is that Mr Snibson’s condition was, to his knowledge, chronic and getting worse but that, prior to 22 December 2005, it fluctuated in severity, was manageable with mild treatment and did not cause any severe disruption to his work or to activities of daily living.
Prior to 22 December 2005, Mr Snibson’s condition was being treated predominantly by physiotherapists and chiropractors rather than by medical practitioners. Mr Snibson’s general practitioners do not appear to have had an active role in his treatment. He occasionally attended an orthopaedic surgeon (Mr Doig) until February 2001 but did not see him again about his neck or shoulders until 2006. He also attended a neurosurgeon (Mr Dohrmann) once in May 2001 but did not see him again until 2006.
Prior to 22 December 2005, the treatment that Mr Snibson received from the chiropractors comprised largely mobilisation/manipulation and heat treatment. Dr Farquharson described the treatment that she provided as ‘low-force chiropractic treatment’. The trial judge was right to describe the treatment as ‘minimal conservative treatment’.
The 30 November 1999 MRI scan disclosed that Mr Snibson had a prolapse at the C5/6 level. This was the cause of some of his pain. The pain, however, was not severe enough to warrant surgery. Although surgery was discussed with Mr Doig and Mr Dohrmann in 2001, it was not recommended by either of them. Surgery did not become a serious option until 2006.
According to various medical reports, prior to 22 December 2005, Mr Snibson described his condition using expressions such as ‘still causing some troubles’, ‘still sore’ and ‘improving’. It is true that, in his fax to Dr Farquharson, Mr Snibson sought to paint a more serious picture. It must be borne in mind, however, that the fax was prepared on 23 February 2006 for the purpose of obtaining a report from Dr Farquharson in support of a WorkCover claim. In any event, in the fax, Mr Snibson used expressions such as ‘moderate levels of discomfort that quickly built up with intense work or reduced treatment’, ‘fluctuating neck pain’ and ‘manageable’.
Mr Snibson’s medical practitioners evidently did not see the need for an MRI scan between 30 November 1999 and 22 December 2005, as one was not taken until 7 February 2006. The MRI scan taken then disclosed a prolapse at the C6/7 level. It is clear from the evidence that it was this prolapse that had caused a significant increase in Mr Snibson’s pain levels in the previous few weeks. The 7 February 2006 MRI scan supports Mr Snibson’s evidence that, prior to 22 December 2005, he was not aware of facts which, when viewed objectively, constituted serious injury incapacity.
The evidence, such as it was, about the medication that Mr Snibson was prescribed for his neck and shoulders prior to 22 December 2005 indicates that, from time to time, he used anti-inflammatories, steroids, analgesics and sleeping pills. This supports the trial judge’s finding that Mr Snibson received ‘minimal conservative treatment’.
In 2003, Mr Snibson ceased full time employment and commenced working as a casual employee and locum in order to undertake a psychology honours course. Until 2005, his hours of work varied, but they were generally less than they were when he worked as a full time employee. These changes came about for a variety of reasons, including the pain that Mr Snibson was experiencing.
The evidence about the hours that Mr Snibson worked from 2003 until 2005 was not entirely clear. In the April 2006 document, Mr Snibson stated that the hours ‘fell to average around high 20’s’. In the same document, however, he stated that, by 2005, he worked two days at Strachan Eyecare, one short day elsewhere and between one and three days at OPSM. This means that, in 2005, he worked between four and six days per week.
It appears from Mr Snibson’s evidence that, in the period from 2003 until 2005, he adjusted his work hours to accommodate study commitments, pain levels and other factors. When he needed to do so, he worked the same number of hours as a full time employee and sometimes worked a six day week. In these circumstances, the trial judge was entitled to accept Mr Snibson’s evidence that he had the capacity to work full time as an optometrist until late 2005 if he had chosen to do so.
In this regard, I note that no medical practitioner or health professional advised Mr Snibson prior to 22 December 2005 that he was not fit to work full time as an optometrist. Such advice was not provided until February 2006.
I also note that, according to Mr Snibson’s tax returns, for the period from 1 July 1998 until 30 June 2005, he continued to derive a high level of income from his work as an optometrist. The reduced income for the financial year ending 30 June 2004 was due to Mr Snibson’s conversion to casual employment in order to accommodate his study commitments.
The above overview of the evidence overwhelmingly supports the trial judge’s findings set out at [63] above. Any apparent inconsistency in those findings dissipates when the findings are read in context and in the light of the evidence.
It follows from the above that ground 3 must fail.
Ground 5: the trial judge’s reasons are not adequate
Under cover of ground 5, ACN submitted that the trial judge’s reasons did not adequately set out the path of reasoning by which her Honour concluded that Mr Snibson did not become aware until after 22 December 2005 of facts which, when viewed objectively, constituted serious injury incapacity.
It may be accepted that the trial judge’s reasons in relation to s 135AC(b) are brief and, to a certain extent, conclusionary. However, as the authorities make clear, the reasons must be looked at as a whole. The issues before the trial judge were not confined to the time at which Mr Snibson became aware of facts which, when viewed objectively, constituted a serious injury incapacity. The issues included whether Mr Snibson’s injury was sustained in the course of his employment and whether it was a serious injury. The evidence adduced at trial was relevant to all of these issues and was considered as a whole by her Honour without repeating it in full when she considered each of the issues in turn.
The trial judge correctly identified the applicable legal principles and considered the evidence by reference to those principles. She then analysed the evidence and explained her conclusion in relation to the s 135AC(b) issue by reference to that analysis. Her Honour’s path of reasoning is readily apparent from her reasons.
Accordingly, ground 5 must be rejected.
For completeness, I note that, even if the trial judge’s reasons had been inadequate, I would have dismissed the appeal. This is because, on the basis of my analysis of the evidence adduced at trial, the only conclusion that was open to her Honour was that the facts known to Mr Snibson prior to 22 December 2005, when viewed objectively, did not constitute serious injury incapacity.
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