Bedeux v Transport Accident Commission
[2016] VSCA 127
•6 June 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0017
| GUILBERT BEDEUX | Applicant |
| V | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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| JUDGES: | FERGUSON, KAYE and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 May 2016 |
| DATE OF JUDGMENT: | 6 June 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 127 |
| JUDGMENT APPEALED FROM: | Bedeux v Transport Accident Commission [2015] VCC 1875 (Judge O’Neill) |
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ACCIDENT COMPENSATION – Appeal from unsuccessful application made under s 93(4)(b) of the Transport Accident Act 1986 – Judge finding that applicant failed to prove that injury, claimed to be serious, was a result of a transport accident – Whether finding correct – Whether judge erred in discounting reliability of witnesses for applicant – Whether reasons of judge adequate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A G Uren QC and Mr A D Ingram | Arnold Thomas & Becker |
| For the Respondent | Mr S O’Meara QC and Mr S Martin | Solicitor to the Transport Accident Commission |
FERGUSON JA:
I agree with Kaye JA, for the reasons that his Honour gives, that leave to appeal should be allowed, but the appeal should be dismissed.
KAYE JA:
The applicant seeks leave to appeal from an order of a judge of the County Court dated 17 December 2015. By that order, the judge refused the application by the applicant, pursuant to s 93(4)(b) of the Transport Accident Act 1986 (‘the Act’), for leave to bring proceedings in respect of injury arising out of a transport accident which occurred on 8 December 2004.
On that day, the applicant, in the course of his employment with Australia Post, was riding his motor cycle at the intersection of Charman Road and Alfred Street, East Cheltenham, when a motor vehicle turned right into his line of travel, causing him to lose control of the motor cycle on a wet road surface and to fall to the ground.
The applicant claimed that, as a result of that accident, he suffered a number of injuries. In particular, at trial, the applicant relied upon the following injuries as serious injuries:
(a) An injury to his left knee caused by the accident on 8 December 2004;
(b) An injury to the right lower limb and right knee, as a consequence of the injury from the left knee, resulting from over-reliance on the right lower limb, and from an inappropriate return to work;
(c) Injury to the left upper limb, including the left shoulder, and to the right upper limb, including the right elbow and right shoulder, each as consequential injuries resulting from the use of crutches following lower limb surgery;
(d) Spinal injury involving a whole spinal assessment in accordance with TAC v Zepic;[1]
(e) A mental disorder arising independently of the physical injuries, and related to the transport accident.
[1][2013] VSCA 232.
The trial judge concluded that the applicant probably suffered a physical injury in the form of a soft tissue injury to the left knee as a result of the transport accident of 8 December 2004, but that that injury had either resolved, or had little ongoing impact on the applicant, by the time that the applicant was involved in a subsequent accident in March 2005. The judge also concluded that there was not sufficient evidence to attribute the applicant’s spinal condition to the transport accident, and that any injury which was suffered to the lumbar or cervical spine was no more than transitory. In addition, the judge was not satisfied that the applicant’s psychological symptoms were related to the accident, or that they could be characterised as ‘severe’ as required by s 93(17) of the Act.
The principal focus of the application for leave, and the grounds upon which the applicant seeks leave to appeal, is upon the judge’s findings relating to the applicant’s left knee injury.
The facts
The applicant was born in May 1963 in Mauritius. He migrated to Australia in 1988. He was initially employed as a storeman by the Ministry of Education for a period of two years, and, subsequently, as an administrative officer for the State Revenue Office for a period of 11 years. He then commenced employment with Australia Post on 9 February 2004 as a mail sorter and postman.
On 6 March 2000, an x-ray taken of the applicant’s left knee disclosed no abnormality. The applicant was unable to recall the reason why that examination was performed. On 19 March 2004, he was involved in a transport accident, but he believed that he did not suffer any ongoing injuries as a consequence. Subsequently, in about September 2004, he suffered some left knee pain working as a postal driver for Australia Post. There was also a suggestion in the evidence of left knee pain sustained by the applicant in September 2004, when he fell off his Australia Post motor cycle after being startled by a barking dog. The judge was satisfied that, prior to the transport accident of 8 December 2004, the applicant was not suffering from any left knee condition of any significance.
As I stated, the transport accident of 8 December 2004 occurred when a motor vehicle veered into the applicant’s line of travel, causing him to lose control of his motor cycle and fall to the ground. In his affidavits, the applicant deposed that he fell off his motor cycle onto his left side. He also stated that he first hit the ground with his left knee. In cross-examination, he stated that he fell off the bike onto his right hand side, and he could not remember what part of his body hit the ground. In re-examination, he stated that his left side hit the ground and then he rolled onto his right side. He also stated that he first hit the ground with his left knee. The trial judge considered that the evidence did not permit him to draw any clear conclusion as to what part of the applicant’s body hit the road first and what part was injured.
After the accident the applicant picked up his motor cycle and completed his deliveries. On returning to work, he reported the incident to his employer. On the following day, the applicant saw a general practitioner, Dr Molloy, at the request of his employer. In his notes, Dr Molloy recorded that the applicant had right lower back pain, upper outer buttock (pain), and ‘some mild pain L (left) knee’.
On the same day, the applicant also consulted his general practitioner, Dr Sala Grokop. In a report to Australia Post Human Resources Department in August 2005, Dr Grokop stated that the applicant’s predominant concern was his right buttock injury, but that he also reported minor soreness of his left knee and left elbow. In a later clinical note dated 30 December 2004, Dr Grokop also referred to the applicant reporting lateral left knee pain.
The applicant was reviewed by Dr Molloy on 14 December and 21 December 2004. On each occasion, Dr Molloy did not record any complaint in respect of the applicant’s left knee. Rather, the applicant complained on each visit of pain and bruising to the buttock. Dr Molloy noted that the applicant had made good progress, that he had coped with his work of sorting mail, and that he suffered most pain when sitting. On 21 December, Dr Molloy noted that the applicant’s pain continued to improve, that he was working up to four hours per day on a round, and that full hours consisted of four to five hours on the motor bike. On examination, the applicant had a normal gait and he was no longer limping. Dr Molloy certified the applicant to be fit for a return to work on full duties.
On about 29 December 2004, the applicant returned to full duties with Australia Post. Subsequently, he was involved in a further incident on 3 March 2005. On that occasion, his trouser leg became caught on the kick start lever of his Australia Post motor cycle as he was dismounting, as a result of which he fell to the ground and struck his left knee. He was then placed on light duties for a period of two weeks. In his evidence he stated that after the fall on 3 March 2005, his left knee hurt, but it was not the ‘big major thing, you know it’s aching …’. He stated that after being on light duties for two weeks, his pain returned to the level that he had been experiencing as a result of the transport accident on 8 December 2004. The incident report, relevant to that accident, referred to ‘recurrence of previous injury to L knee — soreness and swelling’.
On 18 May 2005, the applicant underwent an x-ray and ultrasound of the left knee. The x-ray showed a normal knee joint, while the ultrasound reported:
There is an effusion in the supra patellar bursa. Prominent lateral meniscus could indicate pathology in this region.
On 23 May 2005, the applicant completed a claim for rehabilitation and compensation, which he submitted to Australia Post, for ‘left lateral meniscus injury’ arising out of the transport accident. That claim was ultimately accepted by Australia Post on 26 August 2005.
In the meantime, the applicant was examined by Mr Ian Jones, an orthopaedic surgeon, on 28 July 2005. In his report to Australia Post, Mr Jones stated that he could not exclude that one or other of the transport accident of 8 December 2004 and the work accident on 3 March 2005 had been causative of the applicant’s left knee symptoms, and he could not exclude the possibility that the meniscal tear suggested on the MRI was a result of a work injury. He stated that either of the two accidents might have caused or aggravated some degeneration of the applicant’s medial meniscus. Mr Jones did not consider that the osteoarthritic changes, disclosed on the MRI scan, had been caused by the applicant’s work or by the two incidents.
In the meantime, the applicant had been referred by Dr Grokop to Mr Joseph Robin, an orthopaedic surgeon. Mr Robin first saw the applicant on 27 May 2005. An MRI scan performed three days later demonstrated a small joint effusion associated with mild to moderate degenerative change in the medial compartment and some extrusion of the medial meniscus body, but without any obvious tear. When reviewed on 3 June, the applicant stated that his pain had become much worse. As a result, Mr Robin advised that he undergo an arthroscopy, which was performed at Masada Hospital on 1 September 2005.
After that procedure, the applicant continued to complain of pain in his left knee, and he used crutches to maintain his mobility. Mr Robin recommended that he try to use only one crutch.
On 29 September, Mr Robin certified the applicant fit to return to work on modified duties. However, it would appear that on his return to work, the applicant was placed on duties that required him to place nearly all his weight on his right knee to protect his left knee. As a result, the applicant’s right knee became swollen. Following an MRI scan that was conducted on 20 October, Mr Robin recommended that the applicant undergo surgical treatment of his right knee. The applicant submitted a claim for compensation to Australia Post for that injury, which was duly accepted by the employer.
On 15 December 2005, Mr Robin performed an arthroscopy on the applicant’s right knee. The applicant returned to using crutches, as a result of which he began to develop symptoms in his right elbow. In February 2006, Dr Turnbull, a general practitioner, reported to Australia Post that the applicant’s right elbow condition was not related to his employment. The applicant submitted a claim to Australia Post for compensation in respect of that injury. He was seen by Mr Mander, an orthopaedic surgeon, who disagreed with Dr Turnbull’s opinion, and considered that the applicant had developed bilateral lateral epicondylitis and right ulnar neuritis as a result of using the crutches. Australia Post accordingly accepted liability for the claim.
On 5 May 2006, an MRI scan of the applicant’s left shoulder demonstrated a superior labral tear extending posteriorly to involve almost the entire posterior labrum, together with mild tendinosis of the supraspinatus. On 4 December 2006, the applicant received an ultrasound guided injection into his left shoulder.
In August 2007, Dr Grokop organised for the applicant to undergo an MRI scan of the cervical spine, which reported multilevel degenerative disc disease. Dr Grokop then referred him to another orthopaedic surgeon, Mr Warwick Wright, who advised that surgery to the applicant’s left shoulder and right elbow would probably result in aggravation of his symptoms, as he was suffering from a chronic pain syndrome. The applicant was then referred to another orthopaedic surgeon, Mr Douglas Li, who also advised against surgery, and recommended non-operative treatment in the form of analgesia, anti-inflammatories and an ultra sound-guided steroid injection to the left glenohumeral joint.
On 20 May 2010, an arthroscopy was performed on the applicant’s left shoulder. On 20 October 2010, a further arthroscopic procedure was undertaken on the right knee. The right shoulder was subsequently subject to an arthroscopy on 2 May 2011. On 30 September 2011, Mr Maoveni, an orthopaedic surgeon, performed an open procedure on the right elbow involving ulnar nerve release.
Subsequently, the applicant again attended on Mr Maoveni in late 2012, reporting pain radiating from his neck. He then underwent a right shoulder dilatation on 29 November 2012, but that procedure did not produce any reduction in the applicant’s shoulder pain.
The applicant was then seen as a public patient by Mr Chia, an orthopaedic surgeon. He was placed on a waiting list for a total right knee replacement. However, subsequently, Mr Chia cancelled the procedure because of his concerns about the disparity between the degree of degenerative change, the applicant’s age and the severity of the pain he experienced. Mr Chia was concerned that the applicant’s pain might persist notwithstanding a successfully performed total knee replacement.
In addition, the applicant claimed that he had suffered from cervical spine pain since the time of the transport accident in December 2004, which subsequently deteriorated. That condition was the subject of a number of MRI scans, initially in May 2006, and subsequently in August 2007, October 2008, April 2012 and October 2012, together with a CT scan on 16 May 2013. Mr Wright diagnosed that the applicant suffered from a severe chronic pain syndrome.
The evidence
The applicant made three affidavits, and he was cross-examined on them at the trial. He also relied on affidavits of his former wife, Anick Basset, and a former work mate, Clinton Abraham. In addition, each party relied on a large number of medical reports, and other materials. I shall only summarise the aspects of the evidence that are relevant to the matters raised on the appeal.
In his first affidavit, the applicant stated that he landed on his left side when he fell off his motor bike in the transport accident. He returned to work shortly after the accident. During his return to work, he took intermittent time off when he was experiencing increased pain from his transport accident injuries, and also for treatment in respect of them. In about October 2005, he developed right knee pain as a result of his increased reliance on his right knee following surgery on the left knee in September. Subsequently, he developed pain in his right shoulder and elbow, and in his left shoulder and elbow, due to his reliance on crutches for mobility.
In his second affidavit, the applicant stated that on or around 3 March 2005 he suffered a fall in the course of his employment which caused increased pain in the left knee. He said he was placed on light duties for a couple of weeks, following which his pain settled and returned to the previous level of pain that he had been experiencing as a result of the transport accident of December 2004.
In his third affidavit, the applicant provided further details concerning the transport accident, and the consequences of it. He stated that after he fell from the motor bike and landed on the left hand side of his body, he slid for approximately six or seven metres. He was able to pick up the motor bike and complete deliveries for that day. When he returned to his work place, he reported that he had been involved in the accident, because he was in a lot of pain, especially in his left knee. As a result of that pain, he was unable to ride the motor bike, and he worked in the mail room sorting mail. However, he wished to return to his duties as a postman. Accordingly, he resumed riding the motor bike and doing deliveries. In doing so, he found he could get into difficulties through rather minor occurrences. On 3 March 2005, he fell directly onto his left knee as he was stepping off the motor bike, when his right trouser leg became caught on the kick start lever of the motor bike. Although he immediately experienced increased pain in his left knee after that accident, his pain level quickly returned to the same level that he had felt before it. Subsequently, the pain in his left knee deteriorated, and he underwent an arthroscopic operation on the left knee on 1 September 2005.
In cross-examination, the applicant agreed that when he came off the motor bike in the transport accident, he landed on his backside. He said he lost his balance on the left and turned onto his right side. He could not remember which part of his body first hit the ground. He agreed that he was placed on light duties until 29 December 2004, when he then returned to full time normal duties riding his bike. However, he said that he struggled with those duties after his accident. He could not recall complaining of any problem with his left knee after his return to full duties, and before the further incident on 3 March 2005. He said that in the incident that occurred on that day, the motor bike hit his left leg. Although he suffered an injury to his left knee on that day, it was not a ‘major thing’; it was ‘aching’. He said that he got ‘a little bit of pain’ and then it returned to how it had been before that incident.
In re-examination, the applicant stated that when he went to see Dr Molloy on 9 December 2004, he complained about pain in the left knee. He said that when he fell from the bike, he hit his left hand side first and then turned to the right. He said that he first hit the ground with his left knee. After the motor bike accident on 8 December 2004, he could not recall going back onto full time duties. He felt that the incident that had the major effect on his knee was the transport accident on 8 December 2004, rather than the incident on 3 March 2005.
In her affidavit, Ms Basset stated that she could recall the applicant being involved in the transport accident on or around 8 December 2004. Before that accident, she did not recall him having any problems with his knees, shoulders or neck that caused any significant difficulty with his daily living. She first became aware of the applicant’s transport injuries on the date of the accident, shortly after it occurred. The applicant came home and told her that he had had a bike accident because it was raining, and a vehicle came out of a road and cut in front of him. According to Ms Basset, the applicant told her that he fell on his left hand side. She said that a few days later he complained about a pain in his left knee, and he discovered a lump that had appeared. He went to the work doctor as well as his usual general practitioner, as he was by then in a great deal of pain. Ms Basset then described the progression of the applicant’s injuries, and disabilities.
Mr Abraham, in his affidavit, stated that he recalled the applicant being involved in a transport accident on or around 8 December 2004. The applicant told him that he fell from his motor bike while he was doing postal deliveries, injuring his neck, shoulders and knees. Mr Abraham stated that the applicant returned to work after the accident, but he struggled with duties such as deliveries and standing to sort mail, because of the constant use of his knees and shoulders. Mr Abraham did not recall the applicant having any significant problems with his knees, shoulders or neck before the accident.
In a report dated 24 August 2005, Dr Grokop stated that the applicant suffered an extrusion of the left knee medial meniscus, based on the opinion of Mr Robin. He considered that the injury was caused by the two incidents of 8 December 2004 and 3 March 2005. In a subsequent report dated 9 August 2013, Dr Grokop expressed the view that the applicant had suffered damage to articular cartilage. He said that the left knee had been injured in the motor cycle accident of December 2004, and was re-injured in March 2005. He also expressed the view that the applicant had suffered damage to the articular cartilage of the right knee caused by favouring that leg after the left knee injury.
In cross-examination, Dr Grokop agreed that his note, that he took on 9 December 2004, did not contain any mention of an injury to the left knee. Dr Grokop also agreed that his note meant that he was told by the applicant that he fell off his bike onto his right buttock. At the subsequent consultation on 30 December 2014, the applicant told Dr Grokop that he fell off the bike onto his left elbow, right buttock and left knee. Dr Grokop did not have any recollection of the applicant suffering any injury to his left knee at the first consultation.
Dr Grokop agreed that it would be difficult for him to say that any problems that the applicant now has, or that he had in the last eleven years, with the left knee related to the December 2004 accident. He agreed that the fact that there was no notation of any such injury in his notes on 9 December or 30 December 2004 meant that there was no sign of a significant injury to the left knee on either consultation. After counsel read to him Dr Molloy’s notes, Dr Grokop said that it would be extremely difficult, but possible, to say that the left knee problem now suffered by the applicant related to the motor bike accident. He said that it was highly unlikely. He agreed that in a letter dated 3 October 2015, he had said that he was ‘unable to give an attribution or causation to his varied symptoms’ (including the degenerative disorder of his knees).
In re-examination, Dr Grokop agreed that if, in the December 2004 accident, the applicant’s left knee first struck the ground, then that was capable of causing injury on that date. He said that his notes recorded that the applicant fell off the bike onto his left elbow, right buttock and lateral left knee. He agreed that the applicant had no previous history of left knee injury. When asked his opinion on the issue of causation on the balance of probabilities, he responded that ‘there is a possibility’ that a left knee injury had occurred on that day. When further pressed by counsel on that issue, he said:
On the balance of probabilities, there is a distinct probability that he injured his left knee on that day.
When further questioned, Dr Grokop said that there is a ‘very fine difference’ between ‘possible and probable’. In answer to a question on that issue by the judge, he said that he could not answer the question whether it was possible or probable that the injury resulted from the accident of 8 December. When further pressed on the matter by counsel for the applicant (in re-examination), Dr Grokop agreed that the applicant did not have any other relevant history of any traumatic injury to the left knee. He said however:
On the balance of probabilities, is it probable, possible, … no I’d have to stick to my original testimony that it was possible that there was an injury to the left knee on that date.
When further pressed by counsel for the applicant, he agreed that his letter to the applicant’s solicitors dated 9 August 2013 implied that it was probable that the left knee was injured in the motor cycle accident of 8 December 2004. He agreed that he still adhered to that opinion.
Mr Robin first saw the applicant on 27 May 2005. In a report dated 1 March 2006, Mr Robin stated that the applicant told him that in December 2004 he had fallen off his bike while at work delivering mail, that he had developed discomfort and a cracking feeling in his left knee at the time, and that he subsequently suffered a repeat injury in 2005, while at work, which made that pain worse. Mr Robin expressed the view that the applicant had suffered two injuries to the left knee in December 2004 and March 2005, which resulted in chondral injuries to the left medial femoral condyle and patella-femoral compartment.
In a subsequent report dated December 2006, Mr Robin expressed a different view, namely, that the applicant’s work, that involved him using the motor bike, was the main cause of his left knee injury, which was subsequently aggravated and compounded by the fall from the bike in December 2004. Finally, in a third report dated 5 June 2015, Mr Robin expressed the view that the applicant’s left knee condition was almost entirely due to the injury sustained at work in December 2004, probably with a twisting or direct impact to the patella-femoral region. He considered that the applicant’s right knee condition may have been caused in part by the same accident in December 2004, but it was more probable that it was aggravated by the need for the applicant to shift his weight to the right knee while suffering from surgery to the left knee.
Mr Kenneth Brearley, a general surgeon, examined the applicant on 30 May 2012. The applicant told him that in the transport accident on 8 December 2004, he fell from his bike onto his knees, particularly the left knee, and skidded several metres along the road. He described how over the next month or so a lump appeared on the left knee. The applicant did not describe to Mr Brearley the subsequent incident of 3 March 2005. Mr Brearley expressed the view that the applicant had suffered an internal derangement of the joint of each knee, and in addition he probably had some tearing of the menisci on the left knee. He considered that all of the applicant’s injuries were the result of the transport accident of 8 December 2004.
In a subsequent report dated 1 July 2013, Mr Brearley noted that he had been provided with the applicant’s second affidavit. As I stated, in that affidavit, the applicant did refer to the incident that occurred on 3 March 2005. In his report, Mr Brearley stated that he considered that the transport accident was responsible for 90 per cent of the applicant’s current left knee symptoms, and that 10 per cent of them would be due to the fall of March 2005. He agreed with the proposition that, on the balance of probabilities, the applicant’s left knee injury would not be ‘in the symptomatic and incapacitating state it is presently in’ but for the transport accident of 8 December 2004.
Mr Douglas Gardiner, an orthopaedic surgeon, examined the applicant in July 2015. Mr Gardiner said that the applicant told him that one hour after the transport accident of 8 December 2004, he experienced pain in his left knee radiating down his left leg. The applicant did not tell him of the incident that occurred in March 2005, but Mr Gardiner noted that that incident was referred to in documents sent to him by the applicant’s solicitors. Mr Gardiner considered that the applicant suffered osteoarthritis of the left knee, and that he had a documented traumatic incident of the left knee with arthroscopic findings consistent with meniscal pathology and disruption of the articular surface of the medial compartment and patella-femoral joint. He expressed the view that the applicant had, before the accident, mild pre-existing degenerative changes that were aggravated by the significant trauma of the motor bike accident. He considered that that incident was a ‘significant cause’ of the applicant’s current left knee condition.
Professor Kenneth Myers examined the applicant on 14 March 2012. The applicant told Professor Myers that as a result of the accident on 8 December 2004 he landed initially on his left side and then on his right side. He told Professor Myers that he injured both legs, both arms and his spine as a result of that accident. The applicant does not appear to have told Professor Myers of the subsequent incident in March 2005. Mr Myers expressed the view that the applicant had sustained an aggravation of pre-existing degenerative arthritis of both knees, which was a result of the accident.
Professor Myers re-examined the applicant on 19 June 2013. Professor Myers had been provided with the applicant’s second affidavit for the purpose of that examination. The applicant indicated to Professor Myers that all his symptoms had been severe and disabling since the transport accident of December 2004. Professor Myers was asked by the applicant’s solicitors to apportion the applicant’s symptoms between the transport accident of 8 December 2004 and the subsequent fall of March 2005. Professor Myers considered that all of the applicant’s present disability in the right knee and the left knee related to the transport accident of 8 December 2004, with minimal contribution from previous or subsequent injuries.
Associate Professor Bruce Love examined the applicant on 21 July 2015. The applicant told Professor Love that his initial injuries, as a result of the 8 December 2004 incident, consisted of pain in the left knee and right buttock, but that he had subsequently developed symptoms in the right knee and right elbow. Professor Love considered that the applicant had developed osteoarthritis of both knees, and that it was reasonable to accept that the motor cycle accident had started a chain of events that led to that condition. He considered it was probable that both knees suffered meniscal tears at the time of the original injury, and that the subsequent surgery and progress of the condition had resulted in the osteoarthritic process advancing.
The applicant was examined by Mr Jeff Mander, a consultant orthopaedic surgeon, on 10 March 2006. On that consultation, the applicant told Mr Mander that when he fell from the motor bike in the transport accident of December 2004, he fell heavily onto his left side. He said that he developed pain down the left side of his leg. Mr Mander considered that the applicant had degenerative changes within the medial femoral condyle, and fraying tendon of the left knee. He considered that those conditions may well have been pre-existing, but that they were aggravated by the transport accident.
The applicant was examined by Mr Ian Jones, orthopaedic surgeon, on behalf of his employer, on 28 July 2005. In his report, Mr Jones stated that the applicant stated that he suffered an injury to his left knee on 8 December 2004, when he fell from the bike onto his left side. The applicant told him that he was able to get up and complete his round, although he noticed some soreness in the left knee after a couple of hours. The applicant also told Mr Jones that in March 2005 he had a fall from his motor bike, when the cuff of his trousers became caught on the pedal on the right hand side while he was alighting from the bike. The applicant told Mr Jones that he fell over injuring his left knee. Mr Jones noted that the applicant also reported increased symptoms of pain and a cracking sensation in the left knee in April 2005. Mr Jones considered that the applicant’s x-rays suggested some early medial compartment osteoarthritis and probably a tear of his medial meniscus. He could not exclude that one of the three incidents described, on 8 December 2004, March 2005 and April 2005, may have caused some of his current knee problems. However, he did not consider that the osteoarthritic change, evident on the MRI scan, had been caused by his work in general or by those three incidents. Mr Jones could not exclude the possibility that the meniscal tear, suggested on the MRI, was ‘a result of a work injury’. He said that incidents causing meniscal tears are usually those involving some twisting injury to the joint, and thus either of the incidents of 8 December 2004, or March 2005 might have caused, or aggravated, some degeneration of the medial meniscus, resulting in, or aggravating, a tear of that structure.
Mr Michael Shannon, an orthopaedic surgeon, examined the applicant on 28 August 2012 on behalf of the respondent. The applicant told Mr Shannon that as a result of the transport accident of December 2004, he fell off his bike and landed on his left side, and then rolled. He saw the employer’s doctor, complaining of pain in the knee, low back and neck, and he said that he had pain everywhere. Four weeks after the incident, he had a big lump on the front of his left knee and he was referred to an orthopaedic surgeon. Mr Shannon was provided with the reports of the radiology and other information. He noted that, contrary to the history given to him by the applicant, he was in fact back at work doing half his normal round on 14 December 2004, and on 21 December 2004 he had mild pain that was improving. Mr Shannon noted a letter from the treating general practitioner indicating a further fall from the bike in March 2005.
Mr Shannon noted that the claim made by the applicant was complex. He considered that there was no evidence in the general practitioner’s notes, or in the history, that he had significant symptoms as a result of the transport accident, other than some bruising to the buttock and a soft tissue injury to the left knee. The situation was complicated by the development apparently of a gross functional overlay. Mr Shannon noted that the radiological and arthroscopic information suggested that the applicant had significant pre-existing degenerative changes in both his knees. He considered that the osteoarthritic changes of the left knee could have been aggravated by the accident, but it would appear that the symptoms and signs in that knee were quite modest, as he had been able to resume riding his motor cycle within one week of the accident. Mr Shannon therefore considered that it was reasonable to accept that the applicant had sustained a soft tissue injury to the left knee and a soft tissue injury to the buttock in the accident, which could have aggravated degenerative change in the lumbar spine. Mr Shannon considered that the applicant had a significant impairment of the function of the left knee, but that that impairment related to pre-existing and previously symptomatic degenerative changes in the knee. The transport accident might have contributed to the degenerative changes in the knee, but the arthroscopic and MRI scan findings suggested significant pre-existing degenerative change.
Finally, the applicant was examined by Mr Michael Dooley, on behalf of the respondent, on 3 August 2015. Mr Dooley noted that the applicant stated that after the accident on 8 December 2004, he noted pain in the buttocks and in the left knee. The applicant told him that about three weeks later his left knee became very painful, and in early January 2005 he noted a lump around the knee. Mr Dooley considered that the transport accident had caused a soft tissue injury to the applicant’s left knee and to the lumbar spine. The applicant had naturally occurring degenerative osteoarthritis of the left knee that was evolving in time. The partial medial meniscectomy that he had undergone might also have contributed to that development.
The trial judge’s findings and reasons
The trial judge commenced his reasons by noting that the application was complicated, as it involved an array of body functions, a number of which had been symptomatic before the transport accident in December 2004. It was more complicated because all of the injuries, except the original injury to the left knee and spine, were claimed to have arisen as a consequence of treatment for the left knee injury. The judge noted that, taken together, the consequences of the applicant’s various conditions met the ‘very considerable’ test postulated in Humphreys v Poljak.[2] However, it was more difficult to determine which of the consequences related to which injuries, and which related to the transport accident.
[2][1992] 2 VR 129, 140.
The judge then considered, in substantial detail, the opinions of the medical practitioners to which I have referred, together with the reports of some of the other medical practitioners. He was satisfied that before the transport accident the applicant was not suffering from any left knee condition of any significance. Nevertheless, he concluded that the applicant had a significant underlying degenerative condition in both knees at the time of the accident. His Honour accepted the view of Mr Shannon that those changes predated the transport accident. The judge noted that therefore the critical question was the extent to which those changes were aggravated and made symptomatic by the transport accident.
In that respect, the judge observed that it was difficult to be precise about the nature and extent of any injury to the left knee resulting from the transport accident. Many of the consultant practitioners, who had examined the applicant, saw him many years after the event. His Honour stated:
With the complexity of the onset of symptoms, the multiple transport accidents and the pre-existing history, the reports of those practitioners do not provide very much assistance. Further, many practitioners have received inaccurate histories of precisely the injuries Mr Bedeux suffered in the transport accident.[3]
[3]Reasons [138].
The judge then proceeded to make specific findings concerning the medical evidence relating to the question of what injury the applicant suffered to his left knee as a result of the transport accident. His Honour stated:
[140]I found the reports of Mr Robin of limited assistance beyond setting out in detail Mr Bedeux’s treatment. He did not differentiate between the symptoms which arose in the transport accident with those which arose in the March accident except that Mr Bedeux suffered worsening pain after the March accident. As to causation, Mr Robin, in a December 2006 report, attributed Mr Bedeux’s knee condition to the use of a motor cycle at work and the transport accident without mentioning the March accident. In a 2015 report he ‘almost entirely’ attributed causation for Mr Bedeux’s left knee condition to the transport accident, again without commenting on the role of the March accident. I consider Mr Robin’s somewhat shifting views on causation an attempt to support a long suffering patient. I also query the reliability of Mr Robin’s 2015 report when he hadn’t seen Mr Bedeux in five years.
[141]I am unable to discern exactly what injury Dr Grokop thought Mr Bedeux suffered in the transport accident. In viva voce evidence, Dr Grokop expressed the view it was possible and not probable that Mr Bedeux suffered an injury to his left knee that day. In his reports, Dr Grokop did not distinguish in any meaningful way the transport accident and March 2005 accident. Overall I did not find Dr Grokop’s evidence of any great assistance.
[142]I reject the opinions of Mr Brearley. I reject what he said in his first report of 30 May 2012 on the basis that it does not appear that he was made aware of the March 2005 accident. I reject what he said on his subsequent report, which specifically does refer to the March accident, but does not disclose the reasons behind the apportionment of left and right knee conditions between the transport accident and March accident. I struggle to comprehend Mr Brearley’s attribution of 10% of the right knee condition to the March 2005 accident when that knee did not sustain any trauma at that time.
[143]I give little weight to the reports of Associate Professor Love and Mr Dooley insofar as they relate to Mr Bedeux’s left knee on the basis that it is unclear whether they were informed of the March 2005 accident. Similarly I am cautious of Mr Gardiner’s opinion as he does not, in my view, give any real consideration to the March 2005 accident.
[144]I am assisted by the reports of Mr Jones and Mr Shannon. Mr Jones saw him in mid-2005 and obtained a history that Mr Bedeux developed a limp after the March accident and increased symptoms of pain and a cracking sensation with swelling in April 2005. That history demonstrates worsening symptoms which appear to flow from the March accident. I accept Mr Shannon’s view that there is limited evidence that Mr Bedeux had significant symptoms as a result of the transport accident as this accords with Dr Molloy’s and Dr Grokop’s notes.
[145]Medico-legal opinions aside, my determination rests largely upon the objective evidence that existed around the time of the transport accident. After the transport accident Mr Bedeux consulted with Drs Molloy and Grokop both of whom examined Mr Bedeux’s left knee and found no abnormality. Mr Bedeux was certified fit for light duties by Dr Molloy until 21 December 2004. The certificates appeared to have been given by Dr Molloy because of a buttock injury and not a left knee injury. Mr Bedeux resumed working full duties on about 29 December 2004. According to Dr Grokop’s notes Mr Bedeux’s first complaint of knee pain was made to him on 30 December 2004. The treatment flowing from that consultation concerned only a cortisone injection to the left elbow which occurred on the following day. There is no evidence that Mr Bedeux complained about his left knee in January or February 2005. At the time of the March accident Mr Bedeux was performing his duties on a motor cycle and had been for some time.
[146]The [applicant’s] evidence as to what part of his body hit the ground in the transport accident is quite confusing. It was completely unclear, in the course of cross-examination, which part of his body hit the ground and what area sustained injury. There was an attempt in re-examination to clarify the position and, in the end, Mr Bedeux said that his knee hit the road first. However, in light of the evidence which preceded it, that answer was very much a matter of reconstruction.
The judge then gave detailed consideration to the credibility of the applicant as a witness. His Honour found the applicant’s evidence, at times, to be confusing and contradictory. Overall he assessed him as an unreliable witness. His Honour was unable to rely on the applicant’s evidence as to: which part of his body hit the ground when he came off his motor cycle in the transport accident; whether there was anything more than a relatively minor and transitory injury to the left knee as a result of that accident; and whether there was any significant interference, aside from a short, initial time off work, to the applicant’s work duties between the transport accident and the March accident.
The judge found the affidavits of the applicant’s former wife, Ms Basset, and of Mr Abraham, of little assistance. I shall return to his Honour’s conclusions, in those respects, when considering grounds 7 and 8 of the application.
The judge then continued as follows:
[153]I am thus reliant upon the objective evidence of what was reported to doctors around the relevant time.
[154]Of most assistance was the report of Mr Jones, who saw Mr Bedeux in July 2005. He noted that Mr Bedeux was able to get up from the accident and complete his mail round. This hardly speaks of anything more than a minor soft tissue injury. By April 2005, he noted limping, swelling and a cracking sensation in the left knee. This all occurred after the March accident. At around that point, he was referred for an ultrasound and x-ray. It is significant the first radiological investigations did not occur until May 2005.
[155]Mr Jones thought that either the transport accident or the March accident may have caused or aggravated some degeneration in the structure of the knee. He was also of the view that the underlying degenerative condition can become symptomatic, leading to a spontaneous tear to the meniscus without any injury occurring. There is the distinct possibility that occurred in Mr Bedeux’s case.
Conclusions as to the consequences arising from the transport accident
[156]Taking into account all of the evidence, I find that Mr Bedeux probably suffered a physical injury in the form of a soft tissue injury to his left knee in the transport accident but that injury either resolved or had little impact on Mr Bedeux by the time of the March 2005 accident. The medical evidence shows that following that accident, Mr Bedeux developed a limp and experienced increased pain as noted by Mr Shannon and prompted Dr Grokop to make a referral to Mr Robin for left knee treatment.
[157]The onus is on Mr Bedeux to establish that the transport accident was causative of serious consequences. Having regard to my finding that he suffered only a soft tissue injury in the transport accident and required only medical assessment and light duties for a period of approximately two weeks or thereabouts, there was no significant impairment to Mr Bedeux’s domestic, recreational or work activities as a result.
The judge then noted that the injuries to the right knee, left elbow and shoulder, and right elbow and shoulder were consequential on the original left knee injury. Thus, in the absence of a causal relationship between a significant left knee condition and those conditions, the application in respect of those various body functions must also fail. The judge also rejected that part of the application that was based on the injury to the spine, and that part of the application that was based on an alleged mental disorder, resulting from the accident. As a consequence, the judge held that the applicant’s application, under s 93 of the Act, failed.
Proposed grounds of appeal
The applicant relies on 11 proposed grounds of appeal. They are expressed in quite detailed terms. For the purposes of brevity, they may be summarised as follows:
(1)The judge erred in failing to determine that the acceptance of liability by Australia Post for the applicant’s left knee injury sustained in the transport accident of 8 December 2004 was a matter of significance in determining the nature of the injury sustained by the applicant as a result of the transport accident.
(2)The judge should have found that Australia Post’s acceptance of liability for the applicant’s left knee injury was analogous to the situation considered by the Court of Appeal in Airlines Limited v Taylor.[4]
[4][2006] VSCA 171.
(3)The judge erred in discounting the evidence of the treating orthopaedic surgeon Mr Robin.
(4)The judge failed to provide adequate reasons for discounting the evidence of Mr Robin.
(5)The judge erred in discounting the evidence of Dr Grokop that he affirmed his earlier opinion that he accepted the opinion of Mr Robin as correct.
(6)The trial judge failed to provide adequate reasons for discounting that opinion of Dr Grokop.
(7)The judge erred in discounting the evidence of Ms Basset who was not cross-examined, or, alternatively, the judge failed to provide adequate reasons for discounting her evidence.
(8)The judge erred in discounting the evidence of Mr Abraham, who was not cross-examined in relation to his affidavit, or, alternatively, the judge failed to provide adequate reasons for discounting his evidence.
(9)The judge erred in finding that there was a distinct possibility that the applicant had suffered a spontaneous tear to the meniscus in his left knee without any injury occurring on 8 December 2004 when there was no evidence to give rise to that finding on the balance of probabilities.
(10)The finding by the judge, that any left knee injury sustained by the applicant in the transport accident of 8 December 2004 had either resolved or had little impact on the applicant by the time of the further accident on 3 March 2005, was not supported by the evidence, including: it was not put to the applicant in cross-examination that his left knee injury had resolved or had little impact on him as at 3 March 2005; the evidence by the applicant and Ms Basset did not support that finding; and the finding was not supported by the evidence of Mr Robin, Dr Grokop, Mr Jones and Mr Shannon, Mr Gardiner, Associate Professor Love, Mr Dooley, Mr Mander, Mr Brearley and Professor Myers.
(11)The judge failed to provide adequate reasons for finding that any left knee injury sustained in the transport accident on 8 December 2004 had either resolved or had little impact on the applicant by the time of the further accident on 3 March 2005.
On the hearing of the application for leave to appeal, the parties directed their oral submissions almost entirely to ground 10, and, in passing, to grounds 3 and 9. Otherwise the parties relied on the written submissions that had been filed by them with the Court.
Adequacy of judge’s reasons
A number of the proposed grounds of appeal allege that the judge failed to give adequate reasons relating to a number of the factual issues determined by him. The principles, relating to the obligation of a judge to give sufficient reasons for decision, have been stated in a number of decisions of this Court and do not require elaborate exposition. Essentially, the reasons provided by a trial judge must be sufficient to disclose the path or route by which the trial judge reached the ultimate conclusion in the judgment. In doing so, the judge must give adequate reasons for his or her determination of each of the substantial issues that have been raised in the proceeding. In a case in which there is a conflict on the evidence in relation to a substantial issue, the judge must provide sufficient reasons for preferring, or rejecting, a particular piece of evidence.[5]
[5]Hunter v Transport Accident Commission & Anor [2005] VSCA 1 [21] (Nettle JA); Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 [38] (Ashley JA); Rodda v Transport Accident Commission [2008] VSCA 276 [98] (Hargrave AJA); Transport Accident Commission v Kamel [2011] VSCA 110 [70]–[73] (Kyrou AJA).
On the other hand, in some cases, the path of reasoning of a trial judge may be sufficiently implicit in the reasons for decision as to disclose the judge’s reasoning process.[6] In that respect, as Ashley JA stated in Dressing v Porter & Transport Accident Commission:[7]
… Perfection is not required. An appeal court should not examine a trial judge’s reasons too critically, seeking, as it were, to discern a want of explanation. Further, what will be sufficient in a particular case will be influenced by the ambit of dispute at trial. Nonetheless, an examination of the reasons should enable the losing party to know why he or she lost.
[6]Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 [38] (Ashley JA); Murray Goulburn Coop Co Limited v Filliponi [2012] VSCA 230 [28] (Neave JA and Beach AJA); R & P Boland Nominees Pty Ltd v Hobbs [2013] VSCA 66 [62] (Kyrou AJA).
[7][2006] VSCA 215 [26].
Finally, in determining the adequacy of a trial judge’s reasons in respect of an application under s 93 of the Transport Accident Act (or under s 134AB of the Accident Compensation Act 1986), it is important not to lose sight of the nature of the proceeding, and the manner in which evidentiary material is put before the court on such an application. Most commonly, the trial judge does not, in such a case, have the advantage of hearing evidence in chief from witnesses, or of having the testimony of most of the witnesses cross-examined. It would be impractical, and indeed undesirable, for ‘serious injury’ applications to proceed in the manner of a fully-fledged trial. However, that practical consideration does render it difficult for trial judges to resolve conflicts in the evidentiary material before the court, and, as such, to assign reasons for the resolution in such issues that might be as complete as reasons given by a trial judge after a full trial of a proceeding. In that respect I refer to, and adopt, the views that I previously expressed in Woolworths Ltd v Warfe.[8]
[8][2013] VSCA 22 [127]–[128].
Grounds 1 and 2
Grounds 1 and 2 are directed to the statement by the judge, in his reasons, that the acceptance by Australia Post of the applicant’s claim for injury to his left knee was not of great significance in the determination of the issues before him. The judge stated:
The acceptance of the left knee claim (by Australia Post) does not stand as an admission against the Transport Accident Commission. [Counsel for the applicant] relied on this as a measure of the significance to the left knee injury in the transport accident. However, in the complexity of the situation at the time, with various doctors providing treatment, the range of incidents and injuries, and pre-existing conditions, the submission of this claim does not bear great significance.[9]
[9]Reasons [51].
On this application, counsel for the applicant accepted that the decision of this Court in Ansett Australia Ltd v Taylor[10] does not have the effect of ‘binding’ the respondent in respect of the acceptance of liability by Australia Post for the applicant’s left knee injury. However it was submitted that the acceptance, of that claim, by Australia Post, is a ‘highly relevant’ matter for a court considering an application under s 93(4)(d) of the Transport Accident Act, in that Australia Post made the decision on the basis of the opinions of orthopaedic surgeons who had investigated the compensation claim made against Australia Post. It was submitted that the submission of such a claim ‘involves the analogous task undertaken in Ansett Australia Ltd v Taylor’ in assessing the existence of a compensable injury, for the purposes of s 93(4)(d) of the Act. It was further submitted that the reasons of the judge did not contain a sufficient analysis upon which to disregard the acceptance of the claim by Australia Post.
[10][2006] VSCA 171 (‘Ansett’).
In response, counsel for the respondent submitted that the judge was correct in his evaluation that the acceptance of the claim for compensation by Australia Post was of little relevance to the proceeding. Counsel (correctly) pointed out that the acceptance of the claim by Australia Post could not constitute an admission by the respondent. Further, there was little evidence before the judge as to the basis upon which Australia Post accepted the claim made by the applicant.
In my view, the point raised by grounds 1 and 2 is without merit. The decision in Ansett does not provide any support for the proposition that the judge ought to have given any weight, or any greater weight, to the acceptance by Australia Post of the applicant’s claim on it for statutory benefits. In Ansett, the trial judge, in an application under s 134AB(16)(b) of the Accident Compensation Act 1985, acted on the basis that the acceptance, by the WorkCover Authority, of a worker’s claim under s 98C in respect of an injury alleged to have been sustained on a particular date, established conclusively that the worker had established compensable injury on that date, so as to preclude litigation of that issue in the serious injury application. The Court of Appeal held that that conclusion was wrong. In reaching that conclusion, the Court considered the evidentiary value of the acceptance, by an authority, of a claim for statutory benefits, in a subsequent serious injury application against the same authority. Ashley JA (with whom Maxwell P and Bongiorno AJA agreed) stated:
The acceptance of liability under s 104B(2) has evidentiary effect only, as an admission by the authority that such an injury was sustained. Such an admission should ordinarily be regarded as very significant, however, having regard to the serious consequences for the authority flowing from the acceptance of a claim.[11]
[11][2006] VSCA 171 [3]; see also at [45].
Subsequently, in Transport Accident Commission v Florrimell[12] the Court qualified the views expressed by Ashley JA, concerning the weight to be accorded to the acceptance, by an authority, of a claim for statutory benefits, in a subsequent common law proceeding. In particular, Tate JA (with whom Hansen AJA agreed) observed:
The issue of causation may well be a complex one and, as here, may be one on which medical opinions conflict. It may also be an issue in relation to which, as here, relevant information is not available until surgery or other forms of medical procedure are performed. For the TAC to accept to pay for the cost of a procedure cannot have the effect of precluding them from later contesting the issue of causation, perhaps on the basis of the information obtained from the very procedure that it paid for. Nor, for similar reasons, ought such payment be treated as having the evidentiary value of an admission because the question of causation may well be a live one until all the procedures have been completed.[13]
[12][2013] VSCA 247.
[13]Citation above, [45].
Clearly, as counsel for the applicant concedes, the acceptance by Australia Post, of the claim for statutory benefits by the applicant in respect of the injury to the left knee, could not constitute an admission by the respondent that the applicant had sustained an injury to his left knee as a result of the transport accident of 8 December 2004. For that reason alone, the reasoning of the Court of Appeal in Ansett did not apply to the present case. The fact that Australia Post admitted the claim is of no evidentiary value to the proof by the applicant of the critical fact in issue in the case, namely, the nature and extent of any injury sustained by the applicant to his left knee as a result of that accident. The acceptance of liability by Australia Post constituted no more than an inexpert conclusion by another organisation, for undisclosed reasons, relating to that fact.
Even if, hypothetically, the acceptance of the claim by Australia Post had some evidentiary value in the proceeding, such value could only be very limited. As pointed out by counsel for the respondent, there was no evidence concerning the compensation system by reference to which Australia Post accepted the applicant’s claim. It appears to have been accepted on the strength of limited medical opinion then available to it. By contrast, there was a substantial body of medical evidence before the judge relating to the critical issue of the cause of the injury to the applicant’s left knee.
Accordingly, the trial judge was correct in his treatment of the acceptance by Australia Post of the applicant’s claim for compensation, and, so far as it was necessary, the judge assigned adequate reasons for doing so.
Grounds 3 and 4
In support of grounds 3 and 4, counsel for the applicant submitted that the judge ought to have placed significant reliance on the evidence of Mr Robin, relating to the cause of the applicant’s left knee injury, as Mr Robin was the first surgeon who examined the applicant, he was aware the applicant had sustained injuries on both 8 December 2004 and 3 March 2005, and he had investigated the applicant’s injuries and provided the initial surgical treatment for them. It was submitted that, contrary to the observation of the trial judge, Mr Robin did differentiate between the symptoms suffered by the applicant as a result of both injuries. In particular, it was pointed out that in his report dated 1 March 2006, Mr Robin noted that as a result of the motor bike accident in December 2004 the applicant developed discomfort and a ‘cracking feeling’ in the left knee, and that he suffered a repeat injury in March 2005, which made the pain worse. It was submitted that Mr Robin was in fact consistent in his views relating to causation, and that there was no basis for the judge to discount his opinion that the left knee condition was almost entirely due to the injury sustained in the accident in December 2004. Alternatively, it was submitted that, in light of those matters, the judge did not provide adequate reasons for discounting the views expressed by Mr Robin.
In response, it was submitted on behalf of the respondent that the applicant’s criticisms of the reasons of the judge were without foundation. In particular, it was submitted that there was no effective differentiation by Mr Robin in his report, dated 1 March 2006, between the left knee injury sustained in the December 2004 accident and the injury sustained in the March 2005 accident. It was further submitted that Mr Robin did express ‘shifting views’ in his reports dated 20 December 2006 and 5 June 2015, which are set out in the judge’s reasons. Accordingly the judge was entitled to discount the reliability of Mr Robin’s most recent report, particularly as he had not seen the applicant for a period of five years.
In my view, the judge was justified in noting that Mr Robin, in his report dated 1 March 2006, did not differentiate between the symptoms which arose from the transport accident and those which were caused by the March accident. In the conclusion to his report dated 1 March 2006, Mr Robin stated that the applicant had ‘two injuries to his left knee in December 2004 and March 2005’ whilst delivering mail, these resulting in ‘chondral injuries’ to the left medial femoral chondral and the patello-femoral compartment. Early in the report he noted that the applicant had developed discomfort and a cracking feeling in the left knee after the December 2004 accident, and then he suffered a ‘repeat injury’ in March 2005 that made the pain worse. It is apparent that Mr Robin, at that stage, was treating the two incidents as a composite for the purposes of his report. He did not specify which aspect of the injuries, described by him, were attributable to the December 2004 accident, as distinct from the March 2005 accident. Further, he did not specify the extent to which the left knee injury, described by him, arose from, or was aggravated by, either incident. The comment by Mr Robin, that the March 2005 incident made the applicant’s pain worse, provided no basis upon which to identify, and differentiate between, the respective causative contribution of each incident to the applicant’s left knee injury.
The judge was fully justified in considering that Mr Robin expressed ‘shifting’, and indeed inconsistent, views on the issue of causation. As stated, in his report dated 1 March 2006, Mr Robin attributed the applicant’s left knee injuries to the two incidents of December 2004 and March 2005, without any material differentiation. In a subsequent report to the applicant’s solicitors dated 20 December 2006, Mr Robin stated that he considered that ‘… the use of the motor bike was a main cause of this man’s left knee injury, subsequently aggravated and compounded by the fall off the bike in December 2004’. The reference by Mr Robin to ‘the use of the motor bike’ clearly related to the repetitive use of the motor bike by the applicant in the course of his employment. That is made clear by an earlier short report by Mr Robin to Dr Grokop dated 1 September 2005, in which he stated:
… his work involves frequent stopping and leaning on his left knee as he delivers mail on a motor cycle, and I suspect this is the cause of his problem and will serve to aggravate it when he returns to work.
Thus, in his report dated 20 December 2006, Mr Robin clearly attributed the repetitive use of the motor bike as the major cause of the applicant’s injury to his left knee. It is also noteworthy that in the report of December 2006, Mr Robin made no mention of the incident of March 2005. That omission by Mr Robin, to refer to the incident of March 2005, is of some significance, as, in his report dated 1 March 2006, Mr Robin had expressed the view that the incident of March 2005 was one of the causes of the injury to the applicant’s left knee. In that respect, there is a clear inconsistency between the views expressed by Mr Robin in his reports dated 1 March 2006 and 20 December 2006 respectively.
By contrast to the views expressed by him in the two reports to which I have referred, Mr Robin, in his report dated June 2015, attributed the left knee condition ‘almost entirely’ to the injury in December 2004. The judge was entitled to treat that view as being significantly different from, and indeed inconsistent with, the views earlier expressed by Mr Robin to which I have referred. Mr Robin did not provide any explanation for the fundamental difference between the views expressed by him in his two reports of 2006, and the view that he expressed in his report dated June 2015. In the latter report, Mr Robin does not refer to any further information, or factor, that had caused him to alter the views that he had expressed some nine years previously. In that respect, it is noteworthy that, as observed by the judge, Mr Robin had not seen the applicant for a period of five years at that time.
In those circumstances, the judge had an appropriate basis on which to find that the reports of Mr Robin were of ‘limited assistance’, apart from setting out in detail the treatment given to the applicant. I also consider that the judge adequately exposed the reasons that he gave for that finding of fact by him. Accordingly, grounds 3 and 4 are not made out.
Grounds 5 and 6
In support of grounds 5 and 6, counsel for the applicant accepted that, in his viva voce evidence, Dr Grokop ‘vacillated’ on the issue whether he accepted that the accident of 2004 was the principal cause of the applicant’s left knee injury. It was submitted that, on balance, Dr Grokop did accept that proposition on the balance of probabilities. Further, it was contended that, in any event, any doubt relating to Dr Grokop’s evidence was clarified and removed by his deferral to and acceptance of the opinion of Mr Robin. In those circumstances, counsel for the applicant submitted that the judge erred in discounting the evidence of Dr Grokop, or, alternatively, in failing to provide adequate reasons for doing so.
In response, counsel for the respondent noted that the applicant correctly accepted that Dr Grokop had ‘vacillated’ on the issue of causation. He first submitted that Dr Grokop’s views were not clarified by his acceptance of the opinion expressed by Mr Robin that was put to him, as that opinion of Mr Robin did not itself make any specific mention of either the December 2004 incident or the March 2005 incident.
In my view, there is no substance to grounds 5 and 6. Dr Grokop’s reports, which I have summarised, do not provide any elucidation on the critical issue of causation. Further, the passages of Dr Grokop’s evidence, to which I have referred, make it plain that Dr Grokop would not proceed beyond the point that he considered that it was ‘possible’ that the applicant’s left knee was injured on 8 December 2004. Dr Grokop, on more than one occasion in re-examination, declined to embrace the proposition put to him by the applicant’s counsel that it was probable that there was an injury to the left knee on 8 December 2004.
Further, counsel for the respondent is correct in pointing out that the acceptance, by Dr Grokop, of the views expressed by Mr Robin in a report that was read to Dr Grokop in re-examination did not advance the point. In that report (dated 3 June 2005), Mr Robin merely stated that on the basis of the history and findings, it was ‘highly probable and consistent’ that the left knee injury was ‘work-related’. Thus, that aspect of the re-examination of Dr Grokop did not involve any acceptance of a view that it was probable that the applicant’s left knee injury was caused by the accident of December 2004. Accordingly ground 5 does not succeed.
In the course of his judgment, the judge set out, in substantial detail, the relevant passages of Dr Grokop’s reports, and the passages of the transcript of the evidence of Dr Grokop to which I have referred.[14] His Honour concluded — correctly — that Dr Grokop’s evidence amounted to no more than a possibility that the applicant’s left knee problems were related to the transport accident of 8 December 2004. In my view, those passages in his Honour’s reasons, together with paragraph [141] that I have set out above, adequately expose the reasons of the judge for concluding that the evidence of Dr Grokop was not of ‘any great assistance’ on the critical issue of the nature and extent of the injury to the applicant’s left knee caused by the accident of December 2004. It follows that ground 6 of the application is not made out.
[14]Reasons, [91]–[99].
Grounds 7 and 8
Grounds 7 and 8 are concerned with the finding by the judge that the affidavits of the applicant’s former wife, Ms Basset, and of his former work mate, Mr Abraham, were of little assistance. In particular, in his judgment, the judge found as follows:
[149]The affidavit of his former wife, Ms Basset, is of little assistance. It was sworn some nine years after the transport accident. It is difficult to understand how she could recall with such precise detail that he fell onto his left side and he complained of pain in his left knee. That evidence stands in contrast to the reports to [sic] the doctors at the time.
[150]Likewise, the affidavit of Mr Abraham. He said that after the transport accident, Mr Bedeux injured his neck, shoulders and knees. That is clearly inaccurate. I do not accept other parts of his evidence that Mr Bedeux struggled with his work duties thereafter. There is no reference to the March 2005 accident.
One of the points relied on by the applicant in support of grounds 7 and 8 is that neither Ms Basset nor Mr Abraham were cross-examined. It is well established that the rule in Browne v Dunn[15] does not preclude a judge from rejecting, or giving limited weight to, the evidence of a witness, where that witness’s evidence is based on inconsistencies with other evidence at the trial, or where the witness’s evidence on its face appears to be incredible or unconvincing. In his often cited judgment in Bulstrode v Trimble,[16] Newton J, referring to the rule in Browne v Dunn, stated:
… the rule says no more than that if a witness is not cross-examined upon a particular matter, upon which he has given evidence, then that circumstance will often be very good reason for accepting the witness’s evidence upon that matter. If I may say so, this is little more than common sense. I have used the word ‘often’ advisedly, because if a witness’s evidence upon a particular matter appeared in his evidence in chief to be incredible or unconvincing, or if it was contradicted by other evidence which appeared worthy of credence, the fact that the witness had not been cross-examined would, or might be of little importance in deciding whether to accept his evidence.[17]
[15](1894) 6 R 67.
[16][1970] VR 840.
[17]Ibid 848–9; see also Philippiadis v Transport Accident Commission [2016] VSCA 1 [88]–[91] (Redlich and Kyrou JJA, Ginnane AJA); R v Mardon [2015] SASCFC 135 [36].
In support of ground 7, counsel for the applicant submitted that the evidence of Ms Basset, that the applicant’s left knee symptoms commenced with the accident of 8 December 2004, should have been given weight by the trial judge. He submitted that Ms Basset’s affidavit was detailed, and she was not cross-examined on it. It was also submitted that the judge failed to provide any reasoned analysis for disregarding her evidence as being of little assistance.
In response, counsel for the respondent noted that the judge observed that Ms Basset’s affidavit was sworn nine years after the event, and that it was not consistent with the contemporaneous notes of Dr Molloy and Dr Grokop.
I do not consider that there is substance to ground 7. The judge was entitled to consider that it was, at the least, unlikely that Ms Basset, nine years after the event, would be able to recall the detailed account, given to her by the applicant, of the circumstances of the accident, and which she recited in her affidavit. In addition, as noted by the judge, the statement by Ms Basset that the applicant, a few days later, complained about pain in his left knee, was in contrast to the contemporaneous notes of both Dr Grokop and Dr Molloy. Further, as pointed out by counsel for the respondent, the statement in Ms Basset’s affidavit that the applicant then discovered a lump in his knee, and that he had an MRI scan, is not supported by the evidence or by the facts of the case. No MRI scan was performed until after the March 2005 accident, when the applicant was referred by Dr Grokop to Mr Robin.
For those reasons, I would reject ground 7 of the proposed grounds of appeal.
In support of ground 8, counsel for the applicant referred to Mr Abraham’s evidence that he recalled the accident of 8 March 2004, and that as a result of that accident the applicant sustained injury to his neck, shoulders and knees. Counsel submitted that, contrary to the judge’s assessment, that recollection was confirmed by the evidence of the applicant, as well as by medical reports including those of Dr Grokop and Mr Shannon.
In response, counsel for the respondent pointed to the contemporaneous records of the applicant’s symptoms and treatment, in which there was no record of an injury to the applicant’s neck and shoulders. Thus, it was submitted that the judge was correct in considering that Mr Abraham’s recollection, that the applicant suffered injury to his shoulders, neck and both knees, was quite inaccurate.
I do not consider that ground 8 can be sustained. As noted by the judge, Mr Abraham’s recollection, that the applicant suffered injury to his neck, shoulders and both knees, as a result of the December 2004 accident, was unsupported by the contemporaneous records of Dr Grokop and Dr Molloy. Similarly, there was no support for the recollection of Mr Abraham that the applicant struggled with his duties when he returned to work after the transport accident. It is significant that Mr Abraham made no mention of the applicant’s subsequent March 2005 accident. Taking those matters into account, the judge was entitled to discount the evidentiary weight of Mr Abraham, and to consider that his evidence was of little assistance. Accordingly, ground 8 should fail.
Ground 9
Ground 9 is directed to paragraph 155 of the reasons of the judge, that I have set out above. It was submitted that there was no support in the evidence for the ‘finding’ of the judge that there was a ‘distinct possibility’ that the applicant had suffered a spontaneous tear of the meniscus of his left knee without any injury occurring. In particular, it was submitted that the reports of Mr Jones, Dr Turner, Mr Shannon, Mr Dooley, Dr Grokop, Mr Gardiner, Mr Brearley, Associate Professor Love and Mr Mander did not support that finding.
In response, counsel for the respondent submitted that the finding by the judge was supported by the opinion of Mr Jones, contained in his report dated 29 July 2005, that he could not exclude the possibility of a meniscal tear occurring spontaneously. It was submitted that the other medical opinions, referred to by the applicant, did not displace that opinion expressed by Mr Jones.
The judge, in a detailed manner, carefully considered the medical opinions of each of the doctors to whom I have referred. In his report, Mr Jones stated that the applicant’s x-ray suggested some early medial compartment osteoarthritis and probably a tear of his medial meniscus. Mr Jones could not ‘exclude’ that one or other of the incidents described by the applicant, on 8 December 2004, March 2005 and April 2005 had caused ‘some’ of his current knee problems. Mr Jones did not consider that the osteoarthritic change evident on the MRI scan had been caused by the applicant’s work in general nor the incidents he described. Mr Jones then stated he could not exclude the ‘possibility’ that the meniscal tear suggested on the MRI was a result of a work injury. He stated that possible incidents causing such tears usually involved a twisting injury to a joint which is under load. Accordingly, either of the incidents of 8 December 2004 and March 2005 might have caused or aggravated some degeneration of the medial meniscus, thus causing or aggravating a tear of that structure. Mr Jones then said:
The degenerative arthritis in the medial compartment of the knee is often associated with degeneration of the associated meniscus and spontaneous tears without injury can occur. I cannot exclude this being the case, or his kick boxing, or the work injuries he describes as being the cause of his apparent meniscal tear.
It was on the basis of that evidence that the judge, at paragraph 155 of his judgment, considered that there was a ‘distinct possibility’ that there had been a spontaneous tear to the meniscus of the applicant’s left knee. In fact, as pointed out by counsel for the applicant, the views stated by Mr Jones pre-dated the arthroscopy, performed by Mr Robin on the applicant’s left knee, on 1 September 2005. The description by Mr Robin, in his report, of the findings on arthroscopy do not indicate that any tear of the meniscus was detected in the course of the procedure. Thus, it was contended on behalf of the applicant that the judge was in error in considering that there was a distinct possibility that there had been a spontaneous tear of the meniscus of the left knee of the applicant.
The point made by the applicant is, in a sense, correct, but it does not, in any relevant manner, affect the findings made by the judge. In the passages that are the subject of ground 9, the judge expressed the view that the injury, that Mr Jones considered had occurred, could have been the result of spontaneous processes, rather than the incident of December 2004. In light of the finding on arthroscopy, that conclusion became irrelevant. However, in the next paragraph of his judgment (paragraph 156), the judge expressed the view, principally based on the evidence of Mr Shannon, and on the objective evidence in the case, that the applicant had probably suffered a soft tissue injury to the left knee in the transport accident of December 2004. That finding, by the judge, was unaffected by his observation, in the previous paragraph of his judgment, relating to the possibility that there had been an unrelated spontaneous tear to the meniscus of the applicant’s left knee.
In that way, the point raised in ground 9 is of no consequence to the conclusion formed by the judge, and accordingly does not constitute a basis upon which to allow an appeal from the decision of the judge.
Ground 10
In oral submissions, senior counsel for the applicant argued ground 10 in a manner that was wider than that foreshadowed in the written submissions. Counsel commenced by noting that, if leave to appeal were granted, the appeal would be heard pursuant to s 74 of the County Court Act, and that, on the hearing of that appeal, the principles stated by the High Court in Fox v Percy[18] and Warren v Coombes[19] apply. Accordingly he submitted that, on this application, the Court should review the evidence, to determine for itself whether, on that evidence, the judge came to the correct conclusion on the issue of the cause of the injury to the applicant’s left knee.
[18](2002) 214 CLR 118.
[19](1979) 142 CLR 531.
Counsel noted that the transport accident of 8 December 2004 was a traumatic event. The applicant, in wet conditions, swerved his motor cycle, in order to avoid a collision. In doing so, he fell to the ground heavily and skidded. Counsel submitted that that event involved significantly more trauma to the applicant’s left knee than the incident in which he fell from the bike in March 2005. Thus he submitted that it was more probable that it was the December 2004 incident that resulted in the injury to the applicant’s left knee. Indeed, counsel submitted that because the March 2005 accident was somewhat insignificant, it is understandable that it was not referred to in a number of the medical reports.
Counsel then took issue with the finding of fact by the judge, at paragraph 32 of his reasons, that the evidence did not lead to any clear conclusion as to what part of the applicant’s body hit the road first. He submitted that the contemporaneous records, and complaints made by the applicant, were to the effect that he had fallen on his left knee, and that, in the following weeks, he suffered pain to the left knee. In that respect, counsel referred to the notes of Dr Molloy and of Dr Grokop. He contended that on their proper construction, Dr Grokop’s notes did refer to complaint of pain in the left knee on 9 December. Counsel also submitted that while Dr Grokop did not consider that the applicant’s complaint of pain to the left knee, during that period, was his major concern, nevertheless it is relevant that he did report minor knee soreness to the left knee that commenced on 8 December. Counsel also referred to an incident report dated 20 May 2005, in which the applicant described an incident that had occurred on 17 May 2005, while walking on a carpeted floor. In that report the applicant described the injury, that he sustained on that day, as a recurrence of the previous injury sustained by him on 8 December 2004 and on 3 March 2005. Counsel further referred to a claim for compensation made by the applicant dated 22 May 2005, in which he claimed injury to his left knee arising out of the transport accident of 8 December 2004.
Thus, counsel submitted that there was ample evidence, that, during the period contemporaneous with the transport accident, the applicant complained of pain to the left knee resulting from that accident. In that respect, he submitted that the trial judge erred in forming the view that the contemporaneous objective evidence did not support a finding of any significant injury to the left knee as a result of the accident of 8 December 2004.
Counsel for the applicant then referred to the findings of Mr Robin on the performance of the arthroscopy on the applicant’s left knee on 1 September 2005. He submitted that the Court should place significant weight on the opinion expressed by Mr Robin, as he was the surgeon who conducted the operation, and who was best acquainted with the applicant’s condition. He submitted that the views of Mr Robin are supported by those of the consultant practitioners who had examined the applicant, and who are referred to in ground 10 of the application.
Counsel further submitted that the injury to the left knee, as revealed by the arthroscopy of September 2005, could only have been caused either by the event of December 2004 or the incident of March 2005. Counsel reiterated that the transport accident was more traumatic than the fall from the motorcycle in March 2005. The fact that the applicant did not suffer significant pain immediately after the transport accident does not mean that he did not then sustain a serious injury, the symptoms of which manifested themselves subsequently as the applicant subjected his joint to further strain.
In response, senior counsel for the respondent contended that, notwithstanding that the appeal is under s 74 of the County Court Act, nevertheless the applicant must demonstrate a material error by the judge in concluding that the incident of December 2004 had caused the injury to his left knee. In support of that proposition, counsel referred to the judgment of Brooking JA in Mobilio v Balliotis & Ors[20] and the decision of this Court in Phelan v Transport Accident Commission.[21]
[20][1998] 3 VR 833, 836–7.
[21][2013] VSCA 306.
Counsel then reviewed the evidence of the applicant relating to the circumstances in which the transport accident occurred, and he submitted that there was a sound basis for the judge to find that he could not draw any clear conclusion as to what part of the applicant’s body hit the road first, and what part was injured, in the course of that accident.
Counsel further referred to the contemporaneous objective evidence which, he submitted, the judge directly relied on in support of the conclusion that the applicant had not established, on the balance of probabilities, that the injury to his left knee had been caused by the transport accident. In particular, counsel referred to the incident report dated 9 December 2004, signed by the applicant, in which he stated that he fell from the bike ‘… bruising my backside and hip’. Counsel then referred to the medical records of Dr Molloy, and in particular to the finding by that doctor that there was no abnormality detected in the left knee on examination on 9 December 2004. In addition, he contended that Dr Grokop’s notes of 9 December 2004 did not refer, at all, to any complaint of injury to the left knee. Rather, the first such complaint was made to Dr Grokop on 30 December. Counsel referred to the evidence of Dr Grokop, in cross-examination, that, on the consultation of 9 December 2004, the applicant made no mention of any injury to his left knee. Counsel also referred to the evidence, contained in the applicant’s affidavits, that he returned to work shortly after the transport accident, and to the fact, apart from the complaint to Dr Grokop on 30 December 2004, there was no evidence that the applicant made any complaint, to the doctor or to his employer, of suffering any pain or disability to his left knee during the period between his return to full duties on 29 December 2004 and the accident of 3 March 2005.
Counsel noted that the judge found the applicant to be an unreliable witness, that Dr Grokop did not assist on the question of the cause of the applicant’s left knee injury, and that Mr Robin had expressed conflicting and contradictory views as to whether that injury was caused by the transport accident of December 2004. In those circumstances, counsel submitted that the judge was correct in relying on the objective contemporaneous evidence to which he referred. Counsel submitted that, in those circumstances, the judge was justified in concluding that, in light of the objective evidence, the applicant had failed to establish, on the balance of probabilities, that he had suffered any injury, other than a temporary soft tissue injury, to his left knee as a result of the transport accident of December 2004.
In the course of submissions, an issue arose as to the principles that apply in relation to an application for leave to appeal, and an appeal, from a decision of a judge under s 93 of the Transport Accident Act (or under the equivalent s 134AB of the Accident Compensation Act 1985). Counsel for the applicant submitted that the principles, discussed in Fox v Percy[22] and Warren v Coombes[23], apply, so that the court is required to undertake a re-hearing of the issue that was before the judge. On the other hand, counsel for the respondent submitted that the applicant must establish that the conclusion reached by the judge should be set aside for specific error, or because it was plainly wrong or wholly erroneous.
[22](2003) 214 CLR 118.
[23](1979) 142 CLR 531.
In Mobilio v Balliotis[24] — which was decided after Warren v Coombes, but before Fox v Percy — the Court of Appeal held that, in the absence of specific error, a finding by a judge, as to whether a plaintiff had suffered serious injury, may only be set aside on appeal if it is demonstrated to have been plainly wrong or wholly erroneous. That approach has been adopted and followed in a number of subsequent decisions of this Court, including those that occurred after the decision of the High Court in Fox v Percy.[25]
[24][1998] 3 VR 833.
[25]See for example Transport Accident Commission v Kamel [2011] VSCA 110, [69] (Kyrou AJA); De Agostino v Leatch [2011] VSCA 249, [5] (Tate JA); Phelan v Transport Accident Commission [2013] VSCA 306, [3] (Ashley JA); Kalinic v Acron Engineering Pty Ltd [2013] VSCA 341, [3] (Warren CJ); Mazevska v Transport Accident Commission [2014] VSCA 178, [40] (Ashley JA); Merhi Ford Motor Car Ltd [2014] VSCA 328, [76] (Neave JA); Transport Accident Commission v Campbell [2015] VSCA 7, [8] (Santamaria JA); Wesfarmers Ltd v Lloyd [2016] VSCA 41, [45] (Osborn JA).
In the present case, the decision by the judge related to the question whether the injury, that the applicant contended was a serious injury, was a result of the transport accident of 8 December 2004. The question whether the principles, stated in Mobilio v Balliotis, apply to the determination of that issue, was not the subject of any substantive submissions before us. In particular, no reason was advanced by counsel for the applicant why the same principles should not apply to that question. However, I do not consider that it is necessary to resolve that question for the purposes of determining ground 10. For the reasons that follow, ground 10 would be decided in the same way, irrespective of which test were applied in determining it.
Accordingly, I am prepared to assume (without deciding) that, in order to determine ground 10, the principles, stated by the High Court in Fox v Percy and Warren v Coombes, require the court to consider, for itself, whether the injury complained of by the complainant was caused by or a result of the transport accident in question. The approach of a Court, on such an appeal, has been considered by a number of decisions in the High Court[26] and of this Court.[27] They were recently summarised in the decision of this Court in Box Hill Institute of TAFE v Johnson[28] as follows:
[26]Fox v Percy (supra); Warren v Coombes (supra); Abalos v Australian Postal Commission (1990) 171 CLR 167; CSR Limited v Della Maddalena (2006) 224 ALR 1; Louth v Diprose (1992) 175 CLR 612.
[27]See for example Transport Accident Commission v Cuthbertson [2013] VSCA 29, [31]–[34]; Larner v George Weston Foods Limited [2014] VSCA 62, [105]; Govic v Boral Australian Gypsum Limited [2015] VSCA 130.
[28][2015] VSCA 245.
The principles that apply to such a ground of appeal are well established, and for the purposes of this case, can be conveniently summarised as follows:
(1)The appeal before the court comes by way of re-hearing. Accordingly, the court is required to examine the record and to give the judgment which in its opinion ought to have been given at first instance.
(2)Subject to (3) and (4) below, in general, an appellate court is in as good a position as the trial judge to decide on the proper inferences to be drawn from facts which are undisputed, or which, having been disputed, are established on the findings of the trial judge. In deciding the proper inference that is to be drawn, the appellate court should give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, it must give effect to it.
(3)In applying those principles, the appellate court should make due allowance for the advantages that are available to the trial judge, and in particular, the advantage the trial judge has in evaluating the credibility and reliability of witnesses, and of gaining an impression of the evidence, and the import of it, as it is given.
(4)In particular, in cases in which a judge’s findings of facts are dependent on the judge’s assessment of the character and credibility of the witnesses, the advantage enjoyed by the judge in that respect extends to inferences that are drawn in that context.
(5)Where the judge reaches a conclusion as to the evidence of a witness or witnesses of one party, such a conclusion may be demonstrated to be incorrect, if it is contrary to incontrovertible facts or uncontested testimony, or if (in a rare case) such a conclusion is either ‘glaringly improbable’ or ‘contrary to competing inferences’.[29]
[29]Citation above, [36].
Accordingly, it is necessary to review the evidence, bearing in mind the findings and conclusions of the judge, particularly about the evidence of witnesses who he had the opportunity to observe under cross-examination.
In my view, the judge was well justified in concluding that the applicant was not a reliable witness as to the circumstances in which the transport accident occurred, and, in particular, in relation to the question as to what part of his body hit the road first, and what part was injured, in the course of that accident. I have already referred, in some detail, to the evidence of the applicant relating to those matters. The judge had the opportunity to observe the applicant being cross-examined, in detail, on that point. It might be understandable that, given the traumatic circumstances of the accident, and the effluxion of time, the applicant was not able to be precise as to how he fell, and as to what part or parts of his anatomy were affected by the fall. Nevertheless, it is clear that his evidence did not provide any sound evidentiary basis for a conclusion that, in the course of the accident, he fell directly onto his knee, that his left knee sustained any significant impact, or that his left knee was otherwise subjected to stresses in the course of the fall.
In that respect, the judge was correct to place substantial weight on the contemporaneous evidence. In my view, the judge was correct in concluding that that evidence provides little support for the proposition that the applicant sustained any other injury than, perhaps, a soft tissue injury, to the left knee, in the course of the transport accident. At the risk of repetition, it is worth referring in a little detail to that evidence.
The clinical notes of Dr Molloy of 9 December 2004 refer to a fall from the motor bike on the previous day, and note that the plaintiff had right lower back pain, pain to the upper outer buttock, and some ‘mild’ pain to the left knee. The note records the applicant as stating that when he came off the bike he landed on his right side. On examination, the applicant was tender over the right sacroiliac joint and laterally. No abnormality was detected in examination of the left knee. The reason for the applicant’s visit was noted as ‘bruised buttock’.
On the same day, the applicant consulted his general practitioner Dr Grokop. I am satisfied that Dr Grokop’s note of the consultation on that day was restricted to recording that the applicant had, on the previous day, fallen off his bike at work onto his right buttock. In argument, the applicant’s counsel sought to rely on evidence by Dr Grokop that the applicant also reported falling onto the left knee on 9 December. That evidence, properly considered, referred to the note made by Dr Grokop of a subsequent consultation on 30 December, when the applicant then reported to Dr Grokop that, on 8 December, he had fallen off his bike onto his left elbow, right buttock and lateral left knee.
Returning to 9 December, on that day the applicant signed an incident report to his employer. In that report, in describing the accident, the applicant stated: ‘I fell with it bruising my backside and hip’. In the section of the report relating to the applicant’s symptoms, the applicant stated ‘tail bone bruise’. Significantly, there was no reference, in that report, to any injury to the applicant’s left knee.
Five days later, on 14 December, the applicant again consulted Dr Molloy. The doctor noted that the reason for the visit was ‘bruised buttock’. In the history section of the note, the doctor recorded that the applicant had made good progress and had coped with his work sorting, and that he suffered ‘most pain when sitting’. One week later, on 21 December, Dr Molloy noted that the reason for the visit on that day, again, was ‘right bruised buttock’. The applicant’s pain continued to improve. He had a normal gait, he no longer had any limp, and he was sitting comfortably. He was certified as fit to return to work on full duties.
Thus, the first mention of any pain to the left knee was that contained in the notes of Dr Grokop on 30 December 2004, to which I have referred. In respect of that note, Dr Grokop, in cross-examination, agreed that if, on that date, the applicant had any bruising, abrasion or swelling to the left knee, it would have appeared in his notes. He agreed that the absence of any such reference in his notes meant that he did not elicit any sign of such injury on examination.
Finally, it is clear on the evidence that the applicant returned to full duties with his employer on 29 December. He continued to carry out those duties until the further accident on 3 March 2005. There is no evidence that he made any complaint, to his medical practitioner, or to his employer, of any difficulty or pain experienced by him in performing those duties during that period of time. In cross-examination, he said that he could not remember making any such complaint during that period.
On 22 May 2005, the applicant reported a further injury sustained by him on 17 May, whilst he was working on carpeted floor. In that report, he described his injury as a ‘recurrence’ of a ‘previous injury’ when he fell from his bike and bruised his left knee. He also referred to it as a recurrence of an injury when he caught his trouser leg on the kick start and fell from the bike and bruised his left knee. Subsequent to that incident, Dr Grokop referred the applicant to Mr Robin, who he saw for the first time on 27 May 2005. As I have noted, he subsequently underwent an arthroscopy procedure to his left knee undertaken by Mr Robin on 1 September 2005.
It is thus apparent from the foregoing history that the applicant made no complaint at all of any pain or injury to his left knee, as a consequence of the transport accident, for a period of three weeks after that accident occurred. When he made that complaint, and during the previous three weeks, the applicant’s principal concern had been the bruising to his buttock. The applicant then continued in his work without any other apparent disability or complaint until the fall from the motor bike on 3 March 2005. It was only after that incident, and the subsequent incident on 17 May 2005, that the applicant suffered any material disability to his left knee that required referral to an orthopaedic specialist.
Pausing there, those facts provide no support to the claim by the applicant that the transport accident caused, or contributed, to any other than a transient soft tissue injury to his left knee. Rather, and on the contrary, in my view those circumstances militate against a conclusion to that effect.
Further, I consider that the judge was correct in concluding that the evidence of the medical practitioners was, of itself, an insufficient basis to support the applicant’s case on the issue of causation. For the reasons already discussed, I consider that the judge was correct in concluding that Dr Grokop’s evidence was of little or no assistance on that issue. Indeed, it is noteworthy that, when pressed on the matter, Dr Grokop was not prepared to go further than opine that it was possible (but not probable) that the transport accident had caused the injury to the applicant’s left knee that was detected on the arthroscopy procedure on 1 September 2005. I also consider that the judge was correct in considering that the views expressed by Mr Robin on the issue were internally inconsistent and contradictory, for the reasons that I have already discussed.
In addition, as pointed out by the judge, many of the consultant practitioners, who had examined the applicant, had seen him many years after the events, and, in light of the complexity of the onset of the symptoms and the applicant’s history, the reports of those practitioners, on the issue of causation, did not provide much assistance. It would appear that some of the practitioners, such as Mr Mander and Mr Gardiner, were not specifically told by the applicant of the incident of March 2005. The histories given by the applicant to other practitioners, such as Associate Professor Love and Associate Professor Myers, were inconsistent with the objective evidence to which I have referred, in that the applicant gave to those two medical practitioners a description of initial pain in the left knee that is not supported by that evidence.
Taking those matters into account, in my view the judge, on the evidence, reached the correct conclusion that the applicant had not established, on the balance of probabilities, that he suffered other than a soft tissue injury to the left knee in a transport accident which only required medical assessment and light duties for a short period of two weeks. Accordingly, the applicant has not made out ground 10.
Ground 11
Ground 11 is to the effect that the judge failed to provide adequate reasons for the finding that any left knee injury sustained by the applicant in the transport accident had resolved or had little impact on the applicant by the time of the additional accident on 3 March 2005. The applicant did not, in his written submissions, or in oral submissions, advance any separate argument in support of that ground. In my view, the ground is without substance and should fail.
I have already reviewed the reasons given by the judge for reaching his conclusion that the applicant’s claim must fail. As noted, the judge reviewed the evidence of the applicant in detail, and gave adequate reasons for finding that he was not a reliable witness. For the reasons I have already outlined, the judge gave adequate reasons for not relying on the evidence of Dr Grokop and Mr Robin on the issue of causation. The judge reviewed the medical evidence in some detail, and in the passages to which I have referred, he gave sufficient reasons for finding that the medical reports relied on by the applicant did not provide assistance on that issue.
In my view, the comprehensive reasons given by the judge clearly exposed the basis upon which his Honour reached the conclusion adverse to the applicant on the issue of causation. There is no substance in ground 11.
Conclusion
For the foregoing reasons, I would allow the application for leave to appeal, and dismiss the appeal.
McLEISH JA:
I agree with Kaye JA, for the reasons he gives, that the application for leave to appeal should be granted, but the appeal dismissed. I also agree that it is not necessary, and would be undesirable in the absence of full argument, to address the question whether Fox v Percy[30] requires the principles stated in Mobilio v Balliotis[31] as to the grounds for setting aside a decision under s 93 of the Transport Accident Act 1986 to be modified in any way in an application for leave to appeal in respect of a finding as to causation.
[30](2002) 214 CLR 118.
[31][1998] 2 VR 833, 836–7.
25
23
0