Borazio v State of Victoria
[2015] VSCA 131
•5 June 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2014 0127
| SAVERIO BORAZIO | Appellant |
| v | |
| STATE OF VICTORIA | Respondent |
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| JUDGES: | TATE, OSBORN & McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 May 2015 |
| DATE OF JUDGMENT: | 5 June 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 131 |
| JUDGMENT APPEALED FROM: | Borazio v State of Victoria & Anor [2014] VCC 1567 (Judge Misso) |
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ACCIDENT COMPENSATION – Appeal against decision of the County Court refusing leave to bring proceedings pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 – Where trial judge not satisfied that wearing a police equipment belt caused discal injury to appellant’s lower back – Whether trial judge erred in his identification of the compensable injury – Whether trial judge erred in the standard of proof he imposed on the appellant – Whether trial judge misconstrued the evidence or made findings against the weight of evidence – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A Ingram with Mr G Worth | Nowicki Carbone Lawyers |
| For the Respondent | Mr S A O’Meara QC with Mr J Hooper | Lander & Rogers |
TATE JA:
I have had the considerable advantage of reading, in draft form, the reasons of Osborn JA. I agree with his Honour that the appeal should be dismissed. I agree with his Honour’s reasons for dismissing the appeal save for the single issue of the standard of proof as formulated by the judge.
In my view, the judge was in error to formulate the standard as he did, namely, that ‘[i]f there are competing hypotheses, then the plaintiff must demonstrate that the other competing hypotheses are unsustainable’.[1] I consider this to be an error because I take the view that the meaning of ‘unsustainable’, used in the context of defining the standard of proof to be reached before an alternative hypothesis is rejected, indicates that the alternative hypothesis must be shown to be unsupportable or inconsistent with the evidence. It reflects the approach of requiring a plaintiff to ‘negate’ any competing hypotheses that could also causally explain his or her injury. In effect, it demands that a plaintiff demonstrate that each competing hypothesis is not reasonably open. This approach was shown to be erroneous in Delta Corporation Ltd v Davies.[2]There the respondent, Davies, alleged that in the course of his employment with Delta Corporation Ltd, a manufacturer of concrete slabs and railway sleepers, he was using a 4 inch grinder with an attached steel wire brush to remove slurry from a mould used to produce the sleepers when bristles from the brush broke off and entered his body. The trial judge found that, on the balance of probabilities, the accident occurred as alleged. There was much inconsistency and conflict in the evidence. The wire brush used had disappeared. There was a question of whether the injuries were self-inflicted. The judge was critical of a diagnosis of Munchausen’s Syndrome. There was another competing hypothesis that the bristles had entered Davies’ body accidentally on some other occasion. On appeal, the Court upheld the trial judge. Hasluck J[3] observed that Davies was not required to negate all alternative hypotheses. He said:
In the absence of any direct or eye-witness account of the respondent being struck by many bristles, it was open to the trial Judge to determine whether the combined weight of the facts and circumstances relied upon by the respondent supported the crucial inference, as a matter of probability, namely, that many bristles entered the respondent's body on the day in question. It was not necessary for the respondent to negate all alternative hypotheses as to how bristles finished up in his body in order to succeed, and he was not necessarily bound to fail simply because there was room for conjecture that the case presented on his behalf may not be correct.[4]
[1]Borazio v State of Victoria [2014] VCC 1567 [72] (‘Reasons’).
[2][2002] WASCA 125 (‘Delta Corporation’).
[3]With whom Murray and Parker JJ agreed.
[4]Delta Corporation [2002] WASCA 125 [93] (emphasis added). Hasluck J went on to say (at [105]): ‘The respondent as plaintiff was not obliged to negate all alternative hypothesis and the Court was not required to assume that the effect of the appellant’s evidence was to “shift” the burden of proof so that the respondent was bound to fail unless the appellants’ evidence was rebutted.’ See also reasons of Osborn JA [69].
I consider that the judge here articulated the wrong test. With great respect to Osborn JA, I do not agree that ‘unsustainable’ in the context used by the judge can mean ‘not equally probable’.[5]
[5]Reasons of Osborn JA [67].
However, I do agree with his Honour, for the reasons he gives, that, in any event, the judge in fact applied the correct standard.[6] That is, the judge did not apply the test in the manner in which he had erroneously formulated it. Rather, he applied the appropriate civil standard to arrive at the conclusion that any injury from which the appellant was suffering at the time of the hearing of his application was not caused by his use of the equipment belt during his period of employment with Victoria Police. This is apparent especially from the judge’s finding that it was ‘more likely’[7] that the discomfort the appellant suffered as a result of wearing the equipment belt[8] was ‘muscular and not discal’[9] and that there were other hypotheses that could ‘equally be implicated in the causation of the disc injury’.[10] The appellant thus did not satisfy the judge that it was ‘more probable than not’[11] that there was a
causal connection between the appellant’s use of the equipment belt and his disc injury.
[6]Ibid [71]-[75].
[7]Reasons [66].
[8]The judge accepted that the appellant suffered a level of discomfort from using the equipment belt which resulted in lower back pain: Reasons [51].
[9]Ibid [66].
[10]Ibid [72] (emphasis added).
[11]Strong v Woolworths Ltd (2012) 246 CLR 182, 196 [34]; see Kocis v SE Dickens Pty Ltd [1998] 3 VR 408, 410, 420, 430.
As the error was not material to the judge’s decision, the appeal should be dismissed.
OSBORN JA:
The appellant served with the Victoria Police between February 2000 and April 2008. During this time, he was required to wear an equipment belt which caused him ongoing discomfort and postural strain, particularly when he was required to remain seated for extended periods of time. He claims that, as a result of physical stresses caused by the equipment belt, he has suffered injury to his lower back aggravating the degeneration of his spine and causing discal injury.
In April 2013 he made application to the County Court of Victoria for leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’) to commence common law proceedings[12] for the recovery of damages for pain and suffering in respect of injury to his lower back.
[12]See the definition in s 129N of the Act.
There is no dispute that by the date of the hearing of his application[13] the applicant suffered from a degenerative condition of the lumbar spine and associated discal bulging resulting in the recurrent radiation of pain into his left buttock and leg. Nevertheless, the serious injury application was contested on the basis that the condition of the appellant’s back was not caused by his employment, five years earlier, as a member of Victoria Police and, in particular, the use of the equipment belt.
[13]See s 134AB(38)(j).
Injury, in its ordinary meaning, includes an aggravation or acceleration of natural processes of degeneration. It is also defined to include aggravation of a pre-existing injury or disease.[14]
[14]Section 5(2) of the Act incorporates the definition set out in s 3 of the Workplace Injury Rehabilitation and Compensation Act 2013.
Serious injury is relevantly defined by s 134AB(38)(b) of the Act:
the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
The trial judge accepted[15] that the wearing of the equipment belt had caused symptoms of back pain at the time the appellant served as a police officer. He further concluded that the probability was that this pain was muscular and that he was not satisfied that ‘the disc injury was caused by the plaintiff wearing the equipment belt’.[16]
[15]Borazio v State of Victoria & Anor [2014] VCC 1567 [51], [66] (‘Reasons’).
[16]Reasons [71], [73].
The appellant now challenges this decision and submits that the trial judge erred in his:
(a) characterisation of the injury in issue;
(b) approach to the standard of proof;
(c) evaluation of the evidence; and
(d) ultimate conclusions.
In order to address these submissions it is necessary to analyse:
·the evidence in the case;
·the analysis of that evidence by the judge;
·the conclusions reached by the judge; and
·each of the bases on which the appellant seeks to impugn the trial judge’s reasoning and ultimate conclusions.
The evidence
The appellant was born on 14 August 1965 in Italy and migrated to Australia when only nine months old. He completed his schooling to Year 11 at Moorabbin Technical College, and subsequently commenced an apprenticeship as an electrician.
In February 2000, the appellant joined the Victoria Police and served as an officer until April 2008. He then joined the Australian Federal Police (‘AFP’), where he undertook initial training and served for some nine months before resigning. He then returned to his former trade as an electrician and then to a number of other jobs.
The appellant claimed that he suffered injury as a result of wearing a heavy equipment belt around his waist. There was no dispute that he was required to wear such a belt as a police officer. The appellant’s evidence was that when seated in police vehicles, he found that the size and shape of the equipment fitted to the belt meant that he was forced to sit in a twisted position. A police firearm was affixed to the right side of the belt and on the left side, other equipment including handcuffs, a baton, capsicum spray, a multi-tool and spare rounds of ammunition was affixed. In addition, his police radio was affixed in a position which pushed into his lower back on the left side when he was seated in a police vehicle.
The appellant said that in 2007, he began to suffer pain in his left lower back, his left buttock and left leg, left upper back and neck.
The appellant consulted his general practitioner, Dr Courtney, at Cheltenham Park Medical Centre on 26 October 2007, complaining of left-sided lower back pain which he believed was related to driving a police vehicle and the necessity to twist his back to accommodate his gun and radio. He was referred for treatment to an osteopath, whom he saw some six times.
One month later Dr Nolan from the same clinic wrote to the officer in charge at Sandringham Police Station referring to headaches and facial pain suffered by the appellant, which the doctor believed were related to the appellant’s lower back problems resulting from sitting in a police vehicle whilst wearing his equipment belt.
Subsequent clinical notes made on six occasions between 10 April 2008 and 4 June 2008 were tendered, most of which referred to lower back symptoms. These attendances coincided with the time that the appellant joined the AFP and moved to Canberra for training for 3 or 4 months. Whilst in Canberra he received further physiotherapy treatment.
In October 2008, in the course of his induction into the AFP, the appellant told an examining doctor that he had had a muscular strain in 2006 that was a one-off problem from which he fully recovered. On 15 March 2009 when applying for a further job he declared in answer to a medical questionnaire that he did not have any previous back problems.
On 15 March 2011 (almost three years after leaving Victoria Police), the appellant returned to Dr Courtney with persistent lower back pain on the left side and associated left buttock and calf pain.
The appellant was referred to a pain physician, Dr Lovell, whom he saw on 14 April 2011 and who subsequently performed a left sacroiliac injection[17] and recommended a radiofrequency neurotomy.[18] There was no evidence that this latter procedure was in fact performed.
[17]At the junction between the sacrum and the pelvis at the base of the spine.
[18]Division of nerve fibres.
The appellant was also referred by Dr Courtney to an orthopaedic surgeon, Mr Brighton-Knight, who in turn referred the appellant for an MRI scan, which was performed on 20 August 2012.
Mr Brighton Knight considered that the MRI scan demonstrated a foraminal disc herniation[19] which was irritating the L5 nerve root. The appellant said that on 23 August 2012 he underwent a CT guided injection of steroid under local anaesthetic into the L5-S1 exit foramen.
[19]Herniation through an opening in the vertebral bones.
When the appellant was seen by Mr Brighton-Knight on 23 August 2012, Mr Brighton-Knight suggested that decompressive surgery would be useful if the proposed injections substantially improved the appellant’s symptoms. There was no evidence of any later review by Mr Brighton-Knight. In a letter dated 1 September 2012, Mr Brighton-Knight expressed the following opinions to Dr Courtney:
Thanks for your ongoing referral of Mr Borazio whom I saw on 23rd August 2012 and reviewed his MRI scan. He has a foraminal disc herniation which is irritation (sic) his L5 nerve root. It would be useful if this was injected with some steroid and local predominantly as a diagnostic test.
Given the duration of his symptoms, if the injection makes a substantial difference to his pain then one could argue that decompressive surgery would be useful. If the injection did not provide him with much benefit, then unfortunately a simple decompression of the nerve root would be insufficient and one would need to consider more invasive procedures such as spinal fusion.
However, I am not convinced that a spinal fusion would be a good idea in this man at this time and I would certainly go down the path of more non-operative interventions.
The injection therefore is the key to deciding whether or not to proceed with a simple decompression. I have written to Workcover requesting financial liability for the procedure.
Mr Borazio has pushed me very hard on whether I think that his utility belt in the police force contributed to his problem. He even bought an example of the utility belt into the examination room today. I am unable to comment on whether an externally worn device such as this has any significant impact however the medical research suggests that disc herniations occur spontaneously secondary to intrinsic genetically determined disc factors plus the passage of time. There is no increased incidence of disc herniation in any sub-group in a population that has yet been identified other than those who have genetic clustering of back problems. In particular, there has been no specific work place which has predisposed patients to disc herniation.
This is the best advice I can give him however he may obtain a different opinion from a different surgeon or indeed his lawyers may find a different opinion from a different specialty altogether. I will leave this up to them.
At this stage I will continue to manage his problem although as you can see, medico-legally I am not much use to him.[20]
[20]Emphasis added.
Mr Brighton-Knight referred the appellant to a rehabilitation medicine consultant, Dr Shirazi, at St John of God Hospital in Frankston. Dr Shirazi saw the appellant on 30 November 2012 and identified tenderness on palpation over the lumbosacral region on the paravertebral left side. Straight leg raising reproduced pain on the left side in the L5 distribution. Dr Shirazi recommended physiotherapy whether or not surgery was performed and also Lyrica, a pain relieving medication.
Dr Courtney had seen the appellant on 7 June 2012 when he complained of lower back pain, shooting pain into the left buttock and calf and paraesthesia in the left foot. At that time, straight leg raising also reproduced pain and the left L5 facet joint was tender.
On 9 February 2013, Dr Courtney recorded that a nerve root sheath injection had been administered which had been effective for six weeks. On 9 July 2014, Dr Courtney prescribed anti-inflammatory medication and sleeping medication. On 17 July 2014, she noted improvement in the appellant’s symptoms.
Dr Courtney then referred the appellant for a CT scan which was performed on 22 July 2014 and demonstrated mild left-sided foraminal stenosis at L5-S1 which was attributed predominantly to left paracentral/foraminal disc bulge with a suggestion of minor contact of the exiting left L5 nerve root.
On 30 July 2014, Dr Courtney reported to the appellant’s solicitors as follows:
(omitting formal parts)
Mr Borazio is suffering from chronic lumbar back pain with radicular pain radiating down his left leg. The pain is particularly bad in bed at night. It is worsened after activity.
Recent CT scan shows disc bulge at the L5 S1 level with minimal contact with the exiting L5 nerve on the left. The findings are consistent with his symptoms.
The original injury that occurred whilst working for Victoria Police occurred in 2007. At that time he complained of back pain which extended from the lumbar region, up his thoracic spine and extending to left side of his face on occasion.
This was attributed to him having his back rotated due to the pressure of his police belt when driving the divisional van.
My notes make mention of left leg pain on 15th March 2011. MRI scan in 2012 demonstrated a L5 S1 disc bulge with some pressure on the left L5 nerve root.
I believe that his employment contributed to his initial back pain but I cannot see that the disc prolapse is likely to have been related to the posture he had to assume when wearing the utility belt whilst driving.
Mr Borazio has under gone physical therapies, and had facet joint injections. He has consulted an orthopedic surgeon regarding the role of surgery for his condition.
I am currently reassessing his treatment.
I believe that his back pain is likely to persist but that its intensity can be reduced with medical management. It causes him significant distress and limitation in all aspects of his life. It has resulted in significant psychological symptoms such as depression and anxiety.
Mr Borazio is able to work at employment which is mainly sedentary. He is unable to work as an electrician or under take any manual work.[21]
[21]Emphasis added.
A series of medico-legal opinions were also tendered to the trial judge. He was required to assess these without the assistance of oral evidence. As he recorded, there was a division between the opinions adduced on behalf of the parties.[22] Mr Kudelka, orthopaedic surgeon, and Dr Slesenger, occupational physician, expressed the opinion that the appellant’s lower back condition was causally related to the wearing of the equipment belt. Mr Hooper, orthopaedic surgeon, and Associate Professor Brazenor, neurosurgeon, were of the opinion that causation could not be established. Mr Schutz, consultant surgeon, gave an equivocal opinion on causation.
[22]Reasons [36].
In his report of 24 June 2012, Mr Schutz said:
It is possible that an object pressing on that region could cause inflammation and given the period of time over which he developed symptoms it is possible that he developed a chronic soft tissue cause of persisting symptoms.
His diagnosis was:
Left side low back symptoms - cause uncertain. Possibly related to chronic inflammation of the left sacroiliac joint in its superior aspect. Lumbar spine X-rays were normal for his age.
Following an examination on 9 July 2013 (more than five years after the relevant employment ceased), Mr Kudelka expressed an opinion which responded in part to a report of Professor Brazenor:
My own view is that the equipment belt is important, but I have performed many examinations for Victoria Police where the patient has identified the equipment belt as being involved in their symptoms. I agree with Mr Brazenor that the belt and the pistol do not cause a back injury, but patients report symptoms, and injury is a deduction that others make. I believe that the service belt and pistol cause symptoms and it is symptoms that we are treating.
…
In summary therefore, I have respect for Mr Brazenor’s opinion, but my conclusion is that this patient’s symptoms are work related, the treatment has been directed at these symptoms and that there is objective radiological evidence that there is an abnormality in this patient’s lower lumbar spine, which could be, and in my opinion is, associated with the symptoms.[23]
[23]Emphasis added.
After a further examination in July of 2014 and receipt of the results of the CT scan performed on 22 July 2014, Mr Kudelka confirmed his view that the appellant’s ongoing symptoms were work related and expressed the opinion that the discal bulging shown on the CT scan was responsible for the appellant’s left-sided low back pain (the appellant having indicated the left sacroiliac area as the region of his pain). Mr Kudelka described the CT scan taken on 22 July 2014 as showing a mild disc bulge at L4-5 and a broad based disc bulge at L5-S1 bulging to the left. It may be accepted that by this date, it was plain that the appellant was suffering from discal injury: that is, an objectively demonstrable abnormality in his lower lumbar spine.
Dr Slesenger examined the appellant on 20 July 2014 (more than six years after the relevant employment) and said:
His symptoms were triggered by the occupational demands, which included wearing a heavy utility belt and maintaining seated postures for long periods of time interspersed with sudden bouts of activity. Due to his body habitus and the design of the belt, he advised me that most of [the] occupational activities were spent rotated to the right while seated. His symptoms are partially settled with cessation of his occupational activities, however, he has some residual impairment.[24]
[24]Emphasis added.
In a further report of 11 August 2014, Dr Slesenger added:
Nevertheless, I note the onset of Mr Borazio’s symptoms during the course of his employment. He describes a specific aggravation due to the awkward postures he was required to maintain while sitting in a police vehicle for long hours.
I remain of the opinion that there is a temporal association, as well as a plausible link between the onset of his symptoms and his occupational capacity.[25]
[25]Emphasis added.
Mr Hooper examined the appellant on 22 May 2013. He diagnosed degenerative disc disease in the plaintiff’s lower back involving the L5 nerve root which he considered might explain the appellant’s complaints of pain in his left leg. He said:
12.I think it is very hard to associate his symptoms with … the police force. He stated that he had never had any accident or injury, and he has never had time off work. However, his symptoms did start during his work with the police force in 2007.
…
15.He did not mention to me any injury, in fact, he denied any specific accident or injury. He said his pain came on over a period of time which he attributed to wearing the equipment belt/sitting in the car. I think it is hard for me to justify his symptomatology in relation to his work with the police force. I think it can be regarded as being age-related, constitutional and degenerative.
Professor Brazenor examined the appellant on 26 April 2013. He noted the appellant had been able to undertake relatively heavy work:
I note that potentially back-injurious activities to which Mr Borazio has been exposed in the past include working as at an electrician for an unspecified period of time; working as a policeman between 2000 and 2009; further work as an electrician from March 2009 to February 2010; stacking, lifting and carrying electricity meters between February 2010 and February 2012; physiotherapy to [the] spine; and ‘some work on the rowing machine’ in the gymnasium.
He did not find that the MRI scan of 20 August 2012 demonstrated significant abnormality in the spine. He expressed the following opinion as to causation:
Mr Borazio brought a service belt with him today, together with the items of equipment which generally are attached to it (other than the firearm), and I have in fact been shown this belt before by Victoria Police officers who were my patients. What is notable is the extremely inconvenient positions of the holstered pistol on the right hip and, more to the point, the rather large radio unit with surprisingly sharp corners and a surprisingly ‘boxy’ shape seated directly over the left sacroiliac region. I absolutely accept (and have accepted for some time) the premise that it is very uncomfortable for officers to sit in any form of vehicle whilst wearing these belts, and at the time they were issued there was no other option: items of equipment could not be removed from the belt in case they had to get out in a hurry, in which case they would need all the equipment with them.
Nevertheless, it has always been my opinion and it remains my opinion now, that although sitting uncomfortably with this belt can cause temporary back discomfort, I have never been convinced that the belt was capable of actually causing back injury. There is no mechanism that I can imagine which would cause lasting back injury.
He diagnosed ‘degenerative change’ in the appellant’s L5-S1 disc and facet joint.
The opinions favouring the appellant’s case emphasised the centrality of the continuation of symptoms first experienced by the appellant when wearing the equipment belt.
These opinions fell to be considered in the light of the appellant’s own evidence. In his affidavit of 7 December 2012 the appellant said:
Since now and then I have received medical treatments all to no avail. My pain has therefore become progressively worse.
He also said that since his workplace injury he had continued to suffer chronic pain.
In cross-examination however his credit was challenged on the basis that he had not made frank disclosure of the circumstances of his departure from the AFP. In addition, a series of circumstances were highlighted supporting the view that his back materially improved after leaving Victoria Police:
·the declarations of fitness he made when obtaining further jobs;
·the satisfactory completion of training with the AFP;
·employment in relatively strenuous work including installation work through ceiling manholes;
·ability to successfully undertake long hours of night study after a working day;
·very infrequent attendances upon his treating general practitioner for a number of years after his return from Canberra;
·during one period subsequent to the initial injury, the practice of exercising on a rowing machine.
The trial judge had to assess the medico-legal opinions in part by reference to the evidence as a whole bearing on the appellant’s history. It was said in Mobilio v Balliotis:
where, as is often the case when personal injuries are in question the opinions of medical experts are to a considerable extent dependent upon the accuracy of the claimant as historian, the advantage which the primary judge has in assessing the claimant's credibility assumes an importance that is, so to speak, both direct and indirect, when the judge comes to evaluate the lay and expert evidence that has been given.[26]
[26][1998] 3 VR 833, 842.
Analysis of the evidence
The trial judge analysed the evidence as follows:
50The issues which appear to me to require determination are, firstly, did the plaintiff suffer an injury to his lower back when he worked as a police officer between 2000 and 2008; secondly, what injury did he suffer; thirdly, if he suffered an injury, is it the same injury which the medico-legal surgeons have commented on more recently, and fourthly, is he a creditworthy and reliable witness?
51I accept that the plaintiff wore an equipment belt of the kind he described in his first affidavit. I accept that it created a level of discomfort which resulted in him suffering pain in his lower back. I am comfortable in reaching those conclusions primarily because of the letter of Dr Nolan dated 24 November 2007 which is approximate to the time when the plaintiff began to suffer pain in his lower back.
52Apart from the evidence given by the plaintiff of the treatment he obtained from Mr Reeves and Mr Berg, the only direct evidence of treatment are the clinical notes of Dr Courtney, which I have summarised above. It is simply not possible for me to determine what medical condition the plaintiff was complaining about except that there are references to his lower back and thoracic spine. It would appear that the diagnoses made were of muscle strains.
53Despite suffering lower back pain, the plaintiff obtained employment with the Australian Federal Police. He moved to Canberra for three or four months, where he undertook training at a college. He has not described what that training involved. It must have involved physical effort which would have put his lower back under some strain.
54The reason the plaintiff gave for ceasing his training with the Australian Federal Police had nothing to do with his lower back injury. In his first affidavit, he said that he resigned because he wanted a change in his life direction because of his mother’s death. However, in an email from the plaintiff to the Australian Federal Police dated 24 February 2009, he gave an entirely different reason. The plaintiff was subject to a professional standards investigation. He said that he regretted and apologised for his actions. He said that he was to commence alternative employment on 9 March 2009, and that his last day of service would be 6 March 2009.
55The plaintiff said that the reason why he did not refer to his mother’s death as being an additional reason for resigning was because he wanted to keep his private life and his professional life separate. Whether that is so or not, it is clear that he resigned for reasons other than any incapacity caused by his lower back condition. Indeed, he added that he regarded the Australian Federal Police as his career, and that he would have ‘preferred to have stayed’.
56The plaintiff subsequently worked with HRV.[27] The work he performed with HRV was the installation of power points in the ceilings of domestic premises. He described the work and the reason why he had that job for only nine months as follows:
[27]Heat Recovery Victoria.
Q: In the meantime, the power points you had been installing were mainly to higher parts of particular rooms?---
A: Yes.
Q: Because it was for a particular appliance?---
A: Yes.
Q: So that would you be able to give His Honour an idea, was it close to the edge of the ceiling or actually on the ceiling?---
A: It was inside the ceiling space, Your Honour, and it was generally located right where the manholes was. Manholes are usually located within laundries premises and sometimes it involved getting up in the ceiling space and sometimes it involved just standing on top of the ladder and doing the work there because I could tap off a power point which was directly below me in the laundry generally, the one that was for the washing machine.
Q:You would have to do the rewire - you would have to continue the wiring from such a power source up to the plug that was to be installed at or near ceiling height?---
A: Yes.
Q: Of course it involved, if one was using proper practice, the use of a ladder?---
A: Yes.
Q:At the very least and, as well as a ladder, climbing into, from time to time, the ceiling cavity?---
A: Yes, Your Honour.
Q: And perform such work in such a space?---
A: Yes.
Q:The only thing that brought that to an end was you being made redundant?---
A: Yes.
57.The plaintiff then commenced employment with Skilltech in about February 2010. In his first affidavit, he described having difficulty performing the work required of him. He said that the lifting and carrying of boxes of electricity smart meters was something he could only do for a short period of time because it resulted in an increase in pain in his lower back. He said, as a consequence, he would pay for doing that work, and after a day’s work he would have to lie down in bed. However, under cross examination, the plaintiff revealed that he only performed this physical work for a fraction of the time he was with Skilltech:
Q: And you heard counsel on your behalf opening the case to the court that initially you were doing some sort of work with Skilltech but ultimately you became a supervisor?---
A: That’s correct.
Q: But before that you were doing more manual type work before the supervision work?---
A: Yes.
Q: Were you doing the actual installing of the electricity meters yourself?---
A: Yes I was.
Q: You were with Skilltech were you not for around about two years?---
A: A bit longer than two years, from memory.
Q: For how long, of the period that you were with them, had you become a supervisor?---
A:The vast majority of that. I think I was installing meters for six weeks and then I moved to auditing, which didn’t require any - very minimal physical work, taking covers off meters to make sure that wiring had been done correctly and that was probably for another two months. Then after that I obtained a management position.
Q: To be fair to yourself that was, was it not, as a result of your efforts in the field, as it were, you were promoted within the company?---
A: Not so much through my efforts in the field but I think, how can I put it? I showed a little bit more initiative and intelligence, I suppose, to some of the other tradesmen that were there.
Q: I might have put it in a clumsy way, when I say efforts in the field, but you demonstrated with your work that you had some, if I could put it in a very basic form, you had intelligence and initiative in ways to get on with the work and that you were well motivated to do it?---
A:I’d regard myself, Your Honour, as a lateral thinker and I think that probably shone through more than the quality of my work. As far as quality of work in installing meters, there really isn’t much to it. You take one meter off and you put one meter on. It’s the things around the edges, you know, turning up on time, being reliable, going out of my way to assist other people. I think that’s probably what promoted me more so than quality of work.
Q:What I am putting to you is that Skilltech regarded you as a good employee?---
A: Yes.
Q: And hence the promotion?---
A: Yes.
Q:It was just that, going back my earlier question, it was a promotion?---
A: Yes, definitely.
Q:Then unfortunately for yourself that also came to an end. Incidentally, without those two retrenchments, that is from HRV to begin with and secondly Skilltech I suggest that you would have remained certainly with one or other, particularly with Skilltech, if there had not been the unfortunate situation that it faced in the economy, that you may well be still with that company?---
A:That’s correct, I was looking for employment while I was with HRV but certainly with Skilltech I would have been happy to remain in a supervisory position.
58Contrary to the flavour of the plaintiff’s affidavit, I take the consequences that he described to be limited to the six-week period before taking on the supervisory role. The plaintiff’s employment with Skilltech was otherwise unaffected. Indeed the plaintiff would have remained in this role had he not been made redundant.
59The plaintiff worked with Skilltech until about August 2013. While he was working with Skilltech he completed a diploma in project management at Holmesglen TAFE.
60As far as I can determine, the plaintiff had very little treatment between mid-2008 and when he first saw Dr Lovell on 14 April 2011. During that period, he worked full time with HRV and with Skilltech. Even with the use of the clinical notes and the reports of Dr Lovell, it is difficult for me to determine what lower back condition the plaintiff was suffering from when he was referred to Dr Lovell. The best I can make of Dr Lovell’s reports is that he considered that the plaintiff’s pain was most likely coming from his sacroiliac joints.
61At the time when the plaintiff applied to join the Australian Federal Police, he was required to undergo a medical examination. He admitted to suffering a muscular problem with his lower back in 2006. However, the examining medical practitioner was told by the plaintiff that it was a ‘one off’ problem from which he fully recovered.
62Before the plaintiff was employed by HRV, he completed a pre-employment health assessment questionnaire on 15 March 2009. In answer to question 3(e), which asked whether he had suffered from any work-related health conditions, he answered that he had suffered minor injuries. In answer to question 4(g), he denied having suffered any previous back problems, and in answer to question 4(u), he denied having any disabilities affecting his capacity to stand, sit, walk, lift, drive or climb stairs.
63The denial by the plaintiff, during the medical examination and in the questionnaire, occurred at a time when the plaintiff said that he was troubled by an injury to his lower back. He sought to downplay the medical examination by saying that there was not much to the medical examination. In relation to the questionnaire he sought to downplay it as well. It appears to me that the medical examination and the questionnaire demonstrate that the plaintiff was prepared to represent to a prospective employer that he was fit, well and able to undertake the tasks associated with the duties involved in the employment he was applying for.
64Before the plaintiff was referred to Mr Brighton-Knight he does not appear to have demonstrated any clinical signs consistent with a disc injury with neural compression. It is very clear that Mr Brighton-Knight understood that the plaintiff had undergone an injection as a diagnostic test, and that the MRI scan, which he inspected, demonstrated a foraminal disc herniation, which was irritating the L5 nerve root. It would appear that it was at that point that the first diagnosis of a disc injury was made.
65Despite the plaintiff’s attempt to impress Mr Brighton-Knight that it was the equipment belt which had initiated his lower back pain and was likely to have been responsible for the disc injury, Mr Brighton-Knight could not have stated his opinion on that issue any more clearly than he did. He simply did not accept that there was a causal relationship between wearing the equipment belt and the disc injury.
66 Pausing here, the only conclusion which the evidence thus far is capable of pointing to is that the plaintiff suffered some discomfort in his lower back as a result of wearing the equipment belt. Again, the best I can do from the clinical notes is to conclude that whatever was the cause of the discomfort, it was more likely to have been muscular and not discal.
67I think there is something in the opening observations made by Professor Brazenor. He considered that it was inconsistent with a proper appraisal of the cause of the plaintiff’s discal injury to ignore the fact that the plaintiff had performed other work since ceasing work as a policeman with Victoria Police. Some of that work, at least with HRV, appears to me to have been physically arduous work which would have placed strain on the plaintiff’s lower back. Even in the supervisory role, which the plaintiff occupied with Skilltech, he was still involved in activity which would have placed some strain on his lower back, but probably less when compared with the work he was doing with HRV.
68There seems to be little doubt that the plaintiff’s present lower back condition is as described by Mr Brighton-Knight, Mr Hooper, Professor Brazenor, Mr Kudelka and Dr Slesenger. They each have considered the place for surgery to ameliorate the plaintiff symptoms of leg pain.
69Mr Hooper and Professor Brazenor, like Mr Brighton-Knight, do not accept that wearing the equipment belt would produce a discal injury. Whereas Mr Kudelka appears to be convinced that there is a causal connection.
70Dr Slesenger appears to consider that there are three causes – wearing the equipment belt; maintaining seated postures for long periods of time, and sudden bouts of activity. His opinion is not quite as strong as Mr Kudelka’s, because he then said that he was satisfied that there was ‘a temporal association’ between the onset of the plaintiff’s lower back pain and wearing the equipment belt. He then added that there was ‘a plausible link between the onset of his symptoms, and his occupational capacity’. It is not clear to me what he meant by the expression ‘occupational capacity’, but contextually he appeared to be working on the basis that it was the wearing of the equipment belt, maintaining seated postures for long period periods of time, and sudden bouts of activity that contributed to the production of the plaintiff’s lower back condition.[28]
[28]Reasons [50]-[70].
Although some criticism is directed to aspects of detail within this analysis, it correlates the critical elements of the evidence and taken as a whole is a coherent and balanced account of the issues raised by it.
In my view, the evidence demonstrated at least the following material matters:
·the appellant initially suffered from generalised back pain which extended to his upper back and face;
·the treatment given during the period of the initial injury was treatment for muscular stress;
·the injury the appellant suffered did not preclude him from training for the AFP or undertaking relatively strenuous work thereafter;
·when joining the AFP the appellant stated that he had suffered a muscular injury from which he had fully recovered;
·before obtaining further employment in 2009 the appellant declared that he had no prior back problems;
·the statements made by the appellant were inconsistent with the appellant’s affidavit evidence that he suffered continuing stressful pain in his lower back from the time of his employment with Victoria Police onwards;
·the appellant did quite heavy work and lived a very active life for a number of years after the initial injury;
·the appellant had very little medical treatment between mid-2008 and April 2011;
·the first diagnosis of discal injury was made by Mr Brighton-Knight in August 2012, more than four years after the employment with Victoria Police ceased;
·Mr Brighton-Knight, the treating surgeon, did not accept that he could state that a causal relationship existed between the condition he diagnosed and the use of the equipment in issue;
·Dr Courtney, the treating general practitioner, said there was probably no causal nexus;
·the medico-legal opinions as to causation were divided;
·the opinions of both Mr Kudelka and Dr Slesenger were not free from difficulty from the appellant’s point of view. In particular, the statement by Mr Kudelka that he agreed with Professor Brazenor that the wearing of the equipment belt ‘would not cause back injury’ was not helpful. Likewise, the statement by Dr Slesenger that the appellant’s initial symptoms abated and then recommenced did not assist the appellant’s underlying case. Nor did his postulation of no more than a ‘plausible link’ materially advance things;
·neither Mr Kudelka nor Dr Slesenger postulated an actual mechanism linking the initial injury to the discal injury. They hypothesised a link by virtue of temporal coincidence and persistence of symptoms;
·there was a significant time lapse between the initial injury and the identification of discal symptoms;
·there was a very significant time lapse between the initial injury and the points in time at which Mr Kudelka and Dr Slesenger first examined the appellant;
·the opinions favouring a causal connection are fundamentally based upon the temporal coincidence of the initial symptoms of back pain with the use of the belt and the asserted continuation of those symptoms. As such, they turn ultimately on the history given by the appellant;
·that history cast significant doubt upon the extent and nature of the continuation of the appellant’s symptoms; and
·Mr Hooper and Professor Brazenor diagnosed degenerative disc disease and did not accept a causal link with the use of the equipment belt.
Because of the above matters, the intermediate finding made at [66] of the judge’s reasons was of substantial significance:
Pausing here, the only conclusion which the evidence thus far is capable of pointing to is that the plaintiff suffered some discomfort in his lower back as a result of wearing the equipment belt. Again, the best I can do from the clinical notes is to conclude that whatever was the cause of the discomfort, it was more likely to have been muscular and not discal.[29]
[29]Reasons [66].
This finding was supported by the matters to which the judge referred and by the specific clinical note of Dr Courtney made on 9 July 2014 that lumbar symptoms developed in 2011. The finding was not the subject of specific challenge on appeal and accords with the weight of the evidence.
The trial judge’s conclusions
The trial judge went on to conclude as follows:
71I am not satisfied that the disc injury was caused by the plaintiff wearing the equipment belt in his employment as a police officer with Victoria Police.
72 There are a number of factors which militate against such a finding:
· The initial diagnoses, through 2008 and before the plaintiff saw Mr Brighton-Knight, appear to be a lower back condition, which is muscular rather than discal.
· The plaintiff has not had any significant periods of time off work. The real reason why he stopped work with the Australian Federal Police was because of conduct on his part, which saw him the subject of a professional standards investigation. In any event, the plaintiff intended to continue with that employment because it is in apparent that he was fit enough to tolerate the duties of a police officer.
· Furthermore, the plaintiff subsequently worked with HRV and Skilltech without incident. The duties he performed with HRV appear to me to have been relatively arduous. The same cannot be said of the duty to perform with Skilltech. However, it would appear that he did not have any significant time off with either employer. It is also highly relevant that if he had not been made redundant by HRV or Skilltech, that he would still be working with both employers. The plaintiff continues to work in self-employment as an electrician.
· It is odd that there are no conventional medical reports from Mr Reeves, Mr Berg, Dr Courtney, Dr Lovell and Mr Brighton-Knight. In a case involving causation, it is imperative that the plaintiff establish that the initial treatment, and the treatment which followed, is consistent with the plaintiff suffering an injury. In this instance, there is very little medical evidence to demonstrate that the injury diagnosed, for example, by Mr Kudelka, is the same injury suffered by the plaintiff when he worked as a police officer with Victoria Police.
· The latter point brings me to the observation made by Professor Brazenor, who essentially was of the opinion that there are other hypotheses: that the disc injury was caused by the plaintiff’s other work, or that its occurrence might be entirely coincidental or idiopathic. If there are competing hypotheses, then the plaintiff must demonstrate that the other competing hypotheses are unsustainable. He has not, in my opinion, done that.
· There is a strong body of medical opinion from Mr Brighton-Knight, Mr Hooper and Professor Brazenor that, in their opinion, the wearing of an equipment belt cannot be implicated in the causation of the disc injury. They are all surgeons involved in the treatment of spinal conditions. I think their opinions are compelling, and I prefer their opinions to those of Mr Kudelka and Dr Slesenger. I am particularly persuaded by the opinion of Mr Brighton-Knight. He was aware that the plaintiff wanted him to accept that the wearing of the equipment belt was the cause of the disc injury. As is apparent, Mr Brighton-Knight would not accept that proposition. His non-acceptance must mean that he considered that the disc injury occurred by another cause, or perhaps causes. It is an opinion consistent with the observation by Professor Brazenor that there might be other hypotheses which can equally be implicated in the causation of the disc injury. It follows that Mr Hooper is of a similar opinion.
73On the basis of the foregoing, I am not satisfied that the disc injury suffered by the plaintiff was caused by the plaintiff’s employment as a police officer with Victoria Police.[30]
[30]Reasons [71]-[73].
These paragraphs disclose an intelligible path of reasoning. The fundamental question is whether there was material error in the way in which the judge approached the matter and arrived at his factual conclusions.
The characterisation of the injury[31]
[31]Grounds 4 and 5 of appeal:
4.The Trial Judge erred at [71] and [73] in failing to determine the Appellant’s case as opened (T11) and closed (T80), namely that the compensable injury was not confined to discal injury but included aggravation of degenerative changes in the Appellant’s lumbar spine.
5.The trial Judge should have determined on the balance of probabilities whether the Appellant suffered compensable injury to his lumbar spine (whether by way of aggravation and/or acceleration of degenerative changes or discal injury) to which employment with the Respondent was a contributing factor, and thereafter determined the impairment consequences of that compensable injury.
The appellant submits that the trial judge failed to recognise not only that the appellant claimed to have suffered a discal injury but also aggravation of degenerative changes in the lumbo-sacral spine.
There is nothing in this point. The trial judge’s reference to ‘discal injury’ was plainly intended to refer to aggravation of spinal degeneration with discal consequences. In opening, counsel for the appellant put it this way:
The body function is an aggravation of degenerative changes to the low back. The MRI showed that there are disc bulges and that there is an L5 nerve root irritation.
In closing address, counsel for the appellant further made clear that the appellant’s case was that there was an initiating injury which aggravated degenerative changes in the lower back which resulted in the discal injury.
The two medico-legal opinions upon which the appellant placed primary reliance put it this way:
·Mr Kudelka said ‘22.07.2014 CT lumbar spine shows mild bulge at L4/5 and a broad-based disc bulge at L5/S1, bulging to the left. I think this is responsible for his left sided low back pain.’[32]
·Mr Slesenger said ‘Mr Borazio has developed lower back pain as a result of symptomatic degenerative disc disease. He also has some left L5 radicular symptoms.’[33]
[32]Emphasis added.
[33]Emphasis added.
The degeneration relied on as causing pain was the development of discal injury. The case as to serious injury thus depended entirely upon establishing some causal link between the appellant’s employment and discal injury.
In turn, the central factual question in the present case was whether the appellant could establish that he suffered more than a muscular strain prior to ceasing work with Victoria Police and, in particular, that he had suffered permanent damage to the lower spine, which was a cause of discal injury. The trial judge directly addressed the real issues of causation in the case.
Further, this was not an aggravation case in the specific sense contemplated by the Act. There was no medical evidence of a pre-existing injury or disease which was aggravated or accelerated. Nor was there any evidence from the appellant that he suffered symptoms from which such a pre-existing injury or disease could be inferred.
I should add for completeness that an aggravation injury must of course itself independently qualify as a serious injury for the purposes of s 134AB of the Act.[34]
[34]AG Staff Pty Ltd v Filopowicz (2012) 34 VR 309, 314-5 (Kyrou AJA, with whom Mandie and Bongiorno JJA agreed) and the cases there cited.
Further, if the case is properly characterised as an aggravation case, the appellant was bound to satisfy the requirements of both s 81(1) and s 82(2C)(c) of the Act and demonstrate that the appellant’s employment was a significant contributing factor to the aggravation.
In the event the matter was resolved against the appellant simply on the basis that the judge was not satisfied of any causal connection between the appellant’s relevant employment and his discal injury at the time of the hearing of the application for leave. Such a conclusion was necessarily dispositive of the matter given the diagnostic attribution of the appellant’s symptoms of pain to discal injury.
Standard of proof[35]
[35]Ground 1 of appeal:
1.The trial Judge erred in law at [72] in requiring of the Appellant ‘if there are competing hypotheses, then the Plaintiff must demonstrate that the other competing hypotheses are unsustainable’.
The appellant was required to prove on the balance of probabilities that the injury propounded as a serious injury arose out of his employment. This necessitated proof of a causal link between the employment and the injury.[36]
[36]Kavanagh v The Commonwealth (1960) 103 CLR 547, 556 (Dixon J).
Section 134AB(19)(a) expressly provides:
a court, other than the Magistrates' Court, must not give leave unless it is satisfied on the balance of probabilities that the injury is a serious injury;
In Zlateska v Consolidated Cleaning Services & Anor the Court stated the basic principles as follows:
8For the reasons set out below, where it can be shown on the balance of probabilities that the act or omission of the employer was a cause of the injury, the worker will have established a sufficient connection to their employment to characterise the injury as ‘arising out of’ their employment. (There may be exceptions to the generality of this proposition but we cannot for the present conceive of any. Nor did either counsel suggest any exceptions when this proposition was put to them by the President in the hearing.)
9The question of causation is a matter of common sense. It is not necessary for the worker to establish that the act or omission of the employer was the sole or dominant cause of the injury, or that the employment itself created any ‘special risk’ of or ‘special exposure’ to injury.[37]
[37][2006] VSCA 141 [8]-[9].
The appellant submits that, in stating the factors set out in [72] of his reasons, the trial judge imposed the criminal standard of proof on the appellant. In particular, complaint is made of the following statement:
The latter point brings me to the observation made by Professor Brazenor, who essentially was of the opinion that there are other hypotheses: that the disc injury was caused by the plaintiff’s other work, or that its occurrence might be entirely coincidental or idiopathic. If there are competing hypotheses, then the plaintiff must demonstrate that the other competing hypotheses are unsustainable. He has not, in my opinion, done that.[38]
[38]Reasons [72].
The judge was obliged to consider whether the appellant had satisfied him that the inference of spinal injury was more probable than not.[39] The use of the word ‘unsustainable’ in respect of competing hypotheses was unfortunate. It might be understood to mean not reasonably open or it might be understood to mean not equally probable.
[39]Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 536 (Gibbs CJ and Mason J); Chapman v Cole (2006) 15 VR 150, 154 [15] (Callaway JA).
If the words in issue were utilised in a charge to a civil jury, they would not be adequate and they should not be used as a shorthand for the relevant standard of proof in reasons for a decision of a judge sitting alone.
There is in turn substantial force in the submissions of counsel for the appellant that the use of the word ‘unsustainable’ reflects the error of approach explained by Hasluck J (with whom Murray and Parker JJ agreed) in Delta Corporation Ltd v Davies.[40] Whilst the appellant was required to demonstrate that the hypothesis for which he contended was more probable than not, he was not required to negate all other hypotheses. Hasluck J summarised the relevant principles as follows:
[40][2002] WASCA 125.
81 The possibility of a contrary finding does not prevent a finding reached on that standard from being appropriate. It is not enough for a plaintiff to fail that his account may not be correct. For example, in Goodwin v Nominal Defendant (1979) 54 ALJR 84 the plaintiff driver suffered head injuries and could not remember the relevant events. The surviving passenger was thought by the trial Judge to be unimpressive as a witness. The High Court held that the trial Judge had erred in concluding that the plaintiff must fail if there were valid reasons for taking the view that the hypothesis which supported his case may not be correct having regard to two alternative hypotheses adverse to the plaintiff’s case.
82 The High Court said at p 86:
It was, we think, this process of analysis, involving initial assumptions and the postulating of what were three hypothetically probable explanations, together with the approach that the plaintiff must fail if there were valid reasons for taking the view that the hypothesis which supported his case may not be correct, which led to the conclusion that the plaintiff's claim should fail. Had the matter been approached by confining the inquiry to the question whether the plaintiff had satisfied the onus of establishing that it was more probable than not that the accident was caused by the negligence of the driver of an unidentified vehicle, his Honour must, we think, in view of his own careful assessment of the evidence as disclosed in his reasons for judgment, have found in favour of the plaintiff. His Honour did, of course advert to that question in the course of his judgment but seems never to have escaped the effect of the general approach which he adopted.[41]
[41]Ibid. See also [93], [105].
Nevertheless, when his Honour’s statement is read in context,. I am not satisfied that he in fact misdirected himself as to the standard of proof. When his reasoning as a whole is examined I take him to be saying that the appellant was required to demonstrate that the inference sought to be drawn was more probable than competing inferences. It was, of course, necessary for the appellant to go beyond ‘conflicting inferences of equal degrees of probability so that the choice between them is (a) mere matter of conjecture.’[42]
[42]Bradshaw v McEwansPty Ltd (1951) 217 ALR 1, 5 (Dixon, Williams, Webb, Fullagar and Kitto JJ.
Moreover, I am satisfied in any event that even if his Honour misstated the relevant standard, he in fact applied the correct standard. This was not a case like Goodwin’s Case[43] in which the general approach adopted by the trial judge reflected error.
[43](1979) 54 ALJR 84.
Immediately, after the passage complained of, the trial judge went on to positively prefer the opinions of Mr Brighton-Knight, Mr Hooper, and Professor Brazenor to those of Mr Kudelka and Mr Slesenger. These opinions address the probabilities of a causal connection between the work complained of and the appellant’s condition at the time of the expression of the opinion. The preference for the opinions of the treating surgeon and the respondent’s experts was necessarily dispositive of the appellant’s case on causation.
The trial judge stated that he placed particular reliance upon the opinion of Mr Brighton-Knight. In this context, he said that Mr Brighton-Knight’s position must mean that he considered that the disc injury
occurred by another cause, or perhaps causes. It is an opinion consistent with the observation by Professor Brazenor that there might be other hypotheses which can equally be implicated in the causation of the disc injury.[44]
This passage confirms that ultimately his Honour concluded that he was not persuaded that the causal connection postulated by the appellant was more probable than not. It was not more probable than other hypotheses which were equally open.
[44]Reasons [72].
Other passages in the judgment also demonstrate that his Honour made a series of intermediary findings on the balance of probabilities. The most significant of these was the finding at [66] which I have quoted above.
I am not persuaded that the trial judge erred in the standard of proof he imposed upon the appellant. The passage complained of does not demonstrate error with respect to the standard of proof which the trial judge in fact applied to the appellant’s case.
Did the trial judge materially misconstrue the evidence?[45]
[45]Grounds 2 and 3 of appeal relevantly state:
2.The trial Judge erred at [72] (and [65] and [69]) in treating Orthopaedic Surgeon Mr Brighton-Knight as having determined that the wearing by the Appellant of his police equipment belt could not be implicated in the causation of the discal injury when that practitioner had specifically refrained from commenting on the issue.
3.The trial Judge erred at [72] in finding that there were ‘no conventional medical reports’ from-
•treating General Practitioner Dr Courtney when a report from that practitioner dated 30 July 2014 was tendered at trial;
•treating orthopaedic surgeon Mr Brighton-Knight when a letter from that practitioner dated 1 September 2012 to like effect was tendered at trial;
• from treating pain management specialist Dr Lovell when a report dated 5 October 2011 was tendered at trial.
The appellant submits that independently of the question of the standard of proof, the last dot point of [72] of the judge’s reasons demonstrates that he mischaracterised the evidence. It is further submitted that there were differences in the way Mr Brighton-Knight, Mr Hooper and Professor Brazenor dealt with the probabilities of alternative hypotheses, and that it was wrong to describe them jointly as holding the opinion that the wearing of the equipment belt ‘cannot be implicated in the causation of the disc injury.’ I accept that there were differences in the way each of these witnesses expressed their opinions, but it remains true that, fundamentally, none of them accepted that the initial injury could be positively implicated as a cause of the appellant’s discal condition.
I also accept that Mr Brighton-Knight did not positively state that the wearing of the equipment belt could not be implicated in the causation of the discal injury. However, Mr Brighton-Knight said that ‘medical research suggests that disc herniations occur spontaneously secondary to intrinsic genetically determined disc factors plus the passage of time’ and that ‘there is no specific work place which has predisposed patients to disc herniation.’ The judge was therefore right to say that Mr Brighton-Knight would not accept the proposition put to him by the appellant that the wearing of the equipment belt was the cause of the discal injury. Professor Brazenor stated that he did not believe the appellant’s employment with the Victoria Police had significantly contributed to his lower back condition and that there was no mechanism involved in the use of the belt which would cause lasting back injury. In his view, the appellant suffered from degenerative change in his L5-S1 disc and facet joints. Mr Hooper also diagnosed degenerative disc disease in his back and regarded the appellant’s symptoms as age-related, constitutional and degenerative.
There are differences of emphasis in these reports which may partly be explained by the fact that Mr Brighton-Knight’s report was not made for medico-legal purposes. The nuances between them are not fully reflected in the language of the last dot point in [72] of the judge’s reasons. Nevertheless, it seems to me that in so far as he erred, the judge understated the extent to which Professor Brazenor and Mr Hooper were adverse to the appellant’s case. Professor Brazenor did not simply say that there might be other hypotheses that could be equally implicated in the causation of the disc injury, he rejected the proposition that use of the belt could be implicated. Mr Hooper also postulated other causes as the probable cause of the injury.
In summary, the medical opinions the trial judge preferred:
·state that the initial injury cannot be positively implicated as a cause of discal injury; and
·postulate alternative hypotheses which are at least equally if not more plausible than that for which the appellant contends.
The judge preferred these opinions for the reasons he stated in the context of the matters identified by him in the previous dot points. In particular, he preferred the expertise of the three surgeons upon whose opinions he relied. There was no error in this approach.
It is necessary next to turn to a series of discrete points raised by ground 3 of appeal.
His Honour said at different points in his reasons that no medical report of a conventional type had been received from Dr Courtney. At one point, he also stated that a conventional report would set out the chronology of the appellant’s treatment. It may be accepted that in this sense Dr Courtney’s report was not a conventional medico-legal report and that this inadequacy bore on significant contextual circumstances in the case. Indeed the appellant’s counsel addressed the court on appeal in reply by reference to Dr Courtney’s clinical notes, precisely in order to put the appellant’s case in respect of the chronological aspects of the matter. His Honour did not err in referring to the absence of a conventional medical report. Nevertheless, it seems clear that the judge ultimately overlooked Dr Courtney’s report entirely and that, for this reason, he erred in that it constituted a relevant piece of evidence.
The difficulty from the appellant’s point of view is, however, that that report was directly adverse to the appellant’s case on the issue of causation. Dr Courtney’s view was that it could not be concluded that the equipment belt probably caused the appellant’s current condition. Accordingly, the error identified cannot sensibly be regarded as vitiating the judge’s conclusion.
It is next submitted that the judge failed to acknowledge that the MRI scan report of 20 August 2012 (Exhibit 3) and a CT scan report of 22 July 2014 (Exhibit 8) were tendered at trial. It seems, however, that the MRI scan was not tendered as part of Exhibit 3, which comprised the clinical notes of Dr Courtney.
Insofar as the CT scan is concerned, his Honour referred to the substance of that scan, namely that it showed a mild bulge at L4-5 and a broad-based disc bulge at L5-S1 bulging to the left and to the opinions based on this imaging. Further and more fundamentally, none of the medical opinion suggested that the medical imaging undertaken between four and six years after the appellant left Victoria Police could be regarded as demonstrating, of itself, the causal connection for which the appellant contends.
Next, it is submitted that his Honour was wrong to say that no conventional medical report was received from Mr Brighton-Knight. I have quoted the relevant letter above and it is plain Mr Brighton-Knight did express an opinion on the critical issue of causation. That opinion was again adverse to the appellant. Whether or not the letter amounted to a conventional medical report is thus of little moment.
It is further submitted that the judge did not have proper regard to correspondence from Dr Lovell which was relevant because it demonstrated approval by the respondent’s insurer for medial branch blocks relevant to compensable spinal injury. Dr Lovell’s report of 4 August 2011 says however that the first facet medial branch block was negative and it could be concluded that the appellant did not have facet joint pain. He concluded the pain was most likely from the sacroiliac joints and treatment continued on this basis. There was never any doubt the appellant suffered some injury in 2008. The question was what injury. Dr Lovell’s investigation did not establish spinal injury. At trial, the judge queried the sense in which a relevant admission could be implied from the insurer’s approval of the investigation. No Ansett Australia Ltd v Taylor[46] point was ultimately pressed. In my view, approval of this procedure did not evidence admission of the fact of injury of the type now contended for. Further, Dr Lovell’s report did not materially advance the appellant’s case. Indeed, the outcome of the procedure now relied on favoured the respondent’s case.
The weight of the evidence[47]
[46][2006] VSCA 171.
[47]Ground 6 of appeal is expressed somewhat differently but as argued it was directed to this issue. Ground 6 of appeal:
6The trial Judge failed to adequately consider, or alternatively to provide adequate reasons having given adequate consideration, to the whole of the evidence including -
(a)the Appellant’s evidence as to the symptoms of injury commencing in 2007 and continuing thereafter;
(b)letter of general practitioner Dr Nolan to the Respondent dated 24 November 2007;
(c)report of general practitioner Dr Courtney dated 30 July 2014;
(d)reports of Mr Kudelka Orthopaedic Surgeon dated 18 July 2013 and 31 July 2014;
(e)report of Mr Schutz Orthopaedic Surgeon dated 31 January 2012;
(f)report of Dr Slesenger Occupational Physician dated 31 July 2014;
(g)MRI scan 20 August 2012 and CT scan 22 July 2014 (which contrary to [49] were respectively tendered in exhibit 3 and exhibit A);
(h)letter of Mr Brighton-Knight Orthopaedic Surgeon, dated 1 September 2012;
(i)report of Mr Hooper Orthopaedic Surgeon dated 22 May 2013 accepting that the Appellant’s symptoms did start during his work with the Police Force in 2007;
(j)report of Mr Brazenor Neurosurgeon 26 April2014 accepting that wearing of police equipment belt by the Appellant could cause temporary back discomfort in circumstances where the evidence disclosed the continuation of ongoing lumbar spine symptoms from 2007 and continuing thereafter.
It is further submitted that on balance the evidence established that the appellant suffered injury to the lumbar spine as a result of stress caused by the equipment belt.
In my view the underlying factors identified by his Honour at [72] of his reasons well justified his conclusion. I would add the following:
·the opinions expressed by the appellant’s chief treating general practitioner, Dr Courtney, and the treating specialist, Mr Brighton-Knight, do not support his case;
·the medical imaging demonstrating spinal degeneration and discal protrusion post-dates the alleged injury by a number of years;
·the appellant’s statements to prospective employers and his engagement in a series of strenuous jobs and activities are inconsistent with the substantial persistence of symptoms of the type of which he initially complained;
·the opinions of Mr Kudelka and Dr Slesenger were retrospective opinions in that they did not examine the appellant until many years after the initial injury;
·the opinions of Mr Kudelka and Dr Slesenger were essentially predicated upon the appellant’s history of persistence of symptoms;
·this history fell to be assessed in the light of the evidence as a whole and was subject to significant doubt;
·Mr Shutz postulated chronic soft tissue symptoms when he saw the appellant in January 2012;
·Mr Hooper and Professor Brazenor rejected the causal mechanism postulated and identified alternative probable causes;
·Mr Brighton-Knight, when specifically asked, would not implicate the use of the equipment belt in the causation of the discal injury and identified alternative causes generally supported by medical research;
·the evidence as a whole, including the appellant’s work history, favours the conclusion that the initial injury was a muscular injury;
·the weight of the medical opinion favours the view that it cannot be positively established that the equipment belt caused a permanent back injury.
Conclusion
The trial judge squarely addressed the evidence in detail and correctly identified the critical issues. The fundamental reasons he gave for his conclusions
with respect to those issues were cogent, albeit that aspects of his reasoning were, as explained, poorly expressed and that he made some incidental mistakes of detail concerning the evidence. Moreover, his conclusions accorded with the weight of the evidence in any event. Specific error has not been demonstrated in the judge’s conclusion with respect to causation.[48]
[48]Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 (Redlich & Tate JJA); Merhi v Ford Motor Company Australia Ltd [2014] VSCA 328 (Neave JA, Tate and Santamaria JJA agreeing).
The appeal should be dismissed.
McLEISH JA:
I agree with Osborn JA, for the reasons he gives, that the appeal should be dismissed. I specifically agree that the language of unsustainability, as used by the primary judge, should be avoided in describing the standard of proof in serious injury applications, but that when the reasons of the primary judge in this case are read as a whole it is clear that, despite using such language, he applied the correct test. Even if that were not so, for the reasons explained by Osborn JA, the judge’s conclusions accorded with the weight of the evidence and should not be disturbed.
Although stating that a plaintiff is required to demonstrate that competing hypotheses are unsustainable may well suggest, as a matter of ordinary language, that the plaintiff is required positively to disprove all competing hypotheses, in my view it may also mean no more than that the plaintiff must show that his or her hypothesis is to be preferred (or ‘sustained’), as against the other possible explanations. The latter meaning is consistent with the correct test, because it does no more than require the plaintiff to prove his or her case, based on all the evidence, on the balance of probabilities.
At the same time, the decision in Delta Corporation Ltd v Davies[49] shows that the former meaning would incorrectly state the law. For that reason, as Osborn JA states,[50] the formulation would be confusing and inadequate if used to direct a jury. However, the question what the judge in the present case meant by the expression in question can only be answered by considering the language used in the context of the whole of the reasons for decision. In my opinion, the analysis undertaken by Osborn JA, amplified by the additional reasons of Tate JA, shows that, in stating that the plaintiff had to demonstrate that the competing hypotheses were ‘unsustainable’, the judge intended to convey only that the plaintiff had to demonstrate that his case on causation was to be preferred to the competing hypotheses.
[49][2002] WASCA 125.
[50]See above at [68].
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