Broom v IPA Personnel Pty Ltd
[2010] VSCA 295
•8 November 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCI 2009 3823
| NICOLE BROOM | Appellant |
| v | |
| IPA PERSONNEL PTY LTD | Respondent |
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| JUDGES | ASHLEY, NEAVE and TATE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 8 November 2010 |
| DATE OF JUDGMENT | 8 November 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 295 |
| JUDGMENT APPEALED FROM | Broom v IPA Personnel Pty Ltd (Unreported, County Court of Victoria, Judge Campton, 28 July 2009) |
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Accident Compensation – Appeal from unsuccessful application made under s 134AB(16)(b), Accident Compensation Act 1985 – Judge’s finding that compensable injury sustained – Whether that injury was serious in its consequences – Whether judge erred in not finding that appellant suffered other compensable injury – Whether reasons of primary judge adequate to disclose path of reasoning – Appeal dismissed – No point of general principle.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr A D B Ingram and Mr N R Dubrow | Clark Toop & Taylor |
| For the Respondent | Mr M F Wheelahan, SC and Mr M D Rush | Herbert Geer |
ASHLEY JA:
Nicole Broom, a lady born 18 September 1973, was employed as a picker and packer at Pacific Brands between November 2000 and July 2005. She undertook repetitive work, bending, stretching and lifting, in order to locate and then pack boxes of shoes. She last worked on a regular basis in March 2005. She formally terminated her employment in July that year. She ceased work because of disability of her lumbar and lumbosacral spine, most particularly at the L4/5 and L5-S1 levels, with a major disc protrusion at L5-S1.
The damage to which I have referred progressed to the point of cauda equina compression by 2007. It required remedial surgery which was conducted on 9 November that year. The surgery had a certain beneficial effect, but left Ms Broom with continuing consequences. We were told from the Bar table today, by appellant's counsel, that her condition has deteriorated in more recent times. That does not affect the matters requiring our determination, because it has never been in issue that the appellant's injuries and their consequences are serious, both as to pain and suffering and as to loss of earning capacity.
An application is made
Although Ms Broom was employed at Pacific Brands, her employers were sequentially three labour hire companies – Challenge Recruitment in the period November 2000 to May 2001; IPA Personnel (the present respondent) in the period May 2001 to 14 November 2004, and Integrated Group Limited in the period 15 November 2004 to 4 July 2005.
By originating motion filed 4 December 2006 the appellant sought leave to bring proceedings for damages against Challenge, IPA, Integrated Group and, as I understand it, Pacific Brands, pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (which I shall call ‘the Act’).
The application came on for hearing before a judge in the County Court on 13 May 2009. Ms Broom did not pursue her claim against either Challenge or Pacific Brands. She settled with Integrated, which agreed to issue a certificate under s 134AB(16)(a) in respect of both pain and suffering and loss of earning capacity.
That left standing the application in respect of IPA, which the appellant pursued. No doubt she did so out of concern that in a later common law proceeding Integrated might successfully attempt to shift all blame for her back problems onto IPA, it having been the employer for the longest period. Consistently with the appellant’s advisers having such a concern, her counsel, in final submissions below, referred to the risk of his client falling between two stools.
In fact, as I perceive it, the appellant would face a very small risk in that connection. For, as I will explain, there was really no material which would support a conclusion that the appellant's serious back injury could be attributed to her work at Pacific Brands before Integrated became her employer in mid-November 2004.
Be that as may, the matter proceeded below by way of reliance upon affidavits sworn by the appellant, short cross-examination of the appellant, the tender of medical reports for both sides, and also tender of a compensation claim form. No question of credit arose, as respondent's counsel conceded in the course of his final submissions below. Neither, as I have said, did any question arise as to the extent of the appellant's disability.
The issues which were left for the judge's determination were whether the appellant had established, on balance of probabilities,[1] that she had suffered compensable injury in the course of her employment by IPA; and, if so, whether that injury was serious in its consequences. An injury may be serious in its consequences, as I have made clear on previous occasions, if it materially contributes to those consequences.
[1]See s 134AB(19)(a).
On 28 July 2009 the judge dismissed the application. I will refer to her Honour’s reasons hereafter.
The notice of appeal. Questions pursued
By an amended notice of appeal the appellant raises the following issues:
SECTION 134AD OF THE ACT
1.The Court of Appeal should decide for itself that the Appellant suffered a compensable injury in the course of her employment with the Respondent which materially contributed to serious injury incapacity measured in terms of -
(a) pain and suffering;
(b) loss of earning capacity consequences.
ERRORS OF LAW
2.The learned trial Judge erred at [55] and [62] in determining that employment with the Respondent did not 'materially contribute' to compensable injury which was a serious injury as at the date of trial, rather determining whether such employment was a cause of compensable injury, which compensable injury materially contributed to serious injury incapacity.
3.The learned trial Judge erred at [55] and [62] in requiring the Appellant to demonstrate 'separate compensable injury' or 'discrete compensable injury' during her employment with the Respondent rather than compensable injury to which s.134AB of the Act applied and to which employment with the Respondent was a cause.
4.The learned trial Judge ought on the evidence before her to have found:
(a)that the Appellant suffered injury which was a compensable injury to which her employment with the Respondent was a cause;
(b)that the Appellant was suffering serious injury consequences measured in terms of pain and suffering and/or loss of earning capacity as at the date of trial; and
(c)the compensable injury contributed to the claimed serious injury consequences.
5.The reasons for decision of the learned trial Judge were inadequate.
As argued today, the grounds really came down to this. First, appellant's counsel submitted that the judge had made a finding that the appellant suffered compensable injury in the period of her employment by IPA, but had not found that the injury was, in its consequences, a serious injury. Because the judge had found that the appellant had suffered injury, the question whether that injury was serious in its consequences was a matter comprehended within s 134 AD of the Act, and so required this Court to decide for itself[2] whether the injury was serious injury.
[2]Assuming that the judge, though she did not appreciate it, had not decided that question favourably to the appellant.
Second, counsel submitted that the judge erred, because she took a faulty approach, in not finding that the appellant had suffered other injury. He argued that the judge must have found that by reason of repetitive stresses and strains over the period of her employment the appellant had suffered the production, aggravation or acceleration of lumbar and lumbo-sacral degenerative damage, which injury (it included the L5-S1 prolapse) was serious in its consequences.
Third, counsel submitted that the reasons for the judge's decision were inadequate. Particularly, in that connection, he submitted that the judge's reasons contained a series of incompatible findings, and hence did not disclose a path of reasoning.
The appellant’s evidence, and the medical reports
In order to understand the way in which the grounds were pursued, it is necessary to say something more about the appellant's evidence concerning her work, the onset and development of symptoms, and the evidence of the doctors as to the pathology of the appellant's medical problems and the issue of causation.
Before embarking upon that exercise, I should not wish it to be thought that anything I say hereafter suggests that upon an application such as this or, indeed, in any proceeding, a case is not to be determined on all the evidence. Of course it is, and this Court has repeatedly said so. But there is a difference between a case being decided on all the evidence and the question whether there is any evidence which would support a claim made in a proceeding.
It is convenient to begin with what the judge said about the appellant’s evidence concerning her work and symptoms in the period of her employment by IPA. At [11], speaking of the appellant, her Honour said that - ‘She claims that she suffered soreness and aching in her lower back on regular occasions over the period of about four and a half years that she worked for Pacific Brands. However, she usually found that with rest and some pain-killing medication the symptoms would quieten down again’.
It is not apparent from that paragraph whether the judge was accepting that history, but it is apparent from [57] of her Honour's reasons that she did, in fact, accept it. It is unnecessary to set out what her Honour said at [57].
Concerning the evidence just summarised, appellant’s counsel laid particular stress upon the fact that his client had given evidence, which was essentially uncontroverted, that she had suffered pain from time to time during the period of her employment by IPA. The submission was correct. But it must be said that the appellant’s evidence did not suggest that she had suffered much at all in the way of problems.
When the appellant was cross-examined, it was put to her – and she agreed – she had told a number of doctors that from time to time she had had some niggling pain in her lower back. It was also put to her that before July 2003 she had not been to any doctor in respect of these niggling pains, and she agreed that this was the situation.
It was further put to the appellant, and she agreed, that in the period between July 2003, when she did see her local doctor about back pain (and was prescribed Voltaren), and March 2005, she had not consulted a doctor at all.
Again, she agreed that subsequent to July 2003 she had continued to get intermittent aches and pains after a day's work. She said that it just 'went with the job'. She said also that she did not see any doctor until March 2005 because she did not need to, and that otherwise she would have done so.
I have referred to the appellant's attendance on her general practitioner in July 2003. The appellant, herself, had not referred to it in her affidavits in support of her application. Nor did her general practitioner refer to it in the reports he provided for the purpose of these proceedings. But it appeared in the general practitioner's notes that there had been such an attendance. The doctor had diagnosed a musculoligamentous strain at the time, and had recorded that it was most likely due to repetitive lifting of heavy boxes at work. He had prescribed, as I have said a little earlier, a course of Voltaren.
Now I go to the appellant’s evidence concerning her employment duties and development of symptoms in the period of her employment by Integrated. She deposed in her affidavits, it was confirmed in cross-examination, and it was further confirmed by a consistent history given to many doctors, that in the latter part of November 2004 she had been required to undertake some unusually heavy work, and that she had had an onset of pain in her buttock which persisted thereafter, this being a new symptom. The appellant further confirmed in her cross-examination, and it was compatible with the history given to many doctors, as well as consistent with her attendance on her general practitioner on 12 March 2005, that following a period of heavy work in the first part of that month, her condition had significantly worsened, with the development of referred leg pain for the first time.
It is not necessary to refer in detail to the history of the appellant's medical treatment from March 2005 onwards. It suffices to note that her condition considerably deteriorated in the ensuing two and a half years, this leading to a need for surgery quite urgently in November 2007.
The appellant consulted a number of doctors, both for treatment and for medico-legal purposes, as from March 2005.
At [24] to [45] of her reasons for judgment, the judge below summarised the gist of the medical reports. Having read those reports, I consider that her Honour's summation was, in each instance, accurate. Their gist was that the appellant had consistently provided a history of the onset of significant symptoms in her back, buttock, and thereafter her leg, in the period late November 2004 to March 2005;[3] and that she made no mention, or virtually no mention, of symptoms before November 2004. It was in that context that various doctors opined that the appellant's employment duties had contributed to her low back injury, specifically the disc protrusion that ultimately necessitated surgery.
[3]Such variations as there were in the accounts, as recorded by the doctors, were inconsequential.
The doctors, or at least some of them, might have been asked – but they were not asked – whether it was possible, or probable, that the appellant's work duties before November 2004, most particularly in the period of her employment by IPA, had played any causative role in the deterioration in her condition which was apparent from November 2004. But none of them were asked that question and none of them (with the possible exception of Mr Kevin King who did not, in truth, address the issue) offered any opinion about it.
Concerning Mr King, I should only add that at one point in his report dated 29 January 2008 he said this: ‘The important point is that this was a progressive lesion of the L5-S1 level with a gradually increasing L5-S1 disc protrusion over the next two years, eventually, leading to severe spinal canal stenosis and the development of a very serious complication of a caudo equinar lesion’. It is perfectly clear that Mr King was referring to progression in the period between March 2005 and surgery in 2007, and not to the period which commenced with the complaint of back pain in July 2003 and ending with cessation of employment in July 2005.
The grounds of appeal considered
It is now possible to consider the first of the three questions raised by the appeal. The judge did find that the appellant had suffered compensable injury in her employment by IPA. Her Honour described it, at [56] of her reasons, as a ‘multiligamentous (sic) strain to her back which was of a transient nature and made no material contribution to her later injury’.
Counsel for the appellant drew attention to the statement by her Honour that the July 2003 injury was ‘of a transient nature and made no material contribution to her later injury’, and to her statement, at [62], that ‘Any injury to her back in July 2003 was of limited significance in terms of its contribution to the back disability later suffered by the plaintiff’. At one point he went so far as to submit that it followed from [62] that the judge should have made an order favourable to the appellant. But then he drew back, submitting that the reasons were contradictory.
I do not consider that there was any necessary contradiction between the two findings to which I have referred. It appears to me, as Tate JA suggested in argument, that the reference to ‘limited significance’ in [62] was really intended to reflect a conclusion that the July 2003 injury did not materially contribute to the serious injury consequences apparent from and after March 2005. Such a reading fits with the judge’s observations at [55] of her reasons that ‘There is a paucity of medical evidence to support a conclusion that the injury occurred or was materially contributed to by her period of employment with IPA‘.
In any event, whether or not there were contradictions within her Honour's reasons, the judge having found that the appellant suffered injury and having defined it, we must decide for ourselves whether we are satisfied that ‘the injury’ was, in its consequences, serious injury. And again, I emphasise it would be enough if ‘the injury’ was an injury – not necessarily the only injury – which was sufficiently causative of the serious injury consequences.
In my view, bearing in mind the burden borne by the appellant, it is not possible to reach a conclusion favourable to her. Although this was not a trial by doctors’ opinion, looking at all the evidence I am quite unpersuaded that the injury which the judge identified could be held to have serious injury consequences. It would have required, I think, the judge to have found a quite different injury if a conclusion was to be reached that serious consequences ensued.
That takes me to the second question which counsel developed today. It involved the contention that the judge erred in a way that attracted the operation of s 74(3) of the County Court Act 1958. Counsel submitted that the judge had never really considered the question whether the appellant had suffered an injury more broadly described than the injury for which the appellant attended her local doctor in July 2003. That was because her Honour had been distracted by a submission for the respondent that it was necessary to determine that the appellant had suffered ‘a discrete injury’ in the period of the IPA employment. In the event, counsel submitted, her Honour had failed to consider whether the employment stresses and strains generally had caused, aggravated or accelerated degenerative changes which, in time, progressed to disc prolapse and serious consequences, both in terms of pain and suffering and loss of earning capacity.
In my opinion, the form of the judge’s reasons was not altogether satisfactory. It left open an argument that her Honour's identification of ‘the injury’ at [52] of her reasons (which was really an identification of what might be called the ‘end point injury’) had led her to investigate whether the injury thus characterised was contributed to by compensable injury sustained in the appellant's period of employment by IPA. If that is what her Honour had done, it would have been a wrong approach. The correct approach was to identify what, if any, injury the appellant had suffered in the employment of IPA, and then to consider whether that injury was, in its consequences, serious injury.[4]
[4]See [9] above.
But although there were infelicities in her Honour's description of her approach, it appears to me that, in substance, she made the right investigation. She considered whether the appellant had sustained a back injury in the course of her employment by the respondent; and she determined, subject only to the strain injury of July 2003, that no such injury had been sustained.
The finding at [55] that her Honour was not satisfied that the plaintiff had suffered ‘a discrete compensable injury to her lumbar spine’ needs to be understood, as I see it, as a finding that in her employment by IPA the appellant had suffered nothing more than the musculoligamentous injury to which her Honour referred in the next paragraph of her reasons. It cannot be imagined that in two successive paragraphs her Honour was, on the one hand, saying that the appellant had not suffered a compensable injury and that, on the other hand, she had done so.
Further, as I perceive it, her Honour did specifically address, though not in entirely apt language, the question whether the appellant had suffered what might be called a multiple insult injury throughout the period of her employment with IPA; and she had concluded that the appellant had not done so.
In the event, I am not persuaded that, in substance, her Honour asked the wrong question. Still less am I satisfied that she gave the wrong answer to that question. In my view, the evidence to which I have referred, viewed overall, was compelling that the appellant had not suffered any injury – other than the musculoligamentous strain of July 2003 - in the period of her employment by IPA.
That takes me to the third matter agitated today, the complaint that the reasons were inadequate. I do not agree that they should be so described. It is anomalous that the appellant should be complaining that the reasons disclose a path of reasoning which was erroneous, and in the next breath be submitting that the reasons were inadequate to disclose a path of reasoning.
To my way of thinking, the reasons do disclose a path of reasoning and, moreover, a path of reasoning which, despite some unsatisfactory language, shows that the judge sufficiently grappled with the issues which arose and decided them, as it turns out, adversely to the appellant. I would therefore dismiss the appeal and I would add that this appeal raises no point of general principle.
NEAVE JA:
I agree with Ashley JA, for the reasons that he has given, that the grounds of appeal are not made out. I would therefore also dismiss the appeal.
TATE JA:
I also agree with the reasons of the presiding judge and I would also dismiss the appeal.
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