Effem Foods Pty Ltd v Langley
[2004] VSCA 102
•2 June 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3787 of 2002
| EFFEM FOODS PTY. LTD. | |
| Appellant | |
| v. | |
| CRAIG WILLIAM LANGLEY | Respondent |
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JUDGES: | ORMISTON, CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 31 May 2004 | |
DATE OF JUDGMENT: | 2 June 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 102 | |
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Accident compensation – Serious injury – Two injuries to spine – Damages not recoverable in respect of second injury – Whether serious injury caused only by second injury – Particularity of findings and reasons for judgment – Adequacy of reasons –
Accident Compensation Act 1985 (No. 10191), ss.134A, 135A(19)(a).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R.P. Gorton, Q.C. | Phillips Fox |
| For the Respondent | Mr J.A. Jordan, S.C. Mr T.J. Seccull | Maurice Blackburn Cashman |
ORMISTON, J.A.:
I agree with the judgment to be delivered by Charles, J.A.
CHARLES, J.A.:
By originating motion issued on 5 October 2000, Craig William Langley, now the respondent, sought leave to bring proceedings for damages against Effem Foods Pty. Ltd., now the appellant, in respect of personal injuries allegedly suffered by him on or about 21 January 1995 in the course of his employment with the appellant. The application for leave was brought pursuant to s.135A of the Accident Compensation Act 1985 (Vic.) (“the Act”). The respondent alleged that he had sustained a “serious injury” within the meaning of s.135A(19) of the Act, the injury comprising a central disc herniation in his lumbar spine at L4-5 with associated impairment to his back.
The application was heard in the County Court at Ballarat on 11 October 2002. On 4 December 2002 the judge granted the respondent leave to bring proceedings against the appellant, and gave reasons for judgment. On 21 February 2003, leave was granted to the appellant to appeal from the judge’s order, and the appellant now challenges the finding made by the judge that the respondent sustained a “serious injury” in January 1995.
The respondent was born on 12 January 1968. He began working for the appellant in December 1985 and had been employed on a full-time basis in the appellant’s factory in Ballarat from January 1986. On 21 January 1995 the respondent scalded himself with hot water from a hose in the appellant’s factory. He turned quickly to turn the hose off and in doing so felt a sharp pain in his back. He was able to keep working over the next two weeks but the pain in his back worsened. The respondent later underwent radiological examination on 15 May 1995 and was diagnosed with a moderate central disc herniation at L4-5. After a period of conservative treatment, he underwent a posterior fusion at L4-5 the operation being carried out by Mr Paul Kierce on 23 October 1996. He then returned to work on part-
time modified duties on or about 27 January 1997. On 24 April 1997 Mr Kierce certified the respondent fit for full-time modified duties. Then in August 1997 the respondent’s general practitioner, Dr Murray, certified him fit for normal duties and extra shifts, and the respondent subsequently returned to normal duties and worked overtime.
On 29 December 1997 the respondent sustained an injury to his lower back when he slipped and fell on a wet floor at work and developed pain in his lower back and left leg, following which he was taken to Dr Murray. The respondent is now quite severely incapacitated and cannot even cope with light duties.
The appellant contended below that whatever was the impairment arising from the respondent’s injury of January 1995, it did not amount to a “serious injury” within the meaning of the Act and that the incident of 29 December 1997 led to a new injury which was not related to the earlier one and that the later incident was responsible for any ongoing impairment. The respondent submitted that the impairment from which he now suffers is a result of the injury sustained in or about January 1995, and is not the result of the incident which occurred in December 1997. For the respondent it was put that the December 1997 injury is a direct consequence of the permanent vulnerability caused to his lower back by reason of the 1995 injury and its surgical sequelae. The significance of the issue is, of course, that if the appellant’s argument is made good, the respondent’s action must fail because s.134A(1) of the Act prevents recovery of any damages for injuries arising out of employment between 12 November 1997 and 20 October 1999.
In his reasons, the judge accepted that the central question was whether the respondent had suffered a serious injury in accordance with what was said in Humphries v. Poljak[1]. As his Honour put it[2], there was no real dispute that the respondent had suffered an injury to his lumbar spine at L4-5 level in January 1995, but “What is in dispute is whether the 1995 incident in isolation has caused or contributed substantially to his present condition.” The judge said[3] –
“The evidence satisfies me that the plaintiff’s back was susceptible to the effect of an incident of a kind that befell him in December 1997. I am further satisfied that the effects of the December 1997 incident would not have been lasting, or at least have been far less severe, but for the 1995 incident. …
I have no doubt that the plaintiff’s impairment of the function of his lumbar spine is long-term. I am satisfied that the 1995 incident and the subsequent need for fusion left the plaintiff with a weakened lumbar spine which in turn left him vulnerable or susceptible to further injury. Because Dr Murray is so intimately concerned with the plaintiff’s treatment at all relevant times, much weight needs to be given to his statement that the December 1997 incident aggravated his lower back from which aggravation he recovered.
After consideration, I am satisfied that the plaintiff suffered an injury in January 1995 which has impaired permanently the function of his lumbar spine. Both as to pain and suffering and as to pecuniary disadvantage, the effects on the plaintiff are very considerable.
I am satisfied the plaintiff has suffered a serious injury as defined.“
[1][1992] 2 V.R. 129 at 140.
[2]Judgment, p.47.
[3]Judgment, pp.47-48.
In this Court, Mr Gorton for the appellant accepted that the appellant must show that the decision below was vitiated by a specific error or errors, or was manifestly wrong: Mobilio v. Baliotis[4]. He submitted that the decision of the judge was vitiated by a number of specific errors, which may be summarised as –
(a)The failure to determine the degree of recovery from the January 1995 incident made by the respondent;
(b)The mis-reading of the evidence of the respondent’s general practitioner, Dr Murray and ensuing reliance on the mis-read evidence;
(c)The failure to consider and determine whether the December 1997 incident had caused a new injury and what were the consequences of that injury.
It is unnecessary to refer in detail to the grounds of the notice of appeal. Mr Gorton also accepted that the present case was not one of “manifest error”, in that there certainly was evidence which could justify the judge’s conclusion that the respondent had suffered a “serious” injury. That the respondent at the time of hearing suffered a long term impairment (from the state of his lower back injury) was not seriously in issue.
[4][1998] 3 V.R. 833 at 835.
Mr Gorton argued that critical to the assessment of the medical evidence which addressed the respondent’s injuries was his credibility. He submitted that the medical evidence tended to contradict the respondent’s sworn evidence. He argued that the appellant had plainly put the respondent’s credibility in issue, and that it was apparent from the transcript that the respondent had been evasive, disingenuous and prone to invent evidence as it suited him. He submitted that a number of his answers were implausible and incapable of simple acceptance. Various of the respondent’s answers in cross-examination were relied upon for this purpose. It was submitted that the judge had failed in his reasons to address the problem of the respondent’s credibility, despite the fact that the success of the application rested on it. Next, it was argued that the judge had accepted the conclusions of Mr David Brownbill, an orthopaedic surgeon, as to the respondent’s injuries, despite the absence of substantiation for the history given by the respondent on which it was founded. It was argued that his Honour had failed to give the opinions of the appellant’s medico-legal witnesses and their objective findings any adequate consideration in his reasons. It was put that much weight had been given by the judge to the opinion expressed by Dr Murray (the respondent’s general practitioner), but that his Honour’s statement of Dr Murray’s evidence constituted a mis-reading of the relevant paragraph of the report. It was argued that the judge should have found that the respondent made a good recovery from the disc injury at L4-5 following surgery in 1996; that any residual impairment from that injury was not serious and had proved not to be “long term” within the meaning of s.135A(19); and that the December 1997 incident caused the respondent to sustain a new injury at the L5-S1 facet joint which was not caused or contributed to by the earlier injury.
Before considering these arguments, it should be said that judgments which are concerned with determining whether an injury is “serious” for the purposes of s.135A of the Act are usually less detailed than those given after the trial of the action, as Chernov, J.A. said in Barlow & Transport Accident Commission v. Hollis[5]. A judgment in such a case usually contains little more than a summary of the evidence, making reference to the principal facts which are considered to be relevant to the decision and then sets out the ultimate conclusion, after making sufficiently clear the basis upon which that decision was made.
[5][2000] VSCA 26 at [15] and [16].
In the present case, the judge made specific reference to the test set out in Lu v. Mediterranean Shoes Pty. Ltd. & Ors[6], before saying, as already noted, that what was in dispute was whether the 1995 incident in isolation (the emphasis is mine) caused or substantially contributed to the respondent’s present condition. The judge then assessed separately the nature and extent of the 1995 and 1997 incidents and the injuries and impairments said to follow from them. His Honour said in this respect[7] –
“I have given full consideration to all the opinions of the various medical experts. The most significant opinions appear to me to come from, first, Dr Murray who considered that the plaintiff had suffered an incident on 29 December 1997 which had aggravated his back, from which aggravation he recovered, and, secondly, from the treating surgeon Mr Kierce who considered that the 1997 incident had aggravated the disorder caused by the 1995 incident. Further Mr Carter appears to express it well when he described the December 1997 as an aggravating incident to an already suspect and vulnerable spine. Because it accords with the views of Dr Murray, Dr King and Messrs Kierce and Carter, I accept the conclusion of Mr Brownbill that the plaintiff’s incapacity was contributed to in a major way by the incident of January 1995.
Mr Davie appears to contradict himself concerning causation and contribution and I prefer the views of the other experts to whom I have referred, to those of Mr Elsner.”
[6](2000) 1 V.R. 511.
[7]Judgment at pp.47-48.
Taking first the attack on the respondent’s credibility, which was largely contained in the appellant’s written submissions, in the short oral evidence given by the respondent at the hearing there were a number of answers which might have been regarded as putting his credibility in issue. The principal issue addressed was whether the respondent had made a complete recovery after surgery in October 1996, and had been substantially pain free thereafter until the second incident in December 1997. The respondent’s oral evidence was very much to the contrary, essentially that he suffered considerable pain and had substantial difficulty in carrying out his work duties at this time. Insofar as he had failed to complain to his doctors about these problems, his oral evidence was that he desperately needed his job for financial reasons, and consequently played down his suffering to ensure that his doctor’s reports did not prevent him keeping it.
The judge saw the respondent in the witness box, and had before him a number of affidavits, from the respondent’s wife, his brother and two workmates, all of which supported the evidence of the respondent that he had indeed been in pain and in difficulties at work after the operation to his back by Mr Kierce, and before the second incident. The appellant argued that the judge made no positive finding that the respondent was reliable in evidence, the implication being that the judge’s reasons were inadequate and defective in the absence of any such conclusion. But the judge’s conclusions can, I think, only be explained on the basis that his Honour believed the evidence of the respondent, and, having seen him in the witness box, this Court would not be entitled to question such an approach.
Next Mr Gorton argued that much weight had been given by the judge to the evidence of Dr Murray, the respondent’s general practitioner, who had said in his report of 28 October 1998 that the respondent -
“Originally injured his back at work, and was operated on by Mr Paul Kierce with an excellent result, resulting in him returning to work. He slipped and fell on a wet floor at work, and thus aggravated his lower back from which he recovered, however, this was short-lived and his back pain returned, despite caudal anaesthetics, physiotherapy and acupuncture, and quite strong analgesics. The patient has shown variable signs of improvement recently. At this stage the patient is quite severely incapacitated and could not even cope with light duties.”
The judge, in quoting this evidence said[8] –
“Dr Murray’s reports are detailed and set out in diary form. In his report of 28 October 1998, he concluded that the plaintiff had injured his back at work in January 1995, an injury which required surgery and from surgery he had an excellent result allowing him to return to work. Dr Murray said that the plaintiff had slipped at work on 29 December 1997, thereby aggravated his back, from which aggravation he recovered. However that pain returned requiring a range of conservative treatments. He considered the plaintiff to be then severely incapacitated.”
[8]Judgment at p.44.
It was argued that this was a mis-reading of the relevant passage of Dr Murray’s report, and that the passage in the original report meant no more than that the recovery from the aggravation of December 1997 was short-lived “and his back pain returned” as a consequence of that aggravation. Mr Gorton argued, with some justification, that the judge had not explained his reasoning process.
The judge’s reasons are, with respect, not entirely clear at this and other places. But the report of Dr Murray may also be interpreted as meaning that it was the aggravation of the respondent’s lower back condition from which he recovered, and after which his back returned to the state in which it was before being aggravated by the fall in December 1997. Such a view would have been consistent with the evidence derived from number of medical reports, including from Mr Carter, Mr Davie and Mr Brownbill.
The principal argument for the appellant was, however, that the second incident, in December 1997, resulted in a second and separate injury to the respondent’s back, distinct from the central dorsal disc herniation at L4-5 which resulted from the first incident on 21 January 1995. The argument ran that there were reports from a number of doctors, Mr Kierce, Mr Elsner and Mr Davie in particular, to support the contention that the incident in December 1997 was a second and separate injury at a different place in the respondent’s spine, L5-S1, the lumbo-sacral joint. Accordingly, the judge was obliged to examine medical evidence and the respondent’s testimony to arrive at a conclusion whether the respondent had established that the first incident had been at least a substantial cause of the then present condition of his lower back. For this purpose, consistently with the judgment in Lu (supra), it was necessary for the judge to consider the individual incidents separately to assess what injury and impairment each had caused.
Mr Kierce’s opinion of 2 October 1998, made some two years after what had been described by Dr Murray as the “excellent result” of Mr Kierce’s fusion operation, contained the comment that he ordered a “lumbar CT scan non-contrast” for the respondent which “demonstrated some bulging of his L4/5 disc even though his L4/5 posterior fusion was solid”. In stating his conclusions in this report, Mr Kierce said –
“I believe that it is likely that Craig Langley jarred his back in the course of his work between Christmas and New Year, aggravating his lumbar spinal disorder and causing some further bulging of the disc between the fourth and fifth lumbar vertebrae. The symptoms attributable to this further injury should settle with caudal anaesthetic injections, I believe.”
Then in a later report dated 10 November 1999, Mr Kierce stated in his concluding paragraph that –
“It is my opinion that Craig Langley is now suffering from strain of the lumbo-sacral joint following the successful fusion of the joint between the fourth and fifth lumbar vertebrae.”
This passage was strongly relied on by the appellant as evidence, with which the judge had not dealt, which supported the argument that the second incident had led to a separate injury to a different part of the respondent’s spine, the lumbo-sacral joint, and that the respondent was not, after the successful fusion of the L4/5 joint, suffering serious injury as a result of the first incident. The evidence of Mr Elsner expressly supported this view. Mr Elsner in a report of 11 September 2000 opined that the respondent “made a very good recovery following his spinal fusion late in 1996, such that he was able to return to full-time work duties and continue with those for several months during 1997”. Mention was then made of the further injury suffered on 28 December 1997. Mr Elsner then said –
“As far as I can determine, again from the clinical and radiological findings and from the information I have available from Mr Langley and from his Treating Doctors, this does in fact represent a new injury, in that it has resulted in symptoms arising from the L5-S1 facet joint.
It is also my opinion that the injury that occurred in January of 1995, did leave him with some residual impairment even following his successful lumbar spinal fusion, but the impairment was obviously not serious enough to prevent him from returning to full-time work duties.
The injury that occurred in December of 1997, from his description, involved a fair degree of stress on his back and in my opinion, does represent a new injury, and it is this injury which is causing his current incapacity and his inability to work.”
The reports of Mr Kierce do not, I think, support the appellant’s argument. There is no statement in the later report which withdraws the opinion given as at October 1998 that there was some bulging of the L4/5 disc even though the fusion operation still appeared solid. The later report is quite consistent with the view that the respondent was then suffering also from strain of the lumbo-sacral joint in addition to the damage already observed of bulging at the L4/5 disc. There was evidence at several points in the medical material that a spinal fusion leaves a patient’s back with additional problems. For example Mr Davie in a report of 20 April 2000 said –
“The injury on the 21st January 1995, has produced a rupture of the disc and due to disabling symptoms in the back and leg he has had a spinal fusion. This never makes the back normal and the back is susceptible to further disc injury often above the level of fusion, and the fusion sometimes is not sound.”
Mr Wilton Carter in his report of 14 December 1999 put it in his summary and commentary that –
“4.A further injury occurred at the place of his employment on 28.12.97, which I believe has acted as a specific further aggravating injury to his already ‘suspect and vulnerable’ lower back.”
Next, the appellant argued that the judge took Mr Kierce’s evidence wrongly and used it to reject the evidence of Mr Elsner. It was put that the views of Mr Kierce and Mr Elsner were the same and that the incorrect use of Mr Kierce’s evidence had produced a significant error as to the 1997 incident, what it caused, and the consequences of that incident. Once the judge accepted the oral evidence of the respondent to the effect that he had suffered considerable pain and disability after the spinal fusion carried out by Mr Kierce, but before the second incident in December 1997, there was, I think, ample evidence available to the judge to support his conclusion that the incident of January 1995 and its consequent injury and impairment were sufficient to satisfy the test set out in Humphries v. Poljak. The respondent’s oral evidence was, as I have said, supported by four affidavits, none of the deponents being cross-examined. It was also supported by medical evidence from Mr Kierce, Mr Carter, Dr Murray, Mr Pryor, Mr Davie, Mr King and Mr Brownbill. Mr Brownbill’s report of 11 June 2002 contained the statements that –
“This man had a demonstrated L4/5 disc derangement following the injury of the 21st January 1995 for which he underwent spinal fusion surgery.
It is noted that back pain continued essentially unchanged following that time of that operation and that bilateral leg pain continued (although with some improvement on the right) unchanged.
…
On the information provided, the incident of December 1997 aggravated previous back changes following his earlier injury with increased physical activity restrictions.
It is considered on the information provided that his present clinical condition, represents in major part the injury sustained in the incident of January 1995 with some aggravation by forces sustained in the slip of December 1997.”
In conclusion, and in answer to specific questions put to him, Mr Brownbill opined –
“A. He suffered damage to structures about the lumbar spine in January 1995 including an L4/5 intervertebral disc derangement for which he underwent spinal fusion to the back, and bilateral leg pain however continued as a result of damage sustained to that lumbar spine. It is considered there was some aggravation of that pre-existing damage by the incident of December 1997.
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G. It is considered that his present incapacity and impairment is contributed to in a major fashion by the incident of January 1995 (as outlined above, the ongoing pain being noted after surgery with later increase of the same pain by the later slipping incident).”
In this Court Mr Jordan for the respondent submitted that there was ample evidence upon which the judge was entitled to reach his conclusions, and that the judgment should not be disturbed as having been shown to be erroneous.
Notwithstanding the lack of clarity in the reasons for judgment, as to which I bear in mind the comments previously quoted from Hollis, I do not think that the appellant has established that the judgment was vitiated by the presence of specific error. None of the grounds of appeal has been made good. There was ample evidence upon which the judge was entitled to conclude that the respondent suffered a “serious injury” in January 1995.
I would dismiss the appeal.
CHERNOV, J.A.:
I agree, for the reasons given by Charles, J.A., that the appeal should be dismissed.
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