Francis v Farrell

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 03523

DEBRA ANNE FRANCIS PATRICK STEVEDORES HOLDINGS PTY LTD	Appellants
v
BRUCE FREDERICK FARRELL	Respondent

JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2016
DATE OF JUDGMENT:	19 May 2016
CASE MAY BE CITED AS:	Francis & anor v Farrell
MEDIUM NEUTRAL CITATION:	[2016] VSC 251

APPEAL FROM MAGISTRATES’ COURT ON A QUESTION OF LAW — Accident compensation — Whether no current work capacity — Suitable employment — Whether worker able to return to work in suitable employment — Whether there was a failure to make the necessary findings of fact — Whether Reasons inadequate – Reversal of onus of proof — Whether findings open — Magistrates’ Court Act 1989, s 109, Accident Compensation Act, s 5.

APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr J P Gorton SC with Mr M J Hooper	Minter Ellison
For the Respondent	Mr J Brett SC with Mr E Makowski	Williams Winter Solicitors

HER HONOUR:

Introduction

Mr Farrell, the respondent, issued proceedings in the Magistrates’ Court seeking, inter alia, declarations to set aside various notices terminating weekly payments made to him arising from claimed injuries and a declaration that the respondent had no current or future work capacity as a result of any or all of the claimed injuries.[1]
[1]Exhibit BJR1 to the affidavit of Benjamin John Russell sworn 15 July 2015, complaint and statement of claim dated 8 October 2012, Magistrates’ Court proceeding S CI 2015 03523.

The Magistrates’ Court proceeding was heard by Magistrate Ginnane on 24 and 25 March 2014 and 10, 11 and 12 November 2014. His Honour delivered two reasons, dated 20 June 2014 and 12 June 2015. It is the 12 June 2015 reasons (‘the Reasons’) that are relevant to this appeal. On 1 July 2015, the Magistrate made orders relevant to this proceeding, including:

(a) That the appellants, the respondent’s former employers pay the respondent weekly payments at the rate appropriate for no current work capacity on and from 24 March 2012 and that such payments continue in accordance with the law;

(b) A declaration that the rejection notices dated 6 December 2010, 3 July 2012 and 13 August 2012 be set aside;[2] and

(c) That the appellants pay the respondent’s costs of the Magistrates’ Court proceeding.

[2]Exhibit BJR6 to the affidavit of Benjamin John Russell sworn 15 July 2015.

Pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic) (‘the Magistrates’ Court Act’), the appellants appeal to the Court on a question of law, from the orders made by Magistrate Ginnane on 1 July 2015. This is the hearing of the appellants’ appeal.

The grounds of appeal

In the appellants’ notice of appeal, dated 8 July 2015, they seek an order that the orders of the Magistrates’ Court be set aside and that the matter be remitted to the Magistrates’ Court to be heard and determined according to law, by a different magistrate.

As set out in the notice of appeal, the questions of law said to be raised by the appeal are as follows:

(1)Whether the learned Magistrate failed to make necessary findings on material questions of fact.
(2)Whether the learned Magistrate considered all the arguments his Honour was required to address.
(3)Whether the learned Magistrate gave adequate reasons for his decision.
(4)Whether the learned Magistrate misapplied the onus of proof.
(5)Whether the learned Magistrate arrived at a conclusion that was not open to his Honour.

The grounds of appeal are as follows:

(1)The learned Magistrate erred by failing to make findings as to the level of pain and restriction actually experienced by the respondent, in circumstances where the respondent’s credit was in issue and the respondent had previously misled treating and examining doctors into assessing him as incapacitated by reason of his knee condition, whilst he was at the same time engaged in stevedoring work.
(2)The learned Magistrate erred by failing to address the appellants’ argument that the opinions of medical practitioners as to the respondent’s capacity were unreliable to the extent that they depended on descriptions of pain and restriction given by him.
(3)The learned Magistrate erred by deciding the question of whether the respondent was unfit for suitable employment by considering only whether his pre-injury employment or three of the jobs identified by the appellants was suitable, without first determining whether or not the respondent had established a prima facie case of an incapacity for suitable employment generally, and thereby misapplying the onus of proof.
(4)The learned Magistrate failed to give adequate reasons for his decision, including by failing to:
(a)make any, or any adequate, findings as to the level of pain or restriction actually experienced by the respondent;
(b)address the appellants’ argument that the opinions of medical practitioners as to the respondent’s capacity were unreliable to the extent that they depended on the descriptions of pain and restriction given by him;
(c)state which parts of the evidence of the respondent, medical practitioners and vocational assessors were accepted and which parts were rejected, and the reasons why;
(d)state whether the respondent had established a prima facie case of incapacity to work in suitable employment, and the reasons why;
(e)give any, or any adequate, reasons as to why the respondent did not have capacity to undertake employment in clerical work as identified in the WorkStream Vocational Assessment report dated 23 October 2009;
(f)give adequate reasons as to why the respondent did not have capacity to undertake suitable employment;
(g)adequately expose the path of reasoning adopted.

(5)Given the Magistrate’s findings as to the damaged credibility of the respondent, in the absence of any, or any sufficient, findings as to the level of pain or restrictions actually experienced by the respondent, it was not reasonably open to the Magistrate to be satisfied that the respondent was incapacitated for all suitable employment.

The issues at trial

In order to succeed in his claim before the Magistrates’ Court, the respondent had to establish that he had ‘no current work capacity’ and that this was ‘likely to continue indefinitely’ from 5 April 2010.[3]
[3]Section 93, Accident Compensation Act 1985 (Vic).

The expression ‘no current work capacity’ was defined in s 5(1) of Accident Compensation Act 1985 (Vic) (‘the Act’), in relation to a worker, to mean:

A present inability arising from an injury such that the worker is not able to return to work, either in the work of his pre-injury employment or in suitable employment.

‘Suitable employment’ was defined in s 5(1) of the Act as follows:

suitable employment, in relation to a worker, means employment in work for which the worker is currently suited —
(a) having regard to —
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii)the nature of the worker’s preinjury employment; and
(iii)the worker’s age, education, skills and work experience; and
(iv)the worker’s place of residence; and
(v)any plan or document prepared as part of the return to work planning process; and
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker; and

(b)regardless of whether —
(i)the work or the employment is available; and
(ii)the work or the employment is of a type or nature that is generally available in the employment market.

The parties agree that the Magistrate correctly identified that the respondent need establish a prima facie case that no suitable employment exists. In such a situation, the respondent would then be entitled to succeed unless the Magistrate was satisfied that the appellants had produced evidence sufficient to raise some specific alternatives for consideration. In this case, the Magistrate noted, correctly, that in his view:[4]

being realistic, the defendant is required to produce evidence sufficient to give rise to a real possibility that there are particular types of employment available in the community which the plaintiff is capable of performing. Thus, there arises an evidentiary onus on the defendant. Largely speaking, the matters will be factual in nature and fall to the defendant to adduce.
[4]Farrell v Francis & anor (No 2) [2015] VMC 18 (12 June 2015) (‘Reasons’).

The Magistrates’ Court proceeding

The matter first came before the Magistrate on 24 and 25 March 2014. At that stage, the Magistrate refused the respondent’s application for a referral to a medical panel because the factual background was, in his opinion, vexed and open to conjecture. The Magistrate considered the matter should not be referred to a panel, but instead, the question of capacity should be determined by the Magistrate as part of a contested hearing. The Magistrate published his judgment refusing the respondent’s application for a referral dated 20 June 2014. The matter then came back for a final hearing and determination of the respondent’s claim for relief. The hearing took place on 10, 11 and 12 November 2014, and the relevant Reasons for the purpose of this appeal are those dated 12 June 2015.

By way of background, the respondent suffered an injury as a result of a slip on 29 April 1994 when he was working as a hairdresser with Debra Anne Francis, the first appellant. The slip caused injury to the respondent’s right leg and right knee, causing pain, together with anxiety and distress. The respondent made a claim for compensation (the first claim for injury). The first claim was accepted. The respondent became in receipt of weekly payments and medical and like expenses under the Act.

The respondent made a further claim in 1997 on the first appellant for consequential injury to the left knee as a result of the slip in 1994 (the second claim for injury). The second injury claim was accepted.

On 1 October 2008, during a period of employment with the second appellant, the respondent was driving a transport vehicle on the docks when it overturned and he suffered injury. The respondent fractured discs in his cervical spine. On 14 October 2008, the respondent made a claim against the second appellant in respect of the third injury. The claim was accepted, and he was thereafter paid weekly payments of compensation, together with medical and like expenses in accordance with the Act (the third claim for injury).

On 20 February 2009, the first appellant terminated the respondent’s weekly payments for compensation. The Reasons were expressed in summary form as follows:

The plaintiff had returned to work;
The plaintiff’s incapacity no longer materially contributed to or there not being an injury arising out of or in the course of the plaintiff’s employment;
The plaintiff having obtained payments fraudulently.

By notice dated 6 December 2010, the second appellant terminated the respondent’s weekly payments for compensation and the notice it provided to the respondent of this decision identified the following reasons for termination:

The plaintiff’s second time period had expired;
Weekly payments have been paid or were payable to the plaintiff for a total of 130 weeks;
The plaintiff has a current work capacity or if he labours from no work capacity then such a situation is not likely to continue indefinitely.

On 9 July 2012, the respondent served on the second appellant a further claim for compensation arising from the third injury seeking reinstatement of weekly payments and medical and like expenses on the basis of a total incapacity from work from 24 March 2012. By notice dated 31 July 2012, the second appellant rejected the respondent’s claim on the same basis that it had in its notice of 6 December 2010.

Also on 9 July 2012, the respondent served on the first appellant a further claim for compensation with respect to the first and second claims for injury and seeking reinstatement of weekly payments of compensation for a total incapacity for work as from 24 March 2012 and medical and like expenses. The second appellant, by notice to the respondent dated 13 August 2012, rejected the respondent’s claim on the basis that there was no new injury arising out of or in the course of the respondent’s employment.

The relevant background and circumstances to the claim are set out in the Magistrate’s Reasons for Decision dated 20 June 2014 and in the subsequent Reasons dated 12 June 2015.[5]
[5]Farrell v Francis & Or (Unreported, Magistrates’ Court of Victoria, Magistrate Ginnane, 20 June 2014) [25]-[31]; Reasons [25]-[34].

At trial, the respondent was called and cross-examined. Further, a number of medical reports, vocational assessment reports and other documents were tendered.

Magistrate’s Reasons

The Magistrate commenced his judgment by describing the background circumstances of the proceeding and the issues in dispute. At paragraph 2, the Magistrate identified the matters not in dispute: that the respondent was incapable of performing his pre-injury employment working on the docks, and that the injuries the respondent suffered were compensable injuries. However, the issue in dispute as submitted by the appellants was that suitable employment existed and the respondent’s asserted limitations and restrictions to undertake suitable employment should be rejected, that is, that the respondent was capable of suitable employment.

The Magistrate, at the outset, identified the CoWork Pty Ltd vocational assessment report dated 16 August 2013 of Joanne Bryant, who stated that:[6]

After considering Mr Farrell’s vocational profile and his residual physical capacity, I have assessed the following occupations as potentially suitable for him:
Property manager
Real estate agent
Retail supervisor (hair and beauty salon).

[6]Reasons, [3].

Importantly, at paragraph 5, the Magistrate identified the other significant issue, that of the respondent’s working capacity. The Magistrate identified that the respondent submitted that he does not have a capacity to perform suitable alternative employment. Further, the appellants’ submission that on balance the Magistrate should not accept the respondent’s evidence as honest, including his accounts of pain and limitations expressed to various doctors and specialists in the past because of his lies and pattern of dishonesty over the years, culminating with a conviction, imprisonment for dishonesty offences in obtaining weekly payments of compensation for incapacity under the Act, when he was, much of the time, employed on the docks.

The issue of the respondent’s past dishonesty, questionable character and how these matters need to be considered in evaluating the evidence were set out at paragraphs 6 and 7 by the Magistrate.

The Magistrate also noted at paragraph 17 that it was not the fact of the respondent having suffered injury that lay at the heart of the resolution of the case, ‘but the effects of [the respondent’s] injuries on his capacity for current suitable employment’. Importantly, the Magistrate recognised his task to be a question of fact for his Honour to determine if he was satisfied on the balance of probabilities that after 2008 the respondent’s account of his work history and his physical and mental capacity was an honest account and, if his Honour determined that it was, then the question became whether the evidence led by the respondent supported the respondent’s contention that he lacked a capacity to perform suitable alternative employment.[7]
[7]Reasons, [19].

The Magistrate then, under a heading ‘Uncertain chronology’, summarised the relevant background facts and events.[8]
[8]Ibid [9]-[15].

From paragraphs 23 to 44, the Magistrate carefully set out the relevant events, highlighting the difficulty in actually knowing what the respondent actually was able to do or did in some periods. Relevantly, the Magistrate stated:[9]
[9]Ibid [35]-[37].

The period and extent and nature of the plaintiff’s employment prior to 2000 is questionable. Whilst I am satisfied on balance that in 2000 the plaintiff undertook a return to work on the waterfront as a stevedore, it is not clear, whether it was on a casual basis or was

part-time work and neither is it clear what the length of time of his engagement as a casual part-time worker were. The duties the plaintiff carried out are also open to debate otherwise than having performed clerical or administrative duties.
The state of the evidence does not permit me to make detailed findings of fact about the work performed by the plaintiff prior to 2008. The attempt to do so was not assisted by the plaintiff denying familiarity with or knowledge of a resume detailing his work history.
Wherever the truth of the matter lies, I cannot forget that it was work performed at times when the plaintiff was falsely obtaining certificates of incapacity and was receiving tax payer funded benefits to which he was not entitled.

At paragraphs 38 to 40, the Magistrate summarised relevant events in the ‘period of dishonesty’ from 4 July 1994 to 1 September 2008, when the respondent provided certificates for total incapacity and received weekly payments, but was working. He noted that the history the respondent gave to doctors in this period was false.[10] The Magistrate then summarised the post-2000 events, stating:[11]

An examination of the material put before me by the parties reveals the plaintiff adopted a marked change in the account he gave to doctors after October 2008. From this time on he acknowledged that he had been able to work full-time during periods of certified incapacity and that his past accounts to the opposite effect were false.

[10]Reasons, [39].

[11]Ibid [41].

At paragraph 43, the Magistrate did not accept that the resolution of the matter of the assessment of the respondent’s current capacity was as simple as submitted by counsel for the respondent, that is, by looking at the history given prior to the neck injury in October 2008 and putting it to one side in preference to the subsequent history, where there are questions regarding the integrity and reliability of matters relied on as part of the respondent’s later history.

The Magistrate concluded in relation to the evidence before him:[12]

The admissions in affidavits and the other discordant facts in the evidence may have impact on the plaintiff in another place but I need to consider if the sum effect is to impeach the plaintiff’s application as it relates to his injuries and a capacity for suitable employment and any entitlement to reinstatement of weekly payments.

[12]Ibid [44].

The Magistrate then continued to assess the respondent’s credibility. He stated that he was not particularly impressed by the respondent but concluded:[13]

As mentioned already the medical evidence prior to the 2008 injury is questionable not as to injury itself but rather its significant or remnant effects on his capacity to undertake suitable employment. However, I also take into account that much of the earlier work that the plaintiff performed on the docks while in receipt of payments when supposedly incapacitated by the effects of the 1994 and 1997 injuries was undertaken by a much younger man than today and of course prior to the 2008 neck injury. I think therefore it is reasonable of me to have regard to the fact that any progression by way of deterioration of the plaintiff’s injuries and his subsequent surgeries since the offending have occurred in a different environment to the past. The plaintiff who tolerated injury and engaged in work while obtaining payments dishonestly is plainly an older man and a physically more fragile man with a further injury than was the offender of past years.

Therefore, whilst recognising the plaintiff’s capacity to lie, a relevant consideration may be whether such a propensity has been curtailed or overtaken by real and genuine restrictions in relation to the knees and the neck and if such is the case, whether objectively assessed, these preclude him from suitable employment.

[13]Reasons, [45], [48]-[49].

The Magistrate then set out a heading, ‘The measure of capacity and the method of assessment’. From paragraphs 50 to 119, the Magistrate carefully went through the evidence before the Court, including the respondent’s viva voce evidence and a raft of medical reports exhibited. Relevantly, in his Reasons, the Magistrate notes:

·The respondent is aged 60.
·He receives income support by virtue of a disability pension.
·He is on a suite of medications, including medications for pain management and depression and anxiety.
·The Magistrate accepted that the respondent does not drive.[14]
·The Magistrate was satisfied that the respondent did not have any psychological sequelae inhibiting his capacity for suitable employment.[15]
·The Magistrate set out at length the medical evidence, including the evidence of the respondent’s treating general practitioners, Dr Ian Chenoweth and Dr Nadine Fisher. A detailed analysis of the reports of Dr Robyn Horsley, occupational physician was set out in which Dr Horsley expressed a view that the respondent has come to the end of his working life and that Dr Horsley did not believe that the respondent had any current capacity for work and was suffering primary and secondary psychological sequelae related to the 1 October 2008 accident.[16]
·Regard was given to the opinions of Dr Brownbill, consultant neurosurgeon, including Dr Brownbill’s opinion that, as a result of the neck injury, the respondent’s restrictions ‘will last into the foreseeable future’.[17] Mr Simm’s opinion was noted in which he said he did not believe the respondent had any capacity for pre-injury employment as a hairdresser or stevedore, and that the respondent will remain permanently incapacitated for any work that requires him to stand, walk, kneel, squat, climb or undertake lifting and carrying of heavy objects. Mr Simm considered that the respondent was permanently confined to light, essentially sedentary, employment.
·In that regard, the Magistrate noted, ‘[Mr Simm’s] conclusion is literally incorrect as it is not disputed by the respondent that he can stand, walk and carry but rather the salient investigation is to what extent and for what periods of time he can do each of these things such as to be capable of undertaking “suitable employment” ‘.[18]
·Dr Duke, psychiatrist, considered that the respondent did not have a current work capacity, even with retraining.[19]
·The Magistrate had regard to the report of Dr Dominic Yong, specialist occupational physician. In particular, the Magistrate noted Dr Yong’s view in relation to the respondent’s functional capacity to perform the role of property manager, real estate manager or retail supervisor at a hairdressing salon, being the three suitable employment jobs identified in the CoWork Report prepared by Joanne Bryant. The Magistrate noted Dr Yong’s opinion that the roles suggested in the CoWork Report would comply with the restrictions the respondent had and that he considered them to be reasonable. However, the Magistrate said at [90], in relation to Dr Yong’s opinion:
Of course I have given weight to the opinions of Dr Yong but the opinions are not supported by an analysis on his part of the plaintiff’s assessed limitations against an assessment of the functional elements attendant of the roles identified whether by reference to the CoWork or WorkStream assessments. It [is] not apparent that such an exercise was performed by Dr Yong. His assessment and conclusions are perfunctory.
·The Magistrate had regard to the report of Dr Ian Chenoweth and that in his final report, Dr Chenoweth expressed the opinion that the respondent ‘will never have the capacity to suitable employment for the foreseeable future’.[20]

[14]Ibid [50].

[15]Reasons, [65].

[16]Ibid [75].

[17]Ibid [77].

[18]Ibid [80].

[19]Ibid [81].

[20]Reasons, [91].

In relation to the medical evidence, the Magistrate concluded:[21]

I am satisfied that there is clinical pathology to account for the plaintiff’s complaint of pain in his right knee and a progression of pain in the left knee and that on balance the plaintiff’s incapacity will continue indefinitely and all of this is subsequent to the period of his dishonesty. It would be quite frankly remarkable if the plaintiff did not experience pain. What I have to keep in mind is whether I can be satisfied as matter of fact that such pain to knee and neck presents such restrictions as to render him capable of suitable alternative employment. The current determination falls for determination in a different medical environment than the one the plaintiff presented with during the period of his dishonesty and prior to the 2008 injury.

[21]Ibid [93].

In relation to the CoWork Report, the Magistrate concluded:[22]

A fair proportion of Ms Bryant’s consideration of the physical demands of the job of retail manager in the hair salon is based on her own observations and not empirical data. Furthermore, I do not regard the plaintiff’s past employment and his evidence regarding the same as having equipped him to undertaking the stock and budgetary requirements of such a role or for undertaking, for example, the training of staff.

[22]Ibid [103].

In relation to the respondent attending to real estate related employment work identified in the CoWork Report, he found that, on balance, he did accept that the respondent does not drive and certainly not alone or in a manner that would readily permit him to perform the attendant tasks of attending on properties for inspection for the purpose of meeting with tradespeople.[23]
[23]Reasons, [104].

In relation to the property manager job, the Magistrate concluded that such a position contemplated the respondent walking upstairs to properties and he was satisfied by the evidence that the respondent would be inhibited from doing so, other than with difficulty, because of the restrictions of movement noted in medical reports and because of attendant pain.[24]
[24]Ibid [105].

At paragraphs 106, 107, 111, 112 and 113, the Magistrate concluded:

The plaintiff’s age, education, skills and work experience are important considerations under the Act as well. Assessments made of his suitabilities that are 4 or 5 years old are only superficially useful. The plaintiff did not complete secondary schooling and his previous employment has been in retail, as a hairdresser, an amateur footballer and manual labouring and not office-based work. The plaintiff has undertaken some vocational activity whilst in prison and some computer training but only of an elementary type since. There is no reason for me to regard such vocational activity as equipping him for employment that requires office-based and computer-based skills.
The defendants made reference to and relied on the plaintiff having operated his own business for a time in car battery delivery and thus equipping him with the basic skills for such work. The plaintiff was self-employed and he delivered and installed batteries. I am not satisfied that the evidence supports a finding that he conducted or was concerned with the administrative side of the business operations, leaving such matters to his then wife. The defendants also relied on the plaintiff’s administrative work performed of a clerical nature while working on the docks and the duties performed as billet to the prison’s general manager as equipping him with a skill set applicable to office-based work in a real estate agency. I am satisfied that the previous work on balance provides support for the defendants’ submissions that the plaintiff may satisfy and be able to discharge some of the duties identified in the realty related jobs, but it is not realistic to regard him as equipped vocationally for the myriad of tasks they entail. The work in connection with the real estate industry is not merely administrative in nature but requires a skill set or an ability to acquire a skill set by way of a Certificate and an ongoing capacity to apply such training to the everyday discharge of the responsibilities.
…

The central question for me is not to concentrate on one aspect of the evidence in isolation but to assess the whole of the evidence in order to determine if the plaintiff has discharged his onus that he could undertake the identified employment having regard to the matters contained in that definition in s 5(1) of the Act. In going about this task, I bear in mind the real distinction that exists between capacity for a return to modified duties as opposed to a work capacity for suitable employment: Sodexo Australia v Karen Rowe & ors [2009] VSC 298.
Also in making a proper assessment in accordance with s 5 of the Act, I have attempted to apply a sensible approach to the evidence. The legislation under consideration is beneficial. Furthermore, as I mentioned earlier, even people inhibited in their character by proved dishonesty can suffer a compensable injury.
I am satisfied that the real estate jobs do not amount to suitable employment because I am not satisfied the plaintiff could undertake a sufficient array of the identified duties such as to make the job suitable. He cannot walk for the period contemplated for attending open for inspections and he cannot drive. Furthermore, I am not satisfied that the role of retail manager in a hair salon is suitable employment because in order for it to constitute suitable employment, I am also satisfied that it would require some significant tailoring to the plaintiff’s limitations. The vocational evidence relied on by the defendants from CoWork included assumptions about the ability to moderate functional tasks. In my judgment this renders the situation more akin to the existence of jobs the plaintiff could do if allowance was made to accommodate his limitations as opposed to jobs that the plaintiff has a capacity to undertake and thus constitute suitable employment.

Finally, the Magistrate sets out the relevant law and concluded:[25]

I have addressed the evidence that touches on the statutory provisions to which I am directed and this includes of course regard being had to the nature of the plaintiff’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker. The nature of the plaintiff’s incapacity with regard to physical restrictions and functional tolerances included according to Dr Horsley in a report dated 7 May 2013, a “working tolerance of 15 minutes with a break”, “a negligible static standing tolerance” and a “dynamic standing tolerance of 15 minutes”.

[25]Reasons, [124].

The Magistrate then considered, under the heading, ‘The suitable employment test’, the relevant case law and stated:[26]

The plaintiff need only establish a prima facie case that no suitable employment exists. In such a situation he will then be entitled to succeed unless I am satisfied that the defendant has produced evidence sufficient to raise some specific alternative for consideration. In my view, and being realistic, the defendant is required to produce evidence sufficient to give rise to a real possibility that there are particular types of employment available in the community which the plaintiff is capable of performing. Thus there arises an evidentiary onus on the defendant. Largely speaking the matters will be factual in nature and fall to the defendants to adduce. The defendants have adduced evidence by reason of at least the WorkStream and CoWork Vocational Assessment reports. … I do not regard them as suitable employment in light of s 5 of the Act when analysed by specific reference to the particulars of the job[s], the medical restrictions and personal characteristics of the worker and his pre-injury suite of employment. I do not think ss 5(1)(a)(iv) and (vi) have application in me arriving at my conclusion. I am satisfied that in accordance with s 5 of the Act the plaintiff does not have the requisite capacity and that the employment is not therefore suitable employment.
[26]Ibid [127].

The appellants’ arguments on appeal

At the hearing of this appeal, Senior Counsel for the appellants submitted that there were four primary issues in this appeal. Firstly, the appellants’ principal complaint was that the Magistrate never properly considered or made a finding that the respondent had a prima facie total incapacity making him unfit for suitable work and that the Magistrate failed to make findings as to the respondent’s real level of restriction and transferrable skills.[27]
[27]T19.

Secondly, it is submitted that if the Magistrate did, by implication, make a finding or conclude that the respondent had a total incapacity, which is not admitted, then the Magistrate failed to make the necessary findings of fact on these issues, which include what were the respondent’s transferable skills. It is submitted that the latter errors are said to be tied to the Magistrate’s Reasons which failed to disclose a path of reasoning. It is submitted that the Magistrate did not make findings of fact sufficient to justify his Honour’s conclusions.

Thirdly, it is further submitted that the Magistrate misapplied the onus of proof. That is, the Magistrate erred in that he did not consider whether the respondent had actually made out a prima facie case of incapacity for suitable employment before turning to the question as to whether he was capable of specific jobs that were raised and that, in doing so, he wrongly reversed the onus of proof on the appellant.

Fourthly, it is submitted that the Magistrate erred, in that the factual conclusion reached was not reasonably open. It is submitted that on the findings made by the Magistrate as to the dishonesty, lack of credibility, and unreliability of the respondent requiring caution and corroboration of his evidence, and in the absence of any satisfaction by the Magistrate that the respondent was giving an honest account of his pain and the limits of his capacity, it was not reasonably open to the Magistrate to conclude that the respondent had no current work capacity.[28]
[28]Amended Written Submissions, 22 April 2016, [45].

Failure to make findings – Grounds 1 and 2

The appellants contended in the course of the Magistrates’ Court proceeding that the respondent could not be believed as to the level of his symptoms or incapacity. The appellants submitted that if the respondent’s credibility attack was sustained, the medical evidence suggesting he lacked capacity for all employment, compared to that of Dr Yong, would be undermined.

The appellants now submit that, given the respondent had previously lied about his work capacity to doctors and in two affidavits in his County Court serious injury application relating to the 2008 neck injury with the second appellant, the evidence he gave in the Magistrates’ Court proceeding about his current state of injury and true work capacity could not be easily accepted.

The appellants submit that while the Magistrate referred to the content of the two County Court affidavits and whether it ‘impeached’ the respondent’s application as it related to his injuries and capacity for suitable employment and any entitlement to reinstate weekly payments, the Magistrate never reconciled the problem to make findings on the actual level of any symptom and incapacity arising from the respondent’s injuries and how the unreliability of the respondent’s evidence affected the ultimate conclusion on suitable employment.

The appellants submit that the Magistrate never made adequate findings not just about credit per se, but also factual background matters said to be relevant to the issues in dispute. It is submitted that the Magistrate failed to make a finding, for example, about whether the respondent was performing heavy work on the docks and having no real problems with his knees as at 1 October 2008. The appellants submit that if the respondent could work in October 2008 despite the several surgeries to his knees, and the use of medications, it told against the respondent now being completely incapacitated for lighter forms of employment by reason of his knees.

In oral submissions, Senior Counsel for the appellants took me to aspects of the evidence before the Magistrate which he submitted demonstrated the respondent’s dishonesty about his capacity to work for the purpose of getting payments from WorkCover in the past. These included the certificates for 15 years the respondent submitted, saying he could not work when he was working;[29] the histories the respondent gave to his general practitioner over that period;[30] the telling of untruths to the medico-legal doctors who examined the respondent in that period;[31] and the history to Mr Simm in 2008 which was false.[32]
[29]Court Book Volume 3, 1054.
[30]Ibid 1318, 1319 1329.
[31]Ibid 1434, 1435 1437.
[32]Ibid 1186, 1187, 1189.

The appellants submit that, in particular, the failure to make a finding about what was involved in the respondent’s work at the waterfront was important. It is submitted that the respondent’s evidence before the Magistrate was inconsistent in the witness box as to whether he did clerical work at the waterfront and, if so, what type and for how long. The appellants submit that the Magistrate did not make any findings about what clerical work the respondent did at the waterfront, and that he had to, in order to properly assess the respondent, whether the respondent had no work capacity or if there was any suitable employment.

The appellants make the same complaint about the respondent’s history of working in retail and sales, and submit that the Magistrate failed to make any findings in relation to the extent of the respondent’s retail work. It is submitted that the Magistrate failed to make the necessary findings of fact as to what transferrable skills or restrictions the respondent had. The appellants submit that the Magistrate never properly considered or made a finding as to the respondent’s prima facie incapacity and whether that prima facie incapacity made him unfit for suitable employment. Further, the appellants submit that in order to make the latter evaluation, there had to be findings as to the respondent’s real level of restriction and transferrable skills.[33]
[33]T19, LL 17-27.

The appellants also submit that the Magistrate failed to evaluate, and effectively ignored[34] the WorkStream report of October 2009, and focused primarily on the CoWork report. It was submitted that, in circumstances where Dr Lytle, a medicolegal expert and Dr Chenoweth, the respondent’s general practitioner, considered the clerical work employment options raised in the WorkStream report were within the respondent’s capacity, the Magistrate erred by not having due regard to it and giving it proper analysis.
[34]T21, L 1.

It is submitted by the appellants that the WorkStream report was not a feature of any proper analysis by the Magistrate. In oral submissions, Senior Counsel for the appellants concluded:[35]

As I said, whether it’s an error in the reasons or not we say ultimately there was so much material that raised credit, there was so much material that suggested that this person was fit for suitable employment. It could be part-time work, it could be two days a week. It doesn’t matter. To get beyond 130 (days) he’s got to be totally incapacitated and permanently going to be totally incapacitated.

He’s got intelligent, good interpersonal skills, good presentability, people are saying he can do all this clerical work and it just falls out of the judgment without any findings about whether he can or can’t what his background is, what his restrictions are, and it just reduces to these three jobs, and we say that’s the error essentially either both in terms of the reasons and in terms of the underlying disposition and really it has to be reheard.
[35]T35, LL 17-31, T36, LL 1-2.

The Reasons are inadequate (Ground 4)

The appellants submit that, even though the Magistrate framed the issues correctly at [17], [19] and [93], the Reasons did not go on sufficiently to identify:

(a)what evidence of the respondent he accepted and what evidence he rejected, and why;
(b)what the respondent’s symptoms were at the present time; and
(c)what the restrictions were at the present time upon the respondent’s capacity to perform tasks, for example, lifting or standing or driving, and what evidence the Magistrate accepted as a foundation for those findings.

The appellants submit that even though the Reasons summarised the respondent’s evidence as to his alleged pain and restrictions (at [51]-[53]), the Magistrate did not make any findings about which restrictions he accepted or rejected. It was submitted that, given the extreme circumstances of this case, it was necessary for the Magistrate to make clear findings and explain the level of symptoms that the Magistrate was prepared to accept that the respondent suffered from, what experience the respondent had in non-manual work, and to explain how those symptoms made the respondent unfit for suitable employment.

It is submitted that at [105], the Magistrate was satisfied that the respondent was inhibited from walking upstairs, because of ‘restrictions on movements noted in the medical reports and because of attendant pain’. The appellants submit that this passage reveals a significant inadequacy in the written Reasons. It is submitted that there is only a vague reference to medical reports, but that it is not possible to know which reports in the context of paragraph [105] and, secondly, that it is not clear what ‘restrictions on the movements’ link to an inability to use stairs. Also, the degree of pain and restriction reported by the doctors was dependent upon the history given by the respondent and his presentation on examination, and that if that was not reliable, then the medical reports were similarly unreliable, as they depended upon subjective reporting by the respondent and his cooperation on examination and not objective findings. It is submitted that the Magistrate failed to engage in that necessary reasoning process.

It is submitted in particular that in relation to the respondent’s work on the docks, there was evidence that the respondent had the capacity to perform work despite his injuries, and that he was working four to five days a week doing eight hour shifts.[36] The appellants submit that in the course of the Magistrates’ Court proceeding, they stressed that stevedoring work was heavy, manual work which the respondent had capacity to engage in despite longstanding knee injuries. They note that in the Reasons at [37] where the Magistrate’s notes ‘wherever the truth of the matter lies’ he failed to make a relevant finding about the extent of heavy and physical work done by the respondent. It is submitted that the Magistrate did not confront or resolve the issue, and that failing to make a finding on such an important matter of fact meant that the determination of present incapacity was done without proper foundation. It is submitted that the issue was side-stepped, despite the matter assuming importance in the evidence.
[36]T62, LL 11 to 16 (24/3/14) and T32, LL 18 to 20 (10/11/14).

It is submitted that while the Magistrate provided a summary of the medical evidence from [66] to [119], the analysis at [127] to [131] did not engage with the issues raised for decision. It is submitted that the Magistrate did not give any proper reasons identifying how the adverse finding on the respondent’s credibility affected his case and the medical reports relied on by him to support the lack of capacity.

It is submitted that another example of the Magistrate referring to evidence without making a finding one way or the other can be found at [124], which deals with the reports of Dr Horsley. It is submitted that Dr Horsley noted the tolerances reported to her by the respondent and that the respondent’s own evidence at trial went beyond this, in that he said he could stand in the water at the beach for 20 minutes and could walk up to 20 minutes. It is submitted that nowhere did the Magistrate decide what the limits of his walking and standing tolerances were, or give reasons why that was the case.

Criticism is made of the Magistrate in relation to his finding that the respondent could not drive, in that it is submitted that he gave no reasons for this finding.

In relation to the Magistrate’s assessment of Dr Yong’s opinions, the appellants submit that while the Magistrate said he had given weight to Dr Yong’s opinions, he appeared critical of Dr Yong’s assessment as ‘perfunctory’.[37] It is submitted that the Magistrate failed to make findings or give reasons explaining whether he accepted Dr Yong’s opinion that the jobs identified and relied upon by the appellants were within the respondent’s capacity and, if not, why he rejected those reasons.
[37]Reasons, [90].

Finally, it is submitted that the Reasons did not deal with the clerical jobs identified in the WorkStream report compared to the Reasons at [113], where the CoWork jobs (property manager/real estate agent/hair salon manager) were dealt with. It is submitted that while the Magistrate uses language of satisfaction[38] in determining whether the respondent had capacity for the CoWork jobs, there was no proper consideration of whether the respondent had capacity to perform the clerking jobs, despite specific submissions and reliance upon those clerking jobs in the WorkStream report.
[38]Reason, [109].

Misapplication of the onus of proof – Ground 3

The appellants submit that while the Magistrate correctly stated the test at [127] and [111], his Honour did not consider whether the respondent had actually made out a prima facie case of incapacity for suitable employment before turning to the question as to whether he was incapable of the specific jobs that were raised. It is submitted that to do this reverses the onus.[39]
[39]Public Transport Corporation v Pitts [2007] VSC 356, [15]-[17]; Giankos v SPC Ardmona (2011) 34 VR 120 at 144-145 [115].

It is submitted that the Magistrate wrongly placed the onus on the appellants at paragraphs:

(a)[106] — ‘There is no reason for me to regard such vocational activity as equipping him …’;
(b)[107] — ‘I am not satisfied that the evidence supports a finding that he conducted or was concerned with the administration side of business operations’; and
(c)[113] — ‘I am not satisfied that the plaintiff could undertake a sufficient array of the identified duties such as to make the job suitable’.

Conclusion not reasonably open (Ground 5)

The appellants submit that the Magistrate made an error of law in that he reached a factual conclusion that was not reasonably open.[40]
[40]S v Crimes Compensation Tribunal (1998) 1 VR 83 at 89; Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48 at 57-58 [35].

It is submitted that on the findings made by the Magistrate as to the dishonesty, lack of credibility, and unreliability of the respondent requiring caution and corroboration of his evidence,[41] and in the absence of any satisfaction by the Magistrate that the respondent was in fact giving an honest account of his pain and the limits of his capacity, it was not reasonably open to his Honour to conclude that the respondent had no current work capacity.
[41]Reasons, [47].

Respondent’s submissions
Failure to make necessary finding (Grounds 1 and 2)

The respondent submits that the Magistrate was well aware of the respondent’s established dishonesty and propensity to mislead. It is submitted that the Magistrate considered the whole of the evidence and assessed what the evidence demonstrated objectively in relation to the respondent’s likely symptoms, restrictions and capacity for suitable employment and, in that light, determined what, if any, of the respondent’s evidence should be accepted. It is submitted that the Magistrate’s Reasons demonstrate an objective framework, including:

(a)that the respondent was an older man for the period of compensation claimed compared to the period of active fraud whilst working on the docks and that he carried additional spinal injury and elective surgeries;[42]
(b)the focal reference point as to what the expert evidence told him regarding the known physiology of the injuries, the surgeries and the known medical range of consequences.

[42]Ibid [43], [49].

It is submitted that the Magistrate was not impressed with the respondent[43] and that in terms of physical pain, restrictions and incapacities, the Magistrate approached the assessment by reference to what the expert evidence revealed about the nature of the pathological effects of injury and surgery and their known consequences. It is noted that the Magistrate allowed for the respondent’s subjective complaints within these parameters and that this approach reveals no error of law.[44]
[43]Reasons, [45].
[44]Forder v Hutchinson [2005] VSCA 281.

In relation to the Magistrate’s discussion on expert evidence in [66] to [80], the respondent submits that it was not a mere recitation with limited identified purpose, but that objectively this evidence revealed:

(a)Knees:
·a diagnosis of severe osteoarthritis of the right knee assessed as more disabling pain than the neck as at February 2009;[45]
[45]Reasons, [60].
·knee pain precluding the ability to stand for extended periods and making a job in hospitality physically impossible;[46]
[46]Ibid [70].
·palpable muscle wasting around the lower quadriceps, poor activation of the vastus medialis muscle, poor stability around the knee, tightness of structures around the knee and the consequence of such pathology leading to loss of strength, poor endurance, poor exercise tolerance and pain;[47]
·tenderness, muscle wasting;[48]
·progressive arthritis of both knees;[49]
·the effects of bilateral knee replacement surgery included limited range of motion and pain and restrictions.[50]

(b)Neck:
·examination findings and professionally assessed medical restrictions appropriate to the findings and knowledge of the condition and effects of fusion surgery on cervical levels above and below with the deterioration and increasing de-stability that it will bring.[51]

[47]Ibid [72], [84].

[48]Ibid [84].

[49]Ibid [78].

[50]Reasons, [91].

[51]Ibid [73]-[77], [80].

It is submitted that the nature of the respondent’s injuries and medical pathologies in this case are radiologically and surgically established with a medically known range of effects, and that therefore the degree to which the medical opinions is dependent on the respondent is variable. It is submitted that many of the restrictions and disabilities expressed are based entirely on that expert knowledge.[52] It is submitted that insofar as the Magistrate had regard to the respondent’s subjective complaints, they were implicitly within the range of the medical knowledge in evidence before the Magistrate.
[52]Ibid [75]-[77].

It is submitted that in light of the Magistrate’s approach, that is, assessing the medical evidence including the medical pathologies, the Magistrate made findings that:

(a)the respondent’s right knee was bad, with a lot of pain and swelling worse since knee replacement surgery in 2012. the Magistrate accepted the respondent’s evidence in this regard on the basis that there was also clinical pathology to account for the complaint;[53]
(b)there was a progression of pain in the left knee. Again, this was accepted by the Magistrate on the same basis;[54]
(c)in addition to the latter, the Magistrate referred to knee pain causing indefinite incapacity,[55] that is, incapacity in the sense of impairment with respect to weight bearing, walking, standing, climbing stairs and use of the leg.[56] The Magistrate accepted Dr Horsley’s evidence in relation to the respondent’s walking tolerance of 15 minutes and that this demonstrated more than a mere acceptance of the respondent’s self-reporting. He submitted that Dr Horsley’s opinion is a product of her expertise and that Dr Horsley was aware that the respondent had been misleading in the past and of the circumstances giving rise to incarceration; and
(d)in relation to the finding that the respondent did not drive, it is submitted that this was in the sense that the respondent was unable to drive in a safe and proper way for meaningful purposes. The Magistrate had regard to evidence of the respondent’s medications for pain management, depression and anxiety, and referred to Dr Fisher’s opinion of their impact on the respondent’s concentration; the evidence that the respondent had no confidence in his ability to drive safety in the event of an emergency; the evidence that the respondent had tried to drive but had abandoned it; the evidence that the respondent did not own a car and that he did not drive alone.

[53]Ibid [52], [93].

[54]Ibid [93].

[55]Ibid [93].

[56]Reasons, [74], [85], [97].

It is submitted, in relation to the neck injury, that the Magistrate made implicit findings. Referring to the evidence of Dr Horsley and Mr Brownbill and accepting the restrictions and consequences identified in their opinions, it is submitted that the restrictions and consequences in relation to the respondent’s neck identified by Dr Horsley and Mr Brownbill were on the basis of no pathology and surgery, and their expertise assessment of those matters.[57] In particular, at [75], the Magistrate noted increasing symptoms, stiffness, disability and reduced range of movement as the degenerative process accelerates over the next five to ten years, and he accepted the other restrictions referred to by Dr Horsley at [74] involving a sitting tolerance of 10 to 15 minutes and avoidance of static postures involving the neck.
[57]Ibid [75], [76].

It is submitted that the Magistrate’s findings involved more than a recitation of the medical evidence.

It is submitted in relation to the neck injury, the Magistrate accepted the professional view of Dr Chenoweth that it was a major cause of the respondent’s lack of capacity to re-enter the workforce with no capacity for ‘suitable’ employment for the foreseeable future.[58]
[58]Reasons, [91].

Finally, in relation to the neck injury, it is submitted that while the Magistrate did not accept Dr Yong’s opinion concerning capacity for suitable employment, he implicitly accepted Dr Yong’s evidence and the medical restrictions imposed in relation to the neck, including avoiding:

·awkward neck posture;
·repetitive neck movement;
·firm push or pulling; and
·lifting more than five kilograms on a repeated basis.

Inadequate reasons (Ground 4)

It is submitted as a general proposition that the Magistrate addressed relevant evidence and determined the issue of suitable employment as a matter of fact, and that a reader can readily appreciate how the conclusion of no capacity for suitable employment was reached when the Reasons are considered as a whole.

It is submitted that the Magistrate considered the respondent was prima facie unfit for all work from March 2012 and into the indefinite future based on the collection of medical restrictions, the pain experienced and the opinion of Dr Chenoweth. It is submitted that the Magistrate returned to consider the postulated suitable employment options, applied his accepted medical restrictions/tolerances and pain symptoms and the elements relevant to the definition of suitable employment to the tasks required, and formed the factual conclusion against the appellants.

In relation to Dr Yong’s evidence supporting the physical capacity for suitable work options, this was rejected by the Magistrate. It is submitted that the Magistrate considered Dr Yong’s evidence at [82] to [90] and rejected it at [90]. It is submitted that the process of reasoning is transparent, adequate and reflects that the Magistrate was not satisfied with the way in which Dr Yong delivered his professional view, describing Dr Yong’s assessment and conclusions as perfunctory, and considered that Dr Yong’s medical restrictions relevant to the respondent did not fit the functional elements of the suitable employment roles. The respondent notes that the Magistrate otherwise accepted the evidence of Dr Yong.[59]
[59]Reasons, [90].

It is submitted that the Magistrate then addressed reasons for the conclusion that the postulated options did not constitute suitable employment, including:

(a)accepted knee pain, walking restriction of approximately 15 minutes and restriction of knee range of movement and implicitly stair climbing and use repeatedly and restriction of standing;[60]
(b)lack of driving;[61]
(c)lack of relevant education, qualification and experience;[62]
(d)lack of retail manager role meeting the respondent’s restrictions;[63]
(e)accepted evidence of Dr Chenoweth that the respondent will never have the capacity for suitable employment for the foreseeable future, with the neck being a greater cause than the knees.[64]

[60]Ibid [105], [111], [113], [124].

[61]Ibid [104].

[62]Ibid [106], [107], [108], [118].

[63]Ibid [109]-[113].

[64]Ibid [91].

It was submitted that the Magistrate explained why those factors excluded a capacity to perform in the postulated options in a transparent process of reasoning.

It was submitted that, having decided the issue in accordance with law, the Magistrate then specifically set out the statutory provisions and embarked on a discussion of the law and the burden of proof. It is submitted that there is nothing in the Magistrate’s discussion from [125] to [127] which affects his Honour’s correct antecedent resolution of the issue.

It is submitted that a fair reading of the Reasons as a whole shows that the medical reports referred to were those of the practitioners identified in the Reasons and the restrictions set out in those reports. The degree of pain and restriction were sufficiently the subject of findings.

In relation to the appellants’ submission that the Magistrate did not make a relevant finding about the extent of heavy and physical work done by the respondent in his stevedoring work, it is submitted that, while the Magistrate allowed for the variation in evidence as to the duties on the docks and did not make an absolute finding as to those matters, it was not necessary in order to determine the issue before the Magistrate which was at a much later point in time with a differing set of medical conditions.

In relation to the criticisms made of the Magistrate’s findings in relation to Dr Horsley, it is submitted that a reading of the Reasons as a whole makes it clear that Dr Horsley’s restrictions, and those of the other named practitioners, had been accepted by his Honour. It is submitted that a consideration of the respondent’s actual evidence referred to is not inconsistent with Dr Horsley’s restrictions. It is further submitted that, the Magistrate accepted Dr Horsley’s limits as to walking and standing, and concluded that the requirements for the suitable employment options exceeded the restrictions imposed by Dr Horsley.

It is submitted that Dr Yong did not perform the fact finding process of comparing the medical restrictions against the tasks required by the suitable employment options, which led to the Magistrate’s opinion of describing Dr Yong’s assessment as perfunctory.

In relation to the Magistrate’s consideration of the WorkStream options, it is submitted that the Magistrate had in mind the medical restrictions of Dr Yong as being inconsistent with the tasks of the occupations advanced in the WorkStream options and that, combined with his Honour’s acceptance of Dr Chenoweth’s view as to the consequences of the neck injury referred to at [91] and the knee, along with the restrictions set out and accepted in the medical evidence at [66] to [77], it is discernible why the WorkStream options were not found to be suitable.

Misapplication of onus of proof (Ground 3)

The respondent submits that when reading the Reasons as a whole and having regard to the tasks identified and performed by the Magistrate, his Honour concluded that there was a prima facie case of no current work capacity. Thereafter, it is submitted that the Magistrate dealt with the postulated suitable employment options advanced before coming to the final view. It is submitted that the Magistrate recognised that the legal onus lay on the respondent at all relevant times.[65]
[65]Reasons, [127].

Conclusion not reasonably open (Ground 5)

It is submitted that the Magistrate only accepted the respondent’s evidence as to pain and restriction insofar as they were consistent with the medical science recognising the complaints as acceptable or reasonable.

It is submitted that the first appellant at trial did not advance that the respondent would have no pain, rather the extent of the pain and the disabling effects of pain constituted the issue.[66] Further, it is submitted that the first appellant accepted there was some physical restrictions[67] and at no stage did the second appellant express disagreement.
[66]T109, LL 1-5.
[67]T123, LL 28-30.

Nature of the appeal

Section 109 of the Magistrates’ Court Act reads as follows:

Appeal to Supreme Court from final order made in civil proceeding
(1)A party to a civil proceeding in the Court may appeal to the Supreme Court, on a question of law, from a final order of the Court in that proceeding.
(2)An appeal under subsection (1)—
…

(6)After hearing and determining the appeal, the Supreme Court may make such order as it thinks appropriate, including an order remitting the case for re-hearing to the Court with or without any direction in law.

In Ericsson Pty Ltd v Popowski (‘Ericsson’),[68] Brooking JA said of an appeal under s 109:

the appeal given by s 109 of the Magistrates’ Court Act is only on a question of law, and it is not enough to show error of law simply to persuade a judge that the magistrate went wrong on a question of fact. The plaintiff accepts this, and acknowledges that it was necessary for her to satisfy the judge, as she did, not only that the finding of the magistrate was wrong in the sense that the judge himself would have come to a different conclusion on the primary facts found by the magistrate, but also that the magistrate was constrained to make the finding which commended itself to the judge. It is a strong thing to reach such a conclusion in a case where the burden of proof lies on the appellant, who is therefore submitting not that an affirmative finding had no evidence to support it, but that the evidence was such as to necessitate an affirmative finding which was not made. It will be impossible to sustain this burden in cases where the refusal to make the finding sought may be grounded in a refusal, open to the tribunal, to accept part or parts of the evidence. I refer to the decisions which I cited as bearing on whether the questions posed in the present case by the master’s order are questions of law. But in the present case the magistrate seems to have accepted the plaintiff’s evidence as reliable and it may be said that the question is not whether on the evidence as a whole the magistrate was constrained to make a certain finding, but whether on the findings of primary fact which the magistrate made he was constrained to make that finding. This is, as I shall mention later, subject to the qualification that regard must also be had to findings which it was open to the magistrate to make and which he may, consistently with his reasons for decision, have made, notwithstanding that he did not announce them.[69]

[68](2000) 1 VR 260.

[69]Ibid 14.

In Ericsson, the worker had failed in an application for payments under s 82(1) of the Act. Although the appeal to the Trial Division of this Court did not involve an attack on the Magistrate’s Reasons, it challenged the findings of the Magistrate which the trial judge held were not open on the evidence. On appeal, Brooking JA acknowledged that he, like the trial judge, would have reached a different conclusion to that of the Magistrate. However, Brooking JA underlined that there was sufficient evidence to justify the Magistrate’s conclusion and that there was no error of law. Further, the Reasons of the Magistrate enabled the Court to determine what view had been taken of the worker’s evidence, and this was a matter of ‘primary fact’.

As Beach J said in Dinatale v Sweeney Research Pty Ltd:[70]

it is to be remembered in cases of this kind, that a question of law is not involved in a decision simply because a tribunal or court makes one or more findings of fact that are not supported by evidence; nor is it sufficient that the reasoning whereby a conclusion of fact is reached is demonstrably unsound. (footnotes omitted)

[70][2013] VSC 414, [38].

There is nothing in this case that leads me to conclude that the Magistrate’s findings were not supported by the evidence, that the Magistrate failed to make findings that were central to his ultimate conclusions, or the Magistrate’s reasoning was unsound in any way.

Analysis (Grounds 1 and 2 – Failure to make necessary findings)

I have come to the conclusion that the Magistrate’s Reasons disclose that the respondent succeeded because the Magistrate was satisfied of the reliability of the respondent’s accounts of symptoms which supported a prima facie case of total incapacity or that he proved his incapacity for suitable employment. I am also satisfied that such findings accords with the medical evidence.

In C-Tech Laser Pty Ltd & anor v Truong,[71] Beach J considered that in circumstances where there was no specific finding by a Magistrate as to a relevant issue in the case, the reasons were inadequate. Later, at paragraph [11], the Magistrate said:[72]

In failing to make a finding as to what (if any) statement was made by Mr Truong to Profile Cutting in early April 2006, the magistrate failed to give consideration to the claim pleaded by the appellants and/or failed to give sufficient reasons for dismissing that claim. …

[71][2009] VSC 229.

[72]Ibid.

The reliability of the respondent’s history is especially important where there is a known history of untruthfulness on the very subject matter of the hearing. In this case, the respondent has lied about his work capacity, resulting in obtaining payments and a period of incarceration. In the Magistrates’ Court proceeding, the issue of credibility was complex by virtue of the history and because much of the medical evidence depended upon the respondent’s report of his symptoms and restrictions. Having said that, the task of assessing the respondent’s credibility and reliability is that of the Court.[73]
[73]Mason v TAC [2014] VSCA 256, [102].

In Mobilio Brooking v Balliotis,[74] Brooking JA observed:

[W]here, 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.

[74](1998) 3 VR 833, 836.

In Mason v TAC, Whelan JA said:[75]

If the history is found to be unreliable a court may properly reject medical opinions founded upon it.
Of course, a court is not bound to simply reject psychiatric opinions founded upon an unreliable history. The court may be able to reach a conclusion as to the existence or non-existence of a particular condition, such as PTSD, notwithstanding the fact that the psychiatric opinions were based upon facts in conflict with the facts found by the court.

[75]Mason v Transport Accident Commission [2014] VSCA 267, [103], [104] (citations omitted).

The appellants’ first submission is that the respondent could not be believed as to his level of his symptoms and incapacity and that, as such, the medical evidence suggesting he lacked capacity for all employment was undermined.

I consider the Magistrate was fully cognisant of the respondent’s capacity to lie. He dedicated an entire section in the Reasons to ‘assessing the respondent’s credibility’. The Magistrate clearly identified that the respondent’s past dishonesty meant that the Magistrate would approach with caution in the absence of clinical evidence, evidence that depended on the respondent’s evidence of self-appraisal and pain and ongoing psychological effects that he said impinged on his capacity to perform suitable employment.[76]
[76]Reasons, [47].

The Magistrate took into account that in 1994 to 1997, the respondent was working on the docks while in receipt of payments when supposedly incapacitated, and that such work was undertaken by a younger man and prior to the 2008 neck injury. The Magistrate noted that the respondent was now an older man and physically more fragile with a further injury than when he worked at the docks.[77]
[77]Ibid [48].

The Magistrate underlined that he took into account the respondent’s past dishonesty, was not impressed with him as a witness, and had assessed the respondent’s subjective complaints of pain and symptoms by reference to what the medical evidence revealed about the pathological effects of injury and surgery and their known consequences.[78] I consider the Magistrate’s approach was appropriate and revealed no error of law.
[78]Ibid [49].

I reject the appellants’ submissions that the respondent’s past dishonesty and the false history he gave to some of the doctors meant that there was no reliable evidence that the respondent did not have the requisite capacity and that the employment was not suitable employment. In my opinion, the medical evidence, including the evidence provided by the diagnostic tests, when combined with the inference which can be drawn from the difference between the respondent’s pre-2008 and post-2008 neck injury, was sufficient to establish on the balance of probabilities that the respondent had no work capacity. In the course of the Magistrate’s Reasons, he reviewed a significant amount of medical evidence. In his Reasons, he noted the following:

· In 2009, Dr Chenoweth, the respondent’s general practitioner, diagnosed severe osteoarthritis of the right knee, and in February 2009 assessed this as ‘more disabling pain than the neck pain at present’;[79]
[79]Ibid [67].

· Dr Nadine Fisher, in a report dated 14 October 2014, said that it was hard to assess whether the respondent had side effects from his medications as he had been on them for a long period. She considered, however, that they contribute to his poor memory and lapses in concentration and, in addition, she considered it was highly likely that he had developed a dependency on his analgesics;[80]
[80]Reasons, [70].

· Lucy Butler, physiotherapist, reported, in April 2013, that the respondent had significant loss of strength in the quadriceps muscles, leading to poor endurance and exercise tolerance. She considered his walking endurance was limited to 20 minutes by pain and as a result of poor stability around the knee. She assessed his current quadriceps strength was 4/5 with palpable muscle waisting around the lower quadriceps and poor activation of the vastus medialis muscle. Ms Butler reported that the respondent had very tight structure surrounding his right knee and that the limitation in length of surrounding structures is causing tension on the knee joint and is a significant contributor to the respondent’s pain;[81]
[81]Ibid [72].

· Dr Robyn Horsley, occupational physician, provided numerous reports. Dr Horsley conducted an examination of the cervical spine and considered that the respondent’s functional tolerances were poor, secondary to a combination of the cervical spine and bilateral knee conditions. At the time of her assessment in May 2013, she noted that the respondent had not driven since 2008 and considered his functional tolerances included:

° A sitting tolerance of 10 to 15 minutes;

° A walking tolerance of 15 minutes requiring a break;

° A negligible static standing tolerance; and

° A dynamic standing tolerance of 15 minutes.[82]
[82]Ibid [74].

· Dr Horsley considered that the respondent will develop increasing symptoms in the cervical spine as the degenerative process accelerates above and below the sight of fusion in the next five to ten years and that this will result in increasing stiffness and reduce range of motion, and increase disability;[83]

· Dr Brownbill, in a report dated 2 May 2012, considered that, as a result of the cervical spine fracture and required surgical procedure, the respondent in the future will need to avoid heavy lifting, forced spinal mobility or holding his neck in a fixed position;

· Mr Rodney Simm, an orthopaedic surgeon, noted his diagnosis that the respondent had experienced a cervical spine fracture at C5 as a result of the 1 October 2008 accident. He reported that the respondent’s lower back consisted of an extensive history of pain and that there is evidence of age-related changes in pathology predictive of pain, but that there was only minor restriction of movement and no clinical signs of radiculopathy. Mr Simm considered the respondent’s right knee diagnosis was one of progressive osteoarthritis initiated as a result of the work accident of 19 April 1994, which he called the significant contributing factor. Mr Simm detailed the reconstructive procedures and multiple arthroscopic procedures the respondent underwent, resulting in a total knee replacement. In relation to the respondent’s left knee, Mr Simm considered there was a diagnosis of progressive osteoarthritis which he thought was probably constitutional and also influenced by the knee injury of 1984 that had arisen from football. He also noted as well left shoulder symptoms since the cervical spine injury in October 2008, although there was no perceived specific injury to the left shoulder. Mr Simm stated that the accident on 1 October 2008 was responsible for the respondent’s cervical condition and full left shoulder girdle symptoms.[84]

[83]Reasons, [75].

[84]Ibid [79].

The Magistrate noted Dr Horsley’s findings that the respondent had come to the end of his working life and his Honour had regard to Mr Brownbill’s opinion that the respondent’s restrictions ‘will last into the foreseeable future’.[85]
[85]Reasons, [75], [77].

When one looks at the entirety of the Reasons, I am satisfied that the Magistrate made a finding that there was clinical pathology to account for the respondent’s complaints of pain in his right knee and a progression in the left knee, and that on balance, the respondent’s incapacity will continue indefinitely and that these symptoms and restrictions are subsequent to the period of dishonesty.

In relation to the finding of indefinite incapacity relating to the respondent’s knees, the relevant symptoms and restrictions in respect to weight bearing, walking, standing and stair climbing were assessed by the Magistrate by reference to Dr Horsley’s reports and, in particular, her consideration of the respondent’s functional tolerances as referred to in the preceding paragraphs.[86] Further, his Honour had regard to Dr Yong’s opinion that the respondent had a current capacity for work to perform tasks that took account of various restrictions that avoided prolonged standing and walking duties, repeated use of stairs and ladders, firm pushing or pulling, squatting or kneeling tasks, and lifting more than five kilograms on a repeated basis. Having regard to the medical evidence and the requirement of the role as a property manager, the Magistrate concluded that the walking requirement of the job exceeded, for example, the restriction imposed by Dr Horsley.[87]
[86]Ibid [74].
[87]Ibid [97].

The Magistrate accepted Dr Horsley’s assessment of walking tolerances, to be 15 minutes. This is not inconsistent with the respondent’s evidence in relation to his walking tolerances. Dr Horsley had the experience and, importantly, knowledge of the respondent’s past dishonesty. The Magistrate accepted the respondent’s claims that he can walk short periods, perhaps 12 to 15 minutes of a maximum. The Magistrate noted that the appellants did not offer up any evidence to challenge the truth of the respondent suffering such a limitation on walking, or any evidence to suggest that his daily activities were greater or took him out more than he testified to being the case.[88]
[88]Reasons, [119].

There is no suggestion in the Magistrate’s Reasons that the current state of the respondent’s injuries and work capacity was easily accepted as submitted by the appellants. To the contrary, the Magistrate considered that the respondent’s evidence as to his level of pain, symptoms and restrictions had to be considered in light of the medical evidence, the pathology and findings. This evidence, as well as the respondent’s age and frailty, past history of lying, inconsistencies and less than compelling testimony, were all taken into account and assessed by the Magistrate in reaching his conclusions and findings.

The appellants refer to a number of factual issues raised in the hearing and submitted that they were each relevant to the seriousness of the respondent’s condition and his work capacity. It was submitted that these matters were not properly explored and that findings of fact were not made and thus constituted an error at law. For example, the appellants raised the issue about what work the respondent was performing on the docks as at 1 October 2008, and that the Magistrate did not make a finding of fact in relation to this issue.

It is true that the Magistrate found that the state of the evidence did not permit him to make detailed findings of fact of work performed by the respondent prior to 2008. In this regard, the Magistrate found:[89]

I am not satisfied that the resolution of the matter of the assessment of the plaintiff’s current capacity is as simple as Mr Makowski would have it, that is, by looking at a history given prior to the neck injury in October 2008 and putting it to one side in preference of the subsequent history, when there are questions regarding the integrity and reliability of the matters relied on as part of the plaintiff’s later history. I also reject as unsound the plaintiff’s submission accounting for the differences in the matters sworn to in two affidavits earlier referred to by reason of the difference in the nature of legal redress being sought at any particular time by a plaintiff. …
The admissions in affidavits and other discordant facts in the evidence may have impact on the plaintiff in another place but I need not to consider if the sum effect is to impeach the plaintiff’s application as it relates to his injuries and a capacity for suitable employment and any entitlement to reinstatement of weekly payments.

[89]Ibid [43]-[44].

This demonstrates that the Magistrate did not simply discount the pre-2008 evidence. The Magistrate considered the state of the pre-2008 evidence but ultimately determined he was unable to make firm findings of fact in that regard. His Honour proceeded to make findings of fact based on the post-2008 evidence, including the medical evidence, which he considered was not impeached by the respondent’s dishonesty.

Another example relied upon by the appellants was the alleged failure of the Magistrate to give reasons for his findings that the respondent could not drive. At paragraph [104], the Magistrate noted that driving was an aspect associated with the respondent attending to the real estate related employment jobs option identified in the CoWork assessment. The Magistrate referred to the discrepancies in relation to the respondent’s evidence surrounding the circumstances of driving and the discrepancies in the medical reports of Dr Fisher in relation to the respondent and driving. The Magistrate concluded that, on balance, the respondent does not drive and, importantly, that he could not drive alone or in a manner that would readily permit him to perform the attendant tasks associated with the real estate related employment.

I can see no error in the Magistrate’s reasoning and fact finding. He has identified the discrepancies, accepted that the respondent cannot drive, or at least that his driving is so limited that it does not enable him to perform the duties required of a real estate agent.

Another example given by the appellants that the Magistrate failed to make the necessary findings of fact related to if the respondent had a capacity to perform clerking work, particularly given the submissions and reliance by the appellants in the WorkStream Report. At paragraph [107], the Magistrate addresses the issue of clerical type positions in the context of all the evidence, not just the WorkStream Report. He refers to the evidence about the respondent having operated his own business for a time in car battery delivery. The Magistrate makes the specific finding that he is not satisfied that the evidence supports a finding that the respondent conducted or was concerned with the administrative side of the business operation. The Magistrate referred to the evidence of the respondent’s administrative work performed as billet to the prison’s general manager and the appellants’ submissions that this experience equipped him with a skill set applicable to office-based work in a real estate agency. The Magistrate made the following finding in this respect:[90]

I am not satisfied that the evidence supports such a finding that he conducted or was concerned with the administrative side of a business operation, leaving such matters to his then wife. The defendants also relied on the plaintiff’s administrative work of a clerical nature while working on the docks and duties performed as a billet to the prison’s general manager as equipping him with a skill set applicable to office-based work in a real estate agency. I am satisfied that the previous work on balance provides support for the defendants’ submissions that the plaintiff may satisfy and be able to discharge some of the duties identified in the realty-related jobs, but it is not realistic to regard him as equipped vocationally for the myriad of tasks they entail. The working connection with the real estate industry is not merely administrative in nature but requires a skill set or an ability to acquire a skill set by way of a certificate and an ongoing capacity to apply such training to everyday discharge of the responsibilities.

[90]Reasons, [107].

Finally, the appellants submit that the Magistrate failed to make the necessary findings of fact or give reasons explaining whether he accepted Dr Yong’s opinion that the jobs identified and relied upon by the appellants were within the respondent’s capacity or, if not, why he rejected those reasons.

The Magistrate specifically rejected Dr Yong’s opinion on the basis that Dr Yong’s opinion about suitable employment, including the jobs identified in the CoWork Report and the clerking work in the WorkStream Report was not supported by an analysis by Dr Yong of the respondent’s assessed limitations against an assessment of the functional elements necessary in the roles identified in the vocational reports. In short, the Magistrate was not satisfied that Dr Yong had regard to the respondent’s limitations and restrictions, and that Dr Yong simply said that the positions would comply with the restrictions, but provided no analysis. This was a finding open to the Magistrate.

In conclusion, I do not accept the appellants’ contention that the Magistrate failed to make the necessary findings of fact. To the contrary, I consider that the Magistrate, in circumstances where he was confronted with the respondent’s history of dishonesty, multiple injuries, and a plethora of medical evidence, explained the factors he considered gave rise to a finding that the respondent had no work capacity and the factors that excluded a capacity to perform the work suggested in the CoWork and WorkStream options. The Magistrate appropriately identified the judicial task.[91] The Magistrate performed the fact finding process by comparing the medical restrictions against the tasks required by the suitable employment options. I consider the Magistrate considered the whole of the evidence and assessed what the evidence demonstrated objectively in relation to the respondent’s symptoms, restrictions and capacity for suitable employment and, in light of the objective evidence, considered the respondent’s evidence and what of the evidence should be accepted.
[91]Reasons [17].

Ground 3 – Onus of proof

The appellants agree that the Magistrate correctly stated the test at paragraphs [127] and [111] as set out by Smith J in Public Transport Corporation v Pitts,[92] and cited by the Victorian Court of Appeal in Giankos v SPC Ardmona:[93]

The case was one where it was plainly open to the learned Magistrate to conclude that the plaintiff had established a prima facie case that no suitable employment as defined in the legislation existed and so was entitled to succeed in his case unless the defendant produced evidence sufficient to raise some specific alternatives for consideration. In my view, the reality was that the defendant had to adduce evidence sufficient to raise as a real possibility that there were particular types of employment available in the community which the plaintiff was capable of performing. If it did not it would lose. (footnotes omitted)

[92][2007] VSC 356, [17].

[93](2011) 34 VR 120, 144-5, [15].

The appellants submit, however, that the Magistrate did not consider whether the respondent had actually made out a prima facie case of incapacity for suitable employment before turning to the question as to whether he was incapable of the specific jobs that were raised and that, in doing so, reversed the onus.

The Magistrate was required to determine whether the respondent, by reason of his compensable injuries, had a capacity for suitable employment as defined in the Act at s 5(1). I am satisfied that the Magistrate did. The Magistrate determined the respondent had a significant incapacity, particularly in relation to his knees and also his neck. Further, the Magistrate had regard to the respondent’s pre-injury employment, the respondent’s age, education, skills and work experience. Having regard to these matters, the Magistrate concluded the respondent did not have the capacity for suitable employment. The Magistrate had regard to the opinion of Dr Horsley and accepted the respondent had no work capacity.

It was once the respondent established a prima facie case, that the appellants were required to produce evidence or raise some specific alternatives for consideration. This was done, but not accepted by the Magistrate. His Honour considered the alternatives offered by the appellants and rejected them.

Counsel for the appellants submitted that at paragraph [106] of the Reasons the Magistrate reversed the onus when he said, ‘[t]here is no reason for me to regard such vocational activity as equipping him for employment that requires office-based and computer-based skills’.

I am satisfied that, reading the Reasons as a whole, the Magistrate concluded the respondent had no current work capacity. The Magistrate correctly identified the judicial task and set out the legal test.[94] He considered the postulated suitable employment options advanced before coming to his final view and, in doing so, recognised the legal onus lay on the respondent at all relevant times.[95] The Magistrate then considered the employment options put forward by the appellants as set out in the WorkStream and CoWork Reports. The Magistrate made a finding that he did not regard the work as suitable employment in light of s 5 of the Act and that he did not consider it as realistic.[96]
[94]Reasons [17], [111].
[95]Ibid [127].
[96]Ibid [133].

Ground 4 - The Reasons are inadequate

In Mason v Transport Accident Commission,[97] Ashley JA stated:[98]

Reasons must sufficiently disclose a path of reasoning which culminates in the decision which is reflected by the impugned order. It has repeatedly been said that, in considering the sufficiency of reasons, “[p]erfection is not required”. An appeal court should not examine a judge’s reasons too critically, seeking, as it were, to discern a want of explanation. “What will be sufficient in a particular case will be influenced by the ambit of dispute at trial”. But what is necessary is that an examination of the reasons should enable the losing party to know why he or she lost. (citations omitted)

[97][2014] VSCA 267.

[98]Ibid [5].

J Forrest J aptly discussed the obligation of a judge to provide reasons for judgment in the matter of Hettiarachci v RACV (Hettiarachci):[99]
[99][2016] VSC 97 [33]-[35].

The failure of a judicial officer to provide adequate reasons is an error of law. In Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2), the Court of Appeal (Charles, Buchanan and Chernov JJA) discussed the obligation of a judge to provide reasons for judgment in the following terms:
It is well settled that a judge has an obligation to provide reasons for judgment. The obligation to provide reasons is ’a normal not universal’ incident of the judicial process. However, as McHugh JA observed in Soulemezis v Dudley (Holdings) Pty Ltd, ’when the decision constitutes what is in fact or in substance a final order, the case must be exceptional for a judge not to have a duty to state reasons’.

The convenient and oft cited starting point for any challenge to a judicial officer’s reasons is the New South Wales Court of Appeal decision of Soulemezis v Dudley (Holdings) Pty Ltd. That was an appeal from a decision of the Compensation Court regarding the applicant’s entitlement to compensation. The Court considered the duty of the Judge in the Compensation Court to provide reasons for his decision in respect of findings of fact following a contested case. It was held that the duty was complied with by giving grounds for his decision; detailed reasoning in support of such a finding was not required. McHugh JA said:
While it is true that his Honour did not expressly give any reasons for the finding, his reasons for judgment show quite clearly in my opinion that he held that the applicant was fit for work because the CAT scan did not reveal any abnormality. It is not to the point that his Honour’s finding was erroneous or, as counsel for the applicant claimed, perverse. An erroneous or perverse finding of fact raises no question of law and cannot be challenged by way of appeal. What is decisive is that his Honour’s judgment reveals the ground for, although not the detailed reasoning in support of, his finding of fact. But that is enough in a case where no appeal lies against the finding of fact.

Mahoney JA said:
But subject to matters such as these, the basis of a decision of a trial judge or an intermediate Court of Appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.

and continued:
In my opinion, the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion.

(citations omitted)

There are a number of observations that are relevant to this case.

First, the hearing was split and took place over 24 and 25 March 2014, and 10, 11 and 12 November 2014. The first hearing produced reasons dated 20 June 2014 totalling 11 pages. The second hearing, the subject of this appeal, produced reasons totalling 48 pages. In the second hearing, there were 199 pages of transcript and dozens of exhibits, including medical reports. The Magistrate Reasons make specific, detailed reference to much of the medical evidence and the evidence given by the respondent. Brevity or length of reasons, of themselves, do not mean that the issues canvassed at trial have not been appropriately addressed.

This was a case which traversed facts going back to 1994 to the current date of the hearing. The respondent had undergone more than a dozen operative procedures over nearly two decades, including knee reconstruction, a total knee replacement in 2004, and then total revisions in 2009 and 2012. He suffered a period of imprisonment for obtaining financial advantage by deception involving the receipt of weekly payments under the Act for incapacity during periods of time when he was gainfully employed.

In this case, the Magistrate descended into considerable detail on the important aspects of the case. The Magistrate considered the respondent’s evidence of his work capacity, including his current and past symptoms, and his restrictions. The Magistrate also took into account the respondent’s past work history and experience, the medical evidence, the vocational assessments, and the relevant law. As J Forrest J said in Hettiarachci:[100]

A descent into detail was not required. Where a judge’s decision turns upon the acceptance (or otherwise) of a particular witness’ account, the judge’s reasons for failing to be persuaded by that witness may be capable of no greater explanation than a summary statement. In Soulemezis, Mahoney JA said:
The weight which a judge will give to the evidence of a witness will often be not capable of rationalisation beyond the statement: having heard him, I am not satisfied that I should accept what he says.

(citations omitted)

[100][2016] VSC 97, [40].

Bearing in mind these observations and when considered in the context of a three day trial with a considerable body of evidence, I think the Magistrate’s Reasons in this case were adequate.

I refer to my reasons in relation to the grounds of appeal 1 and 2, which bear relevance here. The Magistrate did refer to the respondent’s accounts of his symptoms of restrictions, and accepted them in part and, importantly, with reference to the objective medical evidence. There was a careful analysis as to the accuracy of the respondent’s account to the doctors, in light of the accepted dishonesty in the history the respondent provided to the doctors in the past. The Reasons deal with the opinions of the doctors, notably, Mr Brownbill, Mr Simm, Dr Chenoweth, Dr Fisher, Dr Morell, Dr Grant, Dr Duke, Dr Horsley and Dr Yong. In this claim, the Magistrate had to consider the respondent’s physical injury and psychological injury. In relation to the physical injuries, the Magistrate was assisted in his assessment by X-rays, diagnostic tests, surgical reports and physical examinations. He then had to determine whether the respondent truly experienced the symptoms of which he complained and their impact on his capacity to work. Assessing the respondent’s credibility or reliability was a basal function of the court in this type of claim. The Magistrate carefully assessed the respondent’s credibility and reliability and, ultimately, looking at all the evidence before him, made his findings of fact. It was then the Magistrate’s decision to accept all or none of the respondent’s evidence.

The affected parties in a reviewing court are entitled, as a matter of law, to know the basic rationale of the judge which underpins the result. In this case, the acceptance of the evidence of the respondent and the medical practitioners was of critical importance and was squarely addressed. I reject the appellants’ submissions that the necessary findings of facts were not made and that the pathway of reasoning was not clear. I consider the Magistrate stated his conclusions as to the acceptance or otherwise of the evidence of the respondent and the medical practitioners.

Ground 5 - Conclusion not reasonably open

It is an error of law to reach a factual conclusion that is not reasonably open.

For the reasons set out above, I consider that it was open to the Magistrate to conclude that the respondent had no current work capacity. I reject the appellants’ submission that his Honour did not have a level of satisfaction in relation to the respondent’s account of his pain and limits of his capacity so as not to enable him to make the necessary findings of fact.

Conclusion

The appeal will be dismissed.

I will hear the parties on costs.

[2016] VSC 251

19 May 2016