Hamidi v KAB Seating Pty Ltd
[2007] VSCA 151
•31 July 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3825 of 2006
| QUDRATULLAH HAMIDI | |
| Appellant | |
| v | |
| KAB SEATING PTY LTD | Respondent |
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JUDGES: | CHERNOV, ASHLEY and NEAVE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 31 July 2007 | |
DATE OF JUDGMENT: | 31 July 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 151 | |
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Accident compensation – “Serious injury” application – Question whether plaintiff had discharged onus of proof under s 134AB(38)(e), Accident Compensation Act 1985 – Whether reasons for judgment sufficiently exposed path of reasoning to conclusion that onus not discharged – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr G A Lewis SC with Mr B J McCullagh | M W Law |
| For the Respondent | Mr J Forrest QC with Mr J P Gorton | Lander & Rogers |
CHERNOV JA:
I will ask Ashley JA to deliver the first judgment.
ASHLEY JA:
The appellant, Qudratullah Hamidi, sought leave to commence a common law proceeding pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) in respect of admitted compensable injury to his lumbar spine. His application was heard by a judge of the County Court on 5 December 2006. Only the appellant gave evidence viva voce. Otherwise the material placed before his Honour consisted of medical reports, and the reports of rehabilitation consultants and of a vocational counsellor. The critical issues were whether the appellant’s compensable injury was serious in its consequences; and, in the particular context of loss of earning capacity consequences, whether the appellant had satisfied the requirements of s 134AB(38)(e) of the Act. On 8 December 2006 the judge published reasons for judgment, and ordered that the application be dismissed with costs.
The circumstances generally described
The appellant, a man born in Afghanistan on 9 September 1969, was married with three children when his application was heard. He had migrated to Australia in 1992 and had commenced work for the respondent as a storeman in 1994. By October 2000 he had become a supervisor. In that occupation, he still did some manual work.
On 13 October 2000 he injured his low back whilst lifting a heavy box in the course of his work. He attended his general practitioner the next day, was prescribed medication and sent for X-rays. A CT scan performed on 24 October that year was reported as showing a minor disc bulge at L5/S1.
The appellant was a week off work. Then he was restricted to light duties for about six weeks.
In December 2000 the appellant’s back pain worsened when he was performing increased duties. He attended a doctor, and was given a light work certificate.
On 15 February 2001 the appellant attended a rheumatologist, Dr Patrick. At that doctor’s referral, a second MRI was performed. It was reported as showing a bulge at L1/L2, and a small disc bulge at L5/S1 which did not impact upon nerve roots.
The appellant was sent to Cedar Court for multidisciplinary conservative treatment. Between mid-July and mid-August 2001 he underwent physiotherapy, occupational therapy and hydrotherapy. He also had psychological counselling.
In August 2001, the appellant returned to work. Initially he worked 9 hours per week on modified duties. Thereafter, so long as he continued in employment with the respondent, he worked not only on light duties, but also part-time – his hours worked varying with certificates of incapacity provided by his doctors.
The appellant continued to receive medical treatment. In 2002 and 2003 he attended a general practitioner, an osteopath and an orthopaedic surgeon, and as well he underwent hydrotherapy. The orthopaedic surgeon to whom he was referred, Mr Razif, prescribed a back brace, and exercise of different kinds.
In early September 2002 the respondent advised the appellant that it did not have a suitable job for him.
The appellant gave viva voce evidence, which was not challenged, that on many occasions thereafter he had unsuccessfully sought light, part-time, work.
In about September 2003 the appellant moved from Noble Park to Hoppers Crossing. There were family reasons why he did so. His move led to a change in general practitioner. He had continued to see this doctor, approximately monthly, up to the time of trial. At that time he was taking Voltaren for pain and Prothiaden to help him sleep.
Aspects of the trial
A number of matters were not in debate at trial. First, no issue was raised as to the appellant’s credit. The only person whose evidence[1] suggested the contrary was a vocational counsellor, Ms Leonie Schneider. But, as counsel for the respondent reminded this Court, no pertinent attack was made on the appellant in cross-examination; and the aspect of Ms Schneider’s report which addressed credit issues was not relied upon below.
[1]In the form of a report.
Second, the medical evidence – which spanned the period October 2000-September 2006 – was consistent in its conclusion that the appellant had suffered compensable injury to his low back in October 2000; such injury involving intervertebral disc injury at the L5/S1 level but without any – or at least without any significant – nerve root impingement.
Third, those doctors who addressed the appellant’s likely long-term prognosis were consistent in their conclusion that the appellant was – or would be, for some of the reports were fairly outdated by the time of trial – permanently partly incapacitated by the compensable injury.[2]
[2]I refer, not exhaustively, to the opinions of Dr Patrick (report 22 November 2002, p 2, numbered points 3, 6 and 7), Dr C Phan (report 5 December 2002, p 2), Mr G Moran (report 23 December 2002, p 2), Mr B Davie (report 8 January 2003, p 2), Mr N Cullen (report 14 January 2003, opinion pp 2-3), Mr A Razif (report 17 March 2003, opinion pp 2-3), Dr M Athari (report 3 March 2004, p 2), Ms J McKenzie (report 3 May 2006, discussion pp 5, 7), Dr M Wallin (report 6 September 2006, discussion and opinion pp 6-11), Mr Chamberlain (last report 6 October 2005, opinion and answers to questions, p 2).
Engagement of occupational rehabilitation consultants
The appellant’s return to work with the respondent was under the supervision of occupational rehabilitation consultants from early September 2001. At that time the consultants assessed the various kinds of work which the appellant had undertaken in the respondent’s employment before his injury: assembling, picking and boxing parts, receiving stock and putting it away, receiving and dispatch duties, and forklift driving. They also considered alternative duties which the appellant was then performing on a part-time basis. They concluded that there were possible areas of concern in the appellant performing nearly every kind of his pre-injury work; and they recommended that he continue to undertake the alternative duties.
The consultants reported thereafter to the respondent’s accident compensation insurer up until the time that the appellant was, in substance, put off by the respondent - that being by letter dated 5 September 2002. The reports cast light on what the appellant was doing, for what number of hours per week, and how he was managing.
So, on 5 October 2001, the consultants reported that the appellant was currently working five days per week, three hours per day on modified duties. His doctors had indicated that he should remain on three hours per day at that time, and consider increasing his hours at a later stage if he felt he was coping.
Next, on 1 November 2001, it was reported that the appellant had increased his hours to four per day. He was certified fit with restrictions of avoiding lifting greater than five kilograms, and avoiding activities which involved prolonged sitting, standing or awkward postures or bending.
Then, on 4 January 2002, the consultants reported that the appellant was continuing on modified duties for four hours per day, but that the respondent had determined that such duties were not available on an ongoing basis.
There followed a report dated 12 March 2002. It noted that the appellant was still working four hours per day, but said that he was “struggling to maintain those hours, and that his back [gave] him some pain and discomfort” by trying to keep up with what he perceived as being his employer’s expectations.
Then there was the report of 23 April 2002. At that stage the consultants noted, as I read it, that the appellant was working three hours per day. They opined that “the greatest barrier to return to work is still the lack of skills Mr Hamidi has to offer in an office work or similar situation".
The appellant, according to progress reports dated 5 June 2002 and 5 August 2002, continued to work only three hours per day.
Finally I should refer to a report dated 19 February 2003 – that is, made at a time after the appellant had ceased work with the respondent. It noted the following “self reported tolerances”:
“Sitting:30 minutes unrestricted before he feels pain in his lower back
Walking: 30-45 minutes unrestricted
Standing:30 minutes unrestricted before feeling pain in lower back
Driving:60 minutes before feeling pain in lower back. He reports that he tends not to drive due to feeling drowsy from medication
Bending/squatting: cannot bend to touch toes and does minimal squatting
Reaching:no capacity if weight is heavy. Reports minimal reaching
Lifting/carrying: up to 10 kg bags for short periods. If bending 3 kg
Sleeping:requires stillnox as reports he frequently worries and gets pain at night
Work capacity: reports he would like to do any work not involving lifting within his restrictions.”
The author described the appellant as “highly motivated to return to any form of work". She described the appellant’s “limited work experience outside manual labour” as a barrier to employment, also the appellant’s “poor English writing skills”. Nonetheless, she described five potentially suitable employment options – in each instance, subject to one or more provisos. Anticipating a matter to which I must later return, the rehabilitation consultants’ reports provided a contemporaneous account, over a lengthy period, of what the appellant was apparently able to do - in terms, particularly, of hours worked - when engaged in modified duties.
Related to the involvement of the rehabilitation consultants, I should mention the circumstances in which the respondent, in substance, dismissed the appellant in early September 2002. This is what the employer's letter said:
"We have recently reviewed your rehabilitation progress and have noted the following:
·No progress is being made towards the objective of returning you to your pre-injury position.
·Your restrictions remain such that no suitable meaningful employment can be provided to you at this establishment.
We have therefore concluded that:
·Your rehabilitation program has ceased to progress.
·The duties offered may be preventing recovery or worsening your condition.
·Your current capacity to work does not allow us to provide duties suitable to your capacity.
We therefore advise that your existing return to work plan is abandoned. Compensation payments will be made under the law. Your employment has not been terminated. A decision on that will be made at some future date but not before further consultation with you.”
Again anticipating a matter to which I must return, the employer's letter cast some light on the appellant's apparent capacity to work even on modified duties. Thus it said that: "(t)he duties offered may be preventing recovery or worsening your condition."
The Appeal
Appellant’s counsel placed at the forefront of his argument the submission that the reasons of the learned trial judge did not reveal his Honour's path of reasoning to critical conclusions. This, counsel submitted, constituted specific error. Although specific error need not be demonstrated before this Court can act on an appeal such as this, the presence of specific error, counsel continued, will always encourage intervention by the Court. Then the Court must either reconsider the case, or else remit it.
In oral argument, counsel for the appellant directed most attention to the contention that it could not discerned from the learned judge’s reasons how his Honour had arrived at the conclusion that the appellant was capable of working at least 25 hours per week in suitable jobs, and so was unable to satisfy the requirement imposed by s 134AB(38)(e) of the Act – that is, of establishing that at the time of trial he had a permanent loss of earning capacity of 40% or more. Although counsel for the appellant also submitted that the judge's reasons did not disclose his path of reasoning to the conclusion that the compensable injury was not serious in its pain and suffering consequences, an agreement between the parties of which the Court was informed makes it unnecessary, in my opinion, to deal with the latter submission. The agreement was this: If the appellant satisfied the Court that an error had been made such that the appeal must be allowed, then the entirety of the matter should be remitted for re-trial in the County Court.
Bearing that agreement in mind, in my opinion it is only necessary to consider the appellant’s principal oral submission. For I consider that the appellant made good his complaint.
It has long been held that reasons for judgment must sufficiently expose the path of reasoning to a critical conclusion. If they do not do so, the losing party will not be able to know why he or she lost, and an appeal court will be frustrated in its review of an impugned decision. What will suffice by way of reasons will vary from case to case, and necessary inference may form a part. In support of those propositions I refer, non-exhaustively, to what has been said in Richards v Transport Accident Commission,[3] Hunter v Transport Accident Commission & Anor,[4] Hesse Blind Roller Company v Hamitoski,[5] Dwyer v Calco Timbers Pty Ltd[6] and Dressing v Porter & Anor.[7]
[3][2004] VSCA 91, [3]-[4] (Buchanan JA).
[4][2005] VSCA 1, [28] (Nettle JA).
[5][2006] VSCA 121, [19]-[22] (Redlich JA), [3] (Ashley JA).
[6][2006] VSCA 187, [16]-[18] (Maxwell P).
[7][2006] VSCA 215,[26] (Ashley JA).
In the present case, the learned trial judge said this:
“The measurement of the claim, loss of earning capacity, required a comparison of two matters, namely, first, the income that the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing, that is, after injury earnings and secondly, the income that the plaintiff was earning or was capable of earning during that part of the period within three years before and three years after the injury as most fairly reflects his earning capacity had the injury not occurred.”
and -
“ … The plaintiff had to establish that he had no capacity for any work which would result in 60 per cent of his fair earning capacity over the period in question. The critical issue of course, is capacity and I am very conscious of the fact that I must not confuse availability of employment with capacity to engage in employment.”
Those observations were unarguably correct.
His Honour then addressed the factual issue. He first said this:
“The high point of the plaintiff’s case on this issue was the opinion expressed by Dr Wallin in his report of 6 September 2006 and inter alia, Dr Wallin stated that unfortunately, the plaintiff is very marginalized in the workforce.
and
“[Counsel for the defendant] conceded as indeed he had to on the evidence, that the plaintiff’s capacity for employment was limited in that the evidence established that he couldn’t perform any heavy lifting and although medical questions varied, a fair range was limited to five to ten kilograms with Mr Cullen restricting lifting to 7.5 kilograms. Activities such as frequent bending also should be avoided.”
Then the learned judge mentioned some of the medical evidence – in essence demonstrating – as was the case – that the medical opinion spoke with one voice. He noted also that a particular doctor – Ms McKenzie – had referred to the appellant being capable of four hours work per day modified duties. [8]
[8]The doctor in fact said that the appellant was “physically capable of undertaking at least part-time employment (four hours per day)” by way of restricted duties.
Then his Honour said this:
“[Counsel for the defendant] conducted an arithmetical exercise on the various forms of employment detailed at p 157 of the defendant’s court book calculated on the basis both of 20 hours per week and 25 hours per week although the defendant’s primary submission was that the plaintiff’s capacity for work was in the order of 30 to 35 hours per week. At 20 hours per week as a limousine driver/taxi driver, light assembly, light packing and as a process worker, he has not obtained the 60 per cent mark whereas for light packaging, light stores, receiving and despatch clerk or automated machine operator, he is above the 60 per cent mark.”
and
“At 25 hours work per week, in every job listed except that of a process worker his earnings are at least 60 per cent of the figure of $346. I regard at least 25 hours per week as reasonable given the medical evidence in this case.”
It is apparent that his Honour's reference to “page 157 of the defendant’s court book” was a reference to a list of jobs which Ms Schneider had opined would be within the appellant’s capacity.
His Honour’s conclusion that he “regard[ed] at least 25 hours per week as reasonable given the medical evidence” was effectively the end of his reasoning on the issue under discussion.[9] The finding was evidently of central importance to his Honour's conclusion that the appellant had not discharged the onus borne by him of satisfying s 134AB(38)(e) of the Act.
[9]Although his Honour later referred to having “considered all the evidence on this issue.”
But how his Honour arrived at that finding, in my respectful opinion, is not explained in his reasons for judgment. For the most part, the doctors described the appellant's condition, its permanence and its restricting effect, but expressed no opinion whether the appellant was able, or would be able, to work full time as opposed to part-time; and, if the latter, then for what number of hours per week. The learned judge perhaps concluded - it is impossible to say from his reasons - that the import of the medical opinion was that the appellant was, and would be in the future, able to work part-time. Any such opinion, I should add, would have been about a back, and not about the man. Be that as may, perhaps his Honour took the doctors, or some of them, to be opining that the appellant could work full time, and rejected their evidence to that extent. Again, one cannot say by reference to his reasons if that was how his Honour approached the matter.
There was a substantial body of evidence to which his Honour did not explicitly refer in expressing his conclusion that it was reasonable that the appellant could work at least 25 hours per week. I refer to the many reports of the rehabilitation consultants – which were a contemporaneous and quite specific account of what the appellant achieved by way of hours worked on modified duties in a period during which his condition was no different, from a medical perspective, to his condition at trial. His Honour’s conclusion did not sit comfortably with that evidence. Whilst I accept that a judge need not mention every piece of evidence pertinent to resolution of an issue, and whilst failure to refer to particular evidence does not oblige a conclusion that regard was not had to it, this evidence was prima facie very relevant to resolution of the particular issue. It was quantitative in its assessment of the appellant’s retained work capacity. At the least, if he did not find the evidence helpful or persuasive, I consider that the learned judge should have referred to it; that is, in order that his path of reasoning to the impugned conclusion should be patent.
In two other respects, also, I think that his Honour’s conclusion remained inadequately explained. First, I accept the submission for the respondent that the report of the rehabilitation medical specialist, Dr Wallin, addressed in part an irrelevant issue – that is, difficulties which the appellant might have in getting a job. Nonetheless, that relevantly qualified specialist was of opinion that the appellant was quite limited in his capacity to work, judged in purely physical terms. Further, he made the observation, which seems to have some force, that the appellant’s working up to 20 hours per week when still employed by the respondent should be regarded as work performed “in a protected environment”. Again, the doctor opined that it would be unsafe for the appellant to engage in work which involved driving cars, and he opined that performing work such as a parking officer or meter reader would be beyond him.
Now a report upon which the respondent relied was the report of the vocational counsellor, Ms Schneider. Putting to one side her comments about the appellant’s motivation to work, she opined that there were some ten suitable occupations in which the appellant might engage. They included occupations – limousine and taxi driving – which Dr Wallin had excluded on one basis; and which logically might have been excluded on another basis altogether. Ms Schneider opined also, as I read it, that the appellant had the capacity to engage in suitable light work for at least 25 hours, and up to 35 hours, per week.
The learned judge relied upon Ms Schneider’s report at least as identifying kinds of work which the appellant could perform. His reasons say nothing as to whether he considered the specific contrary evidence of Dr Wallin on that issue, and, assuming that he did, why he rejected it. Neither do his reasons address the contrary opinions of Ms Schneider and Dr Wallin - each of whom specifically addressed the issue of hours - and explain how he generally preferred one opinion to the other – if, indeed, that is what he did.
Second, Ms Schneider’s opinion concerning the appellant’s capacity for work, and the hours which he might reasonably work, did not sit at all comfortably with the appellant’s actual performance when under the management of rehabilitation consultants; whilst her observation that the appellant’s job with the respondent was “withdrawn because there were insufficient sustainable duties forthcoming, not because he could not perform the duties” was at best incomplete. Yet the learned judge said nothing which would indicate whether, and if so by what means, he reconciled the evidence of Ms Schneider and the evidence of the rehabilitation consultants; or, for that matter, whether and, if so how, he reconciled Ms Schneider’s understanding of the circumstances in which the appellant ceased employment with the respondent and the respondent’s letter to the appellant dated 5 September 2002.
I have often said that I regard the task cast upon County Court judges by s 134AB(16)(b) of the Act as being extremely difficult, the more so because of the way in which such applications are conducted. I have also said, often enough, that perfection in reasons for decision is neither expected nor demanded. But it does sometimes happen that reasons for judgment fall short of what is required in the particular case; and in my respectful opinion there is such a problem with the reasons in this instance. There was a body of material, relevant to the critical question of the number of hours per week that the appellant could reasonably be expected to perform in some suitable work, to which the learned judge did not refer. Perhaps his Honour considered that the evidence was not relevant. But, if that was his opinion, he neither said so, nor why it should be so. Perhaps he considered that the evidence was not persuasive. Neither the appellant nor the Court can know if that was the case; and, if so, then why his Honour was of that opinion. Those uncertainties, which illustrate the nature of the problem, show why it is, in my opinion, that the appellant has made out his complaint, and so why the appeal must be allowed.
Order
I would allow the appeal and, in accordance with the agreement reached between the parties, remit the whole application for re-trial in the County Court.
CHERNOV JA:
I consider that, on balance, for the reasons given by Ashley JA, his Honour's conclusion that the appellant was capable of working for at least 25 hours per week does not sit comfortably with the evidence that he could work for only 20 hours a week. Moreover, it is not apparent to me what the process of his Honour's reasoning
was that led him to the impugned conclusion. For these reasons, I consider that the orders proposed by Ashley JA should be made.
NEAVE JA:
For the reasons given by Ashley JA, I also agree that the appeal should be allowed and the orders proposed by him should be made.
CHERNOV JA:
The orders of the Court are:
1. The appeal is allowed.
2.The order of the court below made on 8 December 2006 is set aside.
3.By consent, the matter is remitted to the County Court for re-hearing.
4.The respondent pay the appellant's costs of the appeal including any reserved costs.
5.The costs of the first trial be at the discretion of the judge conducting the re-hearing.
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