Htoo v Victorian WorkCover Authority
[2017] VSCA 321
•8 November 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0068
| K’SER HTOO | Applicant |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Respondent |
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| JUDGES: | OSBORN, PRIEST AND ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 October 2017 |
| DATE OF JUDGMENT: | 8 November 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 321 |
| JUDGMENT APPEALED FROM: | Htoo v Victorian WorkCover Authority (Unreported, County Court of Victoria, Judge Dean, 28 April 2017) |
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ACCIDENT COMPENSATION – Leave to appeal – Appeal – Application under s 134AB(16) of the Accident Compensation Act 1985 – ‘Serious injury’ – Whether order refusing leave to bring proceedings vitiated by failure of judge to consider applicant’s entire case – Whether judge’s reasons sufficient – Leave to appeal granted – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Forbes QC with Mr N Dunstan | Maurice Blackburn |
| For the Respondent | Mr S A O’Meara QC with Mr M J Hooper | Wisewould Mahony |
OSBORN JA
PRIEST JA
ASHLEY JA:
The applicant, K’ser Htoo, is a Burmese woman, now aged 53, who has been resident in Australia since 2009 when she arrived as a refugee. On 2 May 2013 she suffered a crush injury to her non-dominant left hand in the course of her employment by Boomaroo Nurseries & Wholesale Supplies Pty Ltd (‘Boomaroo’). The injury affected her index, middle and ring fingers. The middle finger was most affected.
The applicant was off work until July 2013, at which time she returned to part-time employment. By September 2013, she was working full hours, but on modified duties.
In November 2013, because of serious infection of the middle finger, she underwent surgical removal of the end one to one and a half centimetres of that finger. Following surgery, she was off work for a period. She underwent hand therapy treatment as an outpatient until March 2014.
In May 2014, the applicant was diagnosed as suffering from right carpal tunnel syndrome. On 29 August 2014, she underwent carpal tunnel release. The surgery was successful, relieving her of symptoms.
In May 2014, the applicant’s employment with Boomaroo was terminated. She has not engaged in paid employment since that time.[1] But, as will be seen, she does not assert that she has been incapacitated for all work by reason of her left hand injury.
[1]At least, that was the position when her serious injury application was heard in April 2017.
In July 2016, the applicant sought a serious injury certificate from the respondent, Victorian WorkCover Authority (‘WorkCover’) in respect of the consequences of her left hand injury. Her application for a certificate, confined to pain and suffering damages, was rejected by the Authority. So, by Originating Motion dated 14 November 2016, she sought leave of the Court to bring a proceeding for pain and suffering damages.
The application was heard by a County Court judge on 10 April 2017. Mrs Htoo relied upon affidavits which she had sworn on 11 July 2016 and 17 March 2017. She was the only witness to give viva voce evidence. She adopted her affidavits and was cross-examined.
The applicant relied upon the medical reports of Dr Aung Gyi, her general practitioner, and the medico-legal reports of Dr P Blombery, pain specialist, and Dr M Tagkalidis, psychiatrist.
The respondent put into evidence the medico-legal reports of Mr E J Anstee, plastic surgeon; Mr M Stapleton, hand surgeon; Dr R Karna, rheumatologist; Mr J Buntine, plastic and hand surgeon; and Dr D Shan, psychiatrist.
Pausing, although the reports of two psychiatrists were introduced into evidence, it was not the applicant’s case that she was suffering psychiatric injury. Her claim was squarely based on the physical consequences of the physical injury which she had sustained. She averred that the pain and suffering consequences of her injury were not simply the amputation of part of her left middle finger, but persistent pain affecting her left hand and arm, most particularly her left middle finger, exacerbation of pain when the finger was knocked, some sensory impairment affecting the middle finger and interference — complete or partial, as the case may be — with a number of domestic and recreational activities.
On 28 April 2017, the County Court judge dismissed the application.
Proposed grounds of appeal
Now the applicant seeks leave to appeal against the judge’s order; and that her appeal be allowed. She relies upon these grounds:
1.The trial judge assessed the seriousness of the consequences relied the applicant [sic], by reference to the nature of the injury and not by reference to the evidence of the impairment arising from that injury and so failed to correctly apply the narrative test.
2.In assessing the applicant’s experience of pain, and the disabling effects of her injury he failed to have regard to the whole of the evidence.
3.The trial judge’s reasons fail to demonstrate a path of reasoning by which he arrived at a conclusion as to what was lost and what was retained so that applicant cannot know why it is that her application was decided adverse to her.
Grounds of appeal 1 and 2 allege specific error by the judge. Ground 3 alleges a failure by his Honour to provide sufficient reasons. All grounds thus focus upon the judge’s reasons. The applicant does not allege that the decision is vitiated as being plainly wrong, wholly erroneous or patently unsustainable.[2]
[2]See Mobilio v Balliotis [1998] 3 VR 833, 835 (Winneke P), 836–7, 841–3 (Brooking JA), 853–4 (Ormiston JA), 858 (Phillips JA) and 860 (Charles JA).
The judge’s reasons
The judge delivered brief written reasons. He summarised the position this way:
(1)The applicant was not now undergoing treatment save for unspecified care by a pain management specialist for ‘chronic neuropathic pain’; and use of Panadol up to two to three times per week.[3]
[3]Htoo v Victorian WorkCover Authority (Unreported, County Court of Victoria, Judge Dean, 28 April 2017) [15], [16] (‘Reasons’).
(2)The applicant’s condition was stabilised. She had lost the distal one to one and a half centimetres of her left middle finger. She had some residual limitations. She retained an extensive capacity.[4]
[4]Reasons [12], [18].
(3)The applicant relied upon pain and suffering consequences as follows:
(i)impaired capacity to engage in Karen weaving,
(ii)impaired capacity to undertake cooking,
(iii)impaired capacity to undertake gardening,
(iv)total incapacity to play the guitar,
(v)ongoing left arm pain.[5]
[5]Ibid [19].
(4)The consequences relied upon by the applicant, and in particular her total incapacity to play the guitar, were not supported by the medical evidence she relied upon. There was no reference to the incapacity to play the guitar in any of the histories taken by the medical practitioners.[6]
(5)The consequences complained of by the applicant ‘may properly be described as minor’.[7]
(6)Ongoing pain was controlled with ‘modest medication’.[8]
(7)The applicant had retained work capacity.[9]
(8)In summary:
24.Whilst I accept that the plaintiff’s injury has had a limited adverse impact on her domestic and leisure pursuits, and that her sleep may from time to time be impaired in the winter months, I do not accept that the consequences of her injury can be fairly described as being more than marked or significant, and as being at least very considerable.
25.In my opinion the plaintiff has retained much of her pre-injury capacity, and the consequences of her injury may properly be described as relatively minor. For these reasons the application must be refused.
[6]Ibid [20].
[7]Ibid [21].
[8]Ibid [22].
[9]Ibid [23].
In light of the grounds upon which the applicant relies, it will later be necessary to say a good deal more about his Honour’s reasons.
Applicant’s submissions
It was submitted for the applicant in writing that:
(1)With respect to ground 1, the judge erred by referring to the injury, not its consequences, when he found that the applicant’s restrictions might properly be described as minor ‘having regard to the nature of her injury, namely the loss of a small section of the largest finger on her left hand’.[10], [11]
[10]Ibid [21].
[11]Orally, counsel submitted that the judge’s focus upon injury and not consequences was evident from the transcript of the hearing, and had been carried into his Honour’s reasons.
(2)With respect to ground 2:
(a)the judge failed to evaluate the applicant’s subjective experience of pain, finding simply that she experienced ‘some ongoing pain’;
(b)medication, found by the judge to have been not taken on a regular or consistent basis, was only one indicator of pain experience. There was a deal of evidence, which the judge was bound to evaluate, touching on the question of the applicant’s experience of pain. Thus:
(i)her affidavits describing constant daily pain extending up her left arm all the way into her left shoulder that was worse in cold weather and suffering worse pain in left middle finger when it is knocked leading to a sharp pain that lasts up to an hour. Most of those matters were confirmed during cross-examination;
(ii)her viva voce evidence in chief of being prescribed Lyrica for pain which did not help her and was stopped on advice of her general practitioner;
(iii)the whole of the evidence as to medication use. The applicant’s evidence as to the history recorded by Dr Tagkalidis, was ‘I said one time – each time, one to two tablets frequently’. She did not accept she told Dr Tagkalidis that she took medication ‘infrequently’. If the trial judge did not accept the applicant’s evidence on this question, it was incumbent upon him to say so and to explain why he did not accept it;
(iv)the medical evidence from examining doctors as to the applicant’s experience of pain, which included opinions that she was unable to use her left hand due to pain and that she suffered from chronic neuropathic pain, it extended from the hand up to the shoulder, worse in cold weather of fluctuating severity, was and is typically 5/10 in intensity. Dr Anstee described pain from a genuine compression injury rather than from chronic regional pain syndrome. Dr Shan described ‘pain and sensitivity and a nerve type pain if bumped and a throbbing pain that disturbs sleep’;[12]
[12]Applicant’s written submissions paragraph 11, except that we have substituted (i), (ii), (iii) and (iv) for (a), (b), (c) and (d). Citations omitted.
(c)no doctor opined that the injury was not continuing to cause pain as described, or that the applicant’s description was exaggerated or inconsistent with the injury;
(d)in evaluating the disabling consequences of the injury, the judge failed to have regard to all matters addressed by the evidence, viz: difficulty in doing up buttons when dressing, playing with grandchildren, playing soccer and basketball;
(e)the judge’s evaluation was wrong with respect to the applicant’s evidence that she could no longer play the guitar. Absence of reference to this consequence in histories given to doctors was inconsequential. The difficulty complained of by the applicant was supported by the medical evidence. There was no basis for the judge’s implicit rejection of the applicant’s evidence;
(f)the judge failed to evaluate what was lost and what was retained in a qualitative way. The relevant evidence did not begin and end with the consequences as recorded by the psychiatrist, Dr Tagkalidis;
(g)the judge’s conclusion that the applicant had ‘retained work capacity’ said by his Honour to be relevant to assessment of the pain and suffering consequences of injury, was not elaborated upon. Its significance in the overall evaluation was not described.
(3)With respect to ground 3:
(a)the judge failed to say what he found to be the applicant’s retained work capacity, or how it bore upon the pain and suffering consequences of injury. The judge had evidently rejected the respondent’s submission that there was no impact upon the applicant’s work capacity, but otherwise his reasons were silent;
(b)his Honour’s reasons lacked balance, because they did not outline what had been lost.
Respondent’s submissions
It was submitted for the respondent in writing that:
(1)The applicant relied upon specific error. No challenge was made to the judge’s determination insofar as it involved an exercise involving matters of judgment and impression.
(2)As to ground 1, whilst it would be an error for a judge to refer only to a claimed injury and not to its claimed consequences, no such error was made in the present case. That could be seen from passages in paragraphs 19, 24 and 21 of the judge’s reasons, where reference was made to the consequences of injury.
(3)With respect to ground 2:
(a)the applicant was attempting to reargue the case advanced below;
(b)the judge’s reasons were not required to mention every fact or argument relied upon by a party;
(c)the judge addressed the applicant’s case in its entirety — her affidavits, medical opinions, and relevant aspects of her oral evidence;
(d)the judge’s reasons showed that regard was had to the applicant’s complaint of chronic hand and arm pain. But they also showed the limits of those claims evident in the evidence;
(e)whilst the judge did not refer to the applicant having problems doing up buttons, playing with her grandchildren and playing soccer and basketball, those matters were referred to in the applicant’s affidavits, to which the judge had regard. Those impediments, at best, were no more than further examples of domestic impediments by reason of pain and impairment in use of the hand, to which the judge had regard. In any event, the complaints with respect to soccer and basketball had been abandoned following cross-examination;
(f)contrary to the applicant’s written case, the judge did not disregard the applicant’s loss of capacity with respect to playing a guitar. What the judge did not accept was the submission of applicant’s counsel that the loss of capacity to play guitar amounted to the deprivation of a passion. That is, the judge accepted the applicant’s loss of capacity to play guitar, but tempered its significance against the fact that it had not been given emphasis by the applicant either in histories given to doctors or in any major way in her affidavits or oral evidence. The finding was well open;
(g)criticism of the judge for referring to the applicant having retention of a capacity for work was unjustified. All that the judge had done was to act upon what had been conceded by applicant’s counsel, namely that ‘some capacity to work had been retained’. No elaboration, with respect to that concession, had been possible.
(4)With respect to ground 3, the applicant’s complaint was without foundation. The reasons satisfied the standard described by Nettle JA in Hunter v TAC.[13] The judge had summarised the substantial points raised, had made findings on material questions of fact as to the consequences alleged by the applicant, had referred to the evidence on which the findings were based, and provided an intelligible explanation of the process of reasoning.
[13](2005) 43 MVR 130, 137 [22].
In oral submissions, counsel contended that the judge had been entitled to found his conclusions on the history obtained by Dr Tagkalidis, including the doctor’s description of the applicant’s ‘current functional status’, the applicant not having contradicted that account in her evidence. This is what the judge had done. In the circumstances, his Honour had not been required to consider other material — whether it be the applicant’s affidavits or oral evidence, or the reports of other doctors — which did not accord with the content of Dr Tagkalidis’s report. He had not been required to address and resolve — as best he could — conflicts in the material. Once he accepted Dr Tagkalidis’s report, counsel submitted, the judge’s reasons were ‘acceptable’.
Counsel referred to two authorities. The first was Nichols v Robinson.[14] There, Winneke P stated, inter alia, that:
But it must be remembered that the task which the judge is asked to perform is one which is a prelude to a claim being brought by the plaintiff against the putative defendant. The material which he has before him is necessarily limited and of such a nature as to make it unlikely that he can make findings with the precision which counsel’s submission suggest that he should have made.[15]
And:
In truth, whether reasons are adequate must primarily be measured against the nature of the proceedings.[16] As I have already said, the ultimate issue in proceedings such as those from which this appeal comes, is to be resolved by resort to elements of value judgment, fact and degree upon which reasonable minds might differ. Such proceedings call for an expression of opinion by the judge on the question of whether the injury is “serious” having regard to the judge’s experience and the matters properly put before him or her.[17] Such a decision, as I have already stated, is akin to an assessment for damages for non-economic loss in a personal injury action; decisions which do not readily admit of voluminous reasons.[18]
[14](2001) 33 MVR 83.
[15]Ibid 87.
[16]Sun-Alliance Insurance Ltd v Massoud, supra, at 18 (Gray J); Barlow v Hollis, supra, at [14].
[17]Cf Fleming v Hutchinson (1991) 66 ALJR 211.
[18]Nichols v Robinson (2001) 33 MVR 83, 88 (citations in original).
Counsel relied upon these passages to remind the Court of the limited material upon which a judge must hear and determine a serious injury application, this flowing through to the provision of reasons. Both passages focussed upon the evaluative aspect of such a determination.
The second decision relied upon by counsel was Philippiadis v Transport Accident Commission.[19] There, inconsistencies were present between clinical notes and records which were put in evidence by the applicant, who then, together with his wife, gave evidence inconsistent with the notes. This was ‘recognised as a key issue from the outset of the trial’, but a forensic decision had been made not to seek any explanation from the applicant or his wife. Nor was the doctor called. It was in this context that the Court[20] said that:
As the applicant adduced inconsistent evidence without explanation, the respondent was entitled to exploit the inconsistencies and the judge was entitled to choose which evidence to accept. In effect, the applicant’s counsel left it up to the judge to assess the relative probative value of the evidence of the applicant and his wife on the one hand and that of [the doctor] (constituted by his clinical notes and reports) on the other hand, without the benefit of evidence from the applicant or his wife about [the doctor’s] evidence.[21]
[19](2016) 74 MVR 289 (‘Philippiadis’).
[20]Redlich and Kyrou JJA and Ginnane AJA.
[21]Philippiadis (2016) 74 MVR 289, 311 [97] (citations omitted).
Relying upon the passage just cited, counsel argued that the evidence of the applicant and the content of Dr Tagkalidis’s report, so far as the judge relied upon it, were directly inconsistent and unexplained, so that the judge had been free to accept the latter.
Analysis
Ground 1
It was observed in the joint judgment of the High Court in Katanas v Transport Accident Commission that:
… assessment of the severity of an injury will ordinarily be informed by what is accepted as being the extent of both its symptoms and its consequences.[22]
The line between symptoms and consequences may be blurred. Some symptoms may lead on to consequences, but may properly be described as consequences themselves.
[22](2017) 346 ALR 191, 200 [29].
Ground 1 complains that the judge erred because he measured seriousness by reference to injury rather than by reference to consequences. If the judge did that, then he would have erred. But we do not accept that this error is disclosed by his reasons.
The judge noted particular pain and suffering consequences of the injury upon which the applicant relied.[23] He concluded, in part, that ‘The consequences relied upon by the plaintiff, and in particular her total incapacity to play the guitar, is not supported by the medical evidence she relies upon’. Further as to consequences, the judge noted the applicant’s acceptance that she was ‘still able to undertake weaving, cooking and gardening with some restrictions’. Again, the judge observed that the history and current functional status as detailed by the psychiatrist, Dr Tagkalidis, strongly suggested that the applicant’s injury had had a ‘limited impact on her quality and enjoyment of life’. Further again, whilst the judge accepted that the applicant’s injury had produced certain adverse impacts, he did not accept that ‘the consequences of her injury’ could be fairly described as being more than marked or significant, and as being at least very considerable.
[23]Reasons [19].
A number of those findings were attacked in the context of grounds 2 and 3, and must later be considered in that context. But, in the context of ground 1, the applicant relied upon a single sentence in the judge’s reasons in submitting that the judge wrongly focused upon injury and not its consequences — that is, his Honour’s observation that ‘Having regard to the nature of her injury, namely the loss of a small section of the longest finger of her left hand, those restrictions may properly be described as minor’. This sentence, it was submitted, repeated the judge’s incorrect focus, exhibited during the trial.
In the course of the trial, the judge referred more than once to what he described as a minor injury sustained by the applicant, in one instance characterising it as ‘a very minor injury to [the applicant’s] left middle finger’. He did so, it appears, when casting doubt on the reliability of some of the consequences which the applicant described. His Honour seems to have been of the mind — as will be seen, unsupported either by the medical evidence or the applicant’s evidence — that the applicant was exaggerating her disabilities. Of this, more later.
But we do not accept the applicant’s submission that the sentence in his Honour’s reasons to which counsel drew attention disclosed the error complained of. What the judge was there saying was that, having regard to the applicant’s acceptance that she was still able to undertake domestic and recreational activities — though with some restrictions — those restrictions, in the context of an injury which had left the applicant with a shortened left middle finger, could properly be described as minor. That is, for this applicant, the consequences of the injury ought be described as minor.
We do consider it extremely probable that the judge assessed the severity of the consequences through the prism of his view that the applicant had suffered a very minor injury. That was dangerously close to assessing impairment by reference to the injury and not its consequences. Even so, we do not conclude, as we have just said, that the reasons disclose the particular error complained of by ground 1.
Grounds 2 and 3
It is convenient to consider these grounds together. The applicant’s complaint that the judge did not consider the entirety of her case requires consideration of what that case was. Attention must be paid not only to what the applicant averred but also to the content of the various medical reports as bearing upon her case. As will be seen, that enquiry — (1) casts light upon the applicant’s complaint that the judge did not consider her case in its entirety, this bearing in turn upon the complaint of inadequacy in the judge’s reasons; and (2), reveals the existence of conflicting material in the medical reports which was not hinted at by the judge in his reasons, still less resolved.
Applicant’s affidavits
In her first affidavit, sworn 11 July 2016, Mrs Htoo deposed that she:
·had recently been referred to a pain management clinic at the Sunshine Hospital;[24]
[24]Paragraph 30.
·was continuing to take Panadol, up to six per day, approximately three times a week for the pain in her left middle and ring fingers. She was also prescribed sleeping tablets, which she would take at least twice a week to help with her sleep. She also applied a gel to her left arm most days of the week;[25]
[25]Paragraph 31.
·suffered from constant daily pain in her left middle and ring fingers, worse in the middle finger. The pain went up the left arm, all the way to her left shoulder, and was worse in cold weather;[26]
[26]Paragraph 33.
·often suffered sleep disturbance because of pain in her left middle finger and left ring finger, particularly in the winter, when sleep would be disturbed at least three times per week;[27]
[27]Paragraph 34.
·suffered much worse pain whenever she knocked her left middle finger. Then there would be very sharp pain lasting for up to one hour, also worse in colder weather;[28]
[28]Paragraph 35.
·had problems gripping things using her left hand, and problems with finer movements using that hand;[29]
·was very restricted with her housework, and avoided doing ordinary household duties so as to avoid knocking her left middle and ring fingers;[30]
·now did very little gardening as a consequence of her injuries;[31]
·used to enjoy playing the guitar, but was now unable to play the instrument at all as a consequence of her injuries;[32]
·used to engage in and enjoy traditional Karen weaving and sewing, but now had real difficulties with this activity;[33]
·used to enjoy playing soccer and basketball with the Karen community, but was now no longer able to do so;[34]
·used to enjoy cooking, but was now very restricted in that task;[35]
·was very restricted in her ability to look after and play with her two young grandchildren;[36]
·had great difficulty doing buttons up as a consequence of her injuries.[37]
[29]Paragraphs 36 and 37.
[30]Paragraph 38.
[31]Paragraph 39.
[32]Paragraph 40.
[33]Paragraph 41.
[34]Paragraph 42.
[35]Paragraph 43.
[36]Paragraph 44.
[37]Paragraph 45.
In her supplementary affidavit, sworn 17 March 2017, the applicant averred that she continued to suffer, in substance, from symptoms and consequences of the same degree as those which she had outlined in her first affidavit. She added that she had not worked in the interim, but was undertaking volunteer work about two days a week at a non-government organisation working with members of the Karen refugee community.
We pause to make two observations. First, the applicant did not aver that she had been unable to engage in any employment by reason of her left hand injury since she was retrenched in May 2014. Rather, she said that she had not engaged in employment. She did not advance a case that her pain and suffering were the greater because she had been denied the opportunity to engage in employment, which was, for her, a source of enjoyment. Nor did she assert inability to return to any employment as a measure of the extent of her pain and suffering.[38] On the other hand, the respondent relied upon the applicant’s retained work capacity as a circumstance going in minimisation of pain and suffering consequences of injury.
[38]As to which see, for example, Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67 [38]–[39] (Maxwell P). But note the word of caution expressed by Ashley JA and Beach AJA in Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181 [47], cited by Tate JA (Ashley JA and Hargrave AJA agreeing) in Sutton v Laminex Group Pty Ltd (2011) 31 VR 100, 115 [78].
The judge’s bald statement in his reasons that the applicant had ‘retained a work capacity’ — his Honour cited a concession by the applicant’s counsel in opening that his client had ‘some capacity to work’, but made no mention of counsel’s submission in closing address that the ongoing problems with the applicant’s left hand ‘involved a narrowing of her employment options’ — was criticised in the applicant’s submissions as not being further elaborated upon. But the concession, and indeed the submission in closing, were themselves lacking in specificity, and it is difficult to see what elaboration was possible. It did not involve, in our view, a failure to consider the entirety of the applicant’s case.
The judge’s statement was also criticised as not enabling the applicant to know what significance the judge had attached to the conceded capacity to work. Having regard to the fact that the respondent relied upon retained capacity, it was relevant to know what the judge found to be the extent of that capacity. But the judge’s reasons cast no light upon that matter. This is not to say that medical reports did not address the issue, albeit that opinion did not coincide.
Second, although the applicant deposed, in her first affidavit, that she was no longer able to play soccer and basketball because of her compensable injury, it emerged in cross-examination that she had only played those games once a year, and that she had suffered a leg injury. It was not put to her that she did not enjoy playing them, which is what she had averred. In the event, her counsel accepted, in his final address, that nothing was to be made of those matters in the assessment of the applicant’s impairment. Thus, the judge’s failure to refer to soccer and basketball in his reasons was readily explicable. It was not a failure to respond to the entirety of the applicant’s case.
We have noted that the applicant was cross-examined. We will refer to some of that cross-examination later in the course of these reasons.
We turn to the medical reports.
Dr Aung Gyi: Dr Gyi was the applicant’s general practitioner. He reported in October 2014 that the applicant was still experiencing pain in her left middle and ring fingers, radiating to her forearm and arm. He suspected that she might have developed a regional pain syndrome. He opined that she had no capacity to perform her pre-injury employment because she could not use her left hand due to chronic pain, but that she could perform duties which did not involve heavy lifting with both hands. He recorded that she was very keen to return to work and perform duties within her own limitations.
We pass to Dr Gyi’s report dated 18 February 2017. There, the doctor recorded that the applicant still experienced pain in her left middle and ring fingers, radiating into her arm. He stated that she had been referred to the pain management clinic at Western Health in October 2015. She had been reviewed in early August 2016 and had been prescribed Gabapentin[39] 75mg at night for her chronic pain. She had been reviewed on 29 September 2016 and was to continue taking that medication. She was currently under the care of a pain management specialist at Western Health ‘for her chronic neuropathic pain’. As for work, she could perform duties which did not involve heavy lifting with both hands for about eight hours a day, two days per week.
[39]This medication seems clearly to have been referred to by other doctors, but not by the same name. Thus — Lyrica, Diclofenac.
Dr P Blombery: Dr Blombery provided a medico-legal report dated 17 June 2015. It is apparent that his report was principally directed to the question whether the applicant’s supervening right carpal tunnel syndrome was the consequence of overuse of the right arm because of disability affecting the left hand. Nonetheless, Dr Blombery did take a history of the applicant’s current complaints affecting her left arm. She was complaining of pain in the left hand up to the shoulder, worse in cold weather. The pain, present all the time, fluctuated in severity. Occasionally, the applicant was kept awake from sleep by the pain. There were pins and needles in the middle finger and numbness at the tip of the finger. At home, the applicant tried to do small tasks around the house. Her children, she said, helped with tasks such as shopping. ‘She could no longer play guitar, which she used to enjoy’.
With respect to the applicant’s left hand, the doctor noted amputation of part of the distal phalanx of the left middle finger. There was a full range of movement of fingers, wrist and elbow. There was no major tenderness in arm or hand.
Dr Blombery further reported on 19 January 2007. He had not examined the applicant again. Evidently, he was asked about the applicant’s capacity for work. In substance, he stated that such inhibition on work capacity as existed related to the applicant’s right arm.
Dr M Tagkalidis: Dr Matthew Tagkalidis, a psychiatrist, provided a report dated 7 February 2017. The report stated that the applicant had been interviewed on 7 February 2016, but that was a typographical error which was not picked up.
According to this doctor, the applicant, who was interviewed with the assistance of an interpreter ‘to whom she referred exclusively’, said that ‘As a result of compensatory overuse her right hand started to become painful’. Further, the applicant stated, according to the report, that ‘her right middle finger had healed but remained painful’. Again, the report notes that the applicant stated that she currently experienced ‘ongoing frustration regarding the pain in her right middle finger, saying that the pain was constant and was exacerbated with exertion and in cold weather’. Presumably, the report was in fact addressing the applicant’s left middle finger injury, and one could be confident that the applicant did not say that ‘as a result of compensatory overuse’ her right hand started to become painful. The former may be taken to be another typographical error, and the latter a reconstruction of something said by the applicant through an interpreter.
The judge made much of this report in his reasons. He set out this part of it:
She said that she does not feel a burden on her family and is rarely tearful. She said that her ability to cope with external demands has not diminished, and that she occasionally feels anxious but does not experience any panic attacks. She said that she has good energy levels and good motivation and drive, with a normal libido. She said that she has reduced concentration, struggles with focus, and is less well organised in thought, with occasional forgetfulness. She said that she has a good sense of enthusiasm and enjoyment and a good general interest in life. She said that her confidence and self-worth have diminished marginally, and that she occasionally feels unproductive, but tries to minimise this by doing as much as possible around the house to help the family.
She said that she has quite solid sleep with a total of 7 to 8 hours of typically refreshing sleep per night, and no naps during the day. She said that her appetite is good, eating three meals per day, and that she has gained 2 to 3 kilograms since the relevant incident due to relative inactivity.[40]
[40]Reasons [17].
The judge also referred to the doctor’s note of the applicant’s current functional status. We should set out what the doctor reported in that connection:
The claimant stated that she is independent in all personal activities of daily living, showers every day and dresses every day, with good interest in her self-presentation. She said that she is responsible for lighter household chores and that her daughter and other children help with the heavier chores. She said that she does some light gardening including regularly watering the garden. She said that she struggles lifting heavy pots and doing other heavy housework because of her poor left hand grip.
She said that she can readily answer the telephone and the front door. She said that she does not drive because she does not have a license (sic) and can use public transport as needed. She said that she and her husband both pay the household bills and do the shopping with help from her daughter.
She said that she has near negligible computer skills and engages in some social media.
She stated that she was previously interested in cooking and can no longer participate in such activity easily because of her physical limitations.
The claimant said that she enjoys the company of people and stays in regular contact with many friends in the local community.
She said that she spends much of her time reading and has been attending English classes twice weekly since mid 2015.
She said that prior to the relevant incident she was ‘helpful and positive’ in personality and that this had not changed substantially.
The doctor reported also that the applicant was currently being prescribed Lyrica 75mg, used ‘very infrequently’ and ‘Panadol 1-2 tablets I used infrequently’.
Finally, the doctor described the applicant as ‘cooperative, very pleasant and matter-of-fact in demeanour’. This was a recurrent theme in the medical reports.
Mr E J Anstee: This doctor reported to the WorkCover agent on 29 July 2014. This was early on in the piece. If page one of his report means what it says, then Mr Anstee interviewed and examined the applicant without the aid of an interpreter. In any event, the report noted the applicant’s complaints as including a shortened left middle finger, insensitivity of the tip of the left middle finger and reduced movement of the index, middle and ring fingers. On examination, Mr Anstee noted the extent of the amputation of the left middle finger, noted reduced sensation over the distal third of that finger, noted that the applicant was not having any active treatment at that time, and doubted that any was necessary. He opined that the applicant was capable of work similar to that in which she had engaged with Boomaroo. She struck him as being ‘reasonably genuine’. He did not explain his use of the adjective.
Mr M Stapleton: Mr Stapleton’s report dated 10 November 2004 to the WorkCover agent was concerned with the applicant’s right carpal tunnel syndrome, and with the question whether it was an overuse injury related to the earlier left hand injury. For practical purposes, no history was taken with respect to the left hand injury, and there was a fragment of evidence of examination of the left hand.
Mr Stapleton’s report dated 28 July 2015 also addressed the right carpal tunnel syndrome only. But on 25 August 2016 he reported with respect to the applicant’s left hand problem. Under the heading ‘The Current Situation’, Mr Stapleton noted that there was a ‘partial transverse sensory loss over the distal two cm of her left middle fingertip’, but ‘no loss of range of movement of the distal interphalangeal joint’. The doctor rejected the suggestion that the applicant was suffering from complex regional pain syndrome, stating that ‘her discomfort comes from the amputation of the left middle fingertip and no other cause needs to be considered’. He noted, further, ‘Her sleep is disturbed, again, not with pins and needles as is the case with carpal tunnel compression, but because of pain at the tip of this lady’s left middle finger’. Mr Stapleton took no history at all of impairment, whether total or partial, in the applicant’s day-to-day domestic and recreational activities. But it was not in issue that the applicant did have some limitations.
Dr R Karna: Dr Karna, a rheumatologist, reported to the solicitors for the respondent on 23 February 2015. This placed his report, in time, after Mr Anstee’s report and before any relevant report by Mr Stapleton. The reason for the referral was said to be, in part, ‘to consider weekly payment entitlements with the designated date of injury being’ … and then no date was specified.
The history taken by the doctor referred both to the left hand injury and the carpal tunnel syndrome. The doctor recorded:
She says her left hand is much better now, but she still has numbness at the tip of the left finger where there is a partial amputation and this has led to clumsiness (rather than distinct loss of strength). This in turn translates into her having difficulty with buttons and sometimes she drops things simply because she cannot feel them with the tip of her left middle finger particularly when she attempts pincer grip. She says she can attend to aspects of personal hygiene unaided, she doesn’t drive and she can do cooking and housekeeping albeit slowly because of the clumsiness in her left hand.
The doctor’s opinion, for the most part, addressed the applicant’s employability having regard to injuries other than that affecting her left hand. Were it only the left hand, in the doctor’s opinion, the applicant would not be prevented from undertaking her pre-injury duties on a full-time basis.
Mr J Buntine: Mr Buntine reported to the WorkCover agent on 9 December 2015. His assessment related to the applicant’s left hand injury. Notwithstanding that the whole of the interview was conducted via an interpreter, Mr Buntine somehow came to understand that the applicant was back at work for her pre-injury employer.
According to the history recorded by the doctor, the applicant said that her only ongoing treatment was that she occasionally took Panadol, that she was still troubled by appreciable tenderness of the extremity of her left middle finger, that grip with her left hand was weak and insecure, that she frequently dropped small objects held in her left hand, that she essentially did all of her work with her right hand (it appears that Mr Buntine was there referring to the applicant’s non-existent employment), and that her husband and their children did the greater part of the cooking and housework.
Mr Buntine examined the applicant and took photographs. The first photograph showed the extent of the amputation. ‘The next photograph of the palm of the left hand shows that the palmar aspect of the extremity of the middle finger is reddened and slightly swollen and shows no evidence of use’.
Mr Buntine concluded that the prognosis was for a very slow minor lessening of discomforts over a long period of time. He noted that ‘It was clear that Mrs Htoo cooperated fully with all aspects’ of his examination.
Dr D Shan: Dr Shan, psychiatrist, reported to the solicitors for the respondent on 28 February 2017. He recorded that the applicant stated that she was still noticing pain and sensitivity of the fingers. The dexterity of the fingers of the left hand was reduced and sometimes she would notice a nerve-type pain which would shoot up her arm if she bumped her fingers.
The applicant further reported that, ‘She gradually got herself off most medications but still has a supply of Diclofenac to use if needed. At other times she prefers to use Panadol’. Further, the applicant described a range of physical symptoms which she believed kept her from finding work. She still had pain and her fingers were sensitive to touch. There was a loss of dexterity, particularly in the left hand.
Further:
In the winter, problems can be worse so that she sometimes wears a glove. Sometimes there has been sleep disturbance due to throbbing of the fingers on cold nights so she has a sedative that she sometimes takes.
Dr Shan was another medical practitioner who described the applicant in favourable terms:
She described her situation in a calm and collected fashion. She did not become agitated and emotional at any time.
Before going further, we must set out what is required of a judge in giving reasons. The judgment of Nettle JA in Hunter v Transport Accident Commission has often been cited with approval in that connection. Thus:
When a judge decides an application under s 93(4)(d) of the Act the judge is under a duty to provide reasons for his or her decision. Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.[41]
[41](2005) 43 MVR 130, 136–7 [21] (citations omitted).
Of course, reasons need only respond to the matters in issue, and the way that the case was conducted.[42] The judge’s path of reasoning may be sufficiently exposed by a combination of what is written and inferences which might be drawn from the recitation of material.[43] And finally, when all relevant facts have been found, the question becomes one of value judgment, in respect of which reasons ‘may properly be relatively brief and non-exhaustive’.[44]
[42]See, for instance, Dressing v Porter [2006] VSCA 215 [26] (Ashley JA).
[43]See, for instance, Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232 [78].
[44]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628 [190] (Dodds-Streeton JA).
It is now possible, and necessary, to further consider the judge’s reasons. What his Honour had to assess were the pain and suffering consequences of the injury for this applicant. He had to do so by consideration of all the evidence, of which medical opinion was just a part.[45] Whilst, as we have said, the final stage of the assessment was an evaluative one, it required first that findings of fact be made with respect to the symptoms and consequences of which the applicant complained.
[45]Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605, 610 [17]–[18] (Ashley JA).
We have set out the symptoms and consequences as deposed to by the applicant at [31] above. With the exception of inability to play basketball and soccer, all of them were relied upon at trial.
It should next be noted that cross-examination of the applicant was brief, but not uneventful:
· It was put to the applicant, and she agreed, that some days when she took Panadol, she would take two tablets, other days four, and other days six.
· It was put to her that she had reported less use of Panadol to Dr Tagkalidis than she had stated in her affidavits; that she had told the doctor that she was ‘only taking one to two tablets’ and that she used them ‘infrequently’. There was then this exchange, in which the judge participated:
INTERPRETER: “Infrequently”?
[RESPONDENT’S COUNSEL]: Infrequently? - - - (Through Interpreter) I take every time. Whenever I take it, one or two tablet for two and three times per week.
I see. So is it the case - - -
HIS HONOUR: That is different now. It is one or two tablets two or three times a week, she just said.
[RESPONDENT’S COUNSEL]: Yes.
HIS HONOUR: That is what her evidence just was then.
[RESPONDENT’S COUNSEL]: If Your Honour pleases.
HIS HONOUR: You object to that, do you?
[APPLICANT’S COUNSEL]: Yes.
HIS HONOUR: On what basis?
[APPLICANT’S COUNSEL]: The transcript will bear her out. What she said was, “Each time I take them, I take one or two tablets,” so when she takes Panadol, she might take one or two tablets.
HIS HONOUR: All right.
And, later:
[RESPONDENT’S COUNSEL] It’s the case, isn’t it, Ms Htoo, that when you do take Panadol, you usually only take one or two tablets per day? - - - Most of the time, whenever I take it, I take two tablets. One tablet only sometimes.
· It was put to the applicant that she only experienced pain extending into her arm when the middle finger was knocked. Her response was ‘the pain is always there’.
· The applicant confirmed that, after the finger was knocked, increased pain would last for an hour.
· She agreed that the pain was worse in winter, and that she wore gloves in winter. Wearing gloves reduced the pain ‘a little bit’. She said ‘Without putting the glove, then in the winter it is too painful that you cannot even sleep’. This led on to the following questioning by the judge and Respondent’s counsel, and a comment by the judge:
HIS HONOUR: You told Dr Tagkalidis, didn’t you, that you had quite solid sleep, with a total of about seven to eight hours? - - - You asked me if it warm, then I can sleep?
HIS HONOUR: No, you’re not being asked that. You’re being asked whether you told Dr Tagkalidis that you have solid sleep of seven to eight hours per night?- - - Yes, yes.
[RESPONDENT’S COUNSEL]: And that’s the fact, isn’t it, that each night you have quite solid, refreshing sleep of seven to eight hours per night?- - - Yes.
And you did not tell him that you had the problems of waking up in your sleep at night? - - - He did not ask me that question.
HIS HONOUR: It’s apparent from the answer, from what is in there, I would have thought.[46]
[46]Emphasis added.
· The cross-examiner was interrupted by the judge a little later:
HIS HONOUR: But her current functional status and current position is set out in the psychiatric report at 50 and 51, and that is pretty strong evidence as to how she is functioning, isn’t it, irrespective of the pain?
[RESPONDENT’S COUNSEL]: Yes.
HIS HONOUR: Yes, she is suffering from pain, but it would seem that the psychiatrist has set out how she is functioning, including how she sleeps, so - - -
The reference to ’50 and 51’ was a reference to the history recorded by Dr Tagkalidis.
· The applicant denied that she had continuing problems with her right hand.
· There was this cross-examination with respect to guitar playing. Again, the judge played a prominent part in events:
HIS HONOUR: What about the guitar playing? When did you last play the guitar? - - - Before the injury, Your Honour.
How often did you play the guitar?
INTERPRETER: Before?
HIS HONOUR: Yes.
WITNESS: (Through Interpreter) I play every day because I have guitar at home.
[RESPONDENT’S COUNSEL]: Are you left handed or right handed playing the guitar? - - -I play with the right, but I cannot do the chord.
You’re holding up your hands as if you’re playing right handed, so the right hand strums the strings? - - - This one can play, but this
one - - -
How long had you been playing the guitar for prior to the injury?
- - - Since I was young.
You certainly weren’t playing it when you left Burma, were you, because you left with just the clothes on your back, that’s right.
HIS HONOUR: Is there any mention in the medical material of this, that she played the guitar every day before the injury and now can no longer play at all?
[RESPONDENT’S COUNSEL]: That’s right.
HIS HONOUR: There is nothing in the medical material?
[RESPONDENT’S COUNSEL]: That I’ve seen, Your Honour.
HIS HONOUR: Yes.
[RESPONDENT’S COUNSEL]: Ms Htoo, you have told none of the doctors who you have seen as part of this case about your inability to play the guitar; is that right? - - - No-one ask (sic).
· The judge said, a little later:
HIS HONOUR: I must say I find it difficult to accept that she played the guitar every day prior to her injury, a woman with six children and all the responsibilities that go with that, and that there is no mention of it at all in the medical material.
[RESPONDENT’S COUNSEL]: If your Honour pleases.
HIS HONOUR: It doesn’t seem credible.
· Asked about ability to work, the applicant said: ‘If any work not have to use with hand, that’s fine’. If work involved ‘my speaking’, it would be fine.
In re-examination, the applicant was questioned about the history recorded by Dr Tagkalidis about use of Panadol. She said that each time she took Panadol, it was two tablets, and it might be three times a day, two to three times per week.
We next mention a number of interchanges between counsel and the judge, and observations by his Honour, which occurred in the course of counsel’s closing submissions. Ordinarily we would not make any such mention, because it is the judge’s reasons which fall for consideration, not remarks in the course of the evidence or submissions.[47] In this case we take a different course only because the observations to which we will refer cast some additional light upon the judge’s reasons. To be clear, however, the observations have not been operative in our resolution of this matter.
[47]That is, unless, for instance, actual or apprehended bias is alleged.
In the course of the address by respondent’s counsel — (1) the judge said that the applicant’s account of having played the guitar each day before her injury ‘doesn’t seem credible to me’; (2) counsel submitted that the applicant should not be readily accepted as a credible witness, nor as one who had been candid — to which the judge replied ‘… it would be more that the consequences have been exaggerated’.
Then, in the course of the address of applicant’s counsel, the judge — (1) said that he was ‘unable to see any proper foundation for the significant impairment to grip in her left hand’; (2) observed ‘She said she can’t cook and now her family do it. I find that very hard to accept when she’s had a very minor injury to her left middle finger’; (3) referred to the history provided to Dr Tagkalidis and said ‘You can argue with me if you like, but it seems to me that the description that she provided in February of this year pretty well sums up where she is, doesn’t it?’; (4) referred to the applicant having given ’maybe two or three different versions — I’ll have to check the transcript — about the medication’; (5) reiterated that there was no reference to the guitar ‘at all in any of the material’; (6) asked ‘what actual gripping is there with cooking, what is it you have to grip’, and added ‘we all know how to cook’; (7) stated that if the applicant suffered from constant chronic pain, ‘she wouldn’t be sleeping seven to eight hours typically refreshing sleep per night, with a good appetite and so on’ and that ‘I don’t think winter and summer has got anything to do with it’.
Against that background, we go to matters which have persuaded us that the judge (1) failed to consider parts of the applicant’s case; and (2) failed to meet the standard which was required of his reasons.
The first matter is this. The judge stated that:
As I observed during the course of the hearing, the consequences relied upon by the plaintiff, and in particular her total incapacity to play the guitar, is not supported by the medical evidence she relies upon. There is no reference to the incapacity to play the guitar in any of the histories taken by the medical practitioners.[48]
[48]Reasons [20].
On its face, the judge’s statement that the consequences relied upon by the applicant were not supported by the medical evidence was all-embracing. It was both bald assertion and, with respect, incorrect. As can be seen from the reports which did address the consequences of the applicant’s left hand injury, no doctor stated that the problems of which the applicant complained, either in terms of pain or sensitivity or consequential inhibitions upon domestic and recreational pursuits, were inconsistent with the aftermath of the injury. Counsel for the respondent referred in argument in this Court to Mr Anstee’s somewhat optimistic report, written in July 2014. In our opinion, that dated report provided no foundation for the large statement made by the judge.
If, contrary to our opinion, there was some foundation for his Honour’s statement, this at least is clear: the statement was not explained in the reasons by reference to any relevant report.
Next, we cannot accept the submission for the respondent made in this Court that the judge’s reference to guitar playing should be understood in the particular way which was advanced. We think it is plain from the judge’s reasons that his Honour rejected the applicant’s evidence that she could not play the guitar at all.
About that conclusion, four matters should be mentioned. First, it is not the case that no doctor took a history that the applicant was unable to play the guitar. To the contrary, in his report dated 17 June 2015, Dr Blombery took this history: ‘She could no longer play guitar which she used to enjoy’.
Second, and relatedly, it was the judge who raised the canard, in the course of the applicant’s cross-examination by counsel for the respondent, that there was no history in the medical reports of inability to play the guitar. The judge having raised the matter, counsel for the respondent immediately cross-examined on the false footing that the applicant had told none of the doctors about her inability to play the guitar, to which she replied, ‘No-one ask’.
Respondent’s counsel in this Court submitted that trial counsel had apparently been unaware of the history taken by Dr Blombery because not much emphasis had been put upon that report in the opening by applicant’s counsel. But the respondent’s trial counsel had evidently read the report, because he cross-examined out of it. Moreover, he readily cross-examined on a false basis after his interchange with the judge. On the other hand, the applicant’s trial counsel was remiss for not objecting to such cross-examination.
Third, there was this question and answer in cross-examination: ‘Are you left-handed or right-handed playing the guitar? - - - I play with the right but I cannot do the chord’. It ought to have been abundantly clear that the applicant was saying that playing the guitar involves use of both hands, that it is the left hand which forms the chord, and that the injury to the left middle finger meant that she could no longer use the left hand to form a chord. Far from the medical evidence not supporting that case, the amputation of approximately one to one and a half centimetres of the tip of the middle finger, leaving an area of sensitivity and at the same time deprivation of sensation, readily supported the applicant’s averment. If, however, the judge concluded that there was some feature of the medical evidence which did not support the applicant’s averment, then his Honour should have stated it. Baldly to make an assertion was not reasoning at all.
Fourth, a number of the medical reports were directed to the applicant’s right carpal tunnel syndrome, and its possible compensability. Insofar as the judge, in his reasons, made something of histories provided by the applicant on those occasions — specifically, absence of reference to inability to play the guitar — there was, with respect, no point to be made; or, at least, the judge needed to explain why he regarded those histories as being of significance with respect to the applicant’s left hand injury. No such explanation was given by the judge in his reasons.
The second matter telling in favour of the applicant’s case relates to the extent of the medication which the applicant needed to take. The judge stated that:
The [applicant] is currently not taking any prescribed medication for pain management or sleep disturbance. … She takes Panadol up to three times per week to manage her pain, although her evidence in that regard revealed that the medication was not taken by her on a regular or consistent basis.[49]
[49]Reasons [16].
The judge accepted ‘as was submitted by [the respondent] that this is properly described as relatively minor pain relief’.
Further as to the need for pain relief, the judge referred to the history taken by Dr Tagkalidis, of ‘Panadol 1-2 tablets I used infrequently’.
A fair reading of the cross-examination, conducted through an interpreter, and confirmed by the applicant’s evidence in re-examination, shows that the applicant did not accept that she had given a history to the doctor of usage of one to two Panadol tablets, infrequently. Further, on her account she took up to six Panadol per day, about two to three days in each week. Furthermore, she did have a prescription medication for pain, although she tried not to use it.
It is quite apparent that the judge preferred the history of usage recorded by Dr Tagkalidis to the evidence of the applicant given on oath in her affidavits and orally — remembering also that, notwithstanding the judge’s intervention, she denied giving the particular history. Acceptance of the respondent’s submission noted at [82] above was inconsistent with the applicant’s evidence. In essence, the judge disbelieved the applicant on her oath. But he did not distinctly say so in his reasons. Still less did he explain why he disbelieved the applicant, particularly in circumstances where a number of examining doctors had commented favourably upon her presentation.
It was partly in this connection that respondent’s counsel made the submission noted at [18] above, and cited Philippiadis.[50] We do not accept the submission for several reasons. First, the applicant, on a fair reading, did controvert the history recorded by Dr Tagkalidis. Second, the transcript of the applicant’s cross-examination, conducted through an interpreter, clearly shows the limitations in the applicant’s responses, and their essential simplicity. The doctor’s report was plainly wrong in parts — at one point he referred to the applicant driving ‘a car unencumbered’. Moreover, it used language a world away from the applicant’s language — for example, ‘compensatory use of her right hand’ and ‘she feels that her confidence and self-worth have diminished markedly’ and ‘a total of 7-8 hours typically refreshing sleep per night’. In the entire report, we detect only three verbatim quotes. We do not accept that this was an instance of plain inconsistency in the applicant’s case where the judge was left to do his best.
[50](2016) 74 MVR 289.
The third matter telling in favour of the applicant’s case, related to the second, is this. Pain can be a very important symptom and consequence of injury.[51] Here, the applicant spoke of persistent pain, worse in cold weather, sleep interference by reason of pain particularly in cold weather, and exacerbation of pain if the finger was knocked.
[51]Examples are the observations of Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 629 [199], and of Maxwell P in Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1, 4–6 [9]–[16] (‘Haden’).
There is a considerable difference between taking up to six Panadol per day, two to three days each week, and taking one to two Panadol tablets infrequently. The judge’s finding that the applicant needed only ‘minor pain relief’ flowed from his evident acceptance of the history noted by Dr Tagkalidis. It was inevitable that this flowed into his Honour’s assessment of the extent of pain from which the applicant suffered.
About that, three points may be made. First, if and insofar as extent of medication was a window to the extent of pain suffered by the applicant, a finding needed to be made as to what quantity of medication the applicant in fact used. Second, the applicant gave a history to one doctor that she had attempted to wean herself off medication. That sensibly invited consideration whether in fact the applicant was taking the minimum medication necessary. Third, the applicant knew that sharp pain resulting from knocking the finger would last no longer than an hour. Could it be expected that the applicant would resort to medication after knocking her finger? None of those questions were considered by the judge, so far as his reasons reveal the situation.
We go to the fourth matter which in our opinion evidences the problem with the judge’s treatment of the applicant’s case. Sleep disturbance brought about by pain can be a significant consequence of compensable injury.[52] His Honour noted the history said to have been given by the applicant to Dr Tagkalidis that the applicant ‘has quite solid sleep with a total of 7–8 hours of typically refreshing sleep per night …’. His Honour nonetheless concluded that ‘Her sleep may from time to time be impaired in the winter months’.[53]
[52]See, for instance, Haden (2010) 31 VR 1, 5 [16].
[53]Emphasis added.
As against the history recorded by Dr Tagkalidis stood the applicant’s affidavit and oral evidence. Unless there was unexplained and unexplored inconsistency in the history recorded by the doctor and the applicant's evidence — and in our opinion, there was not[54] — the judge could not simply act upon that history to the exclusion of other relevant material. Not only was there the applicant’s evidence, the history given by the applicant to Mr Stapleton in August 2016 — this being the only occasion upon which that doctor examined the applicant with respect to her left hand injury — was that her sleep was disturbed because of pain at the tip of her left middle finger. So also, Dr Shan recorded a history, in February 2017, that ‘Sometimes there has been sleep disturbance due to throbbing of the fingers on cold nights so she has a sedative that she sometimes takes’. With respect, his Honour’s reasons failed to grapple with, and resolve, the existence of the evidentiary conflict.
[54]Cross-examination about the history given to the doctor, conducted through an interpreter, was replete with the difficulties which such cross-examination causes even with witnesses for whom English is their first language. See [66] above.
Two of the three reports to which we have just referred were, as we have previously noted, directed to the question whether the applicant was suffering some psychiatric consequence of her left hand injury. The examiner’s focus was necessarily upon matters bearing upon possible psychiatric disturbance. It was no part of the applicant’s case that she was suffering from a psychiatric disability. Even if the histories recorded in those reports, taken for a particular purpose, had been identical — and they were not — there would be a question why either of them should have been taken by the judge to give the lie to the plaintiff’s account of her continuing disabilities. At least, an explanation ought to have been given by the judge as to why he considered those histories to be important, and why he treated one history as being determinative, rather than the other. To prefer one history to another without any explanation for the preference was simply to record a choice, and not to explain the reasons for the choice.
We go to a fifth matter. It is the fact, as contended for by the applicant, that the judge did not state all of the impairments to which the applicant referred in her affidavits. He said nothing about the applicant’s averment that she was impaired in her ability to play with her grandchildren, and in dressing. It is unknown whether the judge accepted that the applicant had impairment in respect of those activities. The applicant should not have to wonder whether or not they were brought to account.
There is a related matter. It is clear that the judge was sceptical about aspects of the applicant’s evidence as to the extent of the consequences of her injury. That scepticism was medically unsupported. The functional status portion of Dr Tagkalidis’s report, relied upon by the judge as showing that the applicant had ‘retained an extensive capacity’ significantly addressed matters relevant to a psychiatric evaluation — for instance, could the applicant ‘readily answer the telephone and the front door’, and did she have ‘good interest in self-presentation’. Insofar as that part of the doctor’s report addressed the physical consequences of the applicant’s left hand injury, it supported the applicant’s account with respect to matters such as cooking, household chores and gardening.
In the event, the judge’s scepticism was apparently supported by matters such as his Honour’s understanding of the demands placed upon a woman with six children[55] — there being no time for playing a guitar — and by his Honour’s knowledge of the demands of cooking. It was clear, we add, that the applicant’s history as recounted to doctors did not elicit any opinion that she was overstating her situation. Relatedly, there was no suggestion in cross-examination of the applicant that she had exaggerated her complaints in any history provided to a doctor. Further, the submission of respondent’s counsel below that the applicant’s credibility was in issue was evidently based in part on cross-examination founded on a false understanding of the medical reports, and in part upon a history taken by one doctor, the content of which was both denied by the applicant and inconsistent with a number of other histories.
[55]The evidence showed that four of them were in fact in their twenties, and two were teenagers.
In the event, we think it is apparent that the judge’s reasons failed to address aspects of the applicant’s case, and contained conclusions and assertions which were either unsupported by the evidence, or unsupported on one view of the evidence, there being neither discussion nor resolution of evidentiary conflicts. In our opinion, the judge did not consider the applicant’s entire case, and his Honour’s reasons were insufficient.
Order
We would grant leave to appeal and allow the appeal. We would set aside the order dismissing the application and remit the matter for rehearing by another judge of the County Court.
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