Hudson v Ventura Transit Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 02126

Between:
KIM HUDSON	Appellant
-and-
VENTURA TRANSIT PTY LTD	Respondent

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2022
DATE OF JUDGMENT:	27 March 2023
CASE MAY BE CITED AS:	Hudson v Ventura Transit Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 140

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APPEAL — Appeal from final order of Magistrates’ Court on questions of law — Claim for worker’s compensation by way of weekly payments and medical and like expenses — Claim arising from injury to worker, aged 65, allegedly sustained in course of or arising out of employment as bus driver during single four-hour shift — Driver’s seat alleged to be defective, bottoming out and jarring worker, causing pain and injury to back and neck — Employer denied seat defective or that injury caused by defective seat — Employer pointed to evidence of age-related degenerative change and history of injury in motor vehicle accident — Worker’s evidence not accepted on important matters — Employer’s witnesses pointing to unlikelihood of faulty seat accepted — Medical evidence supporting employer’s case preferred over worker’s medical evidence — Magistrate dismissed claim — Whether magistrate erred by limiting worker’s case to establishing defective seat — Whether magistrate engaged in flawed reasoning process — Whether magistrate gave inadequate reasons for decision — Whether no evidence for some findings — No error of law established — Apart from complaint of no evidence, alleged error, if established, could have made no difference to decision — Appeal dismissed — Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), ss 3, 39 & 40; clause 25, Schedule 1; Magistrates’ Court Act 1989 (Vic), s 109.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr J Valiotis with Mr P Haddad	LHD Lawyers
For the Respondent	Mr R Kumar	IDP Lawyers

HIS HONOUR:

Overview

Kim Hudson was employed as a bus driver for Ventura Transit Pty Ltd (“Ventura”). He made a claim for worker’s compensation pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”). He alleged that he suffered back, neck and other related injuries as a result of driving a bus with a seat that was bottoming out and jarring during one particular four-hour evening shift.

The matter came before the Magistrates’ Court as a contested hearing. The magistrate heard viva voce evidence from Mr Hudson and three other employees of Ventura. Mr Hudson said that, during the evening shift, the driver’s seat bottomed out and jarred his back, which caused his injuries. Also in evidence was CCTV footage from the internal camera of the bus showing parts of the journey in which Mr Hudson claimed to be injured. In addition, the CCTV recorded Ventura’s mechanic replacing the driver’s seat in the same bus and testing the new one, apparently satisfactorily, the very morning before Mr Hudson’s evening shift. After reserving his decision, the magistrate dismissed the claim.

Pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic), Mr Hudson appeals the magistrate’s final order to this Court on questions of law. He submits that his Honour erred in two ways: first, by limiting the case to establishing that the bus seat was defective; and, second, by giving inadequate reasons for his decision and/or by engaging in a flawed process of reasoning. The latter complaint, as argued, also incorporated submissions that there was no evidence for certain findings.

In my opinion, it is clear that the case was fought on the basis that the driver’s seat caused the injuries, because it was bottoming out and jarring, and therefore must have been defective in some way. Indeed, on Mr Hudson’s own evidence, and the conduct of the case, it is difficult to see how his claim could have succeeded in any other way. Accordingly, I am not persuaded that his Honour unduly confined the case to whether the seat was defective.

However, even if the magistrate did err in that way, it could not have made any difference to the result. This is because his Honour went on to say that, even on the assumption of a defective seat, he was not satisfied that exposure thereto would be a significant contributing factor to any aggravation of what he found to be Mr Hudson’s underlying degenerative changes to his neck and back, which were age-related and also stemmed from an earlier motor vehicle accident.

Nor am I persuaded that the impugned parts of the magistrate’s reasoning process were flawed or that his reasons were inadequate. On the contrary, his Honour’s reasons reveal that he dealt with the matters in issue in a careful and comprehensive manner in accordance with the applicable law. The path of reasoning towards his decision, which was orthodox, was clear.

Finally, the essential findings made by the magistrate were open on the evidence. This is particularly so in circumstances where matters of credit were important and where his Honour had the singular benefit of seeing and hearing the witnesses who gave viva voce evidence. Further, the competing reports by orthopaedic specialists on the likely cause of Mr Hudson’s injuries were tendered without any cross-examination of the authors. The magistrate was entitled to prefer the opinion of the defence expert and conclude that it was consistent with other evidence and with his findings on factual matters.

In the result, Mr Hudson’s appeal will be dismissed.

My more detailed reasons follow.

Background

Mr Hudson was born on 12 February 1953. At the time of the work giving rise to his claim, he was aged 65 and living in suburban Melbourne. When the hearing was conducted in the court below, he was nearly 68 and living in Queensland. He is now aged 70.

Previously, Mr Hudson had worked as a truck driver, a chef, and a bus driver, and had run a clothing company.

From 20 November 2017, he was employed with Ventura as a bus driver on a full-time permanent basis, albeit he worked for a total of only two to three months up until 8 May 2018.

On 10 May 2018, Mr Hudson made a claim for compensation from Ventura. In the claim form, he said that his injuries were to his spine, neck, arms and lower back. The injures were said to have occurred on 27 April 2018 while “[driving a] bus with [a] seat with no [hydraulics] [that was] broken [and] bottoming out [badly] causing [extreme] jarring of [the] spine [and neck]”. He said that he did not report the incident earlier as he “thought it would get better over a bit of time”.

On 12 June 2018, by a letter from Gallagher Bassett Services Ltd, Mr Hudson was informed that his claim was rejected.

By a letter of 2 July 2018 from Ventura, he was told that his employment with the company had been terminated as of 29 June 2018.

Mr Hudson referred his claim to the Accident Compensation Conciliation Service, which issued a certificate of genuine dispute on 17 August 2018.

On 8 March 2019, he filed a statement of claim in the Magistrates’ Court. He alleged that he had suffered injuries arising out of or in the course of his employment with Ventura on or about 27 April 2018. The particulars alleged injuries to the cervical and lumbar spine, and both arms, and consequential anxiety and depression. He claimed weekly payments of compensation and medical and like expenses.

In its defence filed on 15 April 2019, Ventura said that Mr Hudson did not sustain an injury arising out of or in the course of his employment. Alternatively, it was said that his employment was not a significant contributing factor to the claimed injury.

Ultimately, the matter came before the Magistrates’ Court as a contested claim heard over four sitting days — on 3, 4, 17 and 18 March 2021. Mr Hudson and Ventura were each represented by counsel. After reserving his decision, on 21 May 2021, the magistrate dismissed the claim, and published written reasons for his decision.

Magistrates’ Court hearing

Summary based on magistrate’s summaries, transcript and exhibits

In setting out the following summary, in several respects, I have drawn on the magistrate’s detailed summaries of the opening, the evidence and the submissions of counsel. I have also incorporated extracts from or summaries of parts of both the transcript of the evidence and the exhibits tendered before his Honour.

Opening

In opening the case in the court below, counsel for Mr Hudson said that his client’s claim was based solely on work he performed during a single evening shift, which lasted for four hours. During that shift, the driver’s seat of the bus he drove “had something wrong with it”, as it was “violently moving” and “jolting”, which caused him injury to his neck and back.

Mr Hudson

Evidence-in-chief

In his evidence-in-chief, Mr Hudson explained that, on 27 April 2018, he drove two shifts. The first was earlier in the day, in Bus 394. The second, which was in the evening, was in Bus 269.

He inspected Bus 269 at the start of his evening shift, and the driver’s seat seemed normal. However, after driving the bus for a few minutes, the driver’s seat “bottomed out”. Normally, when driving over bumps, the seat would go up and down softly. During this shift, however, the bus seat was going up and down with an “extreme crack”. He noticed the “cracking” as soon as he left the depot, and it was doing this ten to fifteen times a minute.

In his view, the seat had a hydraulic issue and was not cushioning at the bottom. He tried to adjust the seat to suit his weight (of about 85 to 90 kilograms), but it made no difference to the seat bottoming out.

Mr Hudson said that, half an hour into the shift, he radioed the depot to report that the bus seat was bottoming out and was extremely uncomfortable. He was not sure of the person to whom he spoke. He said he asked for a new bus but was told to keep driving and report the incident when he got back to the base.

If drivers had issues with buses, they were to report them through a “TIMMS” machine located at the depot. The TIMMS machine had pre-dedicated signs to click as to the nature of the incident, but there was no space to write more specific detail.

He was shown an entry in a document headed “Defect by Fault Type” for 28 April 2018, where his name was recorded as entering “Drv entered — Body Drivers Seat Controls”.

Mr Hudson said that the jolting of the bus seat caused pain in his neck and back. He said there was a little bit of pain after half an hour into the shift, which he described as two out of ten, but the pain got a lot worse as the shift went on, and increased to eight out of ten. By the end of his shift, his back and neck were very painful. The pain was in his lower back, at the back of his neck, and at shoulder level under his skull. He said that the pain had been caused by the jarring of the bus seat.

Mr Hudson was shown CCTV footage from within the bus of him driving. The footage was in two parts. The first part showed the first ten minutes of the evening shift on 27 April 2018, commencing at 18:07. The second part showed the last eight minutes of that shift, commencing at 22:10. He said that the footage showed intermittent jolting and that the movement of the bus seat was making his body move. He said that the footage towards the end of the shift, at about 22:10, showed him leaning forward to take the weight off his back because his back was aching. At 22:13, the footage showed him stepping out of the bus to enter the pass code to get into the depot. Upon his return, according to Mr Hudson, the footage then showed that he was being jolted up and down as the bus went over potholes and speed bumps inside the depot. He said that, at that time, there was no “air” in the bus seat, and it was “loose”, which was not the usual situation.

He went home after the evening shift. His back and neck pain were “terrible” that night. He had never had pain in his back and neck like it before.

Initially, he continued working for a time, even though his back and neck were very sore.

Mr Hudson did not consult a doctor until 7 May 2018, when he saw Dr Abbasi at a clinic in Casey. He did so because he had a lot of pain in his lower back and neck, and could not continue working as a bus driver. He said that the pain was preventing him from turning from side to side, and that he was unable to get comfortable sitting in the bus. The medical certificate issued by Dr Abbasi stated that Mr Hudson “was/is receiving treatment for a medical condition for the period from [8 to 9 May 2018] inclusive [and he] will be unable to continue his/her usual occupation”.

On 8 May 2018, Mr Hudson completed an “Incident/Near Miss — Injury Form”. The form was signed by Mark Hall, Ventura’s depot manager. In the form, Mr Hudson described the incident as “Seat in Bus 269 was bottoming out thus jarring my spine badly over a period of hours”. He was unsure of the date of the incident, and initially said it was 24 April 2018. He subsequently changed the date to 27 April. When asked about an entry on the form under the heading “Immediate Action”, which recorded “Bus seat in 269 was changed on 27/4/18”, Mr Hudson said that he did not write that entry and that he had completed the form with Mark Hall.

While unsure of the precise date, Mr Hudson thought he ceased work with Ventura around 8 May 2018. He obtained a Workcover certificate of capacity from Dr Abbasi dated 9 May 2018, certifying that he had no capacity for employment from 9 to 14 May. Dr Abbasi had said that Mr Hudson was unable to drive a bus currently as his neck and arm movements were very painful. The diagnosis was “[m]ultilevel degenerative change and nerve root impingement in cervical and lumbar spine”. Mr Hudson obtained a further Workcover certificate of capacity from Dr Abbasi dated 14 May, certifying that he had no capacity for employment from 14 to 21 May.

Mr Hudson subsequently received a letter from Ventura dated 2 July 2018 terminating his employment as of 29 June 2018.

After ceasing work with Ventura, he continued to see Dr Abbasi from 7 May 2018 for treatment for his neck and back pain. He underwent an MRI of his cervical spine and a CT scan of his lumbar spine on 9 May 2018. He also attended an osteopath for 15 to 20 sessions pursuant to funding from Medicare. He was prescribed painkillers and was referred for pain management at a private hospital. He was not referred to a specialist for his back and neck at that time.

Later, he moved to Queensland. While there, since early 2019, he had been seeing Dr Vino Paramanthan (“Dr Vino”). He was on a waiting list to see an orthopaedic surgeon in the public system.

He was currently taking: Endep, mainly at night; Celebrex, once every 12 hours; and Panadeine Forte, four times a day, but that varied from day to day. He was no longer having physiotherapy, but had had one session for his knee, about seven sessions for his neck, and a few sessions for his back as well.

He said that his pain was mostly in the neck, but that he would not have been able to return to work as a bus driver between May 2018 and the hearing because of the pain in his neck and back.

Mr Hudson said that, after lodging the TIMMS report, he had spoken to a trainee mechanic called “Frank” in the lunchroom. He asked Frank whether they had replaced the seat in the bus, who replied that he was not 100 percent sure and would ask the head mechanic. Later, Frank took him to the head mechanic, who told him that Ventura had put a new seat in the bus that morning. This conversation took place two or three days after 27 April 2018.

Mr Hudson said that, prior to working for Ventura, he had no specific injuries to his neck or back. He had sustained right arm injuries and general soreness to his neck and back in a car accident in 1998, but that had largely resolved after a few months and did not affect his work capacity. He also sustained a frozen right shoulder when living in Tasmania about ten years ago. He suffered from occasional pain in the right shoulder when working for Ventura, but that had not affected his ability to drive a bus.

After ceasing employment with Ventura, he sustained an injury to his right knee while in Canada helping his son, and was on crutches for a period, but that was no longer a problem and would not prevent him from working as a bus driver.

Cross-examination

Mr Hudson was cross-examined extensively about his medical history, his employment history, his work with Ventura, and the alleged incident and injury during the evening shift on 27 April 2018.

He was shown medical clinic records from 2012 and 2013 in Tasmania pertaining to complaints he had made of lower back pain from a trip at work, and of receiving multiple MRIs, but he could not remember all aspects of those complaints put to him. He was shown an entry from 2015 where it was recorded that he had twisted his back recently and had said he had longstanding sciatica in the past, but he could not remember twisting his back and did not accept that his sciatica (which he accepted he had) was longstanding.

As for neck pain, he was referred to an attendance at a clinic for a complaint of neck pain in 2013. He could not remember the attendance, but said it was possible that he did complain of neck pain resulting from the earlier motor vehicle accident.

Mr Hudson was asked about attending a clinic in 2015 complaining of left arm pain all the time, of not being able to lift his left arm, and of the pain being “shooting pain” and worse at night, as well as having a “stuffed C6/7” as a result of a motor vehicle accident 25 years ago. He could remember left arm pain in the past, and the “C6/7” being mentioned at the time of the motor vehicle accident, but did not remember it being “stuffed”. He said that the pain would be intermittent and would come on if “pushing a wheelbarrow full of rocks” but would otherwise be fine. He agreed that he sometimes got headaches because of neck pain and that he had problems with a frozen left shoulder in 2015, as well as pain there.

Mr Hudson accepted that he tended to be anxious about his health overall, but not too much. He agreed that doctors had mentioned that anxiety was one of the causes of his health problems.

Mr Hudson started work as a bus driver with Metro in Tasmania on 14 September 2015. On 11 November 2015, he attended a medical clinic complaining of palpitations and of being anxious recently. He applied for leave from work on 18 November 2015 to go to China, and was away until 10 January 2016.

His right shoulder began to trouble him in 2016. The clinical notes record that he attended on 17 February 2016 complaining of pains in his right shoulder and being worried that it might develop into a frozen shoulder like the other side. It was recorded that he was driving buses for Metro 15 hours a week, and could not drive more “due to pain”. The notes showed that, on 16 March 2016, he said there had been no improvement in his right shoulder pain, and he was struggling to use his arm to change gears in the bus. Mr Hudson agreed that, around this time, he stopped driving buses because of his right shoulder problem and went onto Centrelink payments. He agreed that he had only worked driving buses for Metro for about two months in total.

On 27 July 2016, the clinical notes recorded that his right shoulder was still problematic, and had been that way for the last six months. He remained on Centrelink payments. There was mention of a discussion about suitable duties, which Mr Hudson could not recall.

On 3 August 2016, the clinical notes record that there were problems with Centrelink, and that Mr Hudson had applied for Austudy. The notes state he was not fit for bus driving but could work in a call centre or do another course. It appears that there was a discussion that he was fit to do other work for eight hours a week but that he did not want to do this. Mr Hudson could not recall this discussion. He said that he had applied to do a TAFE course to try and get out of bus driving.

On 31 August 2016, the clinical notes record that Mr Hudson had not been able to get Austudy. His right shoulder was reported to be more painful, and he was having trouble sleeping at night. He was still unable to drive a bus. He gave a history that he was unable to work or study, and of being unable to sleep, because of the pain. A trial of Endep for pain and sleep was prescribed. The need for surgery was also discussed.

Mr Hudson agreed that he resigned his employment with Metro in Tasmania by an email sent on 14 October 2016 in these terms:

Dear [X],

I spoke to [Y] and she asked me to send in writing to let you know what I am doing with my position as bus driver … [P]lease be informed that as we are moving to Melbourne in the next few weeks I will not be coming back to work for [Metro]. [Thank] you for all your help … I enjoyed working for the company and as a bus driver very much, but due to my shoulder injury it has been hard for me to continue, but I am a lot better now with my shoulder. Thank you, [X], and the team, at [Metro] for helping with all the training.

Kim Hudson.

On 25 October 2016, the clinical notes recorded a history of right shoulder pain for months, and of receiving a steroid injection in the past. Mr Hudson reported occasional shooting pain into his face, and of having had a motor vehicle accident as a teenager and C6 issues. In his evidence, he said that this did cause problems if he used his right shoulder.

Mr Hudson worked as an employee chef in Melbourne before commencing work with Ventura in November 2017.

From early in 2018, he attended the clinic at which Dr Abbasi practised. On 17 February 2018, he attended the clinic worried about his health in general. He requested to talk to a psychologist, and was keen for a mental health care plan. He had problems with his gallbladder and underwent a hernia repair in or about March 2018. He agreed that, by then, he had been off work with Ventura since February 2018.

Mr Hudson agreed that he received a letter from Ventura dated 13 March 2018 regarding his period of absence from employment. The letter advised him that Ventura was of the view that his employment should be terminated under the probationary clause of his contract, but that a meeting would be scheduled to discuss his situation on 21 March 2018. Mr Hudson could not recall whether he attended a meeting on that date but said that he did eventually attend a meeting and agreed to return to work. He denied that he was intending to retire, and said that he was looking forward to returning to work.

The clinical notes showed that, on 21 March 2018, Mr Hudson attended Dr Abbasi about his hernia repair dressing. He also complained of right shoulder pain for the last week and of having had a frozen shoulder before. On examination, abduction was painful and limited, and neck movements were painful. Mr Hudson said he could not recall dates, and could not remember what he might have said at that time.

He said he returned to work with Ventura sometime in April 2018. He agreed that, prior to 27 April 2018, he had worked for Ventura for only a couple of months.

Mr Hudson said he could not remember whether he had been involved in any motor vehicle accidents while driving for Ventura. However, he was shown Ventura’s records, which indicated that he had been involved in bus accidents on 18 January, 21 February and 2 May 2018 that were his fault. He disagreed with the suggestion that he did not have much of a future with Ventura, and said that he enjoyed bus driving.

As for Bus 269, Mr Hudson agreed that he had driven it only once, which was during the four-hour evening shift on 27 April 2018. He accepted that Ventura’s timecard for the evening shift indicated that he clocked on at 18:08 and clocked off at 22:19.

Mr Hudson reiterated that the seat started bottoming out within a few minutes of driving the bus. It was suggested to him that the CCTV footage of the first ten minutes of the shift did not show anything unusual with respect to either the seating or the suspension of the bus seat, and that he appeared to be driving normally. He agreed he appeared to be driving normally but said that he felt the seat bottoming out at the start of the shift and that it was uncomfortable. He agreed that the footage did not show anything unusual in terms of his body movements. He said that he continued driving but did radio the depot (although he could not remember at what time) to say that the bus seat was uncomfortable.

As for the last eight minutes of the CCTV footage, Mr Hudson agreed that it showed him driving the bus and then getting out of it to go into the depot. He agreed that the last minute or so of the footage showed him picking up his backpack and leaving the bus. He agreed that he did not appear to be in any difficulty when he put the backpack on his back, but said that it was very light.

He agreed that hydraulics in the bus seat were designed to protect the driver from movement and give a smooth ride.

Mr Hudson said that he was unaware that the seat in Bus 269 had been replaced on the morning of 27 April 2018. He said he was unaware that other drivers had complained about the seat in that bus prior to that date.

It was put to Mr Hudson that CCTV footage would be shown depicting Mr Singh, a mechanic at Ventura, replacing the driver’s seat on Bus 269 between 5:35 a.m. and 6:40 a.m. on 27 April 2018. He said that he was not able to contradict that evidence.

He agreed that Ventura had strict standards about the reporting of any mechanical issues concerning the buses, and that it was the policy for faults to be reported immediately.

It was put to him that other drivers had driven Bus 269 after 27 April 2018 without complaint, and that Ventura’s records did not record any complaints concerning the seat on that bus until 8 May 2018, when he made his report. Mr Hudson said he was unaware of that.

Mr Hudson was referred to the medico-legal report of Associate Professor Love (dated 8 July 2019), in which it was recorded that the motion of the bus seat had brought about symptoms in Mr Hudson’s back and neck “of such severity that at times he would continue driving in a [semi-standing] position”. It was put that the CCTV footage did not show him driving in a semi-standing position. Mr Hudson said that, for the first ten minutes, the CCTV footage would not show that.

Mr Hudson was asked why he had not reported the issue with the bus seat until 8 May 2018, contrary to Ventura’s policy concerning the reporting of mechanical issues immediately. He said that he was aware of the policy.

Mr Hudson agreed that 27 April 2018 was a Friday, and that he had a rostered day off on the Saturday, but had otherwise worked his normal shifts until 7 May 2018.

He disagreed with the suggestion that the seat was not defective.

Mr Hudson was asked about the conversation that he said he had with the head mechanic. Counsel put that Ventura did not have a “head mechanic”, but had a workshop manager, Mr Pienaar, and a workshop supervisor, Mr Orleanski, and that both would give evidence that they had no recollection of talking to Mr Hudson about a defective seat. Mr Hudson said he was positive he spoke to someone who was the head mechanic who told him that the defective seat had been replaced. He said the conversation had taken place two or three days after 27 April 2018. He could not explain why there was no entry made in Ventura’s list of repairs for any work having been performed on Bus 269 after 27 April 2018.

Mr Hudson denied that he had made up a story about the bus having a defective seat because he was dissatisfied with Ventura.

He agreed that his employment was terminated as of 29 June 2018, but said that, if he had been allowed to do so, he would have continued driving.

He agreed that, shortly after leaving Ventura’s employ, he moved to Queensland, and then went to Canada to work in his son’s business. He agreed that, at the time, he was fit enough to work for his son delivering leaflets and brochures.

He agreed he suffered a relatively serious injury to his left knee two to three months after moving to Canada. The knee injury required him to use crutches and eventually to return to Australia because of the cost of medical treatment in Canada. He agreed he saw Dr Vino on 18 and 28 March 2019 with left knee pain. He agreed he was still on crutches, had seen a specialist, was having physiotherapy, and was not fit for work because of his knee. He agreed Dr Vino was his family doctor and that he had also seen him for family problems and general anxiety issues apart from his back in 2019 to 2020.

Mr Hudson agreed he had an anxious disposition, but did not agree that this contributed to his physical complaints.

He did not accept that he was unsuited to being a bus driver and had been forced back to work by Ventura in April 2018. He denied that he was unhappy about being forced back to work by Ventura or that he had concocted the story about the bus having a defective seat.

Re-examination

In re-examination, in relation to the termination of his employment by Ventura, Mr Hudson said that he was told that “they were gonna let me go, or sack me”, and that he was “sort of told … that it was due to … my condition … that I was no longer suitable … to drive a bus for that company”. He said he stopped working for Ventura on 8 May 2018 because “they said I wasn’t allowed to”.

Mr Singh

Examination-in-chief

Ventura called three witnesses to give viva voce evidence, commencing with Ronal Singh.

Mr Singh was a mechanic for Ventura. He provided a written statement dated 12 June 2018, which he said was true and correct.

He installed a “brand new seat” in Bus 269 on 27 April 2018. He documented the replacement of the seat in Ventura’s records. He was shown CCTV footage of him replacing the seat between 5:35 a.m. and 6:40 a.m. He said it normally took about an hour to install a new seat.

Before he replaced the seat, Mr Singh took the bus for a drive. He said, in his opinion, the old seat was okay, but he spoke to the supervisor and it was agreed that the seat would be replaced anyway. As far as he was concerned, the old seat was not a problem and there were no mechanical issues with the air-operated hydraulics or the seat fittings.

After replacing the seat, Mr Singh took the bus for a test-drive around the block. This was also shown on CCTV. He said he tested the new seat by jumping up and down on it. He said the new seat did not bottom out during the test-drive. He signed the job off. He was confident that the replacement seat was okay.

Cross-examination

In cross-examination, Mr Singh said that the bus seat suspension was air-operated and sat on a base.

He was asked about the CCTV footage of him test-driving the bus. He agreed that the footage showed him being jolted and swaying. He agreed that, at one stage, he was seen lifting his bottom off the seat and driving while standing up. He said he did that to see if the air suspension came up, which it did. He agreed that the seat was supposed to reduce the force on the driver. He also agreed that the CCTV footage did not appear to show him driving the bus over any bumps.

He said that the test-drive did not reveal any problems with the hydraulics. He said that the seat hydraulics were okay and that it did not make sense to say that there was a problem with them, as Mr Hudson was saying.

Mr Singh was taken to the Defects by Fault Type document. He was asked why the records did not appear to show that the seat on the bus was replaced by him on 27 April 2018 when the CCTV footage of the seat being replaced was dated that day. He said that he was unable to say why there was no record made of the seat being replaced on 27 April 2018.

Mr Singh was asked about a record on 14 April 2018, which stated that a driver, other than Mr Hudson, had entered “Drv entered — Body Driver’s Seat Leaning”, and that, in response, Mr Singh had entered “removed and replaced driver’s seat base as needed”. As to why he wrote “as needed”, Mr Singh said he did not do work if it was not needed. He was asked whether the work needed to be done. He said that he could not remember as it was three years ago.

Mr Singh was also asked about records made on 16 and 24 April 2018, each of which stated that a driver, other than Mr Hudson, had entered “Drv entered — Body Driver’s Seat Leaning”, and that, in response, Mr Singh had entered “removed and replaced driver’s seat base as needed”. He said that the driver’s seat was not the problem.

Re-examination

In re-examination, Mr Singh said that some drivers did not know how to operate the hydraulics, and that that was often the reason why the driver’s seat would lean over.

Mr Orleanski

Evidence-in-chief

Jaroslw Orleanski said that, at the time Mr Hudson was employed, he was the workshop supervisor for Ventura, and Salmon Pienaar was the workshop manager. Ventura did not have a head mechanic.

Mr Orleanski said he did not speak to Mr Hudson in or about April 2018 about the seat on Bus 269.

It was Ventura’s policy to document every job done on a bus. He said that there was no record of the seat on Bus 269 being replaced after 27 April and before 8 May 2018. The seat on that bus was brand new and had been replaced before Mr Hudson complained.

Cross-examination

In cross-examination, Mr Orleanski said that the work on the buses was recorded on the TIMMS machine, which was a transport management system. He said the problem would be entered, and the mechanic would log on and record what needed to be done. There was also a work order, which would record the details and be signed off by the mechanic.

He was asked why there did not appear to be any record of the seat on Bus 269 having been replaced on 27 April 2018, despite the CCTV footage showing that it had been replaced on that day. He said that the entry might have been recorded the following day. He was asked whether the entry might not have been made at all. He said that that was not possible, as a work order would be needed.

Mr Orleanski said that the initial complaints about the seat on Bus 269 related to the driver’s seat leaning to one side, and that they replaced the seat base or cushion. After another complaint, he said that they then replaced the whole seat.

Mr Orleanski was asked whether the seat could have been replaced after 27 April 2018 without any entry having been made on the TIMMS machine. He said that, if the seat had been replaced after that date, there would have been an invoice for the replacement seat, and there was no record of that.

Mr Pienaar

Examination-in-chief

Salmon Pienaar was the workshop manager when Mr Hudson worked for Ventura. Mr Orleanski worked below him. There was a workshop supervisor, but no head mechanic at the depot.

Mr Pienaar had no recollection of any conversation with Mr Hudson about a seat replacement in April or early May of 2018.

He looked at the work history of Bus 269, and the job cards, and ascertained that a seat had been ordered on 26 April 2018 and the old seat had been replaced the next day. This was consistent with what he was told about the CCTV footage of the seat being replaced.

He said that there was no record on the TIMMS machine of the seat on the bus having “bottomed out” at or about the time when Mr Hudson said it had.

He said that the Defect by Fault Type records indicated that Mr Hudson made an entry on 28 April 2018.

Mr Pienaar said that, as far as he was concerned, there was no problem with the seat on 27 April 2018, because it had been replaced with a new seat earlier that day.

He said that the records showed that no further work had been done on the bus in the period from 28 April to 8 May 2018.

Cross-examination

In cross-examination, Mr Pienaar said that the work order referred to in the records indicated that a new seat had been ordered, and that they were still waiting for the seat on 26 April 2018. He said that the seat was then replaced on 27 April 2018.

Mr Pienaar was asked about the entries in the Defects by Fault Type records made on 14, 16 and 24 April 2018. He said that the entries were made by Mr Viola, another driver, and referred to the driver’s seat leaning. He said that the leaning of the seat was due to the seat cushion base, and had nothing to do with the seat itself. He said that the leaning usually resulted from the tendency of drivers to sit on the left-hand side of the seat, and that this was a standard complaint.

Mr Pienaar was asked whether Mr Hudson’s entry on 28 April 2018, in conjunction with the three earlier entries by Mr Viola, indicated that there was something wrong with the seat. He did not agree. The earlier entries concerned the seat cushion base.

Mr Pienaar said that a driver would use a drop-down box to make an entry in the TIMMS machine. This resulted in the entry being made in the Defects by Fault Type records. The dropdown box would refer to a complaint, and it would then be entered. He said that there was not a specific entry for a problem with the driver’s seat jarring.

Mr Pienaar said it was not possible for a repair to take place to a bus without being recorded. The process was that a driver would make a complaint, and it would be responded to by the workshop by way of a job sheet with the work order and an entry in the TIMMS machine. The only exception was that, during a service, a mechanic might see a problem and make a repair without recording it.

Mr Pienaar agreed that the bus seat was supposed to stop the driver being jolted. He said that the seat was adjusted to suit the driver’s weight. He agreed that it was possible that a seat could bottom out and cause jolting if not adjusted properly or if the seat itself were faulty.

Re-examination

In re-examination, when asked a question by the magistrate, Mr Pienaar said that the records indicated that a new seat was fitted to Bus 269 on 15 June 2018.

Mr Pienaar said sometimes there was a delay between the date when the driver entered a complaint and the date when the workshop responded with a work order. He said that, in this instance, the complaint concerning the seat in Bus 269 was made on 24 April, the job sheet for the work order was dated 26 April, and the new seat was fitted on 27 April. He could not explain the reason for the delay.

He said the driver’s complaint on 24 April stated that the seat was leaning, and that that is what eventually prompted the workshop to order a new seat on 26 April and replace the old seat on 27 April.

Further cross-examination

In further cross-examination, Mr Pienaar said that the buses are serviced every three months or 10,000 kilometres, whichever comes first. Part of servicing involves a safety inspection of the driver’s seat, to see whether it is useable or has any problem.

As far as replacing the seats is concerned, that decision is “based on the wear and tear of the seats”. He said that some buses never had their seats replaced; others have had their seats replaced once, maybe twice, in their lifetime.

Seat bases or cushions, however, were different. They might be replaced more often because of drivers leaning on the left-hand side as they got in and out of the bus.

Mr Pienaar accepted that it was “quite possible” that, because the seat installed on 27 April was replaced on 15 June, there was something wrong with the seat installed on the earlier date.

Mr Hudson’s medical reports and other documents

In addition to the foregoing, the magistrate received in evidence a number of medical reports and other documents, including the following in Mr Hudson’s case.

Dr Bushra Abbasi

First, there was an undated report of Dr Abbasi stating that Mr Hudson attended on 7 May 2018 with severe neck and back pain, which had started on the weekend after a long shift at work. He was a bus driver who said the driver’s seat kept jarring, and he developed pain after that. He complained of neck pain radiating to the left arm, and numbness in his left arm and hand. He also complained of lower back ache radiating down both legs. Mr Hudson attended several times with similar complaints of severe neck and back pain, sometimes in both arms, along with numbness in both hands on and off. He was provided with pain killers, and osteopathy was arranged. Scans revealed multilevel degenerative changes with bilateral foraminal stenosis in the cervical and lumbar spine. Dr Abbasi believed that the neck and back pain was an aggravation of Mr Hudson’s underlying condition due to the faulty bus seat.

Dr Abbasi’s clinical notes from 29 January to 31 May 2018 were also received in evidence.

Dr Sukanya Muraledaran

Next, there was a pre-employment medical assessment of Mr Hudson, dated 7 September 2017. In that assessment, Dr Muraledaran ticked the box stating that Mr Hudson had no health problems and was fit for the job as described. The doctor also ticked the boxes indicating that, upon examination, his back, neck, hips, knees and joints were “normal” (as opposed to “abnormal”).

Dr Chris Pang

There was a medical report from Dr Pang (dated 27 June 2018) assessing Mr Hudson’s fitness for duty as a bus driver. Mr Hudson provided the following medical history:

On 27^th April 2018, he drove a ‘269’ bus for the entire shift. The bus was bouncing, and the seat hydraulics were malfunctioning. As a result, the seat had significant vibration. He developed neck pain and lower back pain when he got home that night. It was difficult for him to rotate his neck and lumbar back as he had pain. He continued to work despite having the neck and lower back pain. The neck and back pain was [eight] out of [ten] in intensity.

Over the course of [one] week, he developed left hand numbness over the palmer aspect of the left [third, fourth and fifth] fingers. He also had numbness over the left hand over the dorsum area. He also developed sharp shooting pain from the neck into the left hand, with each episode lasting about [ten] to 20 seconds. This sharp shooting pain would occur up to [five] times an hour. Occasionally, he would also get very brief episodes of sharp shooting pain into his right arm.

Additionally, he also developed lower lumbar back pain radiating into the left lower leg. This pain would last 20 seconds each time.

…

Currently, he still has ongoing pain in the neck and lumbar back. The lumbar back wakes him up at night. He only sleeps [two to three] hours a night due to the pain. He would feel sleepy and fatigued the next day.

…

He was involved in a car accident when he was 15 years old, and he was diagnosed with “C6/C7 problems”. He denied having any recent trauma or car accidents. … He denied having any other significant medical history.

Dr Pang concluded that:

Mr Hudson presented with ongoing cervical and lumbar spine pain with radiculopathy. The MRI of the cervical spine showed multilevel degenerative changes with bilateral foraminal stenosis and nerve root impingements at C3 to C7 levels. The CT lumbar spine showed multilevel degenerative changes with impingement of the left L4 and left L5 nerve roots. His symptoms were consistent with the degenerative changes shown on the scans.

Dr Pang was of the opinion that Mr Hudson was unable to carry out the inherent requirements of his role as a bus driver.

Dr Vino

There were two reports from Dr Vino (one dated 11 January 2020, the other 21 December 2020).

In his initial report, Dr Vino said he first saw Mr Hudson on 23 February 2019 but had not been involved in any of the treatment of his injuries. He said that, while he was not a specialist in spinal conditions, he believed Mr Hudson was suffering from “[chronic] lower back pain probably secondary to moderate broad-based disc protrusion at L5/S1 with a central nodular component impinging into the origin of the left S1 nerve root”. He said he was unable to comment about the chronicity or cause of the injury.

In his second report, Dr Vino said that, since 11 January 2020, he had seen Mr Hudson on five occasions but only one of the appointments (on 17 December 2020) had related to neck pain. He said that Mr Hudson had attended a back pain assessment clinic at the Prince Alfred Hospital on 18 November 2019.

Dr Vino’s clinical notes from 25 February to 23 October 2020 were also tendered.

Associate Professor Bruce Love, orthopaedic surgeon

There were four medico-legal reports from Associate Professor Love. They were dated 8 July 2019, 25 July 2019, 13 January 2021, and 11 March 2021.

On 8 July 2019, Mr Hudson provided a history of developing symptoms in May 2018 “as a consequence of what he believes was a faulty seat on the bus he was driving”. He said that “the seat was not decelerating upon descent but rather finished its [descent] with a hard bottoming out”. That motion “brought about symptoms in his back and neck”. He said that “the symptoms were of such severity that at times he would continue driving in a [semi-standing] position”. He now complained of “pain in the neck with diminished range of movement and pain in the lower back”. He said he was “generally stressed by the circumstances of his unemployment and his financial circumstances”.

An MRI of the cervical spine concluded there was “multi-level degenerative change with bilateral foraminal stenosis and nerve root impingement”. A CT scan of the lumbar spine dated 9 May 2018 concluded there were “multi-level degenerative changes seen … [with] impingement of the exiting left L4 nerve root in its foramen and possible mild impingement of the transiting left L5 nerve root in its lateral recess”.

Associate Professor Love opined that Mr Hudson’s condition “is one of aggravation of his degenerative spine by virtue of the seat fault that he described as first being recognised in May 2018”, and that “employment with Ventura … was a significant contributing factor to his injury”.

The associate professor confirmed this opinion in his subsequent reports. He did not think that Mr Hudson had a capacity for his pre-injury duties.

CT scan

Notes of a CT scan of the lumbosacral spine (dated 23 February 2019) described the history as: “? disc protrusion. Radiating pain to left leg. Paraesthesia. Pins and needles”. The notes concluded there was evidence of moderate broad-based disc protrusion at L5/S1 with a central nodular component impinging into the origin of the left S1 nerve root.

MRI

Notes of an MRI of the cervical spine (dated 31 October 2019) said this:

66-year-old male with multi-level disc degenerative changes in the cervical spine coming with the neck pain radiating to the left upper limb. Also having reduced sensation over the T1–T3 area on the midline. Cervical radiculopathy.

The assessment was that Mr Hudson suffered from disc degenerative disease of the cervical spine with early cord impingement mainly at C3/C4 level and foraminal stenosis as described.

Jarryd Burke, osteopath

There were also notes from Mr Burke, an osteopath, who treated Mr Hudson on five occasions. In summary, the notes recorded the following:

· 17 May 2018: He complained of neck and lower back pain due to the hydraulics “going bad in the bus”. He said he had left-sided numbness and shooting pain down the left arm with some pain down both posterior thighs. He was taking Lyrica and Endone, and using a heat-pack.

· 22 May 2018: He reported that he was taking Endone. He went to sleep and started getting pins and needles in his hands, and had a panic attack. He described tingling in the and fifth digits, and getting a lot of “itching” (which, perhaps, should read “aching”) in the left hand and right upper back. His range of movement was poor.

· 24 May 2018: He had more movement than before.

· 29 May 2018: He said his left hand was getting really numb after doing some exercise, and was very bad at night. He had more movement than before.

· 31 May 2018: He said he had an accident in the bus three to four days after the initial. Not sleeping very well. Cannot find a comfortable position. Patient just came in to talk about sleep. His cervical movement was improving. No hands-on treatment was provided, and he was advised to go the chemist and talk about sleeping pills and NSAIDS.

Neck survey

There was also a neck survey completed by Mr Hudson in June 2019 as part of a referral to an orthopaedic surgeon at the Princess Alexandra Hospital (“PAH”). He gave a history of neck and lower back problems for one-and-a-half years, and described pain in the back, neck and arm, and sciatica. Under the heading “Neck Pain”, he said that the pain is “fairly severe at the moment”, “can only lift very light objects” and “cannot do my usual work”, but had “no headaches at all”.

Damien Nolan, physiotherapist

There was a progress note from Damien Nolan, a physiotherapist at the PAH Back Assessment Clinic (dated 6 September 2019). Mr Hudson reported that there was no past medical history. At the time of presentation, his principal complaint was cervical and lumbar pain with no radiating arm or leg pain. The impression was:

mechanical axial/paraspinal cervical pain in the setting of multilevel degenerative changes in the cervical spine as noted on prior [MRI] cervical imaging. There was no arm pain at the time of the assessment today. [Mr Nolan felt that he was presenting with] mechanical axial and paraspinal lumbar pain on a background of lumbar discogenic pathology, as noted on prior CT lumbar imaging. There was a left S1 nerve root impingement reported on that CT lumbar spine. There was no leg pain at time of assessment today [but Mr Nolan wondered whether there is a] contribution to reported leg pain from left S1 nerve root.

Management options were discussed, and Mr Hudson was to obtain up-to-date investigations.

Mr Nolan sent a letter (dated 4 November 2019) to Dr Vino confirming the foregoing opinion.

On 31 December 2019, Mr Nolan wrote to Dr Vino again, this time concerning Mr Hudson’s attendance at the back assessment clinic on 18 November 2019. His case had been discussed with the consultant spinal surgeon, Dr Tsahtsarlis, at a case conference. Based on the clinical information and investigations in February 2019, Dr Tsahtsarlis’s recommendation was that there may be some surgical options for Mr Hudson’s arm and leg pain, but that an initial trialling of targeted nerve root interventional radiology was suggested to determine the effect of this on his peripheral symptoms. Mr Hudson was hesitant to engage in the trial suggested but wanted to be transferred to the spinal surgeon outpatient clinic waiting list to discuss these options in further detail. He was now on the waiting list for an outpatient appointment.

Other documents

Other documents that were tendered in Mr Hudson’s case were:

· the notice from Gallagher Bassett (dated 12 June 2018) rejecting his claim;

· the incident report made by Mr Hudson on 8 May 2018;

· the Defects by Fault Type documents for the period from 1 April to 8 May 2018;

· the termination letter from Ventura to Mr Hudson (dated 2 July 2018);

· the statement of Mr Singh (dated 12 June 2018); and

· the CCTV footage (dated 27 April 2018).

Ventura’s medical reports and other documents

Among the documents received in evidence from Ventura were the following.

Clive Jones, orthopaedic surgeon

There was a medico-legal report (dated 6 June 2018) from orthopaedic surgeon Clive Jones.

Mr Jones received a history from Mr Hudson of developing “neck pain and stiffness, and to a lesser degree, the emergence of low back soreness”. Mr Hudson said he believed these symptoms resulted from “a jarring injury” sustained on 27 April 2018. The driver’s seat hydraulics were said to be “defective and [non-functional], causing the seat to bottom out driving over speed humps and road potholes”. He said he developed symptoms “towards the end of the shift”.

As for his medical history, Mr Hudson told Mr Jones that he “was involved in a motor vehicle accident many years ago, which left him with intermittent neck soreness”.

Mr Jones noted that a CT scan of the lumbar spine made on 9 May 2018 showed “the usual [age-related] multilevel degenerative changes in the lumbar spine”. An MRI of the cervical spine made on the same date, and also examined, showed “[age-related] degenerative change at the C4/5 and C5/6 spaces”. Further, the “exit foramenae appeared clear and there [was] no disc protrusion”.

Mr Jones noted that Mr Hudson’s allegation about a dysfunctional driving seat was denied by Ventura and that this alleged mechanical problem would have to be assessed by others.

Mr Jones opined that the diagnosis appeared to be “degenerative neck and low back pain”. In answer to the question as to the “[cause of] the worker’s injury or medical condition”, he opined that it was “obviously [age-related] and consistent with the normal aging change in the spine”.

Mr Jones recorded that he was asked whether “this is a new injury or medical condition or an aggravation, exacerbation or deterioration of pre-existing injury or medical condition” and, if it is, “to what extent has the worker’s employment contributed to the aggravation [etc]”. He answered:

A history of intermittent discomfort was described, the result of a vehicle accident many years ago, but has not been a significant problem to him. I believe it is unlikely that there had been a contribution by the worker’s employment.

Mr Jones opined that Mr Hudson was “clearly unfit for work as a bus driver” but that “alternative work of a clerical nature … would be appropriate”.

Clinical notes, Newstead Medical Clinic, Tasmania

The clinical notes of the Newstead Medical Clinic in Tasmania were also tendered. They covered the period from 24 October 2012 to 25 October 2016.

Resignation email — Metro

Mr Hudson’s resignation email to Metro (dated 14 October 2016) was received in evidence as well.

Ventura records

Finally, also received in evidence in Ventura’s case were:

a) a list of historical defects for Bus 269 covering the period from 8 to 27 May 2018;

b) Ventura’s letter to Mr Hudson (dated 13 March 2018) concerning his period of absence from work at that time; and

c) Ventura’s records with respect to Mr Hudson’s accident history whilst employed.

Defendant’s submissions

After all the evidence was in, counsel each made a comprehensive final address to the magistrate.

Counsel for Ventura submitted that Mr Hudson had not established that he was injured by a bus seat in the four hours of driving on 27 April 2018. He was asked by the magistrate, “Not injured by a defective bust seat, or just by a seat?” He answered, “By a bus seat, but in particular the bus seat was not defective.”

Counsel pointed out that Mr Hudson was not relying on his work overall but had made a specific claim that he sustained injury during the four-hour shift. He submitted that the “[defective seat] story just doesn’t wash”. He had “put all his eggs in the basket of the seat bouncing up and down, bobbing out from the side”. If the seat was neither defective nor bouncing up and down, that was the end of the case.

Counsel submitted that, if the claim had been based on injury throughout the course of his employment with Ventura, albeit only a period of two or three months, it might have been a different story. But it was not put in that way.

Counsel submitted that Mr Hudson could not prove, and that the magistrate should not be satisfied, that the driver’s seat was defective. When Mr Hudson complained about a defective seat, he was unaware that the seat had been replaced on the morning of 27 April 2018. The evidence of Mr Singh was that the seat was brand new and was not defective. Mr Hudson could not contest that the seat had been replaced with a brand new seat that morning.

While counsel accepted that it was up to the magistrate to determine how Mr Hudson presented on the CCTV footage, in his submission, that footage did not indicate that he was in any distress while driving.

Counsel went on to submit that, on the evidence, Mr Hudson had a long history of back, neck and bilateral shoulder pain. He had a tendency to be anxious about his health in general, which had spurred him on to connect his neck and back symptoms with the driving of Bus 269 on 27 April 2018. He first reported that he had been injured ten days after the driving in issue, when he attended Dr Abbasi complaining of neck pain radiating to his left arm. In the meantime, he had continued working normally.

Counsel pointed out that Mr Hudson’s evidence — that the head mechanic had told him that the bus seat on Bus 269 had been replaced a few days after 27 April 2018 — was not supported by Ventura’s workshop records.

As to the medical evidence concerning whether work was a significant contributing factor to any injuries, it was submitted that the opinion of Mr Jones should be preferred over the opinion of Associate Professor Love, whose view was predicated upon acceptance of Mr Hudson’s account. In effect, Mr Hudson had age-related degenerative changes. Counsel submitted that Dr Abbasi had simply accepted Mr Hudson’s history, and her undated report was underwhelming at best.

As to incapacity, counsel submitted that Mr Hudson suffered a significant injury to his left knee when he went to Canada. This, it was submitted, impacted on his incapacity, and he should not be subsidised by Ventura for any incapacity flowing from this injury.

Plaintiff’s submissions

Counsel for Mr Hudson agreed that his client “does put his eggs in one basket”. This, he submitted, went to his credit, as he was a reliable witness with a reliable claim and a reliable mechanism of injury. He could easily have made a claim based on injury throughout the course of his employment, but he chose not to put the claim on that basis.

Counsel submitted that Mr Hudson’s evidence was largely unchallenged, and that it defied logic to say that he had made up the story about a defective seat. He did not find out about the issue with the seat until a few minutes into his shift. Further, the fact that he continued working until 7 May 2018 indicated that he was not looking for compensation. That he complained on 28 April and wanted the bus seat fixed — well before he ceased working for Ventura — also went to his credit.

The Defects by Fault Type records, and the three prior complaints by Mr Viola in April 2018, concerned the driver’s seat leaning, which involved replacing the driver’s seat base. Mr Viola was not called by Ventura to say what his complaints actually involved. The evidence was that the driver making the entry would use a drop-down box to select the problem and that, on each occasion, Mr Viola entered “Body Drivers Seat Leaning”. In counsel’s submission, the court should draw an adverse inference against Ventura, as Mr Viola could have been called to say precisely what he was complaining about.

Despite seeking discovery with respect to the maintenance records of Bus 269 during the time of Mr Hudson’s complaint and for a period of three months following 27 April 2018, no such records had been provided. Had they been provided, counsel submitted, details of the seat having been replaced on 15 June 2018 would have been known to Mr Hudson. This was of relevance because the seat had been replaced twice, which Ventura said had no problems, during a period of six-and-a-half weeks.

On 28 April 2018, Mr Hudson reported a defect concerning the seat rather than an injury, which, counsel submitted, went to his credit. Further, it was significant that he had no idea that there had been complaints about the driver’s seat before 27 April.

In counsel’s submission, the CCTV footage showed Mr Hudson being jolted and moving as he sat on the seat. He pointed out, correctly, that it also showed him holding the left side of his back as he exited the bus at the end of the shift. Counsel submitted that, if the seat was defective as Mr Hudson said, then it made sense to relate his injuries to his driving during the four-hour shift on 27 April.

It was submitted that Mr Singh was entirely unimpressive in giving his evidence, and that his written statement was coy, at best. His evidence — that there were no other issues after he replaced the seat on 27 April 2018 — proved to be wrong, as the seat was replaced again on 15 June.

Mr Singh said he sat on the seat and tested it after he replaced it. But the CCTV footage of the test-drive showed the seat moving upwards and Mr Singh, at times, standing up as he drove. Counsel submitted that this indicated that there was something wrong with the seat.

Counsel pointed out that Mr Pienaar agreed that a loose seat could cause jarring if it hit the bottom. Mr Pienaar also said that a bus seat might never be changed, or maybe once. This contrasted with the fact that the seat on the bus in question had been changed twice during a period of six-and-a-half weeks.

Counsel submitted that, on the totality of the evidence, Mr Hudson had established that the seat was bottoming out and causing increased load to his spine during the four-hour shift. The court, he submitted, should be satisfied that, as a result, Mr Hudson sustained injuries to his neck and back.

As for the medical evidence, counsel relied on the fact that Mr Hudson had complained to Dr Abbasi about neck and back pain on 7 May 2018, and about constant pain thereafter because of the injuries. He also relied on Associate Professor Love’s opinion to support causation at work, ongoing injury, and incapacity for the claimed 130-week period. Additionally, he relied on the pre-employment medical report, which stated that Mr Hudson was fit for bus driver duties, and the subsequent report of Dr Pang, which stated that he was unfit to drive a bus.

Counsel submitted that the onus was on Ventura to prove when any aggravation of the injuries by work had ceased. He submitted that Mr Jones did not assist Ventura in this respect, as he had found that Mr Hudson’s injuries were constitutional.

Counsel submitted that Ventura’s reliance on Mr Hudson’s injury to his shoulder, and not continuing work as a bus driver in Tasmania, ignored his letter of resignation to Metro, in which he said that his shoulder was getting better. He submitted that, when Mr Hudson came to Melbourne, there was not the same frequency of complaints to Dr Abbasi about his shoulder.

Counsel submitted that Mr Hudson was motivated to return to work, despite what Ventura said, but that his injuries prevented him from continuing to work as a bus driver. This, he submitted, was also confirmed by Dr Pang’s examination in June 2018, and his opinion.

Defendant’s reply

In reply, counsel for Ventura submitted that there was no point in calling Mr Viola, as he last drove the bus in question before the replacement seat was fitted on 27 April 2018.

Magistrate’s reasons

After setting out detailed summaries of the opening, the evidence and counsel’s submissions in their closings, the magistrate commenced his analysis by noting that entitlement to compensation under the WIRC Act is provided for in s 39(1). That subsection provides that, where “there is caused to a worker an injury arising out of or in the course of employment, the worker is entitled to compensation in accordance with [the] Act”.

In this case, said the magistrate, to succeed in his claim, Mr Hudson had to establish, on the civil standard of proof, that he sustained an injury which arose out of or in the course of his employment with Ventura as a result of sitting on a defective seat during the four-hour evening shift on 27 April 2018. This, his Honour said, is how Mr Hudson put his case. Ventura denied the seat was defective. The onus of establishing that the seat was defective, and any resultant entitlement, rested with Mr Hudson.

His Honour noted that the definition of “injury” in s 3 of the WIRC Act means “any physical or mental injury” and includes “a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury”.

He also noted that, under s 40(3)(c), there is no entitlement to compensation in respect of a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury “unless the worker’s employment was a significant contributing factor to the injury”.

The magistrate pointed out that his counsel properly submitted that Mr Hudson had “placed all his eggs in one basket”. His Honour also recorded that counsel agreed that the court had to be satisfied (a) that the seat on the bus was defective when Mr Hudson drove during the four-hour shift on 27 April 2018 and (b) that, if so, as a result, he suffered an injury within the meaning of the WIRC Act. His Honour observed that counsel also conceded that, if he was not satisfied that the seat on the bus was defective, Mr Hudson would not be successful.[1] He said that whether the bus seat was defective required him to assess the facts, to which he then turned.
[1]The magistrate’s reasons at this point actually said this: “If the court was not satisfied that the seat on Bus 269 was not defective, [counsel] conceded that the plaintiff would not be successful”. His Honour cannot have meant precisely that. Thus, the second “not” employed was either a slip or a mis-transcription. In context, he must have meant to say what I have assumed he meant to say. Counsel who appeared on the appeal did not suggest otherwise.

The magistrate then referred in (detailed) summary form to Mr Hudson’s evidence, to the CCTV footage of Mr Singh replacing the old seat and testing the new one, and to the CCTV footage of Mr Hudson driving the bus. He said that he did not consider that the latter pieces of CCTV footage demonstrated that there was anything untoward with the seat or that the seat was bottoming out. He specifically said that he did not accept that the CCTV footage supported Mr Hudson’s allegations that the seat was bottoming out ten to 15 times a minute and was therefore defective. His Honour noted that, while Mr Hudson gave evidence that the seat became an issue within a few minutes, he also agreed in cross-examination that the first ten minutes of the CCTV footage appeared to show him driving normally and that there was nothing unusual about his body movements.

The magistrate rejected counsel’s submission that he should draw an inference that Ventura decided not to call Mr Viola because his evidence would not have assisted its case.[2]
[2]While, initially, Mr Hudson took a ground asserting error in his Honour’s reasons on this topic, as we shall see shortly, that ground was expressly abandoned at the hearing of the appeal. It is therefore unnecessary to set out those reasons on this issue.

The magistrate did not accept Mr Hudson’s evidence that he spoke to an employee of Ventura called “Frank”, that he was subsequently taken to the workshop by him, or that he was then told by the head mechanic that a few days after 27 April 2018 the seat on Bus 269 had been replaced again. His Honour accepted the evidence that, had this replacement occurred, there would have been a record of it, but there was none. Any such conversation was also denied by Mr Orleanski and Mr Pienaar, who both worked in the workshop. His Honour added that Ventura did not call Frank because, as counsel explained, it was ascertained that he had no recollection of speaking to Mr Hudson. At the hearing in the court below, counsel for Mr Hudson accepted this, and did not require him to give evidence.

Overall, the magistrate said that he was not impressed with the evidence of Mr Hudson. His Honour did not think he answered questions frankly or directly. In cross-examination, said the magistrate, Mr Hudson had to be prompted several times to answer questions that were potentially damaging to his case. This was particularly so when he was cross-examined about his prior medical history.

The magistrate found that Mr Hudson had numerous health difficulties during the latter part of his working life, which were impacting on his ability to remain a consistent member of the work force. His period of employment as a bus driver with Metro in Tasmania was limited and affected by problems concerning his right shoulder. At one stage, he applied for Austudy so that he could retrain and discontinue working as a bus driver. His Honour found that, when cross-examined about this aspect of the case, Mr Hudson’s responses were unconvincing, and that he was reluctant to make any concessions.

The magistrate also found unconvincing Mr Hudson’s claimed inability to remember his attendance upon Dr Abbasi on 21 March 2018 or what he might have said to the doctor on that occasion. His Honour found that Mr Hudson was given an ultimatum by Ventura, and that he reluctantly returned to work to avoid being dismissed. He found that, prior to 27 April 2018, Mr Hudson’s right shoulder and neck pain had flared up and that he was on a similar pathway to what had happened with his employment with Metro in Tasmania.

The magistrate expressly accepted the evidence of Mr Singh, Mr Orleanski and Mr Pienaar. In his Honour’s view, they gave their evidence in a manner that was open and reliable, and were prepared to make concessions when appropriate. He considered that they all gave evidence to the effect (or supportive of the proposition) that the replacement bus seat on Bus 269 was not defective.

Having considered all of the evidence, his Honour did not accept on the balance of probabilities that the seat was defective. He rejected counsel’s submission that Mr Hudson’s evidence was largely unchallenged. On the contrary, the evidence called by Ventura did challenge Mr Hudson’s evidence, and he failed to discharge the applicable onus.

The magistrate said that, based on his finding that the seat was not defective, it was unnecessary to determine whether Mr Hudson suffered injury within the meaning of the WIRC Act.

However, for completeness, his Honour went on to say that, even if he had found the seat to be defective, he was of the opinion that the alleged injuries did not arise out of or in the course of Mr Hudson’s employment with Ventura.

Again, said the magistrate, the onus of establishing this entitlement rested with Mr Hudson. That onus would be satisfied “if the (defective) seat [were] a cause of his injury”. But, his Honour said, Mr Hudson limited his case to being exposed to a defective seat during a four-hour period of employment. He did not accept that this exposure was a significant contributing factor to any aggravation of Mr Hudson’s underlying degenerative changes to his neck and back. He did not accept that any such exposure was of ”considerable amount or effect”.[3]
[3]His Honour referred to St Mary’s School v Askwith [2001] VSCA 90 at [11] & [14] (per Ashley JA, with whom Warren CJ and Kyrou AJA agreed)).

The magistrate accepted the opinion of Mr Jones that Mr Hudson’s diagnosis was of degenerative neck and low back pain which was age-related and consistent with the normal ageing changes in the spine. It was unlikely that there had been any contribution by his employment.

In coming to this conclusion, his Honour said he also had regard to the various medical records put in evidence. In his view, Mr Hudson’s condition was constitutional in its aetiology, and was related to his age and problems stemming from the earlier motor vehicle accident. He accepted that there may well have been some temporary exacerbation of pain symptoms due to sitting on a defective seat during a four-hour shift, but sitting on a defective seat was not the cause of them. His Honour found that Mr Hudson’s evidence that the pain symptoms continued after ceasing work was, on balance, better explained by the constitutional nature of his condition and its progression due to his general health, given his pre-existing health issues and his age. This, he considered, was consistent with the opinion of Mr Jones and the medical records.

The magistrate said that, for the same reasons, he did not accept the opinion of Associate Professor Love. His Honour also considered that the history recounted in his reports suggested that he believed Mr Hudson’s exposure to a defective seat was for a greater period than the four-hour shift in question. The associate professor referred to Mr Hudson developing symptoms in May 2018 “as a consequence of what he believes was a faulty seat on the bus that he was driving”, but he did not specifically refer to 27 April 2018 in the history that he obtained. Nor did he have the full extent of Mr Hudson’s previous medical history. Mr Jones, in contrast, did have that history.

The magistrate also said that, had he found the seat to be defective, he would have had regard to the matters set out in clause 25 of Schedule 1 of the WIRC Act in determining whether Mr Hudson’s employment was a significant contributing factor to an injury.[4] Addressing each of those factors, his Honour said the following.
[4]Clause 25 of Schedule 1 of the WIRC Act provides that, “[in] determining whether a worker’s employment was a significant contributing factor to an injury, the following must be taken into account — (a) the duration of the worker’s current employment; (b) the nature of the work performed; (c) the particular tasks of the employment; (d) the probable development of the injury occurring if that employment had not taken place; (e) the existence of any hereditary risks; (f) the life style of the worker; (g) the activities of the worker outside the workplace”.

First, for the purposes of this claim, the duration of the employment relied on was four hours during the evening shift on 27 April 2018.

Second, the nature of the work performed, and the particular tasks of the employment, involved driving a bus on a defective seat during the said period. For the reasons he gave earlier, his Honour said that neither the nature of the employment nor Mr Hudson’s duties over the period in question could be regarded as a significant contributing factor. At best, in his view, there was a temporary aggravation or exacerbation of symptoms of pain, which had been usurped by Mr Hudson’s underlying constitutional factors and the previous medical issues concerning his neck and shoulders.

Third, with respect to the probable development of the injury occurring if that employment had not taken place, his Honour found that Mr Hudson’s underlying constitutional factors and previous medical issues would have led to the development of his current condition in any event. In this regard, he referred to the opinion of Mr Jones and the medical records.

Fourth, he also found Mr Hudson’s underlying constitutional factors could likely be considered as the existence of a hereditary risk.

Finally, his Honour noted that there was no evidence addressing Mr Hudson’s lifestyle or outside activities.

Accordingly, the magistrate dismissed Mr Hudson’s claim.

Grounds of appeal

As amended, Mr Hudson’s grounds of appeal were in the following terms:[5]
[5]I have edited the text of grounds slightly.

1) The magistrate misstated and/or misunderstood Mr Hudson’s case at trial, in particular by limiting his case to one which required him to establish that the bus seat was defective, and so committed error of law by asking the wrong question as to whether he suffered compensable injury under the WIRC Act, or alternatively he failed actively to engage with cogent and relevant evidence on the issue of whether he suffered compensable injury.

2) The magistrate failed to provide adequate reasons or to demonstrate an adequate path of reasoning for dismissing Mr Hudson’s case at trial.

3) The magistrate misstated or misunderstood the content of relevant portions of CCTV footage and further failed to provide adequate reasons or to demonstrate an adequate path of reasoning with respect to the content of relevant portions of CCTV footage.

4) The magistrate misstated or misinterpreted the evidence of Mr Pienaar, in particular with respect to the repeated replacement of the bus seat and/or the base thereof, and/or alternatively failed to provide adequate [reasons] as to his rejection of evidence from Mr Pienaar supportive of a finding the seat was faulty, defective or in some manner unfit which was a cause of injury to Mr Hudson.

5) The magistrate failed to provide adequate reasons or to demonstrate an adequate path of reasoning with respect to evidence adduced at trial relevant to the repeated replacement of the bus seat and/or the base thereof.

6) The magistrate erred in the correct application of the principles as to the requirement of advance notice to be provided before calling for the drawing of an adverse inference from the unexplained failure to call a witness, namely Mr Viola, in accordance with Jones v Dunkel (1959) 101 CLR 298.

At the commencement of the hearing in this Court, Mr Valiotis, who appeared with Mr Haddad for Mr Hudson,[6] advised that the grounds of appeal reduced to two complaints, albeit that they were “intertwined”.
[6]Mr Valiotis did not appear for Mr Hudson in the court below, whereas Mr Haddad did.

First, he submitted that, contrary to the magistrate’s reasons, the case was not run on the basis that the seat was defective. It was broader than that. This complaint, he said, is reflected in Ground 1, although, as I understood him, aspects of Grounds 3, 4 and 5 formed the second part of this complaint.

Second, Mr Valiotis submitted that the magistrate erred by giving inadequate reasons for his decision and/or by engaging in a flawed process of reasoning. This complaint is reflected primarily in Ground 2, but is to be read with Grounds 3, 4 and 5 as well.

Mr Valiotis expressly abandoned Ground 6 — the Jones v Dunkel point.

Whether undue narrowing of case

Appellant’s submissions

Mr Valiotis submitted that the magistrate unduly confined Mr Hudson’s case to a determination of whether the seat was defective. He submitted that, contrary to his Honour’s reasons, the case was not run on that basis. Rather, as alleged in the statement of claim, Mr Hudson’s case was that he “suffered injuries arising out of, or in the course of, his employment with [Ventura] on or about 27 April 2018”. No particulars were given or sought about a defective seat. Moreover, in his submission, the matter was opened, effectively, in the same way. Counsel went so far as to say that the nature of the defect in the seat, if defective at all, or the mechanism by which the injury was caused, was irrelevant. Thus, he submitted that the magistrate erroneously treated the matter as if it were — or were only — an inquiry about whether the seat was defective.

While Mr Hudson said in his evidence that the seat was defective, he was not an expert. The thrust of his evidence was that the seat, whether or not it was defective, was bottoming out during the four-hour shift, and that he suffered injury arising out of or in the course of his work during that period. Accordingly, and contrary to the magistrate’s approach, it was unnecessary to find that the seat was defective in order for the claim to succeed.

Mr Valiotis returned to the opening before the magistrate, where counsel then appearing for Mr Hudson said these things:

[It] was during that shift that the seat was violently moving and causing the — so the suspension he will say had something wrong with, he can’t say what exactly it was, but that it was jolting and causing him pain to his neck and back. … [Mr Hudson’s] only been provided with limited footage and doesn’t have the whole shift, but we’ll explain to Your Honour the pain and the restriction that he sustained during the course of the shift, and go into events relevant to what he was feeling, and the onset of his neck and back pain. … Now [as to the entry in the Defect by Fault Type system], that is an entry that [Mr Hudson] will say he made, in respect of the issue with the suspension on the driver’s seat, and as far [as] he understood the problem to be, that caused the pain. Now this case is not about … fault. But it is about whether or not [Mr Hudson] hurt himself on that particular day, and we say that that entry and the complaint of the driver’s seat is consistent with [him] suffering an injury on that day, and the problem with the seat on that day rendering him to become symptomatic in his back and neck.

Thus, in Mr Valiotis’s submission, it can be seen that the case was not opened as a defective seat but, rather, as a description of what was happening to Mr Hudson during the four-hour shift so as to cause injury.

Further, to “elevate” the matter to a case based on a defective seat is, it was submitted, effectively to suggest that the case was one of negligent causation or a breach of duty, when it neither went that far nor needed to do so. In Mr Valiotis’s submission, Mr Hudson did not even need to show that the seat was bottoming out, despite his description of that event occurring. Rather, it was enough to show that the seat behaved inappropriately — for example, by “bouncing around” — and that that caused his injury.

Mr Valiotis submitted that, by embracing in his closing, the suggestion that he had “put all his eggs in one basket”, Mr Hudson’s counsel was doing no more than accepting that the claim was based on his client’s work in the single four-hour period of the evening shift. He was neither confining his case to whether the seat was defective nor putting it on the basis of an injury arising out of the course of his employment over months with Ventura.

Mr Valiotis pointed out that, elsewhere in his closing, counsel submitted that, “[on] the totality of the evidence”, the court should be satisfied that “the seat caused him pain to the lower back” and that “[the] mechanism on which it did that, whether there’s fault on [Ventura’s] part or negligence, is not a relevant aspect of … that inquiry”. The magistrate then asked whether it was submitted that Mr Hudson “established … that a seat that was faulty caused the pain to his lower back”, to which counsel responded, “Well, the seat was bottoming out and causing increased load to his spine”. Even so, as I understood Mr Valiotis, he submitted that the relevant inquiry was whether, by whatever means, Mr Hudson sustained injury during the course of the four-hour shift.

In Mr Valiotis’s submission, the consequence of his Honour’s error is that, by confining the inquiry to whether the seat was defective, he failed properly or at all to consider the other evidence supporting Mr Hudson’s case that he suffered an injury during the four-hour shift. This evidence included the CCTV footage showing the movement of Mr Hudson and him holding his back, as well as the other evidence showing that the seat was in need of replacement and operated in a way that caused him injury, together with the medical evidence.

Respondent’s submissions

Mr Kumar, who appeared for Ventura in this Court,[7] submitted that Mr Hudson’s case was that his injuries were caused by a defective seat on which he sat during the four-hour shift. In particular, it was claimed that the seat bottomed out and jarred, thereby causing him pain and injury to his back and neck. This, it was submitted, was consistent with Mr Hudson’s evidence, with his counsel’s opening, and with both counsel’s closing addresses.
[7]Mr Kumar did not appear in the court below.

As to the suggestion that this case embraced no actual defect in the seat, but merely that it might have been poorly adjusted, Mr Kumar submitted that that case was never pursued, and would not have been open anyway. Mr Hudson gave evidence that the seat bottomed out and jarred him. This, he said, was happening ten to 15 times a minute. Mr Pienaar said that a seat might bottom out if not adjusted properly. But Mr Hudson said that he adjusted the seat to his weight, and that he made “all the adjustments, but it made no [difference]”. Thus, in order to be bottoming out and “cracking” in the way he described, the seat had to be defective and thereby not operating as it should. At no point, submitted Mr Kumar, was the case put to the magistrate on the basis that the bottoming out and jarring might have occurred notwithstanding there was nothing wrong with the seat.

As for the complaint that the error, if made, caused the magistrate to fail properly or at all to consider the other evidence, I understood Mr Kumar to make two points in response. First, he submitted that it is plain that his Honour did consider the CCTV footage and all of the other evidence going to whether, during the four-hour shift, Mr Hudson had suffered an injury or had aggravated or exacerbated a pre-existing injury.

Second, in Mr Kumar’s submission, even if the magistrate did unduly confine the mechanism of injury to the existence of a defective seat, this could not have been a material error. This is because his Honour found, on the assumption of a defective seat, that the injuries did not arise out of or in the course of his employment. Further, he was not satisfied that this exposure was a significant contributing factor to the underlying degenerative changes to Mr Hudson’s neck and back. Nor was he satisfied that the exposure was of “considerable amount or effect”.

Consideration

In my opinion, Mr Kumar’s submissions on this topic should be preferred.

I have been careful to set out detailed summaries of the evidence, counsel’s submissions at trial and the magistrate’s reasons for his decision. Those summaries reveal that it is plain that the case was conducted by all on the basis that Mr Hudson claimed he suffered injury during the four-hour shift as a result of bottoming out and jarring of the driver’s seat. On the evidence, this could only occur if the seat were defective in some way, whether because of a mechanical or operating fault or because it was not adjusted properly. Mr Hudson’s own evidence ruled out inadequate adjustment, as he said he tried all settings without any change in the functioning of the seat, and there was nothing unusual about his weight. Nor was it suggested that the roads on which he drove during the evening shift were such that, even with a seat that was not defective, bouncing and jarring of the type and to the extent alleged could have occurred and thereby caused injury. That left only some sort of mechanical or other fault in the seat as the potential cause of the bottoming out and jarring, and the consequent pain and injury, as alleged by Mr Hudson.

It follows that, as presented to the magistrate, a central issue in the case was whether the seat was defective so as to be capable of causing bottoming out and jarring, and in turn the pain and injury alleged. This is the primary case his Honour considered. Thus, I am not persuaded that he unduly confined Mr Hudson’s case.

Further, in considering that case, his Honour rejected the essential features of Mr Hudson’s account of the bottoming out and jarring, and consequent injury — and therefore his claim with it. He gave several reasons for coming to that view, all of which were open to him on the evidence. Those reasons included the following.

First, as we have seen, the magistrate did not think much of Mr Hudson as a witness. His Honour said that he did not think he answered questions frankly or directly. He also found that, when cross-examined about matters potentially damaging to his case, Mr Hudson’s responses were unconvincing, and that he was reluctant to make any concessions.

Second, in contrast, he accepted the evidence of Mr Singh, Mr Orleanski and Mr Pienaar to the effect that there was not — or was not likely to have been — anything wrong with the seat at the relevant time. This was supported by the CCTV footage of Mr Singh replacing the old seat and testing the new one the morning before Mr Hudson’s evening shift.

I interpolate here that, insofar as his findings about the viva voce evidence were concerned, and given that credit plainly was in issue, it is significant that the magistrate had the singular benefit of seeing and hearing those witnesses give their evidence.

Third, his Honour found that the CCTV footage of Mr Hudson driving did not support his account. I should add that I too have viewed all of the CCTV footage. While it is clear that Mr Hudson grabbed his back towards the end of the shift, and that there was some modest bobbing around on the seat during the journey, it is also plain that it was open to the magistrate to find that the footage did not support Mr Hudson’s account of the seat bottoming out, cracking or otherwise behaving inappropriately.

Fourth, his Honour found that Mr Hudson’s previous medical history was consistent with his having a pre-existing injury. As we have seen, there was evidence that he had had pain and difficulties with his back and neck on various occasions prior to 27 April 2018.

Fifthly, on balance, the magistrate found the medical evidence — which was all in written form — to be consistent with other explanations for Mr Hudson’s injuries, namely age-related deterioration and injury sustained in a motor vehicle accident. In coming to this view, in particular, he preferred the opinion of Mr Jones over that of Associate Professor Love, which was open to him for the reasons he gave.

Finally, as we have seen, his Honour found that, even if the seat were assumed to be defective, the injuries did not arise out of or in the course of Mr Hudson’s employment with Ventura. Further, he was not satisfied that this exposure — which could only be temporary in its effect, at best — was a significant contributing factor to the underlying degenerative changes to Mr Hudson’s neck and back. Nor was he satisfied that the exposure was of “considerable amount or effect”.

Shortly, I shall return to some of these aspects of the magistrate’s reasons when dealing with the second complaint on this appeal. For the moment, however, for the foregoing reasons, it is sufficient to say two things.

First, for the reasons I have given, I do not uphold Mr Hudson’s complaint that the magistrate unduly confined his case.

Second, even if he did err in that way, any such error was not of a vitiating kind because it could not have made any difference to his ultimate decision.[8]

Whether inadequate reasons and/or flawed reasoning

[8]See, for example, Easton v Gibson [2021] VSC 424 at [168] and the authorities cited at footnotes 19 and 20.

Appellant’s submissions

Under the second branch of his argument, Mr Valiotis made various complaints about the magistrate’s reasons and his process of reasoning. It is convenient to identify those complaints in the following sub-paragraphs. In particular, it was submitted that his Honour erred in the following ways:

a) He failed to address what the last few minutes of the CCTV footage of the shift showed, including Mr Hudson bouncing about on the seat and holding his back.

b) He reached his conclusions adverse to Mr Hudson without medical evidence of any injury or incapacity between 2016 and 27 April 2018, other than a minor complaint of neck pain on 21 March 2018, when he was off work because of gallbladder surgery.

c) He concluded, without evidence, that, prior to 27 April 2018, Mr Hudson’s “right shoulder and neck pain had flared up and … he was on a similar pathway to what had happened with his employment with Metro in Tasmania”.

d) He concluded that “[there] may well have been some temporary exacerbation of pain symptoms due to sitting on a defective seat during a [four-hour] shift but sitting on a defective seat was not the cause of them”, yet there were no pain symptoms prior to the time he sat on the bus seat on 27 April.

e) When, in considering whether (on the assumption of a defective seat) Mr Hudson’s employment was a significant contributing factor to his injury, his Honour concluded that any temporary aggravation or exacerbation of symptoms of pain was usurped by underlying constitutional factors and previous medical issues concerning his neck and shoulders, whereas, again, there was an absence of pain symptoms prior to the four-hour shift on 27 April.

f) He accepted the opinion of Mr Jones that Mr Hudson was unfit for work, and that his injuries were not work-related, but did so without any evidence that his injury arose idiopathically and absent Mr Jones considering the symptom-free period of 18 months prior to 27 April.

g) He accepted, without evidence, that Mr Hudson’s “condition is constitutional in its aetiology related to his age and problems stemming from the earlier motor vehicle accident”.

h) He rejected the opinion of Associate Professor Love on the basis that he proceeded on the assumption that the seat was defective.

i) His reasons demonstrate that he failed to consider all of the evidence, including the medical evidence, in determining whether Mr Hudson suffered injuries during the shift on 27 April.

Respondent’s submissions

Notwithstanding that this branch of Mr Valiotis’s argument was based on grounds alleging inadequate reasons and flawed reasoning, Mr Kumar submitted — correctly, as the foregoing sub-paragraphs show — that parts of the argument drifted into complaints that there was no evidence for certain findings, despite the absence of such complaints in any ground of appeal in the amended notice. That said, Mr Kumar addressed all points raised in one way or another. So will I.

I shall not detail all of Mr Kumar’s submissions in response to Mr Valiotis’s submissions set out earlier in the several sub-paragraphs. Suffice it to mention these few points here.

First, Mr Kumar took me through the magistrate’s reasons in some detail to show that, in his submission, it is plain to see what evidence his Honour accepted or rejected and, in consequence, the path by which he arrived at his conclusions on the matters in issue.

Second, he submitted that none of the magistrate’s reasoning could reasonably be said to be flawed in any of the ways asserted.

Finally, Mr Kumar reiterated that, in circumstances where it was open to prefer the opinions of Mr Jones over those of Associate Professor Love, and to make the findings his Honour did on the assumption of a defective seat, it could not be said that any error alleged made the slightest difference to his ultimate finding.

Consideration

In my opinion, the errors alleged under this branch of the argument were not established either.

As to the asserted error recounted in sub-paragraph (a), while the magistrate did not, in the part of his reasons devoted to discussion of the CCTV footage, expressly refer to the last few minutes of the journey, he said that he “did not consider that the available CCTV footage of [Mr Hudson] driving Bus 269 demonstrated that there was anything untoward with the seat or that the seat was bottoming out”. In light of those remarks, and in circumstances where, both in the course of discussion during the closing addresses and elsewhere in his reasons, his Honour mentioned that Mr Hudson could be seen “holding the left side of his back as he exited the bus at the end of the shift”, I am not persuaded that he failed to consider all parts of the CCTV footage in coming to his views. On the contrary, I am satisfied that he considered all of that footage, including that showing the last few minutes of the shift.

As to the alleged errors recounted in sub-paragraphs (b) to (g) inclusive, the following may be said. As Mr Kumar submitted, the complaint that there was no medical evidence of any injury or incapacity between 2016 and 27 April 2018 was answered by the evidence that Mr Hudson had complained of neck and shoulder pain as recently as 21 March 2018. Further, the magistrate was troubled about the way in which Mr Hudson answered questions about what he had said to the doctor on that occasion. On my reading of the transcript of the evidence, his Honour was entitled to form that view. Further, he had the benefit of seeing and hearing the witness, whereas I did not.

The same holds true in respect of Mr Valiotis’s submissions concerning the absence of evidence supporting the magistrate’s conclusions that, prior to 27 April 2018, Mr Hudson’s “right shoulder and neck pain had flared up and … he was on a similar pathway to what had happened with his employment with Metro in Tasmania” and, in the alternative, as to the possible temporary exacerbation of pain symptoms from sitting on a defective seat, which was usurped by constitutional factors. As I have said, there was such evidence. Further, on all of the evidence, his Honour was entitled to find that the circumstances, as he perceived them, were similar to those that occurred in Tasmania. There was also the evidence of Mr Hudson’s complaints of back pain in the clinical notes between 2012 and 2015, and the discussion of the earlier motor vehicle accident.

Given the issues raised in this case, absent any cross-examination of Mr Jones, there could be no error in accepting the opinion expressed in his report, and even less so in view of the magistrate’s failure to accept Mr Hudson’s account of crucial events. Further, for the reasons I have already given, it is not correct to say that Mr Hudson was symptom-free in the 18 months prior to 27 April 2018. In view of Mr Jones’s opinion concerning the age-related features of Mr Hudson’s condition, and his mention of the earlier motor vehicle accident, the use of the term idiopathic in Mr Valiotis’s submissions does not seem to me to be apt in suggesting that the opinion was without evidence. Indeed, the complaint under sub-paragraph (f) all but implicitly acknowledges this point, in that criticism was made of the conclusion that Mr Hudson’s “condition is constitutional in its aetiology related to his age and problems stemming from the earlier motor vehicle accident”. The simple fact is that there was evidence for Mr Jones’s opinion. What to make of that evidence was a matter for the magistrate when considered in its own terms and in the context of the other evidence in the case. And I can detect no error in the way his Honour reasoned in considering that evidence.

As for the alleged error recounted in sub-paragraph (h), the magistrate was entitled to reject the opinion of Associate Professor Love. As his Honour perceived it, and contrary to his finding on the facts, the associate professor gave his opinion on the assumption that the seat was defective. Further, as we have seen, the magistrate was also concerned that Associate Professor Love appeared to believe that the exposure to a defective seat occurred not just during the one four-hour shift but over a longer portion of Mr Hudson’s employment. There was no complaint about this aspect of his Honour’s reasons.

Finally, I do not accept the complaint, recounted in sub-paragraph (i), that the magistrate’s reasons demonstrate that he failed to consider all of the evidence, including the medical evidence, in determining whether Mr Hudson suffered injuries during the shift on 27 April. His Honour’s reasons are comprehensive, thorough and easy to follow. It is plain that he considered all of the evidence, the applicable law and all of the matters in issue in coming to his conclusions.

As Mr Kumar submitted, the magistrate’s reasons are clear in identifying what evidence he accepted or rejected and, in consequence, in disclosing the path by which he arrived at his conclusions on the matters in issue. Further, for the reasons I have given, I am not persuaded that his Honour’s reasoning could reasonably be said to be flawed in any of the ways asserted.

Finally, I accept Mr Kumar’s submission that, in circumstances where it was open to prefer to the opinions of Mr Jones over those of Associate Professor Love, and to make the findings the magistrate did on the assumption of a defective seat, it cannot be said that any other error alleged, if established, could have made the slightest difference to his Honour’s ultimate decision to dismiss the claim.[9]
[9]Again, see, for example, Easton v Gibson [2021] VSC 424 at [168] and the authorities cited at footnotes 19 and 20.

The latter conclusion must be qualified somewhat. This is because an error, say, in concluding a material matter adverse to Mr Hudson without evidence could well vitiate the ultimate decision. But, as I have said, I am not satisfied that his Honour made any error of that or any other vitiating kind.

Conclusion

It follows that, notwithstanding Mr Valiotis’s submissions, which were attractively put, none of the grounds can succeed. The appeal must be dismissed.

Orders

At the hearing of the appeal, counsel accepted that, whichever way my decision went, costs should follow the event. I agree.

Accordingly, I make the following orders:

1) The appeal is dismissed.

2) The appellant is to pay the respondent’s costs of the appeal on a standard basis, to be assessed by the Costs Court in default of agreement.

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[2023] VSC 140

27 March 2023