Josip Kalinic v Acron Engineering Pty Ltd and Victorian WorkCover Authority

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 1089

JOSIP KALINIC	Appellant
	v
ACRON ENGINEERING PTY LTD & VICTORIAN WORKCOVER AUTHORITY	Respondents

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JUDGES	WARREN CJ, OSBORN JA and ROBSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	21 August 2013
DATE OF JUDGMENT	28 November 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 341
JUDGMENT APPEALED FROM	Kalinic v Acron Engineering Pty Ltd [2012] VCC 1052 (Judge K Bourke)

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ACCIDENT COMPENSATION – Appeal – Serious injury application – Substantial wound to lower left leg – Application under s 134AB(16) of the Accident Compensation Act 1985 for leave to bring proceedings in respect of pain and suffering based on serious impairment of body function, serious disfigurement, and permanent severe mental or behavioural disturbance or disorder; and in respect of loss of earning capacity – Application dismissed –Adverse findings made as to appellant’s credit at trial on basis of perceived discrepancies in the appellant’s description of his walking capacity to doctors and in oral evidence and as depicted on surveillance film – Finding of total inconsistency in statements of appellant not open – Credit finding not open on basis stated – Where findings of credit very material to the determination of the application – Appeal allowed against decision in respect of pain and suffering arising from serious impairment of body function and loss of earning capacity – Appeal dismissed against decision in respect of pain and suffering arising from serious disfigurement and permanent severe or behavioural disturbance or disorder – Application remitted for rehearing.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Richards SC with Mr P Montgomery	Victorian Compensation Lawyers
For the Respondents	Mr S O’Meara SC with Ms M Norton	Herbert Geer

WARREN CJ:

The appellant is an injured worker who appeals a refusal to bring proceedings for damages.[1]
[1]Pursuant to s 134 AB (16) of the Accident Compensation Act 1985 (Vic).

A judge of the County Court refused leave centrally on the basis of credit. Her Honour did not accept that the appellant’s pain and suffering met the statutory standard.[2]
[2]See s 134 AB (38)(c).

The judgment of Brooking JA in Mobilio v Balliotis[3] established that an appellate court would not interfere with a judge’s determination under the statute in the absence of specific error, unless satisfied that the determination was plainly wrong or wholly erroneous.[4] Other principles articulated by Brooking JA in Mobilio include:[5]
[3][1998] 3VR 833.
[4]Ibid 837.
[5]Ibid 836-7.

· The applicant under the Accident Compensation Act 1985 (Vic) (‘the Act’) carries the burden.

· The appellant must persuade the appellate court that the primary judge is wrong.

· The appellant’s task is more difficult where the primary judge has had the advantage of seeing and hearing witnesses on contested questions of fact.

· The appellate court should remain mindful that the primary judge’s determination is underpinned by ‘elements of fact, degree and value judgment.’[6]

· The decision of the primary judge will, in the absence of specific error be set aside only if it is ‘manifestly’ or ‘wholly erroneous’.

[6]Ibid 836 citing Fleming v Hutchinson (1991) 62 ALJR 211.

The appellant suffered a difficult work related work injury. The resultant condition was put as a combination of continuing pain and swelling in the left leg and Complex Regional Pain Syndrome Type 1 (CRPS). He asserted difficulty if he stood or walked for an extended period.[7] He encountered difficulty with intrinsic and functional physical activity as well as mobility.[8] He expressed frustration with his ‘restricted physical endurance’.[9] The medico-legal examiners and some of the appellant’s own medicos concluded variously that there were no or insufficient features to diagnose CRPS.[10] Other examiners considered CRPS was the appropriate diagnosis or found signs consistent with that diagnosis.[11] The primary judge carefully considered the medical assessments. None of the examiners, except for Mr Kalinic’s general practitioner, were cross-examined.
[7]Affidavit of appellant [27].
[8]Ibid [21].
[9]Ibid.
[10]These doctors were: Dr Blombery, Mr Battlay, Mr Kierce, Mr Jones, Mr Dooley, Mr Anstee and the appellant’s own general practitioner.
[11]Dr Poppenbeek, Mr Behan and Dr Sutcliffe.

The appellant’s incapacity to walk or stand for any duration was a critical aspect of his case. He gave evidence that his pain was constant and when the pain was bad it was very strong.

The appellant gave evidence through an interpreter. It is apparent from the transcript that he was sometimes confused when questioned as to who said what and when and, also, what he himself said and when about his leg and pain. He gave evidence that as at March 2009 he could not work because of his pain. He said the pain in his leg improved in 2009 but then deteriorated in 2012. The appellant said that when he walked normally and a little bit longer such as ‘some distances’ his leg hurt. He said he could walk for up to an hour slowly. The appellant also said that when he walks for a long time he feels pain. He was asked in cross-examination:

Respondent’s Counsel: Does it hurt the whole time that you’re walking? You said you could walk up to an hour. Does it hurt that whole time?

Plaintiff/Appellant: The more I walk the more it hurts.

Her Honour: So when you start off it is okay or a bit sore or what?

Plaintiff/Appellant: Yes, it increases the pain then I have to sit down.

Respondent’s Counsel: So after how long do you need to sit down?

Plaintiff/Appellant: Just for example to tell you, what I used to do in a distance in half an hour now I take 45 minutes to an hour to cover the same distance.

The appellant said he walked an average of 45 minutes each day but the maximum was one hour.

The appellant was cross-examined about what he told the doctor, Mr Jones, who reported the appellant as saying he could walk for 30 minutes. When cross-examined on the point, the appellant stated he said 45 minutes and that Mr Jones told him to say ‘roughly, approximately’ and he did.

The appellant said he walked up to 45 minutes and sometimes two or three times per day. He said he could stand for about 30 minutes before he gets pain. He said ‘it hurts more after half an hour’. His pain occurred immediately upon standing but he could manage the pain for about 30 minutes.

The appellant said he had difficulty with walking. Before the injury he could walk much faster. He said it takes him up to 15 minutes longer to walk a distance that previously took 30 minutes. He also described his movements inside the house. He spoke of lying down to rest after walking before he resumed his domestic activities. The appellant was shown video footage taken of him over two days by the respondent and asked questions through an interpreter. The film of events on 28 June 2011 showed the appellant walking to the shops, returning and half an hour later starting to walk his dogs. He described his walking speed as slower than he used to walk. The film initially showed the appellant walking for up to two hours at ‘normal pace’. The appellant was firm in his description that he stopped regularly to sit down and rest and was walking more slowly than before his injury. The appellant also said he was told by his doctor to walk as much as possible because of blood pressure and heart problems. A second film dated 29 June 2011 showed the appellant walking and sitting. A third film dated 8 November 2011 was shown.

Under cross-examination it was suggested to the appellant that he could work a job if he was allowed to sit, stand and walk around. He said he did not know if he could concentrate to do such work. He said:

It’s both my physical and mental conditions, because if you have a hurt like I have, either it’s itching or something and it’s non-stop with you, that sort of feeling …

The appellant was shown a third and potentially critical film taken of him in May 2012 by the respondent. He was shown walking four kilometres to the local railways station on his way to see a plastic surgeon. He was then shown travelling by train to Hawthorn station and walking to medical rooms in Kew and repeat the journey on return including walking to and from stations. In a film dated 16 May 2012 the appellant was shown walking four kilometres to the local railway station, catching a train to Parliament Station in the city and then walking for 40 minutes to Fitzroy to see a doctor. The appellant said he knew of no other way to get to the doctor’s rooms, did not know how to catch a tram and did not know the city well. He was then filmed walking from the medical rooms in Fitzroy to Flagstaff station (at the other end of the city) taking 40 minutes, travelling to his local station by train and then walking the 40 minute distance to his home.

In his erudite argument, counsel for the respondent put that the onus of proof lay with the appellant,[12] and that the judgment was an evaluative one for the trial judge to make. Plainly, her Honour had the benefit of observing the appellant in the witness box and also had the entirety of the medical opinions. The respondent’s counsel highlighted the evidence that movements aggravated leg pain and that standing was limited to five minutes but the appellant was filmed standing on a train for 20 minutes. It was submitted that the films revealed mobility, agility, walking and standing which was inconsistent with the appellant’s case (he bearing the burden).
[12]Referring to Mobilo.

There were essentially four grounds of appeal:[13]
[13]These were grounds 1(vii) and (ix), 5, 6 and 13. All other grounds in the Notice of Appeal were abandoned.

1. The judge erred in not finding scarring suffered by the appellant constituted a serious injury.

2. The judge erred in making adverse findings of credit against the appellant.

3. Her Honour in her reasons failed to give sufficient weight to the medical evidence.

4. Her Honour gave inadequate reasons for her decision.

Having read the transcript and viewed the respondent’s films of the appellant, I consider the learned judge erred in making adverse findings of credit against the appellant. I gratefully adopt and agree with the reasons of Osborn JA. I would add some additional observations.

At first blush it may appear wholly inconsistent with a serious injury for the appellant to have constantly walked the distances he did, in particular, the two filmed journeys in to the city. However, that was not the point. The appellant, through an interpreter and the necessary commensurate limitations involved, was quite candid both before and during cross-examination on the films of his walking. He never hid from the fact that he regularly walked for long periods. Importantly there were consistent explanations about his walking. First, he walked pursuant to medical advice (to ameliorate other health problems). Secondly, the walking was painful and required rest during the process. Thirdly, his walking was slower than it had been before the injury. Fourthly, he suffered pain from walking and standing at the end of those activities which forced him to lie down. Fifthly, he responded to the doctors’ questions as he understood them, and he was never asked more nor was any clarification sought.

There is another feature of the appellant’s evidence. It was never put to him that he lied about or exaggerated his injury and its impact. The high water mark of the cross-examination was questions suggesting he walked at a normal pace (which he explained) and that he could perform work if he sat, stood and walked about, which he rejected. In addition, the appellant was never challenged or confronted on his answers in those respects.

With respect, her Honour perpetrated specific error in concluding that the appellant lacked credit. Whilst it is unnecessary to consider the remaining grounds, in my view, the credit finding was so fundamental and damaging to the appellant’s case, remitter is essential but on the confined basis proposed by Osborn JA. For these reasons I consider specific error has been demonstrated. The appeal should be allowed.

OSBORN JA:

The appellant is a 53 year old man who migrated to Australia from Croatia in 1996. He is a fitter and turner by trade and after working in that trade elsewhere commenced work with the first respondent in January 2002.

On 28 August 2007 while the appellant was carrying out his duties at work a large steel plate slipped from a crane clamp and fell approximately 10 centimetres onto his left lower leg, lacerating and crushing the soft tissue.

The appellant was taken to the Western General Hospital where he received emergency surgical treatment. After the initial healing of the wound his leg became reinfected on two occasions and he required readmission to hospital for further treatment in April 2008 and again in November 2008.

He has ultimately been left with a substantial scar on his left lower leg (some 17 centimetres in length) and continues to complain of ongoing pain and swelling in the left ankle, numbness and alteration of sensation in the vicinity of scarring and consequential depression and anxiety.

In oral evidence he described the pain as constant but varying in severity and of a stabbing or needling kind. He takes daily medication for the pain.

In October 2010 the appellant sought leave to bring proceedings for damages pursuant to s 134AB(16) of the Act in respect of pain and suffering and loss of earning capacity arising out of the injury he had suffered.

Insofar as the claim for pain and suffering is concerned, the appellant claimed first that he had suffered a serious impairment of body function in the left leg.[14] Secondly, he claimed that he had suffered permanent serious disfigurement of the left lower leg.[15] Thirdly, he claimed that he was suffering from permanent severe mental or behavioural disturbance or disorder.[16]
[14]Accident Compensation Act 1985 s 134AB(37)(a).
[15]Ibid s 134AB(37)(b).
[16]Ibid s 134AB(37)(c).

One aspect of the consequences complained of by him was the impact upon the use of his leg. In an affidavit of 18 October 2010, he deposed:

As a result of my work injury I also generally experience increased pain and difficulty with intrinsic physical activity such as standing for prolonged periods and walking long distances. I typically notice increased swelling of my left ankle if I stand or walk for an extended period. Using stairs causes me great difficulty. My family and I live in a two storey home and my bedroom is on the second floor. Getting up and down the stairs takes me a long time so I tend to avoid them where I can. When the pain from my work injury is particularly bad I will sleep downstairs as it becomes too difficult for me to climb the stairs.[17]

[17]Affidavit of Josip Kalinic sworn 18 October 2010, [27].

In a second affidavit of 21 May 2012, he said:

Further to paragraphs 25 to 28 of my earlier affidavit, I continue to experience significant problems with my performance of both intrinsic and functional physical activity as well as my mobility as a consequence of my work injury. I try to remain as active as possible but I tend to find that some days are particularly bad and I tend to pay for increased activity on one occasion with more pain afterwards, despite my taking medication and attending for treatment on a regular basis. I am frustrated by my restricted physical endurance and reliability and my general dependence on others to perform tasks that I was previously well able to perform in addition to my normal, physical employment duties.[18]

[18]Affidavit of Josip Kalinic sworn 21 May 2012, [21].

He further said:

As a result of my work injury I tend to drive short distances only and avoid driving for prolonged distances unless it is really necessary as it tends to cause me increased discomfort and pain and I [feel] less sure of myself in reacting to an emergency situation as I tend to be distracted by my pain and I

have noticed that I am generally less able to concentrate due to pain and lack of quality sleep.[19]

[19]Ibid [23].

The appellant returned to work after his initial injuries but his employment was terminated on 17 November 2008 in circumstances which are the subject of controversy between the parties. The appellant claimed that he was unable to find alternative employment by reason of the ongoing consequences of his injury.

Following a hearing in June 2012 her Honour Judge Bourke dismissed the application on 7 September 2012, giving written reasons for doing so. The appellant now appeals that decision.

In the course of her reasons her Honour summarised the medical evidence before her at some length and then noted that the appellant’s pain and suffering case was ultimately put before her on the basis of a combination of continuing pain and swelling in the left leg and CRPS.

Her Honour summarised the competing medical opinions relating to the existence of an organically based pain syndrome as follows:

Whilst in mid 2010, medico legal examiner, Dr Poppenbeek, considered this was the appropriate diagnosis, the plaintiff’s current treater, Dr Blombery, a specialist in the field of CRPS, who has seen the plaintiff on a number of occasions, as recently as March 2012, has resiled somewhat from that diagnosis and was more inclined to diagnose an organically based non specific Pain Syndrome as being the cause of the plaintiff’s ongoing complaints, with some features of CRPS.
Although Mr Behan and Dr Sutcliffe found signs consistent with this diagnosis, other medical examiners, Mr Battlay, Mr Kierce, Mr Jones, Mr Dooley and, most recently Mr Anstee, in May 2012, found no signs of CRPS.
Significantly, no signs of CRPS have been found by the plaintiff’s general practitioner, whose clinical notes largely set out subjective complaints rather than clinical findings. Further, there is no real explanation as to how the swelling found on recent examination relates to the incident injury.
Other examiners have found no abnormality on examination or have had difficulty explaining the level of the plaintiff’s complaints.
On examination in early 2011, Mr Jones thought the plaintiff’s pain was disproportionate to the condition and he was unable to explain the level of the impaired function in the foot, noting the ankle joint and the left leg were clinically normal.
In 2012, Mr Anstee thought there were no physical problems sufficient to account for the plaintiff’s complaints and inactivity and his description of himself as ‘being like under house arrest’. Mr Anstee noted there was no swelling and no inflammation and the injury had substantially recovered.
Mr Kierce diagnosed a laceration of the left lower leg without any impairment other than the fact that the plaintiff had an ugly scar. He thought the plaintiff had recovered from the laceration and regained good function and strength. In Mr Kierce’s view, none of the plaintiff’s symptoms were attributable to functional exaggeration, psychological or psychosomatic matters.
Mr Dooley found no serious underlying damage, noting the large widened laceration had healed but possibly may be subject to further breakdown.
Plastic surgeon, Mr Behan, considered the plaintiff displayed evidence of neural damage and possible neuro formation attached to the scar tissue. However, Mr Jones thought there was no evidence of a neuroma when he examined the plaintiff.
Taking into account all the medical evidence, I accept that the plaintiff continues to suffer some left leg pain and discomfort in the area of the scar. Further, there has been a finding of mildly reduced dorsiflexion by Dr Caric on a number of occasions, and by Dr Poppenbeek and Mr Dooley in 2009, although Mr Kierce found no restriction on examination that year.[20]

[20]Kalinic v Acron Engineering Pty Ltd [2012] VCC 1052 (‘Reasons’), [342]-[351].

Her Honour then addressed the question of the nature of the current consequences of the appellant’s leg condition.[21] In so doing she referred to the observations of Maxwell P in Hadon Engineering Pty Ltd v McKinnon[22] as to a number of potentially relevant evidentiary matters:

(a)what the plaintiff says about the pain (both in Court and to doctors);
(b)what the plaintiff does about the pain (e.g. medication, rest, seeking medical treatment);
(c)what doctors say about the extent and the intensity of the plaintiff’s pain; …[23]

[21]Reasons [352].

[22][2010] VSCA 69.

[23]Reasons [354].

Her Honour then stated that the appellant’s credit was directly in issue in this case and went on to find that she did not accept that the appellant had the continuing pain and significant restrictions that he had both deposed to in evidence and described to those who had examined him for medical purposes. It followed that her Honour was not satisfied that the pain and suffering consequences of the appellant’s injury or his loss of earning capacity consequence were, when judged by comparison with other cases in the range of possible impairments of bodily function, fairly described as being more than significant or marked, and as being at least very considerable.[24]
[24]Accident Compensation Act 1985 s 134AB(38)(c).

In so finding, her Honour was persuaded in particular that surveillance video footage showing the appellant walking relatively extended distances was totally inconsistent with the description he had given of his ongoing disability to examining doctors. Her Honour found as follows:

I accept the submission by Counsel for the defendants that the level of activity shown and the plaintiff’s ability to engage in walking, particularly on 16 May 2011, was totally inconsistent with the picture painted by him to doctors of constant pain and a very restricted lifestyle – “like house arrest,” as he told Mr Anstee.
Prior to cross examination, the plaintiff had told doctors his walking tolerance was thirty minutes, after which he had to rest. The plaintiff had never told any doctor he could walk forty five minutes or so a couple of times, as he was later shown doing on film. Thus examiners such as Mr Jones and Dr Sutcliffe were under a misapprehension as to the plaintiff’s walking tolerance when expressing their views as to the plaintiff’s capacity.
There was not just one isolated occasion on which the plaintiff was engaged in prolonged walking without apparent difficulty. There was film of extended duration on several dates.
On 29 June 2011, the plaintiff was filmed walking for nearly an hour with his dog. Although he started somewhat slowly, the plaintiff at times walked at a brisk pace and was not shown to have any restriction.
The plaintiff was shown walking with an elderly friend for about forty minutes on 8 November 2011. The plaintiff displayed no restriction and at times, was striding out on what appeared to be a fitness walk as he was wearing his runners and shorts and the compression bandage.
Some of the May 2012 footage showed more prolonged walking, again without apparent difficulty or restriction.
On 10 May 2012, the plaintiff agreed he walked four kilometres from his home to Sunshine Railway Station and then to Mr Anstee’s rooms, twenty five minutes away. He agreed he then walked back to Hawthorn Station and caught the train. He may have then walked home, as he sometimes walked home from the station.
On 16 May 2012, the plaintiff went on a short walk in the morning. He left home at 9.16 am to attend an appointment with Mr Jones in Fitzroy – a trip which involved walking four kilometres from his home to Sunshine Railway Station, standing on the train for twenty to twenty five minutes and then walking another forty five minutes or so to Mr Jones’ rooms. After the appointment, the plaintiff then walked back to Flagstaff Station, travelled by train on the return trip and then walked the four kilometres home from the station, via the shopping centre, arriving home at 2.12 pm.
I do not accept the plaintiff’s explanation that he walked much of the way to this appointment because he did not know how to catch a tram, when clearly he could catch a train and he also could drive to the appointment, as he has a drivers licence.
Whilst it was true that the plaintiff had been advised by Dr Caric to walk and the plaintiff was never shown walking for more than an hour at a time, the plaintiff walked an extraordinary distance on 16 May 2012, even for a person without a leg problem.
Significantly, the plaintiff was observed to walk in a normal manner and was not seen to experience any pain or restriction when walking these distances. Nor was any problem seen when walking from the station after standing in one spot on the train – a problem he has told doctors would limit his ability to work.
Whilst the plaintiff suffers some discomfort and numbness in the area of the scar, having seen the film, I do not accept that he has constant pain and the significant restriction he has deposed to and described to examiners.
I am not satisfied that leg pain or the scarring affects the plaintiff’s mobility in any significant way.
Given my view of the surveillance film, lay evidence supporting the level of restriction deposed to by the plaintiff must therefore be viewed with some caution.[25]

[25]Reasons [358]-[371].

Whilst senior counsel for the respondents submitted on appeal that her Honour’s findings as to credit might be supported on the basis of a wide number of incidental matters of history taken by doctors and recorded in reports including, for example, exaggeration or inaccuracy in description of skin colour, her Honour’s findings were specifically directed to matters seen in the video evidence and in particular the appellant’s capacity to walk. Paragraphs [359]-[368] of the Reasons elaborate in some material detail the observations of walking which her Honour regarded as significant. It is plain that it was this activity which her Honour found ‘totally inconsistent’ with the histories the appellant had given doctors and with his evidence in chief prior to the showing of the videos.

Ground 1(ix) of appeal takes issue with her Honour’s adverse finding as to the appellant’s credit. The appellant submits that the following statements made by her Honour in the course of her reasons were contrary to the evidence:

· the appellant’s ability to walk as demonstrated on video was totally inconsistent with the picture painted to the examining doctors of constant pain and a very restricted lifestyle – ‘like house arrest’ as he told Mr Anstee;

· the appellant had told doctors his walking tolerance was 30 minutes after which he had to rest; and

· the appellant had never told any doctor he could walk 45 minutes or so a couple of times in a day as he was shown doing on video.

Whilst the matter is not entirely free from difficulty, I have ultimately come to the view that her Honour’s reasoning does materially overstate the alleged evidentiary inconsistencies which she identified and which were plainly a material basis of her conclusions.

First, it must be noted that the complaints of limited walking capacity in issue were made by a man whose first language is not English and who generally required an interpreter.

Secondly, they were complaints at different points in time and some fluctuation in description of symptoms (particularly in a man suffering from some depression) would not necessarily discredit the appellant’s evidence at trial.

Thirdly, the evidence of the appellant’s general practitioner and the appellant was that the general practitioner advised the appellant to walk at least half an hour a day at least five days a week because of his cardiac condition.

Fourthly, the appellant’s own evidence before he was shown the surveillance videos was that he could walk for one hour slowly, that he walked most days for 45 minutes and that he walked two to three times a day for 45 minutes when he could. He also agreed that he could mow the lawn and do the shopping. The main focus of his complaints was pain when standing or sitting for extended periods of time.

Fifthly, whilst it is true that the appellant told Dr Sutcliffe on 30 November 2011 that his walking tolerance was 30 minutes[26] and Mr Jones on 3 February 2011 (in the specifically noted absence of an interpreter) that his walking tolerance was 30 minutes, nevertheless on 16 May 2012 the appellant told Mr Jones (with the help of an interpreter) that his capacity for walking varied but that he was able to walk for up to an hour. He also told Mr Kierce on 12 May 2009 (whom he saw with an interpreter) that his leg would tend to swell after walking for an hour.
[26]It is not clear whether Dr Sutcliffe had the benefit of an interpreter.

Sixthly, Dr Poppenbeek, an occupational physician (like Dr Sutcliffe) who saw the appellant on behalf of the respondents in July 2010, made the same diagnosis as Dr Sutcliffe with respect to CRPS. There is no suggestion that he was given a false history in any way. It is difficult in these circumstances to materially discount Dr Sutcliffe’s opinion (who was not cross-examined on the point) for the reason suggested. It follows that neither the first statement to Mr Jones (which was superseded by the second statement) nor that of Dr Sutcliffe can be regarded as having much clinical significance. Mr Jones’s opinion was adverse to the appellant in any event.

Seventhly, on 10 May 2012 the appellant specifically told Mr Anstee (to whom the judge makes reference in relatively dramatic terms) that he took a daughter to and from school and he took his son’s dog for a walk. The reference to ‘house arrest’ quoted must be understood in the context of the immediately preceding reference to regular walking and outings.

Eighthly, it was not demonstrated that the opinion of the appellant’s treating vascular physician, Dr Blombery, was founded in any way on false history. Dr Blombery saw the appellant on 16 occasions for the purpose of treatment between September 2009 and March 2012. He reported a final opinion on 10 April 2012 as follows:

Mr Kalinic has ongoing features of complex regional pain syndrome type 1 affecting his left leg complicating the injury sustained in the course of his employment when a steel plate fell on him on 28^th August, 2007. He has fairly minor autonomic disturbance now and I think a lot of his pain is in the nature of a more non-specific pain syndrome where there is sensitisation of pain nerve pathways, both in the periphery as well as in the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful.
Such a pain syndrome is an organic disorder of pain nerve pathways as is complex regional pain syndrome type 1.
In regard to your particular questions:
1.Injuries – laceration to the left leg and crush injury complicated by complex regional pain syndrome type 1 and a non-specific pain syndrome.
2.Aetiology of injuries – the accident that occurred in the course of his employment was the cause of the injuries.
3.Quantification of the respective contributions of the physical to the pain and suffering being experienced – it is my opinion that all of his pain and suffering is due to the physical and organic problems that he has with his pain nerves.
4.Quantification of the respective contributions of the physical to loss of earning capacity – it is my opinion that all of his loss of earning capacity is secondary to the organic disorder affecting his pain nerve pathways.
5.Current capacity for full-time unrestricted manual or pre-injury employment – it is my opinion that he has no capacity for his pre-injury employment either now or in the future.
6.Physical effects of his serious injuries upon ability to remain in employment – it is my opinion that his serious injuries prevent him from being able to remain in employment.
7.Physical effects of serious injuries upon ability to engage in social, recreational or domestic activities – these injuries have a significant effect in terms of his social, recreational and domestic activities.
8.Prognosis for each of his work related injuries – see above. The injuries are going to have a continuing effect upon his capacity for work and will continue to interfere with his enjoyment of life.
9.Confirmation that these expressed findings are made in consideration of his physical injury considered separately from any psychological contribution – I confirm that the above findings are made in consideration of his physical injury considered in isolation.[27]

[27]Report of Dr Peter A Blombery, Consultant Physician (Vascular Disease), dated 10 April 2012 pages 4 and 5.

Ninthly, the appellant’s general practitioner’s file contains a number of references to pain or parasthesia when walking long distances.

Tenthly, the video does demonstrate apparent limitations in normal gait consistent with pain for substantial periods of time.

Eleventhly, Mr Jones notes that the scar alone could affect the appellant’s ability to walk long distances.

Twelfthly, the failure to not tell doctors that he walked several times a day on occasion is hardly surprising in the absence of direct enquiry through the interpreter.

Thirteenthly, the appellant’s evidence was not that he could not catch a tram[28] but that he did not know his way around on the trams between the city and Smith Street. This is again hardly surprising.
[28]See Reasons [366].

Fourteenthly, I do not accept that the distances walked in discrete episodes on 16 May 2012 were extraordinary ‘even for a person without a leg problem’.

Fifteenthly, the alleged total inconsistency was not squarely put to the appellant in cross-examination. In particular, it was never put to him that he lied or exaggerated the consequences of his injury.

I accept that as the respondents submit this Court should not interfere with the trial judge’s findings of fact unless they were infected by specific error or plainly wrong and that the ultimate questions in issue were ones of fact and degree upon which the appellant bore the onus.[29] Further, this Court must respect the advantage that her Honour enjoyed in observing the appellant give his oral evidence and in particular observing him during cross-examination.[30] Nevertheless, when the matters I have listed above are taken together I am persuaded that her Honour’s findings based on this specific aspect of the evidence were perverse in the sense that they were plainly against the weight of the evidence and there was no ‘total’ or indeed material inconsistency demonstrated between the appellant’s description of his capacity to walk in evidence prior to the videos or in discussion with medical examiners on the one hand and what was shown in the videos on the other hand. Her Honour’s finding went beyond the evidence.[31]
[29]Mobilio v Balliotis [1998] 3 VR 833, 836; John Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Phelan v Transport Accident Commission [2013] VSCA 306.
[30]Fox v Percy (2003) 214 CLR 118, 124-129 [20]-[31] (Gleeson CJ, Gummow and Kirby JJ).
[31]Cf Todorovic v Moussa [2001] NSWCA 419, [24] (Beazley JA).

In turn, it is clear that the credit of the appellant based on this aspect of the evidence was very material both to her Honour’s rejection of his evidence and her rejection of the medical evidence upon which the appellant relied. It follows that in my view the appeal should be allowed.[32]
[32]Hawkins v DHL Express (Aust) Pty Ltd [2013] VSCA 26, [79], citing Wilson v County Court (Vic) (2006) 14 VR 461, 473 [49]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353 (Mason CJ), 384 (Toohey and Gaudron JJ).

In so concluding I am not to be taken as suggesting that the video evidence of activities was other than relevant to her Honour’s considerations. Indeed I accept that the video evidence of activities observed might be regarded as materially relevant to the critical evaluation of the appellant’s case. It is the credit finding of total inconsistency with prior statements of the appellant which was in my view not open to the judge.

It is unnecessary to deal with the further grounds of appeal.[33]
[33]The other grounds of appeal argued were:
1.…
iii)The Honourable Trial Judge failed to take into account or properly take into account all relevant matters supported by evidence and the weight of evidence;
…
5. That the Honourable Trial Judge erred in failing to find that the pain and suffering consequences suffered by the Appellant when judged in comparison with other cases in the range of possible impairments were more than significant or marked and at least very considerable.
6.That the Honourable Trial Judge fell into error having regard to the test to be applied by the Court in determining whether the Appellant's work injury constituted permanent serious disfigurement within the meaning of the Accident Compensation Act 1985 and/or failed to apply or properly apply the test required to determine whether the Appellant's work injury constituted permanent serious disfigurement.
…
13. That the Honourable Trial Judge failed to give adequate reasons to explain her findings of fact.

It is not however possible for this Court to determine the ultimate issues in the case itself. More particularly the extent of the consequences of the appellant’s injury in terms of pain and suffering and loss of earning capacity involve difficult multi-factorial judgments which are further complicated by the fact that none of the specialist medical reports were amplified by way of oral evidence or clarified by cross-examination. The matter cannot be determined without addressing issues of credit and of fact and degree in respect of which different aspects of the appellant’s oral evidence are very much in issue. In fairness to the parties these issues will have to be resolved by a further hearing.

This said, having viewed the appellant’s scarring, I have reached the view that it was plainly open to the trial judge to reject the claim made in respect of disfigurement pursuant to s 134AB(37)(b) and that she was correct to do so.

Likewise, it was plainly open to the trial judge to reject the claim in respect of permanent severe mental disturbance pursuant to s 134AB(37)(c). Her Honour held that the appellant suffers from an adjustment disorder with mixed anxiety and depressed mood, having taking into account matters such as the appellant’s ability to socialise and engage in the wider community, she was not satisfied that any psychiatric impairment meets the test of ‘severe’. Further, her Honour did not accept that the appellant was unable to work on psychiatric grounds. These conclusions accorded with the weight of the evidence and were not challenged in argument on appeal.

Accordingly, only the application for leave under s 134AB(16) in respect of pain and suffering constituted by permanent serious impairment or loss of a bodily

function,[34] and in respect of pecuniary loss should be remitted to the County Court for further hearing.

[34]Accident Compensation Act 1985 s 134AB(37).

ROBSON AJA:

The Proceeding

By an originating motion dated 25 February 2011, the appellant sought leave pursuant to s 134AB(16)(b) of the Act to commence proceedings to recover damages for injuries sustained to his left lower extremity, disfigurement of the left lower extremity and severe long-term mental or severe behavioural disturbance or disorder (under clauses (a), (b) and (c), respectively, of the definition of ‘serious injury‘ in s 134AB(37) of the Act). The appellant contends that these injuries arose out of an industrial accident on or about 28 August 2007. The appellant sought leave to commence a claim for damages arising from both pain and suffering and loss of earning capacity. The application was heard before a judge of the County Court on 20 and 21 June 2012.

On 7 September 2012, the trial judge dismissed the application to commence common law proceedings pursuant to s 134AB(16)(b) of the Act, and ordered that the appellant pay the respondents‘ costs of the proceedings.[35]
[35]Reasons.

The appellant appeals the decision of the learned trial judge on the grounds set out in the notice of appeal dated 21 September 2012.

Summary of facts

The appellant was born in Bosnia on 15 May 1961. He was 51 years of age at the time of the hearing of the serious injury application. In Bosnia, the appellant

completed a fitting and turning apprenticeship and worked as a fitter and turner. He migrated to Australia in 1996.

In January 2002, the appellant began employment with the first respondent as a fitter and turner. On or about 28 August 2007, during the course of the appellant’s employment with the first respondent, a large stainless steel metal plate fell from height of about 10 centimetres and landed on the appellant’s left leg causing injury.

Following the injury, the appellant underwent surgery on his left leg at the Western Hospital. In about January 2008, the appellant returned to work, initially on modified duties and reduced hours. In April 2008, he returned to normal duties; however, shortly thereafter, he was further admitted to the Western Hospital following infection in his left leg.

Following further treatment, the appellant returned to work until November 2008. In November 2008, the appellant was admitted to the Western Hospital with a further infection in his left leg. The appellant has not worked since November 2008, although there was a dispute between him and the first respondent as to whether he resigned or was told not to return to work.

Following the onset of his work injury, the appellant has consistently complained of pain and restriction in his left leg, as well as disfigurement of his leg. He has consulted various doctors for treatment including Dr Vizec, Dr Carie, Dr Blombery and Dr Rahmanovic, and he has undergone an epidural clonidine morphine infusion and lignocaine ketamine infusion and has been prescribed for treatment medications including Lyrica, Endep, Panadeine Forte, and Panadeine.

At the time of the serious injury application, the appellant alleged that in addition to being unable to work, a number of his activities had been affected as a consequence of his impairment arising from the industrial accident in question, such as: self care, sport and hobbies, participating in household chores, social and family life, sleep, and activities of daily living.

In relation to those alleged consequences, the respondents asserted that they were inconsistent with surveillance footage obtained of the appellant, and that they had been exaggerated by the appellant. The trial judge ultimately accepted the respondents’ submission.

The relevant statutory provisions

Section 134AB(37) of the Act provides that in section 134AB:

serious injury means—
(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c)permanent severe mental or permanent severe behavioural disturbance or disorder; or

(d) loss of a foetus.

Under s 134AB(19)(a), for the purposes of an application under s 134AB(16) a court must not give leave unless it is satisfied on the balance of probabilities that the injury is a serious injury.

The appellant alleged that his injury was serious under each of clause (a), (b) and (c) of the definition of ‘serious injury‘ in s 134AB(37). That sub-section provides:

(b)       the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i)        pain and suffering; or
(ii)       loss of earning capacity—

when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;

Relevantly, s 134AB(38) provides that for the purposes of the assessment of serious injury in accordance with subsection (16);

(b)       the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i)        pain and suffering; or
(ii)       loss of earning capacity—

when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c) an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable; … .

The trial judge’s findings

The trial judge said that it was not in dispute that the appellant suffered a compensable injury to his left leg involving a lacerating injury to his left calf, following which there were two significant infections later in 2008.

Her Honour said that while the initial injury was not in issue, there was a dispute as to the current diagnosis of the appellant’s left leg condition and whether any ongoing leg problems are organically based.

The judge said that in opening, counsel for the appellant advised that the principal diagnosis relied upon was CRPS. However, in closing the judge said that there was a somewhat different emphasis in the application, that the appellant had sustained a permanent serious impairment or loss of a body function, with it being submitted that the injury was the sequelae of the pain and swelling, combined with a degree of CRPS.

The trial judge summarised the findings of the various medical experts on whether or not the appellant suffered from CRPS including the evidence of Dr Blombery who diagnosed the appellant’s injuries as including CRPS.

The judge referred to several opinions where the medical examiner suggested that the alleged pain suffered by the appellant was disproportionate to the appellant’s condition and the examiner was unable to explain the level of the impaired function in the foot.

Her Honour concluded that taking into account all the medical evidence, she accepted that the appellant continued to suffer some left leg pain and discomfort in the area of the scar. Her Honour also accepted that there had been a finding of mildly reduced dorsiflexion by Dr Caric on a number of occasions, and by Dr Poppenbeek and Mr Dooley in 2009, although Mr Kierce found no restriction on examination that year.

The judge held that taking into account all of the medical evidence, that although at times there may have been signs consistent with CRPS, she was not satisfied that the appellant presently suffered from that condition.

Consequences of the appellant’s leg condition

Her Honour then considered the consequences of the appellant’s leg condition. Her Honour noted the importance of the appellant’s credit on this issue. Her Honour’s finding on credit is the primary ground of appeal. Accordingly, it is convenient to set out her findings in this area in some detail. The judge said:

[352] What then are the consequences of the plaintiff’s left leg condition?
[353]As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 12:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

Further, at paragraph 11, President Maxwell said the evidentiary basis of the pain assessment would ordinarily comprise the following:
(a)what the plaintiff says about the pain (both in Court and to doctors);
(b)what the plaintiff does about the pain (e.g. medication, rest, seeking medical treatment);
(c)what doctors say about the extent and the intensity of the plaintiff’s pain; and
(d)what the objective evidence shows about the disabling effect of the pain.

[355] The plaintiff’s credit was directly in issue in this case.
[356]The plaintiff has told doctors that since the incident, his life has been one of constant leg pain and resultant inactivity. In particular, he described increased leg pain when walking for in excess of half an hour, such that he then had to sit down and rest.
[357]Counsel for the defendant relied upon surveillance film shown of the plaintiff on a number of occasions walking long distances and socialising with friends.
[358]I accept the submission by Counsel for the defendants that the level of activity shown and the plaintiff’s ability to engage in walking, particularly on 16 May 2011, was totally inconsistent with the picture painted by him to doctors of constant pain and a very restricted lifestyle – “like house arrest,” as he told Mr Anstee.
[359]Prior to cross examination, the plaintiff had told doctors his walking tolerance was thirty minutes, after which he had to rest. The plaintiff had never told any doctor he could walk forty five minutes or so a couple of times, as he was later shown doing on film. Thus examiners such as Mr Jones and Dr Sutcliffe were under a misapprehension as to the plaintiff’s walking tolerance when expressing their views as to the plaintiff’s capacity.
[360]There was not just one isolated occasion on which the plaintiff was engaged in prolonged walking without apparent difficulty. There was film of extended duration on several dates.
[361]On 29 June 2011, the plaintiff was filmed walking for nearly an hour with his dog. Although he started somewhat slowly, the plaintiff at times walked at a brisk pace and was not shown to have any restriction.
[362]The plaintiff was shown walking with an elderly friend for about forty minutes on 8 November 2011. The plaintiff displayed no restriction and at times, was striding out on what appeared to be a fitness walk as he was wearing his runners and shorts and the compression bandage.
[363]Some of the May 2012 footage showed more prolonged walking, again without apparent difficulty or restriction.
[364]On 10 May 2012, the plaintiff agreed he walked four kilometres from his home to Sunshine Railway Station and then to Mr Anstee’s rooms, twenty five minutes away. He agreed he then walked back to Hawthorn Station and caught the train. He may have then walked home, as he sometimes walked home from the station.
[365]On 16 May 2012, the plaintiff went on a short walk in the morning. He left home at 9.16 am to attend an appointment with Mr Jones in Fitzroy – a trip which involved walking four kilometres from his home to Sunshine Railway Station, standing on the train for twenty to twenty five minutes and then walking another forty five minutes or so to Mr Jones’ rooms. After the appointment, the plaintiff then walked back to Flagstaff Station, travelled by train on the return trip and then walked the four kilometres home from the station, via the shopping centre, arriving home at 2.12 pm.
[366]I do not accept the plaintiff’s explanation that he walked much of the way to this appointment because he did not know how to catch a tram, when clearly he could catch a train and he also could drive to the appointment, as he has a drivers licence.
[367]Whilst it was true that the plaintiff had been advised by Dr Caric to walk and the plaintiff was never shown walking for more than an hour at a time, the plaintiff walked an extraordinary distance on 16 May 2012, even for a person without a leg problem.
[368]Significantly, the plaintiff was observed to walk in a normal manner and was not seen to experience any pain or restriction when walking these distances. Nor was any problem seen when walking from the station after standing in one spot on the train – a problem he has told doctors would limit his ability to work.
[369]Whilst the plaintiff suffers some discomfort and numbness in the area of the scar, having seen the film, I do not accept that he has constant pain and the significant restriction he has deposed to and described to examiners.
[370]I am not satisfied that leg pain or the scarring affects the plaintiff’s mobility in any significant way.
[371]Given my view of the surveillance film, lay evidence supporting the level of restriction deposed to by the plaintiff must therefore be viewed with some caution.
[372]Further, examining doctors have relied on the restrictions described by the plaintiff in forming their opinions.
[373]I am mindful of what was said by the Court of Appeal in Dordev v Cowan [2006] VSCA 254 in relation to the plaintiff’s credit in this type of case. As Chernov JA said at paragraph 14 of his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
[374]Accordingly, in this case what appear on their face to be medico legal opinions supportive of the plaintiff’s claim, such as those of Dr Sutcliffe and Mr Jones, must be looked at in the light of my views as to the plaintiff’s credit.
[375]Having been told by the plaintiff that he could only walk for thirty minutes, Dr Sutcliffe concluded the plaintiff had a substantial limitation of activities and no capacity for suitable employment.
[376]Mr Jones thought the plaintiff had a permanent incapacity for work involving prolonged walking or squatting, having been given a similar version of the plaintiff’s walking and standing tolerance.
[377]Given the level of activity and free movement shown on film, I am not satisfied that the plaintiff has problems with mobility that significantly interfere with his work capacity and his ability to carry out his trade.[36]

[36]Reasons [352]-[377].

As is apparent from her Honour’s remarks in para [371], her Honour did not wholly reject the appellant’s evidence regarding the level of restriction caused by his injury, but rather said that his evidence on that issue must be ‘viewed with some caution’, given her view of the surveillance film.

Capacity to work

Her Honour said that what transpired on the appellant’s return to work after the incident was also relevant to the issue as to the consequences of the leg injury on the appellant’s capacity to work.

After considering the various medical opinions on the appellant’s capacity for work, the judge concluded that in her view, the appellant had a capacity for full time modified duties. The judge said that she did not accept that the appellant had problems with prolonged sitting or standing and considered that the appellant had the capacity to undertake all but the heaviest aspects of his trade or other manual work.

After considering this evidence in some detail, the judge concluded that she was not satisfied that the appellant did not have a capacity for suitable employment resulting from his leg condition, as Dr Sutcliffe and Dr Blombery suggested. The judge said that in such circumstances, she was not satisfied that any interference with the appellant’s work could be described as more than significant or marked or at least very considerable (referring to the statutory requirement in s 134AB (38)(c)).

Risk of further infection

The judge then dealt with a submission that the risk of further infection was such that the appellant was unable to return to work. After canvassing the medical opinions on this issue, the judge concluded that she was not satisfied that there was a likelihood of further infection such that it would preclude the appellant returning to work.[37]
[37]Reasons [406].

The judge found that there was little medical support for the view that the appellant required further treatment.

Pain

Her Honour found that whilst the appellant was being prescribed Lyrica for neuropathic pain and he also took Panadol and Panadeine Forte for pain relief, there was not further treatment suggested by Dr Blombery or any other practitioner save for continuing to wear the bandage and use mild analgesics.[38]
[38]Reasons [411].

Her Honour was not satisfied that the appellant suffered constant pain at the level that he described. Further, the judge accepted, based on the medical evidence, that the appellant did not have sufficient physical problems to account for his claimed problems.

Consequences to the worker

The judge then returned to the ‘consequences to the worker’ as referred to in s 134AB(38)(b) and concluded that taking into account all the evidence, she was not satisfied that the impairment to the appellant’s left leg had consequences which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being ‘more than significant’ or ‘marked’ and as being ‘at least very considerable.’

The judge said that as the appellant had failed to satisfy the narrative requirements, she was not required to consider the factors set out in s 134AB(38)(e)(i) and (ii) of the Act and the issues or retraining and rehabilitation pursuant to subsection (g) therefore did not arise.[39]
[39]Reasons [413].

Accordingly, the judge dismissed the application insofar as it relied on sub-section (a) of the definition of ‘serious injury’.

Psychiatric

The judge then turned to the application pursuant to subsection (c) of the definition of ‘serious injury’ that claimed that the appellant had suffered a permanent severe mental disorder.

Her Honour accepted that the appellant was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood as diagnosed by several of the medical experts. After reviewing the evidence of the medical experts on this issue, however, the judge held that she was not satisfied that there was an incapacity for work on psychiatric grounds. The judge said that taking into account the appellant’s ability to socialise and engage in the wider community, the lack of psychiatric referral and treatment, save for counselling from mid 2010 and the prescription of antidepressant medication in late 2009, and the expert opinion as to his condition and prognosis, her Honour was not satisfied that any psychiatric impairment met the higher test of ‘severe’.

Accordingly, the judge dismissed the appellant’s application insofar as it relied on subsection (c) of the definition of ‘serious injury’.

Scarring

The trial judge then turned to the appellant’s application under subsection (b) of the serious injury definition relating to permanent serious disfigurement.

The judge described the scar as clearly ugly and large and that it covered an area of 17 by two centimetres and had been described by Mr Behan as apparent over the peroneal compartment with evidence of widening and scar separation throughout its length. Her Honour noted that the scarring, though extensive, was now well healed.

The judge concluded that whilst the scar was unsightly and causing the appellant some discomfort, when judged by comparison with other cases in the range of possible impairments, she was not satisfied that the scarring may be fairly described, at the date of the hearing, as being ‘more than significant’ or ‘marked’ and as being ‘at least very considerable’ as required in sub-s (38(c)).

Accordingly, the judge dismissed the application insofar as it relied on sub-s (b) of the definition of ‘serious injury.’

Grounds of appeal

On the hearing of the appeal, the appellant limited the extensive grounds of appeal and relied on five grounds alleging specific errors on the part of the trial judge.

Ground 1(ix)
The judge erred in making adverse findings as to the appellant’s credit

The appellant submits that the judge’s findings on credit misstated the evidence. As indicated above, the trial judge said that prior to cross-examination, the appellant had told doctors that his walking tolerance was thirty minutes after which he had to rest. This was true. The appellant argues, however, that although the appellant told Dr Sutcliffe on 30 November 2011 that his walking was limited to 30 minutes and told Mr Jones on 3 February that his ‘leg pain symptoms limit him to walk 30 minutes and standing for 30 minutes,’ on 16 May 2012 (the day of the surveillance referred to above in Her Honour’s judgement) the appellant told Mr Jones that his capacity for walking varied but that he was able to walk for up to an hour but his standing was limited to five minutes in one position. The appellant also told Mr Kierce on 12 May 2009 that his leg would tend to swell after walking for up to an hour.

The appellant contends that, accordingly, the judge erred in finding that the appellant ‘had never told any doctor he could walk for forty five minutes or so a couple of times, as he was later shown doing on film.’

In my view, the judge did not err. In making this observation, her Honour was obviously referring to the surveillance film of 16 May 2012. In that film, the appellant is shown walking and standing over a period from 9:16 am, when he left his home in Sunshine, until he returned home at 2:12 pm (some five hours later). In that footage, the appellant walked four kilometres from his home to the Sunshine Railway Station, stood on a train for twenty to twenty-five minutes (contrary to what he told Mr Jones that very day) that travelled to the city and then walked another forty-five minutes or so to Mr Jones’s rooms in Smith Street, Fitzroy from Parliament Railway Station. The appellant then walked back from Smith Street, Fitzroy to the Flagstaff Railway Station after walking through the Victoria Market, travelled by train on the return trip and then walked four kilometres from the Sunshine Railway Station to his home via a shopping centre.

In my opinion, the finding that the appellant had not told any doctor that he could walk for forty-five minutes or so a couple of times, as he was shown doing on film (as described above), is not contradicted by the fact that the appellant had told two doctors that he could walk for up to an hour. The episode referred to by the trial judge (when her Honour refers to ‘as shown doing on the film’) demonstrates that the appellant’s ability to walk and stand was well in excess of that which he had disclosed to Mr Jones and Mr Kierce. On 16 May 2012, the appellant told Mr Jones that his standing was limited to five minutes in one position whereas previously on that day he was filmed standing in the one position on the train from Sunshine to the City for some twenty to twenty five minutes.

The evidence of the appellant under cross-examination and prior to the surveillance film of his walking being shown, is also relevant to the trial judge’s assessment of the appellant’s credit. The appellant said that he could ‘walk up to an hour very slowly.’ He was then cross examined as follows:

Ms Britbart: Does it hurt the whole time that you’re walking? You said that you could walk up to an hour. Does it hurt that whole time? --- The more I walk the more it hurts.
Her Honour: So when you start off is it okay or a bit sore or what? --- Yes, it increases the pain then I have to sit down.
Ms Britbart: So after how long do you need to sit down? --- Just for example to tell you, what I used to do in a distance in half an hour now I take 45 minutes to an hour to cover the same distance.
So you’re slow because of leg pain? --- Because I’m walking much slower now.
Do you walk with a limp? Do you have a limp when you walk? --- Sometimes it’s normal, sometimes its not.
So if you have more and more pain as you walk more, do you start to limp more towards the end of the hour when you walk? --- I’m limping more when I walk, more, yes.
Do your walk every day? --- (Direct) Yes.
On average each day do you walk for a whole hour or more than or less than that? --- (Through interpreter) An average is 45 minutes, but the maximum is one hour.

That evidence painted a picture of the appellant walking up to a maximum of one hour a day, walking slowly and with limping as time went on. In my view, the surveillance film evidence suggested otherwise. The surveillance film does not show the appellant walking slowly or limping as time went on but shows a strong and vigorous walking action over a considerable period of time.

The judge addressed the relevant evidence in paras [363]-[368] of her Honour’s judgement. The appellant has not satisfied me that the judge erred by misstating the evidence. In my opinion, the evidence disclosed that that examiners such as Mr Jones and Dr Sutcliffe would have been under a misapprehension as to the appellant’s walking tolerance when expressing their views on the appellant’s capacity. In my opinion, given the level of activity and free movement shown on film taking of the appellant on 16 May 2012 and the other footage tendered in evidence, that no error has been shown in the judge’s finding that she was not satisfied that the appellant had problems with mobility that significantly interfered with his work capacity and his ability to carry out his trade.

I have viewed the DVDs tendered in evidence. Her Honour’s finding that the distance the appellant walked on 16 May was extraordinary even for a person without a leg problem has not been shown to be in error. As her Honour found, the appellant had walked four kilometres from his home to the Sunshine railway station, stood on the train for 20 to 25 minutes (contrary to what he told Mr Jones he could do some hour or so later), and then walked from Parliament Station to Mr Jones’s rooms in Smith Street, Fitzroy, and then returned walking to Flagstaff Station, and then walked the four kilometres home from the station, via the shopping centre. In my view, the distance walked was extraordinary even for persons without a leg problem.

The appellant has not satisfied me that the judge’s findings on the appellant’s credit were in error. On the contrary, in my opinion, her Honour’s findings of what occurred on 16 May (referred to above) were correct. Her Honour did not accept the appellant’s explanation that he walked much of the way to the appointment with Mr Jones on 16 May because he did not know how to catch a tram. I am not satisfied that her Honour erred in making this finding.

Her Honour had the significant advantage in assessing the appellant’s credibility of his presence in court. The High Court has cautioned appellate courts in substituting their views on credit when they have not had the advantage of seeing the witness give evidence.[40]
[40]Fox v Percy (2003) 214 CLR 118, 124-129 (Gleeson CJ, Gummow and Kirby JJ).

The appellant says that the judge erred in finding that the level of activity of the appellant displayed on 16 May 2011 was ‘inconsistent with the picture painted

by him to doctors of constant pain and a very restricted lifestyle – “like house arrest,” as he told Mr Anstee.’

Mr Anstee said in his report of 10 May 2012:

Mr Kalinic fills in his day with different activities. These activities include:
He takes a girl to school.
He picks the girl up from school.
He takes his sons dog for a walk.
He potters about the house.
Mr Kalinic says that it is “like house arrest.”

The appellant contends that the comment ‘like house arrest’ had to be seen in the context of the domestic duties to which the appellant referred. Nevertheless, I am not satisfied that trial judge erred in forming the conclusion that the appellant was seeking to paint a picture of the appellant being limited to domestic-type duties in the activities he could perform.

In my view, the level of activity that the appellant displayed on 16 May 2012 and on the other surveillance film was inconsistent with the picture painted to Mr Anstee, or that which the appellant sought to convey in his evidence before the films of his walking were shown. In my opinion, the level of activity displayed on those occasions reflected little, if any, restrictions on the appellant’s lifestyle.

In conclusion, the appellant has not satisfied me that the trial judge erred in finding that the level of restriction deposed to by the appellant must therefore be ‘viewed with some caution.’[41] I do not find that the trial judge erred in finding that the examining doctors relied on the restrictions the appellant described in forming their opinions, and thus by inference, had formed a false understanding of the true state of the appellant’s injury.[42]
[41]Reasons [371].
[42]Reasons [372].

Ground 1(vii)
The judge erred in failing to place weight or sufficient weight and/or misunderstood and/or misapplied the evidence relied upon by the appellant and in particular the evidence of the appellant, Mr Bloomberry, Dr Caric, Dr Sutcliffe, Dr Poppenbeek and Mr Behan.

The appellant submits that the trial judge erred in rejecting or substantially rejecting the medical opinion and diagnosis of the appellant’s treating doctors and other examining doctors and therefore failed to accurately assess the consequences of the appellant’s injury. In assessing this ground of appeal, I keep in mind the observations of Brooking JA in Mobiliov Balliotis[43] on the advantages the trial judge had in evaluating the various medical opinions.
[43][1998] 3 VR 833 (Mobilio), 836-837.

The appellant says that the trial judge found that, on taking into account all the medical evidence, the appellant was not suffering from CRPS.[44] The appellant submits that (by inference) the trial judge rejected the opinion of Dr Blombery that the appellant had ongoing features of CRPS Type 1 together with a non-specific pain syndrome, despite acknowledging Dr Blombery as an expert in the area of CRPS. The appellant says that instead, the trial judge found that the appellant continues to suffer some left leg pain and discomfort in the area of the scar.
[44]Reasons [341].

The appellants submits that the trial judge failed to take into account or adequately take into account the swelling in the left leg that had been found on repeated occasions by the appellant’s general practitioner, and which a number of doctors had noted, and had led various doctors to a diagnosis of CRPS.

The appellant submits that the trial judge erred in not attaching sufficient weight to the opinion of Dr Poppenbeek, his analysis of earlier medical opinion, and his opinion that the clinical findings were not typical of CRPS.

The appellant submits that the trial judge failed to give any or any adequate reasons as to why her Honour rejected the opinion of Dr Blombery.[45] The appellant says that it has been held that in determining serious injury applications the judicial reasons for decision must sufficiently explain the basis for any findings that are made in reaching that decision and that a path of reasoning based on upon the whole of the evidence be demonstrated.[46]
[45]The appellant refers to Transport and Accident Commission v Kamel [2011] VSCA 110 (Kamel), [70].
[46]Kamel [70].

The appellant also submits that the trial judge failed to place weight or sufficient weight on the evidence relied upon by the appellant. The appellant submits that the trial judge erred in assessing the ongoing treatment required by the appellant and therefore failed to accurately assess the consequences of the appellant’s injury. The appellant says that the trial judge found that ‘there is little medical support for the view that the plaintiff requires further treatment.’[47]
[47]Reasons [407].

The appellant submits that at the date of the hearing, the appellant was being prescribed Lyrica, Mabie, Panadol, and Panadeine Forte for pain relief; Cymbalta for depression; and that he was continuing to wear a compression bandage to protect the scarring on his leg, for warmth, and to reduce swelling. The appellant submits that the prescription of medication had increased prior to the hearing, as since February 2012 Dr Caric had prescribed 15 milligrams of Mabie and Dr Blombery had increased the appellant’s dosage of Panadeine.[48]
[48]Reasons [190].

The trial judge further found that ‘there is no further treatment suggested by Dr Blombery or any other practitioner save for continuing to wear the bandage and use mild analgesics.’[49] The appellant submits that the trial judge erred in finding that the ongoing use of medications for the treatment of neuropathic pain constituted ‘mild analgesics’ and that there was no further treatment suggested for the appellant’s injury. The appellant says that Mr Behan opined that revisional surgery would be appropriate and that the recurrence of infection in the leg should be investigated to exclude any foreign materials being present.
[49]Reasons [411].

The appellant submits that the trial judge failed to view the issue of further treatment in light of the extensive treatment the appellant had undergone for treatment of chronic pain.

The appellant submits that the report of Dr Blombery of 10 April 2012 was consistent with the appellant needing ongoing treatment for neuropathic pain and continuing to be prescribed with heavy medications.

The respondents’ submissions

The respondents submit that whether the appellant was experiencing CRPS was an issue on which there were different opinions, and that was a question for the Court to decide. The respondents say that it was open to the judge to reject the diagnosis of CRPS.

The respondents submit that while there was some medical evidence supporting that diagnosis, the judge preferred other evidence, comprising the following:

(a) Mr Battlay, Mr Kierce, and Mr Dooley reported finding no evidence of CRPS on examination of the appellant;

(b) Mr Jones expressed the opinion that the appellant did not suffer from CRPS, instead diagnosing a ‘relatively superficial soft tissue injury’, the claimed effect of which Mr Jones struggled to understand;

(c) Mr Anstee also disagreed with the CRPS diagnosis; and

(d) the appellant’s GP did not make any clinical findings as to symptoms consistent with CRPS.

The respondents say that in his report of 10 April 2012 Dr Blombery had modified his diagnosis from CRPS to a non-specific organic pain syndrome with ongoing features of CRPS.

The respondents submit that it was open to her Honour, on the basis of the above, not to be positively satisfied that the appellant suffered from CRPS. Further, the respondents say that her Honour’s reasons in this regard are adequately set out.[50]
[50]Reasons [340]-[344].

The respondents submit that the appellant’s evident dissatisfaction with the judge’s conclusions should not be confused with the idea that the reasons were not adequate.[51]
[51]Cf Soulemizis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247, 281 (McHugh JA).

The respondents contend that the judge’s observation[52] – that there was little medical support for the view that the appellant requires further treatment – was not directed to the analgesics which the appellant was prescribed, or to the compression bandage that the appellant was wearing. They say that the observation[53] is to be seen in the context of surrounding paragraphs,[54] where her Honour referred to the prospect of scar revision surgery that was raised by Mr Behan.
[52]Reasons [407].
[53]Reasons [407].
[54]See Reasons [404].

The respondents contend that the judge’s evaluation of the appellant’s pain[55] was correctly directed at the consequences existing at the date of hearing. They say that there is no error shown in the judge’s characterisation of the analgesics as mild. The respondents contend that the judge was entitled to approach the question on the footing that, having regard to the appellant’s level of mobility evident on the surveillance footage, her Honour could not be satisfied that the appellant suffered pain at the level he described.
[55]Reasons [411].

Consideration of Ground 1(vii)

I accept the respondents’ submissions. The weight the trial judge placed on the opinion evidence as to the appellant’s injuries was a matter for the trial judge. The appellant has not satisfied me that the trial judge erred in failing to understand the medical evidence or the evidence of the appellant. I am not satisfied that the trial judge erred in making the findings that her Honour did on whether the appellant was suffering from CRPS and on the current state of the appellant’s injuries.

Ground 5

The trial judge erred in failing to find that the pain and suffering consequences suffered by the appellant when judged in comparison with other cases in the range of possible impairments were more than significant or marked and at least very considerable.

The appellant submits that the trial judge was not satisfied that the appellant suffered constant pain at the level he described. The appellant refers to Haden Engineering Pty Ltd v McKinnon,[56] where it was held that the evidentiary basis for assessing pain included not only what the plaintiff says about the pain, but what the plaintiff does about the pain.
[56][2010] VSCA 69, [11].

The appellant submits that the trial judge failed to properly take into account the extensive treatment the appellant had undergone, together with the need for ongoing medication for treatment of pain. The appellant says that, in particular, the trial judge failed to give adequate weight to the complaints of chronic pain which led the appellant to first consult with Dr Blombery in 2009 and the extensive and ongoing treatment of pain, including two periods of hospitalisation for infusion and medication.

The respondent says that the judge’s evaluation of the appellant’s pain[57] was correctly directed at the consequences existing at the date of hearing. They point out that the judge found:[58]

I am not satisfied that the plaintiff suffers constant pain at the level he describes. Further, I accept, based on the medical evidence, that the plaintiff does not have sufficient physical problems to account for his claimed problems. Whilst he is being prescribed Lyrica for neuropathic pain and he also takes Panadol and Panadeine Forte for pain relief, there is no further treatment suggested by Dr Blombery or any other practitioner save for continuing to wear the bandage and use mild analgesics.

[57]Reasons [411].

[58]Reasons [411].

The respondent says that there is no error shown in the judge’s characterisation of the analgesics as ‘mild’. The respondent says the judge was entitled to approach the question on the footing that, having regard to the appellant’s level of mobility evident on the surveillance footage, the judge could not be satisfied that the appellant suffered pain at the level he described. I agree.

I accept the submissions of the respondent. The appellant has not satisfied me that the trial judge erred in characterising the level of pain and suffering experienced by the appellant.

Ground 6
The trial judge fell into error having regard to the test to be applied by the court in determining whether the appellant’s work injury constituted permanent serious disfigurement within the meaning of the Accident Compensation Act 1985 and/or failed to apply or properly apply the test required to determine whether the appellant’s work injury constituted permanent serious disfigurement.

The appellant submits that the scarring caused to the appellant constituted permanent and serious disfigurement of the left lower extremity. The appellant submits that at the hearing before the judge, counsel for the appellant contended that the appellant relied first and foremost on scarring as constituting a serious injury and submitted that if the scar suffered by the appellant was not held to be a serious injury then very few would.

Her Honour found that the ‘scar is clearly ugly and large and covers an area measured by Mr Behan of 17 by 2 centimetres.’[59] The trial judge further found that the scarring suffered by the appellant was ‘extensive’ and ‘unsightly.’[60]
[59]Reasons [436]
[60]Reasons [444] and [446].

The appellant accordingly submits that the learned judge erred in not finding that the scarring met the statutory test.

The respondents submit that while the trial judge accepted the appellant’s scar was unsightly, she was not positively satisfied that it constituted a serious injury, having regard to the consequences to the appellant. The respondents submit that under s 134AB(38)(b) the terms ‘serious’ and ‘severe’ are to be satisfied by reference to the consequences to the worker of any disfigurement when judged by comparison with other cases in the range of possible disfigurements or losses or a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively.

The respondents submit that this finding was reasonably open to her Honour, having regard to the relatively minor role that the appellant’s response to the scar played in the evidence and the histories given to the medical experts and the objective surveillance evidence that showed the appellant wearing shorts despite his assertion that he was not comfortable doing so. The respondents contend that the photographs of the scar confirm that it was well-healed.

In my opinion, the judge’s determination on this issue was a matter of assessment involving matters of degree and evaluation which do not hinge on any legal principle but depended on the opinion of the judge who had considerable experience in assessing serious injury cases.[61] Her Honour’s decision on this issue is only to be set aside if the appellant establishes specific error or if the determination is plainly wrong or erroneous. [62]
[61]See Fleming v Hutchinson (1991) 66 ALJR 211; Mobilio [1998] 3 VR 833, 836-837.
[62]Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 (Hawkins), [4].

I accept the respondent’s submissions. The appellant has not satisfied me that her Honour made any specific error or that her decision was plainly wrong in her assessment of the scarring disfigurement.

Ground 13
The trial judge failed to give adequate reasons to explain her findings of fact.

The appellant submits that the trial judge’s reasons for finding that the appellant had not suffered permanent and serious disfigurement of the left lower extremity were inadequate. The appellant says that there was a mere recitation of the evidence followed by a statement of findings without any commentary as to why the evidence was said to lead to the findings as required by Kamel.[63]
[63][2011] VSCA 110, [73].

The appellant says that while the trial judge held that the scarring was clearly ugly and large, there were no reasons provided as to why the scar did not constitute a serious injury and there was no relevant comparison made. The appellant submits that the trial judge failed to properly identify the disfigurement suffered by the appellant and, in particular, the widespread area of discolouration around the scar identified by Mr Anstee.

The appellant says that at the hearing, the trial judge thought the law on scarring was unclear, and the trial judge arguably fell into error in determining whether the scarring suffered by the appellant constituted permanent serious disfigurement and made a number of irrelevant and erroneous findings, including that the appellant had not had a significant emotional response to the scar. The appellant submitted that this find was made despite the appellant deposing that he was embarrassed by his scar and tended to keep it covered, and he felt constantly concerned that the skin around the scarring would break if it was knocked.

The respondents reject the appellant’s submissions. The respondents say that there was clearly sufficient reasoning given, and refer to paragraphs [435] to [446] of the Reasons in support of the proposition:

[435]The plaintiff also relied upon paragraph (b) of the serious injury definition relating to permanent serious disfigurement.
[436]The scar is clearly ugly and large and covers an area measured by Mr Behan of 17 by 2 centimetres and described by him as apparent over the peroneal compartment with evidence of widening and scar separation throughout its length.
[437]The plaintiff deposed he did not like wearing shorts and was embarrassed by his scar and tended to keep it covered. He felt constantly concerned the skin around the scarring would break if it was knocked. The plaintiff gave a similar history to various medical examiners.

[438] In his viva voce evidence, the plaintiff did not elaborate further on his affidavit evidence as to the effects of scarring.
[439]I did not find the plaintiff had a significant emotional response to the scar, a view shared by plastic surgeon, Mr Behan, who considered there was no sign of any behavioural or psychological changes in relation to the scarring.
[440]Further, the plaintiff was shown wearing shorts when walking on 8 November 2011.
[441]However, as Callaway AJA said in Ingram v Ingram & Transport Accident Commission, there was much to be said for the view that the psychological dimension of an injury, or at least it could be described as mental or behavioural, was primarily to be considered by reference to paragraph (c) and it would be an unusual case where it was appropriate to lead evidence of subjective response to disfigurement, although he did not really decide the issue on the facts of that case.
[442]Whilst the plaintiff experiences aching and numbness in the area of the scar, I am not satisfied that the scar is much of an impediment to most activities of daily living, a view shared by Mr Anstee. The plaintiff obviously has to be careful of knocking his leg and wears a compression bandage for support and warmth, but otherwise his daily activities are unaffected.
[443]Limitation of movement in dorsiflexion as a result of the scar is more properly assessed pursuant to subsection (a) – see Dwyer and Calco Timbers Pty Ltd (No 2).

[444] In this case, the scarring, though extensive, is now well healed.
[445]Mr Behan thought there was a possibility of revision surgery but such a course was complicated by clinical features of ongoing sympathetic dystrophy. However, no steps have been taken by the plaintiff to undergo any further procedure. Mr Anstee doubted any treatment was indicated as far as the scarring was concerned.
[446]Whilst it is unsightly and causing the plaintiff some discomfort, when judged by comparison with other cases in the range of possible impairments, I am not satisfied that the scarring may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.[64]

[64]Reasons [435]-[446] (citations omitted).

I accept the respondents’ submissions. In my opinion, the appellant has failed to show that there was insufficient reasoning. In my opinion, the reasoning does disclose the path of reasoning which led the trial judge to the conclusions she made.

Conclusion

As none of the grounds of appeal relied on have been upheld, I would dismiss the appeal.

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Citations

Josip Kalinic v Acron Engineering Pty Ltd and Victorian WorkCover Authority [2013] VSCA 341

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Karaca v Transport Accident Commission [2013] VCC 1864

Cases Citing This Decision

4

Bedeux v Transport Accident Commission [2016] VSCA 127

Josip Kalinic v Acron Engineering Pty Ltd and Victorian WorkCover Authority [2013] VSCA 363

Ajang v VWA [2025] VCC 1295

Cases Cited

12

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Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26

Phelan v Transport Accident Commission [2013] VSCA 306

Todorovic v Moussa [2001] NSWCA 419

[2013] VSCA 341

28 November 2013

Key Legal Topics

Areas of Law

Civil Litigation & Procedure

Insurance Law

Legal Concepts

Appeal

Admissibility of Evidence

Causation

Compensatory Damages