Merhi v Ford Motor Company of Australia Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 00048

GHASSAN MERHI

Appellant

FORD MOTOR COMPANY OF AUSTRALIA LIMITED

Respondent

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JUDGES:	NEAVE, TATE and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 September 2014
DATE OF JUDGMENT:	12 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 328
JUDGMENT APPEALED FROM:	Merhi v Ford Motor Company of Australia (Unreported, County Court of Victoria, Judge Bourke, 28 March 2011).

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ACCIDENT COMPENSATION – Accident Compensation Act 1985 – Appeal against County Court decision – Whether judge erred in failing to give proper weight to the medical evidence – Whether judge erred in assessment of the plaintiff’s credibility in light of video surveillance evidence – Whether judge erred in finding that the plaintiff did not have a ‘serious injury’ within in the meaning of the Accident Compensation Act 1985 – Whether judge’s reasons were inadequate to demonstrate the path of reasoning – Hunter v Transport Accident Commission applied –– Matter remitted to County Court.

ACCIDENT COMPENSATION – Applications to adduce fresh evidence - Foody v Horewood applied – Fresh evidence admitted – Matter remitted to County Court.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A D B Ingram	Slater & Gordon
with Ms N Wolski
For the Respondent	Mr S O’Meara QC	Thomson Geer
with Ms R Kaye

NEAVE JA:

This is an appeal from the reasons and orders of a County Court judge holding that the lumbar spine injury suffered by the appellant, Mr Ghassan Merhi, did not amount to a serious injury under s 134AB(37)(a), and that his mental disorder was not a serious injury under s 134AB(37)(c), of the Accident Compensation Act 1985 (‘the Act’).[1] In the County Court, Mr Merhi sought leave to commence common law proceedings against the respondent, Ford Motor Company of Australia Limited (‘Ford’), to recover damages for pain and suffering, and loss of earnings, resulting from serious injuries relating to:
[1]These definitions are set out at [16] below. See also Accident Compensation Act 1985 s 134AB(38). The version of the Act reproduced in this judgment is version number 159D, released on 5 April 2010, 10 days before the appellant initiated his claim for damages. Since that time, s 138AB(38) has been amended. These amendments are not relevant for the purposes of this appeal proceeding. However, it is noted that the mechanism for calculating Pre-injury Average Weekly Earnings is now contained in Schedule 1A to the Act.

(a) his right knee;

(b) his lumbar spine; and

(c) a mental disorder characterised by depression and anxiety.

In this appeal the appellant does not challenge the judge’s decision refusing him leave to commence proceedings to recover damages for the injury to his right knee.

On 9 April 2014, Mr Merhi sought leave by summons to adduce fresh evidence in this appeal proceeding, relating to the condition of his lumbar spine, following a spinal fusion operation on 14 August 2013.

If the appellant is granted leave to adduce further evidence, the respondent also seeks leave to adduce a post-operative video surveillance film, which shows the appellant undertaking various activities, including gardening and bending over, which are said to be inconsistent with the appellant’s account of the seriousness of his spinal injury. The surveillance footage covers 13 minutes and 3 seconds of time on 24 February 2014 and 4 March 2014.

These reasons deal with both Mr Merhi’s appeal, as well as Mr Merhi’s and Ford’s applications to adduce fresh evidence. To avoid confusion, I will refer to Mr Merhi only as ‘the appellant’ and Ford only as ‘the respondent’.

Background to the claim

The appellant, who was born in 1959, came to Australia from Lebanon in 1984 and began working for the respondent as a welder. His job was to maintain plant and equipment at the respondent’s Broadmeadows plant. On 21 February 2004, when he was standing on a flight of mobile stairs, the stairs shifted suddenly and he fell approximately 2.7 metres to the floor below, breaking a rib and bone in his right hand and injuring his back. He was taken to the Northern Hospital where he was X-rayed, given Panadeine Forte for pain, and discharged. On 4 March 2004, he lodged a statutory compensation claim for the injury to his back, ribs and right wrist, which was accepted by the respondent.[2]
[2]The acceptance of a claim will usually amount to an admission that an injury is work-related: Ansett Australia Ltd v Taylor [2006] VSCA 171.

After being given three days off work by his local doctor, the appellant returned to work. However, on 13 March 2004, he went to his general practitioner Dr Rowais, complaining of pain in his lower back radiating into his right knee. At that stage, Dr Rowais recommended that he continue with physiotherapy, undertake light duties, and that his work restrictions be monitored by Dr Tim Hwang, the factory doctor.

The appellant continued working, and for a time his back injury appeared to improve, but the pain gradually increased. An entry in his medical record progress card on 4 October 2004 states that the applicant had reported that the pain caused by his February injury had got worse, but that he wanted to continue working.[3] A medical attendant at the work clinic, Mr Matters, sent him to see Dr Henderson, who saw him on 5 October 2004, certified that he was unfit to work on that day and advised him to see his own doctor. The appellant was seen at the work clinic on 6 October 2004, where he had a local anaesthetic injected into his back and right buttock. Although this gave him temporary relief, the pain later returned.
[3]Merhi v Ford Motor Company of Australia (Unreported, County Court of Victoria, Judge Bourke, 28 March 2011) (‘Reasons’), [22].

In October 2004, the applicant injured his back again when he was pulling heavy skids along a conveyor system. On 10 October 2004, he lodged a claim for a further injury to his back arising out of that incident. On 15 October 2004, he consulted Dr Rowais, complaining that ‘his local doctor [had] not shown any interest in his back pain and his condition [was] going downhill and it [had] become impossible to work due to persistent and progressive back and leg pain.’[4] Dr Rowais put the appellant off work until mid–November 2004. The appellant then returned to part-time work on light duties and was working full-time again by 17 December 2004. Although Dr Rowais certified that he was only capable of light duties, the appellant claimed that he was actually doing heavy work during this period. On 15 June 2005, he lodged a further claim for a knee injury, which is said to have arisen from the October 2004 incident. This was also accepted by the respondent.
[4]Reasons [87].

In mid-June 2005, while on the toilet at home, the appellant suffered very severe back pain and was unable to move (‘the toilet incident’). He went to work the following day but the respondent’s medical centre staff were called to the workshop because the appellant had collapsed, was in severe pain and could not walk. He was transported on a stretcher to the medical centre and an ambulance was called to take him to hospital. Dr Hwang examined the appellant and cancelled the ambulance. The appellant ceased work after this incident, but received weekly compensation payments.

Dr Rowais referred the appellant for MRI scans on a number of occasions. The appellant relied on four MRI reports dated 21 March 2005, 25 January 2006, 21 October 2008 and 14 September 2009. All of the scans reported that he had a grade 1 spondylolisthesis (vertebral slippage) at L5‑S1 level, with bilateral L5 pars defects (grade 1 is the least severe form of vertebral slippage). The 2008 and 2009 MRI scans also showed disc prolapse at L3/L4 level and nerve root compression at L5/S1 level.

Dr Rowais referred the appellant to various specialists for advice about the appropriate treatment for his back and knee and to a psychologist Mr Tsironis, to deal with the psychological aspects of the appellant’s post-accident care. After Mr Tsironis became ill, the appellant was referred to Dr Kochar, a consultant psychiatrist, to receive counselling and other treatment for his mental condition, which is characterised by depression and anxiety. The reports of these treating doctors are described in more detail below.

The appellant was placed under video surveillance in February, March, June and July 2005. During this period he was filmed driving a truck, walking without any apparent restriction and doing building work at three properties. During the February and March periods of surveillance he had submitted certificates of capacity certifying him as fit only for light duties. During June and July he submitted certificates indicating that he was unfit for any work.

On 21 December 2005, his weekly payments of compensation were terminated as a result of the video surveillance. On 5 December 2006, the respondent terminated the appellant’s employment. On 10 November 2008, the appellant was advised that his compensation for medical and associated expenses would be terminated from 14 November 2008.

The legislation

Section 134AB(37)(a) of the Act[5], in defining ‘serious injury’, requires the appellant to establish that he suffered a ‘permanent serious impairment or loss of a body function’ in order to obtain leave to seek damages for his spinal and right knee injury. In the case of the applicant’s mental disorder, the definition of ‘serious injury’ under s 134AB(37)(c) requires him to show that he had ‘a permanent severe mental disorder or permanent severe behavioural disturbance or disorder.’
[5]See fn 1.

Section 134AB(38) adds further requirements, which are as follows:

…

(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;

(d) a mental or behavioural disturbance or disorder shall not be held to be severe 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 mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(e)where a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (37), the Authority or self-insurer shall not grant a certificate under subsection (16)(a) and a court shall not grant leave under subsection (16)(b) on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i)at the date of a decision under subsection (16)(a) or at the date of the hearing of an application under subsection (16)(b), the worker has a loss of earning capacity of 40 per centum or more, measured (except in the case of a worker referred to in s 5A(7) or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and
(ii)the worker (including a worker referred to in s 5A(7) or a worker under the age of 26 years at the date of the injury) will after the date of the decision or of the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more;

(f)for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing—
(i)the worker's gross income from personal exertion (expressed at an annual rate) which the worker is—
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment—

as at that date, whichever is the greater, and—
(ii)the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;

…

The effect of s134AB(38)(f) is that an injured worker who seeks leave to recover damages for loss of earning capacity caused by a serious injury (as defined above) must also prove a loss of earning capacity of 40 per cent or more, as calculated by reference to the matters set out in sub-section (38).

Finally, it should be noted that the question of whether the appellant suffered a ‘permanent serious impairment or loss of body function’ under the definition of ‘serious injury’ under s 134AB(37)(a) must be considered separately from any psychological or psychiatric effect which is suffered as a result of that injury.[6] The mental and organic effects of the injury cannot be added together in order to bring the injury within that sub-section. The mental effects of an injury can only be considered for the purposes of paragraph (c) of the sub-section.
[6]See s 134AB(38)(h) and (i) of the Act. As to how this must be done see Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605, 610-1 [18]-[20] (Ashley JA), 635-6 [168]-[171] (Neave JA), 636 [173] (Pagone AJA); Zivolic v Hella Australia Pty Ltd [2007] VSCA 142 [19]-[20] (Redlich JA). President Maxwell and Chernov JA did not express a view on whether it is necessary to disentangle the organic and psychological effects of the injury, in circumstances where the organic injury is serious.

The Evidence

The appellant’s medical history and the evidence relied upon by the appellant and the respondent, are fully set out in her Honour’s reasons. I will therefore describe that evidence only briefly.

The appellant’s evidence

In his affidavit sworn on 23 November 2009, the appellant deposed that he suffered constant back pain, with referred symptoms into both his legs and that he believed he was no longer fit for any form of employment. He said that, if he had to sit or stand for extended periods, he suffered increasing discomfort, that his prescribed medication offered only partial relief from pain and that his sleep was broken. Although he could do some domestic tasks, mowing the lawn had become too much for him and it had to be done by someone else. He also claimed that he had had a serious psychological reaction to his chronic pain, and his inability to work.

In a supplementary affidavit sworn on 7 December 2010, the appellant deposed that:

Since my previous Affidavit I have continued to see Dr Rowais who prescribes medication in the form of Panadeine Forte one a day, and I also wear Norspan Morphine patches which I change every two weeks. I also take Valium when required and I also take [anti-depression] tablets in the form of Anpacs,[7] four a day. Furthermore, I am still seeing the psychologist, Dr Kochar, once a month and I go to hydrotherapy regularly.
Because of the injuries I am unable to return to any employment.
I continue to have constant pain in my back with the pain going down both legs, although the right leg is worse. Further, I have pain in the lower back near my coccyx. I have difficulty standing or sitting for lengthy periods of time. I have difficulties going up and down stairs or walking over uneven ground and driving is difficult. My right knee is painful all the time and is getting worse and I have difficulty in bending and kneeling. Because of the problems and the pain in my right knee I have difficulty in driving.
I am still seeing the psychologist due to my depression and anxiety and loss of concentration and memory. I suffer from insomnia.
I try to do a little around the garden and I attend to my vegetable patch. Further, I do the dishes and try to help as much as I can around the house.
My social life is greatly restricted as I don't want to go out as much and I feel depressed and anxious. I don't see the friends as much. I have tried a little dancing, however that has been very painful indeed. Before the accident I used to play ping pong regularly. I have tried to play it but I can't. I used to be able to drive long distances and go down to the beach, but that has been curtailed greatly.

[7]This is presumably a mistaken reference to the anti-depressant medication Aropax (Paroxetine).

At the County Court hearing it was put to the appellant that the video surveillance had shown him carrying equipment and working at three properties in 2005. The appellant said that he had not worked for money but was just ‘helping.’ Prior to being shown the video surveillance, the appellant agreed that throughout 2005 and 2006 he had put flashing on a fence and done some welding jobs. He agreed that on some occasions he had done a full day’s work at Ford before doing work for friends and acquaintances, but said that the welding work he had done was considerably lighter than the work he was required to do at Ford, until he was forced to cease work because of his injury.

The appellant was shown video surveillance of him working at a Broadmeadows property on 6 February 2005, where he said he helped someone adjust a gate. He was also shown video surveillance of him getting into and out of his truck at work on 7 February 2005, coming out of work on 9 February 2005, pushing a car on the same day, and putting flashing on a fence in March 2005.

The cross-examination of the appellant placed considerable emphasis on his claim to have suffered a serious injury to his right knee. I will refer to that evidence only to the extent that it is pertinent to the credibility of his evidence relating to his lumbar spine injury.

In response to questions about his activities since he stopped working for Ford, the appellant said he thought he would probably have done some light gardening like cutting flowers or putting a plant in the ground at home. He was asked whether he had looked for any light bench work and responded:

No. I'm not crippled. I probably would have opened the bonnet of my car to check the water or check the oil, things like that…. But job in factory or in other houses (indistinct) no, I don't do anything.

It was put to him that he could do light work and he said:

You know that you could work doing light work, don't you? ---Where is light work in a factory? Even with Ford and I was given to work light duty and they sack me.
Which company going to accept you to work light duty.

It was put to him that he could do light assembly of small items at a bench and he said he could do ‘some cutting’ and that ‘[i]t's no problem’.

The appellant said that his only income was his pension. It was put to him that various amounts had been deposited into his credit union account. The largest of these payments were amounts of $9,939 in January 2008 and two amounts of $10,000 deposited in May and June 2010. He said that these came from the mortgage of his house to help his son pay off his own home. The appellant was also cross‑examined on tax deductions he had made for a work related expense relating to the purchase of a welder in 2005. He said that this weighed about three kilograms and that he had used it for smaller jobs at home. Her Honour asked him if he was capable of doing light work and he said that he was capable of doing so for one or two hours if he had a rest. The appellant said that if he was ‘fixed up’ he would go back to work on light duties.

The appellant was also shown video surveillance from 8, 10 and 13 January 2011, which was taken shortly before the County Court hearing. He was cross‑examined about the fact that he had no apparent limp in some of the video surveillance and he protested that in fact he did have a limp. He was asked whether his back caused him to limp and he said ‘sometimes it goes down the legs and causes a limp’. It was also put to him that the video surveillance showed him limping heavily before he went to see a medico-legal expert, Mr Jones, on 10 January 2011, but that two days earlier and three days later, the video surveillance showed that he was not limping. He attributed this inconsistency to his medication and said that sometimes the limp was severe and sometimes it was not, that it was often bad in the morning, but that he took tablets during the day.

It was also put to him that he was shown limping heavily before attending a physiotherapy appointment in 2005 and that when he came out of the clinic, a short time later he was not limping. Again he said that this was attributable to his medication.

Medical evidence

There was little dispute about the organic basis of the appellant’s lumbar spine injury. The radiological evidence and the medical reports showed that the appellant had a pre-existing spondylosis, which was exacerbated by his fall from the stairs in February 2004 and the injury he suffered when moving heavy skids in October 2004. The MRI report dated 14 September 2009, which was tendered at the County Court hearing, showed that the appellant had:

disc space narrowing and broad diffuse circumferential disc prolapse at T12-L1 causing mild to moderate lumbar canal stenosis indenting the theca without compression of the chord or nerve roots;
mild loss of signal at L2-3 consistent with degenerative spondylosis; marked loss of signal at L3-4 with broad diffuse circumferential disc prolapse causing moderately severe lumbar canal stenosis indenting the theca and contacting the traversing L4 nerve roots within the sub-articular recesses and a mild bilateral facet joint arthritis;
normal signal at L4-5 but with a diffuse circumferential disc bulge and slight indentation of the theca as well as minimal lumbar canal stenosis and moderate bilateral facet joint arthritis; and
at L5-S1 level bilateral L5 pars defects and Grade I spondylolisthesis with disc space narrowing and redundancy of the posterior aspect of the disc indenting the theca and causing moderately severe bilateral foraminal encroachment compressing the exiting L5 nerve roots bilaterally with moderate bilateral facet joint arthritis and marked arthritis at the left pars defect.

The dispute at trial concerned the extent of the appellant’s pain and the effect of his lumbar spine and knee injury on his earning capacity, ability to perform daily activities and mental condition. In essence, the appellant’s treating doctors and medico-legal experts supported the appellant’s claim that he could not work and was suffering from continuous and severe pain. By contrast, the respondent’s medico‑legal experts considered that the appellant’s complaints of pain and incapacity for work were exaggerated.

Treating doctors

Dr Rowais

The appellant had been a regular patient of Dr Rowais since 1986. Dr Rowais provided medical reports dated 6 October 2005, 11 February 2006, 25 September 2008, 24 October 2009 and 3 November 2010. He gave additional evidence at the hearing, relating to the effect of the appellant’s spinal surgery.

Dr Rowais said that the appellant had had an excellent work record, prior to his injury. He had been responsive to treatment after his initial fall, but his back pain had increased to the point that he was prescribed morphine for his pain after the toilet incident. In his report dated 6 October 2005, Dr Rowais said that both back and right knee surgery was necessary and that the appellant was unfit for work until he was operated on. In his report dated 11 February 2006, Dr Rowais repeated the view that the appellant needed back surgery. Dr Rowais also said that the appellant had developed post-traumatic stress and depression, and that he had referred the appellant to a psychologist for treatment.

Dr Rowais said that he had prescribed multiple medications for the appellant and that he considered the appellant had a poor prognosis. In his 30 November 2010 report, which was provided before the appellant had spinal surgery, he concluded that:

[A]ll injuries occurred were work related and Mr Merhi is currently unfit for work awaiting surgical treatment.
For the last six years Mr Merhi’s condition has deteriorated further and became totally disabled by his injuries and his future employment ability is almost non‑existent.

In cross-examination it was put to Dr Rowais that, in February, March and April 2005, the appellant had said that he was working doing the heaviest work possible at Ford, although he had been certified as only fit for light duties. At the same time he was doing some jobs outside work. This was said to indicate that the appellant had a much greater capacity for employment at that time than Dr Rowais believed.

Dr Rowais said that:

[b]ecause I know the patient for over 20 years now or over I know he's a very solid and strong man and he will not settle for anything. He is a hard worker and he will not stop for anything. The only time he stopped when I give him the morphine.

Dr Rowais was cross-examined about the fact that, in the video surveillance of the appellant in February and March 2005, the appellant was shown bending, squatting, moving on a ladder and walking. The cross-examination continued:

From anyone's observation it would appear, would it not, that he was moving very freely?---Yes.
Sorry?---Yes, he is.
Moving very freely, without a limp?---Yes.
Performing tasks with a full - what appeared to be a full and unrestricted range of movement?---Yes.
Do you agree?---Yes, I'll agree.
Having done a full day's work at Ford of some 7.00 till at least 4.00 in the heaviest job that he can do at Ford.
All right?---Yes.
That would demonstrate, would it not, that in March of 2005 he had a capacity in fact for full-time normal duties, didn't he?---Well, what he was doing actually it's almost a normal duty.
I'm sorry?---What he stated to me that he is doing a normal duty but I wanted to protect him with light ---
I understand what you're saying but what I'm saying is that he was demonstrating a capacity for full-time normal duties. Is that right?---Yes.
Notwithstanding your wishes to protect him, he clearly had the capacity to work in full-time unrestricted duties and then further work after work?---Yes.

Dr Rowais was also shown a video of the appellant attending a physiotherapy clinic on 7 July 2005, where he was shown going into the clinic with a walking stick and a very heavy limp, leaving with a heavy limp, but later being filmed in the street not limping. Dr Rowais agreed that the appellant was walking normally at that time, but said that he did not agree that this had affected the appellant’s credibility because he was a man committed to hard work. Dr Rowais said that there could be fluctuations in the presence of a limp and that he considered that there was no basis for the appellant exaggerating his injury because before the accident he ‘was making good money and was working and he was a happy man, and now he’s depressed, disable [sic]’.

Dr Rowais said that although the appellant’s symptoms had improved from February to June 2005, the damage he had suffered had not been resolved. He said that the pathology was still there and ‘it’s a bomb waiting to happen’. Dr Rowais explained that during the toilet incident, the appellant had suffered an acute disc prolapse to which his previous injury had made him vulnerable.

Dr Rowais rejected the view expressed by Mr Jones, a medico-legal expert relied on by the respondent, that the appellant had recovered from his lower back injury by early 2005. It was put to him that if the appellant had knee surgery, he would be able to work full time on light duties. Dr Rowais said that currently the appellant could not work full–time or part-time, that he could not forecast if the surgery would be successful and that the appellant ‘might not work again’.

In re-examination Dr Rowais was asked:

With the knowledge of his background, his work history, his speaking of English, is there anything you can imagine, any actual job in the real world that you believe he could hold down solely as a result of the back injury? ---It's a very difficult question. No, I don't think so because of his education, language, back injury - forget about emotional thing - it will be extremely difficult to find him a suitable position.

Other treating doctors

Dr Rowais referred the appellant to Mr Brendan O’Brien who reported on 24 January 2006, that the appellant had lower back pain most of the time with pain intermittently passing down to the left first toe. At that stage, he considered that the appellant should continue to be managed ‘along symptomatic lines’. He recommended a repeat MRI scan to look for any additional changes. Mr O’Brien also said that ‘at some point in time the appellant might need a lumbar fusion to stabilise this region with decompression of the associated neural structures.’ Mr O’Brien saw the appellant again on 21 February 2009 and expressed the view that he would benefit from a medial branch block to improve facet related pains.[8] That procedure was not performed, apparently because the respondent refused to fund it. Mr O’Brien considered that any surgical treatment of the spine should be postponed to see how the appellant responded to the medial branch block.
[8]Dr Paul Verrill, to whom Mr O’Brien wrote to arrange this treatment, wrote to Ford on 12 May 2009 to enquire whether it would pay for medial branch blocks on three occasions. Ford appears to have declined to fund this treatment.

The appellant was also referred to Dr David de la Harpe. When Dr de la Harpe saw the appellant on 6 October 2005 he supported conservative treatment of the appellant’s spinal injury.

Dr Rowais also referred the appellant to Dr D S Kochar, for assessment and management.[9] Dr Kochar saw him on 44 occasions between the end of 2006 and the beginning of 2011. In his report dated 14 January 2011, Dr Kochar said that he had treated the appellant by psychotherapy and the prescription of anti-anxiety and antidepressant drugs. He considered that the appellant’s prognosis was guarded, commenting that ‘I believe that this man’s capacity to manage even his day‑to‑day affairs has already declined, as he seems to have little energy, drive or motivation and lacks favourable circumstances to assist him’. Dr Kochar considered that the appellant had no capacity for pre‑injury or other suitable employment, even on a part‑time basis and that his symptoms had had a significant effect on his incapacity to work because of ‘lack of endurance, strength, concentration and motivation’.
[9]He was previously counselled by Mr George Tsironis, who provided a report on 4 October 2005, which opined that the appellant was suffering from ‘Chronic Adjustment Disorder with Depression (amounting to Major Depressive Disorder) and Post Traumatic Stress Disorder’ who seemed genuinely traumatised by his predicament. He saw no evidence of exaggeration or malingering.

The appellant’s medico-legal evidence

The appellant relied on medico‑legal reports from Mr M A Khan, an orthopaedic surgeon, Dr Blombery, a vascular physician, and Dr Kaplan, a consultant psychiatrist.

Mr Khan’s report, dated 1 December 2010, referred to the history given by the appellant and made the following observations about the condition of the appellant’s lumbar spine.

He could flex the lumbar spine to 70 ° and then complained of pain. I noticed that he flexed mainly at the hips. Extension was limited to 15 ° and associated with discomfort. Right and left lateral flexion each was to 20 °.
A straight leg raising test on both the left and right side was negative. He had aches going down the back of both legs intermittently from the buttocks down to the calves, the right more so than the left. He had no external evidence of muscular wasting in his thighs or calves. He could move his toes well.
However he had ache around his right knee with mild synovial thickening and was unable to squat. The range of movement of the right knee measured with the goniometer was from 0 ° to 130 ° with block to full flexion. Flexion of the left knee was possible to 150 °.

Mr Khan considered that the appellant had been correctly referred for conservative treatment initially but that he had been left with discogenic pain from his lumbar spinal injury and referred pain down the right leg. In his view the appellant was:

[T]otally unfit for heavy duty work requiring excessive bending, twisting and turning of his spine, and lifting weights more than 5 kg at a time.
He is unfit for his pre injury duties on a permanent basis… He also has psychological injures for which he is seeing his psychiatrist. He has long standing chronic pain and he is presently unemployed and unhappy.

Mr Khan said that the appellant would also require surgery on his knee and that the physical and organic aspects of the appellant’s injury were likely to remain ‘for an indefinite period in the foreseeable future’.

Dr Blombery states in his report dated 13 December 2010, that when he examined the appellant on 5 November 2010 the appellant complained of severe pain in the back, which radiated down the legs. When it was severe he had difficulty walking. He could not do any heavy lifting, but could do light gardening. It hurt him to drive long distances. The appellant was taking Panadeine Forte and using a Norspan morphine patch for his pain. He was having morphine injections about twice a month and was on anti-depressant medication. On examination Dr Blombery found the appellant:

was tender over the lumbar spine and over the paravertebral muscles. There was a full range of movement of the back and reflexes in the lower limbs were intact and symmetrical. Straight leg raising was intact to 90° bilaterally, although somewhat painful.

He considered that the injuries to the appellant’s back and right knee (excluding the psychological effects) incapacitated the appellant from his pre-injury employment. He said that the appellant might be able to do light duties a few hours per week not involving any heavy lifting and not involving any significant walking, but this would require retraining which would be difficult because of the appellant’s lack of relevant experience and poor English. He considered the appellant’s prognosis for recovery was relatively poor and that he had suffered significant secondary depression and anxiety, which tended to enhance his experience of pain. He would require therapy for chronic pain, including the use of analgesic, anti-depressant and anti-convulsive medication, together with physiotherapy and psychological support.

In her report of 18 December 2010, an occupational physician, Dr Amanda Sillcock, said that the appellant was not capable of returning to his pre‑injury duties as a welder. She said that:

I do not believe that he has a capacity for part‑time suitable employment. He has always worked as a welder and is unfit to do this type of work. While many of his problems are undoubtedly psychosomatic in origin, he is nevertheless taking large amounts of medication and has not had his right knee appropriately treated. He has a fairly low level of education and does not speak English very well. I therefore believe that he does not have any sort of capacity for suitable employment.

Finally, Dr Kaplan, a consultant psychiatrist, opined in a report dated 13 December 2010, that the appellant was suffering from an adjustment disorder with mixed anxiety and depressed mood. His condition was directly related to his injuries, his chronic pain, the loss of a highly valued job and the physical limitations imposed by his pain. Dr Kaplan reported that the appellant said that he had become socially withdrawn and irritable and had trouble with memory and concentration. Dr Kaplan considered that the appellant was likely to remain prone to anxiety and depression as long as he remained disabled by his pain.

The respondent’s medico-legal evidence

The appellant was also examined by Mr T J Russell, a general, trauma and vascular surgeon, who provided reports dated 9 November 2004 and

2 August 2005.

In his report dated 9 November 2004, Mr Russell considered that the appellant had recovered from the effects of his back injury and was likely to improve further, but that he had a permanent weakness in his back and should be limited to lifting weights of not more than 15 kilograms. He took a similar view in his report dated 2 August 2005.

Dr Ho provided reports to the respondent on 14 February 2005, 7 July 2005,

23 November 2005, and on 10 September 2007. He considered that the appellant was exaggerating the extent of his pain. Dr Ho states, in his report dated

10 September 2007, referring to an examination of the appellant on

5 September 2007, that the appellant has ‘far better capacity particularly with his lower back, than he claims or perceives.’ He said that the appellant did not require physiotherapy and that a self-managed exercise program would be more beneficial in the long term. He also said that it would be in the appellant’s interests to reduce his reliance on analgesics.

Mr Ian Jones, an orthopaedic surgeon, examined the appellant on 30 October 2008 and provided a report dated 3 November 2008. Before examining the appellant, Mr Jones was provided with reports of the video surveillance conducted in 2005. He noted that:

The patient reports symptoms of constant pain in his lower back, which has worsened since last week. Occasionally the pain is indicated to extend down the front of both thighs and shins. On occasions both his feet go numb. Mr Merhi reports that he is unable to bend or lift consequent on his back condition. His day is spent sitting around at home doing nothing. On occasions he is able to drive for periods of up to thirty minutes and walk for a maximum of ten or fifteen minutes.
…
Examination of his back revealed the site of his pain to be at the L5 level. The pain was indicated to extend into his right buttock. The range of lumbosacral flexion was to approximately one third of normal with extension not possible beyond the neutral position. Lateral flexion and rotation was markedly reduced. Sensory testing revealed diminished sensation to pin prick involving the skin over the whole of the right leg including the right half of his anterior abdominal wall (this did not conform to any peripheral nerve or dermatome pattern). There was no measurable wasting of either the calf or thigh muscles, Attempts at assessing his range of straight leg raising were accompanied by a marked overreaction by the patient with complaints of back pain.

Mr Jones considered that it was possible that the appellant’s lower back condition might have been aggravated by his fall. However, he said that there was a:

marked discrepancy between this patient's claims of incapacity and that described in your extensive reports. Accepting that the patient last worked in 2005 and in the absence of any clear history of injury to his right knee I think that he has recovered from the effects of any possible injury to his knee or lower back as a result of his employment with Ford or the work in general.
On the basis of the available information I do not believe that this man's torn right lateral meniscus or his back condition currently relates to any degree to the work injury described by the patient or his employment with Ford. [10]
Any aggravation to this patient's back condition which may have occurred as a result of the fall described by the patient has, I believe, resolved.

[10]A similar view was expressed by Mr T J Russell, in a report dated 2 August 2005. In his view the appellant had recovered from the back injury and was fit for full time work involving moderate bending or lifting up to five kilograms and occasionally ten kilograms, using proper techniques. Mr Russell made no reference to any of the radiological reports.

Mr Jones re‑examined the appellant on 10 January 2011 and provided a report dated 12 January 2011. He was again provided with the video surveillance reports. Mr Jones said that the appellant’s:

physical complaints with respect to his back and right knee (especially the latter) [seem] to be out of all proportion to the underlying nature of the complaint. I would accept that he has some restrictions on his ability to bend and lift and to squat lift and kneel.

Mr Jones accepted that the appellant’s back and knee condition precluded him from working at his former job. However he considered that the appellant had a capacity for full‑time employment of a sedentary or semi-sedentary nature provided that there was no requirement to bend, lift, squat or kneel.

Finally, the appellant was examined by consultant psychiatrist, Dr Lester Walton, on 20 October 2005 and re‑examined on 6 September 2007. In his first report, dated 26 October 2005, Dr Walton referred to the appellant’s complaint that his pain prevented him from returning to work and said that if the appellant was left with chronic pain this would tend to drive his psychological symptoms. Dr Walton said:

I would not describe the worker as exaggerating his psychological symptoms, given that he reports relatively few and of mild severity, but he certainly does seem to regard himself as being maltreated, and he is aggrieved about that, which likely is colouring the presentation of the severity of his physical disability.
Whether or not this worker suffers from significant incapacity for work will be determined by physical factors alone.

In a second report dated 7 September 2007, Dr Walton said that there might now be a ‘psychogenic component’ to the pain being suffered by the appellant.

Video surveillance

The appellant was filmed on:

(d) 4, 6, 7 and 9 February 2005;

(e) 1, 3, 5 and 6 March 2005;

(f) 25 June 2005;

(g) 7, 14, 22 July 2005;

(h) 6, 8, and 26 August 2008; and

(i) 8, 9 and 13 January 2011.

In some of these videos the appellant was shown limping and in others his gait appeared to be normal. The presence or absence of the limp related primarily to his claim to have suffered a serious injury to his right knee, to which this appeal does not relate. In some of the 2005 video surveillance he was shown moving freely. In particular, in February and March 2005, he was shown doing work on a property belonging to a friend, which involved him carrying flashing, drilling, using a grinder, squatting, kneeling, bending fully and working standing on a chair and a ladder, without help.

On 8 January 2011, the appellant emerged from the Brunswick baths walking without an obvious limp. However, two days later, on 10 January 2011 he was shown walking into the rooms of Mr Jones, with a considerable limp and walking out again still limping. Three days later he was filmed walking stiffly, but not with a limp. As I have said, in cross-examination the appellant maintained he was limping.

The judge’s reasons

Her Honour set out the evidence described above, including the contents of the video surveillance, in considerable detail.

The judge accepted that the appellant had a compensable back injury throughout 2004, which was exacerbated in October 2004 by the incident involving moving heavy skids at the respondent’s factory, and that the toilet incident occurred in circumstances where the appellant’s back was already vulnerable.

However ultimately her Honour rejected the appellant’s claim that the injury to his lumbar spine resulted in pain and suffering and loss of earning capacity consequences which ‘when judged by comparison with other cases in the possible range of impairments, may be fairly described at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”’.[11]
[11]Accident Compensation Act 1985 s 134AB(38)(c).

The judge did not consider that the video surveillance showing the appellant’s after hours work in 2005 raised major issues about the appellant’s credit except that ‘he did not tell doctors he was helping out friends with those tasks after a full, heavy day at work’. In addition he had declared on incapacity certificates that he had not engaged in paid or voluntary work.[12]
[12]Reasons [438].

Although her Honour noted that the appellant was not shown working after the toilet incident, she considered that the contrast between his varying gait before and after visiting the physiotherapist in 2005 and seeing Mr Jones in January 2011 raised significant doubts about his credit. She noted that the appellant was seen limping heavily on entering and leaving the examination with Mr Jones on 10 January 2011, whereas two days before he had been filmed moving well and squatting in a shop and three days after the examination he was again shown walking freely and bending. Her Honour said that:

I do not accept these discrepancies can be explained by the [appellant] taking medication/using patches or getting relief from physiotherapy treatment, especially as the [appellant] was using a stick immediately after the physiotherapy visit, although not later that day.
I do not accept the [appellant’s] condition is one of a good day bad day scenario as submitted by his counsel relying on the clinical notes of the psychologist, relating to attendances on 28 November 2005 and 24 April 2006.
In my view, Dr Rowais was unconvincing as to his explanation of the [appellant’s] varying gait on these occasions and he became an advocate for the [appellant’s] in this regard.
Further, the [appellant], at every opportunity in cross-examination, said that he was limping when he was clearly shown to be walking normally on numerous occasions.
The film in this case was extensive, as I have described in detail. The surveillance was far more than a snapshot of the [appellant’s] activities but showed his level of movement and activity on numerous occasions over a six‑year period.
Given the [appellant’s] willingness to overstate his level of disability, the inconsistencies in his presentation on the film and the lack of supporting lay evidence, I have difficulty accepting his evidence as to his level of pain and disability.[13]

[13]Ibid [444]–[449].

Her Honour was not satisfied that the appellant had constant back pain or that his lumbar spine condition interfered with his activities to the extent that he claimed.

Nor was her Honour satisfied that the appellant had suffered a serious psychiatric impairment. In that context, she said that:

In my view, the [appellant] gave his evidence clearly and understood the questions asked of him. He was not anxious and he did not display any problems with memory and concentration when being cross examined.
In terms of treatment, psychologist, Mr Tsirinos' opinion is outdated, having last reported in 2005.
Whilst the [appellant] continues to undergo psychiatric treatment from Dr Kochar, who prescribes anti‑depressant medication, in my view, the [appellant] leads a relatively active life and is able to engage freely with friends and members of his local community, as shown on the video.
Dr Kochar thought most of the [appellant]'s symptoms relating to his diagnosis of Chronic Adjustment Disorder with Anxious Depressed Mood were of moderate severity.
The [appellant] described to Dr Kochar feeling better with ongoing psychiatric treatment that has controlled his nervous symptoms reasonably well.
Dr Kochar advised that once the compensation issue was finalised, and improvement became the primary goal of psychiatric ·treatment for several months, he could review and reconsider the [appellant]’s capacity for rehabilitation or retraining.
This view raises issues of the permanency of the [appellant]'s psychiatric condition.
Medico-legal opinion is not supportive of a psychiatric condition which could be described as severe.
In 2007, whilst Dr Walton thought the [appellant] appeared to be suffering from a Chronic Adjustment Disorder with Anxiety and Depressed Mood, he thought the principal impediment to recovery and return to work was the [appellant]'s grievance that he had not been provided with what he regarded as necessary surgery to combat his pain.
Dr Kaplan, who made a similar diagnosis, thought the [appellant]'s capacity for work was largely determined by his physical condition.
I am not satisfied, taking into account all the evidence, that any mental impairment is permanent and meets the higher test of ‘severe’ as set out in Mobilio[14].

[14]Ibid [479]–[489].

Accordingly, her Honour dismissed the appellant’s application under s 134AB(37)(c) of the Act.

Grounds of appeal

The appellant relied on the following grounds of appeal:

A Lumbar Spine Injury
1. The decision that the appellant's lower back injury did not constitute a serious injury measured in terms of pain and suffering consequences and/or loss of earning capacity consequences either misunderstood the evidence or failed to correctly apply the evidence to relevant legal principles or was the result of an erroneous reasoning process.
2.The trial Judge erred in failing to place video evidence relied upon … in its proper context in finding that the appellant had not sustained a serious injury with respect to his lower back, in particular-
(a) by comparing it with the totality of video footage identified … and findings made as to the level of disability of the appellant thereby demonstrated;
(b) the likely impact upon the appellant's level of disability from day to day arising from the ingestion of narcotic and other medications;
(c) the appellant's explanation, confirmed by medical evidence in the case, as to the day to day variations in his level of disability;
(d) the failure to have before the Court medical evidence assessing the totality of video evidence tendered.

3. In assessing the appellant's application for a serious injury determination with respect to his lumbar spine condition, the trial Judge failed to place any or adequate weight upon evidence relevant to the level of disability and in particular:
(a) the appellant's persisting complaints of lumbar spine pain;
(b)the evidence of the treating general practitioner Dr Rowais;
(c) the findings upon examination of neurosurgeon Mr O'Brien on 24 January 2006 raising the prospect of spinal fusion surgery;
(d) the findings of the MRI scan of 21 October 2008;
(e) the findings upon examination of Mr O'Brien on 21 April 2009 recommending lumbar facet joint blocks in order to assess the viability of surgical intervention thereafter;
(f) the findings of the MRI scan performed 12 September 2009.

4. The trial Judge erred in failing to fully and adequately assess the appellant's pain and suffering and/or loss of earning capacity consequences arising from spinal injury after taking into account adequately or at all:
(a) the definition of ‘suitable employment’ found in s 5 of the Act;
(b) the appellant's age, limited vocational skills and limited literacy skills;
(c) the appellant's pre-injury earnings during 2002/03 and 2003/04;
(d) the totality of the evidence before the [c]ourt as to the appellant's lumbar spine condition as at the date of trial and in particular:
(i)the appellant's persisting complaints of lumbar spine pain;
(ii) the evidence of the treating general practitioner Dr Rowais;
(iii) the findings upon examination of neurosurgeon Mr O'Brien on 24 January 2006 raising the prospect of spinal fusion surgery;
(iv) the findings of the MRI scan of 21 October 2008;
(v) the findings upon examination of Mr O'Brien on 21 April 2009 recommending lumbar facet joint blocks in order to assess the viability of surgical intervention thereafter;
(vi) the findings of the MRI scan performed 12 September 2009.

4A. Alternatively, the [a]ppellant's accepted compensable injury to his lumbar spine has given rise to the need for spinal fusion surgery which has failed to provide symptomatic relief and the ongoing consequences of his compensable injury when measured in terms of pain and suffering consequences and/or loss of earning capacity consequences can be fairly described as being ‘more than significant or marked’ and as being at least ‘very considerable’[15].
[15]This ground applies only if the Court permits the appellant to reply on fresh evidence.
5. The trial Judge erred in law at [447] and [449] in purporting to make findings adverse to the credit of the appellant based upon cross‑examination as to what [she] had observed of his own movements in video evidence tendered.
6. The trial Judge failed to place any or adequate weight upon the Respondent's acceptance of a compensation claim or claims submitted by the appellant with respect to his lumbar spine condition and the subsequent failure by the Respondent to provide adequate funding for treatment recommended by treating specialists.
7. The trial Judge erred in law at [449] in finding that ‘lack of supporting lay evidence’ impacted upon the weight to be attached to the appellant's evidence, particularly in circumstances where the Respondent did not make any such submission to the Court
8. The trial Judge erred at [446] in finding that the treating general practitioner Dr Rowais had become ‘an advocate’ for the appellant in circumstances where this practitioner was asked in cross-examination to comment upon the credibility of the Appellant.
9. The trial Judge erred in failing to place any or any adequate weight upon the testimony of the appellant's long-standing general practitioner Dr Rowais who was best positioned to give evidence as to the relationship between appellant's employment and his claimed injury and also the consequences of those injuries.
10. The reasons for decision failed to demonstrate an adequate path of reasoning for rejecting the application with respect to serious injury certificates sought with respect to lumbar spine injury in respect of:
(a) pain and suffering damages;
(b)loss of earning capacity damages.

B Psychiatric Injury
11. The decision that the appellant's psychiatric injury did not constitute a serious injury measured in terms of pain and suffering consequences and/or loss of earning capacity consequences either misunderstood the evidence or failed to correctly apply the evidence to relevant legal principles or was the result of an erroneous reasoning process.
12. The trial Judge failed to have any or adequate regard to opinions formed by the appellant's treating practitioners on the basis of repeated presentation to such practitioners and/or clinical examinations performed and/or history relied upon as a basis for diagnosis which was consistent with the presentation and/or clinical examinations performed by those practitioners.
13. The trial Judge erred at [479] and [481] in failing to place any or adequate weight upon the ongoing psychiatric treatment of the appellant by Dr Kochar and the prescription of antidepressant medication and the effect of those treatments upon the appellant's ability to give evidence and to function in the community.
14. The trial Judge failed to fully assess and to evaluate evidence relevant to the appellant's claim for serious psychiatric injury in particular, the evidence of:
(a) treating general practitioner Dr Rowais;
(b) treating psychologist Mr Tsironis;
(c) treating psychiatrist Dr Kochar;
(d) medico-legal psychiatrist Dr Kaplan-

as opposed to the lack of any up-to-date psychiatric assessment of the appellant tendered at trial by the Respondent.
15. The reasons for decision failed to demonstrate an adequate path of reasoning for rejecting the application with respect to serious injury certificates sought with respect to psychiatric injury in respect of:
(a) pain and suffering damages;
(b) loss of earning capacity damages.

Nature of the appeal

The appellant sought leave to initiate proceedings for common law damages in the County Court by Originating Motion filed on 15 April 2010 and the judge handed down her reasons on 28 March 2011. This was after the repeal of s 134AD of the Accident Compensation Act 1985, which required this Court to ‘decide for itself‘ whether an appellant had suffered a serious injury in terms of loss of earnings or pain and suffering.

Both the appellant and the respondent accept that the repeal of s 134AD requires the court to follow the approach in Mobilio v Balliotis[16] in deciding the appeal. It follows that the judge’s decision, that the appellant did not suffer a serious injury to the lumbar spine under s 134AB(37)(a) or a serious psychiatric injury under s 134AB(37)(c), can only be set aside for specific error, or if it is manifestly or wholly erroneous.[17] The onus lies on the appellant to satisfy us that these requirements are met. Moreover:

where, as is often the case when personal injuries are in question the opinions of medical experts are to a considerable extent dependent upon the accuracy of the claimant as historian, the advantage which the primary judge has in assessing the claimant's credibility assumes an importance that is, so to speak, both direct and indirect, when the judge comes to evaluate the lay and expert evidence that has been given.
Moreover, quite apart from the need for an appellant in any case to displace the primary judge's view on questions of fact, and the need for the appellate court in any case to have regard to the judge's advantage where oral evidence is given on contested issues of fact, one must, in an appeal against an order made on an application of the present kind, bear in mind that ‘elements of fact, degree and value judgment are involved’ in the judge's determination: Fleming v. Hutchinson (1991) 66 A.L.J.R. 211. The ultimate question determined by the judge was there said to be one of degree, necessitating an evaluation which did not hinge on any legal principle but depended on the opinion of a judge familiar with a range of conditions within which the instant condition occurred. These remarks of the High Court were made in relation to paras (a) and (b) of the definition of ‘serious injury’, but they are applicable also to para. (c). Where the question is on which side of the line the case falls, and elements of fact, degree and value judgment are involved, it must be more difficult to persuade the appellate court of error than in the case of findings of fact where questions of degree and value judgment do not arise. Once this is accepted, it can at least be said that, where no specific error of law or fact is suggested, an appellate court will interfere with a judge's determination, in a ‘serious injury’ application, of the ultimate question on which side of the line the case falls less readily than it will interfere with a judge's findings on questions of fact which do not require an evaluation.[18]

Grounds 1 to 4, 5 to 9 ( relating to the lumbar spine injury) and 11 to 14 (relating to the psychiatric injury)

[16][1998] 3 VR 833 (‘Mobilio’). This was an appeal against a determination under s 93(4) of the Transport Accident Act 1986, but the same principles apply here.

[17]Mobilio [1998] 3 VR 833, 842.

[18]Ibid 836–7.

Grounds 1, 2(b), 3, 8 and 9 allege that her Honour erred in failing to give proper weight to the medical evidence, particularly the evidence of the appellant’s practitioner, Dr Rowais. Similar complaints are made about the weight which her Honour gave to the psychiatric evidence in respect of grounds 11 to 14.

The medico-legal experts relied upon by the appellant accepted that he was suffering from pain and that his activities were restricted, though Dr Sillcock considered that many of the appellant’s problems are psychosomatic in origin. By contrast, the respondent’s medico-legal experts considered that the appellant was exaggerating the effects of his lumbar spine injury.

None of the complaints which the appellant makes about the weight which her Honour gave to the medical evidence amount to specific errors. Her Honour was required to make a value judgment about the appellant’s serious injury claim based on her examination of the whole of the evidence, including the medical evidence, the video surveillance reports and her view of the appellant’s credibility. The conclusion she reached required her to evaluate the comparative weight to be attached to particular aspects of evidence, and to take into account matters of fact and degree.

Although the judge may have been somewhat harsh in concluding that Dr Rowais had become ‘an advocate’ for the appellant, her Honour was entitled to consider that Dr Rowais’ explanation of variations in the appellant’s gait before and after the appellant attended the physiotherapist in 2005 and before and after he was seen by Mr Jones in 2011, was unconvincing.

Grounds 2 (a), (c), (d), and 5, complain of her Honour’s use of the video evidence, in making a negative assessment of the appellant’s credibility. Her Honour was required to explain her view of the video evidence and did so in some detail. The appellant’s credit was central to his claim to have suffered a serious injury, both because it pertained to the accuracy of his description of the pain and other effects of his injury, and because the opinions of the medical witnesses were necessarily affected by the history of pain and restricted activity which the appellant had given them.[19]
[19] Papamanos v Commonwealth Bank ofAustralia [2014] VSCA 167[33].

As courts have frequently observed, video surveillance showing an injured worker’s activities on a few occasions selected out of a longer period may be of little use in assessing whether an injured worker is exaggerating the effect of an injury. But the limitations of such evidence were taken into account by her Honour who remarked that:

The film in this case was extensive…The surveillance was far more than a snapshot of the [appellant]’s activities but showed his level of movement and activity on numerous occasions over a six month period.[20]

[20]Reasons [448].

Moreover, in this case, her Honour placed only limited weight on the 2005 video surveillance, showing the appellant working on properties belonging to his friends. She gave greater weight to the appellant’s assertion that he was limping when this was not apparent from the films. Standing alone, the fact that the appellant maintained he was limping at times when the video surveillance did not show him doing so, might not have had a serious effect on his credibility. Such evidence might only reflect an understandable tendency of an injured person who experiences pain or a limp intermittently, to believe that a limp is continually present.

But the attack on the appellant’s credibility was not limited to his response to the video surveillance evidence. Her Honour did not err in observing that video surveillance showing the appellant walking freely and squatting in a shop two days before the examination by Mr Jones and walking freely and bending three days later, although he was filmed limping immediately before and after the medical examination, supported the respondent’s case that he had exaggerated the effects of his injury. Although the appellant no longer claims that he suffered a serious injury to his right knee, the judge rightly considered that the video surveillance on those occasions raised doubts about his credibility, which were relevant to his claim to have a serious lumbar spine injury.

The appellant submitted that his activities on the video surveillance were not necessarily inconsistent with the claim to have suffered a serious injury to his spine, because, in both his affidavit evidence and cross-examination, he had acknowledged that his back injury did not prevent him from doing light work. Under cover of ground 4, it is argued that the judge should have considered whether he was capable of undertaking ‘suitable employment’ which was[21] defined in s 5 of the Act as:
[21]Section 5 was substituted by No 67/2013 s 625, and no longer defines this term. The version reproduced in this judgment is drawn from version No 159D of the Act, incorporating amendments as at 5 April 2010. See footnote [1].
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following—
(a)the nature of the worker's incapacity and pre-injury employment;
(b)       the worker's age, education, skills and work experience;
(c)       the worker's place of residence;
(d)the details given in medical information including the medical certificate supplied by the worker;
(e)       the worker's return to work plan, if any;
(f)if any occupational rehabilitation services are being provided to or for the worker;
The appellant submits that his lack of English, his limited education and the fact that he had always worked as a welder, made it difficult, if not impossible, for him to find suitable employment and that this was not taken into account by her Honour. He argues that the judge should have considered whether he was capable of earning 60% of his pre-injury earnings, having regard to these matters. In making that assessment her Honour was also required to take into account the opinions of both Mr Khan that the appellant was incapable of returning to his former job and the opinion of Mr Jones, that the appellant’s capacity precluded him from working in his former job, although he was capable of working full-time in a sedentary or semi-sedentary capacity.[22]
[22]This was also argued under ground 10, relating to the inadequacy of reasons.

The respondent submitted that it was unnecessary for her Honour to consider whether the appellant would have been capable of earning 60% of his pre-injury earnings, because he had claimed that he was totally incapacitated for work.

Because her Honour did not accept the evidence of the appellant and his witnesses that he was totally incapacitated for work, I do not consider it was necessary for her to go on to consider what he might have been able to earn in some other job. The case was not argued on the basis that his earning capacity was reduced, but rather that it was destroyed. If the appellant sought to rely on a reduction in his earning capacity, rather than a total destruction of that capacity, the onus was on him to adduce evidence of the reduction in that capacity. In the absence of that evidence it was unnecessary for her Honour to examine whether, assuming that contrary to his case, the appellant had some earning capacity, he was capable of earning 60% or more of his pre-injury earnings.

I would also reject the argument that her Honour placed inadequate weight on the respondent’s acceptance of the appellant’s compensation claim (ground 6). Her Honour specifically mentioned that the appellant’s claim for statutory compensation for his back injury was initially accepted by the respondent.

Finally, I do not consider that her Honour erred in remarking that the lack of supporting lay evidence affected the weight to be given to the appellant’s own evidence. The appellant’s claims to his doctors about his limited ability to do domestic tasks because of his pain could have been reinforced by evidence from his wife or children. Moreover the lack of lay evidence was not given undue emphasis by the judge, whose remarks on this issue amounted to three words in a single paragraph in a judgment comprising 469 paragraphs, in which her Honour set out the medical and video surveillance evidence in considerable detail.

In my view there is no basis for setting aside her Honour’s factual finding that the lumbar spine injury did not come within the definition of a serious injury. When all the evidence is taken into account, her Honour’s decision was not ‘manifestly or wholly erroneous.’ To the extent that the rejection of the serious injury application was based on the judge’s finding that the appellant lacked credibility, her Honour’s conclusion was neither glaringly improbable nor contrary to compelling inferences.[23]
[23]Fox v Percy (2003) 214 CLR 118, 128.

The same applies to the mental disorder claim based on s 134AB(37)(c) of the Act, which the appellant’s counsel described as ‘secondary’ to the lumbar spine claim. As her Honour pointed out, Mr Tsironis report was long out of date, having been made in October 2005. Although Dr Kochar was guarded about the appellant’s prognosis and Dr Kaplan took a similar view, Dr Walton did not consider that the appellant’s psychiatric condition would prevent him from undertaking pre-injury duties. As with the claim under paragraph (a) of s 134AB(37), the judge was entitled to weigh these opinions in light of her view of the appellant’s credibility. There was no error in her Honour’s finding that the appellant had not satisfied the onus of proving that he had suffered a psychiatric injury which was both permanent and severe.[24]
[24]Devries v Australian National Railways Commission (1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118.

For these reasons, grounds 1 to 4, 5 to 9 and 11 to 14 of the appeal fail.

Grounds 10 and 15

Under cover of these grounds the appellant claims that the judge’s reasons for rejecting the appellant’s serious injury claims do not adequately explain the path of reasoning relied upon by her Honour in reaching those particular decisions.

The appellant’s written submission did not elaborate on the matters that the judge should have discussed in her reasons. However, in oral argument, reliance was placed on the judge’s failure to discuss whether the appellant was capable of undertaking suitable employment as it was defined in s 5 of the Act. It was also submitted that if the judge found that the appellant had some earning capacity despite his lumbar spine injury, her Honour should have gone on to explain why she considered that the appellant was capable of earning 60% or more of his pre-injury earnings of $60,000 per annum (this complaint was also made under ground 4(c)).

The respondent submitted that it was unnecessary for her Honour to discuss the extent of any earning capacity, which the appellant retained, because his case was that he had no earning capacity at all.

Conclusion on grounds 10 and 15

A failure to provide adequate reasons amounts to an error of law. Although ‘perfection is not required’[25] and appeal courts should not be too critical in assessing the adequacy of a trial judge’s reasons. The reasons must enable the losing party to understand why he or she has failed.[26]
[25]Dressing v Porter [2006] VSCA 215 [26] (Ashley JA, Callaway and Buchanan JJA agreeing) and for other authorities see fn 4 in that judgment.
[26]Ibid.

In Hunter v Transport Accident Commission,[27] Nettle JA provided useful guidance on the matters which should be addressed in the reasons. He said:

while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion.[28] It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material, which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material, which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.[29]

[27][2005] VSCA 1.

[28]Cropp v Transport Accident Commission (1998) 3 VR 357 at 376 (Charles, JA); Giannakopoulos v Melwire Pty Ltd [2000] VSCA 153 [23] (Tadgell JA); Dodoro v Knighting (2004) VR 286 at [39] (Buchanan JA), 288 [45], 291 [58] (Eames JA dissenting).

[29]Hunter v Transport Accident Commissioner [2005] VSCA 1 [21] (Nettle JA, Batt and Vincent JJA agreeing).

The appellant did not complain that her Honour failed to set out or misstated the relevant legal principles. Rather, he submitted that her Honour did not adequately explain how those principles were applied to the evidence.

In my view, there are some deficiencies in the judge’s reasons.

Although the judge gave a detailed description of the contents of the reports of the treating doctors and the medico-legal witnesses, and of what could be observed in the video surveillance, there was a gap between that description and the judge’s explanation as to why the appellant had not made out his claim. Her Honour ultimately rejected the claim because she considered the appellant had overstated his level of disability and that there were inconsistencies between his claimed disability and his presentation on film. But perhaps because she took this approach, her reasons did not clearly explain why she rejected those parts of the medical evidence, which provided some support for the appellant’s claim.

Her Honour should have explained why she was not persuaded that the pain and suffering consequences of the appellant’s physical injury were serious, despite the fact that he was prescribed heavy medication, including narcotics, to treat his pain. It would also have been desirable for her Honour to explain her treatment of Mr O’Brien’s report indicating that the appellant might require back surgery if more conservative treatment did not assist him and Mr Jones’ report of 12 January 2011, which indicated that the appellant could not return to his former job, though he was capable of doing sedentary or semi–sedentary work. The fact that Mr Jones had viewed the video surveillance of the appellant taken in 2005, could have been regarded as overcoming (or at least reducing) the effects of any exaggeration in the description of the effects of his injury which the appellant gave to Mr Jones.

Despite these deficiencies, I consider that, on balance, the judge’s reasons for dismissing the claim were sufficient to explain to the appellant why he had not satisfied the burden of proof, which lay on him to establish that he had suffered a serious injury to his lumbar spine or a permanent and severe psychiatric injury. Her Honour’s reasons made it clear that she rejected the appellant’s evidence about the extent of his pain and his incapacity to work and that she accepted the respondent’s case that the effects of his injuries were exaggerated.

For these reasons grounds 10 and 15 fail.

The application to admit additional evidence

The appellant seeks leave to add ground of appeal 4A, which relates to his application to adduce further evidence about his condition, following his spinal fusion operation. The appellant placed primary reliance on this ground in oral argument.

In essence, the appellant argues that, even if, contrary to the submissions outlined above, there was no basis for impugning the judge’s decision, the evidence now demonstrates that he has suffered a permanent serious injury, falling within

s 134AB(37)(a) of the Act.

The appellant seeks to rely on his affidavit sworn on 9 April 2014, in which he deposed (among other things) that:

(j) Despite his surgery he continues to suffer ongoing severe back pain and referred symptoms into his legs, which require him to use morphine daily in the form of Endone and Oxycontin in addition to Panadeine Forte.

(k) He is now receiving a disability pension.

(l) He finds it difficult to sit for more than a short time and standing is limited. He has limited capacity to undertake domestic chores and relies on his sons and neighbours to mow the lawn and do some garden maintenance.

(m) His sleep is interrupted virtually on a nightly basis, despite pain relieving and sleeping medication.

The appellant also sought the admission of a further report from Dr Rowais dated 7 April 2014 and a report from Mr Paul D’Urso, a neuro-surgeon dated 11 June 2014.

Dr Rowais’ report states that, despite his surgery, the appellant has ‘experienced severe non-remitted pain for almost six months [during which] he needed high doses of morphine, sedative, sleeping medication and was fully dependent.’ He considers that ‘Mr Merhi is currently severely traumatised both physically and [mentally] that he will never go back to work again.’

After describing the history of the injury and the appellant’s back surgery Mr D’Urso said:

Ghassan states that currently he has chronic back pain, which he rates as 7.5/10. He has left leg pain 6/10 and right leg pain 7/10. He describes a paraesthetic sensation around his right knee. He describes weakness of his left leg. Ghassan states that he can sit for 30 minutes, stand and walk for one hour and he wakes at night with pain.
CURRENT CAPACITY
Ghassan states that he spends his time doing some light gardening activity, performing hydrotherapy exercises and a home base exercise program. Ghassan is able to go shopping. He can perform cooking and light cleaning activity. He does not wash[30] and he spends time socialising with his family. Ghassan states that prior to his injuries he was able to work in a full-time capacity up to 12 hours per day. He was able to perform unrestricted heavy, physical activity including lifting, bending and twisting. He stated that he could dress himself without assistance. Ghassan states that he can no longer perform these activities.
…
He is currently taking OxyContin, Endone, Panadeine Forte and Lyrica.
…
EXAMINATION
On examination, Ghassan has some global weakness of his left leg more focally affecting the dorsi and plantar flexion movements of his left ankle. Ghassan has a sensory disturbance affecting his entire left leg in a global distribution. Ghassan's knee reflexes are symmetrical but his ankle reflexes are absent. Plantar responses are downgoing. Ghassan's left straight leg raise is positive at 30 degrees for back pain and on the right it is positive at 45 degrees for back pain. Ghassan can stand on his heels but he struggles to stand on his toes on the left side, he can on the right. He can flex his spine so that he comes to 15cm from touching his toes. He extends to 10 degrees. His hips are mobile and nontender. There is a long midline scar in the lumbar region.

[30]This presumably referred to clothes washing.

Mr D’Urso then referred to the results from previous CT and MRI scans including:

•An X-ray of the spine from 21 March 2012 [which] demonstrated a grade 1 lytic spondylolisthesis at L5-S1.
•An x-ray of the lumbar spine from 19 August 2013, 23 August 2013, 30 September 2013 and 30 November 2013 [which] demonstrate a postoperative instrumented interbody fusion at the lumbosacral level. Instrumentation appeared to be in satisfactory positioning.
•A CT scan from 26 November 2013 [which] demonstrated satisfactory position of L5-S1 instrumented interbody fusion. Broad based prolapse was noted at the L3-4 level. Bony consolidation appeared to have occurred at the site of the surgery.

In response to a question about the appellant’s treatment, he said:

In regard to treatments I recommend that Ghassan be enlisted into a multidisciplinary rehabilitation program with a strong emphasis on psychological counselling and pain management strategies. Simple anti-inflammatory and analgesic medication should be considered. Medication for neuropathic pain should be continued. Narcotic medication should be weaned or minimised as much as possible. If neuropathic symptoms were to continue affecting the lower limbs, neuromodulation technology may be of benefit.

Mr D’Urso said that the appellant had no capacity for pre-injury employment at the time of examination or into the foreseeable future and that:

He has no capacity to perform any type of repetitive bending, twisting or lifting activities. He does not have capacity to perform pushing, pulling or lifting of weight in excess of 5kg. Ghassan does not have capacity to perform any type of employment activity, which requires him to kneel, squat or crouch or maintain prolonged sitting or standing postures in excess of one hour. He does not have capacity to use steps or ladders. I consider that these restrictions would be of a permanent nature.
…
Ghassan has no capacity to perform unrestricted cleaning or domestic gardening activity. He appears to have limited capacity to perform any type of recreational sporting activity. These restrictions would be similar to those mentioned in the text above insofar as his workplace capacity.

He considered that:

Ghassan has developed chronic incapacity and pain syndrome. He is likely to have a permanent incapacity of a total nature for any type of employment activity. Ghassan would be prone to a degree of degenerative progression at the motion segments above his fusion, particularly at the L3-4 level where there is evidence of broad based disc prolapse.
As mentioned in the text above, I would recommend that Ghassan be reviewed by a multidisciplinary rehabilitation facility. This should have a strong emphasis on psychological counselling and a functional restoration program of physical therapy. Psychiatric assessment and evaluation would be recommended as Ghassan appears to have a significant adjustment disorder with depressed mood and anxiety as a result of his workplace injury.

Mr D’ Urso concluded that:

Ghassan Merhi presents with a history of chronic back pain and sciatic symptoms. He appears to have sustained injuries to his chest, right shoulder and right hand and possibly his right knee as a result of a workplace injury sustained on [24] February 2004. I note that Ghassan subsequently underwent surgery on his right knee as well as the lumbosacral fusion procedure. The lumbar surgery appears to be technically successful but Ghassan has been left with a chronic pain syndrome.
I would recommend an assessment by a multidisciplinary rehabilitation facility with a strong emphasis on psychiatric intervention, psychological counselling and physical therapy. Ghassan's condition has stabilised at this point in time.

The appellant also seeks to rely on the report of Dr Tom Oxley, of the Royal Melbourne Hospital, dated 2 May 2014, which says that:

Mr Merhi was reviewed by the acute pain service post operatively. He reported that the pre-existing sciatic pain had resolved and that he had minimal pain. He then developed increasing pain from the 17th of August.
Mr Merhi was reviewed on the 2nd of October 2013 in the orthopaedic clinic. He reported ongoing mild L5 back pain. The wound appeared healthy.
Mr Merhi was lastly reviewed by the same clinic on the 13th of November 2013, three months following the operation. He complained of left great toe pain. He reported this toe had previously been numb. Power in the lower limbs was noted to be normal.

The respondent submits that, if leave is granted to the appellant to admit fresh evidence, it should also be given leave to adduce evidence of video surveillance taken of the appellant since his back operation. The respondent contends that these films cast doubt on the appellant’s credit and that accordingly the evidence ‘only serves to commence a debate rather than end one.’

The principles

The court has the power to receive further evidence under r 64.22(3) of the Supreme Court (General Civil Procedure) Rules 2005. In Mobilio, Brooking JA held that, in an appeal against a decision on whether a person has suffered a serious injury for the purpose of s 93(4) of the Transport Accident Act 1986, the court should apply the principles relating to the admission of further evidence which were articulated in the leading judgment of Lord Wilberforce in the House of Lords in Mulholland v Mitchell,[31] and by the New South Wales Court of Appeal in Radnedge v Government Insurance Office of New South Wales[32] and in Doherty v Liverpool District Hospital.[33]
[31][1971] AC 666, (‘Mulholland’).
[32](1987) 9 NSWLR 235.
[33](1991) 22 NSWLR 284; see also Warr v Santos [1973] 1 NSWLR 432.

These principles were also discussed by Chernov JA in Foody v Horewood[34] where the appellant sought the admission of further evidence in support of his claim to have been oppressed as a minority shareholder.Chernov JA discussed Lord Wilberforce observations in Mulholland as follows:
[34][2007] VSCA 130 [59]–[60], [62]–[66].

[I]t should be noted that his Lordship did not purport to lay down an exhaustive test but emphasised that the question was largely one of discretion and degree having regard to the public interest in finality of litigation balanced against the requirements of justice of the case. Lord Wilberforce relevantly said:
‘I do not think that, in the end, much more can usefully be said than, in the words of my noble and learned friend, Lord Pearson, that the matter is one of discretion and degree. Negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judge’s estimate has previously been made. Positively, it may be admitted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too it may be expected that the Courts will allow fresh evidence where to refuse it would affront common sense, or a sense of justice. All these are only non-exhaustive indications; the application of them, and their like, must be left to the Court of Appeal. The exceptional character of cases in which fresh evidence is allowed, is fully recognised by that court.’

His Lordship confirmed that the determination of the issue must proceed from an examination of the process involved in the decision below – in that case, it was the process by which damages were fixed by the trial judge ...
The above principle recognised in Mulholland was considered in Doherty v Liverpool District Hospital… Gleeson CJ (with whom Meagher and Handley JJA agreed) recognised that the principles set out by Lord Wilberforce in Mulholland did not seek to lay down a precise formula, and affirmed that the question of the admissibility is one of discretion and degree. More particularly, the Chief Justice said that what Mulholland emphasised was that ‘the exercise of the discretion is to be undertaken with regard to the context in which it arises and also to the general public interest in the finality of litigation’.[35]

[35]Ibid [62]-[64] (citations omitted).

Justice Chernov observed that in Mobilio, the court accepted that, ordinarily, the discretion to admit evidence on appeal relating to matters arising after trial should only be exercised in exceptional cases. In Mobilio, the appellant was refused leave to admit medical and other evidence arising after trial, which showed that the appellant was suffering from a major depressive illness. In refusing leave, Brooking JA said:
The further evidence sought to be led was concerned with such matters as the mood of the [appellant], her ability to work, her suicidal tendencies, her dependency on medication and her need for electro-convulsive therapy. These matters had all been gone into at the hearing. It is true that the evidence, if permitted to be led, would have shown that in some respects things had changed, but none of the changes went beyond what was reasonably in contemplation at the time of the hearing. It is a matter of degree, but I am not prepared to say, using the words of Viscount Dilhorne and Lord Pearson in Mulholland, that the circumstances of this case are exceptional or (using the words of Viscount Dilhorne) that the question was determined at the hearing on a basis which events after it have falsified. Nor, using the words of Lord Hodson, would I say that the basis upon which the case was decided at the hearing was suddenly and materially falsified by a dramatic change of circumstances. In picking up these expressions I do not of course suggest that there is any ‘precise formula which gives a ready answer’, reminding myself of the caution expressed by Lord Hodson.[36]
[36]Ibid [65], quoting Mobilio (1998) 3 VR 833, 853.
In Clark v Stingel[37] this Court held that leave should not be granted under r 64.22(3) unless:
[37][2007] VSCA 292.

(n) the evidence could not have been discovered in time to be used in the trial;

(o) ‘it is reasonably clear that if the evidence had been available at trial, and had been adduced, an opposite result would have been produced’; and

(p) ‘the evidence proposed to be adduced is reasonably credible.’[38]

[38]Ibid [25].

Counsel’s submissions

The appellant submits that because the judge rejected his claim that he had on-going pain and was incapable of doing more than light work for a few hours a week, her Honour had not taken any account of the possible need for back surgery, in assessing whether the appellant’s lumbar spine injury was ‘serious.’ Nor had she factored in the possibility that the operation might be unsuccessful in relieving his pain and other symptoms.

The appellant contends that the circumstances in Mobilio are distinguishable from the facts in this case because in Mobilio the court held that the new evidence did not go beyond what was contemplated at the time of the hearing and the circumstances of the case were not exceptional.

In this case, by contrast, the only witness who said that the applicant’s lumbar spine condition required back surgery was Dr Rowais. Dr Rowais’ evidence was rejected by the trial judge because her Honour considered that he had become an advocate for the applicant. Mr O‘Brien had suggested conservative treatment of the appellant’s back condition, although he had said that surgery might be indicated if the medial branch block did not improve the appellant’s facet–related pain. If the evidence about the effects of the appellant’s back surgery had been available at trial it was likely that the judge would have reached a different result. Further, the evidence proposed to be adduced about the effects of the operation is credible.

In these circumstances the appellant submits that this Court should give the appellant leave to adduce evidence relating to the failure of the back surgery to overcome the appellant’s pain and loss of earning capacity.

The respondent submits that leave should not be granted to adduce the evidence of the back surgery and its after effects, because the evidence relates to matters reasonably in contemplation at the date of the trial. Dr Rowais considered that back surgery was required and Mr O’Brien had said that this was a possibility. Further, the respondent contends that the evidence of the effects of the back surgery cannot be relied upon to establish that her Honour erred, because the judge’s task was to decide whether the appellant had suffered a serious injury, as at the date of her Honour’s decision.

The respondent submits that, for the purposes of assessing whether the

Clark v Stingel
requirements are satisfied, the court should grant it leave to admit video surveillance evidence of the appellant after his spinal fusion surgery. The evidence is said to cast doubt on the appellant’s claim that he continues to suffer intense pain and is incapable or working. Further, the evidence of Mr D’Urso that, after the appellant had his back surgery, he was suffering from ‘chronic pain syndrome’ was dependent on the history which the appellant gave to Mr D’Urso. The respondent further submits that the appellant should not be permitted to adduce fresh evidence, because even if evidence relating to the appellant’s back surgery had been available at the trial, it would not have resulted in her Honour reaching a different conclusion.

Conclusion on fresh evidence application

The question whether the appellant should have leave to adduce further evidence is not without difficulty.

I would accept the appellant’s submission that the circumstances of this case differ from those in Mobilio.[39] Because her Honour was critical of Dr Rowais’ evidence and considered that the appellant had exaggerated the effects of his injury, she did not address the possibility that the appellant’s back condition would continue to deteriorate, that he would require surgery, and that the surgery might not alleviate his pain or the other effects of his injury.
[39][1998] 3 VR 833.

In these circumstances, and subject to the other matters discussed below, I consider that it would affront common-sense and justice to refuse to permit fresh evidence to be adduced showing that the prediction made by Dr Rowais, that the appellant would require back surgery, has turned out to be correct.

I would reject the argument that this court should not give leave because the decision whether the appellant had a serious injury had to be determined at the time of the County Court hearing. In Mobilio, it was assumed that the evidence could be admitted, in exceptional circumstances, despite the fact that the decision whether there was a serious injury was to be made at the time the original application was heard.[40]
[40]At the time Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622 was decided, s 134AD of the Act applied. This section required the Court of Appeal to ‘decide for itself’ whether the injury came within the definition of a serious injury on the evidence and the other material before the judge below. Thus the appellate court was deciding whether the worker had a ‘serious injury’ at the time the application was heard at first instance. Nevertheless in Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622, 639-40 [37] the Court (Ormiston, Chernov and Phillips JJA) opined that ‘presumably, if the worker’s condition deteriorates significantly after the hearing at first instance and before the appeal, that might ground an application to receive fresh evidence’. See also Tavares v Tavares [2003] VSCA 1.

Section 134AB(21) of the Act provides that ‘if a worker makes an application in respect of an injury, the worker must not make a further application under that subsection in respect of that injury’.[41] The fact that a worker can only make one application for leave to bring proceedings for damages in respect of a serious injury, even if a serious deterioration occurs subsequently, fortifies my view that the requirement that the judge determine whether the injury was serious at the time of the application does not prevent the court from exercising the power to grant leave to admit fresh evidence on appeal.
[41]Although this provision was substituted by No. 9/2010, s 57(4), analogous text was included in the predecessor provision.

I would accept the appellant’s submission that in deciding whether to grant leave to adduce that evidence primary weight should be given to medical opinions and video surveillance relating to the condition of the appellant after he was operated upon. The fact that the appellant may have exaggerated the effects of his injury prior to his back operation should be taken into account in determining whether the appellant’s evidence of pain and the other effects of the injury should be accepted. But it does not compel the conclusion that the appellant’s evidence about his current pain and loss of earning capacity should be rejected.

Clark v Stingel does not explain the way in which the requirements described above interact with the principles laid down in Mulholland. I assume as a matter of logic however, that the Clark v Stingel principles would prevent the grant of leave to admit fresh evidence if that evidence is unlikely to alter the outcome of the proceedings and/or is not reasonably credible.

The respondent argues that the evidence should not be admitted because video surveillance demonstrates that the appellant is not suffering from the degree of incapacity outlined in the reports of Dr Rowais and Mr D’Urso dated 7 April 2014 and 11 June 2014 respectively. The opinion of Mr D’Urso was that the appellant was suffering from chronic pain syndrome. But Mr D’Urso’s view was dependent on the history given to him by the appellant. The respondent contends that in these circumstances, the third requirement in Clark v Stingel is not satisfied.

The video surveillance, which the respondent seeks leave to admit is approximately 13 minutes in length. It shows appellant doing some light gardening at home and coming out of the Fawkner Leisure Centre, carrying a sports bag.

The respondent submits that, in the gardening portion of the video surveillance, the appellant is working in a ‘normal and unrestricted manner’. The most compelling aspect of the video surveillance evidence is that in the course of doing some light raking, the appellant is seen to bend over five times while supporting himself with a rake to pick up debris.

However, I do not consider that the video surveillance is inconsistent with the opinion of Mr D’Urso, who reports that:

Ghassan states that he spends his time doing some light gardening activity, performing hydrotherapy exercises and a home [based] exercise program.

In the medical report provided after the appellant’s surgery Dr Rowais maintains his position that the appellant has suffered a very serious injury, which incapacitates him from work. Having regard to the trial judge’s criticisms of Dr Rowais as a witness, I would not regard that evidence, standing alone, as compelling. However, combined with the evidence of Mr D’Urso, I consider that the weight of medical opinion might now support the appellant’s claim to have suffered an injury which is serious in terms of both pain and suffering, and loss of earning capacity.

The surgical procedure recommended and carried out on the appellant’s back was invasive and carried serious risks. Indeed the appellant suffered cardiac arrest during surgery and had to be resuscitated. Further, Mr D’Urso observed that he now has a broad based disc prolapse at L3 /L4 level and that he will be prone to further spinal deterioration. I would accept the appellant’s submission that the fact that the appellant required spinal surgery supports his serious injury application. To infer otherwise would be to assume that the doctors responsible for the appellant’s care were capricious in their decision to recommend surgery.

Taken together with the post-operative medical reports referred to above, which indicate that the appellant is on a regime of heavy neuropathic and narcotic pain relief and that the nature of his injury was not to cause complete disability or immobility, but rather an incapacity to sustain activities such as repetitive bending, lifting weights above five kilograms, twisting, kneeling, squatting or lifting, the evidence now relied upon is capable of establishing that the appellant now has a

serious injury, although that evidence should be tested.

For these reasons I would grant leave to admit the fresh evidence relied upon by the appellant, as well as the video surveillance reports relied upon by the respondent. I would grant leave to the appellant to add ground of appeal 4A and I would accept that ground insofar as the fresh evidence requires the question of whether the appellant has a ‘serious injury’ to be re-determined.

I would quash the decision below. In my opinion the Court of Appeal should not decide the matter for itself, but should remit it to a County Court judge, other than the judge who heard the initial application, to determine whether, on the whole of the evidence, the appellant is now suffering from a serious injury falling within s 134AB(37)(a) of the Act. I take the view that the matter should be remitted to the County Court because of doubts about the appellant’s credibility and the need for him to be cross-examined as a result of the admission of the fresh evidence.[42] I would allow the appeal.

[42]Compare the approach taken in Hunter v Transport Accident Commission 2005 VSCA 1, where no questions regarding the appellant’s credibility arose.

TATE JA:

I have had the advantage of reading, in draft form, the judgment of Neave JA. I agree, for the reasons her Honour gives, that the appellant’s application for leave to adduce fresh evidence in the appeal should be granted, the appeal should be allowed, and the matter remitted to the County Court to determine whether, on the whole of the evidence, the appellant is now suffering from a serious injury falling within the definition of ‘serious injury’ in s 134AB(37)(a) of the Accident Compensation Act 1985 (Vic). The ‘whole of the evidence’ should include the fresh evidence the appellant relied upon on the appeal, and the respondent’s video surveillance evidence of the appellant taken after his spinal fusion surgery. The matter should be heard by a judge other than the judge who heard and determined the appellant’s initial application from whom this appeal is brought.

SANTAMARIA JA:

I agree with Neave JA.

–––

[2014] VSCA 328

12 December 2014