Poholke v Goldacres Trading Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0056

BETWEEN

ANDREW NATHAN POHOLKE	Applicant
And
GOLDACRES TRADING PTY LTD	First Respondent
And
VICTORIAN WORKCOVER AUTHORITY	Second Respondent

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JUDGES:	HANSEN, KAYE and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 September 2016
DATE OF JUDGMENT:	6 October 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 232
JUDGMENT APPEALED FROM:	[2016] VCC 371

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ACCIDENT COMPENSATION – Appeal from unsuccessful application under s 134AB(16)(b) Accident Compensation Act1985 – Serious injury – Prior injury – Disentanglement of injuries – Whether reasons of primary judge adequate – Reasons inadequate – Appeal allowed – Application re-determined on appeal.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr B E Walters QC with Mr C Smale	Saines Lucas
For the Respondents	Mr M F Wheelahan QC with Mr S E Gladman	Thomson Geer

HANSEN JA
KAYE JA
McLEISH JA:

The applicant seeks leave to appeal from a decision of a County Court judge[1] dismissing his application, pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’), for leave to bring proceedings in respect of an injury to his lower back that he sustained in the course of his employment with the first respondent (‘the respondent’) on 15 or 16 May 2013.
[1]Poholke v Goldacres Trading Pty Ltd & Anor [2016] VCC 371 (‘Reasons’).

In the application before the primary judge, the applicant contended that he had suffered a serious injury as defined in s 134AB(37)(a) and (c) of the Act. In this application, the applicant does not seek leave to appeal the judge’s conclusion that he did not suffer a permanent severe mental or permanent severe behavioural disturbance or disorder as required by paragraph (c) of the definition of ‘serious injury’ in s 134AB(37) of the Act. Accordingly, the applicant only seeks leave to appeal from the decision of the judge that he had not established that the injury to his back constituted a serious injury within the meaning defined in subparagraph (a) of that subsection.

Background

The applicant was born in June 1974. He was educated to Year 10 level. After leaving school he became a trained welder. In August 2008, he commenced working for the respondent, which was involved in the manufacture of agricultural sprays and associated equipment. The applicant was employed principally as a steel fabricator and welder. He worked full time, and often earned overtime. His duties included maintenance work, structural work, welding, steel fabrication, oxy cutting, spray painting and construction.

On 10 May 2011, the applicant suffered a serious injury to his neck and right shoulder when lifting a heavy trestle while working for the respondent. Initially after sustaining the injury, the applicant attended at the Ballarat Base Hospital, where he was told that he had pulled a muscle in his neck and he should take a few days off. He subsequently consulted his general practitioner, Dr Choong. Dr Choong referred the applicant to Mr David Wallace, a neurosurgeon. Mr Wallace requested x-rays, a CT scan and an MRI of the cervical spine. Those investigations confirmed a C 6-7 disc protrusion with compromise to the right C 7 nerve root. Mr Wallace prescribed conservative treatment for the applicant, including physiotherapy, massage therapy, a back brace and analgesics.

As a result of that injury, the applicant was certified by his medical practitioners to be on modified duties in the period that preceded the incident in May 2013 in which he sustained his lumbar spine injury. Notwithstanding those certificates, having returned to work on light duties, he was subsequently put in charge of extensions that the respondent was undertaking at its factory in 2012. In the course of performing that work he frequently performed tasks which were considerably heavier than the modified duties which he had been certified fit to perform by his doctors.

In July 2013, the applicant was granted a serious injury certificate to commence common law proceedings for pain and suffering in relation to his neck injury. In June 2014, a jury awarded him damages of $290,000 for pain and suffering in respect of the neck injury.

On 15 or 16 May 2013, the applicant was working on an elevated work platform, engaged in the extension of a paint line. After he had brought the lift to ground level, he commenced to exit it. As he did so, he lost his footing on the ladder, and fell a distance of approximately one metre, landing heavily on the ground. As he hit the concrete floor, he immediately felt a severe sharp pain in his lower back and right leg, and he had trouble straightening up. He reported his injury to his employer, but he completed his work for the day, over the next hour or so.

On the next day, the applicant’s pain was worse. Accordingly, he attended at Ballarat Base Hospital. He was certified unfit for work for the remainder of the week. On 20 May, the applicant attended his general practitioner, Dr Choong. Dr Choong diagnosed a lumbar strain and referred the applicant for physiotherapy. He was certified unfit for work. During that period the applicant attended a physiotherapist. On 27 May, the applicant was certified by Dr Choong to be fit to return to work on modified duties. However, he continued to suffer pain in the lower back and down his right leg, and accordingly he re-attended Dr Choong on 17 June. Dr Choong referred the applicant for a CT scan, and certified him unfit for work. The CT scan showed a right L 5-S 1 disc protrusion. The applicant was then referred to Mr Wallace, whom he attended on 27 June 2013. Mr Wallace ordered an MRI scan, which was conducted on 23 July 2013. It revealed desiccation of the discs at the L 2-3, L 3-4 and L 5-S 1 levels, and a disc protrusion central at L 5-S 1 with an annular tear, but with no neurological compromise.

In the meantime, Dr Choong had certified the applicant fit for modified duties for four days a week, with no lifting over five kilograms and no excessive bending or twisting. Subsequently, he was certified fit for full time modified duties with the lifting limit increased to 10 kilograms.

The applicant continued to work, albeit under great difficulty, often taking Endone and other heavy painkillers to enable him to get through the day. At his suggestion, the respondent placed him to work in the boom shed performing lighter work which enabled him to walk around. He persisted in working in the factory under considerable difficulty, and often in great pain. Ultimately, the respondent terminated his employment on 19 December 2013, on the basis that the respondent did not have any work for him. Since then the applicant has not been able to find any suitable alternative employment.

Evidence of the plaintiff

The plaintiff deposed to two affidavits in support of his application, and he was cross-examined at the hearing of the application. In those affidavits he set out the background facts to which we have referred. He confirmed that after suffering the injury to his neck, he had returned to work on light duties, which initially required him to lift no more than 10 kilograms. However, when the respondent commenced to undertake factory extensions in 2012, he was put in charge of that work, and in the course of performing those duties he frequently carried out tasks that were considerably heavier than the modified duties which he had been certified fit to perform.

After the applicant returned to work having suffered his back injury in May 2013, he worked under considerable difficulty, often taking Endone and other heavy painkillers to enable him to complete a day’s work. He was taken off constructing the paint line, and given the lightest duties in the factory, standing at a bench putting plumbing fittings together. Nevertheless, he found that even the performance of those light duties caused him considerable low back pain. In particular, the pain was exacerbated by the fact that the applicant was required to stand in the one place for a period of time, and he needed to be able to walk to alleviate his discomfort. As a result, he was moved to the boom section, which involved fitting poly fittings to booms. Although that work enabled him to walk about the factory, he continued to suffer considerable low back pain, in addition to the background pain in the neck and shoulder, from which he had suffered before his back injury. He said that after that injury, the pain was so bad that he needed to take half hour toilet breaks just to go to sit down and rest his lower back.

The applicant stated that because of the amount of pain that he was suffering, he had a discussion with the spare parts manager of the respondent about a vacancy in that division of the business. However, subsequently, the general manager, Mr Richards, expressed the view that the applicant was too old and did not have sufficient computer skills to be able to handle that job.

Since the termination of his employment with the respondent, the applicant has not been able to obtain any other employment. He has made inquiries with regard to work that he could perform, but has been unable to identify any alternative employment which he could undertake in the light of his disabilities. In February 2014, the WorkCover insurer sent him to Recovre for occupational rehabilitation. He attended that organisation about 12 times. However, he did not receive any re-training or re-skilling from it. The applicant stated that he had always prided himself on being a highly skilled hard physical worker, but he had few computer or literary skills.

Before suffering the injury to his neck, the applicant had been engaged in his own business — conducted at home — manufacturing trailers. After suffering his neck injury, he had difficulty carrying out the manufacturing work. However, those difficulties were magnified substantially by reason of his low back injury. Accordingly, after suffering the injury to his lumbar spine in May 2013, he was forced to stop working on the trailers.

In his second affidavit, the applicant stated that he continued to suffer pain in his neck and shoulder, but that the lower back pain, and particularly the pain in the left leg, was worse. He said that on some days the leg pain was so bad that he wanted to have his leg cut off. As a result of his pain, his concentration was impaired, he had little or no libido, and on occasion he entertained suicidal thoughts. He continued to have a lot of trouble sleeping as a result of the back pain and the neck pain. As a result of his back injury, he could no longer drive long distances, and he needed to take a break when driving every half hour or so. Before he suffered his back injury, he used to go to drag races with friends, but he had not done so during the previous 12 months (before the date of the affidavit in September 2015). In addition, once he got to the track he could no longer work on cars and engage in other such activities which had been a source of enjoyment to him.

At the hearing of the application, in cross-examination, the applicant confirmed that his employment with the respondent was terminated because the respondent no longer had work available for him. He said that for the last two months or so of the employment he had resumed working normal hours undertaking light duties.

The applicant confirmed that as a result of the accident in May 2011, he had suffered a very disabling injury to his neck and shoulder. He said that he had suffered constant pain from that injury, which continued until the time his employment was terminated with the respondent. The applicant said that that level of pain had continued to affect every part of his daily living. In particular, that pain ‘remained in its full flurry’ right through to the present time. He said that while he was sitting in the witness box, his head and shoulder movements were very restricted, and the whole of his right arm and side of his neck were aching and felt really bad. He agreed that as a result of the neck injury he suffered migraine headaches two or three times a week. On one occasion, in August 2012, his arm was in such great pain that he had no choice other than to drop his 12 month old son who he was holding. He also said that because of his neck injury he could no longer bathe or carry his son.

The applicant stated that until the trial of his common law claim in June 2014 he had not slept much because of his neck injury. He said that since then his neck pain had remained the same, but he now could not sleep because of both his neck injury and his back injury. As at June 2014, he had treated the pain at the back of his head by taking a mixture of Endone and Panadol. He said he used to enjoy engaging in riding mountain bikes and working on cars, but both of those activities had been lost to him as a result of the neck injury. In addition, the neck injury had resulted in the loss of his relationship with his partner, as well as the loss of his capacity to conduct his trailer business, to engage in sexual activity, to ride dirt bikes, to attend the cinema and to read without difficulty. In short, the applicant agreed that every aspect of his life, away from work, had been severely impacted by the neck injury.

When cross-examined about the level of his back pain, he denied that he suffered mild back pain.

In re-examination, the applicant stated that during the two years between his neck injury and his back injury, his work duties with the respondent had never really changed. He had performed alternative lighter duties for about one week, but after that his duties increased significantly when he was asked to supervise the extension of the shed at the plant. In that capacity, he was in charge of the work done in the extension, but he was required to do a lot of structural welding. He described those tasks in some detail. In particular, he used a forklift to move concrete that had been removed out of the ground, and he had to weld stiffeners in support columns from a knuckle boom. He said that during the shed extension task, initially he was working 10 hours per day, for five days a week. However, the occupational health and safety representative told him he could not work overtime, so his hours were reduced to 7.6 hours per day. The extension of the shed took approximately six months to complete. After that, he worked on installing a new paint line which required him to perform further welding work. He was performing that work at the time that he suffered his back injury, working 7.6 hours per day for five days per week. In addition to those tasks, during the two year period that preceded his back injury, the applicant had also been involved in constructing a large mezzanine floor in the respondent’s premises. That task occupied about two months, and involved the applicant carrying out welding work.

The applicant stated that while performing that work during the period May 2011 to May 2013, he had experienced pain in his neck and shoulders all of the time. The pain flared down his arm.

The applicant was then re-examined about his circumstances after he suffered the back injury in May 2013. He said that after that injury he had a lot of trouble doing the smallest things. When he was performing the light duties involving fitting the small plumbing fixtures, he suffered a lot of pain in his legs. Because he needed to move around, he was relocated to work in the boom shed, fitting wings on the sprayers. He described that work as light and easy. Nevertheless, he still suffered a lot of trouble performing that work, because he was experiencing pain in the lower half of his body as well as in his neck. He said that he would go to the toilet and sit down for half an hour just to get some rest, or wander down the back paddock, to stretch himself.

The work that the applicant was performing on the boom section required him, from time to time, to drive some of the equipment around the factory. However, he could not always do that because he had taken Endone, which made it unsafe for him to drive.

When asked by counsel if he had any discussions with his employer about getting different work or leaving the job, the applicant responded that his employer told him that it was going to ‘finish me up because my doctor wouldn’t sign the return to work thing because of my injuries’. When one of his fellow employees heard of that, he suggested to the applicant that he should work with him in the spare parts shop. However that employee subsequently told the applicant that his suggestion had been rejected because the applicant did not have sufficient computer skills. The applicant further stated, in his evidence, that apart from the injury to his back, he was not aware of any other reason why his employment with the respondent was terminated.

The applicant stated that he did not know of any light work in the area in which he was living which he was sufficiently skilled to undertake. He said that he had looked for jobs in the newspaper, and he had also made inquiries when he spoke to people. He had also visited a job search website to look for available employment. However, he had not had any success in gaining alternative employment. He had no skills to undertake computer work or office work.

The applicant stated that he visited his son every weekend. His son is now four years of age and has autism. However, he has difficulty playing with his son because of the pain in his back. On one occasion, when the applicant and his son were in a shop together, the son had run off, and the applicant had had to chase him, as a result of which he experienced severe pain.

The plaintiff’s father, Terrill Poholke, also swore an affidavit in support of the application. Mr Poholke stated that his son’s neck injury had restricted his activities, but he had continued to be able to tinker with motor vehicles until he injured his back. The applicant was very proud of his work with the respondent; notwithstanding that he suffered the neck injury, he was very keen to continue working, and he even worked overtime. After suffering the lower back injury in May 2013, the applicant was keen to return to work, but, in the opinion of Mr Poholke, he pushed himself too hard and did too much. After suffering that injury, the applicant was not capable of performing manual work without undue pain. Mr Poholke also described the applicant’s domestic limitations as a result of his back pain, including his inability to enjoy normal sporting and recreational activities with his young son.

The applicant also tendered a reference written by Mr Roger Richards, the general manager of the respondent, dated August 2013. In that reference, Mr Richards described the work carried out by the applicant during the previous six years. He concluded:

Andrew managed himself with little requirement for direction by management, he has a great work ethic and a can do attitude.

The applicant also tendered a summary of his income tax returns over the previous six years. For the last three complete financial years before the applicant sustained the back injury, the applicant’s gross income was $58,536, $60,929 and $60,814 respectively.

Medical evidence — neck injury

It is next convenient to summarise, briefly, the medical evidence that was confined to the applicant’s neck injury. That evidence is contained in a number of medical reports.

Mr Wallace, in a report dated June 2014, and relating solely to the applicant’s neck injury, stated that that injury had rendered him permanently more prone to neck pain and arm pain than a normal individual. In particular, he was prone to pain and sensory disturbance in the arms from the injuries to the discs at the C 5-6 and C 6-7 levels. He required ongoing treatment for his neck, with the intermittent use of a cervical collar to protect him from aggravation of his symptoms from extremes of movement. If the symptoms in the applicant’s arms continued or deteriorated, surgical intervention might be required, consisting of either a nerve root compression from behind or an anterior cervical discectomy and fusion at one or two levels.

The applicant was examined by Dr A Capes, an industrial physician, at the request of his solicitors in September 2012. Dr Capes expressed the view that the applicant had sustained a severe injury to his neck, consisting of aggravation and possible acceleration of cervical disc degenerative disease leading to foraminal stenosis especially at the C 5-6 and C 6-7 levels. Dr Capes stated that the applicant had a capacity for work, but with restrictions that he not lift weights greater than 10 kilograms, no repetitive neck movements or bending, no overhead work and no prolonged driving. His prognosis was guarded.

Mr Thomas Kossman, an orthopaedic surgeon, examined the applicant at the request of his solicitors in September 2012. At that time, the applicant told Mr Kossman that he was continuing to work as a maintenance welder on full duties, full time. Mr Kossman’s diagnosis was that of pain and restriction of movement of the cervical spine caused by degenerative changes, and pain and restriction of movement of the right shoulder. He considered that the applicant would never become pain free in the cervical spine and right shoulder, if he continued to work in the heavy physically demanding employment he was then engaged in. He expressed the view that the applicant should cease lifting heavy items and should cease working above his shoulder or head.

The applicant was examined by Mr Barclay Reid, a general surgeon, at the request of the respondent in October 2012. Mr Reid noted that, notwithstanding the limitations prescribed by the applicant’s medical practitioners, in reality he was carrying out normal duties. Mr Reid diagnosed that the applicant had an injury of the cervical spine with disc protrusion at the C 6-C 7 level, that comprised the C 7 nerve root, and with generalised disc bulging at other levels on a background of pre-existing multi-level disc degeneration. The applicant’s prognosis was uncertain as the disc prolapse, nerve root compression and his symptoms had been unchanged for about eight months radiologically. He expressed the view that it was dangerous for the applicant to continue in the work that he had been carrying out before he was injured, and that he should not be performing work involving heavy lifting and overhead work.

Mr David Brownbill, a consultant neurosurgeon, examined the applicant, in respect of his neck injury, on behalf of the respondent in September 2013. Mr Brownbill noted that radiological investigation demonstrated cervical spine degenerative changes especially at the C 6-7 level, with right posterolateral disc protrusion. Mr Brownbill considered that the applicant’s work had caused the injury, which had occurred in the context of pre-existing asymptomatic degenerative changes. He considered that the applicant should in the future avoid activities involving heavy lifting, forced cervical spine mobility or holding his neck in a fixed position. Accordingly, the applicant’s work as a welder was not appropriate for him. However, he would be able to continue with modified duties, that did not involve heavy lifting, forced spine mobility or holding his neck in a fixed position.

Medical evidence — plaintiff’s back and neck injuries

A number of the medical reports relating to the applicant’s neck injury also dealt with his back injury. It is convenient to summarise those medical reports in this section.

Mr David Wallace provided a report dated September 2015, relating to the applicant’s lower back injury. He stated that after the MRI scan in August 2014, he advised the applicant to wear a back brace when doing heavy physical work, and to be mindful of his back. He also advised the applicant to proceed with a pain management program. On review in January 2015, the applicant had suffered a recent flare up of his lower back problem, stating at times that the pain could be agonising and severe. Mr Wallace considered that the applicant was incapable of carrying out heavy physical work, and he did not have any useful forms of alternative employment available. His incapacity for work was directly related to the injuries to both his neck and back. Mr Wallace concluded:

I would regard his back injury as quite significant and likely to produce enduring problems, severely limiting his ability to gain suitable employment.

The applicant was also reviewed by Mr Douglas Gardiner, an orthopaedic surgeon, in January 2015 at the request of the applicant’s solicitors. Mr Gardiner diagnosed that the applicant had experienced an exacerbation of cervical and lumbar spondylosis with chronic back pain and bilateral lower limb symptoms. His injuries were stable, and Mr Gardiner did not expect any significant improvement in them. He did not consider that any other treatment was necessary or appropriate. Mr Gardiner did not believe that the applicant would be fit for any gainful employment, for which he was reasonably qualified, in the foreseeable future. There was no specific surgical or conservative treatment which would influence his prognosis.

Mr David Murphy, a consultant physician, examined the applicant in November 2014. Mr Murphy noted the applicant’s history, including that of his neck injury and his lumbar spine injury. He had available the results of the CT scan and the MRI performed on the lumbar spine. He expressed the view that the applicant had persistent pain and dysfunction following the aggravation of cervical spine degenerative disease, and the subsequent aggravation of lumbar spine degenerative disease, respectively. Mr Murphy stated that the applicant was not capable of his pre-injury work as a boilermaker welder. He said:

The work involves repetitive and heavy lifting, bending and twisting which he is not able to do if the effects of the injuries dated 17 May 2013 are to be considered.

Mr Murphy considered that the applicant was capable of undertaking work, that did not involve sitting or standing in the one position for more than half an hour, lifting more than 10 kilograms or lifting, or bending or twisting repetitively. In addition, he should not lift above shoulder level or be exposed to activities that caused jolting to the cervical and lumbar spines. If the applicant was able to undertake work within those limitations, he could work for up to 15 hours per week. In that respect, Mr Murphy noted that it would be very difficult for the applicant to obtain alternative employment, because of his limited transferrable skills.

In September 2014, Mr Roy Carey, an orthopaedic surgeon, examined the applicant on behalf of the respondent. Mr Carey expressed the view that the applicant had sustained aggravation of pre-existing, but asymptomatic, lumbar spondylosis with chronic back pain and bilateral lower limb symptoms. The range of movement observed at the time of the examination was consistent with his observed behaviour during the consultation. The prognosis was for continued discomfort and disability into the foreseeable future without any alteration.

Dr Geoffrey Graham, an occupational physician, examined the applicant in July 2013 on behalf of the respondent. Mr Graham considered that the applicant had degenerative disc disease that was constitutional in nature, but which was aggravated in May 2013. He considered that ‘the effects of the aggravation have ceased’, and that the applicant had a capacity for the employment that he had been undertaking before May 2013.

Mr Brownbill reviewed the applicant in April 2015. He noted that there was no objective neurological abnormality of the lower limbs, and no signs of radiculopathy. He considered that the applicant, in May 2013, had sustained aggravation of pre-existing asymptomatic lumbar spine degenerative changes, with associated disc derangement giving rise to pain and likely nerve root irritation affecting the right leg. Mr Brownbill stated that the applicant, in the future, should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. He would be capable of a graded return to work avoiding those actions.

Finally, the applicant was examined by Dr David Ho, an occupational health practitioner, in November 2015 at the request of the respondent. At that examination, Dr Ho had available the CT scan and MRI of the applicant’s cervical spine, but he did not have copies of the MRI of the applicant’s lumbar spine. He expressed the view that the applicant had suffered an intervertebral disc injury to his neck in May 2011, and an aggravation and new injury to his lower back in May 2013 in the context of pre-existing degenerative changes to his spine. He did not consider that the applicant could return to his pre-injury duties and hours. The applicant did have a current work capacity for suitably selected alternative duties avoiding lifting in excess of five kilograms, repeated strenuous bending and twisting of the lower back, heavy pulling and pushing, and regular change of posture. Dr Ho expressed the view that the applicant had available employment options including as a parking inspector, sales assistant, interpreter, residential care worker or disability support worker.

Vocational assessments of applicant

Ms Suzanne George, an occupational therapist, conducted three assessments of the applicant’s vocational capacities in November 2013, December 2014 and August 2015. Ms George’s first report (dated 12 November 2013) focused solely on the effects of the applicant’s neck injury on his working capacity. She expressed the view that, because of the applicant’s disabilities, he was incapacitated from continuing to work as a welder, and that he was also incapacitated from any other occupation, for which he was then qualified on the basis of his skills, experience and capabilities. She was not able to identify any other alternative occupation, for which the applicant was suitable considering his education, transferrable skills and functional capacity.

The next two reports of Ms George considered the effects of the applicant’s lower back injury on his vocational capacities, not taking into account any of the disability arising from his neck injury. In both of those reports, Ms George expressed the view that the applicant was incapacitated, by reason of his back injury, from employment as a welder, and from any other occupation for which he was suited. She also considered that it was not possible to identify any other alternative occupation for which the applicant might be suited, because of the limitations of the applicant’s educational capacities, his transferrable skills and his functional capacity.

The primary judge’s reasons

In her reasons for judgment, the primary judge summarised, in detail, the evidence to which we have just referred. The judge noted that there was no dispute that the applicant had suffered an injury to his lumbar spine in the incident of May 2013. Her Honour considered the applicant was a straightforward and reliable witness, and there were no issues with his credit. There was no suggestion that any functional factors played a part in the applicant’s current presentation, and her Honour accepted that his lumbar condition had a substantial organic basis. In that respect, the judge noted that there was no dispute as to the diagnosis of the applicant’s lumbar injury, with the consensus of medical opinion being that he suffered a prolapse at the L 5-S 1 level as a result of the accident. She noted that Dr Graham was alone in his view that any incident related aggravation had ceased.

The judge further stated that while she accepted that the applicant was a genuine witness, he did appear to have complained of increasing and more significant back pain in recent times, in circumstances in which there had been no corresponding increase in the nature or frequency of the treatment he received. However, her Honour noted that he was not significantly challenged in his evidence of very significant back pain of a sharp stabbing type radiating into his left leg.

The judge noted that the applicant had only been advised to have conservative treatment, and that after his back injury there had been no significant change in the substantial amount of medication that he had been taking for his neck injury prior to the accident. Her Honour stated:

Whilst the plaintiff has experienced significant pain and discomfort in his back following the incident, this has been superimposed on a very significant, serious, ongoing problem of neck and arm pain and associated headaches with its resultant restrictions and limitations on his lifestyle.
The plaintiff’s ability to move freely and engage in a wide range of activities was severely compromised prior to the incident and this situation has not changed greatly thereafter.
I am not satisfied the level of pain and the need for treatment relating solely to the plaintiff’s back condition meets the high statutory threshold of serious.
As counsel for the defendants conceded, ‘it was not said for a moment the plaintiff had put any spin on this case’, he had previously suffered a very serious neck injury. In those circumstances, it was not possible to disentangle the consequences of that neck injury from the present consequences of his back injury.
…
Whilst back and leg pain has followed the incident, I am not satisfied it has resulted in consequences which meet the definition of ‘serious’ under the statutory test.[2]

[2]Reasons [359]–[362], [367].

The judge then noted the concessions by the applicant in cross-examination that he had been precluded from undertaking a range of recreational activities before he sustained his back injury, that his neck condition had remained in its ‘full flurry’ through to the present time, and that he was then suffering extreme neck pain. Thus, her Honour concluded, nearly all of the applicant’s activities had been significantly affected by his serious neck injury before he sustained his back injury.

The judge then turned to the contention on behalf of the applicant that he was incapacitated from work and that he had suffered the requisite loss of earning capacity of 40 percent. Her Honour noted that before the accident, the applicant had been certified for light duties because of his neck injury. He had never been certified fit for full time duties before he sustained his back injury.

The judge then noted the competing submissions by the parties. Her Honour noted the submission by counsel for the respondent that although a number of medical practitioners considered that the applicant did not have a capacity for work, they had failed to attribute the applicant’s back condition as the sole cause of that disability. In that respect the judge referred to the opinions of Dr Choong, Mr Gardiner, Mr Wallace, Mr Murphy, Mr Brownbill and Dr Ho.[3]
[3]Reasons [383].

Her Honour then stated:

Further, no doctor identified the back injury itself as the reason for the plaintiff losing his job.
I am not satisfied on this medical opinion that the consequences of the plaintiff’s back injury alone are serious from an employment viewpoint.
Further, the plaintiff was working fulltime hours, albeit on light duties, at the time his employment was terminated. His duties involved working on boom apparatus, attaching various necessary parts, walking around the factory floor, not doing just bench work. The plaintiff had been settled in that position for two months prior to the incident.
The plaintiff also undertook some driving work when he had not taken Endone, as it affected his capacity to drive.
The plaintiff agreed, had this job continued and his employment not been terminated, he would have continued in that role. When it was suggested if a similar job in another factory was offered to him, he certainly would have tried to do it.
Further the plaintiff had sought work in the spare parts shop, which he thought he could have coped with, similar to the hardware shop work he had earlier contemplated.
The plaintiff left the first defendant’s employ because there was no work available. He agreed he did not cease work because of his lumbar spine pain.
Whilst pre-incident the plaintiff had demonstrated a capacity for quite heavy work, medical opinion at that time and thereafter was to the effect that his work capacity and work future were significantly compromised by his neck injury.
In this regard, the following treating medical opinion was relied on:
·In February 2013, nurse and masseuse, Ms Forbes had serious concerns the plaintiff would be able to struggle with the work he was doing for much longer.
·In March 2014, at the examination where the plaintiff did not mention any back problem, Mr Wallace thought he would be best to avoid any heavy work because of his neck problem in relation to which surgery might need to be considered if there was a worsening of his symptoms.

Medico-legal opinion was to a similar effect:
·Mr Capes, in September 2012, thought the prognosis must be guarded and he would be surprised if the plaintiff escaped neck injury.
·Mr Kossman thought the plaintiff should look at changing jobs in September 2012 because of his neck. He also noted the plaintiff then intended to look for work in a hardware selling business.
·Mr Reid, in October 2012, thought it would be dangerous for the plaintiff to continue in the duties he was then performing.

The plaintiff told Mr Gardiner that the plaintiff reported persistent symptoms in his neck with headaches when working in the two years before the incident.
Counsel for the defendants also relied upon Ms George’s 28 November 2013 vocational assessment in which she concluded, ignoring the back injury, in relation to the neck, on a permanent basis there was no unrestricted recognised occupation in the open labour market for the plaintiff and his maximum potential would be in protected employment.
In my view, the plaintiff had the capacity to continue in his pre-termination duties or work in a spare parts shops if those jobs had continued be available to him.
Further, there is medical opinion from Mr Brownbill, Mr Ho and Dr Murphy (limited hours) that the plaintiff has the capacity to return to light work on a graduated basis at the present time.
Taking into account all the evidence, I am not satisfied the consequences of the plaintiff’s lumbar impairment are serious. Further, I do not accept that he has suffered the requisite loss of earning capacity of 40 percent as a result thereof.
Accordingly, the plaintiff’s applications pursuant to clause (a) are dismissed.[4]
[4]Reasons, [384]–[399].

Grounds of proposed appeal

The applicant relies on five proposed grounds of appeal which may be summarised as follows:

(1)The reasons for decision of the primary judge failed to demonstrate an adequate path of reasoning.
(2)Having accepted the unchallenged evidence of the applicant, as to the pain and suffering consequences of his back injury, the judge should have been satisfied that his back injury resulted in consequences that fall within the meaning of ‘serious’ under s 134AB(37) and (38) of the Act.
(3)In determining that the applicant had not met the requisite test for loss of earning capacity imposed by s 134AB(38)(f) of the Act, the judge erred in failing to determine, as required by subsection (38)(f):

(a) the gross income (expressed as an annual rate) that the applicant was earning, or was capable of earning, as fairly reflected the applicant’s earning capacity had the injury not occurred; and

(b)the gross income the applicant was capable of earning in suitable employment at the date of hearing;

(4)The judge erred in not accepting that the applicant had suffered the requisite loss of earning capacity of 40 percent as a result of his back injury.
(5)In determining the applicant’s earning capacity, the judge failed to properly consider and apply the definition of ‘suitable employment’; in particular, her Honour had no proper regard to:

(a)the nature of the applicant’s incapacity and the details provided in medical information;
(b)the age, education skills and work experience of the applicant; or

(c) the place of residence of the applicant.

Accident Compensation Act 1985 s 134AB

Before outlining the submissions of the parties in respect of those grounds, it is convenient first to summarise, briefly, the effect of the relevant provisions that govern the applicant’s application.

In order to be granted leave, under s 134AB(16) of the Act, to commence proceedings for damages at common law in respect of the injury to his back, the applicant was required to establish, pursuant to s 134AB(19), that he had suffered a serious injury. Paragraph (a) of the definition of ‘serious injury’, in s 134AB(37), required the applicant to establish that he had sustained a ‘permanent serious impairment or loss of a body function’ as a result of the injury to his lower back.

Section 134AB(38)(b) provides that the term ‘serious’ was to be satisfied:

… by reference to the consequences to the worker of any impairment or loss of body function … with respect to —
(i) pain and suffering; or
(ii) loss of earning capacity —

when judged by a comparison with other cases in the range of possible impairments or losses of a body function … .

Section 134AB(38)(c) provides that:

An impairment or loss of a body function … 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 a comparison with other cases in the range of possible impairments or losses of a body function … fairly described as being more than significant or marked, and as being at least very considerable.

Section 134AB(38)(e) provides that the court should not grant leave to the applicant, on the basis that he had suffered the requisite loss of earning capacity, unless the applicant establishes that at the date of the hearing of the serious injury application, he had a loss of earning capacity of 40 percent or more, and that he would continue permanently to have such a loss of earning capacity.

Section 134AB(38)(f) provides that:

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;

At the time relevant to the application, the phrase ‘suitable employment’ was defined by s 5 of the Act as follows:

suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i)the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and

(ii) the nature of the worker's pre‑injury employment; and
(iii)the worker's age, education, skills and work experience; and

(iv) the worker's place of residence; and
(v)any plan or document prepared as part of the return to work planning process; and
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker; and

(b) regardless of whether—
(i) the work or the employment is available; and
(ii)the work or the employment is of a type or nature that is generally available in the employment market;

* * * * *

Thus, in order to be granted leave to commence proceedings in respect of a claim for damages for loss of earning capacity, the applicant was required to establish, first, that the consequence to his earning capacity, resulting from the impairment to his lower back, was ‘serious’ in the manner defined in s 134AB(38)(b) and (c) of the Act. That is, the applicant was required to establish that the consequence to his earning capacity from his back injury, in comparison with other cases in the range of possible impairments, was more than significant or marked, and was at least very considerable. Secondly, the applicant was required to demonstrate that, at the date of the hearing of his application for leave before the primary judge, he had a loss of earning capacity of 40 percent or more. The evidence demonstrated that the applicant had earned, approximately, $60,000 gross per annum in his employment in the three years preceding the date of his back injury. The applicant was not working at the time of the hearing of the application for leave. Accordingly, the applicant was required to demonstrate that he was not capable of earning 60 percent of his pre-injury earnings, of $60,000 per year, from suitable employment, as defined by s 5 of the Act.

In respect of the application for leave to commence proceedings for common law damages for pain and suffering, the applicant was required to demonstrate that the pain and suffering consequence to him, as a result of the impairment to his back, when judged by a comparison with other cases in the range of possible such impairments, might fairly be described as more than significant or marked, and as being at least very considerable.

The establishment of those matters, before the primary judge, was complicated by the fact that the applicant had sustained a serious injury to his neck two years before he suffered his back injury, and that the consequences to him as a result of the neck injury had persisted at the time that he sustained the back injury, and up to the time of the hearing of the application for leave before the primary judge. In those circumstances, it was necessary to identify each of the injuries sustained by the applicant, and to delineate the consequences of each injury, in terms of the pain and suffering consequences and loss of earning consequences claimed by him.[5]
[5]AG Staff Pty Ltd v Filipowicz (2012) 34 VR 309, 314–15 [31]–[35] (Kyrou AJA); Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67, [2] (Maxwell P).

That, then, is the legal landscape in which the application before the primary judge was required to be determined. Bearing those principles in mind, we turn to each of the grounds of appeal sought to be relied on by the applicant.

Ground 1

Ground 1 of the application is that the judge’s reasons for decision failed to demonstrate an adequate path of reasoning for rejecting the application for leave to commence common law proceedings.

In support of that ground, counsel for the applicant commenced by submitting that it is not possible to discern the path of reasoning adopted by the judge in rejecting the application for leave to commence common law proceedings in respect of the claim for damages for loss of earning capacity from the back injury. Counsel submitted, in particular, that it is not possible to discern whether the judge took one of four possible paths to that conclusion, namely: first, that the applicant had an earning capacity in suitable employment of at least 60 percent of his pre-injury earning capacity as at the date of the hearing; or, secondly, that the applicant had a loss of earning capacity of at least 40 percent of his pre-injury earning capacity in suitable employment at the date of the hearing, but he would have suffered that loss in any event due to his neck injury; or, thirdly, that no doctor had certified the back injury itself as the reason for the applicant losing his job; or, fourthly, that the applicant had the capacity to continue in his pre-termination duties or work in a spare parts shop if those jobs had continued to be available to him.

Counsel submitted that if the judge adopted the first path of reasoning, her Honour had ignored a substantial volume of medical evidence, in particular from Dr Choong, Mr Wallace, Mr Gardiner and Mr Murphy. In addition, counsel submitted that the first path of reasoning was not supported by the evidence of Mr Brownbill or Dr Ho, as their evidence did not support a conclusion that the applicant had the capacity to return to light work on a full time basis.

In respect of the second pathway, counsel noted that the judge did not state expressly that that was the route that her Honour took to her conclusion. Further, counsel noted that there was no evidence justifying a conclusion that the neck injury sustained by the applicant accounted for at least a 40 percent loss of the applicant’s earning capacity.

Counsel noted that the third pathway was suggested by the passage from the judge’s reasons, that no doctor had identified the applicant’s back injury itself as the reason that he lost his job.[6] However, counsel noted that it was not the task of the doctors to specify why the applicant’s employer chose to terminate his employment. Further, counsel submitted that the finding by the judge, that the plaintiff left the respondent’s employment because there was no work available,[7] was contrary to the evidence, and, in particular, the evidence of the applicant, in re-examination, that he was told that his employment was terminated because he had not been certified fit for full time duties.
[6]Reasons [384].
[7]Reasons [390].

In respect of the fourth possible pathway, counsel noted that that reasoning was contained in the passage in the judge’s conclusion[8] that the applicant had the capacity to continue in his pre-termination duties or work in a spare parts shop if those jobs had continued to be available to him. Counsel noted, first, that the reference to the applicant’s capacity to work in the spare parts shop was erroneous. However, and more significantly, counsel submitted that the finding by the judge, to that effect, was not supported by any of the medical evidence, including the opinions of Mr Brownbill, Dr Ho and Dr Murphy, to whom the judge specifically referred.
[8]Reasons [396].

In respect of the judge’s conclusion that the applicant’s pain and suffering consequences, arising from his back injury, were not serious, counsel noted that the judge’s reasons set out the very significant consequences of the applicant’s back injury, including ongoing severe pain, and significant compromise of the minutiae of his daily living functions, but the reasons provided no clear explanation as to why those consequences did not satisfy the definition of serious injury contained in s 134AB of the Act.

In response, counsel for the respondent submitted that the judge’s reasons set out adequately the judge’s path of reasoning in respect of the two conclusions sought to be impugned on the application. Counsel contended that the judge rejected the application, in respect of the claim for loss of earning capacity, because the applicant had remained fit to be able to continue to undertake the work carried out by him before his employment with the respondent was terminated in December 2013. Counsel pointed to the finding by the judge that the applicant’s employment with the respondent had been terminated solely because of the lack of availability of work at that time. Counsel contended that that finding, itself, was justified by the concessions that were elicited from the applicant, in cross-examination, that that was the reason given to him by his employer. The judge noted[9] that three doctors, Mr Brownbill, Mr Ho and Dr Murphy, had each expressed the view that the applicant had the capacity to return to light work on a graduated basis. There was no evidence of any deterioration in the applicant’s condition between the date of the termination of his employment and the date of the hearing of the serious injury application. The applicant had been working full time, albeit on light duties, for a period of at least two months before the termination of his employment with the respondent. Counsel submitted that each of those matters were set out adequately in the judge’s reasons, as a sufficient basis upon which to reject the applicant’s claim for leave to commence common law proceedings in respect of a loss of earning capacity damages.
[9]Reasons [397].

Counsel for the respondent further noted that the question, whether pain and suffering consequences from an injury are serious, is very much an evaluative exercise by a judge. As such, a conclusion in relation to that aspect of the claim does not admit of detailed reasons, but, rather, is based substantially on the judge’s perception of the applicant, in evidence, and on the judge’s impression as to the applicant’s pain and suffering derived from the various medical reports as a whole. Accordingly, counsel submitted that the judge’s reasons, that while the applicant’s pain and suffering was significant, it was not of sufficient magnitude to be characterised as serious, as defined in s 134AB, were sufficient, and were unimpeachable.

The requirement, that a trial judge give adequate reasons for decision, is a longstanding and fundamental requirement of our justice system. In an oft-cited passage, Nettle JA (as his Honour then was) in Hunter v Transport Accident Commission & Anor[10] described the content of that obligation as follows:

Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue.[11]

[10][2005] VSCA 1.

[11]Ibid [21].

In determining whether the reasons by a judge have adequately fulfilled the requirements outlined by Nettle JA, in an application under s 134AB of the Accident Compensation Act (or s 93 of the Transport Accident Act), there are three matters that need to be borne in mind. First, such an application is made on originating motion, supported by affidavit material. Ordinarily, only the applicant is cross-examined. The judge is provided with a substantial (and often vast) amount of material comprising medical reports, rehabilitation reports, and employment records. At the conclusion of the hearing, a judge is often left with a large volume of material, some of which may well be irreconcilable.[12]
[12]Woolworths Ltd v Warfe [2013] VSCA 22, [127].

Secondly, the adequacy of reasons must depend upon the issues, and the manner in which the case has been presented. In an appropriate case, the path of reasoning, adopted by the judge, may be sufficiently disclosed by a combination of that which is expressly stated and the inferences which might be drawn from the judge’s recitation of material.[13]
[13]Murray Goulburn Co-op Co Limited v Filliponi [2012] VSCA 230, [28] (Neave JA and Beach AJA).

Thirdly, ultimately, a determination by a judge as to whether the consequences of an injury are serious, as defined in the legislation, involves a significant degree of evaluation and value judgment, which, necessarily, does not admit of detailed analysis and reasoning.[14]
[14]Hunter v Transport Accident Commission & Anor [2005] VSCA 1, [22] (Nettle JA); Nichols & Anor v Robinson [2001] VSCA 11, [14] (Winneke P); Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628 [190] (Dodds-Streeton JA).

We add to the foregoing that in this case the task confronting the judge was difficult. In particular, as already noted, it required the judge, based on the evidence, to focus on the consequences of the back injury sustained by the applicant, to the exclusion of any consequences resulting to him from his earlier neck injury. The medical evidence did not assist greatly in that regard, because, apart from a couple of exceptions (to which we shall later refer), the medical practitioners did not disentangle the two sets of consequences to the applicant when expressing their views as to the applicant’s capacity to undertake employment. While those matters did not relieve the judge from providing adequate reasons for her decision, nevertheless they necessarily rendered more complicated the task which the judge was required to undertake.

The judge’s conclusion, concerning the applicant’s loss of earning capacity consequences, was contained in the part of her reasons, quoted above, where her Honour stated that she was not satisfied that the consequences of the applicant’s lumbar impairment were serious, and, further, her Honour did not accept that he had suffered the requisite loss of earning capacity of 40 percent as a result of that impairment.

That passage from the judge’s reasons thus contained two conclusions, namely, first, that the loss of earning capacity consequences arising from the back injury were not serious, and, secondly, that the applicant had not established the requisite loss of earning capacity of 40 percent as a result of that injury.

As we have already stated, a determination by a judge, as to whether the consequences of a particular injury are serious, is, in large measure, an evaluative exercise. Nevertheless, it is necessary that a judge, in making that determination, should expose the particular reasons for the conclusion, and the path of reasoning leading to that conclusion. That obligation was particularly prominent in this case, given the uncontested evidence that the applicant had sustained a genuine organic injury to his lumbar spine, and that, following that injury, the duties that he performed at work with the respondent were significantly reduced from the duties that he had been carrying out for the two year period between the time when he sustained the neck injury and the date of the lumbar spine injury.

At the risk of repetition, the uncontroverted evidence was that, notwithstanding the medical certificates and the opinions of his medical practitioners, after sustaining his neck injury in May 2011, the applicant had continued to perform all of his pre-injury duties, as a welder. The uncontested evidence of the applicant was that he performed heavy physical tasks in that capacity. Further, the applicant worked full time, and on a number of occasions overtime, carrying out those duties. Equally, the uncontested evidence of the applicant was that, after he sustained his back injury, he was no longer able to perform those duties. Rather, he was only able to carry out light duties assigned to him.

In addition, the applicant’s evidence was that, notwithstanding that he was assigned to carry out light duties at a bench putting plumbing fittings together, he found that work too onerous and painful, notwithstanding that he was able to alternate between sitting and standing. As a result, he was moved to work in the boom shed. He said that that work was lighter, because, while performing it, he was able to walk around more freely. Nevertheless he described, in detail, that while undertaking that work he continued to suffer pain in the lower half of his body, so much so that he would need to go to the toilet and sit down for half an hour to get some rest, or he would ‘wander down the back paddock’, where he would stand and stretch.

Further, the evidence before the judge included the report of Mr Wallace (the treating neurosurgeon) that the applicant’s back injury was ‘quite significant’, that it was likely to produce enduring problems, and that it would ‘severely’ limit his capacity to gain suitable employment. The evidence also included the opinion of Mr Brownbill, the neurosurgeon engaged on behalf of the respondent, setting out the limitations to the applicant’s working capacity as a result of the injury to his lumbar spine, and stating that the applicant would be capable of a ‘graded’ return to work that avoided those actions.

On the face of it, the evidence, to which we have just referred, was compelling as to the degree to which the applicant’s lumbar spine injury impaired his capacity to work. While the judge set out a substantial part of that evidence earlier in her reasons, her Honour did not explain why, in the face of that evidence, she reached the conclusion that the consequences of the applicant’s lumbar impairment, in respect of his earning capacity, were not serious, as defined in s 134AB of the Act. The evidence, to which we have referred, squarely raised that issue for determination. On its face, the finding by the judge, that the applicant retained the capacity to perform the tasks that he was carrying out before his employment was terminated (which we shall discuss further), was not, of itself, a sufficient explanation as to why the judge concluded that the loss of earning capacity consequences to the applicant were not serious, in the face of the applicant’s evidence as to the pain and difficulty that he had experienced in performing that light work, and in the face of the medical evidence to which we have referred. Notwithstanding that, ultimately, the determination by the judge, of that issue, was a matter of evaluation, we do not consider that her Honour gave sufficient reasons for the conclusion that those consequences were not serious.

The second conclusion by the judge, as to the applicant’s loss of earning capacity, was that the applicant had not established the requisite loss of earning capacity of 40 percent, as required by s 134AB(38)(e) and (f) of the Act. It is not entirely clear, from the passages that preceded that conclusion, as to the basis upon which the judge formed that conclusion. Nevertheless, as submitted by counsel for the respondent, it would seem that her Honour formed that conclusion, because the applicant had retained the capacity to return to the light work that he was performing before the termination of his employment. In a passage in her reasons shortly before the conclusion, the judge stated that the applicant had the capacity ‘… to continue in his pre-termination duties or work in a spare parts shops if those jobs had continued be available to him’.[15]
[15]Reasons [396].

There are a number of difficulties with that conclusion. First, there was no evidence that the applicant had had, at any time, a capacity to work in the spare parts shop of the respondent. More importantly, the judge did not provide any explanation why, in the face of the evidence to which we have just referred, her Honour considered that the applicant had the capacity to continue in the duties on the boom assembly, that he had been performing shortly before the termination of his employment. The reasons for decision contain no reconciliation of that conclusion, with the uncontradicted evidence, given by the applicant, as to the physical pain and difficulties he had experienced, while performing duties that were particularly light.

It would seem that the judge’s conclusion, as to the applicant’s capacity to continue to perform those duties, was based on the earlier finding that the applicant had left the respondent’s employment, because there was no work available.[16] That finding by the judge reflected a concession by the applicant in the course of cross-examination. However, in making that finding, the judge did not deal with the more detailed evidence given by the applicant in re-examination, namely, that his employer terminated his employment because the applicant’s medical practitioner would not certify that he was fit to return to work on full time duties. In that context, it is significant that the applicant had given the same explanation, as to the reason for the termination of his employment, to Dr Murphy, Mr Carey, and to Dr Doherty (a psychiatrist who examined the applicant on behalf of the respondent).
[16]Reasons [390].

Further, at the time of the hearing of the application, the applicant was not engaged in any employment. It was therefore necessary for the judge to determine whether the duties performed by the applicant, before his employment with the respondent was terminated, constituted ‘suitable employment’ for the purpose of s 134AB(38)(f)(i) of the Act, bearing in mind the definition of that phrase in s 5 of the Act. In order to reach such a conclusion, the judge was required to determine whether the duties, performed by the applicant during that period, consisted of carrying out one task at the respondent’s premises, which was allocated to him on a temporary basis, or whether it was of itself a form of employment.[17] That issue arose as a result of the evidence given by the applicant in re-examination relating to the circumstances in which, and reasons for which, his employment with the respondent had been terminated.
[17]Compare Richter v Driscoll [2016] VSCA 142, [93].

In that respect, the respondent bore the evidentiary onus to adduce evidence as to suitable employment that the applicant was capable of undertaking at the time of the hearing of the application.[18] Thus, the evidentiary onus was on the respondent to adduce evidence as to the nature of the tasks performed by the applicant before his termination, and, in particular, as to the issue whether the work undertaken by the applicant, temporarily, in the boom section, was simply one task within the respondent’s operations, or whether it did constitute of itself an employable role. The respondent did not adduce any such evidence. Rather, as we stated, the only evidence on that matter was that of the applicant. That evidence raised squarely the issue whether the duties performed by the applicant, over the period of two months before the termination of his employment, could be properly characterised as suitable employment. That issue was not addressed in the reasons for judgment.
[18]Giankos v SPC Ardmona Operations Limited (2011) 34 VR 120, 144 [115] (Warren CJ, Neave JA and Hargrave AJA).

Taking those matters into account, and fully conscious of the difficult task that confronted the judge on the facts of this case, nevertheless we do not consider that the judge sufficiently exposed the reasons for the conclusion that the applicant, based on the evidence, had not established the requisite loss of earning capacity of 40 percent as required by s 134AB(38) of the Act.

We are also persuaded that the judge did not provide adequate reasons for the conclusion that the pain and suffering consequences of the applicant’s back injury did not fulfil the definition of serious as contained in s 134AB(38)(c) of the Act.

The assessment by the judge, of the pain and suffering consequences of that injury, was a matter of evaluation, based, at least in substantial measure, on the impression gained by the judge of the applicant in giving evidence. Nevertheless, the judge was still required to address the evidence adduced on behalf of the applicant as to the degree of pain suffered by him, as a result of his back injury, and as to the effect of that injury on his capacity to enjoy life. In the introductory sections of the reasons, the judge set out, in some detail, the description by the plaintiff of the pain levels experienced by him as a result of his back injury, and the restrictions that he endured, as a result of that injury, both in a number of matters relating to his day to day living, and also in his recreational and occupational activities. However, the reasons only provide a limited understanding as to why the judge concluded that, notwithstanding that evidence, the pain and suffering consequences of the applicant’s back injury were not ‘very considerable’.

In the passages to which we have earlier referred, the judge advanced two reasons why she did not accept that the applicant’s pain and suffering consequences met the statutory threshold of serious. First, the judge stated that although the applicant had experienced significant pain and discomfort in his back, that had been ‘superimposed’ on a very significant serious neck and arm pain with its resultant restrictions and limitations on his lifestyle. Secondly, the judge noted that the applicant’s ability to move freely, and engage in a wide range of activities, was already severely compromised before he injured his back, and that that situation had ‘not changed greatly’ thereafter.[19]
[19]Reasons [359]–[360].

The first reason, advanced by the judge, focused on the pre-existing restrictions to the applicant’s lifestyle arising from his neck and arm pain. In his evidence, the applicant had described his back pain in graphic terms, which were recited by the judge in the introductory sections of the reasons. The applicant had said that his pain was ‘sometimes so bad that he wanted to have his leg cut off’, that it was worse than the pain in his neck, and that on occasions it felt as if he had been ‘stabbed with a screwdriver’. The fact that that pain was superimposed on the applicant’s pre-existing neck and arm pain did not detract from, or reduce, the severity of his back pain.

The second point noted by the judge — that the applicant was already substantially restricted in his recreational and daily activities because of his neck injury — is of course correct. However, it did not address two important aspects of the applicant’s evidence. First, the applicant gave evidence as to the compromise of a number of his basic daily living functions arising from his back injury, including limitations on his driving, the need for him to use a shower chair, the need for him to have a toilet seat raiser, and the need for back support while he was in bed. Those limitations were significant interferences with the applicant’s capacity to undertake the basic functions of daily living. Secondly, the judge did not appear to take into account, at all, the significant effect of the applicant’s back injury on his capacity to engage in gainful employment that had been an important source of enjoyment and satisfaction for him. Before he suffered the back injury, the applicant had been able to work full time in his chosen occupation as a welder, albeit with significant neck pain. As a result of his back injury, he was reduced to undertaking the lightest duties in the respondent’s factory. Since his employment was terminated, he has been unable to secure further employment. In his evidence, the applicant described his distress resulting from his inability to be engaged in the work that he had previously enjoyed, and from which he had gained much fulfilment. In his second affidavit he stated:

Until I suffered the lower back injury I was able to work albeit under some restrictions. I enjoyed the work and the feeling of worth that came with working and being able to support myself financially. I enjoyed the companionship of my work mates. I now feel like a failure. I am very upset about the example I am able to set for my son, Connor.

The evidence of the applicant, as to the effect of his back injury on the performance by him of routine daily functions, and as to the loss of his capacity to engage in work which had been a source of enjoyment and fulfilment to him,[20] was an important aspect of the claim by the applicant that the pain and suffering consequence to him, as a result of the back injury, was serious. That evidence was not addressed in the judge’s reasons. In particular, the reasons for decision do not elucidate why those matters, together with the level of pain experienced by the applicant as a result of the back injury, were not considered by the judge to be sufficiently substantial to satisfy the statutory threshold test of serious. That evidence was cogent, and was central to the issue whether the pain and suffering consequences of the applicant’s lower back injury were serious. In our view, the failure of the judge to address that aspect of the applicant’s evidence, and to explain why those matters were insufficient to constitute the applicant’s pain and suffering consequences as serious, meant that the reasons given by the judge for her decision on this aspect of the case were not adequate.
[20]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1, 5 [15] (Maxwell P); Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, [25] (Ashley JA).

It follows from the foregoing that the applicant has succeeded in establishing ground 1 of the application. Accordingly, the application for leave to appeal, and the appeal, should be allowed on that ground, and the decision of the primary judge should be set aside.

In our view, this Court should decide the matter itself, rather than remit the matter to the County Court for re-hearing. The applicant’s credit was not in issue. We have available the transcript of the applicant’s evidence, and counsel’s submissions before the judge. In addition, counsel’s submissions, in relation to each of the five grounds of the application for leave to appeal, necessarily addressed the question whether the applicant’s injury should be regarded as serious for the purposes of s 134AB(38) of the Act. Accordingly, it is appropriate that this Court decide the matter for itself, rather than remit the proceeding to the County Court for re-hearing.[21]
[21]Hunter v TAC, [37] (Nettle JA); Rodda v Transport Accident Commission [2008] VSCA 276, [108] (Hargrave AJA).

Pain and suffering consequences of applicant’s back injury

We shall first consider whether it should be determined that the pain and suffering consequences to the applicant, resulting from his lower back injury, were serious. Ground 2 of the application related to the judge’s conclusion that those consequences were not serious. The submissions made by counsel, in respect of ground 2, are equally relevant to the question whether this Court should now conclude that question in favour of the applicant.

In support of ground 2, the applicant referred to evidence given by him, and accepted by the judge, as to the degree of pain that he suffered, and limitations in his daily life that he experienced, as a result of his back injury. In light of that evidence, it was submitted that the trial judge ‘should have been satisfied’ that the applicant’s back injury resulted in consequences that met the definition of ‘serious’ in s 134AB(38).

In their written submissions, counsel for the applicant referred to the evidence given by the applicant that his back pain was: ‘very significant’, ‘severe’, ‘sometimes was so bad he wanted to have his leg cut off’, and ‘worse than the pain in his neck’, and that it felt ‘as if he has been stabbed with a screwdriver’. Counsel also referred to the evidence by the applicant that, as a result of his lower back injury, his daily living functions were compromised. In particular, he was restricted in the distances that he could drive without the need for rest periods. The applicant also had a need for a shower chair, for a toilet seat raiser, for his bed to be raised, and for back support while he was in bed. The applicant’s capacity to physically interact with his four year old autistic son was substantially compromised as a result of his back injury.

In addition, counsel relied on the evidence of the applicant as to his distress because, as a result of his back injury, he no longer had the capacity to enjoy being engaged in gainful employment. Further, although the applicant had been restricted, by his neck injury, from a number of recreational pursuits, including riding bikes, conducting his trailer business, and other activities, he had suffered further additional limitations and restrictions as a result of his back injury. In that respect, counsel referred to the evidence by the applicant that, as a result of his back injury, he was more substantially restricted in his pastime of restoring old cars, and that he could no longer attend drag races. In addition, the applicant gave evidence that his social life, with his friends, had been significantly reduced as a result of his back injury.

In response, counsel for the respondent referred to the findings by the judge that, before the applicant sustained his lower back injury, his capacity to engage in a wide variety of activities had already been severely compromised by reason of his neck injury. In addition, counsel contended that the judge did not accept all of the applicant’s evidence about the level of lower back and leg pain sustained by him. In that respect, counsel referred to the passage in the judge’s reasons that, notwithstanding that the applicant complained of increasing and more significant back pain in recent times, there had not been any corresponding increase in the frequency or nature of the treatment that he had received.[22] Counsel noted that the assessment by the judge, as to whether the degree of pain and suffering sustained by the applicant fulfilled the statutory definition of serious, was very much a matter for evaluation and assessment by the judge. In that regard, the judge had the advantage, not enjoyed by the Court of Appeal, of having observed the applicant under cross-examination at the hearing of the application.
[22]Reasons [353].

The assessment by the judge, of the pain and suffering consequences to the applicant from his back injury, involved, fundamentally, an evaluation of the applicant’s experience of pain resulting from the injury, together with the disabling effect of that pain on the applicant’s physical capabilities and his enjoyment of life.[23] In that respect, this Court did not have the advantage of observing the applicant in cross-examination and re-examination. On the other hand, the advantage of the trial judge, in observing the applicant, was, to a reasonable extent, offset by the fact that the credit of the applicant was not put in issue by the respondent. In cross-examination of the applicant, senior counsel for the respondent only touched, briefly, on the issue of the level of pain experienced by the applicant. As noted by the judge, senior counsel, in final address, conceded that ‘it was not said for a moment the plaintiff had put any spin on this case’.[24]
[23]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1, [9] (Maxwell P).
[24]Reasons [362].

In that context, it is convenient, first, to deal with two matters that were raised in this application. The first point relates to the report of Mr Brownbill dated 6 September 2013 that records the applicant as stating that his back was not worrying him then. The respondent placed some reliance on that evidence in this application. However, in cross-examination the applicant explained that in making that remark to Mr Brownbill, at that time, he was trying to put a ‘positive spin’ on his condition. The second preliminary point is the observation by the judge that, although she accepted the applicant as a genuine witness, he appeared to have complained of increasing and more significant back pain in recent times, but there had been no corresponding increase in the frequency or nature of the treatment he had undergone.[25] It is not clear what the judge meant by that observation, particularly as the respondent did not place the applicant’s credit in issue at all in the trial, and the judge had found that the applicant was a ‘straightforward and reliable witness’ and that ‘there were no issues with his credit’.[26] Further, the fact that there had been no increase in the frequency or nature of the treatment undertaken by the applicant did not, in any way, diminish his complaint of increasing and more significant back pain, in circumstances in which the medical practitioners had not recommended or prescribed any additional treatment for him. Thus, in those circumstances, it is appropriate to proceed on the basis that the applicant’s description of the level of pain, discomfort and disability that he suffered as a result of his lower back injury, should be accepted.
[25]Reasons [353].
[26]Reasons [344].

We have earlier set out the passage in which the judge concluded that the pain and suffering consequence of the lower back injury did not meet the statutory definition of ‘serious’ in s 134AB of the Act.[27] Three points arise from that recitation of her Honour’s reasons.
[27]See para 50, supra; Reasons [359]–[362], [363].

First, the fact that the applicant experienced significant pain and discomfort arising from the injury to his neck did not diminish, or in any way devalue, the degree of pain suffered by him as a result of his back injury. That is, the pain, that the applicant suffered as a result of his neck injury, did not, for the purposes of the evaluation required to be carried out by the court, in any way detract from the significance of the level of pain and discomfort experienced by the applicant as a result of his back injury.

Secondly, although the earlier injury to the applicant’s neck had significantly restricted the range and type of activities, which the applicant was able to participate in, nevertheless, on the evidence, the applicant suffered further disability and limitations on his activities arising from his back injury. In particular, the evidence established that he had needed to reduce further the level of work that he had carried out in his shed, and his attendance at drag races. His social life had been seriously affected by his lower back injury. As a result of his lower back pain, he had to take breaks while driving a motor vehicle. His capacity to play with his young son had also been significantly further diminished. While it is correct that the applicant’s lifestyle had already been severely affected by his neck injury, what remained was important to him. In that context, the further limitations, resulting from his back injury, were not insubstantial.

Thirdly, and importantly, the applicant gave evidence as to a number of everyday functions that he performed in his daily life, such as showering, going to the toilet, and getting into bed, which had been significantly affected by the injury to his lower back. The fact that the applicant had had to make adjustments to the manner in which he carried out those quotidian tasks was of itself important, but, in addition, it demonstrated the additional degree of disability suffered by the applicant in performing basic daily functions of life as a result of his lower back injury.

The description given by the applicant of the pain that he suffered was of a high level. For a person whose life had already been diminished by a serious neck injury, the further disabilities resulting from his back injury deprived him of a significant degree of his residual capacity to engage in recreational activities, impacted heavily on his social life, and interfered significantly with the minutiae of his daily living.

In that respect, an evaluation of the applicant’s pain and suffering consequences is also informed by the significant reduction in the duties that he performed while he remained in employment with the respondent after he sustained the injury to his lower back. The applicant was clearly a person who was nothing but stoic, in the manner in which he had continued to work, full time, as a welder, notwithstanding his serious neck injury. By contrast, notwithstanding the applicant’s stoicism, after he sustained his back injury, he was reduced to working light duties. The first light duties, assigned to him — working at a bench putting plumbing fittings together — were too onerous and painful for him. As a result, he was moved to even lighter work in the boom shed. Those changes, and significant reductions, in the applicant’s work capacity, after he sustained his back injury, formed part of the objective evidence as to the consequences, in terms of pain, suffering and limitation of enjoyment of life, sustained by the applicant as a result of his back injury.[28]
[28]Haden Engineering Pty Ltd v McKinnon, 4–5 [10]–[13], 8–9 [33]–[35] (Maxwell P); see also Sutton v Laminex Group Pty Ltd (2011) 31 VR 100, 109–110 [46]–[47] (Tate JA).

In addition, as earlier mentioned, the applicant was a person who had derived great satisfaction, fulfilment and enjoyment from working in his chosen occupation as a welder. As such, his work was an important part of his enjoyment of day to day life. The applicant’s dedication to his occupation is demonstrated by the fact that he continued to work in the same capacity full time after he sustained his serious neck injury, in defiance of medical advice that he should not be doing so. The injury to the applicant’s lower back in May 2013 spelt the end of that occupation for the applicant. As we shall explain later, it also effectively terminated the applicant’s capacity to engage in suitable employment. Thus, the injury as to the applicant’s lower back had the consequence of depriving him of being able to engage in an important source of enjoyment and satisfaction to him in his daily life.

In light of those matters, the conclusion is irresistible that the pain and suffering consequences to the applicant, arising from the injury to his lower back, were more than significant, and should be truly characterised as at least very considerable. Accordingly, the applicant should be granted leave in respect of those consequences.

Loss of earning capacity consequence of applicant’s back injury

The next question is whether the applicant has established the requisite degree of incapacity for employment necessary for a grant of leave, under s 134AB of the Act, to claim damages for loss of earning capacity. As earlier stated, in order to be granted leave, the applicant must establish two matters. First, the applicant must demonstrate that the consequences to him with respect to his loss of earning capacity, as a result of his lower back injury, were serious, namely, that they were at least very considerable, by comparison with other cases in the range of possible impairments or losses of a body function. Secondly, the applicant must establish that, as a result of his back injury, he suffered a loss of earning capacity of at least 40 percent as specified in s 134AB(38)(e) and (f) of the Act.

Those issues were substantially addressed by the parties in their competing contentions in respect of grounds 3, 4 and 5 of the application for leave to appeal. Under ground 3, the applicant contended that the judge failed to determine the gross income the applicant was capable of earning in suitable employment at the date of the hearing, as required by s 134AB(38)(f). By ground 4, the applicant submitted that if the judge had conducted such an assessment, it was ‘inevitable’ that the judge would have concluded that the applicant had sustained a loss of earning capacity of 40 percent as a result of his back injury.

In support of that proposition, counsel for the applicant pointed to the evidence of the gross earnings of the applicant for the three years preceding 30 June 2013. It was further submitted that the applicant’s residual capacity, at the date of the hearing of the serious injury application, was, on the medical evidence, either nothing, or, at the most, up to 15 hours per week. In either case, the applicant’s loss was more than 40 percent.

In support of those propositions, the applicant relied on the medical evidence of Mr Brownbill, Dr Ho, Dr Murphy, Mr Wallace, Mr Gardiner and Dr Choong. Based on that evidence, it was submitted that the judge could not but conclude that the applicant had sustained the requisite loss of earning capacity of 40 percent as a result of his back injury.

In response, counsel for the respondent pointed, first, to the medical evidence relating to the consequences of the applicant’s neck injury, and, in particular, as to the effect that it had on his capacity to carry out heavy work. In that respect, counsel referred to the opinions of Dr Capes, Mr Kossman, Mr Reid, and Mr Wallace, and the opinion of Ms George, the rehabilitation expert. It was pointed out that the applicant had not been certified fit for normal unrestricted duties at any time after he suffered his neck and right shoulder injuries, and before he injured his back. Counsel also referred to the opinions of Mr Brownbill, Dr Ho and Dr Murphy that, after sustaining his lower back injury, the applicant could return to work on light duties. Based on that evidence, the judge concluded that the applicant had remained capable of performing the duties that he carried out before his employment with the respondent was terminated in December 2013. Accordingly, it was submitted that the judge correctly determined that the applicant had not established the requisite loss of earning capacity of 40 percent as a result of his back injury.

In relation to that issue, counsel for the respondent relied on the medical evidence as to the limitations to the applicant’s working capacity to which he was already subject because of the neck injury sustained by him in 2011. It was submitted that, accordingly, the applicant was not fit for normal unrestricted duties before he injured his lower back. Thus, it was contended that the judge was justified in concluding that the applicant’s work capacity was already ‘significantly compromised’ by his neck injury[29], so that, in effect, his work capacity would in any event have been no greater, if he had not injured his back.
[29]Reasons [391].

That submission cannot be sustained. While most of the medical evidence did not disentangle the effects of the applicant’s neck injury from the effects of his back injury in terms of his employment capacity, there was relevant evidence before the judge as to the additional effect on the applicant’s earning capacity arising from his lower back injury. As we have already noted, Mr Wallace, the treating neurosurgeon, provided a report to the applicant’s solicitors dated September 2015, which focused on the applicant’s lower back injury. As we have already noted, Mr Wallace expressed the view that the applicant was then incapable of doing heavy physical work, and that he did not have any useful forms of employment. Mr Wallace believed that the applicant’s incapacity for work was directly related to his neck injury and his back injury. Significantly, he then stated:

I would regard his back injury as quite significant and likely to produce enduring problems, severely limiting his ability to gain suitable employment.

Further, Mr Brownbill provided a report to the respondent’s solicitors dated April 2015, in which he noted that the purpose of the review by him of the applicant was ‘… for assessing a back injury sustained on the 16^th May 2013’. Mr Brownbill did note, in the history that he took from the applicant, that the applicant stated that his ongoing neck and right arm pain remained unchanged. However, otherwise, the report focused almost exclusively on the applicant’s back injury. The examination by Mr Brownbill of the applicant on that occasion was confined solely to the applicant’s lower back. Mr Brownbill’s report did not refer at all to an examination by him of the applicant’s neck. Similarly, Mr Brownbill only summarised the report of an MRI scan of the applicant’s lumbar spine (dated 8 July 2013), and he did not refer to any radiology relating to the applicant’s neck.

In the ‘comment’ section of his report, Mr Brownbill again focused solely on his conclusions relating to the applicant’s lower back injury. As part of that section of the report, Mr Brownbill stated:

He should in the future avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. From a physical neurosurgical point of view I consider he would be capable of a graded return to work avoiding these physical actions. The number of hours he could work would be dictated by his responses.

That evidence, by Mr Brownbill, related solely to the effect of the applicant’s lower back injury on his capacity for work.

In addition, Ms George provided two reports that focused solely on the nature of employment available to the applicant, taking into account, only, his lower back injury. As we have already noted, in both of those reports Ms George reached the conclusion that in light of the applicant’s physical limitations resulting from his back injury, and in light of his education, experience and skills, there was no avenue of employment available to the applicant.

Thus, contrary to the respondent’s submission, the medical evidence, and the evidence of the rehabilitation specialist, was to the effect that the back injury sustained by the applicant did have an additional significant and substantial effect on his earning capacity.

The proposition advanced by the respondent, that there was no significant reduction in the applicant’s work capacity by reason of his back injury, because he had already been certified unfit to perform normal duties due to his neck injury, was also contradicted by the evidence as to the substantial reduction in the duties performed by the applicant in the course of his employment with the respondent after he sustained the lower back injury in May 2013.

At the risk of repetition, before the applicant sustained his back injury, he had for two years been performing full time duties as a welder, on occasions working overtime, notwithstanding his neck injury, and notwithstanding (and indeed in defiance of) medical opinion that he ought not to be performing those duties. On the other hand, after he sustained his lower back injury, the applicant was restricted to performing light duties available in the respondent’s premises. He performed those duties with significant difficulty, and was only able to do so by taking frequent breaks from his work. Thus, while the medical evidence was that he was already unfit to perform full time unrestricted duties, because of his neck injury, the uncontradicted evidence of the applicant demonstrated that, in actuality, there had been a significant reduction in his work capacity due to his back injury. That evidence of the applicant was not put in issue by the respondent at the hearing of the application.

The medical evidence, as to the applicant’s work capacity before and after his back injury, is of course relevant. However, as the courts have reiterated on a number of occasions, applications for leave to commence proceedings under s 134AB(16)(b) of the Act do not fall to be determined solely by reference to the medical evidence; rather, they are to be determined on a full and proper consideration of all the evidence in the application.[30] In this case, an important aspect of the evidence relates to the substantial reduction in the work that the applicant was able to perform after he had sustained the lower back injury.
[30]Jayatilake v Toyota Motor Corporation Australia Limited (2008) 20 VR 605, 613 [34] (Ashley JA); Murray Goulburn Co-op Limited v Filliponi [2012] VSCA 230, [27] (Neave JA and Beach AJA).

In determining whether the applicant had established the requisite loss of earning capacity defined in s 134AB(38)(e) and (f) of the Act, the issue which needs to be addressed concerns whether, at the time of the application, the applicant retained a residual capacity for ‘suitable employment’ as defined in s 5 of the Act after he injured his back. The applicant bore the legal onus to prove that, as a result of his back injury, he had sustained a loss of earning capacity of 40 percent or more. As the applicant was not in employment at the date of the hearing of the application, the applicant was thus required to prove that he was not capable of earning in ‘suitable employment’ 60 percent (or more) of the income that he had been earning before he sustained his back injury ($60,000 gross per year).

As further noted, and as accepted by the respondent in this Court, the respondent bore the evidentiary onus to introduce evidence as to ‘suitable employment’, which the applicant was capable of engaging in, as that phrase is defined in s 5 of the Act. For that purpose, the respondent relied in this Court (as it did before the primary judge) on the proposition that the duties performed by the applicant, at the time at which his employment with the respondent was terminated, constituted such ‘suitable employment’. The respondent submitted that that employment, with the respondent, was only terminated because there was no longer work available for the applicant with the respondent. Thus, it was submitted, at the time of termination of his employment, and at the time of the hearing of the serious injury application, the applicant was, and remained, capable of performing that work, which, it was contended, constituted ‘suitable employment’ for the purposes of s 5 of the Act. That proposition was, in substance, accepted by the primary judge.[31]
[31]Reasons [396].

There are, however, clear difficulties with the proposition thus relied on by the respondent. As we have noted, the work performed by the applicant, in the period of two months preceding the termination of his employment with the respondent, constituted a significant reduction in the work that he had been performing before his injury. After the applicant sustained his lower back injury, he endeavoured to perform one type of light task available in the respondent’s business, involving the fitting of plumbing parts, but he found that he was physically incapable of sustaining that work. He was then assigned to even lighter work, on the boom assembly. The uncontradicted evidence of the applicant was that he performed that work, for two months, under real physical difficulty. In order to be able to do that, he needed to take frequent breaks. In his evidence he said:

… even though the work I was doing was light work and easy work, I had a lot of trouble because I’d gone from having pain in the top half of my body to having pain in the lower half of my body as well. So there’d be times, like — I’d be, like ‘God this hurts’, and I’d go to the toilet and sit down for half an hour just to get some — you know have a rest from it. Or I’d go for a wander down the back paddock where they had some tanks and stand there and stretch and sort of — yeah, get myself together a bit.

That evidence was given in the context of a person who, according to his own employer, had a strong work ethic, and who had defied medical advice after he sustained his earlier neck injury to work full time. In cross-examination, it was put to the applicant that if the respondent had not terminated his employment, he would have expected to have kept working those light duties. To that question the applicant responded ‘I would have done my best, yes’. He was then asked if the factory next door had offered him the same duties, would he have accepted such an offer. The applicant again responded ‘I would have tried, yes’.

The evidence, to which we have just referred, significantly qualifies the proposition that the applicant was in fact fit for, and able to perform, the light work that he had been designated to perform at the time of the termination of his employment with the respondent. In addition, the evidence of Mr Brownbill, Dr Ho and Dr Murphy — referred to by the primary judge — was itself heavily qualified in respect of the question whether the applicant had the capacity to return to that type of work as a result of his lower back injury. As noted, Mr Brownbill’s report dated 29 April 2015 was directed solely to the applicant’s back injury. Having set out the limitations to which the applicant would be subject as a result of that injury, Mr Brownbill went no further than to state that the applicant would be capable of a ‘graded’ return to work within those limitations, and he went on to state ‘the number of hours he could work would be dictated by his responses’. That evidence is a substantial distance from a certification by a neurosurgeon that the applicant was capable of performing limited duties for at least 60 percent of full time work.

Dr Ho’s evidence was to like effect. He described a number of limitations to which the applicant would be subject, including avoiding heavy lifting in excess of five kilograms, and avoiding repeated strenuous bending and twisting of the lower back. Those limitations, themselves, necessarily applied to the applicant’s lower back. Dr Ho went no further than to state that if suitable duties were available, he recommended a ‘graduated’ return to work plan. Dr Murphy, who did not disentangle the two injuries, opined that the applicant could work up to 15 hours (or five three hour days) per week.

Taking that evidence together, we consider that it is not open for this Court to conclude that the applicant was in fact fit for, and thus suited for, the duties that he was performing before the termination of his employment.

However, and additionally, there are two further problems with the proposition, advanced by the respondent, that the applicant’s pre-injury duties constituted suitable employment for the purposes of s 5 of the Act. In the first place, that proposition is based on the contention that the applicant’s work with the respondent was only terminated by the respondent, because there was no further work available. That contention, accepted by the judge, was based on evidence given by the applicant in cross-examination. The first matter that must be observed about that evidence was that it was not entirely unqualified. When asked whether he was told by his employer that they no longer had work available for him, the applicant responded ‘pretty much yes’. When asked further about that matter he said ‘… they just said that they had no work for me’.

The statement by the employer to the applicant, as to why his work was terminated, was not evidence of the basis upon which the respondent chose to terminate the applicant’s employment. It was, strictly speaking, hearsay evidence as to that matter. However, and in any event, that evidence was significantly qualified in the applicant’s evidence in re-examination in answer to the following questions:

After May 2013 when you hurt your back, was there any change in the amount of work generally available to Goldacres while you were there? — — — No. No, not that I know of.
Apart from the injury to your back, are you aware of any other reason why you were terminated? — — — No.

In addition to that evidence, as already stated, the applicant told Dr Murphy, Dr Doherty and Mr Carey that his employment with the respondent had been terminated, because his medical practitioner would not certify him fit for full duties. In his report Mr Carey stated:

Mr Poholke told me that this was because Dr Choong would not clear him for normal duties, but his employer told him that he had either to undertake normal duties or cease work.

Thus, to the extent to which hearsay evidence was admissible on that topic, that evidence, and the direct evidence given by the applicant in re-examination, weighed heavily against the proposition, elicited from the applicant in cross-examination, that he had been told by the employer that his employment was terminated because there was no work available. Further that proposition was contradicted by the applicant’s evidence that in fact there was no decrease in the work at the factory at the time in which his employment was terminated. In that context, it was relevant that the respondent did not call any evidence as to the reason why it decided to terminate the applicant’s employment.[32]
[32]Cf Jones v Dunkel (1959) 101 CLR 298, 308, 312; O’Donnell v Reichard [1975] VR 916, 929.

Finally, it is necessary to address the question whether, in any event, the duties performed by the applicant, before his employment with the respondent ceased in December 2013, constituted ‘suitable employment’. The only evidence to that effect was that, when the applicant had difficulty performing light duties (fitting plumbing parts), he was assigned to work on the boom assembly, which was the lightest work within the respondent’s factory. The respondent did not adduce any evidence, at all, that that task itself constituted a role for which a person could be employed within the respondent’s enterprise. The fact that an injured worker is assigned, for a short term, to a particular light task, does not, without more, constitute that task ‘suitable employment’.[33] The evidentiary onus was on the respondent to adduce evidence that the task, to which the applicant was assigned, and which he was performing when his employment was terminated, in fact constituted of itself a form of employment in its business, whether or not that work was available. No such evidence was introduced by the respondent. The applicant’s evidence did not elucidate that issue at all. In those circumstances, the respondent did not discharge the evidentiary onus on that matter that was imposed on it.
[33]Richter v Driscoll [2016] VSCA 142, [93].

Taking those matters into account, three conclusions necessarily follow. First, we are well satisfied that, as a consequence of his back injury, the applicant sustained a serious impairment of his earning capacity as defined by s 134AB(38)(c); in other words, the applicant has established that he sustained a very considerable impairment of his income earning capacity as a consequence of that injury. Secondly, the work performed by the applicant, before his employment with the respondent was terminated, did not constitute suitable employment, which the applicant was capable of performing after the injury to his lower back. Thirdly, in those circumstances, the applicant has established the requisite loss of earning capacity of 40 percent as a result of the injury to his lower back.

Conclusion

For the reasons stated, the applicant has made out ground 1. Further, for the reasons that we have stated, we have concluded that the applicant’s lower back injury constituted a serious injury, in respect of both the pain and suffering consequences, and loss of earning capacity consequences, as defined in s 134AB(37) and (38) of the Act. It follows that the application for leave to appeal should be granted, the appeal should be heard and determined instanter, and the appeal by the applicant should be allowed. In lieu of the orders made by the judge, it should be ordered that the applicant be granted leave, pursuant to s 134AB(16)(b) of the Act, to issue common law proceedings for damages for pain and suffering and loss of earning capacity, as a consequence of the injury to his lower back sustained on 15 or 16 May 2013.

Before departing from the case, we should add the following comments. Having read the transcript of the proceedings before the judge, it is evident that the argument before this Court was more extensive than that which occurred before her. Counsel on each side helpfully took this Court to the evidence and materials that were relevant to the issues that were before this Court, and, that were before her Honour. On the other hand, the judge did not have the benefit of such assistance, to the degree to which this Court did. That observation is not intended as a criticism of counsel. Rather, because of the heavy case load of the County Court in these matters, of necessity, serious injury applications are heard in short compass. However, it is only appropriate to acknowledge that the fact that this Court has come to a different conclusion than the primary judge is, to a not insignificant extent, a product of the advantage enjoyed by this Court of the manner in which the evidence and argument were presented to it.

[2016] VSCA 232

6 October 2016