Pullicino v Burden's Plumbing (Vic) Pty Ltd
[2019] VSCA 88
•17 April 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0094
| EMMANUEL PULLICINO | Applicant |
| v | |
| BURDEN’S PLUMBING (VIC) PTY LTD | Respondent |
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| JUDGES: | KAYE and T FORREST JJA and CHAMPION AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 April 2019 |
| DATE OF JUDGMENT: | 17 April 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 88 |
| JUDGMENT APPEALED FROM: | [2018] VCC 996 (Judge Misso) |
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ACCIDENT COMPENSATION – Application for leave to appeal – Workplace injury – Serious injury application – Injury to shoulders – Whether exacerbation or aggravation of pre-existing injuries ceased – Whether findings open on medical evidence – Whether judge’s reasons inadequate – Application for leave to appeal refused – Petkovski v Galletti [1994] 1 VR 436 considered – Accident Compensation Act 1985 s 134AB, Workplace Injury Rehabilitation and Compensation Act 2013 pt 6 div 3, pt 7 div 2.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Ms J M Forbes QC with Mr L B R Allan | Ms N Grech, Slater & Gordon Lawyers |
| For the Respondent | Mr J P Gorton QC with Mr R Kumar | Ms A Forgione, Injury Disputes Practice |
KAYE JA
T FORREST JA
CHAMPION AJA:
Background
On 8 October 2014, the applicant, Emmanuel Pullicino, commenced work with Burden’s Plumbing (Vic) Pty Ltd as a driver on a casual basis. He was then aged 52. His duties involved loading, unloading and carrying plumbing supplies, including pipes, drainage pits, bags of concrete and copper piping. He claims that as a result of those duties, he ‘was getting pain in [his] shoulders, particularly in [his] right shoulder’. He further claims that on 7 November 2014, while collecting a pipe from a building site, he was required to walk on uneven ground. He stumbled and ‘felt pain immediately in [his] shoulders’. He attempted to return to work twice since then but was unsuccessful. He has not worked since mid-2016.
By an originating motion filed in the County Court on 30 October 2017, the applicant sought leave, pursuant to s 134AB of the Accident Compensation Act 1985, to issue common law proceedings for the ‘recovery of damages, which request [had] been denied by the WorkCover Insurer for the [respondent]’. At the hearing in the County Court, the applicant clarified that the originating motion in fact sought leave under pt 7 div 2 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘Act’).
The application was heard by a judge of the County Court on 15, 16 and 17 May 2018. The applicant alleged two causes of compensable injuries — the heavy nature of the work and the discrete incident on 7 November 2014 that we have described in paragraph 1 of these reasons.
The applicant contended that the ‘impaired body function’ was ‘bilateral shoulder function’. His Honour concluded that the affected function was part of ‘manual function’[1] and therefore, was capable of being considered as a single body function without indulging in ‘impermissible aggregation’.[2] No issue is taken with this conclusion.
[1]Pullicino v Burden’s Plumbing (Victoria) Pty Ltd [2018] VCC 996 [11] (‘Reasons’).
[2]Ibid [10].
The judge dismissed the application on 29 June 2018. His Honour concluded that ‘the [applicant’s] pre-existing bilateral shoulder injuries were aggravated by the work he performed with the [respondent]’, but that ‘any exacerbation or aggravation had ceased’.[3] This conclusion meant that the applicant’s case failed, however, his Honour conscientiously went on to consider, in the event that this conclusion was wrong, the extent of any residual exacerbation or aggravation. His Honour went on to conclude, having applied the reasoning in Petkovski v Galletti,[4] that it was ‘fairly minor’.[5]
[3]Ibid [100].
[4][1994] 1 VR 436 (‘Petkovski’). See also AG Staff Pty Ltd v Filipowicz (2012) 34 VR 309, 314 [31]–[33]; R J Gilbertson Pty Ltd v Skorsis (2000) 12 VR 386, 398 [40] (Chernov JA); Bezzina v Phi [2012] VSCA 161 [23].
[5]Reasons [104].
In this proceeding, the applicant seeks leave to appeal on five proposed grounds, which are as follows:
1.The trial judge erred in concluding that any exacerbation or aggravation of the Applicant’s bilateral shoulder injuries had ceased, or alternatively failed to provide an understandable basis for that conclusion.
2.The trial judge misapprehended the pre-employment condition of the Applicant’s left shoulder.
3.Failing to make findings necessary to apply Petkovski v Galletti, and misapprehending the analysis required by Petkovski.
4.The findings as to the credit of the Applicant which were adverse to him were not open on the evidence, or if they were, then no adequate reasons for the adverse findings were explained.
5.The trial judge erred in his consideration of the Applicant’s case on loss of earning capacity and/or failed to give adequate reasons for his findings.
It is apparent that the real issues of controversy before his Honour and on this application relate to the applicant’s pre-employment bilateral shoulder impairment, and the extent, if any, of any aggravation or exacerbation to that pre-existing bilateral shoulder impairment.
The County Court proceedings
The applicant made three affidavits, which he adopted as his evidence-in-chief. In the first affidavit, in short compass, the applicant deposed to the following:
· He was born in 1961 and was 56 years old at the date of swearing his first affidavit.[6]
[6]15 May 2017.
· He came to Australia as a young child and was educated to Year 11. He did not complete a drafting course.
· He worked in the Titles Office for around 10 years, as a sales representative for about the same period and then ran his own business for around eight years. This business collapsed in 2012.
· He became depressed and anxious. He sought treatment from his general practitioner.
· He commenced employment with the respondent on 8 October 2014.
· He suffered problems with both shoulders prior to commencing his employment with the respondent. In 2009, his general practitioner at Epping Plaza Medical Centre referred him ‘for investigations’. He also attended Northern Hospital for his left shoulder. He was referred to see orthopaedic surgeon, Roger Westh. He was given cortisone injections ‘into [his] shoulders, which seemed to help’.
· He has suffered from gout, sleep apnoea, diabetes and high blood pressure.
· In 2014, he suffered a flare up of gout in his right ankle and left knee. He saw doctors and was referred for an MRI scan of his knee. He was prescribed medication and was referred to a rheumatologist for his joint pain.
· In September 2014, he saw his general practitioner relating to joint pain in his ankles, knees and shoulders. He saw a physiotherapist who taped his right shoulder, and he was given a trial of Endep and Tramadol for his joint pain.
· When he commenced work as a driver for the respondent, he was required to load, unload and carry plumbing supplies.
· He worked 30 to 35 hours per week. He would attend building sites and sometimes carry heavy items around those sites. As a result of his work duties, he ‘was getting pain in [his] shoulders, particularly [his] right shoulder’.
· On 7 November 2014, he was required, with another person, to carry a heavy pipe on a building site. He stumbled on uneven ground and felt pain immediately in his shoulders.
· He continued working for a few days until the pain in his shoulder caused him to cease work.
· He attended his general practitioner, who prescribed Endep and referred him for a scan on his right shoulder. An ultrasound was performed on 12 November 2014 and on 13 November 2014, cortisone was injected into his right shoulder.
· He was referred to the orthopaedic outpatient unit clinic at Northern Hospital and was referred for an ultrasound of his left shoulder and cervical spine. He continued to consult his general practitioner, who referred him back to Mr Westh.
· He returned to work on light duties in March 2015 but this was unsuccessful. He attempted to return to work again in mid-2016 but lasted only two to three days. He has not returned to work since. He has received weekly payments of compensation, which, at the time the first affidavit was sworn, was due to cease in May 2017.
· He started seeing Dr Alethan, a general practitioner at Hughes Parade Medical Centre, in or around September 2015. He sees Dr Alethan monthly.
· He takes Panadeine Forte daily for his shoulder pain and Panadol Osteo regularly. He is in constant daily pain in both of his shoulders and his sleep is disturbed because of it. He is restricted around the house, including the garden.
· He has had to give up on bocce, when he formerly played every Saturday at the Lalor Bocce Club.
· He has stopped fishing and is far less social than he used to be. Both of these consequences are due to shoulder pain.
The applicant’s second affidavit was sworn on 30 April 2018, in which he deposed that:
· He has had a second cortisone injection into his right shoulder, which has not made much difference.
· On 16 May 2017, he sought a second opinion from Associate Professor Martin Richardson. He was advised that surgery would help but WorkCover would not pay, nor would it pay for physiotherapy.
· He continues to take Panadeine Forte and Panadol Osteo for his shoulder pain. He has constant pain in both of his shoulders; about the same in each. The pain worsens with various movements.
· His sleep continues to be disrupted and he does not feel capable of work as a result of his shoulder pain.
· He is encouraged to go out. He often sees his friends at the Lalor Bocce Club and often visits Crown Casino.
On 14 May 2018, the applicant swore a third affidavit. In the affidavit, he added that he did play bocce around twice a week. He has also tried fishing again. In mid-2017, his wife and his general practitioner encouraged him to be more active.
The only witness required for cross-examination was the applicant. It is unnecessary to refer in detail to his cross-examination. It suffices to say that it was put to the applicant that his pre-accident shoulder condition was considerably worse than he had disclosed in his affidavits. His reliability as a witness was challenged in a number of ways. We shall refer to these later in these reasons.
The other evidence on the application was a substantial number of medical reports and other documents, which were tendered as exhibits. We shall summarise the conclusions of the medical witnesses, and refer to other exhibits where relevant. We shall not summarise the psychiatric and psychological evidence, which is irrelevant to this appeal.
The applicant’s relevant history
It is useful at this point to set out a short chronology of relevant evidence derived from the applicant’s affidavit material and the documentary exhibits. The applicant did not challenge the accuracy of the general practitioner’s notes or any other documentary evidence.
24 December 1961 The applicant’s date of birth. He is now aged 57.
Circa 1978 The applicant completed Year 11.
1979–2003 The applicant completed a ‘certificate course’ in Civil Engineering. He worked at the Land Titles Office for around 10 years, and then as a sales representative for Airport Garage Doors for around 10 years.
2004 The applicant commenced a business selling and installing garage doors.
17 January 2005 The applicant had an X-ray conducted of his left shoulder. It showed no evidence of fracture or degenerative change in the applicant’s shoulder and acromioclavicular joints. The X-ray report reads: ‘Focal sclerosis at the margin of the greater tuberosity of the humerus may be indicative of rotator cuff disease. No evidence of soft tissue calcification’.
3 February 2006 Under the section titled ‘Past Health’ on a hospital admission form at Northern Health,[7] the applicant had written, ‘Gout, shoulder pains’.
[7]This document was not marked as an exhibit at trial but was handed up to his Honour, and referred to by counsel in submissions. This document was handed to this Court on appeal without objection by senior counsel for the applicant.
27 March 2009 The applicant had an ultrasound conducted of his right shoulder. It showed a partial thickness supraspinatus tendon tear (8.8 mm x 11.5 mm), arising from the articular surface, 18 mm from the long bicep tendon.
22 June 2009 The applicant had an ultrasound conducted of his left shoulder. It showed a full thickness focal tear of the distal supraspinatus anteriorly measuring 16 mm in diameter. There was accompanying impingement with abduction, a focal thickness tear of the distal subscapularis superiorly and subacromial bursitis.
2012 The applicant’s garage door business failed.
2012–7 October 2014 The applicant was unemployed during this time.
8 October 2014 The applicant commenced employment with the respondent.
10 November 2014 The applicant ceased work with the respondent, save for two unsuccessful attempts to return to work in 2015 and 2016.
2014 Epping Plaza Medical Centre notes:
· Panadeine Forte was prescribed on 2 April, 14 May, 14 June and 31 October 2014, possibly for the applicant’s gout.
· 10 September — The applicant complained of ‘pains in joints’, which were ‘getting worse’. The notes also stated, ‘[right] lateral shoulder pain, [aggravated by] elevation, compression. Reports weakness. [Range of movement] abduction 130’. Further down in the notes of the same date, it was recorded, ‘Pains in all joints and getting worse. Sleeping 3–4 hours and wakes up with pain in the shoulder and knees and ankles. Seen physio and taped … right shoulder’. The applicant was prescribed a trial of Endep and Tramadol to be taken at night.
· 9 October — The applicant started a casual job driving a manual ute and he described experiencing some pains in his left knee.
· 31 October — The applicant complained of right shoulder pains.
· 9 November — The applicant complained of shoulder pains. He gave a history of a ‘few months’ of right shoulder pains, which became worse with his work. It was recorded that the applicant’s right acromioclavicular joint was quite tender. The applicant was prescribed Endep (20 mg) to be taken at night.
· 12 November — An ultrasound was performed on the applicant’s right shoulder. It showed a supraspinatus full thickness rupture with bursitis and features suggestive of impingement. The applicant was given a cortisone injection into his right shoulder.
· 14 November — The applicant complained that his right shoulder pain had worsened. He was not sleeping, and the two tablets each of Endep and Panadeine Forte every night were not helping. He went to Centrelink and was told to fill in a disability pension form.
· 25 November — The applicant complained that his right shoulder was still very sore. He said it happened after carrying heavy plastic tubes on 7 November at work on unstable ground. He also stated that he developed left shoulder pain since starting the new job.
· 26 November — An ultrasound was performed on the applicant’s left shoulder. It showed a full thickness rupture of the supraspinatus tendon, tendinosis and a questionable interstitial tear of the subscapularis tendon with subacromial/subdeltoid bursitis.
The applicant was prescribed Panadeine Forte (strong pain relief medication), Tramadol (an opioid medication for pain relief), Celebrex (an anti-inflammatory non-steroidal medication) and Endep (an anti-depressant) for some time before commencing employment with the respondent.
Medical reports
Dr Ian Stone
Dr Stone examined the applicant for treatment purposes on 17 March 2015. His opinion was that the applicant presented with bilateral chronic rotator cuff syndrome consistent with having been aggravated recently. He offered no opinion as to causation or the extent of any aggravation.
Dr Liran O’Kane
Dr O’Kane, general practitioner at Epping Plaza Medical Centre, summarised her consultations with the applicant in a report addressed to the Accident Compensation Conciliation Service dated 9 July 2015. Dr O’Kane diagnosed the applicant with full thickness tear and tendinosis in both of his shoulders. She observed that the applicant’s shoulder pain had partially improved since the workplace incident in November 2014 but he still had difficulties with overhead activities. She was not the applicant’s treating general practitioner in October and November 2014. Dr O’Kane offered no opinion on whether there had been an aggravation in October or November 2014 of the bilateral shoulder injuries, its extent, or whether it persisted.
Mr Anton Harms
Mr Harms, an ‘advanced musculoskeletal physiotherapist’, assessed the applicant at the Elective Orthopaedic Screening Clinic at Northern Health. In his medical report dated 27 July 2015, Mr Harms concluded that the applicant’s shoulders were limited in rotation and flexion, and demonstrated increased neural sensitivity. No opinions were offered as to causation or the extent, if any, of aggravation.
Dr Ala Alethan
There were three relevant medical reports, concerning the applicant, which were prepared by Dr Alethan, the applicant’s treating general practitioner, dated 20 October 2016, 21 February 2017 and 24 April 2018.
The reports dated 20 October 2016 and 21 February 2017 are substantially the same. In those reports, Dr Alethan confirmed that the applicant suffered from bilateral shoulder pain with limitation of movement. Ultrasounds conducted in November 2014 and an MRI conducted in February 2015 showed tears of tendons in his shoulders and degenerative changes in the joints. Although the applicant was treated with cortisone injections by Mr Westh (orthopaedic surgeon), there had not been a complete recovery.
In the report dated 2 April 2018, Dr Alethan confirmed that the applicant continued to suffer symptoms relating to bilateral shoulder pain with limitation of movement, and was not fit for any pre-injury duties due to his medical condition. Dr Alethan made no reference in any report to any prior shoulder injuries or symptoms, and offered no opinion as to causation or the extent, if any, of aggravation.
Dr Robyn Horsley
Dr Horsley, occupational physician, examined the applicant on 4 May 2017. Dr Horsley did not review any ultrasounds of the applicant’s shoulders. In her report of the same date, Dr Horsley confirmed that the events on 7 November 2014 (the workplace incident) and the applicant’s clinical presentation (bilateral shoulder disability) were consistent. The applicant’s prognosis for a return to work in any capacity was ‘guarded at best’.
The applicant described a significant weight gain (20 kilograms), following the workplace incident. Dr Horsley was not provided with any pre-accident history of shoulder pain or any pre-accident radiology. Dr Horsley obviously offered no opinion as to pre-accident symptomology or the extent of any aggravation.
Mr Roger Westh
Dr O’Kane referred the applicant to Mr Westh, orthopaedic surgeon, in early 2015. In his report dated 26 May 2017, Mr Westh noted the applicant’s ‘significant past history’, including a diagnosis in 2009 of bilateral rotator cuff tendinopathy. Mr Westh arranged for the applicant to have cortisone injected into his right shoulder, which resulted only in slight improvement. An MRI scan of the applicant’s shoulders showed tears in his rotator cuff with a background of tendinosis. The applicant had a restricted range of movement in both shoulders but was ‘coping with day to day activities’.
Mr Westh offered no opinion about the extent of the ‘past history’, save to describe it as significant. He offered no opinion as to the immediate pre-work condition or the extent of any work-related injury or aggravation.
Mr Russell Miller
Mr Miller, orthopaedic surgeon, provided two medico-legal reports on 7 August 2017 and 23 April 2018.
In his report dated 7 August 2017, Mr Miller referred to the November 2014 and February 2015 shoulder ultrasounds and the February 2015 MRI of the applicant’s right shoulder. He stated that each of these showed full thickness tears in the supraspinatus tendon. Mr Miller observed that these symptoms were related to the applicant’s employment and could be improved with surgical intervention. In any event, the condition was stable. Mr Miller was not provided with any radiology and relied on radiology extracts from a report of Dr Alethan.
In his report dated 23 April 2018, Mr Miller largely confirmed his findings in his previous report. No new imaging or evidence was presented to him for review at that time. It does not appear that Mr Miller had access to the 2005 X-ray report or the 2009 ultrasound reports. We were told that Mr Miller may have had access to the general practitioner’s clinical notes, however, he does not appear to have considered them in either of his reports. Mr Miller was given a limited past history. He opined that the symptoms he observed in April 2016 were multi-factorial. Mr Miller thought it likely that the applicant had a constitutional predisposition to ‘this type of shoulder problem’ and that it was likely that there was pre-existing shoulder pathology. He considered, ‘on the information available’, that the work event in November 2014 aggravated ‘that disease’ and caused further ‘superimposed injury’. He concluded:
I therefore regard his current clinical status in relation to the left and right shoulders as being substantially related to that work event. I acknowledge the difficulties in making that determination.
It is evident that Mr Miller, who was a major medico-legal witness for the applicant, was not provided with relevant and important information. The applicant described to him ‘some left shoulder symptoms in approximately 2009’ and ‘some minor right shoulder symptoms prior to the work injury’. No radiology performed on the applicant in 2005, 2006 or 2009 was provided to him, nor did he have any satisfactory history of the applicant’s past shoulder difficulties.
Associate Professor Martin Richardson
Associate Professor Richardson provided his opinion regarding the applicant’s bilateral shoulder pains on 8 November 2017. Clinical examination of the applicant’s shoulders ‘revealed bilateral painful arcs’, where were consistent with the investigation findings. Given that previous ‘conservative treatment’ appeared to yield little result, Associate Professor Richardson recommended surgery to repair the rotator cuff damage.
Dr Jurie Snyman
Dr Snyman, occupational physician, saw the applicant for medico-legal purposes for the respondent on 19 December 2014. Dr Snyman was provided with the applicant’s ultrasounds and an X-ray report, namely, the ultrasound reports dated 27 March 2009, 22 June 2009, 12 November 2014, 26 November 2014, and the X-ray report dated 25 November 2014. The reports demonstrated tendon tears in the applicant’s shoulders. Dr Snyman’s diagnosis was an ‘exacerbation of severe underlying subacromial impingement syndrome with its associated tendinopathy’, which had been caused by the increase in the applicant’s physical activity involving lifting, pushing, pulling and carrying plumbing materials. The applicant suffered from subacromial impingement syndrome well before the workplace incident in November 2014. Dr Snyman concluded that the aggravation of the applicant’s shoulder condition seemed to be attributable to his employment with the respondent, but noted that there was no evidence to support the contention that the pre-existing condition was caused by the applicant’s employment with the respondent. Dr Snyman was not provided with the general practitioner’s clinical notes of the immediate pre-work period.
Dr David Barton
Dr Barton, occupational physician, produced medico-legal reports for the respondent on 27 April 2015 and 11 May 2015. Dr Barton examined the applicant, and was provided with the applicant’s X-rays and other investigation reports.
In his report dated 27 April 2015, Dr Barton concluded that the applicant suffered ‘persisting symptoms following unresolved soft tissue injuries of the shoulders in the setting of a pre-existing long-term shoulder problem’. The workplace incident may have led to a temporary period of mild symptoms related to the pre-existing shoulder problem.
In his report dated 11 May 2015, Dr Barton stated that he did not diagnose an aggravation of the pre-existing condition. Dr Barton was not provided with the general practitioner’s clinical notes of the immediate pre-work period. The applicant gave him a history of the 2009 bilateral shoulder problems but no history of the September 2014 right shoulder problems.
Dr Graeme Doig
Dr Doig, who specialises in orthopaedics and trauma, examined the applicant on 15 January 2016. He was provided with the reports of Dr O’Kane, Dr Snyman and Dr Barton, as well as the applicant’s ultrasound results from 22 June 2009, 12 November 2015 and 26 November 2015. In his report of the same date, Dr Doig observed that the applicant did not appear to be in any distress during his consultation. The applicant was ‘significantly overweight’. Dr Doig’s diagnosis was that the applicant suffered from bilateral rotator cuff tears to both shoulders with ongoing impingement and difficulty using his arms overhead. The incident at work on 7 November 2014 had aggravated his pre-existing condition.
On the issue of causation, Dr Doig commented, ‘[t]here does not appear to be anything other than his work injury affecting his recovery, although this could be clarified with his GP’. Dr Doig was not supplied with the general practitioner’s clinical notes of the immediate pre-work period.
Dr Joseph Slesenger
Dr Slesenger, specialist occupational physician, produced two medico-legal reports on 19 September 2016 and 2 January 2017. He saw the applicant on 13 September 2016. Dr Slesenger was not provided with previous clinical records at that time.
In his report dated 19 September 2016, Dr Slesenger concluded that while there was evidence of pre-existing shoulder impairment, he was unable to advise on the applicant’s medical condition without a review of clinical records (including pre-injury records). Dr Slesenger was also unable to advise on any correlation between the applicant’s workplace exposures and his impairments.
In his second report dated 2 January 2017, Dr Slesenger confirmed that he had since received copies of the clinical records by the applicant’s general practitioner of the pre-work period. Dr Slesenger confirmed that the applicant suffered from pre-existing shoulder impairment predating the incident as early as 2009. The applicant had attended his general practitioner just prior to the workplace incident complaining of right shoulder impairment and he attended his general practitioner again just after the date of the incident complaining of the same. The incident on 7 November 2014 was not mentioned for another two weeks. Dr Slesenger concluded that the applicant had longstanding shoulder problems that predated the incident under consideration. He opined that there was ‘questionable evidence’ in the contemporaneous records to link the incident on 7 November 2014 with the applicant’s ongoing shoulder issues. While there was evidence to support a ‘brief aggravation’ of pre-existing impairment in both shoulders as a result of general workplace exposures, Dr Slesenger was unable to accept that the incident of 7 November 2014 was a significant causal factor of the applicant’s injuries.
Mr Rodney Simm
Mr Simm, orthopaedic surgeon, was provided with the reports of Dr Alathen, Dr O’Kane, Mr Westh, Dr Horsley and Dr Slesenger, as well as the applicant’s ultrasound and X-ray results. Mr Simm produced two medico-legal reports on 26 October 2017 and 1 November 2017. He examined the applicant on 26 October 2017.
In his report dated 26 October 2017, Mr Simm diagnosed the applicant to have bilateral shoulder dysfunction as a result to advanced degenerative rotator cuff pathology. Mr Simm noted that the applicant’s shoulder condition is long-standing, dating back to 2009. The applicant’s employment was a materially contributing factor to his ongoing incapacity and associated impairment. As at 26 October 2017, Mr Simm was of the view that there was an ongoing aggravation of his condition. He did not directly assess the extent of this ongoing aggravation but he did comment that the current shoulder symptoms seemed ‘considerably worse’ than before the applicant commenced work.
Mr Simm provided an additional report on 1 November 2017, which outlined the parameters of future employment for the applicant — namely, that the applicant was restricted to jobs which do not require unsuitable amounts of reaching and lifting. It appears that Mr Simm did not have access to the general practitioner’s clinical notes of the immediate pre-work period, but he did have Dr Slesenger’s reports, the second of which referred to those notes.
Medical Panel Certificate of Opinion
On 7 April 2018, the Medical Panel delivered its opinion of the applicant’s condition in response to a referral by a magistrate on 15 December 2017 pursuant to pt 6 div 3 of the Act. The Medical Panel conducted physical and psychiatric examinations on the applicant on 18 March 2018, and was provided with the applicant’s previous imaging results and medical reports.
Specifically, the Medical Panel had available to it, amongst other documents, the following:
· Applicant’s serious injury affidavit dated 15 May 2017
· Right shoulder ultrasound dated 27 March 2009
· Left shoulder ultrasound dated 22 June 2009
· Right shoulder ultrasound dated 12 November 2014
· Guided right shoulder injection ultrasound dated 13 November 2014
· Cervical spine X-ray 25 November 2014
· Left shoulder ultrasound dated 26 November 2014
· Right shoulder MRI dated 23 February 2015
· Reports of Dr O’Kane dated 14 November 2014, 27 November 2014, 3 January 2015, 23 March 2015 and 9 July 2015
· Report of Dr Stone dated 17 March 2015
· Reports of Dr Alethan dated 20 October 2016, 21 February 2017 and 22 February 2017
· Report of Dr Horsley dated 4 May 2017
· Reports of Mr Westh dated 29 April 2009, 12 August 2009, 10 February 2015, 24 March 2015, 3 June 2015, 29 October 2015 and 26 May 2017
· Report of Mr Miller dated 7 August 2017
· Report of Associate Professor Richardson dated 16 May 2017
· Primary Healthcare Epping progress notes up to 16 December 2016
· Hughes Parade Medical Centre progress notes up to 18 October 2016
· Hughes Parade Medical Centre complete record dated 17 July 2017
· Report of Dr Snyman dated 19 December 2014
· Report of Dr Barton dated 27 April 2015
· Report of Dr Doig dated 15 January 2016
· Reports of Dr Slesenger dated 19 September 2016 and 2 January 2017
· Reports of Mr Simm dated 26 October 2017 and 1 November 2017
The Medical Panel concluded, notwithstanding inconsistencies on examination, that the applicant suffered from mild bilateral rotator cuff disease. The Medical Panel noted that the applicant had had a prior episode of pain in both shoulders in 2009, for which steroid injections were given at the time. According to the applicant’s medical records, he also suffered an episode of right shoulder pain in September 2014. The applicant also suffered from gout and diabetes — musculoskeletal disease is a common complication in patients with diabetes with shoulder pain being one of the most common complaints. The Medical Panel considered that the applicant suffered an exacerbation of pre-existing bilateral rotator cuff disease as a result of the workplace incident on 7 November 2014. The incident led to a temporary exacerbation of the applicant’s shoulder condition but it had been resolved. The Medical Panel concluded that the applicant’s workplace injury was not a materially contributing factor to his current shoulder injuries. The applicant had the ability to return to his pre-injury employment from 6 May 2017.
The trial judgment
We shall set out, in brief form, his Honour’s reasons.
The central premise in the applicant’s case at trial was that even though he had pre-existing bilateral injuries to his shoulders prior to commencing work with the respondent, those injuries were relatively insignificant.[8] Upon review of the available evidence, his Honour concluded that this was not the case.
[8]Reasons [8].
The trial judge first set out the evidence deposed in the applicant’s affidavits and the parties’ medical materials (including clinical notes, medical reports and imaging results) in some detail. We have summarised the medical evidence at paragraphs 13 to 44 of these reasons.
Upon review of the available evidence, the trial judge found that the ‘brevity of what the [applicant] deposed to [was] misleading to a material degree’,[9] and that the medical evidence was ‘in stark contrast to what the [applicant] deposed’.[10] His Honour went on to say that the applicant’s evidence of his medical treatment prior to his employment with the respondent was ‘unsatisfactory’[11] and ‘seriously deficient, creating the impression that [the applicant] was faring reasonably until the exacerbation or aggravation of the pre-existing bilateral shoulder injuries occurred’.[12]
[9]Ibid [18].
[10]Ibid [43].
[11]Ibid [9].
[12]Ibid [109].
The trial judge held that it was likely that the applicant was dealing with shoulder pains before commencing work with the respondent, which was evident from his previous visits to, and treatment by, various doctors prior to the incident in November 2014.[13] His Honour observed:
There was precious little attention given by the [applicant] to relevant clinical records which demonstrate that he had suffered quite serious tearing to the soft tissues in both shoulders by 2009, and required medical treatment in 2009 and 2014 of some significance. The medical treatment of itself demonstrates that the [applicant] very probably suffered pain and suffering and loss of earning capacity consequences, consequent upon the impairment of function of both shoulders before he commenced employment with the [respondent].[14]
[13]Ibid [109]–[110].
[14]Ibid [9].
The trial judge accepted that the work the applicant performed for the respondent exacerbated or aggravated his pre-existing bilateral shoulder condition, which in turn caused impairment, but that this exacerbation or aggravation had ceased.[15] If there were, however, some residual exacerbation or aggravation, it was likely ‘fairly minor’,[16] as the pre-existing bilateral shoulder injuries were the major cause of the applicant’s impairment.[17]
[15]Ibid [99]–[100], [117].
[16]Ibid [104].
[17]Ibid [104], [108], [117].
In examining the medical evidence, his Honour gave greater weight to the reports of Dr Slesenger and the Medical Panel:
I think Dr Slesenger and the Medical Panel were provided with documentary evidence superior to all of the other medical practitioners, in the sense that the documentary evidence was explanatory of the nature and extent of the [applicant’s] pre-existing bilateral shoulder injuries. I think that puts them in a better position to comment on the nature and extent of any exacerbation and aggravation when compared with the constitutional nature of the pre-existing bilateral shoulder injuries. It is clear that they concluded that any exacerbation or aggravation had ceased.[18]
[18]Ibid [100].
The trial judge accepted the conclusion by Dr Slesenger and the Medical Panel that any exacerbation or aggravation caused by the applicant’s work for the respondent had ceased.[19]
[19]Ibid [100].
His Honour went on to consider a Petkovski comparison on the assumption that, contrary to that conclusion, some aggravation of the pre-existing injury persisted. He concluded that if there were a continuing impairment arising from the workplace incident, it was minor.[20] The major cause, his Honour found, of the applicant’s current symptomology, was due to ‘the nature and extent of his pre-existing bilateral shoulder injuries’.[21] His Honour concluded that the applicant had understated his pre-October 2014 symptoms in his right shoulder. His Honour reviewed a number of factors that caused him to doubt the applicant’s reliability, including:
[20]Ibid [104].
[21]Ibid [108].
· A comparison of his asserted pre-incident physical condition as against the objective evidence of the 2005, 2006, 2009 and 2014 medical evidence.[22]
[22]Ibid [108]–[110].
· Immediately before commencing work with the respondent, the applicant was complaining to his general practitioner of sleeping three to four hours a night and waking up from shoulder, knee and ankle pain.[23]
[23]Ibid [111].
· The applicant’s physical activities pre-October 2014 were not significant.[24]
[24]Ibid [112].
· The applicant recommenced playing bocce about a year to a year and a half after the alleged exacerbation of his shoulder pain.[25]
[25]Ibid [113].
· The applicant recommenced fishing in 2017.[26]
· The applicant’s assertions that his weight had increased from 95 to 115 kilograms after the October and November 2014 incidents are contradicted by records kept by his general practitioners.[27]
· The applicant has travelled overseas on six occasions since November 2014, including undertaking three Pacific cruises.[28]
[26]Ibid [114].
[27]Ibid [115].
[28]Ibid p116].
His Honour concluded that any impairment consequences that may remain were not ‘serious’.[29]
[29]Ibid [117].
This appeal
For convenience, we shall repeat the proposed grounds of appeal:
1.The trial judge erred in concluding that any exacerbation or aggravation of the Applicant’s bilateral shoulder injuries had ceased, or alternatively failed to provide an understandable basis for that conclusion.
2.The trial judge misapprehended the pre-employment condition of the Applicant’s left shoulder.
3.Failing to make findings necessary to apply Petkovski v Galletti, and misapprehending the analysis required by Petkovski.
4.The findings as to the credit of the Applicant which were adverse to him were not open on the evidence, or if they were, then no adequate reasons for the adverse findings were explained.
5.The trial judge erred in his consideration of the Applicant’s case on loss of earning capacity and/or failed to give adequate reasons for his findings.
The applicant’s position, expressed through his senior counsel, is that if it is established that the judge erred in one or more of the manners asserted in the proposed grounds, then this Court should grant leave to appeal, allow the appeal and determine if the extent of the consequential impairment satisfies the statutory test.
The respondent contended that the applicant’s proposed grounds of appeal are not reasonably arguable. It made no submissions on whether this Court should rehear the matter or remit it to the County Court.
The applicant’s submissions
Senior counsel for the applicant did not seek to argue nor to rely upon ground 5. It was accepted that there was considerable overlap between grounds 1 to 4, and the applicant argued those grounds together. It was submitted that this was an aggravation case and his Honour was required to make a comparison of the applicant’s impairments before and after the incident. Counsel submitted that in concluding that the applicant had significant pre-incident shoulder impairments, his Honour fundamentally misstated the starting point of the comparison exercise.
The applicant contended that pre-incident investigations and treatment disclosed that the applicant had very limited shoulder problems in 2005, 2006 and 2007, and a minor degree of treatment and physiotherapy in September 2014. Senior counsel took us to a number of paragraphs in his Honour’s reasons,[30] and contended that his Honour made significant factual errors in paragraphs 29 and 40 of his reasons. We shall examine these assertions in the ‘analysis’ part of these reasons.
[30]Ibid [7], [19], [29], [46], [58], [96], [108], [110].
Senior counsel submitted that his Honour gave excessive weight to the fact that on 10 September 2014, there was a medical note to the effect that the applicant sought treatment for a sore right shoulder and gave a history of recently having the shoulder taped by a physiotherapist. This was about a month before the applicant commenced work with the respondent.
Having criticised the approach that his Honour took to the medical notes and opinions, the applicant then turned to his Honour’s treatment of the ultrasound examinations. He submitted that his Honour erred in attributing advancing pathology (from 2009 to 2014) to the left shoulder, when in fact it was to the right shoulder.[31] The applicant then submitted that the preponderance of medical evidence, including all of the respondent’s doctors, save Dr Slesenger and the Medical Panel, supported a diagnosis of an ongoing aggravation of an underlying organic condition. Dr Slesenger’s opinion was focused on a discrete incident on 7 November 2014 and did not address the heavy nature of the work that preceded the 7 November incident, so that opinion ‘can be put to one side’.
[31]Ibid [40].
The Medical Panel’s opinion was not accepted in whole by his Honour, who rejected its view that ongoing shoulder pains were diabetes related.[32] It was finally submitted that his Honour’s conclusion that the effects of any aggravation had ceased[33] was logically at odds with a conclusion that his underlying condition was asymptomatic just before the applicant’s employment with the respondent.
[32] Ibid [102].
[33]Ibid [100].
The respondent’s submissions
The respondent submitted that for the applicant to succeed, he had to show a permanent aggravation type injury of such a magnitude as to satisfy the statutory test. The case for the applicant was opened at trial on the basis that he either had no pre-incident symptoms at all, or that he had no symptoms beyond minor pains. There were a number of difficulties with this approach:
· The medical evidence demonstrated substantial bilateral shoulder symptoms prior to 8 October 2014.
· The applicant had not engaged in manual type work for some time before 8 October 2014, and suffered immediate symptoms once he resumed that type of work.
· The applicant’s reliability as a witness was the subject of a successful challenge and there were observable non-organic signs upon certain medical examinations.
· The applicant did not adduce any evidence from his treating general practitioner as at 8 October 2014. Drs O’Kane, McLean and Alethan were subsequent treating doctors. No evidence was adduced from either the general practitioner or the physiotherapist who treated the applicant for right shoulder pain in or around September 2014.
· No corroborative evidence was adduced from ‘before and after’ witnesses about the extent of any aggravation.
Therefore, the respondent submitted, the case rose or fell on the applicant’s hypothesis that everything changed when he started work on 8 October 2014 and without acceptance of that proposition, the case could not succeed.
Examples of the applicant’s unreliability were offered — the applicant’s assertions about his weight, sleep patterns and bocce activities were referred to by the respondent. Senior counsel for the respondent submitted that the judge was perfectly entitled to form a cautious view about the applicant’s reliability, and equally entitled to conclude that he was not free from injury before 8 October 2014.
Analysis
As noted by senior counsel for the applicant, there is substantial overlap between grounds 1 to 4, and we shall consider them together. We consider those grounds are best analysed by posing a series of questions raised by the applicant in argument.
Did his Honour err in finding that the applicant was suffering from a ‘serious symptomatic shoulder condition’ before 8 October 2014?
In our view, his Honour was not only entitled to find that this was the case, he was correct in doing so. His Honour found ‘the contribution by the work the [applicant] was performing with the [respondent] worsened an already seriously symptomatic condition’.[34] The applicant’s case below was structured around the hypothesis that any bilateral shoulder symptoms that he may have suffered before October 2014 had resolved and that he was largely asymptomatic at the commencement of his employment with the respondent.
[34]Ibid [45].
As his Honour correctly observed, the applicant’s three affidavits, which constituted his evidence-in-chief, said little about his pre-employment shoulder symptoms. Further, many of the medical practitioners, whose opinions we have briefly set out, were not provided with a complete relevant history of his pre-employment injuries.
We also agree with his Honour that, in several respects, the applicant’s reliability as a historian was successfully challenged. We have set out his Honour’s conclusions on this issue at paragraph 53 of these reasons. Amongst other things, the applicant attributed his substantial weight gain to ceasing work, whereas his general practitioner’s notes reveal that the measured gain had largely occurred before he started work. Doctors observed certain non-organic signs upon examination. The applicant swore that before he hurt his shoulder at work, he would sleep six to seven hours every night, whereas in September 2014, one month before he commenced work with the respondent, a medical note cited a history from the applicant that he would sleep for only three to four hours and then wake up with pain in his shoulders, knees and ankles.
In our view, his Honour was correct to regard the medical notes, reports and records of the pre-work period as the most reliable evidence of the applicant’s pre-work shoulder symptomology. We have set out much of this history at paragraphs 13 to 44 of these reasons. The content of these medical notes, reports and records was not challenged by the applicant.
In summary, the applicant’s left shoulder was X-rayed as long ago as 2005. In 2006, the applicant complained of shoulder pains in a signed Northern Health admission document. In March 2009, a partial thickness tear was observed in the right shoulder supraspinatus, and in June 2009, a full thickness tear was observed in the left shoulder supraspinatus. Both of these 2009 observations were made by ultrasound. These ultrasound examinations were conducted for a reason. It was reasonable to infer that the applicant was suffering from significant bilateral shoulder pain by 2009.
In September 2014, the applicant complained to his general practitioner of pains in all joints that were ‘getting worse’, and right lateral shoulder pain was observed to be aggravated by elevation and compression. Also noted was the sleep interference that we have referred to earlier in these reasons. We also observe that according to the general practitioner’s notes in September 2014, the applicant had sought physiotherapy and his right shoulder had been taped. This is not the history one would expect of a man who had suffered some shoulder pain in the past but whose symptoms had entirely settled down by October 2014. We also observe that between September and November 2014, the applicant was prescribed, amongst other medication, Celebrex (a non-steroidal anti-inflammatory drug), Tramadol (opioid pain medication) and Panadeine Forte (for the relief of strong pain).
We consider that the evidence powerfully supports the conclusion by the judge that the applicant’s immediate pre-work bilateral shoulder symptoms were significant.
Did his Honour err in concluding that any aggravation caused by the applicant’s work had ceased by the time of the hearing of the serious injury application?
We are of the view that his Honour was entitled to reach this conclusion and that no error has been demonstrated.
His Honour accepted that there had been some aggravation of the pre-existing bilateral shoulder injuries, which aggravation had been caused by the applicant’s work with the respondent. This was the preponderant medical opinion. His Honour considered that the Medical Panel and Dr Slesenger (both of whom concluded that any work-related aggravation had ceased) were better placed to comment on the nature and extent of this aggravation, given that they had ‘superior access’ to the ‘documentary evidence’ as compared to the other doctors.[35] Of the other medico-legal doctors, Mr Miller may have had access to the clinical notes but he did no analysis of them.
[35]Ibid [100].
We have reviewed the contemporaneous medical notes, records and radiological reports earlier in these reasons. They are of central importance to a complete understanding of the applicant’s pre-work bilateral shoulder condition. Dr Slesenger and the Medical Panel had access to the full clinical records of the applicant’s general practitioners. His Honour was entitled to conclude that their opinions were supported by ‘superior access’ to the ‘documentary evidence’,[36] in particular, to these clinical records. In our view, his Honour’s conclusion, predicated as it was on the Medical Panel and Dr Slesenger’s opinions, is unassailable.
[36]Ibid.
The applicant criticised the Medical Panel’s conclusions, particularly, that any ongoing shoulder symptoms were a product of the applicant’s diabetes.[37] The applicant emphasised that his Honour had rejected that aspect of the Medical Panel’s opinion, and ought to have rejected other aspects of the Medical Panel’s opinion, including that any effects of the work-related aggravation had ceased. In our view, his Honour was entitled to reject the Medical Panel’s opinion of the relationship between the applicant’s diabetes and his shoulder condition as speculative. It was unsupported by any evidentiary foundation and no reasoning for the diabetes diagnosis was apparent. Whilst his Honour was clearly entitled to reject this aspect of the Medical Panel’s opinion, this does not mean that his Honour was required to reject the Medical Panel’s opinion in its totality. For the reasons we have set out above, we consider that the judge was entitled to accept and act upon the opinions, formed by both the Medical Panel and Dr Slesenger, that the symptoms of work-related aggravation had ceased.
[37]Ibid [91].
Similarly, the applicant criticised Dr Slesenger’s conclusion that he was unable to attribute to the incident of 7 November 2014 to the applicant’s left shoulder symptoms.[38] The applicant contended, correctly, that his Honour rejected this aspect of Dr Slesenger’s opinion. Again, however, this does not mean that his Honour was required to reject the other opinions of Dr Slesenger, including that any compensable injury suffered by the applicant had resolved.
[38]Ibid [84].
We agree with his Honour that the information provided to Dr Slesenger and the Medical Panel meant that their opinions were better informed than virtually every other doctor who offered an opinion on causation or extent of aggravation (with the possible exception of Mr Simm).
The applicant contended that his Honour failed to provide an understandable basis for his conclusion that any aggravation had ceased to have effect. The applicant characterised his Honour’s reasons as both ‘contradictory and inadequate’. We disagree. In applications such as this, very often a primary judge is confronted with a vast body of material and opinions, some of which may well not be reconcilable.[39] In our view, the primary judge’s reasons were an entirely adequate expression of his reasons for his decision.[40]
[39]Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232 [77].
[40]Victorian WorkCover Authority v Kalenjuk [2017] VSCA 17 [63]–[64].
In this case, the judge was faced with competing evidence as to whether the compensable injury was persisting or whether it had ceased in circumstances where no medical examiners were required to attend court for cross-examination. His Honour’s task was complicated further by the fact that there was significant pre-existing pathology, the finding by the judge that the applicant’s evidence was unsatisfactory in many respects,[41] and the fact that several doctors were ignorant of most of the relevant evidence concerning the applicant’s pre-existing bilateral shoulder conditions. Against this background, we are of the view that his Honour provided adequate reasons for his preference for the opinions of the Medical Panel and Dr Slesenger.
[41]Reasons [9].
The applicant submitted that there was an inconsistency between the judge’s reasoning at paragraphs 100 and 104 of those reasons. We reject that submission. There is no inconsistency between these paragraphs. At paragraphs 100 and 101, his Honour set out his acceptance of the opinion that any exacerbation or aggravation had ceased; inherent in that conclusion was a finding that the underlying condition had been influenced by the work performed so as to become symptomatic or more symptomatic. At paragraph 104, his Honour simply concluded that if, contrary to that conclusion, any aggravation persisted (in other words, if he was incorrect in his primary conclusion that it had ceased), then it was of a minor nature. This conclusion was reached in the context of significant pre-existing pathology in both shoulders, together with a history of shoulder pain, substantial pain relief medication and treatment in the month prior to commencing physical work for the first time for a considerable period. There is nothing inconsistent in a judge’s reasoning simply because a judge considers an alternative conclusion premised on the assumption that he or she may be mistaken in the primary conclusion.
Did his Honour misapprehend the pre-employment condition of the applicant’s left shoulder?
Ground 2 alleges that his Honour misapprehended the pre-employment condition of the applicant’s left shoulder. This allegation is, in our view, misconceived. In written submissions, the applicant submitted that ‘there was no documentary or viva voce evidence of any pain in [the left] shoulder or treatment to that shoulder since 2009’; however, in paragraph 11 of the applicant’s first affidavit dated 15 May 2017, the applicant stated:
In about September 2014, I saw my GP in relation to joint pain I was getting in my ankles, knees and my shoulders.[42]
[42]Emphasis added.
Further, in cross-examination, the applicant accepted that his September 2014 pain persisted, albeit in a minor way, into October and November 2014. In the general practitioner’s clinical notes of 10 September 2014, the following is recorded, amongst other things: ‘Pains in all joints and getting worse’.
Based on that evidence, his Honour was entitled to conclude that (in relation to the applicant’s left shoulder), ‘the contribution by the work the [applicant] was performing … worsened an already seriously symptomatic condition’.[43]
[43]Reasons [45].
Are the judicial misstatements at paragraphs 29 and 40 of the judgment material?
At paragraph 29, his Honour stated:
By 2014, the plaintiff had been unemployed since 2012. He did not depose to being exposed to any particular activities which placed stress and strain on his shoulders, yet from early 2014, it would appear that his shoulders became actively symptomatic, requiring significant medical treatment.
In fact, the evidence was to the effect that shoulder symptoms became apparent from early September 2014, as opposed to early 2014. In our view, however, nothing turns on this. A fair reading of his Honour’s reasons demonstrates that he was well aware that symptoms became apparent in September 2014.[44] In the paragraphs immediately following paragraph 29 of his reasons, his Honour set out the general practitioner’s clinical notes from Epping Plaza Medical Centre, in which the clinical notes subsequent to 2 September 2014 reveal worsening joint pain, including shoulder pain. Further, no conclusions of consequence were based on his Honour’s misstatement in that paragraph of his reasons. This is not an appealable error.
[44]Ibid [46], [59], [76], [111].
The applicant complains about another misstatement by the primary judge at paragraph 40 of the reasons for judgment. In undertaking a comparison of the 2009 and 2014 ultrasound findings, his Honour stated that pathology had progressed in the left shoulder.[45] It is common ground on this appeal that in fact, the ultrasound reports demonstrated that progression had occurred in the right shoulder. Nothing turns on this misstatement and his Honour reached no material conclusions based on this mistaken premise.
[45]Ibid [40].
In any event, his Honour correctly paraphrased Mr Simm’s opinion that pathology had progressed in the right shoulder. Like the misstatement in paragraph 29 of the reasons, this misstatement at paragraph 40 of his Honour’s reasons is not material.
Did his Honour make findings necessary to conduct a Petkovski comparison, and did his Honour misapprehend this analysis?
In order to conduct the relevant comparison,[46] a judge is required to:
[46]Petkovski [1994] 1 VR 436, 443–444 (Southwell and Teague JJA).
(i) identify the relevant injury;
(ii) identify and separate the impairment consequences of each injury; and
(iii) identify whether the additional impairment caused by the aggravation qualifies as a serious injury as defined under the Act.
In our view, his Honour made adequate findings in order to conduct the comparison. He set out the applicant’s claimed consequences arising from the compensable injury, expressed the conclusion that he had ‘real trouble’[47] with the applicant’s proposition that the immediate pre-employment state of bilateral shoulder symptoms was that they were relatively insignificant, and he conducted an adequate analysis of the current impairment consequences of the compensable injury.
[47]Reasons [45].
It will be recalled that his Honour’s primary finding was that any aggravation had ceased, and his differential finding was that if any aggravation persisted, it was ‘fairly minor’.[48] Given his Honour’s primary finding, the applicant’s case failed at that juncture. The Petkovski additional impairment finding was only made in the event that his Honour was in error in his primary finding. In the event, we conclude that his Honour was not in error and the applicant’s case did fail upon that conclusion. Having said that, in our view, the applicant has not demonstrated any error in the Petkovski exercise conducted by his Honour.
Did the judge make ‘findings as to credit’ adverse to the applicant? If so, did he explain them adequately?
[48]Ibid [104].
We have set out his Honour’s findings on reliability at paragraph 53 of these reasons and our conclusions on some of those findings at paragraphs 68 to 70. It is sufficient to observe that his Honour was entitled to doubt the reliability of the applicant’s evidence, and he expressed in clear and unambiguous terms why this was so. To the extent that ground 4 complains of an adverse finding on credibility, the ground is misconceived. The judge made no adverse findings about the applicant’s honesty or credibility; his focus was on the applicant’s reliability.
The applicant did not press ground 5.
Conclusion
For the reasons set out above, we will refuse leave to appeal on all proposed grounds of appeal.
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