Sednaoui v Amac Corrosion Protection Pty Ltd
[2017] VSCA 66
•29 March 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0139
| JUSTIN SEDNAOUI | Applicant |
| v | |
| AMAC CORROSION PROTECTION PTY LTD | Respondent |
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| JUDGES: | PRIEST and BEACH JJA and CAMERON AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 March 2017 |
| DATE OF JUDGMENT: | 29 March 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 66 |
| JUDGMENT APPEALED FROM: | [2016] VCC 1262 (Judge O’Neill) |
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ACCIDENT COMPENSATION – Workplace injury – Serious injury – Serious injury application – Whether injury occurred in compensable circumstances – Evidence – Admission against interest – Admission constituted by acceptance of worker’s claim form by employer’s agent and payment of compensation – Nature and extent of admission – Significance of admission – Application to be determined upon whole of the evidence – Witnesses – Credibility of witnesses – Advantage of primary judge who sees and hears witnesses – Application of Ansett Australia Ltd v Taylor [2006] VSCA 171 – No error made by primary judge – Application for leave to appeal refused – Accident Compensation Act 1985, s 134AB.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A D Clements QC with Ms M S Tait | Zaparas Lawyers Pty Ltd |
| For the Respondent | Mr M F Wheelahan QC with Ms M Norton | Hall & Wilcox Lawyers |
PRIEST JA
BEACH JA
CAMERON AJA:
Between 2009 and 2012, Mr Justin Sednaoui, the applicant, was employed by Amac Corrosion Protection Pty Ltd, the respondent. The applicant performed manual work which was heavy and required him, amongst other things, to move heavy metal anodes around his work premises.
On 15 October 2012, the applicant completed a worker’s injury claim form in which he alleged that he suffered injury to his back on 14 December 2011 when he was carrying a 50 kilogram anode with the assistance of the factory manager, Mr John Pike. On 30 October 2012, the respondent’s agent, Allianz Australia Workers’ Compensation (Victoria) Limited accepted the applicant’s claim for weekly payments and medical and like expenses. Thereafter, Allianz made payments to, and on behalf of, the applicant, pursuant to the provisions of the Accident Compensation Act 1985 (‘the Act’).
In June 2014, the applicant filed an originating motion in the County Court naming the respondent as the defendant. In that proceeding, the applicant sought an order giving him leave ‘to commence common law proceedings for a serious injury certificate pursuant to s 134AB of [the Act]’. The application was heard in the County Court, by Judge O’Neill, over three days between 16 and 18 August 2016.
At the hearing of the application, the applicant relied upon an impairment of the function of his lumbar spine as satisfying paragraph (a) of the definition of ‘serious injury’ contained in s 134AB(37) of the Act, and a major depressive disorder, alternatively, a chronic adjustment disorder as satisfying paragraph (c) of that definition. The application for leave was made by the applicant in respect of both ‘pain and suffering damages’ and ‘pecuniary loss damages’.[1]
[1]As those expressions are defined in s 134AB(37) of the Act.
On the hearing of the application, the applicant relied upon affidavits that he swore on 22 January 2014, 16 September 2015 and 11 August 2016. He also relied upon affidavits sworn on 30 September 2015 and 11 August 2016, by his sister Ms Janine Sednaoui, and on an affidavit sworn on 12 August 2016, by his mother, Ms Christine Sednaoui. The respondent relied upon an affidavit sworn on 18 November 2015 by Mr Pike, and on affidavits affirmed by its general manager, Mr Mark Rigg, on 16 September 2015 and 18 November 2015. At the hearing, the parties tendered various documents, including medical reports, diary entries, claim forms, an internal memo from the respondent to the applicant and a letter from the respondent to Allianz dated 23 October 2012.
The only witnesses to give oral evidence on the hearing of the application were the applicant, Mr Pike and Mr Rigg. The applicant was cross-examined by counsel for the respondent, and Mr Pike and Mr Rigg were cross-examined by counsel for the applicant.
On 2 September 2016, 15 days after the conclusion of the hearing, Judge O’Neill gave judgment dismissing the applicant’s application.[2] The judge dismissed the application because he found that the applicant had not discharged the onus upon him to prove, on the balance of probabilities, that the applicant’s injury occurred in compensable circumstances.[3]
[2]Sednaoui v Amac Corrosion Protection Pty Ltd [2016] VCC 1262 (’Reasons’).
[3]Ibid [77]. As to the requirement for the applicant to establish that his injury occurred in compensable circumstances, see Borazio v State of Victoria [2015] VSCA 131 [63]; Laratae v Dean’s Pty Ltd [2016] VSCA 71 [18].
The applicant seeks leave to appeal and, if leave is granted, to appeal against the judge’s order. The applicant’s sole proposed ground of appeal is as follows:
The judge erred in his application of the principles enunciated in Ansett Australia Limited v Taylor[4] to the facts in this case. In particular, the judge:
(a)failed to find the acceptance of liability and payment of compensation by way of weekly payments and medical and like expenses in the present case was a very significant admission by the respondent that a compensable injury had been sustained by the applicant;[5]
(b)failed to accord the applicant the benefit of a very significant admission by the respondent that a compensable injury had been sustained by the applicant before undertaking an analysis of the remainder of the evidence in relation to causation;[6]
(c)improperly applied a ‘contextual approach’ purportedly authorised by Bell J in Mert v Lawrence (Vic) Pty Ltd[7] when it was not relevant and was in conflict with the application of the principles in Ansett v Taylor to the present case;[8] and
(d)failed to distinguish the subsequent authorities, qualifying the principles in Ansett v Taylor, from the present case.[9]
[4][2006] VSCA 171 (‘Ansett v Taylor’).
[5]Reasons [57]–[61].
[6]Ibid [59]–[61].
[7][2016] VSC 348 (‘Mert’).
[8]Reasons [56]–[57], [60]–[61].
[9]Ibid [52]–[57], [60].
Ansett v Taylor
Having regard to the terms of the proposed ground of appeal, we will refer briefly to Ansett v Taylor, before turning to the evidence given at trial.
Ansett v Taylor is a decision of this Court, about a case that concerned the effect of the acceptance of a claim form, by the Victorian WorkCover Authority. The question in Ansett v Taylor was framed by Ashley JA[10] as follows:
Specifically, for the purposes of a serious injury application under s 134AB(16)(b), did the prior acceptance by the WorkCover Authority,[11] under s 104B(2), of a worker’s claim under s 98C for lump sum compensation for non-economic loss ‘in respect of an injury resulting in permanent impairment’ — in cases in which the accepted s 98C injury had allegedly been sustained in whole or in part after 20 October 1999 — establish conclusively that the worker had sustained compensable injury on or after that date?[12]
[10]With whom Maxwell P and Bongiorno AJA agreed.
[11]Or self-insurer.
[12]Ansett v Taylor [2006] VSCA 171 [2] (footnote in original).
The Court answered that question in the negative. At [3] Ashley JA said:
The acceptance of liability under s 104B(2) has evidentiary effect only, as an admission by the Authority that such an injury was sustained. Such an admission should ordinarily be regarded as very significant, however, having regard to the serious consequences for the Authority flowing from the acceptance of a claim.
At [40], his Honour said:
But in cases where liability in relation to such a claim was accepted, I consider that the acceptance should stand only as an admission by the Authority or self-insurer, speaking for the employer, that such an injury had been sustained. Having regard, however, to the very serious consequences for the Authority or self-insurer flowing from acceptance of a claim – not only in respect of compensation payable under s 98C or s 98E, but also, potentially, with respect to s 134AB(3) and (15) – I consider that such an admission should ordinarily be regarded as very significant; albeit not conclusive, because a defendant, in a particular case, might be able to satisfactorily explain its conduct.
We turn now to the evidence that was tendered before the judge at the trial of the applicant’s application for leave to commence a common law proceeding.
The evidence at trial
The applicant gave evidence that he was employed by the respondent in approximately 1999 on a casual basis for approximately one year, before returning to the respondent on a full-time basis in approximately March 2009. Mr Rigg’s evidence as to the dates of the applicant’s employment with the respondent was more precise. Mr Rigg gave evidence that the applicant was employed by the respondent between 12 October 2000 and 9 May 2001, between 3 July 2001 and 20 November 2001, and between 17 March 2009 and October 2012.
The applicant’s case was opened before the judge on the basis that it was a claim for injury suffered in the course of employment ‘but the most serious incident occurred in December 2011’. The applicant made no allegation of any particular incident or injury during his initial period of employment with the respondent. He said, however, that he suffered back pain in 2000 while playing soccer.
The evidence was that the applicant’s work was heavy and demanding and, that on occasions, the applicant was required to lift heavy weights. The judge accepted that the arduous nature of the applicant’s employment could give rise to an injury to the lower spine.[13] He went on, however, to say that the difficulty for the applicant’s case in respect of a course of employment claim was that, with perhaps one exception, the opinions of all of the doctors were directed to the incident alleged to have occurred in December 2011. The judge said that, ‘in reality’, the case was not presented as a course of employment case.[14]
[13]Ibid [64].
[14]Ibid [65].
The December 2011 incident
The applicant gave evidence that on or about 14 December 2011, he and Mr Pike were lifting a metal anode weighing approximately 50–60 kilograms. Mr Pike suddenly ‘heaved the anode into the air onto a table’, taking the applicant by surprise. The applicant felt immediate pain in his low-back region. The applicant said that on the following day he told Mr Pike that he was in significant pain following the injury involving the anode. The applicant did not, however, enter the incident in the respondent’s ‘register of accidents’.[15] Moreover, the applicant did not seek any medical treatment at this time. Additionally, notwithstanding that the applicant attended his general practitioner’s clinic on 20 February 2012, complaining of a ‘cough and hot feeling’, the applicant did not make any report of back pain to a general practitioner until 6 August 2012 (about which we will say more below).[16]
[15]During the applicant’s cross-examination, the Respondent’s Register of Injuries was referred to as ‘the register of accidents’.
[16]In cross-examination, the applicant, in fact, accepted that he did not see any doctor until nine or 10 months after the December 2011 incident.
In his WorkCover claim form, and to many of the treating and consultant medical practitioners whose reports were tendered in this case, the applicant stated that the December 2011 incident occurred on 14 December 2011. In the claim form, the date of injury was said to be 14 December 2011 at 4:25 pm, and it was said that the incident occurred ‘in the lead and magnesium[17] area of the factory’. In cross-examination, after the applicant was taken to relevant timesheets by cross-examining counsel, the applicant accepted that the incident could not have taken place on 14 December 2011. The applicant accepted this because the timesheets showed that there was no work performed in the magnesium area on that day. The applicant agreed that the date was completely wrong. He said that he identified the date of 14 December 2011 as ‘a rough estimate at the time’.
[17]In the claim form, the abbreviation ‘mag’ is used for magnesium.
In addition to his evidence about the December 2011 incident, the applicant also gave evidence that he complained about his pain to Mr Pike and Mr Rigg on numerous occasions after the incident and throughout 2012. He said, however, that they did not want to know anything about it and, on one occasion, told him that if he reported the injury to the respondent’s owner, Ms Hilary Whitby, he would lose his job.
Mr Pike gave evidence that he had been involved in an incident in which he dropped an anode that he and the applicant were lifting onto a forklift. He immediately asked the applicant if he was all right. The applicant said he was fine and they finished loading the anode. Mr Pike denied that any incident took place on 14 December 2011. Mr Pike also gave evidence that he regularly worked with the applicant in the period from December 2011 to October 2012, and that he did not observe the applicant to be in pain at any time.
Mr Rigg gave evidence that he worked with the applicant throughout the same period, and that the applicant made no complaint to him about back pain. Both Mr Pike and Mr Rigg denied that the applicant reported any back injury to them at any time before filling out his WorkCover claim form in October 2012. Similarly, they denied that they told him he would lose his job if he reported an injury to Ms Whitby.
February 2012
On 16 February 2012, the applicant received a memorandum (described as a letter) from Mr Pike, signed by Mr Rigg,[18] in which the applicant’s work performance was referred to in negative terms. It was said in the letter that the applicant’s ‘performance again has become a problem causing unnecessary and costly mistakes’. The letter concluded with a statement that the next step would be the dismissal of the applicant. The letter concluded with a request to the applicant that he sign the document if he found it to be accurate and correct. The applicant signed the document on 22 February 2012. We refer to this matter here because circumstances surrounding the applicant’s explanation for matters referred to in the letter subsequently became relevant in the judge’s analysis of the applicant’s credibility (about which we will say more below).
[18]It was subsequently also signed by Mr Pike.
Other injuries involving the applicant’s back
In his affidavits, the applicant deposed to a number of other incidents of lower back pain. In 2000, the applicant said he experienced back pain when he fell while playing soccer, and also when he was fishing. He said he attended his general practitioner, Dr Barry, and was given a few days off work. He said his pain resolved after a short time and he did not have any ongoing back pain or difficulties.
Next, the applicant said that he was involved in a motor vehicle accident in 2004. He said that, while he had seen a general practitioner’s note dated 15 December 2004, in which it was recorded he suffered a sore left back, he could not recall injuring his back in the motor vehicle accident, and he said that he did not have any ongoing pain or difficulties in relation to it.
In about July 2009, the applicant said that he was lifting a heavy vice when he sprained his back. The applicant said that he went to Dr Barry and that after about a week he did not have any pain or discomfort in his lower back and he returned to normal duties. He said he made a full and complete recovery from this incident. An incident report was completed in the following terms:
22-7-9 9.30
Friday Morning 8.00
Justin spoke to me this morning about hurting his back late yesterday afternoon while lifting a steel vice with Chris. He said he had lifted it awkwardly and felt a pain in his back (lower).
I suggested that he get it looked at by a doctor before continuing with work. I also asked him to contact us after speaking to the doctor.
Monday off –
Tuesday morning. Justin returned to work, I asked him how he was and how he was feeling. He said fine. I said ok take it easy and tell me if you have any pain or problem.
Tuesday afternoon 4.30
I asked Justin how he was. He said great, even better than this morning.
Wednesday morning, check how he felt.
Better than yesterday.
Had discussion with him about lifting correctly.
The applicant saw Dr Barry on 18 July 2009. Dr Barry’s clinical notes were as follows:
Was lifting heavy vice with fellow worker on Thursday. Walking with back slightly rotated. Felt pain immediately on putting the vice (45Kg) down and has not been comfortable since. Back very restricted if moves away from the vertical. No sciatic radiation but local spasm and some assymmetry (sic) of the spinal curvature. Needs rest and then physio. Treat with meds as below for comfort.
Next, in about mid-2010, the applicant said that he experienced pain in the middle of his back while working for the respondent. He said that it felt like his muscles ‘were spasming’. The applicant said that he reported this injury to the respondent. The applicant did not recall taking any days off work. He said that this back pain resolved after a very short time and did not cause him any ongoing difficulties.
On 27 June 2011, the applicant saw Dr Geoffrey Isaacs. Dr Isaacs recorded the applicant’s history as having hurt his lower back helping a friend shift furniture. Dr Isaacs recorded the applicant as having a good range of movement and no sign of disc prolapse. The applicant said that several days after this incident he did not have any pain or discomfort in his low back and he was able to work without any difficulties. As with his earlier incidents, the applicant said that he made a full and complete recovery from this incident.
August 2012
In Mr Rigg’s first affidavit, he deposed to a conversation he had with the applicant’s mother on 6 August 2012 and a conversation he had with the applicant on 7 August 2012. Mr Rigg’s evidence was that on 6 August 2012, he received a phone call from the applicant’s mother to inform him that the applicant had hurt his back on the weekend and was seeking medical treatment. On 7 August 2012, Mr Rigg spoke to the applicant. Mr Rigg deposed that the applicant informed him that he had injured his back while playing with his niece.
In response to Mr Rigg’s affidavit, the applicant’s mother deposed that 6 August 2012 was the applicant’s birthday. She said:
I recall that [the applicant] asked me to call Mr Rigg and tell him that he was unable to go to work on that day because he was sick, as he wanted a day off for his birthday. [The applicant] asked me to call Mr Rigg because he did not want to. I recall phoning Mr Rigg on 6 August 2012 and telling him that [the applicant] wasn’t well enough to go to work that day.
In his third affidavit, the applicant said:
Monday 6 August 2012 was my birthday. I asked my mother to call my workplace on 6 August 2012 and tell them that I’m unwell because I wanted to have the day off work on my birthday. I attended a general practitioner at [the practice of Dr Barry and Dr Isaacs] that same day in order to obtain a medical certificate so I could get paid for my day off work. When I was asked by Mr Rigg the following day as to what happened, I just said the first thing that came into my head, which was that I hurt my back when playing with my niece.
Sometime during 2012 I did experience a temporary flare-up of low back pain when I caught my niece diving onto the couch. I was sitting on the couch and my niece, who was about three years old at the time, tried to jump onto the couch. She was going to hit her head on the armrest of the couch, and I leaned forwards and caught her so that she did not hit her head (‘the niece incident’). I was already experiencing low back pain at this time, but my natural instinct was to catch her and stop her from hurting herself, despite the pain that I was in. The pain in my low back was worse for a short time after the niece incident, but the pain soon returned to the same level it had been before the niece incident. I cannot recall exactly when the niece incident occurred, but I am certain that it occurred after I injured my low back in the incident on 14 December 2011.
On 6 August 2012, the applicant saw Dr Isaacs. Dr Isaacs recorded:
Flare-up of low back pain. First happened six months ago when carrying heavy weight with the boss, who let go.
No sign of disc prolapse. Some loss of lumbar lordosis and restricted movements.
On the hearing of the application, the respondent’s Register of Injuries was produced. The register included an injury said to have been reported on 9 August 2012. According to the register, the date of the injury was 31 July 2012. The injury recorded was an injury to the applicant’s lower back. The injury was said to be an ‘aggravation of existing injury’. The cause of the injury was recorded as ‘trying to complete job with not enough assistance’. It was also recorded that the applicant was absent from employment on 6, 7 and 8 August 2012. Mr Rigg recorded, and he and the applicant then signed the following:
This injury report is for a slight strain on Justin’s lower back, he worked the rest of the week 1–3 AUG and did not mention the injury to anyone until Monday 6th August.
Justin reported to me on Mon 6th Aug that on Fri 3rd AUG in the evening he hurt his back playing with his niece.
The applicant was cross-examined about the ‘niece incident’ before the judge. He said his explanation that he had hurt his back playing with his niece was ‘just an excuse’. However, he maintained that an incident with his niece did occur sometime after the December 2011 incident. As the judge observed, however, when the applicant was before the County Court on an earlier hearing of his application, in answer to a question in cross-examination, the applicant said that he had never played with his niece and that the niece incident was ‘a lie’.[19]
[19]Reasons [24].
October 2012
The applicant attended at the practice of his general practitioners four times in October 2012, namely on 2 October, 4 October, 16 October and 30 October. On each occasion the applicant was seen by Dr Kristiani Satyadharma. The 2 October and 4 October consultations were recorded by Dr Satyadharma as follows:
Tuesday October 2 2012
…
Acute on chronic low back pain.
2/7 exacerbation low back pain, he woke up with severe back pain. Unable to sit, has to stand. The pain did not go anywhere, nil weakness, nil altered sensation, nil bladder or bowel disorder. Initial injury was in Dec 2011 at work, he was lifting 50 kg metal with other worker, the other worker suddenly let go the metal , he had a pulling sensation on his low back and pain. HIs (sic) work did not accept work cover.
… .
Thursday October 4 2012
…
He decided to put a claim on work cover.
As initial injury was at work last year, his back was painfull (sic) since last year then becomes more severe early this week.
… .
On 15 October 2012, as we have already noted, the applicant submitted, to the respondent, his WorkCover claim form in which he alleged that he suffered injury to his back on 14 December 2011 when he was carrying a 50 kilogram anode with the assistance of Mr Pike.
On 23 October 2012, the respondent lodged the applicant’s claim form with Allianz. The respondent lodged the claim form with a letter in which it expressed its ‘concerns’ to Allianz regarding whether the applicant had in fact been injured in the manner claimed. The respondent said, amongst other things, that the WorkCover claim form was ‘the first that we have heard of such an incident’. Moreover, amongst the concerns expressed by the respondent, the respondent said:
·The date, time & location of the alleged incident don’t correlate to our production records, nor do we have any record of this alleged incident until now.
·[The applicant] worked for the rest of 2011 and all of this year so far without reporting this incident or injury.
·Recently [the applicant] has tried to relate work to injuries that he has sustained outside of work.
On 30 October 2012, an Eligibility Officer of Allianz wrote to the applicant. The letter was headed ‘Acceptance of your claim for compensation’, identified a claim number, identified the employer as the respondent, and identified the date of injury as 14 December 2011. The letter then provided:
I am writing to advise that [Allianz] has accepted your claim for weekly payments and medical and like expenses.
Under the WorkSafe Scheme, compensation is provided to all injured workers who qualify under [the Act].
…
Your employer has chosen Allianz to manage its WorkSafe claims.
…
Allianz will work with you and your employer to ensure that you receive appropriate assistance for your claim. This may include:
·payment of weekly payments
·payment of reasonable medical and like expenses, and
·support with return to work.
…
In two places in the letter, the Eligibility Officer referred to the applicant’s entitlements being ‘based on the information provided by you [the applicant] and your employer [the respondent]’.
On the hearing of the application, no evidence was called by the respondent from anyone at Allianz to explain the circumstances in which Allianz accepted the applicant’s claim.[20]
[20]Cf Ansett v Taylor [2006] VSCA 171 [40].
The evidence of the applicant’s sister and mother
In her first affidavit, the applicant’s sister deposed that the applicant was ‘not the kind of person to complain or discuss his problems with other people’. The applicant’s sister said that it was not until about late 2012 or early 2013 that the applicant told her that he had injured his back at work.
In her affidavit, the applicant’s mother said that as best she could recall, the applicant first told her that he had hurt his back at work in the spring of 2012 — ‘about a month or so before [the applicant] stopped work’. As an explanation for this delay, the applicant’s mother deposed that it did not surprise her that the applicant had ‘put up with his back injury for many months before he told [her]’, because the applicant ‘is a very private person’.
The judge’s reasons
In his reasons for judgment, the judge set out the relevant background to the application. The judge then described some of the medical evidence, including the histories given in relation to the December 2011 incident and other back injuries.
A central issue in the case before the judge was the credibility of the applicant. The judge gave detailed reasons for having ‘significant reservations’ about the applicant’s credibility. The judge said:
Mr Sednaoui was reasonably responsive when questioned in cross-examination. He gave measured evidence. However, I have significant reservations about his credibility for the following reasons:
· His evidence about what occurred when he arranged for his mother to telephone his work on the day of his birthday, 6 August 2012, and his claim that he was unwell, was confused and unimpressive. He said he then went to his general practitioner to obtain a medical certificate so that he could be paid. This was clearly a deception. Little reliance can be placed on the clinical note of 6 August 2012 as a result.
· His evidence about hurting his back catching his niece at home was equally unimpressive. He maintained the event had occurred, although it was not the reason for him failing to attend work on 6 August 2012. Yet he claimed to his employer that was the reason he had hurt his back, when he attended work on the 7 August 2012. Extraordinarily, in an earlier proceeding, he denied the incident catching his niece had ever taken place.
· I accept the evidence of the defendant’s factory manager, Mr Pike, that he had a conversation with Mr Sednaoui on 2 October 2012. This conversation is documented in a letter to the insurer of 23 October 2012. I accept Mr Sednaoui telephoned Mr Pike and said that he had a sore back and was not able to come to work. I accept he was asked whether the injury related to work and that Mr Sednaoui said it did not, that he was fine over the previous several days, but woke up on Monday morning with a sore back.
· Mr Sednaoui claimed to many doctors that the incident with the anode occurred on the 14 December 2011. To some doctors he said December 2011. Yet he was completely unable, in the course of cross-examination, to explain how he came upon that date. He did not report the incident until October of the following year and worked throughout in heavy manual work. When challenged with the timesheets, he readily conceded that the date was inaccurate and it was only a rough estimate.
· Mr Sednaoui described in graphic detail to Dr Thomas how he reacted when Mr Pike dropped his end of the anode, including screaming and being unable to stand. It is inconceivable, in those circumstances, that he ‘simply forgot’ to place an entry in the Injury Register. He was familiar with making entries in the Injury Register, and WorkCover claims, as he had done so in the past.
· Mr Sednaoui told Mr Cunningham that he took a few days off initially after the December 2011 incident. He told Dr Thomas, Dr Paul Kornan and Dr Umberto Boffa that, after the incident, he saw his local doctor. Each history was untrue and, in my view, designed to elevate the significance of the incident.
· Ms Sednaoui’s account of the occurrence of the December incident, that he suffered severe pain in his back and into the left hamstring and leg which required him to limp, that the pain got progressively worse and he required assistance at work, stands in complete contrast to the fact that he did not consult any doctor for a very considerable time, did not enter the incident in the Register of Injuries and, most significantly, continued in heavy manual labour without time off.
· His explanation in evidence that the reference to his ‘personal life’ when reprimanded by his employer in February 2012 meant work problems, was invented on the spot.
· The history to a number of doctors[21] that he had never had back pain before was untrue, even given that his affidavit refers to all of the episodes as having resolved.
For these reasons, I have distinct reservations about Mr Sednaoui’s credibility. I should look, wherever possible, for objective confirmation as to the version of events he has given. In particular, his evidence that he hurt his back in the manner he has described on or about 14 December 2011, in circumstances where he did not record the injury, made no complaint to his treating doctor and continued working in a physically demanding job, is difficult to accept. Further, I accept the evidence of Mr Pike that, over the period from December 2011 to October 2012, he worked with Mr Sednaoui and did not observe him in pain at any time. I further accept he made regular enquiries of the workers, including Mr Sednaoui, as to ‘how they are going and to provide physical assistance’, and there was no indication from Mr Sednaoui that anything was wrong.[22]
[21]In his reasons, the judge identified the doctors as Mr Cunningham, Dr Ford, Dr Kumar, Dr Thomas, Dr Tagkalidis, and Dr Boffa.
[22]Reasons [43]–[44] (footnotes omitted).
As to the credibility of Mr Rigg and Mr Pike, the judge said:
Both Mr Rigg and Mr Pike were called to give evidence and be cross-examined. Both gave their evidence in a straightforward and responsive manner and were impressive witnesses. There were no major credit issues put to either of them. Mr Hore-Lacy submitted the procedures of Amac for recording injuries and incidents in the Incident and Injury Registers was ineffective and inadequate. He said there were incidents which were not recorded, including incidents where Mr Pike burned his hands and pants. In cross-examination, Mr Pike said he saw no need to report these matters as he considered them trivial. I accept his evidence.
Mr Sednaoui agreed he was friendly with Mr Pike and, in fact, saw him as a father figure. He had been to his house on social occasions. I detected no element of bias or lack of empathy towards Mr Sednaoui in Mr Pike’s evidence. I did not perceive him as supporting the position of the company because he is still an employee. He made appropriate concessions in the course of cross-examination. All in all, in the absence of objective supporting evidence, I prefer the evidence of Mr Rigg and Mr Pike to that of Mr Sednaoui.[23]
[23]Ibid [45]–[46].
During the course of the application before the judge, the applicant submitted that the acceptance of liability and payment of compensation by way of weekly payments and medical and like expenses fell to be regarded as a ‘very significant admission that a compensable injury had been sustained’. Central to the applicant’s case before the judge was the applicant’s reliance upon this proposition, coupled with this Court’s decision in Ansett v Taylor about the significance of an employer’s admission, of the existence of compensable injury, by the acceptance of a claim form and the payment of compensation under the Act. The judge gave detailed consideration to the applicant’s Ansett v Taylor argument.[24]
[24]Ibid [47]–[63].
In analysing the applicant’s Ansett v Taylor argument, the judge referred to a number of other Court of Appeal and first instance judgments, namely, Fokas v Staff Australia Pty Ltd,[25] Transport Accident Commission v Florrimell,[26] Ifka v Shahin Enterprises Pty Ltd,[27] Bedeux v Transport Accident Commission,[28] Raeburn v Tenix Defence Systems Pty Ltd (Ruling No 7),[29] Cairns v Trowelcoat,[30] and Mert v Lawrence (Vic) Pty Ltd.[31]
[25][2013] VSCA 230 (‘Fokas’).
[26][2013] VSCA 247 (‘Florrimell’).
[27][2014] VSCA 8 (‘Ifka’).
[28][2016] VSCA 127 (‘Bedeux’).
[29][2006] VSC 390 (‘Raeburn’).
[30][2014] VSC 129 (‘Cairns’).
[31][2016] VSC 348 (‘Mert’).
Having referred to, and discussed, these authorities, the judge said that he was bound by Ansett v Taylor.[32] The judge then held that the acceptance of the applicant’s claim stood as an admission that the injury occurred in compensable circumstances as described by the applicant in his claim form. The judge went on to say that that, however, was not the end of the matter. The judge then said it was necessary to consider the nature and extent of the significance of the admission. As the judge put it:
It is clear the admission is not a binding estoppel. Each case must be determined on its own facts, relevantly, as to whether or not an injury occurred in compensable circumstances.[33]
[32]Reasons [58].
[33]Ibid [61] (emphasis in original).
After again referring to Mert, in which Bell J concluded, on the evidence in a damages claim that he was trying, that the acceptance of a claim in that case had ‘very little probative value as an admission on behalf of the defendant’, Judge O’Neill said that he had ‘come to a similar conclusion in this application.’[34] In explanation, the judge then said:
The issue of causation in this application is not only complex but, indeed, the central issue. There is clear evidence from employees of the defendant, which evidence I accept, which casts grave suspicion on whether the incident said to give rise to injury occurred in compensable circumstances. For reasons I shall shortly set out, I am not satisfied the plaintiff has proved the causative relationship between his back injury and the alleged incident of December 2011. While the acceptance of the claim does constitute an admission, the admission is not of sufficient force or effect to persuade me that I should reject the evidence of Mr Rigg and Mr Pike, nor does it act as a substitute for the evidence of Mr Sednaoui, or underpin it in such a way as to lead me to prefer that evidence to that of Messrs Rigg and Pike.[35]
[34]Ibid [62].
[35]Ibid [63].
The judge then dealt with the applicant’s ‘course of employment’ argument and the evidence in respect of the events of early August 2012.[36] The judge finally concluded:
There is no doubt that at some time an incident occurred when Mr Pike and Mr Sednaoui were carrying an anode. I prefer the version of events as given by Mr Pike, that is, that they were lifting the anode from the tines of a forklift when it dropped a short distance to the ground. I accept Mr Pike’s evidence that he immediately asked the plaintiff if he was all right. He responded by saying he was fine. The incident was not recorded in either the Register of Injuries or the Incident Register as it was not seen to be of any significance.
I further accept the evidence of Mr Pike that over the period from December 2011 to October 2012 he did not observe Mr Sednaoui in any pain or restriction, asked him from time to time how he was and he observed Mr Sednaoui was able to carry out all of his duties without any apparent difficulty.
Mr Sednaoui had made claims for compensation in the past and made entries in the Injury Register. I do not accept his evidence that he simply ‘forgot’ to enter the incident at the time. There were other occasions, subsequently, when he had the opportunity to document what had occurred, but he failed to do so. Further, as stated, he made no complaint to his general practitioner about any incident until 6 August 2012. However, there were no further reports until 2 October 2012, when it is recorded he was suffering two weeks’ exacerbation of lower back pain and had woken up with severe back pain.
Whenever the incident with the anode occurred, I am not satisfied it resulted in any significant injury to Mr Sednaoui.
I accept the opinion of most practitioners that Mr Sednaoui has suffered an injury to his lower spine at the L4-5 and L5-S1 levels. That is evident from the MRI scans. It is possible that injury or degeneration in his lower spine occurred relatively spontaneously in October 2012. It is clearly possible that his work activities played some role. However, the onus is upon the plaintiff to prove, on balance, that the injury occurred in compensable circumstances. The plaintiff has not discharged that onus. I bear in mind the acceptance of the claim by the insurer and the admission to be inferred. However, that admission is not sufficient in the face of the evidence of the defendant’s witnesses, to satisfy me the injury occurred in compensable circumstances.
The plaintiff’s application is dismissed.[37]
[36]Ibid [64]–[71], [72]–[74].
[37]Ibid [75]–[80] (footnotes omitted).
Applicant’s contentions
The applicant contended that, while the judge purported to apply Ansett v Taylor, the judge erred in failing to accord the ‘requisite evidentiary weight’ to the admission which flowed from an acceptance of the principles enunciated in Ansett v Taylor. It was submitted that instead of according this requisite evidentiary weight, the judge wrongly performed an analysis of the nature and extent of the admission.
In support of these contentions, the applicant submitted that the principles in Ansett v Taylor, on the facts found by the judge in relation to the accepted claim:
dictated that before undertaking any further analysis of the remainder of the evidence in the case on causation, the accepted claim should have been afforded the evidentiary weight of a very significant admission on the part of the respondent that a compensable injury had been sustained.
In oral argument, the applicant submitted that Ansett v Taylor required the judge to accept, and conclude, that the admission made by the acceptance of the applicant’s claim and the subsequent payment of compensation was a ‘very significant admission’. It was then submitted that had the judge correctly so concluded, this would have ‘tipped the balance’ in favour of a finding that the applicant had sustained a compensable injury in the course of his employment.
In the course of his argument, the applicant noted that, while the maker of an admission may explain the admission away at the trial at which the admission is proved, in the present case ‘the maker [presumably the respondent] did not call evidence to explain the admission’. Both at first instance and before this Court, the applicant sought to make much of the fact that nobody from Allianz (including the author of the letter of 30 October 2012) was called to give evidence that might ‘explain away the admission’. This was said to be a further basis upon which the judge should have accepted, and then acted upon, the admission.
Finally, the applicant submitted that to the extent that any of the decisions of Florrimell, Bedeux, Ifka, Mert, Raeburn, Cairns or Fokas qualified the principles in Ansett v Taylor, those decisions were distinguishable from the present case; alternatively, were wrong and should not be followed; alternatively, should not have been held, or should not be held, to detract from the force of the propositions for which Ansett v Taylor is authority. Moreover, it was submitted that the judge’s analysis was affected by his references to these subsequent authorities and, to that extent, was erroneous.
Respondent’s contentions
The respondent contended that there was no error in the judge’s approach or analysis, and that the judge correctly dealt with, and applied, Ansett v Taylor. Moreover, the respondent contended that the passages in Ansett v Taylor relied upon by the applicant were not, in any event, propositions of law that were required to be applied by the judge in the determination of the application before him. In making this submission, the respondent relied upon what was said by Windeyer J in Teubner v Humble:[38]
[D]ecisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application … .[39]
[38](1963) 108 CLR 491 (‘Teubner v Humble’).
[39]Ibid 503.
Additionally, the respondent submitted that the application for leave to appeal had to confront the statement of principle in Robinson Helicopter Co Inc v McDermott:
[A] Court of Appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’. In this case, they were not. The judge’s findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences.[40]
[40](2016) 90 ALJR 679, 687 [43] (‘Robinson Helicopter’) (citations omitted).
Next, the respondent submitted that the onus on the applicant to satisfy the judge that he had suffered injury to his back in compensable circumstances was not necessarily discharged by the receipt of the admission into evidence. As the respondent put it:
While an admission may have particular prominence in a case involving little evidence of a matter in issue, in a case such as the present, where there was detailed causation evidence, and an assessment of the credit of witnesses had been made, the primary judge was required to consider the admission against the totality of that evidence.
Finally, as to the admission itself, the respondent observed that the Allianz claims officer had no personal knowledge of the facts, and that the admission about causation in those circumstances should not carry the same sort of weight as an admission by a party of a fact that that party saw, heard or perceived.
Analysis
In the application before the judge, there was a dispute between the parties about whether the applicant had sustained a compensable injury in the course of his employment with the respondent. The applicant’s case was heavily dependent upon an acceptance of his evidence and the admission constituted by the acceptance of his WorkCover claim form and subsequent payment to him of compensation under the Act. The respondent mounted a substantial case, based upon the evidence of Mr Pike and Mr Rigg and the cross-examination of the applicant, that no compensable injury had been sustained by the applicant. It was for the primary judge to determine whether, on the whole of the evidence, he was satisfied that the applicant’s case on compensable injury had been proved on the balance of probabilities.[41]
[41]Cf s 140(1) of the Evidence Act 2008.
It may be accepted that the admission, constituted by the acceptance of the applicant’s WorkCover claim form and the subsequent payment of compensation, was a significant admission. But the significance of the respondent’s admission should not be overstated. It was an admission made on behalf of the respondent by a person employed by an entity (Allianz), in circumstances where that person and Allianz (by reference to whatever principles of attribution might be applied in respect of Allianz) did not have personal knowledge of the injury alleged in the claim form, or the circumstances of its alleged occurrence. Moreover, it was in part an admission of an event that was alleged to have happened on a date and time that the applicant accepted was incorrect. Thus, whatever else might be said, the admission could never have been accepted in its entirety by the judge. Additionally, the fact that sections of the Allianz letter of 30 October 2012 were based, in part, on information provided by the applicant, reduces, at least to some extent, the significance of (and weight to be attached to) the admission so far as it was constituted by the acceptance of the applicant’s claim. It follows that, while, in different circumstances, an admission of the kind made in this case might be regarded as one of such significance as to almost be determinative of the issue in dispute, the present was not such a case.
In careful and appropriately detailed reasons, the judge analysed all of the evidence before coming to the conclusion that he was not satisfied that the applicant had sustained a compensable injury in the course of his employment with the respondent. We do not see any basis upon which it can be contended that his Honour failed to give appropriate weight to the admission upon which the applicant relied. Nor do we see any basis upon which it can be contended that the judge somehow engaged in some inappropriate or impermissible reasoning process. The judge had the benefit of seeing and hearing the witnesses. His advantage over this Court in that regard is palpable. Far from the judge’s conclusions being ‘glaringly improbable’ or ‘contrary to compelling inferences’ or being demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’,[42] in our view the judge’s conclusion was well-open on the whole of the evidence. In no sense did the admission relied upon by the applicant mandate some conclusion contrary to that reached by the judge. The admission was a piece of evidence that had to be weighed in the balance against what might reasonably be thought to be a substantial body of evidence to the contrary.
[42]Robinson Helicopter (2016) 90 ALJR 679, 687 [43].
In argument, the applicant took issue with that part of the judge’s reasons in which his Honour stated that the purpose of calling evidence from an insurer, where an admission was alleged, was to explain how, and in what circumstances a claim was accepted; and it was then ‘a matter to determine whether an admission could be said to arise’.[43] While this passage of the judge’s reasons, if read on its own and without the context of surrounding passages, might provide some support for the applicant’s criticism, read in context it is plain that the judge was not saying that an explanation from the insurer (agent) could turn what would otherwise be an admission into a statement that was no admission. In that part of his Honour’s judgment that the applicant sought to impugn with this argument, it is clear that the judge was alive to the relevant questions: namely, (a) whether the evidence established an admission, and (b) whether there was evidence that might have resulted in the admission ultimately being given less weight, or even little, if any, weight.
[43]Reasons [60].
Moreover, while the applicant’s observation that nobody from Allianz was called to give evidence to ‘explain away the admission’ may be accepted, the failure to call such a witness did not mandate a conclusion from that contrary to the one arrived at by the judge. At best, the applicant had a Jones v Dunkel[44] argument (if such had been put to the judge) about the failure to call the author of the 30 October letter or any witness from Allianz. But even if the judge had been prepared to infer that any such witness would not have assisted the respondent’s case, and then to reason from the acceptance of this inference that he should more readily accept the applicant’s evidence and case, such conclusions would not, in the circumstances of all of the evidence called in the present case, have required the judge to arrive at a different conclusion.[45] This was a case that far more readily lent itself to being decided by reference to the evidence of the witnesses who were called and cross-examined before the judge.
[44](1959) 101 CLR 298 (‘Jones v Dunkel’).
[45]Cf O’Donnell v Reichard [1975] VR 916, 929.
As to the applicant’s complaint that the judge somehow misapplied Ansett v Taylor or wrongly relied upon the subsequent authorities to which we have referred, in our view there is nothing in this complaint. With respect, the judge dealt appropriately with all of the authorities to which he was referred. He applied them correctly and we can see no basis for any contention to the contrary. Far from engaging in some form of erroneous reasoning or analysis, in our view, the judge’s approach, and reasoning process, was entirely correct.
Before leaving our analysis, we should observe that during the course of oral argument it appeared to be submitted by the applicant that Ansett v Taylor was to be understood as stating, as authoritative propositions of law, that:
(a) the acceptance of a claim form (and the payment of compensation subsequent thereto) was an admission that should ordinarily (and, perhaps, in all but exceptional circumstances) be regarded as very significant; and
(b) such an admission was to be regarded as very significant, albeit not conclusive, because an employer, in a particular case, might be able to satisfactorily explain its conduct.[46]
[46]Cf Ansett v Taylor [2006] VSCA 171 [40].
Ansett v Taylor is not authority for any such propositions of law. The observation in Ansett v Taylor that an admission of the type here under discussion ‘should ordinarily be regarded as very significant’ is, with respect, undoubtedly true. But it is an observation only, and not a statement of legal principle. To regard the words used in this observation in Ansett v Taylor as if they were provisions of a statute defining in precise and permanent terms the significance of any admission constituted by the acceptance of a claim form would be erroneous.[47]
[47]Cf Benning v Wong (1969) 122 CLR 249, 299 (Windeyer J); Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, 586-7. See further White v The Queen (1962) 107 CLR 174, 175 (Dixon CJ on behalf of the Court); Teubner v Humble (1963) 108 CLR 491, 503-4 (Windeyer J); Aktiebolaget Hassle v Alphapharm Pty Ltd (2002) 212 CLR 411, 446 [87] (McHugh J) and 459-460 [133] (Kirby J).
Similarly, while an employer/respondent may, in a particular case, be able to explain the circumstances of a particular admission so as to reduce the weight that might be given to it, the mere failure by such a party to call such evidence, without more, does not mandate a conclusion favourable to the claimant/worker. As with most questions of admissibility and weight, each case is dependent upon its own facts and circumstances.
On the evidence given in this case, the judge was entitled to conclude that the acceptance by Allianz of the claim form and subsequent payment of compensation had little probative value.[48] More importantly, however one characterised the admission made in this case, the applicant has not established that there was any error in the judge’s ultimate conclusion, arrived at after a detailed and careful consideration of all of the evidence tendered before him.
[48]Cf Reasons [62].
Conclusion
For the reasons given above, the applicant’s application for leave to appeal does not have any, let alone a real, prospect of success. Accordingly, the application for leave to appeal must be refused.[49]
[49]Cf Kennedy v Shire of Campaspe [2015] VSCA 47.
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