Steen v WorkSafe Victoria
[2014] VSCA 299
•26 November 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2013 0147 | |
| COLIN STEEN | Appellant |
| v | |
| WORKSAFE VICTORIA | First Respondent |
| and | |
| BUPA AUSTRALIA HEALTH PTY LTD | Second Respondent |
JUDGES: | TATE, SANTAMARIA and KYROU JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 May 2014 | |
DATE OF JUDGMENT: | 26 November 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 299 | |
JUDGMENT APPEALED FROM: | Steen v WorkSafe Victoria & Bupa Australia Health Pty Ltd [2013] VCC 1204 (Judge Kings) | |
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ACCIDENT COMPENSATION – Accident Compensation Act 1985 (Vic) s 134AB(16)(b) – Common law damages – Injury to low back - Whether appellant had suffered a ‘serious injury’ within the statutory definition – Adverse findings made as to appellant’s credit at trial on basis of inconsistencies in evidence – Whether judge breached the requirements of natural justice in failing to advise appellant of possibility of adverse credit findings – Opportunity of appellant to address adverse credit findings – Appeal dismissed – Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; WACO v Minister for Immigration (2003) 131 FCR 511.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Dr I Freckelton QC with Mr S McCredie | Henry Carus & Associates |
| For the Respondents | Mr SA O’Meara QC with Mr R Kumar | Wisewould Mahony |
TATE JA:
I have had the advantage of reading, in draft form, the judgment of Santamaria JA. I agree, for the reasons his Honour gives, that the appeal should be dismissed.
SANTAMARIA JA:
Introduction
Colin John Steen (‘the appellant’) made application in the County Court for leave to bring proceedings to recover damages in respect of injuries sustained in a work-related incident which occurred on or about 17 November 2006. His application was brought pursuant to s 134AB(16)(b) of the of the Accident Compensation Act1985, (‘the Act’). In his application, he alleged that he had suffered a ‘serious injury’ within the definition in s 134AB(37) of the Act.[1] In doing so, he relied on ‘(a) permanent serious impairment or loss of a body function.’ He identified the relevant body function as injury to the low back. He relied upon disability affecting his lower back, particularly his lumbar spine. Leave was sought to bring proceedings for damages in relation to pain and suffering only. On 13 September 2013, the primary judge dismissed his application.[2] She found that the appellant did suffer a low back injury the subject of the leave application. However, she was not persuaded that the pain and suffering consequences of that injury, when judged by comparison with other
cases in the range of possible impairments, could be fairly described as being ‘more than significant or marked, and as being at least very considerable’ for the purposes of s 134AB(38).[3]
[1]Section 134AB(37) contains relevant definitions including:
‘serious injury’ means—
(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c)permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d)loss of a foetus.
[2]Steen v WorkSafe Victoria & Bupa Australia Health Pty Ltd [2013] VCC 1204 (‘Reasons’).
[3]Reasons [85]-[87].
Section 134AB(19)(a) of the Act provides that, for the purposes of s 134AB(16)(b), a court ‘must not give leave unless it is satisfied on the balance of probabilities that the injury is a serious injury’. A determination under s 134AB(16)(b) of the Act involves elements of ‘fact, degree and value judgment’.[4] Section 134AB(38) governs the assessment whether an injury may be determined to be ‘serious’. The test is a comparative one: there is to be a consideration of the ‘consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to - (i) pain and suffering; or (ii) loss of earning capacity - when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively’.[5] In Stijepic v One Force Group Aust Pty Ltd,[6] Ashley JA and Beach AJA said:
The emphasis in s 134AB (37)(c) and (d) (sic) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation - because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.[7]
The requirement that the consequences of the impairment and loss to a plaintiff are to be compared to the consequences of other cases in the range of possible impairments and losses means that a plaintiff’s subjective assessment of the gravity of his or her injuries cannot be decisive.
[4]Mobilio v Balliotis [1998] 3 VR 833, 836 (Brooking JA) citing Fleming v Hutchinson (1991) 66 ALJR 211.
[5]Emphasis added. Section 134AB(38) of the Act provides:
For the purposes of the assessment of serious injury in accordance with subsections (16) and (19)—
(a) the following definitions apply—
foetus has the same meaning as in section 98C(5);
income from personal exertion has the same meaning as in section 6(2) of the Transport Accident Act 1986 ;
(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to -
(i) pain and suffering; or
(ii) loss of earning capacity -
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c)an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.
(d)a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe; …
[6][2009] VSCA 181.
[7]Ibid [42]. It is assumed that the reference is intended to be to s 134AB(38)(c) and (d).
In every case, it will be necessary for a plaintiff to place before the Court evidence that will not only permit the Court to make findings about the consequences of impairment and loss but also enable the Court to evaluate those consequences in order to judge whether they may be described as ‘serious’ as stipulated in the Act. In some cases, there will be no issue of credibility: the only issue to be decided will be whether the evidence reaches the statutory threshold that the injury is a ‘serious injury’. In other cases, there will be issues of credibility: for example, should the Court believe the evidence being adduced about impairment or loss? And, is the plaintiff exaggerating the gravity of the consequences? The present case does involve issues of credibility.
Appeals to the Court of Appeal are authorised and governed by the general appellate jurisdiction conferred by s 74 of the County Court Act1958.[8] A decision that injury was or was not serious injury will only be set aside for specific error,[9] or if it was plainly wrong or wholly erroneous.[10]
[8]Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26, [4] (Tate JA with Redlich JA agreeing).
[9]Further, ‘the error [must] have been material to the decision ultimately arrived at by the judge or to have vitiated that decision in the sense that the outcome of the case might have been different if the error had not occurred.’ Ibid [79].
[10]Mobilio v Balliotis [1998] 3 VR 833, 858 (Phillips JA). See the reference to the other formulations of the relevant test in Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26, [4] (Tate JA).
Work history
The appellant was born on 25 November 1968 and was aged 37 at the date of injury and 44 at the date of trial. He was married and had two children aged about 10 and 5 at the date of trial. He had studied political science at Sydney University. He had completed a Master’s Degree in Marketing and International Business.
Post education employment involved marketing work including marketing high end software. From 1995 to 1997, he worked in Singapore. From 1999 to 2003, he worked in Japan and operated a restaurant business. He learnt to speak, read and write some Japanese.
In 2003, the appellant returned to Australia and performed sales work for two companies.
In February 2004, the appellant commenced work for his own company. The company operated at a loss and he received Centrelink benefits under the NElS program.
In June 2006, the appellant obtained employment as a medical insurance sales representative with the second respondent BUPA. The job involved visiting dentists and marketing HBA products.
The incident
On 17 November 2006, the appellant had parked his car in the BUPA car park for its offices at 600 Glenferrie Road, Hawthorn. The appellant’s evidence was that as he went from the back of the car around the side he slipped on oil that was on the concrete surface of the car park. As he slipped, he twisted to grab onto the lip of the boot of the car to break his fall and, in the process, jarred his back.
The appellant continued to work after that date; however, his evidence was that with time he suffered increased pain particularly into his left groin and buttock.
The judge’s refusal of leave
The application for leave to bring proceedings at common law was heard on 15 August 2013. On 13 September 2013, the trial judge dismissed the application on the ground that the injury was not a ‘serious injury’ within the statutory definition.
The worker’s evidence
The appellant tendered the following material:
(a) three personal affidavits;
(b) an affidavit of Jarrod Daniel Massie (a friend of the appellant);
(c) an affidavit of Emi Nakamura-Steen (the wife of the appellant);
(d) several reports of Dr Philip Soffer (the appellant’s treating doctor);
(e) several reports of Mr SF Schofield (an orthopaedic surgeon);
(f) several reports of Mr Peter Wilde (an orthopaedic surgeon);
(g) several medico-legal reports of Mr John F O’Brien made at the request of the appellant’s solicitors;
(h) several radiological reports.
The respondents’ evidence
The respondents commissioned several medico-legal reports from Associate Professor John A L Hart, consultant orthopaedic surgeon which were dated (1) 1 January 2010; (2) 31 October 2012; and (3) 10 July 2013. There were also reports from Associate Professor Anthony Buzzard dated 19 October 2007, and Mr Michael Dooley, orthopaedic surgeon, dated 1 November 2012.
The worker’s treating medical history
On 2 January 2007, the appellant was referred for a CT scan of his lumbar spine and this was reported to show a small para-central disc protrusion at the L5/S1 level which indented onto the left S1 nerve root. He commenced attending Dr Soffer who referred him for physiotherapy on 8 January 2007. He had a short time off work in early January 2007, and then returned to work, at times working full hours and at other times on modified duties.
He was referred for rehabilitation at Cedar Court and thereafter commenced home exercises. In March 2007, he was referred to Mr Schofield, orthopaedic surgeon.
On 7 April 2007, he had an MRI scan for his low back pain. This was reported to show a broad based disc bulge at L4/5 and compression on the exiting left L4 nerve root. On 30 April 2007, Mr Schofield arranged for a CT guided lumbar nerve root injection.
The appellant re-attended Mr Schofield in August 2007 and was recommended continuing conservative treatment only. At this time the appellant’s modified duties for the second respondent involved telemarketing. The appellant found this employment demeaning and ceased work.
The appellant re-attended Mr Schofield in July 2009 having continued to see Dr Soffer in respect of his injury. A further MRI was performed on 25 July 2009 and this noted that the L4/5 disc protrusion was compressing the thecal sac on the left L5 nerve roots.
It was noted the protrusion and compression had increased since the 2007 MRI although there was a similar mild impingement on the left L3 nerves. Mr Schofield referred the appellant to Mr Wilde, orthopaedic surgeon, for an opinion regarding the possibility of operative treatment.
The appellant saw Mr Wilde in December 2009 and reported mostly left groin, buttock and proximal leg pain. Mr Wilde recommended a further nerve root injection.
A further MRI scan was performed on 19 February 2011 and this was reported to show, first that there was a transitional vertebrae at the lumbosacral junction that had the appearance of S1 and that there was a rudimentary S1/2 disc. It concluded that the disc protrusion at L5/S1 impinging on the thecal sac and the left S1 nerve root was the most significant abnormality in the clinical context.
In his first affidavit, the appellant deposed to being prescribed Tramadol 100mg slow release, Movalis and Temazepam but he stated he tried to avoid taking medication too regularly because it made him feel sick and confused. His symptoms were ongoing but he would have f1are-ups of pain two to three times a month and would then take the medication prescribed.
In April 2011 the appellant had a further nerve root injection which improved his symptoms for a period. By November 2012, when he swore his second affidavit, the appellant was continuing to see Dr Soffer and was continuing to take slow release Tramadol as required for flare-ups of pain once or twice a fortnight. He was also taking Temazepam about four times a week because the pain from his injury was interfering with his sleep.
In a report dated 17 July 2012 (following his most recent consultation on 27 January 2012), Mr Wilde diagnosed an injury to the low back involving a left lumbosacral disc protrusion causing intermittent left leg sciatica. Mr Wilde reported that the appellant had a mild disability, and that he had a work capacity for sedentary or light duties, such as those he was then doing, but struggled with the
prolonged sitting required.•
In his third affidavit, the appellant stated that he was taking Tramadol on a daily basis and Temazepam at night about twice a week. He was continuing to attend Dr Soffer on a quarterly basis for repeat prescription of medication.
Reports were tendered from Dr Soffer, Mr Schofield and Mr Wilde. Most recently, in July 2013, Dr Soffer had reported that there was minimal ongoing disability and the appellant had a full capacity for his employment at that time, although counsel for the appellant queried the reliability of Dr Soffer’s opinion.
Medico-legal opinion
The appellant tendered reports of Mr O’Brien and Associate Professor Hart, orthopaedic surgeons.[11] In his most recent report of July 2013, Mr O’Brien stated that the appellant’s prognosis was poor and that he would continue to experience chronic pain, that he described moderate disability, and that he remained capable of light physical duties of a sedentary nature on a full time basis. Associate Professor Hart, in July 2013, recorded persistent pain predominantly localised to the left buttock and the anterior thigh with minimal low back pain, and reported that the appellant could return to full-time work with restrictions.
[11]Refer [55] below.
The respondents tendered reports of Associate Professor Buzzard and Mr Dooley, orthopaedic surgeons. Associate Professor Buzzard reported that the appellant had minor ongoing symptoms which would improve with time and without significant treatment, that he was gradually able to return to his sporting and like activities, and that he was fit for unrestricted pre-injury employment. Mr Dooley recorded a history of ongoing low back pain and pain affecting the left buttock and thigh regions, and reported that the appellant had a physical capability to carry out light physical work and clerical type work.
Post injury employment
After ceasing work with the second respondent in August 2007 the appellant was largely unemployed save for occasional marketing and consultancy work which he did working from home. In late 2011, he obtained full-time well-paid employment working for NEC, however he was terminated from that employment in late 2012. At the time of the trial the appellant was engaged in home duties with occasional contract work.
Consequences
The appellant relied upon a range of alleged consequences of his low back injury.
The appellant claimed that activities such as bending, lifting, prolonged sitting or standing and sudden twisting movements increased his pain. He required medication for pain and sleep and had taken to sleeping on a couch. His sex life had been affected.
Although he continued to be active, swimming, cycling and walking regularly and engaged in a home-based exercise program, he found it difficult to run. The injuries interfered with his engagement with his children. He based his daily routine around managing his injuries and they dominated his life. He was limited by pain in driving a car for more than about 15 to 20 minutes.
The respondents challenged the nature and extent of the appellant’s consequences, including by reference to his capacities to work, travel and exercise, his range of movement, his level of symptoms, and his medication intake.
Judge’s observations on credit
In her reasons, the trial judge made some observations on the credit of the appellant. She said:
Credit of the Plaintiff
[48]The plaintiff was university educated. He was articulate and provided the Court with a comprehensive history of his condition and its consequences.
[49]There were a number of issues with the plaintiff’s evidence which were inconsistent with other evidence he gave. First, Counsel for the defendants questioned the plaintiff about his stated “career goals” in an assignment he completed for the Certificate III course in hospitality. I accept the plaintiff’s evidence that he was not building a restaurant in Japan: it was a concept only.
[50]Second, in his second affidavit, the plaintiff said that while he was employed with NEC he was concerned that his back injury and time off work would affect his ability to continue to work and was considering approaching NEC about reducing his hours. This was inconsistent with what he told Associate Professor Hart in October 2012. The plaintiff reported to Associate Professor Hart that he planned to reduce his hours to part time because of the stress of the job, which he said was not specifically related to the injury.
[51]Third, the plaintiff told Mr O’Brien that the job involved a moderate amount of travel, which caused some aggravation to his pain. He told the Court the travel was around the CBD and involved walking.
[52] Fourth, in his second affidavit, the plaintiff swore:
Since commencing employment with NEC, I have had to take time off in the form of sick leave and annual leave because of my back pain. I have taken all my sick leave and have exhausted all my annual leave, because of my back pain.
[53]This is not consistent with the plaintiff’s evidence of taking leave to travel for conferences unrelated to work, visiting Japan when his father-in-law was dying or the NEC leave history for the plaintiff. In cross-examination, the plaintiff agreed he was entitled to annual leave and ten days of personal carer/sick leave. His evidence to the Court was that he was employed by NEC from late 2011 until October 2012, approximately twelve months. His evidence was that during this time, he took leave to travel overseas in March, June and September 2012. This is not consistent with his evidence that he exhausted his leave because of his back pain.
[54]As a consequence of inconsistencies in the plaintiff’s evidence, I approach the plaintiff’s evidence with caution. I place greater weight on his evidence when it is supported by independent evidence.
Grounds of appeal
By notice of appeal dated 26 September 2013, the appellant appealed against the judgment and orders made in the County Court on 13 September 2013.
There was only one ground of appeal:
The learned Trial Judge breached the requirements of natural justice by failing to give the appellant either notice of or opportunity to respond to the making of an adverse credit finding against the appellant at [54] when:-
(a)it was based inter alia on two credit issues neither of which was raised in any way in evidence or submission; and
(b)the making of the adverse credit finding was not advanced by the respondent.
As is evident, the appellant says that the rules of natural justice had been breached in two respects. Each of these will be dealt with separately.
Analysis
It will be noticed that, in her reasons, the trial judge identified four matters in respect of which she considered the appellant had given inconsistent evidence:
(a) the first matter concerned an ambiguity in an answer the appellant had given with respect to an assignment he had completed in a course in hospitality. The trial judge accepted the appellant’s explanation. The matter need not be considered further;
(b) the second matter concerned his reasons for approaching NEC to seek a reduction in his hours of work;
(c) the third matter concerned the issue whether his pain had been aggravated by the travel required of him by his employers; and
(d) the fourth matter concerned his reasons for taking leave from his employer.
On the hearing of the appeal, the appellant sought only to impeach the trial judge’s findings in respect of the second and third matters. No submission was made with respect to her finding that there were inconsistencies in the appellant’s evidence in relation to his reasons for taking leave.
The appellant said that the trial judge was wrong to find that any such inconsistencies had arisen in respect of the second and third matters. The issue was also one of fairness: it was said that where an issue arises as to credit, which was not the subject of cross-examination or final submission, a judge must draw the issue to the attention of the person affected, alert him or her to the possibility that she might make a finding on the issue and give an opportunity to answer it before reaching any conclusion adverse to that party.
Whether the credit issues were raised in evidence or in cross-examination
At the end of the opening, counsel for the appellant tendered two reports of Associate Professor Hart as well as the three reports of Mr O’Brien.
Need to travel
During the hearing of the appeal, the respondents addressed the circumstances in which the third matter had arisen: whether the need to travel had exacerbated the pain of the appellant.
In opening his case to the judge, counsel for the appellant described what was said to be the numerous consequences that flowed from the injury the appellant had suffered.
In opening before the trial judge, counsel for the appellant said:
The best place to go, Your Honour, in my submission, in order to understand the nature of the injury, is to go to a report of Prof Hart prepared on behalf of the defendants as a result of a consultation he had on 10 July of this year with the plaintiff.
A little later, counsel said of the appellant:
The consequences that have flowed from this injury … are numerous. They include, most importantly in functional terms, a significant restriction in sitting, which means that for sedentary work, which the plaintiff is suited to - he was employed by [BUPA] as a salesman/marketing person and subsequently, in the year of 2012, held a similar sort of position at a much greater salary than he was employed in that capacity by [BUPA] but that work involves driving, it involves sitting and both of those activities involve sitting for prolonged periods which aggravates his back. He doesn’t say that he can’t do that work but it causes pain, discomfort, disability and loss of pleasure in doing that sort of work. So there’s that aspect of it.
In his report dated 22 August 2012, Mr O’Brien had said that the appellant had provided him with information that, since 2011, he had been ‘employed full-time in sales and marketing. The [appellant] did state that this has involved a moderate amount of travel and he has found that this has caused some aggravation of his persistent pain.’
It is to be noted that, although the reports of Mr O’Brien had been commissioned by the appellant and were tendered as part of his own case, he made no attempt to qualify their contents in respect of this matter.
The cross-examination of the appellant in the County Court included the following exchange:
QYour counsel opened the case that that job that you were doing for NEC involved some driving, some travel. Where were you travelling to for the – where were you driving to?
AI wasn’t doing too much driving. Most of the appointments were all city – all CBD.
QSo there wasn’t much driving around?
ANo.
QYou were mainly based in an office in Melbourne?
AJust doing appointments out to other people’s offices, generally.
QSo can you explain physically what that involved for you, what were the physical demands on you?
AWalking from my office to a client’s office for an appointment.
QAnd they would be generally based around the CBD as well?
A Yes.
On the strength of this exchange, the trial judge found the inconsistency referred to in [51] of her reasons which was the third matter referred to in her reasons.
The appellant first said that the trial judge was wrong to find any such inconsistency. ‘Walking’, it was said amounted to ‘travel’. There was no basis, he said, for assuming that the ‘travel’ that Mr O’Brien had reported was anything other than the walking that he had referred to in his oral evidence. In my opinion, this submission should not have been made. It is plain from the evidence that the form of ‘travel’ that was in issue was not walking. When evidence of written or spoken communications is given, the question is what did those who made the communication mean by the words they used, not what meaning might conveniently be given to their words.
In cross-examination, it became plain that, notwithstanding his evidence, the appellant did not ‘travel’ (which was given as an explanation for his pain), but he ‘walked’. Although it was not suggested that he was not telling the truth, there was a plain inconsistency that would justify a submission that he had been exaggerating which would, in its turn, reflect on his credit.
Further, it cannot be said that the issue of there being an inconsistency in the appellant’s evidence on the issue of ‘travel’ was not the subject of submissions or cross-examination. The very matter was opened by his counsel; and, the appellant was cross-examined about it.
Time off work
The second matter related to the appellant’s reasons for taking time off work. In his second affidavit (sworn 8 November 2012), the appellant had sworn:
Although I am currently employed, I am concerned that my back injury, and time off work, will affect my ability to continue in the role with NEC. I want to approach NEC about reducing my hours because of this, but haven’t yet done so.
In his report dated 31 October 2012, Associate Professor Hart reported the history as provided to him by the appellant as follows:
Current Work Activity – He said that his “Company of Nuts” is no longer active. He took up marketing software with a Japanese company, working 38 hours a week visiting clients and discussing strategies for marketing of the clients’ software. He said that he is able to cope with this job, but is about to reduce his hours to part-time because of stress issues associated with the demands of the job. He said that this was not specifically related to any physical problems with his back.
The appellant himself had sworn that he was ‘concerned that my back injury, and time off work, will affect my ability to continue in the role with NEC’. And yet, at almost the same time, he had told Associate Professor Hart that he was about to reduce his hours ‘because of stress issues associated with the demands of the job’ and that this was ‘not specifically related to any physical problems with his back’.
It is to be noted that, although the reports of Associate Professor Hart had been commissioned by the respondents, it was the appellant himself who tendered them as part of his own case, without any attempt to qualify their contents in respect of this matter.
On the strength of this material, the trial judge found the inconsistency referred to in [50] of her reasons which was the second matter referred to in her reasons.
Reasons for leaving NEC
There was a further matter that was addressed in oral argument before the Court of Appeal. It related to the reasons that prompted the appellant to leave the employment of NEC. In his affidavit sworn 27 June 2013,[12] the appellant said:
I have previously made affidavits in this proceeding on 18 April 2011 and 2 November 2012. In paragraph 22 of the second affidavit I wrongly stated that I was still employed by NEC. This was incorrect as I had been retrenched by NEC on 30 October 2012 and this late development was overlooked at the time I swore the second affidavit. Otherwise I refer to and repeat the contents of my earlier affidavits. This affidavit updates matters to the present time.
It will be noticed that the appellant gave as his reason for leaving the employment of NEC that he ‘had been retrenched’.
[12]The date of this affidavit was said to be 21 June 2013.
The appellant was cross-examined about his affidavit of 27 June 2013:
QIf you look at paragraph 1 of that affidavit it refers to your departure from NEC?
AYes.
QIs that accurate or not?
…
AYeah, only that I was fired and not retrenched.
QWhere you’ve written that you were retrenched you were, in fact, sacked?
A That’s right.
Again, it is plain that, during his cross-examination, the appellant was challenged as to the accuracy of what was contained in his affidavit relating to the reasons that prompted him to leave the employment of NEC.
Conclusion
In the circumstances, the appellant’s contention that the credit issues had not been raised in any way in evidence or in submissions must be rejected.
Whether the question of adverse findings was raised by the respondent?
In her address to the trial judge, counsel for the first respondent said that there had been elements of exaggeration in the evidence of the appellant.
In final submissions, counsel for the appellant said:
The fact that when Your Honour reads the medical reports of both the plaintiffs and the medico-legal reports on behalf of the plaintiff and the defendant, Your Honour will see that this is a man who is not in any way, shape or form on his presentation seeking to exaggerate his symptoms. So he has got straight leg raising and so on, notwithstanding the fact that he has got a bucket load of pathology and clear signs, clear signs of wasting in the left thigh and clearly the numbness and so on in the feet.
As can be seen, the issue of exaggeration was squarely before the trial judge.
On appeal, no attempt was made to impeach any of the findings made by the trial judge in [52]-[53] that related to the inconsistencies in the evidence of the appellant about the extent to which the effects of his injuries accounted for the amount of leave he took from NEC.
The appellant’s contention that the two matters were not raised in evidence or in submissions is not sustainable. They were raised in opening, they were raised in cross-examination and, in final submissions, the appellant was said by his own counsel to be someone who had not exaggerated.
In my opinion, the credit of the appellant was in issue before the trial judge and it was open to her to make the observations that she did.
For these reasons, the appellant’s contention that the making of adverse credit findings was not advanced by the respondent must be rejected.
Did the findings on credit affect the question of evaluation?
Notwithstanding that the trial judge made findings that were adverse to the appellant’s credit, there is an issue as to whether that finding played any part in the judge’s reasoning when she came to determine whether the appellant had suffered serious injury.
The respondents contend that the findings on credit played no operational part in the trial judge’s reasons. On the contrary, she made findings that were consistent with the submissions of the appellant.
The respondents submitted:
13.In any event, the finding at [54] was, in the end, not necessary to and should not vitiate her Honour’s analysis, intermediate findings and ultimate conclusion at [55] to [88], most of which involved her Honour in fact accepting the appellant’s evidence.
14.In that regard, her Honour relevantly accepted that the appellant –
(a)had suffered a permanent, work-related low back injury with residual symptoms;[13]
[13]Reasons [55], [83].
(b)suffered intermittent, mild pain;[14]
[14]Reasons [85].
(c)took medication as needed, including Tramadol on a daily basis and Temazepam twice a week;[15]
[15]Reasons [61].
(d)had affected sleep and took medication to help him sleep;[16]
(e)was unlikely to require surgery;[17]
(f)had symptoms of cramps and bladder dysfunction not attributable to the compensable injury;[18]
(g)had a residual full-time capacity for light work, including his pre-injury duties;[19]
(h)had mild limitations in his activities with his children; however, he remained able to cycle, swim and walk, including with his children;[20]
(i)was able to perform gymnasium exercises and maintain an active lifestyle;[21]
(j)was able to travel overseas;[22]
(k)was able to perform domestic chores other than making the bed and cleaning the shower, and he had difficulty mowing the lawn;[23]
(l)needed to rest during the day.[24]
[16]Reasons [61], [85].
[17]Reasons [65].
[18]Reasons [66].
[19]Reasons [72], [83], [85].
[20]Reasons [73], [75], [83], [85].
[21]Reasons [83].
[22]Reasons [84].
[23]Reasons [84], [85].
[24]Reasons [85].
For his part, the appellant said that the findings on credit were material. Although he did not suggest that any evidence about some particularity of his circumstances had been rejected (on the grounds of credit) by the trial judge, he contended, so it seems, that part of his evidence was so significant that the trial judge’s conclusion that his application should be dismissed could only be explained on the basis that the judge had rejected it on the basis of her findings on credit. At the very end of his third affidavit, sworn 27 June 2013, the appellant had deposed:
My back injury dominates my daily life and interferes with everything I do. I have ceased working full-time in the hope that I can stabilize the pain and interference I suffer whilst continuing to provide domestic support for my family.
The appellant said that this paragraph crystallized the impact of the injury on his life. Had the trial judge not adopted the cautious approach that she said was mandated by her findings on credit, she would have been compelled to have made a finding of ‘serious injury’.
There are some aspects of this paragraph which should be noted. First, it does suggest that the appellant left his employment voluntarily. But, as indicated above, he left because his employment was terminated. Secondly, the evidence is in conflict with much of the rest of his evidence; there is much that he has done that has not been interfered with by his injury. But, more importantly, when restored to its context, the extracted paragraph is simply a conclusion by the appellant of all the particular evidence that precedes it. If it is anything more, it would seem to be evidence on the ultimate issue for the Court; it was for the trial judge, taking into account all the evidence that was placed before the Court, to make her own evaluation of all the evidence. And, finally, there is no ground of appeal that, on the evidence, the trial judge had no alternative to the making of a finding of ‘serious injury’. Any such ground would have been hopeless.
In order to succeed in the present case, the appellant must show not only that the trial judge’s findings on credit were made in breach of the rules of procedural fairness; he must also show that the findings on credit were material in the sense that the result might have been different if those findings had not been made.[25] When one examines the balance of the trial judge’s reasons, it is not possible to say that the findings on credit would have made any difference to the result in the case. On the contrary, the trial judge accepted the appellant’s evidence although she did not share the appellant’s evaluation of it. Faithful to her obligation, the trial judge took into account all the evidence.[26] She canvassed all the evidence that was adduced on behalf of the appellant.[27] She concluded her reasons as follows:
[83]It is accepted that the plaintiff has residual symptoms with his low back. The plaintiff has the capacity to perform light physical work consistent with the work he has been engaged in previously. He can swim, walk and cycle. He has retained the ability to perform gymnasium exercises. The plaintiff was an active man and, to his credit, he has maintained an active lifestyle. He drives his motor vehicle, even though after 15 to 20 minutes he is aware of the pain.
[84]The plaintiff has retained the capacity to travel overseas. He attended Microsoft events in March and June 2012, unrelated to his employment with NEC, and also travelled to Japan in September 2012 to visit his father-in-law. He did not report any difficulty with international travel. He reported public transport was difficult, but he did travel by public transport. Currently he is a house husband and is able to perform all duties other than making the bed and cleaning the shower.
[85]I am satisfied the plaintiff has suffered an injury to his low back that has had consequences to him. He has intermittent mild pain, for which he takes analgesic medication. His sleep is disturbed and he takes medication to help him sleep. He is restricted to light physical work, of the type he was previously employed in. He has lost the ability to undertake heavy physical work such as making the beds and cleaning the shower and has difficulty with mowing the lawn. He requires a rest during the day. His activities with his children have been limited. I accept these are consequences I can take into account.
[86]Although the plaintiff’s low-back injury has had an effect on his life, he retains the capacity to participate in many activities and to undertake full-time work.
[25]Not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. See Stead v State Government Insurance Commission (1986) 161 CLR 141.
[26]See Jayatilake v Toyota Motor Corporation (2008) 20 VR 605, 610 (Ashley JA).
[27]Reasons [6].
In my opinion, the findings on credit, though they were justified, played no material part in the trial judge’s decision and, therefore, could not have affected the result.
Observations on natural justice
The gravamen of the appellant’s complaint was, in the circumstances, that the findings on credit were made in breach of the requirements of procedural fairness.
In written submissions, the appellant referred to Ucar v Nylex Industrial Products Pty Ltd[28] and Re Refugee Tribunal; Ex parte Aala.[29] In oral submissions, he referred to WACO v Minister for Immigration.[30]In oral submissions, the respondents referred to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd.[31] A review of each of these decisions points up the importance of reading general statements of principle only in the light of the particular circumstances a court is asked to address.
[28](2007) 17 VR 492.
[29](2000) 204 CLR 82, 121-122 (McHugh J).
[30](2003) 131 FCR 511 (‘Waco’).
[31](1994) 49 FCR 576 (‘Alphaone’).
In Ucar v Nylex Industrial Products Pty Ltd,[32] an application for leave pursuant to s 134AB(16)(b) was refused by a judge in the County Court. In giving his reasons, the trial judge relied upon his observations of the applicant’s demeanour in Court when he was out of view of his own counsel and considered that, on the strength of those observations, the applicant had attempted to deceive the Court by exaggerating and embellishing the physiological or organic consequences of any bodily impairment caused by his injury. The trial judge had given no warning to the applicant’s counsel that he proposed to rely upon those particular observations. On appeal, the applicant contended that he had been denied natural justice. His appeal was allowed. Chernov JA said:
It is uncontroversial that an ingredient of the court’s duty to accord procedural fairness involves the giving of “a fair opportunity to those who are parties in the controversy to correct or contradict any relevant statement prejudicial to their view”. And as McHugh J said in Re Refugee Tribunal; Ex parte Aala:
One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.[33]
Chernov JA held that the failure by the trial judge to disclose to counsel his observations of the applicant’s demeanour amounted to a breach of the rules of natural justice. Chernov JA distinguished the demeanour and conduct of a witness moving to or from the witness box from his demeanour or conduct that could not be observed by his own counsel. Whereas the former demeanour or conduct was always understood to be a matter that a judge could take into account in assessing, say credibility, it was not the same with the latter. If such demeanour or conduct was to be taken into account, fairness dictated that the matter be brought to the attention of counsel so that it could be addressed.
[32](2007) 17 VR 492.
[33]Ibid 500 [22] (citations omitted).
In Alphaone,[34] the respondent (who was the plaintiff below) had purchased and taken possession of a business involved in the sale of “X” rated videos. Under the relevant legislation, the publication and distribution of such videos was restricted. The respondent applied for a Retail “X” Video Merchant’s Licence under s 5 of the Business Franchise (“X” Videos) Act 1990 (ACT). That section required the Commissioner to issue a licence ‘if … satisfied on reasonable grounds in the circumstances that the applicant is a fit and proper person to hold a licence of that type.’ The respondent paid the relevant fees. Thereafter, there was correspondence between the respondent and the Commissioner. In that correspondence, the Commissioner requested further information from the respondent in order to satisfy himself that the respondent was a fit and proper person to hold the licence applied for. The Commissioner also warned the respondent to cease trading, if it were doing so, because trading without a licence was a contravention of the Act. The application was eventually refused by the Commissioner on the basis that unlicensed trading by the respondent established that it was not a fit and proper person to be issued with a licence. Pursuant to the Administrative Decisions (Judicial Review) Act 1989 (ACT), the respondent successfully challenged, in the Supreme Court of the Australian Capital Territory, the decision to refuse it a licence; the judge decided, amongst other things, that it had been denied procedural fairness in so far as it had not had an opportunity to respond to the Commissioner’s conclusion that it was trading in breach of the legislation. The Commissioner appealed to the Federal Court. The Full Court decided that the decision whether or not to grant a licence was subject to the rules of natural justice. The critical question was whether or not the respondent had been put on notice that the fact that it was trading without a licence may be taken into account by the Commissioner in deciding whether or not the respondent was a fit and proper person to hold such a licence. The Court said:
[34](1994) 49 FCR 576.
A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it: Kioa v West. Within the bounds of rationality a decision maker is generally not obliged to invite comment on the evaluation of the subject’s case: Sinnathamby v Minister for Immigration and Ethnic Affairs. In Ansett Transport Industries Ltd v Minister for Aviation, Lockhart J expressly agreed with the observations of Fox J in Sinnathamby on this point. See also Geroudis v Minister for Immigration Local Government and Ethnic Affairs and Somaghi v Minister for Immigration, Local Government and Ethnic Affairs.
The general propositions set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi:
1.The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West; Sinnathamby; Broussard v Minister for Immigration, Local Government and Ethnic Affairs.
2.The subject is entitled to respond to any adverse conclusion drawn by the decision maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister for Immigration and Ethnic Affairs v Kumar; Kioa v West.
His Honour observed that those qualifications may be no more than an application of the general requirement of procedural fairness in particular cases. As Gummow J there said:
… in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant’s interests which the decision maker proposes to take into account, even if the source of concern by the decision maker is not information or materials provided by the third party, but what is seen to be the conduct of the applicant in question.
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision maker. It also extends to require the decision maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. For a statutory exception to the latter proposition see the pre-decision conference process provided for in the Trade Practices Act 1974 (Cth).[35]
[35]Ibid 591-592 (citations omitted).
The Court held that there had been no denial of natural justice. In his correspondence with its directors, the Commissioner had brought to the attention of the respondent the need for it to demonstrate that it was a fit and proper person to hold a licence. The directors knew that the Commissioner was proposing to take into account the fact that it had been trading without a licence. Given the nature of the assessment that had to be made by the Commissioner, ‘[i]t was an obvious and natural evaluation of its conduct in that respect which led to the conclusion that it was not a fit and proper person. With respect, the conclusion at which the learned trial judge arrived in this case was in error. There was no failure of natural justice’.[36]
[36]Ibid 592.
In WACO,[37] the appellant was an applicant for a protection visa under the Migration Act 1958 (Cth). In his application, he said that he feared persecution upon return to his native country for religious and political reasons. He said that his fear arose as a result of his association with reformist elements in his country. After a hearing, the Refugee Review Tribunal affirmed the decision of a delegate of the Minister not to grant him a protection visa. It appears that, after the completion of the hearing and before the decision, the applicant submitted further evidence in the form of two letters written in Arabic together with translations. In its decision, the tribunal said the letters were false documents. However, it had not provided any warning to the appellant that it doubted the genuineness of the letters and at no stage had invited him to comment on their authenticity. The appellant applied for judicial review pursuant to s 39B of the Judiciary Act 1903 (Cth). Because of the way the relevant legislation (including a privative clause) was understood at the time, the issue of procedural fairness was not fully canvassed before the primary judge. However, he dismissed the application. The Full Court gave the appellant leave to raise the matter on appeal. The Full Court held that the appellant had been denied procedural fairness. It said:
The question raised here is whether the Tribunal was entitled to reject a document which on its face was genuine without giving the party which tendered it an opportunity to comment upon the genuineness of the document or to call evidence supporting its genuineness. An administrative tribunal undertaking an inquisitorial function is not obliged to put to an appellant an assertion of apparent falsity or unreliability in respect of each and every matter raised by the appellant for the appellant’s comment (Abebe v Commonwealth of Australia (1999) 162 ALR 1 per Callinan J at 76). However, the tribunal will have a duty to raise clearly with the appellant the critical issues on which his or her application might depend. It is clear that the question whether the letters were genuine was a matter which went directly to the most critical issue in the case, namely the appellant’s relationship with Ayatollah Shirazi. It was upon this relationship that the claim that the appellant had a well-founded fear of persecution for a convention reason rested.[38]
…
Generally where it is clear that factual matters are in dispute it will not be necessary for the decision maker to indicate to the person affected that the decision maker is likely to reach an adverse conclusion. Where the decision maker intends to reject an application for some reason which is personal to the appellant, for example, the appellant’s age, it may be necessary to give notice to the appellant that the decision maker has formed a view adverse to the appellant so as to afford the appellant the opportunity to put to the decision maker arguments or evidence to the contrary, cf In re HK (An Infant) [1967] 2 QB 617 referred to by Mason J in Kioa v West at 587. Whether it is so will depend upon fairness. There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. An appellant then cannot complain if his application is rejected because the decision maker, without notice to him has rejected what was put forward.[39]
[37](2003) 131 FCR 511.
[38]Ibid 521-522 [42].
[39]Ibid 522 [46].
As can be seen, the Full Court in WACO[40] distinguished the situation with which it was faced with one in which ‘the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so.’[41]
[40](2003) 131 FCR 511.
[41]Ibid 522 [46].
In the present case, the appellant had to establish that his injury was a ‘serious injury’ by reference to the provisions in the Act discussed in [3] above. In doing so, he placed before the Court his own affidavits as well as the reports of treating doctors and medico-legal experts. Those reports contained within them accounts of the instructions which the appellant had himself given to those doctors and those experts. It was plain that the description that he gave of his own circumstances in his own affidavits was inconsistent with the instructions contained in the reports. The burden of proof lay upon him. Unless he was able to explain those inconsistencies, it was equally plain that submissions could be made that his evidence was not credible or was exaggerated. Moreover, he was put on notice that these issues were live issues during cross examination. The risk that submissions and findings would be made on those issues that were adverse to him were risks that, to use the words of McHugh J in Re Refugee Tribunal; Ex parte Aala, ‘necessarily inhere[d] in the issues to be decided’.[42] The appellant chose not to address these matters. He may have had good forensic reasons for doing so. However, the fact that he chose not to address them does not mean that they could not be taken into account by the primary judge: they were always germane to the very issues of ‘loss and impairment’ and of ‘fact, degree and value judgment’ that she had to determine.
[42](2000) 204 CLR 82, 121 [101].
It is frequently the case that parties are confronted, before the commencement of a trial, with evidence that may be thought to be adverse to their cases. They may choose not to address that evidence for fear of drawing attention to it. But, in doing so, they run the risk that its presence and the lack of explanation for it will prove significant for the judge. As it happened in the present case, the appellant himself tendered, as part of his own case, the medico-legal reports prepared on behalf of the respondents. Nothing turns on the point. Where a plaintiff knows that evidence is to be tendered that contains material adverse to the claim, the plaintiff cannot complain that there has been a breach of the rules of natural justice if the plaintiff does not address that material as part of his or her own case and the judge makes unfavourable findings based on it.
It is quite different when a judge or decision maker takes into account some material or submission drawn from a source that is outside the knowledge or contemplation of the parties. In Kioa v West,[43] it was held that the appellant had been denied natural justice because, in deciding whether to deport him, the delegate of the Minister had taken into account several matters contained in a departmental submission which were ‘extremely prejudicial’ to the applicant and in respect of which he had been given no opportunity to reply.[44]
[43](1985) 159 CLR 550.
[44]Ibid 588 (Mason J), 601-602 (Wilson J), 628-630 (Brennan J), 634 (Deane J).
At one point, it seemed as if the appellant was contending that, before a judge proposes to reach any conclusion on the evidence that is adverse to a party, the judge should give notice to that party of the potential for that finding so that it can be
specifically addressed by the party. The contention needs only to be stated as a proposition to demonstrate its sheer impracticability.[45]
[45]Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232, [17]-[18] (Harper and Tate JJA, Beach AJA).
The appeal should be dismissed.
KYROU JA:
I agree with Santamaria JA.
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Key Legal Topics
Areas of Law
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Insurance Law
Legal Concepts
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Adverse Possession
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Compensatory Damages
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Limitation Periods
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