Trewin v Pickwick Group Pty Ltd
[2017] ACTSC 93
•3 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Trewin v Pickwick Group Pty Ltd |
Citation: | [2017] ACTSC 93 |
Hearing Date: | 28 April 2017 |
DecisionDate: | 3 May 2017 |
Before: | Elkaim J |
Decision: | See paragraph [42] |
Catchwords: | APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from the Magistrates Court – workplace injury – claim for workers’ compensation – expert evidence – whether the Chief Magistrate’s findings were supported by the evidence |
Legislation Cited: | Workers Compensation Act 1951 (ACT) |
Cases Cited: | Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 |
Parties: | Simon Trewin (Appellant) Pickwick Group Pty Ltd (Respondent) |
Representation: | Counsel Mr A Muller (Appellant) Mr J Sexton SC and Mr P Woulfe (Respondent) |
| Solicitors Slater & Gordon Lawyers (Appellant) Moray & Agnew Lawyers (Respondent) | |
File Number: | SCA 78 of 2016 |
Decision under appeal: | Court: Magistrates Court of the ACT Before: Chief Magistrate Walker Date of Decision: 23 September 2016 Case Title: Trewin v Pickwick Group Pty Ltd Court File Numbers: WC 352 of 2015 |
ELKAIM J:
This is an appeal from a decision of the Chief Magistrate, given on 23 September 2016. The appeal is by way of re-hearing. This entails a review of the evidence and of the Chief Magistrate’s reasons for her decision. In order for the appeal to succeed, the appellant must establish that the Chief Magistrate fell into error.
In brief, the following are the background facts: On 22 June 2015, the appellant commenced employment as a business development manager with the respondent. In that role, he was expected to attract new business to his employer. His employment was terminated on 19 August 2015.
On 24 August 2015, the appellant lodged a claim for workers compensation, pursuant to the Workers Compensation Act 1951 (ACT) (the Act). He sought weekly payments and medical expenses.
The claim related to the nature and conditions of his employment. The appellant alleged that, between 22 June and 5 August 2015, he was required to work at an inappropriate workstation. This, he alleges, caused him to suffer an injury to his lower back and, or alternatively, an aggravation of an underlying lower back condition.
The claim also concerned a specific injury alleged to have occurred on 5 August 2015. The appellant alleged that he was injured while getting out of his motor vehicle at his place of work.
On 16 August 2015, the appellant participated in a bush walk. The walk took about two hours.
The appellant’s claim was rejected on 18 September 2015. The appellant then lodged an Application for Arbitration by Injured Worker on 5 October 2015. An amended application was lodged on 15 April 2016.
The application was heard by Chief Magistrate Walker from 1 June to 3 June 2016 and on 17 August 2016. On 23 September 2016, Her Honour dismissed the appellant’s claim.
A Notice of Appeal was filed on 20 October 2016. A Notice of Contention was filed on 17 November 2016.
The approach taken by the appellant in the appeal before me was to examine the critical findings made by the Chief Magistrate in order to demonstrate that the findings were made in error. This was to demonstrate that, ultimately, the decision below ought to be set aside.
Before examining each of the findings, I note the following:
(a)Her Honour did not accept the appellant as a reliable witness; and
(b)There was medical opinion available to support each party’s position. Her Honour plainly favoured the respondent’s medical case.
The two factors I’ve just noted are important because they impose on the appellant the obstacle of persuading me that her Honour’s findings of credit should be rejected in accordance with the principles set out by the High Court in Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy) and that her Honour’s medical findings were not based on expert opinion present in the evidence.
The appellant highlighted the following findings:
(a)There was no contemporaneous complaint of leg pain following the incident on 5 August 2015.
(b)The absence of neural compromise in the MRI scan of 7 September 2015 was “at best therefore a neutral factor in the applicant’s case”.
(c)The fact that the plaintiff’s employment was terminated for reasons other than physical incapacity was significant.
(d)There was a finding that the appellant suffered low back symptoms in the first week of August 2015 but he did not suffer a disc prolapse on 5 August 2015.
(e)Although the appellant had experienced “a recurrence of low back pain during the period of his employment with the respondent”, the appellant had not established that the nature and conditions of his employment were a substantial contributing factor behind the recurrence.
(f)The appellant had not established that he suffered a disc prolapse on 5 August 2015.
I will deal with the appellant’s submissions in respect of each of the above findings in turn. However, before doing so, I will deal with the appellant’s general submission that her Honour failed to provide adequate reasons for her decision. I disagree with that submission.
It is incumbent upon a court to provide reasons for a decision, particularly so that the loser knows why he or she has lost (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430). In this matter, her Honour’s findings about the appellant’s reliability were central to her ultimate findings. Her Honour describes, in detail, why she found the appellant to be unreliable. Those findings are at the core of the appellant’s submissions. Perhaps ironically, it is the success of the attack on her Honour’s reasons that has ultimately led to the final conclusion in this appeal.
The appellant’s first specific complaint arises from the following passage in her Honour’s reasons:
The applicant’s oral evidence was inconsistent with his contemporaneous complaints regarding the onset of his back pain. His initial complaint to his physiotherapist on 6 August 2015 made no mention of referred pain. In fact the record specifically states nil leg pain his general practitioner on 18 August 2015 recorded a gradual onset of pain in his lower back relating to sitting at the computer. There is no reference to an acute incident getting out of the car. (AB 16, from line 35)
If the first sentence of the above passage is read as a comment, arising from the evidence, about the onset of leg pain, or referred pain, then it seems that the opinion expressed by her Honour is not based on the evidence. The applicant’s oral evidence did not suggest that he suffered immediate leg pain after exiting the vehicle on 5 August 2015. Dr Pillemer’s record of his conversation with the appellant is the only source of that evidence.
The respondent submitted that the first sentence of the quoted passage should be divorced from the balance of the text. It submitted that the first sentence was restricted to the subject of the onset of back pain, whereas the other sentences concerned a separate subject – namely, when the leg pain commenced. The respondent submitted that support for this contention could be derived from her Honour’s comments at page 10, concerning the inconsistency between the severity of his symptoms and his description of them and the appellant’s activities following 5 August 2015, including the appellant’s bushwalk on 16 August 2015. Notably, this incident gave her Honour the impression that a person suffering the pain described by the appellant would have been very unlikely to have engaged in the activities described, including reaching the position depicted in the photograph at AB 764.
I disagree with the respondent’s interpretation of the passage at paragraph [16]. There is a logical continuation to explain the first sentence. Further, the reference to the general practitioner in the fourth sentence is clearly a matter relating to the plaintiff’s lower back, not his leg, and therefore part of the explanation for the first sentence. In my view, therefore, the appellant has demonstrated error in a conclusion reached by her Honour.
I think that this error falls within the Fox v Percy test, it being incontrovertible that the plaintiff’s oral evidence did not suggest that he had suffered leg pain when leaving his motor vehicle on 5 August 2015.
The next important passage is the following:
It is also significant that both the physiotherapist and general practitioner at first consultation noted that the lower back pain was recurrent, contrary to the applicant’s claim that what he was experiencing was not what he had previously experienced in his lower back. (AB 17 from line 5)
First, it is necessary to look at what was noted by the physiotherapist and the general practitioner. The former’s notes commence at AB 575. The doctor’s notes are at AB 558.
The relevant part of the physiotherapist’s notes, for 6 August 2015, is as follows:
Current History
Got out of car yesterday felt Lx give – pain+Lx
Laste few days – computer work ++
Nil Leg pain/P+N/N
Has happened 2-3 times previously – last time ~ 2007, physio Rx, settled well
Although reasonably reliable ‘guesses’ can be made as to the meaning of some of the abbreviations in the physiotherapist’s notes, there was no evidence explaining them.
The relevant part of the doctor’s notes is as follows:
back pain - localised to lumber/lower back, recurrent, stiffed, no obvious reuropahy/red flag symptomatic treatment advised, physio..
Without intending to make any criticism of the doctor, his notes are replete with typographical errors. This is probably the result of the doctor attempting to record as much as possible of the appellant’s history contemporaneously. The notes of the doctor and of the physiotherapist raise concerns of the type highlighted by the New South Wales Court of Appeal in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 and Mason v Demasi [2009] NSWCA 227.
While I accept that the two sets of notes were tendered by the appellant, and that he cannot therefore complain about their content, it is nevertheless incumbent upon me to take into account that they do not represent a full portrayal of what was said to the respective medical practitioners.
The error suggested by the appellant is that her Honour was equating a referral to a recurrence of symptoms to being of the same level of pain, as described by the appellant, as having been suffered in August 2015. His oral evidence was plainly to the effect that any symptoms he had previously suffered in his lower back were relatively minor. The appellant submitted that if her Honour was assuming that the notes suggested the same level of symptoms then she was in error.
The respondent submitted that the appellant’s position misinterpreted what Her Honour was actually saying. It was submitted that, rather than referring to a high level of symptoms, her Honour was suggesting that there was a consistency between the low level of symptoms previously described by the appellant and the histories noted by the physiotherapist and the doctor. I do not agree.
I think that the reference to the histories in the notes being contrary to the applicant’s evidence indicates that her Honour was highlighting a distinction between the appellant’s description of his previous lower back pain – as being not very significant – and the history of a recurrence of what he was currently suffering. In other words, her Honour was reading the histories recorded by the physiotherapist and the doctor as being a statement by the appellant to those practitioners that the level of pain he was currently suffering was the same as the levels of pain he had suffered on previous occasions.
I agree with the appellant’s interpretation of her Honour’s words. Once again, it follows that error has been demonstrated.
The next major issue raised by the appellant was that her Honour had erroneously required proof of an injury, as contemplated by s 31(1) of the Act, to necessarily involve a finding that there had been a disc prolapse suffered in the motor car incident.
The respondent submitted that, because of the manner in which the appellant presented his case in the court below, Her Honour’s approach was both necessary and correct. I agree with this conclusion, although I do not think the result of the appeal is ultimately affected.
The appellant approached the matter on the basis that he had suffered both a disease, being the aggravation of pre-existing degenerative changes in his spine, and a frank injury, the latter occurring when he exited the motor vehicle.
The appellant submitted that the absence of leg pain on 5 August 2015 was not crucial to a finding that there had been a disc prolapse. This was because Dr Pillemer, in re-examination, had agreed that it was possible for there to have been a prolapse of the disc, or an otherwise serious injury, even if there had not been any complaint of leg pain. This evidence can be found at AB 277. However, this conclusion depends on the appellant being in excruciating pain when the event occurred. If this was not the case, then Dr Pillemer’s opinion could not stand.
Her Honour specifically found against the appellant’s description of excruciating or severe pain. Plainly, her Honour was influenced by the evidence of the appellant’s activities, especially on 16 August 2015. What this finding does highlight however is the importance to the case of her Honour’s findings on credit, or certainly reliability.
Returning to the overall presentation of the case, if there was no specific injury found, the appellant relied on a finding that he had suffered an injury caused by a disease pursuant to s 31(2). This section has the added requirement that the employment substantially contributed to the injury. Her Honour specifically found that this was not the case, at AB 20.18, and I do not think that any criticism can be made of that finding.
I also do not think any criticism can be made about her Honour’s approach to any aspect of the relevant legal principles. The difficulty in this case is that her application of the principles is made against the factual background of her findings on the appellant’s reliability as a witness.
I asked Senior Counsel for the respondent if the judgment could still stand if I made the two findings of error, as identified above. He submitted that the judgment could still stand because the most significant finding was that arising from her Honour’s conclusion, derived from the appellant’s activities after 5 August 2015. These activities, as I have previously noted, led her Honour to doubt that the appellant could have been suffering the levels of pain that he alleged.
While I think that there is considerable merit in the respondent’s submission, it must be approached with this caveat. The two errors that I have identified go to matters of credit. It is a natural inference, as I think the respondent agreed, that the relevant impeached findings would have formed part of the overall ‘package’ of material that was considered by her Honour in reaching her conclusions about the appellant’s reliability. It is impossible to say what ultimate weight was given to the two findings. It must follow that the overall assessment of credit must be viewed as having been influenced, to some degree, by the two findings. That being the case, the final finding of credit must be put in doubt.
The respondent submitted, and I think the appellant agreed, that if I found that there was an error in the decision because of issues of credit, then I could not make final orders, but rather the matter needed to be returned to the court below for re-hearing. This is an unfortunate consequence from the point of view of both time and cost. Nevertheless, I think that it is inevitable; both to allow the appellant to pursue a result based on being found to be reliable and also to allow the respondent to be able to both attack any such conclusion and also advance the technical aspects of its rebuttal of the appellant’s case.
Orders
I make the following orders:
(a)The appeal is allowed.
(b)The decision of the Chief Magistrate, given on 23 September 2016, is set aside.
(c)The matter is remitted to the Magistrates Court for re-hearing.
| I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 3 May 2017 |
(d)Subject to any application, the respondent is to pay the appellant’s costs of the appeal.
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