Wills v A C Neilson Pty Ltd
[2007] VSCA 159
•23 August 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3804 of 2006
| MARGARET WILLS | |
| Appellant | |
| v | |
| A C NIELSEN PTY LTD and VICTORIAN WORKCOVER AUTHORITY | Respondents |
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JUDGES: | WARREN CJ, NETTLE and NEAVE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 July 2007 | |
DATE OF JUDGMENT: | 23 August 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 159 | |
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ACCIDENT COMPENSATION – Pre-existing injury to lower back – Whether a compensable injury was caused by work on or after 20 October 1999 – Inconsistencies in the evidence of appellant as to when lower back pain developed – Adverse findings by trial judge as to the credibility of the appellant – Whether the reasons ignored objective evidence of the date of injury – Whether reasons inadequate – Whether case on appeal differed to the case put at trial – No error disclosed – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B W Collis QC with | Nowicki Carbone & Co |
| For the Respondents | Mr J H L Forrest QC with Mr J P Gorton | Dibbs Abbott Stillman |
WARREN CJ:
For the reasons stated by both Nettle JA and Neave JA, I would dismiss the appeal.
NETTLE JA:
I have had the advantage of reading in draft the reasons for judgment of Neave JA. I agree with her Honour that the appeal should be dismissed.
In effect, this case is the converse of the situation in Franklin v Ubaldi Foods Pty Ltd.[1] The applicant there acknowledged the presence of symptoms prior to 20 October 1999 and claimed that the worsening of symptoms after that date reflected a degree of exacerbation which amounted to a serious injury arising out of employment after that date. In this case, the appellant’s claim was put on the basis that she did not suffer from low-back pain symptoms until after 20 October 1999 and, accordingly, that such symptoms as she experienced thereafter had to be referable to an injury arising out of her employment wholly after that date.
[1][2005] VSCA 317.
In the hearing below, the respondents faced and met that claim by demonstrating that the appellant suffered low-back pain symptoms before 20 October 1999, or at least by demonstrating that one could not be satisfied on the balance of probabilities that she had not. Consequently, as the judge held, the appellant failed in the way in which she put her claim: it was not open to find that the injury from which she suffered was wholly caused by employment after 20 October 1999. I agree with that conclusion.
Like Neave JA, I am also of the opinion that it is not appropriate to allow the appellant now to amend her hand to allege serious injury constituted of exacerbation after 20 October 1999 of a pre-existing injury. So to do would be to permit the very
sort of thing which the majority of the High Court in Whisprun Pty Ltd v Dixon[2] warned is not allowed.
[2](2003) 77 ALJR 1598, 1608 [51].
I add, however, that, even if one were to reconsider the case as one of exacerbation of pre-existing injury, I do not consider that the evidence would allow us to find in favour of the appellant. There is no acceptable expert testimony as to the degree of exacerbation arising out of employment after 20 October 1999. The best that is available is Mr Miller’s second opinion that one sixth of the appellant’s condition was attributable to the appellant’s employment after that. And as Neave JA explains, Mr Miller’s opinion was expressly based on one of the appellant’s affidavits, the reliability of which the judge had good reason to doubt, and otherwise it seems to me to have been premised upon instructions as to matters of fact which the appellant disowned in her evidence.
It is true that the appellant’s low-back symptoms were not sufficiently serious before 20 October 1999 to prevent her from working (or from increasing her previous annual income), and that after 20 October 1999 they became so bad as to put her on her back. But obviously that fact of itself could only ever take the appellant part of the way to success. Injury and its consequences are not synonymous.[3] Nor are they necessarily contemporaneous. Hence, the law relating to the limitation of actions in claims of this kind.[4]
[3]Grech v Orica Australia Pty Ltd (2006) 14 VR 602, 614 (Ashley JA).
[4]Stingel v Clark (2006) 226 CLR 442.
Certainly, the fact that some of the appellant’s symptoms did not emerge until after 20 October 1999 was not inconsistent with an injury to some extent arising out of employment after that date. But just as certainly, it was not proof of that fact either. Absent soundly based medical opinion, the appellant’s claim was bound to fail.
NEAVE JA:
Background
The appellant, Mrs Margaret Wills, claims that she suffered a serious injury to her back, in the course of her employment with the first respondent, A C Nielsen Pty Ltd (“the company”) which arose after 20 October 1999. She unsuccessfully applied to the County Court under s 134AB(16)(b) of the Accident Compensation Act1985 (“the Act”), for leave to bring an action against the company to recover common law damages. This is an appeal against the decision to dismiss that application.
The factual background to the appellant’s claim is as follows. Mrs Wills was born in April 1951, so she is now in her fifties. After marrying and having two children, she returned to paid work in approximately 1980. In 1986, when she was working for Target, she suffered a disc prolapse at L4/L5. She had a laminectomy operation and a claim for compensation in respect of that injury was settled. In 1988 she began working for the company as a market research interviewer. Her duties required her to interview members of the public at shopping centres and Melbourne Airport.
In 1997 the company provided lap top computers to its market researchers, for the purpose of recording the responses of interviewees. In late 1999 or early 2000 the company moved its office at the airport upstairs.
On 10 July 2000, when she awoke, Mrs Wills was unable to get out of bed, because of severe pain in her lower back and pain running down her leg. After 10 July 2000 she had treatment and took some time off work but she continued to have pain, stiffness and soreness in her back. She returned to work in December 2000, using a trolley to carry her computer. As a result of her back problem she ceased work in August 2001 and has not worked since. Mrs Wills claims that her low back injury occurred after 20 October 1999 as a result of the relocation of the company’s office, which required her to carry the laptop computer for a longer distance and to walk up and downstairs with it. It was said that this was a “serious injury”, as defined by s 134AB(37)(a) of the Act, in terms of its pain and suffering and loss of earning capacity consequences.[5]
[5]See also s 134AB(38) of the Act.
The judgment below
In Barwon Spinners Pty Ltd v Podolak this Court said that s134AB made it:
“critical for a plaintiff to identify, for the purposes of subs (1), compensable injury that is referable to employment on or after 20 October 1999 but not to employment before it.”[6]
[6](2005) 14 VR 622, 631.
In Grech v Orica Australia Pty Ltd[7] that requirement was considered in the context of a case in which the worker developed symptoms of carpal tunnel syndrome after 20 October 1999. Although the repetitive use of the worker’s hands before 20 October 1999 had contributed to the development of the condition, it was held that he had suffered a serious injury after that date. Chernov JA said:
“In [Barwon Spinners Pty Ltd v Podolak] the court made it plain that the plaintiff must identify the compensable injury (in respect of which he or she claims there is an entitlement to compensation under the [Act]) and establish that it occurred on or after 20 October 1999. Expressions used by it such as "referable" or "linked" to employment were alternatives to, or short hand for, the words in s 134AB(1), "arising out of or in the course of, or due to the nature of, employment". The court effectively said that, where the injury has its foundation in circumstances that were referable to the worker’s employment prior to the due date but continued to evolve thereafter, it was for the worker to identify, for the purposes of subs (1), the compensable injury in respect of which he or she claims to be entitled to compensation and establish that it is referable to employment on or after the due date, but not before it. The Court did not say, however, that merely because the injury had its foundation in the work environment prior to the due date and has been ongoing it necessarily meant that the plaintiff was "out of court" for the purposes of subs (1). As Ashley JA explains, there is an important difference between injury and the consequences of injury. Whether the injury is compensable and whether it occurred post the due date are questions of fact that must be determined by reference to the circumstances of the particular case. Thus, for example, it may be that an injury that had its onset in the work place some years prior to 20 October 1999 and was "ongoing" or evolving, but which only manifested itself, say, at the end of 1999, would not be regarded for the purposes of subs (1) as a compensable injury that relevantly occurred after the due date. On the other hand, as his Honour makes clear … the evidence may nevertheless show that the injury, as distinct from a manifestation of an earlier injury, in respect of which the worker became "entitled to compensation" within the meaning of subs (1), was sustained after the due date.”[8]
[7](2006) 14 VR 602.
[8]Ibid 614.
Unless Mrs Wills suffered a compensable injury after 20 October 1999, which was serious in terms of its loss of earning capacity or pain and suffering consequences, she was not entitled to obtain leave. As Ashley JA explained in Grech v Orica Australia Pty Ltd:
“It is not enough that a plaintiff establish that he or she developed, on or after 20 October 1999, serious injury consequences of compensable injury sustained before that date.”[9]
[9](2006) 14 VR 602, 614.
At the relevant time, the definition of “injury” in the Act included any physical injury or mental injury, including:
“a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker’s employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration”[10]
[10]Accident Compensation Act 1985, s 5. Note that under s 259 of the Act, this definition of “injury” applies to injuries that occur before the date of commencement of section 3 of the Accident Compensation and Transport Accident Acts (Amendment) Act 2003, Act No. 95/2003. That section came into operation on 3 December 2003, being the day after Royal Assent was received (Gazette n 49, 4 December 2003, page 3064).
The case put on behalf of Mrs Wills at the trial was that she had recovered from her 1986 lower back injury by the time she began work for the company. Although she had some pain in her neck and between her shoulder blades as a result of having to carry a lap top after 1997, she did not develop lower back pain until after 20 October 1999. It was claimed that this was an aggravation of the 1986 back injury caused by the relocation of the company’s airport office in late 1999 or 2000, requiring her to walk longer distances carrying the laptop and to carry it upstairs.
The learned trial judge held that Mrs Wills had failed to establish that she had suffered a compensable injury after 20 October 1999. He referred to inconsistent statements made by Mrs Wills in a workers compensation claim form completed on on 31 August 2000, and to a WorkCover investigator on 24 October 2000, in which she said that her back condition had developed over two or three years (ie over a period commencing before 20 October 1999). His Honour also said the references in her affidavit,[11] to her suffering lower back pain “’over recent years’ [were] not helpful on the question of causation”.[12]
[11]This appears to be a reference to Mrs Wills’ original affidavit, dated 31 August 2004, which was filed with her claim. In her second affidavit, dated 1 May 2006, she referred to the occasional ”lower back strain or niggle which quickly resolved”, but said that the injury to her back developed in the last 6 or 9 months of her employment. For further discussion of her three affidavits see para [39] below.
[12]Margaret Wills v AC Nielsen Pty Ltd and Anor (Unreported, County Court of Victoria, 18 October 2006) [12]. See also [23].
His Honour referred to the history which Mrs Wills gave of her back condition to Dr Rose, Dr Battlay, Mr Kudelka, Dr Kennedy, Dr Young, Dr Sadhai, Dr Russell, and Dr Wallin. He said that:
“Those medical opinions which are based on the version of events now being espoused by the plaintiff are of no assistance as I believe that that version is incorrect. But those opinions who causally relate the back condition to carrying the laptop, they would seem expressly or by implication, to link her back condition to employment from 1997 to 20 October 1999 and therefore do not assist the plaintiff. To state the obvious there was a period of two years employment prior to 20 October 1999, during which the plaintiff was required to carry laptops and a period of nine months between 20 October 1999 and the incident at home on 10 July 2000.”[13]
[13]Margaret Wills v AC Nielsen Pty Ltd and Anor (Unreported, County Court of Victoria, 18 October 2006) [29].
Finally, his Honour referred to the two medical reports provided by Mr Miller, on behalf of the appellant. In Mr Miller’s second report, which was provided in May 2006, shortly before the trial, in response to specific questions posed by the appellant’s solicitors, Mr Miller said:
“(a)I acknowledge the difficulties in making apportionment. I believe on the balance of probabilities that apportionment would relate two-thirds to the effects of the previous back injury and back surgery in the distant past, one-sixth to the effects of the employment prior to 20/10/1999 and one-sixth to the effects of the employment from 20/10/1999 through to 10/7/2000. I acknowledge the difficulties in making such a determination and take into account the pattern of the patient’s symptom evolution and the deterioration in her condition, such that she was unable to continue working. …
(b)I believe in the absence of her further employment in the period after 20/10/1999 until 10/7/2000 that she would not be in the same condition. I believe she would have had ongoing symptoms, but these are at a greater level than would have been, were it not for the employment. I again acknowledge the difficulties in making such a determination.
(c)I believe there has been a contribution from her employment from 20/10/1999 through to 10/7/2000 and the apportionment is outlined in section (a).”
His Honour said that Mr Miller’s apportionment was made four years after he saw Mrs Wills and without any further medical examination. He found that in all probability Mrs Wills’ pre-existing lower back injury was aggravated by the requirement to carry a laptop, which was introduced by her employer in 1997. However he concluded:
“that the plaintiff has failed to establish how much if any of her present back condition can properly be related to a compensable injury that was referrable to employment on or after 20 October 1999 but not to employment before it.”
His Honour did not go on to consider whether the injury was serious in terms of its loss of earning capacity or pain and suffering consequences.
The Appeal
Initially the appellant relied on 16 grounds of appeal. Grounds 5 to 11, which related to the alleged loss of earning capacity consequences of the appellant’s injury, were abandoned. No oral submission was made on grounds 1 to 4, which dealt broadly with his Honour’s failure to determine whether the appellant had suffered an injury which was serious in its pain and suffering consequences.
Instead, counsel for the appellant placed primary emphasis on ground 12, which alleged that his Honour’s reasons for his refusal of leave were inadequate, having regard to the requirement imposed by s134AE of the Act, which requires that:
“The reasons given by the court in deciding an application under section 134AB(16)(b) shall not be summary reasons but shall be detailed reasons which are as extensive and complete as the court would give on the trial of an action.”
Counsel submitted that his Honour’s reasons should have analysed medical and other evidence which was said to provide objective support for the claim that the injury occurred as a result of the changes in working conditions which occurred in late December/early January 2000. This objective evidence, which counsel submitted was unchallenged, was as follows.
First, on 26 January 2000, the appellant reported to Wellness Chiropractic that her major complaint was “arms and feet“ and “golfers’ elbows” but she made no mention of lower back pain or of pain in her left leg. Further, a report by Dr Burke dated 31 January 2000 based on an X-ray ordered by the chiropractor noted “[m]inimal degenerative change [involving] the L4/5 and L5/S1 posterior facet joints” but said that “[t]he other lumbar discs and the thoracic discs are of normal depth. No other significant pathology is seen in the spine or pelvis.” By contrast, counsel submitted, an MRI performed on 26 August 2000 showed “[m]ulti-level disc degeneration with small left paracentral disc protrusion at L5/S1 with minor mass effect on the left S1 nerve.” It was said that this evidence provided objective support for the claim that the appellant’s injury occurred well after 20 October 1999 but that his Honour had not even mentioned the X-ray or the MRI in his reasons.
Secondly, Mrs Wills earned 25% more in the financial year 1998/1999 than in previous years. This, counsel submitted, indicated that she could not have been suffering significant symptoms of back pain during that period as she had continued to carry her laptop and conduct interviews on behalf of the company, until she had an acute attack of lower back pain on 10 July 2000.
Thirdly, Mr Miller had provided an opinion that one sixth of the effects of the appellant’s back condition could be related to her employment from 20 October 1999 until July 2000. It was submitted that his Honour did not give adequate reasons for rejecting this opinion.
Finally, in addition to the objective evidence outlined above, counsel for the appellant contended that there was a good reason for the change between Mrs Wills’ statement in her affidavit of 31st August 2004 that “over recent years” strains had been placed on her lower back as the result of having to carry the lap top, and her affidavits of 1 May and 8 June 2006 deposing that the injury to her lower back with referred pain to her left leg had developed in the last 6 or 8 months of her employment. It was said that when the appellant swore her first affidavit she was uncertain of the date when the office was relocated, but became aware of this after a co-worker deposed on 4 May 2006 that this had occurred in early 2000.
In reply, counsel for the respondents submitted that it was unnecessary for his Honour to analyse the medical reports in any great detail and that his Honour’s reasons were adequate, having regard to the manner in which the appellant’s case was conducted below. He observed that in his opening address below, counsel for Mrs Wills had said her injury occurred:
“some months after that that this office location was changed which required the up and down stairs and additional walking to and from the concourse, and that’s what we say, it was some time after that took place that she developed low back symptoms.”
Counsel submitted that the trial judge had found that this was inconsistent with her earlier statements and affidavit evidence. He said that the trial judge had heard and seen the appellant give evidence that she did not have symptoms in her lower back until after the office had moved and had rejected Mrs Wills’ claim because of the adverse view he took as to her credit. There were no incontrovertible facts or uncontested testimony showing that the trial judge’s conclusions were wrong. Accordingly, the principle in Fox v Percy[14] applied and the court should not overturn reasons based on his finding as to Mrs Wills’ credit.
[14](2003) 214 CLR 118.
Counsel for the respondents submitted that because his Honour had found against the appellant on the basis of her credit, it was unnecessary for him to undertake a detailed analysis of the medical evidence, which in any case provided little support for her claim. Counsel said that the only medical evidence linking Mrs Wills’ injury to her employment after 20 October 1999 was Mr Miller’s second report, but this too was based on the history provided by the appellant.
Finally, counsel for the respondents contended that although the case at trial was that Mrs Wills’ lower back injury did not occur until 6-9 months before 10 July 2000 (and thus after 10 October 1999) the appellant was now altering the basis of her claim by asserting that she had some lower back pain as a result of being required to carry the lap top from 1997, but that the compensable injury did not occur until 20 October 1999. Counsel submitted that it was not open to the appellant to do so on her appeal.[15]
[15]Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, [51] (Gleeson CJ, McHugh and Gummow JJ). See also Waterboard v Moustakas (1988) 180 CLR 491, 497.
It was contended for the respondents that because his Honour’s reasons dealt adequately with the question of whether the appellant suffered an injury referable to her employment on or after 20 October 1999, it was unnecessary for him to address the question whether her back injury was serious in terms of its pain and suffering or loss of earning capacity consequences.
Conclusion
Section 134AD of the Act requires this Court to decide for itself whether the injury is a serious injury, on the evidence before the judge who heard the application and any other evidence which this court may receive under any other Act or rules of court.
The onus is on the appellant to persuade the Court that the decision below should be reversed or set aside. Even if it cannot be established that the trial judge made a specific error, the appeal must be allowed if the Court is satisfied that the decision below was wrong. In deciding whether this is the case the Court will give weight to the advantages of the trial judge in hearing and seeing the witnesses. As this Court said in Barwon Spinners Pty Ltd v Podolak:
“If a finding of fact is attacked, it is for the appellant, as the attacker, to carry the burden of persuasion, and that burden is the more difficult to discharge when the finding below was against the person on whom the onus lay in the first place and credit was in issue… It is common, too, in cases that canvass the appellate function, to find express mention made of the obligation resting on the appeal court to recognise and give appropriate weight to the advantages of the trial judge who has seen and heard the witnesses…”[16]
[16](2005) 14 VR 622, 643 (Ormiston, Chernov and Phillps JJA).
In my view his Honour gave adequate reasons for concluding that:
“…there has been a deliberate attempt to shift the emphasis in this case to try and avoid the obvious implication arising from the material referred to, namely that from 1997 onwards there was a link between the plaintiff’s back condition and her employment, instead to try and assert a compensable back injury linked to her employment after 20 October 1999 and not before it.“[17]
[17]Margaret Wills v AC Nielsen Pty Ltd and Anor (Unreported, County Court of Victoria, 18 October 2006) [23].
His Honour’s reasons deal sufficiently:
“…with the substantial points which [were] raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding [were] based…”[18]
It follows that they:
“…provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion.”[19]
[18]Hunter v TAC [2005] VSCA 1, [21] (Nettle JA).
[19]Hunter v TAC [2005] VSCA 1, [21] (Nettle JA). See also Spence v Gomez [2006] VSCA 317, [65]-[66] (Nettle JA).
His Honour’s conclusion was clearly open in light of the inconsistencies between the various statements which Mrs Wills made about the onset of her symptoms and her failure to explain these inconsistencies when they were put to her in cross-examination. These inconsistencies can be identified as follows.
·In her workers’ compensation claim, dated 10 August 2000, Mrs Wills said she was suffering from pain in her left leg and back because:
“…carrying a seven kilogram laptop PC for interviewing is a significant contribution of my condition starting first at the neck, then pain between the shoulder blades causing pins and needles in this and hands now being in the lower back which has now caused me not to be able to work at all.”
·In the same claim form, when asked whether she had had any previous pain or disability in the area of her present injury she said “fourteen years ago with no recurrence until recent 2-3 years”.
·In her statement made to a workers’ compensation investigator on 24 October 2000, she said that she had experienced chronic pain in her lower back “for the past 2 to 3 years”. No reference was made in that statement to the development of lower back pain after relocation of the office. Mrs Wills later typed up an additional statement in which referred generally to the weight of the material she had to carry, though it also referred briefly to the need to go up and downstairs to recharge computer batteries. She said that:
“I enjoy the work I do and meet some very interesting people from around the world, but I know that my job is the significant contributing factor to my injuries.”
·In her affidavit of 31 August 2004, Mrs Wills deposed that:
“Over recent years I had been required to use a lap top computer when interviewing. In addition, I was required to carry clipboards, stationary [sic] and other equipment. The work at Melbourne Airport required me to walk long distances and go up and down stairs. The interviews were often long and required me to sit beside the person being interviewed. The interviews would last for approximately 20 minutes, but often longer. There was pressure to complete the interviews because of flight schedules. Over recent years the position of the employer’s office was changed and this led to more walking and carrying the computer and associated equipment. I enjoyed the work, but it placed stresses and strains on my spine particularly my low back and neck.
Over the last couple of years of my employment I did have some discomfort and intermittent aching in my back. This was of a mild nature and did not stop me from working, nor did it require me to seek medical attention.” (emphasis added)
·In her affidavit of 1 May 2006, Mrs Wills deposed that:
“As I explained in my workers’ compensation claim form dated 10 August 2000, over a period of approximately 2 to 3 years the discomfort I felt initially only involved my neck and later I developed a similar sensation in between the shoulder blades, causing some occasional and transient sensation of pins and needles in the arms and hands. I believe that the use of the laptop computers which came in during this time was responsible for the mild discomfort and intermittent aching developing in my neck and arms.
…
[T]he injury to my back with referred pain to my left leg developed, in particular as a result of the last 6 to 9 months of my employment by gradual process, causing me to cease work on 10 July 2000. From the mild, intermittent situation I described above involving my neck and arms/hands, I now developed pain and discomfort in my low back. I believe my back was injured by the same process, now made more onerous during this 6 to 9 month period by a change to the work practices which occurred once I was moved into the Melbourne Airport offices, from which a ten minute walk and moving up and down stairs (laden with equipment) to and from the concourse where we conducted our interviews became required. This was in addition to the other duties I had previously performed. It was particularly difficult carrying the laptop computer and related equipment over that distance.” (emphasis added)
·In her affidavit of 8 June 2006, Mrs Wills deposed that:
“I wish to elaborate upon paragraph 7 of my Affidavit dated 1 May 2006, in which I stated that my work became more onerous in the last 6 to 9 months of my employment before I ceased work on or about 10 July 2000. I recall that in or about June 1999 myself and other AC Nielsen employees signed agreements to do work for Melbourne Airport. Now produced and shown to me and marked with ‘MW4’ and ‘MW5’ are copies of two of those agreements as signed by myself and my colleague Sevim Cakir.
I recall that a few months after signing these agreements, we were moved from downstairs to the Melbourne Airport offices upstairs. I believe that this was in or around early 2000, and after about Christmas 1999. From this point onwards, the task of carrying the laptop computers became much more difficult due to the further distance we had to travel to perform our work. From the offices upstairs, we had to walk for up to ten minutes and up and down stairs to reach the concourse where we conducted our interviews. I found such work to be more difficult as a result of having to carry the laptop computers and related equipment over that distance.”
I note that the fact that Mrs Wills’ second affidavit gave a more precise date about the onset of her symptoms cannot be explained by the fact that she had by then become aware of the fact that the move occurred in early 2000. Her co-worker’s affidavit was sworn after Mrs Wills had sworn her second affidavit.
The learned judge below also referred to the history of lower back pain which Mrs Wills gave to the doctors who examined her.[20] He felt that the obvious implication of this material was that her lower back pain had developed over a period commencing well before 20 October 1999.[21]
[20]Margaret Wills v AC Nielsen Pty Ltd and Anor (Unreported, County Court of Victoria, 18 October 2006) [11]-[20].
[21]Margaret Wills v AC Nielsen Pty Ltd and Anor (Unreported, County Court of Victoria, 18 October 2006) [22]-[23].
On this appeal, counsel for both parties conceded that Mr Miller’s second report was the only medical report which specifically apportioned her injury to work undertaken prior to and after 20 October 1999. In his first report, dated 11 May 2002, Mr Miller had said:
“This lady has a problem with her lumbar spine. She has degenerative disease in the lumbar spine and L5/S1 disc prolapse causing some nerve root irritation. Her symptoms are significant and are likely to remain at the current level. The prognosis is only fair.
…
Relationship to Work
To the extent that her work duties are physical with large amounts of carrying, repetitive bending, it would have made some contribution to her back problem. It seems, however, that this lady had a pre-existing problem and that this is the primary cause of the evolution of her back symptoms. I therefore regard the role of her work as being only small.”
Mr Miller’s second report was provided in May 2006 in response to specific questions posed by the plaintiff’s solicitors, which were not in evidence. As the extract in para [20] indicates, Mr Miller apportioned one sixth of the cause of Mrs Wills’ back injury to the effects of her employment from 20 October 1999 to 10 July 2000 and said that her symptoms were greater than they would have been if it had not been for her employment in that period.
The learned judge below pointed out that this report was provided without any further examination of the appellant, whom Mr Miller had seen four years previously. In my view that was not necessarily a valid reason for rejecting his opinion, as a re‑examination four years later is unlikely to have been helpful in determining the cause of the back injury. However, it is noteworthy that Mr Miller did not mention the relocation of the office in his first opinion and that his second opinion alluded to Mrs Wills’ affidavit.[22] To the extent that his view of the cause of the injury was based on the appellant’s affidavit, it was also affected by his Honour’s view that her account of the cause of her injury lacked credibility.[23]
[22]Counsel for the respondents said that this referred to Mrs Wills’ second affidavit. This is not clear from the opinion itself.
[23]Margaret Wills v AC Nielsen Pty Ltd and Anor (Unreported, County Court of Victoria, 18 October 2006) [27].
As Brooking JA said in Palmer Tube Mills v SEMI:
“in ‘serious injury’ applications the credit of the applicant is of great importance, not only directly, but also indirectly. For so often the opinions of medical witnesses or other experts depend upon what they have been told by the applicant and upon the applicant’s behaviour or performance on examination or upon testing.” [24]
[24][1998] 4 VR 439, 448.
There is no doubt that the appellant is now suffering from significant back pain. Her counsel contended that even if her injury was not caused by relocation of the office she nevertheless suffered a compensable injury after 20 October 1999. But this was not the case that was put on her behalf in the court below.
The way in which Mrs Wills’ case was opened in the hearing below is set out in para [30] above. I note that in his closing address below, counsel for Mrs Wills also put her case as follows:
“So what we say, Your Honour, as far as her complaints are concerned in relation to low back, is that they emerge some time from February 2000 onwards and what the plaintiff has said is those symptoms having emerged, they worsened, gradually worsened, until the point that came on 10 July 2000, where she wanted to get out of bed to go to work and couldn’t…”
and
“So what our submission is, Your Honour, is that there is compelling evidence that the complaints of low back pain to medical people came after the change of the office location and that lends credence then to what the plaintiff’s explanation is, that her initial problems were to her neck and upper back and it was only after that time that there became back symptoms.”
It was not open to the appellant to claim on appeal that, even if her evidence about the onset and cause of her injury was not accepted, she had nevertheless suffered a compensable injury after 20 October 1999, which was a serious injury within s 134AB of the Act. It would be unfair to the respondents and inconsistent with the principle in Whisprun Pty Ltd v Dixon to permit the appellant to do so. [25]
[25](2003) 77 ALJR 1598, [51] (Gleeson CJ, McHugh and Gummow JJ).
Further, even if I am wrong in this view, the burden of establishing a compensable injury arising on or after 20 October 1999 under s 134AB of the Act is on Mrs Wills. The evidence does not satisfy me on the balance of probabilities that the appellant suffered an injury referable to her employment after 20 October 1999. As I have already said, it was conceded that Mr Miller’s report was the only medical report which specifically apportioned her injury to work undertaken prior to and after 20 October 1999. In the absence of medical evidence interpreting the X-ray in January 2000 and the MRI on 26 August 2000, both the contrast on which Mrs Wills’ counsel sought to rely, and the fact that she worked until 10 July 2000, are insufficient for me to draw the inference that her injury occurred after the relevant date, in light of the other evidence.
I would therefore dismiss this appeal.
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