Abela v Goodman Fielder Mills Ltd & Anor
[2000] VSCA 19
•16 February 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 4510 of 1999
| TONY ABELA |
| Appellant |
| v |
| GOODMAN FIELDER MILLS LTD & ANOR. |
| Respondents |
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JUDGES: | WINNEKE, P., BUCHANAN and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 February 2000 | |
DATE OF JUDGMENT: | 16 February 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 19 | |
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Personal injuries – Whether injury serious within meaning of s.135A(19)(a) Accident Compensation Act 1985 – Judge’s refusal to grant leave to institute proceedings upheld.
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr. H. Fox Q.C. and Mr. C. Nettlefold | Ryan Carlisle Thomas |
| For the Respondents | Mr. J. Ruskin Q.C. and Mr. F. Zydower | Blake Dawson Waldron |
WINNEKE, P.:
I will invite Buchanan, J.A. to deliver the first judgment in this appeal.
BUCHANAN, J.A.:
The appellant, who is now aged 42 years, was employed as a fork lift driver between 1988 and 1995. In February 1994, or perhaps earlier, the appellant's neck was jarred by the unsprung fork lift being jolted by a bump. The fact that the appellant was required to drive in reverse when carrying a load and was thus constantly turning his neck, may have contributed to the jarring he experienced. The appellant consulted a number of medical practitioners in 1994 complaining of pain in his neck. In January 1995 he ceased to work. In an affidavit he swore:
"I simply wasn't able to work any further and I stopped. By this stage I was having not only pain in my neck, but headache and pain in my left shoulder and pain going down my left arm."
The applicant left school at a very early age. He has no qualifications save as a fork lift driver. The pain from his neck, he says, prevents him from driving fork lifts or pursuing labouring jobs or factory work. He has not worked since 1995.
The appellant applied for leave to institute proceedings for damages for personal injuries pursuant to the provisions of s.135A of the Accident CompensationAct 1985. The appellant claimed that he had sustained a "serious injury" within the meaning of paragraph (a) of the definition contained in s.135A(19), that is, a "serious long-term impairment or loss of a body function".
The application was refused. The judge who determined the application stated his conclusions in terms of four propositions. He said:
"(a)I do not doubt that the Applicant has a long-term problem with his neck, probably as a result of degenerative disc pathology exacerbated or made symptomatic by his employment as a fork lift driver.
(b)I am unable to determine the question as to whether, when compared with other like injuries, the Applicant's injury is to be fairly described as very considerable and certainly more than significant or marked.
(c)The conclusion in (b) is partly because of my view of the florid manner of the Applicant's presentation to his doctors and in Court, his acknowledged unreliability - not deliberate I am sure - as an historian and witness, and my anxiety that there is a psychological component of undetermined extent in his condition.
(d)The Applicant bears the onus of proof in this application. Notwithstanding his Counsel's strong address, I am unable to say that he has discharged the same in respect of the application as it now stands."
There are three grounds of appeal. The first two are:
"1.The learned trial judge was wrong in holding that the Plaintiff had not suffered a serious injury within the meaning of Section 135A(19) of the Accident Compensation Act 1985 and he should have held that the Plaintiff had established that he had suffered a serious injury.
2.The learned trial judge did not give sufficient consideration to the serious consequences for the Plaintiff as regard to his lifestyle and earning capacity."
The third ground was added by leave today. It is:
"3.The learned trial judge's reasons for his decision are inadequate."
The burden of the appellant's argument was that the judge erred in failing to consider the psychological and physical effects of the appellant's injuries and failed to consider and did not discuss in his reasons the impact of the injury having regard to its effect upon the appellant's earning capacity.
The evidence consisted of a number of medical reports, and an affidavit and oral evidence by the appellant. None of the medical practitioners gave oral evidence.
The first doctor consulted by the appellant about pain in his neck was Dr Choon, a general practitioner, who saw the appellant in February 1994. He prescribed rest and Arthrexin for muscle strain. The appellant returned to Dr Choon in March 1994 and was treated with analgesics. In November 1994 he returned to Dr Choon complaining of pain in his neck. Dr Choon found on examination that the appellant had a full range of movement in his cervical spine although there was some hesitation. An X-ray showed degenerative changes at C5-6. The appellant returned to Dr Choon in December 1994 and January 1995. On 6 November 1995 Dr Choon reported:
"In my opinion he is suffering from a degenerative spinal disease of his cervical spine with involvement of the C5-6 disc. There is no nerve root compression. He is currently unfit for work.”
There was no change when Dr Choon saw the appellant in October 1997. Dr Choon thought he was "totally and permanently incapacitated".
Professor Kaye, a neurosurgeon, saw the appellant in July 1995. He thought degenerative changes could have caused the neck pain. Surgery would not help, and he recommended the continuation of conservative management.
Mr Wilde, an orthopaedic surgeon, saw the appellant in January 1996. According to Mr Wilde -
"The diagnosis is internal disc disruption of the C5-6 disc of very mild proportion at this level".
Mr Wilde thought that the appellant might get on top of his symptoms with exercise and physiotherapy, but accepted that he was presently unfit for the only work he was likely to be offered. When Mr Wilde saw the appellant again in February 1998, nothing had changed.
Another surgeon, Mr Mills, examined the appellant in November 1997. He concluded:
"I am not optimistic of him improving to a state where he would be able to work. It is just under four years since his problem arose and there has been no significant improvement which in itself suggests a degree of psychological impairment."
Mr Grossbard, an orthopaedic surgeon, saw the appellant in March 1998. He reported significant neck symptoms probably arising from the C5-6 level. He thought the appellant was unable to perform any physical work.
In July 1996 Dr Holwill said that he thought the appellant was permanently incapacitated for any employment because of chronic pain. In addition to his physical complaints the appellant had developed a moderately severe reactive depression.
The last of the doctors engaged by the appellant, Mr Jones, an orthopaedic surgeon, saw the appellant on three occasions in 1995 and reported that the appellant suffered a localised disc injury at the C5-6 level.
The appellant was also examined by medical practitioners engaged by the respondents. Their reports tended to emphasise the relatively slight nature of the appellant's physical injury.
Thus Mr Quick, an orthopaedic surgeon, said in November 1995:
"The patient is suffering from cervical disc degeneration, which could be causing him some genuine pain. However I feel that he overstates his symptoms and that he is fit for part-time light duties and could increase his duties as time goes by."
Mr Quirk saw the appellant again in March 1997 and reported:
"The patient seems to me fit for his pre-injury employment. I can find no convincing evidence that he has any physical incapacity."
He confirmed that opinion after examining the appellant in August 1998.
Mr Moran, another orthopaedic surgeon, saw the appellant in February 1995. He thought the appellant was presently fit for work. He did not detect any impediment to recovery and return to work.
Mr McNicol Smith saw the appellant in January 1996. He said he thought the appellant's perception of pain was greater than the pathology would suggest. Mr Smith saw the appellant again in August 1998 and said that he could work, although not as a fork lift driver.
Dr Strauss, a psychiatrist, examined the appellant in June 1996. He thought that before he injured his neck the appellant suffered from intermittent chronic depression. Dr Strauss was of the view that the appellant was mildly incapacitated.
Finally, Dr Honey saw the appellant in April 1997. He said:
"My opinion is that Mr Abela suffers with an Adjustment Disorder with mildly Depressed Mood as a consequence of the effects of his injury, that is, it is secondary to his physical injury."
There is no doubt that the trial judge was aware that the appellant had not worked since January 1995 and that there were doctors who considered that he was incapable of any employment. So much appears from the reports to which his Honour referred in the course of his reasons.
The trial judge, however, was of the view that permanent total incapacity for work was a result that was disproportionate to a localised disc disorder. None of the psychiatrists who had examined the appellant thought that he was disabled from work because of mental or behavioural disturbance. Thus he could not pray in aid para. (c) of the definition of "serious injury". The question then became whether the psychological effects of the injury were capable of bringing it up to the level of serious long-term impairment or loss of a body function.
In my opinion, on the material before him the trial judge was entitled to conclude that the appellant had not discharged the onus of establishing that he had sustained a serious injury within the meaning of the definition. The physical injury itself was not sufficient. The psychiatric evidence was somewhat equivocal. Accordingly, a great deal turned upon the evidence of the appellant. That evidence, his Honour held, did not fill the gap. The appellant was an unreliable historian. His evidence was presented in a florid and confusingly contradictory fashion, and his treating psychiatrist was not called as a witness.
Counsel for the appellant submitted that in the third proposition in the trial judge's conclusions, he was in effect disregarding the appellant's psychological state. I accept for present purposes without deciding that functional overlay or the psychological significance of a physical injury can be taken into account in determining whether a worker has brought himself within paragraph (a) of the definition. In my opinion his Honour was not refusing to consider the psychological effects. He was saying no more than that he was not satisfied that there were such effects as to bring the case within the definition.
It was also submitted that the trial judge in effect did decide that the case satisfied the definition. He spoke of "disablement in his neck" and "a long term problem with his neck". In my view these expressions were not the equivalent of a finding of serious long term impairment of the neck. There was a problem with the neck, and it was disabling to an extent: that is all.
In my opinion none of the grounds of appeal have been established. The judge did not fall into specific error, and his decision was justified by the material before him and his view of the appellant's testimony.
I would dismiss the appeal.
WINNEKE, P.:
I agree.
CHERNOV, J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court will be that the appeal is dismissed with costs.
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