Alimov v AHS Hospitality Group Pty Ltd
[2012] VSCA 257
•23 October 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2011 0135 | |
| BUKURIJE ALIMOV | Appellant |
| v | |
| AHS HOSPITALITY GROUP PTY LTD | Respondent |
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| JUDGES | NETTLE and OSBORN JJA and DAVIES AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 19 September 2012 |
| DATE OF JUDGMENT | 23 October 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 257 |
| JUDGMENT APPEALED FROM | [2011] VCC 1222 (Judge Howie) |
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ACCIDENT COMPENSATION – Appeal – ‘Serious injury’ – Appellant refused leave in County Court for leave to commence proceedings for damages – Appeal against refusal of leave – Whether judge below erred in that decision – Accident Compensation Act 1985 (Vic), s 134AB(37).
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Appearances: | Counsel | Solicitors |
| For the Appellant | Mr A J Keogh SC with Mr A E A Macnab | Ryan Carlisle Thomas |
| For the Respondent | Mr S C O’Meara SC with Ms J M Forbes | Wisewould Mahony |
NETTLE JA:
I agree with Davies AJA that the appeal should be dismissed.
OSBORN JA:
I also agree.
DAVIES AJA:
The appellant (‘Ms Alimov’) was refused leave by the County Court to commence common law proceedings against the respondent to recover damages for pecuniary loss and for pain and suffering: (1) for a physical injury to her back that she sustained in a work related accident;[1] and (2) for a mental condition known as chronic pain disorder.[2] The judge refused leave because he was not satisfied that the injuries were ‘serious injuries’ as defined in s 134AB(37) of the Accident Compensation Act 1985 (Vic) (‘the Act’).[3] Ms Alimov has appealed the refusal of leave.
[1]Paragraph (a) of the definition of ‘serious injury’ in s 134AB(37) of the Accident Compensation Act 1985 (Vic).
[2]Ibid para (c).
[3]Leave is required by s 134AB(16)(b) of the Accident Compensation Act 1985 (Vic).
The case for Ms Alimov before the County Court was that she has a chronic and disabling pain in her spine which totally incapacitates her for work.[4] On the medical evidence the cause of the chronic and disabling pain was either the nature of the physical injury to her back or a chronic pain disorder in which psychological factors play a significant role in the onset, severity, exacerbation, or maintenance of pain and in which the pain is not intentionally produced or feigned.[5] Ms Alimov’s case at trial was that the symptoms were primarily physical, not psychological.
[4]Alimov v AHS Hospitality Group [2011] VCC 1222, [37].
[5]Ibid.
The two possible causes for the pain suffered by Ms Alimov were contradictory. As the judge stated:
If the pain is caused by rupture of the discs then it is not caused by a mental disorder. If it is substantially caused by a mental disorder then the cause is not physical.[6]
This statement was not challenged on appeal.
[6]Ibid.
The approach of the judge was to consider whether the pain symptoms were physically based, as contended. After reference to the considerable body of medical evidence, the judge accepted that Ms Alimov had sustained a physical injury to her back as the result of the work-related accident but His Honour was not satisfied that it was an acute injury. The judge referred to the strong body of medical evidence that the physical injury had a significant overlay of ‘displaced illness behaviour’ and ‘perceived disability’. His Honour held:
I am not satisfied that it was an acute injury … The preponderance of the medical opinion tendered in evidence … was that [Ms Alimov] suffered a soft tissue injury and aggravation of the disc degeneration in her lumbo-sacral spine. There is a strong body [of] medical opinion that by 2005 [Ms Alimov’s] physical injury had a significant overlay of what Mr O’Brien described as ‘displaced illness behaviour’ and ‘perceived disability’. This is the view formed by most of the medical specialists who have examined and assessed [Ms Alimov]. Some have identified [Ms Alimov’s] condition as chronic pain syndrome.[7]
It is implicit from the judge’s reasons that he rejected the proposition that the pain symptoms were principally explained by the physical injury.
[7]Ibid [44].
Nor was the judge satisfied about the severity of Ms Alimov’s perceived symptoms. Whilst the judge accepted that Ms Alimov has chronic pain syndrome, the judge held that there had been ‘a degree of conscious exaggeration by [Ms Alimov] of her symptoms’. His Honour stated:
The film tendered in evidence showed [Ms Alimov] moving freely and engaged in normal daily activities such as walking, driving, shopping. She exaggerated her treatment when she reported having had injections for pain. Her treatment has been analgesic medication. She exaggerated the amount of Tramal she takes. Despite efforts to have her participate in a pain management program she has been unwilling to undertake such a program. She appears to have a number of factors that cause her unhappiness including marital disharmony and infidelity, a daughter’s bankruptcy, and financial stress associated with upgrading the family home. Nevertheless, she has had another child in the period since the incident. She has had minimal treatment for her psychological condition, namely antidepressant medication, mainly in later years, and two sessions with a psychologist in recent times.[8]
[8]Ibid [46].
The judge concluded that he was not satisfied that either injury was ‘serious’.
The grounds of appeal were that the judge: (1) failed fully and correctly to identify the physical impairment of the lumbar spine from which Ms Alimov is suffering and the consequences of that physical impairment; (2) failed fully and correctly to identify the consequences of the mental disorder from which Ms Alimov is suffering; (3) did not make findings of fact that he was required to make in order to conclude as he did; (4) failed to give adequate reasons for the refusal of the application; and that (5) the decision to refuse leave was plainly wrong.[9] It was argued that the judge should have concluded, on the evidence, that Ms Alimov suffers a chronically painful condition affecting her lumbar spine requiring regular prescription of analgesic medication which incapacitated her for her pre-injury employment and that the impairment and consequences which flowed from it were likely to last for at least the foreseeable future. It was put that Ms Alimov’s pain and suffering serious injury application should, at least, have succeeded.
[9]Notice of Appeal dated 9 September 2011.
In my opinion, the grounds of appeal are not made out. I am not persuaded that there was any error in the judge’s conclusion that he was not satisfied that either injury was ‘serious’ nor am I persuaded that the decision was plainly wrong.
The judge correctly identified that the seriousness of the injuries was to be assessed by the consequences to Ms Alimov of those injuries. That assessment could not be undertaken without identifying the cause of the chronic and disabling pain about which Ms Alimov complained and assessing its objective extent. The judge considered the sequence of treatment and attendances of Ms Alimov upon medical practitioners since her accident and the medical opinions on the cause of Ms Alimov’s ongoing pain. The judge referred to the body of medical evidence that she had sustained a physical injury to her back and has related degeneration to the spine. The judge accepted the evidence that the work accident had caused soft tissue injury and aggravation of disc degeneration of Ms Alimov’s spine. But the judge did not accept the case put for Ms Alimov that her symptoms were primarily physically based. The judge referred to the body of medical evidence that the ongoing symptom of chronic pain was not correlated to her physical injury and that there were psychological factors amplifying her experience of physical symptoms. It was clearly open to the judge to conclude on the evidence, as he did, that Ms Alimov’s pain was to be explained by psychological factors, not by the injury to her back. This was not challenged on appeal.
As the judge rejected the proposition that the pain symptoms were primarily physically based, it was unnecessary for the judge then to analyse the impairment of Ms Alimov’s lumbar spine or the consequences of that physical injury. The rejection of that proposition was a sufficient basis on which to conclude that he was not satisfied that the physical injury was a ‘serious injury’ as defined in the Act.
Whether the consequences of the mental disorder were ‘severe’ such as to constitute the mental disorder a ‘serious’ injury depended on the reliability and worth of Ms Alimov’s evidence that her pain was chronic and disabling. Ms Alimov’s account of the chronic nature of the pain that she said she was suffering from was put into issue at trial and the judge had to assess and form a view about her credit. The issue about credit had its foundation in the medical reports that opined that Ms Alimov’s ongoing physical symptoms, and perhaps also her mental symptoms, were exaggerated. Video surveillance film was taken of Ms Alimov which the judge described as follows:
A considerable amount of surveillance of [Ms Alimov] has been carried out over twenty two days in 2004, 2009, 2010 and 2011. Some of it was shown in the course of the hearing and tendered in evidence. While it did not reveal any obvious untruthfulness by [Ms Alimov] it showed her carrying out normal daily activities such as driving, walking, shopping, standing, in an apparently normal manner, without any apparent pain or restrictions, save for an occasion on 18 June 2010 when she put her hand to her left lower back after strapping her son into the car. The normal nature of her appearance and mobility contrasted with her apparent unhappiness and slow movement in court.[10]
This account was not challenged on appeal, though emphasis was placed on the one incident when she showed pain in her movements.
[10]Alimov v AHS Hospitality Group [2011] VCC 1222, [36].
Contrary to the submission for Ms Alimov, the finding of the judge that Ms Alimov had consciously exaggerated her symptoms was not of limited significance. The weight to be attached to Ms Alimov’s account of her pain, and the disabling effect of that pain, turned on an assessment of her credibility, because the physical injury, on the judge’s finding, did not sufficiently account for Ms Alimov’s ongoing symptoms. Once the judge concluded that she was consciously exaggerating her symptoms, the probative value of the medical evidence that she was incapable of work because of the pain that she was experiencing was impugned. Success on the application for leave depended on the Court’s acceptance of the severity of her symptoms and that her pain was chronic and disabling. The adverse credit finding meant that there was not proof to the requisite standard to satisfy the judge, on the evidence, that the consequences to Ms Alimov of her chronic pain syndrome were ‘serious’. The adverse finding on credit was thus a sufficient basis for the refusal of leave.
In oral argument, senior counsel for Ms Alimov attacked the judge’s adverse finding on credit. He argued that the judge was wrong (1) to conclude that the video surveillance film supported a conclusion of conscious exaggeration; (2) to find that Ms Alimov had exaggerated her treatment when she reported having had injections for pain; and (3) to find that Ms Alimov had exaggerated the amount of analgesic medication that she takes.
The criticism that the video surveillance film did not support a conclusion of conscious exaggeration lacks force. The video surveillance film did not positively advance Ms Alimov’s case and, at best, was inconclusive. On the other hand, the cross-examination of Ms Alimov on the activities that she was filmed undertaking showed that Ms Alimov is able to perform many daily activities without evident pain. This bears on Ms Alimov’s account of her disabling pain and whether she was exaggerating her symptoms.
The criticisms of the judge’s findings that Ms Alimov had exaggerated the treatment she received for her pain also lack force. Although the evidence showed that Ms Alimov did have some injections for pain early on after her accident, her primary treatment was analgesic medication. Cross-examination elicited that she does not take pain killers with the regularity that she attested to in her evidence-in-chief. The finding that she had exaggerated the amount of analgesic medication that she takes was therefore open on the evidence and affected her credit.
Furthermore, the judge did not make his adverse credit finding based on those matters alone. Other matters included that Ms Alimov has been unwilling to participate in a pain management program and has had minimal treatment for her mental condition. Neither matter was said to be irrelevant or matters to which little weight should be attached.
The case on appeal, in essence, amounted to a submission that the judge should have reached a different conclusion on the totality of the evidence. However, the availability of a different view is not a sufficient reason for the Appeal Court to interfere with the decision below. The views and conclusions of the judge must be shown to be wrong.[11]
[11]Fox v Percy (2003) 214 CLR 118.
In my opinion, the judge’s reasons were adequate and no error has been shown. I would dismiss the appeal.
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