and Shu Hua Ren v Linen and Moore Pty Ltd
[2016] VSCA 116
•20 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2015 0080 | |
| SHU HUA REN | Applicant |
| v | |
| LINEN & MOORE PTY LTD | Respondent |
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| JUDGES: | ASHLEY, REDLICH and TATE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 May 2016 |
| DATE OF JUDGMENT: | 20 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 116 |
| JUDGMENT APPEALED FROM: | [2015] VCC 1003 (Judge Carmody) |
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ACCIDENT COMPENSATION – Current work capacity – Suitable employment – Application under Accident Compensation Act 1985, s 134AB(16)(b) – Whether applicant entitled to commence proceedings for pecuniary loss damages under Accident Compensation Act 1985, s 134AB(38)(e) – Whether judge made finding that applicant could work no more than 20 hours per week – Whether applicant able to obtain suitable employment – Credibility of applicant generally in issue at trial – Matter remitted to County Court for hearing before different judge.
COSTS – Whether respondent to pay applicant’s costs – Delay in making application for adjournment – Late filing of relevant evidence – No costs order made.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D F Hore-Lacy SC with Ms M S Tait | Zaparas Lawyers |
| For the Respondent | Mr M F Wheelahan QC with Mr S E Gladman | Minter Ellison |
ASHLEY JA
REDLICH JA
TATE JA:
The applicant sought leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (the ‘Act’) to bring a proceeding in the County Court to recover damages for pain and suffering and pecuniary loss allegedly caused by injuries to her lower back and right shoulder sustained in the course of her employment with the respondent.[1]
[1]The application was subject to div 8A of pt IV of the Act because the claimed injuries pre-dated 1 July 2014: see ss 4(1)(a) and 134AB(2) of the Act.
At the hearing of the application, the respondent conceded that the applicant had a ‘serious injury’ by reference to the pain and suffering consequences of her lower-back impairment. The remaining issue for determination was whether the applicant had proved that she would suffer a permanent loss of earning capacity of 40 per cent or more, as required by s 134AB(38)(e) of the Act. The primary judge decided that issue against the applicant.[2] Accordingly, the applicant was granted leave to bring a proceeding to recover pain and suffering damages in respect of her lower-back injury, but her application was otherwise dismissed.
[2]Shu Hua Ren v Linen & Moore Pty Ltd [2015] VCC 1003 (Judge Carmody) [113] (‘Reasons’).
The applicant seeks leave to appeal the decision dismissing her application for leave to commence proceedings for damages to recover pecuniary loss.
The full circumstances giving rise to the present application are set out in the summary of the agreed facts and in the reasons of the judge below. They do not bear repeating here.
Can and should this Court determine the question of the applicant’s entitlement to claim pecuniary loss damages?
The applicant relied upon 19 proposed grounds in seeking leave to appeal. The respondent conceded by its written case that the applicant should at least succeed in making out proposed grounds 1, 2, 3, 6, 13, 17 and 18, that leave to appeal should be granted and the appeal allowed and the primary judge’s decision set aside. Its primary submission was that the application should now be remitted to the County Court for further hearing before a different judge. The applicant opposed a remitter and submitted that there were good reasons why this Court should determine her application for leave to bring a pecuniary loss claim. It is that issue that we must resolve.
Senior counsel for the applicant argued, see [12] and following below, that it was not necessary for this Court to itself determine facts relevant to his client’s pecuniary loss claim. But he accepted, if this Court was called upon to determine the pecuniary loss question, that no reliance could be placed upon his Honour’s conclusions as to disputed facts when regard was had to the breadth of the attack made upon the judge’s reasons for decision.[3] Those findings would have to be put aside. That raised the question whether we would be in a position to make findings as to all relevant facts in issue.
[3]The attack included grounds, conceded by the respondent, that the judge’s reasons did not adequately disclose his Honour’s path of reasoning.
The respondent contended that the applicant’s credibility was put in issue at trial with respect to material issues. If so, that would constitute a serious impediment to this Court making findings on the matters in issue. In its written submissions, the respondent identified a number of bases upon which the applicant’s credibility was allegedly impugned during cross-examination and in the closing address of its counsel. The attack was said not to have been confined to the applicant’s level of competence in English, but to have been such as necessarily affected the reliability of other parts of her evidence, including her evidence of incapacity, as well as medical opinions about her work capacity that were based on histories she had provided.
The applicant submitted before us, to the contrary, that her credit was not put in issue and that no assessment of her English language skills was required. Therefore, it was said, this Court was well placed to re-determine the pecuniary loss question.
Contrary to the applicant’s submission, we consider that an attack was made upon her credibility. It appears, from the transcript of cross-examination and the judge’s reasons, that her credit was put in issue on a broad front.
Although the trial judge made no specific finding as to credit, he did make findings as to whether the applicant’s command of English constituted a barrier to her future employment. He found that the applicant ‘required the assistance of an interpreter but had a fair command of English and could communicate in English in an elementary way.’[4] He found that she had in fact been examined by doctors without the assistance of an interpreter during the course of preparation for this case. He was not satisfied that the language barrier put forward on behalf of the applicant was a barrier to her ability to maintain employment.
[4]Reasons [5].
Thus, his Honour accepted the thrust of the respondent’s attack on the applicant’s credit with respect to her command of English, although he did not explicitly state that her credibility was impaired in any way. Further, despite his reasons being otherwise silent as to the applicant’s credit, his findings implicitly involved a rejection of other aspects of her evidence. If the question whether there should be a remitter to the County Court depended upon whether the applicant’s credit was broadly put in issue below, the matter would need to be returned to the County Court for rehearing.
The applicant’s written case, however, did not invite the Court to review and make findings on all facts in issue. It advanced the simple contention that grounds 5 and 15 (each of which pertained to the lower-back injury)[5] must succeed, with the result that the application for leave to bring a proceeding for pecuniary loss damages must be decided in her favour.
[5]The applicant also relied below upon injury to her right shoulder.
The respondent maintained that grounds 5 and 15 must fail.
We turn, then, to the applicant’s submission that she should succeed on proposed grounds 5 and 15. In arguing those grounds, the applicant, contrary to her concession that the judge’s finding would need to be put aside if the question of pecuniary loss was to be determined by this Court, relied upon findings made by the judge.
Proposed ground 5 reads as follows:
Having found no more than that the Applicant could work 20 hours per week due to her lumbar spine injury, His Honour’s decision to dismiss the application for leave to bring proceedings at common law for loss of earning capacity damages for her lumbar spine injury is erroneous.
The applicant submitted that the primary judge made an implied finding that she could work ‘no more than 20 hours per week.’ The significance of ’20 hours’ was this: according to the evidence, if the applicant was able to work a little over 20 hours per week[6] in a job identified by the respondent, then her claim in respect of loss of earning capacity would fail.
[6]21.6 hours, rounded up to 22.
The implication advanced for the applicant cannot be drawn from his Honour’s remarks. His Honour referred to the opinion of Dr Thomas that the applicant had a capacity to work a maximum of 20 hours per week. In response to that opinion, his Honour found that the applicant had ‘a capacity to work at least 20 hours per week’. His Honour further observed that Dr Thomas had not ‘stripped out’ the non-organic components contributing to the applicant’s disability in arriving at his assessment of a maximum capacity of 20 hours’ work per week. His Honour’s use of the words ‘at least’ was deliberate. He did not find that the applicant could not work more than 20 hours per week; rather, the contrary.
Proposed ground 15 is as follows:
His Honour erred in failing to take into account that the Applicant, who is no longer employed by the Respondent, would be unable to obtain employment that allowed her to gradually increase her hours of work.
Ground 15 was founded upon evidence to the effect that the applicant would need to resume employment working only a few hours per day on a few days per week, with the prospect of gradually building up her hours and days of work.[7] It was argued that employment of such a kind does not exist,[8] for which reason the job descriptions upon which the respondent relied below could not be regarded as ‘suitable employment’.
[7]Presumably, to a point which did not exceed 20 (or 22) hours per week.
[8]With the possible exception of an employer taking its own injured worker back.
The respondent’s submission that this argument was unsound might not inevitably be accepted. But, in any event, we consider that the success of the argument would depend in the first place upon acceptance of particular evidence. We do not consider that an assessment could be made that it was ‘totally unrealistic’ to conclude that suitable employment could be found, of the type necessary, in the absence of a consideration of the evidence. Without revisiting the entirety of the evidence, resolving questions of credit and making relevant findings, we are not in a position to determine whether the respondent discharged its evidentiary onus of adducing evidence that the applicant could perform a particular job for a period of not less than 22 hours per week, or whether the applicant proved that no suitable employment existed in which she could earn 60 per cent of her ‘without-injury’ gross earnings.[9]
[9]See the Act s 134AB(38)(f)(i); Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120, 144 [115]. See also Purkess v Crittenden (1965) 114 CLR 164, 168.
As we have said earlier, applicant’s counsel accepted, if the argument resting upon grounds 5 and 15 failed, that the judge’s factual findings would have to be put to one side. Counsel accepted also that the applicant’s written case did not present any positive analysis of the facts which, the applicant would submit, should be found by this Court. Against the prospect that grounds 5 and 15 would be rejected, the applicant sought an adjournment in order to file a further written case as to what facts should be found on the evidence that was led at first instance. The respondent submitted that if, contrary to its primary submission, the Court decided to determine the application itself, it did not oppose the application for an adjournment.
In order for this Court to determine the application on the basis contingently proposed by the applicant, a further hearing would be required at which we would be invited to make findings on all facts in issue. The applicant would have to file a fresh written case; and the respondent might need to do so.[10] Credit issues would be raised which would be said for the respondent to bear upon the weight to be attached to the applicant’s evidence and the histories she provided to the expert witnesses. We would have to determine precisely the same questions as would be addressed by a judge on a remitter, but without the benefit of having seen the applicant give evidence. The judge on remitter would in all likelihood have that benefit. Further, but for the additional time that would be taken in receiving the applicant’s oral evidence, there would not be any saving in time or resources with respect to the hearing if this Court were to undertake the evaluation of the evidence and determine the question of her entitlement to claim pecuniary loss damages. The appropriate order must be that the matter be remitted to the County Court for hearing by a different judge.
[10]Although senior counsel for the respondent stated that the present written submissions for his client sufficiently addressed relevant circumstances and evidence.
Paragraph 2 of Order dated 30 July 2015
In light of the parties’ agreement that the judgment below should be set aside, the parties also agreed that the consequential orders as to the costs of the trial should also be set aside and should be re-determined following determination of the question of the applicant’s entitlement to claim pecuniary loss damages.
Paragraph 3 of Order dated 30 July 2015
An issue was raised relating to costs reserved on 10 July 2014, dealt with by paragraph 3 of the judge’s orders dated 30 July 2015. The applicant submitted that the paragraph ought be set aside and, in its place, an order made that, in respect of those reserved costs, the respondent pay the applicant’s costs, including fees for two counsel.
The judge’s revised ruling on costs shows that there were a number of reasons for his decision to make no order as to the reserved costs. First, the matters raised by the applicant in relation to the report of Ms Bryant should have been raised at an earlier point in time. Second, the plaintiff obtained an advantage by the adjournment. Third, the report which, late served by the respondent, led to the application to adjourn, went to the question of the applicant’s loss of earnings claim — upon which she was unsuccessful.
The second and third of those matters were not relevant. However the first reason was. It was well within a proper exercise of the discretion to conclude that, having regard to the late filing of the report and then the delay by the applicant in seeking an adjournment, the appropriate order was that no order for costs be made.
Two matters requiring mention
For completeness, we should mention two matters.
First, nothing which we have said should be understood as expressing any view as to the substance, or lack of substance, of such attack as was mounted below upon the applicant’s credit.
Second, we were told that, if the matter was remitted for determination of the outstanding issue, it might be 12 months before a hearing could be had. The decision below was attended by error. It led to a successful appeal. In the circumstances, whilst appreciating the pressures under which the County Court judges work, we do consider that it would be very undesirable if the parties had to wait so long for determination of the matter.
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