Baranadurage v Waverley Forklifts Pty Ltd
[2013] VSCA 307
•29 October 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2013 0008
| ANIL BARANADURAGE |
| v |
| WAVERLEY FORKLIFTS PTY LTD |
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| JUDGES | OSBORN and BEACH JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 29 October 2013 |
| DATE OF JUDGMENT | 29 October 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 307 1st revision 30 October 2013, paras 33 and 35 |
| JUDGMENT APPEALED FROM | Baranadurage v Waverley Forklifts Pty Ltd [2012] VCC 1964 (Judge Murphy) |
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ACCIDENT COMPENSATION - Appeal - Serious injury - Reasons - Adequacy of reasons - Alleged failure to take into account relevant considerations - Whether irrelevant considerations taken into account - Whether plaintiff satisfied the ‘at least very considerable’ test - Application for leave to commence proceeding for pain and suffering damages dismissed at first instance - Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr S R McCredie with Mr B A Hutchinson | Shine Lawyers |
| For the Respondent | Mr M F Wheelahan SC with Ms M Norton | Wisewould Mahony |
OSBORN JA:
I will ask Beach JA to deliver the first judgment.
BEACH JA:
Introduction
Anil Baranadurage, the appellant, made application under s 134AB(16)(b) of the Accident Compensation Act1985 (‘the Act’) for leave to issue a proceeding for the recovery of damages in respect of injuries allegedly sustained in the course of his employment with the respondent, Waverley Forklifts Pty Ltd. The application was heard in the County Court by Judge Murphy on 28-30 November 2012.
The appellant relied upon an injury which he sustained on 7 June 2006, when the bonnet of a forklift on which he was working fell on and injured his left shoulder. The injury was to the rotator cuff region of the appellant’s left shoulder and has been variously described by the medical experts as generally involving a small, full thickness tear to the supraspinatus tendon with chronic inflammation of the adjacent bursa and sub-acromial impingement syndrome.[1] The appellant claimed that this injury satisfied paragraph (a) of the definition of ‘serious injury’ contained in s 134AB(37) of the Act. The application was made in respect of pain and suffering damages only.
[1]Agreed summary of facts, issues and proceedings dated 22 April 2013, paragraph [12].
On the hearing of the application, the appellant relied upon affidavits he swore on 14 October 2010 and 23 October 2012, and the respondent relied upon an affidavit sworn on 10 February 2011, by its Occupational Health and Safety and Human Resources Manager, Anthony Stewart. The appellant was the only witness to give viva voce evidence. The parties tendered various documents, including medical reports, radiology reports, certificates, letters, extracts of clinical notes and surveillance videos.
On 19 December 2012, Judge Murphy gave judgment dismissing the appellant’s application.
The grounds of appeal
In his notice of appeal, the appellant relies upon six grounds. In ground 1, it is asserted that the judge’s reasons breach the requirement of s 134AE of the Act[2] to give detailed reasons which are as extensive and complete as would be given on the trial of an action. Lengthy and detailed particulars of breach are then given. In ground 2, it is asserted that the judge failed to give adequate or sufficient reasons. The appellant particularises this ground by referring to and repeating the particulars of breach relied upon in respect of ground one.
[2]Section 134AE of the Act was repealed on 1 January 2013, after judgment was given at first instance in this matter.
In ground 3, the appellant contends that the judge failed to take into account relevant considerations and/or took into account irrelevant considerations. Seven sub-paragraphs are relied upon – although sub-paragraph (e) was not persisted with by the appellant.[3]
[3]Appellant’s outline of submissions, [30].
Grounds 4, 5 and 6 were in the following terms:
4.The trial judge erred in finding that the plaintiff had not completely lost his trade as a motor mechanic as a consequence of his left shoulder injury (at [53]) when he was constrained by the medical evidence and the evidence of the plaintiff and Mr Stewart to find that he could not work as a motor mechanic.
5.The trial judge erroneously placed the burden of proving a negative on the plaintiff when he found he was not satisfied (at [54]) that “there are not positions within the motor vehicle industry [as a motor mechanic] that the plaintiff could not discharge if appropriate limitations were made to his position description within a particular employer (sic)” in the absence of there being any evidence that such positions existed.
6.The Court of Appeal should decide for itself pursuant to s 134AD that the Plaintiff suffered a serious injury within the meaning of s 134AB in terms of the pain and suffering consequences of the injury.
Having regard to the repeal of s 134AD of the Act, ground 6 was not pursued. The appellant accepted that he could not succeed on this appeal, in the absence of specific error, unless the Court was satisfied that the determination below was plainly wrong or wholly erroneous.[4] In lieu of ground 6, the appellant submitted that if the Court concluded that specific error was shown, then the appellant would wish the Court to determine whether the pain and suffering consequences of the appellant’s injury satisfies the test set out in paragraph (a) of the definition of ‘serious injury’ contained in s 134AB(37).
[4]See Mobilio v Balliotis [1998] 3 VR 833; and Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 [4].
Background facts
A summary of the proceedings, the facts and the issues in this appeal has been prepared by the parties and filed by the appellant. The following outline is drawn from that document.
The appellant was born on 10 November 1963 in Sri Lanka.
The appellant was trained as a motor mechanic and was employed in that capacity before migrating to Australia in 1990.
The appellant commenced employment with the respondent on 5 July 2005 as a full-time mechanic servicing its forklifts. Prior to his employment with the respondent, the appellant had worked in Australia as a machine operator and a process worker.
The appellant suffered an injury on 7 June 2006 when the bonnet of a forklift on which he was working fell on and injured his left shoulder. The injury was to the rotator cuff region of his left shoulder and has been variously described by the medical experts as generally involving a small, full-thickness tear to the supraspinatus tendon with chronic inflammation of the adjacent bursa and sub-acromial impingement syndrome. On 8 June 2006 the appellant saw his treating GP, Dr Heenetigala, and was referred for physiotherapy treatment and to an orthopaedic surgeon, Mr Byrne. Mr Byrne arranged for an MRI scan which took place on 15 December 2006. The MRI scan confirmed the injury. Mr Byrne injected the left shoulder with cortisone and local anaesthetic on 12 October 2006 and on 1 November 2006, both injections providing only temporary and minimal relief. Mr Byrne thereafter noted that all conservative measures of treatment had failed and he discussed with the appellant surgical intervention, being an arthroscopy of the left shoulder and open subacromial decompression and exploration of the rotator cuff. The appellant was not inclined to undergo surgery and has not had surgery.
As at the date of hearing, the appellant remained under the care of his regular treating GP, Dr Heenetigala, whom he saw infrequently for medication prescriptions. He gave evidence that he was receiving physiotherapy treatment every two to three weeks. The appellant’s evidence was that he used Voltaren gel two to three times a week when his shoulder was sore, and also took Voltaren and Nurofen medication when his pain levels increased. The appellant also deposed that he performed shoulder exercises at home approximately three to four times per week.
After the injury, the appellant did not return to unrestricted full-time work for the respondent but continued in employment there on full-time light duties until August 2007 when his job ceased to exist. The appellant thereafter obtained employment as a forklift driver from approximately September – December 2007, as an assembler from approximately January – December 2008 and from approximately July 2009 – September 2010 and as a picker and packer from September 2010 – 27 November 2012, when he was made redundant.
The judge’s reasons
The judge commenced his reasons by identifying the issues involved in the proceeding. His Honour then set out the appellant’s evidence, before dealing with the medical treatment the appellant has received since suffering injury. His Honour’s treatment of these matters was detailed and considered.
Under the heading ‘Assessing the medical material’, his Honour said:
In general there was no substantial dispute on the nature and extent of the plaintiff’s injury. There was, however, some conflict in the examinations between the extent of restriction in the plaintiff’s range of movement as a result of the rotator cuff tear. Virtually all were prepared to accept that the plaintiff has restrictions in the degree of movement due to a permanent impairment of his shoulder, primarily use of the arm at or above shoulder level.[5]
[5]Baranadurage v Waverley Forklifts Pty Ltd [2012] VCC 1964 (‘Reasons’) [39].
After further describing the medical evidence, his Honour went on to describe the surveillance evidence tendered during the application. In this section of the judgment, his Honour noted:
In one passage of video the plaintiff is seen twitching his left shoulder. He gave evidence that he does that when he feels that pain in the left shoulder is coming on. The particular footage was shortly after he was seen on two hands looking under [an] IBC.[6]
[6]International bulk container: Reasons [47].
Under the heading ‘Assessment’, his Honour noted that there was no dramatic adverse surveillance of the appellant shown to the Court – rather, most of the footage showed the appellant using his left arm below shoulder level in what appeared to be a normal manner. Under the heading ‘The consequences of the injury’, his Honour said:
The medical reports were at one that the plaintiff is restricted in his ability to undertake heavy lifting and work that requires use of his left arm above shoulder level. Nothing in the surveillance is substantially inconsistent with that. At the same time, the physical impairment of the plaintiff’s left limb was assessed at 5% of a whole person by Mr Gale, and the surveillance does not show any dramatic limitation of movement or obvious impairment of function, save in relation to above shoulder level activities.[7]
[7]Reasons [49].
Going on, and under the same heading, his Honour said:
The medical evidence supports the proposition that, insofar as the job of motor mechanic does require working repetitively above shoulder level and lifting heavy parts away from the body repetitively, the plaintiff would be unable to discharge the requirements of that position. It is not at all clear, however, that there are not positions within the motor vehicle industry that the plaintiff could not discharge if appropriate limitations were made to his position description within a particular employer.
I therefore do not accept that the plaintiff has totally lost the ability to work in the motor trade, but I accept that his ability to obtain employment within the motor trade using his skill and qualifications obtained in Sri Lanka and his narrow experience on forklifts with the defendant is significantly limited.[8]
[8]Ibid [54]-[55].
His Honour then goes on to deal in some further detail with the extent of the plaintiff’s injury and the pain and suffering consequences before expressing his conclusion, in the following terms, for why the appellant’s application was to be dismissed:
In assessing the pain and suffering consequences, what has been lost to some extent can be judged by considering what has been retained. The plaintiff has been able to continue in full-time employment with episodic pain upon particular uses of his left arm. I find it difficult to accept that the plaintiff has a significant limitation on his left arm such that for a period of the last two years he claims to have been able to conceal it from his employer. The lack of muscle wasting found by some of the examiners, and the surveillance evidence showing free movement of the arm, support the proposition that notwithstanding limitations on above-shoulder movement and repetitive pushing and lifting, the plaintiff retains a wide capacity to engage in industrial occupations. Medical evidence supports the view, in my opinion, that a range of industrial occupations remain open to the plaintiff, including motor mechanics, albeit with significant restrictions on the type of motor mechanics.
In relation to the medical treatment, the plaintiff has not been further referred to any specialists or had any further investigations. He continues to undertake physiotherapy, although some examiners query its utility. He continues to have pain such that he does regularly take medication, but the severity of that pain and its incidences is at the lower end of the range.
He has suffered a significant reduction in his ability to play sport with his son, and some reduction in his ability to engage in normal household activities, particularly, say, gardening and heavy lifting at home.
He does suffer from disturbed sleep when he sleeps on his left side, and I have taken that into account.
Stepping back, and having considered all the material put by the plaintiff, while it can be said that the pain and suffering consequences may be marked or significant, I do not accept that they are to be characterised within the range of possible impairments as ‘at least very considerable’.[9]
[9]Ibid [66]-[70].
The resolution of this appeal
In his outline of submissions, the appellant concedes that it was open on the evidence for Judge Murphy to conclude that the plaintiff’s injury did not satisfy the ‘at least very considerable’ test. That concession was properly made. Indeed, having read all the material, if the repealed s 134AD had application in this case, then, upon considering the matter afresh for myself, I would have come to exactly the same conclusion that his Honour came to. Like his Honour, I think that while the pain and suffering consequences of the plaintiff’s left shoulder injury can be described as marked or significant, they do not rise to the level of at least very considerable when considering them in the range of possible impairments in cases of this kind. That said, I turn now to consider the grounds of appeal that were pursued by the appellant.
In grounds 1 and 2, complaint is made about the adequacy of the judge’s reasons. These complaints must be rejected. They appear to proceed upon a premise that a judge at first instance is required to set out every piece of evidence given in a proceeding. This, of course, is not so. Reasons must be such as to reveal the path of reasoning which leads to the ultimate conclusion. Reasons need not be elaborate or lengthy, but it is necessary that the essential ground or grounds upon which the decision rests should be articulated.[10]
[10]See Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 280; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 [38]; and Transport Accident Commission v Kamel [2011] VSCA 110 [71].
Judge Murphy’s reasons for judgment in this case disclose a careful and considered analysis of the relevant issues that were before him. Far from being inadequate, in my respectful view, they are clear, cogent and detailed reasons for the conclusion to which his Honour ultimately arrived. The appellant could be in no doubt as to why his application was lost. The path of reasoning to a conclusion that the appellant did not satisfy the very considerable test is more than adequately disclosed. There is no substance in any of the appellant’s complaints as to his Honour failing to make additional findings or give additional explanations that might have been able to have been given. One can always say in respect of any judgment that more could have been said. The question is whether sufficient was said. In this case, more than enough was said.
In ground 3, complaint is made that his Honour failed to take into account relevant considerations and/or took into account irrelevant considerations. Much of this ground is premised upon propositions such as ‘If his Honour found X, then in doing so his Honour misconstrued particular evidence or took something irrelevant into account’. There is no substance in any of this. In most instances, the premise upon which the complaint was founded was not made out. Further, and in any event, his Honour’s reasons do not disclose the taking into account of any irrelevant consideration, nor the failing to take into account of any relevant consideration.
Before leaving this ground, I will deal specifically with one of the appellant’s complaints under this ground. The appellant made complaint concerning his Honour’s reference to Mr Gale having conducted a whole person impairment assessment and having assessed the appellant as having a permanent whole person impairment of 5 per cent. This, as I have said, was said to be one of the irrelevant considerations taken into account by his Honour. At paragraph [15] of his Honour’s reasons, his Honour said:
Mr Gale made an assessment of the plaintiff’s permanent impairment and found a whole person impairment of five per cent. I accept that this is not strictly relevant to the application of the test under the Act, however it does provide an order of magnitude of the physical limitation as a result of the injury.[11]
[11]See also paragraph [49] of the Reasons (to which I have referred above).
I see no error in this approach. In my view, it is not a fair reading of his Honour’s judgment to assert that his Honour’s conclusion ought be impeached because his Honour wrongly had regard to Mr Gale’s permanent impairment assessment.
In grounds 3(f) and 4, complaint is made concerning the way his Honour treated the question of the appellant’s ability to work as a motor mechanic. However, as his Honour said:
It is important to note that insofar as the plaintiff has held down the occupation of motor mechanic in Australia, he has had only a limited foothold in that field, namely the period that he was working for the defendant on forklifts.[12]
[12]Reasons [51].
Thus, what his Honour said here went to the relative importance (seriousness) of any restriction on the appellant working as a motor mechanic. His Honour went on:
The plaintiff accepted that he would have been able to continue in the light duties position that he held with the defendant had he not been terminated. That position involved a range of lighter mechanic duties with the defendant, including servicing of forklifts.
It was put in final address that the plaintiff had lost his trade as a motor mechanic. I am unable to wholly accept that submission, given that the plaintiff has only worked in that trade for a period of about two years since he arrived in Australia. He conceded that at present he would not be able to work on modern vehicles, but claimed that he was now unable to do jobs on vehicles which required lifting of heavy parts or working above shoulder height. He is thus unable to rebuild cars for resale or assist on jobs with friends.
The medical evidence supports the proposition that insofar as the job of motor mechanic does require working repetitively above shoulder level and lifting heavy parts away from the body repetitively, the plaintiff would be unable to discharge the requirements of that position. It is not at all clear, however, that there are not positions within the motor vehicle industry that the plaintiff could not discharge if appropriate limitations were made to his position description within a particular employer.
I therefore do not accept that the plaintiff has totally lost the ability to work in the motor trade, but I accept that his ability to obtain employment with the motor trade using his skill and qualifications obtained in Sri Lanka and his narrow experience on forklifts with the defendant is significantly limited.[13]
[13]Reasons [52]-[55].
With respect, this was, in my view, an entirely correct conclusion based on all of the evidence. No part of his Honour’s conclusion took issue with the medical evidence which had been given. The question was the significance of being unable to do certain parts of the work of a motor mechanic in the circumstances of the appellant’s work history. Grounds 3(f) and 4 must be rejected.
In ground 5, complaint is made that his Honour placed a burden of proving a negative on the plaintiff. I reject this contention. His Honour did not make any positive finding that there were specific motor mechanic positions that the plaintiff could perform. No part of his Honour’s judgment involved the imposition of any burden of proof on the appellant. In this part of his Honour’s judgment, the judge was merely expressing a view about the possibility of the appellant again finding work in the future in the motor trade. Further, and in any event, his Honour’s assessment of the nature of the appellant’s experience as a motor mechanic as being short-lived, and limited, has not been shown to be in error.
Conclusion
The conclusion of the judge that the appellant did not satisfy the very considerable test was, as the appellant conceded, open. The appellant has not established specific error. If the appellant had established specific error then, accepting the appellant’s submission that this Court should determine the question of serious injury for itself, I would conclude that on the evidence the judge was plainly correct in determining that the appellant’s injury does not meet the very considerable test threshold.
For these reasons, I would dismiss the appeal.
OSBORN JA:
I would also dismiss the appeal for the reasons stated by Beach JA. His Honour, the trial judge, undertook a synthesis of the relevant circumstances as he found them and reached a conclusion that was open to him. I am not persuaded that his reasons are inadequate in any material respect.
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