Blake Hooley v Transport Accident Commission
[2019] VSCA 263
•19 November 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0031
| BLAKE HOOLEY | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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| JUDGES: | TATE, BEACH and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 November 2019 |
| DATE OF JUDGMENT: | 19 November 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 263 |
| JUDGMENT APPEALED FROM: | [2019] VCC 150 (Judge Millane) |
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ACCIDENT COMPENSATION – Appeal – Transport accident – Serious injury application – Upper limb injury – Permanent impairment – Whether consequences serious – Primary judge erred in application of Humphries v Poljak [1992] VR 129 – Whether reasons for judgment adequate – Consequence of injury at least ‘very considerable’ – Appeal allowed – Leave to commence common law proceeding granted – Transport Accident 1986, s 93.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A D B Ingram QC with Mr J Valiotis | Arnold, Thomas & Becker |
| For the Respondent | Mr S A O’Meara QC with Ms R L Kaye | Solicitor to Transport Accident Commission |
TATE JA
BEACH JA
OSBORN JA:
On 5 October 2013, the applicant was a passenger in a motor vehicle which collided with another vehicle at an intersection. As a result of the collision, the applicant suffered an injury involving the rupture of his left biceps tendon which subsequently required surgery.
By an originating motion filed in the County Court on 25 July 2018, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’), to commence a proceeding at common law claiming damages for the injury he sustained as a result of the collision.
The application was heard on 1 February 2019. At the hearing of the application, the applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Act (‘serious long-term impairment or loss of a body function’) and paragraph (b) of the definition (‘permanent serious disfigurement’). The body function relied upon by the applicant was the function of his left upper limb, and the permanent disfigurement was described as the ‘Popeye’ appearance of the applicant’s left bicep muscle and surgical scarring to the applicant’s left upper arm.
At the hearing of the application, the respondent did not dispute that the applicant suffered injury involving the rupture of the biceps tendon of his left upper arm resulting in a long-term impairment of his left upper limb and permanent disfigurement involving the ‘Popeye’ appearance of the muscle and scarring. The issue was whether either the impairment or the disfigurement could fairly be described as ‘serious’ within the meaning of s 93 of the Act.
On 21 February 2019, the judge dismissed the applicant’s application.[1] The applicant now seeks leave to appeal against the order dismissing his application. The application for leave to appeal is, however, limited to the judge’s dismissal of the application so far as it involved paragraph (a) of the definition of ‘serious injury’. The applicant’s proposed grounds of appeal are as follows:
1.The judge erred in the application of Humphries v Poljak [1992] 2 VR 129, 140 to the facts of the case.
2.The reasons for judgment do not disclose an adequate process of reasoning to demonstrate why upon the proper application of Humphries v Poljak [1992] 2 VR 129, 140, the applicant’s application was refused.
3.The judge having regard to the impairment consequences from the applicant’s injuries found to be present, failed to provide adequate reasons for determining that such impairment consequences were not ‘very considerable’ to the applicant when measured in terms of pecuniary loss and/or pain and suffering consequences to the applicant.
4.Upon the proper application of Humphries v Poljak [1992] 2 VR 129, 140, the judge ought to have determined that the applicant had established ‘serious injury’ within the meaning of s 93(4) of the Transport Accident Act 1986.
[1]Hooley v Transport Accident Commission [2019] VCC 150 (‘Reasons’).
Background
The applicant was born in 1991. At the time of the collision, he was 22 years of age. At the time of the hearing of his application, he was 27.
The applicant completed Year 11 of secondary school. The collision occurred when he was in his final year of a plumbing apprenticeship with a heating and cooling contractor.
At the time of the collision, the main activities of the applicant’s life involved the completion of his apprenticeship, going to the gym and socialising. The applicant’s evidence was that he was a ‘pretty good footballer’ when he was younger. He played football until the age of 19, but stopped so that he could complete his apprenticeship. It was his intention to return to football once he qualified as a plumber and was no longer an apprentice. His other hobbies included water skiing and water sports during summer. He described himself as ‘pretty good’ at skiing and water skiing, and that he water skied at Pykes Creek and Echuca whenever he went camping with his family.
As we have already observed, on 5 October 2013, the applicant was injured when another vehicle ‘T-boned’ the vehicle in which he was then travelling as a passenger. He was taken to the Royal Melbourne Hospital by ambulance, but was discharged that evening.
On 15 October 2013, some 10 days after the collision, the applicant was seen by Mr Russell Miller, an orthopaedic surgeon who specialised in shoulder surgery. Mr Miller diagnosed the applicant as suffering from a complete rupture of the biceps tendon in his left arm.
On 22 October 2013, the applicant underwent surgery to repair the tendon. The tendon was reconstructed using a LARS[2] synthetic ligament. In his report dated 18 August 2016, Mr Miller said that ‘good repair was achieved’. On review in November 2013, Mr Miller thought the applicant was ‘making satisfactory progress’.
[2]Ligament Advanced Reinforcement System.
The applicant was off work for about six months after the collision. His ability to work full-time was, however, compromised for some time.
At the time of the collision, the applicant was working for CDS Global Services. He completed his apprenticeship with them and stayed with them until September 2015. He then commenced work with his current employer, Casabene Plumbing and Drainage.
The applicant’s initial employment involved the installation of heating and cooling units. He described this employment as now being ‘very difficult for [him] as [he] would need to be able to hold, maintain and install heavy units, both overhead and at shoulder height’. He said that he did not believe that he could perform that job on his own on an unrestricted basis, and that his current employment was now more suitable for him.
The applicant’s evidence-in-chief on the application before the judge was given by way of two affidavits sworn 23 August 2018 and 29 January 2019. While the applicant was cross-examined on the application, his credit was not put in issue and his evidence was not relevantly disputed (either at first instance or in this Court).
In his first affidavit, the applicant deposed:
My current occupation as a plumber is mainly drainage and I spend most of my time in the excavator with the apprentices doing the more labour intensive digging jobs in the trenches. Unfortunately I can’t stay away from these tasks all the time and I have difficulty holding a shovel or using a pick for periods due to cramping.
The biggest physical issue for me is cramping. The muscle feels tight, it feels as though it’s going to pop and it feels as though it wobbles like it’s not steady. I have put a lot of gym work into it to build it up and make it strong, but it’s not getting any better and despite the fact that I am able to lift and carry items, the greater difficulty arises with forced pressure upon it and then it results in tightness and cramping, frequently. I try and work my way around it and get others to do the more difficult jobs.
I don’t take pain killers, I don’t have treatment, I just put up with it. I have given up the water skiing, I changed jobs and I never went back to football. I don’t suffer from constant pain, however I suffer from discomfort, pain and cramping when using my left arm, especially when undertaking jobs that require more force. I have been advised not to go back to footy in the event that I get tackled, it may rupture the bicep and it would be an unnecessary risk for me. This is as big a loss to me as the water skiing because my mates still play football and I am only 26 years of age.
In his second affidavit, the applicant deposed that his use of medication remained ‘rare’. He then said:
I would estimate that I have taken pain killing medication no more than 3–4 times for the past 6 months. I don’t like taking pain killers, I don’t have any prescriptions for pain killers and I just put up with the pain.
I have not gotten back into playing football and I have given up the water skiing after a few attempts at it. The difficulty that I have with my left sided grip and cramping is what prevents me from performing these activities properly and in the case of football, I am at risk of even greater injury due to the failed surgery and I am not prepared to risk it and also risk my work in the process.
I haven’t had any treatment to my arm and basically the biggest impact is felt whilst working. I have travelled, I have done skydiving and paragliding on separate occasions and I have tried to build up my strength at work and through the gym to give me better function following the operation.
…
I am 27 years of age and I am concerned about the prospect of further injury and if I was to return to unrestricted plumbing work, this would be a strong possibility so I believe I am doing more appropriate, alternative plumbing work within my capabilities and have done so for a few years now.
Working as a plumber with one significantly weaker arm puts me at a disadvantage if I was to lose my job. I am presently secure where I am and I work very hard and this is the reason why I am a crew leader. My worry is really that the fatigue and cramping continue to be quite intense and I’m uncertain within myself as to whether I can keep up the type of work that I have been doing for years down the track. It cramps when I grip firmly and it cramps, fatigues and becomes painful if drilling or jackhammering. Work that requires the use of both arms, such as shovelling or digging with another implement causes increased symptoms as well.
Loss of strength is obvious given the work that I do, however I am able to make a complete fist and I have done my best to stay employed and to add value with the work that I do and my ability to train and supervise my crew. It has now been a long time since I suffered injury and I had only just turned 22. The surgery did not fix the problem and I have been left with a dysfunctional left arm … .
Medical evidence
It was not in dispute at first instance (or in this Court) that the applicant’s ruptured left biceps tendon has resulted in him suffering a long-term impairment of his left upper limb. The issue was whether that impairment was ‘serious’ within the meaning of s 93 of the Act. The up-to-date medical evidence at the time of the hearing before the judge was contained in reports written by Mr Ash Chehata and Dr Graeme Doig.
Mr Chehata is an orthopaedic upper limb surgeon. He examined the applicant on 9 January 2018 at the request of the applicant’s solicitors. In his report of that examination, he expressed the following findings and opinions:
[H]e remains symptomatic with a rupture of the long head of biceps. The LARS ligament is clearly palpable, which is a shoelace-style ligament that can be easily felt and is clearly ruptured, causing the ongoing classic fatigue-style pain.
His presentation has stabilised, and there has been no improvement in strength, as would be expected in a young individual with a ruptured long head of biceps.
…
He has suffered a long head of biceps rupture that has failed the reconstruction, utilising a long anatomical repair, as well as a LARS ligament through an open approach. He remains symptomatic, secondary to the long head of biceps rupture.
…
His ongoing symptoms remain, fatigue-style pain and cramping, all of which are a classic presentation to the ongoing biceps rupture. These symptoms are permanent and are all related to the motor vehicle accident.
…
With regard to his employment and the effect on his livelihood, this has had a fundamental change, compromising his ability to perform heating and cooling [work] as a plumber, and [is] now solely capable of only performing excavating work, which limits his ultimate long term job prospects.
Dr Doig is a general orthopaedic and trauma surgeon who examined the applicant at the request of the respondent on 11 December 2018. In his report following that examination, Dr Doig expressed the following findings and opinions:
The graft is now easily palpable and there was a suggestion of a Popeye sign consistent with graft and repair failure. Mr Hooley had obvious weakness on restricted supination. He had good power in flexion. There were no restrictions in movement at any of the joints of the upper limb and there was no neurological deficit.
…
Mr Hooley suffered a rupture of the proximal long head of biceps tendon requiring surgical repair using an artificial graft. Mr Hooley continues to experience symptoms of weakness and cramping in the left arm.
…
Mr Hooley’s prognosis is good to excellent in that he is still performing pre-injury duties as a plumber, albeit he is carrying out more machine operating activities these days.
…
Mr Hooley does not experience enough pain to justify the use of analgesics.
…
Mr Hooley simply experiences cramping in his upper arm while performing repetitive, heavy tasks, although at this stage he is able to work through the pain. He is currently performing less physical work as alluded to above as a machine operator.
The judge’s reasons
After setting out some introductory matters, the judge referred to Humphries v Poljak,[3] citing it, at Reasons [7], for the proposition:
The seriousness of an impairment or disfigurement is determined by whether the pain and suffering and loss of enjoyment of life consequence, including any pecuniary disadvantage consequence, ‘when judged by comparison with other cases in the range of possible impairments or losses, (can) be fairly described at least as “very considerable” and certainly more than “significant” or “marked”’.
[3][1992] 2 VR 129 (‘Humphries v Poljak’).
After setting out some of the medical evidence, the judge said that the doctors had ‘generally accepted’, as she had, that the applicant:
likely suffered from a range of symptoms secondary to and likely long-term consequences of the left arm injury. The symptoms involved cramping, muscle fatigue and loss of strength in association with the use of tools, particularly the range of tools and equipment specific to the work of a plumber.[4]
[4]Reasons [20].
Under the heading ‘Pre-injury as compared with post-injury lifestyle and activities’, the judge:
·referred to the applicant’s evidence of his reduced capacity to lift weights — his estimate being that there was a 10 to 15 kilogram difference in lifting capacity between his left and right arm;[5] and
·referred to the applicant’s description of having to give up water skiing as ‘a big loss’.[6]
[5]Ibid [25].
[6]Ibid [30].
Under the heading ‘Treatment, medication and level and frequency of pain’, the judge:
·referred to the applicant’s evidence that working with a shovel or jackhammering were activities he avoided because they involved the use of force, and his evidence that:
The cramping becomes intense and I believe that over the course of the last six months, I have suffered from increased fatigue and cramping in my left arm and bicep. The pain with the use of my arm generally feels the same, I just feel that my arm cramps and fatigues sooner than it used to and this is a concern for me. I am able to control it by asking other members of my crew to do the labour-intensive work.[7]
·referred to the applicant’s evidence that he did not suffer from constant pain, that he suffered from pain and cramping when undertaking jobs requiring more forceful use of his left arm and that he estimated having taken painkilling medication no more than three to four times in the past six months (he preferring to ‘just put up with the pain’);[8]
·said that she was not satisfied that:
rather than being an indicator of the frequency and intensity of [the applicant’s] experience of activity-related pain, stoicism coupled with a professional disinclination to use medication adequately explained [the applicant’s] admittedly very limited use of medication.[9]
·referred to a passage in a medical report written in August 2017 to the effect that the applicant’s current status was that contact sports were ‘out of the question’;[10] and
·said that:
As a general rule, the frequency and the degree to which [the applicant] experienced pain/discomfort/aching had not been such as to require over the counter medications or to prevent [the applicant] from completing his apprenticeship or fulfilling the requirements of his current job.[11]
[7]Ibid [34].
[8]Ibid [36].
[9]Ibid [37].
[10]Ibid [41].
[11]Ibid [43].
Under the heading ‘Pecuniary disadvantage’, the judge said:
My interpretation of the pecuniary disadvantage consequence, as articulated both in the materials and in the course of the hearing, was that due to a reduction in his manual handling capacity, the plaintiff had suffered a loss of flexibility in the kinds of work he could perform should he lose or change his employment in the future.
For instance, I have accepted that tasks performed by a plumber generally require the use of both hands. The plaintiff described left arm symptoms that involved cramping, muscle fatigue and loss of strength when using tools such as drills, monkey wrenches, shovels or a jackhammer or when performing work calling for a significant increase in grip strength or force.
I have accepted that in this case, injury-related loss of strength and cramping, which mainly impacted his ability to grip or hold or lift weights, has compromised the plaintiff’s manual handling capacity. His previous job when he was apprenticed to the heating and cooling contractor was unsuitable in the longer term because, as the plaintiff deposed, ‘it would be very difficult’ for him to install heating and cooling units, where this would have required him to hold heavy heating and cooling units both at shoulder height and overhead.
As mentioned, the plaintiff’s current employment as a plumber mainly involves working in drainage, with most of his time spent driving an excavator. He drives to the employer’s premises at Truganina by 6.30am. He then drives the employer’s manual tray truck to, and at the end of the working day at about 3pm from, various locations that can include Ballarat, Cranbourne, Geelong or closer.
The plaintiff conceded several matters in his oral evidence, including that since changing jobs in 2015 he had received substantial increases in salary; that he was a trusted and highly valued employee; and that he drove the employer’s manual truck without any physical problems.
The plaintiff’s position as crew leader had apparently allowed him to delegate more labour-intensive jobs to his crew, although the plaintiff indicated, and I have accepted, that he still found himself performing tasks that gave rise to symptoms when, for instance, he was required to demonstrate jobs to his crew members.
Some doctors appear to have accepted that use of the plaintiff’s left arm in more forceful activities may also generate some degree of pain/discomfort/aching. Doctors have either recommended, or by implication have accepted the plaintiff’s account of, restrictions that continue to apply to the plaintiff’s employment.[12]
[12]Ibid [45]–[51] (footnotes omitted).
The judge then recorded the respondent’s submissions as follows:
As I understood the submission made on behalf of the TAC, despite injury-related restrictions on manual handling, less weight should be afforded the pecuniary disadvantage component of the claim made under paragraph (a) of the definition, given that: on completion of his apprenticeship the plaintiff had successfully transitioned to a different area of employment in plumbing, which included driving his employer’s manual vehicle long distances to and from work sites without any problems; he was highly valued by the current employer; he had taken on increased responsibilities; and in the several years since changing to drainage plumbing work the plaintiff had received significant salary increases.
The TAC further submitted, and I have accepted, that the evidence that the plaintiff and his partner have borrowed money and were financially committed to construction of a new home, was evidence of the level of confidence this plaintiff had in his future.
In this case, so the submission went, the loss of an opportunity to work across the full spectrum of plumbing jobs and any risk to employment in the future was not of itself significant.[13]
[13]Ibid [52]–[54] (footnotes omitted).
At Reasons [55]–[56], the judge expressed her conclusions in relation to pecuniary disadvantage as follows:
In the circumstances described, when evaluating the consequences of the left arm injury I was not satisfied that the pecuniary disadvantage consequence of that injury [itself][14] amounted to a serious injury under the Act.
I nonetheless made some allowance for a loss of flexibility in the kinds of work the plaintiff could perform should he lose or change his employment in the future due to a reduction in his manual handling capacity.[15]
[14]In oral argument, the respondent contended that the word ‘itself’ should be inserted here because of a reference made by the judge to a passage at [21] of this Court’s decision in Mazevska v Transport Accident Commission [2014] VSCA 178. For present purposes, we are prepared to accept that contention.
[15]Citation omitted.
Under the heading ‘Conclusion’, at Reasons [57]–[59], the judge said:
At a comparatively young age, the plaintiff has a long-term injury to his left arm which has reduced his manual handling capacity. The injury as such likely causes a level of pain/discomfort/aching from time to time particularly in the context of activity that requires forceful gripping with the left hand and arm. There may also be some tenderness to touch at the site of the scar.
The impairment consequences of the injury to the left arm have been summarised above. The Act requires the Court to compare the pain and suffering consequence, of which pecuniary disadvantage and a plaintiff’s mental response to the physical injury are components, with other cases in the range of possible impairments or losses of a body function to determine whether the consequences are fairly described as more than significant or marked and at least as very considerable.
In my view, the pain and suffering and loss of enjoyment of life consequence of the left arm injury cannot reasonably be viewed as ‘certainly more than significant or marked’ or ‘at least as “very considerable”’, when the evidence in the present case is contrasted with evidence in other cases in the range of possible impairments or losses of a body function.
The judge then said that two earlier cases ‘help illustrate the last-mentioned point’.[16] The judge then referred to Dwyer v Calco Timbers Pty Ltd [No 2][17] and Haden Engineering Pty Ltd v McKinnon.[18]After setting out passages from Dwyer and Haden Engineering, the judge said:
Having made the comparison required by the Act, I formed the view that in the present case, on balance, the pain and suffering and loss of enjoyment of life consequence was not indicative of a serious injury for the purpose of the Act.[19]
[16]Ibid [60].
[17][2008] VSCA 260 (‘Dwyer’).
[18](2010) 31 VR 1 (‘Haden Engineering’).
[19]Reasons [64].
The parties’ contentions
The applicant’s primary contention was that the judge erred in her application of Humphries v Poljak, by failing to determine whether the pain and suffering consequences combined with any pecuniary disadvantage consequences satisfied what has been described as ‘the very considerable test’.[20]
[20]See Humphries v Poljak [1992] 2 VR 129, 140, where the majority said:
In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?
See also Demmler v Transport Accident Commission [2018] VSCA 284 [56].
The applicant’s alternative contentions were that, in various respects, the judge’s reasons were deficient or inadequate.
In response, the respondent contended that there was no basis for the suggestion that the judge failed to correctly apply Humphries v Poljak. The respondent submitted that the judge correctly identified the test and then wrote reasons that were responsive to the applicant’s case — dealing with the relevant consequences to the applicant of his injury under headings that picked up the applicant’s recreational activities, his treatment, medication and level and frequency of pain, and issues of pecuniary disadvantage. The respondent submitted that all three relevant areas claimed by the applicant to have been affected were dealt with by the judge as required by Humphries v Poljak.
As to the judge’s reasons, the respondent submitted that the reasons were clear, considered and detailed. Moreover, the reasons disclosed the judge’s path of reasoning. The respondent characterised the applicant’s reasons complaints as being that the judge ‘did not adopt a reasoning process that amounted to a wholesale acceptance of the applicant’s case for serious injury’.
As to the disposition of the application for leave to appeal and appeal, both parties agreed that in the event that this Court found that one or more of the applicant’s grounds of appeal had substance then we should, rather than remitting the proceeding for rehearing, determine the issue of whether the evidence established that the applicant’s injury was a serious injury within the meaning of the Act.
Did the judge misapply Humphries v Poljak?
When considering the issue of seriousness, the judge was required to determine whether the consequences of the applicant’s left upper limb injury were serious to him. As was said by the majority in Humphries v Poljak:
To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering.[21]
[21]Humphries v Poljak [1992] 2 VR 129, 140 (emphasis added).
At Reasons [7] the judge referred to the seriousness of an impairment being determined ‘by whether the pain and suffering and loss of enjoyment of life consequence, including any pecuniary disadvantage consequence’,[22] was serious. Immediately, we note the different language used by the judge from the language used by the majority in Humphries v Poljak.
[22]Emphasis added.
The inclusion of ‘any pecuniary disadvantage consequence’ in ‘the pain and suffering and loss of enjoyment of life consequence’ carries with it a risk of failing to take proper regard of the extent of a pecuniary loss consequence. Actual or potential pecuniary loss will ordinarily be, or have, a consequence that is wider than might be described under the rubric of ‘the pain and suffering and loss of enjoyment of life consequence’. The judge’s description at Reasons [7] would not, however, without more, justify overturning the order sought to be impugned.
The respondent was correct to submit that, in three sections of her reasons for judgment (under the headings ‘Pre-injury as compared to post-injury lifestyle and activities’, ‘Treatment, medication and level and frequency of pain’ and ‘Pecuniary disadvantage’), the judge considered the applicant’s case and the evidence to which we have referred. At the end of that analysis (Reasons [55]), however, the judge concluded as a separate matter that the applicant’s pecuniary disadvantage consequence did not amount to a serious injury under the Act. It was then that the judge (under the heading ‘Conclusion’) came to express her final conclusion on that part of the applicant’s application that relied upon paragraph (a) of the definition of ‘serious injury’. A critical sentence in her Honour’s reasoning is the second sentence of Reasons [58], where her Honour uses language very similar to that used at Reasons [7], as follows:
The Act requires the Court to compare the pain and suffering consequence, of which pecuniary disadvantage and a plaintiff’s mental response to the physical injury are components, with other cases … .
Having made this statement, and then after referring to Dwyer and HadenEngineering, the judge expressed her ultimate conclusion at Reasons [64] that ‘on balance, the pain and suffering and loss of enjoyment of life consequence was not indicative of a serious injury’.
In our view, when one examines the language of Reasons [7], [55], [58] and [64], in the context of the balance of her Honour’s reasons for judgment, it is tolerably clear that the judge has dealt separately with the issues of pecuniary disadvantage consequences and pain and suffering consequences — rather than, as Humphries v Poljak requires, those consequences in combination. As this Court observed in Demmler,[23] an application under s 93(4)(d) of the Act is to be contrasted with applications made under s 134AB(16)(b) of the Accident Compensation Act 1985 (and its equivalent, s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013) where pain and suffering consequences are required to be considered separately from loss of earning capacity consequences.[24]
[23][2018] VSCA 284 [56].
[24]See ss 134AB(17) and (38)(b) of the Accident Compensation Act 1985, and their corresponding provisions in the Workplace Injury Rehabilitation and Compensation Act 2013, ss 335(3) and 325(2)(b).
Moreover, the reference to pecuniary disadvantage being a component of the pain and suffering consequence is redolent of the language that used to be used in claims brought by injured workers under s 135 of the Accident Compensation Act[25] where a worker was (with limited exception) not permitted to recover any damages in respect of pecuniary loss. In those cases, it was often put that a particular injured worker’s pain and suffering or loss of enjoyment of life was made worse by his inability to earn income in employment he used to enjoy performing. As we have already said, however, that consequence is a significantly more limited one than a consequence which takes into account the actual loss of earning capacity suffered by the worker.
[25]As it was initially enacted in 1985.
It follows from what we have said that, in our view, ground 1 has been made out. We should say for the sake of completeness that an additional argument made by the applicant concerning the judge’s use of the word consequence in the singular rather than consequences in the plural should be rejected. It is sufficient, in rejecting that argument, to note that the majority in Humphries v Poljak also used the word consequence in the singular when they said:
In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?[26]
[26][1992] 2 VR 129, 140.
Additionally, we would also uphold the applicant’s complaint that the judge’s reasons were inadequate — but only on the limited basis that if we were unpersuaded that her Honour had misapplied Humphries v Poljak then we would have concluded that her reasons did not show that she had in fact applied Humphries v Poljak correctly by considering whether the combination of the pain and suffering consequences and pecuniary disadvantage consequences were serious within the meaning of the Act. Apart from that matter, we accept that the judge’s reasons more than adequately disclosed the path of her reasoning.
Having determined that the judge’s conclusion that the applicant’s injury was not a serious injury was affected by error, we turn to consider whether in fact the applicant’s injury was a serious injury.
Was the applicant’s injury a ‘serious injury’?
In argument in this Court, senior counsel for the respondent helpfully encapsulated the reasons why the respondent contends that the applicant’s injury is not a serious injury. Senior counsel said:
He is a young man, he had surgical treatment of his bicep injury, he recovered from that incompletely. He returned to work in his pre-injury employment, he completed his apprenticeship in that employment and continued to do heavy work in that employment. He changed his employment. There wasn't, on the evidence, any difficulty with him changing his employment, it wasn't said that he had to fight off other better qualified candidates. He took that employment, he got it and he has done very well in it. He is now earning twice as much and he is supervising other people at a very young age. He is a leader and he is respected by his employer. That was his work.
So, he has got an advantage that many people don't have, that is, he is obviously personable and obviously capable of leading at a very young age. One would think that affects the future.
There was no evidence led by the plaintiff here of an occupational variety talking about the nature of plumbing work generally and in the future. He wasn't like Mr Glover where he was restricted to particular work, on the evidence or at all. He could do that work and he continued to do it full time without days off, on the evidence.
He could lift and carry, although repetitive lifting and carrying was the problem. He did demonstrations, as he confirmed in re-examination, to his apprentices in order to show them what to do. He drove all over Melbourne and, for that matter, Geelong, Bendigo and everywhere else, doing his work every day. There was no suggestion, as I said, that his present employment was unusual in any way and he adds value in that employment.
He couldn't play football, but, on the other hand, he had not played football before and he wasn't playing football afterwards because he was continuing to work on Saturdays. It is not like he is standing on the boundary line and pining while his mates are playing.
He couldn't do water skiing, but your Honours will see in the cross-examination that had somewhat receded because of his whole family moving on from that particular thing, but her Honour made allowance for that particular loss.
…
[H]e didn't give evidence of constant pain; in fact, he gave evidence he did not have constant pain. There is no incidence of strong or shooting pain, no problems with hot or cold, not much in the way of continued ache, not much in the way of — rare, if any, painkillers. The highest his evidence got and her Honour accepted that he had taken over the counter painkillers maybe half a dozen times in the last six months. There was no need for treatment and, as I said, no need for medication.
There are no limitations at home, no limitations with cognition, no limitations in social life, no limitations in domestic and no limitations in travel.
When one looks at what you retain as opposed to what you have lost, it was, in our submission, not a serious injury.
The respondent’s submissions are not without force. While we regard the issue of ‘seriousness’, within the meaning of the Act, in this case as borderline, ultimately we have concluded that the applicant meets the ‘very considerable test’. He is a young man who suffered a permanent and very significant injury to his left arm at a time when his whole working life was effectively ahead of him. He has already been precluded from engaging in significant aspects of work for which he was otherwise reasonably suited. That preclusion is ongoing and will persist in the decades to come. It is not to the point to say that he is now earning more than he was at the time he was injured or that he presently has a position which permits him to delegate to others tasks that he himself cannot do without restriction.
The consequences of the applicant’s left arm injury are very significant so far as his enjoyment of life is concerned. He has been precluded from the prospect of returning to playing football, which he loved. Other physical activities from which he derived considerable enjoyment are now more limited (including the reduction in his capacity to lift weights and engage in gym work).
Moreover, even though the applicant’s pain and discomfort levels may not be thought to be great, they exist as a relevant consequence that the Act requires must also be taken into account.
Additionally, to the extent that the respondent submitted at first instance, or in this Court, that the applicant’s return to work and pre-accident interests, and his commitment to getting on with his life, told against him on the issue of seriousness,[27] it is as well to remember the words of Nettle JA in Dwyer,[28] that ‘it would be unfortunate, and in my view wrong-headed, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury’.
[27]As mentioned at [26] above, at Reasons [53], the judge set out a submission by the respondent, which she said that she accepted, as follows:
The TAC further submitted, and I have accepted, that the evidence that the plaintiff and his partner have borrowed money and were financially committed to construction of a new home, was evidence of the level of confidence this plaintiff had in his future.
[28][2008] VSCA 260 [3].
The pecuniary disadvantage consequence of having one’s chosen field of employment permanently limited from a very young age is, as we have said, a very significant consequence.[29] It includes but goes well beyond being a pain and suffering or loss of enjoyment of life consequence.
[29]Cf Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594.
As we have already said, the age at which the applicant suffered his permanent injury is also a significant matter. As this Court said in Stijepic v One Force Group Australia Pty Ltd,[30] when judging the consequences for a particular applicant by comparison with other cases, it is relevant to look at the likely period for which those consequences will be experienced. Here, the applicant will endure a restriction on the range of work he can perform for, perhaps, 45 years and this long-term loss of earning capacity must be recognised as a loss in significant dollar terms. All things being equal, impairment consequences which an applicant will have to put up with for decades might well be judged more serious than the same consequences which another applicant may have to put up with for a much shorter period of time.[31]
[30][2009] VSCA 181 [43] (‘Stijepic’).
[31]Ibid. See further the discussion at [74]–[78] of Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26, a case that dealt with the issue of an applicant of advanced years, and in which it was said that the remarks in Stijepic should not be read as ‘supporting the existence of a presumption’ — a matter about which there could be no debate. See also Davidson v Transport Accident Commission [2015] VSCA 12 [50].
In all the circumstances, although, as we have mentioned, we consider this case to be borderline, we are persuaded that when judged by comparison with other cases in the range of possible impairments or losses, the applicant’s upper left limb injury can be fairly described at least as very considerable and certainly more than significant or marked.
Conclusion
We will grant leave to appeal and allow the appeal. We will set aside the orders made in the County Court and in lieu thereof grant leave to the applicant to commence a proceeding for common law damages in relation to the injury he sustained as a result of the collision on 5 October 2013.
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