Ellis Management Services Pty Ltd v Taylor
[2013] VSCA 326
•22 November 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2013 0006
| ELLIS MANAGEMENT SERVICES PTY LTD | Appellant |
| v | |
| ERIC ROSS TAYLOR | Respondent |
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| JUDGES | OSBORN and BEACH JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 19 November 2013 |
| DATE OF JUDGMENT | 22 November 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 326 |
| JUDGMENT APPEALED FROM | Taylor v Ellis Management Services Pty Ltd [2012] VCC 1864 (Judge Parrish) |
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ACCIDENT COMPENSATION - Serious injury application under s 134AB(16)(b) of the Accident Compensation Act 1985 for leave to commence proceeding for pain and suffering damages only - Application granted - Pain and suffering consequences - Loss of earning capacity consequences - Whether judge below impermissibly relied upon loss of earning capacity consequences in allowing application - Whether conclusion that injury met the very considerable threshold test manifestly erroneous - Adequacy of reasons - Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J Gorton SC with Ms M Norton | Wisewould Mahony |
| For the Respondent | Mr C Harrison SC with Mr A Macnab | Slater & Gordon |
THE COURT:
Introduction
Eric Ross Taylor, the respondent, made application under s 134AB(16)(b) of the Accident Compensation Act 1985 (‘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 appellant, Ellis Management Services Pty Ltd.[1] The application was heard in the County Court, sitting at Geelong, by Judge Parrish on 22, 26 and 28 November 2012.
[1]Initially, the respondent also sought leave to commence a proceeding against John Holland Rail Pty Ltd, but the application against this company was discontinued on 29 May 2012, some six months prior to the commencement of the hearing below.
The respondent relied upon a right arm injury which he alleged he sustained as a result of using a ‘Vibra’ tool to compact screenings beneath sleepers on 25 February 2005. The respondent 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.
On the hearing of the application, the respondent, the respondent’s partner, Fay Coburn Steel, and one of the respondent’s treating general practitioners, Dr Hassan, gave evidence. Each was cross-examined and re-examined. Additionally, various medical reports, diagnostic reports, certificates, letters, video footage of the plaintiff and other documents were tendered.[2]
[2]The material tendered is identified in Annexure A to the reasons for judgment of the judge below.
On 20 December 2012, Judge Parrish gave judgment in favour of the respondent. His Honour ordered:
Leave is granted to the plaintiff pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (Vic) for pain and suffering damages in relation to a right elbow injury suffered on or about 25 February 2005.
The grounds of appeal
In its notice of appeal, the appellant relies upon the following grounds:
1.In circumstances where the respondent was seeking leave in accordance with s 134AB(17) of the Accident Compensation Act 1985 to commence proceedings for the recovery of damages for pain and suffering but was not seeking leave to recover damages for loss of earning capacity, the learned trial judge erred, when assessing whether leave should be so granted, by relying on the extent to which the range of jobs potentially open to the respondent had been reduced.
2.On a proper evaluation of the evidence the respondent’s injury did not meet the test for seriousness by reference to consequences with respect to pain and suffering, and the learned trial judge’s conclusion that it did was manifestly erroneous.
3.Alternatively to 1, the learned trial judge erred by failing to have proper regard to the evidence to the effect that the respondent was working, had retained a capacity to earn as much as he had previously earned, and had a history of intermittent past employment.
4.The learned trial judge failed to give sufficient reasons or to make sufficient findings as to the pain and suffering consequences to the respondent to justify his conclusion that the injury met the test for seriousness.
Background facts
A summary of the proceedings, the facts and the issues in this appeal has been prepared and filed by the appellant. The following outline is drawn from that document.
The respondent was born on 10 September 1968 in Whyalla, South Australia. He left school after completing year 7 at Geelong East Technical School. From 1985 onwards, he worked in a range of manual roles, including as a machine operator at Ford Motor Company, as a garden labourer for the Shire of Corio, and as a textile worker for LMB Williams. He had significant periods without employment.
In 2005 the respondent was working for the appellant, installing a new railway line at a Docklands site operated by John Holland. He said that on 25 February 2005 he developed aching in his right arm while using a ‘Vibra’ tool to compact screening beneath sleepers.
On 28 February 2005 the respondent saw the general practitioner Dr Haque. Dr Haque gave him a WorkCover certificate for time off work and arranged for nerve conduction studies. The nerve conductions studies confirmed a right carpal tunnel syndrome, a very mild left carpal tunnel syndrome, and a mild prolongation of the right ulnar sensory potential. The respondent filed a WorkCover claim, which was accepted.
On 19 April 2005 the respondent saw the orthopaedic surgeon Mr Page on referral from Dr Haque. Mr Page diagnosed an element of right ulnar neuritis and a probable element of forearm pump syndrome. On review on 31 May 2005, Mr Page thought it appropriate that the respondent return to light duties and increase those in a graduated fashion. Dr Haque then certified him fit for duties not lifting more than 2 kg. In June 2005 the respondent returned to work as a flagman. His employment was terminated after about two weeks.
On 6 March 2006 the respondent had an ultrasound of his right elbow. The conclusion was of a minor healed injury at the common extensor tendon.
On 14 May 2006 the respondent was seen by another general practitioner at Dr Haque’s clinic, Dr Hassan, who referred him to the neurologist Dr Balla. Dr Balla disagreed with the diagnosis of carpal tunnel syndrome or right ulnar nerve injury and thought the respondent had a right tennis elbow (although no report from Dr Balla was tendered). On 27 August 2006 Dr Hassan gave the respondent a local steroid injection.
On 7 November 2006 the respondent was re-assessed by Mr Page. After arranging a plain x-ray on 13 January 2007 that revealed no bone or joint abnormality, Mr Page performed a right ulnar neurolysis on 15 January 2007. On 7 June 2007 Mr Page referred the respondent for an MRI of his right elbow. The MRI found findings consistent with minor tendinosis.
In November 2007 the respondent developed strong neck pain while helping a friend with some cornice work. He went to the emergency department at Geelong Hospital and then saw Dr Hassan on 3 November 2007. Dr Hassan arranged for a CT scan of his neck that was performed on 7 November 2007. The CT scan revealed a significant right posterior disc protrusion at C5-6.
In December 2007 the respondent obtained work with Altus as a traffic controller. He was performing this or similar work up to and at the time of the hearing below.
On 29 April 2008 the respondent was reviewed by Mr Page for the last time.
The respondent continued to be seen by Dr Hassan and to be certified as fit for light duties.
On 28 June 2009 Dr Hassan referred the respondent to a neurosurgeon at Sunshine hospital for surgical intervention in relation to the C5-6 disc prolapse. The respondent had a further MRI of his cervical spine on 29 November 2010, and an updated CT scan of his cervical spine on 14 June 2011. The MRI revealed a disc protrusion at C5-6 and narrowed exit foramina, and the CT revealed degenerative changes at C5-6. The respondent was reviewed at Western Health on 2 March 2011 by the neurosurgical fellow, Mr Nair, who noted no complaints of radicular pain.
The judge’s reasons
The judge commenced his reasons by identifying the issues and relevant legal principles. His Honour’s summary of these principles was not the subject of any criticism and it is pertinent to note that from the outset of his reasons he demonstrated a clear awareness that the leave sought was to bring proceedings for ‘pain and suffering damages’ only within the meaning of s 134AB(37) of the Act and not for loss of earning capacity.
His Honour said in part:
In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)’the injury’ was suffered arising out of or in the course of, or due to the nature of his employment, with the first defendant on or after 20 October 1999;[3]
(b)‘the injury’, with its resulting impairment, must be ’permanent’ – that is, permanent in the sense that it is ‘likely to last for the foreseeable future’;[4]
(c)’the consequences’ to the plaintiff of ’the injury’ in relation to ’pain and suffering’ must be ‘serious’ – that is, ’when judged by comparison with other cases in the range of possible impairments … [can be] fairly described as being more than significant or marked, and as being at least very considerable’.[5]
The test for ’serious’ is sometimes referred to as the ’narrative test’.[6]
[3]See s 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, [11].
[4]See Barwon Spinners (op cit), [33].
[5]See s 134AB(38)(b) and (c) of the Act.
[6]Taylor v Ellis Management Services Pty Ltd [2012] VCC 1864 (‘Reasons’) [7] (citations in original).
After setting out the relevant legal principles, his Honour then summarised the evidence of the plaintiff,[7] Ms Steel[8] and the medical evidence.[9] In referring to the evidence, his Honour noted that the plaintiff gave the following evidence:
[7]Reasons [10]-[16].
[8]Reasons [17]-[20].
[9]Reasons [21]-[101].
· The plaintiff is unable to go back to the type of work he was doing at the time he suffered his injury to his right arm.
· He has constant pain in his elbow, which extends from the elbow down to the wrist and up to the right shoulder. At its best, it is 6 to 7 out of 10 and at its worst, 10 out of 10.
· Activity makes the pain worse and if he has to lift signs at work, he notices an increase in pain.
· His sleep is affected because of the injury and he has ‘real trouble’ finding a comfortable position and avoiding rolling onto his right arm, which causes him to wake.
· Whereas before the injury he was very active around the house, he is now limited in what he can do and this has caused friction between him and his partner.
· He used to really like working on cars by himself and with mates and although he still tries to do a bit by working within his limits, it is nothing like what he was able to do prior to the injury.
· Activities that involve lifting, pushing and pulling with his right arm cause him to have the worst pain.
· He continues to have difficulties using his right arm repetitively or over prolonged periods, although it still aches even when not being used.
· He believes he would never have a capacity to return to unrestricted manual work and he is not suited to undertake office-type working, given his reading and writing skills are very poor.
· As at November 2012, there were just ‘occasional niggles’ with the plaintiff’s neck, and he copes with it quite well.
In summarising the evidence of the plaintiff’s partner, Ms Steel, his Honour noted that Ms Steel gave the following evidence:
· Since losing his work in the rail industry, Ms Steel had lost count of the number of jobs that the respondent had applied for, but knows that his lack of reading and writing skills impacted on the sort of work he could apply for.
· Since the injury, Ms Steel had seen the respondent experience constant pain in his right elbow and arm which is made much worse with activity.
His Honour summarised the medical evidence in considerable detail.[10] The organic diagnoses proffered by the medical experts included carpal tunnel syndrome,[11] forearm pump syndrome,[12] ulnar neuritis,[13] and lateral epicondylitis.[14] Additionally, as his Honour noted, two doctors gave a diagnosis of pain syndrome.[15] As to permanency, it is to be noted that some experts considered the organic injury to be permanent, while others were of a view that it had resolved or was improving.[16]
[10]Reasons [21]-[101].
[11]Dr Haque, Mr Page and Mr Russell.
[12]Dr Haque and Mr Page.
[13]Dr Haque, Mr Page, Dr Hassan, Mr Brearley, Dr Davison, Mr Russell and Mr Simm.
[14]Dr Balla, Mr Henderson and Dr Davison.
[15]Mr Simm and Dr Wood.
[16]See further the summary of proceedings facts and issues prepared and filed by the appellant.
Under the heading ‘Analysis of the Evidence’, his Honour said:
The plaintiff is a forty-four-year-old man who is right arm dominant. I find that the plaintiff suffered a right elbow injury arising out of or in the course of his employment with the first defendant on or about 25 February 2005. So much is not disputed by the … defendant.
The issues raised by the … defendant are whether or not the compensable right elbow injury has resulted in permanent impairment and organic consequences which satisfy the requirements of the narrative test. In addition, the defendant submit[s] that on the evidence – particularly that of Dr Hassan properly construed – any pain and/or restrictions that the plaintiff has are intertwined or entangled with a separate neck injury suffered by the plaintiff in November 2007.
It is perhaps apposite to make some comments about the evidence of the plaintiff. There was no issue that the plaintiff only completed Year 7 schooling, after which he travelled around Australia with his father, performing unskilled work. Moreover, his employment history as detailed in his first affidavit reveals that on occasion there were substantial periods between jobs. There was no dispute that as a result of his limited education, the plaintiff had difficulties with writing, reading and even arithmetic, as demonstrated in the diaries produced by the plaintiff.[17]
[17]See Exhibit F
The plaintiff was cross-examined at length by Senior Counsel for the … defendant. On occasion, there were inconsistencies between his viva voce evidence and alleged histories given to doctors and/or the contents of his affidavit material.
Notwithstanding the foregoing, I gained the impression that at all times the plaintiff was attempting to give honest and accurate answers to the questions posed to him. I ultimately came to the view that, to the extent that there were inconsistencies in his evidence, such were more likely to be explained by his lack of sophistication, his degree of literacy, and the effluxion of time. It is also clear from the evidence that the plaintiff has had difficulties with alcohol, both prior to the injury and after the injury. However, I do note that he is now receiving treatment for that condition and his alcohol intake is far more moderate.
I also note that the medical examiners on behalf of the … defendant variously noted him to present ’in a genuine and co-operative way’ (see report of Mr Simm dated 26 June 2012); ’a pleasant and co-operative historian‘ (see report of Dr G Davison dated 8 September 2011); ‘a very genuine, very reliable witness’ (see report of Mr Henderson dated 7 November 2005) and presented ’his symptoms in a straightforward manner with no particular signs of embellishment‘ (see report of Mr I R Jones dated 3 August 2012). Furthermore, it is to be noted that Mr Jones, Mr Kevin Siu, and to a large extent, Dr Davison, considered that the plaintiff presented with no evidence of a functional component.
Throughout most of the consultations with treating doctors and the various medico-legal specialists retained by either side, the plaintiff largely gave a consistent history that he experienced exquisite pain in the elbow when it was knocked, exposed to vibrations through tools (even a Whipper Snipper) or his right arm was exposed to lifting or repetitive use. The plaintiff accepted that absent these events, although he experiences some pain, it is not that dramatic, and that he can bend his elbow and, as far as he can tell, has lost no strength in his right arm.
I also note that recent examinations of the cervical spine have revealed the following:
(a)’Unremarkable with a full range of movement demonstrated‘ – as per Dr Davison in his last examination on 12 November 2012;
(b)’Rapid and normal movements of the neck without pain’ – as per report of Mr Simm dated 25 October 2012;
(c)’Clinical assessment of the patient’s cervical spine was normal with a full range of movement possible’ – as per report of Mr I Jones dated 3 August 2012.
There is a wide range of medical opinions as to the current status of the plaintiff. Whereas Mr Simm and Dr Davison seemingly accept that the plaintiff is genuine in his presentation, they cannot find any organic basis for the claimed symptoms in the right elbow area. Of course, the treating general practitioner, Dr Hassan, the medico-legal specialists, Mr Brearley and Mr I Jones, all accept that there are signs and symptoms of residual ulnar dysfunction and, according to Mr Jones, the plaintiff’s complaints ’are consistent with some residual irritability in the distribution of the ulnar nerve‘ at the right elbow.[18]
[18]Reasons [102]-[110].
Having set out this analysis, his Honour then synthesized the evidence and expressed his findings as follows:
After a consideration of all of the evidence, I am satisfied as a matter of probability, that the plaintiff suffers ongoing ulnar dysfunction at the right elbow as a consequence of the compensable injury on or about 25 February 2005. Furthermore, I am of the opinion that given the effluxion of time and the consistency of complaints, such condition has resulted in permanent impairment with organic consequences. Such consequences give rise to a certain degree of modest pain frequently, but severe pain when the right elbow is knocked, exposed to vibratory equipment, or is called upon to take a heavy load or perform repetitive actions. In those circumstances, I accept the complaints of the plaintiff that his pain would increase.
Having made such a finding, I consider that the organic consequences as described satisfy the requirements of the narrative test and the plaintiff should be granted leave to bring common law proceedings in relation to his right elbow condition suffered on 25 February 2005.
In particular, I consider it a matter of great consequence that a substantially illiterate forty-four-year-old man who hitherto has relied on his physical dexterity to perform a variety of jobs is now limited to work where the use of his right dominant arm is substantially reduced. Although I accept that the plaintiff can perform his present duties and perhaps could even increase them to full time, it is clear enough, in my view, that his ongoing right elbow condition would prevent him from doing any [scil many] of the types of work that he has performed prior to his injury.
I also take into account, although on a lesser basis, that the day-to-day activities of the plaintiff are inhibited and in particular, find that his ability to tinker with cars as he did prior to the injury is now reduced, as is his ability to ride bikes, whether they be pushbikes or motorbikes. In a similar way, even such activities as mowing the lawn with the vibratory effect would cause difficulties to the right elbow. Although I make no express finding as to the effect of such condition on the plaintiff’s other recreational activities, such as fishing, I do find in general that such activities would be impacted by such condition.[19]
[19]Reasons [111]-[114].
Having made these findings, his Honour then went on to make what he described as some ‘general comments’. In this part of his Honour’s judgment,[20] his Honour said:
Although there is clear evidence that the plaintiff suffered some degree of injury to his neck in November 2007 (as evidenced by Dr Hassan), any such injury does not appear to be playing a major role in his presentation at the current time … .
…
I do not accept the submission that the neck, to the extent that the plaintiff suffers any symptoms presently as a result of any neck condition, cannot be clearly distinguished from problems in his right elbow area.
…
I note that the plaintiff has been taking more pain killing tablets over the last few months since commencing work with his present employer. I consider such a situation to be consistent with his assertion that the greater the use of the right arm the more pain he experiences.
[20]Reasons [115].
His Honour then said that accordingly he granted the plaintiff leave to commence a proceeding for pain and suffering damages in relation to the right elbow injury suffered on or about 25 February 2005.
Ground 1
In ground 1, complaint is made that his Honour aggregated pain and suffering consequences with loss of earning capacity consequences. Section 134AB(38)(b) of the Act relevantly provides:
For the purposes of the assessment of serious injury in accordance with sub-sections (16) and (19) –
…
(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to –
(i)pain and suffering; or
(ii)loss of earning capacity –
when judged by comparison with other cases in the range of possible impairments or losses of body function, disfigurements, or mental or behavioural disturbances or disorders, respectively.
The appellant submits that in an application for leave to commence a proceeding for pain and suffering damages, it is not permissible to aggregate pain and suffering consequences and loss of earning capacity consequences. In support of this submission, the appellant relies upon s 134AB(17), s 134AB(38)(e)-(f), the language of ss 134AB(38)(b) and 134AB(38)(c), what is said to be the limited definition in s 134AB(37) of ‘pain and suffering damages’ and the Second Reading Speech in respect of the Accident Compensation (Common Law and Benefits) Bill, which introduced s 134AB into the Act.[21]
[21]Victoria, Parliamentary Debates, Legislative Assembly, 13 April 2000, 1001-1011 (Bob Cameron).
There is force in the appellant’s submission that in an application for leave to commence the proceeding for pain and suffering damages, it is not permissible to aggregate pain and suffering consequences and loss of earning capacity consequences. Section 134AB(38)(e) relevantly provides:
For the purposes of the assessment of serious injury in accordance with sub-sections (16) and (19) –
(e)where a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (37), the Authority or self-insurer shall not grant a certificate under subsection (16)(a) and a court shall not grant leave under subsection (16)(b) on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that –
(i)at the date of a decision under subsection (16)(a) or at the date of the hearing of an application under subsection (16)(b), the worker has a loss of earning capacity of 40 per centum or more, measured (except in the case of a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and
(ii)the worker (including a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) will after the date of the decision or of the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more;
Section 134AB(17) provides:
For the purposes of paragraphs (a) and (b) of subsection (16), a worker who satisfies subparagraph (i) of subsection (38)(b) but not subparagraph (ii) of that subsection, is entitled to bring proceedings in accordance with subsection (16)(b) for the recovery of damages for pain and suffering only.
The appellant submits that it would be anomalous for a judge hearing an application under s 134AB(16) to be able to rely upon loss of earning capacity consequences in a pain and suffering only case where the 40% requirement contained in s 134AB(38)(e) was not met.
In Advanced Wire & Cable Pty Ltd v Abdulle,[22] this Court had to consider whether a worker who established loss of earning capacity consequences that met the very considerable test and who also established a 40% loss of earning capacity as required by s 134AB(38)(e) had an entitlement to claim damages for pain and suffering. The Court said:
[22][2009] VSCA 170.
From the text of s 134AB(38)(b) and (c), it is apparent that the legislature, in enacting s 134AB, sought in part to codify the test for ‘serious injury’ enunciated by the majority in Humphries v Poljak.[23] In that case, the Full Court said that to qualify for the description of ‘serious injury’, the consequences of the injury must be serious to the particular applicant. The majority said:[24]
Those consequences will relate to pecuniary disadvantage and/or pain and suffering. 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’?
Following the Full Court’s decision in Humphries v Poljak, and up to the enactment of s 134AB, it has never been doubted that when an applicant establishes consequences that relate either to pecuniary disadvantage on the one hand or pain and suffering on the other hand, then (assuming the necessary aspect of ‘long term’ or permanence is established) the applicant is entitled to bring a proceeding for both pain and suffering damages and pecuniary loss damages. However, in enacting s 134AB, in order for loss of earning capacity consequences to be considered serious for the purposes of that section, the 40% requirement referred to in s 134AB(38)(e) was added as an additional requirement. At the same time, s 134AB(17) was enacted. That section provides:
For the purposes of paragraphs (a) and (b) of sub-section (16), a worker who satisfies sub-paragraph (i) of sub-section (38)(b) but not sub-paragraph (ii) of that sub-section, is entitled to bring proceedings in accordance with sub-section (16)(b) for the recovery of damages for pain and suffering only.
In other words, an applicant who satisfied only the pain and suffering aspect of the test can only get leave to bring a claim for pain and suffering damages.
There is no analogue of s 134AB(17) limiting an applicant who satisfies the loss of earning capacity requirements of s 134AB, but not the pain and suffering requirements, from claiming pain and suffering damages. The appellants eventually conceded that this was so. A plain reading of s 134AB permits a plaintiff who satisfies the loss of earning capacity requirements of that section to claim damages for both loss of earning capacity and pain and suffering. The history of s 134AB confirms this proposition. If there was any further reason for doubt, this is dispelled in the Second Reading Speech relating to s 134AB.[25] In the Second Reading Speech, the Minister for WorkCover said:[26]
The Bill introduces a new concept in relation to the worker having a limited entitlement to bring proceedings if, on the serious injury application, the Court is not satisfied the worker has met both the pain and suffering and loss of earning capacity thresholds. If a worker satisfies the pain and suffering threshold but not the loss of earning capacity threshold, then the worker will be limited to an entitlement to bring common law proceedings for the recovery of pain and suffering damages only. If, however, the worker satisfies the economic loss threshold, the worker will be entitled to bring proceedings for pain and suffering damages and economic loss damages.
The necessity for a worker to satisfy either the pain and suffering or the economic loss threshold and the importance of the decision itself creates a need for detailed reasons to be given by a Court in respect of each category of the application partly to determine if there is a right of appeal.[27]
[23][1992] 2 VR 129, 140. See also the Second Reading Speech in relation to s 134AB in which the Minister for WorkCover said (Legislative Assembly Hansard Volume 446 at p 1002):
The narrative serious injury test contained in the Bill has been codified to broadly reflect the test established by the Full Court in Humphries v Poljak … as well as introducing a new loss of earning capacity consequence with a threshold of 40%.
[24]Ibid 140.
[25]Section 134AB was inserted into the Act by s 18 of the Accident Compensation (Common Law and Benefits) Act2000.
[26]Legislative Assembly Hansard 13 April 2000 (Vol 446, 1005).
[27]Ibid [61]-[63] (footnotes in original).
While in Humphries v Poljak,[28] the majority referred to consequences relating to pecuniary disadvantage and/or pain and suffering, s 134AB(38)(b) refers to pain and suffering or loss of earning capacity consequences. The balance of s 134AB(38) and s 134AB(17) then appear to assume that a worker may succeed in an application by establishing either sufficiently serious pain and suffering consequences or sufficiently serious loss of earning capacity consequences. Indeed, in the Second Reading Speech, the Minister for WorkCover said:
Consistent with Humphries v Poljak, the code prescribes that the narrative test of serious injury will only be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement or mental or behavioural disturbance or disorder, as the case may be with respect to pain and suffering and loss of earning capacity when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements or mental or behavioural disturbances or disorders, respectively. … The two categories of consequences, pain and suffering and
loss of earning capacity, must be considered separately in deciding whether an injury is serious.[29]
[28][1992] 2 VR 129.
[29]Victoria, Parliamentary Debates, Legislative Assembly, 13 April 2000, 1002 (Bob Cameron)..
While pecuniary disadvantage consequences may not fall for consideration in a pain and suffering damages only case, as was acknowledged by the appellant, that does not mean that in all cases a worker’s inability to engage in employment of a particular kind has no relevance in an application for leave to commence a proceeding for pain and suffering damages. As has repeatedly been held, the inability of a worker to engage in employment which he or she enjoyed is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life. Similarly, frustration at being unable to engage in former activities (work or leisure) may be a matter properly to be taken into account in assessing pain and suffering consequences.
In the present case, there was evidence of pain and suffering consequences relating to the respondent’s inability to engage in certain pre-injury work activities. In the respondent’s first affidavit,[30] the respondent identified the various jobs that he used to be able to do before he was injured and which he cannot do now. Having deposed to these matters, the respondent then deposed:
Not being able to do what I used to do is very frustrating and it has caused a lot of friction between me and my partner.
…
I am depressed because of all of the things that I can no longer do because of the injury and because of the constant pain that I am in. I find my situation really frustrating.[31]
[30]Affirmed 23 May 2011, and reaffirmed with amendments after it was read to the respondent on 15 November 2012.
[31]Respondent’s first affidavit, [61] and [69].
To like effect, the respondent’s partner, Ms Steel, deposed in her affidavit:
Apart from the good money he [the respondent] was able to earn he enjoyed the mateship at work. I’ve lost count of the number of jobs he has applied for since.
…
Eric [the respondent] has become increasingly frustrated and depressed with the constant pain he experiences, and the limitations on what he can do.[32]
[32]Affidavit of Ms Steel affirmed 16 November 2012, [2] and [6].
In Haden Engineering Pty Ltd v McKinnon,[33] Maxwell P said:
[33][2010] VSCA 69.
In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as ‘the disabling effect’ of the pain.)
…
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’[34]
[34]Dwyer (No 2) [2008] VSCA 260 [27]; see also Stijepic [2009] VSCA 181 [44].
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.[35] What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].’[36]
[35]Stijepic [2009] VSCA 181 [47]; Sabo [2009] VSCA 242 [71].
[36]Dwyer (No 2) [2008] VSCA 260 [25].
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
·sleep;
·mobility;
·cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
·capacity for self-care and self-management;[37]
·performance of household and family duties;
·recreational activities;
·social activities;
·sexual life; and
·enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.[38]
[37]Under the Disability Act 2006, ‘disability’ is defined to mean an impairment which reduces a person’s capacity for ‘self-care, self-management, mobility or communication’.
[38]Ibid [9], [14]-[16] (citations in original).
The appellant submitted that these observations of the President should ‘not be followed to the extent that it would permit loss of earning capacity consequences per se to be considered as part of the assessment of pain and suffering consequences’.[39] To the extent that the appellant’s submission suggested that the passages referred to involved an impermissible use of loss of earning capacity consequences, we reject this submission. In our view, the passages referred to are unimpeachable: they deal with pain and suffering aspects of the inability to engage in work activities, rather than economic loss consequences per se.
[39]Appellant’s outline of submissions dated 26 April 2013, [6].
The expression ‘pain and suffering damages’ is defined in s 134AB(37) to mean:
damages for pain and suffering, loss of amenities of life or loss of enjoyment of life.
The elements of this definition reflect the conventional bases for an award of common law damages for pain and suffering. They also reflect the elements of pain and suffering consequences identified by Maxwell P in Haden,[40] namely, the experience of pain, the disabling effect of pain and suffering, and consequential loss of enjoyment of life.
[40]See [38] above.
The notion of loss of amenities is explained by the learned author of Luntz, Assessment of Damages for Personal Injury and Death (4th edition):
‘Loss of amenities’ is the name ‘commonly and conventionally (but not … very happily)’ given to the non-economic consequences of the destruction or diminution, permanent or temporary, of a faculty, which deprives the injured person ‘of the ability to participate in normal activities and thus enjoy life to the full and take full advantage of the opportunities that otherwise it might offer’.[41]
[41]See Luntz, Assessment of Damages for Personal Injury and Death (4th edition), [3.3.1].
Whether it be the loss of pleasure in doing something one used to be able to do or frustration in being unable to do something one used to be able to do, and whether or not the relevant activity is work related, such loss of pleasure or feeling of frustration falls to be considered when assessing the pain and suffering consequences of a particular injury. Further, the loss of pleasure or feeling of frustration may be all the more serious if it is suffered in circumstances where the range of activities that a person may or may not be able to engage in but for his or her injury is more limited than it might be for a person with a different skill set.
While the appellant’s argument with respect to ground 1 was initially expressed in broad terms (namely that loss of earning capacity consequences could not be relied upon by a worker seeking leave to commence proceedings for the recovery of damages for pain and suffering only), in argument the appellant accepted that loss of the ability to engage in particular forms of employment may be relevant to the issue of pain and suffering consequences in the following ways:
(a) First, pain may in fact be experienced at work or while performing particular types of work.
(b) Secondly, the inability to perform certain work may be indicative of what injury has in fact been sustained by the worker.
(c) Thirdly, a worker might suffer a loss of enjoyment of life in being unable to perform work which he or she used to enjoy. Under this heading there may also be pain and suffering consequences in respect of any frustration of a worker at being unable to perform activity that he or she used to be able to perform.
These concessions were properly made but it should be noted that the factors identified may be interrelated particularly where the evidence is, as in this case, that the worker continued to suffer ongoing pain from the injury in performing his current work and as a result of the injury was precluded from engaging in the range and kind of work he formerly engaged in.
Further, we should not be taken to agree that the matters conceded are necessarily the only ways in which loss of ability to carry out work activities might be relevant to the assessment of the seriousness of the consequences of an injury. Other cases may raise arguments which were not articulated before us.[42]
[42]In the course of final address at trial senior counsel for the appellant postulated cases in which an element of a worker’s frustration at the consequences of an injury was unhappiness arising from the need to live on a lot less money albeit that the loss of earning capacity did not meet the 40 per cent threshold stipulated in s 134AB(37)(e) of the Act. It is unnecessary to consider this and other hypothetical scenarios for present purposes.
The respondent did not seek to cavil with the proposition that there are loss of earning capacity consequences which cannot permissibly be aggregated with pain and suffering consequences in a pain and suffering damages only case. The respondent embraced the appellant’s concessions as to the three permissible uses referred to above, but went on to submit that that part of the definition of ‘pain and suffering damages’ in s 134AB(37) referring to ‘loss of amenities of life’ should not be ignored. The respondent submitted that the destruction of a faculty to perform certain activity of significance to the worker was a matter properly to be taken into account in assessing loss of amenities of life consequences (loss of amenities of life consequences being a subset of pain and suffering consequences).
We note in passing that at trial senior counsel for the appellant[43] expressly conceded that it was a relevant consequence of the injury that the respondent was now working in ‘a narrower paddock’.
[43]Not counsel who appeared for the appellant before us.
There can be no doubt that there is an interrelationship that can be difficult to separate out, between direct pain and suffering consequences suffered as a result of an injury and consequences suffered as a result of a change to a worker’s ability to engage in work related tasks either with or without pain. In assessing consequences for the purposes of an application for leave to commence a proceeding for damages (in either a pain and suffering damages alone case or, more generally, a pain and suffering damages and pecuniary loss damages case), there will be some overlap. However, what may be accepted for present purposes (as it was not disputed in this case by the respondent) is that pure loss of earning capacity consequences (that is, mere pecuniary loss) forms no part of the assessment of consequences when dealing with an application for leave to commence a proceeding for pain and suffering damages only.
All of that said, in our view, his Honour did not impermissibly aggregate pain and suffering consequences with loss of earning capacity consequences. A fair reading of his Honour’s judgment discloses that his Honour concluded that the pain which he found the respondent suffered, in the circumstances in which the respondent suffered that pain, was an organic consequence of the respondent’s elbow injury – and further, this organic consequence satisfied the very considerable threshold test.
His Honour then went on to say that this was a matter of great consequence in a person of the respondent’s background – namely a person who was substantially illiterate and who relied upon his physical dexterity more than a person with a greater skill set might need to. There was nothing surprising in this. First, what his Honour said accorded with the evidence. Secondly, what his Honour said involved a correct putting of matters into relevant context. Thirdly, what his Honour said accorded with the way in which the case was put below, and specifically, the way in which counsel for the appellant below addressed his Honour in final submissions. Indeed, having addressed at length about work consequences for a man with the respondent’s background, senior counsel for the appellant below submitted that his Honour would not be doing justice to the parties if he did not put into ‘the mix’ the respondent’s restricted skills.
Rather than impermissibly aggregating loss of earning capacity consequences with pain and suffering consequences, his Honour made findings as to the respondent’s injury. He then made findings concerning consequential pain. He then determined that the pain he found satisfied the very considerable threshold test, before then putting those matters into the surrounding context – namely the plaintiff’s background – in order to address the disabling effect of the injury upon the respondent. With respect, all of this constituted a correct analysis. After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.
For these reasons, we would reject ground 1.
Ground 3
Before dealing with ground 2, it is convenient to deal with ground 3. Ground 3 is expressed to be an alternative to ground 1.
There is no substance in ground 3. Ground 3 presupposes that his Honour relied upon loss of earning capacity consequences in determining that the respondent satisfied the very considerable test. As we have already said, his Honour did not do this. His Honour relied upon pain and suffering consequences, which he then put in the context of the physical activity the respondent was otherwise suited to perform having regard to the respondent’s pre-injury level of education and experience. The fact that the respondent might now be able to earn income not substantially different from income he in fact earned before suffering injury, or the fact that the respondent had an intermittent past employment record, did not tell against his Honour’s conclusions in relation to the pain and suffering consequences of the plaintiff’s right arm injury.
Ground 2
In ground 2, the appellant makes complaint that ‘on a proper evaluation of the evidence the respondent’s injury did not meet the test for seriousness by reference to consequences with respect to pain and suffering, and [his Honour’s] conclusion that it did was manifestly erroneous’. Ground 2 was no doubt framed to meet the proposition that an appellant cannot succeed on an appeal in respect of a finding in relation to serious injury, in the absence of specific error, unless the Court is satisfied that the determination below was plainly wrong or wholly erroneous.[44] Indeed, as was said by Buchanan JA[45] in Cowden v Transport Accident Commission:
It is difficult for an appellant to demonstrate that a trial judge’s evaluation of the existence of a ’serious injury’ should be set aside. In the absence of specific error, it must be shown that the decision at first instance was ’plainly wrong’ or ’wholly erroneous’ or ’patently unsustainable’.[46]
[44]See Mobilio v Balliotis [1998] 3 VR 833; and Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 [4].
[45]With whom Phillips and Callaway JJA agreed.
[46]Cowden v Transport Commission [2003] VSCA 198 [18] (citations omitted).
The test of what is a ‘serious injury’ is subjective in the sense that the effect on a bodily function of the particular applicant must be considered and the consequences of the injury must be serious to that applicant.[47]
[47]Humphries v Poljak (1992) 2 VR 129, 137 (Crockett and Southwell JJA).
Nevertheless the relevant assessment must be made objectively by the Court. It is the judge’s opinion as to the seriousness of the impairment or loss which is determinative, not the opinion of the applicant or medical practitioners.[48]
[48]Ibid 137.
The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell
within a range. Indeed the case for the appellant was opened to his Honour on this very basis, namely that this was ‘very much a range case’.[49]
[49]Reasons [9].
Likewise in final address senior counsel for the appellant conceded at one point that if the evidence of Dr Hassan in re-examination were accepted the respondent would succeed. He further submitted the respondent should fail because many of the restrictions of which he complained were exaggerated and that on the whole of the evidence the judge should conclude the pain the respondent suffered was ‘a lot less frequent and a lot less severe than the respondent complains of and that therefore it doesn’t meet the very considerable test.’
These submissions reflected the reality that it was open to conclude the respondent was seriously injured and the parties joined issue as to whether the judge should be persuaded to reach that conclusion.
We have already set out a considerable portion of the evidence given before his Honour, and upon which his Honour based his ultimate conclusion. That evidence discloses that ground 2 is without merit. Further, his Honour’s finding that the respondent suffers from a certain degree of modest pain frequently, but severe pain when his right elbow is knocked, or exposed to vibratory equipment, or is called upon to take a heavy load, or perform repetitive actions, makes the appellant’s submission that it was ‘manifestly erroneous’ for his Honour to conclude that the respondent’s pain and suffering consequences met the very considerable threshold test unsustainable.
For these reasons, ground 2 must be rejected.
Ground 4
In ground 4, the appellant asserts that his Honour failed to give sufficient reasons or make sufficient findings as to the pain and suffering consequences to the respondent to justify his Honour’s conclusion that the injury met the very considerable threshold test.
In its written outline of submissions,[50] the appellant asserts:
The reasons make no findings as to the pain and suffering associated with any reduction in employment opportunities. If, contrary to the above, the primary judge did exclude from his consideration straight loss of earning capacity consequences, or evaluated them in context (sic) of the respondent’s particular circumstances, then his Honour erred by failing adequately to identify how this was done. Further, his Honour did not make findings of pain and suffering consequences sufficient to support the ultimate finding of serious injury.
[50]Dated 26 April 2013.
These submissions must be rejected. First, his Honour did not fall into the error asserted by the appellant of basing his conclusion upon so-called ‘straight loss of earning capacity consequences’. Secondly, his Honour was not required to identify how so-called straight loss of earning capacity consequences were excluded, in circumstances where, on a proper reading of his Honour’s reasons, they did not form a foundation for his Honour’s ultimate conclusion. Thirdly, his Honour’s findings as to pain and suffering (as set out in paragraph [111] of his Honour’s reasons, set out above) more than adequately explain the reasoning behind his Honour’s ultimate conclusion that the respondent’s pain and suffering consequences met the very considerable threshold test.
Finally, it is to be remembered that the degree and content of reasoning required in any particular judgment depends upon, amongst other things, the way in which the case below was conducted. The case conducted before his Honour was conducted upon evidence, a considerable portion of which dealt with loss of working ability and earning capacity consequences. However, at no time did counsel for the appellant below make submissions that there were loss of earning capacity consequences that were dealt with in the material which it was not permissible for his Honour to have regard to. Indeed, the substantial point the subject of this appeal was not really raised below. In these circumstances, it is difficult to be critical of the way in which his Honour expressed his reasons for concluding that the plaintiff’s pain and suffering consequences met the very considerable threshold test in this case.
Conclusion
For these reasons, we would dismiss this appeal.
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