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Ifka v Shahin Enterprises Pty Ltd

Ifka v Shahin Enterprises Pty Ltd

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Case Copied 14 February 2014 43 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0056
DIANNE IFKA	Appellant
v
SHAHIN ENTERPRISES PTY LTD	Respondent

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JUDGES	NETTLE, BEACH JJA and McMILLAN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	4 February 2014
DATE OF JUDGMENT	14 February 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 8
JUDGMENT APPEALED FROM	Ifka v Shahin EnterprisesPty Ltd (Unreported, County Court of Victoria, Judge Coish, 18 April 2013)

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ACCIDENT COMPENSATION – Serious injury – Alleged impairment of function of cervical spine resulting from aggravation of pre-existing cervical spondylosis and degenerative disease – Whether serious injury within meaning of s 134AB(37) of Accident Compensation Act 1985 – Accident Compensation Act 1985, ss 134AB(16)(b); 134AB(37).

EVIDENCE – Applicant’s first affidavit in support of application failing to disclose full extent of previous injury – Second affidavit filed shortly before hearing – Viva voce evidence at odds with affidavits – Whether judge justified in forming unfavourable impression of applicant as witness – Inference – Respondent electing not to cross-examine some of applicant’s witnesses made available for cross-examination – Whether judge bound to accept evidence of such witnesses – Whisprun v Dixon (2003) 77 ALJR 1598, applied.

ADMISSIONS – Whether and to what extent respondent’s payment of statutory compensation and medical expenses amounting to admission of serious injury – Ansett v Taylor [2006] 171, considered; Fokas v Staff Australia Pty Ltd [2013] VSCA 230, explained and distinguished.

PRACTICE AND PROCEDURE – Observations as to propriety of judge deciding serious injury application on basis of expert reports when authors not cross-examined.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr A D B Ingram with Mr G A Worth	Hounslow & Associates Lawyers
For the Respondent	Mr S A O’Meara SC with Mr M J Hooper	Wisewould Mahoney Lawyers

NETTLE JA

BEACH JA
McMILLAN AJA:

Introduction

Dianne Ifka, the appellant, 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 suffered in the course of her employment with the respondent, Shahin Enterprises Pty Ltd. The application was heard in the County Court by Judge Coish on 12, 15 and 16 April 2013.

The appellant alleged that she sustained the injury on 5 November 2009 when, while climbing a step ladder, she inadvertently struck her head on the lower unprotected edge of an open cupboard door. The injury was said to be comprised of an impairment of the function of the appellant’s cervical spine, and in particular an aggravation of pre-existing cervical spondylitis and degenerative disease. The appellant claimed that this injury satisfied paragraph (a) of the definition of ‘serious injury’ contained in s 134AB(37) of the Act. The application was made in respect of both pain and suffering damages and pecuniary loss damages.

On the hearing of the application the appellant relied upon affidavits she swore on 19 September 2011 and 9 April 2013, and an affidavit sworn by her husband, Laszlo Ifka, on 9…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] VSCA 8
Decision Date: 14 February 2014

CaseChat Overview and Summary

The appeal before the Court was between Ifka, the appellant, and Shahin Enterprises Pty Ltd, the respondent. The dispute centered on whether Ifka had sustained a serious injury within the meaning of the Accident Compensation Act 1985, following an incident on 5 November 2009. Ifka claimed that the incident resulted in the aggravation of her pre-existing cervical spondylosis and degenerative disease, leading to a serious injury. The Court of Appeal was tasked with determining whether the primary judge erred in his assessment of Ifka's evidence and in his interpretation of the statutory provisions and case law relating to serious injury and admissions.

The primary legal issues before the Court of Appeal were whether the primary judge had failed to consider all evidence, particularly the evidence of Dr Darling and Ifka’s husband, and whether he had properly evaluated the admissions made by the respondent. The Court also had to determine if the judge was justified in forming an unfavourable impression of Ifka based on her evidence and whether the respondent's payment of statutory compensation and medical expenses amounted to an admission of a serious injury.

The Court of Appeal found that the primary judge had not erred in his assessment of Ifka's evidence or in his interpretation of the statutory provisions. The Court held that the judge was justified in forming an unfavourable impression of Ifka based on her inconsistent evidence and the discrepancies between her affidavits and her viva voce testimony. The Court also held that the respondent's payment of statutory compensation and medical expenses did not amount to an admission of a serious injury, as it was not linked to any particular injury or condition. The Court concluded that the primary judge had properly evaluated the evidence and had not erred in his findings.

The Court of Appeal dismissed the appeal, affirming the decision of the primary judge. The Court found that the primary judge had adequately considered all evidence and had not erred in his assessment of Ifka's evidence or in his interpretation of the statutory provisions and case law. The Court held that the primary judge was justified in forming an unfavourable impression of Ifka and that the respondent's payment of statutory compensation and medical expenses did not amount to an admission of a serious injury.

Orders

Orders of the court

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Background

Background to the litigation

In written submissions, and in argument before us, counsel for the appellant identified the critical issues on this appeal as:(a) a failure by the judge to deal with the whole of the evidence;(b) a failure by the judge to deal properly with the evidence of witnesses who were central to the case, namely Dr Darling (who had treated the appellant both before and after the accident on 5 November 2009) and the appellant’s husband;(c) a failure by the judge to deal properly with admissions said to be made on behalf of the respondent, first in a letter of 28 June 2011 (‘the 2011 letter’), and secondly in paying various medical expenses following 5 November 2009; and(d) a failure by the judge to provide any reasons in respect of the submissions said to have been made on behalf of the appellant in relation to the admissions for which the appellant contended in relation to the 28 June 2011 letter.Background facts Borrowing largely from the appellant’s summary of proceedings, facts and issues, the background facts in this proceeding may be stated as follows. The appellant was born on 21 April 1967 and completed her schooling when 17 years of age in 1984 shortly before falling pregnant with her eldest child. She was briefly employed but did not re-enter the workforce until 1995 when she obtained employment as a cleaner. On 17 November 1995, the appellant was injured in the course of employment while lifting a vacuum cleaner ─ with symptoms particularly affecting her left shoulder and subsequently her neck. Her general practitioner Dr Darling referred her to a rheumatologist Dr Griffiths and a musculoskeletal physician Dr Jensen both of whom diagnosed a left shoulder condition and injected the shoulder, but also noted symptoms either in the neck or cervicogenic headaches. Dr Darling’s referral letter of 27 December 1995 noted considerable pain in the left shoulder and side of the neck. In 1996 and 1997 the appellant had pain in her neck. It was not until late 1997 that an X-ray of the cervical spine was performed and then on 20 May 1998 an MRI scan demonstrated a mild left paracentral disc protrusion at C5-6 level. A referral to Professor Kaye, neurosurgeon, confirmed the MRI findings but surgery was not recommended. In mid-1999 Dr Darling also referred the appellant to a pain specialist Dr Muir with a history of shooting left shoulder pain as well as neck pain. The appellant spent some years out of the workforce by reason of her left shoulder and neck injuries. In November 1999 she was paid $26,750.00 pursuant to s 98 of the Act and $13,250.00 pursuant to s 98A of the Act in respect of those injuries. An X-ray of the appellant’s cervical spine performed in August 2000 demonstrated normal alignment and appearance of the vertebral bodies with good retention of disc spaces. In the period 2000-04, the appellant attended a variety of training courses with a view to returning to employment including training as a counsellor, TAB teller accreditation, food handling, service of alcohol and integration aide. In 2003-04, the appellant worked as an integration aide and then in 2005-07 she worked part-time at a Coles Supermarket.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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