Ifka v Shahin Enterprises Pty Ltd
[2014] VSCA 8
•14 February 2014
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 April 2013. The parties tendered various documents, including medical reports, radiology reports, documents described as ‘insurer/employer documents’, various claim forms, certificates and letters, medical records, a vocational assessment report and surveillance videos.
The appellant was the only witness to give viva voce evidence. While the respondent had given notice of an intention to cross-examine the appellant’s husband and her general practitioner, Dr Darling, at the hearing the respondent abandoned this request ─ notwithstanding that the appellant had made these witnesses available pursuant to the respondent’s request.
On 18 April 2013, two days after the conclusion of the hearing, Judge Coish gave judgment dismissing the appellant’s application.
The appellant’s complaints
In her notice of appeal, the appellant relied upon 12 grounds of appeal as follows:
1. The trial judge unjustifiably formed an unfavourable impression of the appellant and in consequence did not fully evaluate her injury in order to evaluate whether the pain and suffering consequences and/or loss of earning capacity consequences of that injury were sufficient to contribute (scil, constitute) serious injury.
2. The trial Judge formed an unfavourable impression of the appellant because he either misapprehended or misunderstood the evidence at trial in particular:
(a) the appellant’s affidavit sworn 19 September 2011 which was served as part of the serious injury application with documents which included compensation claim documents, radiological examinations, treatment notes of clinical practitioners including Dr Darling of Corio Medical Centre, treating practitioners’ reports and medico-legal reports addressing the appellant’s cervical spine condition arising from an incident on 17 September 1995 (scil, 17 November 1995) and an incident on 5 November 2009 and the appellant’s affidavit was not, in the context of the accompanying documentation misleading;
(b) the appellant’s affidavit sworn 9 April 2013 was not, in the context of the material served as part of the serious injury application, a ‘construct’;
(c) the appellant gave evidence which the Respondent did not challenge of her limiting complaints to Dr Darling with respect to neck pain in the period 5 November 2009 to 13 February 2010 because she was fearful that Dr Darling would replace (sic) her on restricted duties and thereby imperil her employment.
3. The trial judge failed to provide adequate reasons or disclose any or any adequate path of reasoning for forming a ‘particularly unfavourable impression of the appellant as a witness’.
4. The trial judge was wrong to reject or disregard the unchallenged evidence of:
(a) the appellant’s husband;
(b) the appellant’s long-term treating general practitioner Dr Darling -
in circumstances where the respondent called for those witnesses to be made available for cross-examination and obtained an order for witnesses out of Court but subsequently made a forensic decision not to cross-examine either witness.
5. The trial judge failed to provide any or adequate reasons for rejecting or disregarding the unchallenged evidence of:
(a) the appellant’s husband;
(b) the appellant’s long-term treating general practitioner Dr Darling -
the evidence of each demonstrating pain and suffering and/or loss of earning capacity consequences to the appellant in circumstances where the respondent called for those witnesses to be made available for cross-examination and obtained an order for witnesses out of Court but subsequently made a forensic decision not to cross-examine either witness.
6. The trial judge failed to take into account relevant considerations including:
(a) the appellant’s work history in the period 2003 onwards and more particularly in the period immediately prior to the injury sustained 5 November 2009; and
(b) the appellant’s social, recreational and domestic activities relevant to assessment of pain and suffering consequences in the period from 2003 onwards and more particularly in the period immediately prior to 5 November 2009.
7. The trial judge failed to determine what had been lost to the appellant by way of:
(a) loss of employment capacity consequences;
(b) capacity to engage in social, recreational and domestic activities assessable as pain and suffering consequences -
in the period following the claimed injury on 5 November 2009 compared with prior to that date in order to determine whether the loss assessed amounted to serious injury incapacity.
8.In finding that the appellant had provided ‘inconsistent histories to many doctors following the November 2009 injury’ the trial judge failed to take into account material considerations namely, the radiological examinations, treatment notes of treating practitioners, treating practitioner reports, medico-legal reports which were provided to those doctors and/or to have regard to the fact that in the case of Dr Jensen and Dr Muir referral to those practitioners was for the purpose of assessing and treating the injury sustained 5 November 2009.
9. The trial judge misapprehended or misunderstood the appellant’s evidence at trial as to the condition of her cervical spine after 9 November 2009 and 13 February 2010 in finding that the Appellant’s evidence was ‘most confusing’.
10. The trial judge erred in failing to give any or adequate weight to the evidence of the longstanding treating general practitioner Dr Darling who treated the appellant both at the times of her 17 September 1995 injury (scil, 17 November 1995 injury) and her 5 November 2009 injury and was in a position to give evidence as to the organic consequences of the injuries suffered by the appellant in her cervical spine and the impairment consequences resulting from each such injury.
11. The trial judge determined that the appellant suffered from functional overlay and/or abnormal illness behaviour and/or a non-organic condition when no proper analysis of the evidence would justify that conclusion.
12. The trial judge failed to provide any or adequate reasons, in particular having regard to:
(a) the medical records of treating practitioners;
(b) the reports of treating practitioners;
(c) the reports of medico-legal practitioners;
(d) the reports of radiological findings -
in finding that the appellant suffered from functional overlay and/or abnormal illness behaviour and/or a non-organic condition.
In the summary of proceedings, facts and issues, prepared by the appellant, the appellant described the issues on this appeal in the following terms:
(a) whether the findings by the judge as to the appellant’s credit were justified upon a fair reading of the whole of the evidence, or whether those findings were supported by adequate reasons;
(b) whether the finding by the judge that the appellant’s condition was a non-organic abnormal illness behaviour was justified upon a fair reading of the whole of the evidence, or whether that finding was supported by adequate reasons; and
(c) whether the trial judge adequately determined what were the consequences to the appellant of her compensable injury by comparing her circumstances before and after 5 November 2009 or provided adequate reasons.
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.
During 2006 the appellant attended Dr Darling on five occasions in relation to right shoulder and right-sided neck pain. In May 2007, an ultrasound of the appellant’s right shoulder demonstrated evidence of tendinitis and subacromial bursitis.
In 2006-2007, the appellant was employed as a manager of a small business and then in a Safeway Delicatessen. In April 2008, the appellant commenced employment with the respondent. In November 2008, the appellant attended Dr Darling suffering from neck pain, headaches, nausea and poor balance and was treated with Panadeine Forte and provided with a sick leave certificate. In June 2009 Dr Darling requested a CT scan of the appellant’s brain. That study disclosed no abnormality. In July 2009, the appellant was examined by a neurologist, Dr Balla, and an MRI scan of the brain was recommended. However, it does not appear this was performed.
In July 2009, the appellant was off work for three to four weeks. In August 2009 she resumed full-time employment with the respondent. She sustained the subject injuries on 5 November 2009 when climbing a step ladder and she inadvertently struck her head on the lower unprotected edge of an open cupboard door, describing the sensation as like a hammer hit to the top of the head. The appellant was aware of neck pain and went home. The following day the appellant felt ‘really very groggy’ and her son called an ambulance and she attended (due to the unavailability of Dr Darling) Dr Hasan at Geelong City Medical Centre. An X-ray was performed. The X-ray disclosed slight narrowing of the C5-6 disc with minor degenerative changes.
On 10 November 2009, the appellant attended Dr Darling with a history of several days of blurred vision, disequilibrium, nausea and neck pain and was diagnosed as suffering from a head injury with concussion and whiplash to the neck, prescribed Panadeine Forte and returned to work on reduced hours. She returned to full-time hours on 5 December 2009. The appellant deposed she continued to suffer from ongoing neck pain over the Christmas period. On 13 February 2010, the appellant’s neck ‘cracked’ very loudly and she felt very sharp pain when she turned
her head to see if a customer was present in the store. She left work on this day and did not subsequently return to work.
On 5 March 2010, the appellant was referred for a CT scan of her cervical spine. This CT scan disclosed narrowing of the left C5-6 nerve root foramen due to small peri-foraminal osteophytes and likely contact of the left C6 nerve root. The appellant was referred to Dr Threlfall who in turn ordered an MRI of the cervical spine on 24 June 2010. This MRI produced a degraded image, but showed features consistent with left foraminal stenosis at C5-6 level.
In July 2010, Dr Threlfall referred the appellant to a musculoskeletal physician, Dr Jensen. Dr Jensen had previously seen the appellant in 1996 and 1997. Later in July 2010, the appellant was referred on to a neurosurgeon, Mr Lo, who then and in October 2010 advised against surgical decompression.
Dr Darling continued to diagnose the appellant as suffering from a neck injury with cervical radiculopathy and associated cervicogenic headaches and to certify the appellant unfit for employment. In March 2011 Dr Darling referred the appellant to a pain specialist, Dr Muir. Dr Muir had previously seen the appellant in 1999. Dr Muir considered the use of a Ketamine infusion, but this was not performed. In 2011, the appellant completed a pain management programme at Geelong Private Hospital under Dr Muir who subsequently in February and March 2013 administered medial branch blocks. Additionally, Dr Muir advised that the appellant might benefit from a radiofrequency neurotomy procedure.
As at the date of trial the appellant remained certified by Dr Darling unfit for employment and in receipt of compensation payments in respect of her accepted compensable injury.
The judge’s reasons
The judge commenced his reasons by identifying the issues and relevant legal principles. His Honour noted that he had regard to the principles enunciated in the cases of Petkovski v Galletti[1] and AG Staff Pty Ltd v Filipowicz.[2] His Honour then set out s 134AB(38)(h) of the Act. Section 134AB(38)(h) of the Act provides that:
the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.
[1][1994] 1 VR 436.
[2](2012) 34 VR 309.
His Honour then described the evidence and set out some background facts before extracting paragraphs of the appellant’s affidavits dealing with the injury that occurred on 5 November 2009, the prior injury that occurred in 1995 and the appellant’s situation following the incident that occurred on 13 February 2010 when the appellant turned her head to the left and her neck cracked loudly.
Having extracted parts of the appellant’s affidavits, his Honour went on to refer to some of the evidence the appellant gave in cross-examination. His Honour referred to the video surveillance, saying that he ‘did not consider this evidence [the video surveillance] to have been of any significance’. His Honour went on however to say that:
I formed a particularly unfavourable impression of the appellant as a witness. I found her to have been most unreliable on the critical issue of the nature and extent of her neck condition before and after the incident on 5 November 2009.
His Honour gave seven reasons for that conclusion. In summary, they were:
1. The appellant’s first affidavit was, in his Honour’s opinion, most misleading in respect of her pre-existing neck condition.
2. The failure by the appellant to refer in her first affidavit to the fact that she received compensation in respect of a permanent partial impairment of her neck and permanent partial loss of use of her left arm following the earlier 1995 injury.
3. The fact that Dr Darling’s clinical notes contained references to neck pain or related symptoms on five occasions between 9 March 2006 and 16 June 2009, and also the fact that the appellant stated in cross-examination that prior to the 5 November 2009 accident ‘she may experience neck pain but not complain of this to Dr Darling’ (in contradistinction to at least the appellant’s first affidavit).
4. The fact that the appellant had given inconsistent histories to doctors.
5. The confusing nature of the appellant’s evidence as to her condition between 5 November 2009 and 13 February 2010, and the effect of the incident that occurred on 13 February 2010.
6. His Honour’s acceptance of a submission made by the respondent that the appellant’s second affidavit was a ‘construct’ ─ that is, an attempt to fix the problems created by the inadequacy of the appellant’s first affidavit, which attempt was said to be, in any event, unsuccessful.
7. The inconsistency between Dr Darling’s recorded improvement in the appellant’s condition after 5 November 2009 and the appellant’s description in her second affidavit of a very significant deterioration after that date.
His Honour next dealt with the evidence of the appellant’s husband, in the following terms:
The plaintiff’s husband, Laszlo Ifka has provided an affidavit dated 9 April 2013. He was not cross-examined. He describes a significant change in the family’s lifestyle following his wife’s injury on 5 November 1999. His recollection was that his wife’s symptoms from her 1995 injury gradually settled down over the years.
It was submitted on behalf of the plaintiff that as the plaintiff’s husband was not cross-examined I ought accept this evidence. A similar submission was made in respect of the failure on the part of the defendant’s counsel to cross-examine Dr Darling. I do not agree with either of these submissions.
The difficulties in the conduct of serious injury applications are notorious. They have been the subject of comment in many Court of Appeal decisions. The defence have made a decision to only cross-examine the plaintiff. The plaintiff’s counsel has chosen not to cross-examine any defence witnesses. Whilst it is open to either party to cross-examine any witness in my opinion each party has adopted a sensible course having regard to the issues in dispute.
The plaintiff presents as grossly disabled. This no doubt has a terrible impact upon her family. Her husband’s descriptions of his wife do not, in my opinion, carry much weight. In view of the extremely close relationship between the plaintiff and her husband I place little weight on the plaintiff’s husband’s affidavit.
His Honour then dealt with the medical evidence in the following terms:
Although Dr Darling has seen the plaintiff in respect of her 1995 injury the only references to a diagnosis of that injury are in his letter to Professor Kaye dated 18 June 1998 referring to a C5-6 disc protrusion shown on the MRI scan taken on 20 May 1998, and in a report to the plaintiff’s solicitors dated 24 July 2012 in which he states:
“After two years of disability, a diagnosis of left paracentral cervical disc protrusion at the C5-6 level was made, with referred left shoulder symptoms as the likely cause of her symptoms and disability.”
Dr Darling was of the opinion that the plaintiff had sustained a head injury with concussion and mild cervical spine whiplash injury in the incident on 5 November 2009. He noted that over the next three months her symptoms improved but she continued to have neck pain and headache. He recorded an aggravation of the November 2009 neck injury in the incident on 13 February 2010.
Dr Darling referred the plaintiff to Dr Threlfall, Dr Jensen, Mr Lo, neurosurgeon, and Dr Muir.
Dr Darling’s opinion is that the plaintiff has suffered a neck injury causing cervical radiculopathy with associated cervicogenic headache, and there has been an aggravation of pre-existing cervical spine degenerative disease.
Dr Threlfall was of the opinion the plaintiff had injury to the C5-6 joint space with involvement of the nerve root. He had no history of a pre-existing condition. Dr Threlfall did not believe an epidural injection or nerve root facet block was warranted.
Dr Jensen saw the plaintiff on 8 July 2010. As I have already stated the plaintiff gave him a history of a rotator cuff injury 15 years ago, but she:
“Described no other injuries or accidents including any neck injuries.”
In his report dated 13 October 2010, he described the nature of the plaintiff’s injury as:
“I believe this lady has suffered a significant neck injury with neuropathic features causing radicular quality left upper limb pain and some subtle C7 neurological signs on the left side. I felt there was significant cervicogenic headaches that may come from the upper cervical facet joints.”
When asked for his opinion on the relationship of the injury to the worker’s employment, and in particular whether the worker’s employment was still materially related to the initial injury he stated:
“Accepting the history as related to me, and in particular the two specific events of 5 November 2009 and 13 February 2010, I can only conclude that this lady’s employment was a significant contributing factor to her neck problem.”
Mr Lo saw the plaintiff but he did not recommend surgery. Dr Muir referred the plaintiff to a pain management program in 2011 and he performed medial branch blocks in February and March 2013. In a report to the plaintiff’s solicitors dated 2 April 2013, Dr Muir was asked to express an opinion on whether he believed the plaintiff’s current neck injury and headaches continued to be materially contributed to by the incident on 5 November 2009. He stated:
“The patient’s current condition seems to be related to pain generated in her cervical spine. This has been present only since her original neck injury and continuously since her original neck injury, and so I would describe her neck injury as an important and material contributor to her current condition.”
When expressing this opinion Dr Muir had no history of a pre-existing condition or any injury prior to 5 November 2009. I have already commented upon the fact that Dr Muir had treated the plaintiff in respect of her pre-existing condition.
Two of the plaintiff’s treating specialists, Dr Jensen and Dr Muir, saw the plaintiff following both her 1995 injury and 2009 injury however they have both provided opinions on the effect of the 2009 injury on the basis of a history of no pre-existing neck symptoms. This history is not accurate. This is, in my opinion, most unsatisfactory. The plaintiff has a history of neck symptoms dating from 1995. She has been examined, assessed and treated by both Dr Muir and Dr Jensen following her 1995 injury yet the opinions they have expressed in their up to date reports to which I have just referred are based on a history that the plaintiff had no pre-existing symptoms.
The plaintiff has been assessed by many medico-legal specialists. I have had regard to all the reports provided by these doctors. I do not intend to summarise their opinions. I have already commented on the inaccurate histories provided to Mr Simm, Dr Brownbill and Mr Shannon. It was submitted on behalf of the plaintiff that this was of no consequence as these doctors had been provided with earlier reports and notes relating to the plaintiff’s 1995 injury.
I do not agree with this submission. These earlier reports and notes do not provide a complete picture of the plaintiff’s condition. The plaintiff stated that she experienced neck pain but would not always complain to her general practitioner about her symptoms. In my opinion the inaccurate history provided by the plaintiff greatly lessens the value of the doctors’ opinions. This is particularly relevant not only to the medico-legal specialists, but also to the opinions of treating doctors Threlfall, Jensen and Muir.
I prefer and accept the opinions of Mr Siu and Dr Barton who have examined the plaintiff at the request of the defendant in recent times. Mr Siu, neurosurgeon, examined the plaintiff on 13 June 2012. It was his opinion that the plaintiff had suffered a soft tissue ligamentous injury of the neck followed by persistent discomfort. He was also of the opinion that the plaintiff was exhibiting obvious abnormal illness behaviour. He felt the plaintiff’s present condition was best described in these terms:
“Abnormal illness behaviour following a soft tissue ligamentous injury to the neck.”
He commented that:
“Although there is objective evidence that there has been mild non compressive right foraminal encroachment, there is no clinical indication of nerve root irritation. The absence of neurological abnormality would make it hard to reconcile the severe symptoms, especially during examination.”
Mr Siu was of the opinion that there was a significant functional component and he felt psychiatric assessment may be appropriate. Mr Siu was of the opinion that the nature of the injury sustained on 5 November 2009 was a soft tissue ligamentous injury, and the further injury of 13 February 2010 was an aggravation of the soft tissue ligamentous injury sustained in November 2009.
Dr Barton expressed the following opinion:
“The worker describes nearly three years of somewhat unusual and persisting symptoms that she relates to two episodes that really appeared quite trivial. Several diagnoses have been made to possibly account for her symptoms, but I do not believe they have a clear physical basis.
There are a number of features about the worker’s presentation that point towards a chronic pain type problem rather than any persisting physical injury. I do not believe the radiological findings were caused by these work episodes and nor would they account for her somewhat unusual symptoms.”
Dr Barton pointed to a range of findings that he felt pointed towards a significant degree of functional overlay. It was Dr Barton’s opinion that the plaintiff may have had a mild soft tissue injury which had been complicated by a degree of abnormal illness behaviour. He was of the opinion that from a physical point of view, the plaintiff could work as a shop assistant.
His Honour said that he preferred the opinions of Mr Siu and Dr Barton for the following reasons:
(1)I found the plaintiff to have been an unreliable witness, particularly in respect of the critical issue of the nature of her condition before and after 5 November 2009.
(2)The plaintiff’s current presentation is of gross disability. I do not accept that this can be explained on an organic basis, particularly having regard to the nature of the incidents on 5 November 2009 and 13 February 2010. There is, in my opinion, a significant non organic component in the plaintiff’s presentation.
(3)A range of diagnoses have been put forward to attempt to account for the plaintiff’s symptoms.
(4)Although the general practitioner Dr Darling has seen the plaintiff over many years, I prefer the opinions of the more highly qualified specialists, namely the neurosurgeon Mr Siu and occupational physician Dr Barton.
Based on the foregoing, his Honour then expressed his conclusions in the following terms:
I find the plaintiff suffered a neck injury involving disc protrusion of the C5-6 level on 17 November 1995. I find the plaintiff suffered a soft tissue ligamentous injury of the neck on 5 November 2009 when her head struck a cupboard door, which injury was aggravated when she turned her head on 13 February 2010. This physical injury has led to the development of a non organic condition described as abnormal illness behaviour. It was not in issue that should I accept the opinions of Mr Siu and Dr Barton, the plaintiff would not succeed in the serious injury application.
Having conducted the appropriate comparison in accordance with Petkovski v Galletti and excluding from consideration the psychological or psychiatric consequences of the physical injury, I am not satisfied the consequences of the physical injury are very considerable, either with respect to pain and suffering or loss of earning capacity.
I accept Dr Barton’s opinion that from a physical point of view the plaintiff has a capacity for employment as a shop assistant.
The plaintiff has therefore failed to discharge the onus of proving serious injury with respect to pain and suffering and loss of earning capacity. Accordingly the application is dismissed.
The judge’s unfavourable impression of the appellant as a witness
The judge’s principal criticism of the appellant as a witness related to differing accounts she gave across her two affidavits and in cross-examination as to the extent of her neck problems between 1995 and 2009 and also her condition between 5 November 2009 and 13 February 2010.
Dealing first with the position before 5 November 2009, the appellant deposed in her first affidavit as follows:
In or around November 1995 I suffered an injury to my left shoulder while lifting a vacuum cleaner in the employ of Nu Glow Cleaning Services of Geelong, which led to medical and like treatment under the direction of my general practitioner Dr Darling and others and a period of incapacity for work. I believe that I had some referral of pain from the left shoulder into the neck area. I had in the past attended a chiropractor for a few times for massage, for general aches and pains because after the 1995 left shoulder injury all the muscles and tissues on the left shoulder and left neck seemed to me to be “knotting up” and massage used to relieve that “knotting up”.
I have also variously suffered from lower back pain, headaches, sometimes severe and possibly migrainous in nature and from right shoulder pain, sometimes extending into the neck area, in the past and in respect of all such matters I have in general been under the medical care of Dr Darling and others on his referral. In around mid-2009 I suffered a flu-like condition and I believe, a viral infection, which required that I have about three weeks absent from my work and which then cleared up and I resumed work without ill effect.
In her second affidavit, the appellant dealt with her pre-November 2009 condition as follows:
I returned to work in early 1995 with Nu Glow Cleaning Services in Geelong. I sustained injury which I believe occurred on or about 17 November 1995 when lifting a vacuum cleaner in the course of employment with George’s Management Services Pty Ltd. In so doing, I sustained strained (sic) injuries to the left side of my neck and my left shoulder. I subsequently also developed a problem with headaches. My recollection is that it was mainly my left shoulder which was the subject of investigation by the practitioners I saw at that time. I recall Panadeine Forte and Valium being prescribed for my injuries in addition to other conservative treatments.
I understand that the records now available demonstrate that an x-ray and ultrasound of my left shoulder was performed on 4 December 1995 although no rotator cuff injury was diagnosed. On 29 January 1996, I was referred by my then and current general practitioner Dr Darling from Corio Medical Clinic to a rheumatologist Dr Griffiths. I understand that Dr Griffiths diagnosed a left rotator cuff tear and injected my left shoulder. I also sought physiotherapy treatment from Corio Physiotherapy and attended a chiropractor on a number of occasions for massage.
Despite such treatments, I continue to have ongoing problems with my left shoulder and my neck. On 8 November 1996, Dr Darling referred me to a musculoskeletal physician Dr Jensen who thought that I may have suffered a left shoulder injury with some neck dysfunction and he again injected my left shoulder. I subsequently returned to Dr Jensen on two further occasions in early 1997 and he suggested referral to a rehabilitation program.
In 1997 further investigations were performed involving a bone scan on 17 January 1997 although no definite pathology was identified. I understand that a further injection into my left shoulder was administered on 14 February 1997. On 2 December 1997, an x-ray of my cervical spine was performed but I understand that no bony abnormality was identified.
Dr Darling referred me to an orthopaedic surgeon Mr Brown who suggested that an MRI scan be performed. On 20 May 1998, I underwent an MRI scan of my cervical spine and my understanding is that that scan demonstrated the presence of a left paracentral disc protrusion at C5-6 level but with minimal nerve root compression. Mr Brown did not suggest any surgical treatment and I continued to follow conservative treatment measures.
By reason of this finding I was referred by Dr Darling to Professor Kaye neurosurgeon who examined me on 29 September 1998. My understanding is that he confirmed the MRI scan findings but thought that there was a pain syndrome present and advised against the performance of surgery.
I was referred by Dr Darling to a pain specialist Dr Muir whom I consulted on 16 July 1999 and at that time was suffering from persisting left shoulder pain. Conservative treatment measures were again recommended.
Over the years thereafter, my left shoulder and neck pain and headaches persisted at varying degrees of intensity but with a gradual decline in the level of symptoms. When my symptoms flared-up I would use ice or heat pack and occasionally had physiotherapy or massage. I also used Panadeine Forte as required although from recollection I found that by about 2007 Nurofen was generally sufficient to control any symptoms which I had. I remained in receipt of weekly compensation payments through until 15 January 1998.
Self-evidently, the appellant’s second affidavit contained considerably more detail about her pre-November 2009 neck condition than did her first affidavit. Indeed, the appellant conceded as much in cross-examination.
At one stage during the cross-examination, the appellant was asked whether she was aware as a result of advice received from doctors in and about 1998 that she had a problem with her cervical spine or neck. The appellant answered in the negative. However, when taken to an MRI which reported ‘mild left paracentral disc protrusion at C5-6’ the appellant admitted being aware of a problem with her neck. Subsequently, in cross-examination, the appellant admitted to having a problem with her neck at the end of the 1990s, and that she had continuing neck pains and some shoulder problems from then onwards. The appellant was then asked and answered the following question:
Because you had neck pain more or less continuously throughout that period [2000-2009], didn’t you? - - - I – yeah. I don’t know, but yes.
The appellant was then asked and answered the following questions:
And after the accident in 1995 you were off work for – was it five years or six years? - - - I didn’t work for – it was approximately five years … .
…
Completely off work? - - - Yes.
Now, before I move off the point I may as well put this to you and – not seeking to be over critical, but you will have gathered from the detail that we’ve now gone into in relation to the references to problems with your neck in the initial material in the late-1990s and then the number of consultations that you’ve had with your doctor in relation to neck pain and headaches from 2000–2009, that I’m saying to you that is something that should have featured more prominently in your first affidavit? - - - Yes.
And it is, isn’t it? - - - Yes, that should have been.
Yes, and you swore the affidavit, leaving it all out? - - - I was going by what my solicitor drew up.
And your solicitor drew it up on the basis of your instructions? - - - M’mm.
That’s true, isn’t it? - - - Well, yeah.
The appellant was also cross-examined about histories she gave to doctors, the substance of which histories were that she had little if any neck symptoms before the November 2009 accident. In respect of those histories, the appellant conceded that she should not have given them.
While the appellant’s counsel conceded before us that the appellant’s first affidavit was deficient, he submitted that the judge should have considered the material on the basis that the only times the appellant suffered from her pre-existing neck condition were those times recorded in medical reports. The problem with that, however, at least so far as the period from 2006 to 5 November 2009 is concerned, is that the appellant conceded in cross-examination that there were ‘many other dates and times during that period’ when she had neck pain but did not go to the doctor.
So far as the period between 5 November 2009 and 13 February 2010 is concerned, in her first affidavit the appellant deposed:
In fact the situation had been that the more I worked the worse the neck pain and headache became and those symptoms and pain simply peaked on 13 February 2010.
In her second affidavit, the appellant deposed:
From the time of the incident on 5 November 2009 there has been a very significant deterioration in my level of neck and referred shoulder pain and problems with headaches.
However, in cross-examination the appellant was taken to Dr Darling’s notes of the histories she gave at consultations between November 2009 and February 2010. In respect of these consultations, the appellant made various admissions in cross-examination as to the giving of histories of improvement in her symptoms during this period. Having read the affidavits and the cross-examination, it is, in our view, little wonder that the judge described the appellant’s evidence of her condition between 5 November 2009 and 13 February 2010 and as to the effect of the 13 February 2010 incident as ‘most confusing’.
While the appellant conceded that her first affidavit was deficient (and indeed that was the reason a second affidavit was tendered), counsel for the appellant submitted that the judge was wrong to form an unfavourable impression of the appellant because, at the time the serious injury application was served on the respondent, the appellant’s solicitors provided a significant body of medical evidence by way of medical reports and records which showed the full extent of the appellant’s pre-existing neck condition. We do not accept that submission. In our view, the fact that the appellant’s solicitors served other material which was capable of being analysed and showing to a greater extent the appellant’s pre-accident condition does not deprive the judge’s criticism of the appellant of force, for swearing an affidavit which manifestly did not disclose the true position.
Similarly, we think there is much force in the judge’s criticisms of the appellant in relation to the differences between the appellant’s two affidavits and the further evidence disclosed during the cross-examination of the appellant. In our view, the judge was entitled to conclude that the appellant was an unreliable witness. His Honour approached the issue in considerable detail and with evident care. We see no error in his Honour’s approach or conclusions in relation to this issue.
It follows that, in our view, his Honour was correct when he identified the various discrepancies between the appellant’s first affidavit, the appellant’s second affidavit and the evidence the appellant gave in cross-examination. In particular, we see no error in his Honour’s conclusion that the second affidavit was an attempt to amend the appellant’s hand ─ which attempt was unsuccessful when one has regard to the concessions forced from the appellant in cross-examination.
Further, it must be remembered that his Honour had the benefit of seeing and hearing the appellant give her evidence. While we have not had that benefit, we do not find it in the least bit surprising that his Honour was unimpressed with the appellant as a witness. The fact that those advising the appellant served relevant medical reports and records from which it might be gleaned that the appellant’s evidence (and in particular the evidence in the appellant’s affidavits) was unsatisfactory does not detract from the strength of the criticisms that his Honour was entitled to make (and rightly made) of the appellant as a witness.
The appellant’s husband
In submissions before us, much was made by counsel for the appellant of the fact that the respondent served notice on the appellant requiring the appellant’s husband to attend for cross-examination, the appellant’s husband was available for cross-examination and the respondent then decided not to cross-examine the appellant’s husband. The same point was made in respect of Dr Darling.
Counsel for the appellant submitted that, by reason of the failure of the respondent to cross-examine the appellant’s husband (and likewise Dr Darling), the evidence of the appellant’s husband (and similarly Dr Darling) was to be viewed as uncontested, and therefore should have been accepted. We do not accept that submission. In many circumstances, such submissions might find favour with the Court. However, in the context of this case, we agree with the judge (and largely for the reasons given by his Honour) that when one examines the evidence, and the way the case unfolded, there is nothing in the point. We deal first with the affidavit of the appellant’s husband. We shall deal later with the material (reports and records) provided by Dr Darling.
The appellant’s husband’s affidavit was largely to the same effect as the appellant’s affidavit evidence. Specifically, the appellant’s husband deposed:
I am aware that the plaintiff had earlier suffered injury at work in September 1995 (scil, November 1995) but my recollection is that after initial problems the symptoms gradually settled down over the years and the plaintiff was able to resume a wide range of activities including participating in employment again, maintaining our family arrangements and like activities including attending swim meets at which our son … was competing.
There has been a very significant change in our lifestyle since the subject incident on 5 November 2009.
While the plaintiff’s husband could have been cross-examined as to the inadequacies and inaccuracies in his affidavit in the same way the appellant was successfully cross-examined, in our view, little was likely to have been achieved. The respondent had already successfully challenged the version set forth in the appellant’s affidavits. Accordingly, in the context of this case, it was unnecessary to put the same material to the appellant’s husband in cross-examination. His Honour’s approach (which we have already set out above) was, with respect, correct.
The medical reports and records of Dr Darling
In the course of submissions, counsel for the appellant placed great reliance upon the reports of Dr Darling, and in particular the report of Dr Darling dated 30 March 2013. Specifically, reference was made to the following passages in Dr Darling’s report of 30 March 2013:
I have reviewed my clinical notes from 2005 to 2009 and find that Mrs Ifka attended seven times in 2005 for analgesic medication (no clinical notes about neck symptoms), six times in 2006 between January and September complaining of right neck and shoulder symptoms requiring pain relief and no consultations in 2007, 2008 or 2009 in relation to neck symptoms up until her accident in November 2009.
…
My opinion remains the same as in my report from 2012 that the injury is historically attributable to the workplace accidents[3] as described by Mrs Ifka with aggravation of pre-existing cervical degenerative disease known to be present since 1998.
I would agree with the view of specialist Dr David Brownbill … that the incident at work on 5 November 2009 (axial force through the cervical spine from an unexpected forceful downward blow to the top of her head against bottom edge of cupboard door while climbing a ladder) is a significant contributing factor to her ongoing neck condition aggravating pre-existing cervical spine degenerative disease.
…
The organic origin of her neck symptoms since her accident at work on 5 November 2009 seems clear to me taking into account the mechanism of injury (axial compression of cervical spine), cervical spine degenerative disease present prior to the accident (C5/C6 – disc degeneration), the apparent absence of symptoms in the three years prior to her accident (no complaints of neck symptoms recorded during her consultations) and her ongoing neck condition since the accident on 5 November 2009 with demonstrable physical signs (restricted movement associated with cervical muscle tenderness).
[3]This may be a reference to both the accident of 5 November 2009 and the incident of 13 December 2010 ─ although this passage in Dr Darling’s report is under the heading ‘The Relationship Between her Current Condition and her Injury on 5th November 2009’.
Under the heading ‘Prognosis’, Dr Darling went on:
The overall prognosis for improvement remains uncertain as there has been aggravation of pre-existing cervical degenerative disease and symptoms are ongoing after three and a half years.
As with all joint degenerative disease the condition will likely worsen slowly with aging and she will experience variable levels of pain after activity into the future.
I would defer to specialist opinion in this difficult case.
For the sake of completeness, we interpolate at this stage that the respondent relied upon Dr Darling’s preparedness to ‘defer to specialist opinion’ as an additional ground for supporting his Honour’s conclusions when his Honour ultimately preferred the opinions of the specialists Mr Siu and Dr Barton over the opinion of Dr Darling.
One of the major problems with the appellant’s reliance upon the passages to which we have just referred is to be found in Dr Darling’s notes which were tendered as part of the evidentiary material during the course of the application. Although Dr Darling stated in his report that he reviewed his clinical notes and that there was an absence of symptoms of neck complaint in the three years prior to the 5 November 2009 accident, a review of Dr Darling’s notes discloses (as was noted by the judge) that Dr Darling is in error. While some of the entries could be argued to be equivocal, there are entries in the notes that demonstrate the inaccuracy of the pivotal parts of Dr Darling’s report to which we have just referred. For example, Dr Darling’s notes for 16 June 2009 and 1 July 2009 contain entries as follows:
16/06/2009
…
Tender R Cx region.[4]
[4]Right cervical region.
…
01/07/2009
…
ct headache constant
Examination:
Cx spine
Management:
Pan fotre (scil, forte)/nurofen
…
Of course, other things being equal, it might have been necessary to afford Dr Darling an opportunity in cross-examination to comment on the significance of the error. In this case, however, that was not so because the parts of Dr Darling’s material which the appellant relies upon in support of the proposition that she did not have neck symptoms or complaints in the three years or so leading up to the 5 November 2009 accident cannot stand with the appellant’s concessions in cross-examination.
As with the evidence of the appellant’s husband, the appellant submitted that the medical reports of Dr Darling (and in particular the passages relied upon by the appellant) stood as unchallenged evidence and therefore should have been accepted by the judge. Like the judge, we reject this submission. The parties conducted the case below on the basis that each of them was entitled to rely upon the various medical reports and records that suited their cases. There was no suggestion that evidence could not be criticized unless it had been subjected to cross-examination. Otherwise, it would have been open to the respondent to submit that the opinions of Mr Siu and Dr Barton upon which the respondent relied were not cross-examined upon, were unchallenged and therefore had to be accepted. In our view, there is nothing in this point.
Before we leave this point, however, we add for completeness that it is in the nature of applications for leave to commence proceedings under s 134AB of the Act[5] that both sides frequently file volumes of medical evidence produced by witnesses who are not called by either side for cross-examination. As this Court has said before, therefore, the judge hearing such an application may be left with the invidious task of attempting to reconcile and resolve conflicting medical evidence without the benefit of seeing the witnesses or hearing cross-examination. In some cases, such circumstances are capable of being productive of unfairness. Nevertheless, as the judge said in this case, sensible parties in appropriate cases endeavour to conduct these applications as expeditiously as possible ─ and without the need for cross-examination of conflicting medical witnesses. Given the way this case was conducted, we do not consider that the failure of either side to cross-examine medical experts was productive of any unfairness.
[5]And also applications for leave to commence proceedings under s 93 of the Transport Accident Act 1986.
The 2011 letter
The appellant submitted that the reasons given by the judge did not justify a finding by him of non-organic injury.[6] In support of this submission, the appellant contended that the case below had been conducted on the basis that in the 2011 letter, to which we have already referred, the respondent admitted liability to pay an impairment benefit in respect of the following compensable injuries that occurred on 5 November 2009:
· Aggravation of pre-existing spondylosis and degenerative disease;
· Soft tissue injury to the head.
[6]Submissions of the appellant dated 16 September 2013, [14].
Counsel for the appellant contended that during the hearing of the application he relied upon this Court’s decision in Ansett Australia Ltd v Taylor[7] to advance an argument that the respondent had admitted that the appellant sustained the organic injuries set out above as a result of the accident on 5 November 2009. The respondent disputed that counsel for the appellant had so conducted the case before the judge.
[7][2006] VSCA 171.
Conventionally, Ansett v Taylor is relied upon as authority for the proposition that, by paying compensation, a party (absent some other evidence) may be taken to have made an admission that the relevant worker suffered compensable injury involving the affected body parts in respect of which compensation was paid. However, questions of the extent to which the acceptance of liability to make a payment might constitute an admission as to the full nature or effect of an injury can be problematic.
During the course of the appellant’s submissions before the judge, the issue as to the extent of any admission relied upon by the appellant was discussed by the judge and counsel for the appellant in the following terms:
HIS HONOUR: Hang on, you’re saying two different things.
COUNSEL: Sorry, your Honour.
HIS HONOUR: Is this acceptance on behalf of the defendant of compensable injury - - -
COUNSEL: Yes.
HIS HONOUR: And I think the defendant says yes it is?
COUNSEL: Yes.
HIS HONOUR: Are you going further than that in saying it’s acceptance of the nature of the injury described?
COUNSEL: No, I’m saying an acceptance of the injury on 5 November 2009.
HIS HONOUR: Yes, namely the plaintiff suffered compensable injury on 5 November 2009 involving the neck and head.
COUNSEL: Correct.
HIS HONOUR: All right?
COUNSEL: That’s it, yes.
HIS HONOUR: Neck and head injury, yes.
The judge’s approach (with which counsel for the appellant agreed) was in conformity with the reasoning in Ansett v Taylor.[8] When, however, it was put to counsel for the appellant at the hearing of this appeal that this exchange between himself and the judge made it difficult for him to now contend that the judge should have dealt with the appellant’s contention that the 2011 letter involved an admission as to the organic quality and nature of the appellant’s injuries, counsel informed us that he understood the judge to be excluding from consideration any suggestion that the respondent made an admission as to causation ─ rather than any question of the quality, nature or extent of the appellant’s injury.
[8][2006] VSCA 171.
We are unable to accept this contention. The effect of the exchange between the judge and counsel was clear. Counsel for the appellant relied upon the letter of 28 June 2011 and Ansett v Taylor[9] during the application for no more than the proposition that the letter contained an admission that the plaintiff suffered compensable injuries affecting her head and neck on 5 November 2011. There was no dispute between the parties as to the nature and extent of this admission. It follows that that the judge can hardly be criticized for failing to refer to the alleged admission for which the appellant now contends.
[9]Ibid.
Further, and in any event, such admission as could be construed from the 2011 letter was but one piece of the evidence in the appellant’s application. More central to the resolution of the appellant’s application was the appellant’s credibility as a witness – it being for the appellant to establish that her neck injury gave rise to impairment that satisfied the ‘at least very considerable’ test.[10]
[10]Cf s 134AB(38)(c) of the Act.
During part of the appellant’s submission before us, it seemed to be submitted that the judge was wrong to find the appellant’s injury was non-organic. To the extent that the appellant submitted that his Honour found that the appellant’s injury was entirely non-organic, we reject that submission. A fair reading of his Honour’s reasons discloses that his Honour concluded that the plaintiff sustained a physical injury which had led to the development of a non-organic condition (described as abnormal illness behaviour). This finding, having regard to the evidence to which we have referred and the evidence set out by his Honour, cannot be gainsaid.
Finally, on this point, we should say for completeness that any admission as to permanency constituted by the 2011 letter could only be an admission as to the position for the foreseeable future.[11]
[11]See AMP Workers Compensation Services Ltd v Chalkley [1998] VSC 29, [37]–[38]; Norris v Brumar (Vic) Pty Ltd [2009] VSC 214. Cf the facts referred to in Fokas v Staff Australia Pty Ltd [2013] VSCA 230, [33] concerning the admission of existing compensable injury made after earlier reports suggesting recovery had occurred had been obtained by the paying party.
An admission by paying medical expenses
The appellant submitted to this Court that the evidence disclosed that the respondent paid for medical treatment for physical or organic injuries (as distinct from non-organic injuries) sustained as a result of the 5 November 2009 accident. It was then submitted to us that these payments constituted an admission by the respondent that the appellant’s injuries sustained in the course of her employment on 5 November 2009 were organically based. This submission was not made to the judge below and thus was not dealt with by the judge in his Honour’s reasons.
Counsel for the appellant explained his failure to make these submissions to the judge on the basis that the submissions only became open to be made after this Court’s decision was delivered in Fokas v Staff Australia Pty Ltd.[12]
[12][2013] VSCA 230.
Fokas v Staff Australia PtyLtd[13] was decided by this Court on 12 September 2013, approximately four months after the judge gave judgment in the appellant’s application. In Fokas v Staff Australia Pty Ltd, the Court accepted that the payment of medical and like expenses under s 99 of the Act did, in the circumstances of that case, constitute an admission as to the nature and effect of the relevant compensable injury there under consideration. The appellant submitted that had this ‘new’ principle been identified by this Court before the conclusion of the application below, the appellant would have sought to rely upon it ─ but in any event seeks to rely upon it now.
[13]Ibid.
With respect, we see nothing new in Fokas v Staff Australia Pty Ltd.[14] Fokas was a decision that applied long settled principles to the facts found to exist in that case. Further, even if we were to accept the appellant’s submission that the payment of particular medical expenses from time to time in the present case constituted some admission of the appellant suffering compensable organic injury on 5 November 2009, for the reasons to which we have referred and the reasons below, the proper consideration of such an admission, in the light of the whole of the evidence and in the context of whether the appellant could satisfy the ‘at least very considerable’ test would not justify us in overturning the judge’s ultimate conclusion.
[14]Ibid.
For these reasons and the reasons we have given in respect of the 28 June 2011 letter, we reject the appellant’s submissions concerning such admissions as can be constructed from the respondent’s payment of medical and like expenses following the appellant’s suffering compensable injury on 5 November 2009.
The appellant’s complaints about the judge’s reasons
The notice of appeal contained 12 grounds of appeal. Three of the grounds directly attacked the judge’s reasons as inadequate (grounds 3, 5 and 12), and one ground attacked the judge’s reasons peripherally (ground 7). In addition to those grounds, the appellant attacked the judge’s reasons for failing to deal with the admissions points to which we have already referred.
We reject the appellant’s attack on the judge’s reasons. In our view, the reasons were careful, considered, detailed and dealt appropriately with the issues that fell to be determined in the appellant’s application. The reasons disclose a clear path of reasoning and enable the appellant to know precisely why her application was dismissed.
It is also well to remember the statement of Gleeson CJ, McHugh and Gummow JJ in Whisprun Pty Ltd v Dixon,[15] that:
[15](2003) 77 ALJR 1598.
A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
…
To suggest that a trial judge has not properly considered the party’s case is a serious charge. Such a suggestion should be accepted only when the record of the trial or other evidence persuasively suggests that the judge failed to discharge that paramount judicial duty.[16]
[16]Ibid 1610 [62]–[63].
In this case, that is of particular significance, because of a number of parallels, not the least being that, as in Ms Dixon’s case, the appellant’s case here was heavily dependent upon her credibility as a witness being accepted by the judge. Unfortunately for the appellant, it was not ─ and the judge gave detailed reasons why he found the appellant an unsatisfactory witness. There is nothing to suggest that his Honour failed to give appropriate consideration to the whole of the evidence ─ indeed his Honour’s reasons for judgment belie any such suggestion. Additionally, the admissions for which the appellant contended before us, even if accepted, could not have changed the outcome once the appellant’s credibility was properly assessed. The contended for admissions as to an organic component of the appellant’s injuries could not preclude the possibility of the evidence disclosing a changing (and perhaps increasing) non-organic component.
Conclusion
As this Court has said many times before, it is difficult for an appellant to demonstrate that a trial judge’s evaluation of the existence or otherwise 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’.[17] In this case the appellant has failed to demonstrate specific error. Further, far from the decision at first instance being plainly wrong, we think his Honour was correct when he refused the appellant’s application.
[17]Cowden v TransportAccidentCommission [2003] VSCA 198 [18]; and Ellis Management ServicesPty Ltd v Taylor [2013] VSCA 326.
The appeal must be dismissed.
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