Jarvie v Sideliner Contracting Pty Ltd
[2024] VSCA 144
•27 June 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0129 |
| GRAEME JARVIE | Applicant |
| v | |
| SIDELINER CONTRACTING PTY LTD | Respondent |
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| JUDGES: | BEACH, MACAULAY and LYONS JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 June 2024 |
| DATE OF JUDGMENT: | 27 June 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 144 |
| JUDGMENT APPEALED FROM: | [2023] VCC 1853 (Judge Ginnane) |
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ACCIDENT COMPENSATION – Workplace accident – Serious injury – Lumbar spine injury resulting from performance of heavy work – Application by worker to commence common law proceeding for damages in respect of serious injury – Whether injury serious within meaning of s 325(1) of Workplace Injury Rehabilitation and Compensation Act 2013 – Application refused by primary judge – Judge erred in refusing application – Appeal allowed.
Workplace Injury Rehabilitation and Compensation Act 2013, ss 325 and 335.
Barwon Spinners Pty v Podolak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Hayden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Transport Accident Commission v Kamel [2011] VSCA 110; Philippiadis v Transport Accident Commission [2016] VSCA 1; Sheridan v Victorian Workcover Authority [2019] VSCA 54, applied.
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| Counsel | |||
| Applicant: | Ms FAL Ryan SC with Ms K Popova | ||
| Respondent: | Ms RL Kaye KC with Mr R Kumar | ||
Solicitors | |||
| Applicant: | Maurice Blackburn | ||
| Respondent: | Hall & Wilcox | ||
BEACH JA
MACAULAY JA
LYONS JA:
Between March 2002 and November 2016, the applicant was employed by the respondent as a lining installer. His employment required him to clean domestic sewerage pipes and install a membrane or sleeve as lining inside those pipes. Aspects of the work were heavy and strenuous. Specifically, the applicant’s employment required him to move heavy equipment; to operate machinery which required force and placed strain on his body; and to perform some of these duties in a bent over position.
On about 30 August 2011, the applicant felt pain in his back while operating a machine in the course of his employment. He attended a general practitioner, Dr Atef Abdelmalak.[1] He had a little time off work, and submitted a WorkCover claim which was accepted by the respondent. The applicant had further episodes of back pain at work, until the business of the respondent ultimately shut down in 2016.
[1]At the Silverton Medical Clinic.
By an originating motion filed in the County Court on 27 April 2022, the applicant sought leave, pursuant to s 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (the ‘Act’), to commence a proceeding at common law claiming damages in respect of the injuries he sustained in the course of his employment with the respondent.
The application was heard in the County Court by his Honour Judge Ginnane on 4 October 2023. The applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 325(1) of the Act — namely, ‘permanent serious impairment or loss of a body function’. The body function relied upon was the function of the lumbar spine. At trial, the applicant confined his claim to an application for leave to commence a common law proceeding for damages for ‘pain and suffering’ within the meaning of s 325 of the Act.
On 24 October 2023, pursuant to reasons delivered on 17 October 2023,[2] the judge dismissed the applicant’s proceeding and ordered him to pay the respondent’s costs of the proceeding.
[2]Jarvie v Sideliner Contracting Pty Ltd [2023] VCC 1853 (‘Reasons’).
The applicant now seeks leave to appeal against the judge’s orders. In four proposed grounds of appeal, the applicant contends, in summary, that:
(a)the judge erred in making findings which ‘misapprehended the evidence’ (proposed ground 1);
(b)the judge ‘erred in failing to give any or any sufficient weight to the unchallenged consequences of the impairment of the applicant’s spine’ (proposed ground 2);
(c)on ‘a proper evaluation of the impairment consequences’, either as found by the judge and/or on the evidence, the judge’s conclusion that the applicant’s spinal injury was not a serious injury was wrong (proposed ground 3); and
(d)the judge’s reasons in relation to the applicant’s right leg pain were inadequate (proposed ground 4).
The evidence generally
On the hearing of the application in the County Court, the applicant relied upon four affidavits: two affidavits sworn by him on 16 December 2021 and 16 September 2023; an affidavit affirmed, on 16 September 2023, by the applicant’s partner, Janet Sover; and an affidavit affirmed, on 19 September 2023, by a close friend of the applicant, Ross Wood.
Prior to trial, the respondent gave notice that it required the applicant and his two lay witnesses to be available for cross-examination. At trial, however, the respondent did not seek to cross-examine the applicant or either of his witnesses.[3] Indeed, it positively abandoned its position that the applicant and the deponents of the other affidavits relied upon by the applicant were required for cross-examination. In the result, the applicant gave some short evidence-in-chief in which he adopted (with a couple of minor variations) his affidavits as being true and correct. There was no cross-examination of the applicant, and no further viva voce evidence was called.
[3]Notwithstanding, as the judge observed, that the applicant and his partner had travelled from Western Australia so as to make themselves available for cross-examination: Reasons [4].
In addition to the four affidavits to which we have referred, at trial, the parties tendered a number of other documents, including medical records, reports of radiological examinations and medical reports relating to the applicant.
Applicant’s background and evidence
The applicant was born in March 1959. He left school at the age of 14 and engaged in various forms of manual and semi-skilled employment. He was 43 when he commenced employment with the respondent, 57 when he finished working for it, and 64 at the time his application was heard in the County Court.
In about March 2002, he commenced employment with the defendant as a lining installer. As we have said, aspects of this work were heavy and strenuous, and required him to work in a bent over position. In his first affidavit, the applicant described his work with the respondent in some detail, observing that parts of it were ‘very strenuous’, and other parts of it involved ‘using a great amount of force … while in a bent posture’. His duties also required him to work ‘as quickly as possible’.
In his first affidavit, the applicant described feeling a pain in his back at work, on 30 August 2011, when a machine he was using slipped at a time when he was using ‘great force’. As we have already observed, following this initial incident, the applicant attended Dr Abdelmalek, and had a short period of time off work. The applicant deposed, however, that he was keen to get back to work and the respondent was keen to have him back. He went back to work, but hurt his back again a couple of months later.
The applicant’s evidence was that he continued to have a sore back, but also continued to work in his ‘normal duties’ — albeit, from time to time, he would ‘back off and do more supervising’. In about late 2015, however, his back pain ‘got a lot worse … from all the hard work, bent over [two of the machines he was required to use]’. Again, the applicant consulted his general practitioner;[4] he was given a certificate, but ultimately he continued to work.
[4]This time it was Dr Rachel Abdelmalak, who also practised at the Silverton Medical Clinic.
In May 2016, while the applicant was bent over using a sewer machine and operating a lever which changed the direction of the machine from forward to reverse, he felt a ‘really sharp pain in [his] lower back’. Again, he sought medical treatment, this time from a medical clinic suggested by an owner of the respondent,[5] as well as from his own doctor,[6] but ultimately he went back to work even though his back was ‘still very sore’.
[5]Dr Rita Tuladhar at the Valewood Clinic
[6]Dr Rachel Abdelmalak at the Silverton Medical Clinic.
In his first affidavit, the applicant described the respondent’s work as drying up in November 2017[7] and then trying to work for other employers (performing welding work, working as a spotter and performing work involving small engine repairs).
[7]He corrected this in his evidence-in-chief, saying the work dried up in November 2016.
Critically, in his first affidavit, the applicant described his then current condition (being his condition as at December 2021, some ten years after he first experienced back pain in the course of his employment with the respondent, and five years after that employment terminated) in the following terms:
23.I have back pain almost all the time. I get weeks here and there when I feel okay but then the pain comes back. The pain can be very bad. I now have pain in my right leg too. That is there all the time. The pain in my back can be so bad that I walk awkwardly. I cannot go back to the kind of heavy labouring work that I had done in the past. Recently, I went and got a heavy truck licence. I tried to do some of that work but my back pain flared up when I lifted a couple of plastic bollards. They were not heavy. I got a sharp increase in back pain and the strong leg pain became permanent. I felt exhausted. I have tried everything I can to work with or work around my low back injury but I just cannot do it anymore. I do not have any more ideas. I believe I just cannot work again.
24.At present, I am living in a Winnebago and I have been driving around. I can sit for quite a while but when I get up I am very stiff and sore. I can walk pretty well but I limp a bit when I first get up. The pain in my back stops me from sleeping properly. I feel tired and under slept after a night of poor sleep.
25.I take Panadol for back pain quite regularly. I also take Mersyndol. If I can get a hold of some Endone off a friend, I will take it and it knocks me out for a day. Recently, I was seeing someone who was a remedial masseuse. She provided free massage. I also have exercises and stretches to do which I remember from physiotherapy. I am not getting better. I only seem to be getting worse.
In his second affidavit, the applicant referred to his first affidavit,[8] before describing the activities he had engaged in since swearing that affidavit. The applicant described periods of work, periods when he did not work, and travelling to Perth to visit his son. The applicant described needing to find work, looking for work, and concealing his back injury in pre-employment medical examinations. In relation to a job the applicant had in 2022, with an organisation called Total Waste, the applicant said:
A couple of times I left the job but then I came back. My back would feel a bit better and I needed money. Eventually, I would regret it because I would flare up my low back pain again.
[8]Albeit that he incorrectly described his first affidavit as having been sworn on 10 December 2021, when it was in fact sworn on 16 December 2021.
The applicant said that, in April 2023, he obtained a job with an organisation called Swan Ethos. While he continued to work there full time, he described struggling with low back pain when performing work which required him to lift or pick up items and/or when doing the delivery work that he was required to perform in the course of that employment.
As to the applicant’s condition at the time he swore his second affidavit (September 2023), the applicant said:
7.I have back pain almost all the time. It is basically the same as it was when I swore my last affidavit. Even when it is not so bad, I feel like I am on eggshells waiting for it to go again. I also still have pain in my right leg. It is there all the time. I still feel that I walk awkwardly.
8.I continue to see the doctor at Kenwick but not for low back pain. I have learned to cope with the pain. I know what will set it off. I know how to rest and get it to settle down. I have not had a prescription for Mersyndole [sic] for some time. Eventually, I just ran out. I noticed that Panadol Osteo was just as effective as controlling my low back pain. Earlier this year, I asked for an up to date CT scan of my back. I took the results with me when I went to Melbourne to see the specialists organised by my solicitors.
9.I understand that both the specialists who provided opinions for my solicitors and for the defendant say that I would need surgery on my spine if I cannot manage the pain. I would much rather put off any surgery for as long as possible. I can stand most of the pain and try to avoid flaring it up. If I do get a flare up, then I just rest and take Panadol Osteo. Eventually, the flare up settles down and I start the cycle over again.
10.As a result of the injury in my lower back, I find I am limited in how long I can sit. If I am driving for too long, I get quite stiff and sore. If I bend down too much, I can get a flare up of pain, which can last for just a few minutes or up to a few days. My current job is not as strenuous as my previous job, so I have not had to take as much time off work. As a result of the injury to my back, I continue to walk with a bit of a limp.
11.My sleep is still affected by low back pain. That is just part of my life now. I get woken through the night by low back pain. I just roll over and get a twinge and I wake up. That can happen several times in a night. I feel tired and under slept the next day. I am grumpy during the day. When I was living on my own, I did not notice it much. Now that I am in a relationship, I can tell how much my mood changes and affects Janet.
Evidence of Janet Sover
In her affidavit, Ms Sover said that she was the applicant’s partner, having known him since March 2022. Ms Sover’s evidence was that she was aware of the applicant’s back injury, and that they spend ‘quite a lot of time together’.
Ms Sover described the applicant as ‘always walking on eggshells so that he doesn’t irritate or aggravate his back’. She said that the applicant becomes very irritated and frustrated; tries to rest and sit when he is in pain; and will take painkillers when he needs to.
Ms Sover’s evidence was that the applicant ‘doesn’t help with the mopping and vacuuming because he can’t do it due to his back pain’. She said that she had observed the applicant struggling to put on his shoes. He walks with a limp, and struggles to walk long distances. She also referred to restrictions the applicant has with his ability to engage in riding motorbikes; and to the intimacy between her and the applicant being affected by his back injury.
Ms Sover concluded her affidavit by saying that the applicant ‘is a very stoic individual’ who, despite his pain, ‘tries to cover it and get on with things’. She said that she believed that the applicant’s quality of life ‘has been drastically reduced’.
Evidence of Ross Wood
In his affidavit, Mr Wood said that he was a close friend of the applicant, having known him for about 20 years. Mr Wood’s evidence was that, some time prior to 2015, the applicant started to complain about his back. These complaints gradually got worse. Mr Wood recalled the applicant telling him that it was because of the work he did for the respondent.
Mr Wood described the applicant as a man who was ‘active and motivated’, and who always worked very hard, prior to the development of his back problem.
Mr Wood’s evidence was that the applicant’s back problem affected the applicant’s social life. Mr Wood observed the applicant hobbling; and that the applicant would wear thongs because he (the applicant) said that they were easier to put on than shoes. Mr Wood said that he could see when the applicant was in pain and that the applicant would take painkillers in front of him.
In his affidavit, Mr Wood also referred to the detrimental impact the applicant’s back condition has had on his ability to garden and to participate in his passion for motorbikes.
Medical evidence
The medical evidence consisted of the relevant notes from the clinics attended by the applicant;[9] a report of a CT scan of the applicant’s lumbosacral spine taken in October 2011; reports of CT scans of the applicant’s lumbar spine taken in May 2016, June 2019 and February 2023; an attending doctor’s statement, and medical report, completed by Dr Atef Abdelmalak; a medical report from a general practitioner, Dr Quamrun Moushumi, who saw the applicant in WA at the Kenwick Medical Centre; and medico legal reports provided by Professor Paul D’Urso, Dr James Rowe and Professor Bryant Stokes.
[9]The Silverton Medical Clinic, at which the applicant saw, amongst others, Dr Atef Abdelmalak and Dr Rachel Abdelmalak; the Valewood Clinic, to whom the applicant had been referred by the respondent; the United Medical Centre, where the applicant had attended on a few occasions in late 2020/early 2021; and the Kenwick Medical Centre in WA, where the applicant had attended on a number of occasions in 2022 and 2023.
It is not necessary to summarise any of the medical records or the reports of the general practitioners. While that evidence provides relevant context and throws some light on the nature of the applicant’s injury, the more central medical evidence is to be found in the reports of the medico legal specialists, which we will now summarise.
Evidence of Professor Paul D’Urso
Professor D’Urso is a neurosurgeon, who examined the applicant at the request of his solicitors in February 2023, and provided a report dated 13 February 2023.
In his report, Professor D’Urso expressed the opinion that the applicant’s employment with the respondent had aggravated an underlying degenerative condition of the lumbosacral disc, and had possibly contributed to the development of a disc prolapse at the L4-5 level. He said that the applicant also went on to present with ‘chronic back pain and some right-sided sciatic symptoms’. Professor D’Urso said that if the applicant’s symptoms were to progress and neurological deterioration occur, ‘consideration could be given to a two-level minimally invasive instrumented interbody and posterolateral fusion at L4-5 and L5-S1’.
Professor D’Urso expressed the opinion that the applicant should avoid lifting weights in excess of ten kilograms; avoid prolonged sitting, standing or walking activity beyond 30 minutes; and avoid climbing at height on steps or ladders or working in confined spaces. He said that these restrictions ‘would be of a permanent nature into the foreseeable future’. He also said that these restrictions may prevent the applicant from performing more arduous domestic cleaning or gardening activity and would prevent him from performing any type of vigorous recreational sporting activity, as well as from riding a motorbike and kick-starting a motorbike as he once did. Professor D’Urso concluded his report by saying:
The prognosis is likely to be satisfactory with appropriate management. Graeme will be prone to degenerative progression with time which, on the balance of probabilities, is more likely than not. Graeme will be at risk of progressive disc prolapse at the L4-5 motion segment and the risk of disc rupture which can be difficult to determine and predict. Graeme’s condition will need to be managed by a general practitioner, physiotherapist and spinal surgeon into the future. Should there be significant deterioration of the condition, surgical intervention could well be required.
…
Graeme Jarvie presents with a history of chronic back pain and sciatic symptoms. It would appear that physical activity performed in the workplace precipitated the onset of symptoms and aggravated an underlying degenerative condition of the lumbar spine and possibly contributed to the development of an L4-5 intervertebral disc prolapse. Graeme’s condition has essentially stabilised at this time, although he will be prone to degenerative progression with a risk of progressive disc prolapse at the L4-5 motion segment which could be difficult to determine and predict. Graeme would appear to have capacity for light employment as a truck driver at this time. Graeme’s condition would appear to have had a mild to moderate effect on his social, domestic and recreational spheres.
Evidence of Dr James Rowe
Dr Rowe is a specialist occupational physician, who examined the applicant at the request of his solicitors in February 2023, and provided a report dated 9 February 2023.
After setting out the applicant’s history and a description of the medical investigations and treatment, Dr Rowe noted that the applicant continued to report pain and restriction ‘about his lower back, with radiation to the right leg’.
Dr Rowe’s evidence was that the applicant ‘has restricted capacity for bending, lifting, walking long distances and for prolonged sitting and standing; his sleep quality is poor and broken; and he feels tired and lethargic during the day’. Dr Rowe noted that the applicant was not attending physiotherapy and was not under the care of any medical specialists, but that he attended a local GP from time to time and was prescribed medication including Lyrica, Endone and Mersyndol.
Dr Rowe said the applicant’s diagnosis was ‘an aggravation of lumbar spondylosis, particularly about the L5/S1 and L4/5 levels with degenerative changes also about the lower facet joints and bilateral sacroiliac joints’. Dr Rowe said that CT scanning showed that there was ‘definite compression of the right descending L5 nerve root, consistent with radiculopathy about the right leg’.
Dr Rowe expressed the view that, as a consequence of the applicant’s injuries to his low back, ‘there has been considerable compromise of [his] social, domestic and recreational capacity’. Dr Rowe concluded his report by saying that the applicant’s prognosis was ‘somewhat guarded’.
Evidence of Professor Bryant Stokes
Professor Stokes is an emeritus consultant neurosurgeon, who examined the applicant at the request of the respondent’s solicitors in July 2023, and provided a report dated 1 August 2023.
Professor Stokes recorded the applicant’s presenting complaints as being ‘a dull ache in his low back and intermittent pain in his left leg’. On clinical examination, he said that the applicant presented ‘very sensibly and gave a good account of himself’. In respect of the various investigations of the applicant, Professor Stokes said:
The multiple CT scans which you have sent show that Mr Jarvie has significant disc degeneration at L5/S1 and facet joint degenerative changes in the facet joints above and you will note there has been a comment by Dr D’Urso, Neurosurgeon that he may require fusion at L5/S1 in the future and I would agree with that that [sic] if his symptoms cannot be managed.
Professor Stokes expressed the opinion that the applicant ‘has got severely degenerative L5/S1 discs’. He said that the applicant has an ongoing lower back impairment, which he presumed was contributed to by incidents that occurred in the course of the applicant’s employment with the respondent in 2011, 2015 and 2016.
The judge’s reasons
After setting out the relevant legal principles,[10] and summarising the evidence[11] and the submissions of the parties,[12] the judge commenced his analysis by noting that the dispute was a narrow one: namely, whether the applicant’s pain and suffering consequences satisfied the well-known ‘very considerable’ test.[13]
[10]Reasons, [7]–[14].
[11]Ibid [15]–[100].
[12]Ibid [101]–[131].
[13]Ibid [132]. See s 325(2)(c) of the Act.
The judge observed that, in circumstances where the applicant was not cross-examined, the applicant’s credit had not been put in issue by the respondent; and the applicant’s evidence ‘should therefore be considered in that light’.[14]
[14]Reasons, [133].
The judge accepted that the applicant ‘suffered injury in the form of an aggravation of lumbar spondylosis, particularly about the L5/S1 and L4/5 levels’.[15] The judge then said, in a passage the applicant takes specific issue with under proposed ground 1:
136I find that the plaintiff’s pain is not constant but that it comes and goes. I note in his further affidavit, the plaintiff deposed that he experiences back pain almost all the time, and when the pain is not so bad, he feels like he is ‘walking on eggshells’ that is, he is anticipating the next flareup. I prefer the plaintiff’s other description provided in his first affidavit that ‘I get weeks here and there when I feel okay but then the pain comes back’. I also find that this description by the plaintiff better fits with the opinion of Professor D’Urso, who in his report on behalf of the plaintiff dated 13 February 2023, recited that the plaintiff explained to him that he was suffering from ‘chronic back pain, which on an average day can be 1/10 but on some days can be up to 7/10’. Allowance must also be made for the fact that the plaintiff said that he can tolerate most of his pain but I accept that on some occasions when a flare up is experienced, the pain can be ‘very bad’. I find on the balance of probabilities that the duration of the severity of pain is more often than not of short duration and can be managed by paracetamol. Moreover, I am satisfied the plaintiff is conscious of and can very largely anticipate, and mostly avoid the circumstances of functional activity that can trigger a flare up.[16]
[15]Ibid [135].
[16]Footnotes omitted.
The judge accepted that the applicant ‘walks with an observable limp’. The judge noted that the applicant said, however, that ‘it comes on after prolonged sitting and when he rises’.[17]
[17]Ibid [138].
The judge said that the fact that the applicant remains in employment was ‘not itself a disentitling reason for the grant of a serious injury [sic] in a pain and suffering application’, but it was a ‘relevant consideration as part of the totality of circumstances’.[18]
[18]Ibid [139].
The judge observed that the applicant was not at the time of trial attending any doctor for medical treatment for his back because, as he (the applicant) explained it, ‘he has learnt to cope with the pain and he knows what will set it off’.[19]
[19]Ibid [140].
In another passage in the Reasons with which the applicant takes specific issue under proposed ground 1, his Honour said:
143I accept that there are nights when his pain can result in him sleeping poorly, although I concede the validity of the point made by [counsel for the defendant], that the frequency of his sleep disturbance was not deposed to and neither has the interference to it been of such order to have prompted the plaintiff to seek medication to aid his sleep.
The judge made further reference to the medical evidence,[20] before citing the following passage from the judgment of Maxwell P in Haden Engineering Pty Ltd v McKinnon:
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’.[21]
[20]Ibid [144]–[152].
[21](2010) 31 VR 1, 5 [14] (‘Haden Engineering’) (citation omitted).
Finally, the judge concluded his reasons for judgment by saying:
160I am not satisfied that, for example, the plaintiff can be said to ‘suffer a continuous substantial level of pain’.[22] In addition my assessment, is that pain cannot be said to dominate the plaintiff’s life. He is able to engage in full time employment, although not in heavy labouring roles, like the duties he had performed with the defendant, but instead in what can be described as lighter manual handling roles. He has demonstrated an ability to substantially perform the suite of duties required of his roles with Total Waste, and with Swan Ethos in Perth.
161Considered overall, even if there are impairment consequences and pain consequences for the plaintiff that could be described as marked or significant, I am unable to accept that the pain and suffering consequences could be said to dominate his life or be at a level where his experience of pain and the impairment consequences of his condition, within the range of possible impairments, can be fairly described as very considerable.[23]
For completeness, we should note that Reasons [160] is also the subject of specific complaint by the applicant under proposed ground 1.
[22]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, [48].
[23]Footnote and emphasis in original.
Applicant’s submissions
Under proposed ground 1, the applicant contended that the judge ‘misapprehended the evidence’, leading to him making three specific errors:
(1)First, the judge’s finding at Reasons [136] that the applicant’s pain was ‘not constant but that it comes and goes’ involved the erroneous taking of one sentence in the applicant’s first affidavit out of context, paying little (if any) regard to the totality of the evidence.
(2)Secondly, the finding at Reasons [143] that, while there are nights when the applicant’s pain can result in him sleeping poorly, the frequency of his sleep disturbance was not deposed to and was not of such order to have prompted the applicant to seek medication to aid his sleep, cannot stand in the face of the applicant’s unchallenged evidence in paragraph 11 of his second affidavit, in which the applicant said that the frequency of his sleep disturbance was such that it is a pervasive problem that is now ‘a part of [his] life’.
(3)Thirdly, the judge’s finding at Reasons [160] that the applicant had ‘demonstrated an ability to substantially perform the suite of duties required of his role with Total Waste’ cannot stand in the face of the applicant’s evidence about the difficulties he had when working at Total Waste, which led to him ceasing that employment and subsequently commencing work at Swan Ethos, where ‘the money is not great’.[24]
[24]See paragraph 5 of the applicant’s second affidavit.
Under proposed ground 2, the applicant submitted that the judge erred in failing to give sufficient (or any) weight to ‘the unchallenged consequences of the impairment of the applicant’s spine’. Specifically, the applicant contended that, when determining whether the applicant had suffered a serious injury, the judge failed to have regard to the applicant’s constant right leg pain; the narrowing in the range of the employment options open to the applicant; and the ongoing difficulty the applicant experiences in his employment at Swan Ethos.
Under proposed ground 3, the applicant submitted that, on a proper evaluation of the impairment consequences as found by the judge and/or as demonstrated by the evidence, the applicant’s spinal injury met the statutory test for it to qualify as a serious injury within the meaning of s 325 of the Act. The applicant submitted that the judge’s conclusion to the contrary was wrong.
Under proposed ground 4, the applicant contended that the judge failed to provide proper reasons, in that he did not explain what, if any, findings he made about the applicant’s right leg pain; alternatively, if the judge rejected the applicant’s evidence as to his right leg pain, the Reasons do not disclose the basis upon which that evidence was rejected.
Respondent’s submissions
The respondent supported the judge’s reasoning, contending that the proposed appeal did not have any real prospect of success, and that the application for leave to appeal should be refused. In summary, the respondent submitted that the onus was on the applicant to satisfy the ‘very considerable’ test in s 325(2)(c) of the Act and that he had failed to do so on the material before the judge, with the result that the judge was correct to refuse his application for leave to commence a proceeding for common law damages.
In relation to proposed ground 1, the respondent submitted that there was no error in the judge making any of the three findings now sought to be impugned, and that each finding was well supported by the evidence. Specifically:
(1)In relation to the finding at Reasons [136], the respondent submitted that the judge was entitled to rely on the sentence in the applicant’s first affidavit (which the applicant contends was relied upon by his Honour out of context) because in his second affidavit, the applicant deposed that his pain was ‘basically the same as it was when I swore my last affidavit’.
(2)In relation to the finding at Reasons [143], the respondent submitted that the judge was correct when he said that the applicant did not depose to the frequency with which he experienced nights where he was woken by low back pain; and also correct when he said that the applicant had not sought medication to aid his sleep.
(3)In relation to the finding at Reasons [160], the respondent submitted that the judge’s finding was a fair summary of the applicant’s evidence, particularly given the failure by the applicant to depose in any detail to the periods of time when he was off work at Total Waste.
The respondent submitted that there was no substance in proposed ground 2. The question of the weight to be given to the matters referred to by the applicant under proposed ground 2 were, it was submitted, a matter for his Honour. Contrary to the applicant’s submissions, the judge took each of these matters into consideration in the Reasons.[25]
[25]The respondent referred to Reasons [32], [37]–[43], [44], [70], [74]–[75], [82], [85], [114], [138], [139], [141], [144] and [158].
In answer to proposed ground 3, the respondent submitted that the applicant bore the onus of convincing the judge that, when judged by comparison with other cases in the range of possible impairments or losses, the impairment of the applicant’s lower back could be fairly described as being more than significant or marked, and as being at least very considerable (the ‘very considerable test’). The respondent observed that this Court has held that weight must be given to the adverb ‘very’.[26]
[26]Sabo v George Weston Foods [2009] VSCA 242, [73] (Neave and Mandie JJA).
The respondent submitted that the judge gave ‘careful consideration’ to the question of whether or not the applicant met the ‘very considerable’ test, including by setting out the evidence and submissions made by the parties and then engaging in a lengthy analysis of that evidence from Reasons [132] onwards. The respondent submitted that there was no error in this analysis or in the judge’s ultimate conclusion.
In relation to proposed ground 4, the respondent submitted that there was no inadequacy in the Reasons. The judge referred to the applicant’s problems with his right leg. As the respondent put it, ‘There was no need for anything further than that’.
Consideration
Proposed grounds 1, 2 and 3
Proposed grounds 1, 2 and 3 are, to some extent, interrelated. While proposed ground 1 asserts that the judge erred in the making of three specific findings, proposed ground 2 (which falls properly to be considered as a particular of proposed ground 3) and proposed ground 3 call into question the correctness of the judge’s ultimate conclusion that the applicant’s injury to his lumbar spine was not a serious injury because it did not satisfy the very considerable test.
There is some force in the applicant’s submissions made under proposed ground 1. Ultimately, however, having conducted the review of the evidence required to be conducted by an appellate court in an appeal by way of rehearing,[27] for the reasons which follow, we have concluded that the judge erred in not accepting that the applicant’s lumbar spinal injury satisfied the very considerable test; and that, accordingly, proposed ground 3 must be upheld.
[27]Fox v Percy (2003) 214 CLR 118, 126–7 [25] (Gleeson CJ, Gummow and Kirby JJ); Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 687 [43]; Lee v Lee (2019) 266 CLR 129, 148 [55] (Bell, Gageler, Nettle and Edelman JJ).
That said, before giving our reasons for upholding the appeal under proposed ground 3, we will deal with the complaints made by the applicant under proposed ground 1, because they are relevant to the question of whether or not the applicant’s injury satisfied the very considerable test. Specifically:
(1)There is force in the applicant’s submission that the judge erred in finding that the applicant’s pain was ‘not constant but that it comes and goes’.[28] The judge appears to have found that the applicant gave different versions about the nature and extent of the pain from which the applicant suffered, and then concluded that he preferred one of those versions over others. Properly analysed, however, the applicant gave the one consistent version about the pain from which he suffered. With respect, the judge erred when he elevated one sentence of one of the applicant’s affidavits above the balance of the applicant’s evidence. In the circumstances of this case, where the respondent chose not to cross-examine the applicant, it was not open for the judge to take this approach.
(2)The applicant’s submission that the judge erred in only accepting that ‘there are nights when his pain can result in [the applicant] sleeping poorly’[29] also has some force. On a proper consideration of the applicant’s evidence on this topic, the judge should have concluded that the sleep difficulties deposed to by the applicant were a constant part of his life. There was no basis for his Honour to conclude that the applicant’s sleep problems were anything other than a nightly occurrence. The applicant’s evidence was that his pain stopped him from sleeping properly. His evidence was not that the pain stopped him from sleeping properly only on some nights. As he (the applicant) described it, the effect on his sleep was ‘just part of my life now’, being ‘woken through the night by low back pain’.
(3)There is some force in the applicant’s submission that the judge’s finding that the applicant had ‘demonstrated an ability to substantially perform the suite of duties required of his role with Total Waste’ cannot stand in the face of the applicant’s evidence about the difficulties he experienced when working at Total Waste. The applicant’s unchallenged evidence was that the difficulties he had when working at Total Waste led him to ceasing that employment and subsequently commencing work at Swan Ethos, where ‘the money is not great’. In the circumstances, we do not think that the evidence justified the judge’s conclusion that the applicant had ‘demonstrated an ability to substantially perform the suite of duties required’[30] at Total Waste.
[28]Reasons [136].
[29]Ibid [143].
[30]Cf Reasons, [160].
We turn now to consider proposed ground 3 (of which, as we have already said, proposed ground 2 is a particular).
Notwithstanding the respondent’s initial request to cross-examine the applicant and the deponents of the other affidavits upon which the applicant relied, ultimately, the respondent chose not to cross-examine any of the witnesses. In these circumstances, the judge enjoyed very little (if any) advantage over this Court in determining whether or not the consequences of the applicant’s spinal injury met the very considerable test.
Having reviewed the evidence for ourselves, we are satisfied that the very considerable test has been met in this case. It is plain from the totality of the evidence that the applicant has suffered, and will continue to suffer, consequences in the form of pain and suffering and loss of enjoyment of life which are more than marked, more than significant, and which can fairly be described (when judged by comparison with other cases in the range of possible impairments or losses of a body function) as being at least very considerable. The pain and limitations described by the applicant pervade all aspects of his life. This includes both back pain and the related pain in his right leg. It is clear that when undertaking almost any activity, the applicant is either suffering from significant pain, or taking some step or steps to avoid exacerbating his pain.
Additionally, the fact that the applicant’s injury substantially interferes with his ability to sleep, as well as his daily activities, underscores the very considerable effects of the injury. It also interferes with his ability to obtain employment of the kind he engaged in before the injury. This also underscores the very considerable effects of the injury.
Further, the specialist medical evidence[31] is that the applicant ‘will be prone to degenerative progression with time’, leading to the real risk (if not likelihood) of the need for surgical intervention. Thus there can be little doubt that the very considerable effects of the applicant’s injury are ‘permanent’, in the sense that they are likely to last for the foreseeable future.[32]
[31]Given by Professor D’Urso (extracted at [32] above) and Professor Stokes (extracted at [39] above).
[32]See Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622, 639 [33]; Sheridan v Victorian Workcover Authority [2019] VSCA 54, [63].
While it is correct to point out the applicant has not engaged in an extensive amount of medical treatment, and correct as well to note the relatively modest amounts of medication used by the applicant, it is also to be remembered that the unchallenged evidence of the applicant’s partner is that the applicant ‘is a very stoic individual’, who ‘tries to cover it [the effects of his back condition] and get on with things’. That evidence was unchallenged at trial. In the context of all of the evidence tendered before the judge, it more than explains any perceived modesty in the applicant’s levels of treatment or medication.
Moreover, the fact that the applicant is stoic and attempts to work (and indeed works), in circumstances where others with the same injury might not, is not a matter which ought to work against him. As this Court has said before, a stoic applicant who has been prepared to put up with pain and suffering and make the best of his or her situation should not be treated less favourably than an applicant who, being of less strength of character, simply resigns himself or herself to the injury.[33] The stoic tends to understate the level of pain experienced and, hence, mask to the observer the true dimension of the pain consequence. In the employment context, the stoic is more likely to persist in performing work, rather than cease work altogether as a less stoic person might do, allowing their employment choices and work practices to be dictated by tolerable levels of pain which are stoically endured. On the evidence in the present case, those observations are apposite to the applicant and inform the question of whether his injury satisfies the very considerable test.
[33]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, [3]; Hayden Engineering (2010) 31 VR 1, 5 [13]; Transport Accident Commission v Kamel [2011] VSCA 110, [67]; Philippiadis v Transport Accident Commission [2016] VSCA 1, [28].
It follows from what we have said above that, with respect, we disagree with the judge’s conclusion that the applicant’s injury did not satisfy the very considerable test. In such circumstances, we are duty bound to give the judgment which we think ought to have been given at first instance.[34] Leave to appeal must be granted, and the appeal upheld under proposed ground 3.
Proposed ground 4
[34]Fox v Percy (2003) 214 CLR 118, 127–8 [27] (Gleeson CJ, Gummow and Kirby JJ).
Having regard to our conclusions above, it is not strictly necessary to address proposed ground 4. That said, for completeness, we will deal briefly with it.
The judge’s reasons are a model of clarity and detail in all but one respect. It was a significant part of the applicant’s case that he suffered from constant right leg pain. Indeed, in final address, the applicant’s trial counsel commenced his submissions with a reference to the applicant’s statement in his first affidavit that he had ‘right leg pain all the time’.
While the judge referred to the fact that the applicant deposed that his ‘strong leg pain became permanent’[35] and that Professor D’Urso was informed by the applicant that the his back pain radiated into his right buttock and lateral aspects of his right thigh,[36] the judge does not refer again to his leg pain in ‘Analysis and Findings’ at the conclusion of the Reasons. One does not know whether the judge accepted or rejected the applicant’s evidence on this issue; or, if he accepted it, what if any regard he had to it in reaching his ultimate conclusion. To that extent, the Reasons were, with respect, inadequate.
[35]Reasons, [33].
[36]Ibid [70].
In oral argument, the respondent sought to deal with this inadequacy by referring to various paragraphs in the Reasons in which the judge recited the applicant’s evidence. In particular, the respondent referred to Reasons [33], where the judge referred to the applicant’s evidence that he had ‘strong leg pain’, which had become permanent; and Reasons [44], where the judge recited the applicant’s evidence that his right leg pain was ‘there all the time’. The respondent submitted that, fairly read, the Reasons disclose that his Honour accepted this evidence — thus accepting that a consequence of the applicant’s spinal injury was strong, constant right leg pain which was permanent.
The difficulty with this submission is that nowhere in the Reasons does the judge express this conclusion. Moreover, if the judge had actually formed the view that a consequence of the applicant’s spinal injury was strong, constant, permanent right leg pain, it is difficult (if not impossible) to work out why the judge would not have concluded that this consequence alone was more than sufficient to satisfy the very considerable test. A conclusion that the applicant suffered from strong, constant and permanent pain as a result of his spinal injury would have compelled the judge to grant the applicant leave to commence a common law proceeding for pain and suffering damages.
Conclusion
There will be orders granting the applicant leave to appeal; allowing the appeal; setting aside the orders made below; and, in their place, an order giving the applicant judgment on his application for leave to commence a common law proceeding for damages for pain and suffering.
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