Juma v Kone Elevators Pty Ltd
[2024] VSCA 217
•26 September 2024
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2024 0016
| MUWAFAK TOMA JUMA | Applicant |
| v | |
| KONE ELEVATORS PTY LTD | Respondent |
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| JUDGES: | ORR, KAYE JJA and J FORREST AJA | ||
| WHERE HELD: | Melbourne | ||
| DATE OF HEARING: | 4 September 2024 | ||
| DATE OF JUDGMENT: | 26 September 2024 | ||
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 217 | ||
| JUDGMENT APPEALED FROM: |
|
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ACCIDENT COMPENSATION – Serious injury – Applicant sustained injury to left shoulder, right shoulder and right elbow in course of employment with respondent –
Applicant sought leave to commence proceedings for pecuniary loss damages in County
Court pursuant to Workplace Injury Rehabilitation and Compensation Act 2013 – Applicant required to establish loss of earning capacity of 40 per cent or more on permanent basis – Applicant omitted full employment history and earnings from first affidavit – Applicant filed further affidavit disclosing full employment history and earnings – Judge found applicant not
a credible or reliable witness as result of omission in first affidavit and found that second
affidavit a ‘construct’ – Judge refused tender of further evidence relevant to applicant’s
credibility – Whether judge’s findings on credibility and ‘construct’ erroneous – Whether
rejection of further evidence erroneous – Leave to appeal granted – Appeal allowed.
Evidence Act 2008, ss 39, 108; Workplace Injury Rehabilitation and Compensation Act 2013, ss 325, 335; Supreme Court (General Civil Procedure) Rules 2015, r 64.37.
Connelly v Transport Accident Commission [2024] VSCA 20; Fox v Percy (2003) 214 CLR 118; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; Humphries v Poljak [1992] 2 VR 129; Lee v Lee (2019) 266 CLR 129; Victorian WorkCover Authority v Perumal [2024] VSCA 107; Warren v Coombes (1979) 142 CLR 531.
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Counsel
| Applicant: | Mr ADB Ingram KC with Mr S Pinkstone |
| Respondent: | Mr SE Gladman SC with Mr JS Forrest |
| Solicitors | |
| Applicant: | PRD Legal |
| Respondent: | TG Legal & Technology Pty Ltd |
THE COURT JA
| [Insert year] VSCA 217 | 1 |
| ORR JA KAYE JA J FORREST AJA: |
1 The applicant commenced a proceeding in the County Court by originating motion by which he sought leave, pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation
and Compensation Act 2013 (the ‘Act’) to commence common law proceedings in
respect of injury to his left shoulder, right shoulder and right elbow which were alleged to have occurred on 8 January 2019 in the course of his employment by the respondent as an electrical service technician.
2 The application was heard in the County Court on 25 and 26 July 2023. At the commencement of the hearing, the respondent accepted that the pain and suffering
consequences of the applicant’s claimed injury were ‘serious’, and that he should
therefore be granted leave to commence proceedings for the recovery of pain and suffering damages. Accordingly, the issue which the primary judge was required to determine, was whether the applicant should also be granted leave to bring proceedings for the recovery of pecuniary loss damages.
3 In a reserved decision delivered on 13 December 2023,[1] the judge concluded the applicant had not, pursuant to s 325(2)(e) of the Act, established that he had sustained a loss of earning capacity of 40 per cent or more on a permanent basis. Accordingly, the application for leave to commence proceedings in respect of loss of earning capacity was refused.[2]
[1]
[2]
4 The applicant seeks leave to appeal from the decision of the County Court on the following four grounds:
1 The trial Judge erred in finding at [56](e) that the Applicant’s second
affidavit ‘was a construct as far as it attempted to fix problems caused
by the misleading nature of the first affidavit’.2 The trial Judge erred at [56] in concluding that the Applicant ‘was not a credible or reliable witness’ and further at [147] that the Applicant’s ‘credit has been impugned to such an extent that the medical material
upon which he seeks to rely is also, to an extent, undermined’.
3 The trial Judge erred in refusing the tender in evidence of a letter dated 20 October 2021 from EML Vic Pty Ltd addressed to the Applicant.
4 Upon a consideration of the whole of the evidence, the trial Judge should have found that the loss of earning capacity consequence
suffered by the Applicant —
(a)
was at least very considerable within the meaning of s 325(2)(c); and
(b) was a loss of 40% or more as assessed in accordance with s 325(2)(e) and (f) —
of the Workplace Injury Rehabilitation and Compensation Act 2013.
Background circumstances
5 The applicant was born in Iraq on 25 March 1965. After he finished high school, he completed a Bachelor of Science in Electrical Engineering. Subsequently, he migrated to Australia in January 2004. During the following twelve years, he worked in various roles. In August 2016, he commenced employment with the respondent as an electrical service technician.
6 On 8 January 2019, the applicant sustained an injury to his left shoulder in the course of his employment with the respondent, while repairing an escalator at Dandenong Plaza. Subsequently, as a result of that injury, he suffered overuse injuries to his right shoulder and to his right elbow.
Following the initial injury, an ultrasound of the applicant’s left shoulder was
performed on 31 January 2019. It revealed a full thickness supraspinatus tear and some subacromial bursitis with impingement. The applicant underwent an ultrasound- guided subacromial injection on 14 February 2019, but continued to suffer ongoing pain issues with his left shoulder. He was then referred to Mr Trung Nguyen, an orthopaedic surgeon, who diagnosed an impingement, osteoarthritic changes of the acromioclavicular joint, rotator cuff tear and SLAP tear. On 27 June 2019, Mr Nguyen performed a left shoulder arthroscopic subacromial decompression, acromioclavicular joint resection, rotator cuff repair and long head of biceps tenodesis.
8 Subsequently, the applicant developed a frozen left shoulder. As a consequence, he underwent three left shoulder hydro-dilatations on 4 October 2019, 15 November 2019 and 28 January 2021 respectively.
9 In early 2020, the applicant developed pain in his right shoulder joint. An ultrasound of the shoulder revealed bursitis with impingement. An MRI of the right shoulder disclosed moderate supraspinatus tendinopathy without evidence of tear, mild subacromial bursitis, and moderate acromioclavicular joint osteoarthritis. He underwent an ultrasound-guided steroid injection in March 2020, which was repeated
in July 2020. Subsequently, on 3 March 2021, Mr Nguyen operated on the applicant’s
right shoulder in respect of a diagnosis of impingement, osteoarthritis of the acromioclavicular joint and SLAP tear. Mr Nguyen performed a right shoulder arthroscopic decompression, acromioclavicular joint resection and long head of biceps tenodesis.
10 In the meantime, the applicant also developed pain in his right elbow in about October 2020. Mr Nguyen considered that this condition was consistent with ultrasound findings of lateral epicondylitis (tennis elbow). Subsequently, on 23 June 2021, Dr Mona Shabghareh of MP Sports Physicians performed a PRP injection into the
applicant’s right elbow.
11 The applicant consulted Mr Nguyen on 30 July 2021 in respect of pain to the back of his right shoulder. Mr Nguyen prescribed prednisolone for the injury. On 21
THE COURT
September 2021, Mr Nguyen again examined the applicant. He noted that the right shoulder pain had mainly settled after the course of prednisolone. He again reviewed the applicant in December 2021, and he noted that the shoulder was better. The applicant underwent an ultrasound of the right shoulder in 20 July 2022, which revealed right supraspinatus tendinosis and subacromial bursitis with clinical impingement.
12 At various times since suffering his initial injury, the applicant has taken a variety of pain relief medications. In the month preceding the hearing of his serious injury application, he took Panamax on a daily basis, as well as 50 mg of Palexia two to three times each week. He also continued to attend physiotherapy and remedial massage, alternating between them on a fortnightly basis.
The applicant’s employment since injury
13 Following the incident on 8 January 2019, the applicant remained in employment with the respondent until January 2020, when he was made redundant. He subsequently obtained employment as a lift technician with Savaria Pty Ltd. He ceased employment with Savaria in October 2020 and then commenced to study a Certificate IV in Training and Assessment. That study continued throughout 2020 and 2021.
14 In April 2021, the applicant commenced employment as a vocational teacher at the
Chisholm Institute (‘Chisholm’). Until January 2022, he worked on a casual basis.
Between January 2022 and August 2022, he worked on a fulltime permanent basis. In August 2022, he reduced his work hours to part-time, working three days per week
(0.6 fulltime equivalent (‘FTE’)). He was working in that capacity at the time of the
County Court hearing.
15 At the beginning of 2022, the applicant also commenced an Associate Degree in Adult and Vocational Education and Training through Charles Sturt University. The course was delivered remotely. It involved computer-based study between 10 and 15 hours each week. The applicant completed that course in June 2023.
Summary of proceeding and issues
16 As noted, the critical issue in the proceeding was whether the applicant had established, pursuant to s 325(2)(e) of the Act, that he had sustained a loss of earning capacity of 40 per cent or more on a permanent basis.
At the hearing, the following matters were not in dispute. The applicant’s gross annual
‘without injury’ earning capacity was $155,387.18. Accordingly, in order to be
granted leave to commence proceedings to recover pecuniary loss damages, the applicant had to establish that he was permanently incapable of earning $93,232.31 or more per year in suitable employment. At the time of the hearing, the applicant was working at Chisholm. Between January and August 2022, when the applicant worked fulltime as a vocational teacher, he earned $2,029 per week ($105,505 per year) which exceeded the 60 per cent threshold. Subsequently, between August 2022 and the date of hearing, he had worked three days a week at Chisholm and earned amounts less than the 60 per cent threshold.
THE COURT
Summary of evidence
18 In support of the application, the applicant deposed three affidavits. In addition, a number of medical reports were tendered in evidence.
19 In his first affidavit, sworn on 25 July 2022, the applicant described the circumstances in which he sustained his injuries, the treatment that he had received in relation to the injuries, and the medication which he was taking in respect of the injuries. In respect of his employment, the applicant stated that in about January 2020, having been made redundant by the respondent, he began working for Savaria Pty Ltd as a lift technician, but he was not able to continue in that role because of his injuries and the pain that he sustained. As a consequence, he ceased his employment in October 2020 and commenced studying a Certificate IV in Training and Assessment. The applicant said that he was then (in July 2022) undertaking an Associate Degree in Adult and Vocational Education.
20 Relevantly, the applicant did not disclose, in the affidavit, that he had worked at Chisholm since April 2021, and that he had worked fulltime at Chisholm since January 2022, or his current earnings from that employment. In addition, he did not disclose that he was continuing to work and earn small amounts from a side business
he conducted under the name of ‘Power Flow Electrical’ (‘Power Flow’). In the
balance of his affidavit, the applicant described pain that he suffered as a consequence of his injuries, and the consequent restrictions on activities such as gardening, playing soccer, attending a gymnasium, and socialising with friends.
21 In his second affidavit, sworn on 24 March 2023, the applicant deposed that he had continued to experience pain and the restrictions set out in his earlier affidavit. He described his ongoing pain, disability and restrictions. He stated that he remained under the care of his general practitioner as well as his surgeon, Mr Trung Nguyen. The applicant stated that, further to his previous affidavit, he had completed his Certificate IV in Training and Assessment which enabled him to obtain a casual teaching job with Chisholm in around May 2021. He said that he had continued teaching on a casual basis until towards the end of 2021, when he successfully applied for a permanent position which he commenced in January 2022. The applicant stated that between January and August 2022, he worked fulltime teaching hours, but in
doing so he ‘really struggled’. He said that the role of teaching fulltime increased the
pain in his shoulders which caused him to become stressed. As a consequence, he took sick leave during this period. The applicant stated that, from August 2022, he had worked part-time for three days each week at Chisholm, generally teaching for two days and preparing on one day.
22 In addition, in his second affidavit, the applicant said that he had a small business ‘on the side’ called Power Flow which he had operated ‘for many years’. He said that in
that role he performed basic lift maintenance work, but he no longer carried out any of the more strenuous installation or maintenance work. He then further explained that, following his initial injury, he had tried to continue to work with the respondent, and he subsequently worked at Next Level Elevators and then at Savaria Pty Ltd, but in each case, he was required to perform physical tasks with which he was unable to cope.
THE COURT
23 In his third affidavit, sworn on 20 July 2023, the applicant elaborated on the difficulties, that he had experienced carrying out physical work with the respondent after his injury. He described how that work had exacerbated his injury. The applicant then described the difficulties that he had had in performing work with the subsequent employer, Next Level Elevators. He stated that in performing that work he extensively used his right arm, with the consequence that he experienced pain in the right shoulder, in respect of which he attended his general practitioner, Dr Shamoun, in January and February 2020.
24 In his third affidavit, the applicant also elaborated on the nature of his teaching duties
with Chisholm. He said that his teaching had a ‘significant practical content’. It
required him to handle various items of equipment, which caused him to suffer pain in his shoulders. He said that he found it difficult to cope with classes and that the medication that he took to address his pain interfered with his concentration.
Medical evidence
25 In support of his application, the applicant also tendered a significant number of reports and records of medical practitioners. They included the following reports and records of treating doctors:
• Mr Eden Raleigh (orthopaedic surgeon) dated 6 February 2019. • Dr Gary Zimmerman (sport and exercise medicine physician) dated 27 March 2019. • Mr Trung Nguyen (orthopaedic surgeon) dated 21 October 2020, 25 November 2020 and 19 June 2023. • Dr Yousif Shamoun (general practitioner) dated 9 October 2020. • Ms Olivia George (physiotherapist) dated 17 November 2021, 1 December 2022 and June 2023. • Extracts of medical records of Parkhill Medical Centre for the period 17 May 2022 to 26 July 2022. 26 In addition, the applicant tendered reports of the following practitioners who examined him for the purposes of the proceedings:
• Associate Professor Evange Romas (consultant rheumatologist) dated 11 December 2020 and 27 January 2022. • Dr James Rowe (specialist occupational physician) dated 9 August 2022. • Mr Thomas Kossmann (orthopaedic surgeon) dated 28 March 2023. • Dr Hillol Das (consultant psychiatrist) dated 21 July 2021. • Mr Francis Ghan (consultant orthopaedic surgeon) dated 28 April 2021. 27 In response, the respondent tendered the reports of the following medical practitioners who examined the applicant for the purpose of the proceeding:
•
Dr Joseph Slesenger (specialist occupational physician) dated 10 January 2020 and 4 May 2023.
THE COURT
• Dr Terence Saxby (orthopaedic surgeon) dated 5 June 2023. 28 In support of his application, the applicant relied specifically on the opinions of two medico-legal practitioners, namely, Mr Kossmann and Dr Rowe.
29 In his report dated 28 March 2023, Mr Kossmann diagnosed the applicant to have sustained the following injuries: rotator cuff tear and SLAP tear to the left shoulder joint and osteoarthritis of the left acromioclavicular joint for which the applicant underwent arthroscopic surgery; impingement to the right shoulder joint, and osteoarthritis of the right acromioclavicular joint for which the applicant underwent surgery; and epicondylitis lateralis (tennis elbow) on the right side.
30 Mr Kossmann considered that the applicant’s prognosis concerning his shoulder joints
was guarded, and that he would require further treatment with pain medication and anti-inflammatories. He considered that the applicant had no capacity to return to work as a service technician repairing and providing maintenance for escalators. He was of the view that the applicant should avoid working permanently with his upper extremities. He considered that the applicant might not be able to work fulltime as a result of his sleep deprivation. From an orthopaedic point of view, Mr Kossmann considered that the applicant should be able to continue to work at 0.6 FTE. Mr Kossmann further considered that the applicant was at risk of becoming incapacitated at some stage of his life, particularly if his bilateral shoulder condition and right elbow condition deteriorated.
31 Dr Rowe, in his report dated 9 August 2022, concluded that, as a consequence of the incident on 8 January 2019, the applicant had sustained a rotator cuff lesion in both shoulders. He had ongoing symptoms in both shoulders and in his elbow as a consequence of the rotator cuff lesion. Dr Rowe considered that it was unlikely that the applicant would improve significantly beyond his present level of functioning. The applicant had significantly reduced strength and range of movement, and consequent restrictions relating to lifting, carrying and working with his arms elevated. Dr Rowe was of the opinion that the applicant did not have the capacity to safely perform his pre-injury work as an electrical service technician, or any other work requiring unrestricted physical capacity. Dr Rowe noted that the applicant was currently working part time in a vocational training situation, albeit with some difficulty, and
that as such, the applicant was currently working ‘at his capacity’.
32 In response, the respondent principally relied on the opinions of Dr Slesenger and Dr Saxby.
33 In his first report dated 10 January 2020, Dr Slesenger noted that the applicant had been unable to return to his pre-injury role, although he had returned to work performing modified duties and working restricted hours. At the time of attending on Dr Slesenger in January 2020, the applicant was in the early phases of employment in a training role, and he was uncertain as to the job demands that would be required of him. Dr Slesenger was of the view that the applicant was not able to return to unrestricted pre-injury duties working the pre-injury hours. He considered that the applicant retained a capacity to work with restrictions, including no lifting or carrying over 5 kg, no sustained forward reaching, no reaching over his shoulder level, and no
THE COURT
repetitive left shoulder tasks. Dr Slesenger had reservations regarding the applicant’s
return to work arrangements and he recommended a lesser regime. At that point, he
considered that the applicant’s prognosis must be guarded given the length of the
applicant’s impairment and his disability.
34 In his second report dated 4 May 2023, Dr Slesenger noted that the applicant had completed a Certificate IV in Training and Assessment, and had commenced an associate degree in vocational education at Charles Sturt University. The applicant advised that he had commenced work at Chisholm working fulltime five days per week, before subsequently reducing to three days per week, teaching electrical apprentices. The applicant said that he had reduced his work to part-time as he was struggling with the job demands. In his assessment, Dr Slesenger was of the opinion
that there was a functional element to the applicant’s presentation. He considered that
the applicant’s current impairment of the left shoulder was only partially related to the
original injury. He considered that the applicant’s left shoulder injury was a minor
contributing factor to his right shoulder impairment,[3] and that his subsequent employment was the major contributing factor. He considered that the applicant could not return to unrestricted duties in his pre-injury work. He considered that the applicant was capable of working fulltime in his current teaching role at Chisholm.
[3]
35 In his report dated 5 June 2023, Dr Saxby noted that the applicant was, and since 2021 had been, working on a casual basis part-time as a trade teacher at a TAFE college. He
considered that the applicant’s condition had stabilised and that his prognosis was
good. He considered that the applicant might be able to return to his pre-injury duties, but that was not certain. However, he believed that the applicant was capable of working in alternative employment as a service technician/manager, maintenance
officer – electrical, foreman – electrical, sales representative or vocational teacher.
Dr Saxby considered that there was no reason why the applicant could not increase his hours to work fulltime as a teacher at Chisholm using a graduated return to work program.
Evidence of the applicant
36 Before being cross-examined, and in answer to a question from his own counsel, the applicant confirmed that he had read each of his three affidavits before he swore them, and he was satisfied that they were accurate at the time.
37 Cross-examination of the applicant by counsel for the respondent focused on his failure to reveal, in his first affidavit, that at that time he swore that affidavit he had been working at Chisholm since April 2021, and that he was also continuing to work in his Power Flow business.
38 Specifically, in cross-examination, the applicant again confirmed that when he swore the first affidavit, he knew that everything in it must be true and correct. He then confirmed the accuracy of the facts that were asserted in the affidavit concerning his employment following his injury. In answer to further questions, the applicant reiterated that he had commenced working at Chisholm as a vocational teacher in 2021. When asked why he did not disclose that fact in his first affidavit, the applicant
responded: ‘I’m not sure’. He then confirmed that he had been working fulltime as a
vocational teacher since January 2022, in which capacity he had been earning $4,058 gross per fortnight. In answer to further questions, he agreed that he had no explanation why he did not include those facts in his first affidavit.
39 The applicant further confirmed that, at the time he deposed his first affidavit, he had been conducting the Power Flow business since 2017. When asked why that was not
mentioned in his affidavit, he responded ‘I’m not sure why that was left [out]. I’m not
— to be honest, I don’t know’.
40 Counsel for the respondent then cross-examined the applicant concerning his medical treatment. The applicant confirmed that in December 2022 Mr Nguyen had recommended that he have a steroid injection for the pain that he was suffering in his right shoulder, but that he had elected not to have that treatment. The applicant further confirmed that he had not received any further medical treatment since 2022. He confirmed that in August 2022, he had decided to reduce his hours of work. He agreed that before he did so, he did not discuss the decision with Mr Nguyen or with his physiotherapist, Ms George. He said that he mentioned it to his general practitioner, Dr Shamoun. When pressed in relation to that answer, the applicant said that he did discuss reducing his hours of work with Dr Shamoun, but he was unable to recall whether Dr Shamoun had in fact suggested that he do so.
41 The applicant was then cross-examined concerning his involvement in the Power Flow business. He said that he had continued with that business in order to retain his vocational and professional currency. However, he only earned a minimal income in that business. In particular, in the 2023 financial year he earned $1,431. The applicant said that the work in the business was not very physically demanding. He further confirmed that he had recently completed an associate degree in vocational training. He said that he had studied for that degree online for a period of 16 to 18 months.
When doing so, he studied for 10–15 hours each week. He said that studying for the
degree in front of the computer was one of a number of factors that aggravated the pain in his shoulder. The applicant said that although he had now completed studying for the qualification, he was incapable of returning fulltime to work as a vocational teacher. When pressed on that answer, he agreed that he could not identify any treating doctor or physiotherapist who had advised him that he should not work fulltime as a vocational teacher.
On completion of the applicant’s cross-examination, counsel for the applicant sought
to tender in re-examination a letter to the applicant dated 20 October 2021 from Mr
Des Nura, of EML VIC Pty Ltd (the ‘EML letter’). EML was the agent acting on behalf of WorkSafe Victoria in respect of the applicant’s claim for weekly payments
in respect of his injuries. The letter recorded that in April 2021, the applicant had
‘accepted a role as a lecturer at TAFE’. This formed part of the basis for EML
concluding that the applicant had a work capacity. The judge’s treatment of that letter
is the subject of ground 3.
THE COURT
43 In re-examination, the applicant confirmed that he had attended a number of medical practitioners since he commenced work at Chisholm in 2021. He said that at no stage did he tell any of those medical practitioners that he was not then working. In respect of the completion of his studies, the applicant explained that when he was studying he was able to take a number of breaks. On the other hand, when he was working at Chisholm, he needed to perform a number of functions that involved his shoulders, and which included writing on a whiteboard, erasing the whiteboard, lifting toolboxes, and demonstrating how to terminate cables on switchboards.
The judge’s reasons
44 In her reasons for judgment, the judge noted that in serious injury applications the credit and reliability of the plaintiff will often be critical to the resolution of the application.[4] Her Honour observed that it is relevant, for that purpose, to take into
[4]
account inaccuracies and inconsistencies in an applicant’s affidavit. In that respect, the
judge cited the decision of this Court in Ifka v Shahin Enterprises Pty Ltd.[5]
[5]
45 The judge, in weighing and considering the evidence, concluded that the applicant was not a credible or reliable witness for the following reasons:
(a) The applicant’s first affidavit was misleading about his post-accident work history and the operation of his business. In particular, he made no mention in
that affidavit that at that time he was working fulltime.
(b) In his first affidavit, the applicant disclosed some of his post-injury employment, which revealed that he had in fact turned his mind to that issue. Further, the applicant was clearly aware that that was a relevant issue as it also was salient to his application for leave to commence proceedings for pain and suffering damages. (c) The applicant failed to disclose his current earnings at the time of swearing the first affidavit. That omission was notable because it was likely that his earnings at the time exceeded the 60 per cent threshold. (d) The applicant’s second affidavit was a ‘construct’ so far as it attempted to remedy the problems caused by the misleading nature of the first affidavit.
(e) Before the commencement of cross-examination, the applicant confirmed that he could read and understand English, that he had read his affidavits before swearing them, and that he was satisfied they were accurate. (f) The applicant was unable to provide any explanation why relevant employment information was not included in his first affidavit.[6] [6]
46 Based on those conclusions, the judge stated:
I have therefore viewed Mr Juma’s evidence as to his capacity with caution,
and would only accept his assertion that he is currently working to his maximum capacity and that such a restricted capacity is permanent, if there is other objective evidence to support this.[7]
[7]
47 The judge then considered, in some detail, the medical reports tendered in evidence. In doing so, her Honour noted the following in relation to those reports:
• Mr Raleigh did not provide an opinion as to the applicant’s employment capacity, and, as his report was more than four years old, it was of little
assistance.[8]
[8]
• Dr Zimmerman’s report did not provide an opinion on the applicant’s capacity, and as his report was over four years old, it also was of little assistance.[9]
[9]
• Mr Nguyen’s first two reports did not contain any opinion concerning the applicant’s capacity. In his report dated 19 June 2023, Mr Nguyen noted that as
at December 2021, he had, at the request of the applicant, provided a clearance medical certificate certifying him fit for fulltime work. Mr Nguyen confirmed that at the time of the last examination in December 2022, the applicant remained employed in his vocational teaching role. Mr Nguyen was not informed that the applicant was working reduced hours at that time.[10]
[10]
• Dr Shamoun’s report was two years old and did not provide any opinion on any capacity. The applicant had tendered an affidavit deposed by his solicitor that described numerous unsuccessful attempts to obtain an updated report from Dr Shamoun.[11]
[11]
• Ms George did not provide an opinion concerning the applicant’s capacity in any of her reports, and, in cross-examination, the applicant conceded that he
had not discussed reducing his working hours with Ms George.[12]• Associate Professor Romas, in his first report, concluded that the applicant’s [12]
condition was not stable and his prognosis was unclear. In his second report (dated 27 January 2022) Professor Romas noted that the applicant was working at Chisholm. He performed an impairment assessment but he made no
comments on the applicant’s employment capacity.[13]
[13]
•
In his report dated 9 August 2022, Dr Rowe concluded that the Chisholm role appeared to be suitable employment and that the applicant was working to capacity at that time (working 20 hours per week) in view of his functional restrictions.[14]
•
Mr Kossmann (in his report dated 28 March 2023) expressed the opinion that the applicant should be able to continue work on a 0.6 FTE basis and that he may not be able to work fulltime due to sleep deprivation.[15]
•
Dr Das provided a report dated 21 July 2021. The report was tendered to confirm that the applicant reported during examination that he had obtained work at Chisholm. It was otherwise of no relevance to the issues in dispute.[16]
• Dr Ghan provided a report dated 28 April 2021 for the same purpose as the [14]
[15]
[16]
tender of Dr Das’s report. It was otherwise of no relevance to the issues in
dispute.[17]
[17]
48 In respect of the medical reports tendered by the defendant, the judge noted:
• Dr Slesenger, in his second report dated 4 May 2023, considered that the applicant’s report of symptoms was inconsistent with his presentation to
Mr Nguyen, and that his response to the shoulder surgeries was likely to have been better than what was demonstrated in examination. Dr Slesenger considered that the applicant had capacity to work fulltime in his current role.[18]
[18]
• Dr Saxby, in his report dated 5 June 2023, noted that there may well be a degree of functional overlay or abnormal illness behaviour in the applicant’s
presentation. Dr Saxby considered there was no reason why the applicant could
not increase his hours to fulltime in his current role.[19][19]
49 Having considered the competing submissions by the parties, the judge commenced by noting:
The difficulty the plaintiff faces in this case is that his credit has been impugned to such an extent that the medical material upon which he seeks to rely is also, to an extent, undermined.[20]
[20]
50 The judge then considered the reports of Mr Kossmann and Dr Rowe upon which the applicant principally relied. Her Honour noted that the applicant did not tell Mr Kossmann that he had ever worked fulltime at Chisholm, or that he was operating
his own business. Thus, Mr Kossmann’s opinion was based on a ‘false premise’.[21]
[21]
Similarly, the judge noted that Dr Rowe’s opinion was problematic, because he was
not told that the applicant had in fact returned to fulltime work.[22] The judge
[22]
considered that Dr Rowe’s report lacked a clear path of reasoning, because the doctor
did not discuss the nature of the applicant’s employment or refer to any specific
restrictions that impacted upon the applicant.[23] In addition, there was a lack of
[23]
specificity in Dr Rowe’s report as to the degree of the abnormality which the doctor
said he observed on clinical examination.[24]
[24]
52 The judge then referred to the opinions of Dr Slesenger and Dr Saxby, who each considered that the applicant had a capacity to work in his current job on a fulltime basis. Her Honour preferred the findings of those doctors in relation to capacity, over those of Dr Rowe and Mr Kossmann, because Dr Slesenger and Dr Saxby each had an accurate and full history of the applicant’s post-injury employment.[25] However, the
[25]
judge did not accept the opinion of Dr Saxby that the applicant had the capacity to
return to his pre-injury role.[26][26]
53 Based on those findings, the judge concluded that she could not accept that any
current reduction in the applicant’s work hours was permanent. The judge considered
that the applicant had a capacity for fulltime work, which he had decided not to exercise. Accordingly, the applicant had a capacity to earn in excess of 60 per cent of his pre-accident income. It followed that the applicant had not established that he had sustained a loss of earning capacity of 40 per cent or more on a permanent basis.[27]
[27]
Standard of appellate review
Following this Court’s decisions in Connelly v Transport Accident Commission[28] and
[28]
Victorian WorkCover Authority v Perumal,[29] on an appeal from a serious injury application brought pursuant to the Act, the applicable standard of review is the ‘correctness standard’ as explained by the High Court in Warren v Coombes.[30] In such
[29]
[30]
a case, the duty of the appellate court ‘is to decide the case — the facts as well as the
law — for itself’.[31]
[31]
55 However, even on a review conducted on the correctness standard, where a finding is likely to have been affected by impressions about the credibility and reliability of witnesses formed by the judge as a result of seeing and hearing them give their
evidence, that finding should not be interfered with unless it is ‘glaringly improbable’ or ‘contrary to compelling inferences’. In respect of other findings, ‘in general an
appellate court is in as good a position as the trial judge to decide on the proper
inference to be drawn from facts’.[32]
[32]
56 In this application:
(a) Grounds 1 and 2 challenge the judge’s findings as to the credibility and reliability of the applicant. If those findings are likely to have been affected by impressions formed by the judge as a result of seeing and hearing the applicant
give his evidence, they should not be interfered with unless they are ‘glaringly
improbable’ or ‘contrary to compelling inferences’.
(b) Ground 4 challenges the judge’s conclusion that the applicant had not established that he had sustained a loss of earning capacity of 40 per cent or
more on a permanent basis. The judge’s findings as to the credibility and
reliability of the applicant were central to that conclusion. If those findings were likely to have been affected by impressions formed as a result of seeing and hearing the applicant give evidence, then the conclusion the subject of
ground 4 should not be interfered with unless those findings are ‘glaringly
improbable’ or ‘contrary to compelling inferences’.(c) Ground 3 concerns the judge’s refusal to admit evidence. Whether such a ground is to be decided on the correctness standard or the House v The King[33] standard will generally depend on the legal criterion the judge applied in making their decision.[34]
[33]
[34]
57 Although in its written case the respondent contended that ground 3 was to be determined on the House standard, in oral submissions, it changed its position and conceded that ground 3 was to be determined on the correctness standard. It also conceded that grounds 1, 2 and 4 were to be determined on the correctness standard. We will proceed on the basis of these concessions.
Grounds 1 and 2 — submissions
58 Counsel for the applicant submitted that the judge erred in concluding that the
applicant’s second affidavit was a ‘construct’, that the applicant was not a credible or
reliable witness, and that his credit had been impugned to such an extent that the
medical material, upon which he sought to rely, was also to an extent undermined.59 Counsel noted that those findings by the judge were made in circumstances, in which the respondent had conceded at trial, that the applicant was entitled to be granted leave to bring proceedings for the recovery of pain and suffering damages. Thus, it was submitted, the respondent accepted that the pain and suffering consequences of the
applicant’s injuries were such that, when judged by comparison with other cases, in
the range of possible impairments or losses of a body function, they may fairly be described as being more than significant or marked, and as being at least very considerable.[35]
[35]
60 It was then submitted that the judge’s adverse credit findings were not related to the nature and extent of the applicant’s injuries. Rather, those findings stemmed from the
omission by the applicant in his first affidavit to refer to his work status at the time. It was argued that it is quite clear, from the cross-examination, that the applicant was not aware of the reason why that information had been omitted from his affidavit. In particular, the applicant had, on a number of occasions, informed medical practitioners, who examined him for the purposes of the proceeding, that he was, in 2021, working as a lecturer at Chisholm. In that respect, counsel relied on the reports of Mr Ghan, dated 28 April 2021 and the psychiatrist, Dr Das, dated 21 July 2021.
61 Counsel further noted that the EML letter (which the judge refused to allow counsel for the applicant to put to the applicant in re-examination, and which is the subject of ground 3 of this application) specifically referred to the fact that the applicant was then employed. Also, in an undated report by Ms George to EML, it was noted that the applicant had been consistent in his efforts to recover from his injury, and that he was back in employment as a TAFE teacher, working and studying.
62 Counsel submitted that, in view of the disclosure by the applicant to medical practitioners of the circumstances of his retraining and his return to work as a vocational teacher at Chisholm, the judge erred in concluding that the applicant was not a credible or reliable witness[36] and that, as a consequence, the medical material, on which he sought to rely, was undermined.[37] Similarly, the judge erred in
[36]
[37]
characterising the applicant’s second affidavit as a ‘construct’ in the sense that it was ‘a rebuilding of the case where things have been, for deceitful or other purposes,
deliberately omitted’.
63 Finally, counsel submitted that although the judge referred to Ifka in her reasons,[38] she should have distinguished that case on the basis that the non-disclosures in that case were of a greater scale and proportion than the omission in the present case.
[38]
64 In response, counsel for the respondent submitted that the judge’s finding that the
applicant was not a credible or reliable witness was plainly affected by the impressions she formed of him as he gave his evidence. Thus, in order to demonstrate error by the judge in those findings, it was necessary for the applicant to demonstrate that those findings were glaringly improbable or contrary to compelling inferences.[39]
[39]
65 Counsel for the respondent commenced his submissions by addressing the content of
the finding by the judge that the applicant was not a ‘credible or reliable’ witness.[40]
[40]
Counsel observed that in an earlier paragraph in her reasons, the judge had noted that,
contrary to the submissions made on behalf of the applicant, she did not need to ‘go as
far as to make a positive finding that [the applicant] was being intentionally
deceptive’.[41]
[41]
66 Taking into account that caveat, counsel submitted that the findings by the judge, which are the subject of ground 2, were no more than a finding that the applicant was a witness who was unreliable about matters which were central to the determination of his application. Counsel submitted that, in view of the earlier caveat by the judge, that she did not need to make a positive finding that the applicant was intentionally
deceptive, it is clear that the judge did not use the adjective ‘credible’ in its usual
sense.
67 Counsel submitted that, for the following reasons, the finding by the judge — that the applicant was not a credible or reliable witness in that sense — was neither glaringly
improbable nor contrary to compelling inferences.
68 First, the judge was right to be critical of the first affidavit sworn by the applicant, which was misleading in a number of material respects. In particular, the applicant failed to disclose that he was working fulltime at the time of the affidavit, he failed to disclose his current earnings, and he failed to disclose that he was still conducting his
Power Flow business on the side. The applicant’s omission concerning his current
earnings was particularly notable because they exceeded the 60 per cent threshold. Counsel submitted that each of the matters which the applicant failed to disclose in his first affidavit was of central relevance to the determination of his application.
69 Secondly, counsel noted that, at the close of his examination in chief, the applicant expressly confirmed that he had read each of the three affidavits before he swore them, and that he had been satisfied that they were accurate.
70 Thirdly, in cross-examination, the applicant on two occasions said that he had not worked for another employer after working for Savaria Pty Ltd, before, ultimately, confirming that he had in fact commenced employment at Chisholm in 2021.
71 Fourthly, counsel noted, the applicant was unable to provide any explanation for the misleading nature of his first affidavit.
In addition, it was submitted that the judge’s finding, that the applicant was not a
credible or reliable witness, was supported by the fact that he had also failed to disclose to his medico-legal practitioners, Dr Rowe and Mr Kossmann, that he had worked fulltime at Chisholm for a period of time. Counsel further contended that the fact that the applicant deposed a second affidavit, that disclosed a more accurate
version of his post-injury work history, did not diminish the force of the judge’s
criticism concerning the omission of that history from his first affidavit. Counsel submitted that the disclosures, which the applicant made to Dr Ghan, Dr Das and Ms George, were not capable of meeting the criticism made by the judge, that the applicant had failed to disclose in his first affidavit that he was then working fulltime at Chisholm. The reports of Dr Ghan, Dr Das and Ms George did not reveal that the applicant had informed those practitioners that at the time he was working fulltime.
73 Counsel further submitted that, contrary to the contention made on behalf of the applicant, the judge did not need to distinguish Ifka. She did not fall into error by elevating findings of fact made by this Court in Ifka[42] into a principle of law. Rather, the judge cited the decision as authority for the orthodox proposition that the court is entitled to consider a range of matters when considering the credibility or reliability of
[42]
a plaintiff, including inaccuracies within the plaintiff’s affidavits.
74 It was also submitted, the judge did not err in concluding that the applicant’s credit
had been impaired to such an extent that the medical material, on which he sought to rely, was also impugned. In particular, the opinions of Dr Rowe and Mr Kossmann were necessarily affected by the failure of the applicant to advise either of them that he had previously worked fulltime at Chisholm.
75 In answer to ground 1, counsel submitted that there was no error in the finding by the
judge that the applicant’s second affidavit was a ‘construct’ insofar as it attempted to
repair the problems that were caused by the omissions in his first affidavit. Counsel contended that the judge was correct in so characterising the second affidavit, because it did not provide any explanation for the omission of those matters from the first affidavit or for the misleading nature of that first affidavit.
Grounds 1 and 2 — analysis and conclusion
Grounds 1 and 2 are directed to the judge’s conclusions concerning the credibility and
reliability of the applicant as a witness.
77 The critical aspect of the evidence of the applicant, on which the judge based her
conclusion as to the applicant’s credibility and reliability, consisted of the omission
from his first affidavit of any mention of his employment with Chisholm or of his work in the Power Flow business.[43] It was on the basis of that omission that the judge
[43]
expressed her conclusion that the applicant was not a ‘credible or reliable witness’.[44]
[44]
78 As we have noted at [65] and [66], counsel for the respondent submitted that, in the
context of the present case, the judge did not use the term ‘credibility’ in its ordinary
sense. Rather, it was submitted, her Honour’s findings about the applicant’s credibility
referred to his reliability as a witness.
79 We disagree. It is well understood that, ordinarily, the terms ‘credibility’ and ‘reliability’ are not synonymous. Rather, they comprehend two separate and particular
bases upon which a court may determine whether or not to accept the evidence given by a witness. In the context of this case, it is of particular significance that the judge concluded not only that the applicant was not a reliable witness, but also that he was
not a ‘credible’ witness. In the section of her reasons entitled ‘Findings’, the judge
focused on the applicant’s credit, commencing with the proposition:
The difficulty the plaintiff faces in this case is that his credit has been impugned to such an extent that the medical material upon which he seeks to rely is also, to an extent, undermined.[45]
[45]
80 Certainly, the judge did preface her findings, concerning the applicant’s credibility
and reliability, by noting that, contrary to the submissions made on behalf of the applicant, she did not need to make a positive finding that the applicant had been ‘intentionally deceptive’.[46] However, notwithstanding that caveat, the judge proceeded
[46]
to refer to the concepts of credibility and reliability separately. More significantly, it is quite clear, from the manner in which the judge stated her conclusions concerning the
applicant’s credibility and reliability (see [45] above), that she used the term
‘credibility’ in the usual sense, namely, relating to the applicant’s honesty as a
witness.
81 The first and second reasons the judge gave for finding the applicant to be not a credible or reliable witness, concerned the omission in the first affidavit of any
reference to the applicant’s employment at Chisholm. The judge commenced by
noting that the applicant made no mention, in his first affidavit, that at the time that he swore that affidavit, he was then working fulltime. That omission from the first
affidavit led the judge to describe the affidavit as ‘misleading’.[47]
[47]
If the judge’s analysis had completed at that point, that observation, alone, might have
concerned the reliability of the applicant’s evidence. However, relevantly, in the next
sub-paragraph, the judge noted that the lack of information, in the first affidavit,
concerning the applicant’s post-accident work history occurred in circumstances
‘where he had turned his mind to this issue’, and was ‘clearly aware this was a
relevant issue’.[48] That consideration could only have been directed to the applicant’s
[48]
subjective intention in omitting his employment details from the first affidavit.
83 The third reason given by the judge, was the applicant’s failure to disclose his current earnings in the first affidavit. Her Honour described this as ‘particularly notable’,
because it was likely his earnings at that time exceeded the 60 per cent threshold.[49] In other words, the judge ascribed a subjective reason or motive for the omission by the applicant of the details relating to his current earnings.
[49]
84 The characterisation of the applicant’s second affidavit as a ‘construct’ that ‘attempted to fix the problems caused by the misleading nature of the first affidavit’ was the fourth reason given by the judge.[50] The term ‘construct’ could only relate to the
[50]
subjective reason or motive of the applicant in deposing the second affidavit.
85 Similarly, the fifth and sixth reasons given by the judge — that the applicant, at the
commencement of cross-examination, had affirmed that he had read the affidavits and was satisfied they were accurate, and that he was unable to provide the court with an explanation why the relevant employment information was omitted from his first
affidavit,[51] — can, in the context of the preceding reasons, also be understood as
[51]
concerning the credibility of the applicant as a witness.
86 Thus, the bases upon which the judge concluded that the applicant was not a credible
or reliable witness, make it clear her Honour used the term ‘credibility’ in its usual sense. That is, her Honour drew conclusions concerning the applicant’s honesty as a
witness in the proceeding. In those circumstances, and notwithstanding the earlier
caveat by the judge — that she did not need to make a positive finding that the applicant was intentionally deceptive — it is quite clear to us that the judge did, in
fact, make such a finding, by concluding that the applicant was neither a credible nor a
reliable witness.87 We note that senior counsel for the respondent, quite properly, accepted that if, as we have concluded, the judge did in fact conclude that the applicant was not a credible witness, that conclusion could not be supported on the evidence. For the following reasons, we agree with that concession.
88 First, counsel for the respondent did not, in cross-examination, directly put to the applicant that he had intentionally sought to mislead either the respondent or the Court by omitting from his first affidavit any reference to his employment with Chisholm or his involvement in the Power Flow business. Certainly, counsel cross-examined the applicant, in some detail, as to the omission of those matters from his affidavit.
However, it was not put to the applicant — and he was therefore not given the opportunity to respond to the proposition — that that omission was deliberate, and
that it was intended thereby to mislead the respondent or the Court as to his employment capacity, in circumstances where he was aware of the 60% threshold. Nor did counsel for the respondent make any submission to that effect to the judge.
89 Second, in her comprehensive reasons on this issue, the judge did not express her
finding, as to the applicant’s credibility, on his presentation and demeanour in
answering questions in cross-examination. Rather, as we have discussed, the judge’s conclusions, concerning the applicant’s credibility, appear to have been based
essentially on the omission of any reference in his first affidavit to his employment at
Chisholm, and his work in the Power Flow business. Whether the judge’s adverse credit finding was likely to have also been affected by the applicant’s presentation and
demeanour as a witness is of little moment in this case, because that finding, as we
will explain below, was in any event glaringly improbable.90 Finally, it is in that context that it is significant that the applicant, when examined by a number of different medical practitioners, did, to a material extent, disclose his employment and the nature of the work that he was performing. It is of particular relevance that the applicant made that disclosure, not only to his own medical practitioners, but also to practitioners who examined him on behalf of the respondent or its insurer, for the specific purpose of assessing his claim for injury arising out of his employment.
91 In respect of the applicant’s treating medical practitioners, it is apparent that he
informed Mr Nguyen of a number of relevant matters relating to his employment situation. On 30 March 2021, he told Mr Nguyen that he had obtained employment as a teacher. On 15 April 2021, the applicant told Mr Nguyen that he was still undertaking that role. Subsequently, on 9 December 2021, the applicant advised Mr Nguyen that he was going to get a fulltime teaching job, and Mr Nguyen gave him a certificate for that purpose.
92 In her report dated 17 November 2021, Ms George, the physiotherapist, noted that the applicant had told her that he was attempting to undertake vocational retraining online. He also told her that he was then casually employed, and that he was enjoying his career change.
93 The notes of Dr Shamoun, the applicant’s general practitioner, record that, on 24 May
2022 (that is, when the applicant was working fulltime at Chisholm), the applicant attended in respect of a flare-up of his right shoulder pain. Dr Shamoun recorded that the applicant was thinking of working part-time. It is implicit in the note that the applicant told Dr Shamoun that he was then working fulltime. That implication is reinforced by the next note of Dr Shamoun, dated 14 June 2022, which records that the applicant told Dr Shamoun that he was unable to work fulltime due to pain.
94 The applicant also made similar disclosures to two medical practitioners who examined him for medico-legal purposes at the request of his lawyers.
95 Dr Rowe, the occupational physician, examined the applicant on 9 August 2022. The applicant told Mr Rowe that in June 2020 he had commenced a Certificate IV in Training and Assessment. He also told Dr Rowe that in June 2020, he had commenced fulltime employment at Savaria Australia, but he subsequently developed pain in the course of that work, and ceased work in August 2020. The applicant said that he was currently working part-time, approximately 20 hours per week, as a vocational teacher.
96 Mr Kossmann, the orthopaedic surgeon, examined the applicant on 28 March 2023. On that day, the applicant told Mr Kossmann that after he ceased working for Savaria Pty Ltd, he had started to study for a Certificate IV in Training and Assessment, which he completed. He then started to work as a vocational teacher at Chisholm, initially as a casual from May 2021. The applicant told Mr Kossmann that he then (in March 2023) worked in a 0.6 FTE position, and that he was also studying for an Associate Degree in Adult and Vocational Education.
97 As we mentioned earlier in dealing with the judge’s reasons (see above at [90]), the
applicant also told a number of medical practitioners, who examined the applicant on
behalf of the respondent, about his then employment.98 The applicant was examined by Mr Ghan, a consultant orthopaedic surgeon, on 20 April 2021. He told Mr Ghan that in August 2020, he had obtained employment with another lift company (but that only lasted four weeks). He also told Mr Ghan that, at the time of the examination, he had just obtained a job with TAFE, teaching electrical apprentices. Mr Ghan expressed the opinion that the applicant had a current
THE COURT
work capacity and noted that, ‘as a matter of fact’, he had just accepted a role as a
lecturer at TAFE.
99 On 21 July 2021, the applicant was examined by Dr Hillol Das, a consultant psychiatrist. The applicant told Dr Das that, after he ceased working as a technician in August 2020, he was looking for teaching jobs. He said that he had undertaken retraining in Certificate IV in Training and Assessment in order to become a TAFE teacher, that he completed that course at the start of 2021, and that he was already a casual teacher at TAFE for two days a week.
100 Associate Professor Evange Romas, a consultant rheumatologist, examined the applicant at the request of the respondent on 27 January 2022. The applicant told
Professor Romas that he had retrained as a TAFE electrical teacher, and had ‘signed
up’ to the Chisholm teaching faculty.
101 Dr Slesenger, the specialist occupational physician, examined the applicant at the request of the respondent on 1 May 2023. The applicant told Dr Slesenger that he had undergone retraining, and had completed a Certificate IV in Training and Assessment. More recently, the applicant had commenced an Associate Degree in Vocational Education at Charles Sturt University, and he was studying for that course up to 15 hours per week. Relevantly, Dr Slesenger recorded the following details, of which he had been informed by the applicant:
He advised that he has commenced work at Chisholm TAFE, across three campuses, Frankston, Dandenong and Berwick, initially working full-time, from 8 am to 4 pm, 5 days per week before reducing to 3 days per week, teaching electrical apprentices. He advised that this includes face-to-face teaching as well as demonstrating practical techniques.
102 Finally, the applicant was examined by Dr Saxby, the consultant orthopaedic surgeon, on 24 May 2023, on behalf of the respondent. The applicant told Dr Saxby that he had previously worked as an elevator technician. At the present time, he was working part- time as a trade teacher at a TAFE college, and he had been doing that since 2021 on a casual basis.
103 Thus, between March 2021 and the date of the first affidavit (25 July 2022), the applicant informed a number of medical practitioners, including those who examined him on behalf of the respondent, of work that he was undertaking, both by way of vocational retraining and as a teacher at Chisholm. Those disclosures were made, inter alia, to Mr Nguyen in March and April 2021, to Mr Ghan in April 2021, to Mr Nguyen in December 2021 (that he was going to commence a fulltime teaching job), to Ms George in November 2021, to Dr Das in July 2021, to Associate Professor Romas in January 2022, and to Dr Shamoun in May and June 2022 (when he told Dr Shamoun that he was working fulltime at Chisholm).
104 The nature and number of those disclosures by the applicant, to medical practitioners who might be witnesses in his application, make it glaringly improbable that, when he deposed his first affidavit in July 2022, he intentionally omitted the details of his employment in order to deceive the respondent and the court.
THE COURT
105 The absence of any such intention is reinforced by the fact that, subsequent to deposing that affidavit, he freely informed a number of medical practitioners, who examined him, of matters pertaining to his employment. As already mentioned, he informed: Dr Rowe of his work as a part-time vocational teacher in August 2022; Mr Kossmann of his work at Chisholm in March 2023; Dr Slesenger, in May 2023, that he had worked fulltime at Chisholm before reducing to three days per week; and Dr Saxby, in May 2023, of his work as a part-time trade teacher at a TAFE college. It is most improbable that, if the applicant had intentionally omitted those facts from his first affidavit in July 2022, he would have been as forthcoming, particularly when he was examined by Dr Slesenger and Dr Saxby on behalf of the respondent.
106 In addition, in this context, the EML letter, which is the subject of ground 3, is of particular relevance. For reasons which we will outline when considering that ground, in our view, that letter was plainly admissible, and the judge erred in refusing leave to counsel for the applicant to tender it in evidence.
107 The EML letter recorded that the applicant had returned to partial duties on 27 July 2021, and that he had maintained that work. It recorded that the applicant had undergone retraining for a vocational teaching role, and that he was currently working with a new employer, which was in line with his current physical and mental health restrictions.
108 The EML letter was relevant, not only because it confirmed that the agent to the
insurer of the respondent had knowledge of the applicant’s then employment position.
More importantly, the letter was relevant because it conveyed to the applicant that the insurer was seized of that information. In that context, it is quite incomprehensible that the applicant, knowing that the insurer was aware of his employment situation, omitted the details of his employment from the first affidavit, with the intention of attempting thereby to deceive the insurer.
109 For the foregoing reasons, the conclusion by the judge, that the applicant was not a credible witness, was glaringly improbable. The conclusion could not be supported by the evidence, or by any of the considerations relied on by the judge. Accordingly, ground 2 of the application for leave to appeal must succeed.
110 Turning to ground 1, it is not entirely clear what the judge meant by describing the
applicant’s second affidavit, in which he set out the details of his employment since
his injury, was a ‘construct’. In ordinary parlance, a ‘construct’ is something which is
artificially produced. In the context of the judge’s conclusions, her Honour, in some
way, considered that the second affidavit, as a ‘construct’, demonstrated that the
applicant was not a credible witness.
111 That conclusion by the judge, with respect, is entirely erroneous. In a case in which the evidence is to be adduced by way of affidavit, it is quite common, and appropriate, for a deponent of an affidavit to depose a subsequent affidavit, which might correct or qualify the contents of the first deposition. Such a subsequent affidavit could not,
without more, be described as a ‘construct’. Because we have concluded that the judge
was wrong to infer a motive of deception on the part of the applicant, there was no additional circumstance, which supported her conclusion that the second affidavit
THE COURT
deposed by the applicant was a ‘construct’. Thus the deposing of the second affidavit,
which filled in gaps in the first affidavit, could not, of itself, be a basis upon which to
impugn the applicant’s credibility as a witness.
112 It follows, accordingly, that ground 1 of the application must also succeed.
113 The conclusion by the judge, as to the credibility of the applicant, was of substantial significance in the determination of the application to issue proceedings at common law. It was common ground that, if this Court held that the judge erred in reaching that
conclusion, and there were no issues as the applicant’s reliability, then this Court
could determine for itself the question asked by s 325(2)(e) of the Act. We consider
that there is nothing in the evidence that raises an issue about the applicant’s reliability
as a witness.
Ground 3 — submissions
114 Ground 3 contends that the judge erred in refusing to accept in evidence the EML letter.
115 As we have noted, in that letter, EML recorded that the applicant was working with a new employer, having undergone retraining by undertaking a Certificate IV in Training and Assessment for a vocational teaching role.
116 At the conclusion of the applicant’s cross-examination, counsel for the applicant
indicated that he wished to put the EML letter to the applicant in re-examination. It was submitted that the letter was relevant to rebut an inference, sought to be relied on by the respondent, that the applicant had sought to conceal from the respondent the fact that, at the time he deposed his first affidavit, he was then in employment.
117 The judge did not permit this course. Her Honour considered that the letter did not assist in responding to the cross-examination, which was directed to the contents of the first affidavit deposed by the applicant. The judge thus ruled:
The inference [sought to be relied on by the respondent] is that at the time the [applicant] swore the affidavit, he did not include details of his current
employment in his affidavit. … I’m not concerned about information provided
to EML or anybody else. I’m concerned about what’s in the [applicant’s]
affidavit and I will not allow you to use this as a backdoor way to try and
rebolster the [applicant’s] credit if it is attacked.
118 In support of ground 3, counsel for the applicant submitted that the EML letter was relevant to the issues raised in cross-examination of the applicant. In particular, it was
submitted that the letter was relevant to the applicant’s credibility, arising from his
failure to advert, in his first affidavit, to the fact that he had resumed employment in 2021, and that he was then working in a fulltime capacity. It was submitted that the reasoning of the judge was not logical. The EML letter demonstrated that the
respondent (through EML) had actual knowledge of the applicant’s employment, and
accordingly it was not possible for the respondent to be misled by the omission by the
applicant, in his first affidavit, to refer to his current employment.
THE COURT
119 In response, counsel for the respondent submitted that there was no attempt to tender
the EML letter. The judge’s ruling implicitly dealt with two issues under s 39 of the
Evidence Act 2008, which imposes limits on questions that may be asked in re-
examination. First, the respondent said the judge was correct to determine — pursuant
to s 39(a), that the EML letter did not concern a matter arising out of the cross- examination. No inference arose from the cross-examination that the applicant had been attempting to hide something at the time he swore the first affidavit, because it had not been put to the applicant in cross-examination that he had been intentionally deceptive.
120 Second, it was submitted, the judge was correct to conclude — in the exercise of her discretion under s 39(b) — to refuse leave to permit the questioning. In particular, it
was submitted, the EML letter did not assist the court, because the applicant was seeking to deploy it in response to an allegation of dishonesty that in fact was not part
of the respondent’s case, and the letter was not capable of remedying the problems
caused by the misleading nature of the applicant’s first affidavit.
121 Further, counsel for the respondent submitted that if the court were to conclude that the judge erred in her treatment of the EML letter, that error was not material. The judge did not ultimately make a finding that the applicant had been intentionally deceptive in his first affidavit. Thus, it was submitted, if the letter had been admitted in evidence, it would not have made any difference to the outcome of the application.
Ground 3 — analysis and conclusion
122 For the reasons that we have already discussed in considering ground 2, it is clear that the EML letter was of significant relevance to the issues that were determined by the judge (it specifically recited the information the applicant had provided to Dr Ghan as
to his employment status and related directly to the applicant’s earning capacity). As
we have discussed, the letter not only recorded that EML, as the agent of the
respondent’s insurer, was seized of the relevant information relating to the applicant’s
employment at that time (October 2021), but, more importantly, it gave rise to an inference that the applicant clearly knew that EML had that information. In that way, the letter was relevant as contradicting the conclusion, ultimately reached by the judge, namely, that by reason of the omission by the applicant of his employment details from his first affidavit, he was not a credible witness.
Patently, the applicant’s credit had been impeached in cross-examination and
therefore, contrary to the respondent’s submission, ss 39(a) and 108(1) of the
Evidence Act permitted re-examination on that issue. No leave of the Court was required.
124 No point was taken by counsel for the respondent about the admissibility of the contents of the letter. If it had been, almost certainly the provisions of s 69 of the Evidence Act (the business records exception to the hearsay rule) would have been
engaged-particularly as this was a letter from the respondent’s agent.
The letter was not, as stated by her Honour a ‘backdoor way to try and rebolster the
[applicant’s] credit’. Quite the opposite and legitimately, the contents of the letter
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directly responded to a point raised in cross-examination, and, more importantly,
countered the conclusion ultimately reached by the judge as to the applicant’s credit.
It was implicit in the exchange between the applicant’s counsel and the trial judge that
the applicant’s counsel wished not only to put the EML letter to the applicant in re-
examination, but also to tender it. The judge did not permit him to do so.
127 In the circumstances we have outlined above, it must be concluded that the judge erred in refusing to permit the tender of the EML letter.
As to the respondent’s submission that any error in the judge’s treatment of the EML
letter was not a material error, r 64.37(2)(b) of the Supreme Court (General Civil Procedure) Rules 2015 provides that, unless the Court of Appeal is of the opinion that some substantial wrong or miscarriage has been occasioned thereby in the trial, a new trial shall not be granted on the ground of the improper rejection of evidence. In the present case, in view of the significance of the EML letter to the ultimate conclusion reached by the judge, we consider that the wrongful rejection of the letter as evidence did constitute a substantial wrong, and a miscarriage of justice to the applicant. Accordingly, ground 3 of the application must also succeed.
Summary of conclusions on grounds 1, 2 and 3
129 For the foregoing reasons, we have upheld grounds 1, 2 and 3 of the application for leave to appeal. In view of the success of the applicant on grounds 2 and 3, the decision of the judge, refusing leave to the applicant to issue proceedings at common law to recover damages for loss of earning capacity, must be set aside. It was common ground on this application that if the applicant succeeds, in the way that he has, on ground 2, this Court could determine the substantive application that was before her Honour, and not remit the matter for a rehearing of that application.
130 That position taken by the parties is correct. In view of our conclusions concerning ground 2, and in the absence of any adverse finding by the judge concerning the
applicant’s demeanour or manner of giving evidence, this Court is in as good a
position to determine the matter as a trial judge. Accordingly, it is appropriate that we
proceed to determine the principal application.131 In doing so, it is not necessary for us to decide ground 4. It is, however, convenient, first, to summarise the written submissions by counsel relating to that ground, as they are relevant to our determination of the substantive application.
Ground 4 — submissions
132 In support of ground 4, counsel for the applicant noted that the applicant, in his second and third affidavits, had explained his decision to reduce his employment to 0.6 FTE in August 2022. In particular, the applicant had explained that in his role as a teacher he was required to undertake a number of functions which caused pain to his shoulder. He was having difficulty coping in class, due to sleep deprivation and irritability. The
applicant’s evidence in that regard was supported by clinical notes of Dr Shamoun,
tendered in evidence, which referred on at least two occasions to the difficulties which
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the applicant was experiencing in performing those duties. Counsel noted that the
applicant’s evidence, as to the deterioration of his condition in the mid to latter part of
2022, was not the subject of cross-examination by the respondent suggesting any
unreliability or exaggeration on his part. The deterioration in the applicant’s condition
in that way was noted by his treating orthopaedic surgeon, Mr Nguyen, in his report
dated 19 June 2023.133 Counsel further noted that, in the hearing of the application, the respondent relied on,
and the judge accepted, the reports of Dr Slesenger and Dr Saxby as to the applicant’s
work capacity. However, it was submitted, neither practitioner was apprised of the
more recent developments in the applicant’s condition, or the difficulty that he had
experienced in performing fulltime teaching duties with Chisholm. Counsel further noted that the reports of Dr Rowe, Associate Professor Romas, Mr Kossmann and Dr Saxby each recorded a restricted range of movement in both shoulders. Dr Rowe, based on that lack of movement, had concluded that the applicant was currently working at his capacity in working part-time in vocational training. Counsel submitted
that, contrary to the judge’s observation, Dr Rowe was aware of the nature of the
employment being undertaken by the applicant.
Counsel for the applicant further submitted that Mr Kossmann’s findings were not
based on a ‘false premise’. He had the applicant’s second affidavit, as well as the
report of Associate Professor Romas dated 27 January 2022, and was therefore aware of the work undertaken by the applicant. Mr Kossmann conducted his own examination of the applicant. Accordingly, it was submitted, the judge erred in rejecting the opinion of Mr Kossmann, that from an orthopaedic point of view the applicant was capable of continuing to work at 0.6 FTE but was at risk of becoming incapacitated later in his life.
In response, counsel for the respondent noted that the applicant’s claim, that he was
incapable of returning to fulltime work as a vocational teacher, was a central component of his application in relation to loss of earning capacity. In that regard, it was submitted that there was no evidence from any treating doctor to the effect that the applicant was limited to working part-time as a vocational teacher.
136 Counsel submitted that the judge did not err in preferring the opinions of Dr Slesenger and Dr Saxby over the opinions of Dr Rowe and Mr Kossmann. The judge accepted that the opinions of Dr Slesenger and Dr Saxby were based on an accurate history of
the applicant’s post-injury employment. By contrast, the judge considered that the
opinions of Dr Rowe and Mr Kossmann were each based on a false premise, as neither practitioner was cognisant of the critical fact that the applicant had previously worked fulltime in the same role. Counsel noted the submission made on behalf of the
applicant, that Dr Rowe and Mr Kossmann had been apprised of the applicant’s post-
injury work history because they had each received the report of Associate Professor Romas dated 27 January 2022. However, that report did not contain any reference to
the applicant’s fulltime employment as a TAFE teacher.
137 Counsel for the respondent submitted that the judge thus correctly concluded that the applicant was capable of returning to fulltime work as a vocational teacher and that the reduction in his hours in that capacity was not permanent. In particular, it was
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submitted that that conclusion was properly based on the judge’s acceptance of the
opinions of Dr Slesenger and Dr Saxby.
Ground 4 — Analysis and conclusion
138 The question, then, is whether, pursuant to s 325(2)(e) of the Act, the applicant has established that he has sustained a loss of 40 per cent or more of his earning capacity on a permanent basis.
139 It is common ground on this application that the applicant has not been, and will not be, fit to undertake his pre-accident work as an electrical service technician. It is also accepted that the applicant is qualified and fit to be employed as a vocational trade teacher in the work that he has been undertaking in that role since April 2021 at Chisholm. Thus, the critical question is whether the applicant has established that he is not fit to perform more hours of work in that role than those which he has been working since August 2022, namely, three days per week (or 0.6 FTE).
140 The medical evidence demonstrated that the applicant sustained a significant injury to his left shoulder and as a consequence, to his right shoulder and right elbow. The nature of those injuries was not in issue.
141 It was also accepted, by the respondent, on the application, that the applicant should be granted leave, pursuant to s 335(2)(d) of the Act, to bring proceedings for recovery of damages for pain and suffering. That concession, which, in our view, was correctly made, constituted an acceptance that the pain and suffering consequences, resulting
from the applicant’s injury, when judged by comparison with other cases, in the range
of possible impairments or losses of body function, may be fairly described as being
‘more than significant or marked’, and as being ‘at least very considerable’.[52]
[52]
142 The applicant performed fulltime work as a vocational trade teacher, at Chisholm, between January 2022 and August 2022. The critical question, then, is whether he has demonstrated that, as a consequence of his injuries, he did not, and does not, have the capacity to continue to work fulltime in that role.
143 In his second and third affidavits, the applicant described, in some detail, his ongoing pain and restrictions in his shoulders, and the difficulties that he incurred as a consequence when working on a fulltime basis between January and August 2022. That evidence was centrally relevant to the issue, which now falls for determination by this Court.
144 In his second affidavit, the applicant described his ongoing pain and discomfort in the following terms:
3. Presently, I have ongoing daily pain in both shoulders, the right side usually more painful than the left side. The pain in both shoulders can range from a dull ache at rest, to a sharp, stabbing type pain depending on the day and on what activities I have been undertaking. The left shoulder often feels stiffer than the right shoulder, but I experience greater right shoulder pain with certain movements and activities. In addition to pain in both shoulders, I also experience some pain in my right elbow although this is on a more intermittent basis.
145 The applicant then explained that he remained under the care of his general practitioner as well as Mr Nguyen. He had been resisting receiving a further injection to his right shoulder, but he had continued to take Panamax on a daily basis. In addition, he took Palexia approximately two to three times on average each week. He also used Voltaren gel on both shoulders about four times each week.
146 The applicant then explained why he had reduced his working hours to a part-time basis in the following terms:
13. Between January and August 2022, I worked full-time teaching hours but really struggled. I was teaching electro technology subjects and found that working five days a week caused me increased pain in my shoulders and in turn I became more stressed and irritable. The
difficulties I have with getting a good night’s sleep meant that I was
often very tired during the day and my ability to concentrate for long periods suffered as a result. The medications I was taking compounded the problem as did the postural requirements of working 5 days a week. I took sick leave during this period when I was simply unable to cope going to work. Ultimately, I felt I was not coping with the demands of full-time work, and I reduced my hours to part-time.
147 The applicant concluded the second affidavit by stating that he enjoyed teaching at Chisholm, but that he had experienced difficulty coping with fulltime hours due to the pain and fatigue he experienced, and the problems he had concentrating for long periods, as a result of difficulties that he had with sleep, pain and the effect of his medication.
148 In his third affidavit, the applicant further explained why he had reduced his hours of work at Chisholm as follows:
3. I refer to paragraph 13 of my further affidavit and further say that my teaching had a significant practical content which required me to handle a variety of equipment including power equipment, electrical boards, tools, tool boxes and bundles of paperwork. This meant that in the course of my working day, my shoulder pains increased with these activities. I found difficulty in coping with the classes, particularly unruly classes, due to lack of sleep and irritability. I also found that my medication interfered with my concentration and from time to time it
made me feel ‘foggy’. It became apparent to me that I was no longer
coping. I attended Dr Shamoun on a number of occasions in June and July 2022 complaining of symptoms and my incapacity to continue my work on a fulltime basis.
149 Relevantly, with one exception, the applicant was not cross-examined concerning his description of his pain, or on the circumstances in which he reduced his hours of work at Chisholm.
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150 In the course of cross-examination, counsel for the respondent questioned the applicant concerning the additional studies that he had been undertaking in 2022 in order to gain an associate degree. The applicant said that that study had involved 10 or 15 hours per week. He also said that he had found working on the computer aggravated his shoulder. The applicant agreed that he had completed his studies. Counsel for the respondent put to him that, in those circumstances, he would have a further 15 hours per week available in which he could undertake employment. Specifically, counsel put to the applicant that he could now go back to fulltime work as a vocational teacher. The applicant responded that he could not do so. Counsel for the respondent did not challenge that response by the applicant by any further questions in cross-examination, save to put to the applicant that there was not one doctor treating him who had told him that he could not work fulltime.
151 In re-examination, the applicant explained that when he was working at home studying, he had been able to get up from his computer and take breaks. The applicant then explained the difference between undertaking that study and the work that he was required to do at Chisholm. He said:
I have to write on a whiteboard and erase stuff from whiteboard always. Plus preparation to the class. Lifting toolboxes, power supplies. Demonstrating how
to terminate cables on switchboards above my shoulder a little bit and …
demonstrating … using equipment like machine metal, bending machine, or
cutting machines … and … storing evidence of the students for their
paperwork and boxes of files and that kind of stuff.
152 The applicant further said that in his teaching role at Chisholm, he did not have a choice of when the classes should be held, because he had a fixed timetable.
153 Relevantly, counsel then asked the applicant why he said he could not return to fulltime work. The judge intervened, and disallowed the question, on the basis that the applicant had already addressed that question in his affidavits.
154 Two points are clear from the foregoing analysis. First, counsel for the respondent did not challenge the description, by the applicant, of his pain and disability, or of the
reason why he had reduced his hours to work part-time at Chisholm, in the applicant’s
second and third affidavit. Secondly, the judge precluded counsel from re-examining the applicant on those matters, because her Honour considered that that was a matter that was sufficiently explained in those affidavits.
155 On the hearing before the judge, and on the present application, counsel for the respondent placed substantial weight on the circumstance that the applicant did not obtain medical advice before he reduced his hours of work with Chisholm to part-time in August 2022. In his evidence, the applicant said that he had discussed that matter with his general practitioner, Dr Shamoun. His evidence in that respect is supported by the clinical notes of Dr Shamoun in respect of visits by the applicant on 24 May 2022 and 14 June 2022.
156 The fact that the applicant did not obtain specific advice from a medical practitioner, that he should so reduce his hours, is a relevant consideration. However, in light of the uncontested evidence of the applicant as to the reason why he so reduced his hours,
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and as to the reason why he was not able to resume working fulltime, the absence of such medical advice is not, in the circumstances of this case, sufficient to preclude a conclusion that the applicant, by his evidence, has established an incapacity to work fulltime in his role as a vocational trade teacher at a TAFE college.
157 In particular, the description, given by the applicant, of the work that he is required to undertake in his teaching role makes it clear that it involves a substantial amount of physical work, using both arms. That work involves, among other matters, lifting items above shoulder height and demonstrating the use of particular equipment to students. This evidence alone (if accepted) constitutes a cogent basis upon which to conclude that the applicant has sustained the requisite permanent loss of 40 per cent or more of his earning capacity.
158 In reaching the conclusion that the applicant had not established such a loss of
capacity, the primary judge preferred the opinions of the respondent’s medical
practitioners, Dr Slesenger and Dr Saxby, to the opinions of the practitioners that were
relied on by the plaintiff, namely, Dr Rowe and Mr Kossmann.159 As her Honour noted, Dr Rowe does not appear to have been informed that the applicant had, between January and August 2022, worked fulltime. However, if Dr Rowe had been apprised of that matter, he would also have been informed of the basis on which and reason why the applicant had ceased work on a fulltime capacity, as outlined in his affidavit material and in his evidence in the hearing.
Dr Rowe’s conclusion was based on his examination of the applicant, in which the
applicant demonstrated a restricted range of movement of both shoulders. Adduction,
abduction, flexion and extension were all ‘limited and painful’. Dr Rowe noted that
the applicant had bilateral shoulder dysfunction with associated weakness and restriction, and that he was unlikely to significantly improve beyond his present level of functioning. Based on his examination of the applicant, Dr Rowe concluded that the applicant was working part-time in what appeared to be suitable employment in vocational training, albeit with some difficulty. Dr Rowe concluded that the applicant
was currently working ‘at his capacity’.
161 Mr Kossmann (who examined the applicant in March 2023) expressed similar views. Relevantly, based on his examination of the applicant, Mr Kossmann considered that the applicant should avoid working permanently with his upper extremities, working
above his shoulder/head height, and lifting heavy items that weighed more than 2–
5 kg. He considered that the applicant should be able to continue to work on a part- time basis (0.6 FTE). In particular, he considered that the applicant might not be able to work fulltime as a result of sleep deprivation due to pain and discomfort he experienced at night.
162 Dr Slesenger examined the applicant, on behalf of the respondent, on 1 May 2023.
Dr Slesenger considered that there was a ‘significant functional element’ to the applicant’s presentation. Relevantly, that consideration is not consistent with the
uncontested evidence of the applicant as to the nature of his disabilities, and to which
we have referred.
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163 Dr Slesenger considered that the applicant did not have the capacity to return to unrestricted duties, although he retained a capacity for work with restrictions, which included: no push, pull, carry or lift over 15 kg; avoiding sustained forward reaching; and avoiding sustained over shoulder reaching. Dr Slesenger was of the view that the applicant could return to work as a vocational teacher adhering to those restrictions, and that he could increase his pre-injury hours above working three days per week. However, the description, given by the applicant, in his affidavit and evidence, concerning his work as a vocational teacher, reveals that that work has required him to undertake actions that do not conform with the restrictions outlined by Dr Slesenger in his report.
164 Dr Saxby, who examined the applicant on 24 May 2023, considered that there was no reason the applicant could not increase his hours to work fulltime. Dr Saxby specifically stated the reason for that conclusion as follows:
I do not believe that the position as trade teacher would significantly affect his shoulders or elbow in any way as long as he avoids repetitive lifting or overhead lifting.
Again, as noted, the applicant’s evidence was that his work as a vocational teacher
does involve him using his shoulders and elbows, and lifting overhead. It would appear that Dr Saxby was not apprised of that information, which would have been
material to the conclusion that he expressed concerning the applicant’s work capacity.
166 In conclusion, then, it is clear that the applicant did sustain a significant injury to his left shoulder, right shoulder and right elbow, in the course of his employment with the respondent. It was correctly accepted by the respondent that, as a consequence, the applicant suffered and will continue to suffer an impairment, which was more than
significant or marked, and was at least ‘very considerable’. The applicant attempted to
work fulltime as a trade teacher between January and August 2022. He gave evidence in the application as to why he was unable to continue that work on a fulltime basis. That evidence was not challenged in cross-examination.
The applicant’s case was supported by the expert opinions of Dr Rowe and
Mr Kossmann. Those opinions were based on their respective examinations of the applicant. For the reasons we have outlined, the fact that neither practitioner had been informed that the applicant had worked fulltime between January and August 2022 does not affect the validity of the conclusions reached by either practitioner.
168 The contrary opinions, expressed by Dr Slesenger and Dr Saxby, were each formed in the absence of any information as to the difficulties, which the applicant had experienced in undertaking fulltime employment with Chisholm. In particular, neither practitioner had information that the applicant, in undertaking that role, was required to perform a number of physical functions involving his shoulders.
169 Taking those matters into account (ie both the nature of the applicant’s employment
and the medical evidence), we are persuaded that, as a consequence of the injury to his left shoulder, right shoulder and right elbow, the applicant has sustained a permanent loss of earning capacity of 40 per cent or more. It follows that the applicant should be
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granted leave, pursuant to s 335(2)(d) of the Act, to commence common law
proceedings for loss of earning capacity.
Summary of conclusions
170 For the foregoing reasons, we have reached the following conclusions:
(1) The applicant should be granted leave to appeal the decision of the County
Court of 19 December 2023, and the appeal should be allowed.(2) The third order made by the judge — that the proceeding be dismissed (apart from leave being granted to the applicant to bring proceedings for pain and
suffering damages) — be set aside.
(3)
In lieu, the applicant be granted leave, pursuant to s 335(2)(d) of the Act, to commence proceedings claiming damages for loss of earning capacity in respect of the injury to his left shoulder, right shoulder and right elbow, arising from his employment with the respondent on 8 January 2019.
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Orders were made giving effect to the judge’s reasons on 19 December 2023.
Juma v Kone Elevators Pty Ltd [2023] VCC 2277 (‘Reasons’).
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Dr Slesenger wrote ‘I am of the opinion that the right shoulder impairment was a minor contributing factor to his left shoulder injury’, but we take this to be a typographical error.
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Reasons, [50].
[2014] VSCA 8 (‘Ifka’).
Ibid [56].
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Ibid [57].
Ibid [65].
Ibid [67].
Ibid [69]–[74].
Ibid [76]–[77].
Ibid [83].
Ibid [92]–[94].
Ibid [100].
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Ibid [107].
Ibid [108]–[109].
Ibid [110]–[111].
Ibid [122]–[123].
Ibid [127]–[129].
Ibid [147].
Ibid [149]–[150].
Ibid [151].
Ibid [152]–[153].
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Ibid [154].
Ibid [155]–[156].
Ibid [157].
Ibid [161]–[164].
[2024] VSCA 20, [32]–[40] (Beach, Niall JJA and J Forrest AJA).
[2024] VSCA 107, [100] (Beach, Walker JJA and O’Meara AJA).
(1979) 142 CLR 531, 551–3 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9 (‘Warren’). See also
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857, 862
[1], 865–6 [15]–[16], 869 [28] (Kiefel CJ, Gageler and Jagot JJ); [2023] HCA 32 (‘GLJ’).
GLJ (2023) 97 ALJR 857, 869 [28] (Kiefel CJ, Gageler and Jagot JJ); [2023] HCA 32, quoting
Warren (1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9.
Lee v Lee (2019) 266 CLR 129, 148–9 [55] (Bell, Gageler, Nettle and Edelman JJ); [2019] HCA 28
(‘Lee’).
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(1936) 55 CLR 499; [1936] HCA 40 (‘House’).
See, eg, Moore (a pseudonym) v The King [2024] HCA 30, [13]–[18] (Gageler CJ, Edelman, Steward,
Gleeson and Beech-Jones JJ).
Act, s 325(2)(c); Humphries v Poljak [1992] 2 VR 129, 140 (Crockett and Southwell JJ)
(‘Humphries’).
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Reasons, [56].
Ibid [147].
Ibid [53], citing [2014] VSCA 8.
Lee (2019) 266 CLR 129, 148–9 [55] (Bell, Gageler, Nettle and Edelman JJ); [2019] HCA 28; Fox v
Percy (2003) 214 CLR 118, 125–8 [23]–[29] (Gleeson CJ, Gummow and Kirby JJ); [2003] HCA 22.
Reasons, [56].
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Ibid [52].
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[2014] VSCA 8.
Reasons, [43].
Ibid [56].
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Ibid [147].
Ibid [52].
Ibid [56(a)].
Ibid [56(b)].
Ibid [56(c)].
Ibid [56(d)].
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Ibid [56(e)], [56(f)].
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Act, s 325(2)(c); Humphries [1992] 2 VR 129, 140 (Crockett and Southwell JJ).
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