Kaur v Victorian WorkCover Authority
[2014] VSCA 300
•26 November 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2013 0146 | |
| HARPREET KAUR | Appellant |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Respondent |
JUDGES: | TATE, SANTAMARIA and KYROU JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 May 2014 | |
DATE OF JUDGMENT: | 26 November 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 300 | |
JUDGMENT APPEALED FROM: | Kaur v Victorian WorkCover Authority [2013] VCC 1203 (Judge Kings) | |
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ACCIDENT COMPENSATION – Accident Compensation Act 1985 (Vic) s 134AB(16)(b) – Common law damages – Discogenic injury to lower back - Whether appellant had suffered a ‘serious injury’ within the statutory definition – Whether judge breached the requirements of natural justice – Whether judge should have taken judicial notice that possible future pregnancy may exacerbate back pain – Failure of appellant to adduce medical evidence of effect of future pregnancy - Appeal dismissed – Steen v WorkSafe Victoria [2014] VSCA 299; Kent v Wotton & Byrne Pty Ltd [2006] TASSC 8; Petkovski v Galletti [1994] 1 VR 436; Re Refuge Tribunal; Ex parte Aala (2000) 204 CLR 82.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Dr I Freckelton QC with Mr S McCredie | Henry Carus & Associates |
| For the Respondent | Mr SA O’Meara QC with Mr R Kumar | IDP Lawyers |
TATE JA:
I agree with Santamaria JA, for the reasons his Honour gives, that the appeal should be dismissed.
SANTAMARIA JA:
Harpreet Kaur (‘the appellant’) made application in the County Court for leave to bring proceedings to recover damages in respect of injuries sustained in a work-related incident which occurred on 10 March 2009. Her application was brought pursuant to s 134AB(16)(b) of the of the Accident Compensation Act1985 (Vic) (‘the Act’). In her application, she alleged that she had suffered a ‘serious injury’ within the definition in s 134AB(37) of the Act.[1] In doing so, she relied on ‘(a) permanent serious impairment or loss of a body function.’ She identified the relevant body function as injury to her back. She relied upon disability affecting her lower back, particularly her lumbar and sacral spine. Leave was sought to bring proceedings for damages in relation to pain and suffering only. On 13 September 2013, the primary judge dismissed her application.[2] She found that the appellant did suffer a low back injury the subject of the leave application. However, she was not persuaded that the pain and suffering consequences of that injury, when judged by comparison with other cases in the range of possible impairments, could be fairly described as being more than significant or marked, and as being at least very considerable for the purposes of s 134AB(38) of the Act.
[1]Section 134AB(37) contains relevant definitions including:
‘serious injury’ means—
(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c)permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus.
[2]Kaur v Victorian WorkCover Authority [2013] VCC 1203 (‘Reasons’).
By notice of appeal dated 26 September 2013, the appellant has appealed the
judgment and orders made on 13 September 2013.[3]
[3]Section 74 of the County Court Act 1958 (Vic) confers a right of appeal. Section 134AC of the Act provides: ‘A decision granting or refusing leave made on an application made under section 134AB(16)(b) shall be taken not to be a judgment or order in an interlocutory application for the purposes of an appeal to the Court of Appeal’.
Grounds of appeal
In the notice of appeal, there were four grounds of appeal:
1. The learned trial judge breached the requirements of natural justice by failing to give the appellant either notice of or opportunity to respond to a finding that evidence of concern that her low back and left leg pain would tend to be exacerbated by future intended pregnancy (‘pregnancy pain’) would not be taken into account because it was not supported by medical evidence.
2. The learned trial judge, having found that the appellant suffered from a discogenic injury in her lower back with resultant permanent pain and restriction, ought to have held that judicial notice could be taken of pregnancy pain.
3.The learned trial judge having accepted the restrictions in capacity identified by Mr Miller, orthopaedic surgeon, (at [58] of the reasons), ought to have found an inference could be drawn from those restrictions that the appellant’s injury would be exacerbated by any pregnancy.
4. The learned trial judge ought to have held that the appellant’s evidence was admissible and cogent having regard to:-
(a)the absence of any challenge to it by the respondent in cross-examination or final submission;
(b) the appellant’s unchallenged expertise.
At the commencement of the hearing of the appeal, the appellant abandoned the fourth ground.
The appeal turned upon the following remarks which appeared in the reasons of the primary judge:
In her affidavit, the plaintiff stated that she and her husband would like to have a family at some stage and that she is aware that being pregnant can cause low-back pain or may exacerbate her low-back and left leg pain. There was no medical evidence on this issue. Accordingly, I do not take that into account.[4]
[4]Reasons [61].
The appellant contended that the judge erred in refusing to take into account, in her evaluation of the injuries suffered by the appellant, the wish of the appellant to have children in the future and her awareness that her injuries may be exacerbated by pregnancy.
Relevant principles governing this appeal
The statutory background to the present application and the principles that govern it are discussed in Steen v WorkSafe Victoria,[5] which is decided at the same time as the present case. The present appeal does not involve re-hearing. A decision that injury was or was not serious injury will only be set aside for specific error,[6] or if it was plainly wrong or wholly erroneous.[7]
[5][2014] VSCA 299.
[6]Further, ‘the error [must] have been material to the decision ultimately arrived at by the judge or to have vitiated that decision in the sense that the outcome of the case might have been different if the error had not occurred.’ See Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26, [79] (Tate JA with Redlich JA agreeing).
[7]Mobilio v Balliotis [1998] 3 VR 833, 858 (JD Phillips JA). See the reference to the other formulations of the relevant test in Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26, [4] (Tate JA).
Matters not in controversy
The appellant was born in India on 3 April 1984. At the date of the trial, she was 29; at the date of the injury, she was 24. She had completed secondary school in India. She arrived in Australia in April 2006 to study hospitality on a student visa. She met her future husband in the course. They were married in May 2007.
Upon arrival in Australia, the appellant obtained part-time work for an aged care provider and completed a Certificate III course in Aged Care in 2007.
In March 2008, the appellant commenced employment with The Emmy Monash Home for the Aged Inc (‘the employer’) as an aged care assistant working 37.5 hours per week. Her duties included showering, toileting and otherwise providing personal hygiene care for residents at the employer’s aged care facility. She described the work as physical. It involved standing, moving and assisting residents with or without the use of hoists, wheelchairs and trolleys to undertake their activities of daily living.
On or about 10 March 2009, the appellant was working in the high care division of the employer’s facility. She suffered injury to her lower back when a very heavy resident she was assisting toppled whilst moving from the toilet seat to reach a support rail. The appellant took the weight of the resident to prevent her from toppling over and to assist her back to the rail.
The appellant felt an immediate sharp pain in her lower back. She subsequently developed pain in her left leg.
Appellant’s medical treatment
Initially, the appellant took two to three days off work and attended physiotherapy. Subsequently, she attended the Chapel Gate Medical Centre (Dr Eugene Kainin) on 30 March 2009 and had a total period of about two to three weeks off work. She was referred to Dr Brian Lovell of the Metro Spinal Clinic. He recommended physical exercises. When she returned to work initially, she was certified to perform modified duties five hours per day three days per week.
On 6 May 2009, a CT scan reported at L5/S1 a mild broad based posterior and left posterolateral disc bulge with marginal contact on the left S1 nerve (although not displacing it), and a mild posterior disc bulge at L4/5 with no significant canal stenosis or focal disc prolapse.
For a long time afterwards, the appellant took Panadol and Panadeine to control her pain but, by February 2012, had weaned herself off them and relied on heat packs at home and regular massaging of her lower back by her husband. This treatment continued to the date of trial.
On 9 March 2010, on referral from her GP, the appellant saw Mr Patrick Chan, neurosurgeon and spinal surgeon. He diagnosed mechanical axial lower back pain with referred pain into the left leg. He recommended a pain management program, but this was not approved by the insurer.
On 12 October 2009, an MRI scan of the lumbar spine showed: ‘Minor annulus bulge at L4/5 without neural compromise. No left sided neural compression, nor tear of the annulus.’
By the date of trial, the appellant had resumed taking Panadol, generally several times a week but not every week. She continued to see her GP.
The appellant’s GP continued to certify her for modified duties reduced to 62 hours per fortnight. The modified duties involved the appellant working only in the low care area with greatly reduced need to provide physical assistance to the residents. At different times the appellant engaged in stretching exercises, physiotherapy, Pilates and hydrotherapy, in order to manage her pain.
In his report dated 18 June 2013, Dr Kainin, the appellant’s GP, said that she rarely used any pain relief and there had never been requests for strong painkillers. He stated the appellant occasionally used physiotherapy or hydrotherapy. He thought the appellant had adjusted to her current work regime, as well as studying for her nursing degree. He said the appellant’s injury was longstanding.
Appellant’s medico-legal evidence
On 7 February 2011, Mr John F O’Brien, orthopaedic surgeon, examined the appellant at the request of her solicitors.[8]
[8]Mr O’Brien’s report was dated 15 February 2011.
On 5 August 2013, Mr Russell Miller, orthopaedic surgeon, examined the appellant at the request of her solicitors.[9]
[9]Mr Miller’s report was dated 12 August 2013.
Respondent’s medico-legal evidence
On 2 February 2010, Dr David Barton, consultant occupational physician, examined the appellant at the request of the respondent’s third party claims administrator.[10]
[10]Dr Barton’s first report was dated 3 February 2010.
On 22 June 2010, Mr Brendan J Dooley, orthopaedic surgeon, examined the appellant at the request of the respondent’s insurer.[11]
[11]Mr Dooley’s report was dated 23 June 2010.
On 11 July 2013, Dr David Barton further examined the appellant, at the request of the respondent’s solicitors.[12]
[12]Dr Barton’s second report was dated 12 July 2013.
Consequences of the injury
The appellant found performing her modified and reduced hours with her employer aggravated her low back pain and pain in her left leg, particularly after prolonged standing and walking patients on trolleys. She could complete her 62 hours per fortnight about seven out of 10 times.
The appellant had undertaken a two month receptionist course in early 2011 in the hope of being able to alter her work duties with her employer. In mid-2011, she commenced study to become an enrolled nurse and was expecting to complete the course by the end of 2013. She did this course in the hope that these duties would be less aggravating for her back and left leg pain.
By the date of hearing, the appellant’s left leg pain had reduced since February 2012 because of better monitoring and avoidance strategies such that it only extended half-way down the leg rather than to the heel as it had done previously.
The appellant’s back pain interfered with her ability to perform domestic tasks such as mopping and vacuuming, social activities such as dancing or physical activities such as walking for more than half an hour.
The appellant and her husband were intending in the future to have a family. She was aware that being pregnant could cause low back pain and was concerned that pregnancy would exacerbate her low back and left leg pain. In her further affidavit sworn 19 July 2013, she deposed:[13]
My husband currently works for the defendant, also as a personal carer. He wishes to join the Police Force and is waiting for me to finish my course before he applies. Although we do not intend to have children at the present time we certainly hope to raise a family at some stage. I am aware that being pregnant can cause low back pain and am concerned that if I become pregnant it may well exacerbate my low back and left leg pain.
[13]Further affidavit of the appellant sworn 19 July 2013, [9]. In his affidavit sworn 31 July 2013, Gurpreet Singh Kandola, the husband of the appellant, said: ‘We are planning to have children but won’t be able to have children quite a while (sic). Harpreet’s injury to her back may affect her having children and this worries her.’ [19].
Conduct of hearing before primary judge
In his opening remarks before the primary judge, counsel for the appellant made no reference to any possible pregnancy or the effects of the appellant’s injury on a possible pregnancy. The appellant was called to give oral evidence. In examination-in-chief, nothing was put to her about pregnancy. During cross- examination, no mention of the possible effects of pregnancy on her injuries was raised. She was not referred to the paragraph in her further affidavit extracted in [30] above.
In final submissions, her counsel said:
Clearly, if she hadn’t suffered her injury she would have been able to continue full time doing the course that she had started instead of doing it part time, so that the course is - her career prospects, if that is what she had wanted to do, would have been delayed by reason of her injury, and she is naturally enough concerned that with her husband that she’s got, they do intend in the future to have children and she is naturally concerned that her back pain may well be exacerbated by having to bear a child, and in my submission, all those factors, the ongoing nature of the pain, the fact that she requires medication albeit not prescription medication but she does require medication to ease her situation, there’s no real dispute amongst those who accept that she has a discogenic pain injury, that it will be a permanent condition. She is a young woman and so that its effects will be long-lasting and it has simply curtailed every aspect of her life, from her work to her domestic situation, in which both she and her husband give affidavit evidence in respect of the fact that she no longer does the vacuuming and other heavy cleaning and needs help with other domestic chores.[14]
[14]Transcript of proceedings, Kaur v Victorian WorkCover Authority (County Court of Victoria, CI-12-04250, Judge Kings, 16 August 2013) 26-27 (Emphasis added).
Submissions of appellant on appeal
The greater part of the written submissions filed on behalf of the appellant concerned ground 4 which was abandoned at the commencement of the hearing of the appeal.
So far as the other grounds were concerned, the appellant had three complaints. First, she said that there was expert evidence before the trial judge that supported the submissions that had been made by her counsel. That evidence, she said, was to be found in the report of Mr Miller who had said:
This lady has significant symptoms in her lumbar spine. She will have difficulty with work that involves repetitive bending, repetitive lifting, lifting of weight more than 5 kg and will have a requirement to shift her posture on a regular basis.[15]
[15]Report of Mr Russell Miller, orthopaedic surgeon, dated 12 August, 2013, under heading ‘Capacity for Work’, [5.1].
Second, she said that the judge should have taken judicial notice of the fact that, given the current nature of her lower back injury, it was inevitable that her injuries and her pain would be exacerbated by pregnancy. Medical evidence, it was said, was not necessary to establish that a woman who has lower back pain will, if she becomes pregnant, suffer greater back pain.
Third, she said that the trial judge had made an ‘implicit finding of inadmissibility’ and had not given the appellant any opportunity to respond. This ‘implicit finding of inadmissibility’ is not sharply defined in the appellant’s written submission. But, it is clear enough that the appellant is objecting to the fact that the trial judge ruled that she would not take into account the appellant’s evidence that she and her husband would like to have a family at some stage and that she is aware that being pregnant can cause low-back pain or may exacerbate her low back and left leg pain.[16]
[16]See [30] above.
With respect to her first argument based on the evidence of Mr Miller, the appellant said:
It was open to the learned trial judge to infer from the above description of work restrictions that the added weight and difficulty in changing posture involved in pregnancy would reasonably be expected to cause similar difficulties to those she might suffer at work. This is particularly so given the finding that the low back injury was discogenic having regard to the weight-bearing function of the lumbar discs.[17]
[17]Appellant’s Outline of Submissions, 12 December 2013, [9].
With respect to her second argument based on judicial notice, the appellant referred to Kent v Wotton &Byrne Pty Ltd[18]in which, it was said, it was held that it was a matter of general common knowledge among ordinary members of the Tasmanian community that asbestos is dangerous and can be deadly. The appellant said ‘low back pain is suffered in pregnancy is at least as well established in Australia’.[19] In oral submissions, counsel for the appellant, also referred to Victorian Women Lawyers’ Association Inc v Federal Commissioner of Taxation,[20] and to Glenister v Glenister.[21]
[18](2006) 15 Tas R 264, 267[8]-268[12].
[19]No authority or source was referred to.
[20](2008) 170 FCR 318.
[21][1945] P 30.
With respect to her third argument based on a breach of the rules of natural justice, the appellant said that there had been no objection taken either to her evidence about a future pregnancy or to what her counsel had had to say on the subject in final submissions. It was submitted:
Had the appellant been warned by the learned trial judge that she proposed not to take into account the impugned evidence submissions could have been made at the various levels of enquiry raised in the other grounds of appeal. Additionally, application could have been made to lead expert evidence on the matter.[22]
[22]Appellant’s Outline of Submissions, 12 December 2013, [16].
Submissions of respondent on appeal
The respondent said that the appellant had not asked the trial judge to draw the desired inference from the report of Mr Miller; nor had she been asked to take judicial notice of any matter, let alone the matter that had been argued in the appeal. The respondent said: ‘The impact of pregnancy on the appellant’s particular back condition was not a matter in respect of which judicial notice could be taken: see by analogy Mutemeri v Cheesman[23] […], where Mandie J held that although judicial notice could be taken of the fact that HIV is a life endangering disease, such notice could not be taken of the degree of risk of death faced by a person who had been exposed to the virus through sexual intercourse, a matter in respect of which expert evidence was required.’[24] As for the contention that there had been a failure to accord natural justice: the appellant bore the onus of proof and she had chosen not to adduce any medical evidence on the ‘likely impact of pregnancy on her low back’. It was further submitted:
Having made that forensic decision, there was an inherent risk that her Honour would not be satisfied of the asserted consequence on the basis of the appellant’s evidence alone (even if that evidence was not the subject of challenge by the respondent). The requirements of natural justice do not compel a primary judge to put a party on notice of matters of which he or she is unpersuaded on the evidence, to enable the party an opportunity to firm up their case.[25]
[23][1998] 4 VR 484, 492.
[24]Respondent’s Outline of Submissions, 7 February 2014, Footnote 25.
[25]Ibid [16].
Analysis
Before addressing the specific grounds of appeal, it is as well to recall that, in the application under s 134AB(16)(b) of the Act, the onus was upon the appellant to show that she had suffered a ‘serious injury’.[26] At the hearing of the appeal, her counsel relied solely on para (a) of the definition of ‘serious injury’ in s 134AB(37) of the Act: ‘permanent serious impairment or loss of a body function’. At trial, the appellant tendered no medical evidence that addressed the question whether a pregnancy in the future might occasion her ‘permanent serious impairment or loss’.
[26]See s 134AB(19)(a) of the Act.
Failure to take judicial notice
The contention that the judge, having found that the appellant suffered from a discogenic injury in her lower back with resultant permanent pain and restriction, ought to have taken judicial notice of the fact that ‘a woman with disc bulges in the lower back would suffer enhanced pain during pregnancy’[27] must be rejected.[28]
[27]This is how the proposition was expressed in oral argument.
[28]This is the subject of Ground 2 in the Notice of Appeal dated 26 September 2013.
In Petkovski v Galletti,[29] the Full Court considered an appeal from the County Court in which a judge had decided that an applicant, who had been injured in a car accident that had aggravated his pre-existing back injury, be given leave to bring common law proceedings under the Transport Accident Act1986 (Vic). (At that time, the appeal was by way of rehearing.)[30] Counsel for the respondent said ‘for many years prior to the … accident, the [respondent] had suffered from a symptomatic degenerative condition of the spine which had impaired its function and was likely to continue to impair its function on a long term basis’ and that ‘although there was no opinion expressed by the doctors as to the probable future course of the condition, the court should use its own knowledge to infer that the degenerative condition would be progressive; and that such aggravation or exacerbation of the condition as had been caused by the accident did not of itself constitute “serious injury”‘.[31] Southwell and Teague JJ said:
It should at once be said that the court is not free, in the absence of evidence, to infer that the [respondent’s] degenerative spinal condition was ‘progressive’ in the sense that symptoms were likely to increase, or that such “impairment of a body function” as existed prior to the accident would probably significantly worsen.[32]
[29][1994] 1 VR 436.
[30]Ibid 438, applying Humphries v Poljak [1992] 2 VR 129, 138-140.
[31]Ibid 439.
[32]Ibid.
If the Court should not use its own knowledge to infer that a degenerative spinal condition would be progressive then, a fortiori, a court cannot take judicial notice of pregnancy pain in the presence of ‘discogenic injury’. And, even if it were able to do so, it could not, in the absence of any evidence, draw an inference that, in respect of this particular appellant, the potential for such pain added to the other pain and suffering consequences of the appellant’s injury was ‘permanent serious impairment or loss of a body function’. It is not possible to say that it is inevitable that a woman who becomes pregnant and who has a particular form of disc bulge will thereby have their lower back pain exacerbated. The particular effect of pregnancy upon a woman’s body is variable and, given that variability, if it is to be taken into account, it must be the subject of medical evidence as to what is likely to occur in the circumstances of the particular woman.
The cases referred to by the appellant on judicial notice are of no assistance. Victorian Women Lawyers’ Association Inc v Federal Commissioner of Taxation[33] was a case in which the Victorian Women Lawyers’ Association Inc had sought a ruling that it was exempt from any obligation to pay income tax on the basis that it was a charitable institution or an association established for community service purposes. The Commissioner had refused to make the ruling. The Federal Court (French J) allowed an appeal by the Association, deciding that it was an organization whose purposes are beneficial to the community according to the established definition of a ‘charitable institution’. In the course of argument, French J was asked to take judicial notice of the fact of the disadvantage of women practitioners in the legal profession as a matter of ‘common knowledge ... generally’ within the meaning of s 144(1)(a) of the Evidence Act1995 (Cth).[34] He said:
The Court is invited to take judicial notice of the disadvantage of women practitioners in the legal profession as a matter of ‘common knowledge ... generally’ within the meaning of s 144(1)(a). VWL, in its written submissions, identified the social fact for which it contended. The Commissioner was thereby on notice and not unfairly prejudiced were the Court to act upon the submission. The social fact propounded was the historical and persisting disadvantage of women in relation to their participation and career advancement within the legal profession. At that level of generality there was no dispute. I am prepared to take judicial notice of it. It informs a consideration of whether the VWL was ‘established for community service purposes’ or otherwise met the public benefit requirement of the common law understanding of a charitable institution. It is not, however, critical to the characterisation of the association for the purposes of the ITAA. Characterisation depends primarily upon the objects and, to a degree, upon the activities of VWL in the relevant years of income.[35]
The proposition accepted by French J was one of social history. It provides no analogy in present circumstances where it was incumbent upon the appellant to adduce evidence of the likely impact upon her anatomy and physiology of a circumstance in the future which is itself contingent.
[33](2008) 170 FCR 318.
[34]Evidence Act 1995 (Cth) s 144 provides:
Matters of common knowledge
(1)Proof is not required about knowledge that is not reasonably open to question and is:
(a)common knowledge in the locality in which the proceeding is being held or generally; or
(b)capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2)The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3)The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4)The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
[35](2008) 170 FCR 318, 345 [116].
In Glenister v Glenister[36] the Court took judicial notice of the fact that gonorrhoea is a disease which may lie dormant for a long and indefinite period.[37] Such reliance on judicial notice would not bring the appellant close to proving that either of the premises identified above supported the conclusion of ‘serious injury’.[38]
[36][1945] P 30.
[37]Ibid 36 (Lord Merriman, P).
[38]Section 144 of the Evidence Act 2008 (Vic) is in the same terms as s 144 of the Evidence Act 1995 (Cth). See fn 34 above. In the present case, the appellant did not invite the trial judge to take judicial notice of any matter. Had she done so, it would have been necessary for the trial judge to comply with s 144(4) of the Evidence Act.
Failure to draw an inference from report of orthopaedic surgeon
None of the medical reports addressed the question of pregnancy.[39] The trial judge said of the evidence of Mr Miller:
I accept, based on the evidence of Mr Miller, that, any work she performs will be subject to the restrictions already identified. However, those restrictions are at the lower end of the scale and will not preclude her from engaging in meaningful employment. This is a consequence that I can take into account.[40]
Again, it is simply impossible to conjure, out of what Mr Miller said, implicit findings that, given a pregnancy, the appellant’s injury would be exacerbated in a manner relevant for the purposes of the definition of ‘serious injury’.
[39]This is the subject of Ground 3 in the Notice of Appeal. It is also to be noted that the appellant herself said that she is aware that being pregnant can cause low back pain or may exacerbate her low-back and left leg pain. The evidence did not rise any higher than the appellant’s speculation about possibilities in general; it did not address her own circumstances or her family’s medical history or anything else that might have provided a basis for the judge to make an evaluation by reference to evidence. At trial, her counsel also expressed himself diffidently: ‘and she is naturally concerned that her back pain may well be exacerbated by having to bear a child’.
[40]Reasons [58]. This is the paragraph referred to in the relevant ground of appeal.
None of the medical reports address the circumstances of the appellant were she to become pregnant.[41] Moreover, no doctor was asked to address the question whether pregnancy would affect her and, if so, in what way. Had the effect of pregnancy on the appellant been so obvious, one would have expected the practitioners to have adverted to it.
[41]In determining whether a plaintiff has suffered a ‘serious injury’ as at the date of the trial, it is open to a court to take into account any complications or exacerbation of an injury that will more than likely occur in the future; see the discussion of Stone v Jarvis in Humphries v Poljak [1992] 2 VR 129, 146-148 (Crockett and Southwell JJ), 170-171 (McGarvie J). The present case involves a double contingency: that the appellant will become pregnant and that her ‘pregnancy pain’ will be of a particular magnitude and will exacerbate her present condition.
Breach of the rules of natural justice
The contention that the trial judge denied the appellant natural justice in not warning her that she would not make a finding that pregnancy pain be taken into account because it was not supported by medical evidence cannot be sustained.[42]
[42]This is the subject of Ground 1 in the Notice of Appeal.
It is uncontroversial that the rules of natural justice apply to a serious injury application pursuant to s 134AB(16)(b) of the of the Act. The application of these rules in this context has been discussed in Steen v WorkSafe Victoria[43] which is decided with this case. In Re Refugee Tribunal; Ex parte Aala,[44] McHugh J said:
One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.[45]
[43][2014] VSCA 299, [75]-[81].
[44](2000) 204 CLR 82.
[45]Ibid 121[101].
In the present case, it was the appellant who was contending that the judge should take into account the question of ‘pregnancy pain’. It was for her to propound the evidence that might make good the proposition that she herself was advancing. Her failure to adduce such evidence resulted in the trial judge declining to take into account ‘pregnancy pain’. This was an inevitable consequence of the absence of any probative evidence on the issue and did not engage any duty on the part of the judge to warn or give notice to the appellant.
The appeal should be dismissed.
KYROU JA:
I agree with Santamaria JA.
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