Mazevska v Transport Accident Commission
[2014] VSCA 178
•22 August 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2013 0169
VERA MAZEVSKA v TRANSPORT ACCIDENT COMMISSION ---
JUDGES: WARREN CJ and ASHLEY and WHELAN JJA WHERE HELD: MELBOURNE DATE OF HEARING: 5 August 2014 DATE OF JUDGMENT: 22 August 2014 MEDIUM NEUTRAL CITATION: [2014] VSCA 178 JUDGMENT APPEALED FROM: Unreported, County Court of Victoria, Judge Murphy, 25 October 2013 ---
ACCIDENT COMPENSATION – Transport accident – ‘Serious injury’ – Failure by trial judge to deal with plaintiff’s pecuniary disadvantage claim – Application for leave to appeal granted – Appeal allowed – Appellant granted leave to bring proceedings.
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APPEARANCES: Counsel Solicitors For the Applicant Mr A D B Ingram with
Mr G A WorthNowicki Carbone For the Respondent Mr S A O’Meara QC withMs M Norton Hall & Wilcox WARREN CJ:
1 I have had the benefit of reading in draft form the reasons for judgment of Ashley JA. For the reasons given by his Honour, I agree that the appeal should be allowed.
ASHLEY JA:
2 On 25 October 2013, a County Court judge dismissed an application by Vera Mazevska (conveniently, ‘the appellant’) for leave to bring a proceeding for damages arising out of a transport accident. The application, brought under s 93(4)(d) of the Transport Accident Act1986 (‘the Act’), was commenced by originating motion dated 22 December 2010.
3 By her application, the appellant alleged that she had suffered serious injury falling within one or of both paragraph (a) and paragraph (c) of the definition of that term contained in s 93(17) of the Act. For present purposes, it is only necessary to refer to the paragraph (a) injury. In short, the appellant alleged that she had suffered compensable damage to her lumbar spine and cervical spine in a transport accident which occurred on 25 April 2009; and claimed that the injury ‘significantly interfere[d] with [her] social, domestic, recreational and leisure activities, as well as her capacity for employment’.
The application and appeal: arguments summarised
4 Before the Court is an application for leave to appeal against the judge’s order. It is common ground that the Niemann[1] principles apply to the Court’s consideration of the leave application.
[1]Niemann v Electronic Industries Ltd [1978] VR 431.
5 If leave be granted, the appellant seeks that the appeal be allowed and that an order be made granting her leave to bring proceedings for the recovery of damages.[2]
[2]In the alternative, the appellant seeks that her application be remitted to the County Court for rehearing.
6 The appellant’s solicitors filed a notice of appeal containing no less than 22 grounds. At the hearing, appellant’s counsel abandoned 12 of them. He evidently did so in order that attention not be diverted from a very straightforward case which he advanced. He did not seek to cavil with adverse findings made by the judge as to his client’s credibility. He took no issue with the judge’s finding that the appellant had suffered no injury to her cervical spine in the 2009 accident which was of present relevance, nor with his Honour’s finding to the same effect with respect to the alleged paragraph (c) injury. He raised two principal arguments, of which it is only necessary to mention one. The argument was as follows:
(1) The judge accepted medical opinion evidence to the effect, inter alia, that the appellant’s capacity for work had been permanently adversely affected by compensable low back injury.
(2) The appellant, her husband, her son and her daughter had given uncontroverted evidence as to the nature of the work which she had previously undertaken over many years, and of her inability to perform such work subsequent to the accident.
(3) In those circumstances, it was necessary for the judge to have considered whether the interference with the appellant’s work capacity by reason of the compensable injury was such as to constitute it a ‘serious injury’ for the purposes of s 93 of the Act. But, rather than addressing that question, his Honour passed it by. His only references to the appellant’s impaired work capacity had been deployed to demonstrate that she had exaggerated the extent of her disability,[3] this bearing upon his assessment of the pain and suffering consequences of the compensable injury. This was specific error, and his Honour’s decision was vitiated.
(4) This Court should consider for itself the question whether such interference with work capacity constituted the injury ‘serious injury’. Addressing itself to the medical evidence which the judge accepted and uncontroverted evidence referable to the appellant’s pre-injury employment, accepting his Honour’s adverse finding with respect to the appellant’s credit, his findings of want of relevant cervical spinal impairment and of mental or behavioural disturbance or disorder, and his conclusion that the pain and suffering consequences of the low back injury were not such as to render the injury ‘serious injury’ on that account, there was only one answer to the question. It was an answer, favourable to the appellant, that she had sustained compensable lower back injury which, by reason of its pecuniary disadvantage consequences, constituted ‘serious injury’.
[3]Because, on her account, she was disabled from all forms of work.
7 It was at least implicit in counsel’s argument that, approached in such a way, this Court was in as good a position as the judge below to determine the question.
8 Counsel for the Transport Accident Commission (‘the respondent’) submitted that the appellant was impermissibly raising a new case on appeal. He cited Whisprun Pty Ltd v Dixon.[4] He referred also to Woolworths Ltd v Warfe.[5] He submitted that the judge had engaged in the necessary assessment of matters of fact, degree and value judgment which lie at the heart of a determination whether a person has suffered serious injury within the statutory definition; that his Honour’s approach had been unimpeachable and his conclusion impregnable.
[4](2003) 200 ALR 47, [2]-[4], [45], [51]-[52] and [63].
[5][2013] VSCA 22, [83], [88], [107] and [127].
In my opinion, for the reasons which follow, the appellant’s arguments should be accepted. Leave to appeal should be granted, the appeal allowed, and an order made granting the appellant leave to bring proceedings in respect of injury sustained on 25 April 2009.
Trial
10 The trial of the application took place on 30 August and 2 September 2013. As very frequently occurs in such matters, the appellant, who had sworn three affidavits, was cross-examined. Other than that, the appellant relied upon affidavits sworn by her husband and adult son and daughter, and upon the medical reports of treating doctors and medico-legal experts. The respondent relied upon medical reports[6] and matters revealed in cross-examination of the appellant.
[6]Some of them related to injury sustained by the appellant in 1994. She had injured her cervical spine at that time, and because she was contending that she had suffered injury to her cervical spine in the 2009 traffic accident, the nature and consequences of the 1994 injury were relevant. As I have explained, the judge found that any injury to the cervical spine in 2009 was not, in its consequences, ‘serious injury’, and the appellant did not seek to challenge that conclusion before us.
11 The gist of the cross-examination of the appellant was that she had concealed, to greater or lesser extent, problems with her spine from which she had previously suffered,[7] and that she had exaggerated her disability. The final address of counsel for the respondent almost entirely dwelt upon what was said to be the appellant’s damaged credit. It was submitted that her veracity had been successfully impugned, and that this undermined both her evidence and the evidence of medico-legal specialists. Their opinions had depended upon the history which she had given to them.
[7]There was the 1994 incident; and there were three attendances upon a doctor in 2007 in respect of low back pain.
The judge’s reasons
12 I will summarise a number of findings made by his Honour, and then refer to parts of his written reasons.
13 The judge found that the appellant’s credit was adversely affected. He found that her disabilities were not as great as she asserted.
14 The judge referred to the affidavits sworn by the appellant’s husband, son and daughter, none of whom were cross-examined. He did not accept some parts of those affidavits because, as he said, they had made no reference to certain matters concerning ‘the [appellant’s] leisure activities extracted under cross-examination’. He also noted that observations by the witnesses of the appellant limping were not the observations of others. He observed that the affidavits could not support the plaintiff upon issues which he considered reflected adversely upon her credit – issues about which they had said nothing in their affidavits. Finally, with respect to the affidavits, he observed that counsel for the respondent had not challenged certain evidence given by the appellant’s husband and her daughter concerning, inter alia, ‘the limitations on [the appellant’s] domestic and leisure activities, and interaction with grandchildren’.
15 I have now recorded what the judge did say about those affidavits in his reasons. What, conspicuously, he did not address was what was said by each of the deponents about – (1) the appellant’s work history before the 2009 traffic accident, (2) what her work entailed, or (3), her observed inability to perform her pre-injury duties thereafter.
16 Against the background of his findings about the appellant’s impaired credibility, the judge ultimately accepted the opinion of Mr Michel Dooley, a surgeon who had examined the appellant on behalf of the respondent, as to the nature of her compensable injury and as to its effects upon her. His Honour found that the appellant had suffered ‘some musculo-ligamentous damage and some aggravation of naturally occurring degenerative disc disease’ affecting her lumbar spine.[8] He considered that the opinion of Mr Brownbill, a medico-legal expert retained for the appellant, implicitly supported Mr Dooley’s opinion as to the nature of the appellant’s compensable injury.
[8]He did not accept the opinion of the treating neurosurgeon, Mr Lo, that the injury, in part, involved disc bulges and annular tears without neural compression affecting the L4/5 and L5/S1 levels.
17 I turn to the effect upon the appellant’s work capacity as stated by the medical experts whose opinions the judge accepted. His Honour referred to (1) the opinion of Mr Dooley, as noted by the judge, that the appellant ‘was capable of light physical work and clerical activities’, (2) the opinion of Mr Haw, a medico-legal expert retained for the appellant, that ‘it would be difficult [for the appellant] to undertake her previous work, but [she] was capable of doing part-time work’, and (3) the opinion of Mr Brownbill that the appellant had ‘a restriction on heavy lifting, repeated bending or prolonged standing or sitting’.[9]
[9]Mr Brownbill in fact referred also to the need for the appellant to avoid ‘forced spinal mobility’.
18 The judge stated that he accepted the opinions of Messrs Dooley, Brownbill and Haw that ‘the plaintiff has a physical capacity for light physical work’.
19 The judge made findings adverse to the appellant with respect to impairment of her cervical spine and the alleged paragraph (c) injuries. I have already noted that those findings were not challenged on this appeal. It should only be added that, on his Honour’s findings, they could have had no impact upon the appellant’s capacity for work.
20 I now set out some of the detail of his Honour’s reasons, specifically with respect to the consequences of the injury which he found was established. Thus –
81.The opinions of Messrs Dooley, Brownbill and Haw, which I accept, that the plaintiff has a physical capacity for light physical work are significant because they undermine the plaintiff’s evidence as to her physical capabilities. In contrast the plaintiff would have the Court accept that she has no real capacity for work, and her leisure and recreational activities are greatly restricted.
…
83.Under cross-examination the plaintiff admitted that she had not applied for any job since the accident. She also maintained that she would have worked until she was aged 70, and would not have retired when her husband did. The plaintiff in her evidence stated that she unsuccessfully attempted to return to work on two occasions.
…
97.I have referred above to pain that the plaintiff has said she has suffered, and to the consequences for her work capacity, and for domestic and recreational activities. I have also referred to the opinions by Messrs Dooley, Haw and Brownbill as to her work capacity. I also have noted the relatively benign description given as to the plaintiff’s condition and the lack of objective supporting signs. I also refer to my conclusion that the plaintiff’s veracity was damaged in cross-examination.
98.This all leads to the conclusion that while the plaintiff does have some pain and suffering consequences of the 2009 accident, I am satisfied that she has exaggerated those consequences. While that might be an understandable response to her injury, it impacts on my assessment under the narrative test.
99.The pain and disability that the plaintiff complains of are I am satisfied out of proportion to the underlying injury identified by Mr Dooley, and implicitly by Messrs Brownbill and Haw. That this is the case is consistent with the plaintiff’s complaint of a limp, which while supported by her family is not supported by the bulk of the examiners. It is consistent with her failure to provide the full history to examining doctors. It is consistent with her failure to disclose the recreational activities elicited under cross-examination. It is consistent with the complaints of neck pain in the affidavits, yet such pain being a much less significant feature of the reports and histories. It is also consistent with the varying consumption of painkillers, and the reference to ‘pain flare-ups’ mentioned by the GP.
100.All of these matters lead to the conclusion that the pain and suffering consequences as articulated in her affidavits are exaggerated, and are of a lesser intensity than she has claimed. Her capacity for work as identified by Mr Dooley, whose opinion I accept, is that she can carry out light physical work and clerical duties. Such a capacity is one that ought allow the plaintiff to engage in most of her recreational and domestic activities in a manner much less restricted than asserted in her affidavits.
101.What also has to be considered is what the plaintiff has retained. While the inability to stand and sit for long periods probably precludes her choir activities, the plaintiff is still involved in her church and attends on a weekly basis. The plaintiff retains significant recreational activities, can drive a car, and is capable of light clerical duties.
102.While the plaintiff complains of problems with sleep, and has been prescribed Valium, she gives no indication of its efficacy, and nor does the issue of sleep feature in the GP reports. This leads to a conclusion that it is not a problem of the dimension that the plaintiff asserts.
103.While the pain and suffering consequences, including the emotional response, may be described as marked or significant, I am not satisfied that they meet the requirement that they be ‘at least very considerable’ and thus the plaintiff fails in her application.
Did the appellant raise a pecuniary disadvantage case?
21 I turn to consider whether the appellant raised a case below that the pecuniary disadvantage consequences of compensable injury constituted it ‘serious injury’. In my opinion, she very clearly did so. The submission for the respondent that the appellant was mounting a new case on appeal could not be accepted.
22 From the outset, the appellant asserted that compensable injury had rendered her unable to work in the family business. The matter was raised by – (1) the document which initiated the serious injury application, (2) the appellant’s affidavit sworn 27 April 2010, (3) the affidavit of the appellant’s husband sworn 4 November 2011 and again in his affidavit sworn 9 August 2013, (4) the affidavit of the appellant’s son sworn 28 October 2011 and again in his affidavit sworn 20 August 2013, and (5) the affidavit of the appellant’s daughter sworn 4 November 2011.
23 The appellant deposed as follows:
45.At the time of the subject accident I was operating a business owned by my husband and myself. Our partnership was in the embroidery business and we were trading as ‘Unique Towel Collection’.
46.At the time of the accident, I was working 7 days a week, working at least 10 hours per day. I was earning approximately $500.00 per week.
47.Following the accident I was certified unfit for work whilst I was recovering from my injuries. I had attempted a return to work plan, which required that I work 2 hours, 2 days each week. I was only able to complete 2 weeks of this plan, as I was unable to continue because of the pain resulting from my injuries.
48.My work at ‘Unique Towel Collection’ prior to the accident involved serving customers, fitting, framing, packing boxes, unpacking boxes and general duties associated with the business. I would often go to see people for whom we were going to do work but my injuries now make it difficult to travel. I have been unable to complete the physical aspects of this job since the accident. My spinal injuries prevent me from operating this business as I did prior to the accident.
24 The appellant’s husband, Risto Mazevska, deposed as follows in his affidavit sworn 4 November 2011:
13.For many years before the car crash Vera and I had run a retail and embroidery business. We had sold Manchester at markets before setting up our own shop, which we have subsequently run with our son. Vera had needed time off from the business following the car crash in 1994, but had worked full-time in the business in the years before the car crash in 2009. Following the car crash on 25 April 2009 she took time off work because of the pain in her back and left leg. I remember that in late 2009 or early 2010 she tried to return to work, but she could not cope because of her pain and she has not been able work [sic] in the business since that time. The business has struggled without Vera and her absence has meant a lot more work for me and our son. Vera has occasionally told me she feels very guilty that she cannot help out in the business, but I saw for myself how much she struggled when she tried to return to work and I know that the standing, bending and lifting required for the job would increase her pain.
25 In his affidavit sworn 9 August 2013 he deposed that:
2.I refer to paragraph 13 of my first affidavit in which I outlined the difficulties my wife encountered when she attempted to return to work in our family business in late 2009/early 2011. I omitted to mention in that paragraph that my wife also tried to return to work in about April 2011, performing only a limited number of hours per week. I confirm that my wife struggled with pain during each of her attempts at returning to work and I confirm that I observed that her work duties appeared to me to increase her pain and discomfort. I recall in particular that she struggled to climb the stairs between the shop and the showroom and appeared to be in pain when she tried to climb the stairs. I recall that the April 2011 attempt at returning to work only lasted a short while because my wife’s pain increased with the activity required of her at work.
26 The appellant’s son, Mile Mazevska, deposed as follows in his affidavit sworn 4 November 2013:
14.In the years leading up to the accident, my mother had a consistent work history and a good work ethic. She worked full time in the family owned retail and embroidery business and many of her duties revolved around customer service. She was required to stand on her feet for extended periods of time and deal with customers. She was also required to assist with tasks such as packing an [sic] unpacking goods. This involved lifting and carrying items, and bending over.
26.After the accident, my mother attempted to return to work. However, she was unable to cope because of her ongoing lower back and left leg symptoms. She was unable to perform the more demanding physical duties such as packing and unpacking goods. She tried to limit herself to lighter work, but she still could not cope. She struggled to deal with customers because it required her to stand for extended periods of time. As such, she ceased working and has been unable to return to work since that time. She finds this very upsetting because she enjoyed contributing to the business and working with her family. My father and I now have to perform the work that she previously did in addition to our own work and the business is struggling.
27 This is what he deposed in his affidavit sworn 15 August 2013:
3.Since my mother ceased working at the shop, she would occasionally come in to visit myself and my father for short periods of time. Since my father retired, my mother rarely comes to the shop. My mother took a lot of pride in her job and the business and was a hard worker. My mother expresses her frustration of not being able to help out. After my mother ceased working, the business struggled. I can tell how much this upset my mother.
28 The appellant’s daughter, Elizabeth Mazevska, deposed as follows in her affidavit sworn 7 November 2011:
16.Prior to the accident, my mother was working full time at Hallam Trial Pty Ltd, a retail and embroidery business. This is a family owned business and her duties involved a variety of tasks, including customer service. These duties required her to be on her feet for extended periods of time and perform tasks such as packing and unpacking goods. My mother enjoyed her work and her contribution to the business was important for its effective operation.
29.After the accident, my mother attempted to return to work. However, she had to stop because of her ongoing lower back and left leg symptoms. She could not cope with her duties as they required her to be on her feet for extended periods of time and perform tasks such as packing and unpacking. She is upset that she cannot return to work because she enjoyed it and the business is now suffering without her contribution.
29 As I have earlier noted, none of the appellant’s husband, son or daughter were cross-examined. Neither was the appellant cross-examined upon her account of her pre-injury occupation and her inability to perform her work thereafter. The only challenge mounted – based upon an entry typed into a pro forma document by a member of a TAC Network Pain Management Program[10] in 2010 – was as to the number of hours that she had worked each week before injury.
[10]It may have been a doctor, or perhaps it was an occupational therapist.
30 In his closing address, counsel for the respondent, as I have earlier observed, laid much emphasis upon the appellant’s want of credibility. He made no submission respecting the issue of impaired work capacity.
31 Appellant’s counsel, however, did address that issue. He described the appellant as ‘actively working’ before suffering injury. He referred to the opinion of Mr Dooley, and to that doctor’s opinion as to limitations upon the appellant’s work capacity by reason of compensable injury. He submitted, inter alia, that the appellant had difficulty in standing, sitting, bending, and in twisting and stretching, ‘all of which in our submission are verified by the evidence of the various doctors’. He submitted also, having identified a number of inhibitions in the appellant’s social and recreational life, that as well, ‘she’s had difficulty with working’. In answer to the judge’s observation that disability had to be at least very significant, counsel responded this way:
Well, Your Honour, the inability to sing in the choir in circumstances where she had been singing for many years and the inability to participate in the administration of the church as she had been for many years and the inability to carry out the voluntary work that she had been doing in our submission for this plaintiff are very serious. Leaving aside the uncontroverted evidence that she’s been unable to work since the happening of the collision, albeit that she tried to go back to work on two occasions. Each of those are serious. The inability to sleep well at night in our submission is serious.
Did the judge consider and determine the appellant’s pecuniary disadvantage claim?
32 As appears from the judge’s written reasons, his Honour did make findings as to medical evidence which he accepted pertaining to the appellant’s residual capacity for work. But, exemplified by [81] of his reasons,[11] he used his findings as a crutch for concluding that thereby the appellant’s evidence as to her ‘physical capabilities’ was undermined. Thus, disability from performing work with particular characteristics (though important for the appellant) rather than from performing any conceivable kind of work was treated by his Honour as going to the appellant’s credit, so underlining his conclusion that she was exaggerating her disabilities. The same is true of his Honour’s observations at [97] of his reasons.
[11]See [19], above.
33 I should refer also to [83] of his Honour’s reasons. Plainly, it did not deal at all with the impact of the appellant’s compensable injury (as found by his Honour) upon her ability to undertake her pre-injury work, or the potential relevance of an inability to do so to a serious injury determination. His Honour’s statement that the appellant had ‘admitted’ to not having applied for a job since sustaining injury was true, but its possible relevance to a woman in her sixties[12] who had worked in a family business for some 20 years before sustaining injury was left unexplained.
[12]The appellant was born on 6 April 1948.
34 In my opinion, it is clear that the medical opinion which the judge accepted supported a conclusion that the compensable injuries impacted, and would do so permanently,[13] upon the appellant’s ability to engage in her pre-injury employment. There was uncontroverted evidence from the appellant, her husband, her son, and her daughter as to the nature of the work and as to her inability to perform it subsequent to suffering compensable injury.
[13]The opinion of the specialists whose evidence the judge accepted was that the appellant’s condition had stabilised when she was last seen by them. None of them forecast any improvement in her condition. Mr Brownbill specifically opined that her restrictions were likely to be ‘long term’.
35 Unfortunately, the judge’s reasons show very clearly that his Honour did not address the potential significance to ‘serious injury’ of the impairment upon the appellant’s work capacity resulting from the injury. It was an issue which inescapably arose from the way in which the case was put, from evidence which his Honour accepted and evidence which was otherwise uncontroverted, and an issue which required determination. Failure to consider and determine that issue constituted specific error. This necessitates grant of leave to appeal, and that the appeal be allowed.
Should this Court determine the undecided issue?
36 The further question is whether this Court should now consider and determine the issue. In my opinion, it should do so. In short, it is as well-equipped as was the judge below to decide the issue which he did not decide. It is able to do so – (1) accepting the judge’s adverse finding as to the appellant’s credibility,[14] (2) accepting the judge’s findings as to the inconsequential nature of any cervical spinal injury and paragraph (c) injury, (3) accepting the judge’s finding that the compensable low back injury did not interfere with the appellant’s social and recreational activities to the extent which she claimed, (4) accepting the judge’s finding as to the nature of the low back injury and its impact upon the appellant’s work capacity, and (5) having regard to the evidence of the appellant and her family members as to the nature of her pre-injury work and her inability to perform it after sustaining injury – that evidence being, in the appellant’s case, not the subject of cross-examination, and, in the case of the family members, being uncontroverted and not being the subject of any adverse finding by the judge.
[14]In which I include, though it takes the matter no further, his Honour’s adverse view about the appellant’s in-court demeanour.
37 Serious injury may appear from the pain and suffering or the pecuniary disadvantage consequences of compensable injury.[15] It is the consequences of injury for the particular plaintiff which fall to be considered by reference to the ‘at least “very considerable” and certainly more than “significant” or “marked”’ test.
[15]Reference need only be made to the celebrated judgment of Crockett and Southwell JJ in Humphries v Poljak [1992] 2 VR 129, 140 (proposition 8). In a particular case, both the pain and suffering and the pecuniary disadvantage consequences may constitute injury as serious injury. But, upon the judge’s findings, that could not be so in this case.
38 In my opinion, taking the vantage point outlined at [35] above, the evidence leads strongly to a conclusion that the appellant has made good her claim that she has suffered serious injury by reason of being deprived of the ability to re-engage in her long-time employment. Although it is not necessary to go so far[16] – because, as I analyse it, the Court is undertaking a fact-finding exercise not hitherto undertaken – I would say that the evidence leads inexorably to that conclusion. The permanent and significant restriction upon the appellant’s work capacity must be understood in the context that she had for many years engaged in the same employment. No doubt she had acquired relevant skills. In a family enterprise, there was no demonstrated reason why she might not have worked for quite some years beyond her age at time of injury – that is, 61.[17] So to conclude does not necessarily require acceptance of the appellant’s evidence of intention to work until she was aged 70. It may be accepted that, in such a business, the other family members would give the appellant such assistance as they were able. But the small number of persons involved – and the fact of her husband’s later retirement – means, as the family members in substance deposed, that if the appellant was to work she had to undertake tasks in the business which were beyond her residual capacity; and that, after trial of work, she could not perform. In all, the injury as found by the judge has deprived the appellant, permanently, of a steady job, earning modest but not inconsequential income, the work being such as gave her enjoyment. It is, I should add, unrealistic to imagine that a woman in her sixties could find other work within the limits of what were assessed to be her physical limitations. Very little indeed could be made of her ‘admission’ that she had not applied for another job.[18]
[16]But see [39] below.
[17]The observations of Tate JA in Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26, [74]-[78] as to the significance of an applicant’s age in a claim reliant upon pain and suffering consequences of injury (in an Accident Compensation Act case) are not simply transposable to a pecuniary disadvantage claim; and I have not so treated what her Honour said.
[18]See [83] of the trial judge’s reasons.
39 In arriving at the conclusion just stated, I have not ignored the fact that one element of the compensable injury consisted of the aggravation of pre-existing degenerative spinal disease. Petkovski v Galletti[19] is relevant in that connection. Here, any lower back pain from which the appellant had previously suffered had, on the evidence, been transient. It had not required much treatment, and had not prevented the appellant from working full-time. The contrast with the post-injury situation was stark. In my opinion, it is clear that it is the aggravation of the pre-existing degenerative condition (to emphasise the point, I put to one side the soft tissue component of the compensable injury) which has caused the serious injury.
[19][1994] 1 VR 436.
A different analysis
40 If, contrary to the conclusion which I have arrived at, the judge did deal with and reject the appellant’s serious injury claim founded upon pecuniary disadvantage, this should be said. First, the judge’s reasons did not sufficiently explain a path of reasoning leading to such rejection. Second, and still more importantly, in my opinion the state of the evidence was such that the judge’s
conclusion, applying Mobilio v Balliotis,[20] could not survive. The (assumed) decision was plainly wrong. In the event, this Court would be called upon either to re-decide the issue, or to remit it for re-hearing. For reasons previously indicated, I would decide the issue, and I would do so favourably to the appellant.
[20][1998] 3 VR 833.
WHELAN JA:
41 I have read in draft the judgment of Ashley JA. I agree that the application for leave should be granted, that the appeal should be allowed, and that this Court should grant leave to the applicant to bring a proceeding for damages. I do so for the reasons he has given with the following qualification.
42 It is true that the applicant relied upon loss of earning capacity and pecuniary disadvantage, in the sense that the affidavits the applicant relied upon dealt with the issue and the matter was referred to in final submissions. But although the matter was referred to in final submissions, it was not given prominence and it was bound up with other issues in much the same way as the trial judge in his reasons bound up the issue of earning capacity with other issues. In particular, the following submission, based upon the material which Ashley JA has set out, was not made explicitly:
(a)The applicant’s duties in the family business required her to be able to stand for extended periods and necessarily involved bending, lifting and carrying items.
(b)The evidence given by the orthopaedic surgeon who examined the applicant on behalf of the respondent, Mr Dooley, was that the applicant had sustained soft tissue injury to her lumbar spine and that she would have difficulty carrying out employment involving regular bending and lifting.[21]
(c)When the applicant twice attempted to return to her pre-accident occupation she did have that very difficulty.
[21]See especially the report of Michael Dooley dated 20 April 2011 at page 4: Application Book 214.
43 No matter how much Mrs Mazevska may have exaggerated her symptoms and the effect of her injuries on her social and domestic life, the conclusion that she was no longer able to work in the family business necessarily followed from the acceptance of Mr Dooley’s evidence.
44 I agree with the orders proposed by Ashley JA.
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