ACCIDENT COMPENSATION – Workplace injury – Serious injury application – Left elbow epicondylitis – Pain syndrome – Disentangling physical from psychological causes of pain and suffering consequences – Whether correct legal test applied – Adequacy of judge’s reasons – Appeal dismissed – Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 applied –Accident Compensation Act 1985 (Vic) ss 134AB(16)(b), (19), (37), (38).
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr R W McGarvie SC with Mr B G Anderson
Shine Lawyers
For the Respondent
Mr S A O’Meara SC with Ms J M Forbes
Wisewould Mahony
MAXWELL ACJ:
Summary
This appeal raises a question of continuing importance in serious injury litigation: how is a judge to decide a serious injury application in a case where the pain and suffering consequences relied on to establish the serious injury are attributable to both physical and psychological causes?
The starting point (where the injury is work-related) is s 134AB(38)(h) of the Accident Compensation Act 1985 (Vic) (the ‘Act’). The Court, in assessing the pain and suffering consequences of an injury, must exclude the psychological or psychiatric consequences of that injury. It follows that, to establish serious injury, the applicant must satisfy the Court, on the balance of probabilities, that the organically based pain and suffering consequences satisfy the statutory criterion of being ‘more than significant or marked and … at least very considerable’.[1]
In the present case, there was a physical injury. Mrs Meadows had also developed a ‘pain syndrome’ or functional overlay.[2] The resultant pain and disability therefore had both physical and psychological aspects. The judge accepted that the pain and suffering consequences relied on did reach the ‘very considerable’ level,[3] but was not satisfied that those consequences had an organic basis. The application was therefore dismissed.
On this appeal, Mrs Meadows advances three contentions. The first is that the judge erred in law, either because he applied the wrong legal test or because the conclusion he arrived at was not open on the evidence. Secondly, it is contended that the judge failed to identify those consequences which did have a physical basis (that being a necessary part of the task) and hence failed to conclude, as he ought to have done, that there was a physical basis for the pain and suffering consequences. Thirdly, it…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Meadows v Lichmore Pty Ltd [2013] VSCA 201
Case
[2013] VSCA 201
Decision Date
CaseChat Overview and Summary
Meadows commenced proceedings against Lichmore Pty Ltd in the County Court of Victoria, seeking compensation for injuries sustained in a workplace accident. The plaintiff claimed damages for a left elbow epicondylitis, which he alleged arose from his employment. The primary dispute centred on the extent of Meadows' injuries and the appropriate quantification of his pain and suffering. The court was tasked with determining whether the psychological components of Meadows' pain and suffering were adequately disentangled from the physical components, and whether the correct legal test was applied in assessing the award of damages. Additionally, the adequacy of the trial judge's reasons for the award was challenged.
The court considered whether the trial judge had correctly applied the legal test in Jayatilake v Toyota Motor Corporation Australia Ltd in assessing the damages for pain and suffering. The plaintiff argued that the trial judge had failed to properly disentangle the physical and psychological components of his pain and suffering. The court also examined whether the judge's reasons were sufficient to justify the award of damages. In reviewing the decision, the court was required to determine if the trial judge had applied the correct legal principles and whether those principles were appropriately applied to the facts of the case.
The Court of Appeal held that the trial judge had correctly applied the principles set out in Jayatilake v Toyota Motor Corporation Australia Ltd, and the reasons provided were adequate to support the award of damages. The appeal was dismissed, with the court finding no error in the trial judge's assessment of the plaintiff's pain and suffering or in the reasoning provided. The court found that the trial judge had appropriately considered the psychological and physical components of Meadows' pain and suffering and had applied the correct legal test in making the award.
No further orders were made by the Court of Appeal.