Merhi v Ford Motor Company of Australia Limited
[2012] VSCA 147
•25 May 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2011 0048 | |
| GHASSAN MERHI | Appellant |
| v | |
| FORD MOTOR COMPANY OF AUSTRALIA LIMITED | Respondent |
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| JUDGE | NETTLE JA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 18 May 2012 | |
| DATE OF JUDGMENT | 25 May 2012 | |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 147 | |
| JUDGMENT APPEALED FROM | Merhi v Ford Motor Co (Unreported, County Court of Victoria, Judge Bourke, 28 March 2011) | |
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ACCIDENT COMPENSATION – Appeal from refusal of leave to bring proceedings pursuant to Accident Compensation Act 1985, s 134AB(16)(b) – Application for two year adjournment of hearing of appeal to allow appellant to undergo spinal fusion surgery and to place evidence of results of surgery before court on hearing of appeal – Application allowed.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr A D B Ingram | Clark Toop & Taylor |
| For the Respondent | Mr S A O’Meara SC Ms R L Kaye | Herbert Geer |
NETTLE JA:
This proceeding is an appeal from an order of a judge of the County Court, made on 28 March 2011, to refuse the appellant an order pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 for leave to bring proceedings against the respondent for damages for personal injuries.
The matter was called over a week ago, on Friday 18 May 2012, to be set down for the hearing of the appeal. When called over, however, counsel for the appellant applied ore tenus to have the call over adjourned for an indefinite period to enable the filing in future of evidence as to the outcome of surgery which the appellant now plans to undergo.
The application was opposed and, in the event, I adjourned the callover for a week until today and ordered that in the meantime the appellant file an affidavit as to when it is expected the surgery will be performed and what further evidence it is proposed would then be adduced. The matter now thus comes before me again.
The appellant was previously a maintenance welder employed by the Ford Motor Company. The judge found that he suffered a compensable injury on 21 February 2004 when, in the course of his work with Ford, he was knocked from a ladder or tower some 2.7 metres to the floor and thereby aggravated a pre-existing L5-S1 spondylosis or spondylolisthesis. The judge was further satisfied that, although the appellant’s symptomatology significantly improved by early 2005, there was then a substantial worsening of the problem beginning on or about 16 June 2005, which occurred at his home, resulting in an acute exacerbation of lower back pain and the need for consumption of narcotic analgesics.
Based upon extensive surveillance film, however, which showed the appellant over a six year period at times moving and squatting freely and at other times limping heavily, particularly when attending medical specialist appointments, the judge concluded that the appellant had overstated the level of his disability. Her Honour did not accept that he had constant back pain as he alleged or that his activities were compromised to the extent which he claimed. In the result, her Honour was not persuaded that any consequences related to the appellant’s employment incapacity were serious.
The judge also rejected the appellant’s claim of having suffered severe permanent psychiatric impairment as a consequence of the injury. Her Honour observed that, whilst at the time of the hearing the appellant continued to undergo psychiatric treatment, the treating psychiatrist, Dr Kochar, was of opinion that most of the appellant’s symptoms relating to his chronic adjustment disorder and anxious depressive mood were of only moderate severity and that, once the appellant’s compensation claim was finalised, it would be possible to review and reconsider his capacity for rehabilitation or retraining. On that basis, her Honour found that there was reason to doubt the permanency of the appellant’s psychiatric condition and that medico-legal opinion was not supportive of it being appropriately described as severe.
In the affidavit filed on 22 May 2012 in accordance with the directions which I gave last time, the appellant has deposed that he has been advised to undergo a posterior lumbar interbody fusion at the L5/S1 level, intends to undergo that surgery and has been placed in the elective surgery waiting list at the Royal Melbourne Hospital for the surgery to be performed. Nevertheless, perforce of the long delays associated with elective surgery in the public healthcare system in this State, on best estimates it will be more than two years before he gets his turn.
Under Rule 64.22(3) of the Supreme Court (General Civil Procedure) Rules 2005, the court has an untrammelled discretion to receive further evidence on appeal. But it was established in Mobilio v Balliotis[1] that, where the further evidence is of facts which have arisen since the hearing below, the discretion is to be exercised in accordance with the principles laid down by the House of Lords in Mulholland v Mitchell[2] and the New South Wales Court of Appeal in Radnedge v Government Insurance Office of New South Wales.[3]
[1][1998] 3 VR 833.
[2][1971] AC 666.
[3](1987) 9 NSWLR 235.
In Mobilio v Balliotis, the appeal was from a judge’s refusal to grant leave to bring proceeding for damages for personal injuries under s 93(4) of the Transport Accident Act 1986. In applying the principles in Mulholland v Mitchell to an application to adduce additional evidence of a change in the applicant’s medical condition since the hearing before the judge, Brooking JA said this:
In most applications under s. 93(4) of the Transport Accident Act the task of the judge quite closely resembles that of a judge or jury assessing damages for personal injuries as described by Lord Wilberforce. In the present case, in particular, the similarity is marked. His Honour was concerned with what the appellant's condition had been in the past, was in the present and would be in the future. It was very much on the cards that events occurring in the future would throw light on each of these questions. His Honour was in particular concerned with whether the appellant's condition had improved and would continue to improve. Again, future events were likely to throw light on that. The further evidence sought to be led was concerned with such matters as the mood of the plaintiff, her ability to work, her suicidal tendencies, her dependency on medication and her need for electro-convulsive therapy. These matters had all been gone into at the hearing. It is true that the evidence, if permitted to be led, would have shown that in some respects things had changed, but none of the changes went beyond what was reasonably in contemplation at the time of the hearing. It is a matter of degree, but I am not prepared to say, using the words of Viscount Dilhorne at 677 and Lord Pearson at 681 in Mulholland, that the circumstances of this case are exceptional or (using the words of Viscount Dilhorne) that the question was determined at the hearing on a basis which events after it have falsified. Nor, using the words of Lord Hodson at 676, would I say that the basis upon which the case was decided at the hearing was suddenly and materially falsified by a dramatic change of circumstances. In picking up these expressions I do not of course suggest that there is any ‘precise formula which gives a ready answer’, reminding myself of the caution expressed by Lord Hodson at 676.[4].
[4][1998] 3 VR 833, 852–3.
As it appears to me, the position here is in some respects similar. The judge below was concerned with what the appellant's condition had been in the past, was in the present and would be in the future. It was contemplated that events occurring in the future may throw light on each of those questions. Several of the medical experts remarked upon that possibility and what it was likely to entail. Her Honour in particular was concerned with whether the appellant's condition had improved and would continue to improve, future events were relevant to that, and all of those matters were, to some extent, gone into.
Counsel for the respondent submitted that it was indeed so. He pointed to reports of the appellant’s general practitioner, Dr Rowais, which were in evidence before the judge, in which Dr Rowais several times stated that treating specialists were of opinion that surgery was essential. Counsel argued on that basis that it was plainly in contemplation that surgery would be necessary at some time in the foreseeable future. He further argued that what the appellant had done in effect was make an election to go to the judge before undertaking the surgery (rather than seeking an adjournment in which to undertake it and then putting evidence of its consequences before the court). In those circumstances, counsel submitted, it was wrong to contend, as the appellant does, that there has been a fundamental or even significant change in the factual basis on which the judge decided.
Counsel for the appellant contended to the contrary that, so far from the matter going to the judge on the basis that surgery was essential, the respondent had trenchantly cross-examined Dr Rowais to the effect that he had severely overstated the extent of the appellant’s injury. The respondent had thereby persuaded the judge that Dr Rowais’ opinion should be rejected. The judge had thus approached the matter on the basis that the furthest the acceptable evidence went concerning the need for surgery was an opinion of Mr O’Brien, neuro-surgeon, in a letter of 21 April 2009. And the farthest that went was that, at some undefined time in the future, after pain relief therapy which Mr O’Brien recommended, it would be appropriate to consider whether surgery was required.[5] Counsel added in support of that contention that it was highly significant that the appellant was not at all cross‑examined to the effect that he had made a decision to undergo surgery or even that it had been recommended to him that he should.
[5]AB, D47.
In view of the differences between those two competing views of the matter, and their significance to the application which is before me, it is necessary that I choose between them. Doing the best I can on the basis of the limited material before me, and in the relatively short time available to consider it, this much at least seems to be clear:
· First, the appellant sought to persuade the judge below on the basis of Dr Rowais’ evidence that the injury was sufficiently serious to necessitate surgery.
· Secondly, the respondent sought to and was successful in so discrediting Dr Rowais that the judge was not persuaded of the efficacy of his opinion.
· Thirdly, as a result, the judge proceeded on the basis that the furthest the evidence went as to the need for surgery was Mr O’Brien’s observation that, after the appellant had undergone the pain relief therapy which Mr O’Brien recommended, it would be appropriate to reassess the situation to determine whether surgery might be warranted.
· Fourthly, and consequently, the judge was not persuaded that the injury was sufficiently detrimental to the appellant’s capacity for work to qualify as serious.
· Fifthly, as events have turned out, the appellant did not receive the pain management treatment recommended by Mr O'Brien, because the respondent refused to fund it, and so the appellant has since moved onto the Royal Melbourne Hospital public waiting list where his condition is classified as ‘elective category 3’. Hence, the need to wait at least another two years before he undergoes the spinal fusion operation which is recommended.[6]
[6]Exh ‘6M3’ the appellant’s affidavit sworn 22 May 2012.
I confess I do not find this an easy matter. I was at first inclined to think that, because of the delay of more than two years which is proposed, and because one cannot predict in advance what the outcome of the spinal fusion surgery will be, the application for adjournment should be refused. But having now heard argument on both sides, I am persuaded on balance that to allow the appeal to proceed without affording the appellant the opportunity of undergoing the surgery and putting evidence of its consequences before the Court, would be, to adopt Lord Wilberforce's language, an ‘affront common sense, or a sense of justice’.[7]
[7]Mulholland v Mitchell [1971] AC 666, 680.
Experience suggests that the need for and consequences of surgery of the kind now in contemplation are frequently regarded as synonymous with serious injury. Accordingly, it is likely, in the sense that there is a real and not insubstantial chance, that evidence of the consequences of the spinal fusion surgery, once undertaken, would lead to a different conclusion than the judge came to. It is true that the appellant made his application below on the basis that he had not elected to undergo surgery and, in effect, took his chances before the judge on that basis. Yet one can understand why he adopted that course - in the hope no doubt of attracting an award sufficient to fund the treatment recommended by Mr O'Brien - rather than facing the prospect of the knife. In my view, that should not be held against him. In any event, now he has no choice in effect and that is something which is truly fresh evidence which could not, with reasonable diligence, have been adduced at the time of the hearing.
I do not overlook the possibility of a further delay causing the respondent prejudice. After all, the injury in question was sustained some eight years ago and, if the adjournment sought is granted, it may not be until 2015 that the appeal is heard. And if there is to be a trial after that, the delay will be even greater. Fortunately, however, apart from the prejudice of delay itself (which is always relevant), there is unlikely to be any substantial prejudice as such. All of the evidence, except the proposed new evidence, has been heard and is the subject of findings of fact about which there appears to be little dispute. The remainder of it, principally comprised of the surveillance footage, speaks for itself. This is not a case in which further delay would be bound relevantly to tax recollections of events or otherwise throw doubts upon the facts of the matter. In large part, the facts are determined and the appeal will be confined to an assessment of their forensic significance. That would also be the case, although perhaps not quite to the same extent, in any trial which might follow the appeal.
I am concerned that, if an adjournment is granted and the appellant undergoes surgery and then seeks to put on evidence of its consequences, it may lead to the respondent seeking to adduce further evidence to counter its effect. We could thus end up with a new serious injury hearing before this Court and, if at all possible, that is to be avoided. In the end, however, given that, depending upon the consequences of the surgery now to be undertaken, the factual position could prove to be very different to what was before the judge, and thereby significantly affect one's perception of the appellant's reports of his pain and suffering, I consider that he should be afforded the chance of putting that material before us.
Finally, it occurs to me that, if the appellant had the means to afford private health insurance, he would be able to undergo the recommended surgery within months if not a matter of weeks. If that were the only delay, I should be strongly inclined to grant a corresponding adjournment to allow him to adduce evidence of the consequences of the surgery. In the absence of any significant prejudice to the respondent, it surely cannot be right that the applicant is to be deprived of that kind of opportunity to make his case which greater wealth would afford him.
I shall, therefore, order that this matter be taken out of the list of cases for hearing and direct that it be called over again on a date to be fixed by the Registrar after consultation with the solicitors for each party no more than 30 months hence.
On the next occasion the matter comes before the court, it is to be expected that the appellant will have prepared and be ready to make any necessary application for the amendment of his grounds of appeal to include the adduction of fresh evidence if he be so advised and, subject to that, the matter will be ready to be set down for the hearing of the appeal.
All things considered, I think it appropriate to order that each party's costs of 18 May 2012 and of today be costs in the appeal.
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