Peatling v P & R Meats Pty Ltd and Anor
[2002] VSCA 173
•28 October 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 5227 of 2001
| OWEN GLENN PEATLING | |
| Appellant | |
| v. | |
| P. & R. MEATS PTY. LTD. and H.I.H. WORKERS' COMPENSATION (VIC.) LTD. | First Respondent Second Respondent |
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JUDGES: | WINNEKE, P., PHILLIPS and BATT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 October 2002 | |
DATE OF JUDGMENT: | 28 October 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 173 | |
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Accident compensation – Workers’ compensation – Claim to “serious injury” – Work related injury as claimed not established – Insufficient evidence to find whether subsequent “aggravation” serious injury – Leave to bring proceedings properly refused – Accident Compensation Act 1985 s.135A(4)(b), (6), (19).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P. Jewell | Williams Winter & Higgs |
| For the Respondents | Mr R.H. Gillies Q.C. with Mr P.H. Solomon | Mills Oakley |
WINNEKE, P.:
I will invite Phillips, J.A. to give the first judgment in this appeal.
PHILLIPS, J.A.:
By originating motion dated 12 January 2000 the appellant sought leave to bring proceedings in the County Court to recover damages for personal injury allegedly arising out of or in the course of employment with the first-named defendant ("the employer"). The appellant sought leave under s.135A(4)(b) of the Accident Compensation Act 1985. Section 135A(6) enjoins the court not to give leave unless it is satisfied that the injury is a "serious injury", a term defined in sub-s.(19). In this case the appellant was relying upon paragraphs (a) and (c) of the definition.
As the case was argued, the appellant rested first upon an "initiating injury" to his left wrist which occurred, he said, on 30 July 1996 whilst lifting and stacking a box of meat to an elevated position on the stillage shelving. As he lifted the box and sought to stack it, the middle of the box collapsed and the meat fell down upon him so that his left hand was crushed with considerable force against a corner edge of the metal stillage and his left wrist struck against the stillage in the region of the wrist knuckle. There was no witness to the incident and for a time the appellant continued to work, he claimed, notwithstanding developing symptoms, including soreness, aching and pain in the area of the injury.
The second leg of the appellant's case was subsequent aggravation of the stillage injury in the course of his work with the employer during the latter part of 1996. According to the judge, three possible causes of aggravation were identified in the evidence. First, the appellant said that he knocked his left wrist against a chiller on 8 August 1996 - but as the judge pointed out in his reasons for judgment, there was no record of that injury in the Register of Injuries and it appears that the appellant made no immediate complaint about it; and anyway Mr Cunningham, the orthopaedic surgeon consulted by the appellant, considered that it would not have been of any significance. Secondly, there was aggravation, it was alleged, during
September or October 1996 when the appellant was summoned back to work after only three days away and, with his left wrist still in plaster, was required to drag heavy tubs of carcases. Mr Cunningham opined that this was "a major aggravating factor" in respect of the wrist injury that occurred in July. Thirdly, there was an occasion in November 1996 when the appellant slipped and fell, apparently at work - and again Mr Cunningham considered that this aggravated the original injury.
The application by originating motion was supported by an affidavit sworn by the appellant on 28 May 1999, and a supplementary affidavit of his sworn on 12 January 2000. There were also affidavits from the appellant's solicitor and an affidavit by one John Ronald Smith, the coach of the North Heidelberg Football Club's reserve team of which the appellant was a member. There were many reports from doctors and a number of witnesses were cross-examined, including the appellant himself on his affidavits. There was also an affidavit sworn by one Hulya Donmez on 28 December 2000 when, after the hearing was otherwise concluded, arrangements were made for the appellant's x-rays taken on 14 July and 8 August 1996 to be inspected at the Austin Hospital and expert opinion expressed thereon. This was in consequence of those x-rays not being immediately available in the course of the hearing and his Honour inviting opinion as soon as those x-rays could be sighted at the hospital itself.
The hearing occupied a number of days in October 2000 and judgment was delivered by the trial judge on 23 March 2001. Delivering careful reasons for judgment, his Honour concluded that the appellant's medical condition was such as would ordinarily establish "serious injury" under s.135A(19)(a). The appellant, the judge said, had not worked since 12 January 1998 and was permanently unfit to resume either his pre-injury occupation or any manual work requiring use of both arms. Moreover, his quality of life had been dramatically prejudiced, in that he could no longer pursue an equestrian career in which he had previously been highly successful. Further, the "psychological sequelae" of the injury had been extreme and that, the judge accepted, bore upon the definition of "serious injury", even in paragraph (a).
None the less, the judge dismissed the application for leave to bring proceedings. That was because his Honour was not satisfied on the balance of probabilities "that the plaintiff's left wrist was injured when a box collapsed at work". He said that it was more probable that the injury causing the wrist to be painful as recorded on 30 July 1996 in the employer's Register of Injuries "was the football injury for which the plaintiff was treated at the Austin Hospital on 14 July". On that account his Honour rejected the appellant's case in so far as it rested upon the "initiating injury" at work on 30 July. There was no such injury, according to his Honour. As for the balance of the case resting upon aggravation occurring in and after September 1996, the judge concluded that he had been left without evidence upon which he could find that the aggravation constituted a serious injury. On those grounds he dismissed the application.
The appellant now appeals, contending that his Honour's judgment on both aspects betokened error. Mr Jewell, who appeared for the appellant, accepted that for the purpose of succeeding in the application below, the appellant had to satisfy the judge that he had suffered serious injury to which work was a significant contributing factor. Mr Gillies, who appeared for the respondent, agreed and, as what was required on the application was therefore common ground, that was the basis on which this appeal was argued and it is the basis on which I now proceed (without expressing any opinion on the merits of the position so adopted). What Mr Jewell submitted was that there was evidence before the judge which, in substance, required his Honour to find that there had been the stillage injury at work on 30 July 1996 upon which the appellant's case primarily depended and, further or alternatively, that the evidence, when properly viewed, did establish that the aggravation relied upon was serious injury as required on the leave application. Mr Gillies contended to the contrary, submitting that his Honour made no error in either respect.
As for the first, the stillage injury on 30 July 1996, Mr Jewell had to accept that in the course of the trial the appellant's own credibility had been significantly undermined. This was because, in his evidence, the appellant had volunteered no reference to an injury sustained by him whilst playing football on Saturday 13 July 1996, an injury to his wrist which had resulted in his attending at the Austin Hospital on the following day, Sunday 14 July, and being x-rayed - facts which were not in doubt by the time the evidence concluded. Moreover, as Mr Gillies pointed out, Mr Cunningham recorded that when he first saw the appellant on 9 August 1996, he was told by the appellant that the wrist injury had occurred "three weeks before he sought any sort of medical attention". Another orthopaedic surgeon, in a report of June 1999, recorded a first injury on 7 July 1996 and a further injury on 30 July 1996; and yet another medical practitioner, a physician, in a report of 6 May 1999 recorded a history, referring to injury to the left arm on 30 July, but stating also: "On the 30th July 1996 the claim was put in but the injury actually occurred two weeks previously". There was every reason, therefore, for supposing that the injury that allegedly occurred on 30 July might not have happened as claimed: and indeed the Register of Injuries, to which his Honour referred in the course of his reasons for judgment, while it recorded injury in respect of the appellant by reference to pain experienced on 30 July, 31 July and 8 August 1996, on each occasion recorded the cause as "unstated".
There is no doubt but that his Honour was fully conscious of the difficulties attending acceptance of the appellant's own evidence, notwithstanding that the appellant's claim for compensation, dated 12 August 1996, identified the time of injury as "10.35 a.m. on 30.7.96". But having heard the witnesses and having considered the evidence, his Honour concluded that he was not satisfied on the balance of probabilities that there had been an injury sustained at work on 30 July 1996. As already mentioned, his Honour concluded on the balance of probabilities that what caused his wrist to be painful as recorded on 30 July "was the football injury for which the plaintiff was treated at the Austin Hospital on 14 July". Mr Jewell sought to establish the contrary, first by reference to the appellant's returning to work after only two days off after the football injury and, secondly, by reference to the medical evidence concerning the x-rays. Such evidence showed, he submitted, that the x-rays taken on 14 July revealed no fracture of the wrist, while the x-rays taken on 8 August 1996 did show a fracture - something which could not be explained otherwise than by injury on 30 July 1996 as claimed by the appellant. But there was one opinion of a radiologist which left open the possibility that on 14 July there had been an "undisplaced hairline fracture of the ulna styloid process" and it followed, said Mr Gillies, that the displacement disclosed by the later x-rays might well have been the result of movement of the wrist in the meantime, without the need for intervening injury as asserted by the appellant. In those circumstances it seems to me quite plain that it was open to the trial judge, as the arbiter of fact, to conclude as he did, and in doing so he was not plainly wrong. In my opinion Mr Jewell did not establish error in that regard. A complaint was made by Mr Jewell that his Honour's reasons for rejecting the evidence to the contrary were inadequate, but in my opinion there is nothing in the point. His Honour set out the submissions of respondent's counsel in that regard and said that he accepted them.
As for the evidence about aggravation, that evidence, too, was not altogether satisfactory. There was, first, some doubt about the actual events upon which reliance was being placed. But putting that to one side, Mr Jewell submitted that from the medical reports one could distil sufficient to identify a picture of the appellant's impairment before the aggravation in and after mid-September 1996, and of the impairment after it. Moreover, he submitted, it was appropriate in a case where the appellant had been made vulnerable by some earlier incident to have regard simply to the impact of the aggravation on the appellant's condition, measuring whether the impairment from which he suffered after the aggravation was or was not serious injury, given that that was the result of the aggravation working on the earlier vulnerability. In answer, Mr Gillies identified the difficulty still remaining: there was not sufficient evidence, he said, about the nature and extent of the earlier injury giving rise to the vulnerability and upon which the aggravation was said to have worked - and in particular no evidence about what
would have happened in the ordinary course of events had that earlier injury not been followed by subsequent "aggravation". Without such evidence about what would have happened anyway - or might have happened - the judge was entitled, he submitted, to conclude that he had been left without sufficient evidence to find whether the aggravation relied upon was or was not serious injury in itself. I agree. I think that the submission of Mr Gillies should be accepted.
Accordingly, in my opinion the judge is not shown to have fallen into error as claimed by the appellant on this appeal. It follows that the appeal should be dismissed.
WINNEKE, P.:
I agree.
BATT, J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court is that the appeal is dismissed with costs.
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