R J Gilbertsons Pty Ltd v Skorsis
[2000] VSCA 51
•19 April 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 5045 of 1999
| R.J. GILBERTSONS PTY. LTD. |
| Appellant |
| v |
| GEORGE SKORSIS |
| Respondent |
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JUDGES: | WINNEKE, P., BUCHANAN and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 17 and 18 February 2000 | |
DATE OF JUDGMENT: | 19 April 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 51 | |
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Accident compensation – Serious injury – Aggravation of existing condition – Assessment of damages.
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr. A.G. Uren, Q.C. and | Wisewoulds |
| For the Respondent | Mr. D.F. Hore-Lacy, Q.C. Mr. M.A. Nightingale | Patrick Robinson & Co. |
WINNEKE, P.:
I have had the advantage of reading in draft the reasons for judgment of Buchanan, J.A. The facts relevant to the issues raised on this appeal are set out in those reasons. I agree with his Honour’s conclusion that, upon the evidence available to the trial judge, she was entitled to find that the injury suffered by the respondent, as a consequence of being exposed to an unsafe system of work between 1993 and 1995, was a “serious injury” within the meaning of s.135A (19)(a) of the Accident Compensation Act 1985. I also agree with the conclusion of Buchanan, J.A. that the trial judge erred in assessing damages, particularly in respect of future loss of earning capacity, and that the matter should be remitted to the County Court on the issue of damages alone. Although I would have been content to adopt his Honour’s reasons in respect of the “serious injury” issue, I am, for my own part, not persuaded that the trial judge’s conclusion that the respondent had suffered a “serious injury” was founded upon any erroneous process of reasoning or was so plainly wrong that this Court should be prepared to set it aside (Mobilio v. Balliotis[1]).
[1][1998] 3 V.R. 833.
The respondent’s claim was issued at a time when he was entitled, pursuant to the scheme of the Act, to plead that the injury for which damages were sought was a “serious injury”. However his right to recover damages was dependent upon him proving as a fact that the injury was “serious” within the meaning of the sub-section (Hanrahan v. Davis[2]). The injury which he asserted was one involving an “aggravation or acceleration” of a pre-existing condition in the shoulder or, more particularly, of an arthritic condition in the acromio-clavicular joint. The pre-existing condition had resulted from an incident at work which had occurred in early 1991, which was not compensable under s.135A. Although the evidence established that that 1991 injury was likely to have consequences for the respondent in the form of instability in the shoulder-blade and resultant arthritis in the acromio-clavicular joint, there was a paucity of evidence before the judge as to when those consequences would have reached incapacitating levels had the respondent not been exposed to the unsafe system of work imposed upon him by the appellant after November 1993. It is, of course, true that where a plaintiff is contending that the injury constituted by an aggravation of a pre-existing condition is itself a “serious injury”, in the sense of a serious long-term impairment of a body function, it is for the plaintiff to prove that the aggravation meets that description. In determining whether the plaintiff has discharged the onus the court must make a comparison of the plaintiff’s condition before the supervention of the defendant’s negligent conduct, with his condition thereafter and make an assessment of the additional impairment (Petkovski v. Galletti[3]). Counsel for the appellant submits that, in this case, the judge did not make that assessment or, if she did, did not articulate it in her reasons.
[2][1997] 1 V.R. 285.
[3][1994] 1 V.R. 436 at 443.
This, I think, is not a fair criticism of her Honour’s reasons and findings. There was no real dispute among the experts who gave evidence that the 1991 injury to the thoracic nerve did not, per se, incapacitate the respondent. Rather, what it did was to produce, over time, the instability in the shoulder which made the respondent a likely candidate for the future onset of the incapacitating arthritic symptoms in the acromio-clavicular joint to which he succumbed in 1995. But the evidence entitled her Honour to find, as I think she did, that it was the negligence of the appellant in requiring the respondent after November 1993 to rapidly and repeatedly lift heavy boxes in a confined space, which had so accelerated the onset of incapacitating arthritis in the shoulder that it was appropriate to describe such accelerated impairment as both “serious” and “long-term”.
Although, in some respects, her Honour’s reasoning processes are not as transparent as they might have been, I am satisfied that they do disclose that she had applied the appropriate tests in reaching her conclusion that the injury caused by the aggravation of the underlying condition was itself a “serious injury”. Quite apart from the passages in her Honour’s reasons to which Buchanan, J.A. has referred in paragraph [20] of his judgment, it is apparent that she was well aware of the test which she was required to apply because, immediately before reaching her conclusions, she had referred to Petkovski’s case, supra, and to the fact that the respondent could only claim compensation for such disabilities as he could prove to have resulted from the “relevant accident”. Furthermore, and earlier in her reasons, the judge had referred, with apparent approval and acceptance, to the opinion of Mr. Geoffrey Klug (a neuro-surgeon called by the appellant) that it was the heavy lifting work required to be performed by the respondent after he resumed his employment in late 1993 which had aggravated and accelerated the wear and tear on the acromio-clavicular joint (my emphasis), an opinion which was shared, as her Honour pointed out, by Mr. Jensen, a neuro-surgeon called by the respondent. Her Honour had also referred to evidence given by Mr. Kevin King, an orthopaedic surgeon, who had assented to the proposition that if a job proposal made to the respondent in 1995 by the appellant, which involved lifting within acceptable limits, had been implemented, it would have been “reasonable” for the respondent to have “given it a go”. Although the appellant was seeking to use this evidence to demonstrate that the respondent had not mitigated his loss, it was clearly open to draw an inference from it – as it seems to me that her Honour probably did – that, if an acceptable regime of work had been provided to the respondent after he resumed his employment in 1993, it was probable that the incapacitating symptoms of arthritis would not have occurred as early as they did.
It may be conceded that the judge, in reaching her conclusion that the aggravation of the joint injury was a “serious injury”, did not make any explicit finding as to the probable course of the pre-existing condition or when, in the absence of supervening negligence, it was likely to have led to incapacity. This was probably because no expert had been specifically asked to express such an opinion even though, as I see it, the appellant, who was contending that the aggravation was not a “serious injury”, bore the evidential burden of showing what the probable course of the pre-existing condition would be (cf. Watts v. Rake[4]; Purkess v. Crittenden[5]). But, in my opinion, it is at least implicit in the judge’s findings that she was satisfied that the acceleration of symptoms brought about by the negligent work regime was of such a degree that it met the criteria necessary to establish that the aggravation was itself “serious” within the meaning of the definition. Having referred to the relevant opinion evidence, and the evidence of the respondent and his wife, her Honour found that the respondent had not been incapacitated by the 1991 injury and had been able to continue his work and other activities without difficulty. She, thus, found that the 1991 injury was not a “serious injury”, a finding which she was entitled to make. Her Honour further found that it was the nature of the work required after November 1993 which had “aggravated and exacerbated his shoulder problem”. When her Honour said, after referring to Petkovski v. Galletti, supra, that she had:
[4](1960) 108 C.L.R. 158.
[5](1965) 114 C.L.R. 164.
“considered the evidence of all medical witnesses and that of the plaintiff himself in relation to whether the heavy work done in 1993-5”
had resulted in an aggravation of the 1991 shoulder injury :
“to the extent that it constituted ‘a serious long term impairment … of a body function’ as defined in s.135A(19)(a) of the … Act”
and then concluded that she was so satisfied, she was, in my view, making the comparison which the authorities called for and was finding as a fact that the negligent system of heavy work imposed by the appellant upon the respondent had so hastened or accelerated the incapacitating symptoms as to render the aggravating injury “serious” in the relevant sense. Such a finding, as I have said, was clearly open on the evidence; and because it was a finding which involved elements of fact, degree and value judgment which do not readily lend themselves to articulation (cf. Fleming v. Hutchison[6]), it is not, I think, open to the appellant to criticize her Honour’s reasons on the grounds that they do not adequately disclose the process by which she reached her conclusion.
[6][1991] 66 A.L.J.R. 211.
It is for these reasons that I would reject the appellant’s contention that the trial judge had erred in finding that the aggravating injury was a “serious injury”, and the further submission that her reasons were inadequate. Although I have reached the conclusions which I have by a somewhat different route from that taken by Buchanan, J.A., that is not to deny the validity of the reasoning process through which he has reached the same conclusion in respect of this aspect of the appeal.
It is the reasoning process employed by her Honour in assessing the compensable loss suffered by the respondent for the serious injury found, which in my view, and for the reasons given by Buchanan, J.A., is erroneous. In arriving at a figure for loss of future earning capacity it is apparent that her Honour assumed that the respondent had lost the whole of his earning capacity as the result of the aggravating injury attributable to the defendant’s negligence and took no account of the body of evidence which suggested that it was likely that at some stage during the remainder of his working life the respondent was going to become incapacitated, through normal wear and tear, as a result of the non-incapacitating and non-compensable injury to the thoracic nerve suffered in 1991. In failing to take account of what seems to me to have been a probability established by the evidence, the judge was clearly in error. That error cannot be saved, as counsel for the respondent submitted, by the fact that her Honour discounted by some 55% the total figure awarded for future loss to take account of “possible future employment prospects” and “vicissitudes”.
In the event that the Court came to the conclusions which it has, appellant’s counsel contended that we should remit the matter to the County Court upon all issues. It was said that the issues as to compensable loss were so intricately interwoven with the issues of negligence that such a course was warranted. On the other hand, counsel for the respondent contended that we should determine the damages for ourselves. In my view neither course suggested is acceptable. It would be unfair to remit the issues of liability for re-consideration, not only because those issues have been determined in favour of the respondent, but also because no appeal has been brought against her Honour’s finding in that regard. Nor is it possible in this case for the Court to re-assess the damages for itself because, although her Honour was satisfied that there was an appreciable acceleration of the incapacitating symptoms sufficient to constitute “serious injury”, she has not made any relevant findings as to the probable course of the pre-existing condition, insofar as it would impact upon the respondent’s working capacity. Although it seems a pity that this litigation should be exposed to further cost and expense, the fact is that, in its present form, the evidence would not enable the Court to make the relevant findings for itself. I therefore agree with Buchanan, J.A. that the only course available is to remit the matter to the County Court upon the issue of damages alone.
I agree, for the reasons which have been given by Buchanan, J.A., that the trial judge was correct to have excluded from the assessment of damages the existing value of potential statutory benefits (if any) which the respondent may have in respect of the 1991 injury.
BUCHANAN, J.A.:
In 1977 the respondent, who is now 43 years old, gained employment as a labourer with the appellant at its meatworks. The appellant's work involved strenuous stretching and lifting heavy loads.
In January 1991 the respondent fell two metres from a ladder on to a concrete floor, landing on his right shoulder. He felt winded and continued working until the end of his shift, when he reported the accident to the first aid staff. He said that he felt sore that night, but he continued working until he was retrenched in May 1991.
On 16 December 1991, the respondent consulted his general practitioner about pain in his right shoulder. The doctor diagnosed tendonitis and recommended an X-ray, but no X-ray was then taken. It does not appear that any medical treatment was administered to the respondent.
The respondent worked intermittently for the appellant from May 1991 to December 1992. On 15 November 1993 he was re-employed by the appellant on a full-time basis. In the course of this work the respondent engaged once again in heavy, strenuous lifting.
On 15 October 1994 the respondent complained to his general practitioner about pain in his right shoulder. The doctor arranged for an X-ray and referred the respondent to a rheumatologist. The X-ray revealed osteoarthritis in the acromio-clavicular joint of the right shoulder. In August 1995 the respondent ceased work, stating in evidence that he was "in excruciating pain". He has not worked since then.
The respondent brought an action in the County Court claiming damages in negligence against the appellant in respect of the injury caused by the work performed by the respondent during the period from November 1993 to August 1995. In the respondent's statement of claim the damage to his shoulder joint was described, inter alia, as "aggravation of previous right shoulder injury" and "aggravation and acceleration of osteoarthritic change in the right acromio-clavicular joint". The action was tried by a judge sitting without a jury. A threshold question was whether the respondent had sustained a "serious injury" within the meaning of s.135A(19)(a) of the Accident Compensation Act 1995 ("the Act"), that is, whether the respondent had suffered "serious long-term impairment or loss of a body function".
At the trial the appellant appeared to accept that the respondent had sustained a serious injury, but contended that it was caused by the fall from the ladder in 1991 and an action in respect of that injury was barred by the effluxion of time by reason of the provisions of s.135B of the Act. The trial judge said that the 1991 injury was not serious: the respondent took no time off work and did not seek medical treatment until December 1991, and then not with any persistence. Her Honour held that the damage to the shoulder joint caused by the heavy work performed by the respondent between 1993 and 1995 resulted in a long-term impairment within the meaning of paragraph (a) of the definition of "serious injury".
The trial judge held that the appellant was guilty of negligence which caused the respondent's injury. Somewhat surprisingly it is not in issue on this appeal that the incapacity resulting from the development of osteoarthritis in the respondent's right shoulder joint was attributable to negligence on the part of the appellant. The trial judge awarded the respondent $50,000 as general damages, $100,000 for past economic loss and $210,000 for future economic loss. The amount for past economic loss was agreed between the parties. The amount for future economic loss was assessed by the trial judge and was produced by applying an agreed multiplier to reach a figure of $474,997.50 and then reducing that amount, first by 50% on the basis that there was a 50% chance of the respondent obtaining alternative employment in the future, and secondly by subtracting a further amount to take account of the ordinary vicissitudes of life.
The principal issues arising in this appeal are twofold. The first is whether the aggravation of an existing condition brought about by the work performed by the respondent between 1993 and 1995 constituted a "serious injury" within the meaning of the Act. The second is whether the trial judge was required, and failed, to consider the potential effect of the 1991 injury in assessing the amount of damages to be awarded to the applicant.
The appellant first complains of the determination that the aggravation of the injury to the respondent's shoulder in 1991 produced by the work which he performed between 1993 and 1995 constituted a "serious injury". The appellant contends that the decision was plainly wrong because the trial judge failed to evaluate the extent of impairment caused in 1991. According to the appellant the evidence showed that the 1991 injury was a major cause of the respondent's impairment and had significantly affected his capacity for work. The respondent was doomed to be incapacitated if he continued as a manual labourer and thus the aggravation that produced the incapacity did not amount to a serious injury. The appellant also contended that the trial judge did not say how the evidence supported the view that the work performed from 1993 to 1995 resulted in an aggravation that met the description of a serious injury, and thus failed to give adequate reasons for her decision.
The trial judge said in her reasons:
"The preponderance of the expert medical evidence referred to earlier in these reasons is such that it appears the plaintiff may well have suffered a 'stretched long-thoracic nerve' in the 1991 fall, which was aggravated by the heavy work performed by the plaintiff between 1993 and 1995 to the point where it became a serious long-term impairment as defined in s.135A(19)(a) of the Accident Compensation Act 1995.)"
Her Honour said that she did not regard the 1991 injury as serious. Her conclusion appears largely to have been based upon the absence of immediate symptoms of any consequence. After stating that the 1991 injury was not serious, her Honour said:
"The plaintiff did not take any time off work after the fall, nor did he seek any medical treatment for the pain in his shoulder until December 1991 when he saw his general practitioner Dr. Tadross. The complaints of pain on some of his visits to his psychiatrist Mr. Fennessy did not result in any need to refer him to other medicos. The pain did [not] become worrying until 1994 which was some months after the plaintiff had resumed full-time employment."
The medical evidence, however, clearly established that, despite the lack of immediate symptoms, the 1991 injury entailed major, long-term incapacity unless the respondent abstained from heavy labour or indeed any physical activity that required him to lift his arms to more than a minor extent.
A nerve conduction study made in 1997 revealed a chronic lesion to the respondent's right lateral thoracic nerve. The medical witnesses agreed this injury was caused when the respondent fell on to his shoulder in 1991. Dr. Le, a rheumatologist, who the appellant and respondent agreed was the witness best qualified to express an opinion, said that the function of the thoracic nerve was to control the serratus anterior, the muscle that held the shoulder-blade to the chest wall when the arm was lifted. The muscle was only required when the arm was lifted. If the nerve did not perform its proper function, the shoulder-blade was rendered unstable. The respondent would not have noticed the damage to his thoracic nerve, for "it doesn't cause pain, there's no sort of restriction at all." Nevertheless, as the respondent lifted his arm, the instability at the shoulder created stress which caused or exacerbated the arthritis that eventually incapacitated him. Dr. Le said that damage to the shoulder joint
"would have been a gradual process occurring some years after the nerve gets damaged. In other words you've got to repetitively use your shoulder, lift it up, up and down, up and down lifting stuff over years for the front part of the shoulder to wear out because you haven't got the stability of the shoulder-blade being stuck on to the chest wall."
Dr. Le compared the serratus anterior muscle to one of two hinges on a cupboard door. The acromio-clavicular joint was likened to the other hinge. The shoulder was attached at the front by means of the serratus anterior muscle and at the back by the acromio-clavicular joint. She said that once the first hinge ceased to function:
"[I]f you raise your arm up and down like you're opening a cupboard door then eventually this one hinge that he's got left is going to wear out with time because the back hinge is gone."
Dr. Le agreed that the work that the respondent performed in 1993 would have hastened or caused the onset of arthritis in the joint. She said:
"For him to be using his arm in an upward lifting motion, relying only on the front part of his shoulder to keep his shoulder together, that would have put extraordinary stress across the front that would have accelerated this arthritis process."
When she was asked what type of lifting would produce that stress, she said:
"Actually any type of movement that involved raising the arm above 10, 20 degrees off being at the side so certainly lifting heavy boxes would have been worse."
A similar description of the function of the long thoracic nerve and the consequences of damage to it was given by Mr. Gardiner, an orthopaedic surgeon, who said:
"[T]he muscle affected is the one that stabilizes the shoulder-blade and stability of his shoulder-blade is essential for elevation of the arm or work at or above shoulder level. If the shoulder blade is unstable all the work then falls upon the other two main joints or main parts, that is the acromio-clavicular joint at the top of the shoulder and the actual ball and joint socket of the shoulder and the muscle surrounding those has to do a lot more work without the assistance of a stable scapular, so that puts a lot more stress on the other structures around the shoulder."
Mr. King, another orthopaedic surgeon, said that the 1991 injury was the cause of the respondent's incapacity. He said that "If he hadn't had the injury in '91 then I don't think he would have had any trouble in '93."
It appears from the medical evidence that the first injury, by removing crucial support from the respondent's shoulder, inevitably resulted in the development of arthritis, or aggravation of existing arthritis, in the acromio-clavicular joint as a consequence of the performance of labour that required the lifting of the arm. The fact that the respondent felt only slight effects in 1991 from the injury does not prevent the conclusion that the injury was serious. The absence of immediate symptoms masked the significance of the injury. Nor is it to the point that the lesion or stretching of the thoracic nerve might be regarded as a slight injury in itself. The question is whether the injury brought about impairment or loss of body function. In Humphries v. Poljak[7] Crockett and Southwell, JJ. said:
"It was pointed out that it is not the injury itself which must be looked at in order to determine if the requirement of the definition is met. Attention must be focused upon impairment or loss of body function. If such impairment or loss is shown to exist, the question is then: is that impairment or loss both serious and long-term? If it is, then and only then, can the injury responsible for such loss or impairment possibly be regarded as a serious injury. This approach will prevent one from succumbing to the temptation to equate 'body function' to 'injury'. The impairment of a person is not the same thing as the impairment of a person's body function. An injury might properly be describable as 'serious' yet not be responsible for impairment or loss of body function - at all events serious and long-term impairment or loss."
And an injury might properly be described as slight yet be responsible for serious and long-term impairment or loss of a body function.
[7][1992] 2 V.R. 129 at 134.
The trial judge said in the passage quoted in paragraph 11, above, that the damage to the thoracic nerve was aggravated by the work performed by the respondent between 1993 and 1995. That was not strictly accurate. The evidence did not establish that the nerve was further damaged after the 1991 fall. However, there was some evidence that one of the immediate effects of the 1991 fall was the development of osteoarthritis in the acromio-clavicular joint and it was that condition which was aggravated by the work performed after November 1993. Thus Dr. Le said in a report dated 5 August 1998 that the "altered mechanics at his right shoulder" caused by the nerve damage "would probably have aggravated and accelerated the osteoarthritis process in the acromio-clavicular joint." Similarly, Dr. Tadros, in a report dated 20 November 1997 said that the 1991 fall "started some acromio-clavicular inflammation on the right that led to the development of osteoarthritic changes of the right acromio-clavicular joint." Again, Dr. King, in a report dated 23 November 1995 said:
"The direct blow to the right shoulder would appear to have resulted, on clinical grounds, in a chronic mild rotated cuff lesion of the right shoulder and there may well be an element of mild osteoarthritis in the right acromio-clavicular joint."
It may be that that evidence was accepted by the trial judge and she intended to say that it was arthritis in the acromio-clavicular joint, not the injury to the thoracic nerve, that was aggravated by the work performed by the respondent after November 1993.
It was not contended on this appeal that the aggravation caused by the work performed by the respondent between 1993 and 1995 could not be a "serious injury" because the 1991 injury brought about a serious long-term impairment or loss of a body function, and it seems to me that separate injuries can result in one "serious injury". The definition of "serious injury" in s.135A(19)(a) describes the consequences of injury rather than injury itself. On the other hand, "injury" in s.135B is simply "any physical or mental injury..."[8]. Accordingly, I am inclined to think that the injury in respect of which suit was not barred by the provisions of s.135B could be a "serious injury" because it was a cause of serious long-term impairment or loss of a body function, notwithstanding that an earlier injury was also a cause of the same impairment or loss. Just as in my opinion the 1991 injury was serious even though another injury or aggravation of an existing arthritic condition was needed to produce impairment or loss of a body function, so the later aggravation may have been serious although it would not have caused impairment or loss of a body function but for the occurrence of the 1991 injury.
[8]Section 5(1).
The appellant contended that the task required of the trial judge was to compare the condition of the respondent's shoulder before the performance of the work which led the aggravation of arthritis in the shoulder joint and its condition after the performance of that work in order to determine whether the aggravation met the statutory definition of a "serious injury". The appellant relied upon passages in the judgment of Southwell and Teague, JJ. in Petkovski v. Galletti[9]. In that case the Full Court was concerned with the question of whether an aggravation caused by a motor accident of an existing back injury was a "serious injury" within the definition contained in s.93(17) of the Transport Accident Act 1986. Southwell and Teague, JJ. with whose reasons Brooking, J. "substantially" agreed, said[10] –
[9][1994] 1 V.R. 436.
[10]At 443-4.
"One should commence with the acknowledgment that it has for long been the law that an injured person is to be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident. While the wrongdoer must take the victim as he finds him, he must compensate only for the damage he has wrought.
The Act does not affect that long established principle.
And so it is that when a person is given leave to sue, the principle applies; and the court in assessing damages, where the case is one of the aggravation of a pre-existing condition, must consider what the evidence discloses as to the prior condition of the claimant.
...
The accident did not cause the pre-existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury."
In the present case the trial judge did not undertake such an analysis. Yet had she done so, she must have concluded that the respondent suffered a "serious injury" as a result of the aggravation of arthritis in his right shoulder joint. Until the aggravation occurred, there was no impairment of a body function. The respondent on one occasion had complained to his general practitioner of pain in his shoulder, but he received no treatment. He was still capable of performing his normal work, and there was no evidence of any curtailment or interference in any other activities of the respondent. It was only after the aggravation of arthritis in his shoulder joint that the respondent was incapacitated to any extent. Similarly, in Petkovski v. Galletti the Court concluded that the applicant had sustained a "serious injury" as a consequence of the accident for "before the accident the applicant was able to work full-time and effectively, albeit interrupted on occasions by back problems."
The appellant contended that the respondent did not suffer a "serious injury" by reason of the aggravation of arthritis in the acromio-clavicular joint for that was an inevitable consequence of the 1991 injury if he performed work requiring him to lift his right arm. In my opinion the circumstance that crippling arthritis would develop if the respondent performed work that was by no means unusual for a labourer does not preclude the conclusion that the aggravation constituted a "serious injury", but rather is to be taken into account in determining the loss that was caused by the aggravation in the light of the negligence on the part of the appellant that caused the aggravation.
It is at this point that the appellant's attack upon the trial judge's assessment of damages becomes relevant. The appellant contends that the trial judge erred in failing to consider the potential of the first injury to reduce the respondent's capacity to work before the aggravation occurred. The trial judge, so it was said, should not have attributed the respondent's total loss of earning capacity to the aggravation of arthritis in the respondent's acromio-clavicular joint.
It is evident from the trial judge's reasons that in assessing the damages to be awarded to the respondent her Honour took no account of the chance of the respondent being incapacitated by the 1991 injury. She reduced the sum produced by applying an agreed multiplier to an amount for wages only to allow for the respondent obtaining work in the future and for the normal vicissitudes of life. Her Honour ignored the incapacity of the respondent for more than sedentary work after a few years of labouring work involving repeated raising of the right arm. That incapacity was the result of the 1991 injury. In my view the trial judge should have considered the part played by the 1991 injury in the aggravation of arthritis that incapacitated the respondent and should have assessed the amount of damages that was appropriate to compensate the respondent only for the loss sustained as a result of the negligence on the part of the appellant that caused the aggravation of arthritis. In that way the appellant would compensate the respondent only for the damage it had wrought. I am unable to identify from her reasons precisely the negligence found by the trial judge. If the negligence consisted in assigning to the respondent work that required him to lift his right arm, without which he would not have developed disabling arthritis, the appellant's negligence caused the incapacity of the respondent to engage in labouring work, but of course the restriction which ex hypothesi should have been imposed upon him may itself have produced loss. On the other hand, if the negligence consisted in requiring the respondent to lift heavy loads, the negligence may have done no more than accelerate by a year or two the onset of the respondent's disability.
There were grounds of appeal which complained of the failure of the trial judge in assessing damages to take into account the entitlement, or likelihood of the respondent establishing an entitlement, to weekly payments of compensation under the Act in respect of the 1991 injury. The 1991 injury was compensable separately from the later aggravation.[11] The appellant referred to claims made by the respondent for workers' compensation which the appellants said covered the 1991 injury. The claims have not been prosecuted. The submission was rejected by the trial judge, who said, "The plaintiff's entitlement or otherwise is speculative at best ...".
[11]See Sharp v. Associated Pulp and Paper Mills Ltd. [1989] V.R. 139 at 146.
Upon the hearing of the appeal I understood counsel for the appellant to concede that any award of workers' compensation would take into account the damages recovered in these proceedings. That concession appears to be correct. Section 135A(18) of the Act provides that if judgment is obtained in proceedings for damages at common law in respect of an injury, there is no liability to make payments of workers' compensation in respect of the injury. The respondent can only obtain workers' compensation payments if he can demonstrate that he has not been compensated for the injury and the disabilities resulting from the injuries by the damages recovered in these proceedings. Accordingly, there will be no over-compensation of the respondent.
For the foregoing reasons I am of the opinion that the trial judge was correct in concluding that the injury sustained by the respondent upon his return to full-time work in November 1993 was a "serious injury" within the meaning of the Act, although I have reached that conclusion by a different route. However, in my opinion her Honour erred in assessing the amount of the damages to be awarded to the respondent in ignoring altogether the potential effects of the 1991 injury upon the capacity of the respondent to work in the future and in failing to carefully limit the damages awarded to the respondent to compensation for the loss occasioned by the negligence of the appellant. I would allow the appeal and order that there be a new trial limited to the question of damages.
CHERNOV, J. A.:
I have had the benefit of reading the respective draft reasons for judgment of the President and Buchanan, J.A. I agree with their Honours that, on the evidence before the trial judge, she was entitled to find, as she did, that –
(a)the injury suffered by the respondent as a consequence of the work regime he was required to undertake after November 1993 amounted to an aggravation of a pre-existing arthritic shoulder injury which he had sustained at work in 1991;
(b)in the circumstances, the aggravation, of itself, amounted to "serious injury" for the purposes of the Accident Compensation Act 1985.
I also agree that the appellant has failed to demonstrate that her Honour made a specific error in her reasoning, or that the finding of a “serious injury” was not open on the evidence.
The respondent's case before the trial judge was that the injury in respect of which he sought damages was constituted by the “aggravation and acceleration of the osteoarthritic change in the right acromio-clavicular joint”. The aggravation, so it was claimed, resulted in the respondent suffering incapacitating arthritis in the shoulder. The negligence alleged against the appellant was its failure to provide a safe system of work, more particularly, requiring the respondent to perform work which was, in the circumstances, too heavy, rapid and repetitive. Her Honour found that the 1991 injury was not a “serious injury”, but that the aggravation of it brought about by the work routine which the plaintiff was required to perform after November 1993 amounted to a serious and long term impairment of a body function. This decision cannot be interfered with by this Court unless it is first shown that the judge made a specific error of principle or that the decision is wholly wrong.[12]
[12]Mobilio & Balliotis [1998] 3 V.R. 833 at 835 per Winneke, P.
The appellant attacked her Honour’s decision principally on the following bases:
(a) her Honour failed to make the required comparison of the respondent’s condition for the purpose of determining the extent of any additional impairment that was caused by the second injury and also failed to assess the extent of that additional impairment to see if it is serious and long term;
(b) her Honour failed to explain in her reasons how the material before her supported the view that the respondent’s post-November 1993 work regime resulted in the aggravation of the shoulder joint injury to an extent that it amounted to a serious and long term impairment of a body function;
(c) her Honour erred in not providing sufficient reasons for her decision.
In my view, there is an overlap between the first two complaints which can be considered together. In her judgment, her Honour referred to the medical evidence on the issue of aggravation and, in particular, to the opinions of Drs. Le and Jensen and Messrs. Klugg and King which were to the effect that the work performed by the plaintiff after November 1993 at his place of employment had aggravated his shoulder joint. Her Honour’s conclusion, to which she was entitled to come on the evidence, was that there was general agreement amongst the medical specialists that the respondent’s work routine after November 1993 had “aggravated and exacerbated his shoulder problem”. The trial judge came to that conclusion after she had found that the plaintiff had suffered the 1991 injury to that shoulder joint which gave rise to an arthritic shoulder injury. In her Honour’s opinion, the 1991 injury was not a “serious injury”.
In determining whether an injury which is an aggravation of a pre-existing injury is a “serious injury”, it is necessary first to make a comparison between the applicant’s condition before the incident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term.[13] In my view, her Honour made the required comparison and assessment as is evident from her reasons for judgment.
[13]Petkovski v. Galletti [1994] 1 V.R. 436 at 443-444.
It seems clear enough that her Honour recognised that it was necessary for her to make this analysis. She referred not only to Petkovski where the requirement is identified and analysed, but she also cited a passage from the judgment of Southwell and Teague, JJ. in that case where their Honours say[14] that the injured plaintiff can only recover damages for injuries that have resulted from the relevant accident. In my view, the reference by her Honour to that passage impliedly indicates an acceptance by her that in order to determine what damages are recoverable in respect of an aggravation, a relevant comparison of the plaintiff’s condition is required as well as an assessment of the extent of the additional impairment brought about by the relevant injury. It is arguable that, by itself, the judge's reference to the case does not sufficiently demonstrate that she, in fact, made the required comparison and assessment. But, in my opinion, this passage, taken together with the remainder of her Honour’s judgment, makes it tolerably plain that she had performed the required analysis.
[14]At 443.
Her Honour concluded that the 1991 injury was not a “serious injury” and, in my view, that conclusion was open to her on the evidence. It is true that the medical evidence showed that the 1991 workplace fall probably resulted in the paralysis of the thoracic nerve (which, as such, was not aggravated by the post-November 1993 work routine). It is also the case that the evidence disclosed that the fall had detrimental consequences for the respondent in terms of arthritis in his right shoulder joint which was likely to lead to incapacitation. Notwithstanding this prognosis, however, as the President has pointed out in his judgment, the evidence stopped short of making it clear when those consequences, by themselves, were likely to result in the respondent being incapacitated by the arthritic symptoms.
Her Honour then considered the impact of the 1991 injury on the respondent, including his condition, and did so having regard to the medical evidence as well as the evidence of the plaintiff and his wife. She found, as the President has pointed out, that the respondent had not been incapacitated by the 1991 injury, received virtually no medical treatment in relation to it and had been able to engage in his work and other activities without difficulty. Thus, her Honour took account of the respondent’s condition as it existed before November 1993. Her Honour further analysed the plaintiff’s condition post-November 1993. Again, she had regard to the medical evidence and that of the plaintiff and his wife. On the basis of that material, she found that the post-1993 work carried out by the respondent aggravated his earlier shoulder injury and concluded that she was satisfied that the aggravation was such that it constituted a “serious injury”.
For the reasons given by the President, the medical evidence before her Honour was such as to entitle her to form the opinion that the injury produced by the later incident so aggravated the pre-existing injury that it was appropriate to characterise it as a “serious injury”. Such a determination by her Honour involved “elements of fact, degree and value judgment” and called for an expression of opinion on the ultimate question.[15] Furthermore, her Honour's reference to Humphries v. Poljak[16], demonstrates that her Honour was aware of the principles to be applied in resolving the ultimate question and that, in the circumstances, she probably applied them to the case before her.
[15]Mobilio v. Balliotis at 836; Cropp v. Transport Accident Commission [1998] 3 V.R. 357 at 366.
[16][1992] 2 V.R. 129.
Thus, by making the analysis described, her Honour made the required comparison and the required assessment of the extent of the additional impairment for the purpose of determining whether it was serious and long term. Having concluded that the 1991 injury was not a “serious injury”, it was open to her Honour to find, without combining the two injuries, that the second injury caused an additional impairment which amounted to a “serious injury”.[17]
[17]Petkovski at 443-444.
Furthermore, in my view, her Honour set out sufficiently in her judgment, albeit very briefly, the essential elements of her reasoning which led to her ultimate decision. This enabled the parties and this Court to understand the reasoning by which her Honour reached her conclusion and to determine whether that reasoning was correct. In the circumstances, her Honour did not err in failing adequately to state her reasons for her decision.[18]
[18]Brittingham v. Williams [1932] V.L.R. 237 at 239; Sun Alliance Insurance Ltd. v. Massoud [1989] V.R. 8 at 19-20.
It follows that, in my view, the appellant has not demonstrated that her Honour made any error of principle in reaching the conclusion that the second injury was a “serious injury”. As I have already said, it was open to the trial judge to come to that conclusion on the material before her.
In the circumstances, therefore, I agree with the conclusions of the President and Buchanan, J.A. that the appellant's contention that the trial judge erred in finding that the aggravating injury was a "serious" one, should be rejected. I also agree that, for the reasons given by their Honours, the trial judge did err in assessing the compensable loss suffered by the respondent as a result of the "serious injury". Consequently, the appeal should be allowed and the matter should be remitted to the County Court for a new trial limited to the issue of damages.
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