TTB SMS Pty Ltd v Reading

[2020] VSCA 203

SUPREME COURT OF VICTORIA  

COURT OF APPEAL

S EAPCI 2020 0001

TTB SMS Pty Ltd (ACN 106 192 670)	Applicant
v
SCOTT LAWRENCE READING	Respondent

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JUDGES:	TATE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 July 2020
DATE OF JUDGMENT:	12 August 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 203
JUDGMENT APPEALED FROM:	[2019] VCC 1863 (Judge KL Bourke)

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CIVIL LAW – Application for leave to appeal – Pain and suffering damages – Meaning of serious injury – ‘At least very considerable’ test – Primary judge’s conclusion plainly wrong or wholly erroneous – Impairment consequences of permanent injury – Accident Compensation Act 1985 s 134AB, County Court Act 1958 s 74 – Mobilio v Balliotis (1998) 3 VR 833, Humphries v Poljak (1992) 2 VR 129, Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, Haden Engineering Pty Ltd v McKinnon (2010) 3 VR 1, considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr JP Gorton QC with Mr SE Gladman	Wisewould Mahoney
For the Respondent	Mr A Ingram QC with Mr MJ Garnham	Slater & Gordon Pty Ltd

TATE JA

T FORREST JA:

Introduction

1. The respondent to this application for leave to appeal applied to the County Court for leave under s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’) to bring a proceeding for pain and suffering damages in respect of an injury to the middle and little fingers of his right hand.  He was granted leave by a judge on 18 November 2019.[1]  The respondent is right hand-dominant and he sustained the injury in the course of his employment on 4 September 2007.  This is close to 13 years ago.

   [1]Scott Lawrence Reading v TTB SMS Pty Ltd [2019] VCC 1863, [168] (Judge KL Bourke) (‘Reasons’).

1. To avoid confusion, we shall refer to Mr Reading, who was the applicant to the original application, but is the respondent to this application for leave to appeal, as the ‘worker’.  For the same reason, we shall refer to TTB SMS Pty Ltd as the ‘employer’.

1. The employer’s single ground of appeal is as follows:

Ground 1

On a proper evaluation of the impairment consequences found by the primary judge, the [worker’s] hand injury did not meet the statutory test contained in s 134AB(38) of the Act for it to qualify as a ‘serious injury’, and the primary judge’s conclusion was plainly wrong.

1. It will be immediately apparent that no issue is taken with the ‘impairment consequences’ found by the primary judge, but rather with the ultimate conclusion that those consequences met the s 134AB(38) test for ‘serious injury’. Thus, the issue to be canvassed in this ground is quite narrow and it will be unnecessary to go beyond her Honour’s reasons for judgment in evaluating the impairment consequences.

The judge’s reasons

1. No issue is taken with the judge’s exposition of the relevant principles. As we have said, the employer’s argument is simply that, if these principles were applied correctly, the original application was condemned to failure. The judge identified the body function as ‘the right hand involving mainly the right little finger’. Her Honour noted that this application was brought pursuant to sub-s (a) of the definition of ‘serious injury’ in s 134AB(37) of the Act, where ‘serious injury’ is defined as meaning ‘permanent serious impairment or loss of body function’. The reasons then set out that the injury must have occurred after 20 October 1999, and that the plaintiff bore an onus of demonstrating that the impairment of the body function is permanent.

1. Her Honour noted that, by s 134AB(38)(c) of the Act, the impairment must have pain and suffering consequences which ‘when judged by comparison with other cases in the range of possible impairments’ may be fairly described, at the date of the hearing, as being ‘at least very considerable’ and ‘more than significant or marked’. The judge correctly observed that all psychological consequences were to be ignored in determining the physical impairment.

1. Further, the judge observed that she was required to consider the consequences to this particular plaintiff/applicant, viewed objectively, arising from the injury, and that she was obliged to make comparison of the impairment arising from the relevant injury against other cases in the range of possible impairments or losses of body function, or mental or behavioural disturbances or disorders. 

1. Finally, her Honour stated that she had applied the principles identified by this Court in Barwon Spinners Pty Ltd v Podolak[2] and Grech v Orica Australia.[3]

   [2](2005) 14 VR 622 (Ormiston, Chernov and Phillips JJA).

   [3](2006) 14 VR 602 (Buchanan, Chernov and Ashley JJA).

1. Her Honour then identified the following impairment consequences.  Again, no issue is taken with these findings.

·The worker was 38 years old when he suffered the claimed injury.  He was 50 years old at the time of the hearing of the application.

·On 5 September 2007, while working as a spray painter, a metal plate struck the worker’s right hand, fracturing the distal phalanx[4] of his little finger and dislocating his middle finger.

·The dislocated middle finger was reduced that day at Dandenong Hospital.  On 8 September 2007, at Waverley Private Hospital, the worker’s right little finger was surgically repaired.  An open reduction was performed with an internal fixation by plate and screws into the proximal phalanx.[5]  This internal fixation remains in place.

·The worker was absent from work for four days.  He then continued working for the employer for six months.  He had difficulties with manual work because of his injury.  He ceased this employment because of a ‘restructure’ of the company.  After a break, in 2009 he obtained work at the Dandenong Bowling Centre, initially part-time.  This developed into full-time work and he became a full-time facilities manager.  He continued employment in this capacity until 2015 or 2016, when the business closed.  He then returned to spray painting.  He found that he could paint for relatively short periods with his right hand but developed expertise using his left hand, so that he varied hands while working.  In about 2018, the worker commenced employment at Austruck Bodies as a leading hand, performing supervisory work, but also some manual work.  His gross income for 2018 was $73,283;  for 2019 it was $69,126.

·The worker underwent hand therapy for some months after his surgery.  He has not sought medical treatment since.  He has not used prescription pain medication and takes over-the-counter pain medication once or twice weekly.

·The worker no longer has problems with his middle finger and agreed that his problems were restricted to his right hand little and ring fingers.  Both hands were calloused from manual labour.  This was visible in photographs tendered on the application.  He claimed no loss of enjoyment of life consequence arising from being denied the opportunity to pursue his vocation, or from a restriction of social interaction in the workplace.

·The worker experienced pains in his right hand ‘every now and then’;  his hand would get sore and ache on these occasions, but he did not experience constant pain.  He complained of ‘pins and needles’, and her Honour found that these pains could not be explained on an organic basis.

·The worker’s ability to care for himself in daily living was unaffected, and his mood was unaffected.  He continued with fishing, which was his main hobby, although less frequently than before the accident.  He had some difficulty tying a fishing line.  He was unable to play golf or water-ski because of the injury to his hand.  He was very much a ‘social’ golfer — he was not a member of a golf club and he did not have a handicap.  His fingers sometimes caught when he was putting things in a pocket or a drawer, and he had some difficulties with writing, tying shoelaces and holding cutlery properly.  He was affected by his injury throughout the day.

·The worker’s condition was permanent.  There was no evidence suggestive of improvement or deterioration.

[4]The tip.

[5]The bone immediately adjacent to the tip.

1. The judge reviewed the parties’ submissions.  Her Honour referred to Haden Engineering Pty Ltd v McKinnon,[6] in which Maxwell P said:  ‘[T]he weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility’.[7]  Her Honour rejected the employer’s assertion that the worker was exaggerating his symptoms.  She accepted the worker’s evidence that he was annoyed by the allegation of exaggeration, and that ‘he has always tried to get on with things’.  Her Honour said:

I accept the submission by plaintiff’s counsel that this is the case.  The plaintiff was quick to return to work after the initial injury.  He tried but could not continue.  He stuck it out in his trade for years until he could cope no longer.  He then ‘regrouped’ in the bowling managerial role and is now back to a largely supervisory role.

[6](2010) 31 VR 1 (Maxwell P, Buchanan and Nettle JJA) (‘Haden Engineering’).

[7]Ibid 5 [12].

1. Her Honour said she accepted that the worker was ‘somewhat of a stoic, … continuing to work with a significant disability in his right hand’.  Her Honour adopted Nettle JA’s remarks in Dwyer v Calco Timbers Pty Ltd (No 2)[8] to the effect that it would be ‘wrongheaded’ if a strong, stoical plaintiff were treated less favourably than a plaintiff of a lesser character who had simply become resigned to his or her injury.[9]  Her Honour found the worker to be a very credible witness and she accepted in its entirety his evidence of the level of pain and restriction.

   [8][2008] VSCA 260 (Nettle, Ashley and Dodds-Streeton JJA) (‘Dwyer’).

   [9]Ibid [3].

1. Her Honour was of the view that, whilst the worker had not had medical treatment for many years, he could not be criticised for this because none had been suggested.

1. Her Honour found that the worker continues to experience:

·           intermittent pain and cramping in his right hand, mainly in the ring and little fingers;

·           numbness, sometimes, on the back of his right hand, including spasms and ‘pins and needles’ sensations in the ring and little fingers, and on the little finger side of the right hand, becoming worse in cooler weather;   and

·           general aching if he uses his right hand too much.

1. Her Honour accepted that, while this pain is not constant or excruciating, it continues to cause problems for the worker which are ‘unlikely to improve and are permanent’.[10] 

   [10]Reasons [168].

1. The judge further found that the worker continues to experience the following restrictions:

·           permanent curling of the ring and little fingers of the right hand, with the little finger far more affected;

·           inability to move the right ring finger properly, notwithstanding a little movement in the first and second joints;

·           no movement in the right little finger beyond some movement in the first joint (observed by all medical examiners);

·           significant clawing and constrictive shortening (observed by two medical examiners, but not by a third);

·           joint adhesions (observed by two medical examiners);  and

·           reduced fine movement and strength in the right hand.

1. Taking the evidence summarised above into account, her Honour was satisfied that the consequences of the impairment of the worker’s right hand were both permanent and more than significant or marked, and thus ‘satisfy the statutory test of “serious”’.[11]

The application for leave to appeal

[11]Ibid [178].

The employer’s submissions

1. Mr Gorton QC, who appeared with Mr Gladman for the employer, contended that the worker’s injuries fell into a category of injuries that are not trivial, but are also not ‘serious’ as that term has come to be understood in this type of litigation.  He directed the Court to the seminal case of Humphries v Poljak,[12] in which this Court set out the ‘at least very considerable’ test.[13]

   [12](1992) 2 VR 129 (‘Humphries’).

   [13]Ibid 140 (Crockett and Southwell JJ).

1. In response to a question from the Bench, Mr Gorton agreed that the employer’s complaint did not concern any of her Honour’s factual findings, but her eventual conclusion that the worker’s injury was serious for the purposes of the Act.

1. Mr Gorton reviewed the judge’s findings — it is unnecessary to repeat that review. He correctly accepted that on this application for leave to appeal the employer bore the onus of demonstrating that, in the absence of specific error, the judge’s ultimate conclusion that the worker had sustained serious injury within the meaning of s 134AB was plainly wrong or wholly erroneous.[14]

   [14]Mobilio v Balliotis (1998) 3 VR 833, 835 (Winneke P), 836 (Brooking JA), 853–4 (Ormiston JA), 858 (Phillips JA), 860 (Charles JA) (‘Mobilio’).

1. Mr Gorton reminded us that, in performing the evaluative task, her Honour was required to examine not just what the worker had lost by way of impairment, but also what he had retained.[15]  He accepted that the evaluation of the worker’s impairment was a question of fact and degree.  He submitted that the worker’s right hand remained useful;  that, by the worker’s admission, the only residual damage was to the ring and little fingers and that, whilst the worker’s use of his right hand in the workplace had been somewhat limited, the photographs of his calloused hands spoke eloquently of its continued use.  The worker ran the paint shop at his place of work;  he was in charge of 40 other workers and averaged five to 10 hours’ overtime per week.  He spent a couple of hours each day using a spray gun and alternated between his right and left hands.  He did not have constant pain — in fact, again by his admission, most of the time he was pain-free.  Only overuse would result in some aching and cramping.

   [15]Dwyer [2008] VSCA 260, [27] (Ashley JA).

1. Mr Gorton contended that outside the workplace the worker’s life was unaffected to any real degree.  As mentioned, he still fished and still enjoyed it.  He no longer water-skied or played golf, but these were not major pre-accident interests.  He took no prescription medication and the occasional (over-the-counter) painkiller or anti-inflammatory.  His self-care was virtually unaffected.

1. Mr Gorton relied upon Haden Engineering, in which Maxwell P set out a useful list of ordinary activities which may be affected by a ‘very considerable’ injury:

·sleep;

·mobility;

·cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);

·capacity for self-care and self-management (concerning which the definition of ‘disability’ in the Disability Act 2006 could be applied, as an impairment which reduced a person’s capacity for self-care, self-management, mobility or communication);

·performance of household and family duties;

·recreational activities;

·social activities;

·sexual life;  and

·enjoyment of life.[16]

[16]Haden Engineering (2010) 31 VR 1, 5–6 [16].

1. Mr Gorton submitted that hardly any of these activities were impacted by the impairment.  He concluded where he had commenced:  the worker’s injuries were permanent;  they were not trivial;  but it was wholly erroneous to characterise them as very considerable and more than merely significant or marked.

The worker’s submissions

1. Mr Ingram QC, appearing with Mr Garnham for the worker, reminded the Court that the employer took no issue with the judge’s factual findings, nor her statements of legal principle.  In the absence of specific error on her Honour’s part, then, the employer confronted a daunting hurdle.  He submitted that the employer had failed to demonstrate that her Honour was ‘clearly wrong’ or ‘wholly in error’ when she concluded that the worker has sustained a serious injury.

1. Mr Ingram submitted that the worker’s credit was not in issue in this application for leave to appeal and that the trial judge had two distinct advantages over this Court in any evaluative process.  First, she saw and heard the worker and was obviously impressed by him.  Secondly, she physically examined the impaired function of the worker’s right hand.  Mr Ingram took the Court through the judge’s reasons,[17] where her Honour set out her findings as to the worker’s experiences of pain, the curling of the affected fingers, the loss of dexterity, and the modification of daily activities.[18]

   [17]Specifically, [53]–[65].

   [18]Summarised at [13]–[15] of these reasons.

1. Mr Ingram then reviewed the factual findings as they concerned the worker’s recreational activities — particularly fishing, water-skiing and golf.[19]  He reminded the Court of various passages from the worker’s cross-examination in the Court below, particularly those to do with his work and the techniques he had developed to deal with his undoubted right hand impairment.  He directed us to the passage cited by her Honour[20] relying upon Nettle JA’s oft-cited obiter dicta that it would be ‘wrong-headed’ to penalise the stoic worker who, through strength of character, pushed on with life where others, of less fortitude, may not.[21]  In response to the employer’s submission that the impairment was mitigated by his developing spray painting skills with his left hand, Mr Ingram contended that the fact that the worker had to develop these skills provided a measure by which the impairment of his right hand could be evaluated.

   [19]See Reasons [73]–[80].

   [20]See above [11].

   [21]Dwyer [2008] VSCA 260, [3].

1. We were reminded of her Honour’s conclusions — that the worker continues to suffer some pain and cramping in the right hand, has some numbness in the back of this hand, that there is curling of the fingers, that some tasks are affected, and that in various ways his finger injuries affect the worker throughout the day.

Consideration

1. The relevant legal principles are undisputed.  We shall set them out in short form.

This application

1. The Court’s jurisdiction is invoked under s 74 of the County Court Act 1958.

1. A determination of serious injury will only be set aside on appeal if there is a specific error or if the decision is plainly wrong or wholly erroneous.[22]

   [22]Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26, [4] (Tate JA, Redlich JA agreeing at [89]), applying Mobilio (1998) 3 VR 833, 858 (Phillips JA), and also referring to 835 (Winneke P), 836–7, 841–3 (Brooking JA), 853–4 (Ormiston JA), 860 (Charles JA). See also Housden v Boral Australian Gypsum Ltd [2015] VSCA 162, [90]–[92] (Santamaria JA, Tate JA agreeing at [1], McLeish JA agreeing at [153]); Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139, [49] (Kaye, McLeish and Niall JJA).

Serious injury in a pain and suffering case

(a)        Serious injury means permanent serious impairment or loss of a body function.[23]

(b)       An impairment shall not be held to be serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable.[24] 

(c)        In assessing the seriousness of the claimed impairment consequences, a Court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[25]

[23]Accident Compensation Act s 134AB(37)(a).

[24]Ibid s 134AB(38)(c). This formulation picked up the language in Humphries, which concerned similar provisions in the Transport Accident Act 1986.

[25]Dwyer [2008] VSCA 260, [27] (Ashley JA); Stjepic v One Force Group Australia Pty Ltd [2009] VSCA 181, [44] (Ashley JA and Beach AJA); Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12, [77] (Ross AJA), quoting Dwyer [2008] VSCA 260, [27]).

1. We are of the view that the employer must succeed in this application.  Put another way, we consider that the judge was plainly wrong to conclude that the worker had satisfied the statutory test.  The worker’s injuries are, in our view, not serious in the sense that the statute requires.  We have reached this conclusion for the following reasons.

·        The worker sustained an injury of some consequence on 5 September 2007.  His middle finger was probably dislocated, and his right little finger was fractured and required open reduction surgery with internal fixation by plate and screws.  His right ring finger suffered soft tissue damage and may have been dislocated.

·        The worker returned to work after four days.

·        He had not missed work as a consequence of his hand injury since this time (2007), although he has devised techniques to work around his residual impairment.

·        His injuries have stabilised.  He has no residual symptoms in his middle finger.  He has mild curling of his ring finger and more to his little finger.  At rest, they are not painful, but ache and cramp if used too much.  They make his dominant right hand slightly clumsy.

·        He has not sought medical treatment for his hand since 2007.  He may take over-the-counter medication when required.

·        There has been a mild impact on his recreational activities;  specifically, having once been an occasional golfer, he no longer plays it.  He no longer water-skis, although he had moderated his activities in this regard before the accident.  He continues to enjoy fishing, although he has some difficulty with tasks requiring some dexterity.  He did not identify any other impact on recreational activities.

·        The worker retains a full capacity to care for himself and live independently.

·        His mood and ability to sleep are unaffected.

·        He suffers from no cognitive deficit.

·        In photographs tendered to the Court below, both the respondent’s hands exhibit the callousing and colouration of manual labour.

·        Whilst these impairments are certainly not trivial, in our view, they cannot be fairly described as ‘at least very considerable’.  The evaluation required of the trial judge, and this Court, involves a comparison of the worker’s impairment not just with other impairments of the hand, but also with other types of physical impairment that may be suffered, including impairment of the brain, the spine and large joints such as the knee and shoulder.  Those other physical impairments may involve constant pain, significant medical treatment and medication.  They may involve sleep deprivation, or an inability or reduced ability to socialise or work.

1. Mr Ingram contended that the primary judge was in a better position to make factual findings than this Court.  This is undoubtedly correct, but is not in dispute in this hearing.  First, as submitted by Mr Ingram himself, the worker’s credit is not in issue in this application for leave to appeal.   Second, the judge’s factual findings are not in issue either — they are accepted by all parties.  The only area of contention is her Honour’s application of the undisputed principles of law to those findings.  Her Honour had no advantage over this Court in performing this task.

Conclusion

1. We have observed that in an appeal of this nature the applicant confronts a difficult task. It is insufficient for an appellate court to conclude that it would have determined the original application differently; an applicant must demonstrate much more than that. There will be many cases where reasonable minds will differ as to whether the statutory test in s 134AB(38) has been met. In the absence of specific error, applications for leave to appeal will usually be unsuccessful in this circumstance — an applicant must demonstrate that the decision is ‘plainly wrong’ or ‘wholly erroneous’. These are strong words, and their import is unmistakeable. A determination of serious injury, in the absence of specific error, will only be set aside if the decision is palpably and manifestly wrong.

1. After anxious consideration we have concluded, largely for the reasons set out at paragraph [31] of these reasons, that the employer has satisfied this difficult test.  We are positively satisfied that the judge’s determination was plainly incorrect.  We grant leave to appeal and allow the appeal.

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