Veljanovska v Verduci

[2014] VSCA 15

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0034

VESNA VELJANOVSKA

v

VINCENT ANTHONY VERDUCI

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JUDGES	OSBORN and BEACH JJA and SIFRIS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 February 2014
DATE OF JUDGMENT	19 February 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 15

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ACCIDENT COMPENSATION – Appeal – Jury trial – Negligence – Breach of statutory duty – Whether jury’s finding of breach of statutory duty mandated a finding of negligence – Contributory negligence – Jury’s assessment of contributory negligence – Damages – Pecuniary loss damages – Jury’s assessment of pecuniary loss damages – Occupational Health & Safety (Manual Handling) Regulations 1999, Regulations 14, 15 and 16 – Occupational Health & Safety Regulations 2007, Regulations 3.1.1 and 3.1.2.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr R P Gorton QC with Mr C E Hangay	John Dellios & Associates
For the Respondent	Mr J Ruskin QC with Mr R Kumar	Thomsons Lawyers

OSBORN JA
BEACH JA
SIFRIS AJA:

Introduction

1. Vesna Veljanovska, the appellant, was employed by Vincent Anthony Verduci, the respondent, between 1984 and 2009.  The respondent is a solicitor, who at all relevant times traded as Vincent Verduci & Associates.  In the first 12 years of her employment, the appellant was employed in the respondent’s firm as a secretary.  However, in 1996, the appellant became a conveyancer.  Her work duties increased, and included attending settlements and delivering documentation such as court books and folders of material.  The appellant ceased work with the respondent in October 2008 and, save for a short attempt to return to work in January 2009, has not worked since.

1. Following her employment with the respondent, the appellant issued a proceeding against the respondent in which she claimed that she sustained injury in the course of her employment with the respondent.  Specifically, the appellant claimed that she suffered injury in March 2007 when a chair on which she attempted to sit moved and caused her to fall.  Additionally, the appellant claimed she suffered injury in the course of her employment between early 2006 and October 2008 as a result of manoeuvring and carrying heavy files, documents, briefs and suitcases.  In the proceeding below, the appellant claimed damages from the respondent, alleging that her injuries were caused by the negligence of the respondent and/or by breaches by the respondent of the Occupational Health & Safety (Manual Handling) Regulations 1999[1] (‘the 1999 Regulations’) and/or the Occupational Health & Safety Regulations 2007[2] (‘the 2007 Regulations’).

   [1]In force up to and including 30 June 2007.

   [2]In force on and from 1 July 2007.

1. The appellant’s proceeding was heard before Macaulay J and a jury in February and March 2013.  After an 11 day trial, the jury returned its verdict by giving the following answers to the following questions:

1.Was there negligence on the part of the defendant which was a cause of the plaintiff’s injury, loss and damage? - - - No.

2.Was there a breach of statutory duty on the part of the defendant which was a cause of injury, loss and damage to the plaintiff? - - - Yes.

3.(a)       In what sum do you assess the plaintiff’s damages for pain and suffering? - - - $75,000.

(b)In what sum do you assess the plaintiff’s total damages for her loss of earning capacity? - - - $160,000.

4.Was there contributory negligence on the part of the plaintiff which was a cause of her injury, loss and damage? - - - Yes.

5.By what percentage is it just and equitable that the damages recoverable by the plaintiff should be reduced having regard to her own share of the responsibility for her injury, loss and damage? - - - 50 per cent.

1. On 5 March 2013, Macaulay J entered judgment for the appellant in the sum of $64,863 in accordance with the verdict of the jury.  This amount was calculated by adding to the amounts assessed by the jury interest and damages in accordance with the principles laid down in Fox v Wood,[3] deducting a sum required to be deducted pursuant to s 134AB(25) of the Accident Compensation Act 1985 and then reducing the total arrived at by the amount of contributory negligence assessed by the jury.

   [3](1981) 148 CLR 438.

1. In this appeal, the appellant challenges the jury’s finding that there was no negligence, the jury’s assessment of contributory negligence at 50% and the jury’s assessment of the appellant’s damages.  As formulated in the appellant’s notice of appeal, the grounds of appeal are as follows:

(a)No reasonable jury on the facts and evidence of this case could have found that the respondent was in breach of statutory duty so as to be a cause of the appellant’s injuries but was not negligent so as to be a cause of the appellant’s injuries.

(b)No reasonable jury on the facts and evidence of this case could have assessed the appellant’s responsibility for contributory negligence at 50%.

(c)The assessment of damages by the jury was so low that it could not have been made by a reasonable jury properly instructed and applying the law.

1. Shortly prior to the commencement of the hearing of the appeal, the appellant gave notice of an intention to seek leave to amend her notice of appeal to add a fourth ground as follows:

(d)In directing the jury that the findings of breach of statutory duty and negligence are not mutually exclusive, the trial judge failed to properly direct the jury and ought to have directed the jury that there were facts alleged which if established and which would lead to a finding of breach of statutory duty which was a cause of the injury, would lead to the conclusion that there had also been negligence on the part of the respondent which was a cause of the appellant’s injuries.

1. At the hearing of the appeal, the Court reserved its decision on the appellant’s application for leave to add ground (d).  The appellant contended that ground (d) was necessary because it was ‘inextricably linked’ to ground (a).  The respondent opposed the appellant’s application for leave, contending, amongst other things, that the proposed new ground constituted a departure from the way in which the case had been conducted below and that the ground was, in any event, hopeless.

1. There is some force in the appellant’s submission that the proposed new ground is sufficiently linked to ground (a) so as to justify permitting the appellant to argue the matters raised by it in this appeal.  In the circumstances of this case, there being no prejudice to the respondent, we will grant the appellant’s application to add the proposed new ground of appeal.

The trial

1. There were 19 witnesses called at the trial, including the appellant and the respondent.  The witnesses included the appellant’s daughters, the appellant’s husband, co-workers of the appellant and medical practitioners who had treated the appellant and/or examined the appellant for the purposes of providing an opinion about the appellant’s claims or advice as to her treatment or condition.  The medical specialists included orthopaedic surgeons (Mr Michael Dooley and Mr Michael Brighton-Knight), a rehabilitation and pain medicine specialist (Dr Clayton Thomas) and psychiatrists (Professor Nicolino Paoletti, Dr John Gill, Dr Terry Chong, Dr Diane Neill, Professor George Mendelson and Dr Stella Kwong).  The appellant’s treating general practitioner (Dr El-Khoury) also gave evidence.

1. In addition to the evidence given by the appellant and the respondent, employees of the respondent were called to give evidence about their observations of the appellant in the work place, the appellant’s work, observations that might have been made of the appellant’s difficulty performing work and/or complaints of pain.  The evidence of the appellant’s co-workers also dealt with a critical issue at trial being the presence or absence of a piece of carpet under the chair from which the appellant claimed she fell in March 2007. 

1. In addition to the viva voce evidence, a significant body of documentary evidence was tendered at trial.  While the bulk of the documentary evidence consisted of medical reports, regulations, memos, a claim form, the appellant’s work diary for 2007, cost sheets and photographs were also tendered.  In addition to these documents, the respondent tendered an affidavit sworn by the appellant on 23 December 2010 (‘the appellant’s affidavit’).

The appellant’s case at trial

1. The appellant’s case at trial was that for many years she had been required to lift, carry and deliver files, folders, briefs and cases of documents from the respondent’s office to barristers’ chambers and other places in the city.  Some of these files, folders and briefs were very heavy.  The appellant managed to perform this work without any great problem for a number of years.  However, in 2006, the appellant began to notice that after a day’s work she was sore in the shoulders and sore in the upper back.  Over time, these symptoms progressed.  The appellant claimed that she told the respondent of the difficulties she was having with the work, and of the development of her symptoms.  Further, she said that while the respondent assisted her from time to time in the taking of heavy cases from the first floor to the ground floor of the respondent’s office, the respondent did nothing else to alleviate the problems she was experiencing. 

1. Additionally, the appellant claimed that on a date in March 2007, she went to sit on a chair at the reception desk of the respondent’s office.  The chair had casters and was sitting on a tiled surface.  As the appellant went to sit, the chair moved and the appellant fell.  The appellant contended that the respondent was negligent in not having a carpet or mat under the chair.  The appellant gave evidence that shortly after she fell, a mat or carpet was placed under the chair.  This was heavily contested by the respondent, who gave evidence (along with other witnesses) to the effect that there was at all relevant times a piece of carpet under the chair at the reception desk.

1. The appellant said that, notwithstanding her symptoms of pain, she continued to work and continued to make complaints from time to time to the respondent about the heaviness of her work.  However, the appellant gave evidence that in October 2008, she was in a very bad state.  She was experiencing excruciating pain in her shoulder blades, her hands and her neck.  Her concentration was affected by her injuries and she ceased work.  Save for a short attempt to return to work in January 2009, the appellant has not worked since October 2008.  At trial, she claimed to be totally and permanently incapacitated as a result of physical injuries affecting her neck, upper back, shoulders and hands.  As part of the medical evidence called at trial, evidence was also called on behalf of the appellant as to a psychiatric and/or psychological condition which was said to have been suffered as a  consequence of the appellant’s physical injuries. 

1. In his final address to the jury, senior counsel for the appellant[4] submitted that the appellant’s damages for pain and suffering and loss of enjoyment of life assessed in the range $150,000 to $250,000.  Past loss of earnings and past superannuation were claimed in a total sum of $156,214,[5]  and a claim for loss of earning capacity into the future was said to assess at $570,402.[6]

   [4]Not counsel who appeared for the appellant on this appeal.

   [5]At trial, the respondent agreed that had the appellant worked full time from October 2008 to the date of trial, the amount of her earnings and superannuation benefits received for this work would total $156,214.

   [6]Being an amount of $671,061.23 calculated until the appellant reached the age of 65, less a 15% discount for vicissitudes. 

The respondent’s case at trial

1. The issue of duty of care was not contested at trial.  However, almost all other issues were contested by the respondent.  The respondent did not admit the occurrence of the March 2007 accident.  Further, he put in issue the question of whether any of the appellant’s work was excessively heavy, and the extent to which (and the frequency with which) the appellant was required to lift, carry or move the various items in respect of which the appellant made complaint.  Negligence, breach of statutory duty, the question of whether the appellant suffered injury and the extent of any injury were all put in dispute by the respondent.  The appellant’s credit was put heavily in issue.  The respondent’s position at trial was summarised in his counsel’s final address to the jury as follows:

We say, members of the jury, that you might think the plaintiff’s version of events here is inherently unreliable and indeed untruthful.  Those issues are critical.  Both of those issues, the injury and the negligence on both of them, we submit the evidence is unequivocally lacking in any form of credibility.  So we say at the outset that the plaintiff fails on the fundamentals and should not succeed in this litigation.

1. In addition to denying negligence and breach of duty, the respondent contended at trial that the appellant was, in any event, guilty of contributory negligence.  In respect of the March 2007 accident, it was said that the appellant was guilty of contributory negligence for ‘not paying more attention when sitting down on the receptionist chair’.  With respect to the heavy lifting claim, the respondent contended that the appellant was guilty of contributory negligence in failing to tell the respondent that ‘carrying files was causing her some harm’.

The jury’s verdict

1. This was a hard fought trial.  The credibility of the appellant was put heavily in issue by the respondent.  All of the facts essential to the successful establishment of the appellant’s claim were contested.  The appellant’s evidence, and her credibility, were central to the resolution of the proceeding.  In final address, the respondent invited the jury to disbelieve the appellant on almost all critical matters concerning both liability and quantum.  No complaint was made at trial or before us that the evidence, or the way in which the trial was conducted, disentitled the respondent’s counsel at trial from addressing as he did.

1. From the jury’s verdict, it is plain that the jury did not accept significant portions of what the appellant said in evidence.  Specifically, from the jury’s negative answer to question 1 (no negligence) the jury must have rejected the appellant’s evidence that there was no carpet or mat under the chair from which she alleged she fell in March 2007.  Further, the jury must have rejected the appellant’s evidence concerning a conversation she alleged she had with the respondent after she fell, in which she suggested putting a mat under the chair at the reception desk.   Additionally, the jury must have rejected the appellant’s evidence concerning complaints she alleged she made to the respondent about the difficulty she had in lifting and carrying heavy folders, files and cases.  Having regard to the considerable body of evidence called at trial that contradicted the appellant’s evidence in respect of these matters, we see no error in the jury failing to accept the appellant on these issues.

1. From the jury’s answer to question 2, it is not possible to know which of the tendered regulations the jury concluded were breached by the respondent.  The possibilities include the respondent:

(a)       failing to identify a task involving hazardous manual handling;[7]

[7]See Regulation 13 of the 1999 Regulations and Regulation 3.1.1 of the 2007 Regulations.

(b)      failing to undertake a risk assessment;[8] 

[8]See Regulation 14 of the 1999 Regulations.

(c)       failing to ensure that any risk of musculoskeletal disorder affecting an employee is eliminated;[9]

[9]See Regulation 15 of the 1999 Regulations.  But cf Regulation 3.1.2 of the 2007 Regulations requiring an employer to ensure that the risk of a musculoskeletal disorder associated with a hazardous manual handling task affecting an employee is eliminated so far as is reasonably practicable.

(d)      failing to ensure that any risk of musculoskeletal disorder affecting an employee is reduced so far as is practicable;[10]  and

(e)       failing to ensure that the risk of a musculoskeletal disorder associated with a hazardous manual handling task affecting an employee is eliminated so far as is reasonably practicable.[11]

[10]See Regulation 15 of the 1999 Regulations.

[11]See Regulation 3.1.2(1) of the 2007 Regulations.

1. Having regard to the competing descriptions of the heaviness and extent of the appellant’s work delivering folders, court books and other documents, it is also not possible to know whether the jury’s affirmative finding of breach of statutory duty being causative of injury was related to any and what particular part (or the whole) of the appellant’s lifting, carrying and delivery work.

Finding breach of statutory duty, but not negligence:  grounds (a) and (d)

1. In substance, the appellant submitted on this appeal that the jury, having found a breach of statutory duty causing injury to the appellant, was logically compelled to find that there was negligence on the part of the respondent which was a cause of that same injury.  The appellant contended that, in upholding the appellant’s breach of statutory duty case, but dismissing the appellant’s negligence case, the jury acted irrationally (ground (a)).  It was then submitted that the failure by the trial judge to give the direction referred to in ground (d) led the jury into the error in respect of which the appellant now complains.

1. Ground (d) appears to suggest that the judge should have done no more than direct the jury that there were facts alleged, that if established and which would lead to a finding of breach of statutory duty which was a cause of injury, those facts would also lead to the conclusion that there had been negligence on the part of the respondent which was a cause of that same injury.  As formulated, ground (d) appears to accept that there may have been other facts capable of being accepted which would found a claim for breach of statutory duty but not a claim in negligence.  However, in argument before this Court, senior counsel for the appellant appeared to be suggesting that whatever facts the jury accepted (or was capable of accepting) which led to the conclusion that the breach of statutory duty claim was made out must also have, as a matter of logic and necessity, compelled the jury to uphold the appellant’s claim in negligence.  Indeed, it appeared to be suggested at one stage in argument that this was a proposition of universal application in manual handling cases.  If this is so, one might immediately ask how a plaintiff (or those acting for a plaintiff) might justify the added time and expense of pursuing a claim for breach of statutory duty if that claim cannot be determined differently, or yield a different result, from the associated claim in negligence.[12]

   [12]Cf s 23(b) of the Civil Procedure Act 2010.

1. The appellant’s complaints in grounds (a) and (d) must be rejected.  While it is true that the judge did not give the direction sought in ground (d), it must be noted that no request was made of his Honour to give any such direction.  The trial judge gave standard and appropriate directions that dealt fully with the issues of negligence, breach of statutory duty and causation as it applied to both of those causes of action.  No exception was taken by the appellant’s counsel at trial to his Honour’s charge.[13]

   [13]Senior counsel who appeared for the appellant on appeal was not senior counsel for the appellant below.

1. In the course of the charge, the trial judge said:

Unlike negligence, a claim for breach of statutory duty does not require you to determine whether an employer such as Mr Verduci has acted reasonably.[14]  Rather, it requires you to determine whether, (a) there has been a breach of the particular regulation, and (b), if yes, whether that breach was a cause of the injuries sustained by Mrs Veljanovska. 

[14]We interpolate here, subject to any requirement for reasonableness contained in the relevant regulation and set out as an element of the relevant statutory duty. 

1. His Honour then explained the relevant parts of the 1999 Regulations and the 2007 Regulations in some detail.  At the conclusion of his Honour’s charge on this topic, his Honour said:

One final word on breach of statutory duty, it is not a question of either negligence or breach of statutory duty.  You may find neither negligence nor breach of statutory duty, or you may find one or the other, or you might find both.  They’re not mutually exclusive.

1. As we have said above, no exception was taken to any of this.  Indeed, having regard to the way senior counsel for the appellant below addressed the jury in his final submissions, one imagines that had the trial judge given the direction now sought by the appellant, complaint would have been made by the appellant’s trial counsel that the judge was depriving the appellant of a ‘second way home’ against the respondent.  Specifically, in his final address to the jury, senior counsel for the appellant below submitted that the ‘primary basis’ on which the case was put was negligence, but as an alternative, the appellant claimed to be entitled to damages for injuries caused by breaches of statutory duty.[15]

   [15]Indeed, this is also the way the case was opened to the jury by senior counsel for the appellant at the commencement of the trial.

1. While there will be cases where it can be said that the establishment of a breach of a manual handling regulation causing injury must, on the relevant facts, also lead to the conclusion that the relevant defendant was negligent, this is not one of those cases.  On the evidence, it was open to the jury to answer question 2 ‘yes’ on the basis that the respondent had failed to eliminate a risk of musculoskeletal disorder affecting the appellant (regulation 15 of the 1999 Regulations).  However, a duty expressed in those terms sets a higher standard than that required by an employer to discharge his or her obligation to take reasonable care in respect of the safety of an employee.[16]

   [16]See further, Pasqualotto v Pasqualotto [2013] VSCA 21 (Tate, Osborn and Whelan JJA), a case that concerned Regulation 15 of the 1999 Regulations and Regulation 704 of the OccupationalHealthandSafety (Plant) Regulations1995.  In that case, Whelan JA said, at paragraph [216]:

   The jury did find that there was breach of regulatory duties.  The relevant duties provided for in the regulations contain no qualification based upon reasonableness.  The finding of breach of statutory duty is not inconsistent with the finding of no negligence.

   Osborn JA, with whom Tate JA agreed, found it unnecessary to resolve this issue:  ibid [1] and [26].

1. Similarly, if one looks at regulation 14 of the 1999 Regulations, the possibility exists that the jury accepted that there was no breach of the employer’s duty of care when the respondent said that while he did not perform the risk assessment as required by that regulation, he did turn his mind to relevant questions of employee safety.  The fact that it may now be said that a risk assessment as required by the relevant regulations might have revealed to the respondent deficiencies in an aspect or aspects of his system of work, which deficiencies causally led to the appellant suffering injury, does not mandate a conclusion that at the relevant time that the respondent considered questions of safety he was negligent in failing to comply with the terms of the regulations.

1. In short, grounds (a) and (d) must be rejected because the complaints in them do not conform with the way in which the trial was conducted below.  Further, and in any event, it is not correct to say that every way in which the jury might have found for the appellant on the issue of breach of statutory duty must also have led to a finding in her favour on the issue of negligence.  As the appellant was prepared to accept below, the issues of whether she succeeded either in negligence or breach of statutory duty or in respect of both causes of action were quintessentially questions for the jury with affirmative or negative answers to each of questions 1 and 2 being open to the jury.  It follows that we reject the appellant’s complaints about his Honour’s charge and the appellant’s submissions as to any illogicality or suggested irrationality in the jury’s answers to questions 1 and 2.  His honour correctly charged the jury as to the relevant law, and there is no basis for saying that in answering questions one and two, as the jury did, the jury did not properly perform their task or follow his Honour’s directions.  Grounds (a) and (d) must be rejected.

Contributory negligence:  ground (b)

1. In ground (b), the appellant makes complaint about the jury’s assessment of contributory negligence at 50%.  While no complaint is made concerning the jury’s finding that there was contributory negligence on the part of the appellant, the assessment of 50% is challenged.  The challenge was put on two bases.  First, if the appellant persuaded this Court that the jury’s finding of breach of statutory duty mandated an equivalent finding on the issue of negligence, then the assessment of contributory negligence would fall to be recalculated having regard to the respondent’s departure from the standard of care expected from him as an employer.  Secondly, it was submitted that, in any event even if one accepted the correctness of the jury’s finding in respect of negligence, the assessment of contributory negligence was too high – and appellably so.

1. The first basis of the appellant’s attack on the assessment of contributory negligence falls away as a result of the appellant failing to make out grounds (a) and (d).  We turn now to the question of whether the assessment of contributory negligence was in any event too high.

1. In Podrebersek v Australian Iron & Steel Pty Ltd,[17] the High Court had to consider a case where a worker who had sued his employer was held by a jury to have been guilty of contributory negligence, which the jury assessed at 90%.  In relation to the apportionment, the High Court said:[18]

A finding on a question of apportionment is a finding upon a ‘question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis and of weighting different considerations.  It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds’ … .  Such a finding, if made by a judge, is not lightly reviewed.  The task of an appellant is even more difficult when the apportionment has been made by a jury … .

[17](1985) 59 ALJR 492.

[18]Ibid 493-4.

1. In Liftronic Pty Ltd v Unver,[19] the High Court again had to consider a case involving a jury’s apportionment of contributory negligence in a claim by a worker against an employer.  In that case, the jury assessed contributory negligence at 60%, but the Court of Appeal substituted its assessment of 20% for contributory negligence.  The High Court allowed the employer’s appeal and restored the jury’s assessment of contributory negligence.  McHugh J said:

In determining whether the jury's apportionment in the present case was unreasonable, one principle is basic. The issue must be examined on the basis that, so far as it was reasonably possible to do so, the jury found the least degree of fault on the part of the defendant and the maximum degree of fault on the part of the plaintiff. The apportionment must also be examined on the basis that the jury took that view of the evidence, favourable to the defendant, which is most consistent with their apportionment.[20]

[19](2001) 75 ALJR 867.

[20]Ibid 872 [29]. See further, where his Honour went on to say (at [38]):

Juries, with their knowledge of the working conditions in their communities, are probably in a better position than judges to determine whether an employer has breached the duty of reasonable care that it owes to an employee and whether an employee has taken reasonable care for his or her safety. At all events, there is no ground for supposing that judges – including appellate judges –  are in a better position to decide these matters than juries are.

1. It was, as we have already said, open to the jury to conclude that there was no negligence on the part of the respondent in this case.  What fell to be compared by the jury in performing its apportionment in this case was a comparison between the respondent’s departure from a statutory regulation and the appellant’s negligent departure from a standard of care requiring her to inform her employer that she was having difficulty performing her work (and/or suffering injury as a result thereof).  Additionally, what fell for comparison was the relative causal potencies of each party’s breach or departure from what was required of them. 

1. While the respondent was found to have breached a statutory duty he owed to the appellant (probably in one of the ways we have already identified), it was open to the jury to conclude that the more causally potent event was the appellant’s failure to tell the respondent that she was having difficulty and/or suffering injury as a result of performing her work.  In cross-examination, the respondent gave evidence that had he been advised that an employee was suffering injury as a result of performing particular work, he would not have required that employee to continue to perform that work or he would have taken steps to alleviate that employee’s problems.  This was evidence upon which the jury was entitled to act.

1. Having regard to the evidence upon which the jury was entitled to act, there is, in our view, no basis for contending that the jury’s apportionment of contributory negligence was wrong.  To the contrary, and upon the evidence that the jury’s verdict shows that the jury most likely accepted, the assessment of contributory negligence at 50% was well open to the jury.  Ground (b) must be rejected.

Damages:  ground (c)

1. The jury assessed the appellant’s pain and suffering damages in an amount of $75,000, and the appellant’s pecuniary loss damages in the sum of $160,000.[21]  No complaint is made about the assessment of pain and suffering damages.  The appellant complains that the jury’s assessment of pecuniary loss damages in the total sum of $160,000 is manifestly inadequate.[22]

   [21]See the definitions of ‘pain and suffering damages’ and ‘pecuniary loss damages’ in s 134AB(37) of the Accident Compensation Act 1985.

   [22]Or, in the terms of ground (c) ‘so low that it could not have been made by a reasonable jury properly instructed and applying the law’.

1. In Mobilio v Balliotis,[23] Brooking JA said:

Further, where, as is often the case when personal injuries are in question, the opinions of medical experts are to a considerable extent dependent upon the accuracy of the claimant as historian, the advantage which the primary judge has in assessing the claimant’s credibility assumes an importance that is, so to speak, both direct and indirect, when the judge comes to evaluate the lay and expert evidence that has been given.[24]

[23][1998] 3 VR 833.

[24]Ibid 836.

1. This proposition applies with equal force in the case of a personal injury jury trial of the present kind.  The credit of the appellant in this case was critical to the resolution of the proceeding.  Whether one accepted the appellant as a reliable witness bore substantially upon the question of the existence, and extent, of any injuries suffered by the appellant as a result of performing her work.  There are parallels between the facts in the present case and the facts in Whisprun Pty Ltd v Dixon.[25]  In Whisprun Pty Ltd v Dixon,[26] the plurality said:

Contrary to the stance adopted by the Court of Appeal, there was no reason why Newman J was required to give any weight to the doctors’ opinions that Ms Dixon was suffering from chronic fatigue syndrome.  The opinions themselves seem premised on an acceptance of Ms Dixon’s account of her history and complaints.  His Honour was entitled to take the view – which we would take ourselves – that their opinions were contingent on Ms Dixon suffering from the problems of which she complained.[27]

[25](2003) 77 ALRJ 1598.

[26]Ibid.

[27]Ibid 1609 [60]. See further, Munday v Court [2013] VSCA 279 [6], [7], [16], [25] and [27].

1. There were a number of substantial credit issues that the appellant had to deal with at trial.  One such issue was the appellant’s evidence concerning a motor vehicle accident that occurred in 1994.  In the appellant’s affidavit[28] the appellant deposed:

I was involved in a motor accident in which I sustained a whiplash-type injury in about 1994 and I was off work for about three months and I was treated with tablets until it settled down.  I had no further trouble after that time.

[28]Sworn on 23 December 2010 in support of the appellant’s application to commence the proceeding below pursuant to s 134AB of the Accident Compensation Act 1985.

1. As the evidence unfolded, it turned out that in fact the appellant made a claim on the Transport Accident Commission some years after the 1994 motor vehicle accident.  In the course of that claim, medical reports were obtained from a rheumatologist (Dr Markov) and two psychiatrists (Dr Diane Neill and Dr Stella Kwong).  These reports were tendered at trial, and Dr Neill and Dr Kwong gave evidence at trial.  In Dr Markov’s report, the doctor set out a history he obtained on 24 August 1999 as follows:

She stated that in June 1994 she was involved in a motor car accident where the car she was driving was struck on the passenger side.  She was not taken to hospital but saw her local doctor and apparently initial x-rays did not show any evidence of a fracture.  Following the accident she was off work for three months and was treated with physiotherapy and rest.  She estimated that her symptoms improved at least 50% and plateaued at that level.

1. Dr Neill recorded a history taken on 11 April 2000 as follows:

She said she has an ever present throbbing pain at the back of her right shoulder.  It fluctuates a lot in intensity, but ‘as you go on through the day, it gets worse – some days I can’t do anything when I get home but lie down with a hot water bottle’.  Sometimes she braces her shoulder with the clasped left hand, her arm across her chest.  Sometimes if no-one is looking at work, she massages her back against a corner wall.

1. However, in evidence before the jury, the appellant said that she made a full recovery from the effects of the motor vehicle accident ‘round about 2000’.  It was, in the circumstances of this case, open to the jury to conclude that the appellant had originally attempted to downplay the significance of the 1994 motor vehicle accident.  If the jury took that view, then it was open to them to be somewhat sceptical of the proposition that the complaints from which the appellant was suffering in 1999 and 2000 (some five to six years after the motor vehicle accident) completely resolved a very short time later. 

1. Further, the rejection of the appellant’s negligence claim and the assessment of her contributory negligence at 50% means that the jury rejected significant parts of the appellant’s evidence on liability concerning conversations she alleged she had with the respondent and the critical facts underpinning her claim that she suffered injury in March 2007.  It is plain from these matters that the jury did not accept significant and material parts of the appellant’s evidence.  To that extent, her credit was successfully attacked by the respondent at trial. 

1. However, that was not the end of the problems for the appellant at trial.  There were additional matters put at trial which were capable of causing the jury to take a view that, along the spectrum of physical or psychological problems suffered by the appellant, lifting and carrying folders, files, court books and the like was not the entire cause of the appellant’s various complaints.  For example, the fact that a number of medical practitioners, who saw the appellant in 2007 and 2008, failed to take any history of the appellant’s complaints or injuries being caused by having to carry or lift heavy folders or files or the like was capable of being regarded by the jury as a significant problem for the appellant on the issue of causation.  Specifically, the appellant’s general practitioner (Dr El-Khoury) was asked and answered the following questions:

Have you any note at all of problems in 2007 or 2008 of problems carrying files at work? - - - No, she never mentioned that, but as I say, previous (sic) one presentation of left parascapular (sic) that could be related to that work.

So the one thing that was mentioned about work was a fall off the chair? - - - Yes.

1. To like affect, during the same period (2007 to 2008), and a little later in time, the appellant appears not to have given a relevant history about lifting and carrying at work being causative of problems or injuries to Dr Tange,[29] Dr Clayton Thomas, Professor Mendelson and Dr Boling.[30]  Indeed, the history recorded by Dr Boling in January 2010 was:

She had a fall at work in March 2007.  She states that since that time she has had a problem with a variety of pain related complaints. 

[29]Indeed to Dr Tange, the appellant appears to have given a history of numbness in her hands coming on at night, and of symptoms being present during the day when she was using a computer.

[30]Dr Tange was a specialist that the appellant was referred to by her GP in August 2008.  Dr Clayton Thomas saw the appellant on 13 February 2009.  Professor Mendelson saw the appellant two weeks after she ceased work in October 2008.  Dr Boling was a neurosurgeon to whom the appellant was referred by her GP in January 2010.

1. Much was made at trial by counsel for the respondent that whatever injuries or condition the appellant suffered from, the same were not specifically related by her to any ongoing problem with performing work for the respondent.  Additionally, in cross-examination, an orthopaedic surgeon to whom the appellant was referred, Dr Brighton-Knight, after being given a history of the appellant’s complaints commencing with the motor vehicle accident in 1994, accepted the proposition that the matters in respect of which the appellant was claiming damages were consistent merely with the continuing degeneration of the appellant’s spine as shown on an MRI.

1. While senior counsel for the appellant conceded on this appeal that there were credit and related problems so far as the appellant’s case at trial was concerned, he submitted that from the assessing of the amounts of damages the jury awarded ($75,000 plus $160,000), such issues and problems as were raised by the respondent at trial must have been rejected (or at least not accepted) by the jury.  It was then submitted that if one puts these various rejected (or not accepted) matters to one side, the amount for loss of earning capacity was manifestly inadequate.  We reject these submissions:  the issues in this case were not so black and white.  It was open to the jury to conclude that a number of the credit matters and other problems facing the appellant at trial were of varying degrees of substance or significance.  Accepting parts of some witnesses’ evidence and rejecting other parts of the same witnesses’ evidence (as the jury was entitled to do) could well have led to the result the jury arrived at on the question of damages.  This was not an all or nothing case.

1. At one point in his submissions, senior counsel for the appellant appeared to submit that the amount of $160,000 meant that the jury had simply awarded the appellant’s past economic loss and had awarded almost nothing in respect of the future.  It was then submitted that there was no evidence to suggest that the appellant, who at trial was aged 48 years and who gave evidence that she intended to work to the age of 65, was likely to get better.[31]  It was then submitted that, having regard to the jury’s award in respect of the appellant’s past economic loss, the jury was bound to award a substantial amount for the future. 

   [31]Immediately, one might contrast that submission with the appellant’s evidence that notwithstanding her complaints to doctors in 1999 and 2000, she recovered wholly from the effects of the 1994 motor vehicle accident in around 2000.

1. We reject these submissions.  There is no basis for contending that, in awarding $160,000 for pecuniary loss damages, the jury awarded the appellant’s past loss claim in full ($156,214) and the small balance remaining being for the future.  More likely, the jury determined that either the appellant had some capacity for employment between October 2008 and the trial, and some ongoing capacity for employment into the future;[32]  alternatively, the jury found that not all of the appellant’s impairment of her incapacity was related to lifting and carrying the folders and files – there was the alleged chair incident injury to consider;  alternatively, the jury may have taken the view that there were larger than usual vicissitudes to be applied in respect of the injuries she sustained in the motor vehicle accident or as a result of the alleged fall or by reference to an unrelated medical condition, lupus, from which the appellant suffered.[33]

   [32]As to which there was evidence capable of supporting such a conclusion given in the evidence of Mr Dooley as to the appellant’s capacity for light physical work and clerical duties.  See also the evidence of Professor Mendelson.

   [33]The evidence at trial disclosed that the appellant suffers from lupus (a serious autoimmune disorder) and that this condition has had effects in respect of the appellant’s kidneys.  The medical practitioner responsible for treating and managing the appellant’s lupus condition (Dr de Crespigny) was not called at trial, and this was the subject of a Jones v Dunkel (1959) 101 CLR 298 submission by the respondent to the jury. That said, the evidence disclosed that there had been a flare up in the appellant’s lupus condition in 2011, and it was open to the jury to regard the matter as having an on-going significance so far as the appellant’s work prospects in the future were concerned.

1. It is, as has been said before, of course not possible to know with any precision what view the jury took in relation to all of the competing submissions and the underlying evidence relied upon by the parties in support of their respective positions.  That said, for the reasons given above, when one examines the evidence one sees that the jury’s assessment of the appellant’s pecuniary loss damages (past and future) in the amount of $160,000 cannot be said to be unreasonable or outside the range of assessments reasonably open to the jury.  Indeed, on one view, the assessment was generous to the appellant.  Ground (c) must be rejected.

Conclusion

1. The appellant’s appeal must be dismissed.

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