Wesfarmers Ltd v Lloyd
[2016] VSCA 41
•15 March 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0055
| WESFARMERS LIMITED | Applicant |
| v | |
| ROBERT LLOYD | Respondent |
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| JUDGES: | TATE, OSBORN and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 February 2016 |
| DATE OF JUDGMENT: | 15 March 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 41 |
| JUDGMENT APPEALED FROM: | Lloyd v Wesfarmers Limited [2015] VCC 680 (Judge Dyer) |
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ACCIDENT COMPENSATION – Respondent granted leave to commence common law proceedings – Judge below satisfied that injury ‘serious’ – Respondent crushed by forklift in the course of employment – Respondent suffers ongoing back pain – Whether sufficient identification of injury – Whether sufficient reasons given – Whether injury ‘serious’ – Whether judge below properly assessed significance of retained abilities of the respondent in considering whether the injury was ‘serious’ – Decision to grant leave was open and accorded with the evidence – Decision was not ‘plainly wrong’ – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J P Gorton QC with Mr S E Gladman | Wisewould Mahony |
| For the Respondent | Ms M A Hartley QC with Mr C S O’Sullivan | Maurice Blackburn |
TATE JA:
For the reasons given by Osborn JA, I agree that leave to appeal should be refused.
OSBORN JA:
Introduction
Mr Lloyd is a 67 year old employee of Wesfarmers Ltd (‘Wesfarmers’) who has worked since 2004 in Bunnings Warehouse stores.
On 23 March 2007, while he was working in the timber yard at the Bunnings Rosebud store, a co-worker accidentally caused a forklift to move suddenly forward and crush him against the steel rack forming the framework for some shelves. The forklift crushed the front of his body in a series of rapidly rebounding movements and also caught his left hand.
As a result Mr Lloyd suffered severe injuries to his chest and pelvis involving flail chest fractures of ribs 5–9 on the left side, and fractures of the right superior and inferior pubic rami. He also suffered a fracture at the base of his left little finger. Finally, he suffered generalised and extensive bruising to the mid-portion of his body.
Mr Lloyd was taken to the local hospital and then flown by air ambulance to the Alfred Hospital, where he was initially treated as an inpatient for one week in the trauma centre He was then an inpatient at the St John of God Hospital, Frankston, for a further three weeks during which he underwent rehabilitation.
His injuries have generally resolved save for ongoing lower back pain. It is the precise cause, extent and degree of severity of the consequences of that pain which are fundamentally in issue in this proceeding.
In 2013, Mr Lloyd sought leave to commence common law proceedings to recover damages for pain and suffering in accordance with s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’). No claim for pecuniary loss is contemplated.
Mr Lloyd relies on paragraph (a) of the definition of serious injury set out in s 134AB(37) of the Act, namely permanent serious impairment or loss of a body function.
The impairment of body function relied on is function of the lower back.
The application for leave was defended by Wesfarmers on two bases:
(a) that Mr Lloyd had not adequately established the nature and extent of the injury suffered by him; and
(b) that any back injury had not resulted in consequences that are sufficiently serious and permanent to meet the statutory test of serious injury.
That statutory test requires that the consequences be — ‘at least very considerable’:
(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c)an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable…[1]
[1]Accident Compensation Act 1985 s 134AB(38)(b)–(c).
Pursuant to s 134AB(19)(a), a court ‘must not give leave unless it is satisfied on the balance of probabilities that the injury is a serious injury’.
After hearing oral evidence from both Mr Lloyd and his local general practitioner, Dr Amarasinghe, and, after considering a body of affidavit material, written medical reports and medical records, Judge Dyer concluded in May 2015 that Mr Lloyd had made out his entitlement for leave in respect of the pain and suffering consequences of a low back injury suffered when his body was crushed.[2]
[2]Lloyd v Wesfarmers Limited [2015] VCC 680 (‘Reasons’).
Wesfarmers now seeks leave to appeal that decision on four grounds:
1 The trial judge erred in law by failing to adequately identify the injury suffered by Mr Lloyd out of or in the course of his employment on or about 23 March 2007.
2 The trial judge did not give any or sufficient reasons for his decision.
3 The trial judge mistook the evidence as supporting an assessment that the pain and suffering consequences of the injury were serious.
4 When assessing what Mr Lloyd had lost by reason of his injury, the trial judge failed to properly consider the significance of what Mr Lloyd had retained.
In oral argument, counsel for Wesfarmers placed particular emphasis on grounds 3 and 4. Nevertheless, it is logical to consider the issues raised by the grounds essentially in the order in which they are stated.
As they were argued, grounds 1 and 2 raise questions as to the conclusions of fact which should be drawn from the evidence and the judge’s reasoning with respect to that evidence.
Grounds 3 and 4 go to the ultimate evaluative judgment made by his Honour.
Ground 1 – Did Mr Lloyd suffer an injury to his lower back and did the judge adequately identify that injury?
In my view, the conclusion that Mr Lloyd suffered a permanent injury to his lower back as a result of the crush suffered on 23 March 2007 accorded with the weight of the evidence for the following combination of reasons.
(1) The nature of the trauma, including the fracture of Mr Lloyd’s pelvis proximately to the lower spine, is entirely consistent with soft tissue injury in this area.
(2) Mr Lloyd was accepted by the trial judge to be both a witness of truth and a stoic individual. His evidence and the affidavit evidence of his wife (which was not challenged) presented a compelling picture of a significant before and after change to the condition of his lower back following the crush injury.
(3) The St John of God records include reference (albeit limited) to complaints of lower back pain.
(4) The physiotherapist treating Mr Lloyd on his release from hospital recorded in June 2007 that he was suffering from lower back tightness. On the last occasion on which he was seen by the physiotherapist in 2007 his symptoms were:
·ongoing residual lower back pain and discomfort;
·occasional flare-up of lower back pain.
(5) Mr Kahn, orthopaedic surgeon, saw Mr Lloyd for Wesfarmers’ insurer on 8 August 2007. He accepted that Mr Lloyd had suffered an injury to his lower back and that Mr Lloyd had been left with residual stiffness and pain in the lower part of the back, especially the right side of the lower part of the back. Nevertheless, he regarded the long term prognosis as favourable.
(6) Dr Amarasinghe produced medical records running from February 2006 through to May 2014. He had seen Mr Lloyd for a variety of problems on a relatively regular basis. In February 2013, he reported that Mr Lloyd had ongoing low back pain which was episodically worse. In his view, it was due to soft tissue trauma and the pain limited Mr Lloyd’s physical capacity. He noted that as a consequence of back pain, Mr Lloyd complained that he required help at work to lift heavier tins of paint. He also suffered increased back pain and tiredness at the end of the day. In May 2014, Dr Amarasinghe expressed the opinion that the traumatic injury suffered when Mr Lloyd was crushed had accelerated ‘normal age degeneration’. In his view, Mr Lloyd would suffer increasing pain and decreased ability as a result. Mr Lloyd’s condition was managed with simple analgesics and physiotherapy as needed. In October 2014, Dr Amarasinghe expressed the opinion that Mr Lloyd’s crush injury had caused him to suffer ‘degenerative pain to his lower back and pelvis’. Again, his prognosis was that the pain would get worse and that the consequences would become more limiting in terms of lifestyle. Dr Amarasinghe elaborated this view in cross-examination.
(7) Dr I E McInnes saw Mr Lloyd for the purposes of a whole person injury assessment in December 2011. He noted that Mr Lloyd presented with complaints that his lower back was very sore. It was stiff and painful, particularly in the morning. Mr Lloyd had no sciatica. His back pain was aggravated and worse at night after he had spent the day at work. His main difficulty was with bending and turning.
(8) Mr Ian Jones, orthopaedic surgeon, saw Mr Lloyd for medico-legal purposes on behalf of Wesfarmers in July 2013. He considered the crush injury had ‘led to the development of some lower lumbar back ache symptoms indicated to be transversely at the L5 level.’[3] In his view, Mr Lloyd’s complaints were ‘consistent with mild degenerative disease affecting his lumbar spine manifesting as some lumbar back ache and stiffness.’ He further referred to Mr Lloyd’s ‘lumbar back injury’ in expressing his final conclusion. As I read his opinion as a whole, it is to the effect that Mr Lloyd suffered an injury causing degenerative disease to manifest itself in pain.
[3]Emphasis added.
In a further report of 10 October 2014, Mr Jones made a similar diagnosis but noted Mr Lloyd was complaining of increased stiffness.
(9) Mr Michael Fogarty, orthopaedic surgeon, saw Mr Lloyd in May 2014 for medico-legal purposes. He also accepted that Mr Lloyd had suffered a soft tissue injury to the low back and recorded that:
His lower back was still causing him pain and he said this had been so since the accident. He said that he had variable pain felt just above the waist level, sometimes going up his spine. He said he had no leg pain and no tingling nor pins and needles into the legs. He found bending for any length of time was bad. He said that he had more pain in his back if he stood for too long or if he sat for too long.
In summary, there is a general acceptance by all those who have examined Mr Lloyd medically that he suffered a lower back injury in consequence of the severe crush injury he sustained at work and that this has resulted in on-going pain. Further, taken as a whole, the medical evidence supports the conclusion that his complaints of continuing pain and consequent limitations have been consistent since his initial recovery from his severe fracture injuries. Moreover, Mr Lloyd has consistently identified bending, stress at work and other stressors to the back as aggravating his pain.
The trial judge expressed his conclusions as to the fact of injury as follows:
I regarded the plaintiff as a reliable witness who made no attempt, in my assessment, to exaggerate his disability or to mislead the court as to the extent to which the ongoing effects of his lower back injury impacted upon his lifestyle. Consistent with my own assessment was the tendering of the index from the defendant’s further amended Court Book which made reference to video surveillance which was ultimately not shown to the plaintiff in evidence. Further, the comment made by Mr Jones at the time of his assessment (to which I have referred) in October 2014 is also consistent with my assessment of Mr Lloyd.
The question of causation of a low back injury and its ongoing consequences is to be resolved in the plaintiff’s favour by application of the analysis referred to in Grech v Orica Pty Ltd. The medical opinion of Mr Jones in particular supports the evidence of Dr Amarasinghe and the plaintiff himself that a low back injury occurred as a result of the incident on 23 March 2007. The consequences of such injury have as a matter of probability worsened with the passage of time. This is also consistent with the medical evidence which predicts a gradual worsening with time.[4]
[4]Reasons [36]–[37] (citations omitted).
Wesfarmers submits that the judge should not have been satisfied of a causal connection between the crush injury and Mr Lloyd’s ongoing back pain.
(1) It is submitted that there is no medical imaging substantiating a more precise diagnosis than lower back injury. This is correct, but the evidence as a whole overwhelmingly supports the conclusion that Mr Lloyd has suffered an injury meeting this generalised description.
(2) It is next submitted that there are only limited references to complaints of back pain in the St John of God Hospital records. This is again true, but it is also apparent that Mr Lloyd was recovering from severe and very painful fracture injuries. It is not surprising that soreness in his lower back was not the focus of his problems.
(3) Next, it is submitted that the opinion of Mr Jones does not support the conclusion that Mr Lloyd suffered a low back injury. I do not accept that this is so. Mr Jones expressly accepts that a low back injury was suffered, but postulates that the mechanism of injury was an aggravation of degenerative change.
Next, it is submitted that the lack of a more precise diagnosis than injury to the lower back precluded Mr Lloyd from establishing the necessary degree of causal connection with consequential disabilities. Again, I do not accept that this is so. It may make that task more difficult, but it does not preclude a conclusion on the whole of the evidence. That evidence includes consistent medical opinion that Mr Lloyd’s ongoing back pain is due to a crush injury to his lower back. The medical and medico-legal evidence also includes reportage of complaints of fundamentally consistent symptomology. Moreover, the medical evidence is to be evaluated in the light of the accounts given by both Mr Lloyd and his wife as to the continuing consequences of the crush injury for him in terms of low back pain and limitation of activities and particularly the assessment by the trial judge of the respondent’s credibility.
Identification of the pathology of injury in the general way which occurred here may encourage a conclusion that the injury has no more than modest consequences. But it does not compel that conclusion.
It follows, in my view, that ground 1 must fail. The trial judge was entitled to proceed on the basis that Mr Lloyd suffered a low back injury, provided the evidence as a whole adequately justified further conclusions as to the resultant impact and consequences of that injury.
Ground 2 — the adequacy of the judge’s reasons
The written application for leave to appeal makes clear that this ground was initially premised on the proposition that the judge misunderstood the opinion of Mr Jones and that this opinion did not support the conclusion that Mr Lloyd had suffered injury to his lower back. For the reasons I have already explained, I do not accept that this is so. In my view, the opinion of Mr Jones did support the view that the crush injury caused permanent injury to Mr Lloyd’s lower back and consequent back pain.
It is also submitted on behalf of Wesfarmers that the judge failed to deal adequately with ‘a dearth of back pain’ recorded in Mr Lloyd’s clinical records.
The trial judge specifically records that, before him, Wesfarmers relied heavily upon the absence of recorded complaint of back pain apart from brief references in 2007.[5] In turn, he summarised the records of Mr Lloyd’s complaints of back pain in the course of treatment and Dr Amarasinghe’s evidence in that regard.[6] He also went through the records of complaints of back pain in the medico-legal material.[7] It is plain that his Honour had regard to this material as a whole in reaching the conclusion which he did.
[5]Reasons [23].
[6]Reasons [24]–[27].
[7]Reasons [29]–[34].
It may be accepted that the medical records are patchy in the sense that, although they record ongoing and recurrent complaints of back pain, they do not record constant complaints. When all the medical evidence is put together (as I have sought to do above) it is plain, however, that Mr Lloyd has made ongoing and consistent complaints of back pain since 2007.
Moreover, his Honour found specifically that Mr Lloyd was a stoic individual who understated his difficulties.[8]
[8]See the observations of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 [3] (‘Dwyer’).
In summary, there was no error in his Honour’s reasoning with respect to the issue of causation. He was entitled to accept the evidence of Mr Lloyd and his general practitioner. He was entitled to regard the opinion of Mr Jones as supporting that evidence and the evidence which he specifically preferred was consistent with the medical evidence as a whole.
Ground 3 — the trial judge mistook the evidence as supporting an assessment that the pain and suffering consequences of the injury were ‘serious’
Ground 4 — when assessing what the respondent had lost by reason of his injury the trial judge failed to properly consider the significance of what the respondent had retained
It was these grounds which were urged most strongly upon the hearing of the application for leave to appeal. The trial judge’s final conclusions were as follows:
As to consequences, I was referred in the final address on behalf of the defendant to the decision of the Court of Appeal in Aburrow v Network Personnel Pty Ltd as to the methodology that should be undertaken in evaluating the ‘pain and suffering consequence’. In that case, reference is made in particular to the earlier decisions of the Court of Appeal in Haden Engineering Pty Ltd v McKinnon and Sutton v Laminex Group Pty Ltd.
On this issue, Mr Miles submitted that the evidence in the present case fell significantly short of the threshold required for leave to be granted when examined against an appropriate objective template as had been set out by the Court of Appeal initially in Haden and subsequently adopted in Sutton and Aburrow.
I agree that it is appropriate in cases of this type, seeking leave in respect of pain and suffering consequences of a back injury, to adopt an appropriate analytical and objective evaluation. The authorities referred to are binding on me. In the present case I accept that Mr Lloyd suffers from a relatively constant, though variable, pain emanating from his low back. I accept that he takes pain-relieving medication, but on a relatively infrequent basis, and tends to avoid aggravating factors which time and experience has no doubt taught him. I accept also that he has modified many aspects of his day-to-day recreational activities in order to minimise or limit the circumstances in which his low back pain is aggravated or re-enlivened.
Mr Lloyd was 65 years of age at the date this application proceeded. He was at that time living with his wife in the bayside area of McCrae. He had given evidence, which I accept, that as a consequence of his back injury he has been unable to return to his hobby of sailing or taking out a surf-ski for a paddle. His affidavit evidence also supports a conclusion that the consequences of the back injury have also impacted to a very large extent on his hobby of woodwork. These consequences are supported by the affidavit sworn by his wife, who was not required for cross-examination.
I do not find that the actual pain experienced by Mr Lloyd is of a sufficient quality as to justify the description of ‘at least very considerable’. This is consistent with the absence of recorded complaints to his general practitioner over a considerable period, and also the limited amount of treatment obtained. It seemed clear from Mr Lloyd’s presentation before me that he is quite a stoic individual.
The consequences in terms of the pain alone would not justify a grant of leave. When I take into account his age and stage of life, I regard it as particularly significant for him that his chosen hobbies of woodwork, sailing and, to a lesser extent, surf-ski riding, have been severely diminished or lost.
I have specifically not taken into account the reduction in working hours as a consequence for the purposes of assessing his pain and suffering consequences resulting from the back injury. I have no reason to reject the evidence set out in the affidavit of Mr Pocock-Davies sworn 4 September 2014. Indeed, I am prepared to accept that as a matter of probability Mr Lloyd made no particular reference to the consequences of his back pain in discussions with his employer. In my assessment it is unsurprising that a man of relatively advanced years would make no reference to any worsening back condition in discussion with his employer. The cross-examination of the plaintiff in relation to his ongoing employment was such that I would conclude that the changes that have occurred in his workplace environment are of relatively minor impact in terms of the plaintiff’s ongoing back symptoms.
I am satisfied that the consequences of relatively constant back pain, albeit at a level that would not of itself satisfy the threshold test, have impacted on Mr Lloyd’s recreational activities in a manner that has had dramatic effect on his amenity of life that can fairly be described as at least very considerable.[9]
[9]Reasons [38]–[45] (citations omitted).
There are a series of preliminary observations which can be made about these reasons.
(1) The judge’s final analysis followed a careful and comprehensive summary of the evidence in the case including concessions made by Mr Lloyd in the course of his cross-examination.
(2) The judge expressly acknowledged and accepted the need to adopt an ‘objective template’ as reflected in the approach of the Court of Appeal in Haden Engineering Pty Ltd v McKinnon,[10] Sutton v Laminex Group Pty Ltd[11] and Aburrow v Network Personnel Pty Ltd.[12]
[10](2010) 31 VR 1 (‘Haden’).
[11](2011) 31 VR 100 (‘Sutton’).
[12][2013] VSCA 46.
(3) The judge made a primary finding of relatively constant pain in the lower back which varied in intensity.
(4) It is the combination of the consequences of Mr Lloyd’s injury both in terms of this continuing pain and his loss of enjoyment of life which the judge ultimately (and properly) had regard to.
(5) The judge paid particular regard to the age, circumstances and personal history of Mr Lloyd in evaluating the significance to him of the loss of his capacity to engage in recreational sailing and the severe limitation of his ability to engage in recreational woodwork.
(6) The judge’s evaluation of the significance of the pain Mr Lloyd suffered and its consequences was informed by his assessment of Mr Lloyd’s truth and reliability. He accepted that Mr Lloyd was a witness of truth and reliability and that he was stoic in the sense that he did not exaggerate his symptoms, demonstrated a significant willingness to attempt to adapt to them and sought to minimise his medication.
(7) The judge’s reasons responded directly to the way the case was put to him.
(8) Ultimately, the judgment which the judge was required to make was a multifactorial one requiring the assessment, weighting and synthesis of individual aspects of the ongoing consequences of Mr Lloyd’s injury.
(9) Unless specific error can be demonstrated with respect to the factual conclusions forming the basis of his evaluation this Court will not interfere with it on appeal unless it is ‘plainly wrong’.[13]
[13]Mobilio v Balliotis [1998] 3 VR 833.
Wesfarmers submits that the trial judge did not acknowledge what Mr Lloyd had retained despite his injuries. In particular, Mr Lloyd retained the ability to work on modified duties; to sleep soundly; to take regular walks of five–six kilometres along the beach; to care for himself; to perform home duties; to engage in social activities; and to enjoy a sexual life.
This submission is formulated by reference to the list of commonly relevant activities of life identified by Maxwell P in his judgment in Haden.[14]
[14](2010) 31 VR 1, 5–6 [11] (Maxwell P).
The determination of the degree of the seriousness of the consequences of the injury was not of course to be determined by a checklist.[15] Nor by simplistic reference to comparable cases.[16]
[15]Ibid 11 [48], [51] (Buchanan and Nettle JJA).
[16]Sutton (2010) 31 VR 100, 117 [89].
Nonetheless, the trial judge was required to have regard to what was retained by Mr Lloyd in order to ascertain the consequences which the injury had caused by way of a full before and after analysis, and to enable a proper assessment of the relative seriousness of what had been lost.[17]
[17]Dwyer [2008] VSCA 260 [27] (Ashley JA); Sutton (2011) 31 VR 100, 114–116 [75]–[83].
It is submitted on behalf of Wesfarmers that it can be inferred from the terms of his Honour’s judgment that he did not pay due regard to the capabilities which Mr Lloyd retains in assessing the seriousness of the consequences of his injuries.
I am not persuaded by this submission. The judge’s conclusions followed a careful analysis of the evidence as a whole as to what Mr Lloyd can and cannot do. The judge’s identification in net terms of those aspects of Mr Lloyd’s life which have been dramatically affected accorded with the evidence and was to be understood in the context of the background evidence which he had summarised.
The judge’s finding of a ‘dramatic effect’ necessarily implies a judgment made in the context of the evidence as a whole.
The specific references by his Honour to the relative infrequency with which Mr Lloyd takes painkilling medication, and to the modification of ‘many’ (but not all) aspects of his day to day recreational activities, relate back to his summary of the detailed evidence going to these matters, and make clear that he considered the evidence as to what Mr Lloyd had retained.
A fair reading of the decision as a whole thus makes clear that his Honour considered the evidence as to consequences as a whole just as he was required to do.[18]
[18]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 [47] (Ashley JA and Beach AJA).
The real issue in this case is whether the detriments ultimately identified by his Honour (when coupled with Mr Lloyd’s underlying and constant pain) could be regarded in total as amounting to consequences which were ‘at least very considerable’.[19] It was not sufficient that the consequences of the impairment were simply ‘significant’ or ‘marked’.
[19]Sutton (2011) 31 VR 100, 114 [74] citing Sabo v George Weston Foods [2009] VSCA 242 [73].
I accept Wesfarmers’ submission that the judgment made on this issue was genuinely contentious and that this was, in a number of aspects, an ‘unusual case’.
In particular, it is true that:
·Mr Lloyd had undergone limited treatment, but this was explained by his general practitioner’s view that the appropriate treatment was simply the modification of lifestyle, the use of analgesics and appropriate physiotherapy and by his Honour’s finding as to Mr Lloyd’s stoicism.
·There was no medical imaging or other investigation satisfactorily establishing a demonstrable specific basis for ongoing significant symptoms. Nevertheless, the evidence as a whole provided an entirely credible pattern of continuing impairment. It may also be noted that there was no medical opinion evidence that, in the absence of further investigative evidence, soft tissue injury to the lower back could not be concluded to be causal of the plaintiff’s symptoms. In turn, the causation issue fell to be determined on the whole of the evidence as to the probabilities.
·Mr Lloyd has been able to return to work. Whilst this may be a significant indicator of a relatively low level of disability it nonetheless fell to be considered in the light of the evidence as a whole.
It follows that there was no specific bar to his Honour’s conclusions. The question which now arises is whether his evaluation of the relevant impairment was ‘plainly wrong’.[20] To my mind, the judge was entitled to give weight to the following particular aspects of the evidence:
[20]Mobilio v Balliotis [1998] 3 VR 833, 858 (JD Phillips JA).
·The judge accepted that Mr Lloyd was a witness of truth and reliability. He accepted Mr Lloyd’s evidence as to the level, duration and variability of his pain and as to its consequences. Once that finding was made, Wesfarmers had to confront the full force of Mr Lloyd’s evidence.
·Looked at in the broad, the evidence supported the unchallenged statement of Mr Lloyd’s wife that, prior to being injured, Mr Lloyd was always a very energetic person. When not at work, he spent nearly all of his spare time doing woodwork or home improvement jobs around the house. When he was not doing such jobs, he would spend his spare time sailing or out on his surf ski.
·The variable quality of Mr Lloyd’s back pain involved frequent recurrent episodes of considerable pain. These affected his capacity to stand or sit in one spot for long periods of time. They caused him recurrent difficulties in the course of his daily routine and, in particular, stiffness and pain when he got out of his bed in the morning, and exhaustion and pain when he got home from work after he had engaged in activities involving bending. The evidence, which the judge accepted, thus demonstrated not simply ongoing low grade pain but frequent reoccurrence of episodes of considerable pain.
·Mr Lloyd was a man approaching retirement age. He lived in a beachside location with a trailer yacht kept in his front yard. Before he suffered the crush injury to his back, he regarded sailing as ‘fabulous’. It was plainly a central element of his recreational life. He could no longer engage in sailing his boat because of discomfort when sitting and difficulty in bending when going forward and otherwise manoeuvring within the boat. The loss of the capacity to engage in this activity was a very material one for him.
·Likewise, Mr Lloyd, prior to the crush injury, spent a substantial amount of time doing woodwork on a weekly basis. He enjoyed his work in the timberyard area of Bunnings, in part, because of his interest in woodwork. He manufactured sheds, furniture and other objects for friends. He did not simply do odd jobs as and when necessary. As a result of his back injury, he is materially hindered in his ability to lift and handle timber, and in his ability to bend over and to operate tools, such as his saw, for any extended length of time. His capacity to do woodwork was very substantially impaired.
·Mr Lloyd had not been able to ‘fill up’ his life with new enjoyable hobbies.[21]
[21]Cf Sutton (2011) 31 VR 100, 114 [75].
In the ultimate, I am simply not persuaded that the trial judge was plainly wrong[22] to conclude that Mr Lloyd’s ongoing back pain and its consequences have had a dramatic effect on his amenity of life that can fairly be described as at least very considerable.
[22]Mobilio v Balliotis [1998] 3 VR 833, 858.
Accordingly, grounds 3 and 4 also fail.
Conclusion
For the above reasons, I would refuse leave to appeal.
SANTAMARIA JA:
For the reasons given by Osborn JA, I agree that leave to appeal should be refused.
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