Altona Bus Lines and Anor v Lococo [2002] VSCA 159

Lu v. Mediterranean Shoes Pty. Ltd. [2000] VSCA 65; [2000] 1 V.R. 511, applied.

2. In 1988 the respondent commenced employment with the first-named appellant as a bus driver. He was then 34 years old. He had left school at the age of 16 years and had worked as an apprentice painter for one year, a machine operator for six years and on a family farm.

5. On 3 July 1995 the respondent was alighting from his bus when he slipped, fell and hit his back on the steps. He felt a great deal of pain but continued driving for an hour. He was then relieved, and at that point suffered pain in his low back radiating into his legs. He sought medical attention and was given analgesic and anti-inflammatory medication. X-rays revealed degenerative disc disease at L4-5 and L5-1. The respondent was treated by a physiotherapist. He was absent from work for three weeks and returned to light duties. He remained on light duties for seven months, when he recommenced full-time work as a bus driver. He still experienced pain, but put up with it in order to remain in his employment.

8. On 3 December 1998 the respondent rose from his seat on the bus, but forgot to disengage his seatbelt. The sudden tug on the seatbelt caused severe pain in his lower back which gradually worsened. During December the respondent suffered pain and muscle spasms, which were not relieved by analgesics or physiotherapy. A CT scan on 30 December showed mild posterior disc bulging at L4-5. An MRI scan in July 1999 showed a prominent right paracentral/lateral disc extrusion at L4-5 extending posteriorly to L5, resulting in posterior displacement and compression of the right L5 nerve root. The respondent returned to work on light duties. He did not resume bus driving.

11. The respondent applied to the County Court pursuant to the provisions of s.135A(4) of the Accident Compensation Act 1985 ("the Act") to bring proceedings for the recovery of damages in respect of the injury which he sustained in 1995. By reason of the provisions of s.134A of the Act the respondent could not recover any damages in respect of the injury he sustained in 1998. In order to obtain leave the respondent was required to establish that the injury was a "serious injury" within the meaning of s135A(19) of the Act. The respondent contended that his injury fell within paragraph (a) of the definition in that he had sustained "serious long-term impairment ... of a body function", namely, his spine.

14. The County Court judge held that the respondent was suffering a serious long-term impairment of his spine. He said:

"He asserts, without challenge, that he has continuous pain in his low back and legs. His right leg goes numb if he sits too long. He has pins and needles in his right foot: the foot is painful. His social life has been restricted. He is taking strong analgesic medication and sleeping tablets. At the relatively young age of 46 he has a significant long-term impairment of his earning capacity. He has no tertiary or trade skills to fall back on."

18. The question to which his Honour then turned was whether the respondent had established on the balance of probabilities that there was a causal connection between the 1995 incident and the respondent's current level of impairment. He said:

"I am satisfied that it is more probable than not that the 1995 incident has made a contribution to the plaintiff's level of impairment. Put another way, I think it improbable that an incident which made his previously asymptomatic degenerative condition symptomatic and which, in his own words, left him with back pain and referred pain to his legs ever since is unconnected to his present complaints of back and leg pain. In other words, I am satisfied that the 1995 accident and the 1998 accident are links in the chain which has led to his present level of impairment."

The trial judge thought that it was mere speculation whether the respondent would have suffered injury in 1998 if he had not injured his back in 1995, but was prepared to conclude that the results of the 1998 accident were substantially more severe because the respondent's back had been reduced to a weakened state by the 1995 accident. Accordingly he was "satisfied on the balance of probabilities that the 1995 injury has made a significant contribution so as to enable that contribution to be regarded as 'serious' in the relevant sense."

23. Whether an injury is "serious" depends upon the extent of the impairment or loss of a body function resulting from the injury[1]. Where separate injuries resulting from separate incidents impair one body function it is not permissible to aggregate the effects of the injuries to determine whether the impairment amounts to a serious injury. Each injury and the impairment of a body function resulting from it must be considered separately. See Lu v. Mediterranean Shoes Pty. Ltd.[2] The respondent can only recover damages in respect of the injury that was caused by the 1995 incident. Accordingly, it is the impairment to the function of the spine caused by the injury the respondent suffered in that incident which must answer the description of a serious injury.

26. The thrust of the appellant's case is that the trial judge failed to separately assess the effects of the injuries. His Honour spoke of the 1995 incident making "a contribution to the plaintiff's level of impairment" and both incidents being "links in a chain which led to his present level of impairment". The trial judge's ultimate finding was that the 1995 incident had made a "significant contribution" to the impairment suffered by the respondent.

29. The trial judge did not state the degree of impairment which the respondent had sustained before the 1998 injury and was likely to have sustained even if the 1998 injury had not occurred. He did not expressly evaluate the significance of the contribution to the ultimate impairment suffered by the respondent by separately assessing the impairment that resulted from each incident. In my view it is a pity that his Honour did not in terms make such an assessment.

32. Nonetheless, when the reasons are read as a whole it does appear in my view that the trial judge concluded that the effect of the 1995 injury considered alone was to produce a serious long-term impairment of a body function, albeit he expressed that conclusion in a somewhat elliptical manner.

35. 11 His Honour referred to Lu v. Mediterranean Shoes Pty. Ltd. as standing for the proposition that injuries cannot be combined. He next said:

"But if it can be demonstrated that a subsequent injury would not have occurred but for an earlier injury, or that the effects of the subsequent injury were more severe because of the earlier injury, then the subsequent injury, or the additional effects thereof (as the case may be) are consequences of the original injury and may be taken into account in considering whether the original injury produced a severe long-term impairment of the body function."

His Honour then referred to the evidence of medical specialists who all said that in 1995 the respondent sustained an injury with immediate ongoing effects, and that injury played a part in the incapacity that occurred after the 1998 incident.

40. At the conclusion of his reasons the trial judge said that the first of the two ways of demonstrating serious injury which he had earlier referred to, namely, that the subsequent injury would not have occurred but for the first injury, was speculative in this case. When he then went on to say that the 1995 injury made a "sufficient contribution" to enable that contribution to be regarded as serious, I consider that his Honour was stating that the second way of showing the first injury was serious which he had identified earlier in his reasons had in fact been established. In other words, "the additional effects [those which became manifest in 1998] are consequences of the original injury" and were taken into account by him in isolation from the 1998 injury to determine that the 1995 injury produced a "severe long-term impairment of a body function". It was not contended that the evidence was incapable of leading to that result. The question in this appeal was whether the trial judge separately considered the effects of each of the injuries to reach it. In the end I have concluded that he did.

43. 13 For the foregoing reasons I would dismiss the appeal.

55. The order of the Court will be that the appeal is dismissed.

62. We will order that the appeal be dismissed with costs including reserved costs.

[1] Humphries v. Poljak [1992] VicRp 58; [1992] 2 V.R. 129 at 134, 137, 140.

[2] [2000] VSCA 65; [2000] 1 V.R. 511.