Angeletos v Museum of Victoria [1999] VSCA 129

2. On 2 June 1998 a judge of the County Court dismissed an application made by the appellant, Nikolaos Angeletos, pursuant to s.135A(4) of the Accident Compensation Act 1985, for leave to bring proceedings for damages for a "serious injury" which the appellant claimed to have suffered in the course of his employment with the respondent, Museum of Victoria. The appellant had made his application by way of originating motion filed in the County Court on 2 September 1997.

5. It is against the judge's order dismissing his application that the appellant appeals to this Court. As is the current practice, the judge determined the application upon materials put before him including affidavits sworn by the appellant and his solicitor and various reports of medical specialists who had examined the appellant at his own or his solicitor's request and at the request of the respondent. In addition the appellant gave evidence before his Honour and was cross-examined by counsel for the respondent. In those circumstances, his Honour's decision is not to be lightly interfered with on appeal, the appellant having the obligation to establish that his Honour's conclusion either is vitiated by specific error or is manifestly erroneous (Mobilio v.Balliotis & Ors. [1998] 3 V.R. 833).

8. The Notice of Appeal which was originally filed on 12 June 1998 raised a number of grounds which did not include the ground upon which most of the appellant's arguments to this Court were based. At the outset of the appeal, appellant's counsel sought leave to file with the Court an amended Notice of Appeal together with a supplementary Appeal Book. The latter application caused no difficulty because it was designed to put before the Court three medical reports which formed part of the material before the trial judge. No objection was taken and the Court granted its leave to permit the appellant to file the supplementary documents. In support of the application to file an amended Notice of Appeal, the appellant's solicitor filed an affidavit in which he swore that, at the time when the original Notice was drawn and filed, neither a copy of the transcript of the proceedings before the trial judge nor a transcript of his reasons was available. He further swore that he had been advised by counsel that, having regard to the transcript "and for the purpose of better defining the issues to be determined on the appeal", the grounds of appeal "should be amended". The amended Notice, which was exhibited as "P.P.Z.B.", completely re-cast the original grounds and alleged that the trial judge had misdirected himself in a number of ways:

(1) in accepting the respondent's submission that in determining the question before it the County Court should "simply deal with the injurious effects of the lifting episode which occurred on 14 December 1994";

(2) in regarding the question to be determined under s.135A as not differing from a corresponding question arising under s.93 of The Transport Accident Act 1986;

(3) in dealing with the question to be determined under s.135A in the manner appropriate to a transport accident and appropriate to a corresponding question arising under s.93 of the Transport Accident Act 1986.

There was a fourth ground recited in the amended Notice which, at the end of the day, was not argued.

15. These amended grounds are, as I have noted, far removed from the grounds which were contained in the original Notice of Appeal. On their face the amended grounds suggest that the trial judge had misconceived the application made to him because, on the respondent's submission, he had been misled into treating that application as confined to an injury suffered on 14 December 1994, when such was not the case.

Because there was much in the Appeal Book which suggested, at least on its face, that the judge had not misconceived the application which was before him, the Court at the outset of the appeal asked respondent's counsel whether he opposed the application to file the amended Notice. Counsel said that he did not oppose the filing of the Notice to enable appellant's counsel to address argument in support of the new grounds. He later said that he reserved his right to contend that the judge had indeed decided the application which had been made to him and that there had been no misunderstanding or misconception of the type alluded to in the amended grounds of appeal.

19. In those circumstances, we allowed, by consent, the appellant's application to file the amended Notice of Appeal.

23. Before turning to the grounds of appeal, it is necessary to say something briefly about the facts which were before the trial judge. At the time the application was made the appellant was nearly 58 years old. He had been employed as a general hand with the respondent since 1978. Among the tasks assigned to him was the task of moving furniture and other items of equipment around the museum. Before September 1994 he had received assistance in the performance of that task. From September 1994 he was required to carry it out on his own. On 14 December 1994, when he was aged 54, he was required to lift some couches onto a trolley at his place of work. Whilst doing so he experienced pain in his right shoulder, neck, right hand and its index and middle fingers. After this episode, he returned to work and was given lighter duties consistent with his reduced capacity. He remained working at those duties until June 1997 when he accepted a "retirement package". He was by this time 56 and, as his Honour found, his prospects of finding other employment were severely circumscribed by his condition. It was accepted that, before the episode of 14 December 1994, the appellant's cervical spine was extremely degenerate but "apart from creaks and groans" was, so the appellant said, asymptomatic; although one of the medical experts, Dr. Shannon, was of the view that, having regard to the x-ray appearance of the spine, it was unlikely that it could have been so. It was also accepted that, following the incident in December 1994, the symptoms emanating from the degenerate condition of the neck had become florid and included considerable pain and limited movement.

27. Until December 1992 the Accident Compensation Act 1985 entitled persons who had suffered work-related injuries to recover "non-economic damages" from negligent employers over and above the "non-fault" payments specified by the Act. The damages so capable of being recovered were subject to limits prescribed by s.135. Substantial amendments were made to the Act by the Accident Compensation (Work Cover) Act 1992, which took effect on 1 December 1992. The effect of these amendments was to limit the number of common law claims which could thereafter be brought against negligent employers, but to increase the scope of damages which could be recovered. A major aspect of the amendments was to give to the injured worker, by virtue of the new s.135A, the right to claim pecuniary loss damages (up to a specified limit) as well as damages for non-pecuniary loss provided that the worker fell within the terms of the section. The history of the amendments and the effect of s.135A were traced by this Court in State of Victoria v. Collins [1998] VSCA 129; [1999] 1 V.R. 215 at 216-7, Rizza v. Fluor Daniel GTI (Australia) Pty. Ltd and Inline Courier Systems Pty. Ltd. v. Walker [1998] VSCA 131; [1999] 1 V.R. 405 at 409-10.

30. Section 135A(2) of the Accident Compensation Act provides:

"(2) A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment - (a) if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose after 1 December 1992; or (b) if the injury is a serious injury and arose before that date but the incapacity arising from the injury did not become known until that date or a later date."

It is, thus, apparent that a worker can only bring a common law action for damages against his or her employer for an injury arising after 1 December 1992 if the injury is a "serious injury" and the injury arose out of, or in the course of, or due to the nature of, employment and the employment of that nature was a "significant contributing factor", or, alternatively, if the injury is a "serious injury" which arose before 1 December 1992 but the incapacity arising from it did not become known until that date or a later date. As this Court pointed out in Collins (supra at 221) the second "limb" of the right to bring an action for damages, i.e. the right conferred by s.135A(2)(b):

"... contemplates that some injuries are `progressive' and that their ultimate consequences to the victim will be the measure of their `seriousness' ... ."

36. The "serious injury" in respect of which damages can be sought pursuant to s.135A(2) is defined in s.s.(19) of that section relevantly as:

"(a) serious long-term impairment or loss of a body function; or (b) ... (c) severe long term mental or severe long term behavioural disturbance or disorder; or (d) ..."

"Injury" is defined in s.5 of the Act as including, inter alia,:

"(c) the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker's employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration."

In determining whether an injury is "serious" within the meaning of paragraph (a) of s.135A (19), the court is to be guided by the test formulated by the Full Court in Humphries v. Poljack [1992] VicRp 58; [1992] 2 V.R. 129 where, at 140, Crockett and Southwell, JJ. said of the like definition of "serious injury" in the Transport Accident Act:

"To be `serious' the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as `very considerable' and certainly more than `significant' or `marked'."

In Mobilio's case, supra, this Court held that, in determining whether an injury is a "serious" one for the purposes of the definition in s.93 of the Transport Accident Act, judges should continue to be guided by this test (per Winneke, P. at 834, Brooking, J.A. at 844-5, Phillips, J.A. at 860, Charles, J.A. at 860). In State of Victoria v. Collins, supra at 217, the Court said that the same test should be applied by courts called upon to determine whether an injury is "serious" for the purposes of s.135A of the Accident Compensation Act.

46. In dismissing the appellant's application in this case, the learned judge applied the tests to which I have referred and concluded that he could not be satisfied to the requisite standard that the appellant's injury was a "serious" one within the meaning of s.135A(2) of the Act. There is no doubt that his Honour regarded the "injury" in respect of which the application was made as being one suffered by the appellant "whilst shifting furniture in December 1994". It would appear from his reasons that his Honour regarded the appellant as a witness of truth and said that he was "prepared to accept that the onset of pain occurred following an incident in which he was shifting what he described as `couches' - on any view it was sturdily-built furniture - on his own. Since that time he has been suffering from a considerable degree of neck pain. It is that which brings him here, claiming that he has suffered an injury to his neck, which qualifies him under the provisions of the Accident Compensation Act as a person who should be given leave to issue proceedings."

49. His Honour then went on to describe the appellant's work history following "the accident", saying that, because of the lighter duties provided, the appellant was able to continue working until mid 1997 when, through no fault of the respondent, his employment was "brought to an end" at "an age where many people are considering retirement". It was his Honour's view that the appellant had accepted his "retirement package" because he was "at an age where many people are retiring and earn ... justly warranted benefits of rest and recreation". None the less, his Honour found that the appellant's prospects of finding further employment were "very grim indeed".

"The injury then that [the appellant] relies upon is an aggravation of a pre-existing condition which he says was not the cause of any problem to him prior to this accident. I am quite prepared to accept what he says about that ... . He impressed me as being a person who was not exaggerating in the least and was not prevaricating in any way."

56. His Honour then went on to consider the legislative provisions which governed the application stating that:

"The question concerning [the] degree of degenerative change in his neck does become critical for the purposes of this application."

His Honour then referred to the limitations which the Act had imposed upon persons wishing to bring common law actions in respect of work place injuries and noted that s.135A preserved such rights only to those who had suffered "serious injuries" and who had either received a certificate from the Accident Compensation Commission stating that they had suffered a "serious injury", or were deemed to have suffered such an injury, or, in default of receiving such a certificate or being deemed to have suffered a serious injury, had applied to and obtained leave from the court on the basis of the court's finding that the injury suffered was a "serious injury" within the meaning of the section.

61. His Honour took the view that the appellant's application for leave to bring action depended upon the appellant's satisfying him, within the meaning of s.s.(19)(a) of s.135A, that he had suffered a "serious long term impairment or loss of a body function". His Honour further took the view that the appellant's task was not an easy one because the injury which he relied upon was "the aggravation of the pre-existing degenerative change" and that, in applying the relevant test, "it must be established that the aggravation itself, being the injury relied upon to qualify as a serious injury, does cause the impairment itself and without contribution from other things"; namely that "the aggravation itself is a serious injury being one which has created a serious long-term impairment or loss of body function". His Honour noted:

"Now, that, upon analysis is a difficult thing to do in any case involving an aggravation."

In support of this proposition his Honour applied the authority of Petkovski v. Galletti [1994] VicRp 32; [1994] 1 V.R. 436 where, at 444, Southwell and Teague, JJ. said in respect of an application under the Transport Accident Act where the injury relied upon was an aggravation of a pre-existing condition:

"The accident did not cause the pre-existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury. But, next, `the injury' - that is, the injury which resulted from the accident - `must involve serious long-term impairment ... of a body function.' That must follow, as we believe, both as a matter of ordinary construction, and from the statement of the majority in Humphries where it is said, at p.140, in a passage already quoted: `To qualify for such a description [that is, "serious injury"] there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term.' (Emphasis added) The matter may be tested in this way : let it be assumed that a claimant was at the time of the relevant accident already suffering from a `serious injury', and that the accident aggravated his condition to a minor extent. If the reasoning of the learned trial judge were to be applied, the claimant must be given leave to pursue the claim for that minor aggravation. We cannot accept that as correct. The clear intention of the Parliament in passing the Act was to prevent such minor claims."

67. His Honour, having referred to the authority of Petkovski, then went on to apply it to the application before him. He said it was for the claimant, in an application under s.135A of the Accident Compensation Act, to:

"establish what injury was caused by the accident. Where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury. Next the injury - that is the injury which results from the accident - must involve serious long-term impairment of a body function."

His Honour went on to say that that was not an easy task to fulfil.

72. In the light of the statement of principle to which he had referred his Honour turned to consider the evidence before him. On that material he concluded that there had been "an aggravation of quite marked pre-existing degenerative changes". As his Honour said, the appellant had been "in an extremely precarious situation prior to the accident as is evident from all of the medical reports". He concluded:

"On that material, with the best will in the world, I am afraid I cannot bring myself to the situation where I could say that I entertained a real belief held, at least on the balance of probabilities, that [the appellant] has suffered as a result of this accident an injury which qualifies as being a serious injury involving a serious long-term impairment or loss of body function arising from the aggravation itself. It has, in my view ... rendered a condition which was asymptomatic in the sense that it was regarded as being normal by [the appellant] himself into a situation which (sic) he does suffer symptoms of which he does not make enormous complaint and which have not prevented him from continuing with activities, although it would prevent him from lifting and moving heavy furniture. But that is not something which I would regard as being out of the way in a person of [his] years. He might still be physically quite active without indulging in the heavy work that he has."

77. In accordance with the grounds contained in the amended Notice of Appeal, appellant's counsel submitted that his Honour had misconceived the nature of the application before him by confining his consideration solely to the events of December 1994 when he should have considered the "injury" complained of as one arising from the whole of the work history of the appellant with the respondent during which the appellant had suffered, in the course of his work, an accumulation of insults to his spine in respect of which the incident in December 1994 was only the "last straw". It was put that his Honour had misled himself by applying principles which had been formulated in respect of "transport accidents" where the relevant legislation contemplated "serious injuries" arising only from one event, incident or accident whereas the Accident Compensation Act, through its extended definition of "injury" as including "aggravations" and "accelerations" of pre-existing injuries, contemplated an injury extending over a much wider period of time. He referred to Fitzsimons v. Ford Motor Co. Ltd. [1946] 1 All.E.R. 429 and Hawkins v. Commonwealth of Australia [1966] HCA 66; (1967) 116 C.L.R. 159 where the courts, albeit in respect of different legislation, had confirmed that a work-related injury could arise from a cumulation of a series of injuries as distinct from one specific and defined accident. Although an "injury", for the purposes of the Accident Compensation Act is also defined as including a "disease", it was not contended in this case that the appellant's injury came within the meaning of that term or was otherwise than an aggravation of a "pre-existing injury". Mr. O'Loghlen submitted that the "injury" which the appellant had asked his Honour to find was a "serious" one was not confined to the injury which had occurred in December 1994, but rather was the injury which had accrued from the series of work-related insults which had been received over a period of some 17 years leading to the "precarious" state of the spine to which his Honour had referred. It was not necessary for the appellant to demonstrate, so it was submitted, that the injury in respect of which the application was made was caused by some negligent act or omission on the part of the employer because the provisions of s.135A(2) and (4)(a) and (b) are only concerned with the question of whether the "serious injury" arose out of, in the course of, or due to the nature of, the employment and are not concerned with the question whether such an injury was attributable to the fault of the employer.

It was further submitted that there was evidence before his Honour, particularly that of Dr. Brownbill, from which it was clear that the degeneration in the spine had been caused or contributed to by the work which the appellant had been required to perform over the period of his employment. Thus it was said that the evidence before his Honour should have led him to the conclusion that the appellant had suffered a series of neck injuries during the course of his employment of which the injury on 14 December 1994 was but the last and that his Honour had erroneously confined his attention to the events of 14 December in mistaken reliance upon the statements made by the Full Court in Petkovki's case which was concerned with a transport accident.

81. It, thus, became apparent from the submissions made by the appellant that it was his contention that his Honour had been asked to consider a series of injuries which dated back many years. Indeed counsel submitted that the "aggravation" relied upon was, in effect, a series of aggravations, each contributed to by the employment, and each playing its part in leading to the substantial degenerative changes in the spine. This led the Court to ask under what "limb" of s.135A(2) the application for leave had been made; namely whether it was s.135A(2)(a), which entitles a worker to recover damages in respect of a work-related injury which is "serious", and "arose after 1 December 1992" and where the employment was a "significant contributing factor"; or whether it was s.135A(2)(b), which entitles a worker to recover damages in respect of a work-related injury which is "serious" and arose before 1 December 1992 "but the incapacity arising from [it] did not become known until that date or a later date".

84. Consistently with his submissions, counsel was constrained to concede that s.135A(2)(b) was the appropriate sub-section because this injury had in fact arisen before 1 December 1992 (in the form of a series of incidents causing the progressive degeneration of the spine) but the incapacity only became known at a later date. It is, I think, no reflection upon counsel for failing to recognize the effects of the maze of amendments which the Parliament has made to this legislation, but s.135B(2), which was introduced by the Accident Compensation (Amendment) Act 1994, effectively bars a worker from recovering common law damages of any kind for any work-related injury, including "serious injury", which occurred before 1 December 1992 where proceedings for such recovery were not commenced before 30 June 1994 (see Rizza v. Fluor Daniel GTI (Australia) Pty. Ltd.; Inline Courier Systems Pty. Ltd. v. Walker [1998] VSCA 131; [1999] 1 V.R. 405). The Court gave appellant's counsel the opportunity of looking at these very recent authorities with the view to making such submissions upon them as he wished to make, but was subsequently informed that he did not wish to make any further submission.

87. In the light of the restrictions imposed by the provisions of s.135B(2), appellant's counsel was, I think, constrained to concede that the appellant's claim could only arise under s.135A(2)(a), which required proof that the injury arose after 1 December 1992 and was a "serious injury" to which the employment was a "significant contributing factor". This concession placed considerable obstacles in the way of the submissions made because it eliminates reliance upon an injury or injuries arising before 1 December 1992 and requires proof that the employment was a "significant contributing factor" to an injury which arose after that date.

90. Having regard to the evidence that the degenerative processes in the appellant's neck were well established by 1 December 1992, and the paucity of material, apart from the events occurring on 14 December 1994, suggesting that the appellant's employment was a "significant contributing factor" to any further degeneration between 1 December 1992 and 14 December 1994, it seems to me that the appellant would have had great difficulty in relying upon any injury, other than the "aggravation" which was shown to have occurred on 14 December, as significantly contributing to a worsening of his underlying condition. Appellant's counsel contended that he should be able to rely upon all the work which the appellant carried out between 1 December 1992 and December 1994 as significantly contributing to the "precarious" position of his spinal processes which ultimately became symptomatic in December 1994. Apart, however, from inferences that the spinal processes may have continued to degenerate during 1993 and 1994 there was no evidence, save the events of 14 December 1994, which suggested that any injury had occurred during the relevant period to which his employment had significantly contributed.

95. For my own part, I can find nothing in the material which suggests that this very experienced judge misunderstood the nature of the application which was made to him or was misled by the respondent's submissions to erroneously confine his inquiry. On the contrary, and as I read it, that material indicates that the judge was asked to conclude that a "serious injury" had arisen as a result of the events which occurred on 14 December 1994 and that that injury comprised an aggravation of the pre-existing condition in the appellant's neck. Indeed, having regard to the constraints which the legislation imposed upon the appellant, and to which I have referred in the preceding paragraphs, it is difficult to see in what other form the application could have been made.

The material which was before his Honour included the following:

(a) The "particulars of injury" annexed to the originating summons filed with the court on 2 September 1997 in which it was alleged that:

"the Plaintiff has aggravated underlying degenerative changes in his neck, particularly in the C5-6 and C6-7 region which has resulted in nerve root irritation and/or entrapment in that region."

The only relevant aggravation of the pre-existing degenerative change, to which evidence was addressed, was the one occurring on 14 December 1994. The medical reports suggested that it was this injury which had caused "the nerve root entrapment and irritation".

(b) The affidavit sworn by the appellant's solicitor in support of the summons, in the course of which he deposed:

"2. I am instructed by the Plaintiff that he sustained injuries in an accident whilst in the course of his employment with [the respondent] on or about the 14th day of December 1994 ...".

It was suggested by counsel on the appeal that this was not intended to be a binding statement of "the injury" in respect of which the application was made but only a reflection of the instructions given by the appellant, who could not be expected to know of the full extent of the injuries. However, it is clear on the face of the affidavit, which was made nearly three years after the events of 14 December 1994, that the solicitor was in possession of a number of medical reports which disclosed the long standing degeneration of the spinal processes.

(c) In an affidavit sworn in support of his summons on 27 August 1997 the appellant swore:

"2. That I suffered injuries whilst in the course of my employment with the Museum of Victoria on or about 14 December 1994 ..."

(d) In opening the application to his Honour on 1 June 1998, the appellant's then counsel, having referred to the fact that from September 1994 the appellant was left to perform his duties without assistance, put it to the court that the appellant had suffered an incident on 14 December 1994 when he was shifting a couch.

(e) In giving evidence the applicant affirmed that he had been "injured on 14 December 1994" and that before that date he had suffered no symptoms of neck or shoulder pain (Tx.5).

(f) In the course of addressing his Honour, the appellant's counsel adopted a position which, as it seems to me, was consistent only with the view that the claim was for an aggravation of injury which occurred in December 1994:

(i) It was he who referred his Honour to the remarks made by the Full Court in Petkovski, supra (Tx.19-20), referring to the quantum of proof required where the "injury" relied upon by the applicant is an aggravation of a pre-existing condition.

(ii) At Tx.20-21 counsel put it to his Honour that at all times before 14 December 1994, the appellant was fit and working full time but that "after the event that we're talking about his condition, which was completely asymptomatic all of a sudden flares up and remains that way until today ... . So that what your Honour has is a time line that runs up to 14 December and [until then] he's operating at full capacity. ... So from 14 December he goes from having a full capacity to a very seriously reduced one, and that persists to this time."

Counsel further put it to his Honour that these circumstances raised an evidential burden on the respondent to prove that the appellant would "inevitably have come to" the state he was in, submissions which recognized that the injury relied upon was an "aggravation" or "acceleration" of a pre-existing state. However, as his Honour pointed out, that submission was inconsistent with the authority of Petkovski to which counsel had referred.

(iii) Appellant's counsel (Tx.22-3) then submitted that the aggravation was a "serious injury" by contending that "the effects have been more than significant or marked" when measured by the effects on the appellant's earning capacity and enjoyment of life. "Using that barometer prior to the event, the plaintiff was not suffering any loss of enjoyment of life and was not suffering any loss of income". (My emphasis). The "event" referred to was clearly that of 14 December 1994.

(iv) Again, at Tx.24-5, counsel submitted that there were no symptoms "at the time that this event occurred" and that there had been no impairment despite the pre-existing degeneration. Counsel contended that this was not a case of "gradual build up of symptoms"; rather he contended it was "a traumatic event where the [appellant] has in a single incident suffered the onset of quite severe symptoms". As counsel put it:

"there's evidence before you to make a finding that although the plaintiff had degenerative changes as of 14 December it was the particular event on that day that caused the onset of acute symptoms."

Counsel again said (Tx.26) that the evidence showed that "the particular event caused, in a relevant sense, the [appellant's] injuries ... being the problems that he complains of".

(v) In conclusion, appellant's counsel submitted to the learned judge (Tx.27-8) that:

"there's material upon which your Honour could find that the [appellant] suffered, as a result of the event on 14 December 1994, an aggravation of a condition which resulted in the symptoms that have in turn resulted in a loss of ability to earn income and also a loss of enjoyment of life and that those symptoms, the result, amounts to a serious injury."

124. In the light of the summary of material and argument put to his Honour, I am not persuaded that he misconceived the nature of the application which was being made in the manner contended for by counsel before this Court. Nowhere was it suggested that his Honour should treat the application as one in which the judge was bound to look at the whole of the work history of the appellant to determine the extent of the "injury" relied upon or that he should regard that injury as one resulting from an accumulation of repetitive injuries suffered over a long period of time resulting in the degenerative changes in the cervical spine and in respect of which the incident occurring on 14 December was merely the "last straw" As I have endeavoured to point out, such a claim could not, in any event, have been made in the light of legislative changes. Rather, as the material to which I have referred makes apparent, the claim as put to the judge was the one which he decided; namely that the injury relied upon as the "serious injury" was the aggravation to the underlying degenerative changes caused by the incident which occurred on 14 December 1994. Quite apart from the legislative obstacles in the way of making any other claim, the claim made from the outset was for an injury constituted by an "aggravation of underlying degenerative changes" and the only aggravation relied upon was the one to which I have referred. There is nothing which I can see in the material put before his Honour to support counsel's contention that the respondent's submissions had caused the judge to erroneously confine his inquiry or that trial counsel had been seeking to make a wider claim but had been forced to adopt a "narrower approach" by his Honour's intervention. Nor, in my view, is there anything in the appellant's contention to this Court that his Honour misled himself into narrowing the issue by determining the question under s.135A by inappropriate reference to authorities concerning s.93 Transport Accident Act. If the issue put to his Honour was, as I think it was, that the "serious injury" was occasioned by the events of 14 December 1994 aggravating the underlying degenerative changes to the point where the appellant had become incapacitated, his Honour was entitled to apply the principles expounded in Petkovski's case, notwithstanding that it was a case involving the interpretation of the Transport Accident Act. Counsel for the appellant before his Honour apparently thought so because he was the one who relied upon those principles to support the application he was making. His Honour was specifically asked to compare the condition of the appellant after the events of 14 December 1994 with his condition prior to that date and to conclude that those events had caused the "serious long term impairment or loss of body function" in respect of which the appellant wished to make his claim.

127. It is not the function of this Court to determine a claim upon a basis which was not made to the Court below. Our only function is to determine whether, on the basis of the claim which had been put before the judge, the appellant has demonstrated that his Honour's decision, based as it was upon a value judgment, has been vitiated by error or has otherwise been shown to be manifestly erroneous. For reasons which I have given, I am not satisfied that the appellant has demonstrated any basis for interfering with his Honour's decision and, as I understood him, counsel for the appellant conceded that, if it could not be shown that his Honour had misdirected himself in the manner contended for, the appeal would have to fail.

130. Accordingly, it is my view that the appeal should be dismissed.

139. I have had the benefit of reading in draft the reasons for judgment of Winneke, P. I concur in those reasons.