Barwon Spinners Pty Ltd v Podolak; St Laurence Community Services

Court of Appeal (Vic)|2005-02-25|Before: ORMISTON, CHERNOV & PHILLIPS JJ.A.

The application was supported by an affidavit of the plaintiff's solicitor Mr. Mackay, sworn on 31 July 2003, in which he exhibited inter alia, two affidavits of the plaintiff herself, sworn on 1 August 2002 and 15 January 2003 respectively. The defendants relied upon affidavits in answer, sworn by their solicitor, Mr. Corridon; the first, sworn on 27 August 2003 (which exhibited, inter alia, an earlier affidavit of his of 29 January 2003) and another, sworn on 28 October 2003. Both sides relied upon medical reports exhibited to the various affidavits - the plaintiff upon reports of her general practitioner Dr. Wilson, of Dr. Jensen a physician, of Mr. Huffam an orthopaedic surgeon and Mr. Pryor, a consulting surgeon; and the defendants upon reports of Dr. Wilson (in addition to those relied upon by the plaintiff), of Dr. Davison, an occupational physician, of Mr. Chamberlain, an orthopaedic surgeon, of Mr. Russell, a general trauma and vascular surgeon, of Dr. Entwisle, a psychiatrist and of Mr. Westh, another orthopaedic surgeon. There was other evidence, too, in the form of exhibits to the affidavits filed.

The application was heard in the County Court on 26 November 2003. None of the deponents (other than the plaintiff) was called to give evidence, nor was any of those whose reports were exhibited to the affidavits and so none was cross-examined. The plaintiff alone went into the witness box and was cross-examined**.** The judge took time to consider his decision. On 19 December 2003, delivering reasons for judgment, his Honour held that the plaintiff had suffered a serious injury and accordingly granted leave under s.134AB of the Act. The defendants now appeal, alleging error. They seek to rely upon an amended notice of appeal and, as no objection was raised, they should have the relevant leave.

As described in the Summary of Facts and Issues, the plaintiff was born on 12 December 1970, was married in September 2001 and gave birth to a daughter in March 2002. She commenced employment with the employer in January 1997, working as a machine operator, and usually on night shift. Before working as a machine operator, she had worked manually as a process worker for Steggles in Victoria and at a poultry farm in Queensland. She had also worked previously as a pharmacy assistant.

Early in the morning on Friday 16 June 2000, the plaintiff sustained an injury to her back. As the judge put it,

"... whilst attending to one of the defective and newly installed oil pots, she slipped on some of the spilt oil. She did not fall to the ground but twisted and jarred her back."

Notwithstanding, the plaintiff concluded the shift on the Friday and worked again on the evening of Sunday 18 June. She attended Dr. Wilson, her general practitioner, on the Monday and he diagnosed a strain to the paravertebral muscles of her thoracic spine. She did not then return to work until November 2000, undergoing physiotherapy in the meantime.

On 11 September 2000 the plaintiff underwent an MRI scan of the thoracic and lumbar spine and "no significant abnormality [was] identified in the cervical, thoracic or lumbar spine": i.e., there was no evidence of disc protrusion or degeneration. Plain x-rays of her thoracic and lumbar spine were also normal. In October 2000, Dr. Wilson referred the plaintiff to Dr. Jensen, a physician and he gave her spinal injections which gave her relief for a few days. In June 2001, he told her he could do no more. By his report of September 2001, he said:

"I feel that efforts should continue to be made to wean this lady off passive modalities and she should be continued to be pushed into a self-management program. I note that she has on occasions managed to return to work on modified duties and hours and efforts should continue to try to rehabilitate her into the workforce. I can perceive she will have difficulty in the long term with recurrent bending, lifting or twisting tasks and with tasks requiring stooped activities. She would also require work which did not require the lifting of heavy weights. She would also be best served by activities which allowed her to change posture regularly."

The reference to the plaintiff's returning to work should be explained. After returning to work in November 2000, the plaintiff commenced working on restricted hours and by February 2001 she was working four hours a day on modified duties. That continued for parts of the year 2001. For eight distinct periods (of about seven weeks in total) the plaintiff did not work. In January 2002 she was certified unfit to work by her general practitioner and she did not again return to work with the employer. In March 2002, her daughter was born. In December 2002 she ceased work permanently. By letter of 18 December 2002 she was given four weeks' notice.

The reasons for judgment occupy only four pages and, although the injuries asserted by the plaintiff in the particulars of injury were lengthy and the nature of any injury sustained was the subject of a large body of medical opinion, his Honour dealt with injury in little over a page. After describing the incident on 16 June 2000, his Honour said, speaking of the plaintiff:-

"8. She had a weekend's break, returning to work at the Sunday night shift. She was in great pain. Notwithstanding visits to doctors and physiotherapy, pain persisted, particularly in the right leg. Six months after the accident she returned to work. The pain did not cease and was exacerbated by the work. In January 2002 she stopped working. 9. From her evidence, it was clear that the pain has sadly eaten away at her pre-accident way of life."

The judge quoted from a letter to her from her employer and continued:-

"11. Her employment life has been characterised largely by unskilled activities. She is an untutored labourer. 12. he plaintiff is not work shy, indeed she gave a very clear indication by her actions she is desperate for work. Unfortunately, given the medical evidence her desperation may intensify."

His Honour then quoted very briefly (and one may infer with approval) from three only of the medical reports. So far as concerns injury, there was a quotation first from the report (dated 8 September 2003) of Dr Wilson who opined that the plaintiff's overall condition had improved somewhat, though "she still experiences chronic pain" and was "unable to sit or stand for prolonged periods and cannot do any lifting or twisting with her back"; and next from the much earlier report (dated 15 August 2000) of Dr Davison, who described how the plaintiff presented at interview, saying that she "constantly altered her posture between sitting and standing during the course of the interview, which lasted approximately 40 minutes", that she was "teary at times" and that "her general movements and gait were slow and she was unable to remove her shoes and socks without difficulty". To these extracts, his Honour added his own comment:-

"16. The plaintiff said in her evidence that she had to sit and then stand with significant regularity. 17. This confirms Dr. Wilson's report. It was patently apparent that she was very uncomfortable and this was not some dramatic feigning. She is pregnant again - unwittingly - and this may have exacerbated the pain in the way the previous pregnancy did. Then it was thought the birth would have provided relief. It didn't. It is fair to postulate that the pattern will be repeated."

What is missing in the reasons for judgment is any clear identification of the pathological nature of the injury actually sustained. The particulars of injury offered by the plaintiff were certainly detailed and they were set out at the start of his Honour's reasons for judgment, but they do not appear to have been addressed thereafter. Save for an expression of conclusion in non-specific terms in paragraph [20][44] near the end of his reasons, all that his Honour said of the nature or extent of the injury suffered by the plaintiff was that, in slipping as she did on 16 June 2000, the plaintiff "twisted and jarred her back"[45], an event perhaps productive of injury and impairment but scarcely informative as to the relevant compensable injury: compare s.134AB(1). The medical evidence dealt in detail with the aetiology of the plaintiff's condition but, as the foregoing demonstrates, that was not canvassed by the judge.

That was in marked contrast with the detail put before the Court by Mr. Forrest on appeal. It was not denied that the plaintiff suffered injury; the question was what injury. Counsel's primary submission was that his Honour had failed to make any or any proper assessment of the medical evidence in order to determine the nature of the injury sustained by the plaintiff, notwithstanding that this was critical to a consideration of the level of impairment and in particular permanency. It was necessary, he submitted, first to identify the compensable injury and the medical evidence, as it stood, disclosed no injury beyond the muscle strain of the lumbar and thoracic spine. The radiological evidence was of no abnormality, or no significant abnormality; and the diagnosis of her general practitioner, both three days after the incident and in the final report of 2 June 2002, was of muscle strain, a diagnosis which, it was submitted, was consistent with a raft of other medical opinions. In short, Mr. Forrest said, the evidence was overwhelming that in terms of injury producing organic impairment[46], the plaintiff's injury was a soft tissue injury, with no nerve root involvement, radiculopathy or other sinister pathology. There was much force in this argument.

As to whether impairment was permanent, the judge apparently considered it relevant that the employer, in its letter of 2 December 2002 to the plaintiff, expressed the belief "that your capacity is not temporary". In full (as set out in paragraph [10]) the letter is merely the employer's statement of position in respect of employment that was still current and obviously the writer was contemplating, if not planning, termination. As for expert evidence concerning permanence, his Honour said in paragraph [13], when introducing the medical opinions:-

"The medical evidence as contained in the reports presents some difficulties, especially with respect to the issue of the future prognosis".

And it was on that issue specifically that his Honour quoted from three of the medical reports, as already mentioned.

First, there was the report dated 8 September 2003 of Dr. Wilson, the general practitioner, who opined that the plaintiff "is permanently unlikely to return to any type of production work", adding that "with appropriate retraining she may be able to do alternate duties". Dr. Chamberlain was quoted as saying (in his report of 23 July 2002):-

"There may be some permanent impairment, taking into account she has residual symptoms two years after injury".

Third came the extract from Dr. Davison's report (of 15 August 2000) about how the plaintiff presented at interview, followed (in paragraph [16]) by the judge's comment on the plaintiff's own evidence about her need to sit and stand "with significant regularity", and (in paragraph [17]) by the judge's finding as to her obvious discomfort, her current pregnancy, and the failure of the previous birth to provide relief (a paragraph already quoted above[47]). Nothing more is said on the matter until the final conclusion was expressed a little later, in paragraph [20].

While paragraph [17] may well have been intended to be (or at least to foreshadow) the ultimate conclusion in paragraph [20], that the plaintiff had sustained an impairment of a body function and that that impairment was permanent, one cannot tell what, if any, findings were made (in particular about the aetiology of the plaintiff's condition) to justify or sustain the conclusion. It seems clear enough that his Honour had a good deal of sympathy for the plaintiff's pain and suffering, but sympathy was not enough and in view of the medical evidence itself and the complication introduced by the plaintiff's pregnancy, a more careful analysis of the evidence as a whole was called for, and the more especially if findings were to be made to justify a conclusion not merely that impairment was physiologically likely to be permanent, but also, and importantly, about the extent to which that would be so.

Again counsel's submission was a good deal more detailed than his Honour's reasons. Mr. Forrest pointed out that, on the basis that the respondent's injury was a soft tissue injury with no nerve involvement, the medical evidence about that constituting permanent impairment went both ways, some of the material noting specifically that in late 2001 and early 2002 the plaintiff's pregnancy of itself operated to impair the function of her spine. Dr. Jensen, in a report of September 2001, thought that the plaintiff "will most likely be left some degree of permanent impairment". Mr. Huffam, in a report of November 2001, concluded that, while there was no evidence of any specific injury seen on an MRI scan, the plaintiff's symptoms "will gradually improve with time although she may have further trouble as her pregnancy becomes more advanced". He added: "She will probably be limited to relatively light work which she can do standing up without bending and without heavy lifting". Mr. Pryor, in his report of September 2001, referred to the likelihood of "some slow and gradual improvement in the state of her back" but the pregnancy meant that treatment needed to be deferred for the time being. Mr. Davison, in his report of 15 August 2000, said that while there was impairment present "at this stage, however it is not expected to be permanent" and in a further report of 21 September 2001, he opined that "there should have been a minimal degree of work related impairment, if any at all".

Mr. Forrest submitted that, given the evidence as a whole, it was not open to the judge to find any permanent impairment. Whether or not that was so, we agree that his Honour's consideration of the medical evidence was inadequate in that respect. Of course, the particular extent of any permanent, physiological impairment was highly relevant to the critical matter of economic loss. Under s.134AB, an injury may be assessed as "serious injury" only by reference to consequences, to the worker, with respect to loss of earning capacity or pain and suffering. If only the latter is demonstrated, then the plaintiff is restricted, in any subsequent common law proceeding, to damages for pain and suffering. As his Honour referred to submissions made in respect of economic loss and as no limitation was imposed on the leave granted, we assume that his Honour was satisfied, on the evidence, that the injury was serious with respect to loss of earning capacity at least, if not with respect to both loss of earning capacity and pain and suffering.

Here the difficulty in his Honour's reasons stems from the complicated requirements of the statute, and in particular paragraphs (e), (f) and (g) of s.134AB(38). These paragraphs make detailed provision as to what must be established if the worker is to succeed on the basis of consequences with respect to loss of earning capacity. In paragraph [18] of his reasons, his Honour simply set out the figures submitted by the defendants showing gross income, year by year from 1997 to 2002 (mistakenly described as 1997) and income that the plaintiff was said to be "capable of earning" as a sales assistant, a sales clerk and a pharmacy assistant. On the figures so set out, there was no loss of earnings: the figures showed that the plaintiff was capable of earning, after the incident in June 2002, much the same as she had been earning or, if less, not less by the 40 per cent marked out as a threshold by sub-s.(38)(e).

His Honour was, however, critical of the figures he set out in paragraph [18], which, as we have said, were no more than the figures submitted by the defendants. The figures of what the plaintiff was "capable of earning", according to the defendants, were derived, as the judge said, from the vocational assessment of Recovre, a professional organisation dealing in capacity to earn. The judge said of the figures supplied:-

"The crucial problem with these re-constructed potentialities is that they pay scant, if any, regard to the plaintiff's pain, her response to pain (up and down), to her capacity to enjoy the confidence of an employer who is aware of her limitations".

In view of the conclusion that immediately followed, in paragraph [20], his Honour must be taken to have dismissed the defendants' figures of what the plaintiff was "capable of earning" as unreliable on the ground just stated. But if so, it does not follow that the worker had established that she was unable to work in any employment whatsoever. His Honour did not otherwise canvass the possibility of rehabilitation or re-training. Anyway, it does not follow that, because the defendants' figures on capacity to earn were dismissed as they were, there was evidence of economic loss to the extent of the 40 per cent required by sub-s.(38)(e).

It must be remembered that under sub-s.(38) the onus is squarely on the plaintiff to establish the loss of earnings and to the requisite threshold. That onus was not discharged by the rejection of the defendants' calculations or even of their witnesses altogether on this topic, which serves to emphasise how important it was for the judge to determine first just what was the physiological impairment of the plaintiff and whether and to what extent, if any, that impairment would probably be permanent. True it is that the degree of any permanent impairment may well be reflected in a consequent capacity to earn or not, as the case may be, but one way or the other there must be a fairly precise identification of the relevant disability, both physiological and economic, and the onus is on the plaintiff in that regard. In respect of loss at least, his Honour did not consider, or at all events did not consider expressly, whether that onus was discharged in this instance.

It may be that the judge felt himself persuaded by the plaintiff that she could never work again because of her pain, but if so the underlying findings are not set out. Perhaps his Honour thought it sufficient to reason as follows. The plaintiff suffered an injury at work when she slipped and fell, twisting and jarring her back; she has since been in pain which is pretty much continual; as a result she will never be able to work in any job at all, despite the references in some of the material to possible retraining; therefore the injury is serious injury as defined. Now, whether or not the foregoing is satisfactory as a statement of ultimate conclusion (and it may yet not address all that the statute now requires), it is no more than that, a statement of conclusion, and it cannot stand substitute for those findings which are essential to sustain the conclusion. The evidence was detailed and not all to the one end; there was, for instance, a question how far the possibility of retraining had been fully explored or, if explored, pursued. The evidence needed analysis, and analysis in terms of the statutory requirements. Mr. Maxwell submitted that in the reasons for judgment his Honour said all that had to be said, albeit briefly, but it was, in our view, inadequate. Section 134AE, in requiring comprehensive reasons for judgment, serves to emphasise the point.

We turn now to the so-called unemployability of the plaintiff. In the penultimate paragraph of the reasons for judgment, his Honour concluded as follows:-

"20. I am satisfied that she [the plaintiff] will have a permanent, a very considerable and a marked injury and that she will be unable to stay in any employment because of that impairment. No employer will be attracted to someone who has to agitate herself with regularity."

It was agreed that in the first sentence, the reference to "a marked injury" was a slip: it should read "a marked impairment". But the conclusion that there was an impairment which was permanent was challenged, and, as we have said already, with justification. As to the balance of the conclusion, that the plaintiff "will be unable to stay in any employment because of that impairment", that too was properly challenged by counsel as insufficiently justified by the findings which preceded it.

Counsel for the defendants paid special attention to the last sentence in paragraph [20] of the reasons for judgment: "No employer would be attracted to someone who has to agitate herself with regularity." This was said to be irrelevant on the ground that the statute required consideration of the capacity to earn in suitable employment, a concept to which employability was altogether irrelevant - or so it was argued. There was evidence before the judge that no employer would be prepared to employ a worker who, having suffered injury once in the workplace, had already recovered compensation and was now seeking further employment. The risks for the employer, it was suggested, were simply too high. In what we have said above by way of general introduction to these four appeals, we rejected the argument as irrelevant to capacity to earn: capacity to earn proceeds, in our opinion, upon the physical capacity to earn in "suitable employment", whether or not a job is available. That was the submission of Mr. Forrest (which we accepted) and that was the submission which counsel called in aid to challenge the passage in paragraph [20] now in issue.

In our opinion, however, when his Honour said that the plaintiff would not be an attractive prospect for employment he had in mind, not the general argument about employability of someone who has already been injured and claims compensation, but rather the employability of someone with the incapacity of the plaintiff. That she should "agitate herself with regularity" was a reference, we think, to her need to sit and stand with regularity in order to relieve the pain in her back. That was a proper consideration although, for the reasons already given, it may not have justified a conclusion that the plaintiff was altogether unemployable - or more accurately, it does not appear that such a conclusion was justified in the reasons for judgment.

Finally, we mention one other aspect of the conclusion expressed by the judge in paragraph [20]; for it contains the only reference in the reasons for judgment to impairment as "very considerable". It will be recalled that paragraph (c) of sub-s.(38) requires that the impairment, if it is to amount to serious injury -

"... when judged by comparison with other cases in the range of possible impairments ... [be] fairly described as being more than significant or marked, and as being at least very considerable".

The requirement in paragraph (e) that economic loss answer the 40 per cent threshold is expressed as "in addition to the requirements of paragraph (c) ..."; yet nowhere does his Honour address the critical question in terms of paragraph (c). Perhaps it was regarded as implicit in the consideration of economic loss: that if a plaintiff is unable to earn at all by reason of the impairment the impairment must be "more than significant or marked and ... at least very considerable", but if so, it should have been articulated more clearly, given the issues that s.134AB(38) raises so specifically for determination.

It follows from all that we have said thus far that this appeal falls to be determined on the basis that the trial judge failed to make the necessary findings of primary fact upon which to proceed to a relevant conclusion in relation to "serious injury". Section 134AD now directs this Court to "decide for itself" the issue on appeal but, for reasons earlier given, that does not mean that the appeal is a re-hearing de novo. In Warren v. Coombes, the High Court was prepared to make a finding of negligence according to its own opinion because it was a case in which the appeal court was in as good a position as the trial judge to express that conclusion, albeit that it was an inference of fact. That is far from this case, where not all the primary facts have yet been found. Until they have, one cannot advance to a consideration of the inferences to be drawn relevant to the existence or no of "serious injury", particularly given the complex and detailed provisions of the statute.

It is true that in this case (as is not uncommon, we were told) the doctors were not called to give evidence and so were not cross-examined. As for their evidence, therefore, it might be said that this Court is indeed in as good a position as the trial judge to draw inferences from the doctors' evidence. But the plaintiff was called to give evidence and was cross-examined and her evidence in relation to both her injury and its consequences must be highly significant, and in more ways than one. As Brooking, J.A. demonstrated in Mobilio[48], the credibility of the plaintiff bears then upon the doctors' reports. That is not to say that in every case in which the plaintiff is cross-examined and the doctors are not cross-examined this Court cannot express an opinion, for itself, about whether or not there is serious injury: each case will depend upon its own facts, and in particular upon the facts found by the trial judge. It may be that in some cases the findings made below will be sufficient to enable this Court to decide immediately the question of serious injury: but this is not one of those cases.

To put it shortly, the reasons for judgment are so deficient that this matter must be returned to the County Court for hearing and determination de novo. As an appellate court we are entitled to all the benefit of a trial having proceeded at first instance and of proper findings of fact (especially where the plaintiff's credit has been in issue) before this Court is required to address the issues raised on appeal and, as we read it, s.134AD does not say otherwise. Section 134AD does not pretend to turn this court into a court of first instance: certainly it does not purport to transfer the "serious injury" jurisdiction of the County Court to this court. Accordingly when it becomes plain on appeal that the hearing at first instance has not been duly completed, and to such an extent as to impede this court in the discharge of its proper function, an order for retrial may well be appropriate. That is this case and we would so order. Our conclusion is reinforced in this instance by what we consider to be a real danger of our failing to do justice to the plaintiff's cause if we were to proceed simply upon the documents and the transcript, without seeing and hearing the plaintiff herself.

Accordingly, we would allow the appeal, set aside the orders made in the County Court on 19 December 2003 and remit the matter for re-hearing by another judge. In our opinion the costs in the County Court to date should be part of the costs of the re-trial; much if not all of the material used on the first occasion will be available no doubt on the second. As for the costs of the appeal, we think that the appellant-defendants should have those costs but, of course, the respondent-plaintiff would be entitled to a certificate.

This is an appeal by Vesna Stojanovski who failed in her application for leave to commence a common law proceeding against her employer. The application was made by originating motion filed on 28 October 2002. It came on for trial before a judge in the County Court on 1 September 2003 and after a trial lasting two days, her Honour reserved her decision. The application was dismissed on 10 October 2003, the judge delivering a careful set of reasons in which she examined, inter alia, the consequences for the plaintiff (both as to pain and suffering and as to economic loss) of the back injury of which the plaintiff complained. In short, the application failed in respect of pain and suffering in the light of the plaintiff's own evidence and a surveillance video recording the plaintiff moving about without difficulty and apparently without pain; and it failed as to economic loss on the ground that the plaintiff had not discharged the onus lying upon her. By notice of appeal filed on 23 October 2003, the plaintiff challenged the decision below on both counts but, at the hearing of the appeal, abandoned reliance upon economic loss. On appeal the plaintiff argued only that leave to commence a common law proceeding ought to have been granted by reference to the pain and suffering consequences of the injury or impairment relied upon.

The plaintiff, who was born on 6 November 1974, is married with one child. She began working for the employer in 1998, when it was known as Steggles. She worked as a digi operator, a form of process worker. On 17 February 2000, it became evident, apparently, that the machine at which she was working required lubrication and the plaintiff alleges that she injured her lower back when she lifted a 20-litre container of lubricant from ground level for the purpose of pouring the contents of it into a bucket, so that in turn she might pour the contents of the bucket into the machine. As she lifted the 20-litre container, she felt pain in her lower back. She consulted her general practitioner, Dr. Morris, complaining of pain in her lower back, but not then in her buttocks or leg. In examination-in-chief, the plaintiff said that after taking four days off work after the incident, she took two weeks' leave as holidays and then returned to work part-time because of her back and because she was pregnant.

On 5 May 2000, the plaintiff was working in an area where chicken carcasses dropped, via conveyor, into troughs from where they were put into tubs. The tubs were then stacked on a trolley. The plaintiff is about 5'10" tall. She was pushing a trolley stacked with tubs to a height of some 5 to 6 feet when, according to the plaintiff in her affidavit, "I saw the stack of tubs starting to tilt. I grabbed the stack quickly because I thought the whole thing was going to fall, and as I did so, I felt more pain in my lower back". After the incident (she continued), "I had more pain in my lower back and I had pain in both legs, but mostly on the right side with the pain going down the back of both thighs". At trial, the plaintiff described the pain after the second incident as "worse, much worse", when asked to compare it with the pain she experienced in the earlier incident. She reported the incident and was put on alternative duties. She consulted Dr. Morris on the same day.

In the originating motion, the plaintiff relied upon both incidents, that on 17 February and that on 5 May 2000. As the case was put at trial, however, the plaintiff relied upon the second only as being serious injury, asserting that the first was of no real significance. Consequently, the impairment to the lower back, on which she relied, was said to have stemmed from the second incident and it was by reference to the second that she claimed leave to bring the common law proceeding for damages. In her reasons for judgment, the trial judge appears to have concluded that the first incident, though productive of some injury, was not of great significance, saying of it (in paragraph [9]):

"[The plaintiff] rested at home, with some improvement in the pain, and returned to work on the following Tuesday, performing light duties. During the following weeks, although she still suffered from some pain in her back, her symptoms largely resolved and she was able to resume part-time normal duties."

The judge appears to have accepted the plaintiff's evidence that this return to merely part-time duties was in part due to pain and in part her pregnancy: see paragraph [30] of the reasons for judgment.

On appeal, the plaintiff does not challenge the judge's conclusion in respect of the incident on 17 February. In the notice of appeal error is alleged only in the judge's failing to find that the incident on 5 May resulted in serious injury (albeit by way of an aggravation of the consequences of the first) and in the Outline of Submissions filed on her behalf, it is said in paragraphs 38, 51, 54 and 58:-

"38. None of the medical practitioners who either treated [the plaintiff] or examined her for medical/legal purposes considered that the injury which [the plaintiff] suffered on 17 February 2000 was of any particular significance. 51. The effect of the strain to the plaintiff's lower back on 17 February 2000 was negligible in comparison to the injury - and the consequent impairment of function to her lower back - which resulted from the incident of 5 May, 2000. 54. The preponderance of medical evidence supports the proposition that the impairment of the function of [the plaintiff's] lower back arose from the incident of 5 May, 2000. 58. It is more probable than not that the incident of [17] February, 2000 was a mere straining injury from which [the plaintiff] made a substantial recovery, and that her return to work on reduced hours was attributable to caution and to her pregnancy, rather than to persisting symptoms of injury."

This is consistent, we were told by counsel, with the way in which the plaintiff's case was presented below, minimising, as it were, the consequences of any injury on 17 February.

There was, however, a shift in the argument on appeal, for Mr. Maxwell contended that there was in truth no need to separate out the consequences of the one incident and the other - or as the judge saw it, of the first injury and the second. At the outset of her findings (which began in paragraph [29] of the reasons) her Honour noted that after the incident on 17 February "a CT scan taken on 27 April revealed a mild right sided posterior bulge of the L5-S1 disc" and she spoke thereafter of two injuries and the possibility that the second resulted in impairment by aggravating the first. Thus her Honour said (in paragraph [29]):-

"As the assessment of serious injury includes aggravation of a pre-existing injury it is permissible to analyse the impairment to one body function caused by two injuries for the purpose of determining whether the second injury aggravated the first and, if it did, whether the resulting additional impairment amounts to a serious injury. In determining whether or not the plaintiff has suffered a serious injury I have analysed each injury to the lower back for the purpose of comparing the impairment immediately before and immediately after the second injury."

"However, although I am satisfied that the incident in May at work aggravated the Plaintiff's back condition, I am not satisfied that the additional impairment amounts to a serious injury."

On appeal Mr. Maxwell contended that this approach was altogether inappropriate: there was no need, he said, in a case like this for the judge to divide up the consequences which followed after the second incident in order to determine, separately from the consequences of the first incident, the consequences said to belong to "additional impairment" brought about by the second. It was enough, he submitted, that at the end of the day, after both incidents, the plaintiff could point to an impairment which, in his submission, amounted to a serious injury when regard was had to all of the consequences that followed. The notion of "serious injury" in s.134AB depended (in the circumstances of this case) upon an impairment of a bodily function, and accordingly it was only that impairment with which s.134AB was concerned - no matter if derived from two or more work-related injuries or events.

Mr. Gorton objected to this raising of a new point and we agree that some mention should have been made of the submission in the notice of appeal and, in default, some warning given by inclusion of appropriate argument in the plaintiff's Outline. The point, however, was important to the proper construction of the section and, as these were intended to be test cases on the new legislation and no prejudice was claimed, we allowed Mr. Maxwell to elaborate the argument and we heard Mr. Gorton in answer.

Mr. Gorton submitted that the judge had not erred in approaching the matter as involving two successive injuries and asking whether the additional impairment produced by the second was in itself serious injury. That, he said, was perfectly consistent with previous decisions of this Court and he cited Petkovski v. Galletti[49], Dalton v. Dandenong Scaffolding Hire Co Pty Ltd[50] and Lu v. Transport Accident Commission[51]. He also submitted, however, at least initially in his argument, that the judge had erred in claiming to have analysed "each injury to the lower back for the purpose of comparing the impairment immediately before and immediately after the second injury", arguing that such task had not been possible on the evidence because, as the judge herself had said (indeed in paragraph [29] itself):

"Most of the medical evidence dealt with the back injuries together without drawing a distinction between them for the purpose of assessing the plaintiff's medical condition."

Of course it does not follow because most of the medical evidence dealt with both of the back injuries together that the judge was unable to analyse each injury as she said she did. The judge was concerned with the consequences as to pain and suffering and as to economic loss and there her Honour had the benefit of other evidence (and importantly that of the plaintiff herself) and, the judge having concluded that the plaintiff did injure her back in February (albeit that she recovered at least in the main) and then injured her back a second time in May, the analysis described by the judge became possible on a consideration of the totality of the evidence.

As for Mr. Maxwell's contention that the whole approach was wrong (being altogether unwarranted under s.134AB), as at present advised we are not at all sure that whenever a worker is injured in the same body part in successive and similar incidents, close in time and while working at the same job with the same employer, such a fine analysis of before and after each incident is always required. It might be unfortunate for the worker if, despite the final consequences, each separate incident was ruled not to amount to serious injury, or, even if the last was ruled to be serious injury because of the final consequences, the worker was not permitted to sue at common law for the earlier incidents which had perhaps brought him or her to a parlous state in the first place. The need to analyse the plaintiff's condition both before and after each incident causing injury was certainly recognised in Petkovski, Dalton and Lu but, on further analysis, it might perhaps be that special considerations required such an approach to be taken in those cases. For example, in Petkovski the proposed defendant was the other driver in a motor vehicle accident, who obviously could be responsible only for the injury wrought in the accident. Perhaps much will ultimately be seen to turn on the precise nature and extent of the common law proceeding which the applicant for leave is proposing to bring if leave is granted. But we say no more about it because it does not matter in this case.

We say that it does not matter because, even if all of the hurt and the pain of which the plaintiff complained after 5 May 2000 be attributed to the separate incident which occurred on that date, we cannot see that as affecting the conclusion reached by trial judge. In paragraph [35] her Honour said:-

"I am not satisfied that the consequences for the plaintiff with respect to pain and suffering satisfy the statutory definition of serious injury".

So far as we can tell, this conclusion encompassed all of the evidence about the pain and suffering experienced by the plaintiff following upon the incident in May, and indeed the plaintiff so submitted on appeal. Mr. Maxwell contended that the judge had assessed the plaintiff's pain and suffering according to all of the evidence and without attempting any division or deduction because there had been two incidents; and he sought to use this as a factor to support his argument that what was relevant under s.134AB was the ultimate impairment of the body function (in this case, the lower back), rather than the specific injury which occurred on 5 May.

Of course the trial judge will ordinarily be considering the plaintiff's condition as she describes it at trial. The court is particularly dependent upon the plaintiff's evidence in respect of pain and suffering, which in so many respects is subjective, and it is difficult to suppose in this case that consequences flowing from the first incident on 17 February were in some way excluded from consideration of pain and suffering, especially when the plaintiff's own case was that the first injury was of no real significance. The plaintiff's submission on appeal was that the judge had taken all pain and suffering into account but had reached the wrong conclusion in respect of the statutory threshhold in sub-s.(38)(c). And on that basis, counsel's argument that it was altogether unnecessary, and indeed inappropriate, for the judge to have analysed the plaintiff's condition immediately before and immediately after the second incident, is not relevant on this appeal. It cannot affect the result.

As to the judge's assessment of the pain and suffering consequences by reference to the statutory threshhold, it is unnecessary to describe the evidence in detail, for it is canvassed in her Honour's reasons for judgment. No complaint was made on appeal that the reasons were defective in that regard. Thus, after referring to the medical reports, which her Honour described (in paragraph [31]) as making it clear "that there is no nerve root involvement in the plaintiff's injury" and that the treatment she received was "minimal and there is no suggestion of the necessity for an operation or any further medical treatment", her Honour continued:-

"32. The Plaintiff, in her affidavit sworn on 13 November 2000, stated that prior to her injury she considered herself to be fit and well. She was able to look after the home by doing all the cooking, cleaning and washing, and was able to go out with her husband and friends to barbecues and parties, and take leisurely walks during the summer months along the local beaches and other places in the Geelong area. She is now restricted in what she does and has to be careful about the moment of time she spends lifting, standing and walking because doing too much of any of these causes an increase in her pain and causes a lot more trouble with her lower back. 33. From her evidence before the Court, however, a picture has emerged of a person who lives a generally normal existence with some back pain for which she sees a chiropractor. The Plaintiff is able, with some assistance, to bathe and look after her child and to do most of the housekeeping, drive a car and do the shopping. Video film showed the Plaintiff going about her life in a normal fashion with no signs of pain or restriction. She has the ability to squat, bend and strap her child in and carry the shopping. I accept that the videos are a general snapshot of the Plaintiff's life from 2000 to 2003, and shows a person who is leading a generally normal existence with some back pain. 34. Although she is left with a back condition that gives her pain on occasions and restricts some of her activities when judged by comparison with other cases in the range of possible impairments and losses of body functions her impairment cannot be fairly described as more than significant or marked or at least very considerable"

Although Mr. Maxwell submitted that in these passages the trial judge had reached the wrong conclusion as to pain and suffering consequences, we do not share that view. The video film was evidence of a person who shows no signs of pain and restriction and the plaintiff was cross examined about that to some effect. Moreover, the judge had the added advantage, of particular significance in relation to pain and suffering, of seeing the plaintiff give her evidence at trial. We cannot ignore that advantage. In all of the circumstances**,** we are not persuaded that there is any proper basis upon which this Court can intervene**.** This is not a case in which, notwithstanding the advantage enjoyed by the trial judge, we have come to the conclusion that the judge was wrong; quite the contrary. As Warren v. Coombes[52] makes clear, even a rehearing cannot require more of an appellate court, having regard to the plaintiff's own evidence and the trial judge's assessment of it.

Finally, we mention the claim by plaintiff's counsel that paragraph [34] in itself bespeaks error of principle. It will be observed that when speaking of the comparison with other cases and a range of possible impairments and losses of body functions, her Honour concluded that the plaintiff's "impairment" could not be "fairly described as more than significant or marked or at least very considerable". This was error, said Mr. Maxwell, because s.135AB(38)(b) and (c) require consideration of the consequences (as to pain and suffering and loss of earning capacity) and it is those consequences, not the impairment, that are to be adjudged very considerable or not (to put it shortly). If they satisfy the "very considerable" test, then the impairment is serious[53].

Strictly speaking, we suppose, given the actual wording of paragraph (c) and its requirement, in terms at least, that the relevant consequence (not the injury or impairment) satisfy the "very considerable" test, the reference in paragraph [34] should have been to consequence not impairment, as Mr. Maxwell submitted; but, as we read the reasons for judgment, when speaking of impairment in paragraph [34] her Honour was plainly referring to the pain and suffering consequence of the impairment. It is impossible to conclude otherwise, given the context. Paragraph [34] comes after a long dissertation about pain and suffering, in contrast to what follows concerning earning capacity; and at the end of it all, in the final sentence of the reasons, the judge sums up as to both pain and suffering and economic loss. If it matters, the same structure is seen in the reasons for judgment in Pausak, a judgment which was delivered by the same judge on the same day.

For these reasons, we see no basis upon which an appellate court should intervene in this matter. There was no error in paragraph [34] of the reasons for judgment and there is no other reason to suppose that the reasons were not correct in all aspects - and, with respect, we agree in them. Having reviewed the material, we are satisfied that the appeal should be dismissed.

In this case Kata Pausak is appealing against orders made in the County Court on 10 October 2003, dismissing her application for leave to bring a common law proceeding against her employer for injury allegedly sustained at work on 6 January 2000[54]. At the time, the plaintiff, who was born on 15 May 1948, was 51 years old, a married woman with four children. She had been working as a laundry hand for the one employer for nearly 20 years, performing heavy work for some years but more recently, due to a condition on her hands, dealing only with dry linen - sorting, folding and stacking sheets on shelves. On 6 January 2000, she was lifting a stack of about ten sheets, holding the stack from underneath, when she felt a knife-like pain in her lower back.

The plaintiff reported the incident to her employer and was referred to a doctor whom she saw on but the one occasion. On 8 January, she then went to see her usual doctor, Dr. Sachdev, a general practitioner, complaining of moderately severe pain in her low back and left buttock. The provisional clinical diagnosis was of acute lumbar back sprain and Dr. Sachdev ordered the plaintiff off work for about two weeks.

On 12 January, the plaintiff again consulted Dr. Sachdev, reporting moderately severe low back pain. She was referred for a CT scan but the scan did not reveal any evidence of a focal disc prolapse or other injury and the plaintiff was encouraged to return to work on a part-time basis, doing alternative duties with effect from 17 January.

Dr. Sachdev duly referred the plaintiff to Mr. McArthur, an orthopaedic surgeon, who saw the plaintiff first on 21 February. According to the plaintiff, Mr. McArthur told her that she had a disc problem at L4-5. In his report dated 27 June 2000, Mr. McArthur said that "a diagnosis was made of a disc lesion presumably at the L4-5 level" and that the plaintiff was advised to "rest at home over the next three months", to allow the back pain to settle.

On 14 April 2000, the plaintiff had what she described as "a severe flare up" of pain in her lower back, with pain also in her left leg. She said in her affidavit (sworn on 16 April 2002) that she "hadn't been doing anything in particular except trying to do the light duties provided for [her]" by the employer. She went back to Dr. Sachdev who referred her to Mr. McArthur for review. Both doctors, she said, told her to "continue having physiotherapy, hydrotherapy, doing the exercises that I had been shown and also to take medication to deal with the pain".

On 9 June 2000, Dr. Sachdev referred the plaintiff for an MRI scan and that scan, taken on 21 June, revealed minimal degenerative change at the L5/S1 level, but no evidence of focal disc prolapse. Not long afterwards, the plaintiff was referred to Mr. Brink, an orthopaedic surgeon, for a second opinion and the plaintiff saw him on 10 August 2000. According to her affidavit, Mr. Brink told her that she "had suffered a disc injury at L5/S1 and a joint injury in my lower back as well". She added:-

"Basically from then on I continued seeing Dr. Sachdev and followed his instructions to take medication and to have the type of treatment that I have already described".

Again according to her affidavit, from about August 2001 the plaintiff was having physiotherapy from one Dixon, which she described as "temporarily helpful and ... helping me deal with the more severe pain that I have had in my lower back and the flare ups that had become a common problem for me". In February 2002, she went to the Pain Clinic at the Geelong Hospital where she had a short session, and she possibly went again two months later, in April.

So far as work was concerned, the plaintiff described her history from 6 January 2000 thus (in her affidavit of 16 April 2002):-

"... I was off work for about 2 weeks initially at the direction of Dr. Sachdev. I commenced working about 2 hours per day after that, and then 3 hours and eventually 4 hours per day in the laundry on light duties doing light folding work, but I was struggling to keep up those hours and I had days off here and there. I have already described what happened to me on the 14th April, 2000. I think I was off for about one month at that stage before going back to work about 2 hours per day for a couple of months. My boss wanted me to do more hours, but I was finding it difficult to stand for more than 20 minutes or so before the pain increased. Eventually the pain I was having and the severity of it saw me stopping work altogether in about January 2001. I have not been able to return to work since then."

The plaintiff's case was that she was now altogether unemployable.

The originating motion, seeking leave to commence a common law proceeding against the employer, was filed on 11 December 2002 and the application came on for hearing before Judge Campton on 3 September 2003. The trial lasted some three days after which the judge reserved her decision. The application was dismissed, with reasons, on 10 October 2003 and notice of appeal was filed by the plaintiff some 13 days afterwards.

At the trial, the plaintiff herself gave further evidence orally and was cross-examined. She had already deposed to the consequences of the injury said to have occurred on 6 January 2000 and in particular the pain and suffering it entailed. In her oral evidence, she described how the incident had occurred, the nature and extent of the pain which she experienced, her attempts to return to work and the voluntary work that she now was doing at St. John of God Hospital in Geelong. As to her employability, the plaintiff tendered a report from Flexi Personnel dated 16 May 2003 and the defendants, two reports from Heron Assist dated 15 August. Just before this appeal was due for hearing last October, the plaintiff filed a further affidavit, which was sworn by her solicitor on 12 October 2004, exhibiting a further report from Flexi Personnel, but as no reference was made to the affidavit during argument and no attempt made to rely upon it, we say no more about it.

At trial, both sides tendered a number of medico-legal reports. The plaintiff relied upon medical reports from Dr. Sachdev and a copy of his clinical notes; from Mr. McArthur, her orthopaedic surgeon (and letters of his to Dr. Sachdev); from Mr. Brink, the other orthopaedic surgeon; from Dr. Muir, a physician to whom she was referred by Dr. Sachdev (together with a letter of Dr. Muir's to Dr. Sachdev); from Mr. Southby, a neurosurgeon; and from Mr. Huffam, another orthopaedic surgeon. There were treatment notification forms tendered, too, from the physiotherapist, Mr. Dixon. For their part, the defendants tendered medical reports from Dr. Miller, a general practitioner; from Mr. Moran, an orthopaedic surgeon; from Dr. Senadipathy, a psychiatrist; from Mr. Klug, a neurosurgeon; and from Dr. Wood, a rheumatologist. Of all the doctors, only Mr. Klug gave evidence orally; only he was cross examined.

In her careful and comprehensive reasons for judgment the judge considered all of the medico-legal reports, which were by no means in agreement. Some of the doctors opined that the plaintiff had damaged a disc with nerve involvement; others thought the symptoms were rather of musculo-ligamentous strain, with some functional overlay. For instance, on 7 August 2003, Mr. Klug reported his opinion that the symptoms still being experienced by the plaintiff in her low back, were "due to a degenerative disorder of her lumbar spine" and "functional factors"; and, although in cross examination the doctor accepted the possibility that Mr. Brink, Mr. McArthur and Mr. Huffam might be right that there was disc injury and nerve involvement, his own opinion was that the plaintiff had not suffered a disc protrusion or annular tear to the disc. Indeed, in October 2001, Dr. Sachdev himself had found the plaintiff's ongoing symptoms "a bit hard to explain" on a purely physical basis, opining then that the plaintiff seemed to be deeply entrenched in a chronic pain syndrome.

The relevant findings of the trial judge are contained in the following paragraphs of the reasons for judgment:-

"19. In this case the CT scan reported no abnormality. The MRI report referred to minor degenerative changes in the L5/S1 disc. Appearances were otherwise within normal limits. These findings are consistent with Mr. Klug's view that the Plaintiff suffered a minor abnormality of the L5/S1 disc. I accept the opinion of Mr. Klug, expressed in his second report dated 7th August 2003, and his evidence that, on the scale of injuries that he has seen over the years in his practice, from a purely physical point of view the injury is of a relatively mild degree. I find that there is support for Mr. Klug's diagnosis in the notes and reports of the Plaintiff's treating doctor, Dr. Sachdev. 20. In Dr. Sachdev's report of 16th October 2001, he expresses the view that `the Plaintiff seems to have a deeply entrenched chronic pain syndrome. She has attended a psychologist and also tendered a pain management clinic for management, but has not reported any significant benefit. The symptoms will eventually resolve, but it is very difficult to say how long it is going to take'. 21. In his report of 1st December 2000 Mr. Muir, a pain specialist, described the Plaintiff `as appearing mildly depressed and exhibiting multiple pain behaviours'. Mr Wood, a rheumatologist, stated in his report of 16 May 2001 that `there are clearly a number of examination findings that suggest a functional component. Perhaps there is a psychological basis to the severity of her pain and of course the other possibility would be a deliberate exaggeration. I cannot explain her pain and examination findings, however, on the basis of a physical injury or condition.'"

Noting that the defendants submitted that the plaintiff's failure to recover from the back injury could be explained in psychological terms rather than organic terms, the judge concluded thus:-

"26. In this case I accept the medical opinion that the injury to the Plaintiff's back, although permanent, is an injury of a relatively moderate degree. Although I accept the sincerity of the Plaintiff in her description of her back symptoms, I also accept that the Plaintiff is, as Mr. Sachdev described, `entrenched in a chronic pain syndrome'. This is a case which incorporates psychological and/or psychiatric symptoms which I cannot take into account in assessing whether or not the Plaintiff's impairment comes within the definition of a serious injury as defined in 134AB(37)(a)."

Thus, the judge accepted that the plaintiff had suffered injury to her back, though of "a relatively moderate degree", this no doubt reflecting her Honour's earlier acceptance of Mr. Klug's oral evidence that "from the purely physical point of view, the injury would be of a relatively mild degree"[55]. Significantly, her Honour also accepted the existence of psychological and/or psychiatric symptoms which, by virtue of s.134AB(38)(h), had to be excluded from account when considering "serious injury" as defined in paragraph (a) of the definition in sub-s.(37). And before us, the defendants pointed not only to the functional overlay to which the judge referred, but also to the degenerative condition to which Mr Klug had referred.

As we have seen, the judge characterised the back injury, though relatively moderate, as permanent. For the plaintiff, Mr. Maxwell contended that, though medical opinion varied as to the gravity of the impairment to the lower back, there was no doubting an impairment of a body function and sufficient medical opinion that such impairment was permanent[56]. He instanced Mr. Southby's report that the plaintiff was permanently incapacitated for tasks involving repeated twisting of the trunk, repeated bending, repeated heavy lifting or repeated jolting of the spinal column. He pointed, too, to the fact that an impairment was evident on each of the occasions when the plaintiff presented for medical opinion, so that the court should be satisfied that the impairment would probably persist into the foreseeable future. During argument, however, counsel accepted that the test for permanence was persistence through the foreseeable future, not simply into it, and the two are by no means the same.

For the defendants, Mr. Gorton submitted that a finding of permanence could not be justified if impairment was properly confined, as required, to impairment of organic origin. Further, he pointed to the two most recent medical opinions (of Mr. Huffam on 12 August and Mr. Klug on 7 August) which, though differing substantially on diagnosis, "made no reference at all to whether any impairment would be permanent"[57]. This last statement may not be altogether accurate, because Mr. Klug said in his report that "in view of the length of time since [the plaintiff] suffered her injury, there is unlikely to be any substantial improvement"[58]; nor are we clear that it was open to Mr. Gorton to challenge the judge's finding that the back injury was permanent without the defendants' having first filed notice of contention.

But, as we see it, the main difficulty in this case lies otherwise than in determining whether impairment (if organically based) was permanent. The judge appears to have found a mild degree of physical impairment, which was permanent, and there was certainly evidence to support that finding. Indeed, her Honour had the advantage of seeing in the witness box both the plaintiff and the doctor whose opinions she preferred and we would not be disposed to disagree with her conclusion on this appeal, given that there was significant difference of opinion between the experts and no clear basis for reaching a conclusion contrary to that of her Honour's.

The principal difficulty in the plaintiff's case lay in separating out the psychiatric or psychological from the physiological or organic when considering the consequences of such bodily impairment as existed. After expressing in paragraph [26] her conclusion that the plaintiff's injury was permanent, though an injury "of a relatively moderate degree", the judge proceeded to consider the consequences both as to pain and suffering and as to economic loss. As to economic loss, it was claimed that the plaintiff was simply unemployable, given the restrictions under which she would have to work. Her Honour considered, however, the physical capacity of the plaintiff for work and in that, we think that correct for the reasons we gave by way of introduction to these four appeals. In paragraph [35] of her reasons for judgment the judge said:-

"35. I accept the majority medical opinion that the Plaintiff is capable of performing light physical work that does not involve heavy lifting or forceful pushing or pulling activities. Further, I accept that the Plaintiff has the physical capacity, if not the motivation, to perform work of the nature mentioned in a Vocational Assessment prepared by Heron Assist. The jobs identified as being suitable for the Plaintiff are real jobs that exist in the market place. The onus is on the Plaintiff to prove an inability to undertake "suitable employment", alternative or further or additional employment. Taking into account the criteria set out in section 5 of the Act I am not satisfied that she has discharged this onus."

We agree, with respect, in this conclusion. On appeal the plaintiff contended that though Heron Assist had purported to identify other jobs for her, the medical evidence was not such as "to enable the court to determine the suitability of such employment"[59]. But that cannot advance the plaintiff's case, for the onus in that regard lies on her: s.134AB(19)(b).

"27. In her affidavit of 16 April 2002, the Plaintiff alleged that her life had been affected in many ways since suffering her injury. Her ability to do her housework properly has been affected. She still does housework but needs help from her husband and children. Her ability to do gardening has been affected. She used to be an active member of the Croatian community and attend dances which she cannot do any longer. In her evidence to the Court she claimed that she could no longer work because of the pain she suffered in her back after sitting or standing for 15 to 20 minutes. 28. On good days, however, the Plaintiff goes about her life in a normal fashion. She does the cooking, washing and housework. She can drive to the shopping centre and carry bags of shopping around. She is doing unpaid work for a couple of hours a week at the St John of God Hospital and hopes to increase her hours. The Plaintiff's treating Doctor encouraged her to be active and to return to work. After carefully considering all the evidence in this case I am not satisfied that the consequences to the Plaintiff of the impairment or loss of function of her back with respect to pain and suffering when judged in comparison with other cases in the range of possible impairments may be fairly described as more than significant or marked and as at least very considerable."

It is here that the presence of some functional overlay makes such a difference. Its existence must make the task of assessing economic consequences of impairment, if limited to what is organically based, the more difficult; but the problem in respect of pain and suffering is simply the greater again. The judge does not appear to have made any attempt to separate the organic from the psychiatric or psychological in origin, and no doubt that was because the evidence did not really permit it. Nor did plaintiff's counsel make any such attempt on appeal. Yet it is then very difficult indeed to see how the judge could have been satisfied that a given consequence, and in particular as to pain and suffering, answered the necessary threshold test in sub-s.(38)(c).

Of course it may be, as to pain and suffering in particular, that her Honour, wanting any basis in the evidence for separating out the organically based impairment from the other, was content to proceed without differentiation because even on that footing her Honour considered that the plaintiff failed. If so, we agree. But we agree also with Mr. Gorton that wanting the proper identification of pain and suffering attributable to impairment which is physical, or physiological in origin, the plaintiff cannot have established pain and suffering that answers the statutory description. To do so requires that any psychological or psychiatric overlay be stripped aside. Mr. Maxwell submitted that ultimately all pain and suffering lay in the mind, but that argument must be rejected by reason of sub-s.(38)(h).

Thus, the plaintiff fails on appeal as she failed below, and essentially because there was no sufficient disentangling of the impairment consequent upon the organic injury on 6 June 2000 and any functional overlay which followed and which, according to paragraph (h) of sub-s.(38), had to be put aside. Accordingly this appeal should be dismissed.

This appeal is against orders made by his Honour Judge Gebhardt in the County Court on 19 December 2003 when his Honour gave leave to Coral Gledhill under s.134AB of the Act to bring a common law proceeding against her employer for personal injury allegedly sustained in employment at St. Laurence Park. The originating motion was filed on 13 January 2003 and the application was heard in Geelong on 25 November 2003. A number of medical opinions were put in evidence - six, it would appear, on either side - but oral evidence was given only by the plaintiff herself, her general practitioner Dr. Blair-Holt and the plaintiff's treating orthopaedic surgeon, Mr. Brown. His Honour described Dr. Blair-Holt's evidence as "compelling", and "particularly so because he has been the plaintiff's general practitioner since 1985". His Honour delivered judgment on 19 December 2003, giving reasons for his decision, and the defendants now appeal. Notice of appeal was duly given in December 2003 but, as in Podolak, the defendants now seek to rely upon an amended notice of appeal. Absent any objection, they should have the necessary leave.

Born on 6 September 1950 (and so now aged in her fifties), the plaintiff is married, separated and has adult children. For eleven years or more she was working in "labouring jobs" with the same employer, substantially as a kitchen hand/cook. She now claims to have suffered injury to both wrists and hands with pain extending to the forearm, which she attributes to repetitive lifting and carrying of heavy containers, unpacking groceries from bulk containers, cutting hard vegetables, the cleaning of cool-rooms and the like.

As articulated in originating motion, the plaintiff was seeking leave to sue the employer -

"... in respect of personal injuries to both arms suffered during the course of her employment as a kitchen hand/cook with [the employer] on very frequent occasions between the 20th October 1999 and approximately 27th April 2001 in being required to perform unduly heavy lifting, twisting, straining and bending work, such injuries being caused by the negligence of [the employer]".

The particulars of injury given by the plaintiff mentioned both carpal tunnel syndrome affecting both right and left wrists and hands and, in respect of the right wrist, hand, forearm and elbow, reflex sympathetic dystrophy (which, we were told by counsel, also has the diagnostic labels of chronic pain syndrome, type 1, and regional pain syndrome). Amongst the doctors' reports, there was medical opinion that work was a significant contributing factor to carpal tunnel syndrome, but there was also medical opinion that it was not - although this difference of opinion seemed to lie rather in the general nature and aetiology of carpal tunnel syndrome than in the circumstances of the particular case.

As noted by the trial judge in his reasons for judgment, the possibility of carpal tunnel syndrome was first raised in Dr. Blair-Holt's notes in 1991, although, his Honour added, "it is clear that the symptoms giving rise to this suggestion had cleared by 1992" and between 1992 and 1999 there were no further entries in the doctor's notes concerning suggestive symptoms. According to her affidavit which was sworn on 5 June 2002, in July 1999 the plaintiff consulted Dr. Blair-Holt with muscular aches and pains, affecting "my neck, shoulders, elbows and hands, also my knees and ankles". The plaintiff added that "with the aid of the medication I recovered from those muscular aches and pains pretty quickly".

By January 2000, the plaintiff was suffering pain in wrists and hands, though worse in her right hand (according to her affidavit). This, she said in oral evidence, had been the case for "a few months" and she went back to Dr. Blair-Holt in January and he referred her to another for nerve conduction studies. The tests were performed in March and they evidenced right carpal tunnel syndrome. As Dr. Blair-Holt later reported:-

"On 13 January 2000 she presented with right hand pain suggestive of carpal tunnel syndrome and was referred for a nerve conduction test that was performed on 7 March. The study confirmed right carpal tunnel syndrome and was consistent with very mild left carpal tunnel syndrome."

It was then that Dr. Blair-Holt referred the plaintiff to the orthopaedic surgeon, Mr. Brown. For the purposes of this proceeding Mr. Brown provided a report, dated 12 March 2003, in which he said of the plaintiff at this first visit, on 26 May:-

"She said that she had some soreness in her right hand which had increased over the previous twelve months. She stated that she had not suffered an injury at work, but she had first noticed the pain at work and therefore had put in a Workcare claim. The pain was a shooting pain in the dorsum of her right hand, and it also went over the index middle metacarpal region. This pain was worse with heavy lifting, and the stirring in which she had to do in her job as a cook. Associated with this was numbness in the index and middle finger tips of the right hand. She could not particularly recall when this happened, although it did occur at least daily. She also complained of pins and needles at night in her index and middle finger, and this tended to wake her up at night."

After describing the results of his examination of the plaintiff, Mr. Brown referred to the nerve conduction tests conducted on 7 March and added:

"My assessment of this lady's pain was that it was not entirely consistent with a carpal tunnel syndrome. Check x-rays were obtained, and these were found to be normal. I felt that she had the problem of a chronic pain syndrome, and had been referred to Jane Abbot for help [for] this."

It was Mr. Brown himself who had referred the plaintiff to Ms Abbott, a physiotherapist, for treatment. Speaking of this treatment, the plaintiff said in her affidavit:-

"I had [it] for a while, but the treatment did not relieve the problems I was having in both hands which, by that stage, was a lot of pain in my right wrist and hand with pins and needles in my hand and fingers. I was suffering similar problems to my left hand, but they were not as severe."

Accordingly, in July or August 2000[60] the plaintiff returned to see Mr. Brown and on 14 September he operated on her right wrist in a procedure for right carpal tunnel release, performed upon her as a day patient. The surgeon thought the procedure successful. In his report of 12 March 2003, he said simply that the plaintiff "was reviewed post operatively without any particular problems".

The plaintiff was next reviewed by Mr. Brown on 2 January 2001, when (according to Mr. Brown's report) "she was complaining of burning around the wound which had not settled". Mr. Brown said he "felt that Mrs. Gledhill may be suffering from a chronic pain syndrome type 1 following her surgery" and added by way of conclusion:-

"The diagnosis of Mrs. Gledhill's condition is therefore not totally clear. Although she did have a right carpal tunnel syndrome, she also had features of a chronic pain syndrome. In addition, her symptoms appeared at work and were made worse particularly with her heavy lifting at work and stirring pots at work. I felt that her work as a cook did contribute to this."

Until the operation performed in September 2000, the plaintiff had continued to work. After it, she worked for another two weeks in November 2000 and then part-time on modified duties during the period from February to April 2001. She resigned on 27 April 2001 and thereafter lived with one of her daughters at Portarlington, taking primary responsibility for the care of her granddaughter, for which she received a carer's pension.

As defendants' counsel submitted on appeal, this application was not a simple one and when counsel on both sides took us to the medical reports some of the problems were highlighted. Thus, while there was consistency of diagnosis of carpal tunnel syndrome, the right limb being more severely affected than the left (Dr. Blair-Holt, for instance, described the left as "very mild"), there was difficulty in that carpal tunnel syndrome was, according to the medical opinion, something that evolved over a period of time (and the history given to the various doctors was of work over eleven or twelve years); Mr. Brown's report raised the question whether the operation he performed had relieved the plaintiff of any organic disturbance, some of the doctors opining that chronic pain syndrome was more significant to the plaintiff's complaints than any organic cause; and there was, of course, the division of opinion over whether work contributed at all to carpal tunnel syndrome. Unless work was a significant contributing factor there would have been no compensable injury, as required by s.134AB(1), and, by virtue of s.134AB(38)(h), the psychological or psychiatric consequences of physical injury had to be excluded from consideration (because the plaintiff was relying upon paragraph (a) of the definition of "serious injury" in subs.(37)).

In the result, Mr. Forrest identified "at least five controversies" arising for determination on the application. First, what was the injury, if any, sustained by the plaintiff in employment; when was that injury sustained; what, if any, of the consequences of the consequent impairment were organically based; was the impairment permanent; and were the consequences, either as to pain and suffering or economic loss or both, such as to answer the relevant description in s.134AB(38)(c) and, in relation to economic loss, were the tests specified in sub-paragraphs (e) to (g) of sub-s.(38) satisfied? To none of these questions did the evidence below provide a quick answer, yet the judge's reasons for granting leave to bring a common law proceeding were extremely brief and some at least of the foregoing issues were simply not addressed or, if addressed, not sufficiently so.

The point can be made by describing the structure and content of the reasons for judgement. In a single page his Honour dealt first, but briefly, with the commencement of the proceeding and, by reference to her own affidavit, the plaintiff's working life. Having identified the medical reports before him, his Honour then set out extracts (mostly very short) from six of them, mainly in respect of the injury allegedly sustained and whether it was work related, thereby exposing the difference in opinion already mentioned. The judge then said:-

"15. Carpal tunnel syndrome is an evolving complaint, what Dr Blair-Holt described as an `over-use injury'. He said that it was very difficult to categorise the onset point, when symptoms commenced."

After setting out some further extracts from the reports of Dr. Blair-Holt (dealing with when the plaintiff's symptoms emerged), of Dr. Sedal (in respect of the plaintiff's unsuitability for further work and "the relationship between carpal tunnel syndrome and manual work") and of Mr. Brown (opining that carpal tunnel syndrome is indeed work related), his Honour concluded:

"24. I am satisfied, on the balance of probabilities, that the plaintiff's carpal tunnel syndrome was caused in large measure by the nature of the employment she undertook."

The plaintiff's work was then described from her own affidavit, which, his Honour said "was confirmed in viva voce evidence".

At this point in the reasons for judgment, the judge quoted paragraphs (e), (f) and (g) of s.134AB(38) and inveighed against the complexities of the drafting which he described as "an assault upon common sense and reality". Eschewing any further discussion of the difficulties to which the evidence gave rise, his Honour wrapped up the case by concluding quite simply, in two brief paragraphs:-

"29. I accept that carpal tunnel syndrome is marked by progressive symptoms. Thus it presents a difficulty for me in establishing the point at which it may be said to have evolved. In reaching a conclusion as to this, I have given considerable weight to the period of time during which full-time work was undertaken and continued, to the medical evidence, to the reports to Ms Galven to the employer, and the evidence of the plaintiff. The denouncement [an obvious mistyping of "denouement"] occurs when a firm diagnosis is made after nerve conduction tests. I am satisfied that the injury occurs after 1999. 30. Notwithstanding the defendant's submissions, I am satisfied that the plaintiff's injury is serious and she is most unlikely to obtain further employment and certainly not to an income level as predicated by the defendant."

Quite clearly, paragraph [30] was altogether insufficient to deal with all matters outstanding, and we need mention only, by way of example, the success or otherwise of the operation performed by Mr. Brown, the disentangling of the organic from the psychological or psychiatric, the permanence of any organic impairment and, as to economic loss in particular, the possibility (raised by the reports in evidence) of retraining. Nothing at all was said in the reasons for judgment about pain and suffering.

As for paragraph [29], this was the judge's solution to the problem raised by the evolving nature of the physical condition relied upon by the plaintiff and her claim in the originating motion that, despite her long years of employment, injury was sustained in employment "between the 29th October 1999 and approximately 20th April 2001". On its face, s.134AB(1) attaches the date 29 October 1999 to relevant employment and hence no doubt the plaintiff's claim that the injury relied upon by her was referable to employment on or after that date. Yet how was that established by the evidence? The judge concluded that the injury was sustained "when a firm diagnosis was made after nerve conduction tests" and, as they were conducted on 7 March 2000, therefore "after 1999". Suffice it to say that on appeal neither side sought to support the conclusion that relevant injury, even if carpal tunnel syndrome only, occurred only when, or after, nerve conduction tests were conducted.

Reference has already been made to some of the plaintiff's own evidence about the onset of symptoms (swelling in her hands, a lot of pain and pins and needles): she told the Court that they developed over a period of "a few months" before her visit to Dr. Blair-Holt in January 2000, adding a little later: "I can't remember the exact date." She was cross examined about her stating on the claim-form for compensation (dated 30 May 2000) that she first became aware of her injury in September 1999, a statement for which she offered no particular explanation save that "It's hard remembering back". In the reasons for judgment, his Honour merely quoted a part of Dr. Blair-Holt's evidence in which he appeared to adopt, in effect, what Mr. Brown said in this regard in his report of 12 March 2003; namely, that on 26 May 2000 Mrs. Gledhill had complained of "soreness in her right hand which had increased over the previous twelve months", which, if correct served to pitch the starting point of her symptoms back to May 1999 or thereabouts. In his oral evidence, Dr. Blair-Holt had said quite frankly that he could not say whether work had been a contributing factor over one year, two years or five years. The evidence was that the nature of the plaintiff's employment had remained much the same over the years.

On the face of it, then, this appeal presented this Court with a number of problems, but fortunately most of them no longer need resolution. That is because of certain concessions that were made by counsel on both sides. First, it became common ground in the course of argument that carpal tunnel syndrome was a complaint that evolved over a period of time. Secondly, defendants' counsel accepted the judge's finding that in this instance work was a significant contributing factor, at least over the years; and, thirdly, plaintiff's counsel accepted that the plaintiff's symptoms of wrist pain appeared before October 1999. Indeed Mr. Maxwell very fairly conceded that, on the evidence as it stood, he was unable to relate the plaintiff's condition as it appeared to Dr. Blair-Holt in January 2000, or indeed as it appeared in the nerve conduction tests on 7 March 2000, to employment only on or after 20 October 1999.

On the footing of the concessions made, Mr. Forrest promptly submitted that the plaintiff was out of court; for as the matter now stood the evidence did not identify an injury (and in particular an injury giving rise to an impairment, an organic impairment) specifically arising out of or in the course of or due to the nature of employment on or after 20 October 1999_._ For this, counsel relied principally upon sub-s.(1) of s.134AB, submitting that a worker could have no claim for leave under sub-s.(16)(b) of s.134AB without having an injury to which the section as a whole applied, which meant, in the first place, a compensable injury as described in sub-s.(1). The plaintiff failed (counsel said) because, as was in effect conceded, the evidence did not distinguish injury linked to employment on or after 20 October 1999 from injury linked to employment before that date and accordingly did not identify the injury from which impairment was said to spring and in respect of which alone leave might be given under s.134AB to bring a common law proceeding.

This led to the argument about the ambit of s.134AB which we canvassed in our introductory remarks[61], when treating of the section generally. As mentioned there, Mr. Maxwell's answer was to turn to s.134AB(2) as a source of authority (to bring the common law proceeding) which, he argued, was essentially independent of sub-s.(1). He submitted that, on the proper construction of sub-s.(2), it was enough if the impairment (in this instance the impairment arising from the carpal tunnel syndrome), to which employment was a significant contributing factor, "arose on or after 20 October 1999" as stipulated for by that subsection. He contended that the impairment, as distinct from the underlying injury which was evolving, had arisen on or after 20 October, and that that was all that was required by s.134AB(2). For present purposes sub-s.(2) was sufficient to direct the worker to what followed, including sub-s.(16)(b), and there was no need to refer to sub-s.(1).

For the reasons we gave earlier, Mr. Maxwell's submission fails. In our opinion it was critical in this instance for the plaintiff to identify, for the purposes of sub-s.(1), compensable injury that was referable to employment on or after 20 October 1999 but not to employment before it. Without that identification, the plaintiff could not establish how far and to what extent s.134AB applied to her case and accordingly could not establish to what specific injury the leave provision in subs.(16)(b) might apply - which meant in turn a failure to establish just what was the injury that had to satisfy the description "serious injury" if leave was to be given. As earlier noted, so much appears to been accepted by the plaintiff in her originating motion, for she was seeking there, in so many words, leave to bring a proceeding against her employer for "personal injuries suffered during the course of her employment ... on very frequent occasions between the 20th October 1999 and approximately 27th April 2001" (my emphasis). Unfortunately for the plaintiff, the evidence simply failed to establish just what those injuries were.

Accordingly, and without reference to the other difficulties confronting the plaintiff on her application for leave to bring a common law proceeding, it is clear that the plaintiff should have failed below. We would therefore allow the appeal, set aside the orders made and substitute instead an order dismissing the application. We would only add that had the matter not been so clear, we would have considered remitting the application for further hearing and determination because the reasons for judgment at first instance were so inadequate, there being an obvious failure in that regard to comply with the statutory injunction in s.134AE which is surely addressed primarily to the trial court.

It is appropriate now that we should say something by way of general conclusion. First, although intended as test cases, these four appeals were not altogether suitable as such. Three of them involved a similar injury, a back injury to one who was doing repetitive tasks of much the same sort from day to day. Moreover, in the two appeals by the defendants (against the success of the worker below), the judgments under appeal were plainly inadequate, even if we were able to dispose of one because of a fatal flaw in the plaintiff's case. As to the other two appeals, where the plaintiff failed below, the judgments were all too plainly not only sufficient but right. As it turned out, therefore, all four appeals were capable of being determined without much consideration of the wider issues raised by s.134AB.

None the less we have seen enough for us to suggest that the overall scheme now found in the statute is scarcely satisfactory. In a few months, it will be twenty years since the Accident Compensation Act was passed and during that time we have had an extraordinary number of legislative amendments, many of them piecemeal and directed to particular issues of the day rather than some wider and more general review. That has been so in relation to (inter alia) the possibility of common law proceedings against the employer for damages for work-related injury. As already mentioned, such proceedings are now divided by the statute into more than four categories according to the employment to which they are linked: employment before the appointed day; employment between the appointed day and 12 November 1997 (with a subset in respect of injury arising on or after 1 December 1992); employment between 12 November 1997 and 20 October 1999 and now employment on or after 20 October 1999. A different regime is spelled out for each which makes the overall picture very confused - and confusing.

Such a complicated system of different statutory regimes to deal with a common problem is confusing for both workers and employers. It is certainly confusing for the Authority, as witness the number of cases that are brought in order to obtain curial guidance. And it is confusing for the courts which, at the end of the day, must rule upon disputes arising out of the complexities of the individual regimes, as well as the overall scheme. Furthermore, as can be seen in the appeal of Gledhill, the regime which is found in s.134AB can perhaps be productive of hardship.

Mrs. Gledhill discovered early in the year 2000 that she was suffering from carpal tunnel syndrome, yet she could not bring herself within s.134AB because the evidence led upon her application for leave to commence a proceeding against the employer did not establish how far the injury relied upon was linked to employment on or after 20 October 1999 as distinct from employment before that date. Such an enquiry might be thought somewhat artificial: certainly it could be difficult for doctors, particularly those consulted late in the piece, to express a reliable opinion on such an issue. In the foregoing, we have opined that s.134AB(1) requires that the overall injury, when evolving over a period of time spanning the critical date, be distributed, as it were, between employment on or after 20 October 1999 and employment before that date; but even if we were wrong and it was sufficient to satisfy s.134AB(1) that the injury relied upon (in that case, carpal tunnel syndrome) was in part linked to employment on or after 20 October 1999 (albeit that part of it was referable to employment before that date), the plaintiff might well be no better off because, under s.134AB(2) she is permitted to sue only if the injury "is a serious injury and arose on or after 20 October 1999". Either way, then, it may be that a plaintiff must establish the extent to which the injury relied upon was linked to employment on or after 20 October 1999 as distinct from employment before that date.

We mention this, first because it seems to us that in that regard the statute might well be viewed as unsatisfactory, serving to raise what might prove to be an insuperable hurdle if medical opinion cannot resolve the factual issue. Secondly, if the legislation were to be reconsidered, might it not be sufficient, if injury (or indeed impairment) must still be linked to employment on or after a critical date, to require only that the relevant incapacity become known to the plaintiff on or after the date in question? This is of course a matter for Parliament, not the courts, and we do no more than raise the possibility for consideration.

Finally, we mention one or two matters of procedure. We have concluded that, even in the light of s.134AD, it is not correct to say that error is not relevant on an appeal under s.134AD. We therefore take leave to state what obviously follows, lest doubt remain. A notice of appeal in cases such as these should, as hitherto, serve to identify (as grounds of appeal) any errors relied upon, even if, in standard form, some of those errors are said to be that a specific finding is against the evidence or the weight of the evidence in a particular respect. Moreover, although more than once upon the hearing of these appeals counsel sought to raise a new point without warning, it should be clearly understood that the notice of appeal is the proper vehicle for an appellant's giving notice of all points to be argued; and, if a respondent seeks to maintain the decision under appeal otherwise than for a reason given by the judge at first instance, notice of contention will ordinarily be called for. It is important that an appeal be conducted in an orderly fashion, and not by way of ambushing one's opponent. This is to say no more than that the usual rules will apply in relation to such appeals even if, in obedience to s.134AD, it is no longer relevant to allege error of the sort upon which an appeal depended when brought from the exercise of discretion.

[1] Hansard, Legislative Assembly, 13 April 2000, at p.1001.

[2] By Act No. 95/2003 s.3(8) the words "if employment of that nature was a significant contributing factor, and" were omitted as from 3 December 2003, but that was well after the injuries relied upon by the plaintiffs in these four cases.

[3] Contrast the position that existed when Hanrahan v. Davis [1997] 1 V.R. 285 was decided.

[4] Although the drafting of sub-s.(4) is not altogether clear.

[8] See paragraph 2 above and compare s.135A(19).

[13] The wording is derived directly from the majority judgment in Humphries v. Poljak [1992] VicRp 58; [1992] 2 V.R. 129 at 140.

[15] Including any physical consequences of the mental or behavioural disturbance or disorder: see sub-s.(38)(i).

[16] Wording which is again derived directly from the majority judgment in Humphries v. Poljak.

[17] Although paragraph (e) makes special provision for workers under 26 years of age and in Stojanovski the plaintiff was only 25 at the time of the incidents relied upon, that fact was not mentioned in argument. The special provision had no significance because the plaintiff abandoned on appeal any reliance upon economic loss.

[18] In Reprint Nos. 11, 12 and 13, the notation "(i)" intrudes at this point, apparently by a typesetter's error. It is ignored above.

[20] As pointed out in Humphries v. Poljak.

[21] Contrast the specific reference in sub-s.(38)(e)(ii) to the 40% loss of income "continuing permanently" and the absence of any such express reference in relation to pain and suffering.

[24] Compare Dodoro v. Knighting [2004] VSCA 217.

[26] [1998] 3 V.R. 833 at 841 per Brooking, J.A., at 858 per Phillips, J.A. and at 860 per Charles, J.A.

[29] On an appeal against the exercise of discretion it is not enough to differ in opinion as to the result; the exercise of the discretion below must be shown to have miscarried: for example, if the judge at first instance acts upon a wrong principle, allows extraneous or irrelevant matters to guide him, mistakes the facts or does not take into account some material consideration, or if the result is so unreasonable or so plainly unjust that the appellate court can infer relevant error though not otherwise identified specifically. Only then can the appellate court intervene: House v. R. 55 C.L.R. at 505.

[41] See further what was said in Mobilio by Brooking, J.A. at 836-7.

[42] Until the position was settled last December in Dodoro v. Knighting [2004] VSCA 217.

[43] See [2004] VSCA 217 at [1] per Winneke, P.

[45] The plaintiff herself so described the event in her affidavit of 1 August 2002.

[46] As to which see Richards v. Wylie [2000] VSCA 50; (2000) 1 V.R. 79 at 86 per Winneke, P.

[48] Mobilio v. Balliotis [1998] 3 V.R. 833 at 836.

[53] Contrast what was actually said by Crockett and Southwell, JJ. in Humphries v. Poljak [1992] VicRp 58; [1992] 2 V.R. 129 at 140 where it was the injury which was to be compared with other cases in a range of possible impairments or losses to see if it could be fairly described at least as `very considerable' etc, albeit by reference to consequences as to pain and suffering and economic loss.

[54] Although the plaintiff's Originating Motion speaks of suing the employer for injuries to back and spine occurring during the course of employment from 20 October 1999 to 6 January 2000, the Outline of Argument is focussed on the incident occurring on 6 January, and nothing more: see Plaintiff's Outline para. 32.

[56] Plaintiff's Outline of Argument paras.33-45, especially 39.

[57] Defendants' Outline of Argument, para. 16.

[59] Plaintiff's Outline of Argument para. 47.4

[60] In her affidavit the plaintiff said she went back to Mr. Brown on 10 July 2000 but Mr. Brown in his report said that she was reviewed on 4 August. The difference is of no consequence.

Accident Compensation (Miscellaneous Amendment) Act 1997

Compensation Act 1985

Accident Compensation (Miscellaneous Amendment) Act 1997

Compensation Act 1985

"This effectively restores the task to be undertaken by a court of appeal to the principles established by Humphries v. Poljak [1992] VicRp 58; [1992] 2 VR 129 at 140. There the Court followed the dicta of the majority as stated by the Full Court of the High Court in Warren v. Coombes [1979] HCA 9; (1979) 142 C.L.R. 531 p.552, `the duty of the appellate court is to decide the case - the facts as well as the law - for itself. In doing so it must recognise the advantages enjoyed by the judge who conducted the trial'."

At a glance

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