Cook v Karden Disability Support Foundation [2016] VSCA 263

1 In December 2008, the applicant commenced employment with the respondent as a part-time casual disability support worker caring for disabled people.

2 By a County Court writ, issued on 20 October 2015, the applicant, pursuant to s 134AB of the Accident Compensation Act 1985 ('the Act'), sought 'pain and suffering damages'[1] from the respondent in respect of incidents that she alleged occurred in the course of her employment on 28 March 2009 and 9 October 2009. In respect of the incident alleged to have occurred on 28 March 2009, the applicant claimed that she suffered injury to her neck and right shoulder while trying to transfer an intellectually disabled person from a wheelchair to a bed. In respect of the incident alleged to have occurred on 9 October 2009, the applicant claimed that she suffered injury to her neck and shoulder as a result of lifting a wheelchair into the boot of a motor vehicle.

3 The applicant's proceeding was heard over nine days in August 2016 before Judge Brookes and a jury. The applicant claimed that the injuries she sustained in March 2009 and October 2009 were caused by the negligence of the respondent and also by breaches of statutory duties owed by it pursuant to the Occupational Health and Safety Regulations 2007. The respondent denied that it was negligent or in breach of any statutory duty, and alleged that the applicant was guilty of contributory negligence in respect of each incident. Causation and the nature and extent of the applicant's injuries were also issues at trial.

4 On 16 August 2016, the jury returned its verdict by giving the following answers to the following questions:

1. Was there negligence on the part of the defendant in March 2009 which was a cause of the plaintiff's injury, loss and damage?---No.
2. Was there a breach of statutory duty or regulation on the part of the defendant in March 2009 which was a cause of the plaintiff's injury, loss and damage?---No.
3. Was there negligence on the part of the defendant in October 2009 which was a cause of the plaintiff's injury, loss and damage?---Yes.
4. Was there a breach of statutory duty or regulations on the part of the defendant in October 2009 which was a cause of the plaintiff's injury, loss and damage?---Yes.
5. In what amount do you assess the plaintiff's pain and suffering damages?---$50,000.

1. Was there any contributory negligence on the part of the plaintiff in October 2009 which was a cause of the plaintiff's injury, loss and damage?---Yes.
2. In what proportion is it just and equitable, expressed in percentages, do you apportion to the negligence of the plaintiff (sic)?---Plaintiff 60%; Defendant 40%.[2]

5 Section 134AB(22) of the Act provided that if the total pain and suffering damages assessed, before the reduction (if any) for contributory negligence, was less than $58,100,[3] a court could not award pain and suffering damages. As a result of the operation of s 134AB(22), the applicant was not entitled to an award of damages against the respondent, judgment was entered for the respondent, and the applicant was ordered to pay the respondent's costs of the proceeding below.

6 The applicant seeks leave to appeal and (if leave is granted) to appeal the judgment entered against her at first instance. There is no appeal in respect of the jury's answers to the questions concerning the March 2009 incident. The application for leave to appeal (and appeal) is limited to one in respect of the October 2009 incident. The applicant's proposed grounds of appeal are as follows:

1. The verdict of the jury assessing damages for pain, suffering and loss of enjoyment of life in the sum of $50,000 was manifestly inadequate, unreasonable and contrary to the evidence.
2. His Honour erred in allowing the question of whether the plaintiff was guilty of contributory negligence because she failed to ring the defendant's helpline when it became clear that her client could not assist with placing the wheelchair in the car boot to be left to the jury.
3. His Honour erred in allowing the question of whether the plaintiff was guilty of contributory negligence because she failed to report the first injury to the defendant to be left to the jury.
4. It was not open to the jury to find that the plaintiff was guilty of contributory negligence.
5. His Honour erred in ruling that the plaintiff's application non obstante with respect to contributory negligence be dismissed.
6. The verdict of the jury that there was 60% contributory negligence on the part of the plaintiff which was a cause of her injury was manifestly excessive, unreasonable and contrary to the evidence.
7. His Honour erred in refusing to admit into evidence the 'Illness, Injury, Near Miss, Accident Form' dated 29 March 2009.
8. His Honour erred in directing the jury that it was common ground that the plaintiff did not report the first injury to the defendant.

7 In oral argument, counsel for the applicant conceded (correctly in our view) that if the applicant did not succeed with respect to ground 1 then there was no basis for a grant of leave in respect of grounds 2 to 8. This concession was made because, if the applicant was unable to persuade this Court that the assessment of her damages in respect of the October 2009 incident was manifestly inadequate then, irrespective of any finding of contributory negligence, the amount assessed by the jury ($50,000) fell below the threshold at which the applicant became entitled to an award of damages ($58,100) and the applicant would be unable to set aside the judgment entered against her. That is, if the applicant failed on ground 1, but successfully set aside the finding of contributory negligence, the applicant accepted that she would still not be entitled to any judgment against the respondent.

8 At trial, the applicant gave evidence. The applicant called her niece, Melissa Cook, who gave evidence of her observations of the applicant after she became aware that the applicant had suffered injury. Additionally, the applicant called her general practitioner, Dr Mark Churcher, and two orthopaedic surgeons, Mr William Huffam and Mr Gerald Moran, who had examined her at the request of her solicitors. The applicant also read into evidence reports from a pain management physician (Dr Brian Lovell), a neurosurgeon (Ms Caroline Tan) and another orthopaedic surgeon (Mr Douglas Gardiner).

9 The respondent called evidence from its chief executive officer, Ms Rachel Jones, and one of its former employees, Mr Anthony Arthur. It also called evidence from an orthopaedic surgeon, Mr Rodney Simm, who had examined the applicant at the respondent's solicitor's request on 3 August 2016.

10 Various documents were tendered at trial, including an orientation information booklet, excerpts from the Occupational Health and Safety Regulations 2007,[4] a work safe document headed 'Handling Wheelchairs in and Out of Vehicles', an incident report form in relation to the October 2009 incident (Exhibit E) and a 'Staff Contact Note' (Exhibit J).

11 No evidence was called or tendered from any psychiatrist or psychologist. When opening the applicant's case at trial, senior counsel for the applicant told the jury that the applicant 'takes an antidepressant'. He then said that the applicant had had depression 'on an off over the years', but that 'this [was] not a case where she seeks damages for psychiatric injury or for her depression'. That said, as a result of evidence given by Mr Simm for the respondent (about which we will say more below), in final address, the applicant submitted, without objection, that she was entitled to damages for a chronic pain syndrome if the jury concluded that either of the incidents (March or October 2009) had caused a chronic pain syndrome from which the applicant now suffered.

12 At trial, the respondent put its case of contributory negligence against the applicant in respect of the second incident on two bases. First, it was said that the applicant was guilty of contributory negligence by failing to call an on-call number when it became necessary for her to lift the wheelchair into the boot of the motor vehicle. Secondly, it was said that the applicant was guilty of contributory negligence in 'failing to advise the respondent of the earlier incident in March 2009 in which she had experienced pain in her neck and shoulder'. Following the conclusion of the evidence, the applicant applied to the judge to take contributory negligence away from the jury in relation to the October incident. The judge refused that application, but reserved the applicant leave to move non obstante if the jury returned a verdict of contributory negligence in relation to that incident. After the jury returned its verdict, the judge rejected the applicant's non obstante application, and entered judgment for the respondent.

13 The applicant was born on 9 September 1968. She was 41 years of age when she suffered injury in October 2009. She was 47 years of age at the time of trial. The applicant completed her schooling to a year 8 level. At the time of trial, the applicant had three adult children, a daughter who was 12 years of age and a three and a half year old grandson.

14 In late December 2008, the applicant commenced employment with the respondent as a part-time casual disability support worker. Prior to commencing her employment, the applicant had attended her general practitioner (Dr Churcher) on two occasions in respect of right shoulder and neck pain. On 12 May 2005, the applicant attended Dr Churcher complaining of right shoulder pain as a result of a direct blow to her shoulder. On 2 June 2008, Dr Churcher noted a history of pain in the neck for three or four weeks.

15 The applicant gave evidence that on 28 March 2009, she felt pain in her right shoulder, and thought she had pulled a muscle. This incident occurred as the applicant was transferring an intellectually disabled person from a wheelchair to a bed. The applicant gave evidence that she reported her injury to Ms Jones, who asked her to fill in an incident report. The applicant said that she completed an incident report, but that she 'screwed it up' and did not submit it because she was concerned for her job. At trial, the applicant sought to tender the incident report that she said she had completed as evidence supportive of the fact that she reported her injury to Ms Jones. The report was not in fact admitted into evidence. The non-admission of the report is the subject of ground 7, about which we will say more below.

16 The applicant continued working after the March 2009 incident. There was no alteration in the applicant's duties between the March 2009 incident and the October 2009 incident. The applicant attended Dr Churcher's practice on a number of occasions between March and October 2009. The only occasion, however, on which the applicant made a complaint of neck pain was at a consultation on 6 August 2009.

17 On 9 October 2009, the applicant was caring for a Mr King, who suffered from breathing problems, heart problems and spinal problems. Mr King could not walk unaided and relied on the use of a wheelchair. The applicant and Mr King were at a shopping centre. They walked past a shop from which strong fumes were emanating. Mr King developed breathing problems and needed to leave the premises. They went back to the car. Mr King got into the car and then told the applicant that she would need to put the wheelchair into the boot on her own. On previous occasions, Mr King had usually assisted the applicant in lifting his wheelchair into the boot of the car. On this occasion, however, Mr King was breathless, and was unable to assist. As the applicant was lifting the wheelchair into the car she felt pain in her neck and right shoulder.

18 On 12 October 2009, the applicant completed an incident report form (Exhibit E). On the same day, the applicant attended Dr Churcher with a history that four days earlier she was lifting a wheelchair into a car when she felt a niggling pain in her right trapezius 'just at the base of her right neck' which had then worsened throughout the day.

19 The applicant continued in her employment with the respondent, and was still employed by the respondent at the time of trial. She gave evidence, however, that her duties had been modified and that heavy lifting and other heavier aspects of her work were no longer performed by her. (It was argued before this Court that the applicant's duties were only modified after she obtained a doctor's certificate recommending that she be placed on light duties.) The applicant gave evidence that she avoided sweeping, mopping and vacuuming, because these activities could aggravate her neck and shoulder pain.

20 At the time of trial, the applicant was attending Dr Churcher on a monthly basis. She said that following the October 2009 incident she had had three injections into her neck which had not provided her with pain relief. She described the pain in her neck and shoulder as sharp, with an ache down the arm and numbness in the fingers. The pain does not go away but varies from time to time. The pain has required strong painkilling medication. The applicant said that this medication 'dulls the pain a bit'. When asked how the pain made her feel, she said 'horrible, upset, frustrated'.

21 The applicant gave evidence of suffering from stomach pain, caused by painkilling medication that she used to take. This stomach pain had caused the applicant, on one occasion, to be admitted to hospital and placed on a drip for a few hours until the pain subsided.

22 The applicant gave evidence that her neck and shoulder pain had impacted on her sex life and her ability to engage in 'active things like going to the park with [her grandson]'. The applicant gave evidence of requiring two weeks off work in July 2016, because of increased pain, during which time she had been unable to care for her grandson.

23 The applicant gave evidence that before suffering injury she was working 15 hours a week, but that presently she was only able to work 11 and a half hours a week.

24 The reports of Dr Lovell were read into evidence. Dr Lovell is a pain management physician who treated the applicant in 2011 and 2012 with injections into the applicant's neck. These were largely unsuccessful, and ultimately Dr Lovell concluded that there was no further treatment he could offer the applicant. Of note, Dr Lovell took a history from the applicant in 2011:

[S]he had the original problem after transferring a patient back in March 2009 but did not report the incident at that stage. Her pain in the right side of the neck and shoulder was grumbling along at 4-5 out of 10 over the year until September when she lifted a wheelchair into a boot. The pain was very severe for some weeks after this, and has settled down once again to five out of 10. She was on light duties for most of last year [2010] and early this year but is now back on full duties but with the freedom to use her own discretion. The pain is constant in the base of the neck and spreading up as well as over the saddle of [the] shoulder and to some degree into the scapula. She does have some sub-occipital pain most days lasting for some hours at a time in the form of headache. The most consistent pain is the right side of neck, shoulder, girdle pain. It is a deep dull ache average five out of 10, worse with sitting for any more than 30 minutes, standing more than 10 minutes and not so much aggravated by the walk she does every second day for about two kilometres.

25 Two reports of Ms Tan were read into evidence. Ms Tan is a neurosurgeon who first saw the applicant in June 2013. Ms Tan saw the applicant at the request of Dr Churcher. The applicant consulted Ms Tan on various dates between June 2013 and February 2014. Ms Tan's evidence was that the diagnosis and history of the applicant's condition was not clear. She said that there was some evidence for cervical facet joint referred pain in the scapula area. In addition, Ms Tan thought that the applicant possibly had a right C6 radiculopathy 'plus or minus acquired intermittent thoracic outlet syndrome'. Ms Tan expressed the opinion that the relationship of this injury or condition to the applicant's employment was plausible, but she then said that she '[did] not know enough detail about the alleged inciting incident (scil, incidents) to comment further'.

26 Dr Churcher was the applicant's general practitioner. He had been her general practitioner since the mid-1990s. He gave evidence that he never had any reason to doubt the applicant's histories. He diagnosed her as suffering from a 'C5-6 disc and facet degenerative disease'. In cross-examination, he agreed that the applicant's degenerative changes were 'relatively mild'. When asked what had caused the applicant's current symptoms, Dr Churcher said:

In this case, my feeling is that the injuries that occurred in 2009 at work brought the level of symptoms for that disc [C5-6] from being ... mostly below or subclinical to being aware (sic), so that it was causing a significant level of signals going up to [her] brain to say that that area is painful and painful all the time.

27 Dr Churcher gave evidence that he considered that the applicant's report of neck and shoulder pain, in June 2008, was evidence of 'a degree of episodic irritation at that time'. In cross-examination, Dr Churcher said that the condition the applicant was suffering from at the time of trial was the same as the condition from which she suffered in June 2008. In re-examination, Dr Churcher said that the severity of symptoms in June 2008 was, however, less than the current symptoms.

28 Mr Huffam was an orthopaedic surgeon who examined the applicant at the request of the applicant's solicitors. Mr Huffam expressed the opinion that the March 2009 incident appeared to be of significance. Mr Huffam noted that, after the October 2009 incident, the applicant had a lot of pain and some time off work. Mr Huffam said that the applicant's pains were of mixed origins:

(i) aggravation of non-symptomatic degenerative neck condition;

(iii) rotator cuff dysfunction of the right shoulder with moderate limitation of movement of the shoulder.

He said that these injuries were compatible with the events described by the applicant. He said the applicant was experiencing considerably more pain than would be expected from any 'natural condition'. He said that the pre-existing degenerative changes may have occurred or developed over many years, consistently with the applicant suffering transient episodes of neck pain in the years before 2009.

29 Mr Moran was an orthopaedic surgeon who had also examined the applicant at the applicant's solicitors' request. He gave evidence that the applicant likely aggravated C5-6 degenerative changes in the March and October 2009 incidents. He also said that it was likely that the applicant would have eventually experienced neck pain and restriction of neck movement in spite of the incidents in 2009, but said that it was not possible to say when that would have occurred.

30 A report of Mr Gardiner was read into evidence. Mr Gardiner was an orthopaedic surgeon who saw the applicant, at the request of her solicitors, in January 2016. Mr Gardiner expressed the opinion that the applicant's diagnosis was of an exacerbation of a C5-6 disc protrusion, causing compromise of the right intervertebral foramina and exacerbation of disc degeneration at C5-6. He said that these injuries were caused by the two incidents that occurred at work in 2009. Mr Gardiner expressed the opinion that despite the applicant's attempts to return to a useful occupation, her ability to accomplish this was significantly inhibited by the severity of her symptoms, and that it was likely that she would only be able to engage in restricted duties for restricted hours into the foreseeable future.

31 The applicant was examined on behalf of the respondent by Mr Rodney Simm. Mr Simm was an orthopaedic surgeon who examined the applicant shortly before trial. He had available to him the results of an MRI of the cervical spine taken in May 2013. This showed only mild degenerative changes to the cervical spine. On testing, Mr Simm noted variable ranges of movements of the applicant's neck and shoulder, which he said indicated that there were non-organic factors influencing her physical presentation. When asked whether the applicant was reliable in terms of her complaints of pain, Mr Simm said:

I wouldn't say she's not reliable. She may be entirely genuine and one hundred per cent reliable, but the clinical presentation, I believe, has been modified by non-organic and psychological factors such that she presents as somebody who is not suffering from a physical condition but somebody who is suffering from chronic and apparently quite disabling pain and disability as a result of her chronic pain. I'm not saying that, you know, she's not genuine in any way.

32 As to the effects of the October 2009 incident, and whether it was a cause of the applicant's current problems, Mr Simm said:

It is quite possible as a result of lifting the wheelchair into the back of the car - of a car - there was a strain on the shoulder girdle musculature which attaches to the cervical spine and this exacerbated symptoms from the underlying degenerative pathology. From that time onwards, she has had chronic symptoms. These symptoms could relate in part to ongoing organically based pain from the mild underlying C5-6 degeneration, but the clinical course is essentially that of a chronic pain syndrome. Chronic pain conditions are commonly associated with a history of a depressive illness. Her psychological condition may be responsible for symptom and illness amplification. This would need to be further evaluated by a psychiatrist. The relatively mild changes on the MRI scan would not in themselves be an indication to restrict her physical activities in any way. Patients with much more advanced changes undertake full and strenuous activity without symptoms. However, patients with this pathology may experience pain with prolonged static postures of the head and neck and with repeated and heavy lifting. It is therefore possible she has some organically based constraints due to the constitutional degenerative pathology. Considering her clinical course changed substantially after the second work-related incident, it is not possible to exclude that incident as a minor contributing factor to the clinical course of her constitutional degenerative cervical pathology. This incident, in isolation, which occurred almost seven years ago, could not in itself possibly explain the subsequent clinical course and her current clinical presentation.

...

[T]he normal clinical course of this extremely common condition in routine orthopaedics, pain from the cervical spine which we usually attribute to degenerative changes, is one of the most common presenting complaints and people run a fairly typical course and they have flare-ups of pain and they have periods of relative freedom or complete freedom from pain. Some go back to completely normal activities and some are always a little restricted. But constant, severe, unremitting pain is not organically based pain, it's the pain of a chronic pain syndrome. So this incident at work had the potential in a compromised cervical intervertebral disc to [do] damage to the disc and it may have contributed to an organic condition of the neck, which one would expect to be one of relapsing symptoms that at time may have been quite troublesome. But the clinical course in this case wasn't the typical course of symptomatic degenerative cervical disease, it was the clinical course of a chronic pain syndrome with pain levels at an extremely high level, constant pain, no fluctuation and with physical signs that were not consistent with a physical condition of the neck. So this incident may have triggered the pain syndrome and may have influenced the subsequent clinical course but I don't think you could explain a lifting incident seven years ago or thereabouts, to be the cause of somebody suffering eight or nine out of pain constantly seven years later, it doesn't - it doesn't make any sense.[5]

33 In effect, Mr Simm rejected the view that the incident concerning the lifting of the wheelchair into the back of the car was a cause of all the symptoms the applicant later experienced, although it may have contributed to some of those symptoms.

Ground 1: were the damages assessed by the jury manifestly inadequate?

34 In determining whether the amount awarded by the jury for pain and suffering damages was manifestly inadequate, unreasonable or contrary to the evidence, this Court is required to have regard to the evidence most favourable to the respondent.[6]

35 In final address, the applicant submitted to the jury that the jury should award an amount of compensation in the range $180,000 to $200,000. The respondent, however, submitted that a figure in this range would be 'more than double what would be an appropriate figure'.

36 In argument in this Court, the applicant contended that the trial was, in reality, mainly about liability and contributory negligence. It was contended by the applicant that there was little dispute between the parties about the extent and seriousness of the applicant's injury and her complaints of pain. Moreover, it was said that there was no frank challenge to the applicant's credibility. Nobody, it was submitted, contended that the applicant was not genuine in her complaints.

37 While it was not squarely put to the applicant that she was untruthful, an examination of the applicant's cross-examination discloses that there were a number of areas in which it was suggested that the applicant's evidence was not entirely reliable. For example, the applicant was challenged about her history to Mr Simm that she had not suffered any injury to her neck or shoulder prior to March 2009.

38 At trial, the applicant's counsel submitted to the jury that it was not necessary to differentiate between injuries that might have been suffered in March 2009 and injuries that might have been suffered in October 2009. It was put that the jury was entitled to conclude that both the March 2009 incident and the October 2009 incident were each a cause of all of the symptoms and disability from which the applicant suffered after October 2009. But the jury was not bound to accept this argument.

39 In Calin, a case involving a plaintiff who was unsuccessful in her claim for damages before a jury, Brennan J (as his Honour then was) said:

In this case ... it would be impossible to hold that a verdict for the defendant was unreasonable unless, on the whole of the evidence, the plaintiff is entitled to a verdict in her favour. But, where the burden of proof is on a party who fails before a jury, the verdict cannot be set aside and a contrary verdict entered unless the jury could do nothing else but find in accordance with that party's contention. It is not sufficient to show that that party has made out a strong case. Here, the jury might reasonably have refused to be satisfied about one or more of the issues on which the plaintiff bore the onus of proof.[7]

40 In Moran v McMahon,[8] Kirby P said in respect of the review of an assessment of general damages:

Because of the large element of evaluation and the necessary latitude for human reaction to the assessment of money damages for the imponderables compensated by an award of general damages, appeal courts should acknowledge the very large scope that must be left by the law to the trial judge. As in other discretionary decisions, appeal courts should be extremely cautious before interfering and this, precisely because of a recognition of the inevitably unscientific nature of the task committed to the trial judge.[9]

41 What was said by Kirby P in Moran v McMahon has at least equal force in relation to a jury's assessment of general damages. As to the advantages a jury enjoys over an appellate court, we would endorse what was said by Kaye JA[10] in Savino v Schieven:[11]

In applying those principles, it is important to bear in mind the advantages enjoyed by the jury which are not available to the court on appeal. The jury had the opportunity to assess the reliability and credibility of the witnesses called before it. ... The jury had the opportunity of hearing and considering the evidence as it was revealed to it over a period of some few days. Each of those factors are real advantages which should not be underestimated. A bare reading of the transcript, by comparison, is, I consider, an inferior substitute for the advantageous position of the jury to which I have referred.[12]

42 In the present case, the jury was not bound to conclude that the October 2009 incident was a cause of all of the applicant's physical problems from October 2009 until the time of trial. The jury was also not bound to accept the applicant's complaints about the severity of her pain and symptoms. More particularly, the jury was entitled to accept the evidence of Mr Simm that the October 2009 incident was not a cause of all of the applicant's clinical presentation at the time of trial.

43 This is sufficient to make ground 1 unarguable. For the sake of completeness, we would add that it must be steadily borne in mind that the burden of proof fell on the applicant to satisfy the jury on the balance of probabilities with respect to the nature and extent of the injury caused in the October 2009 incident. When regard is had not only to the evidence of Mr Simm but to the evidence as a whole, it was plainly open to the jury to conclude that they were not persuaded that the October 2009 incident materially affected the course of the degeneration of the applicant's cervical spine. In this regard, it is sufficient to note the following matters:

• the medical opinion as a whole supported the view that prior to October 2009 the applicant suffered from constitutional (or natural) degeneration of the cervical spine;
• Dr Churcher's evidence in cross-examination was that the condition from which the applicant suffered at the time of trial was the same as the condition from which she suffered in June 2008 although her symptoms were more severe;
• the report read to the jury from the pain management physician, Dr Lovell, recorded a history given in 2011 of a temporary severe aggravation of pain following October 2009 which settled back down to essentially the same pre-accident level of 5 out of 10;
• the MRI taken in 2003 showed only mild degenerative changes in the cervical spine; and
• Mr Simm's view was only that it was not possible to exclude a contribution to the applicant's ongoing condition not that it could be demonstrated positively that there was a material contribution.

44 The applicant submitted that Mr Simm accepted that the October 2009 incident was a cause of a chronic pain syndrome that the applicant suffered from in the years leading up to, and at the time of, trial. It was then submitted that whether the cause of the applicant's symptoms was physical, or based upon a chronic pain syndrome, was of no moment. The difficulty with this submission was that, as Mr Simm acknowledged, Mr Simm did not possess the necessary expertise to express an opinion about the nature, extent and duration of a chronic pain syndrome. The applicant's claim was a claim in respect of a physical injury to her neck and right shoulder. As we have already said, no psychiatric or psychological evidence was called or tendered at trial. So far as the question of whether the damages awarded were manifestly inadequate is concerned, the jury was entitled to accept the evidence of Mr Simm that the October 2009 incident was not a cause of a physical injury that manifested itself in all of the ways about which the applicant gave evidence at trial.

45 On the view of the evidence most favourable to the respondent, it cannot reasonably be contended that the award of pain and suffering damages in this case was manifestly inadequate, unreasonable or contrary to the evidence. Leave to appeal in respect of ground 1 must be refused.

46 The applicant having failed in respect of ground 1, success on any of her other grounds of appeal cannot alter the result at first instance (the applicant having fallen under the threshold prescribed by s 134AB(22) of the Act). It follows that leave to appeal in respect of grounds 2 to 8 must also be refused, as success upon any of those grounds by the applicant will not result in a setting aside of any order made at first instance. That said, we propose to express our views in short compass in respect of these grounds.

47 The respondent's case on contributory negligence in respect of the October 2009 incident was that the applicant's failure to advise the respondent of the injury she sustained in March 2009 amounted to contributory negligence, as did the applicant's failure to use the on-call number to call for assistance when Mr King was unable to assist in lifting the wheelchair into the boot of the motor vehicle. At trial, evidence was given by Ms Jones (the respondent's CEO) in support of the respondent's case on contributory negligence. Ms Jones gave evidence that had she known that the applicant was injured in March 2009, she would have followed a process which would have involved the completion of an injury report form, the obtaining of medical certificates and then following up on the injured employee's progress.

48 In her application for leave to appeal, the applicant makes a number of complaints about the finding of contributory negligence that was made against her at first instance. First, the applicant complains that the judge misstated the position at trial when he directed the jury that it was common ground that the applicant did not report the March 2009 incident to the respondent (ground 8). Secondly, the applicant says that the judge erred in refusing to admit into evidence the claim form that she completed (but did not submit to the respondent) for the March 2009 incident (ground 7). Thirdly, the applicant contends that neither of the bases upon which the respondent put its contributory negligence case were open (grounds 2, 3, 4 and 5). Fourthly, the applicant asserts that a finding of contributory negligence of 60 per cent was manifestly excessive, unreasonable and contrary to the evidence (ground 6). We will deal with each complaint in turn.

49 It is true that his Honour erred in respect of one sentence in his charge when he said to the jury that it was common ground that the March 2009 incident was never brought to the respondent's attention. The short answer to this complaint is that no objection was taken by the applicant's counsel at trial, and the judge was not asked to correct his error. This was no doubt because it had been made plain to the jury many times during the trial (including during final addresses and in other parts of the judge's charge) that there was a live dispute about whether the applicant reported the March 2009 incident to the respondent. The jury could have been in no doubt that this was a live issue, and the judge's misstatement in one sentence of his charge cannot have altered that position. During the hearing before this Court senior counsel for the applicant indicated that as no objection had been taken at trial, he would not press the issue. Ground 8 is without substance.

50 The March 2009 claim form completed (but not submitted to the respondent) by the applicant was admissible as relevant to the question of whether the applicant had in fact orally reported the March 2009 incident to Ms Jones and been told to complete a claim form. Contrary to a submission in the respondent's written case, the hearsay rule did not mandate the exclusion of the document. The document was completed by the applicant and the applicant gave evidence at trial. In such circumstances, the operation of s 64(3) of the Evidence Act 2008 resulted in the hearsay rule having no application. That said, the short answer to the applicant's complaint is that the judge did not refuse to admit the claim form into evidence. The transcript of the argument at trial shows that the judge was not persuaded by the applicant's submissions about the document. But the argument concluded with the judge saying to the applicant's counsel that he would give them 'leave to have another look at it'. The tender of the document was not pressed thereafter. No ruling, about which complaint can now be made, was ever made by the judge. Moreover, it might also be said that even if there had been an improper rejection of the tender, no substantial wrong or miscarriage in the trial was occasioned thereby.[13] There is no substance in ground 7.

51 In claims for damages arising out of injuries suffered in the course of employment, the law has long recognised the distinction between contributory negligence on the one hand and mere inadvertence, inattention or misjudgement on the other hand. In Podrebersek v Australian Iron and Steel Pty Ltd,[14] the High Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) said:[15]

It was correctly submitted that the issue of contributory negligence had to be approached on the footing that the respondent [employer] had failed to discharge its obligation to take reasonable care, and that in considering whether there was contributory negligence on the part of the appellant [worker], the circumstances and conditions in which he had to do his work had to be taken into account. The question was whether in those circumstances and under those conditions the appellant's conduct amounted to mere inadvertence, inattention or misjudgement, or to negligence.[16]

52 The evidence of the existence of contributory negligence on the part of the applicant which was a cause of the injury the applicant sustained in October 2009 was thin. Nevertheless, having reviewed that evidence, we are unable to say that either of the bases upon which the respondent put its case on contributory negligence was not open. There was a live factual dispute between the parties about whether the applicant reported the March 2009 incident and also about whether any failure to report that incident amounted to contributory negligence that was a cause of injury to the applicant.[17] Those matters, however, were quintessentially matters for the jury on the evidence called at trial.[18] Similarly, the question of whether the applicant should have appreciated any risk in lifting the wheelchair on her own, and the question of whether the failure to call for assistance, constituted contributory negligence in the circumstances in which the applicant found herself at the shopping centre, were issues that were required to be left to the jury. While a different tribunal of fact may have come to a different conclusion about the issue of contributory negligence, we are unable to say that the jury's conclusion was not open. Grounds 2, 3, 4 and 5 must be rejected.

53 The remaining ground concerns the jury's apportionment of 60 per cent against the applicant. The apportionment was undoubtedly high. The governing principles in respect of the applicant's complaint about the jury's apportionment can be found in the decisions of Podrebersek[19] and Liftronic Pty Ltd v Unver.[20]

54 In Podrebersek,[21] the High Court had to consider a case where a worker who had sued his employer was held by a jury to have been guilty of contributory negligence, which the jury assessed at 90 per cent. In relation to the apportionment, the High Court said:[22]

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

55 In Liftronic Pty Ltd v Unver,[23] the High Court again had to consider a case involving a jury's apportionment of contributory negligence in a claim by a worker against an employer. In that case, the jury assessed contributory negligence at 60 per cent, but the Court of Appeal substituted its assessment of 20 per cent for contributory negligence. The High Court allowed the employer's appeal and restored the jury's assessment of contributory negligence. McHugh J said:

In determining whether the jury's apportionment in the present case was unreasonable, one principle is basic. The issue must be examined on the basis that, so far as it was reasonably possible to do so, the jury found the least degree of fault on the part of the defendant and the maximum degree of fault on the part of the plaintiff. The apportionment must also be examined on the basis that the jury took that view of the evidence, favourable to the defendant, which is most consistent with their apportionment.[24]

56 As we have said, the apportionment of 60 per cent against the applicant in this case is very high, but we cannot say that it was manifestly excessive when one examines the issue, so far as it is reasonably possible to do so, on the basis that the jury found the least degree of fault on the part of the respondent and the maximum degree of fault on the part of the applicant.[25] The complaint made in ground 6 must be rejected.

57 The application for leave to appeal must be refused.

[1] The expression 'pain and suffering damages' is defined in s 134AB(37) of the Act to mean 'damages for pain and suffering, loss of amenities of life or loss of enjoyment of life'.

[2] The appropriateness of asking the jury only one question about damages in a case involving two incidents, and the appropriateness of similarly asking only one question about the amount an award of damages ought to be reduced for contributory negligence, was not the subject of submissions before us. Moreover, as will become apparent, it is not necessary for us to express a view about these matters in order to resolve the issues in dispute in this Court. Accordingly, while the appropriateness of the course taken at trial by the parties in relation to these matters may be debated, we do not propose to express any view in this case.

[3] See s 100C of the Act and Victoria Government Gazette No G26, Thursday, 30 June 2016 at pp 1629 and 1641.

[4] Parts of regulations 1.1.5, 2.1.2, 3.1.1, 3.1.2, 3.1.3 were tendered.

[6] Zoukra v Lowenstern [1958] VicRp 94; [1958] VR 594, 595; Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 ('Calin'); John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657; Smith v Gellibrand Support Services Inc [2013] VSCA 368; (2013) 42 VR 197, 217 [81].

[7] Calin [1991] HCA 23; (1991) 173 CLR 33, 46-7 (citations omitted). See, further, the judgment of Mason CJ, Deane, Toohey and McHugh JJ at 41-2.

[8] (1985) 3 NSWLR 700 (Kirby P, Priestly and McHugh JJA).

[9] Ibid 707-8. See also CSR Readymix (Aust) Pty Ltd v Payne [1998] 2 VR 505, 508 (Winneke P, with whom Hayne and Batt JJA agreed).

[10] With whom Warren CJ and Ferguson JA agreed.

[11] [2015] VSCA 67.

[13] See r 64.37(2)(b) of the Supreme Court (General Civil Procedure) Rules 2015.

[14] [1985] HCA 34; (1985) 59 ALJR 492.

[16] See also McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, 315 (Mason, Wilson, Brennan and Dawson JJ); Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 310 (Mason, Wilson and Dawson JJ); Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839, 843 [18] (Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ).

[17] As to the causal consequences of the alleged failure to report the March 2009 incident, both parties based arguments, about what would likely have happened, upon what in fact happened after the reporting of the October 2009 incident (cf exhibits E and J, to which we have already referred).

[18] Cf Willett v State of Victoria (2013) 42 VR 571, 576 [10], 604 [167]-[168].

[19] [1985] HCA 34; (1985) 59 ALJR 492.

[20] (2001) 75 ALJR 867 ('Liftronic').

[21] [1985] HCA 34; (1985) 59 ALJR 492.

[23] (2001) 75 ALJR 867.

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

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

[25] Cf Liftronic (2001) 75 ALJR 867, 872 [29].