Etta v Taverner Hotel Group Pty Ltd [2019] VSCA 209

1 In 2003, the applicant was employed by the respondent as a chef. In the course of his employment, he was involved in two incidents:

• an incident that occurred on 16 January 2003 when he fell in a freezer room and suffered injury ('the freezer incident'); and
• an incident that occurred in August 2003 in which he alleges that he fell and suffered injury after being directed to sit on a broken chair ('the chair incident').

2 In 2017, following the earlier conclusion of common law proceedings brought by the applicant in relation to the freezer incident, the applicant filed an originating motion in the County Court seeking leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 ('the Act') to commence a proceeding at common law claiming damages for injuries that he alleged he sustained as a result of the chair incident.

3 The application for leave was heard by a judge of the County Court over five days in June 2018. During the hearing of the case, the applicant relied upon both paragraphs (a) and (c) of the definition of serious injury contained in s 134AB(37) of the Act,[1] alleging that as a result of the chair incident he had sustained an injury to his cervical spine, an injury to his thoracic spine, an injury to his right shoulder, an injury to his left shoulder, a loss of hearing and a psychiatric injury.

4 In opposition to the applicant's application, the respondent contended that:

• the applicant did not suffer any compensable injury as a result of the chair incident;
• alternatively, the applicant was no longer suffering from any compensable injury in respect of the chair incident; and
• the evidence did not permit the Court to identify and assess the consequences of any impairment or loss of body function relied upon by the applicant; alternatively, having regard to the consequences which could be identified, the applicant had not suffered a serious injury as defined in the Act.

5 On 10 August 2018, pursuant to reasons published on 18 July 2018,[2] the judge dismissed the applicant's application. In essence, the judge concluded that the evidence did not support the applicant's case that he had suffered any permanent or ongoing injury or impairment as a result of the chair incident.[3]

6 The applicant, who appeared for himself at first instance and again in this Court, now seeks leave to appeal against the judge's order dismissing his application. While his grounds of appeal are not conventionally expressed, his complaints about the dismissal of his proceeding may be broadly summarised as follows:

(a) the judge relied upon false statements in medical reports, and/or made statements in her reasons that were false, misleading, jumbled dates and/or misrepresented, or demonstrated a misunderstanding of, relevant matters;

(b) the judge failed to consider or properly take into account medical reports or statements in medical reports that were supportive of the applicant's claim;

(c) the judge's reliance on parts of the medical evidence was misplaced in circumstances where there was no cross-examination of any medical witness;

(d) the applicant's application should have been granted because, in earlier proceedings in the County Court in relation to the freezer incident he had been assured that if he settled his claim for pain and suffering damages he would still have the right to claim economic loss;

(e) the judge did not properly consider issues of aggravation and deterioration or engage in a proper evaluation of the applicant's injuries in their entirety;

(f) the judge should have accepted expert medical evidence supportive of the applicant's claim and concluded that he had in fact suffered serious injury; alternatively, if the judge did not accept that evidence (or was minded to find against the applicant) then she should have referred the applicant's claim to a medical panel for its opinion and determination; and

(g) there was material unfairness in the respondent's failure to adduce relevant evidence and/or to provide or produce a register of injuries containing an entry in relation to the chair incident.

7 On the hearing of the application in the County Court, the applicant relied upon a series of affidavits he swore between March 2017 and May 2018. The applicant was the only witness to give evidence. He gave evidence over the first four days of the hearing of his application, with cross-examination occurring on each of these four days.

8 The balance of the evidence in the application consisted of documents that were tendered during the course of the hearing. In large part, this material consisted of medical reports, letters, court documents from previous proceedings relating to the freezer incident, claim forms, photographs and radiological reports. While the amount of material tendered was voluminous, the material of most significance to the applicant's arguments in this Court were the medical reports from three medical specialists: Associate Professor Richard Bittar, a neurosurgeon; Dr Roy Nallaratnam, a psychiatrist; and Mr M A Khan, an orthopaedic surgeon. A medical panel certificate and reasons for opinion arising from a medical panel examination conducted in July 2009, which addressed the level of impairment arising from the freezer incident, ('the medical panel opinion') also assumed significance in the applicant's argument in this Court.

9 One of the principal issues in the hearing before the judge concerned the applicant's failure, over a long period of time after the occurrence of the chair incident, when being treated or examined by doctors or otherwise describing the circumstances of his employment and injuries, to refer to or make any mention of the chair incident or having suffered injury as a result of the chair incident. A substantial part of the material tendered before the judge supported the proposition that on many occasions when the plaintiff was being examined or treated by medical practitioners after the chair incident, his only history of suffering any injury in the course of his employment with the respondent related to the freezer incident. For example, in a series of consultations with a general practitioner, Dr Uday Dixit, during the period 2003-2007, the applicant gave a history of having suffered injury as a result of the freezer incident, and attributed his complaints to that incident, but gave no history of the chair incident or any injury sustained in August 2003.

10 The applicant was born in India in 1954. He was 48 years of age at the time of the chair incident, and 63 at the time of trial. He is married with two adult children.

11 The applicant attended school to Year 11 in India, before completing a year known in India as 'pre-university'. He then studied catering management for a few years, before commencing work at a five-star hotel in Bangalore. During this time, he also studied for a Bachelor of Commerce degree by correspondence. In 1981, he worked as a consultant in the catering industry, before becoming a partner in a hotel food and residential business for the next 20 years.

12 In 2000, the applicant migrated to Australia. Upon his arrival in Australia he started out as a chef working in a number of catering establishments and hotels, one of which was Skyways, a predecessor to the respondent's business.

13 As we have already noted, on 16 January 2003, the applicant was involved in the freezer incident. His evidence was that he suffered injury while trying to reach some bread rolls that had been placed on a high shelf within a freezer storage room. While reaching for the bread rolls, his leg was caught in some saucepans that had been stored on a wet, slippery floor, which caused him to fall backwards. The applicant said that he experienced immediate pain in his back.

14 The following day, the applicant consulted Dr Dixit. A CT scan performed on his lower back on 31 January 2003 demonstrated a disc protrusion and the applicant was then off work for some weeks. He subsequently returned to work with the respondent on light duties and with reduced hours. During this period he received conservative treatment in relation to back and neck pain. On 1 February 2003, the applicant lodged a WorkCover claim in respect of the freezer incident.

15 In August 2003, the chair incident occurred. The applicant sat on a chair which had a broken leg. The applicant's evidence was that he felt the chair collapse. He reached for a nearby chair to stop himself falling to the ground, and while doing so his right arm and right side of his neck 'were struck by the handle of the chair'.

16 The applicant attended his physiotherapist, Ms Ilana Raitman, following the chair incident. In a letter to Dr Dixit, Ms Raitman wrote:

[The applicant] presented in physio today complaining of severe left-sided lumbar pain. He reported that whilst at work yesterday he sat down on a chair which collapsed under him and he strained his left side to break his fall and lift himself back up. Upon standing, he immediately felt left-sided pain and had difficulty straightening up. He reports he did continue to work however.

17 The applicant's evidence was that he took approximately two weeks off work following the chair incident, after which he returned on light duties and restricted hours. In December 2003, his employment with the respondent was terminated. Save for a brief attempt at a return to work in 2007, and some volunteer work, the applicant has effectively not worked since December 2003.

18 In February 2005, the applicant made a claim for impairment benefits under the Act for injuries to his neck and lower back in relation to the freezer incident. In October 2006, he made a further claim in respect of the freezer incident, claiming to have suffered injury to his neck and thoracic spine, as well as stress and depression. He also claimed that he had begun to develop migraines 12 months after the freezer incident.

19 In 2008 and 2009, the applicant made claims for weekly payments, medical and like expenses and a lump sum impairment benefit in relation to the freezer incident. In July 2009, he was examined by the medical panel to which we have already referred. The medical panel took a history of the applicant complaining of constant lower back pain which radiated up the spine to his head with associated headaches. The medical panel did not take any history of the applicant suffering injury as a result of the chair incident.

20 In October 2008, the applicant applied under s 134AB(4) of the Act for a serious injury certificate in respect of the freezer incident. In his application form, he identified the injuries he relied upon as follows:

(a) injury to the low back involving disc prolapse at L4/5;

(b) aggravation and/or acceleration of injury to the low back;

(c) injury to the thoracic spine involving a disc prolapse at T5/6;

(d) aggravation and/or acceleration of injury to the thoracic spine;

(e) aggravation and/or acceleration of injury to the cervical spine;

(f) pain and limitation of movement;

(g) anxiety and depression.

21 The applicant's application for a serious injury certificate in relation to the freezer incident was rejected, resulting in him commencing proceedings in the County Court pursuant to s 134AB(16)(b) of the Act. In August 2012, the applicant settled his common law claim in relation to the freezer incident for damages for pain and suffering in the amount of $150,000.

22 In January 2014, the applicant lodged a further claim in relation to the freezer incident in which he claimed to have suffered injuries to his fingers, arms, wrists, elbows, shoulders, neck, cheeks, head, back and thoracic spine.

23 In August 2015, the applicant lodged his first WorkCover claim form in respect of the chair incident. In this claim form, he identified his injuries as:

Neck thoracic spine back, shoulders fingers, palm wrist arms elbow jaws ears head etc. Psychiatry.

24 The judge commenced her reasons by identifying the injuries relied upon by the applicant in support of his claim for leave to commence proceedings in relation to the chair incident. The judge identified the injuries as an injury to the applicant's neck and upper spine, a psychiatric condition, injuries to the left and right shoulders and a hearing loss.[4] The judge then referred to the freezer incident and the applicant's earlier application under s 134AB of the Act wherein the applicant relied upon an injury to his lower back as well as injuries to his thoracic and cervical spines.[5]

25 After identifying relevant issues and principles[6] the judge said that the application must be dismissed. The judge expressed her ultimate conclusions in the following terms:

• Mr Etta suffered pain in his lumbar, thoracic and cervical spine after the freezer incident. He also suffered from occasional headaches.
• Mr Etta suffered a temporary exacerbation of lumbar and cervical spine pain for a couple of weeks after the chair incident. His symptoms then resolved to the level of pain which persisted prior to the chair incident. The chair incident did not cause Mr Etta to suffer a permanent injury.
• Mr Etta's neck pain worsened over the years, and his headaches have increased in frequency and intensity since early 2004. I am not satisfied that the chair incident was a cause of the worsening neck pain and headaches.[7]

26 Having expressed her ultimate conclusions, the judge then set out a detailed description of relevant background matters and the evidence called and tendered on the application.[8] In the course of describing and summarising the medical evidence, the judge noted the lack of reference in much of the material to any significant ongoing injury caused by the chair incident. For example, the judge noted that following an examination conducted on 15 September 2003 by an occupational physician, Dr John Lange, in respect of the freezer incident, Dr Lange recorded:

NEW PROBLEM

Mr Etta stated that approximately three weeks ago he sat on a chair which collapsed underneath him and while falling he supported his weight on a chair directly opposite him with his left upper limb. As a result of this fall, he developed pain in the left side of the neck, left shoulder area and left hip. He rested off work for two weeks and is now much better.[9]

27 In a detailed recitation of the evidence, the judge then identified a number of the applicant's treating medical practitioners, who had provided medical reports after the chair incident, whose reports made no reference to the chair incident.[10]

28 Next, the judge described the body of medico-legal reports tendered that covered the period from 2004 until August 2015 as being 'telling' because, save for an identified report in 2004, 'none of the medico-legal examiners refer[red] to the chair incident'.[11]

29 The reliability and credibility of the applicant was a central issue on the hearing before the judge. The judge dealt with this issue at length.[12] In her analysis, the judge set out some of the applicant's explanations for what the respondent contended were inconsistencies in the applicant's various accounts of matters. These included:

• a claimed inability to be specific about 'left, right, back, front, forward, backwards' because of a lack of knowledge of English;[13]
• cognitive problems that had given rise to 'a lot of dementia issues';[14]
• an explanation for giving varying reports of pain in 2003 and early 2004 being that 'as English was his second language, and as he was affected by dementia, he did not fully understand the difference between left and right, and lower back, thoracic spine and the neck'.[15]

30 Ultimately, the judge had significant reservations about the applicant's evidence on topics that were central to the resolution of his application.[16] While in respect of some parts of the applicant's evidence the judge said that the applicant was disingenuous,[17] ultimately the judge was prepared to conclude that the applicant did not seek to conceal matters from doctors dishonestly.[18] The judge finished her analysis of the applicant's reliability and credibility by saying:

In circumstances where the contemporaneous medical records state that

Mr Etta aggravated his lower back and neck pain in the chair incident, but that such pain had improved within a couple of weeks, I consider it most likely that Mr Etta did not tell doctors about the chair incident, as it was not an event of any significance, beyond a short term exacerbation of pain.

...

It may be that Mr Etta now genuinely believes that his cervical and thoracic spine injuries were permanently injured [sic] as a consequence of the chair incident. It may be that his account of that event in 2018, has been unintentionally inflated by the prism of retrospect. Whatever his reason, the contemporaneous medical records over a 10 year period, do not support his allegation, that the chair incident was an event, which caused him ongoing injury and impairment.[19]

31 The judge then addressed each of the applicant's claimed injuries under the headings 'spinal impairment', 'psychiatric impairment', 'left and right shoulder impairment', and 'hearing loss impairment'. The judge concluded that:

• the applicant suffered a temporary exacerbation of lower back pain and neck pain as a result of the chair incident, but that he had not established that the chair incident caused him any permanent spinal injury;[20]
• there was very little evidence in respect of the applicant's psychiatric impairment and, in circumstances where the judge was not satisfied that the chair incident caused a permanent injury or ongoing pain, she was not satisfied that the applicant had suffered a severe psychiatric impairment as a consequence of the chair incident;[21]
• there was insufficient material to establish that the applicant suffered a right shoulder injury in the chair incident, and the complaints of pain in the left shoulder were recorded by

Dr Lange in September 2003 to have been 'much better within a couple of weeks';[22] and

• there was no evidence linking the applicant's hearing loss to the chair incident.[23]

32 Like so many personal injury proceedings, this was a case where the credibility and reliability of the applicant's accounts, both to doctors before trial and

32 in evidence, were of critical importance to the success of his proceeding.[24] Moreover, as is also very often the case in litigation of the present kind, the opinions of the medical experts (and the question of whether those opinions should be accepted) were heavily dependent upon the acceptance of the applicant's account.[25] This was not a case where the applicant could have succeeded merely on the basis of the acceptance of an opinion of a medical expert without first establishing the existence of the facts in the underlying history upon which it was based.

33 The judge conducted a careful review and examination of all of the evidence tendered at first instance. Having reviewed that evidence for ourselves, we are unable to see any material error in her Honour's analysis. The judge correctly identified the central problem with the applicant's case as being the lack of reliability about his evidence and the lack of support in the contemporaneous documents for the propositions for which he contended.

34 With one possible exception, we see no cause for any complaint about the judge's summary and description of the evidence. The only issue that might be raised concerns the judge's broad reference, at Reasons [102]-[104], to the applicant not telling Mr Khan about the chair incident. While Mr Khan's letters written between December 2012 and December 2014 refer to the freezer incident without making reference to the chair incident, Mr Khan's reports of 2015 and 2016 make plain that by the time they were written the applicant had given a history to Mr Khan of both the freezer incident and the chair incident. The giving of this history years after the chair incident cannot, however, affect her Honour's conclusions. Moreover, it is to be noted that at Reasons [109] the judge referred to the applicant having given a history of the chair incident to Mr Khan in May 2016. Thus, in context, the judge's reference at Reasons [104] to the applicant being cross-examined about why he did not tell Mr Khan about the chair incident plainly relates to the applicant's consultations with Mr Khan before 2015.

35 In taking this Court through the medical evidence that he contended supported his claim, the applicant noted on a number of occasions the performance of whole person impairments conducted in respect of him by particular medical specialists. For example, Associate Professor Bittar's report dated 24 February 2012 recorded a lumbosacral whole person impairment of five percent and a cervicothoracic whole person impairment of fifteen percent, and Dr Nallaratnam's report dated 4 August 2017 recorded that the applicant was incapacitated 'to the extent of 30%' in respect of a 'Dependant Personality Disorder'. The applicant contended that the percentage impairments recorded in the medical reports established the existence of a serious injury within the meaning of s 134AB(37) of the Act.

36 The short answer to the applicant's contentions concerning whole person percentage impairments is that, first, they do not grapple with the problem that the evidence did not distinguish between the percentage impairment resulting from the chair incident and that resulting from the freezer incident. Secondly, even if one accepted that the percentage impairments to which we were referred could be shown to have arisen as a result of the chair incident, the relevant percentages said little if anything about whether the injury was (as it was required to be) either a 'permanent serious impairment or loss of a body function' in relation to a physical injury, or a 'permanent severe mental or permanent severe behavioural disturbance or disorder' in relation to a psychiatric injury.[26]

37 In an application under s 134AB(16)(b) of the Act, it is necessary for an applicant to establish the existence of an injury which comes within one of the paragraphs of the definition of serious injury in s 134AB(37). That in turn requires an applicant's injury to satisfy the requirements of s 134AB(38)(c) in respect of a physical injury and s 134AB(38)(d) in respect of a psychiatric injury. Sections 134AB(38)(c) and (d) require a comparison between the consequences of an applicant's injury and other cases in the ranges of possible impairments, losses and disorders. Specifically, ss 134AB(38)(c) and (d) provide:

(38) For the purposes of the assessment of serious injury in accordance with sub-sections (16) and (19) -

...

(c) an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of sub-section (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;

(d) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of sub-section (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;

... .

38 While in some cases a percentage whole person impairment might be capable of leading to an inference that a particular injury satisfies the requirements of s 134AB(38)(c) or (d) (for example, if the relevant injury involves irretrievable damage to, or loss of a body part, or the percentage is extremely high), the present is not such a case. But ordinarily, the percentage whole person impairment will only be one of the matters that may be required to be taken into account in determining whether the relevant injury satisfied the requirements of s 134AB(38) of the Act. In the present case, the percentage impairments referred to in the medical reports relied upon by the applicant are not of such a level (nor sufficiently tied to the relevant injury) that they assist the applicant in showing that the judge erred in failing to give him leave to commence a common law proceeding.

39 The applicant placed particular reliance upon the reports of Associate Professor Bittar in support of his claims that the judge erred in not finding that he had sustained a serious injury. The difficulty with the applicant's submissions on this issue, however, is that Associate Professor Bittar was, like many of the medical experts in this case, not given any history of the chair incident. A fair reading of Associate Professor Bittar's reports shows that the conditions from which he diagnosed the applicant were, in his opinion, related to the freezer incident. In the absence of any history given to Associate Professor Bittar of the chair incident, it is not possible to read his reports as supporting the proposition that the chair incident was a cause of any injury to the applicant.

40 The applicant also sought to call in aid Associate Professor Bittar's conclusion in his report of 24 February 2012 that the applicant suffered from a radiculopathy (a condition affecting a spinal nerve root, sometimes referred to as a pinched nerve). The applicant's argument was that the medical panel that examined him in 2009 in respect of the freezer incident found no evidence of radiculopathy. The radiculopathy found by Associate Professor Bittar must therefore have been caused by the chair incident. This submission must be rejected.

41 First, there is no basis for reasoning that any injury found by Associate Professor Bittar in 2011 and following, that was not found by the medical panel in 2009, must have been caused by the chair incident. Neither logic nor the evidence warranted any such conclusion.

42 Secondly, the radiculopathy found by Associate Professor Bittar was one affecting the cervical spine, whereas the medical panel's finding as to a lack of any evidence of radiculopathy was a finding confined to the applicant's lower back injury, the relevant passage in the medical panel opinion stating:

The Panel concluded that the worker is suffering from aggravation of a central disc protrusion at L4/5, with no evidence of radiculopathy, relevant to the accepted lower back injury.

...

The Panel assessed the worker's lower back in accordance with Table 70 of Chapter Three and concluded that there are clinical signs of lumbosacral injury, but with no clinical evidence of radiculopathy.

43 When settling his common law claim in relation to the freezer incident, the applicant claims that he was told that he could still have a right to claim damages for economic loss. Accepting that the applicant was given this advice by a person he was entitled to conclude was well qualified to give such advice, there is still no basis for overturning the judge's order refusing his application for leave to commence a proceeding. While the applicant has always had a right to make claims pursuant to the provisions of the Act (including claims for economic loss), it cannot be gainsaid that those claims (if made) would always be required to be determined, on the evidence, in accordance with the provisions of the Act. We are unable to see any basis upon which it might be said that advice given to the applicant that settling his claim in relation to the freezer incident would not foreclose his right to make a claim for economic loss arising from the freezer incident, nor foreclose a claim in respect of the chair incident, could form any ground for overturning the judge's decision.

44 The applicant made three interrelated complaints about the judge's treatment of the medical evidence: first, that the judge rejected medical evidence that was favourable to his case; secondly, that there was no cross-examination of the medical witnesses; and thirdly, that the judge, if she was contemplating rejecting the applicant's claim, should have referred the matter to a medical panel for its assessment and opinion. In relation to the third complaint, the applicant made a related submission to us that if we were proposing not to allow his appeal then, instead of making such an order, we should ourselves refer the applicant's case to a medical panel. All of these submissions must be rejected. The following points may be made:

(1) The complaints now made by the applicant about the procedure adopted in the conduct of his application at first instance did not form the basis of any submission made to the judge. The judge was entitled to decide the application based on the way the application was conducted. As was usual in cases of this kind, the applicant (being the most critical witness on the application) was the only witness called to give oral evidence. The credibility and the reliability of the applicant's evidence being of critical importance, it was appropriate for the matter to proceed before the judge in the way that it proceeded.

(2) While individual sentences can be extracted from various of the medical reports to the effect that the applicant has sustained a serious injury (see, for example, Associate Professor Bittar's statement in his 24 February 2012 report that the applicant 'has sustained a very serious injury to both his cervical and lumbar spine'), such statements are not determinative of the applicant's claim. As we have said above, the statements of the medical witnesses are heavily dependent upon the reliability of the applicant's histories and would need to have been linked to the chair incident by a reliable contemporaneous history given by the applicant.

(3) There is no basis for this Court to refer the applicant's case to a medical panel. This Court's task is to perform its appellate function in relation to the proceeding conducted at first instance.

45 The applicant complained that the judge did not consider issues of aggravation and deterioration or engage in a proper evaluation of the applicant's injuries in their entirety. For the reasons already given, these complaints must also be rejected. After a careful and detailed review of the evidence, the judge concluded that the applicant's evidence was unreliable (although not dishonest) in material respects. Her conclusion that it was likely that the applicant did not tell doctors about the chair incident because it was not an event of any significance beyond a short term exacerbation of pain[27] was one that was well justified on the evidence. That conclusion did not necessitate any greater analysis of the issues to which the applicant says the judge should have given better consideration.

46 Finally, the applicant's contention that there was unfairness in the respondent's failure to adduce relevant evidence (and in particular to produce a register of injuries containing an entry in relation to the chair incident) must be rejected. The judge was prepared to accept that the chair incident occurred. The question was what if any consequences flowed from it. The production of a register of injuries containing a note of its occurrence could not have materially assisted in the resolution of the issues that the judge was required to consider.

47 The applicant's proposed appeal does not have a real prospect of success. Leave to appeal must be refused.

[1] 'Serious injury' is relevantly defined in s 134AB(37) of the Act to mean:

(a) permanent serious impairment or loss of a body function; or

...

(c) permanent severe mental or permanent severe behavioural disturbance or disorder.

[2] Etta v Taverner Hotel Group Pty Ltd [2018] VCC 832 ('Reasons').

[10] For example, Dr Dixit, Reasons [77]; Dr Liveriadis, Reasons [78]; Associate Professor Bittar, Reasons [96]; Dr Sullivan, Reasons [98]; Mr Khan's initial reports, Reasons [102]-[104]; and Dr Ong, Reasons [110]-[111].

[16] Ibid [154], [155], [157], [158], [160] and [161].

[24] See generally, Mobilio v Balliotis [1998] 3 VR 833, 836; Palmer Tube Mills (Aust) Pty Ltd v Semi [1988] 4 VR 439, 448; Gjorgovska v AFM Cleaning Services Pty Ltd [2006] VSCA 104 [27]; Veljanovska v Verduci [2014] VSCA 15; (2014) 42 VR 222, 231-2 [39]-[40]; Fenton v AIA Australia Limited [2017] VSCA 331 [91]; and Petrovic v Victorian WorkCover Authority [2018] VSCA 243 [74].

[25] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598, 1609 [60]; Rowe v Transport Accident Commission (2017) 83 MVR 195; and Petrovic v Victorian WorkCover Authority [2018] VSCA 243 [74].

[26] See paragraphs (a) and (c) of the definition of 'serious injury' in s 134AB(37) of the Act.