Gergis v South Pacific Tyres & Anor [2005] VSCA 152

Accident Compensation - Injury to spinal column - Functional overlay - Leave to bring common law proceedings refused - Interlocutory order - Refusal of leave not inconsistent with award of compensation pursuant to ss.98 and 98A- Applicant unreliable witness - No impermissible omission by judge to consider applicant's claims regarding the consequences of injury -Medical evidence did not support claim of "serious injury" - No evidence before judge as to loss of earning capacity due to injury - Application refused - Accident Compensation Act 1985, ss.98, 98A, 135A.

2 By originating motion dated 27 March 2000, the applicant sought leave to bring a common law proceeding for damages pursuant to s.135A(4)(b) of the Accident Compensation Act 1985 ("the Act") in respect of an injury to the spinal column suffered by him between 1 December 1992 and January 1997 in the course of his employment with the first respondent. By agreement, her Honour also heard, at the same time, the applicant's claim for compensation pursuant to ss.98 and 98A of the Act ("the compensation claims") for loss of use of, or permanent impairment to, his back, right leg, neck and right arm. The learned judge was not satisfied that the applicant's injury was a "serious injury" within the meaning of s.135A(19)(a) or (c) of the Act, as was contended for by the applicant, and, consequently, on 21 October 2003, refused him leave. But in respect of the applicant's compensation claims, her Honour awarded him compensation of $3,009 on the basis that he sustained a 3 per cent permanent, partial impairment of the neck and $15,045 as reflecting 15 per cent permanent, partial impairment of the back.

3 The applicant purported to appeal against her Honour's order by filing a notice of appeal on 14 October 2003. It is plain enough, however, that her Honour's decision is interlocutory[1], and that, therefore, by reason of s.74(2D) of the County Court Act 1958, the applicant must first obtain leave to appeal against the impugned order. Under s.79(2D), an application for leave must be brought within 14 days of the decision, although the Court may extend this period.[2] In the event, the applicant accepted that he was required to obtain such leave, with the result that a summons was filed on his behalf on 17 May 2005 seeking an extension of time within which to apply for leave to 26 May 2005 and also seeking leave to appeal.

4 Before considering the applicant's case, it is necessary to say something briefly concerning the circumstances applicable to the applicant's claim that his injury is a "serious injury" as defined by s.135A(19)(a) or (c). The applicant was born on 18 January 1969 and thus, at the hearing below, was aged 34 years. He left school at the age of 17 years, after attaining his HSC. After working in a number of unskilled occupations, the applicant commenced work with the first respondent in 1990, building tyre-carcasses. This work necessitated repetitious bending, twisting, pulling and lifting carcasses weighing about 15 to 20 kilograms. It also required him to push across the factory floor spools of material that were five feet high and weighed approximately 500 kilograms. In 1993, the applicant separated from his wife and they were divorced in 1994. Not long after the separation, the applicant attempted suicide. In March 1995, he consulted the company doctor complaining of lumbar back pain both centrally and laterally, but, as I understand it, without describing then, or thereafter, any specific accident or event as being the cause of his problem. Shortly thereafter, his workplace duties were changed in response to his complaints of physical injury, but he claimed in his evidence that his new duties further aggravated his back condition. Notwithstanding this claim, the applicant did not take any time off work between the start of his back trouble and the time he broke his left hand in late 1995 when, in a fit of frustration, he punched a wall. The applicant was off work for some time after this incident, eventually returning in October 1996,[3] but on "restricted duties". In January 1997, the applicant's employment was terminated and, essentially, he has not worked since because, he claimed to her Honour, he was in great pain and could not work.

5 Put shortly, her Honour found that the applicant was an unreliable witness in relation to the nature and extent of his injuries and the pain that he claimed to suffer as a result. Such unreliability was not limited to the evidence that he gave to the court; it applied also in respect of what he told medical practitioners as to his injury. In her reasons for judgment, her Honour comprehensively reviewed the medical evidence on which the parties respectively relied. The preponderance of medical opinion was that the applicant's prognosis was sound and that his claimed level of pain was not borne out by the moderate degree of inflammation or protrusion of L4-5 disc shown up by pathology. Only in one instance had surgery been mentioned by a treating doctor, and even then, only for "consideration". Importantly, the medical material showed that, although the applicant could not engage in work that required a significant amount of bending and the lifting of heavy weights, he was otherwise physically capable of resuming manual work "should he wish to do so". It was also made apparent by the evidence that the appellant suffered from a mild depressive disorder but that any psychiatric condition was secondary to his physical impairment.

6 Although, as I have said, the applicant sought to establish that he suffered "serious injury" within paragraph (a) or (c) of the definition of that term, her Honour firmly concluded that the dominant cause of his condition was the injury sustained to his spinal column rather than any psychiatric injury. As I understand it, the applicant does not challenge that aspect of her Honour's decision but claims, on a number of grounds, to which I shall come later, that the learned judge erred in several respects in concluding that the applicant's impairment to his spinal column did not amount to a "serious injury".

7 It is clear enough that, in order to secure leave, the applicant must establish, at least, that the decision below is attended with such doubt as to justify it being reconsidered on appeal and that substantial injustice will result if the impugned decision was to stand. In my view, her Honour's decision is not attended with sufficient doubt to warrant its reconsideration on appeal. As Callaway, J.A. pointed out most recently in Dodoro[4], it is the practice of this Court, in most cases, not to give other than general reasons for refusing leave to appeal. Accordingly, I shall state only briefly my reasons for reaching the above conclusion. First, in my view, it is not reasonably arguable that her Honour failed to apply correctly the relevant principles of law to the disposition of the case before her or that her decision is manifestly wrong. Secondly, contrary to the principal argument of Mr Spittle, for the applicant, I consider that there is no relevant inconsistency between her Honour's finding on the "serious injury" application and those findings that were relevant to the compensation claims, notwithstanding that the resolution of both claims involved questions of fact and degree, matters of opinion and the like. In respect of the compensation claims, the applicant only had to establish some degree of pain and suffering, whereas the determination of whether the injury was a "serious injury" required that the applicant show that the injury constituted a long-term impairment of the spine, the consequences of which were serious to him. Next, critical to this determination was the credibility of the applicant's claims to the various medical practitioners, and to the court, concerning the nature and extent of his injury. Having seen and heard the applicant, including his cross-examination, her Honour obviously disbelieved him on these matters and as to his claimed inability to work by reason of the physical injury. In my view, it was open, and appropriate, for her Honour to come to this conclusion. Furthermore, even if one were to put the applicant's credibility to one side, as I have noted earlier, the medical evidence did not support the applicant's claim as to the extent of his injuries. It is true that Mr Hooper, a surgeon, said that the applicant was unfit for "heavy bending and lifting", an opinion which the learned judge seemed to have accepted, but if that view is put in the context of the remainder of Mr Hooper's report, it is plain that he considered that there was no abnormality in the applicant's cervical spine and that his back problems were not "significant enough to prevent him working [in all but the heaviest of work], were he motivated to do so". Like other medical witnesses, Mr Hooper considered that the applicant's problems, whilst emanating from the discomfort he has in his back, are predominantly emotional. In the circumstances, there was no impermissible omission by her Honour to take account of the consequences to the applicant in terms of pain and suffering by dealing in her reasons with every alleged symptom of the injury.

8 The applicant's case below was that he could not work at all and, consistently with this approach, no evidence was placed before her Honour that the applicant had suffered economic disadvantage as a result of his inability to perform "the heaviest work". Moreover, the mere fact that the applicant cannot earn his former income is not determinative of the issue of "serious injury". Furthermore, on her Honour's finding the applicant's inability to earn income does not arise from the physical injury sustained by him at work. The present case is not the one or like the one that was considered in Cropp v. The Transport Accident Commission,[5] where, because of the worker's relevant physical injury, he was unable to work at all. In the circumstances, therefore, I consider it was well open to the judge to conclude that the applicant had not established that the impairment was relevantly serious to him.

9 I also consider that it is not reasonably arguable that her Honour applied the wrong test in determining if the consequences of the impairment were relatively serious for the applicant. On a fair reading of her reasons, her Honour did not require the impairment to be "more than very serious", as it seems to have been claimed by the applicant. It is plain enough that her Honour was guided on this issue by reference to whether the consequences of the impairment to the applicant were "more than marked or significant" or were "very considerable". In my view, her Honour addressed herself in accordance with the test stated by this Court in Mobilio v. Balliotis[6] and did not err as contended for by the applicant.

10 Given that the application for leave was not made in time because of the erroneous belief by those advising the applicant that the impugned order was final and not interlocutory, and since the respondent has not been relevantly prejudiced by the lateness of the application, I would extend the time limited for seeking leave to appeal against her Honour's order to 26 May 2005. I would, however, refuse leave to appeal and dismiss the appeal as incompetent.

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Judgment (11 paragraphs)

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