Giannakopoulos v Melwire Pty Ltd & Anor [2000] VSCA 153

Court of Appeal (Vic)|2000-08-14|Before: TADGELL, PHILLIPS and CHARLES, JJ.A.

The application was dismissed, it would appear, on 30 October 1998 on which date the judge delivered considered reasons. Hence this appeal. For some reason not explained the general form of order, as authenticated, recites that it was made on 26 October 1998. That, however, seems to be wrong.

By force of sub-s.(6) of s.135A the appellant was required to satisfy the County Court judge, as a prerequisite to a grant of leave, that the injury in question was a "serious injury" as defined in sub-s.(19) of the section, that is to say, so far as is now relevant, that it was or amounted to a "serious long-term impairment or loss of a body function" under paragraph (a) of the definition. Some reliance was placed below on the definition in paragraph (c) of sub-s.(19), but that was disavowed in this Court.

The learned County Court judge, in reasons succinctly stated, concluded that the material in support of the application did not establish "a work related injury of such seriousness that permits him to pursue his claim". Some criticism was made, to which I shall refer, of the terms of his Honour's reasons. I take him, however, thereby to have expressed himself not to be satisfied that the injury or injuries in respect of which the appellant desired to sue was or were not serious in terms of the relevant definitions in sub-s.(19).

The grounds (or the supposed grounds) of appeal assert non-specific errors on the part of the judge. It is said, first, that the judgment was against the evidence and against the weight of the evidence. I may observe here that a complaint of that kind, as this court has observed times without number, is really no ground of appeal at all. Then it is said, without particularity, that the judge "failed to take into account and/or consider at all medical and other evidence called by on or behalf of the appellant". Thirdly, it is said that the trial judge "erred as a matter of law in the manner in which he applied the provisions of s.135A sub-s.19(a) and (c) of the Accident Compensation Act". Fourthly, it is said that the judge "erred as a matter of law by not accepting unchallenged evidence of the appellant and medical witnesses that he was incapable of performing his pre-accident employment". Fifthly, it was said that the judge "erred as a matter of law in failing to apply the appropriate test or the determination at law of a serious injury within the meaning of" the Act. Finally, it was said that the learned trial judge "erred as a matter of law by failing to provide any adequate reasons for his judgment and in particular (a) the type of work performed by the appellant prior to injury; (b) the absence of employment open to the appellant after injury; (c) the type and nature of the appellant's employment". That last ground is one of which it is not easy to make literal sense. I take it, however, to mean, as counsel argued before us today, that the judge failed to state in his reasons, or to take into account in his reasons, the matters referred to as sub-paragraphs (a), (b) and (c).

Evidently enough, the judge's decision required him to pass upon elements of fact and of degree and to make a value judgment. In the absence of a claim of specific and demonstrable error of fact or law an appellant who seeks to upset a judgment of that kind undertakes a very difficult task indeed. A Bench of five judges of this court in Mobilio v. Balliotis & Ors[1], following abundant earlier authority, variously described the kind of error that must be shown in order that such an appellant might succeed. Without canvassing the various permutations of language there used, and equally without seeking to add to them, I think I may fairly summarize the matter by saying that an appellate court will not interfere in a case like this unless the decision below appears on its face to be patently unsustainable.

The appellant himself provided the only first-hand description of the incident or the circumstance that is said to have produced the injury for which he sought leave to sue. In this respect I think it not unfair to say that his application was incommoded to no small degree by his exceedingly attenuated, equivocal and imperfect description of the event.

I shall summarize, as shortly as may be, what the appellant said in his affidavit. He was born in Greece in 1950 and migrated to Australia in 1973. Before his migration he worked as a farmer in Greece. He married here and has children. His first employment here was with a motor manufacturer for six years. Then he worked at Allens in South Melbourne for three years; then with Repco in Clayton for two years. Then, as he has sworn, he left Repco to run his own business, an out-worker business in machining of clothing, in which his wife helped him. He carried on that business for about six months before commencing employment with the first-named respondent in February 1988 as a press machine operator. Before the injury that he suffered, and of which he now complains, he had not been out of work. He changed work on each occasion looking for better pay and conditions and had not previously received workers compensation payments. Describing his work with the first respondent, he said that it was relatively heavy work, working on rolls of material. "My duties varied, depending upon the work to be completed. My duties included from time to time kneeling upon a concrete floor to cut out steel sheets and then to work upon those sheets with a hammer and spot-welding." The appellant swore that the duties "in relation to kneeling upon the concrete floor and working upon sheets were duties that were normally carried out intermittently. In November 1995 by reason of a very large order I was required to carry out such duties continuously for approximately one week. I was not provided with any knee pads to undertake those duties. In the course of the duties I experienced pain and made a complaint of the pain." I interrupt the narrative there to say that nowhere in his affidavit does the appellant say where he experienced pain or say in respect of what kind of pain he made complaint. He continued: "I also started limping because of the pain. I was, however, expected to continue to do the work and did so until attending upon my family doctor, Dr Jessica Ho. Dr Ho put me off work for a short period of time".

In paragraph 9 of his affidavit the appellant swore that upon resuming work "I continued to have difficulty with my knee." He does not say which knee. He was referred to Mr Michael Khan. "He performed an operation on my left knee on 19 August 1996. I remained off work after that operation until December 1996 resuming work then on light duties working four hours per day". Just stopping there, that date, the time for resumption of work, December 1996, is to be contrasted with a report by Dr David Ho, who examined him and who stated that the appellant resumed work on 14 September 1996.

The appellant, to resume his narrative, swore that he continued back at work from December 1996 until March 1997 when he was again put off work by Mr Khan, and that "I have been unable to resume work since that time because of the injury to my knees and in particular the left knee." Stopping there, that paragraph is in some degree of competition with material that has been provided in doctors' reports to the effect that the appellant did resume work for some short period of time in November 1996.

The appellant continues: "Although the surgery which Mr Khan performed on 19 August 1996, which I understand is called a chondroplasty, produced some relief in the short term I continue to experience significant problems in my knee." He does not say which knee but presumably that refers to the knee which was the subject of the surgery, the left knee. "These problems" he says "have meant I have been referred to other practitioners and in particular to Mr Cvetkovic for regular physiotherapy and to Mr Tolman a neurosurgeon at Monash Hospital who has contemplated further treatment subsequent to a special type of x-ray examination of both knees." If that name, Mr Tolman, is correct, there was no evidence placed before the County Court judge or before us from him.

The defendant stated that he was earning approximately $500 net a week and is now receiving a weekly payment of $262 from WorkCover. He continued: "By reason of my injuries there is no employment of which I have had previous experience or for which I have qualification that I am able to undertake. I am unable to stand for extended periods of time. When sitting, because of the pain in my knee" (not specifying which) "I have problems with my concentration. I have as a consequence of the injury to my knees," (plural) "and in particular the injury to my left knee, been unable to continue with a wide range of activities that I did around my home. Prior to injuring my knee" (not specifying which) "I had a large vegetable garden supplying not only vegetables to my family but also vegetables to friends. I have been unable to continue with this garden. Prior to injuring my knees [plural] I also did all the maintenance type work around my home ... I am now unable to do this type of activity. Prior to injuring my knee [singular] I used to go hunting and fishing which I now cannot do. I also used to go and watch the soccer which I am now unable to do as I cannot stand for any extended period of time."

The appellant went on to say that he was easily upset by reason of his disability and that he had received psychological treatment. He has become depressed and has difficulty sleeping. He continued: "I am concerned as to the future as my injuries now preclude me from carrying on any work that I have had previous experience in undertaking and I am advised by the various doctors and treating practitioners that the incapacity that I have in my knees will be permanent and will preclude me from such work in the future."

That, I think, is as much as I need to say about the appellant's affidavit.

Although the particulars refer to injuries to the appellant's right knee and he, himself, refers to injuries to it, counsel who appeared on his behalf before the County Court judge said that he would not ask the judge to consider the right knee. On that basis the judge apparently considered only such injury as was demonstrated to the left knee.

Speaking for myself, I think it might be doubted whether the appellant, who swore his affidavit through an interpreter, was well served by its draftsman. However that may be he was not invited, when presenting himself for examination and cross-examination before the County Court judge, to clear up any of the ambiguities or to fill any of the gaps in his affidavit.

The appellant, his wife and his son deposed to disability in his legs (plural) giving rise to a more general malaise. The judge appears to have found a degree of functional overlay but that was not the subject of any reliance here in this Court.

There were placed before the County Court judge reports of no less than ten medical and kindred practitioners who treated the appellant or who were consulted on his behalf, and of seven to whom he had been referred on behalf of the respondent concerning his medical condition. No sworn medical evidence as such was called, however, before the judge.

There was some material that could support a view that the appellant was appreciably incapacitated in his legs. For example his treating surgeon, Mr Khan, in a report described post-traumatic synovitis in the knee and described the operation. He said, however, that the pain in the left knee had subsided. In a report dated 17 October 1996, a matter of two months after the surgery, he reported that the appellant was fit for suitable alternative duties but avoiding excessive kneeling, bending on his knees, climbing stairs, climbing up or down, or lifting unusually heavy weights. Later, on 8 September 1998, a month or so before the application to the County Court, and speaking of an examination of the appellant on 9 February 1998, Mr Khan said that the appellant had pain in front of both his knees which was constant in character. He said that his opinions expressed in his previous report remained essentially the same.

The judge might well have concluded that the reports of the various medical practitioners and relied on, on behalf of the appellant, which did demonstrate some disability in the knees, was balanced by evidence to the contrary. There might perhaps be room for argument about the degree of impairment of the appellant's ambulatory capacity, whether diminished by physical or psychological process, or by lack of motivation, as some medical practitioners suggested, or by a combination of all of these.

There was some criticism, as I say, levelled by Mr Stanley, who with Mr Keogh appeared for the appellant before us, of the judge's reasons, which Mr Stanley characterised as seriously flawed. He submitted that his Honour failed to make necessary findings of fact upon which to support the conclusion that he expressed. In the circumstances, as it was submitted, it was not possible to discern the facts upon which the learned judge relied for his decision. Thus, as the submission ran, the application below raised for consideration, and the case called for findings to be made, upon the following matters, but none was made. It was said that there were no findings about the level of the appellant's disablement; the extent of his capacity for work; whether he had suffered or would suffer pecuniary disadvantage as a result of the injury which was complained of; the extent to which the injury or injuries interfered with the appellant's enjoyment of life; the appellant's credibility generally; his complaints of pain upon working; or the extent of aggravation of any pre-existing condition. The judge said that he accepted some medical evidence, that of Mr Flanc, a general surgeon, but he made no assessment of any degree of aggravation upon a consideration of the evidence.

It is, I think, fair to say that the judge's reasons were exiguous and were not in all respects entirely satisfactory. Charles, J.A. in the case of Cropp v. Transport Accident Commission & Anor[2] had occasion to consider the sufficiency of a County Court judge's reasons given upon an application under s.93(4) of the Transport Accident Act 1986, making a finding that an injury was not a serious injury in terms of s.(97(17) of that Act. The extent of a judge's duty to give reasons depends, as Charles, J.A. there noted, on all the circumstances of the case. Referring to authority, his Honour observed that reasons given will be inadequate if an appeal court is unable to ascertain the reasoning upon which the decision is based. His Honour referred to the judgment of Gray, J. in Sun Alliance Insurance Ltd v. Massoud[3], in which it was said that a party "was entitled to have the evidence weighed by the Court and, if rejected, the grounds of its rejection expressed in reasoned terms. To have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant."

In this case, without citing that passage, Mr Stanley, on behalf of the applicant, expressed a similar sentiment and submitted that, if the judge rejected the evidence given by the appellant in his affidavit as to his disability and the consequences of it, he was entitled to know why the judge had rejected it.

In Cropp's case a problem arose because there was a conflict of evidence and the resolution of the conflict was important to the outcome of the application. It appeared that, for reasons unexplained, the judge had not acted on certain evidence favourable to the applicant before him and, as Charles, J.A. said, the learned judge's reasons "make it no easy task to establish the evidence he accepted or rejected or by which he was not persuaded.".

We were referred today to the reasons of Chernov, J.A. in Barlow & Anor v. Hollis[4]. Without quoting his Honour in terms, Chernov, J.A. remarked that judgments which are concerned with determining whether an injury was serious are usually less detailed than those given after the trial of an action. Nevertheless, as his Honour said, a judgment upon an application for leave to bring a proceeding for damages should set out the relevant evidence, without necessarily going into detail, and the material facts and the steps in the reasoning process so as to make clear the basis upon which the decision was made.

I think it is true to say that the County Court judge's reasons in this case did fail to deal with a number of the matters about which Mr Stanley complained. Notwithstanding Mr Stanley's objurgations I have, however, with some reservation, concluded that the judge's reasons fall short of being insufficient in the manner in which, for example, the County Court judge's reasons were insufficient in Massoud's case.

As Mr Ruskin (who appeared with Mr Ireland for the respondent) pointed out, the judge's reasons, admittedly exiguous, did state a finding that there was in this case, in his opinion, not a continuing serious physical injury, and not a serious injury in the sense that the appellant was not wholly incapacitated for work. There were no reasons given but the judgment, I think, can be upheld upon the footing that the judge did say, and say satisfactorily, that in this case the appellant had not established a work related injury capable of being classified as a serious injury by reference to the relevant definition.

One can put aside the other shortcomings of the reasons for judgment. When all was said and done, a threshold question to be answered favourably to the appellant was whether the employment was a significant contributing factor to the injury which was complained of. The injury which was complained of here was an injury to the left knee only and the judge, having considered all the medical reports and sworn evidence, was entitled to conclude that, no matter what else, the injury complained of was not shown by the appellant on his story to have been one which was significantly contributed to by the employment.

On that narrow footing I think that the ruling below ought to be upheld and the appeal dismissed.

I agree. I would simply add two things. First, I mention another illustration of the uncertainties - and hence in part the difficulties - attending this application because no attempt was made to resolve them at trial.

As the presiding judge has mentioned, in the affidavit sworn on 3 August 1998 (through an interpreter) and filed in support, the appellant described his employment duties as including, "from time to time kneeling upon a concrete floor to cut out steel sheets and then to work upon those sheets with a hammer and spot welding". Those duties, he said, were "normally carried out intermittently", but in November 1995 "by reason of a very large order [he] was required to carry out such duties continuously for approximately 1 week". That was how the appellant described events and that is how the matter was opened by his counsel.

A different picture, however, is painted in the comprehensive report of the treating psychologist, Mr George Tsironis, which was dated 22 October 1998 and relied upon by the appellant. Presumably Mr Tsironis, who makes no reference to the presence of an interpreter, obtained his information directly from the appellant. He describes the relevant machine in some detail, as one to bend and fold wire mesh screens to a required size. He says that during the week leading up to 5 December 1995 the appellant "was required to kneel on the mesh laid on an uneven floor. He was required to use tin snips to cut the screen edges to size and then spot-weld the wires" and it was this which he found awkward. It is then said of the appellant that he was "unable to avoid kneeling on the wire mesh to perform these duties. He felt uncomfortable, frequently feeling the wires squeeze between both his knee caps and the leg bones beneath them".

No attempt was made below to reconcile one version with the other.

Secondly, I would record this: that although Mr Stanley drew attention in a general way to the procedures followed in the County Court for hearing applications such as this, and to what he said were the difficulties created by this procedure for applicants, the Notice of Appeal did not contain any ground specifically alleging some want of procedural fairness, nor did Mr Stanley submit that that had been so in this instance.

I agree that this appeal should be dismissed for the reasons given by Mr Justice Tadgell. I also agree with what has been said by Mr Justice Phillips.

The judgment of the Court is that the appeal is dismissed with costs.

[4] [2000] VSCA 26 at [15] and [16].

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