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[2006] VSCA 104
Court of Appeal (Vic)
2006-05-10
CHERNOV, REDLICH, JJ.A. and MANDIE, A.J.A.
Original judgment source is linked above.
Accident compensation - Work related injury - Leave to bring common law proceedings - Serious injury - Permanent mental or behavioural disorder or disturbance - Credibility of applicant - Appellant unreliable historian - Preponderance of expert medical evidence not preferred by trial judge - Accident Compensation Act 1985, s.134AB(37).
1 The appellant, Suzana Gjorgovska, appeals against the decision of a County Court judge of 8 April 2005 dismissing her application for leave to bring common law proceedings for recovery of damages for pain and suffering and pecuniary loss arising out of injuries that she claims to have sustained in the course of her employment with the first respondent on 23 April 2001. The application was made pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 ("the Act") and, at the outset, was based on the claim that the injuries fell within the definition of "serious injury" in s.134AB(37)(a) and/or (c) of the Act. As will be explained more fully later, during the hearing of the application, the appellant confined her claim to one that was based on the definition of "serious injury" in paragraph (c) of s.134AB(37) of the Act. Thus, her ultimate case was that, as a result of an incident at the workplace, she suffered permanent, severe, mental or behavioural disorder or disturbance essentially constituted by post traumatic stress disorder, pain, panic disorder with agoraphobia, chronic adjustment disorder with depressed mood and anxiety and depression.
2 The circumstances giving rise to the appellant's claim, as found by her Honour, were these. She was employed by the first respondent as a cleaner at La Trobe University each week day between the hours of 4.00am and 6.00am. On 21 April 2001, while working during those hours with a fellow employee, Sam Emini ("Sam"), the appellant attempted to enter a room on the third floor of the building with a view to cleaning it but she could only open the door slightly because it was blocked from the other side. As she commenced to open the door, she heard a male voice coming from the room that spoke in a language other than English. The appellant became frightened, closed the door and fled, apparently to find Sam who was on a lower floor. As she ran, she tripped and fell on the stairs onto her left side. She nevertheless continued until she found Sam and, together, they went to the room in question and found a man, apparently of Chinese origin, standing near its door. The appellant had a brief conversation with him and then telephoned her supervisor who attended the scene and later told the appellant that the man had been asleep in the room. According to the appellant, the incident caused her to be disoriented with the result that she could not remember the supervisor's telephone number and therefore had to ring her husband in order to obtain it. The intruder was later removed by security guards. Although she was shaken, the appellant attempted to continue with her work. She was told by the supervisor to fill out an accident report form and to take a week off. She went home and has not worked since.
3 Later that day the appellant consulted her then general medical practitioner, Dr Nassios, who spoke Macedonian, about her sore leg and the anxiety that she said arose from the incident. In July 2001 Dr Bond became her treating general practitioner. Because the appellant continued to complain of physical and psychological symptoms that she claimed arose from the incident, she was referred to a number of specialists, including a neurosurgeon (Mr Jensen), a neurologist (Dr Symington), sport and rehabilitations specialists (Drs Stone and Lim), and a psychiatrist (Dr Ranaweera). She was treated by a Macedonian speaking psychologist, first Ms Tashevska, and then she continued to see Mr Stojcevski on a regular basis. The appellant was also assessed for medico-legal purposes by three orthopaedic surgeons (Messrs Deacon, Buzzard and Dooley), four psychiatrists (Drs Cohen, Epstein, Strauss and Mendelson), an occupational physician (Dr Castle) and the medical panel.
4 The appellant said in her evidence that, before the incident of 23 April 2001, she was fit and well, and enjoyed life, drove a motor car and was able to look after her household and children. But this has changed, she said, as a result of the injury she sustained on that day. She told the health practitioners and the court that she experiences flashbacks to the incident and is particularly frightened at night when her husband works night shift, leaving her alone with the children. She constantly checks that the windows and doors are locked and has called her husband at work a number of times to come home because she was frightened. The appellant said that she now has panic attacks, is constantly anxious for no apparent reason, cries a lot, has regular dreams that wake her up, and that her relationship with her husband has been detrimentally affected. The appellant also contended that she experiences constant pain in her back and her left leg which affects her mobility and that she has to use a walking stick to support her because sometimes her left leg gives way. In light of these matters, the appellant claimed she spends most of her time at home and is unable to work. She sees Dr Bond regularly and continues to be certified by him as unfit for all work. Her Honour noted in her reasons that the appellant said that she could not return to work at a clinic at which she used to work on weekends because of her back pain and also because she was afraid that she would end up like the patients there. She also said that she last saw Work Solutions, a work placement organisation, in May 2004 and they could not identify any work for her.
5 At the date of the hearing the appellant was aged 40. She was born and educated in Macedonia where she completed secondary school, before working largely in factory jobs until her marriage. She and her husband arrived in Australia in 1991 and have two children, one born in 1992 and the other in 1994. In 1996 the appellant obtained work on weekends as a cleaner at the Albert Road Clinic and, in May 2000, she secured a second job, with the first respondent, cleaning at La Trobe University. The appellant claimed that she is unable to speak English fluently and has a limited understanding of spoken English. She said that she can read a few words in English, but cannot write it at all.
6 In late 1998 the appellant was involved in a car accident in which she sustained some injuries. She received treatment for them from Dr Nassios, who also referred her to a number of specialists.
7 The appellant's case as first presented to the court was, as I have noted, that she suffered from a physical as well as a mental injury. In order to provide a context in which the appellant's abandonment of her claim for leave based on physical injury took place, it is necessary to set out briefly the medical evidence that was placed before this court by way of reports from various medical specialists. As is apparently customary in applications of this nature, the medical experts were not cross-examined although, as I will mention again later, the appellant was cross-examined. The evidence of the medical specialists is sufficiently summarised by her Honour in her reasons and it has not been suggested by the appellant that she relevantly erred in that respect. Consequently, it is only necessary for present purposes to refer to the essential parts of the judge's summary of that material. As I have said, the appellant saw Dr Nassios shortly after the incident and, thereafter, on a number of occasions until she commenced consulting Dr Bond. In his report of 5 July 2001, prepared for the employer's insurer, Dr Nassios said that he had diagnosed the appellant as having soft tissue injury to the lower back and left leg and severe anxiety reaction to the shock of seeing a stranger. He said she could work in light duties in daylight hours in company with another worker and expected her to make full recovery within six months.
8 Dr Bond provided a number of reports and concluded in February 2004 (and confirmed in January 2005) that the appellant was fit for part-time light duties either in a call centre, or light cleaning duties with a feather duster. He considered that her psychological and physical injuries contributed equally to her incapacity for work.[1]
9 In October 2001 Mr Jensen wrote to Dr Bond saying that the appellant was suffering from back pain and left sciatica and, in late March 2002, considered that her condition had "evolved" and that she be referred to a multi-disciplinary pain clinic. In his report of 25 February 2004, Mr Jensen noted that the appellant had "been overtaken by psychological catastrophe" and said she was totally incapacitated for any employment.
10 In his reports of 31 May 2004 and 18 February 2005 Mr Stojcevski diagnosed the appellant as suffering from post traumatic stress disorder and considered that ongoing therapy was merely preventing further deterioration in her psychological state and concluded that he would be "surprised" if she would work at all in the "foreseeable future".
11 Dr Cohen, who saw the appellant in 2001, 2003 and 2005, said in his reports that he considered that the appellant suffered from post traumatic disorder and recommended specialist psychiatric treatment. He said that she had no current work capacity. He noted in his report of 13 August 2003 that the appellant had become "fairly well entrenched in the invalid role", and that she had not been receiving adequate or appropriate psychiatric treatment in the previous two years. In his report of 2 March 2005 Dr Cohen said that it was probable that her impairment would not resolve even with ongoing treatment and that the language barrier would be a major obstacle to successful treatment. He found, however, that the appellant was not entirely co-operative in that she refused to speak any English to him even though she agreed that she regularly saw Dr Bond without an interpreter.
12 The appellant saw Dr Strauss in late July 2003. He considered that she had developed the elements of a post traumatic stress disorder and anxiety and depression secondary to her physical injuries. He noted that "she has adopted the role of a semi-invalid" but said that he had no evidence to suggest that she was deliberately "over exaggerating her problems".
13 Dr Epstein, who examined the appellant in April and December 2004, diagnosed her as suffering from post traumatic stress disorder associated with panic disorder and agoraphobia and depression resulting from a combination of the physical and psychiatric effects of the incident. He concluded that she had no current work capacity and, later, confirmed his earlier opinion and noted that the appellant "has developed, at least to some degree, a chronic pain syndrome in which her complaints of pain are in excess of any physical signs ... [and] that she has reacted excessively to this situation". Nevertheless, he said that he saw no reason to have concerns about her credibility.
14 In December 2003, the medical panel found that the appellant was suffering from a post traumatic stress disorder with depression, a panic disorder with agoraphobia and a pain disorder, as a psychological reaction to the work place incident.
15 On the other hand, Dr Mendelson, who saw the appellant in August 2004, considered that, despite her complaints of anxiety and left leg symptoms, she did not describe the specific symptoms needed to fit the criteria for post traumatic stress disorder.[2] He concluded that she suffered from no diagnosable mental disorder, noting that her "manifestations of anxiousness" were "fairly non-specific" and that her physical and emotional symptoms were being perpetuated by her anger and resentment and therefore were not permanent. I will deal further with Dr Mendelson's report at a later stage.
16 The judge delivered a careful set of reasons in which she examined, amongst other matters, the medical evidence and the consequences for the appellant of the pain and suffering and economic loss arising from the psychiatric disturbance that she said she suffered as a result of the event in question. Importantly, her Honour concluded that the appellant was not a credible witness and that she exaggerated the effect of the incident on her as well as her symptoms when providing the relevant history to the medical experts and to the court. The judge was also not satisfied that the appellant discharged the onus of establishing that her mental or behavioural disorder or disturbance was severe or permanent and that the same applied to her claimed loss of earnings. Moreover, her Honour considered that the appellant failed to disentangle the source of her relevant problems as between the physical and mental impairments.
17 More particularly, the judge said that, in her view, the incident giving rise to the appellant's claimed injury did not meet the first criteria for post traumatic stress disorder, namely "an event that involved actual or threatened death or serious injury". Her Honour said that she accepted as accurate Dr Mendelson's description of the event as a "frightening experience" which, the judge said, did not fall within the first limb of the accepted definition of post traumatic stress disorder.
18 Her Honour went on to say that, even if the incident of the kind described by the appellant could found a diagnosis of post traumatic stress disorder, she was not satisfied on all the evidence that the appellant found it to be one that involved "actual or threatened death or serious injury". The learned judge considered, as I have said, that the appellant exaggerated her description of the event and its initial impact on her both to the doctors she saw and to the court. In particular, said the judge, the appellant's return to the room with her co-worker and her verbal exchange with the intruder suggested that the event involved no actual or threatened harm.
19 It is plain from the material before us, including her Honour's reasons, that at the trial the respondent put the appellant's credit in issue. Thus, the case was conducted below essentially as one where the credit of the appellant was the, or a, principal issue and Mr Collis, who appeared before us for the appellant, did not contend otherwise. Since the resolution of the appellant's credit is plainly relevant to her case, it is appropriate to look briefly at the context in which her Honour made the finding in this regard. The respondent's principal case was that the appellant had deliberately exaggerated the degree to which she was frightened by the incident of 21 April 2001 and its effects on her. At the trial, much of the attack on the appellant's credit focussed, in the first instance, on her claim that the incident resulted in her suffering a permanent severe impairment of her lumbar spine. The respondent contended that the appellant had not suffered any such injury following the incident in question given that she initially complained only about her lower left leg and that any back injury she may have had arose as a result of the car accident in which she was involved in late 1998. As I have said, considerable cross-examination was directed to these issues and that seems to have brought out that the appellant falsely denied to her medical practitioners, who examined her for the purpose of this proceeding, that she had these earlier back problems. This stood in stark contrast with her complaints to Dr Romas in May 1999 concerning her claimed back injury. Other matters on which the appellant was skilfully cross-examined by the respondent's senior counsel included the following:
(a) The failure to tell some of the examining doctors that she had returned to the scene after finding Sam and had spoken to the intruder;
(b) That she did not need to use a walking stick but was able to be weight bearing in May 2001;
(c) That she changed from Dr Nassios, who was local and spoke Macedonian, to Dr Bond, who lived in Collingwood, requiring her to drive from Thomastown to Collingwood (in circumstances where she claimed she had pain associated with driving) only because Dr Nassios told her she should return to work;
(d) That she failed to co-operate with doctors she had seen at the request of the respondent by refusing to speak English to them, notwithstanding that she communicated with Dr Bond only in English.
20 It was after the appellant was cross-examined on these matters during the morning of the first day of the hearing that, after the luncheon adjournment, her counsel informed the court that the appellant withdrew the claim based on the alleged impairment of her lumbar spine. There was other evidence which suggested that the appellant exaggerated her symptoms, such as Dr Castle's reference in his report, to the effect that the appellant's expressions of pain were not consistent with the degree of pressure exerted nor the type of movement required. Other medical practitioners - such as Mr Deacon and Mr Dooley - also noted the appellant's exaggerated demonstration of her symptoms. Mr Buzzard expressed doubt as to her reliability as an historian, as did Drs Strauss and Epstein, although it was acknowledged by some of them that they had no reason to have concerns about the appellant's credibility. I note, however, that they were not in a position to make an assessment of the appellant's credibility as her Honour was.
21 Her Honour carefully explained in her reasons the bases on which she concluded that the appellant was not a witness of credit in terms of her evidence to the court and as an historian. It is not necessary to restate here all the matters that her Honour took into account in coming to that conclusion, but it is apparent that much of it was based on her Honour seeing and hearing the appellant being cross-examined in the witness box. An important consequence of her Honour's rejection of the appellant's credibility was that the judge went on to conclude, as it was open for her to do, that the appellant exaggerated the description of the event and its impact on her, both to the doctors she saw and in her evidence.
22 As I understand, Mr Collis acknowledged that it was open to her Honour to come to such a conclusion, but argued that the learned judge erred in treating this conclusion as determinative of the issues before the court. Counsel said that the other circumstances that pertained to the incident and its effect on the appellant's psychological condition demonstrated that she suffered the mental or behavioural disorder for which she contended. I will come back to this claim, but it is convenient first to deal with the appellant's other contentions.
23 It was first argued for the appellant that her Honour erred in concluding that the incident - the unexpected finding of an intruder and its consequences - did not meet the description of the first criteria of the definition of post traumatic stress disorder. It is not clear to me what her Honour meant by the impugned statement, but if the judge considered that an incident such as the one in question can never give rise to a perceived threat of death or serious injury by a person in the position of the appellant for the purpose of the accepted criteria of post traumatic stress disorder, then I think her Honour would have erred. It is not necessary, however, to dwell on whether her Honour actually held that view because it is apparent that, given the findings as to the appellant's credibility, it was open to her Honour to conclude, as she did, that the appellant did not consider the event as one that involved actual or threatened death or serious injury, and for that reason, there was a failure to satisfy the definition of post traumatic stress disorder.
24 It was the appellant's case on appeal that, in coming to her impugned conclusion, her Honour misunderstood the evidence, or alternatively, the conclusion was against the evidence or the weight of it. More specifically, the appellant attacked her Honour's conclusion that the appellant's return to the scene of the incident was an indication that she may not have been as frightened or terrified of the intruder as she asserted to a number of medical practitioners and the court. It was contended by counsel that the incident frightened her to the extent that she feared for her life, thereby causing her to lose, temporarily at least, the ability to think clearly during the immediate aftermath of the event and to rush downstairs to try and find Sam. It was said that it was in that context that she returned to the scene. It was further argued that, in any event, it was understandable that the appellant came back with Sam because she would have been too frightened to remain by herself while her co-worker went upstairs to confront the intruder. But the short answer to these submissions is, I think, that her Honour did not accept that the appellant was terrified to the extent claimed and it was open to the judge to consider that her return to the scene was inconsistent with her allegation of terror. I note for completeness that the appellant did not contend in her evidence-in-chief that the reason she came back to confront the intruder was because she was too frightened to remain by herself on the lower floor. In the circumstances, her Honour's conclusion that the appellant's return to the scene was inconsistent with her claim that she was terrified was plainly open.
25 It was further said for the appellant that her immediate flight upon hearing the intruder was corroborative of her frightened state at the time and of her apprehension that she might be killed. It was also claimed that, by reason of the incident, the appellant was in a state of shock, was tearful and shaking, all of which, it was said, was corroborative of such a frightened state of mind. The appellant contended that her Honour appears to have accepted this claim. In my view, however, although it is plain enough that her Honour considered that the appellant was very frightened as a result of hearing the intruder, I do not read her reasons as expressing the acceptance, in terms or impliedly, that the appellant was then in a state of shock as claimed by her. I note that the appellant did not say in her evidence-in-chief that she thought at the time that she might be killed by the intruder. It was only during her cross-examination that she claimed, in an argumentative way in response to questions directed at ascertaining what it was about the incident that made her frightened, that the intruder might have raped or killed her. Be that as it may, in the end, whether the appellant's claim that she held that belief was to be accepted depended on the judge's view of her credibility and, as I have said, it was well open to her Honour to conclude that the appellant exaggerated the incident and its effect on her.
26 The appellant also argued that her Honour erred in effectively rejecting the preponderance of the medical opinions that the appellant suffered from post traumatic stress disorder and preferring the diagnosis of Dr Mendelson to the contrary effect. It was said that Dr Mendelson's opinion should not have been preferred because he saw the appellant only once (whereas other medical practitioners, such as Dr Cohen, saw her on a number of occasions since the incident) and because Dr Mendelson gave no explanation for his conclusion that the appellant did not meet the criteria for post traumatic stress disorder. In my view, however, the fact that the appellant only saw Dr Mendelson once is no basis for her Honour not accepting his opinion and, when one reads his three reports, it is plain that he formed his conclusion in light of what the appellant told him as to her reaction to the incident and her symptoms. He concluded:
"While clearly [the appellant] had been startled to find a man in the office during the night, and might have felt frightened, in my opinion this incident does not meet the requirements of [the first criterion] ... for post traumatic stress disorder .... [The appellant] also does not describe the specific symptoms that must be present to meet the other diagnostic criteria for this condition. She describes a number of manifestations of anxiousness, but these do not meet the ... criteria."
Dr Mendelson said in his reports that the appellant appeared resentful and aggrieved when she spoke about her supervisor's attitude immediately following the fall and when she spoke about her dealings with the insurance company and that it was his impression that the appellant described events and symptoms in a somewhat overdramatised manner. Dr Mendelson also said that it could well be that the appellant's resentful and aggrieved attitude were factors that tended to perpetuate her current complaints and that "the finalisation of [the appellant's] claim will have a favourable effect on her complaints".
27 It is true that the preponderance of the psychiatric evidence was that the appellant suffered from post traumatic stress disorder, but it was nevertheless open to her Honour to prefer the opinion of Dr Mendelson for at least two reasons. First, once the judge concluded that the appellant unduly exaggerated the extent to which she was frightened by the intruder and the effect of the incident on her psychiatric state, it necessarily meant that the judge's view as to effect of the event on the appellant was relevantly similar to that of Dr Mendelson. Thus, it is unsurprising that her Honour preferred his diagnosis and opinion. Secondly, the conclusions of the other psychiatrists and Mr Stojcevski were, as I have noted, plainly dependent upon the appellant being a reliable historian and on her performance during her examination. And given that the trial judge, who has had the advantage of assessing the appellant's credibility came to the conclusion that she was not a credible witness, this finding throws doubt on the reliability of those medical opinions.[3] It may be said that, as a matter of logic, a finding that the claimant lacked credit in the witness box does not mean that she was not a reliable historian. But where, as here, the appellant's lack of credibility related to the same matters that were the subject of her history to the medical experts, then it is a short step from finding that the witness was not credible in the witness box to the conclusion that she was an unreliable historian and, therefore, the opinions of the medical experts have been provided on a false premise. Thus, I consider that there was no relevant error by her Honour in concluding that the appellant did not satisfy the requirements of the first category of the definition of post traumatic stress disorder.
28 I now come back to the appellant's claim that her Honour erred by treating the conclusion as to the appellant's credibility as determinative of the issues before the court. In support of this submission, Mr Collis relied on Forder v. Hutchinson[4] in which Nettle, J.A. said that the trial judge erred in concluding that, merely because the applicant for leave lacked credibility as a witness, his application should be dismissed. In that case, however, there was other evidence of an objective nature that could be taken to support the appellant's case and the problem was that the judge had failed to take it into account. But as Mr Forrest pointed out, Forder is of no assistance in this case because here, unlike the situation in Forder, the appellant's credit was critical to the outcome of the case, essentially because the opinions of the examining psychiatrists were based on her evidence of the event and her reaction to it. Obviously enough, if the history that she provided to them was unreliable, their opinions would have to be construed in that context. And there was no other objective evidence that supported her case.[5] Thus, once the trial judge found that the appellant was not credible, and it is assumed that the finding was open, it is difficult to see how the judge erred in taking the next step of concluding that the appellant failed to establish that the event gave rise to a mental disorder for which she contended.
29 In any event, it was for the appellant to establish that her relevant impairment and loss arose from her mental disorder or behavioural disturbance as distinct from the physical injury and I think that it was open to her Honour to conclude that the appellant had failed to do that, with the result that the judge was not satisfied that the consequence of the appellant's mental disorder could fairly be described as more than serious to the extent of being severe for the purpose of s.134AB(38)(d) of the Act.
30 Thus, I consider that there was no relevant error in her Honour's decision to dismiss the appellant's application.
31 I now turn to the appellant's new ground of appeal under cover of which it was claimed that her Honour's decision was vitiated by her failure to provide adequate reasons for the impugned decision. The appellant was granted leave at the outset of the hearing of the appeal, without objection from the respondent, to amend her notice of appeal to include this ground. Counsel's principal argument was that her Honour failed to explain adequately why she effectively rejected the preponderance of the psychiatric evidence to the effect that the appellant suffered from post traumatic stress disorder. It is clear enough that, ordinarily, failure by the judge to explain adequately the reasoning process that has led to the conclusion in question constitutes error of law and vitiates the decision[6] and such inadequacy includes failure to explain why critical or important evidence has been rejected.[7] In my view, however, it is apparent from her Honour's reasons why she preferred the opinion of Dr Mendelson to that of other psychiatrists. First, as I have said, given the conclusion that the appellant exaggerated the extent to which she was frightened by the incident and the effect of it on her psychiatric state, this necessarily meant that her Honour considered that the appellant's position in those respects was relevantly similar to that on which Dr Mendelson founded his opinion. Secondly, it is also plain that her Honour effectively rejected the opinions of the remaining psychiatric experts because those opinions were compromised by the unduly exaggerated history given to them by the appellant. As I have noted, a number of the experts had reservations about the appellant as an historian although, unlike her Honour, they were not in a position to make a meaningful assessment of that issue.
32 I mention for completeness that the appellant complained that her Honour failed to refer to the evidence of Dr Strauss and Mr Stojcevski when dealing with this issue. In my view, the mere fact that the judge did not specifically refer to this
evidence when dealing with the assessment of the psychiatric evidence does not mean that she did not have regard to it. It is abundantly clear from her Honour's reasons that she was well aware of the opinions of the two experts, having referred to them earlier in her decision, and that she had them present to her mind when she considered whether to prefer the diagnosis of Dr Mendelson. But even if her Honour did not have regard to the views of the two health experts for the purposes described, the appellant was not thereby prejudiced because these opinions were based on the same false premise on which the opinions of the other experts were based and, therefore, they would not have assisted her case.
33 In the circumstances, I consider that this ground should be rejected and that the appeal should be dismissed.
34 I have had the advantage of reading the draft reasons for judgment of Chernov, J.A., and agree that, for the reasons given by his Honour, the appeal should be dismissed.
[1] In the report of January 2005, he noted that the psychological injury contributed "substantially" to the appellant's incapacity for work.
[2] The accepted definition of post traumatic stress disorder - found in DSM-IV - Item 309.81 - is in the following terms:
"The person has been exposed to a traumatic event in which both of the following were present:
(1) The person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury or threat to the physical integrity of self or others;
(2) The person's response involved intense fear, helplessness or horror."
[3] See the observations in that regard by Brooking, J.A. in Palmer Tube Mills (Aust) Pty Ltd v. Semi [1998] 4 V.R. 439 at 448 and in Mobilio v. Balliotis [1998] 3 V.R. 833 at 836, and Day v. Electronik Fabric Makers (Vic) Pty Ltd [2004] VSC 24 at [55] per Nettle, J.
[5] See the helpful summary of authorities bearing on this issue in the judgment of Redlich, J. in Barneveld v. Hume City Council [2004] VSC 350 at [18]- [25].
[6] See, for example, Fletcher Construction Australia Ltd v. Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 V.R. 1 at 31-34, 43, 44-45; Sun Alliance Insurance Ltd v. Massoud [1989] VicRp 2; [1989] V.R. 8 at 18-19 per Gray, J.; Soulemezis v. Dudley (Holdings) Pty Ltd (1987) 10 N.S.W.L.R. 247 at 279-280 and 282 per McHugh, J.A.
[7] See, for example, Sun Alliance Insurance at 18 per Gray, J.; Fletcher Construction at 32; English v. Emery Reimbold & Strick Ltd [2002] EWCA Civ 605; [2002] 1 W.L.R. 2409 at 2417-2419 per Lord Phillips of Worth Matravers M.R. (for the court). and Hunter v. Transport Accident Commission [2005] VSCA 1 at [21] per Nettle, J.A.
Gjorgovska
AFM Cleaning Services Pty Ltd & Anor [2006] VSCA 104