Pisano v Precision Solid Plasterers Pty Ltd & Anor [2012] VSCA 226

1 Robert Pisano, the appellant, made application under s 134AB(16)(b) of the Accident Compensation Act 1985 ('the Act') for leave to issue a proceeding for the recovery of damages in respect of injuries allegedly sustained in the course of his employment with the first respondent, Precision Solid Plasterers Pty Ltd.[1] The application was heard in the County Court by Judge Misso on 5 and 8 August 2011.

2 The appellant relied upon a low back injury, which he claimed was sustained by him in the course of his employment with the first respondent from 20 October 1999, and in particular in and about November 2007. The appellant claimed that this injury satisfied paragraph (a) of the definition of 'serious injury' contained in s 134AB(37) of the Act. The application was made in respect of both pain and suffering and pecuniary loss damages.

3 On the hearing of the application, the appellant relied upon affidavits he swore on 10 March 2010 and 3 August 2011. The appellant and his treating general practitioner, Dr Ng, were the only witnesses to give viva voce evidence. Both sides tendered, without objection, documents from their respective Court Books, including a number of medical reports and reports of radiological examinations.

4 On 26 August 2011, Judge Misso gave judgment dismissing the appellant's application.

5 By notice of appeal filed 9 September 2011, the appellant seeks orders that the appeal be allowed and the proceeding remitted to the County Court for fresh hearing and determination.

6 In his notice of appeal, the appellant relies upon the following grounds:

1. The Learned Trial Judge erred in determining that, prior to suffering a further aggravation on or about 26 May 2010, the Plaintiff demonstrated a capacity for suitable employment.
2. The Learned Trial Judge erred in categorising the Plaintiff's evidence as demonstrating that the Plaintiff's only difficulty in undertaking a return to work in 2010 was the driving to and from the employment, when there was no or not sufficient evidence to support such categorisation.
3. The Learned Trial Judge erred in holding that the Plaintiff has failed to establish that the aggravation of his injury which was the subject of this application constituted a 'serious injury' within the meaning of the Accident Compensation Act.

7 In his outline of submissions, the appellant gave notice that he would apply at the hearing of the appeal for leave to amend the notice of appeal to add further grounds as follows:

His Honour erred by -

(a) failing to provide adequate reasons for the conclusion that the furniture salesman position constituted suitable employment;

(b) misapprehending the full input (scil, import) of the evidence of Dr Ng;

(c) treating the couch episode as an unrelated novus actus interveniens.

8 The application to amend the notice of appeal was made before us, and not opposed by the respondents.

9 Until 10 December 2009, s 134AD of the Act provided that on an appeal made on an application under s 134AB(16)(b), the Court of Appeal was required to decide for itself whether the injury was a serious injury. Section 134AD was repealed on 10 December 2009, after the injuries the subject of this proceeding were sustained but before the appellant issued his application in the County Court. While arguments might be made about the continued application of s 134AD to cases such as the present,[2] the parties were content to proceed before us on the assumption that, because of its repeal prior to the commencement of the proceeding below, s 134AD has no application in this appeal. Notwithstanding the arguments that might be made in respect of this issue, we are content to adopt the position taken by the parties.

10 A summary of the proceedings, the facts and the issues has been prepared by the appellant. The following outline is drawn from that document.

11 The appellant was born on 18 March 1969. He was educated to Year 10 and generally worked in family businesses in shops, then as a scaffolder. In 1997, while working as a scaffolder, he suffered a low back injury which was diagnosed by Mr Turner, orthopaedic surgeon, as an L4/5 disc prolapse causing some impingement on the L5 nerve root. He was treated conservatively and had some time off work between March and May 1998. He attended his general practitioner up to and including 1998, and once further on 8 July 1999 regarding his lower back, but did not have any further consultations relating to his lower back injury until late 2004.

12 From October 2004, the appellant claimed to have noticed the onset of further leg pain. There was a dispute at trial as to when the appellant first suffered and complained of right leg pain. The trial judge did not accept the appellant's claim that he told his general practitioner, Dr Ng, that he was suffering right leg pain before a consultation on 7 June 2010. However, the trial judge accepted that the appellant experienced some right leg pain before that time, he having made earlier complaints of a limited nature to other medical practitioners.

13 The appellant saw Dr Ng once in October 2004, twice in January 2005 and once in February 2005. He returned to Mr Turner in January 2005. A CT scan at that stage revealed a disc prolapse at L4/5. The appellant was again treated conservatively, although the possibility of surgery was discussed. He had no time off his work as a scaffolder, although he was partly working in a supervisory capacity. He was last seen by his treating specialist, Mr Turner, on 17 June 2005.

14 The appellant then continued to work until late 2007. He saw Dr Ng on 20 November 2007 with complaints of neck and mid-back spasm. The appellant alleged that the following day he was required to perform work putting covers on weep holes and loading buckets and, by the end of the day, he was in terrible pain. He has not worked with the first respondent since that day.

15 Since then, the appellant has had only one employment, working for his brother, who ran a furniture store, Andrews and Parker Furnishings in Geelong. He was employed from 24 May to 21 June 2010. On 26 May 2010, he moved a couch in the course of this employment and suffered further pain (referred to by the parties as 'the couch incident'). He attended Dr Ng on 7 June 2010. Dr Ng's notes record, and in his evidence Dr Ng said, that he was first aware on that date of a complaint of pain in the right leg. However, as we have said above, the trial judge accepted that earlier complaints were made to other medical practitioners of some right leg pain 'but it was modest and not sufficiently troublesome to the [appellant] to report to Dr Ng or to Mr Turner'.[3]

16 In the first 57 paragraphs of his Honour's reasons, the trial judge carefully set out and analysed the issues and the evidence. No complaint is made in respect of these paragraphs, and nor could there be. In paragraph [58], his Honour then said:

The first question that arises for consideration is whether the plaintiff suffered an aggravation of the pre-existing injury diagnosed by Mr Turner which comprised a left paracentral disc prolapse of L4-5, causing some impingement on the L5 nerve root.

17 His Honour then carefully analysed the medical evidence in relation to this issue, before concluding that as a result of the work which the appellant undertook with the first respondent (and in particular, the work in 2007), the appellant suffered an aggravation of the pre-existing injury to his lower back, such that it produced symptoms of pain in his lower back and left leg and was productive of an incapacity for work until the appellant commenced work with his brother. His Honour then dealt with this employment and the couch incident in paragraphs [69]-[86] as follows:

1. The difficulty in this application is what I am to make of the couch incident. The work the plaintiff undertook with his brother demonstrated that the plaintiff had recovery sufficiently to be able to work as a sales assistant.
2. The plaintiff was going along quite well until 26 May 2010 when he moved the couch. It is quite clear from the clinical notes of Dr Ng dated 7 June 2010 that that was the first occasion on which the plaintiff complained of right leg pain to Dr Ng. The plaintiff did not inform Mr Turner, Mr Miller or Mr Simm of that incident. Nor did he refer to it in either of his affidavits. He simply referred to working for his brother, and the reason he gave for stopping was because he could not cope with that work.
3. I think it is more than coincidental that after the couch incident the plaintiff returned to Mr Turner complaining of increased pain in his lower back and left leg and also pain in his right leg. It would appear that the plaintiff suffered a further aggravation as a result of that incident. The only evidence in that respect came from Dr Ng, who was of the opinion that the couch incident aggravated the plaintiff's lower back:

Q: "There has been, doctor, on your understanding of it, no physical basis for a decline in his condition or an experience of greater pain since January 2008. Correct?---

A: No specific aggravating factors, except his symptoms have got worse, yes.

Q: Yes, his symptoms have got worse. His worsening depression over time is a perfectly reasonable and logical explanation for him experiencing worsening symptoms?---

A: Not necessarily. Because he started - in June last year, after helping his brother lifting the couch, after that his symptoms of the back pain got progressively worse and at that stage his depression was there, but nowhere as bad as it has been, say, this year.

Q: So the back pain worsened as a result of this incident working with his brother. Correct?---

A: It would have aggravated, yes, his injury."

1. The plaintiff was working full-time for his brother in the furniture shop. On some occasions he was there on his own. He spent a fair part of the day standing, and otherwise sitting. The main task he performed was as a salesman. The only difficulty the plaintiff had with undertaking that job was the long driving involved in getting to and from the furniture shop.
2. It seems to me that the plaintiff was capable of working full-time in his brother's furniture shop, and on his own admission, had it not been for the long driving, the job was suitable. Dr Ng is of the opinion that the plaintiff aggravated his lower back moving the couch, and after that incident the condition of his lower back pain deteriorated.
3. I think there is an inference to be drawn that, as a result of the work which the plaintiff undertook, especially in 2007, that he suffered an aggravation of the pre-existing injury to his lower back, such that it produced symptoms of pain in his lower back and left leg and was productive of an incapacity for work until he was able to resume work in suitable employment as a salesman with his brother.
4. However, from the plaintiff's own account of the couch incident, it was an event of some significance. It produced more pain in the plaintiff's lower back and left leg and significant symptoms of pain affecting the plaintiff's right leg. According to Dr Ng, the course of events for the plaintiff following the couch incident was a worsening of the pain the plaintiff experienced, the necessity to obtain medical treatment, and it was productive of a greater level of incapacity for work.
5. The difficulty I have with the state of the evidence is in determining whether the aggravation which preceded the couch incident caused an impairment of function of the plaintiff's lower back which is permanent, and whether that aggravation materially contributes to the serious injury consequences contended for by the plaintiff.
6. In the end, I am satisfied that the plaintiff suffered an aggravation of his pre-existing lower back injury, especially as a result of the work he undertook in 2007; however, it is obvious that he recovered to a reasonable degree, enabling him to return to suitable employment. The couch incident aggravated the plaintiff's lower back. It was responsible for the plaintiff being unable to work, and necessitated him having additional medical treatment.
7. I am satisfied that the plaintiff suffered a major injury to his lower back in 1997. I am also satisfied that the discal injury initially diagnosed by Mr Turner is the plaintiff's major problem, and presently the major cause of the impairment of function of his lower back.
8. I am satisfied that the plaintiff suffered an aggravation of pre-existing injury to his lower back, especially in 2007. I am satisfied that the plaintiff returned to a capacity for suitable employment, and that it was the aggravation caused by the couch incident which then resulted in his subsequent incapacity for that work.
9. The state of the evidence does not permit me to determine whether the aggravation following what occurred in 2005 and 2007 materially contributes to the pain and suffering consequences and loss of earning capacity consequences contended for by the plaintiff.
10. The only evidence I have on that score is the evidence of Dr Ng that both what occurred in 2005 and 2007 and the couch incident aggravated the pre-existing condition of the plaintiff's lower back, but he did not quantify the extent of the aggravation following what occurred in 2005 and 2007 and whether the consequences of that aggravation materially contribute to the state in which the plaintiff finds himself in now in terms of pain and suffering consequences and loss of earning capacity consequences.
11. Nor does the evidence relevant to the aggravation following the couch incident enable me to determine whether the consequences of that aggravation materially contribute to the state in which the plaintiff finds himself in now in terms of pain and suffering consequences and loss of earning capacity consequences.
12. I considered the plaintiff's application for loss of earning capacity separately, based upon the aggravation following what occurred in 2005 and 2007. If the couch incident had not occurred, I would have concluded that the plaintiff would not meet the statutory test.
13. Firstly, because it would appear that he was fit for work as a sales assistant in a furniture shop in the absence of needing to undertake long driving each day.
14. Secondly, the plaintiff's evidence concerning his capacity for work seems to be based upon whether Dr Ng considered that he was fit or not, in other words, he was following the advice given to him by Dr Ng. Dr Ng was of the opinion that the plaintiff was no longer fit for any work; however, that was based upon a deterioration which he considered had occurred in the plaintiff's condition, and in particular, the plaintiff's presentation of right leg pain which Dr Ng considered had arisen as a result of the couch incident. Before that deterioration, Dr Ng was of the opinion that the plaintiff was capable of working full-time in suitable employment with relevant restrictions.
15. What is very clear to me from the evidence of Dr Ng is that the couch incident is of considerable significance. It is his opinion that until that time, the plaintiff was coping tolerably well. He was of the opinion that the plaintiff was capable of working full-time in suitable employment with relevant restrictions. His evidence makes it all the more apparent that the failure by the plaintiff to explain the couch incident in his affidavits and to examining medical practitioners has left a void in the evidence which makes it very difficult for me to determine whether the aggravation which occurred in 2005, and especially in 2007, are responsible for the pain and suffering consequences and loss of earning capacity consequences for which the plaintiff contends meet the statutory test.[4]

18 His Honour then concluded (in paragraph [87]), 'On the basis of the foregoing reasons, findings and conclusions, I dismiss the [appellant's] proceeding'.

Was the appellant's employment with his brother in 2010 'suitable employment'?

19 The trial judge concluded that the appellant's employment with his brother in 2010 was suitable employment. Central to his Honour's conclusions were the statements in paragraphs [72] and [73] of the reasons that, '[t]he only difficulty the [appellant] had with undertaking that job was the long driving involved in getting to and from the furniture shop' and 'the [appellant] was capable of working full-time in his brother's furniture shop, and on his own admission, had it not been for the long driving, the job was suitable'. The first of these statements was footnoted by his Honour with a reference to pp 64 to 65 of the transcript, in the cross-examination of the plaintiff. However, the relevant questions and answers in that part of the cross-examination were as follows:

As you said in your evidence at the close on Friday, a job like you were doing for your brother that was less than two and a half hours round trip drive from your home, another one you'd have to wait and see?---No I couldn't do that because I drove the two and a half hours.

That's what I'm saying, if it was closer, if it wasn't a two and a half hour drive?---No, but then you've been standing on your feet all day too.

You maintain, do you, despite what Dr Ng reported in his clinical notes, that you are required to stand on your feet all day in that job?---In my brother's shop?

Yes?---No, you didn't have to stand on your feet all day but a fair chunk of the day. You can't just sit around. There's things to do in a business.

20 The expression 'suitable employment' is defined in s 5(1) of the Act as follows:

suitable employment, in relation to a worker, means employment in work for which the worker is currently suited-

(a) having regard to-

(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and

(ii) the nature of the worker's pre-injury employment; and

(iii) the worker's age, education, skills and work experience; and

(iv) the worker's place of residence; and

(v) any plan or document prepared as part of the return to work planning process; and

(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and

(b) regardless of whether-

(i) the work or the employment is available; and

(ii) the work or the employment is of a type or nature that is generally available in the employment market;

21 The appellant was cross-examined as to why he did not commence employment with his brother earlier than May 2010. It appears that he commenced the employment some two days after weekly payments of compensation under the Act ceased. The appellant was asked and answered the following questions:

But it only became feasible for you to work in the business two days after you finished your weekly payments?---No, he actually put off one of his part-timers to give me a go.

...

Once your payments were cut off - - -?--- - - -No, because obviously I'm his brother and looking after me - I was still earning something, so why put someone else that - not to earn anything, to give me a shot. So at the end, yes, I did have bills to pay, so he did do what he had to do.

...

Yet you still thought you were able to work through until at least the middle part of 2010?---I was willing to try anything. I didn't know if I could work unless I tried and up until the middle of 2010, no-one gave me an opportunity to try something that was going to be fair enough for me and not stand in one position, not sit in one position, that I had a little bit of freedom that I could go and relax if the pain did start or didn't start and the only person that could give me that was my brother.

...

That as evidenced by your attempt to work with your brother, once the weekly payments have stopped then there is work that you can go out and do?---No, that's not correct. He was the only one that would give me the opportunity.

Just on that point, it's recorded by some of the doctors, by for instance Dr Simm, that the real difficulty with the work in Geelong was having to drive effectively two and a half hours as a return trip to do the work?---And standing all day.

Standing all day?---Yes.

22 How the penultimate question in the last exchange came to be asked in the face of Dr Simm's report of 30 June in which it was stated, '[t]he main problem was the two and a half hours of driving and the fact that he had to stand all day in the store' is difficult to discern. Nevertheless, the matter was dealt with by the appellant in his answer.[5]

23 The cross-examination of the appellant went on as follows:

[Did you tell Dr Ng that on 21 June 2010] that your work in Geelong was mainly light work, serving customers?---Yes.

That your brother was very flexible with you and allowed you to sit whenever?---Sit whenever, yes.

So there was no long standing in the job was there?---He wasn't there every day, was he? That's the whole idea of hiring someone, so you do get a break, so there were days I was there by myself.

...

The problem that you told [Dr Ng] was that the long driving was the problem?---Yes, the long drive was one of the major concerns.

...

But I'd suggest to you, for instance, a similar job as you did with your brother which is less than a two and a half hour round trip from your home might well be in your capabilities?---It might well be. I've got to find someone to give me a shot at it.

24 The topic was returned to in cross-examination on a number of further occasions, with the appellant continuing to maintain that it was not just the two and a half hour drive that was a difficulty with the employment with his brother, it was also standing on his feet all day or for a large part of the day.

25 At trial, the respondents tendered a worksite assessment performed by WorkFocus on 31 May 2010 in relation to the appellant's 2010 employment. In that assessment, there is a summary of the physical demands of the job. These included being required to reposition furniture which might occasionally involve low level reaching and trunk rotation. Additionally, standing is recorded as both 'constant' and 'required throughout the day when performing customer service, receiving deliveries, assisting to assemble goods, transporting goods [and] general store maintenance'.

26 With respect to his Honour, the evidence did not necessarily, in our view, lead to the conclusion that the 2010 employment was suitable employment. While reasonable minds possibly might differ on this question, there were significant considerations which needed to be addressed before any such conclusion could be reached. As was contended at first instance, it was well arguable that the job was 'protected employment'. Further, there were two significant reasons why this employment arguably was not suitable: specifically, the two and a half hour drive and the requirement for significant standing.

27 These matters were not addressed in any detail in his Honour's reasons. The statement that 'the [appellant] was capable of working full-time in his brother's furniture shop, and on his own admission, had it not been for the long driving, the job was suitable',[6] is, in our view, not supportable when one looks at the whole of the evidence.

28 The respondents submitted before us that the admission referred to by the trial judge could be found in the following question and answer in the cross-examination of the appellant:

But I'd suggest to you, for instance, a similar job as you did with your brother which is less than a two and a half hour round trip from your home might well be in your capabilities?---It might well be. I've got to find someone to give me a shot at it.

29 We take leave to doubt that this involved any admission in the context of all of the evidence, including the lengthy cross-examination, in this case. Even if it could be construed as such an admission (and assuming that in fact this was the evidence relied upon by his Honour to support the assertion of an admission), it was incumbent upon his Honour to explain why this answer to this question led to his Honour's conclusion, in the face of the balance of the evidence (specifically, the balance of the plaintiff's evidence and the history given to Mr Simm).

30 In our view, the reasons given for concluding that the furniture salesman position constituted suitable employment were inadequate.[7] For the purposes of this appeal, it is not necessary for us to go further. However, we should say that on the evidence led at first instance, we doubt that it could be said that the furniture salesman position constituted suitable employment. That said, there may be a path of reasoning that would lead to that conclusion. All that can be said is that at this stage, such a path of reasoning has not yet been disclosed.

31 His Honour found that the couch incident was 'of considerable significance'. The couch incident occurred after the appellant swore his first affidavit. The appellant swore his second affidavit some 14 months after the couch incident. The appellant did not refer to the couch incident in his second affidavit.

32 The appellant described the couch incident in cross-examination as, ' I slid a couch on a floor in the furniture shop'. In re-examination, the appellant said that the floor was a concrete floor; there were no wheels on the couch; and the legs on the couch were 'big, square'. He was asked and answered the following questions:

Did you do it alone or with assistance?---No, I did it alone, just one end.

What sort of strain and effort did you have to put in?---A fair bit, compared to what I used to be able to do, so I did strain it. That's what it was, because when I pulled, I strained.

What sort of posture were you adopting while you were exerting the force?

---I was standing and twisted. Unfortunately, there are some things you can't change.

33 The first attendance on Dr Ng after the couch incident occurred on 7 June 2010. Dr Ng's notes, in respect of this consultation, include:

Now working with brother in Geelong since 24 May 2010 in furniture shop. Apparently hurt himself on 26 May 2010. Was moving a couch on the floor and felt pain in right leg as well as the ongoing left sciatica.

34 The next attendance upon Dr Ng was on 21 June 2010. On that occasion, the notes record:

Tried working with brother in Geelong for one month but back is too sore especially with the long driving ... . Brother was very flexible with him and allowed him to sit whenever.

35 The only medical witness who was told about the couch incident was Dr Ng. The appellant was not cross-examined about his failure to mention the couch incident in his second affidavit or in subsequent examinations performed by Mr Turner, Mr Miller and Mr Simm. However, there was other significant cross-examination said to go to the appellant's credit. In the context of this application, if it was to be said that the couch incident was of any significance, it is at least surprising that the appellant was not subjected to greater cross-examination in respect of it.

36 In his report of 16 June 2011, Dr Ng recorded the occurrence of the couch incident, and then expressed the opinion that the appellant's 'back pain [had] worsened and he [was] unable to return to work of any kind in his [then] current state even if [the appellant's] depression [was] out of the equation'.

37 In cross-examination, Dr Ng was asked and answered the following questions:

Indeed, it's always been your position until your most recent report [16 June 2011] that he is capable of working full-time in suitably restricted employment. Correct?---Yes, yes, up to this year.

In terms of the significance of his presentation this year, is it the onset of pain in his right leg that is an issue? ---Yes.

As you understand the matter from the history that's been provided to you, that arises from [the couch incident]. Correct?---Yes, that's right, ... .[8]

38 The appellant's case below was run on two bases: first, putting the couch incident to one side, the 2004 to 2007 work with the first respondent caused an aggravation/injury which satisfied the serious injury test; and secondly, that there was in any event a causal link between the injury to which we have just referred and any aggravation caused by the couch incident. As the passages of his Honour's reasons we have set out above demonstrate, his Honour omitted to deal with this second case. However, the respondents submit that there was an insufficient evidentiary foundation for this case in any event. We disagree. In our view, on the whole of the evidence (and in particular the evidence of the appellant and Dr Ng), it was incumbent upon his Honour to deal with this aspect of the case. The fact that no witness may have expressed the opinion in terms that any injury sustained as a result of the couch incident was also a consequence of the aggravation/injury sustained by the appellant as a result of performing work for the first respondent, does not mean that his Honour was not required to deal with this issue. The very existence of restrictions on the activities the appellant could perform in the course of employment following 2007 provided the basis upon which the Court below could have inferred the necessary causal link. One does not need evidence in terms of the proposition that light work restrictions might be prescribed for a number of reasons, not the least of which is that they alleviate the risk of further (and related) injury.

39 Further, the evidence disclosed that the appellant was employed by his brother between 24 May 2010 and 21 June 2010. The couch incident occurred on 26 May 2010. No evidence appears to have been led as to what, if any, time off the appellant had in the employ of his brother following the couch incident. It seems to us that the case was conducted on the basis that the month's employment the appellant engaged in with his brother was almost wholly undertaken after the couch incident. The fact that the appellant was able to perform this work after the couch incident provides an additional basis for suggesting that any injury or aggravation suffered as a result of the couch incident may not have been as great as his Honour appears to have considered it. In any event, while the judgment below is generally careful and detailed, there is no reference to this issue, or any analysis referable to this evidence, in it.

40 In submissions before us, Senior Counsel for the appellant contended that his Honour failed to address the question of pain and suffering consequences flowing from the appellant's work for the first respondent as the evidence disclosed them to be in the appellant's first affidavit and Dr Ng's report of 19 March 2010 (written before the couch incident). That is, putting the question of causation of any couch incident injury, and the question of the suitability of the 2010 employment, to one side, there was a pain and suffering issue in respect of the aggravation/injury suffered as a result of the appellant's employment with the first respondent, that remained to be considered on the evidence. There is force in this contention. In our view, even if one was to accept the reasoning of his Honour concerning suitable employment and the couch incident, there was a case made by the appellant in respect of pain and suffering consequences that could be determined by reference to evidence given before the occurrence of the couch incident. In failing to address this aspect of the case, his Honour's reasons were, with respect, inadequate.

41 It follows from what we have said above, that the appeal must be allowed. The appellant seeks a remittal to the County Court for a fresh hearing and determination. As we have said above, there were credit issues in this case. These issues have not been resolved. Additionally, the approach taken by his Honour has meant that a number of matters about which evidence was called have not been the subject of any finding.

42 In the circumstances, the appeal must be allowed and the matter remitted for re-hearing and determination.

[1] We assume that the Victorian WorkCover Authority was joined as a second defendant to that application (and thus became a second respondent in this appeal) in purported compliance with s 134AB(18) of the Act, which requires a copy of an application under s 134AB(16) to be served on it and each person against whom the appellant claims to have a cause of action.

[2] See s 138A of the Accident Compensation Act; s 14(2) of the Interpretation of Legislation Act 1984; the Colonial Sugar Refining Company Limited v Irving [1905] AC 369; Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Limited [1942] HCA 23; (1942) 66 CLR 161, 175; Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267; Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430, 440; State of Victoria v Robertson [2000] VSCA 113; (2000) 1 VR 465, [19]; Dolling v National Australia Bank Limited [2002] VSCA 127; (2002) 5 VR 234; Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124; Kovacic v Henley Arch Pty Ltd [2009] VSCA 56; (2009) 22 VR 21; Filipovski v Ogemi Services Pty Ltd [2009] VSCA 230; (2009) 25 VR 316 and Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [6]. But cf Yrttiaho v The Public Curator of Queensland [1971] HCA 29; (1971) 125 CLR 228, 245.

[3] Pisano v Precision Solid Plasterers Pty Ltd [2011] VCC 1226, [49].

[5] We should say for completeness that counsel for the respondents who appeared before us were not counsel below.

[7] See generally Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317, [38] and Transport Accident Commission v Kamell [2011] VSCA 110, [70].