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[2015] VSCA 139
General information, not legal advice.
Court of Appeal (Vic)
2015-06-10
Warren CJ, Tate JA
Original judgment source is linked above.
TORT - Negligence - Jury trial - Award of damages - Jury verdict in favour of appellant for $50,000 - Whether assessment of damages open to jury on evidence most favourable to the respondent - Whether comments by counsel for the respondent at trial was likely to mislead the jury - Whether attack on appellant's credit at trial was likely to mislead the jury - Jury's assessment of damages was open to jury on evidence adduced - Appeal dismissed - No point of principle.
1 Tom Srbinovski, the appellant (the plaintiff at trial), commenced an action for pain and suffering damages as a result of an injury he sustained while working for Americold Logistics Ltd, the respondent (the defendant at trial).
2 The appellant's proceeding came on for trial at the County Court before a judge and jury of six. At trial, the appellant alleged that his injuries were caused by the negligence of the respondent. The jury returned a verdict in favour of the appellant for $50,000. On the same day, judgment was entered for the appellant for the sum of $50,000 for pain and suffering and loss of enjoyment of life, with liberty to apply. Subsequently, pursuant to s 134AB of the Accident Compensation Act 1985, the trial judge varied the previous orders reducing the damages for pain and suffering to nil, and ordered judgment for the respondent with an order that the appellant pay the respondent's costs.
3 The appellant appeals the jury verdict and consequential orders of the trial judge.
4 The respondent is a logistics company that specialises in temperature controlled warehousing and transport. The appellant is a 41 year old man who worked for the respondent between 1999 and 2010. During that time he was a factory worker employed at the respondent's factories in Laverton and Maidstone. The appellant's work included picking up and moving boxes of chilled or frozen goods from conveyers and onto pallets ready to be packed and distributed. At trial, the appellant gave evidence that his role included twisting, turning, and in some cases bending.
5 On 30 April 2009 the appellant was working the morning shift at the Laverton factory when he began to experience pain in his lower back. The appellant gave evidence that he was picking up a relatively heavy box of either butter or orange juice, and he twisted to his right and felt a 'symptom of pain' in his lower left back, just above the waist line. He gave evidence that the pain went away for a short period of time, but over the course of the day the symptoms returned, though he continued working. On the day of the injury the appellant informed his team leader that he thought he had done something to his back. However, the appellant continued to work in the same capacity for a period of time.
6 The appellant gave evidence that while he continued to work, the symptoms became worse. He started to experience pains shooting across his back, pain in his upper legs and down the buttocks. After a period of 12 days, the appellant attended a physiotherapist retained by the respondent. That physiotherapist treated the appellant between 12 May 2009 to 14 August 2009. The appellant also attended his general practitioner Dr Abdi who examined him, sent him for x-rays, prescribed pain medication and provided him with a certificate for light duties.
7 The appellant was put on light duties thereafter, though he gave evidence that his symptoms became worse. On 18 June 2009 on the instructions of Dr Abdi, the appellant underwent a CT scan of his lower back. The appellant returned to usual duties for a period of two weeks in July 2009, he then resumed light duties but his symptoms became worse. In 31 August 2009, the appellant saw Mr Khan an orthopaedic surgeon. Following this consultation the appellant had a bone scan of the lower back in September 2009 and a magnetic resonance imaging scan ('MRI') of his lower back in October 2009.
8 From October 2009 until June 2010, on the recommendation of Dr Abdi, the appellant changed physiotherapists and began treatment with Mr Phu. During this time he was also sent by Dr Abdi to a psychologist as he had started feeling depressed. On 4 February 2010, the appellant was referred to Dr Andrew Muir, a pain specialist at the Dorset Rehabilitation Centre.
9 From May 2009 until April 2010 the appellant took 80 days of sick leave, mostly to take members of his family to medical appointments. He was presented with a final written warning on 19 April 2010 by Ms Stacey Lamb, the Human Resources Team Manager for the respondent. The appellant refused to sign the letter, and on 20 April 2010 the appellant was presented with a second and final written warning from Ms Lamb which he again refused to sign. The appellant resigned his employment on that day.
10 From June to October 2010 the appellant travelled overseas to Macedonia. He gave evidence that he did not seek medical treatment for his symptoms while overseas. On his return, the appellant saw a different general practitioner, Dr Adrianakis. In January 2011, Dr Adrianakis referred the appellant to an orthopaedic surgeon, Mr Barrett who organised for the appellant to have another lumbar spinal MRI. Further, on 24 June 2011 the appellant attended another pain specialist, Dr Clayton Thomas at the Dorset Rehabilitation Centre. From 2013 the appellant saw a physiotherapist, Ms Pennas.
11 The appellant gave evidence at trial that before his injury he used to play soccer but he could no longer run and therefore he ceased playing. Further he stated that he had difficulty standing at benches and sinks and could not assist in the housework. The appellant told the jury that he used to have an active social life and enjoyed attending clubs, however his injury meant that he became more isolated and depressed.
12 During the course of the trial, a number of witnesses gave evidence regarding the appellant's injury and the causes of his symptoms.
13 Dr Abdi, the appellant's general practitioner from May 2009 until November 2010, did not give evidence. No explanation appears to have been given for the non-calling of Dr Abdi. Dr Adrianakis gave evidence and observed that the appellant was depressed, and was prescribed Panadeine Forte for pain and Endep as an anti-depressant.
14 As to the appellant's symptoms, Dr Adrianakis opined that the appellant's injury was consistent with an L5/S1 problem, being a section of the spine in the lower back. He noted that the appellant complained of lower back muscle spasms and tenderness which was consistent with a lower back injury. He reported the presence of soft tissue inflammation and facet joint dysfunction. On the basis of the history given to him, Dr Adrianakis stated in his evidence in chief:
the work-related back strain [was] severe enough to behave like a disc prolapse with a mass effect on the spinal cord. In reality this pain and discomfort was caused by bilateral facet joint degeneration disease in both L4-5 and L5-S1.
15 Dr Adrianakis explained that on his best assessment it was his opinion that, with treatment, the appellant could do light work, but he would not be able to get back to heavy lifting. He accepted that there would be ongoing symptoms and restrictions. During cross-examination, he agreed with an opinion put to him of Mr Barrett, that the MRI the appellant underwent in January 2011 did not show any disc bulges.
16 Dr Thomas, a rehabilitation and pain specialist saw the appellant on two occasions, once as his treating doctor on 24 June 2011 and again in June 2014. He gave evidence that he believed the appellant gave an honest account of himself and his symptoms appeared to be genuine. Dr Thomas observed that the appellant had tenderness in his lumbar spine, and diagnosed him with symptomatic spondolysis. He stated that he thought the problem was more of a facet joint issue as opposed to a disc problem. As to the future treatment and recovery, Dr Thomas noted that there was no need for further treatment outside of supportive care, seeing his GP and hands-on treatment. He explained that the appellant's prognosis was reasonably favourable and the best thing for him was to try and find work which was back-friendly.
17 Mr Barrett, an orthopaedic surgeon, did not appear at the trial, however his report was read into evidence. The appellant had a number of consultations with Mr Barrett, beginning in January 2011. Four reports of Mr Barrett were tendered. One of his reports stated that on examination the appellant's lumbar spine revealed fairly good movement and normal general contours. Mr Barrett also noted that the MRI taken in January 2011 showed normal alignment throughout the lumbar spine. Mr Barrett diagnosed the appellant as having relatively minor osteoarthritic changes in the posterior facet joints at L4/L5 and L5/S1. He could not, however, confirm that the appellant's symptoms were caused by the injury suffered by the appellant in April 2009. As to the appellant's prognosis, Mr Barrett opined that:
Because of his ongoing symptoms, I do not consider that Mr Srbinovski is fit to continue with even light work, but I cannot confirm this with a clear cut orthopaedic injury. There is no clear orthopaedic treatments that is [sic] likely to improve the symptoms and disability of Mr Srbinovski. The prognosis is indeterminate in the absence of a clear cut orthopaedic diagnosis.
18 At the request of the appellant's solicitors, the appellant attended the medical offices of Professor Richard Bittar, a neurosurgeon. Professor Bittar provided two reports on the appellant dated 18 October 2012 and 21 October 2013. He gave evidence that the appellant's facet joint degeneration had been present for quite some time, and he diagnosed the appellant with an aggravation of lumbar spondylosis, particularly from the facet joints. Professor Bittar opined that the degeneration was asymptomatic until something quite sudden occurred to cause additional damage to the facet joints which took them from being asymptomatic to painful. He gave evidence that he felt the appellant was likely to continue to suffer from significant pain and disability into the future, and his capacity for work would continue to be restricted.
19 During Professor Bittar's evidence, counsel for the respondent at trial questioned him as to the history that was provided by the appellant:
COUNSEL: We've heard that you took a detailed history from Mr Srbinovski?
PROFESSOR BITTAR: Correct.
COUNSEL: Again, you've told us that that included that he commenced work with the defendant in 1999?
PROFESSOR BITTAR: Yes.
COUNSEL: That his work was of a heavy physical nature, that it involved the repetitive bending and heavy lifting and you were also told that Mr Srbinovski would spend a large portion of each day manually stacking pallets with containers weighing up to 25 kilograms. That was the history you took?
PROFESSOR BITTAR: Correct.
COUNSEL: When you saw Mr Srbinovski on the second occasion, a year later, you would have confirmed that history, wouldn't you?
PROFESSOR BITTAR: Yes.
COUNSEL: That was confirmed by Mr Srbinovski?
PROFESSOR BITTAR: Yes.
COUNSEL: Part of your opinion certainly, amongst other things, would have been based on the history of the onset of the pain?
PROFESSOR BITTAR: The onset of the pain in April 2009, yes.
...
COUNSEL: A particular picture has been drawn for you as to the duties that Mr Srbinovski was undertaking by my learned friend. I want to put to you a slightly different picture and ask you to consider this?
PROFESSOR BITTAR: Certainly.
COUNSEL: So if in fact the position was that 80 per cent of the boxes that Mr Srbinovski was moving were seven kilograms or less - so have that in your mind: 80 per cent of them are seven kilograms or less - and that of the remaining 20 per cent, the vast majority of that 20 per cent were no more than 13 kilograms - so, in other words, any box over that would have been few and far between - would you agree with me that considering those weights, you wouldn't describe this as particularly heavy work, would you?
PROFESSOR BITTAR: That would depend on how often he was doing it. If he was bending over, lifting two-kilogram boxes, you know, for eight hours a day continuously and doing some twisting and that sort of thing, then I probably would. So it would depend on the context in which he was carrying out that type of lifting.
20 Finally, evidence was given by Mr Dooley, an orthopaedic surgeon. Mr Dooley saw the appellant on two occasions, once in October 2012 and again in May 2014. He diagnosed the appellant as having aggravated underlying, naturally occurring degeneration of the low lumbar spine at L4/5, including the facet joint. Mr Dooley stated that from an orthopaedic view, the appellant had recovered from his April 2009 injury and there was no obvious deformity of the spine. He noted that the appellant's described disability was greater than one would expect, and explained that the soft tissue injury aggravation sustained by the appellant was not expected to cause such constant and ongoing pain as asserted by the appellant. Mr Dooley suggested the appellant increase his activity, undertake low impact exercise and return to work. He further noted that the appellant was fit for clerical or light physical work.
21 During the trial, senior counsel for the respondent made four comments in her address to the jury that the appellant at trial took issue with.
22 First, counsel for the respondent submitted to the jury that it needed to consider whether there was an injury in the first place, and further if there was, whether it was caused by the work done by the respondent:
I suggest to you there's essentially five factual matters you've got to consider. You've got to consider what was the work, and I'll be going over a number of aspects of that. You've got to consider was there an injury, and I'll be going over a number of matters about that.
23 After counsel for the appellant objected to these statements, namely, that the appellant did not suffer an injury at all, counsel for the respondent agreed with the trial judge to re-address the jury on this point. She stated:
The second thing is, this case is about the nature and extent of the injury. It is not suggested there was no injury, it's about the nature and extent of it.
24 In his Honour's charge he noted the common ground on this issue:
[Y]ou have heard now there is no challenge now that there was an injury, it is just a matter of the challenge about the injury, the nature and extent of it, and of course it is still challenged about fault; whether there is negligence or breach of the statutory duty.
25 Secondly, counsel for the respondent told the jury that the appellant gave an inconsistent account as to whether he had received treatment for his back overseas. She submitted that he gave evidence in chief that he had treatment overseas, but that in his previous serious injury application he gave evidence that he did not. During cross-examination, counsel for the respondent put it to the appellant that he had made an inconsistent statement at the previous serious injury trial:
COUNSEL: Sir, on 21 November 2012 in this court you gave evidence on oath and you told the court during your holidays that you - in answer to the question, "You didn't have to see a doctor at all," "No"?
APPELLANT: Well, I did have to see a doctor. I was sick for a while over there. I did take just over the-counter stuff as well, probably for the majority of the time.
COUNSEL: Do you understand what an oath is, sir?
APPELLANT: Yes, I do.
COUNSEL: Your oath on 21 November 2012 was, in answer to the question, "You didn't have to see a doctor at all when you were overseas," "No," being your answer, is different to the answer you're now giving today. Which one is false, sir?-
APPELLANT: Well, what are you talking about? Did I see a doctor for my back or
COUNSEL: You gave the answer, sir. "You didn't have to see a doctor"?
APPELLANT: But you're not making it clear why I can't see a doctor for.
COUNSEL: "You didn't have to see a doctor at all." Your answer to that question, "No"?
APPELLANT: Well, that's not correct then.
COUNSEL: I suggest to you that ?
APPELLANT: Well, I did see a doctor over there.
COUNSEL: is correct and you are a liar?
APPELLANT: No. I did see a doctor.
COUNSEL: and you are lying to this jury?
APPELLANT: No.
26 In closing address, counsel rhetorically asked the jury, 'Can you believe him?' The appellant objected to this submission, noting that the appellant gave evidence in cross-examination that he did have treatment overseas, but in re-examination he explained that this treatment was not for his back. In address in reply, counsel for the respondent conceded that the appellant clarified the position in re-examination and read out the relevant exchanges from the transcript.
27 Thirdly, in closing submissions, counsel for the respondent submitted to the jury that Dr Abdi, the appellant's original general practitioner, only prescribed painkillers to him three times in an 18 month period. The appellant gave evidence when this was put to him in cross-examination that he did not know and was unsure. Counsel said to the appellant:
COUNSEL: In the period from May 2009 until November 2010 when you ceased seeing Dr Abdi, he prescribed Pan Forte for you on three occasions only, didn't he?
APPELLANT: I don't know how much occasions [sic] he prescribed it for me. I'm not sure.
COUNSEL: I'm putting to you that he prescribed it on three occasions only in that entire period that he was treating you. You don't know, is that what you're saying?
APPELLANT: I'm not sure.
...
COUNSEL: He prescribed it in May 2009, July 2009 and October 2009?
APPELLANT: Okay.
COUNSEL: As Dr Andrianakis conceded this morning, you first saw him in November 2010, the first time he prescribed any Pan Forte for you, that is prescribed painkillers, was March of 2011, some five months later?
APPELLANT: Yes.
COUNSEL: You see, I suggest to you your pain wasn't as you would want this jury to believe during the better part of two years after this so-called accident?
APPELLANT: No. I'm saying
COUNSEL: That's the position, isn't it?
APPELLANT: No. I'm saying the pain was the same. It's just that I didn't have a good reaction to Panadeine Forte. It made me drowsy. I preferred to take other painkillers, whilst also taking that at the same time, but a reduced level.
COUNSEL: But you were not taking prescribed painkillers in the period Dr Alby [sic - Abdi] was looking after you, other than on the occasions - this is prescribed painkillers - I've referred to, were you?
APPELLANT: No. Just Panadeine Forte.
COUNSEL: No. Panadeine Forte is a prescribed painkiller, sir, isn't it?
APPELLANT: Yes.
COUNSEL: Other that the occasions when Dr Alby [sic - Abdi] prescribed those, three occasions in that 18-month period, you didn't have any other prescribed painkillers, did you?
APPELLANT: No, I don't think so. No.
COUNSEL: No. In fact it was five months after he ceased treating you that you had it ever again. That was March of 2011?
APPELLANT: Yes.
28 The respondent's counsel re-addressed the jury on this point as well, stating:
You'll remember yesterday I addressed you about prescriptions that Dr Abdi gave to Mr Srbinovski. The only evidence there is that Dr Abdi gave only three prescriptions for Panadeine Forte in that 18 month period is that Mr Srbinovski doesn't recall that. So the only evidence is that he doesn't recall that, so that's the evidence you've got to rely on that.
29 Finally, counsel for the appellant submitted that the appropriate amount of damages in this case was between $200,000 and $230,000:
It's in the context of that duty that we suggest to you that a fair pain and suffering assessment in this case, on this evidence, is in the region of, say, 200 to 230 thousand dollars, to cater for up to 40, 50 years for him. We don't go into what has been suggested on behalf of the defendant. We just ask you to put it to one side and look at the real issues and the real impact, on the evidence, of what has happened to this man.
30 The respondent put to the jury that a sum of around $35,000 for pain and suffering and loss of enjoyment of life would be a fair sum for a mild aggravation injury. She further stated that the appellant's submission as to the appropriate award of damages was 'ludicrously excessive'. After counsel for the appellant raised his concerns with the trial judge over the asserted inflammatory language used, counsel for the respondent withdrew the comment in re-address:
Finally, the word 'ludicrous' was used, 'ludicrously excessive' was used to describe the submission that my learned friend ultimately put to you about what this case was worth. I withdraw that it was ludicrously excessive. What I say to you was that it is excessive, that amount. You might think it is excessive, but you have to decide.
31 In his charge his Honour addressed the issue of damages and the competing submissions on what constituted a fair sum:
Damages, as you've been told, in this case concern pain and suffering and loss of enjoyment of life past and future. These damages are not capable of mathematical estimation. There is no formula. There is no scale to which you can refer, no guidebook. They are left to your good judgment as members of the community.
Counsel for the defendant has withdrawn the adjective 'ludicrous'. If, on occasions, [counsel] make exaggerated claims that are wildly exaggerated, well, then if they don't want to withdraw it, I would then say, 'That's too much.' No-one has asked for $1 million or $2 million here. You've been given a figure. 'Ludicrous' has been withdrawn.
It's really a matter for you, in all the circumstances. As [appellant's counsel] said, you might think it's more; it might be less. It may be right down the other end of the scale, as [respondent's counsel] says. It's really a matter for you. But what I'm saying to you is I'm not entering into the fray of it. So it's left to your good judgment as members of the jury.
32 Counsel for the appellant initially made an application to discharge the jury on the basis that the closing address by counsel for the respondent was misleading, inaccurate and based on matters that were incorrect or inflammatory. Counsel submitted in his application that there was a serious likelihood that the address would result in a loss of opportunity of a fair trial, and present a substantial wrong or miscarriage of justice in line with the decision of the Court of Appeal in Rees v Bailey Aluminium Products Pty Ltd.[1] Counsel set out the issues we have outlined above, in particular he focused on the submission that the appellant had suffered no injury. He contended that in line with the decision in Rees that if such an allegation is to go to the jury it must be put to the appellant in line with the principles outlined in Browne v Dunn.[2] Therefore, he submitted, to allow the trial to be run on the basis that there was an injury, only to have counsel for the respondent in closing address suggest that it was a live issue whether in fact there was an injury, justified the discharge of the jury.
33 The trial judge asked whether these issues could be cured by certain directions, or by re-address by counsel for the respondent. Counsel for the appellant responded by suggesting that the issue was one of accumulation, but that it was in his Honour's discretion as to how to approach the matter. In effect, it seems the appellant's counsel was not then pressing the discharge application but was content to leave it to the judge as to the appropriate course. His Honour then sought clarification from counsel for the respondent, who proposed to re-address the jury on a number of matters, specifically to withdraw the suggestion that there was no injury. The following exchange then occurred:
HIS HONOUR: [Counsel for the appellant], do you want to say anything about this proposed course of action? That's what I'm thinking at the moment.
COUNSEL: Thank you, Your Honour. It is one of the possible courses of action. The range of matters, Your Honour, range from perhaps correctable to quite serious and I emphasise this ludicrous suggestion, withdrawing it. In my respectful submission, at least that one requires more than that: it requires a strong direction as well.
HIS HONOUR: Well, I'll be directing the jury ultimately.
COUNSEL: If Your Honour pleases.
34 While counsel for the appellant reiterated some of his concerns during a break in the charge, he did not seek to re-agitate his discharge application and that was how matters were left.
35 At the conclusion of the trial, the jury returned with the following answers to the questions put to them by the trial judge:
36 The appellant's Notice of Appeal dated 24 July 2014 sets out 9 grounds of appeal:
3. The damages, as assessed by the jury, were manifestly unjust.
5. Further to paragraph 4 and in particular-
It was inappropriate to characterise figures put by Counsel for the Appellant as "ludicrously excessive".
It was inappropriate and potentially misleading to submit to the jury that an initial issue for consideration was whether or not injury occurred.
i. There was no dispute as to the identity of the injury;
37 In summary, the appellant complained that the jury's assessment of pain and suffering damages was manifestly inadequate. In effect, the appellant is seeking to impugn the decision of the jury on three separate issues, namely:
38 Before addressing each issue in turn, it is important to set out the applicable legal principles when appealing against a jury's assessment of general damages.
39 The principles governing an appeal from both the jury's verdict and its assessment of damages are well established. The question is not whether the Court would have come to a different conclusion, but whether the decision of the jury was reasonably open to it on the evidence. The appellant must therefore demonstrate that the jury's decision was irrational, meaning that it could not be supported on any view of the evidence before it.[3]
The task of an appellate court, where it is said that damages are inadequate, has often been stated, and there is now no need to go through the authorities. Before this Court can interfere it is not enough that we consider that we would have awarded more; we must be satisfied that the amount awarded is such as no reasonable jury could assess.[6]
41 Further, courts have made it clear that they will be reluctant to interfere with an assessment of damages that involves matters of discretion or evaluation. In Moran v McMahon,[7] Kirby P stated:
Because of the large element of evaluation and the necessary latitude for human reaction to the assessment of money damages for the imponderables compensated by an award of general damages, appeal courts should acknowledge the very large scope that must be left by the law to the trial judge. As in other discretionary decisions, appeal courts should be extremely cautious before interfering and this, precisely because of a recognition of the inevitably unscientific nature of the task...[8]
42 In deciding whether no reasonable jury could come to a certain conclusion as to damages, it is well established that the court will make its assessment taking a view of the evidence most favourable to the respondent.[9] In doing so the court must have in mind that the assessment of general damages is not a simple matter of calculation but largely one of impression.[10]
43 The application of these principles by an appellate court was recently explained by Kaye JA in Savino v Schieven:[11]
In applying those principles, it is important to bear in mind the advantages enjoyed by the jury which are not available to the court on appeal. The jury had the opportunity to assess the reliability and credibility of the witnesses called before it. It was better placed to understand some parts of the evidence, and, in particular, explanations given by witnesses by reference to photographs and sketch plans tendered in evidence. The jury had the opportunity of hearing and considering the evidence as it was revealed to it over a period of some few days. Each of those factors are real advantages which should not be underestimated. A bare reading of the transcript, by comparison, is, I consider, an inferior substitute for the advantageous position of the jury to which I have referred.[12]
44 The appellant's key complaint against the jury's assessment was that it was wholly inconsistent with the weight of the medical evidence put to it at trial. The appellant outlined a number of pieces of evidence that indicated a consistent diagnosis of an aggravation of classic joint arthritis along with continued restrictions to his movement and ability to work in the future. The appellant relied on both the evidence of the medical experts at trial as well as the way in which that evidence was explained by counsel for the respondent which the appellant submitted misled the jury.
45 Turning to the medical evidence, the appellant relied first on Mr Dooley who gave evidence that he found mild tenderness towards the left side of the appellant's lower back and early degeneration in the L5-4 and L5-S1 sections of the lumbar spine. In describing the condition of the appellant he stated:
Two, pushing or palpating around the lumbar spine there was mild tenderness more towards the left side and when asking him to bend forwards, backwards, run his hands down his thighs he flexed his lumbar spine to around 40 degrees which is about half the level of what you'd expect. He could arch his back backwards to about 15 degrees, which is probably about 10 degrees less than you would expect and when he arched his back backwards he noted some low back pain. He could run his hand down either thigh and twist his spine through a reasonable range of motion.
46 Mr Dooley opined that the reported constancy and intensity of the appellant's pain were greater than one would expect from an injury of this kind. Finally, he agreed that the appellant was likely to fall into the group of people who suffer an ongoing, permanent, and not insignificant problem.
47 Secondly, the appellant focused on Professor Bittar who found some restriction in movement, diagnosed the appellant as suffering aggravation of lumbar spondylosis, found that the appellant was likely to continue to suffer significant pain and disability into the future, and accepted the work injury was a contributing factor in the appellant being in the worst 20 per cent. When questioned by counsel for the respondent that one would expect aggravation caused by heavy work would settle down after a period of time Professor Bittar answered:
No. If that was the case, then everyone would get better when they stopped doing the thing that brought the pain on, but that is not the real world. Sometimes you have an event that precipitates other changes that don't necessary [sic] go away when you take that event away.
48 Thirdly, the appellant pointed to Dr Thomas who found tenderness in the lower lumbar spine on the left hand side, limitation in lumbar movement, and diagnosed the appellant with a facet joint problem, which he stated was consistent with work involving a lot of twisting. He gave evidence that the injury would limit the appellant in a permanent manner, though not markedly, and suggested there was a risk that the appellant would get worse in the longer term.
49 Fourthly, the appellant emphasised Mr Barrett's evidence who found lower back pain radiating from the left buttock and mild left lower lumbar tenderness and he considered that the appellant was not fit to continue light work.
50 In summary, the appellant submitted on the appeal that the medical evidence, even taking account of the respondent's experts, was all the appellant's way. This, the appellant argued, demonstrated how the jury was in error.
51 The appellant also attacked the way in which counsel for the respondent at trial summarised the evidence to the jury, in particular the evidence of Professor Bittar and Mr Dooley. Counsel for the respondent at trial made two main attacks on the evidence of Professor Bittar, first that the history given to him by the appellant was unreliable, and that Professor Bittar stood out on his own in relation to the appellant's diagnosis and prospects in the future. Counsel said in her closing address:
He was sent to a pain specialist, quite correctly, given his allegations and assertions about his situation. What did Mr Clayton Thomas have to say? He needs to do some exercise. His prospects are reasonably favourable. No treatments were indicated. Mr Bittar - I beg your pardon, Professor Bittar stood out on his own about this applicant - plaintiff - and based his assumptions about what was going on on [sic] the heavy work that he'd done over the years.
You, ultimately, are the judge of that on this occasion and the evidence - there's other evidence which would clearly suggest he wasn't doing heavy work, so, in particular - in addition to Dr Abdi there's been no evidence from Mr Calm, who's an orthopaedic surgeon, as one of his treaters. There's been no evidence from Mr Phu, who is the physiotherapist after the company therapist ceased treating him. You just got his assertions that he was getting physiotherapy (our emphasis).
52 The appellant submitted that such an attack was both incongruous with the medical evidence, and was not properly aired during the cross-examination of Professor Bittar. In effect, the criticisms of the respondent's counsel in address at trial were not put in cross-examination to Professor Bittar. The appellant argued on the appeal that there was no attack on the appellant on the basis of his history or presentation to Professor Bittar, nor was there questioning of Professor Bittar as to an alternative history or presentation that may have affected his opinion.
53 Moreover, on the appeal the appellant analysed the evidence of Mr Dooley and submitted that he appeared to accept a number of the conclusions of Professor Bittar. At trial, when asked about Professor Bittar's comments as to the fact that one cannot expect everyone to recover from a back injury caused by heavy work, Mr Dooley accepted his conclusion. In relation to Professor Bittar's opinion that around 20 per cent of those who experience aggravation caused by heavy work will continue to experience ongoing pain, Mr Dooley again accepted such a proposition. Counsel asked him:
COUNSEL: We've heard from Prof Bittar that in the ordinary course he'd anticipate that roughly 80 per cent of people would over time improve and might have some intermittent problems, but there's about 20 per cent who have ongoing and not insignificant problems for the rest of their life. Is that a fair comment?
MR DOOLEY: I think that's a fair comment overall and I'd agree that when we say recover we mean that the initial intense pain reduces, at least, and then as you said or as he said, intermittent pain.
54 As to the evidence of Mr Dooley, the appellant submitted on the appeal that counsel for the respondent at trial misstated Mr Dooley's evidence claiming that he had concluded that the appellant had recovered from the injury sustained. The appellant accepted that Mr Dooley stated that he had recovered from an orthopaedic view, however on the appeal he submitted that Mr Dooley had repeatedly expressed the view that the appellant was suffering ongoing symptoms in respect of which the injury was the cause. The appellant pointed to the following exchange at the trial:
COUNSEL: Can you tell the jury what your diagnosis and impression was after seeing Mr Srbinovski in 2014?
MR DOOLEY: I think I said essentially my view remained as that outlined in the previous report. I felt that Mr Srbinovski had mild, naturally-occurring age-related degenerative disc disease of the low lumbar spine. "I remain of the view that Mr Srbinovski aggravated this underlying condition during the course of his work lifting and manoeuvring goods." It had now come to just over five years since the work-related aggravation and I remained of the view that the constancy and intensity of his ongoing pain and described disability were greater than one would expect to see.
55 In summary, the appellant acknowledged that the jury was not bound to accept the expert evidence, but it could not disregard it capriciously.[13]
56 The respondent submitted on the appeal that viewing the evidence most favourable to it, the assessment of damages was open to the jury. The main contention of the respondent was that the appellant suffered a mild or minor injury, that he had mostly recovered by the time of trial and therefore the evidence presented meant that it was open to the jury to make the assessment that it did.
57 The respondent first pointed to the evidence of the appellant at trial as to the nature and extent of his injuries. At trial, the appellant gave evidence that he did not see a physiotherapist until 12 days after the incident. Moreover, soon after the incident the appellant described the pain as a 'niggling pain' or 'twinge' and told his supervisor he would try and continue to work. The appellant's team leader, Mr White confirmed that the appellant complained of 'a twinge in his back'.
58 Further, the respondent on the appeal submitted that at trial it put a number of issues to the appellant that undermined the severity of his injury. In particular, that the appellant had taken 80 days of sick leave without certificates and used up his sick leave entitlements before resigning. Further, that he went overseas from June to October 2010 and did not see a doctor about his back during that time. The respondent contended that the jury was entitled to infer from this evidence that the appellant's condition was not as severe as the appellant's counsel presented.
59 The respondent's second prong of attack on appeal relied on the evidence of a number of medical experts which the respondent submitted suggested the appellant's injury was relatively mild and his continued symptoms were partially caused by natural degeneration of the lumbar spine.
60 Mr Dooley gave evidence that the appellant had, from an orthopaedic view, recovered from his injury. He also stated that the appellant walked normally, without a limp and there was no deformity of the spine. In response to the appellant's reliance on Mr Dooley's opinion that the appellant continued to experience pain and limited movement, it noted that Mr Dooley expressed the opinion that the appellant, even without the injury, had a mild, naturally occurring, age-related degenerative disease of the lower lumbar spine. He stated that the appellant's incapacity to carry out regular heavy work was due to both the work-related injury and the naturally occurring degeneration. According to the respondent, Mr Dooley's opinion that the appellant's ongoing symptoms were greater than one would expect from an injury in 2009 along with the naturally occurring degeneration, called into question the role of the workplace injury in the overall symptoms the appellant was experiencing.
61 As to the alleged consistency of opinion between Professor Bittar and Mr Dooley, the respondent submitted that while Mr Dooley accepted the possibility that 20 per cent of those who experience such an injury will still have ongoing problems, he gave evidence that within that 20 per cent there are often a number of causes to ongoing pain:
What I would say is Mr Srbinovski, from a qualitative point of view, has symptoms consistent with degenerative disc disease of the lumbar spine. I accept that some patients describe ongoing pain after an incident or just when it comes on spontaneously. I think you then have to look into that so-called 20 per cent and see what other factors might be operative in them having ongoing pain, because it may not just be the lumbar spine condition. As we know from treating patients ordinarily, personal issues, psychological issues- there's a whole range of things that influence the perception of pain and how you present yourself to someone, and you've really got to look at all of that. I don't think you can just say after an injury or after symptoms come on, "80 per cent are pretty good, 20 per cent are bad..."
62 The respondent submitted that the naturally occurring degeneration evidence was strengthened by Mr Barrett who opined that the appellant's 2011 MRI showed no serious disc injury, but diagnosed the appellant with early and relatively mild osteoarthritic changes in the facet joints. Mr Barrett stated that his examination revealed that the appellant had fairly good movement of the lumbar spine and revealed normal general contours. While he accepted that the appellant was not fit to continue with light work Mr Barrett stated:
I cannot confirm that this produced an injury to the invertebral discs at that time... I cannot confirm this with a clear cut orthopaedic injury.
63 The respondent also pointed to the evidence of Dr Thomas as to the appellant's prognosis. Dr Thomas opined that the appellant required minimal treatment into the future and his prognosis was relatively favourable.
64 Finally, the respondent submitted that part of Professor Bittar's evidence was consistent with its presentation of the evidence to the jury. It noted that Professor Bittar gave evidence that the appellant's facet joint degeneration had been present for some time. The respondent also rejected the appellant's assertion that it did not question the history given by the appellant to Professor Bittar. In particular the respondent noted that at trial it had questioned Professor Bittar about the type of lifting and twisting that was done in the factory.[14]
65 In our view, there are three reasons why the appellant has not shown that the jury's assessment as to damages is one no reasonable jury would make on the basis of the medical evidence given at trial.
66 First, the severity of the appellant's condition and the cause of ongoing pain were strongly contested by both parties. There was sufficient evidence for the jury to conclude that the appellant's condition had mostly healed from the workplace injury and that the cause of the ongoing pain was a combination of both natural degeneration of the lumbar spine and remnants of the soft tissue injury. The evidence of Messrs Dooley and Barrett confirmed the natural degeneration of the spine as well as the lack of serious structural damage. Moreover, while Professor Bittar's diagnosis was more favourable to the appellant, even he opined that the appellant had been suffering natural degeneration of the lumbar spine for some time. He stated:
Well, the facet joint changes had obviously been present for quite a long time. They would have built up over the years with repetitive stress on those joints quite often.
67 Secondly, on the evidence most favourable to the respondent, it was open for the jury to conclude that the outlook for the appellant was positive. Dr Thomas opined that the appellant had a reasonably favourable prognosis and stated:
He's got a well-established low-back problem. Every now and then you could expect that it will be aggravated. So he needs to have access to appropriate treatment at that time, so he will need to see his GP, medications will be prescribed and depending on what the condition is at that time, treatment instituted. There may be some hands-on treatment, if he's dramatically flared up, but possibly just a bit of medication, a bit of advice, a bit of support.
68 While Professor Bittar gave evidence that the appellant's work will continue to be restricted, Mr Dooley suggested the appellant should increase his activity, undertake low-impact exercise and return to work. As a jury verdict is a value or discretionary judgment,[15] it was open to the jury to prefer the opinions of Dr Thomas and Mr Dooley that the appellant had mostly recovered from his injury and that his prognosis was good.
69 Thirdly, despite the submissions of the appellant, the respondent made clear attacks which sought to undermine the nature of his injury and the history given to medical professionals. The appellant informed his manager at the time that he had a niggle in his back and he wanted to continue to work through. Further he did not see a physiotherapist until 12 days after the injury and while he was overseas he did not seek any treatment for his back injury. All of these factors may have reasonably played a part in the value judgement the jury engaged in for the assessment of the award of damages.
70 Moreover, it was open to the jury to give less weight to the opinion of Professor Bittar on the basis of the respondent's attack on the history given to him by the appellant. Counsel for the respondent asked a series of questions about the history given to Professor Bittar by the appellant and specifically sought to undermine it by suggesting that there was less twisting than the appellant described and that most of the boxes moved were not as heavy as the appellant may have explained. This was amplified in counsel's closing address:
His diagnosis was an aggravation of the degenerative changes and he went on to express the view that a combination of bending and twisting, which you have to doubt actually existed here, particularly when there is some sort of load on the spine, is much more likely to cause damage. He bases his view on the instructions he received from the plaintiff, which, in my respectful submission, you should accept were not the position.
71 In light of the evidence presented at trial the jury's assessment of general damages was reasonable and not against the weight of medical evidence.
Counsel's statement that the amount claimed was 'ludicrously excessive'
72 The appellant contended that the comment by the respondent's counsel that the amount sought for pain and suffering was 'ludicrously excessive' was against the weight of the evidence and likely to mislead the jury.
73 In particular, the appellant relied on the following transcript extract:
If you do, you're entitled to awards and damages, and I need to say this to you; that the figure of the plaintiff, of 200,000 or 230,000 is ludicrously excessive, even on the plaintiff's very, very best evidence. If you were to find the matters which would lead you to make an award for pain and suffering, and loss of enjoyment of life, the sum you'd be looking at is radically lower and it would be around the $35,000 mark. That's a fair sum for a mild aggravation that the medical evidence demonstrates.
74 While the appellant accepted that the statement was withdrawn and was subject to a direction by the trial judge, he submitted in oral argument on the appeal that the comment was sufficient to taint the mind of the jury. Further, the appellant drew on authorities regarding the discharge of a jury to argue that in some cases a direction to the jury by the trial judge will be insufficient to remedy inflammatory, irrelevant or prejudicial material in counsel's address.[16]
75 The respondent first noted that its counsel withdrew the term 'ludicrously' on the next day and that counsel only meant 'excessive' as opposed to 'ludicrously excessive'. Further, it argued that the main point of that submission was to set out that in the context of the appellant's injuries, $35,000 would be a fair sum. The respondent submitted that counsel for the appellant did not object to that figure being put, nor did it seek a direction from the trial judge to the jury that it was not open on the evidence. The respondent also submitted that the trial judge, when charging the jury, said that damages 'may be right down the other end of the scale' as had been put by counsel for the respondent. Therefore, they were given the option of a full range of damages, and the jury awarded an amount in between.
76 The respondent further submitted that its counsel's suggestion at trial as to the amount of damages awarded was appropriate when analysed against the injury. In particular, the respondent again noted that the injury was relatively mild, the appellant had not seen a physiotherapist until 12 days after the incident, he went overseas and did not seek treatment, and a number of medical professionals believed that the appellant had mostly recovered or that natural degeneration of the lumbar spine was a major cause of his pain. On the basis of these facts, the respondent argued that it was open to its counsel to suggest a relatively modest amount of damages.
77 We are not persuaded that the respondent's suggestion that the amount claimed by the appellant was 'ludicrously excessive' was bound to mislead the jury. The very next day counsel for the respondent withdrew that statement and reiterated that she asserted the amount was excessive. The trial judge made a clear and adequate charge that set out that general damages are not capable of mathematical estimation, nor was there a formula, scale or guidebook in coming to the correct assessment. Importantly, his Honour stated that it was left to the judgment of the jurors, and that judgment could be at the very top end as the appellant's counsel suggested or at the lower end of the scale as the respondent's counsel suggested.
78 We accept, as the appellant argued, that there are some cases where the jury's mind is so tainted by inflammatory, prejudicial or irrelevant material that a direction from the trial judge will be insufficient. However this is not one of those cases. In Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd,[17] an expert witness for the plaintiff made changes to his report after discussions with counsel for the plaintiff. In his final address, counsel for the second defendant implied that the expert and the legal team had colluded to mislead the jury. The trial judge dismissed an application to discharge the jury and instead during his charge he made the following direction to the jury:
There is evidence that you may consider shows some of Mrs Hudspeth's legal team played a role in the relevant events but it is the conduct of Mr Dohrmann that you must examine and you should not be distracted into an enquiry about the conduct of any lawyers. To the extent that [counsel] submitted otherwise, and he did, I direct you to disregard that submission. By all means, reflect on whether Mr Dohrmann abandoned his duty to the court to obtain a forensic advantage of presenting the plaintiff as a reliable witness, but it would be unfair and quite inappropriate to use against Mrs Hudspeth in your deliberations any view that you may have formed about the conduct of Mr Dohrmann and her legal advisors in relation to the third report.[18]
79 The Court allowed the appeal, holding that the senior counsel for the second defendant 'went beyond any legitimate complaints which he might have made',[19] and that the direction to the jury came a full week after the statement by counsel and 'were not adequate to meet the prejudice and the unfairness to the plaintiff which arose'.[20]
80 In Green v Emergency Services Telecommunications Authority,[21] the plaintiff had made a claim for negligence and breach of statutory duty arising from her work as a fire-dispatcher. The plaintiff claimed that these breaches occurred on 7 February 2009 during the Black Saturday bushfires. Counsel for the defendant suggested that the plaintiff had not mentioned Black Saturday as the cause previously, and that it was a recent invention resulting from collusion with her solicitors. Counsel for the plaintiff did not seek a discharge of the jury or a withdrawal from defendant's counsel, and the trial judge did not charge the jury that the recent invention allegation was not open to it. In allowing the appeal and ordering a new trial, this Court (Ashley, Priest and Santamaria JJA) held:
We are persuaded that there has been a substantial miscarriage of justice, and that the demands of justice warrant an order for a retrial. In our opinion, the allegation of collusion to concoct a false history was so insidious that it was not readily curable - at least putting an application to discharge the jury, the fate of which is speculative, to one side - by any of the forensic strategies that we have earlier discussed. The well had been poisoned.[22]
81 Here, unlike the cases we have mentioned, the term 'ludicrously excessive' was used once in a relatively long closing address and it was corrected the very next day. Moreover, it was not an attack on the bona fides of the appellant. Nor was it suggested that the quantum of damages sought reflected any collusion between the appellant and his lawyers or medical advisers to mislead the jury by jointly concocting and presenting false evidence. The charge specifically stated that the term 'ludicrous' was withdrawn and asked the jury to engage in the proper analysis required to come to a fair assessment as to damages. Given our findings on the first issue that the jury's assessment of damages was reasonable, in the context of the withdrawal and direction by the trial judge, the claim that the appellant's claim for damages was 'ludicrously excessive' would not have misled the jury.
82 The appellant submitted that the presentation of evidence to the jury regarding the truthfulness of the appellant was likely to confuse and mislead the jury. The appellant pointed to four specific instances where the respondent unfairly attacked the credit of the appellant.
83 First, the appellant submitted that the respondent's counsel was incorrect to state in her closing address that Dr Abdi had only prescribed Panadeine Forte three times over an eighteen month period. Counsel for the appellant noted that in cross-examination he did not accept the proposition put to him and simply stated that he did not recall how many times the painkiller had been prescribed during that period.
84 Secondly, the appellant took issue with the way in which counsel for the respondent at trial attacked his credibility regarding treatment overseas. The respondent noted at trial that the appellant had said in his previous serious injury application that he did not seek treatment overseas, the appellant then stated in cross-examination that he did have treatment overseas, and then in re-examination the appellant said he did see a doctor overseas but not for his back. While the appellant accepted there may have been some confusion as to what the appellant did while overseas, it argued on the appeal first that the appellant had a reasonable excuse as to the inconsistency and second, that there was no challenge to his evidence as to the ongoing nature and extent of his pain and restrictions.
85 Thirdly, the appellant noted that counsel suggested in cross-examination that the appellant used his 80 days of sick leave without certificate without actually being sick, but to use it up before resigning. The appellant submitted that the accusation was improper given the excuse given by the appellant, namely that his father had suffered a stroke and his mother could not drive and therefore he had to ferry his family around to appointments.
86 Fourthly, the appellant argued that his extensive questioning in cross-examination about the veracity of his pain and the varied histories he had given coupled with the suggestion in the respondent's closing that there was a question as to whether the injury had occurred at all, unfairly prejudiced him and was likely to mislead the jury.
87 The respondent made a number of submissions on this point. First, the reliability of the appellant was at issue in trial and bore upon the jury's assessment of damages. It noted that all of the above-mentioned issues related to the severity of his injury, the grounds upon which medical professionals could give their opinion and the nature of his dealings with his employer.
88 Secondly, the respondent rejected the claim that there was no challenge to the ongoing nature and extent of the appellant's pain. The respondent noted that it repeatedly questioned the appellant regarding the nature of his initial injury and the histories given to doctors, for example:
COUNSEL: You see, my point, sir, is that as time has gone on in this case things have got bigger and better, haven't they?
APPELLANT: What do you mean?
COUNSEL: Well, you niggle of 30 April has gone to in April and May of 13 2009 has by the time you've got to Dr O'Brien five months 14 later has gone to something sharp. But the time you get to Dr Andrianakis in November, 18 months later, it's severe. The first event was sever. Can I suggest to you, you might be exaggerating what occurred that day?
APPELLANT: No.
COUNSEL: I'd say sharp and severe is the same thing. Sharp and severe are the same thing but they're very different to niggle and twinge, aren't they?
APPELLANT: Well, the niggle was after the initial pain. As I kept working it was - I had a niggle for the rest of the day and the following days after that.
89 Thirdly, the respondent contended that its submissions regarding the conflicting testimony of the appellant regarding treatment overseas and the use of his sick days was neither prejudicial to the appellant's interests nor capable of misleading the jury. It argued that those matters went to the credit of the appellant, and were matters that were properly open to the jury to consider in coming to its assessment of general damages.
90 Fourthly, while the respondent accepted that it made a number of errors in closing in relation to the number of times the appellant was prescribed Panadeine Forte and whether the injury actually occurred, it submitted that this was cured both by withdrawing the remarks and the charge by the trial judge.
91 In our opinion, the questioning of the appellant as to the nature of his condition, his ongoing pain and the histories he gave to various doctors was entirely reasonable and appropriate. It was open to the respondent to note the inconsistent statements regarding the appellant's treatment overseas as it ran counter to his statements to doctors and his own sworn testimony about the ongoing pain he was experiencing.
92 Counsel for the respondent at trial was within her rights to question the appellant regarding his initial complaints, and the histories he gave medical professionals. It formed part of the respondent's general theory that the appellant had exaggerated the injury and the ongoing pain and suffering it caused. In relation to the medical evidence, the respondent's attack on the histories given by the appellant was central to the case as many of the medical professionals who gave evidence did not examine the appellant at the time of the injury but some years later. They were entirely reliant on the history he gave. The differing histories were also a key issue at trial, as counsel for respondent sought to exploit in cross-examination of the appellant:
COUNSEL: You may have sworn that affidavit in 2011. In 2012 you see Dr Dooley and you tell him the weight was up to 20 to 25 kilograms. Do you agree you did that?
APPELLANT: I can't recall saying that, I don't know.
COUNSEL: Again, you're not suggesting Dr Dooley's got it wrong, are you?
APPELLANT: I'm not suggesting anything. I can't recall.
COUNSEL: What I'm suggesting to you is you're making it up as you go along?
APPELLANT: No, I'm suggesting I can't recall what was said.
COUNSEL: You can't recall what you've said because you've given half a dozen different versions of events?
APPELLANT: Well, I'm giving an estimation of what I thought the box was and that's the best I could do.
COUNSEL: You also told Dr Dooley on 19 October 2012 that you experienced initially an intense - that's, again, a very different kettle of fish to a niggle and a twinge, isn't it?
APELLANT: I always said I had a sharp pain - and you can call it sharp, severe, intense or whatever - but I always said I had a sharp pain at first which resulted in a niggle afterward.
93 Plainly, it was wrong to suggest that one of the questions for the jury to consider was whether there was an injury at all, however that error was promptly remedied by counsel's withdrawal of the offending statement together with the direction from the trial judge. His Honour clarified that the issue was the nature and the extent of the injury, as opposed to whether an injury had occurred. Further, besides the comment that was withdrawn, the respondent's closing address focused only on the nature and extent of the injury, without any suggestion that there was no injury. We come to the same conclusion regarding the mistaken statement about the number of times Dr Abdi prescribed Panadeine Forte to the appellant. It was remedied by counsel re-addressing the jury and clarifying the evidence.
94 The appellant faced a high hurdle.[23] The appellant has failed to show, taking the evidence most favourable to the respondent, that no reasonable jury could have assessed general damages in this case at $50,000. There was sufficient medical evidence to undermine the severity of the injury and it was open to the respondent to attack the appellant's credit both at trial and to the various medical professionals that examined him. While there were a number of errors or stated inaccuracies in the respondent's closing address they were adequately remedied both by their withdrawal and a direction by the trial judge in his charge.
95 For the reasons we have set out we would dismiss the appeal.
[1] [2008] VSCA 244; (2008) 21 VR 478 ('Rees').
[3] See Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33, 41 (Mason CJ, Deane, Toohey and McHugh JJ); Pujick v Savic, Cox and Cudgewa Dairy Co Ltd [1971] VicRp 76; [1971] VR 632, 634; Capers v State of Victoria [2011] VSCA 97, [35] (Ashley JA, Warren CJ and Kyrou AJA agreeing); Savino v Schieven [2015] VSCA 67 [19] (Kaye JA, Warren CJ and Ferguson JA agreeing).
[4] Zoukra Lowenstern [1958] VicRp 94; [1958] VR 594, 600.
[6] Ibid, 600; see also Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362.
[8] Ibid, 707-8; see also CSR Readymix (Aust) Pty Ltd v Payne [1998] 2 VR 505, 508 (Winneke P).
[9] See Capers v State of Victoria [2011] VSCA 97, [35]; Butcher v Australian Tartaric Products Pty Ltd [2009] VSCA 286, [8]; Zoukra v Lowenstain [1958] VicRp 94; [1958] VR 594, 595; Liftronic Pty Ltd v Unver (2001) 179 ALR 321, 327_; Tralci v Dacton Group Pty Ltd_ [2014] VSCA 105, [17].
[10] Director Of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; (2006) 14 VR 345, 354 (citing Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601, 616-17); Antoun v New South Wales Insurance Ministerial Corporation [1999] NSWCA 45, [13]; Australian Iron & Steel Ltd v Greenwood [1962] HCA 42; (1962) 107 CLR 308, 311.
[13] Willet v State of Victoria [2013] VSCA 76, [147].
[15] See Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190, 197.
[16] See for example Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Anor [2014] VSCA 3, [8], [218]; Rees [2008] VSCA 244; (2008) 21 VR 478, 486; Reza v Summerhill Orchards [2013] VSCA 17, [46]-[47] and [50]-[51].
[17] [2014] VSCA 3 (per Whelan JA `with whom Tate JA agreed, Warren CJ dissenting) ('Hudspeth').
[21] [2014] VSCA 207 (Ashley, Priest and Santamaria JJA) ('Green').
[22] Green [2014] VSCA 207, [73] (citations omitted).
Srbinovski
Americold Logistics Ltd [2015] VSCA 139
(2008) 21 VR 478
(1954) 92 CLR 190
(1991) 173 CLR 33
(1975) 132 CLR 362
(2006) 14 VR 345
(1985) 3 NSWLR 700
(1962) 107 CLR 308