Court of Appeal (Vic)|2011-03-03|Before: Mr J, Tate JA, Ashley JA

Sutton v Laminex Group Pty Ltd [2011] VSCA 52 (3 March 2011)

Sutton v Laminex Group Pty Ltd [2009] VCC 1140 (Judge Millane)

1 I have read in draft the reasons for judgment of Tate JA and I respectfully agree with them.

2 Richard Sutton, the appellant, was employed as a forklift driver by Laminex Group Pty Limited, the respondent, when, on 13 February 2001, in attempting manually to connect a trolley to a forklift, he suffered strain to his neck and right shoulder.

3 By an originating motion filed in the County Court, the appellant sought leave, pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 ('the Act'), to bring proceedings at common law against the respondent to recover damages for pain and suffering in respect of an injury to the neck (particularly, the aggravation of pre-existing asymptomatic degeneration of the cervico-thoracic spine) and a soft tissue injury to the right shoulder. He sought to demonstrate that he satisfied the requirement for leave under s 134AB(19)(a), that 'the injury is a serious injury', by relying on paragraph (a) of the definition of 'serious injury' under s 134AB(37), namely, that he had suffered 'permanent serious impairment or loss of a body function'. The appellant did not rely upon any aggregation of different injuries, but rather on the principle that two separate and distinct compensable injuries may cause the same consequences which to him represented serious injury consequences.[1]

4 The application for leave to bring proceedings at common law was heard on 18 May 2009. It was accepted at the hearing of the application that the appellant had

suffered the two compensable injuries. The application was refused by the County Court judge[2] on the basis that the appellant had failed to prove that the consequences of the two compensable injuries were serious injury consequences within the meaning of s 134AB(38)(c), which relevantly provides:

an impairment ... shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence ... is, when judged by comparison with other cases in the range of possible impairments ... , fairly described as being more than significant or marked, and as being at least very considerable.

5 In refusing the application for leave, the County Court judge held that she was not satisfied that the injury to the cervical spine currently made a material contribution to the pain and suffering consequences of which the appellant complained. Her Honour held further that the pain and suffering consequences of the soft tissue injury to the right shoulder did not satisfy the 'very considerable' test. She made adverse findings about the appellant's tendency to minimise the level of his post-injury activity and to overstate the claimed level of his injury-related pain. Her Honour did this despite the appellant's credit not having been directly challenged or placed in issue at all.

6 The appellant now appeals to this Court. The appeal is governed by s 134AD of the Act[3] which requires this Court to 'decide for itself whether the injury is a serious injury'. As observed by Kellam JA in Doolan v Rayners Sawmills Pty Ltd: [4]

The correct approach to appeals governed by s 134AD of the Act was set out by Ashley JA in Church v Echuca Regional Health. In that case Ashley JA accepted that the effect of Dwyer v Calco Timbers Pty Ltd is that whenever there is a challenge to a finding of serious injury, or of no serious injury, it is unnecessary for the appellant to demonstrate error. Rather, it is for this Court to decide the issue of serious injury for itself, in reliance upon 'the evidence and other material before the judge who heard the application' and upon any other evidence which the Court may receive.

7 In Dwyer v Calco Timbers Pty Ltd,[5] the High Court made it clear that the nature of an appeal under s 134AD is not dependent upon this Court being satisfied that the judge below was wrong in coming to the conclusion he or she did. In doing so, it overruled that aspect of Barwon Spinners v Podolak[6] which had held that 'error below is always significant on appeal ... unless affected by error the order below will not be disturbed'. It is unnecessary to demonstrate error; to consider otherwise is to ignore[7]

the imperative requirement of s 134AD with respect to determination of the question "whether the injury is a serious injury". Where it operates, s 134AD does so despite anything to the contrary which might be deduced from s 74 of the County Court Act or from House v The King.

8 Although Dwyer v Calco Timbers made it plain that there is no requirement under s 134AD for error to be made out, it did not address the converse proposition propounded in Barwon Spinners, namely, that where specific error has been demonstrated, this may invite closer scrutiny of the case as a whole.[8] In this limited sense, the existence of error may not be wholly irrelevant on appeal. However, the High Court did say emphatically:[9]

Barwon Spinners should not be accepted as providing a proper guide to the construction of s 134AD.

9 The task of this Court under s 134AD is to 'decide for itself' whether a compensable injury suffered by the appellant is a 'serious injury':[10]

The classification of an injury as a "serious injury" within the meaning of the [Act] is a conclusion drawn from the facts disclosed by the relevant evidence, and after any resolution of disputed facts; it involves the application by the court in question of the statutory criterion of "serious" to the facts as found.

10 What is determinative of this appeal is the resolution of the question by this Court of whether, on the evidence below, the appellant has established on the balance of probabilities that the pain and suffering consequences of at least one compensable injury are fairly described as being more than 'significant' or 'marked' but rather fall within the category of being at least 'very considerable'.

11 Given the adverse findings of credit by the judge below, it is necessary for this Court to consider the appellant's credit. I shall say something further below about the reasoning of the trial judge in arriving at the findings she made on credit.

12 The appellant is 54 years of age. He was married and has three adult children from that marriage. He has established a new long-lasting de facto relationship since the breakdown of his marriage.

13 After completing his schooling at the age of 15 to Year 9 level, he worked in various capacities including as an apprentice cutter and pattern maker, storeman, labourer, and forklift driver.

14 He sustained a work-related back injury while working as a labourer stacking roof tiles onto pallets, after which he convalesced for 12 months. Over the following eight and a half years, he worked in various jobs, the longest as a storeman and forklift driver over a seven-year period to 1990. He suffered a tendon injury to his right arm during that period and after the injury settled he returned to similar employment before training as a juvenile corrections officer and working with the Northern Territory Correctional Services Department.

15 From 1991, the appellant was employed by the Broadmeadows College of TAFE, which involved training prisoners.

16 He resumed work as a qualified forklift assessor and driver, partly obtaining work 'off [his] own bat' and then being hired out through a labour agency between 1994 and 1999. The agency allocated to him work with a predecessor of the respondent, Amatech Pty Ltd (trading as Insulation Solutions), for 18 months before he commenced employment with Amatech in July 1999 as a forklift driver. Throughout the course of that employment, he was required to perform 'constant repetitive heavy jarring work manoeuvring trolleys in order to hook them onto forklifts'.

17 He described the nature of the work and the incident that caused the compensable injuries in this way:

I was constantly placing strain on my body, but my difficulties really began on 13th February, 2001 when I reversed up to a trolley in my forklift but found that I was about 30cms short of the point at which the trolley was to be connected. There were a number of reasons for this. The forklifts lacked reversing mirrors which would have assisted us to guide the vehicles in reverse, although mirrors were later introduced onto these vehicles. A further difficulty was that there was meant to be another employee assisting me for directions, but on this occasion there was no such assistance provided. Having pulled up about 30cms short I then had to connect the trolley to the forklift. This was an activity which I had undertaken many times before, although on this occasion I did not realise the tremendous dead weight which I would have to shift and get into motion before the connection could be made. There were no jockey wheels provided on the trolley to assist in this regard and further, the trolleys were known to be poorly maintained and difficult to move by hand and a number of complaints had been made in the past as to such matters.

As I was attempting to connect the trolley to the forklift and even though it was a short distance the tremendous strain imposed on my body meant that I suffered pain in my neck and right shoulder. I can recall a burning sensation on the right side of my face and the top of my neck and also some unusual features in my right arm including a pins and needles sensation and a hot flush sensation.

18 The appellant stayed at work for the rest of the day. His symptoms increased in severity during the night.

Treating medical history and medico-legal assessments

19 The appellant attended his General Practitioner, Dr Wiseman, the following day who diagnosed a significant muscular ligamentous tear of the right trapezius muscle. This was treated conservatively with the prescription of medication and a referral for physiotherapy treatment. An initial ultrasound demonstrated mild impingement of the right rotator cuff. A further ultrasound confirmed this and showed no evidence of a tearing of the cuff.

20 The appellant was referred to a musculo-skeletal and sports physician, Dr Larkins, whom he saw four times between April and June 2001. Dr Larkins administered an intra-articular steroid injection into the appellant's right shoulder but there was no significant improvement to the appellant's symptoms. At this stage the appellant would experience, on moving the shoulder, a distinct 'clunk' in the shoulder with pain in the shoulder joint and surrounding structures of the shoulder. In a report to the appellant's solicitors in June 2004, Dr Larkins described his diagnosis in this way:

INITIAL MANAGEMENT

I initially felt that Mr Sutton was experiencing a mixture of shoulder pathology superimposed on some cervical spine or brachial plexus referred pain, as a result of the tractional loading at the time of injury. I performed a subacromial infiltration which did not significantly affect his pain findings on examination. Subsequent hydrodilitation of the shoulder also did not assist with his symptoms.

When I saw him on 2nd May 2001 he continued to complain of upper arm pain with some associated headaches and ongoing paraesthesia of the forearm and right hand. In order to further elucidate the contribution of his shoulder to his pain complex I arranged for a consultation with Mr Greg Hoy, an orthopaedic surgeon with a special interest in upper limb problems.

Mr Hoy reported that he felt Mr Sutton's symptoms were of a primary cervical/neural pathology with only mild muscular involvement. He did not feel that that shoulder needed to be further investigated but arranged for an MRI scan of the neck and thoracic outlet area to be performed. ...

SUBSEQUENT MANAGEMENT

On the basis of lack of response to shoulder interventions and the findings of some degenerative disc disease of the cervical spine on the MRI scan, I felt Mr Sutton's further management would be best undertaken under the supervision of a spinal specialist with an interest in cervical spine problems. ...

In summary, Mr Sutton was referred to me by his local general practitioner for assessment of his right shoulder region. When I initially saw him I felt he had a mixture of cervical spine/neurologically generated pain together with some mild shoulder joint irritation. Despite several interventions to the shoulder joint region his pain did not alter and this leads me to believe that his primary pathology was from the spinal region. I subsequently referred him for management in the hands of a specialist in this field.

21 The hydrodilitation procedure to which Dr Larkins referred was a procedure administered by a radiologist, Dr Burke, by which 35ml of fluid was injected into the appellant's right shoulder. The appellant found this to be a painful procedure which did not provide any long term assistance, and he continued to suffer ongoing shoulder pain, headaches and pins and needles persisting in his forearm and right hand.

22 When referred by Dr Larkins to Mr Hoy, the appellant was advised to persist with conservative treatments. Mr Hoy said:

On examination [the appellant] has full flexion of the shoulder with normal abduction until the scapular part of the abduction which appears to lack the normal scapular rhythm. His biceps tests and other supraspinatus resistance tests are all normal, although he does have some irritation at the AC joint which I think is a secondary phenomenon.

Testing his cervical spine demonstrates some decrease in motion and I think that he does have a primary cervical pathology which may be a muscular injury from the lateral cervical spine.

I cannot find any obvious evidence of a primary shoulder pathology and it appears that all the local anaesthetic injections in different areas done by John Wiseman, yourself and the hydrodilitation procedure have not produced any improvement in his symptoms, even for the temporary local anaesthetic period.

23 Mr Hoy referred the appellant for an MRI scan of his cervical spine and brachial plexus in June 2001 which revealed degenerative changes in the C5-6 and C6-7 intervertebral discs of the cervical spine and small central disc bulges but without nerve root impingement.

24 The appellant consulted Dr Vivian, a pain management specialist, who wrote back to the referring doctor, Mr Wiseman, as follows:

He has a complicated problem. The facial symptoms are interesting, and probably relate to the upper cervical spine.

Considerations for diagnosis can be given to the following:

Neck origin pain: It is likely he has injured cervical spine structures. Identifiable structures would include the facet joints (identified by medial branch blocks), the discs (identified by provocation discography - a test hardly ever done), or some other structure (unidentifiable). The neck origin pain appears to spread down the scapular border and across to the shoulder. It also refers into the head and face.
Nerve damage: He has fairly persistent numbness of the right thumb (a C6 type distribution). There were no other neurological abnormalities in the upper limbs. The fact that he gets pins and needles on elevating the arm as well, may well suggest that he does have a brachial plexus traction type injury - whether this is identifiable or not on nerve conduction studies, only time will tell - EMG is indicated in my view.
Shoulder pathology: I think he probably does have a degree of shoulder pathology, but it is the least significant of all his problems. Such a diagnosis as a labral tear could be postulated.

25 Dr Vivian also referred the appellant to a musculo-skeletal physician, Dr Brzozek, to investigate nerve blocks. The first nerve blocks were performed in September 2001 and further nerve blocks were administered during October and November 2001, Dr Brzozek reporting that the appellant 'did respond to nerve block injections directed at the upper cervical and mid cervical spine facet joints'. The appellant was prescribed Amitriptyline medication to help him sleep and Panadeine Forte tablets to relieve the pain.

26 Nerve conduction studies were performed by Dr White, a neurologist, on the referral of Dr Wiseman, which demonstrated that nerve conduction was normal in the upper limbs and there was minor abnormality in the right supraspinatus region.

27 In January 2002, the appellant was referred to Dr Kranz, a neurologist, who considered that the appellant's 'problems appeared predominantly confined to musculo-skeletal involvement at cervical and right shoulder level'. He reported that:

There were some symptoms suggesting nerve root irritation but functionally he had good motor and sensory function in the right upper extremity.

The symptoms that he was experiencing on the right side of the face suggested possible involvement of a trigeminal nucleus in the upper part of the cervical cord. There was nothing obvious on the MRI and symptomatically he was improving.

28 He recommended continuing with conservative treatment.

29 The appellant suffered a significant 'flare-up' or exacerbation of his condition in February 2003 which required physiotherapy and hydrotherapy rehabilitation between February and June 2003.

30 A further x-ray and ultrasound in March 2004 demonstrated a normal rotator cuff tendon and mild sub-acromial and sub-deltoid bursitis.

31 In May 2005, a physiotherapy report from Luke Goodwin stated that:

Mr Sutton was initially diagnosed with a strain of his upper trapezius muscle, with possible neural involvement from the cervical spine. ...

Mr Sutton's injury had developed into a chronic neuro-muscular condition involving his neck, scapular, shoulder and right arm. Treatment continued to focus on the soft tissue of these regions, as well as a home based exercise program to work on stretching, posture and strengthening his right shoulder.

32 In late 2006, the appellant was referred back to Dr Larkins who arranged for another hydrodilitation procedure to be performed on the appellant's right shoulder.

33 In September 2007, the appellant attended Mr Weaver, orthopaedic surgeon, for the purpose of an assessment for medico-legal purposes on behalf of the respondent. Mr Weaver observed no evidence of dramatic rotator cuff tear and diagnosed a combination of 'mild but genuine' pathology affecting the cervical spine and the rotator cuff of the right shoulder. He reported:

This man presents with what I would regard as evidence of a genuine mild degree of cervical intervertebral disc pathology, with the additional presence of a mild rotator cuff problem involving the right shoulder region. It is not at

all unusual to find these two forms of pathology occurring more or less in conjunction.

34 In April 2008, the appellant returned to Mr Weaver for treatment. Mr Weaver said:

As you will be aware, I normally undertake medico legal consultations, but in a few instances, such as that of Mr Sutton, I am prepared to assess individual patients from the viewpoint of trying to give them some advice regarding their particular problems.

[I]t is difficult to differentiate between the presence of pathology which possibly involves both the cervical region and one of the adjacent shoulder girdles; although a diagnosis involving dual pathology is less than satisfactory, this is something which sometimes does have to be considered. I suspect that the pathology is exhibiting some signs of minor capsular pathology involving the right shoulder, in addition to the cervical disc degenerative changes which were present. An alternative diagnosis might be a brachial plexus traction lesion of some kind.

36 After a further visit in March 2009, Mr Weaver said:

It remains my belief that Mr Sutton is probably exhibiting evidence of generalised mild degenerative problems affecting the cervical region and possibly in addition the shoulder girdles, particularly on the right side.

37 A further MRI scan of the appellant's cervical and upper thoracic spine in February 2008 demonstrated degenerative changes with mild disc bulges from C5-6 to T2-3 level with no nerve root impingement.

38 The appellant was referred by Dr Wiseman to Dr Day, neurologist, whom he saw on 5 March 2009. Dr Day found minor wasting of the right spinati and possibly trapezius, but that muscle power was normal throughout with unremarkable tendon reflexes and normal sensation. On viewing the results of the MRI scan taken in February 2008 at a later visit, on 26 March 2009, when the appellant attended for a medico-legal assessment, Dr Day expressed the opinion that:

From his original description I was concerned that the original injury may have been complicated by nerve root compression or possibly even spinal cord compression, but later review of his MRI scan allayed these concerns. Although the MRI scan did show minor disc bulges, there was no compression of nerve roots or spinal cord. I felt it more likely there was some degree of rotator cuff degeneration or possibly right C5 or C6 radiculopathy, but subsequent right shoulder ultrasound showed no significant abnormality in the rotator cuff muscles or tendons. Nerve conduction studies and EMG performed on the 26th of March 2009 were also quite normal with no evidence for active radiculopathy, brachial plexus lesion or peripheral nerve entrapment.

39 On the basis of the range of clinical and laboratory assessments, he said:

[I]t is my opinion that he has a localised pain syndrome related to soft tissue injury, possibly local muscle strain or tendonitis, but I was confident there was no associated nerve injury, spinal cord complication or serious derangement of the shoulder which would require surgical attention.

40 In addition to the medico-legal examinations conducted by Mr Weaver and Dr Day, the appellant attended for further medico-legal examinations by Mr Khan, orthopaedic surgeon, Dr Wyatt, occupational physician and Mr Battlay, orthopaedic surgeon. Mr Khan assessed the appellant as having

sustained a strain to his right shoulder and right side of the neck with flare up of mild pre-existing disc degeneration to his cervical spine, particularly at C5-6 levels but also in the upper part of the cervical spine.

He has developed symptoms of mild rotator cuff tendonopathy without a tear of the tendon resulting in intermittent impingement of the rotator cuff.

He has developed symptoms of irritability of the nerve roots in relation to the brachial plexus with resulting pins and needles and paresthesia but without any signs of radiculopathy or nerve root compromise.

41 Mr Battlay, upon whose medico-legal assessment the respondent relied, reported that:

Mr Sutton's history and clinical findings indicate a primary cervical injury, with possible involvement of the shoulders subsequently. Certainly, there is a restriction of shoulder movements bilaterally. There is no radiculopathy.

42 The appellant's local physiotherapist in Glen Eira, Ms Freedman, confirmed that:

Richard has in effect two separate injuries. He has chronic cervical spondylitis with broad based disc bulges from C5/6 - T2/3 levels. His cervical problems cause local neck pain, as well as pain radiating down towards the shoulder, and occasionally down the right arm. He also suffers from chronic bursitis of his right shoulder. ...

He still suffers significantly from shooting pains and tingling down his arm, which are more likely due to his cervical pathology. Richard is particularly hypomobile through his thoracic spine, and physiotherapy has focused a lot on mobilizing as well as postural correction.

43 Ms Freedman provided the appellant with a traction neck brace for use at home so he could stretch his neck on a nightly basis. The appellant continued to attend Dr Wiseman and the medications he used included Norspan patches, Tramal and Panadol. His treatment remained conservative. He received weekly physiotherapy treatment, which he found beneficial.

44 The medical and examining reports consistently show the primacy of the cervical pathology, namely, the aggravation of the pre-existing asymptomatic degenerative condition in Mr Sutton's cervical spine with associated chronic soft tissue damage but with no nerve root impingement. As Dr Day's report revealed, the MRI scan in 2008 showed no compression of nerve roots or spinal cord but confirmed the presence of mild disc bulges from C5-6 to T2-3 level. The orthopaedic surgeon, Mr Hoy, considered that the appellant's symptoms were primarily attributable to the injury to his spine with some shoulder pathology imposed upon it. This opinion was consistent with observations made by Dr Larkins, Dr Vivian, Mr Weaver, Mr Battlay and Ms Freedman.

45 The pathology with respect to the right shoulder injury is less clear. The ultrasound in 2004 showed no significant abnormality in the rotator cuff muscles or tendons. There was no tear of the rotator cuff. There was evidence that the soft tissue injury to the right shoulder involved chronic rotator tendonopathy, muscle wasting, adhesive capsulitis and brachial plexus neuralgia. Dr Day described it 'possibly local muscle strain or tendonitis'. There was a lack of response to shoulder interventions, including the local anaesthetic injections and the hydrodilitation procedures which had little success in alleviating the appellant's symptoms. The shoulder pathology appeared to be the least significant of the two compensable injuries.

46 The pain and suffering consequences of a compensable injury extend beyond the physical experience of pain to include the debilitating effect on a person's life. Drawing on the accepted interpretation of 'pain and suffering', Maxwell P in Haden Engineering Pty Ltd v McKinnon[11] said:[12]

[T]he 'pain and suffering consequence' of an injury encompasses both the plaintiff's experience of pain as such and the disabling effect of the pain on the plaintiff's physical capabilities (including capacity for work) and enjoyment of life. ...

The experience of pain

As to the experience of pain as such, the Court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale 'mild/moderate/severe'. Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.

The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a) what the plaintiff says about the pain (both in court and to doctors);

(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);

(c) what the doctors say about the extent and intensity of the plaintiff's pain; and

(d) what the objective evidence shows about the disabling effect of the pain.

47 Relevantly to the issues on this appeal, Maxwell P pointed out that the first evidentiary basis will turn on an assessment of a plaintiff's credit. He said:[13]

As to (a), the weight to be attached to the plaintiff's account of the pain experience will, of course, depend upon an assessment of the plaintiff's credibility. The Court will make its own assessment of the plaintiff's credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff's accounts of pain.

48 An assessment of the fourth evidentiary basis must be tempered by an understanding of the effect of stoicism. Approving what was said in Dwyer v Calco Timbers Pty Ltd (No 2) by Nettle JA, Maxwell P observed:[14]

As to (d), the cases recognise that some plaintiffs may be more 'stoical' than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the 'stoical' plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the 'objective' evidence of the disabling effect may be of less significance than usual.

49 To identify the disabling effect of pain requires an understanding both of a plaintiff's pre-injury and post-injury employment and activities, although this does not amount to a simple comparison. As Maxwell P explained:[15]

The disabling effect of pain

As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff's physical functioning, and interferes with the plaintiff's enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): ' ... [I]mpairment is concerned with what has been lost. But the significance of what has been lost ... may be informed, to an extent, by what is retained.'

As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is to the extent to which 'an area of work which [the plaintiff] enjoyed has been closed off to [him or her].'

50 Assessing loss of enjoyment of life, in a broad sense, requires an understanding of the effect of the impairment upon numerous aspects of a plaintiff's daily life and activities. In this respect, Maxwell P said:[16]

Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff's:

sleep;
mobility;
cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
capacity for self-care and self-management;
performance of household and family duties;
recreational activities;
social activities;
sexual life; and
enjoyment of life.

Whether and to what extent the matters listed are relevant to the court's task in a particular case will, naturally, depend on the circumstances of the case.

51 With respect to the actual experience of pain, the appellant relied upon affidavits sworn by himself and his partner, and upon numerous medical reports of treating doctors and the reports of those practitioners who examined him for the purpose of a medico-legal assessment, including the reports of Mr Weaver. The respondent relied principally upon medical reports. The appellant was cross-examined. The appellant's partner was not called for cross-examination.

52 The respondent formally admitted that it had obtained surveillance video of the plaintiff, brought into existence for the dominant purpose of use in this litigation, but that it did not seek to rely upon it. From the respondent's failure to rely on the surveillance video the judge below drew an adverse inference that the content of the video would not have assisted the respondent in either damaging the appellant's credit or contradicting his evidence about his physical activities and limitations.

53 The appellant's evidence was that he experienced 'constant but variable levels of pain' from which he was 'never totally free'. The pain was felt to be in the right side of the neck, the right side of his face, and in his right shoulder. The history recorded by the neurologist Dr Kranz in 2004 stated:

He still had residual soreness in the right side of the neck. If he lay on the right side he would get pins and needles and a burning feeling on the right side of the face.

At the initial consultation he complained of painful abduction with a noticeable "clunk" in the shoulder. His pain was in the superior shoulder, scapula, right cervical and triceps region of the upper arm. ...

He complained of disturbed sleep due to aching in the shoulder blade and upper arm region and felt there had been some occasional catching with arm movements overnight.

On initial assessment, Mr Sutton reported a dull ache over the right neck/shoulder region, with accompanied pins and needles sensations both down the arm and on the right side of his face. His symptoms were being aggravated by turning his neck and whilst walking. There was some relief when lifting his arm. Mr Sutton reported pain both during the night and first thing in the morning.

56 When Mr Weaver asked the appellant, in March 2009, about his 'main ongoing symptoms, day to day and week to week', he reported that:

Mr Sutton confirmed that he continues to experience pain affecting the back of his neck and what he described as "tightness" affecting the right shoulder. The neck "wanders about different spots" and he also complained of "sharp spikes of pain" which affect "various parts of the (right) arm" at intervals.

57 Dr Day's report of the pain the appellant described to him on 5 March 2009 was as follows:

At present he describes a sharp and aching pain in the right side of the neck at times with radiation to the occiput or to the shoulder and elbow, these aggravated by neck movements with partial relief with rest and neck traction.

58 Ms Freedman noted that he said he suffered 'significantly from shooting pains and tingling down his arm'. He would use a box of 100 Panamax/Panadol tablets per month, in preference to Tramal, and used muscle relaxant and reflux medication. He attended Dr Wiseman every few months for prescription of medication and as part of his pain management program had trialled Norspan morphine patches.

59 The appellant considered that his symptoms had plateaued and there had been no improvement or deterioration in his level of symptoms up until the few months before trial when the symptoms appeared to have been getting worse. His partner's evidence was that the pain caused by the appellant's symptoms was increasing over time. The hydrodilitation procedures in the right shoulder and the nerve blocks on the right side of the neck had not provided anything more than temporary relief of symptoms.

60 He continued to receive weekly physiotherapy treatment which had involved a dry needling technique and a home traction machine on which he 'stretched' his neck two or three times a week. He engaged in swimming exercises on the instructions of his physiotherapist.

61 He complained of sleep disturbance 'on a daily basis'. It was difficult for him to get comfortable at night. His partner's evidence was that if the appellant rolled over onto his right shoulder in bed he would often grunt in pain and she frequently had to push him over in bed so that he slept on his back. On occasions, the appellant would wake her up and ask her to move him in bed so that he could get into a more comfortable position. Once he gets up in the morning and starts being active, the pain disperses.

62 Overall, the appellant has sought to self-manage the pain which he has learnt to live with. Whereas he 'used to be very fit through until about 1999 as a regular gym attender', he has now limited his activities in a manner aimed at avoiding an increase in the level of pain that he suffers.

The disabling effect of pain on the appellant - post injury employment and activities

63 With respect to the restrictions on the appellant's employment and activities, post-injury, he has required extensive periods of time off work. It was necessary for him to take 12 months off work immediately following the onset of symptoms on 13 February 2001 and he thereafter required frequent days off work. He became unable to continue driving a forklift due to the inability to turn to look over his shoulder 'as a result of neck discomfort' and he was unable to elevate his arm to reach forward or behind his back.

64 He continued to be employed by the respondent, obtaining a position in November 2006 as freight co-ordinator. This involved mainly office work. He applied for the position because he

realised that [he] needed to take some employment which would not place significant strain on [his] right shoulder and neck and this job seemed appropriate.

65 However, as almost all of the work of a freight co-ordinator involved operating a computer, this has caused him to continue to suffer neck pain and symptoms in his right shoulder.

66 The impairment suffered by the appellant has had an adverse impact on his recreational activities, including restricting his gardening and his domestic activities, preventing him from mowing the lawn (for which he now pays a gardener) or using particular items in the kitchen such as a scouring pad. He has completely lost his most significant former recreational activity, namely, cycling 40-50 kms per week. Long distance driving aggravates the appellant's symptoms and he will often ask his partner to undertake such driving.

67 His partner observed that while the appellant had tried to continue to lead life according to his normal lifestyle over the years, he has become increasingly debilitated and is no longer able to undertake physical tasks which he might earlier have performed, including assisting people with their own houses, landscaping work and other heavier forms of manual work. He had managed some maintenance work, however, including some painting on an investment property in Perth with the assistance of his nephew some years before the hearing of the application, although the lifting of a roller made him sore because of the continuous need to look up. He has engaged property managers to look after his investment properties, including the maintenance.

68 His partner undertakes most of the maintenance tasks around the house including tree lopping, washing of clothes, vacuuming, and the like, while the appellant, after coming home from work, will take pain killing medication and rest in a chair. His partner will do 95 per cent of the gardening save for the removal of pumpkin bushes, to which she was allergic, which she leaves to be pulled out by the appellant.

69 However, the appellant has taken up sailing as a hobby, post-injury, and has purchased a 22 foot trailer/sailer boat moored at Hastings. The boat has an auto-tiller which greatly assists him steering. He has had modifications made to the boat that reduce the need for forceful movements of his arms, or movements that place undue strain on his neck so as to reduce the need to look overhead frequently. His evidence was that if he wished to sail, he required the assistance of other people as he would not be confident sailing alone. His partner or friends assisted him.

70 The evidence in affidavit and cross-examination disclosed that marina staff put the boat in and out of the water for him; that the boat had a wind-down keel; that he did not sail alone unless motoring which allowed the boat to be steered by autopilot and that when putting up sails, the task was very light and could be performed by the nine-year old son of a friend. Infrequently, the appellant has sailed on a friend's 33 foot catamaran including two trips to Tasmania.

71 The appellant now also walks 'a lot' for exercise, often walking for a number of hours and over long distances. For example, he would often walk from the suburbs into the city for a coffee and home again, a journey that took up to 3 hours.

72 In her Honour's reasons, the credit of the appellant came under sustained attack. The respondent, in its written submissions on appeal, endeavoured to support the judge's adverse findings, despite not having invited the judge to make those findings at trial. However, in oral argument, senior counsel for the respondent accepted that, for the purpose of the appeal, there was little to say about credit except that it was a 'distraction' to this Court's task.

73 The appellant was regarded by all the treating and examining doctors he saw as an honest and frank person who was 'very cooperative'; he was 'not showing any signs of exaggeration or malingering'. He presented with a 'genuine pathology', as Mr Weaver said. In my opinion, he should have been so treated by the judge below and he should be so treated for the purpose of the exercise to be undertaken by this Court under s 134AD. Given the basis upon which her Honour made her adverse findings, what she took to be discrepancies between the affidavit and oral evidence, which I deal with in more detail below, this Court is as well-placed as was the judge below to decide the application. The circumstances are somewhat similar to those considered in Church v Echuca Regional Health,[17] where the judge below

did not identify any other aspect of the appellant's evidence, or the manner in which she gave it, as bearing upon [the] assessment of [the plaintiff's] reliability. [The judge below] referred to no circumstance which this Court would or might have difficulty in assessing - a hesitancy in answering questions, for instance, or an apparent looking to counsel or some other witness for help.

Were the pain and suffering consequences of either of the two compensable injuries 'very considerable'?

74 The respondent accepted that ultimately the appeal turned on the distinction between pain and suffering consequences that may be 'significant' and 'marked' and yet are not 'very considerable', as s 134AB(38)(c) requires. The respondent accepted that the appellant's circumstances placed him in that 'grey area' between having marked and significant consequences, and consequences that were 'at least, very considerable'. However, the respondent urged, weight was to be attached to the word 'very'[18] and there was no feature of the case that took it from the former category and into the latter, the appellant bearing the burden.

75 The respondent emphasised the importance and relevance of what the plaintiff had retained in his life, including the manner in which the appellant had been able to adapt his life to take account of his impairment. He had been able 'to fill up his life' with the new and enjoyable hobby of sailing to replace the cycling which the respondent accepted he had had to forego. The respondent accepted that sailing, in the modified form engaged in by the appellant, was not inconsistent with the appellant's injuries.

76 The respondent pointed to the new form of full-time skilful employment which the appellant had secured. While the appellant had particularly enjoyed his previous work, he was now content with his new employment. This was not a case where an occupation on which a plaintiff had thrived was replaced only by a job he or she begrudged; the situation was to the contrary. In this respect, the respondent relied on the observation of Ashley JA in Dwyer v Calco Timbers Pty Ltd (No 2):[19]

I agree with the submission for the respondent that in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.

77 Moreover, the change in employment had ultimately given him about the same income as a forklift driver with overtime. The relevance of alternative employment was adverted to by Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd:[20]

If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are 'at least very considerable'.

78 However, the comments of Chernov JA in Sumbul require some explanation and cannot be relied on to establish a proposition that, where a plaintiff retains a capacity for, or has obtained, alternative employment, this is evidence, without more, that the plaintiff has been unable to satisfy the threshold. Furthermore, those comments do not support the proposition that, where alternative employment reduces or obviates any economic loss the plaintiff might otherwise have suffered, this would suggest that the pain and suffering consequences of the plaintiff's impairment are less than 'very considerable'. As Ashley JA and Beach AJA clarified in Stijepic v One Force Group Pty Ltd:[21]

[I]t is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injuries are serious. But, as always, the evidence as a whole must be considered.

79 In this case, while the appellant obtained the alternative employment because he understood that he needed to find work that would reduce the strain on his neck and shoulder, the alternative employment found has not had the effect of reducing his symptoms and he continues to experience constant but variable pain in both his neck and right shoulder. Taking into account that relevant evidence, the appellant's return to alternative duties cannot be relied upon, as the respondent sought to do, as itself providing some evidence that the pain and suffering consequences of the appellant's impairment have not met the threshold.

80 The respondent made two submissions with respect to the appellant's stoicism. Stoicism was one of the considerations identified by Maxwell P in Haden Engineering as useful in assessing the pain experienced by a plaintiff, drawing upon the remarks of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2) who said:[22]

I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best as he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.

81 The respondent accepted the force of Nettle JA's observation that a stoical plaintiff, who does not simply resign himself to his injury, should not be disadvantaged, but argued that, conversely, for a plaintiff to demonstrate the strength of character to be stoical should not give rise to a presumption that the pain and suffering consequences of the plaintiff's impairment are 'very considerable'. It would be wrong, it was submitted, to treat the stoic as inherently self-deprecatory about the intensity of pain experienced. In a case of stoicism, the question must always be: 'What is the plaintiff stoical about?' It remains necessary to establish that the plaintiff is stoical about pain and suffering that is more than 'marked' or 'significant'.

82 In any event, the appellant in this case, the respondent submitted, was sensible, not stoical, to engage in his new-found and rewarding hobbies.

83 It can be readily accepted that the appellant was sensible to find activities (including alternative employment) that lay within his restricted capacities, and sensible to modify the demands of those activities, especially the sailing, to conform to his limitations. But being sensible and being stoical are clearly not mutually exclusive and the appellant was, objectively, someone who was not prepared to resign himself to his injury; he was not prepared to allow his injury to dictate a wholehearted reduction in his enjoyment of life. He is entitled to be considered a stoic and it is thus necessary to be mindful of the observations of Nettle JA, as approved by Maxwell P, that he is not thereby to be treated less favourably. It remains to be determined, as the respondent correctly submitted, what it is that the appellant is stoical about.

84 The pathology was modest, the respondent argued, and consistent with modest consequences. The Court was urged to accept that the language used in the medical reports did not conform to 'serious injury' terminology. While there was a 'tingling in the arm', the nerve conduction studies did not reveal nerve root impingement. So too, while there was neck pain, the MRI scan revealed small central disc bulges but, again, without nerve root impingement. Further, the treatment was modest, principally Panadol and a home exercise regime. It was not suggested that the pain and suffering consequences were 'unremitting'; 'excruciating' or 'relentless'. The disruption to the appellant's sleep patterns did not leave him exhausted.

85 The appellant gave evidence that for the few months preceding the hearing he had been 'a bit slack' about swimming. The respondent correctly submitted that this could not be treated as an aspect of the appellant's loss because swimming had been a modality of treatment for his injuries rather than a physical activity he had pursued pre-injury.

86 With respect to the pain experienced, in re-examination the appellant said that 'he actually [thought] it plateaued out for quite a long time ... but I believe over the last probably six to 12 months, I believe that I'm actually - I feel, whether I am or not, I actually feel like I'm getting a bit worse'. His most recent flare-ups of pain in his right shoulder led him to refuse an opportunity to sail to Tasmania during an Easter vacation. The respondent submitted that there was no medical evidence to indicate that the pain was getting worse, the appellant's general practitioner, Mr Wiseman, having concluded that 'the injuries have stabilised and, as indicated, treatment will be one of "maintenance" and prevention of future deterioration.'

87 The respondent's final submission was to compare the circumstances of the appellant with the circumstances of two appeals in which no serious injury was found, Stijepic v One Force Group Aust Pty Ltd[23] and Sabo v George Weston Foods.[24] Stijepic was a case of a 28 year old man with significant back pain caused by disc protrusion at L3/L4 and L4/L5, with significant nerve root impingement. However, he remained able to stand and play the guitar for up to two hours, he conceded that he could run and play social cricket and soccer and kick a football with a friend, and his Facebook site showed that 'he has had, since the accident, a not inconsequential social life'.[25]

88 Sabo was a case of a 57 year old man who had spent his life as a labourer whose work capacity had been diminished by his inability to twist, bend or lift heavy weights although his pain was not constant and he could cope with work as a forklift driver.

89 Whether or not the facts of Stijepic and Sabo are vastly different from the circumstances here, it is important to be mindful that there is limited utility in seeking to establish similarities with other cases. As Ashley JA and Beach AJA said in Stijepic, in response to the reliance that was placed on other cases:[26]

In addition to the two cases to which his Honour adverted there are in our experience many others where very similar fact situations have produced a different outcome. The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation - because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.

90 The objective evidence here is that it is 10 years ago since the appellant suffered the onset of symptoms which, if not getting worse, have not improved. He has been treated by numerous medical practitioners who have been able to do little to relieve the pain and he continues to trial new forms of treatment, including dry needling by his physiotherapist.

91 He endures chronic ongoing pain, and even with use of medication, he is never totally free of pain. This is despite having a pain management program, including the use of a traction machine at home to stretch his neck two or three times a week. As Dodds-Streeton JA remarked in Kelso v Tatiara Meat Co Pty Ltd: [27]

The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a 'very considerable' consequence.

92 The appellant has chronically disturbed sleep patterns. The appellant's partner gave affidavit evidence as to the disturbance of his sleep patterns and, as she was not cross-examined, and the evidence was not inherently improbable in the circumstances of the case, her evidence should be accepted.

93 While the appellant has stoically adapted his life to live within his restrictions, he is no longer the fit and physically energetic man he once was. He is dependent upon his partner to perform the household and gardening tasks. He is dependent upon others to be able to enjoy his post-injury acquired hobby of sailing. He is dependent on his partner to assist with long-distance driving.

94 It was necessary for the appellant to take twelve months off work following the incident and he later changed his employment to a computer-based job because he realised he needed to work in a manner that subjected him to less strain. He continues to have variable levels of ongoing pain while at work. When he gets home from work he takes painkillers and rests.

95 Considering not only what the appellant has lost, but also what he has retained, his future would nevertheless appear to be one of chronic irremediable life-long pain and a restricted lifestyle involving dependency on others.

96 Although the language used to describe the pathology in the medical reports was modest and not alarmist, the absence of nerve impairment does not mean that the chances of recovery are high. The appellant suffers chronic debilitating pain from which there has been little relief over ten years.

97 The conclusion I expressed above that the medical evidence supported the primacy of the cervical pathology suggests that the pain the appellant is experiencing is largely the result of the compensable injury to the cervical spine. This is consistent with the description of the appellant's symptoms. From the outset the experience of pain for the appellant related to 'a burning sensation on the right side of [his] face and the top of [his] neck'. Lying on his right side 'he would get pins and needles and a burning feeling on the right side of the face'. This no doubt contributed to his discomfort when trying to sleep on his right side. As Dr Day noted there was a 'sharp and aching pain in the right side of the neck with radiation ... to the shoulder'. To the same effect was Ms Freedman's conclusion that the cervical problems caused 'pain radiating down towards the shoulder, and occasionally down the right arm'. The neck pain would account for the headaches. The restrictions on his post-injury employment and activities caused by the cluster of these symptoms are thus attributable to the cervical pathology. In particular, these restrictions include his inability to drive a forklift 'as a result of neck discomfort', his inability to engage in heavy forms of manual work and property maintenance, especially if it involved him 'looking up', and, on the balance of probabilities, his incapacity to cycle without pain.

98 While the 'clunk' in the appellant's right shoulder is not attributable to the cervical pathology, nor is the restricted movement in his arms, there is little else that could be confidently attributed solely to the soft tissue injury to the right shoulder. I do not consider that one could confidently conclude that the right shoulder injury materially contributes to the pain in the appellant's face or the tingling of pins and needles down his right arm.

99 Putting the soft tissue injury to the appellant's right shoulder to one side, it may be accepted that, on an initial appraisal, the appellant's circumstances indeed place him in the 'grey area' between pain and suffering consequences that are 'significant' or 'marked', and pain and suffering consequences that are 'very considerable'. However, ultimately, the assessment to be made by this Court under s 134AD, as to when the threshold of 'very considerable' pain and suffering consequences is met, as 'has often been remarked, ... involves a value judgment, in which matters of fact and degree, and of impression, are operative.'[28] Taking into account the appellant's experience of pain resulting from the cervical pathology and the debilitating effect of that pain in the circumstances I have described, it is my opinion that the pain and suffering consequences to which the compensable injury to the neck materially contributes are 'very considerable'. I consider that the injury to the neck is a 'serious injury'. The appellant has met the threshold test for leave to bring proceedings for damages under s 134AB(19)(a).

101 In my opinion, the judge below made adverse findings of credit, material to her conclusions, which were not warranted, which she was not invited to make, and which were not part of the respondent's case.

102 Her Honour made adverse findings against the appellant despite being informed by counsel for the appellant that:

We say firstly that there are no issues of credit that have arisen in this case.

103 Counsel for the respondent before her Honour did not submit otherwise. It is one thing for a judge to make his or her own assessment of the credibility of a plaintiff, particularly if based upon observations made where the plaintiff gives evidence. It is quite another for a judge to draw adverse findings on credit as the foundation of her conclusions where credit has not been placed in issue, where the findings are not reflected in the views expressed by examining doctors about the reliability of the plaintiff's account of pain, and, most importantly, where the findings are not justified on the whole of the evidence.

104 The principal detailed example given by the judge below of minimised post-injury activity was the appellant's cycling. She said:[29]

The plaintiff cited a number of areas of activity impacted. For instance, in his first affidavit he deposed to previously engaging in "pushbike riding and rode perhaps 40 or 50 kms a week whereas I now perhaps take my bike out once every few months and go for a short ride along the south eastern bike track of only a couple of kilometres or so." This evidence is consistent with having also reported to Dr Wyatt in 2007 that he continued to ride his bike.

However, in his final affidavit the plaintiff said "I have not resumed any bike riding because of the pain that I was suffering." Not surprisingly, the plaintiff was challenged on this issue in cross-examination at which time he said that he had tried to ride his bike only once since his injury. In all the circumstances I did not find this a credible response. Indeed, it was one of a number of instances where I formed the view that the plaintiff sought to minimise the level of his post-injury activity.

105 The inference her Honour drew in this instance was based upon a comparison of the first and last affidavits. This ignored the evidentiary link between them proved by two affidavits sworn in the interim. A reading of the four affidavits disclosed the incremental loss of this particular amenity. In his second affidavit, sworn 15 January 2008, the appellant said:

I have not ridden my pushbike for 12 months because I was finding it just too painful.

106 The appellant said in his third affidavit, sworn 17 September 2008:

I have given up bike riding altogether because of the pain that it caused to me.

I have not resumed any bike riding because of the pain that I was suffering.

108 In cross-examination, when the appellant was asked whether he still rode his bike, he said:

I haven't ridden my bike for a number of years.

When did you stop?

When, I'm just trying to think. I stopped when I hurt myself and then ...

Got back on it?

Once. I got back on it once. A friend of mine came over from interstate and we went for a ride, and that would probably be the last time I'd ridden it. I can't remember how many years ago it was, whether it was two or three years, but I hopped on it and had a ride.

You haven't ridden it since?

No.

109 The last three affidavits were all sworn by the appellant at a time after the ride with the interstate friend. There was no inconsistency between the evidence on affidavit and the appellant's oral evidence. On appeal, counsel for the respondent accepted that the appellant could no longer ride a bike. The evidence did not support her Honour's conclusion that she 'did not find this a credible response'.

110 Further, her Honour commented on the appellant's 'responses in cross-examination that he now walks with his wife "a lot" for some hours and over long distances'. The reference to those responses being elicited in cross-examination suggests that those responses were extracted from the appellant, perhaps after hesitation, whereas the transcript revealed there was no concealment by the appellant of his capacity to engage in long walks. Furthermore, the responses were not inconsistent with the appellant's affidavit evidence. That walking was his preferred form of exercise was disclosed in his first affidavit, and in his second affidavit he stated, 'I continue to walk extensively for exercise, particularly on weekends'.

111 I do not consider that the judge below was justified in arriving at the adverse findings she made which were not supported by the evidence, taken as a whole.

Separate application of test to distinct consequences

112 The reasoning of the judge below also reveals that she applied the 'very considerable' test in a manner that should not be followed. Her Honour sought to dissect the pain and suffering consequences of the injury to the right shoulder into two separate categories and then wrongfully applied the 'very considerable' test to each, rather than to the consequences as a whole.

113 Her Honour rejected, on causation grounds, the significance of the aggravating injury to the spine. This is a conclusion which, as is plain from the above, I reject. However, the specific conclusion is not material; rather, it is the general approach her Honour adopted which is questionable. Her Honour turned to consider the consequences of the injury to the right shoulder. She said:[30]

Looking at all the evidence, in my view the consequences of any injury-related impairment of the right upper limb, whether considered individually or collectively, in the area of the plaintiff's work, domestic and recreational activities do not satisfy the "very considerable'' test. Accordingly the outcome of his application in respect to injury to this body function really rests on the evidence as to his level of pain and the need for pain management.

114 The approach adopted was to divide the consequences suffered by the appellant by reason of the right shoulder injury into two different categories, the restrictions on the appellant's capacity to engage in work and other activities, on the one hand, and the experience of pain, on the other. Drawing a distinction between those categories was not itself an error; indeed, the categories perhaps reflect what Maxwell P said with respect to the disabling effect of pain by contrast with the actual experience of pain. The error lay in applying the 'very considerable' test to each of those categories separately. There is no warrant in the terms of s 134AB(38)(c) for the disabling consequences, and the consequences involved in the experience of pain, to be assessed separately against the relevant threshold. The terms of s 134AB(38)(c) make clear that the 'very considerable' test is to be applied to the pain and suffering consequences of the impairment considered as a whole. Indeed, the collective nature of the assessment is reinforced by the reference in (38)(c) to 'the pain and suffering consequence', expressed in the singular. In assessing the 'consequence' of an impairment a court must consider globally all of the pain and suffering experienced by a plaintiff to which the compensable injury materially contributes; that is, the

actual experience of pain together with the disabling or debilitating effects of the impairment. The reasoning of the judge below demonstrates that, in this instance, she did not apply the 'very considerable' test consistently with the Act.

[1] R J Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51; (2000) 12 VR 386, 394 [27]; Alcoa of Australia Limited v McKenna [2003] VSCA 182; (2003) 8 VR 452, 472 [62]; Grech v Orica Australia Pty Ltd (2006) 14 VR 602, 616-7 [57]-[58].

[2] Sutton v Laminex Group Pty Ltd [2009] VCC 1140.

[3] The repeal of s 134AD, by the Accident Compensation Amendment Act 2010, which took effect from 10 December 2009, has no effect on this appeal.

[4] [2008] VSCA 219, [9] (footnotes omitted).

[10] Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124, 139 [43].

[12] Ibid, [9]-[11] (footnotes omitted).

[15] Ibid, [14]-[15] (footnotes omitted).

[18] Sabo v George Weston Foods [2009] VSCA 242, [73].

[19] [2008] VSCA 260, [27] (emphasised also in the extract from Maxwell P in Haden Engineering quoted above). See also Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, [44]; Sabo v George Weston Foods [2009] VSCA 242, [60].

[28] Stijepic v One Force Group Pty Ltd [2009] VSCA 181, [41].

[29] [2009] VCC 1140, [84]-[85].

Compensation Act 1985

Compensation Amendment Act 2010

Sutton v Laminex Group Pty Ltd [2011] VSCA 52

At a glance

Court

Decision date

Before

Source

Judgment (194 paragraphs)

Sutton v Laminex Group Pty Ltd [2011] VSCA 52 (3 March 2011)

Parties

Legislation Cited (2)

Cases Cited (6)