To Ha Lu v Mediterranean Shoes Pty Ltd & Ors [2000] VSCA 65

7. I have had the advantage of reading in draft the reasons prepared by Chernov, J.A. I agree that the appeal should be dismissed substantially for the reasons stated by his Honour.

10. I think that the identification of a body function for the purpose of determining the application of paragraph (a) of the definition of "serious injury" in s.135A(19) of the Act depends only upon the existence of impairment or loss of a physical function, and the definition is not limited to the function of that part of the body directly affected by an injury. Thus I consider that an injured shoulder and an injured elbow can properly be regarded as resulting in impairment or loss of the body function of an arm.

13. It is another question, however, whether an injury to a shoulder and an injury to an elbow can be aggregated. I agree with Chernov, J.A. that injuries can only be aggregated if they are the result of one event or incident.

16. Paragraph (a) of the definition of "serious injury" is enigmatic in that it does not provide for a relationship between an injury and impairment or loss of a body function. The answer is to be found in the context on which the definition appears. The definition of "serious injury" is part of a set of provisions regulating the ability of an injured worker to recover damages at common law. If injuries are the result of separate events, each giving rise to a cause of action for damages, each injury is to be considered separately for the purposes of determining whether any resulting impairment or loss of a body function enables each injury to meet the definition. The only relevant impairment or loss of a body function is that resulting from the defendant's wrongful act or omission the subject matter of the plaintiff's cause of action.

21. This is an appeal from a refusal by a County Court judge to grant leave to the appellant, whom I shall call "the plaintiff", pursuant to s.135A(4)(b) of the Accident Compensation Act 1985 ("the Act") to bring an action for damages in respect of "injuries" which the plaintiff claims he sustained "on or about 18 September 1995" whilst in the employ of the first respondent. On 29 May 1997, the plaintiff sought a determination by the Authority (the third respondent) that his degree of impairment arising from "injuries suffered in the course of his employment" was 30 per cent or more. In July 1997, the second respondent as agent of the Authority determined that the plaintiff's level of impairment was less than 30 per cent. Consequently, he applied to the County Court for leave to bring the proposed proceeding. Before such leave could be given, the court had to be satisfied under s.135A(6) that, in the context of this case, the injuries were a "serious injury" within the meaning of paragraph (a) of the definition of that term in s.135A(19). The judge who heard the application was not satisfied that the plaintiff had suffered a "serious injury" within the meaning of the Act and, accordingly, dismissed the application.

25. Before dealing with the grounds of appeal that were pursued, I shall set out briefly the relevant background facts. The plaintiff, who is now aged 53, was born in Vietnam on 22 January 1947. He commenced employment as an unskilled worker in the shoe factory of the first respondent in October 1990, not long after arriving in Australia. Initially, he worked as a cutter, but in 1995 he was transferred to another job which required him to remove each day approximately 600 pairs of shoes from moulds on a conveyor belt. The work was repetitive and necessitated the application of some force through his arms in order to pull the shoes out of the moulds. In about July or August of 1995, he began experiencing pain on the outer side of his right elbow and just above it. He also experienced minor pain in the right forearm. At or about the same time he started to feel pain in the same places in his left arm. Notwithstanding the progressive increase in pain in those areas the plaintiff continued to work at his job, each day pulling shoes off the moulds. Attempts were made to make it easier for him to do his job by putting soap and then wax on the moulds, but the difficulty persisted and the plaintiff's pain became worse. According to the plaintiff's evidence, on 4 September 1995, while he was performing his duties, he was struck by a mould weighing approximately two kilograms which fell one to two feet off the conveyor belt and struck him on top of the right shoulder in an area close to his neck. The plaintiff claims that this caused him to experience ongoing pain in that area, but despite this and the pain in the elbows, he continued to work until 15 September 1995 when he attended Dr. Chan, his general practitioner in relation to his condition. His complaint to the doctor was, at that stage, confined to the pain in the elbows. Dr Chan suggested that the plaintiff make a claim on WorkCover, which he did on 19 September 1995. Consistently with the complaint he made to his doctor, the claim form refers only to his elbow injury and makes no mention of any injury to his right shoulder or neck. The first respondent accepted that the plaintiff had sustained injuries arising out of or in the course of his employment and made payments to him under the Act. It also accepted that the plaintiff had sustained permanent impairment of his neck and "right upper limb" for the purposes of ss.98 and 98A of the Act.

28. Not long after submitting his claim under the Act, the plaintiff returned to work for about a week during which time the symptoms continued to worsen and he effectively remained off work until August 1996. In the meantime, he saw a number of medical specialists. When he returned to work in August 1996, he continued to claim that he was having difficulty in performing the work and had to cease work after about one and a half weeks. He again attempted to return to work in March 1997, but was advised by Dr. Chan to stop work after two weeks. The plaintiff told his Honour that he experiences pain on the outer side of his right elbow radiating up into his upper arm and down into his forearm. He said that he also has pain in his right shoulder and the right side and centre of his neck. His right arm lacks strength and movements in his right elbow, shoulder and neck are restricted. He said that he cannot lift his right arm above shoulder level and that he has similar symptoms in his left arm, albeit to a lesser extent. He said further that he would not now be able to perform his former work as cutter or on the conveyor line because of the problems with his arms. Apart from being unable to work, he is also restricted in day-to-day activities by his injuries. He cannot lift even moderately heavy weights, and lacks power and strength in his right arm and shoulder. He cannot sit with his head held forward in one position for any length of time. He said that all this has affected his performance of domestic tasks including driving his motor car in which he cannot travel for any distance. He said further that, because of his condition and because he has been unable to return to work, he has become very depressed, anxious, nervous and frustrated. He worries about his financial situation and believes that there is no future for him. He exhibits typical features of a depressed person; he has become withdrawn, has difficulties with his memory and concentration, and with sleeping. He frequently loses his temper and patience with people for no apparent reason.

31. The plaintiff was examined by a large number of medical specialists and although there is disagreement between them as to the extent and consequence for the plaintiff of his injuries and as to their cause, some matters are not in dispute. For example, it is clear that the plaintiff, who is right-hand dominant, has developed bilateral epicondylitis (which is sometimes known as "tennis elbow") in his right elbow and, to a lesser extent, in his left elbow and that this injury was brought about by the work practices which he was required to undertake. The preponderance of the medical evidence also establishes that the plaintiff suffered a rotator cuff tear in his right shoulder which is causing pain in the shoulder and neck areas. It is less clear, however, whether the shoulder injury was caused by the plaintiff having been hit in the shoulder with the mould or as the result of an arthritic deterioration which was exacerbated by work practices, or both. I will return to this point later.

34. It is far from clear how the plaintiff put his case in the court below on the issue of whether he sustained a "serious injury" in the course of his employment with the first respondent. His Honour's judgment and the written submissions before him seem to indicate that it was contended on the plaintiff's behalf (or that his Honour understood that it was contended on his behalf) that:

(a) the injury to the plaintiff's right shoulder, taken by itself, was a "serious injury" in that it caused a serious long term impairment of a body function, namely, the plaintiff's right arm;

(b) alternatively, even though each of the elbow injury and the shoulder injury was not, by itself, a "serious injury", in combination they produced such an injury in that, together, they caused a serious long term impairment of a body function, namely, his right arm;

(c) in the further alternative, the shoulder injury aggravated the pre-existing injury and it was the aggravation that was the "serious injury".

40. It was common ground below and before us that, taken by itself, the elbow injury was not a "serious injury". After examining the medical evidence and stating the principles set out in Humphries v. Poljak[1] in relation to the determination of whether an injury is a "serious" one, his Honour rejected the submission that the shoulder injury, taken by itself, was a "serious injury". His Honour further held that the plaintiff could not relevantly aggregate the two injuries and thereby claim that he suffered a "serious injury". He also concluded that the shoulder injury did not aggravate the pre-existing right elbow injury such as to make the aggravation itself a "serious one". As I understand his Honour's reasons for judgment, he considered that, at or about the time when the plaintiff suffered the shoulder injury, his elbow injury had developed to such an extent that the plaintiff was in the position where "the time was rapidly approaching when, irrespective of any flying mould, he could not continue doing that work". It seems that his Honour reasoned from that that the shoulder injury made very little difference to his pre-existing right elbow injury and thus, the aggravation did not constitute a "serious injury".

43. It is clear that his Honour's decision cannot be properly interfered with by this Court unless the plaintiff establishes that his Honour's conclusion is vitiated by specific error or is manifestly wrong.[2]

46. Mr. Bingeman, who appeared with Mr Waugh for the applicant, challenged the correctness of his Honour's decision in two ways. His principal submission was that, even if each of the two injuries was not a "serious injury", his Honour erred in not aggregating them for the purpose of determining whether, in combination, they caused a serious long term impairment of the plaintiff's right arm. It was Mr. Bingeman's contention that since the two injuries caused an impairment of the one body function, namely, the plaintiff's right arm, and gave rise to one cause of action, they should have been considered together in order to determine the extent of the impairment flowing from them. He sought to rely in this connection on what was said in Humphries v. Poljak. Mr. Bingeman submitted in the alternative that the medical evidence shows that the plaintiff's right shoulder injury was a "serious injury" and that his Honour erred in not so holding. It was also contended that his Honour erred in his assessment of the medical evidence.

49. It is convenient to mention at this point that the plaintiff did not contend to this Court that the injury to his right shoulder aggravated the pre-existing elbow injury such that the aggravation was, by itself, a "serious injury". Mr. Bingeman agreed that no such submission was put to his Honour although, as can be seen from what I have already said, his Honour appears to have understood that such an argument was pursued on behalf of the plaintiff. I also mention for completeness that Mr. Bingeman nevertheless argued that his Honour erred in finding that by September 1995 the plaintiff's elbow injury was at such an advanced stage that it would have soon compelled him to cease working in any event. Mr. Bingeman claimed that there was no evidentiary basis for such a finding. In my view, since the aggravation argument was not pursued by the plaintiff below or on appeal, nothing turns on this finding so far as this appeal is concerned and it is, therefore, not necessary to consider it.

53. I turn to consider first Mr. Bingeman's attack on his Honour's conclusion that the injury to the plaintiff's right shoulder and neck area, taken by itself, did not result in a serious long term impairment of a body function. It was not claimed that, in determining this issue, his Honour applied the wrong test. Rather, it was submitted, in effect, that this finding was not open to his Honour on the evidence and that, in any event, his Honour failed to identify the basis on which he assessed the medical evidence. As I have said, his Honour reviewed the medical evidence, referred to the relevant principles stated in Humphries v. Poljak and concluded that the injury "cannot qualify as a serious long term impairment of a body function". In my view, it was open to his Honour to reach such a conclusion. To be a "serious injury" the injury must be one that has serious consequences for the plaintiff judged on an objective basis and, when judged by comparison with other cases in the range of possible impairments, it must be capable of being fairly described at least as "very considerable" and certainly more than "significant" or "marked".[3] In my view, it was open to his Honour to find that the evidence stopped short of establishing that the injury was "very considerable". Briefly, the medical evidence was to the following effect.

56. Dr. Shan, a psychiatrist, opined that the plaintiff was suffering from a major depression which was largely untreated. He concluded that, given that there was some objective evidence of a physical injury, "it would seem reasonable to conclude that at least some of the depression has developed as a consequence of or secondary to his physical injury." He went on to say, however, that "[t]he major component of depression is . . ., in my view, due to a pre-existing chronic Major Depression that has remained largely untreated." Dr. Lenaghan, a physician, found that there was little objective evidence of "organic disease or disability of either upper limb", but that the plaintiff presented as a depressed person. She said that the plaintiff "might get an ache or a pain from a bit of degenerative arthritis in the right acromio-clavicular joint", but she attributed this to normal ageing and wear and tear and not to the incident of September 1995. She concluded that the plaintiff's incapacity was psychological and not physical. Dr. Webb, who is a senior rheumatologist at St. Vincent's Hospital, said that he did not believe the shoulder injury caused any permanent impairment. In one of his reports, however, he did say (after he was shown that the plaintiff had demonstrable pathology in his right shoulder) that the plaintiff suffered from a disease in his rotator cuff which may well have been present for a lengthy period of time "and any effect that the injury of 4 September 1995 would have had would only be partial in so far as the overall situation in the shoulder". Dr. Webb concluded that the plaintiff's inability to work was not the result of any physical or organic condition which resulted from the September 1995 injury. His view was that, although the plaintiff was then not fit for any employment, his incapacity was primarily due to his depression; only to a much lesser degree was it the result of his problem with the shoulder. Moreover, Dr. Webb opined that at the time of the report one could not state that the plaintiff had any permanent impairment. He said that:-

"... many people with such rotator cuff lesions are working quite satisfactorily, and it is abundantly clear that it is Mr. Lu's depression and the somatic symptoms resulting from this depression, that is preventing him from working with the organic condition only playing a minor part in his overall disability."

60. Dr. Rowe, an occupational physician, diagnosed the plaintiff as suffering from "a ruptured right rotator cuff complicated by tendonitis". He assumed that the rupture and tendonitis were a direct result of the blow to the shoulder and also to the work he was performing prior to receiving that blow. He concluded that the plaintiff suffered a "serious injury" to the right shoulder in that he was totally incapacitated, although in his view, that was only a temporary total incapacity for work. Mr. Ian Jones, an orthopaedic surgeon, reported that the changes in the right shoulder were essentially degenerative, and that "approximately half of [the plaintiff's] current disability was related to an aggravation caused by the nature of his work." He opined that the plaintiff's employment by the first respondent has been a minor contributory factor to his shoulder and elbow complaint. Mr. Clive Jones, also an orthopaedic surgeon, who examined the plaintiff for the purposes of an AMA Impairment Assessment, reported that the plaintiff had a moderately painful stiff neck, a right shoulder problem due to a rupture of the rotator cuff and an epicondylitis of the elbow. He believed it was unlikely that the plaintiff would be able to return to work where heavy use was required of the right arm, particularly in repetitive tasks such as he had previously been doing. Mr. King, an orthopaedic surgeon, said, inter alia, that based on the plaintiff's history and his own findings, the plaintiff suffered from bilateral "tennis elbows" which was a painful condition associated with rapid repetitive use of forearms and hands. The mould that struck his right shoulder seems to have caused a chronic rotator cuff lesion of the right shoulder of mild (to moderate) severity "with some painful limitation of all glenohumeral movements". He assessed the plaintiff's overall loss of function in the right upper limb by reference to the combination of the rotator cuff lesion of the right shoulder and the right tennis elbow.

63. Another orthopaedic surgeon, Mr. Grossbard, said that he was not certain whether the rotator cuff tear occurred as a result of the work regime undertaken by the plaintiff or whether it related to the blow that he received from the mould. Nevertheless, he thought that the shoulder pathology was work-related but was associated with neck pain and elbow pain which have "complicated the situation significantly". He opined that because the plaintiff was likely to continue to have neck pain, this may impair the recovery from any shoulder surgery and for this reason, he would be "loathe to operate on the plaintiff" in the present circumstances. Mr. Keng, an orthopaedic surgeon to whom the plaintiff was referred by his general practitioner, reported that the plaintiff suffered from a torn rotator cuff and from a cervical spondylosis and a disc lesion. He opined that surgical intervention was necessary. This medical specialist also considered together the shoulder injury and the epicondylitis in assessing the plaintiff's medical condition. Dr. Kwong, a psychiatrist, did not physically examine the plaintiff. Her examination of his psychiatric state led her to conclude that the plaintiff was suffering from a genuine painful condition and from reactive depression. She assessed his (stabilised) psychiatric impairment at approximately 22 per cent.

66. Thus, much of the medical evidence dealt with the elbow and shoulder injuries together without drawing a distinction between them for the purpose of assessing the plaintiff's medical condition. Such evidence was, therefore, of limited use on the issue whether the shoulder injury, by itself, could be regarded as a "serious injury". Further, a significant number of medical reports attributed the plaintiff's condition to psychological factors and some expressed doubt as to whether he was permanently incapacitated. Moreover, some evidence such as that of Dr. Lenaghan, Mr. Ian Jones and Dr. Webb showed that the shoulder injury was as much due to normal ageing and wear and tear process (albeit possibly aggravated by the working conditions) as to the mould striking the plaintiff's shoulder. In the circumstances, therefore, it was open to his Honour to conclude that the medical evidence did not establish that, by itself, the injury to the right shoulder area caused a long term impairment of a body function. There is probably little doubt that the plaintiff has suffered a tear in the rotator cuff, but it was open to his Honour to find that the evidence stopped short of establishing on the balance of probabilities that any impairment that it caused was "very considerable" or more than "significant" or that it was serious from the point of view of the plaintiff. It will be recalled that notwithstanding that he was struck by the mould in early September 1995, he made no mention of it to his doctor when he first saw him in about mid-September or in his claim form through which he effectively sought compensation for work-related injuries.

69. Mr Bingeman also attacked his Honour's failure to say which of the doctors he preferred and his reasons for such preference. It is true that his Honour did not express a reasoned preference for the view of one or some doctors, but in my opinion, that does not vitiate his decision on this issue which involved "elements of fact, degree and value judgment" and an expression of opinion on his part.[4] In the circumstances, the trial judge was entitled, as he did, to look at the whole of the medical evidence and to conclude that it did not establish on the balance of probabilities that the injury to the right shoulder caused a serious long term impairment of a body function and thus, was not a "serious injury".

72. Consequently, in my opinion, the plaintiff has failed to demonstrate that his Honour relevantly erred in concluding that his right shoulder injury was not a "serious injury".

76. I now turn to consider the principal question argued on this appeal, namely, whether his Honour erred in not relevantly combining the two injuries to determine whether the plaintiff's workplace injury was a "serious injury" for the purposes of s.135A(6). In support of his contention that the two injuries should be relevantly aggregated, Mr. Bingeman relied principally on a passage in the majority judgment of Humphries v. Poljak[5] where their Honours said that, although it would not be permissible to aggregate two or more impairments for the purpose of determining if an injury was a "serious" one, injuries may be relevantly aggregated for that purpose. Mr. Bingeman contended that, since the injuries resulted in the impairment of the one body function, namely, the plaintiff's right arm, it was permissible to combine them. He agreed, however, that if, for this purpose, the injured shoulder and the elbow were regarded as separate body functions the two injuries could not be relevantly combined. Mr Bingeman further submitted that such aggregation was permissible for yet another reason, namely, because the proceeding which the plaintiff intended to bring in relation to the injuries was based on one cause of action, namely, the first respondent's negligence in failing to provide a safe system of work.

79. In my view, the short answer to Mr. Bingeman's principal submission is that the two injuries in question impaired two separate body functions, namely, the plaintiff's right shoulder area and his right elbow respectively. Consequently, they cannot be relevantly aggregated. The mere fact that those injuries had, in one sense, an effect on the movement of his right arm does not mean that the arm was the relevant body function. A body function that is indirectly, albeit detrimentally, affected by two separate injuries to two body functions, is ordinarily not thereby relevantly impaired by those injuries for the purpose of s.135A(19)(a). Thus, an injury to the big toe of one foot and a later injury to the knee of the same leg may have a detrimental effect on the use of that leg, but ordinarily, it would be inaccurate to describe the two injuries as having impaired the one body function, namely, the leg. In case I am wrong in my conclusion on this matter, I shall proceed to analyse Mr. Bingeman's primary case on the footing that the two separate injuries impaired the one body function, namely, the plaintiff's right arm.

82. The starting point of any analysis of this submission must be the Act and, in particular, its relevant provisions and their operation in respect of the application that was before his Honour. So far as is relevant, s.5 defines "injury" as meaning "any physical or mental injury" including "aggravation ... of any pre-existing injury" and "serious injury" is defined by paragraph (a) of the definition of that term in s.135A(19) as meaning "a long-term impairment or loss of a body function". Thus, it is not the injury as such which is looked at for the purpose of determining if it is a "serious" one; what is considered is the extent of the impairment or loss of a body function brought about by the injury.[6] One of the aims of the Act is to prohibit, except in certain limited circumstances, an injured worker who is entitled to compensation under the Act in respect of a workplace injury, from bringing a common law proceeding for damages in respect of it if the injury occurred, as it did here, prior to 12 November 1997 (s.135A(1)(a)(iii), (b)(ii)). The exception to this prohibition is contained in sub-s.(2). In order to come within that exception, the applicant is required to show that the injury in question is a "serious injury", in the first place effectively to the Authority and, if he fails to achieve that, to the court in the context of an application for leave to bring a proceeding under s.135A(4)(b). The court cannot grant leave unless it is satisfied that the injury is a "serious injury". Thus, sub-ss.(2), (4) and (6) are all concerned with the same type of injury, namely, a workplace injury which has produced a relevant impairment to a body function which is serious and long term and in respect of which the injured worker seeks to recover damages in a proceeding in which ordinarily negligence will be alleged by him against the employer.

85. Since the applicant for leave can only recover damages in respect of an injury that was caused by a relevant incident (for which the proposed defendant is relevantly responsible) it is only in respect of that injury, namely, the injury which has a causal nexus with the relevant incident, that the injured worker can bring a proceeding to recover damages and it is that injury that must be shown to be a "serious injury". This principle was recognised by Southwell, and Teague, JJ. in Petkovski v. Galletti[7] where their Honour's observed that an injured person may recover damages only for such injuries as have resulted from a particular incident (for which the defendant is relevantly responsible). That incident must have been the cause of the injury in respect of which the injured person seeks to claim damages. According to their Honours, the operation of this "long established principle" has not been affected by the Act.

88. No relevant difficulty arises where leave is sought in respect of one workplace injury which is said to have arisen out of one incident, causing impairment to the one body function. In those circumstances, the applicant must demonstrate that that injury is a "serious" one. But where leave is sought in respect of two or more workplace injuries, whether the applicant must establish that each is a "serious injury" or whether they can be looked at together to see if, in combination, they satisfy the requirement of the definition will depend on whether they all affect the one body function and on whether they arise out of the same relevant incident.

91. Mr. Bingeman accepted, correctly I think, in view of what was said by the majority in Humphries v. Poljak on this issue,[8] that it is not permissible in a multi-injury case to look at a number of impairments resulting from the injuries, not any one of which is a serious and long term impairment, and see if, together, they constitute an impairment which is serious and long term. Thus, if several workplace injuries have caused impairments to several body functions, those impairments cannot be relevantly aggregated. But where the injuries impair the one body function and have arisen out of the one incident they may be relevantly aggregated for the purpose of determining if the impairment of that body function is serious and long term. Stone v. Jarvis, one of the applications considered by way of appeal in Humphries v. Poljak,[9] is an example where injuries were relevantly aggregated. But no such aggregation is permissible if the non "serious injuries" which impair the one body function have been caused by separate and unrelated incidents. In those circumstances, each such injury, and the impairment to, or loss of, the body function (if any) it causes, must be considered separately. This follows from the principle stated by Southwell and Teague, JJ. in Petkovski, to which I have referred and from the operations of the provisions of the Act to which I have also referred.

94. Thus, the scheme of the legislation prohibits the relevant aggregation of two consecutive workplace injuries (neither of which is a "serious injury") that have arisen from discrete incidents notwithstanding that they impair the one body function. But because the definition of "injury" includes aggravation of a pre-existing injury, it is permissible to analyse the impairment caused by two such injuries for the purpose of seeing if the second injury aggravated the first, and, if it did, whether the resulting additional impairment, amounts to a "serious injury". In that context, the extent of each injury is analysed for the purpose of comparing the impairment immediately before and immediately after the second injury. If the impairment produced by the second injury - that is to say, the impairment suffered in addition to that produced by the first injury - can be properly described as a "serious injury", then the second injury will satisfy the requirements of the definition. Such an analysis was undertaken, for example, in Petkovski and was carried out in accordance with the principle that the injured person can only claim damages in respect of an injury that resulted from or was caused by the relevant incident. It is common ground, however, that the present case does not raise the question of whether the September injury aggravated the pre-existing elbow condition.

97. Further, in my view, contrary to Mr. Bingeman's submissions, nothing that was said by the majority in Humphries v. Poljak supports the plaintiff's submission that the two injuries in this case can be relevantly aggregated. It is true that, in the context of determining if a body function has been relevantly impaired, their Honours said[10] that the impairment may have been caused by "two or more injuries acting together to cause the impairment ...". But that was said in the context of the injuries having arisen from the one incident and there is nothing in their Honours' reasons from which it could be inferred that they intended to extend what they said to injuries that have arisen from two or more discrete incidents. To the contrary, in my view, their Honours intended such aggregation to be limited to injuries that impair the one body function and which have arisen from the one incident. Their Honours were well aware that, as I have mentioned previously, this result follows from the wording of the Act. Moreover, one of their Honours, namely, Southwell, J., joined in saying in Petkovski, that an injured person can only claim damages flowing from injuries that have resulted from a relevant incident, namely, the incident that has caused the injury.

100. In any event, the only injury in respect of which the applicant sought leave to proceed, was the shoulder injury. No claim in that proceeding was made in respect of the elbow injury. In those circumstances, it is difficult to see the basis on which the applicant can notionally add to the injury which is to be the subject of the proceeding, an injury that arose out of a separate incident and in respect of which no proceeding could be brought, for the purpose of determining if the first injury is a "serious" one (even assuming that both injuries impaired the one body function). To turn the matter around for purposes of illustration, had the applicant sought relevant leave to bring a proceeding in respect of the elbow injury, it would be plainly impermissible, for the purpose of elevating that injury to a "serious injury", notionally to add to its consequences, the effects of the shoulder injury. In those circumstances, the shoulder injury would have no relevance to the proposed "elbow" proceeding and there would be no basis for aggregating the two injuries, even if they did impair the one body function. The same applies where the proceeding seeks to recover damages only in respect of the shoulder injury. In this respect the situation is materially different from that in Stone v. Jarvis, for example, where the proceeding was sought to be brought in respect of all the injuries which were said to impair the one body function.

103. Mr. Bingeman's other argument was that the two injuries can be relevantly aggregated because they give rise to the one cause of action. That argument is, in my view, without foundation even if one assumes that, technically, the plaintiff has only one cause of action in respect of the two injuries in the sense that any claim in a proceeding in respect of each injury would not be sufficiently self-contained to amount to a separate cause of action.[11] Nevertheless, the proceeding would involve two claims which would relate to two discrete incidents arising out of two discrete alleged negligent acts or omissions by the first respondent which, it will be claimed, have produced two separate injuries, thereby necessitating each claim to be submitted to the jury for separate consideration.[12] This aspect of Mr. Bingeman's submission is, in any event, somewhat artificial because it is common ground that no claim for damages can be brought by the plaintiff in respect of the elbow injury so that, at best, he could only bring a proceeding in respect of the shoulder injury. Thus, merely labelling the proposed proceeding in this case as one which could be based on one cause of action, even if correct, does not justify the two injuries being relevantly aggregated.

106. Consequently, even if it were assumed that the relevant body function was the plaintiff's right arm and that each of the two injuries caused an impairment to it, for the reasons given by me it is my view that the injuries could nevertheless not be relevantly aggregated for the purpose of determining if the requirement of the definition has been met. But as I have said earlier, in my opinion, the above assumption is not justified in the sense that the two injuries affected separate body functions and for that reason, the September 1995 injury has to be considered separately to see if it amounted to a "serious injury".

109. Thus, the plaintiff has failed to establish that his Honour relevantly erred in not looking at the two injuries together for the purpose of determining whether the plaintiff has established that the injury in respect of which he sought leave to bring a proceeding for damages, was a "serious injury".

112. For these reasons, I am of the view that the appeal should be dismissed.

[1] [1992] VicRp 58; [1992] 2 V.R. 129

[2] Mobilio v. Balliotis [1998] 3 V.R. 833 at 835 per Winneke, P.

[4] Humphries v. Poljak at 167 per McGarvie, J.; Mobilio v. Balliotis [1998] 3 V.R. 833 at 836; Cropp v. Transport Accident Commission [1998] 3 V.R. 357 at 366

[6] Humphries v. Poljak at 134, 137 and 140

[7] [1994] VicRp 32; [1994] 1 V.R. 436 at 443, 444

[11] See Bell Radiology (a Firm) v. Karen McGraw, unreported, Court of Appeal, 7 February 1996 per Tadgell, J.A. at 11-12

[12] See Papadopoulos v. Pacific Dunlop Ltd., unreported, Court of Appeal, 18 September 1996 per Phillips, J.A. at 6-7, Winneke, A.C.J. at 10 and Hayne, J.A. at 11