Court of Appeal (Vic)|2014-02-26|Before: Mr J, Warren CJ, Tate JA, Osborn JA

Wingfoot Australia Partner Pty Ltd & Anor v Jovevski [2014] VSCA 21 (26 February 2014)

Jovevski v Wingfoot Australia Partner Pty Ltd [2013] VCC 996 (Judge Smith)

1 In 2011 Mr Jovevski filed an originating motion in the County Court seeking leave to bring proceedings for damages pursuant to s 134AB of the Accident Compensation Act 1985 ('Act') in respect of an injury suffered in the course of his employment by the appellants.

2 The application came on for hearing before his Honour Judge Smith in August 2013. It was not disputed by the appellants that Mr Jovevski had suffered a workplace injury to his right shoulder in 1995, nor that he had suffered some aggravation of that injury in 2001 in the course of his work.

3 The application was brought in respect of the 2001 aggravation relying on the alleged pain and suffering consequences of the physical injury and in the alternative upon an alleged consequential psychiatric injury. It was further put on the basis of loss of earning capacity resulting from Mr Jovevski's psychiatric state.

4 At trial the parties joined issue as to whether the physical or psychiatric consequences of the 2001 aggravation met the statutory requirements that they be respectively 'serious' or 'severe' in the relevant senses.[1]

The trial judge was not satisfied that the physical pain and suffering consequences of the aggravation constituted serious injury in the relevant sense. More particularly, he was not satisfied those consequences were permanent and at least very considerable. On the other hand, his Honour accepted that Mr Jovevski had suffered a psychiatric injury of which the aggravation of shoulder pain suffered in early 2001 was a cause and that the psychiatric injury constituted by an agitated depressive reaction was severe. His Honour was also satisfied that the psychiatric injury caused a loss of earning capacity of at least 40 per cent.

5 The appellants do not now challenge the trial judge's findings as to the severity of Mr Jovevski's psychiatric condition. The appellants contend however that his Honour erred in finding that the 2001 aggravation was a cause of Mr Jovevski's psychiatric condition. In particular the appellants submit first that the finding of the trial judge that the physical consequences of the aggravation were not permanent is inconsistent with the findings he made as to causation of the psychiatric injury; secondly, that the trial judge erred in relying on the psychiatric opinion of Dr Nathar in reaching his conclusions in circumstances where assumptions forming the basis of that opinion were not established by the evidence; and thirdly, that his Honour failed to give adequate reasons for his conclusions concerning causation.

6 Counsel for Mr Jovevski submit that the case now put forward is not the case that was put at trial and that the Court should not permit it to be advanced on appeal. In the alternative they join issue with the substance of the appellants' grounds.

7 For the reasons below, we accept that the appellants' substantive causal hypotheses do not form a proper basis for rejecting his Honour's reasoning and conclusions. We also agree that the basis on which the case is now put amounts to a new case which should not in any event be entertained upon appeal.

8 Mr Jovevski is now aged 53. He migrated to Australia from Macedonia when he was 21 years old. In January 1987 he commenced working with Goodyear as a rubber worker doing a variety of heavy work. He continued working in the same factory at Thomastown until 2002 when the factory closed.

9 In the course of his employment Mr Jovevski suffered injury to his right shoulder in April 1995 when he struck his shoulder against steel while picking up a tyre. Following the incident he suffered ongoing pain in the front of his right shoulder and down into his arm and fingers. He consulted his general practitioner, Dr Gorgioski, and was off work for three to four weeks. He returned to work with a series of certificates of fitness for light duties. The work he was required to do was lighter than that which he had previously undertaken. He was no longer required to lift heavy rolls of wire as had previously been the case and he worked mainly using his left hand and arm. One of the principal machines he operated during this period could be operated by pushing a button with his left hand.

10 In early 2001 Mr Jovevski's right shoulder became a bigger problem for him. At that time, his duties were changed so he was required to perform much heavier work. In particular, while working in what was known as the 10/10 room he was required to lift 12 kilogram tyre treads onto a pallet. From the time he started performing these heavier duties the pain in his right shoulder became worse.

11 Mr Jovevski asked Dr Gorgioski for a certificate indicating that he was only fit for his previous lighter duties. He was given such a certificate and went back to working on the push button machine.

12 He continued working on this machine for eight hours a day five days a week and conceded in evidence that he would have been able to keep doing this until he was entitled to an aged pension if the factory had not closed down.

13 After the factory closed down Mr Jovevski tried to find other work by registering himself with Centrelink but was unsuccessful.

14 Mr Jovevski had limited medical treatment for his shoulder condition. He was referred to an orthopaedic surgeon, Mr Lyons, in February 2002 but saw him on only one occasion. No specialist treatment was recommended or undertaken.

15 He was referred to physiotherapy between about 2003 and 2005 but stopped receiving this when the claims agent ceased to fund the treatment. He has not had any physiotherapy since.

16 He had been prescribed anti-inflammatory medication (Voltaren). In addition, he regularly took Panadol, which he was able to obtain without a prescription. In the past Dr Gorgioski had prescribed Panadeine Forte medication for him for a time.

17 Mr Jovevski's evidence was that he would try any job that did not require heavy lifting or work above head level. He was not sure whether he would ever find such work. He is unskilled and illiterate.

18 Mr Jovevski's affidavit evidence was that the worsening of his right shoulder symptoms as a result of the aggravation was continuing.[2] His oral evidence at trial was that the worsening aggravated shoulder troubles had never gone away, were not finished and were still hurting.

19 Mr Jovevski developed depressive symptoms and was referred by Dr Gorgioski to Dr George Wahr (a psychiatrist) in February 2006 some four years after ceasing work. Over the next 11 months to 23 February 2007 Dr Wahr saw Mr Jovevski 16 more times. Initially there was a little improvement followed by worsening and increases in levels of medication.

20 Mr Jovevski said that Dr Wahr's treatment had made a difference and improved his mood and his pain. He had continued to see him up to the time of the trial. At that point he was seeing Dr Wahr every three weeks.

In the course of his treatment Dr Wahr prescribed Avanza (anti-depressant medication), Xanax (anti-anxiety medication), Serenace (anti-psychotic medication) and Nexium and Gaviscon (both used in connection with gastric and heartburn problems).

21 Mr Jovevski had not however actively sought any particular treatment in respect of his shoulder.

22 The trial judge noted an ultrasound of Mr Jovevski's right shoulder in March 2001 was reported as showing a probable small intra-substance tear of the supraspinatus tendon. A further ultrasound in February 2003 was reported as showing pain on abduction of 90 degrees and limitation of movement beyond that. There was said to be no rotator cuff or abnormal fluid collection but two small calcific foci were identified in the anterior supraspinatus. There was no evidence of further radiological examination.

23 Having referred to a series of medical reports, the trial judge concluded that it was relatively non-contentious that in 2001 Mr Jovevski suffered an organic injury to his right shoulder being a relatively mild supraspinatus tendonitis and/or subacromial bursitis.[3] In assessing the consequences of this injury, his Honour reasoned as follows:[4]

In a case involving an aggravation of a pre-existing injury, I am required to make a comparison of Mr Jovevski's condition immediately before his 2001 change to heavier duties and his condition thereafter and, in particular, at the present time. I am required to make an assessment of the extent of the additional permanent impairment of the relevant body function - in this case, the function of his right shoulder. If that additional impairment was not 'serious', then leave must be refused.[5]
I accept that Mr Jovevski's work in the period immediately following the 2001 change to heavier duties did produce an increase in the level of his symptoms of pain which led to his referral to Mr Lyons and further radiological investigations. I accept that the increase in symptoms was of some real significance. However, I am not satisfied that that exacerbation was permanent. Rather, it is clear from Mr Jovevski's evidence that, whilst his pain may have continued at a higher level, he returned to work and was able to perform his earlier restricted duties as he had previously done and I accept that he was likely to have been able to do so until normal retirement age had the defendant's factory not closed.
Accordingly, I am not satisfied that the pain and suffering consequences of the 2001 aggravation of Mr Jovevski's shoulder injury could fairly be described as permanent and as more than significant or marked or as being at least very considerable.

24 Insofar as psychiatric injury is concerned his Honour accepted the opinion of Dr Wahr that Mr Jovevski is suffering from an agitated depressive reaction. He further accepted that the pain and suffering consequences of this disorder might fairly be described as being more than serious to the extent of being severe.[6] In so concluding his Honour reasoned as follows:[7]

Dr Wahr and Dr Nathar have seen and examined Mr Jovevski relatively recently and have concluded that he has, from a psychiatric perspective, no capacity at all for work.
When Dr Triggs examined Mr Jovevski in October 2010, she noted that it had been eight years since the re-injury of his shoulder and that he had not worked in that time. She believed that it was unlikely that he would work again, noting that he was illiterate in both his primary language and in English. She was not asked to examine him again.
Dr Shan concluded that Mr Jovevski was capable of working both in his pre-injury duties and in what he described as suitable alternative work.
It is often the case that it is difficult to come to a conclusion as to whether the opinions of one or some doctors should be preferred over opinions of others, and this is especially so in the case of evidence concerning the extent and consequences of psychiatric injury. Often, as here, there are few, if any, objective pointers to assist the Court.
Notwithstanding, I prefer and accept the evidence of Dr Wahr largely because of the frequency of examinations conducted by him of Mr Jovevski over the past seven years. Dr Wahr has been intimately involved in the prescription of anti-depressant, anti-anxiety and psychotropic medication for him. He has noted that, notwithstanding some improvement initially, his condition has since deteriorated.

On the basis of Dr Wahr's evidence, which I consider is, to a large extent, backed up by that of Dr Nathar and Dr Triggs, I find that the nature of Mr Jovevski's psychiatric injuries are such that he is currently unable to work in any capacity and that is likely to be the case for the foreseeable future.
I consider that the consequences of Mr Jovevski's psychiatric injury are:

(a) an inability to return to even the lighter duties in which he was engaged previously;

(b) a need for significant levels of anti-depressant, anti-anxiety and psychotropic medication;

(c) an inability to cope with a degree of pain from his shoulder that he was more likely to have been able to cope with but for his psychiatric injury;

(d) anxiety;

(e) depression;

(f) reduced concentration to the extent that Dr Wahr had advised him not to drive a motor vehicle;

(g) reduced short-term memory;

(h) sleep disturbance;

(i) irritability;

(j) frustration; and

(k) a need for ongoing psychiatric treatment in the form of supportive psychiatric psychotherapy and monitoring of psychotropic medication.

Further, in relation to the degree to which the 2001 exacerbation has contributed to the psychiatric injury, I accept the explanation of Dr Nathar that:

... but for his physical injuries sustained in 2001, with some initial contribution from the original mild right shoulder injury in 1995 in the course of his work for Pacific Dunlop, he would not have developed his secondary psychiatric reactions. I have also explained previously that he is essentially a poorly educated, simple minded man (this is not meant to be derogatory but is, I believe, an accurate description). He was always a hard worker, rather passive in his personality and he just appears not to have the psychological fortitude or mindedness to cope with the major changes in his physical status ultimately resulting in total work incapacity. He cannot cope with the pain and I believe that all these factors would need to be considered with understanding how he has coped so poorly with his physical problems and developed this moderately severe psychiatric reactions. (sic)

Put another way, I accept that Mr Jovevski's depressive disorder was largely brought about or triggered by the increase in his shoulder pain in early 2001. He did not have the psychological fortitude to cope. His depressive disorder has not improved but has worsened.
No doctor expressed the view that Mr Jovevski was malingering. His credit was not challenged during the hearing of his application. I note from the index to the Defendant's Court Book that it is in possession of video surveillance of Mr Jovevski. No surveillance evidence was tendered and I infer that such material would not have advanced the defendant's case.
I consider that the consequences set out above are, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly described as being more than serious to the extent of being severe.

The learned trial judge erred by finding that the 2001 shoulder aggravation or exacerbation injury (as distinct from the respondent's shoulder condition generally) was causative of the respondent's psychiatric condition diagnosed in 2006, in circumstances where his Honour had found at [58] and [59] that the 2001 aggravation was not permanent, alternatively had not made findings as to whether and the extent to which the exacerbation or aggravation persisted after 2001 such as to be causative of the psychiatric condition.
The learned trial judge erred in relying at [67] and [68] on the opinion of Dr Nathar in circumstances where the assumptions relied on by Dr Nathar as to the extent and permanence of the 2001 aggravation or exacerbation and associated disability were contrary to the evidence, alternatively without his Honour making findings of fact consistent with the assumptions relied on by Dr Nathar.
The learned trial judge failed to give adequate reasons for his conclusion that the 2001 aggravation or exacerbation was causative of respondent's psychiatric condition diagnosed in 2006.[8]

26 As we have said, the respondent answers these grounds on two bases:

(a) the factual propositions advanced in support of these grounds were not put in issue at trial; and

(b) no error is demonstrated by the findings referred to.

27 It is convenient to deal with the substantive arguments first.

• The physical injury suffered in 2001 comprised a 'relatively mild supraspinatus tendonitis and/or subacromial bursitis'.[9]

• Mr Joveski is suffering from an agitated depressive reaction resulting from this injury.[10]

• In 2001 Mr Jovevski's heavy duties produced an increase in the level of his symptoms of pain which was 'of some real significance' but the judge was not satisfied that exacerbation was permanent. Whilst Mr Jovevski's pain may have continued at a higher level Mr Jovevski was able to return to work and was able to perform his earlier restricted duties and was likely to have been able to do so until normal retirement age had the appellants' factory not closed.[11]

• Accordingly the judge was not satisfied that the pain and suffering consequences of the 2001 aggravation of Mr Jovevski's shoulder injury could fairly be described as permanent and as more than significant or marked or as being at least very considerable.[12]

• Mr Jovevski's psychiatric injury is such that he is currently unable to work and suffers a series of significant ongoing consequences.[13]

• The 2001 exacerbation materially contributed to the psychiatric injury.[14]

29 His Honour accepted the explanation of Dr Nathar[15] as to the manner in which the psychiatric injury occurred and went on to say:

Put another way, I accept that Mr Jovevski's depressive disorder was largely brought about or triggered by the increase in his shoulder pain in early 2001. He did not have the psychological fortitude to cope. His depressive disorder has not improved but has worsened.[16]

30 In our view these conclusions were open to the trial judge. In particular the psychiatric diagnosis by Dr Wahr of an agitated depressive reaction, which the trial judge accepted, was as his Honour noted to a large extent backed up by the opinions of Dr Nathar and Dr Triggs. It was also supported by Mr Jovevski's own evidence as to his history and current condition. As his Honour noted, no doctor expressed the view that Mr Jovevski was malingering and his credit was not challenged during the hearing of the application.

31 The appellants submit that the trial judge was required 'logically' to identify whether and to what extent the 'temporary' aggravation was still persisting at the time the relevant psychiatric illness developed, so as then to be able to determine whether or not the aggravation injury materially contributed to it.

32 The logical necessity is said to derive from the combination of the following surrounding circumstances.

(a) Mr Jovevski's psychiatric treatment commenced on 20 March 2006, some five years after he ceased performing the heavier work which caused the aggravation and more than three and a half years after he ceased work.

(b) The judge concluded that the aggravation injury was not permanent.

(c) The pre-existing condition and its symptoms together with the respondent's lack of employment and fitness only for light duties were themselves likely contributing causes to his reactive depression and might themselves explain its onset.

(a) His Honour expressly found that a cause or trigger of Mr Jovevski's depressive disorder was 'the increase in his shoulder pain in early 2001'.

(b) There was no inconsistency between his findings as to the nature of the physical injury and this conclusion. The relevant trigger was the increase in shoulder pain which he had previously specifically found to have occurred.

(c) Logic does not demand that there be a direct temporal coincidence between the physical trauma which triggers psychiatric consequences and the occurrence of those consequences. Indeed the experience of the Courts is that the onset of psychiatric illness is often found to be gradual and frequently postdates the physical trauma which triggers it.

(d) Critically for present purposes, there was no evidence whatsoever that the causal link postulated was dependent upon permanent continuation of pain at the level which initially occurred at the time of exacerbation.

(e) Accordingly, a finding that the aggravation injury did not result in permanent physical pain and suffering which was at least very considerable did not preclude a finding that it nevertheless triggered an agitative depressive reaction.

35 It was further submitted that his Honour's conclusion as to causation depended upon Dr Nathar's opinion and that Dr Nathar's opinion could not stand having regard to inconsistencies between assumed facts relied on by him and the facts as found by the judge.

36 The relevant principle was stated by the High Court in Paric v John Holland (Constructions) Pty Ltd:[17]

It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence.[18] But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels JA in the Court of Appeal[19] to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.

As Wigmore states,[20] 'the failure which justifies rejection must be a failure in some one or more important data, not merely in a trifling respect'...[21]

37 The ultimate question must be whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.[22]

38 We do not accept the application of these principles justifies or requires the rejection of the trial judge's conclusion in the present case.

(a) His Honour relied upon the opinion of Dr Wahr as the primary basis of his conclusion that Mr Jovevski suffers an agitated depressive reaction. As we have said, it was plainly open to him to do so having regard to the further psychiatric opinions of Dr Nathar and Dr Triggs and his acceptance of Mr Jovevski as a witness of truth and reliability. In turn, his Honour's adoption of Dr Nathar's view as to the causal mechanism of this reaction fell to be considered in the context of the primary diagnosis of the nature of Mr Jovevski's psychiatric condition.

(b) The description of the causal mechanism elaborated by Dr Nathar was restated by the judge in [68] of his Reasons to make clear that the judge was persuaded of his conclusions in this regard upon the whole of the evidence and in particular the hypothesis was restated to specifically reflect a causal connection with the judge's own prior finding of an 'increase in his shoulder pain in early 2001'.

(c) Further, we do not accept that there is such a substantial discrepancy between the factual basis of Dr Nathar's opinion and the factual findings of his Honour that the doctor's opinion as to the causative process when looked at in the broad could not sensibly or logically be adopted by his Honour. It is not necessary that the judge's findings as to the underlying facts must correspond precisely with those forming the basis of the psychiatric opinion. It is sufficient if they are sufficiently similar on the evidence to render the expert's opinion of value.[23]

(d) Dr Nathar took the following history from Mr Jovevski:

He described that on 4th April 1995, he had an injury to his right shoulder at work for Goodyear. He apparently was dragging some tyres and straightened his posture up. His right shoulder accidently hit a metal frame. He has been having right shoulder pain since then and went on light duties. He managed to keep working for some years until in early 2001; he was moved to a different area where the job was more physically demanding. He was still having some problems with his right shoulder. There was really no specific incident he could tell me leading up to the time on 26th March 2001, when he just could not cope anymore because he believed that the physical nature of his job was making the right shoulder pain worse. He saw his doctor on 29th March 2001 and was put on some lighter duties, which he kept doing until the factory closed on 22nd August 2002. Even at that time when the factory closed, he was really struggling with constant pain in the right shoulder.[24]

(e) His Honour found that Mr Jovevski suffered symptoms of 'some real significance' in 2001. There was nothing necessarily inconsistent between this and Dr Nathar's opinion which proceeded on the basis that there was an aggravation of 'great significance' in 2001. Indeed, insofar as there are differences in the description of the aggravation injury, these are characterisations of degree only and did not preclude the judge from accepting the logic of Dr Nathar's opinion.

(f) Dr Nathar proceeded on the basis that it was the aggravation which 'ultimately stopped [Mr Jovevski] working as he was only able to do light duties at the time the factory closed down'. We accept that if this implies that but for the aggravation Mr Jovevski would have been capable of heavy duties it overstates the effect of the aggravation. Nevertheless the fact is that the aggravation dramatically illustrated that he was unable to perform heavy duties. Neither the evidence as a whole nor his Honour's findings in particular as to Mr Jovevski's capacity to return to light duties after the aggravation mean that Dr Nathar's opinion as to causation must necessarily be rejected.

(g) Dr Nathar's reports made clear that in his opinion the development of Mr Jovevski's psychiatric condition was gradual and progressive.

(h) The context of causation identified and elaborated by Dr Nathar was highly persuasive. In his first report[25] Dr Nathar put it this way:

His psychiatric injuries seemed to have had their onset gradually following the development of a right shoulder injury, initially mild in degree from a 1995 incident but then there was an aggravation of great significance in 2001 which ultimately stopped him working as he was only able to do light duties at the time the factory closed down. It must be understood that Mr Jovevski is a poorly educated, essentially simple man with very basic attitudes towards life. He seemed to be a passive type personality, a hard worker, the type of man one frequently described as 'doing what he is told'. I gained this impression in the way he related his history and in the way he described his attitude towards his work in the past. In other words he seemed to be a very compliant and very dedicated hard worker. Such people usually have limited coping capacity in the face of life's stresses and adversities and I believe that this has indeed happened with this man. He has simply not been able to cope with his residual physical problems in the right shoulder and has not been able to continue work and fulfil his traditional role as a father and family provider. Hence he has developed a severe depressive reaction unresponsive to treatment. It is my opinion that his psychiatric injuries would be consistent with the stated cause. There would be no other contributing factors outside of the work environment.

The 'stated cause' was pain from the injury following the 2001 aggravation.

(i) It was plainly open to his Honour to accept Dr Nathar's view of Mr Jovevski's psychological vulnerability in the light of his assessment of Mr Jovevski on the whole of the evidence and in particular his responses and presentation during cross-examination. His Honour specifically accepted the explanation of Dr Nathar as formulated in his last report of 18 April 2013:

but for his physical injuries sustained in 2001, with some initial contribution from the original mild right shoulder injury in 1995 in the course of his work for Pacific Dunlop, he would not have developed his secondary psychiatric reactions. I have also explained previously that he is essentially a poorly educated, simple minded man (this is not meant to be derogatory but is, I believe, an accurate description). He was always a hard worker, rather passive in his personality and he just appears not to have the psychological fortitude or mindedness to cope with the major changes in his physical status ultimately resulting in total work incapacity. He cannot cope with the pain and I believe that all these factors would need to be considered with understanding how he has coped so poorly with his physical problems and developed this moderately severe psychiatric reaction.[26]

(j) His Honour's assessment of the evidence fell to be made in the context of a case in which, for reasons no doubt consistent with the principles underlying and given effect to by the Civil Procedure Act 2010, no objection was taken to the admissibility of Dr Nathar's written opinion and he was not cross-examined as to the effect upon his opinion of hypothetical variations to the factual history which he assumed. The resolution of the weight to be given to medical opinion evidence in these circumstances is a task which necessarily involves a multi-factorial judgment which may not be free from difficulty.[27] Nevertheless it must be doubly difficult for an appellant to challenge the acceptance of the opinion of an expert when the point in issue was not put in cross-examination. The Chadbourn revision of Wigmore on Evidence supports the statement of principle subsequently approved by the High Court in Paric v John Holland (Constructions) Pty Ltd[28] in part by reference to the following statement by the Court in Culver v Sekulich (a case concerning liability for death in a plane crash):[29]

From our analysis of the record it appears to us that there was some evidence to support every hypothetical question to which objection was made. Such evidence was not always complete, was sometimes hazy as to time, distance, and other vital points but in general furnished a fair climate for the consideration of the views of the expert witnesses. Whatever omissions there were might well have been cured by the calling to the attention of the experts on cross-examination the situations which the defendant thought were unspecified or unclear.[30]

In our view his Honour was entitled to assess the weight of Dr Nathar's opinion in this context, namely that the opinion was not challenged in cross-examination. He was not required to speculate as to what might have been answers to questions not put in cross-examination.

39 Dr Nathar's opinion is properly understood as explaining persuasively why Mr Jovevski was vulnerable to the gradual development of psychiatric injury of the type diagnosed by Dr Wahr. It was open to his Honour in this context to be 'logically' persuaded that a physical aggravation of the type he found Mr Jovevski suffered triggered or materially contributed to the gradual development of Mr Jovevski's reactive condition. His Honour had the advantage of seeing Mr Jovevski cross-examined and this Court should not interfere with his assessment.

40 It follows from the above conclusions that ground 3 must also fail. The Reasons adequately explain the evidentiary basis of his Honour's conclusions.

41 It is necessary for completeness to deal with the further submission made on behalf of Mr Jovevski that the causation case now advanced was not put to the trial judge either in submission, or by way of evidence adduced by the appellants or in cross-examination. It is submitted that there is thus no proper basis for criticising the failure of the trial judge to deal with it explicitly in his Reasons. Further, having regard to the way the case was put below it is submitted that it would be unjust to permit the appellants to now put their case on the basis that his Honour should have considered whether, and concluded that, Mr Jovevski's psychiatric condition was caused solely by the 1995 injury and the aggravation which occurred in 2001 played no material part in causing it.

42 At the outset of the trial counsel for the appellants responded to the request of the trial judge to identify the 'big issues' in the case by first stating:

Your Honour, as a starting point I can say that there is no dispute that some sort of injury occurred to the plaintiff's right shoulder in 2001. Indeed, liability was accepted for a right shoulder injury and compensation paid. However, having said that, the current medical evidence does vary as to what organic condition remains as a result of that initial compensable injury, if any.

The defendant will rely on opinions from Mr Williams, the orthopaedic surgeon, who initially accepted that there was some injury to the shoulder, that is in his report of 2005 at defendant's court book p.15, but by 2012 opines that the plaintiff has a chronic pain syndrome with a significant psychiatric component to it.

43 This response was directly reflective of the weight of the medico-legal opinion evidence relied on by the appellants. This is exemplified by the opinion of Mr Dunin (Orthopaedic Surgeon):

I believe that he sustained a minor injury to the right rotator cuff, which has been associated with a chronic pain syndrome and secondary anxiety and depression.

He has a type of chronic pain syndrome associated with restrictive movement and weakness of the right upper limb.

45 If it were contended that the chronic pain syndrome with a 'significant psychiatric component' was not related to the injury in issue the reference to it by counsel in the terms set out above is difficult to understand.

46 Counsel went on to state in respect of the claim based on psychiatric injury:

With respect to paragraph C, it will be my submission that the condition the plaintiff suffers from does not meet the test of severe. Whilst there is no evidence that he had any pre-existing psychiatric condition the treatment that he has had with Dr Wahr is really the only psychiatric treatment, such that he has not been, for example, admitted into hospital, the CAT team hasn't been called, he does not have psychotic symptoms, and ultimately I will be pointing to various factors dealing with his daily activities and lifestyle which tend against a finding that the condition he has is severe.

47 Once again if it were contended that Mr Jovevski's psychiatric condition was not contributed to by the aggravation in issue this was not drawn to the Court's attention. What was put in issue was not the fact of a psychiatric reaction (which was specifically relied on for the purpose of the case concerning physical pain and suffering) but the degree and severity of that condition.

48 In turn, the cross-examination of Mr Jovevski did not address differences in history relating to the occurrence of sequential injuries given by him to various doctors who assessed him for medico-legal purposes.[31] This is hardly surprising given that Mr Jovevski's account in evidence of sequential injuries to his right shoulder was directly corroborated by contemporaneous notes made by his general practitioner, Dr Gorgioski.

He presented on the 8 April l995. He told me that on the 4 ofApri1 1995 he hit his right shoulder at work when he bent down. He had restricted movements, no swelling he was given liniment. X-Ray of his shoulder was normal. He was certified unfit for work. He was improving slowly and on the 26 April he resumed work on light duties. I saw him on the 13 June 95. He recovered sufficiently to continue his normal work.

Mr Joveski presented again on the 29 March 2001. He told me that he changed his work to different area. He had to do repetitive work. He had restricted and painful movements of his right shoulder. There was a crepitus on passive movements. I organized a Ultra Sound for him. This showed probable tear of Supraspinatus tendon. He was unfit for work but resumed work on light duties on the 23 July 2001. The pain persisted and he was seen by Mr F Lyons orthopaedic surgeon. I have seen him at regular intervals. He continue his light work until he was retrenched. (sic)

49 Likewise as we have said, there was no cross-examination of any of the medical witnesses. If it was to be contended that Dr Nathar's opinion as to causation should not be accepted because it was based in part upon assumptions as to circumstances which the evidence did not substantiate then that thesis could have been put to him in cross-examination. It was not. Nor was it put to Dr Wahr whose diagnosis of a reactive condition was accepted by the trial judge.

50 Further, none of the medical reports tendered by the appellants proffered the opinion that the appellant's psychiatric condition was solely caused by his pre-aggravation injury. (This is despite the fact that psychiatric opinions were obtained both from Dr Shan and Dr Triggs on the basis that Mr Jovevski suffered sequential injuries.)

51 In final address at trial counsel for the appellant submitted:

Moving away from economic loss, with respect to pain and suffering if I deal with the psychiatric injury first because that appears to be the real focus of the plaintiff's case. Clearly your Honour is to take into account the precise wording of the Act and severe means more than serious, so the condition has to be more than very considerable compared with a range of psychiatric impairments, and it's been described by Dr Shan as mild but even if your Honour considers that is perhaps too optimistic a view, in my submission the overall evidence given what your Honour has heard about the plaintiff's activities and his capacities, indicates that his condition isn't a severe one.

52 This submission was then elaborated. There was no submission that the appellant's psychiatric state was not in material part consequent upon the 2001 aggravation. The submission concluded by traversing the evidence as to the appellant's history of pain but again did not put the causation case now advanced.

53 The appellants' final submissions to the trial judge as to physical injury likewise conceded some continuing effects of the injury but took issue with its severity.

So given all of those factors in my submission your Honour can only conclude that he had what might be described as a light work shoulder before the injury, and now 12 years later he continues to do so. So when your Honour measures any additional impairment there really is very little if any other than his evidence now that he has pain every day and in the six year period prior he had it most days. So whilst the defendant would concede there has been some progression in his symptoms that in itself is not enough to be meeting the test of very considerable.

54 It is true, as counsel for the appellants submit, that his Honour identified the issues in the proceeding as including ones of causation.

13 The issues to be determined in this application are:

(a) What is the nature of any injury to Mr Jovevski's right shoulder?

(b) Can the pain and suffering or loss of earning capacity consequences of such injury be fairly described as being at least 'very considerable'?

(c) Has Mr Jovevski suffered a behavioural or mental disorder as a consequence of his work injury?

(d) Can such disorder be fairly described as being more than serious to the extent of being severe?

(e) Has Mr Jovevski suffered a loss of earning capacity of 40 per cent or more, when measured in accordance with the requirements of s134AB(38), as a consequence of the injury to his right shoulder or his behavioural or mental disorder or both?[32]

55 It is also true that the trial judge made findings both as to the fact of psychiatric injury[33] and as to the circumstances of its causation.[34] Nevertheless it was simply never contended before his Honour that the appellant's psychiatric condition was solely attributable to the 1995 injury and/or was not materially contributed to by the 2001 aggravation.

56 In Water Board v Moustakas[35] Mason CJ, Wilson, Brennan and Dawson JJ said:

More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.

In deciding whether or not a point was raised at trial no narrow or technical view should be taken.

...

It is necessary to look to the actual conduct of the proceedings to see whether a point was or was not taken at trial, especially where a particular is equivocal.[36]

57 In Whisprun Pty Ltd v Dixon,[37] after concluding the case upheld on appeal below was never put at first instance, Gleeson CJ, McHugh and Gummow JJ said:

Accordingly, this appeal must be allowed. It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.

As Water Board v Moustakas makes clear, a point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is 'necessary to look to the actual conduct of the proceedings'...[38]

58 As counsel for Mr Jovevski submits, the reality is that in a proceeding instituted by originating motion the issues are not defined by pleadings and particulars.

59 It is plain from consideration of the over-arching purpose of the Civil Procedure Act 2010 that that Act does not permit the issue of causation as it is now put by the appellants to be raised for the first time on appeal. This should have been obvious following the Court of Appeal's decision in Yara Australia Pty Ltd v Oswal.[39] Although proceedings brought under the Accident Compensation Act are subject to a statutory regime, they are not excluded from the operation of the Civil Procedure Act and parties are not excused from their obligations under it. In Setka v Abbott, Warren CJ, Ashley and Whelan JJA said:

[T]he over-arching purpose which, by operation of the Civil Procedure Act 2010, applies to both litigants and their advisers, is not simply a pious but toothless statement of the considerations which are to motivate participants, lay and professional, in civil litigation. So much was powerfully emphasised by this Court in Yara Australia P/L and ors v Oswal. The just, efficient, timely and cost effective resolution of the real issues in dispute in a case cannot be facilitated if a party and the party's advisers do not take adequate steps to identify the issues which require determination early in the life of the proceeding.[40]

60 Whilst it must be accepted that it was incumbent upon Mr Jovevski to establish a credible evidentiary basis for the finding that his psychiatric injury was caused (at least in material part) by the 2001 aggravation, it was not incumbent upon him to disprove a hypothetical possibility not adverted to at trial and of which there was no positive evidence, namely that his psychiatric condition was solely caused by the 1995 injury.

61 Nor should the appellants now be permitted to put their case on the basis that the trial judge was required to resolve this issue.

62 If the causation issue now put at the front of the appellants' case had been squarely raised before the trial judge then it would have been open to Mr Jovevski to conduct his case differently. Firstly, his own evidence could have directly addressed the point. Secondly, supplementary psychiatric evidence could have been adduced.

63 In the circumstances the appellants are bound by the way they put the case below.[41] There was no basis for the bringing of the appeal.

(a) the criticisms of his Honour's reasoning and of the evidentiary basis of his conclusions are not made out; and

(b) the appellants are in any event seeking to agitate what is in substance a new case in circumstances where they should not be permitted to do so.

[2] Affidavits sworn 21 March 2011 and 25 July 2013.

[4] Jovevski v Wingfoot Australia Partner Pty Ltd [2013] VCC 996 ('Reasons'), [57]-[59] (citation in original).

[5] Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436, 443; Guppy v Victorian WorkCover Authority [2010] VSCA 164, [19]; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249.

[7] Reasons [60]-[70] (citation omitted).

[8] Notice of appeal dated 4 September 2013.

[17] (1985) 62 ALR 8; see also City of Brimbank v Halilovic [2000] VSCA 12, [23] (Winneke P, Buchanan and Chernov JJA).

[19] Wigmore on Evidence, (1940) 3rd ed, vol II, s 680, 800; 2 Wigmore, Evidence s 680 (Chadbourn rev 1979), 942.

[21] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85, 87-8 (citations in original).

[22] Evidence Act 2008 s 55(1) and definition of 'probative value' of evidence in the Dictionary to the Evidence Act 2008.

[23] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85, 87-8; City of Brimbank v Halilovic [2000] VSCA 12, [23] (Winneke P, with whom Buchanan and Chernov JJA agreed).

[24] Report of Dr M J Nathar dated 26 February 2010

[27] See the observations of Nettle, Beach JJA and McMillan AJA in Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8, [54].

[29] 80 Wyo 437, 458, 344 P.2d 146, 154 (1959).

[31] These differences were emphasised in submission by counsel for the appellants but the fact that it is plain Mr Jovevski was not a particularly good historian when examined for medico-legal purposes was not the basis either of cross-examination at trial nor said to found the causation argument now advanced.

[38] Ibid [51]-[52] (citations omitted).

[41] Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, 497; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598, 1608 [51].

Accident Compensation Act 1985

Wingfoot Australia Partner Pty Ltd & Anor v Jovevski [2014] VSCA 21

At a glance

Court

Decision date

Before

Source

Judgment (141 paragraphs)

Wingfoot Australia Partner Pty Ltd & Anor v Jovevski [2014] VSCA 21 (26 February 2014)

Parties

Legislation Cited (2)

Cases Cited (5)