this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

Serious injury? Give credit where it's due

Feature Articles

Cite as: May 2011 85(5) LIJ, p.36

The definition of "serious injury" has been developed and refined through judgments, but one factor has remained constant: "the credit" of the plaintiff is still the key.

By Andrea Tsalamandris and Michael Lombard

It is 25 years since lawyers first faced the concept of “serious injury” with the introduction of the Transport Accident Act 1986 (TAA). They could never have expected the prominence that serious injury applications now have in the civil courts.1

Background

To obtain damages at common law for injuries suffered at work or in a transport accident, a person must have sustained a serious injury.2 If the injury is not assessed as resulting in a 30 per cent whole person impairment under the American Medical Association Guides to the Evaluation of Permanent Impairment (4th edn) (Guides), the plaintiff must satisfy a narrative test. If the TAC or WorkCover do not agree that the injured has satisfied the test, application is made to a judge of the County Court for leave to sue.3

When initially introduced, it was thought that most plaintiffs would proceed through the serious injury gateway by achieving 30 per cent whole person impairment. However, the application of the Guides makes it particularly difficult for most plaintiffs to meet that threshold and the overwhelming majority progress through the narrative gateway.4

There are four grounds on which a plaintiff can seek to establish that a serious injury under the narrative test has been suffered. These are:

  • serious physical impairment or loss of a body function;
  • serious disfigurement or scarring;
  • severe psychiatric condition; and
  • loss of a foetus.

Most serious injury applications are made under parts (a) and (c).

One of the earliest considerations of the serious injury test was in Ninkovic v Pajancek5 in which Marks J said: “I think that for an impairment to be serious, it must have consequences which are serious for the plaintiff . . . a serious impairment which is long-term is one which has a serious consequence for the plaintiff in the form of disablement from work or interference with enjoyment of life”.6

The leading authority, which continues to give guidance to the courts and practitioners as to what is required to meet the narrative test, is Humphries v Poljak.7 The most often quoted statement as to what is needed is that of Crockett and Southwell JJ (at [141]): “In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”.

A further leading authority in the area is Petkovski v Galletti.8 This case deals with situations in which the plaintiff has a pre-existing condition that is aggravated in compensable circumstances. In this case, the Court of Appeal held that the aggravation in itself must be a serious injury and it cannot be accumulated with the pre-existing condition.

In Mobilio v Balliotis,9 the Court of Appeal made it clear that the testing for serious injury in respect of a psychiatric injury was intended to be a stronger test, as the requirement was for a “severe” psychiatric condition which was more than “serious”.

Further, Richards v Wylie10 is the leading case in relation to how to deal with a plaintiff who suffers a severe psychiatric reaction arising from a mild physical injury. In that case, the plaintiff had suffered a relatively minor soft tissue injury to the neck, but went on to experience a psychological reaction that resulted in the plaintiff suffering symptoms including blackouts, loss of memory and concentration. It was held by the Court of Appeal that the impairments to be considered in this case were the consequences of a mental or behavioural disturbance or disorder and it was accepted that it was serious under part (c) for the purpose of meeting the narrative test.

Looking at the individual

Three recent Victorian Court of Appeal cases emphasise the need to look at the consequences and effect on the individual when making serious injury applications.

The most recent decision to consider serious injury consequences was Haden Engineering v McKinnon.11 This case involved a pain and suffering application under the Accident Compensation Act 1985 (Vic) (ACA). The plaintiff had suffered an ankle injury requiring surgery, with metal plates inserted. In the lead judgment of Maxwell P, an emphasis was given to the actual impact the injury had on the plaintiff. The plaintiff suffered continuing pain requiring frequent use of medication and was unable to enjoy uninterrupted sleep. Although there was no evidence of osteoarthritis, with there being no attack on his credit, it was accepted by the Court (at [43]) that his pain was “all- pervasive” and he was granted a serious injury certificate. (For a more detailed discussion, see “Taking pain seriously”, October 2010 LIJ, p52.).

Similarly, in Sutton v Laminex Group,12 the Court found the plaintiff suffered from chronic debilitating pain from which there had been little relief over 10 years. Although the trial judge made an adverse finding of credit against the plaintiff, the Court of Appeal found it was without foundation.

In contrast, the Court of Appeal was not satisfied the plaintiff had suffered a serious injury in Stijepic v One Force Group Australia Pty Ltd.13 The plaintiff, a 26-year-old university student, suffered a lower back injury while in casual employment. The evidence at the hearing was that he suffered constant pain and used Nurofen and Panadol as needed. He was still able to play his guitar, had travelled overseas extensively and, according to his Facebook page, had an active social life. The Court felt that his case was “on the borderline” (at [43]). It acknowledged that as a young man, he would have to put up with the consequences of back pain for 40 years or more. However, the Court held (at [44]) that it was not persuaded that the consequences could be fairly described as being more than significant or marked, or at least, very considerable and was not prepared to grant him a serious injury certificate.

Comment

It is worth noting that the serious injury application in this case was made less than two years after the accident and the County Court hearing was held less than three years after the accident. Although there is never a crystal ball that can tell us the future, when lawyers handle cases for young workers it may be preferable to wait longer before requesting a serious injury certificate. This may allow time to discover whether additional, more serious consequences have become evident.

Disentanglement

In many serious injury cases, the biggest challenge for the lawyers, and ultimately the judge, can be to disentangle the physical injury from the psychiatric consequences. It has long been accepted that under both statutory schemes a physical injury and the psychological consequences of it cannot be combined to constitute a serious injury.14

In addition, s134AB(38)(h) of the ACA requires, when attempting to establish a serious injury through a permanent serious impairment or loss of a body function, that “the psychological and psychiatric consequences of a physical injury” are not to be taken into account in considering the application.

This was seen as a particularly difficult task for plaintiffs after the Court of Appeal decision in Mutual Cleaning and Maintenance v Stamboulakis.15 It was held that a judge was required to separate out the physical factors from the psychological factors and to look only at the physical, organic factors or only the mental disorder. Neave J held (at [45]) that in cases involving “functional overlay” or “chronic pain”, the Court had to disregard such consequences which did not have a physical basis and “strip them away” so as to look only at the organic injury. It was acknowledged that doctors would have difficulty precisely defining what consequences were physically based and what were not, but nonetheless, that was what was required (at [47]).

In Jayatilake v Toyota Motor Corporation,16 a more realistic approach appears to have been applied by the Court. In the lead judgment Ashley JA held that the task of disentanglement need not be undertaken in cases where the consequences of the physical injury are readily recognisable.

Ashley JA indicated that a serious injury application should be decided by consideration of all the evidence. “Simply, a plaintiff is required to establish . . . that he or she suffers an impairment or loss of function, the consequences of which, physically based, are serious in terms of pain and suffering or loss of earning capacity” (at [18]).

In Jayatilake, the plaintiff had suffered a disc prolapse to his lower back and had subsequently developed depression with a functional overlay. The Court held (at [161]) that after accepting the plaintiff had suffered a disc injury, it was reasonable “to accept the probability of a continuance of symptoms at the level and with the impairment which was present . . . before the picture became clouded by non-organic overlay”.

Since Jayatilake, it has been a simpler task for plaintiffs in similar cases to succeed in obtaining a serious injury certificate. This is demonstrated in the subsequent Court of Appeal decision of Advanced Wire v Abdulle.17 Once again it involved a plaintiff suffering a lower back injury at work who subsequently developed psychological upset. His GP detailed the physical consequences of his injury and the Court (at [55]) considered it unnecessary “to unravel psychological or psychiatric consequences from the physically disabling consequences of an injury”.

Comment

For a plaintiff with a less obvious physical injury and significant psychological or psychiatric reaction to the physical injury, the need for disentanglement remains. In such cases it is wise for the application to seek a declaration that the plaintiff suffers a serious physical injury, and in the alternative a severe psychiatric injury.

Psychological predominant

In other cases, the physical cause of the pain can be minimal and the most significant cause for incapacity is a psychiatric reaction to the injury. The application is therefore made on the basis that there is a severe psychiatric injury. This occurred in the case of Bogdanoska v Allsmanti Pty Ltd.18 The plaintiff was a cleaner who alleged that as a consequence of the work she had performed over time she suffered pain in her back, neck and arms. She had undergone surgery for carpal tunnel syndrome, which had been successful. It was accepted by the plaintiff’s counsel that there was “only a limited organic basis for any of the considered pain” (at [14]). It was also accepted that as a consequence of the initial physical injuries she had developed a mental disorder and suffered a chronic pain disorder, with depression (at [13]).

At the trial, video surveillance was shown. The plaintiff was seen shopping and picking up her grandchildren without restriction. This was found (at [35]) to be inconsistent with the evidence she gave. The trial judge described her evidence in cross-examination (at [39]) as “evasive, even notwithstanding her language difficulty”. The Court was not prepared to grant her leave to commence common law proceedings.

Credit the key

The overwhelming message from the courts remains that a plaintiff’s credit is usually the key to the outcome of an application. Time and again it seems that in cases where the plaintiff fails there has been a successful attack on the plaintiff’s credit.

In Sabanovic v Atco Controls19 the plaintiff appealed against a County Court decision that she did not have a serious injury. She alleged that she had suffered injuries to her hands while performing repetitive work assembling factory parts over time. At the hearing, video surveillance showed her moving her arms and hands freely and the trial judge described this as “uncompromisingly contradictory” to the plaintiff’s evidence.20 The Court of Appeal held that the damage to her credit “extends to and weakens her evidence on the severity of her symptoms”21 and dismissed the appeal.

In this appeal the Court also passed comment (at [141]) on the lack of cross-examination of medical witnesses, making it difficult for the Court to reconcile the conflicting medical opinions in the case. There was also no medical commentary on the video footage.

In light of the High Court decision in Dwyer v Calco Timbers Pty Ltd22 and the requirements under s134AD of the ACA, the Court of Appeal is required to assess the credit of the plaintiff without having seen the plaintiff give evidence. Warren CJ and Hargrave AJA were not deterred by this, however, when they said in Sejranovic v Berkley Challenge: “In our view, although the central issue in this case concerns the credibility of the appellant, this Court is as well equipped as the judge below to determine the application for itself.”23

In Dordev v Cowen & Anor, Chernov JA found that a medical opinion that was based on an account by a plaintiff may have little or no probative weight where the court determines that such witness is not reliable.24

A negative finding regarding the plaintiff’s credit by the trial judge may not, however, be fatal for the plaintiff’s case.

In Cakir v Arnott’s Biscuits Pty Ltd,25 the Court determined the adverse finding concerning the plaintiff’s credibility was not of itself sufficient to refuse the serious injury application. The majority in Sejranovic added that finding a plaintiff unreliable and not necessarily invalidate all the medical opinions relied on by that plaintiff.26 The majority found that although the appellant’s credibility was compromised, the attempted self-harm and knifing of her husband when he tried to stop her was objective evidence that overcame the compromise.27

Conclusion

No doubt the concept of “serious injury” will continue to be refined by the courts over the next 25 years or so, but the evidence and credibility of the plaintiff will still remain the key.



ANDREA TSALAMANDRIS is a partner in the personal injury group of Holding Redlich and an accredited personal injury law specialist. MICHAEL LOMBARD is the leader of the personal injury group at Holding Redlich. He is an accredited personal injury law specialist and co-author of Motor and Traffic Law, Victoria, published by LexisNexis.

The numbers in square brackets in the text refer to the paragraph numbers in the judgment.

1. Maxwell P, Haden Engineering v McKinnon [2010] VSCA 69 at [1].

2. Transport Accident Act 1986, s93 and Accident Compensation Act, s134.

3. Further details of the definition are contained in the relevant sections.

4. Victorian WorkSafe Authority Legal Liaison Committee, Key Data Report 2010.

5. [1991] 2 VR 427.

6. Note 5 above, at 429.

7. [1992] 2 VR 129.

8. [1994] 1 VR 436.

9. [1998] 3 VR 833.

10. (2000) 1 VR 79.

11. [2010] VSCA 69.

12. [2011] VSCA 52.

13. [2009] VSCA 181.

14. Richards v Wylie, note 10 above.

15. [2007] VSCA 46.

16. [2008] VSCA 167.

17. [2009] VSCA 170.

18. [2010] VSCA 126.

19. [2009] VSCA 143.

20. [2007] VCC 1661 at [29].

21. Note 19 above, at [146].

22. [2008] HCA 13.

23. [2009] VSCA 108 at [16].

24. [2006] VSCA 254 at [19].

25. [2007] VSCA 104.

26. Note 23 above, at [146].

27. Note 23 above, at [172].

Comments




Leave message



 
 Security code
 
LIV Social
Footer