Norsgaard v Aldi Stores (A Limited Partnership)
[2023] QCA 204
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- Appeal Determined (QCA)
- Norsgaard v Aldi Stores (A Limited Partnership)[2023] QCA 204
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Norsgaard v Aldi Stores (A Limited Partnership)[2023] QCA 204
Norsgaard v Aldi Stores (A Limited Partnership)[2023] QCA 204
SUPREME COURT OF QUEENSLAND
CITATION: | Norsgaard v Aldi Stores (A Limited Partnership) [2023] QCA 204 |
PARTIES: | LUCY VICTORIA NORSGAARD (appellant) v ALDI STORES (A LIMITED PARTNERSHIP) ABN 90 196 565 019 (respondent) |
FILE NO/S: | Appeal No 16024 of 2022 DC No 1872 of 2021 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | District Court at Brisbane – [2022] QDC 260 (Jarro DCJ) |
DELIVERED ON: | 20 October 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 June 2023 |
JUDGES: | Mullins P, Livesey AJA and Callaghan J |
ORDERS: |
|
CATCHWORDS: | DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – INCOME LOSS AND LOSS OF EARNING CAPACITY – LOSS OF PRE-TRIAL INCOME – where the appellant sustained an injury to the lumbar spine while at work – where the respondent employer breached its duty of care owed to the appellant – where the trial judge awarded damages for past economic loss by reducing the calculated amount for past economic loss by 30 per cent – whether the trial judge erred in discounting past economic loss by 30 per cent DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – INCOME LOSS AND LOSS OF EARNING CAPACITY – GENERALLY – where the appellant sustained an injury to the lumbar spine while at work – where the respondent employer breached its duty of care owed to the appellant – where the respondent had employed the appellant as a storeperson – where the appellant completed a Certificate III in Fitness after the injury but called no evidence as to how much she could earn in that occupation – whether the trial judge erred in ordering a global sum for damages for loss of future earning capacity – whether the trial judge erred in not placing enough weight on the appellant’s ability to complete a Certificate III in Fitness and gain employment in that field DAMAGES – ASSESSMENT OF DAMAGES IN TORT – PERSONAL INJURY – DAMAGES FOR NON-ECONOMIC LOSS – where the appellant sustained an injury to the lumbar spine while at work – where the respondent employer breached its duty of care owed to the appellant – where the medical evidence favoured by the trial judge included that the appellant sustained a seven per cent whole person impairment – where the trial judge assessed an injury scale value (ISV) of 8 under the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld) – where the respondent did not challenge the factual findings in which the trial judge based the selection of an ISV of 8 – whether the trial judge erred in selecting an ISV of 8 Workers’ Compensation and Rehabilitation Regulation 2014 (Qld), sch 9 Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5, cited Peebles v WorkCover Queensland [2021] QCA 21, cited |
COUNSEL: | R J Lynch and N I Congram for the appellant S McNeil for the respondent |
SOLICITORS: | Kartelo Law for the appellant BT Lawyers for the respondent |
- [1]THE COURT: The appellant was employed by the respondent as a storeperson at its Brassall store when, on 28 June 2019, she was unpacking trays of canned tomatoes and suffered a musculoligamentous injury to her lumbar spine. In her claim for damages for personal injuries, the appellant succeeded in proving that the respondent was liable for her injuries: Norsgaard v Aldi Stores (A Limited Partnership) [2022] QDC 260 (the reasons). The learned trial judge gave judgment for the appellant in the amount $157,767.71. The appellant appeals against the assessment of past economic loss of $58,974.93, and the interest and superannuation calculated on past economic loss, the assessment of $60,000 for loss of future earning capacity, and the superannuation in respect of that amount. The respondent cross appeals against an injury scale value (ISV) of 8 in the assessment of general damages and the respective assessments of past economic loss and loss of future earning capacity.
Summary of relevant facts
- [2]The following summary of facts is taken mainly from the reasons. There is no challenge on the appeal to any of the findings of fact in the reasons. To the extent that reference is made in this summary to additional facts, the source of the evidence is identified.
- [3]The appellant was 33 years old at the date of the incident and was 37 years old when judgment was delivered by the trial judge on 22 November 2022.
- [4]The appellant completed grade 11 in 2001. Her first child arrived in 2006 and her second child in 2013.
- [5]The appellant’s employment history was “sporadic” in that she worked approximately two and one-half years over the period between 2001 and 2006 (at [92] of the reasons). She was employed at McDonald’s for six months, a German bakery for another six months and as a car detailer with a car dealership for possibly one and one-half years. There was “limited evidence given by the [appellant] about her reasons for not being able to work during the entire period before the arrival of her first child” (at [92]). The trial judge concluded (at [92]) that the appellant’s work history prior to her having her two children established that the appellant “for unexplained reasons, demonstrated a capacity to work intermittently on a part time basis”. The appellant’s role with the respondent was the appellant’s first paid employment in a couple of years. Prior to that employment, she had volunteered with the RSPCA and Youngcare.
- [6]The appellant commenced part-time employment with the respondent in around May 2018. She completed the probationary period of three months and became a permanent part-time employee. The one issue on which she received feedback from management was that the time she spent unloading stock needed to improve. In the months before the incident the appellant approached the store manager Mr Hutchinson about a deputy manager role and was told by Mr Hutchinson that, if she got up to speed unloading stock, she would be considered for the role (at [35] of the reasons). That finding was reinforced by the further evidence of Mr Hutchinson when he was recalled that, in the months leading up to the injury, there was the prospect of the appellant being considered for a promotion within the store. The trainee store manager, Ms Barton, who was at the Brassall store between 18 June 2018 and 14 January 2019, gave evidence that the appellant had told her that she thought being slow at unloading stock onto shelves would hinder her chances of being promoted but Ms Barton was supportive of the appellant’s ambition.
- [7]The appellant was able to complete her shift and work the next two days after the incident before raising it with her manager on 1 July 2019 and making a formal report the following day. The appellant consulted her general practitioner on 2 July 2019 and a couple of days later was referred for physiotherapy for her ongoing pain in her lumbar region. On 11 July 2019, the appellant’s general practitioner reduced her hours to a maximum of six hours per day and prescribed prednisone (at [69] of the reasons). By 18 July 2019, the general practitioner had noted “definite improvement” in her symptoms. The appellant continued to receive physiotherapy treatment. By 10 September 2019, the appellant had attended 11 times for physiotherapy and at the most recent appointment had reported only slight right sided hip pain with minimal low back pain (at [70]). After attending a couple of gym sessions, the appellant returned to her general practitioner on 12 September 2019 with increased pain. The appellant suffered an aggravation of her injury sustained in the incident rather than a new injury when she attended the gym on 11 September 2019 (at [80]). On 22 October 2019, the appellant underwent an MRI of the lumbosacral spine which reported mild lower lumbar spondylosis and disc degeneration slightly more marked at L4/5 level where a posterior annular tear and mild generalised disc bulge was noted (at [72]).
- [8]The appellant was referred by her general practitioner on 18 November 2019 for physiotherapy. She presented on 27 November 2019 to her general practitioner after she aggravated her lower back pain whilst on light duties at the respondent’s premises (at [73] of the reasons).
- [9]The appellant suffered serious migraine with associated side effects including neck pain from 26 December 2019 through to at least 12 January 2020. The appellant stated in her evidence that she worked her last shift for the respondent in February 2020. She travelled to Bali on 6 March 2020 for four days following which she was required to isolate for 15 days. She chose not to work during the first four months of the COVID pandemic in order to care for her children.
- [10]The appellant had exhausted her sick leave, annual leave and long service leave with the respondent and had been placed on leave without pay from 13 June 2020 (exhibit 11). By 25 June 2020, the appellant became unemployed after the respondent informed her there were no light duties to be performed at its premises based on what she had been certified as fit to perform (at [93] of the reasons). (Even though there is no challenge by the appellant in the notice of appeal to this finding, the appellant submits that the trial judge was in error in considering that the appellant was no longer employed by the respondent after 25 June 2020 when the appellant continued to receive letters from the respondent in similar terms to the letter of 25 June 2020 in the following months. This finding reflects the appellant’s written submissions at the conclusion of the trial in which the statement “After that the [appellant] became unemployed” followed the reference to the letter of 25 June 2020. The appellant was in substance unemployed from 25 June 2020 when the respondent did not have any lighter duties for the appellant and she no longer did any work for the respondent.)
- [11]Between 31 August 2020 and 15 December 2021, the appellant attended on massage therapist Mr Randall for regular treatments (at [74] of the reasons).
- [12]It was not until May 2021 that the appellant obtained full-time employment as a receptionist at Healthy Lifestyles. She struggled with the role due to the sitting and experienced increased pain in her back. Her general practitioner advised that she had to reduce her hours to part-time to manage her back condition. As a result, in July 2021, the appellant’s employment was terminated because her employer required a full-time person for the role (at [94] of the reasons).
- [13]From 15 July 2021 the appellant was enrolled in an online TAFE course that resulted in her completing before the trial a Certificate III in Fitness.
- [14]The out-of-pocket expenses schedule tendered at the trial (exhibit 13) had only two entries, one of $6.50 for prednisone on 10 July 2019 which was a steroid treatment to improve the pain and one of $200 for CBD oil on 28 March 2022 to assist with pain. There was an extensive list of travel expenses included in the schedule for travel to and from doctors, massage treatments, a physiotherapist and a myotherapist, including a round trip of 186 kilometres to Caloundra on 16 March 2022 for a massage and again on 28 March 2022 to obtain the CBD oil.
- [15]The appellant remained unemployed when the trial took place in July 2022.
Medical evidence
- [16]The appellant was seen by neurologist Dr Todman on 23 February 2021 and by orthopaedic surgeon Dr John Tuffley on 24 February 2021. The trial judge concluded (at [84] of the reasons) that “Dr Todman’s opinion, on the whole, was slightly more compelling than that of Dr Tuffley in light of the overall evidence”. The trial judge summarised Dr Todman’s evidence at [76] of the reasons:
“On the occasion Dr Todman assessed the plaintiff, she reported to him that she was still suffering from symptoms related to the incident, namely persistent pain across her low back. Dr Todman was of the view that, on examination, the plaintiff showed some tenderness in the lumbar paravertebral muscles. He noted there was reduced forward flexion in the lumbar spine by 40 degrees, a left lateral flexion by 40 degrees and a right lateral flexion by 30 degrees. He also noted that strength, reflexes and sensation were normal in the lower extremities. The rotation of her hip was also normal. Dr Todman's view was that on 28 June 2019, the plaintiff developed acute lower back pain, the symptoms of which continue. In his view, the ongoing symptoms are directly attributable to the incident. The incident was consistent with causing trauma to the lumbar spine. He assessed the plaintiff’s injury as DRE Category II injury using AMA 5 guidelines which represents a seven percent whole person impairment. He was also of the view that the increase in pain after attending gym on 11 September 2019 was an aggravation of the plaintiff's pre-existing injury, rather than a new incident.”
Calculation of past economic loss
- [17]The appellant gave evidence at the trial that she had applied for other jobs, but the trial judge was not convinced (at [95] of the reasons) that those efforts had been genuine, as the appellant neither gave detailed evidence as to how many jobs she applied for nor adduced evidence of any applications she had made. This failure to make genuine efforts to obtain employment since July 2021 and the appellant’s sporadic employment history prior to her first pregnancy caused the trial judge (at [95] and [99]) to consider that a discount should be made in the circumstances in calculating past economic loss. The trial judge recorded (at [100]) another reason for the discount as the appellant was unable to work due to either unrelated medical issues, holidays or her own voluntary decision not to work during the COVID pandemic.
- [18]Even though the trial judge rejected (at [103] of the reasons) the respondent’s contention at the trial that the appellant was fit to return to full duties by September 2019, the trial judge then emphasised (at [103]) the reasons for selecting the discount of 30 per cent to the amount otherwise calculated for past economic loss:
“It is my assessment however that there should be an appropriate discount for the [appellant’s] past economic loss. Adopting the calculations identified by the [appellant], a significant discount of 30 percent will be applied to reflect certain considerations, those being: the [appellant’s] limited and sporadic work history since leaving school and producing her first child; the [appellant’s] limited qualifications and skills; that the [appellant] had a migraine condition for a period of approximately two weeks from 29 December 2019 for which she was unable to work; that the [appellant] had breaks in her part time employment between the date of the incident to the present day; and given her limited work history and age, it is my impression that there is a very real possibility that the [appellant] would have changed jobs from time to time before she settled into a permanent line of employment despite her evidence that she was content to be promoted through the ranks at Aldi.”
- [19]On the appeal, the appellant relies on the evidence that she was keen for promotion with the respondent and the evidence of the respondent’s managers that they were aware of her interest and that there was a possibility that she would be considered for promotion. There is no challenge on the appeal, however, to the specific finding of the trial judge (at [103] of the reasons) that there was “a very real possibility” that the appellant would have changed jobs despite her ambition to be promoted with the respondent. That conclusion was open to be drawn by the trial judge from the appellant’s work history from the time she left school and her attitude to work reflected in her evidence such as the lack of detailed evidence of her job applications after finishing with Healthy Lifestyles and her surprising choice in the year leading up to the trial of undertaking a course to obtain a Certificate III in Fitness with the intention of working as a disability fitness instructor and referred to in [92], [95], [99], [100], [102] and [103] of the reasons.
- [20]The trial judge set out (at [103] of the reasons) the calculation of past economic loss as follows:
- “(a)The first is the period from the incident (28 June 2019) until 24 May 2021 when the [appellant] started at Healthy Lifestyles on 24 May 2021, the resulting loss of $41,645.
- The second period is from 13 July 2021 until the time of trial, being a loss of $30,617.50.
- Finally, from 1 July 2022 until judgment at $599.37 net per week (20 weeks).
- Reduced by 30 percent.”
- [21]The appellant submits that past economic loss should be the losses identified in paragraphs (a), (b) and (c) of the calculation which total the sum of $84,249.90 without any discount being applied to that figure.
- [22]In respect of the cross appeal, the respondent submits that the error made by the trial judge was in reducing the past economic loss by 30 per cent for contingencies and that it ought to have been 60 per cent.
- [23]On the basis of the detailed explanation given by the trial judge for selecting the discount of 30 per cent in respect of past economic loss which reflected the findings made by the trial judge on evidence adduced at the trial, the appellant does not succeed on her appeal against the assessment of past economic loss.
- [24]For the respondent to succeed on the cross appeal, the respondent must show the discount of 30 per cent was manifestly inadequate. The discount was applied to the past economic loss assessed over a period of approximately three and one-half years during which the appellant’s health and circumstances were known: Peebles v WorkCover Queensland [2021] QCA 21 at [21]-[22]. What was unknown and a matter for the trial judge to assess in determining the discount for the economic loss otherwise assessed for the period was the extent to which she would have worked, if she had not been affected by the injury she suffered in the incident. The respondent pursues the cross appeal only on the basis of the error in the selection of the discount rather than challenging any of the findings of the trial judge that were relevant to the selection of the discount. The findings of the trial judge do not justify such a dramatic increase in the discount applied in the assessment for past economic loss to take account of the possibility that the appellant may not have worked consistently throughout the pre-trial period, if she had not been injured in the incident. The respondent’s cross appeal in respect of past economic loss fails.
Calculation of loss of future earning capacity
- [25]The trial judge accepted (at [113] of the reasons) the respondent’s submission that the evidence demonstrated that “there are uncertainties in what the future would have held for the [appellant] in terms of her working life, if not for the incident”. The trial judge observed (at [114]) that the appellant’s interest in a future career path as a fitness and group fitness instructor which was a physical role was “seemingly entirely inconsistent with the [appellant’s] otherwise significant claim for ongoing pain, symptomatology, impairment and loss of capacity for work”. It was also noted (at [114]) that the appellant gave no evidence (and called no evidence) as to how much money she could earn potentially in the role of disability fitness instructor. The trial judge noted (at [116]) that the medical evidence otherwise demonstrated that the appellant had other medical conditions including chronic fatigue syndrome and had, in the past, suffered depression and anxiety.
- [26]When the respondent’s counsel at trial commenced to cross-examine the appellant on mental health issues she experienced in early 2020, the appellant’s counsel successfully objected to the cross-examination on the basis that the fact that the appellant had mental health issues was not specifically pleaded by the respondent in its defence. All that the respondent had pleaded in relation to past economic loss was that, it was in part due to “Unrelated medical conditions in 2019, including migraines”. The trial judge referred (at [115] of the reasons) to Dr Todman’s opinion that with some conservative treatment, it was possible for the appellant to achieve a gradual return to work which would be on light duties initially. The fact that the trial judge ruled against the respondent’s counsel’s cross-examination of the appellant on her mental health issues did not mean that the trial judge could not refer to the appellant’s medical conditions recorded in the medical records adduced in evidence, as the past history of those medical conditions remained a matter relevant to assessing any discount for contingencies applicable to loss of future earning capacity.
- [27]The trial judge noted (at [117] of the reasons) that at 37 years of age, the appellant had a further 30 years of working life to the normal statutory retirement age. The trial judge continued (at [117]):
“According to Dr Todman, the plaintiff’s lower back complaints interfere with her capacity for employment. He is of the view too that the plaintiff requires further treatment, but it is possible with response to treatment in three to six months that she may be able to achieve a gradual return to work. It is apparent that she has a residual work capacity which will improve so long as her condition improves. I am unable to come to a conclusive view about a defined weekly loss for the [appellant], other than a nominal amount of say $50 - $75 net per week because in my view, despite the [appellant’s] current unemployment status, she has recently completed her Certificate III in Fitness, and will, on balance, obtain employment in the future given her age. In light of these matters, and given the [appellant’s] education and limited employment history, I will allow a global amount of $60,000 for future economic loss. One way for me to fortify this figure is to assume say six months’ gradual return to work following further treatment, which seems consistent with the opinion expressed by Dr Todman (although I do recognise that opinion was expressed in April 2021 and the [appellant] has not returned back to work, however, I remain unconvinced about the genuineness of those efforts based on her sporadic previous employment history), $75 net per week loss thereafter for the remainder of the [appellant’s] working life, discounted by 15 percent for contingencies ($600 p/w for 6 months ($14,400) together with $75 x 809.7 x .952 ($57,812), less 15 percent).” (footnote omitted)
- [28]The appellant’s grounds of appeal challenge the trial judge’s assessment of her loss of future earning capacity by reason of giving undue weight to some factors that were unfavourable to the appellant, not sufficient weight to other factors that were favourable to the appellant, adopting Dr Todman’s opinion about a graduated return to the workforce in six months without regard to the history post dating that opinion given in April 2021 and relying on the appellant’s successful completion of the Certificate III in Fitness to support a finding that she would resume employment without any evidence as to the availability of, or the likelihood of her obtaining, employment in that field. The appellant also disputes the further discounting of the award assessed by the trial judge by 15 per cent. The alternative ground of appeal relied on by the appellant in relation to loss of future earning capacity was that the trial judge’s assessment was manifestly inadequate.
- [29]The respondent submits that the trial judge erred in awarding the appellant the sum of $60,000 for loss of future earning capacity in light of [95], [99], [102], [110], [113]-[115] and [117] of the reasons and in otherwise not placing enough weight on the appellant’s ability to complete a Certificate III in Fitness and gain employment in that field and thereby not suffering a loss of future earning capacity. The respondent argues there should have been no award at all for loss of future earning capacity.
- [30]The appellant had the burden of proving at the trial the loss of her future earning capacity by reason of the injury she suffered in the incident: Medlin v State Government Insurance Commission (1995) 182 CLR 1, 3 and 21.
- [31]It is implicit in the findings made by the trial judge (at [89] and [117] of the reasons) that the trial judge has inferred from the appellant’s change in her career path to qualify as a fitness and group fitness instructor that will “require her to utilise more effort on her lumbar spine” that the appellant would not have undertaken that path unless the appellant was able to earn at least at a similar level to her earnings from her employment by the respondent before the accident. That was not an unreasonable inference in the circumstances, when it was for the appellant to adduce evidence that would otherwise have precluded that inference being drawn. It is also apparent that the findings set out (at [117]) are based, in part, on the trial judge’s assessment of the credibility of the appellant. It is not to the point that the trial judge’s assessment of the amount for loss of future earning capacity turns out to be comparable to the amount assessed for past economic loss. The assessment is consistent with the trial judge’s finding supported by Dr Todman’s report and the appellant’s completion of the Certificate III in Fitness in the year leading up to the trial that she had “a residual work capacity which will improve so long as her condition improves”.
- [32]The matters relied on by the appellant to challenge the assessment of loss of future earning capacity are largely concerned with the weight given by the trial judge to facts that are undisputed on this appeal. In light of the findings made by the trial judge, the appellant has failed to show that the assessment was neither within a proper exercise of the discretion to assess the loss of future earning capacity nor was it manifestly inadequate.
- [33]For similar reasons, the respondent cannot succeed on its challenge to the assessment which is also concerned with the weight given by the trial judge to facts that are undisputed on this appeal. The medical evidence that was unchallenged on the appeal was that the appellant sustained a seven per cent whole person impairment as a result of the injury to her lumbar spine. The assessment of the loss of earning capacity was for a future working life of 30 years and the basis for the assessment took into account all the matters that the respondent relies on to challenge the assessment on the appeal. The trial judge did not find that the appellant’s completion of the Certificate III in Fitness displaced Dr Todman’s opinion. The respondent has not shown that the assessment of the loss of future earning capacity was manifestly excessive in all the circumstances.
General damages
- [34]The trial judge found (at [89] of the reasons) that the appellant’s injury should be assessed under item 92 (Moderate thoracic or lumbar spine injury – soft tissue injury) of schedule 9 to the Workers’ Compensation and Rehabilitation Regulation 2014 (Qld). The trial judge awarded an ISV of 8 because of Dr Todman’s diagnosis and assessment of a seven per cent whole person impairment, but taking into account some of the evidence which the trial judge described (at [89]) as “contrary to the [appellant’s] complaints of pain in her back” and explained:
“For example, as was identified to me on behalf of the [respondent] which I accept as persuasive, the [appellant] asserted that she was restricted, among other things, in her ability to drive, yet she was able to drive 186km on two occasions for the purposes of having a massage at City Cave Caloundra on 16 March 2022, and for the purpose of purchasing some treatment oil on 28 March 2022. There was no evidence of the [appellant] complaining to her General Practitioner about any issues with driving these distances on these occasions. In addition, the [appellant’s] Facebook posts otherwise evidence her having travelled regularly to the Sunshine Coast and to northern New South Wales; not demonstrative of any significant ongoing issues with driving. There is also, in my view, an absence of sufficiently compelling evidence regarding treatment for ongoing back pain. I also remain circumspect with respect to the ongoing effects of the injury the [appellant] sustained as a consequence of attending a gym, irrespective of her view that it was for rehabilitation purposes. For me, a peculiar feature with the [appellant’s] evidence was that she has recently completed a Certificate III in Fitness from TAFE, which will permit her to work as a fitness instructor, which will inevitably require her to utilise more effort on her lumbar spine.”
- [35]The respondent had submitted at trial that the appellant’s injury should be assessed at an ISV of 5 and maintains that submission on the hearing of the appeal. It is not in dispute that item 92 was the appropriate item for the appellant’s injury. The comment in item 92 of the type of injury that falls within that item is:
“The injury will cause moderate permanent impairment, for which there is objective evidence, of the thoracic or lumbar spine.”
- [36]The comment in item 92 about the appropriate level of ISV is:
“An ISV of not more than 10 will be appropriate if there is a DPI of 8% caused by a soft tissue injury for which there is no radiological evidence.”
- [37]The range of ISVs for item 92 is 5 to 10.
- [38]The respondent submits that the trial judge erred in awarding an ISV of 8 in light of the matters stated in [89] of the reasons and that an ISV of 8 was manifestly excessive. Again, there is no challenge to any factual finding on which the trial judge based the selection of an ISV of 8. The trial judge’s reasoning was based on acceptance of Dr Todman’s diagnosis resulting in a seven per cent whole person impairment moderated for the factors identified by the trial judge (at [89] of the reasons) which the trial judge viewed as inconsistent with the appellant’s complaints of pain in her back. Once the respondent conceded that an ISV of 5 was appropriate for the injury, item 92 was the appropriate item and the selection of an ISV of 8 was within the range of ISVs for that item and explicable by reference to the matters identified by the trial judge (at [89]).
- [39]The respondent does not succeed on its cross appeal against general damages based on the trial judge’s assessment of the appellant’s injury under item 92 with an ISV of 8.
Orders
- [40]The appellant’s counsel sought leave in their written submissions for the appeal to make submissions on costs after the outcome of the appeal was known. It is therefore appropriate to give both parties the opportunity to make written submissions on costs.
- [41]The appellant has not succeeded on her appeal and the respondent has not succeeded on its cross appeal. The orders which should be made are:
- Appeal dismissed.
- Cross appeal dismissed.
- The costs of the appeal and the cross appeal are reserved to be decided on the papers.
- Any submissions on costs by the appellant must be made in writing within seven days of the date on which the reasons for judgment are published and must not exceed two A4 pages.
- Any submissions on costs by the respondent must be made in writing within seven days of the receipt by the respondent of the appellant’s submissions and must not exceed two A4 pages.