Zivolic: Physical v Psychological contributions to injury
A recent MPOL Muse article discussed the case of Stamboulakis and the Court's decision that a Serious Injury application under S134 AB for physical injury only must exclude evidence that relates to any psychological component arising from the physical injury.
The case of Zivolic was heard in the Court of Appeal last year and the judgement reinforced the previous Stamboulakis decision. The Court of Appeal upheld the trial Judge's decision that for an application in respect of physical injuries, it is the plaintiff's responsibility to persuade the court that the consequences of the physical injury satisfy the statutory criteria. The medical evidence revealed symptoms which were partly psychological in origin, therefore the question for the judge was whether the evidence enabled him to be satisfied that the physical symptoms alone qualified as a Serious Injury under the Act.
In the case of Zivolic, the plaintiff's own medical evidence had not attempted to unravel the physical and psychological components of the injury. All vocational assessments for the plaintiff relied upon all of the plaintiff's physical and psychological symptoms, not just the physical ones. It was also put to the Court by the defendant that the plaintiff's symptoms were more in keeping with chronic pain syndrome than with an ongoing rotator cuff pathology.
The Court of Appeal decided, therefore, that without evidence which could ‘disentangle' the physical and psychological components, they were not persuaded in this case that there was a serious injury under the Act.
Justice Redlich went on to say that it is not for vocational assessors to ‘disentangle' causes - they are there to assess the total incapacity and determine vocational opportunities given that total incapacity. It is for the medical practitioners and other witnesses to provide evidence regarding the nature, extent and origin of the injuries.