Appellant v Respondent

Supreme Court of Victoria|2010-09-21|Before: KAYE J

ACCIDENT COMPENSATION - Appeal from VCAT - Transport accident - Determination of level of impairment - AMA Guides to the Evaluation of Permanent Impairment (4th edition) - Assessment of lumbosacral impairment - Fractures of three lumbar vertebrae - Whether injuries constitute multilevel spine segment structural compromise within DRE Lumbosacral Category IV.

1 The issue in this case concerns the construction of a part of Chapter 3 of the 4th Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment ("the Guides"). The case comes before this Court on appeal by the Transport Accident Commission ("TAC") from the determination, by a member of the Victorian Civil and Administration Tribunal ("the Tribunal"), of the impairment of the respondent, Maara Serwylo.

2 Ms Serwylo is 26 years of age. On 16 December 2006, she was injured while participating in a volunteer art project creating a community mural. As she was bending down to write information about the project on a footpath, she was struck by a reversing motor vehicle, which was driven by her supervisor. She was knocked over and trapped underneath the vehicle. As a result of the accident, she sustained a number of injuries, including injuries to her lumbar spine and to her right knee, and psychological injury.

3 In January 2007, Ms Serwylo made a claim on the TAC for compensation arising out of the accident. In October 2008, TAC advised her that it had determined her degree of permanent whole person impairment at 20 percent. Ms Serwylo applied to the Tribunal to review that decision. On that application, the Tribunal determined that the decision of TAC, that Ms Serwylo's degree of permanent whole person impairment was 20 percent, be set aside, and be substituted with a determination by the Tribunal that Ms Serwylo's degree of permanent whole person impairment was determined at 34 percent. It is that decision which is the subject of the appeal in the present case.

4 In the proceedings before the Tribunal, it was common ground that Ms Serwylo's impairment relating to her psychiatric injury constituted a 12 percent primary impairment, and that her impairment as a result of her right knee injury constituted a 5 percent whole person impairment. There was also common ground in the medical evidence that, as a result of her accident, Ms Serwylo had suffered fractures of the superior end plate of the lumbar vertebrae at levels 2, 3 and 4 (namely, L 2, L 3 and L 4). The most serious fracture was a 10 percent compression fracture at the L 3 level, with the fractures at the L 2 and L 4 levels each being of a lower percent. As a result of her injury, Ms Serwylo continues to suffer lower back pain.

5 The area of disagreement before the Tribunal, and on appeal, concerns the categorisation of the level of impairment sustained by Ms Serwylo as a result of her injury to her lower back. On behalf of Ms Serwylo, it was submitted that her back injury should be classified, according to the Guides, as "DRE Lumbosacral Category IV: Loss of Motion Segment Integrity" ("Category IV"), which would produce a 20 percent whole person impairment assessment. On the other hand, it was submitted on behalf of TAC that Ms Serwylo's impairment should be classified, according to the Guides, as "DRE Lumbosacral Category II: Minor Impairment" ("Category II"). The Tribunal upheld the submissions made on behalf of Ms Serwylo, and accordingly determined that her degree of whole person impairment, in relation to her lower back injury, was to be assessed at 20 percent.

6 The legislative framework, in which the Guides operate, has been discussed in a number of previous decisions of this Court[1], and I shall not rehearse it in detail. Section 47 of the Transport Accident Act provides for the payment of an "impairment benefit" to persons, who the Commission has determined have suffered a degree of impairment of more than 10 per centum as a result of a transport accident. Those benefits are paid on a scale according to the degree of impairment sustained. Section 46A(2)(a)(i) requires that the Commission determine the degree of impairment in accordance with the 4th edition of the Guides.

7 The Guides contain 15 chapters. Chapter 3 is entitled "The Musculoskeletal System". Section 3.3(g) provides for the assessment of lumbosacral spine impairment. That section prescribes eight categories of impairment, ranging from the lowest category (Category I), which is assessed at nil per centum whole person impairment, to the eighth category (paraplegia, total loss of lumbosacral spinal cord function), which is assessed at 75 per centum whole person impairment. Each of the eight categories are entitled "DRE Lumbosacral Category (number)". The acronym "DRE" denotes "Diagnosis Related Estimate".

8 The eight categories each contain two subsections. The first subsection is entitled "Description and Verification". That subsection sets out the relevant medical indicia of the impairment within the particular category. The second subsection of each category is entitled "Structural Inclusions". The Guides[2] state that if the patient has a condition which corresponds with a structural inclusion, the physician need not determine if the criteria, stated in the "Description and Verification" section, are present; the condition automatically falls within the particular category. The Guides further provide that if the patient demonstrates the structural inclusions of two categories, the physician should place the patient in the category with the higher impairment percentage.

9 The second and fourth categories of section 3.3(g) ("Category II" and "Category IV" respectively), which are in issue in this case, are defined as follows:

"DRE Lumbosacral Category II: Minor Impairment

Description and verification: The clinical history and examination findings are compatible with a specific injury or illness. The findings may include significant intermittent or continuous muscle guarding that has been observed and documented by a physician, non-uniform loss of range of motion ... or nonverifiable radicular complaints. There is no objective sign of radiculopathy and no loss of structural integrity ...

Structural inclusions: (1) less than 25 percent compression of one vertebral body; (2) posterior element fracture without dislocation (not developmental spondyloslysis); the fracture is healed, and there is no loss of motion segment integrity.

A spinous or transverse process fracture with displacement without a vertebral body fracture is a category II impairment because it does not disrupt the spinal canal.

Impairment: 5 percent whole-person impairment.

...

DRE Lumbosacral Category IV: Loss of Motion Segment Integrity

Description and verification: The patient has loss of motion segment integrity ... Loss of motion segment or structural integrity is defined as at least 5 mm of translation of one vertebra on another, or angular motion at the involved motion segment that is 11 degrees more than that at an adjacent motion segment ... Loss of structural integrity at the lumbosacral joint is defined as at least 15 degrees more angular motion than at the L 4 and L 5 motion segment.

A documented history of muscle guarding and pain is present. Neurologic abnormalities need not be present. If they are present, the examiner should consider using category V.

Structural inclusions: (1) greater than 50 percent compression of one vertebral body without residual neurologic compromise; (2) multilevel spine segment structural compromise, as with fractures or dislocations, without residual neurologic motor compromise.

Impairment: 20 percent whole person impairment."

10 The dispute in this case, whether Ms Serwylo's impairment falls within Category II or Category IV, was the subject of competing views expressed on that matter by three orthopaedic surgeons, who had examined Ms Serwylo for the purposes of her impairment assessment. Mr Stephen Doig and Mr Peter Moran each expressed the view that Ms Serwylo's impairment does qualify for inclusion in Category IV. On the other hand, Mr Michael Shannon, who examined Ms Serwylo on behalf of the TAC, was of the opinion that her impairment does not fall within the definition of Category IV impairment, but, rather, that it constitutes a Category II impairment.

11 All three orthopaedic surgeons agreed that, in the absence of x-rays of Ms Serwylo's spine in flexion and extension, there was no basis for concluding that there was a "loss of motion segment or structural integrity", as defined in Category IV under the subheading "Description and Verification". However, they differed on whether the injury sustained by Ms Serwylo, and her consequent impairment, could be properly characterised as "multilevel spine segment structural compromise" for the purposes of Category IV. In short, Mr Doig and Mr Moran each considered that three level compression fractures of the lumbar vertebrae constitute multilevel spine segment structural compromise of the lumbosacral spine. On the other hand, Mr Shannon was of the view that, in order that there be structural compromise of the lumbosacral spine associated with multilevel fractures, there would need to be particularly significant compression fractures, or, alternatively, fractures which involve the posterior elements of the spine.

12 In order to properly understand the nature of the dispute, it is necessary to set out, in brief detail, the evidence of the three medical practitioners.

13 Mr Doig examined Ms Serwylo in December 2007. He noted that the CT scan, taken on 28 December 2006, revealed multiple superior end plate fractures of the lumbar spine. Accordingly, as she had sustained multilevel fractures, he considered that the appropriate category of her impairment was Category IV under the Guides. He considered that Category II did not apply, because the first element of "Structural Inclusions" relates to the compression of one vertebral body, which was not the case here, as Ms Serwylo had sustained fractures at three vertebral levels. He said that such injuries are placed within Category IV, because fractures at multiple levels imply a greater degree of damage to the spine than if only one vertebral body is involved. In particular, he explained that the level of force required to produce compression fractures to the end plates of the three vertebral bodies would have involved a significant degree of impact. Mr Doig stated that Category IV is a very wide definition, which might cover a wide spectrum of cases. However, he considered that the fact that Ms Serwylo had sustained fractures at three vertebral levels qualified her for inclusion in Category IV.

14 Mr Moran examined Ms Serwylo in August 2009. He expressed similar views to those of Mr Doig. In essence, he noted the results of the CT scan, and Ms Serwylo's complaint of ongoing lower back pain. He considered that because she had three separate vertebral fractures, she qualified under the definition of Structural Inclusions (2) in Category IV. When asked why multilevel fractures were sufficiently serious to justify inclusion in Category IV, he responded that such fractures involve a greater amount of energy exerted on the spine in terms of the deforming forces than would occur with a fracture involving a single vertebra. He rejected the suggestion, in cross-examination, that the injury might fit within Category II, because, like Mr Doig, he construed Category II as being confined to a fracture involving one vertebral body only.

15 Mr Shannon examined Ms Serwylo in July 2008. He considered that Ms Serwylo did not qualify for inclusion in Category IV, because the fractures to the superior end plates of the L 3, L 4 and L 5 vertebrae were minor, and, as such, did not constitute spine segment structural compromise. He considered that in order to qualify for inclusion in Category IV, there must be some significant structural compromise of the spine resulting from the fractures. He stated that in order that there be structural compromise of the spine, there must be demonstrated to be something which disrupts, or has a real capacity to disrupt, the spinal canal, or the ability of the spine to provide postural support. No such disruption was evident in the case in Ms Serwylo. On the other hand, he considered that her injury qualified her for inclusion in Category II.

16 In his reasons dated 18 February 2010, the Tribunal member summarised the competing views expressed by the medical practitioners, to which I have referred. He noted that the question was whether Ms Serwylo's injury should be classified as Category II or Category IV. His reasons for deciding in favour of the latter categorisation are contained in the following passage:

"60 It is of paramount importance to be faithful to the plain words used by the text.

61 In my opinion, the 'plainest' ordinary meaning of the central text is that where the person suffers 'less than 25 percent compression of one vertebral body' then the injury may be classified as category II. Where the person suffers 'fractures' (compression to more than one vertebral body), then the injury may be classified as category IV as the condition can be said to fit within Structural Inclusion (2).

62 I do not accept that I should regard the absence of the word 'only', following 'one' in category II, Structural Inclusion (1) as inviting an interpretation that one does not mean one, singular. In plain language, one usually means one.

63 The contrary approach, as expressed by Mr Shannon, has its attractions, if I accept his view that Ms Serwylo's injury is quite minor by comparison with category III and certainly quite minor with all the other descriptors for category IV.

64 While in my view, Mr Shannon's opinion is cogent, in the face of the contrary expert opinion, I do not accept it."

17 The appeal by TAC is brought by leave pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998. The notice of appeal contains four grounds of appeal. The first three grounds of appeal allege that the Tribunal erred in holding that, because Ms Serwylo had suffered fractures of more than one vertebra, then, without more, her impairment could be classified under Category IV. In particular, the grounds allege that, in the absence of evidence of permanent compromise of the ability of the spine to provide structural support, it was not open to the Tribunal to find impairment according to Category IV. Alternatively, the fourth ground alleges that the reasons for decision of the Tribunal do not adequately disclose the reasoning supporting the finding that Ms Serwylo's level of impairment of her lumbar spine comes within Category IV.

18 Mr M Wheelahan SC, who appeared with Mr D Masel for the appellant TAC, submitted that the Tribunal erred in holding that multiple fractures of the lumbosacral spine, without more, constituted a multilevel spine segment structural compromise for the purposes of structural inclusion (2) of Category IV. He submitted that, on their proper construction, the words "as with" are intended to be illustrative of an association, conjunction or combination, but they do not operate to deem that two or more fractures, however minor, of the lumbosacral spine, constitute a structural compromise of it.

19 Mr Wheelahan contended that it is important to construe Structural Inclusion (2) in the context of the whole of Category IV. He noted that in order to fit within the section entitled "Description and Verification" of Category IV, there must be demonstrated to be a loss of motion segment, or structural integrity, of some significance. In that respect, he referred me to the evidence of Mr Shannon, who stated that the degree of instability, specified in that section of Category IV, was quite substantial. Similarly, Mr Wheelahan submitted that Structural Inclusion (1) equally denoted a significant injury sustained to the lumbosacral spine. Mr Shannon described a compression of one vertebral body of more than 50 percent as being a significant injury. By contrast, notwithstanding that Ms Serwylo had sustained fractures to three vertebrae, Mr Wheelahan pointed out that the vertebra which was most injured, namely level 3, had sustained less than 10 percent compression. He submitted that in the context of Category IV, it would be anomalous if it was intended that injuries, such as those sustained by Ms Serwylo, were to fit within the same category as the serious injuries, which are denoted both by the "Description and Verification" section of that category, and also by Structural Inclusion (1).

20 Mr Wheelahan submitted that the basic error of the member of the Tribunal is to be found in his construction of the phrase "as with" in Structural Inclusion (2). Mr Wheelahan submitted that, on its proper construction, that phrase is intended to be simply illustrative of an association, conjunction or combination which might, but not necessarily does, constitute multilevel spine segment structural compromise. He submitted that the controlling condition, which engages Structural Inclusion (2) of Category IV, is to be found in the existence of multilevel spine segment structural compromise. The phrase "as with" is not intended to be a "deeming" provision, but, rather, an example of circumstances, in which such compromise of the spinal structure might be found to have occurred.

21 Mr Wheelahan submitted, further, that the construction favoured by the Tribunal could, in an appropriate case, work an injustice against entitlement of a person who had sustained injury as a result of a transport accident. If such a person had a pre-existing injury of the kind sustained by Ms Serwylo, he submitted that the construction relied on by the Tribunal would result in an unfairly high assessment of the pre-existing impairment of that person, and thus might unfairly reduce that person's impairment benefit.

22 In response, Mr I Freckelton SC, who appeared with Mr N Dubrow for the respondent Ms Serwylo, submitted that the Tribunal did not err in concluding that Ms Serwylo had sustained a Category IV permanent impairment of her lumbosacral spine. He submitted that the phrase "as with" in Structural Inclusion (2) had the effect that injuries, consisting of fractures of more than one lumbar vertebrae, constitute multilevel spinal segment structural compromise within Category IV. By reference to the Oxford Dictionary and the Macquarie Dictionary, he submitted that the word "compromise" should be construed to mean to "endanger", "make liable to danger" or "place in peril". He submitted, therefore, that it is not necessary, in order that an impairment qualify under Category IV, for there to be actual disruption of the spinal structure; rather, it is sufficient that there be injuries, such as fractures at two levels, which potentially imperil, and thus compromise, that structure.

23 In that context, Dr Freckelton referred to the evidence of Ms Serwylo as to the effect of her lower back injury on her day-to-day life, including her capacity to make simple movements such as bending, twisting and lifting, and her complaint of constant pain and stiffness in her lower back. He also referred to the evidence of Mr Doig and Mr Moran, who both expressed the view that a substantial degree of trauma would be necessary in order to cause multilevel fractures of the vertebrae of the lumbar spine. Thus, he submitted that, insofar as the context of Category IV is relevant, the injury sustained by Ms Serwylo was not minor, but, rather, was a injury of some substance.

24 Dr Freckelton pointed out that the Guides were intended to provide for an objective and precise method of determining impairment. Thus, he submitted, it is understandable that the authors of the Guides would stipulate that injuries, such as multilevel fractures or dislocations, would, per se, constitute multilevel spine segment structural compromise for the purpose of Structural Inclusion (2). Dr Freckelton submitted that if the construction contended for by the appellant were accepted, determinations involving Category IV would involve a significant degree of subjective judgment by assessing practitioners. Thus, he submitted that such a construction would be inconsistent with the primary aim of the Guides, namely, to provide for objectivity and certainty in impairment assessments.

25 The principles governing the construction of the Guides are now well established. They were helpfully summarised by Kyrou J in H J Heinz Company Australia Limited & Anor v Kotzman & Ors[3]. For the purposes of the present appeal, the following principles are relevant:

(1) The construction of the Guides is a question of law[4]. On the other hand, the determination of a level of impairment, according to the Guides, is a question of fact[5].

(2) The rationale of the Guides is to make as objective as possible the process of estimating impairment, and, thereby, to promote precision, certainty and consistency.[6]

(3) However, on the other hand, the Guides have been written, not by statutory draftspersons, but by medical practitioners, who are expert specialists in the various fields covered by the Guides. As their title accurately suggests, they are "guides". They are designed to be applied by medical practitioners in expressing their factual opinion as to the degree of impairments in a particular case. For that reason, it is important that the Guides not be burdened with a legalistic interpretation which would render them a legal "minefield", thus depriving them of utility to both doctors and lawyers.[7]

26 The issue which I need to determine on this appeal is quite narrow. In essence, it turns on the meaning of the phrase "as with fractures" in Structural Inclusion (2) of Category IV. The critical question is whether (as contended by the respondent) that phrase denotes instances of conditions which are cases of multilevel spine segment structural compromise, or whether (as contended by the appellant) it denotes instances of conditions which might constitute multilevel spine segment structural compromise.

27 Although the question is both short and confined, it is not susceptible of a simple clear cut answer. Ultimately, the resolution of the question depends on the objectively ascertained intention of the authors of the relevant section of the Guides. In seeking to ascertain that intention, it is important to bear in mind the principles, to which I have already referred. In particular, caution needs to be exercised in comparing similar, or different, phrases used in the Guides, and drawing conclusions from any such comparison. As I have already observed, the Guides were not drawn by statutory draftspersons, nor were they expressed with the precision of language adopted in statutes. Rather, in seeking to determine the intention of the relevant phrase in question, it is important to seek to understand the intended function and purpose of that phrase in the Structural Inclusion in Category IV.

28 In considering that question, the competing submissions advanced by each side do have some force. In particular, as Mr Wheelahan pointed out, the context in which Structural Inclusion (2) occurs does have some significance. That context raises a question whether the authors intended that all patients, who sustain fractures at more than one level of the lumbar spine, are to be considered to have sustained multilevel spine segment structural compromise. As Mr Wheelahan pointed out, and based on the evidence of Mr Shannon, the loss of motion segment, which is prescribed under the section "Description and Verification", and the percentage compression of one vertebral body described in Structural Inclusion (1), each denote significant injury to the lumbar spine. Thus, there is some force in the proposition advanced by Mr Wheelahan that the authors would not have intended that any case of multilevel fractures, no matter how minor, would, without more, be deemed to constitute multilevel spine segment structural compromise.

29 Notwithstanding the force of that submission advanced on behalf of the appellant, in my view there are three principal points which tend in favour of the argument advanced by Dr Freckelton on behalf of the appellant. The starting point for consideration is to be found in the language actually used by the authors of the particular section of the Guides. The phrase "as with" is, of course, potentially ambiguous, and it is that ambiguity which has given rise to the dispute on this appeal. However, in my view, as a matter of plain English, that phrase is more appropriate when used to denote instances which do - and not just which might - constitute instances of multilevel spine segment structural compromise. If the authors had intended that phrase to denote instances of conditions which might - but not necessarily do - constitute the relevant compromise, the authors could have simply drafted the phrase to read: "as might occur with fractures ... ". The fact that no such qualification was stated in the phrase tends to support of the proposition advanced on behalf of the appellant.

30 The view, which I have just expressed as to the use of the phrase "as with", would not, standing alone, be a sufficient basis upon which to reach a conclusion as to the Structural Inclusion (2). However it is allied to two further points, which are of greater significance. First, if the construction of Structural Inclusion (2) contended for by the appellant is correct, then it is not clear why the authors of that section of the Guides considered it necessary, or indeed relevant, to include a reference to fractures or dislocations in Structural Inclusion (2). It must be borne in mind that the Guides were written primarily for the application and use by medical practitioners. It is true that, under s 46A of the Transport Accident Act, it is the TAC which makes the relevant determination of impairment. However, the Guides themselves were directed to medical practitioners. So much is clear from the first page of the Guides, which expressly states that the Guides provide "... a standard framework and method of analysis through which physicians can evaluate, report on, and communicate information about the impairments of any human organ system".

31 That being so, it is not clear why the authors of the Guides would deem it necessary to expressly specify fractures or dislocations as instances of conditions which might constitute multilevel spine segment structural compromise. The meaning of that phrase has given rise to some controversy in this case. However, whatever meaning may be ascribed to it, there is no reason why it would be necessary for the authors of the Guides to inform medical practitioners, to whom the Guides are addressed, that fractures or dislocations might constitute a multilevel spine segment structural compromise. Rather, it would only be material to include the phrase "as with fractures ..." in the Guides, if it was intended that that phrase denoted a condition which does - as distinct from might - constitute multilevel spine segment structural compromise.

32 That point gives rise to a second factor, which supports the construction contended for by the respondent. As the authorities, to which I have already referred, make plain, the object of the Guides is to provide to medical practitioners and others an objective means of assessing the degree of impairment of a particular patient. As the competing views of Mr Moran and Mr Shannon demonstrate, the phrase "multilevel spine segment structural compromise" does, at least arguably, lack a degree of precision. In such a case, it is understandable that the authors would see fit to include in Structural Inclusion (2) specific examples of conditions which do - and not just might - constitute such a structural compromise.

33 Indeed, a similar use of examples occurs in Category III, which is entitled "Radiculopathy". The "Description and Verification" of that section requires that the patient have "significant signs of radiculopathy, such as loss of relevant reflex(es) ... ". The phrase "significant signs of radiculopathy" involves an exercise of judgment, and, as such, has a degree of imprecision about it. It is significant that, in such a case, the authors have proceeded to give a relevant example of such a condition (the loss of relevant reflex(es)). Likewise, in Structural Inclusion (2) of Category IV, the phrase "multilevel spine segment structural compromise" does involve a degree of judgment. It is understandable that the authors would, similarly, wish to invest it with some precision, by providing examples of cases which do constitute such a compromise, namely, fractures or dislocations.

34 The conclusion which I have thus reached is, at least to some extent, fortified by the evident scheme of the Structural Inclusions for categories II, III and IV. Category II, which I have set out above, provides for Structural Inclusions consisting of either a compression of one vertebral body of less than 25 percent, or a posterior element fracture without dislocation, which is healed, with no loss of motion segment integrity. The Structural Inclusions for Category III include, first, 25 percent to 50 percent compression of one vertebral body, and, secondly, posterior element fracture with displacement disrupting the spinal canal, which is healed without loss of structural integrity; radiculopathy may or may not be present. Thus, it can be seen that Structural Inclusion (1) of Categories II, III and IV each comprise a specified percentage compression of one vertebral body. Structural Inclusion (2) of the same categories are concerned with particular grades of fracture or (in the case of Category IV) dislocation. In order to qualify for Structural Inclusion (2) of Category IV, there must be fractures or dislocations at more than one level. It is that element which differentiates Structural Inclusion (2) of Category IV from the corresponding Structural Inclusion in Categories II and III. In that way, that gradation of injury in Structural Inclusion (2) for Categories II, III and IV does lend support to the submission, made by Dr Freckelton for the respondent, that the scheme of sections 3.3(g) of the Guides favours the construction of Statutory Inclusion (2) of Category IV - that fractures or dislocations of more than one spinal segment are, by their nature, instances of multilevel spine segment structural compromise.

35 As I have stated, the construction of the Guides is a question of law. The competing views expressed in evidence by the three specialist medical practitioners were a product, in part, of their differing constructions of the phrase "as with" in Structural Inclusion (2), but were also informed by matters of medical science, in which they have appropriate expertise. In essence, the competing views of the three practitioners very much mirrored the legal debate which was conducted in the Tribunal and in this Court. Mr Doig and Mr Moran construed Structural Inclusion (2) to the effect that if a patient had multilevel lumbar spinal fractures, such a condition, without more, qualified the patient for inclusion in Category IV. By contrast, Mr Shannon was affected by the context of Category IV, and, in particular, by the type and nature of injury, which would qualify for inclusion in the section entitled "Description and Verification" and in Structural Inclusion (1).

36 Setting aside the differing constructions by the medical practitioners of Structural Inclusion (2) of Category IV, nevertheless their evidence does reflect some common ground on the matters of medical science, which are relevant for understanding Category IV. In particular, Mr Shannon agreed, in cross-examination, with Mr Doig and Mr Moran that there is a particular significance to a multiplicity of fractures of the lumbar spine, as distinct from an injury involving the fracture of one segment. Mr Moran stated that the principal function of the spine is to protect the spinal canal. He explained that any fracture, which is capable of detection, must, by its nature, involve some degree of displacement. That evidence, of itself, tends in support of the proposition that multilevel fractures, per se, involve some degree of compromise of the lumbar spine. Indeed, Mr Shannon, on a number of occasions in his evidence, expressed the view that the injuries sustained by Ms Serwylo did not qualify under Structural Inclusion (2), because they did not involve "significant" compromise of the lumbar spine.[8] It was at least implicit, if not explicit, in the evidence of Mr Shannon, that to qualify under Structural Inclusion (2), any fracture (or indeed dislocation) must involve "significant" compromise. Mr Shannon's view in that respect stemmed from the context of Category IV, and in particular from the circumstance that the other injuries designated under "Description and Verification" and Structural Inclusion (1) each involved particularly significant compromise of the spine.

37 The evidence to which I have just referred is by no means conclusive. Because of the focus of the debate in the Tribunal, detailed attention was not paid to the structural role of the spine, and to the inherent effect of any fracture or dislocation of the spine in the context of that role. However, the evidence to which I have referred is, at least, consistent with the conclusion which I have otherwise reached, namely, that on the proper construction of Structural Inclusion (2), fractures or dislocations at multiple levels of the lumbar spine are, per se, instances of multilevel spine segment structural compromise for the purposes of that Structural Inclusion.

38 For the foregoing reasons, I have reached the conclusion that the Tribunal did not make an error in law in its construction of DRE Lumbosacral Category IV of the Guides. Accordingly, the Tribunal did not err in determining that the impairment of the respondent's lumbosacral spine constituted DRE Lumbosacral Category IV of Chapter 3.3 of the Guides.

39 The fourth ground of appeal, contained in the notice of appeal, alleges that the Tribunal member failed to provide adequate reasons for his decision. In the course of submissions, Mr Wheelahan stated that that ground is only relevant if, on a construction of his reasons, the member determined that the respondent had multiple spine segment structural compromise, without referring to the phrase "as with fractures or dislocations ... ". It is clear from his reasons that the member of the Tribunal did not embark on any such consideration. Rather, he adopted the reasoning, which I have upheld, that multilevel fractures (or dislocations) are specific instances of injuries which, by their nature, constitute multilevel spine segment structural compromise for the purposes of Structural Inclusion (2). I should add that if I had upheld the submissions of the appellant in relation to the construction of Structural Inclusion (2), it was common ground between the parties that I should remit the case for further hearing before the Tribunal, so that more detailed evidence could be adduced as to the structural role of the lumbar spine, and as to whether that role has been or was compromised by the fractures sustained by the respondent.

40 From the foregoing, it follows that the appeal should be dismissed. Pursuant to the orders made by consent by Associate Justice Zammit, the appellant will pay the respondent's solicitor/client costs of the proceeding, including reserved costs.

[1] See for example Transport Accident Commission v Elworthy [2007] VSC 48; HJ Heinz Company Australia Limited & Anor v Kotzman & Anor [2009] VSC 311.

[3] [2009] VSC 311, [24]-[28].

[4] Barnett v Transport Accident Commission [1999] VSC 484, [30] (Mandie J); affirmed on appeal Barnett v Transport Accident Commission [2001] VSCA 12.

[5] Gillat v Transport Accident Commission [2003] VSC 15, [27] (Nettle J).

[6] Gillat v Transport Accident Commission, [47]; Transport Accident Commission v Elworthy [2007] VSC 48, [20].

[7] Lake v Transport Accident Commission [1998] 1 VR 616, 626 (J D Phillips JA).

[8] See transcript of hearing before VCAT; T 58, 59, 66, 71.

Civil and Administrative Tribunal Act 1998

At a glance

Court

Decision date

Before

Source

Judgment (54 paragraphs)

Parties

Legislation Cited (1)