Bezzina v Phi & Anor [2012] VSCA 161

1 On 4 March 2006, Mr Ricky Bezzina, the applicant, was involved in a transport accident at the intersection of the Western Highway and Robertson Road, Deer Park. The applicant was turning his motor vehicle right from Robertson Road onto the Western Highway when it was struck by a vehicle driven by Mr Trung Phi, the first respondent. Mr Phi had run a red light. One result of the accident was that the applicant's car was so badly damaged that it was written off. Another was that the applicant was taken by ambulance to the Western Hospital and admitted overnight.

2 The hospital diagnosed a sprain or strain of the right shoulder. An X-ray showed a dislocation of the right acromio-clavicular joint in the right shoulder and an indication of disruption of the coracoid clavicular ligament but no fracture of the clavicle. The applicant also noticed neck pain, although his initial concerns were mainly with his shoulder.

3 By an originating motion filed in the County Court on 12 April 2010, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 ('the Act'), to bring proceedings at common law against the first respondent.[1] The application was heard by Judge Cohen on 15, 16 and 24 March 2011. At the hearing of the application, the applicant relied upon paragraph (a) of the definition of 'serious injury' in s 93(17) - namely, 'serious long-term impairment or loss of a body function'. The body functions relied upon by the applicant were the functions of the right shoulder and the cervical spine.

4 On the hearing of the application, the applicant relied upon affidavits sworn by himself and his wife, and upon various correspondence, medical reports and other medical material together with graphs charting Oxycontin dosages, and a Transport Accident Commission printout of payments. Viva voce evidence was given by the applicant, by his wife and by a treating general practitioner, Dr Soloczynskyj. The remainder of the evidence constituted exhibits from the court books tendered without objection, including certain medical records, statements, correspondence, a claim for compensation in respect of an earlier injury and two DVDs of surveillance of the plaintiff conducted in the months of January, February and March 2011.

5 On 27 April 2011, Judge Cohen dismissed the applicant's application.

6 The applicant now seeks leave to appeal to this Court. Leave is required because the order below was an order in an interlocutory application within the meaning of s 74(2D) of the County Court Act 1958.[2]

7 On 8 September 2011, Lansdowne AsJ ordered the applicant's application for leave to appeal to be brought on for hearing before the court that will hear the appeal if leave is granted. This is the hearing of the applicant's application for leave to appeal.

8 A summary of the proceedings, the facts and the issues has been prepared by the applicant.[3] The following outline is drawn from that document.

9 The applicant was born on 1 January 1973 and is the father of six children. He left school at age 15, having completed Year 8 level. After leaving school, he worked as a service station attendant and console operator for approximately three years at BP and Caltex Service Stations. His next job was as a machine operator for McIntyre Steel Industries for two years, followed by 18 months as a storeman for Purple Pig in McIntyre Road, Sunshine. The applicant was then employed as a process worker/labourer for about eight months with Feature Finishing in Tullamarine before working for about three and a half years as a delivery driver for Supergas in Fairburn Road, Sunshine.

10 On 7 July 1999, in the course of his employment with Supergas, the applicant suffered a spinal injury while lifting a gas bottle weighing approximately 45 kilograms. Despite medical and rehabilitation treatment, and attempts at returning to employment, he has subsequently remained in receipt of a disability pension by reason of the injuries he then sustained.

11 Following his transport accident, the applicant was discharged from the Western Hospital on 5 March 2006. He later consulted his general practitioner, Dr Soloczynskyj, who referred him for X-rays which were taken on 6 March, the day after his discharge. While the results showed that the shoulder joint itself was normal, they also revealed sub-luxation and a bony fragment, thought to be from the acromion. These injuries were treated conservatively. Further X-rays of the cervical spine were performed on 3 November 2006. These demonstrated early disc degeneration at C5-6 level. The emergence of symptoms in the left shoulder led to an X-ray on 20 November 2006, which revealed some early degenerative change in the left acromio-clavicular joint.

12 On 9 January 2007, a CT scan was performed and demonstrated very slight disc space narrowing at C5-6 level with a very mild disc bulge − but no other significant abnormality.

13 The applicant was referral to a neurologist, Dr Matkovic, who arranged for an MRI scan of the cervical spine which was performed on 31 March 2008 and demonstrated no evidence of disc herniation. It was thought that the applicant's left shoulder and upper limb problems were related to a cervical spine injury.

14 Before the accident, the applicant had been prescribed morphine in the form of Oxycontin over an extended period of time. For a period after the accident, Dr Soloczynskyj increased its dosage. In the longer term, the applicant has continued to use Oxycontin, Panamax as required, Feldene Gel and a TENS machine.

15 In her judgment, Judge Cohen set out both the issues which arose in the application before her, and the test to be applied. Her Honour then conducted a detailed analysis of the evidence before coming to her conclusions. With respect to the right shoulder injury, her Honour said:[4]

I am satisfied that as a result of the injury to his right shoulder the plaintiff does experience pain in an area where he had not experienced it before, and that this imposes some restriction on movements of his right arm and shoulder. However, the range of movement on testing by doctors is not greatly restricted, he has told them that most function returned, and he can use his right dominant arm for most purposes if he is careful or moderates his movements. I accept that at times if he aggravates it the pain can be severe and cause him to 'go white', but I am not satisfied that it is usually debilitating pain as described by his counsel. I accept that it probably interferes with sleeping on his right side, and that may interrupt his sleep if he turns onto it, but part of the sleep disturbance as described is still attributable to the pre-existing low back pain and left leg pain.

I accept that the area over the dislocated joint remains tender and sensitive to touch. The distortion itself he says causes him some embarrassment, but this does not stop him dressing in singlet-type tops, when in company with his children in the drive and garden.

I find that the impact of the right shoulder injury on the plaintiff has been significant and is likely to be long term. The difficulty in this case is in assessing whether the degree of impairment it causes can be fairly described as more than significant or at least very considerable, when superimposed on an already very modified and limited lifestyle due to pre-existing conditions. As it has not impacted on his earning capacity, and as there are very few changes in the mode and parameter of his activities since the accident, I am not satisfied on the evidence that he reaches that test in respect of his right shoulder.[5]

16 When considering the injury to the applicant's neck, her Honour said:[6]

So far as his neck injury is concerned, I accept that there is pain of a type he had not previously suffered, but I find that it is intermittent, and that referred pain into his left shoulder or shooting into his left arm is also intermittent. I accept that when driving, which he does not do often, and only locally, he has difficulty turning his neck to reverse, and relies on his children if in the car to be 'lookout' when he is reversing. I also accept that if his left arm is 'playing up' he has difficulty if in the manual car changing gear and needs to lean across with his right arm. However as the family still runs two cars, and one is automatic, and his wife says they are very rarely out in separate cars, (and the left arm is not always 'playing up') I do not regard that limitation as of frequent significance.

I am not satisfied that the injury to the plaintiff's neck causes any significant distinct limitations on any other activities than driving, and in particular not beyond the consideration limitations from his pre-existing back condition.[7]

I am satisfied that Mr Bezzina suffered an injury to his right shoulder, and an injury to his neck, which have caused ongoing symptoms for him which result in long term impairment to the function of his right shoulder and to the function of his neck. However, I am not satisfied that the extent of the consequences of either of those injuries, when compared with other possible impairments of body function, can be fairly described as very considerable in respect of either injury. His application is therefore dismissed.

18 There are six proposed grounds of appeal. They may be summarised under four heads. First, it is asserted that her Honour's reasoning is inadequate, particularly in that in her judgment the judge failed 'to disclose an adequate path of reasoning'. Secondly, the applicant claims that her Honour applied the wrong test in determining the application. Thirdly, it is said that her Honour erred in attempting to assess the applicant's increased impairment over that for which his workplace injuries are responsible 'in the absence of an appropriate body of evidence as to the nature, extent and current status of such pre-existing injuries, or as to any impairment in daily functioning caused by such pre-existing injuries.' Fourthly, it is said that the judge erred in attempting to assess any increase in the prescription of analgesic medication as a result of the transport accident 'whilst failing to assess adequately or at all the symptomatic benefits to the applicant of the dosage of ... analgesic medication regularly ingested by him by reason of a pre-existing lumbar spine injury.'

19 In answer to the applicant's submissions, the first respondent contends that her Honour applied the correct test and made no incorrect assessments. The first respondent also submits that there was no inadequacy in her Honour's reasons.

20 While there was a complaint in the applicant's written submissions concerning the way in which her Honour dealt with a credit issue at paragraph [8] of the reasons below, as was fairly conceded by the applicant, '[i]ssues of credit do not appear to have impacted on the decision of the trial judge, and it appears that the applicant's evidence as to pain and suffering consequences was accepted'. In any event (and we think correctly), the applicant makes no complaint in his proposed notice of appeal in relation to the way her Honour dealt with this credit issue.

21 In the judgment below, her Honour correctly set out the test to be applied when determining whether an injury constitutes a 'serious injury' under paragraph (a) of the definition of 'serious injury' in s 93(17) of the Act. Her Honour correctly identified the question as whether the injury and its consequences, when judged in comparison with other cases in the range of possible impairments or losses of function, can fairly be described as at least 'very considerable' and more than 'significant' or 'marked'.[9]

22 The complaint the applicant makes concerns her Honour's treatment of the spinal injuries suffered by the applicant in July 1999 during the course of his employment with Supergas. Specifically, the applicant submits that her Honour erred 'in assessing the two serious injuries upon which the applicant relied through the prism of a pre-existing lumbar spine impairment'. The applicant's submissions went on:

It is submitted that there is no warrant in the Transport Accident Act 1986 or relevant authorities for the erroneous test which the trial judge applied. Petkovski v Galletti [1994] 1 VR 435, 443-444 is perhaps the closest in point of principle, but that decision concerns the approach to be adopted when the claimed serious injury is an aggravation of a pre-existing injury to the same body function, as opposed to a new injury.

23 There is nothing in this submission. In assessing whether each claimed serious injury satisfied the 'very considerable' test, her Honour was required to examine the impact of the injury on the applicant as a whole. Far from her Honour's approach being erroneous, her Honour was bound, when examining the consequences of the claimed serious injury, to look at how they affected the applicant as he was and would likely have been absent the injuries he sustained in the transport accident.[10] This included looking at and considering the effect (and likely effect in the future) of the applicant's pre-existing injuries. To the extent that the evidence was said to be so sparse as to impede the judge in that task (a matter about which we are far from persuaded in any event), the responsibility lies with the applicant or his legal advisors. We note in this context that when her Honour said, during the course of the hearing, that she 'had to look at ... what his level of functioning in total was just before the transport accident and what worsening on a long term basis has been brought about by the injuries suffered in the motor accident', senior counsel for the applicant did not raise any objection.

24 In support of his complaint that the reasons are inadequate, the applicant relied upon the often cited statement of Ashley JA in Franklin v Ubaldi Foods Pty Ltd:[11]

Reasons must be such as to reveal − although in a particular case it may be by necessary inference − the path of reasoning which leads to the ultimate conclusion. If reasons fail in that respect, they will not enable the losing party to know why the case was lost, they will tend to frustrate their right of appeal, and their inadequacy will in such circumstances constitute an error of law.[12]

25 The applicant's complaints concerning her Honour's reasons are in large part tied to the applicant's submissions concerning the test her Honour applied. If her Honour was not entitled to look at the pre-existing spinal injuries when applying the very considerable test to the neck and right shoulder injuries, then it can be accepted that her Honour's path of reasoning would not have been easily discernible - a significant part of her Honour's reasoning having been removed from the analysis.

26 However, when one accepts that her Honour applied the correct test, an examination of her Honour's reasons discloses no inadequacy. Her Honour's reasons constituted a careful and considered analysis of the evidence, to which her Honour then applied the correct test - explaining her conclusions in a way which could not leave anyone who reads her Honour's judgment in doubt as to why the application was dismissed. In our view, the complaint about her Honour's reasons is entirely without merit.

27 As was said by Buchanan JA[13] in Cowden v Transport Accident Commission:[14]

It is difficult for an appellant to demonstrate that a trial judge's evaluation of the existence of a 'serious injury' should be set aside. In the absence of specific error, it must be shown that the decision at first instance was 'plainly wrong' or 'wholly erroneous'[15] or 'patently unsustainable'.[16] Hence the appellant's attempt to demonstrate that the trial judge fell into specific error in failing to accord due weight to the effect of the appellant's injuries upon her ability to ski. I consider that there was sufficient evidence to justify the conclusions reached by the trial judge, who, it should be remembered, had the advantage of seeing and hearing the appellant give evidence.[17]

28 In the present case, the applicant has failed to demonstrate any error or arguable error on the part of the judge at first instance. For the reasons we have given above, the specific complaints made by the applicant are without merit. Further, there is no basis for contending that her Honour was plainly wrong or that her Honour's decision was wholly erroneous or patently unsustainable. Indeed, in our view, her Honour's analysis and conclusion was plainly correct.

29 The application for leave to appeal must be dismissed.

[1] We assume that the Transport Accident Commission was joined as a second defendant to that application (and thus became the second respondent in this application) in purported compliance with s 93(5) of the Act which requires a copy of an application under s 93(4)(d) to be served on the Commission and each person against whom the applicant claims to have a cause of action.

[2] Dodoro v Knighting & Anor [2004] VSCA 217; (2004) 10 VR 277, [3], [6], [23], [32] and [43].

[3] See the summary of proceedings, facts and issues dated 28 November 2011 at paragraphs 8-15.

[4] Bezzina v Phi & Anor [2011] VCC 423, [60]-[62] ('Reasons below').

[9] Cf Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 140.

[10] Cf Nichols & Anor v Robinson (2001) 33 MVR 83; [2001] VSCA 11, [10], [19], [21] and [25].

[11] [2005] VSCA 317, [38].

[12] See also Transport Accident Commission v Kamel [2011] VSCA 110, [71].

[13] With whom Phillips and Callaway JJA agreed.

[14] [2003] VSCA 198, [18].

[15] Mobilio v. Balliotis, above; Nichols v Robinson [2001] VSCA 11; (2001) 33 MVR 83, 86 (Winneke P).

[16] Giannakopoulos v Melwire Pty Ltd [2000] VSCA 153, [7] (Tadgell JA).