Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139

1 The applicant ceased work in 2009 after developing pain in both wrists and hands which he alleged was caused as a result of repetitive use of his hands and regular heavy lifting as part of his employment. In 2014 he commenced a proceeding in the County Court seeking leave under s 134AB(16)(b) of the Accident Compensation Act 1985 ('the Act') to bring proceedings for the recovery of damages in respect of the injury.

2 It was made clear at the eventual hearing of the matter that the applicant proceeded only on the basis of para (c) of the definition of serious injury in s 134AB(37), namely 'permanent severe mental or permanent severe behavioural disturbance or disorder', in the form of a chronic pain syndrome and adjustment disorder. After a short trial at which the applicant gave evidence and various medical reports and records were tendered, the application for leave was dismissed. The applicant seeks leave to appeal from that decision.

3 The applicant was born in Portugal in 1981. He is married and lives with his wife and three children. He attended school in Portugal until he was about 16 years old, after which he served for one year in the Portuguese army before working for a short time as a delivery driver. The applicant migrated to Australia in about 2001 when aged 20. He worked as a machine operator, security guard and general labourer and completed a certificate in security operations.

4 In about 2005, the applicant commenced employment with a labour hire firm which arranged for him to work as a picker and packer at a Woolworths distribution centre. In about 2007, that employment was transferred to the respondent.

5 The applicant alleges that his work for the respondent involved very repetitive use of his hands and regular heavy lifting. He alleges that, as a result of performing this work, he developed pain in both wrists and hands which ultimately led to his cessation of work with the respondent in about June 2009. He made several attempts to return to work in heavy manual jobs but did not continue with them because he found that they worsened his pain. The applicant made no attempt to return to work in lighter jobs and did not look for work outside of labouring. During this time he completed a certificate in civil construction.

6 In the second half of 2009, the applicant attended general practitioners, hand therapists and rheumatologists and was variously diagnosed as suffering from a repetitive strain injury, extensor tendinitis, repetitive muscular fatigue and myofascial soft tissue pain syndrome. In October 2010, the applicant saw Dr Stephen Stern, a psychiatrist, at the request of the respondent's insurer. Dr Stern diagnosed the applicant as suffering from an adjustment disorder and a chronic pain disorder.

7 The consensus of medical opinion is that there is a significant psychiatric component to the applicant's current condition. It is convenient to refer to the medical evidence regarding the applicant's psychiatric condition, taking the various reports in chronological order.

8 Dr Stern conducted his psychiatric assessment of the applicant on 28 October 2010. It was Dr Stern's opinion that the applicant presented with chronic pain which apparently had no physical basis. Dr Stern explained chronic pain disorder as a diagnosis of exclusion when no other organic or psychiatric cause can be diagnosed. He stated that, if the applicant had chronic pain disorder, this would still be related to the work injuries of early 2009. Dr Stern stated that psychological treatment, psychiatric treatment and antidepressant medication 'are generally not helpful with pain disorders' and that rehabilitation 'would be more appropriate'.

9 On 14 August 2014, the applicant attended on Dr Peter Blombery, consultant physician, at the request of his solicitors. Dr Blombery was of the opinion that the applicant had a 'non-specific pain syndrome'. This involved nerve fibres having become sensitised so that non-painful stimuli were interpreted by the cerebral cortex as being painful. It was Dr Blombery's opinion that the applicant's prognosis for recovery was 'extremely poor'. He was of the opinion that there will 'be no significant change in his level of disability in the foreseeable future'.

10 On 18 September 2015, the applicant saw Associate Professor Nick Paoletti, a psychiatrist, again at his solicitor's request. Associate Professor Paoletti diagnosed the applicant as suffering from chronic adjustment disorder with mixed anxiety and depressed mood as well as somatic symptom disorder with predominant pain (previously classified as pain disorder). In respect of treatment, Associate Professor Paoletti considered that the applicant should receive some psychological assistance, preferably in a rehabilitation setting. He also stated:

[H]e may benefit from the introduction of an SNRI [Serotonin and Norepinephrine Reuptake Inhibitor], such as Cymbalta, that would target the depression, as well as the pain threshold, but this should be assessed and monitored in a clinical setting, possibly by a psychiatrist.

11 Associate Professor Paoletti stated that the prognostic outlook was 'static for the foreseeable future'. He said that any attempt to return to work should be preceded by a comprehensive physical and psychological rehabilitation plan, and that the applicant had 'no work capacity at present or in the foreseeable future'.

12 Between April and November 2016, the applicant attended 10 sessions of counselling with a psychologist, Ms Kathy Astrinakis. This was the only treatment the applicant received for his mental condition until 2018. Ms Astrinakis considered that during this time the applicant's general mental health and wellbeing had shown some improvement. In particular, his formerly severe depression was now 'moderate' and he had normal stress levels in comparison to the mild stress he had previously exhibited. Ms Astrinakis said that, although the applicant's symptoms of depression and stress were reduced, the improvement was 'only slight and not significant'. Further counselling was recommended.

13 In 2017, the applicant saw Dr Mark Patrick, a rheumatologist whom he had first consulted in 2009. At that time, Dr Patrick had diagnosed a repetitive fatigue and myofascial problem in both arms. Dr Patrick reported in September 2017 that the applicant had a 'chronic pain syndrome' which would require a 'chronic pain approach'. His report concluded:

Possibly Lyrica and SSRI agents could be commenced with really some form of formal evaluation by a chronic pain management team as a subsequent management. It is unclear to me whether he has actually had that more formal approach to date.

14 In 2018, the applicant saw Dr Geoffrey Hogan, a psychiatrist. The trial judge inferred that the applicant had been referred to Dr Hogan by his general practitioner, Dr Geoff Macaulay. Dr Macaulay had prescribed the antidepressant Cymbalta to trial its effect on the applicant's pain and depression but treatment had not progressed as a result of stomach-related side effects. In a letter to the applicant's solicitors, Dr Macaulay stated that he was hoping to 'see some results soon or to trial [an] alternative SSRI'. He added that 'Lyrica may be worth trialling although Mr Cardoso is unsure if this has been attempted before'.

15 In his letter, Dr Macaulay said that the applicant had been seeing him since February 2018. He diagnosed 'a significant upper limb injury best described as Chronic Pain Syndrome due to Myofascial Pain Syndrome', with secondary depression as a consequence. Dr Macaulay considered the prognosis to be poor. He said that he planned to 'continue trialling treatment' as described above. He did not refer to Dr Hogan in his letter.

16 Dr Hogan referred to the applicant's use of Cymbalta and expressed the view that a more likely cause of his abdominal pain was some anti-inflammatory medication he had been taking. Dr Hogan concluded his report as follows:

Mr Cardoso has a history only of labouring work and no other occupation qualification. He is clearly unfit for manual work because of his chronic pain syndrome. He has developed quite significant depressive symptoms, diagnostically a major depressive disorder. He has been referred to a psychologist but has not yet attended. It would be appropriate to initiate treatment for his depression. He may not be employable thereafter with his only primary education and lack of occupational skills. Perhaps he might be trialled on Pristiq starting at a 100 mg daily for four to six weeks, [i]ncreasing thereafter if necessary to 150 mg or 200 mg daily. Pristiq is a good agent for chronic pain and depression but higher doses are commonly required for benefit. If as is likely, in the context of his chronic pain, a response to a higher dosage of Pristiq is positive but partial, he might be trialled on adjunctive medications such as sodium valproate (which may also help his pain), olanzapine or aripiprazole.

Should the above suggestions prove unhelpful, I would be happy to discuss his further psychopharmacological management per telephone or see him for review. If there is no adequate response to Pristiq then a trial of a tricyclic, given his lack of suicidal ideation, might be appropriate, at a minimum dose of 150 mg nocte.

17 It should be noted that, contrary to what was said in Dr Hogan's report, the applicant was educated until the age of 16 and had occupational experience and qualifications beyond labouring.

18 On 3 July 2018, the applicant saw Dr Nigel Strauss, consultant and occupational psychiatrist, at the request of his solicitors. Dr Strauss expressed the opinion that the applicant had 'a somatic symptom disorder involving pain'. He was 'significantly anxious and depressed' and had a 'chronic adjustment disorder with mixed anxiety and depressed mood'. Dr Strauss believed that the fact that the applicant had not found work since 2009 suggested that rehabilitation might not yield positive results and that the overall prognosis was therefore poor. He stated that the applicant needed rehabilitation rather than psychological treatment but that the chances of rehabilitation succeeding were limited.

19 Also in July 2018, the applicant saw Dr George Wahr, another psychiatrist, at the request of his solicitors. Dr Wahr considered that the applicant was suffering from 'an agitated depression'. In respect of future treatment, he stated:

This man could benefit from treatment consisting of supportive psychiatric psychotherapy and monitoring of realistic doses of psychotropic medication by a Psychiatrist for symptomatic improvement but his condition is chronic and psychiatric treatment cannot cure it but contain it better.

Dr Wahr stated that the prognosis for resolution of the applicant's condition 'is poor as it is chronic'.

20 In answer to a question about the effect, for the foreseeable future, of the applicant's psychiatric injury alone on his everyday activities, enjoyment of life and capacity to work, Dr Wahr stated that the applicant 'would have difficulty working and performing his previous duties or any other duties'.

21 Finally, the applicant saw consultant physician Dr Robert Lefkovits, at the request of the respondent's solicitors on 23 July 2018. Dr Lefkovits expressed the following opinion:

My impression of the worker's ongoing symptomatology is that he has a chronic pain syndrome/disorder predominantly of the non-organic basis. I do not believe that there is sufficient evidence to call this a myofascial syndrome nor do I think he has a chronic overuse syndrome. The physical examination and the consistently normal investigations have excluded a documentable organic injury. Whatever soft tissue injuries he sustained in 2009 have recovered well before now. He continues to suffer the consequences or sequelae of those injuries and possibly have [sic] contributed to an entrenched chronic pain syndrome/disorder, which is predominantly psychiatric. He has been referred to a psychiatrist, has been tried on Cymbalta, an antidepressant which also has pain modifying properties. That apparently was withdrawn and he is now on another antidepressant. I do suspect that after such a prolonged period of pain and incapacity, the likelihood of significant recovery is slim. The best option would be to use a multidisciplinary approach, predominantly guided by a psychiatrist, minimising treatment with anti-inflammatory agents and analgesics, and concentrating on non-pharmaceutical benefits that have been shown in previous studies to have some benefit.

In conclusion, the worker has developed a chronic pain syndrome-disorder and my impression is that this is a predominantly psychiatric condition.

22 In a supplementary opinion, Dr Lefkovits commented on the findings made by Dr Blombery as follows:

Dr Blombery's findings were similar to my own ... . His conclusion is that the worker is suffering a non-specific pain syndrome and explains the current understanding of the mechanism of such a condition. The term he uses is one of several that have been used to describe a central sensitisation pain syndrome. I refer to the condition as a chronic pain syndrome and both the non-specific pain syndrome and chronic pain syndrome are discussing the pathophysiology of a person who has developed pain of an ongoing nature. The central nervous system becomes in a sense hypervigilant to the stimuli coming from the area from which pain originates. Eventually, even when the pathology in the injured or pathological area resolves, the central perception of pain continues. This is what both Dr Blombery and I are referring to in our reports.

The management of chronic pain syndrome or non-specific pain syndrome is different to the approach to a straightforward pain condition, due to demonstrable ongoing pathology and often much more difficult to treat and probably involves significant and complex psychosocial factors as well as organic pathology.

Dr Lefkovits concluded that both Dr Blombery and he had come to the same diagnosis, 'which is basically that there is a chronic pain syndrome which has some organic basis'.

23 The trial took place on 27 August 2018, about two months after the report of Dr Hogan and one month after those of Dr Wahr and Dr Lefkovits. As already mentioned, the only witness called to give evidence at the trial was the applicant. He swore two affidavits. He said he had substantial difficulty managing domestic and household duties, often had difficulty sleeping and had become socially isolated, moody, fearful, hopeless and helpless. He felt 'constantly down and depressed' and found it difficult to control his emotions. His relationship with his wife had deteriorated to the point that they were effectively separated. After becoming increasingly depressed by his inability to work and support his family, he had sought help from Dr Macaulay who had referred him to see Dr Hogan. Since then, the applicant had been prescribed Pristiq.

24 Under cross-examination, he gave evidence that he was taking Pristiq and that the dosage was 100 mg. He said that he had been on the drug for '[a] few weeks'. He had started on a lower dose and built up to 100 mg, which he had been on for 'a week or so'. He had previously been on Cymbalta only for 'a week or so'. The applicant confirmed that he had not seen the psychologist to whom Dr Hogan had referred him.

25 Also in cross-examination, the applicant accepted that he may be able to return to work with some retraining and the right type of job. He accepted that he looked after himself independently, typically drove his children to school and sometimes did some housework including preparing dinner, vacuuming and shopping for groceries. He also agreed that he had learnt to work with and adapt to the pain and forget about it at times, and that he had had the pain for so long, he was getting used to it. He confirmed that he experienced pain 90 per cent of the time but had some pain-free periods.

26 In her opening address, counsel for the respondent identified that the issues in dispute were the 'severity' and 'permanence' of the applicant's claimed behavioural disturbance or disorder. She referred to the fact that the applicant had started receiving professional psychiatric treatment less than two months earlier. The judge observed that permanence was an issue and that a new regime of treatment was likely to commence. He invited counsel for the applicant to obtain instructions as to whether an adjournment was necessary in the circumstances. The matter was stood down for approximately half an hour and when the hearing resumed, counsel informed the judge that his instructions were to continue with the case.

27 In his reasons for judgment, the judge referred to the medical evidence already mentioned, as well as reports of other medical practitioners to which it is not necessary to make further reference. After setting out the submissions on behalf of the parties, the judge identified the issues of permanence and severity in para (c) of the statutory definition of 'serious injury', noting that the burden of proof was upon the plaintiff. He was prepared to assume for the purposes of argument that the consequences of the injury to the applicant were of sufficient magnitude to satisfy the test of severity.[1] He then turned to the question of permanence, as follows:

The problem facing the plaintiff is as follows. How can I be satisfied that the permanently severe consequences of his mental or behavioural disturbance or disorder will persist in, into or through the foreseeable future when, for the first time, he has recently seen a psychiatrist for the purposes of treatment and, in addition, when that practitioner has prescribed a change in his medication, a change in prescription with which he is complying? This has all happened in approximately the last two and a half months and in circumstances where the injury occurred in excess of nine years ago. I cannot be so satisfied of the permanent severity of the consequences.

It was submitted by [counsel for the applicant] that a factor which I should take into account is that Dr Hogan was not required by the defendant to attend for cross-examination. In my view, this does not advance matters. The defendant was, at least to some extent, relying upon Dr Hogan's report in relation to this point. ... [I]t is to be remembered that it is the plaintiff who bears the burden of proof in relation to satisfying the requirements of the definition.

Further, Dr Hogan wrote to Dr Macaulay, the plaintiff's treating general practitioner. Although this occurred on 23 June 2018, in excess of two months before the hearing, no further report from Dr Macaulay was put before me. There is no reference in his report of 22 June 2018 to the referral to Dr Hogan, even though it seems extremely likely that such referral must have taken place. The last report of Dr Macaulay is dated 22 June 2018 and the letter to him from Dr Hogan is dated the following day. As at the hearing date, the plaintiff had only just commenced the taking of an increased amount of Pristiq.

In short, what we have is a letter from Dr Hogan to Dr Macaulay of 23 June 2018 and nothing at all from Dr Macaulay in relation to a referral to Dr Hogan, the circumstances in which such referral occurred, why it was thought desirable so to do [sic] or what has occurred since.

The bottom line is that we are left with a situation where a plaintiff, who suffered mental injury in excess of nine years ago, has very recently and for the first time been referred for treatment from a psychiatrist, and that psychiatrist has altered his medication regime. In such circumstances, I cannot be satisfied that the consequences of the plaintiff's injury are permanently severe within the meaning of the definition. The burden of proof has not been discharged.[2]

28 The applicant seeks leave to appeal from the judge's refusal of leave on the following proposed grounds:

1. The primary judge erred in law by applying too stringent a test to the requirement of the applicant to prove that his consequences are permanent.
2. The primary judge erred in law by failing to consider the whole of the evidence when determining whether or not the applicant had carried his onus of establishing that his consequences were likely to persist through the foreseeable future.
3. The primary judge erred in law by failing to assess whether those consequences that were likely to persist through the foreseeable future satisfied the statutory test of serious injury with respect to pain and suffering damages.
4. The primary judge erred in law by failing to provide reasons that disclosed an intelligible path of reasoning for his decision.

29 Mr Stanley, appearing for the applicant, submitted that the judge had wrongly regarded the evidence of Dr Hogan as precluding a finding that the applicant's mental disturbance or disorder was permanent. It was submitted, in respect of the first and second proposed grounds, that the judge had erred in regarding himself as unable to make a finding of permanence when the applicant had only just started seeing a treating psychiatrist and commenced taking different medication.

30 More particularly, the applicant submitted that the judge had correctly defined the meaning of 'permanent' by reference to Barwon Spinners Pty Ltd v Podolak,[3] but that he had failed to analyse the likely outcome of the treatment proposed by Dr Hogan. It was submitted that it was necessary to consider the likely outcomes of the treatment in order to assess whether or not the claimed consequences were 'likely to persist' and in turn 'permanent' within that definition. The applicant submitted that a worker who has just embarked on a new treatment regime can still have a permanent condition within the meaning of the definition if that regime has little prospect of success. It was submitted that the overwhelming evidence was that the prospects of the applicant improving were poor. Dr Hogan had opined that the applicant was 'clearly unfit for manual work because of his chronic pain syndrome'. Moreover, Dr Hogan was not proposing a 'hands on' treatment role for himself.

31 The applicant submitted that the judge had failed to take all the evidence into account in deciding whether the applicant's condition was permanent. The idea that psychiatric treatment could be 'the panacea' to the applicant's condition was said to be contrary to other expert evidence. In particular, Dr Stern had expressed the view that '[p]sychological, psychiatric treatment and antidepressant medication are generally not helpful with pain disorders' and Dr Wahr had stated that psychiatric treatment could not cure the applicant's condition but could only better contain it. He described the prognosis for resolution as poor. Dr Strauss had expressed the opinion that the applicant needed rehabilitation and that his overall prognosis was poor. Dr Lefkovits thought the likelihood of significant recovery was slim.

32 Based on the above evidence, the applicant submitted that the judge ought to have found that the onus of establishing permanence had been satisfied.

33 Under proposed ground 3, the applicant submitted that the judge had made no determination as to whether the pain and suffering consequences likely to persist after treatment were severe within the meaning of the Act.

34 More generally, it was submitted that the judge had implicitly regarded the consequences of the applicant's injury with respect to earning capacity as severe. As such, if the conclusion as to permanence was displaced, this Court should find that the condition was also severe. This was said to be borne out by the absence of any evidence suggesting that the applicant was capable of employment for the foreseeable future.

35 Under proposed ground 4, it was submitted that the judge had failed to provide reasons disclosing an intelligible path of reasoning for his decision. It was submitted in this context that the following aspects of the applicant's case remained unanswered:

(a) did the primary judge undertake any analysis of the likely state of the applicant after undergoing the proposed treatment?

(b) did the primary judge accept or reject the opinions from the reporting psychiatrists indicating a poor prognosis?

(c) do the consequences that are likely to remain after the treatment qualify as severe?

36 In its written case, the respondent referred to the consideration of the word 'permanent' in Barwon Spinners. The respondent accepted that the construction adopted by Phillips JA (with whom the other members of the Court agreed) of the word 'permanent' was 'essentially correct'. However, the respondent submitted that the meaning of the word 'permanent' should not be qualified by reference to the likelihood or probability that the impairment or other condition will persist through the foreseeable future, because such a qualification 'confuses the fact in issue with the standard of proof that is applicable to that fact'. The respondent submitted that the probability that the claimed impairment or other condition will persist through the foreseeable future will determine whether the plaintiff has discharged the burden of proving permanence, but that it is 'not relevant to the meaning of the word "permanent"' itself.

37 In oral submissions, Mr O'Meara QC emphasised that the applicant was required to show that the judge's determination was plainly wrong or wholly erroneous.[4] Moreover, the opinions of medical experts are to a considerable extent dependent on the accuracy of the claimant as a historian, making the trial judge's advantage in assessing a claimant's credibility important both directly and indirectly. This was said to be especially important when the issue involves psychiatric opinion.[5]

38 Mr O'Meara QC submitted that the fact that Dr Struass and Dr Wahr had not been told about the applicant's treatment by Dr Hogan, or the prescription for Pristiq, meant that they had not had the benefit of a full history. Their prognoses were therefore not based on full information.

39 It was submitted that the judge had set out all the relevant evidence and should not be thought to have treated the evidence of Dr Hogan as precluding compliance with the test of permanence. Rather, the judge had relied on that evidence in preference to any evidence to the contrary. In particular, the judge had noted the absence of information in the reports of Dr Strauss and Dr Wahr about the applicant's treatment by Dr Hogan.

40 The respondent submitted that there was evidence from Associate Professor Paoletti and also Dr Wahr, in addition to Dr Hogan, that the applicant might benefit from specialist psychiatric treatment. At the date of the trial, although the applicant had not noticed any changes since he started taking Pristiq, he had not yet reported that fact to his doctors or discussed with them the possibility of increasing his dosage. In addition, Dr Hogan had foreshadowed two further levels of potential treatment. If, as he thought likely, the applicant responded in a positive but partial way to higher dosages of Pristiq, he could be trialled on adjunctive medication such as sodium valproate, Olanzapine or Aripiprazole. Alternatively, if he did not respond adequately to Pristiq, he could be trialled on a tricyclic antidepressant.

41 The respondent submitted that Dr Hogan's statement about the applicant being unfit for manual work clearly related to his condition in the absence of treatment and that his observation about whether the applicant was employable was not directed at his mental condition, as well as being based on an inaccurate history. The applicant had been educated beyond primary school level and it was not correct to say that he had worked only as a labourer and had no other occupational qualifications.

42 The respondent submitted that the chronic nature of the applicant's condition did not necessarily point to its permanence. That submission on behalf of the applicant assumed, contrary to the evidence of Dr Hogan, Associate Professor Paoletti and Dr Wahr, that the chronic nature of the condition meant that it could not be improved through specialist psychiatric treatment. Moreover, Dr Hogan had recommended Pristiq as 'a good agent for chronic pain and depression'. It was submitted that the applicant's previous experience with psychological counselling had no bearing on his probable response to the regime proposed by Dr Hogan. It was submitted that the judge had referred to the relevant evidence and taken it into account in reaching his decision, and that proposed grounds 1 and 2 should therefore be rejected.

43 In connection with proposed ground 3, the respondent submitted that counsel for the applicant had not referred at trial to the applicant's evidence about his claimed consequences with respect to pain and suffering and that he should not be permitted to run a different case on appeal. In any event, given the judge's conclusions on permanence, there was no occasion for him to evaluate the severity of the claimed consequences. It could not be inferred, it was submitted, that the judge regarded the requirement of severity as met. He had instead expressly assumed that the consequences of the injury were sufficient to satisfy the test of severity, for the purposes of addressing the question of permanence.

44 The respondent submitted that the judge's reasons were adequate because they revealed the path of reasoning that led to the dismissal of the application. Dr Hogan was the only psychiatrist whom the applicant consulted for treatment and was the witness best placed to address questions about his prognosis and the likely effect of the new regime of medication. The applicant had not obtained a report from him, relying instead only on a letter to his general practitioner. The applicant had relied on deficient medical evidence and the judge could not have speculated about how Dr Hogan might have responded to questions about the applicant's prognosis had he been asked to address them. The three questions identified by the applicant in connection with proposed ground 4 were therefore not questions which the judge was required to address. The reasons disclosed that the judge had regard to all the relevant medical evidence and was simply not satisfied that it had been shown that the consequences of the applicant's mental condition were permanently severe. There was no occasion for the judge to evaluate the severity of those consequences because the applicant had failed to prove which of those consequences, if any, were permanent.

45 The relevant part of the definition of 'serious injury' for the purposes of this application is para (c) of the definition in s 134AB(37), namely 'permanent severe mental or permanent severe behavioural disturbance or disorder'. The meaning of the word 'permanent' was considered by this Court in Barwon Spinners, where it was held to mean 'likely to last for the foreseeable future'.[6] The Court elaborated:

As we read it, the word 'permanent' in the definition of 'serious injury' in s 134AB(37) conveys the probability that the impairment or other condition will last and not mend or repair - or at least not to any significant extent.[7]

46 The respondent accepted that this construction was 'essentially correct', but argued that an impairment or condition is permanent if it will persist through the foreseeable future without mending or repairing to any significant extent, and that questions of likelihood or probability were properly seen as being applicable as a result of the onus of proving permanency on the balance of probabilities.

47 It may be strictly correct to say that questions of likelihood or probability arise, not as part of the meaning of the word 'permanent', but by virtue of the standard of proof, on the balance of probabilities. On the other hand, determining whether a state of affairs is permanent inevitably involves an element of prediction into the future. The point does not need to be determined because, as we see it, no different result is reached by dissecting the Court's task in the manner suggested by the respondent. That task remains 'to determine how far, if at all, the alleged impairment is permanent, in the sense of likely to last for the foreseeable future'.[8]

48 We turn then to the substance of the proposed appeal.

49 The Court's jurisdiction is invoked under s 74 of the County Court Act 1958. The approach to be taken on the proposed appeal is that the judge's determination should be set aside only for specific error or if plainly wrong or wholly erroneous.[9]

50 It is convenient to begin by considering proposed ground 2. In substance, the applicant's argument is that the judge dismissed the application by reason of the absence of evidence as to the efficacy of the pharmacological regime proposed by Dr Hogan, without evaluating the whole of the evidence.

51 It is plain that the judge was aware of the evidence other than that of Dr Hogan. He made extensive reference to it and, as the respondent pointed out, recognised that Dr Hogan was the only treating psychiatrist and that there was no evidence from Dr Macaulay, the applicant's general practitioner, as to what had occurred since the applicant saw Dr Hogan.[10] The judge regarded the 'recent involvement' of Dr Hogan as lying 'at the heart of the dispute concerning permanence'.[11]

52 The latter finding was obviously open to the judge. The applicant does not suggest otherwise. The complaint is rather that the judge treated the fact of Dr Hogan's recent involvement as foreclosing acceptance of his application altogether, irrespective of the other evidence pointing to a finding that the consequences of his injury were permanent. Mr Stanley relied on the rhetorical question posed by the judge:

How can I be satisfied that the permanently severe consequences of his mental or behavioural disturbance or disorder will persist in, into or through the foreseeable future when, for the first time, he has recently seen a psychiatrist for the purposes of treatment and, in addition, when that practitioner has prescribed a change in his medication, a change in prescription with which he is complying?[12]

53 The applicant relied also on the fact that the judge said 'I cannot' be satisfied of the permanent severity of the consequences of the injury.[13] It was said that this indicated that the judge saw the recent involvement of Dr Hogan as logically preventing acceptance of the other evidence. Mr Stanley submitted, principally in connection with proposed ground 4 but also in this connection, that the judge had not addressed the question of the applicant's likely condition for the foreseeable future, or the evidence of his poor prognosis.[14] Instead, he had determined that the state of the evidence made it unnecessary for him to do so.

54 The other evidence to which the applicant referred consisted of the following:

• Dr Stern (consultant psychiatrist) stated in 2010 that psychiatric treatment and antidepressant medication are 'generally not helpful with pain disorders' and he did not believe antidepressant medication would be helpful.

• Associate Professor Paoletti (medico-legal psychiatrist) recommended psychological assistance in 2015, while saying that the applicant 'may' benefit from the introduction of an SNRI such as Cymbalta, and stating that the prognostic outlook was none the less 'static for the foreseeable future'.

• Dr Wahr (medico-legal psychiatrist), while observing in July 2018 that the applicant was on an antidepressant other than Cymbalta, whose name the applicant did not recall, said that this could yield symptomatic improvement but that the condition was chronic and could only be contained, not cured, by psychiatric treatment and that the prognosis for its resolution was 'poor'.

• Dr Strauss (medico-legal psychiatrist), also writing in July 2018, believed the applicant's overall prognosis was poor and that he needed rehabilitation rather than psychological treatment, but the prospects of rehabilitation succeeding were 'limited'.

• Dr Lefkovits (consultant physician), again in July 2018, mentioned that the applicant was on another antidepressant after ceasing Cymbalta but said that he suspected that the likelihood of significant recovery was 'slim' and recommended a multidisciplinary approach, guided by a psychiatrist and minimising treatment with anti-inflammatory agents and analgesics, concentrating on non-pharmaceutical benefits.

• Dr Macaulay (general practitioner) said in June 2018, after mentioning that he was hoping to trial an alternative SSRI, or Lyrica, that it would be worth seeing if depression could be treated or if a new pain assessment might help, but he considered this unlikely to change the course of the applicant's condition and said that there was a 'small chance things may improve with prolonged waiting'.

55 On first reading the judge's reasons, it might be thought unduly literal to take them as stating that he felt precluded from considering the above evidence because of the recent involvement of Dr Hogan. However, read in context, we are driven to conclude that the judge did regard the state of the evidence regarding Dr Hogan as presenting an insuperable obstacle to the applicant's success on the application, because of the uncertainty it injected into the applicant's prognosis.

56 We reach that conclusion for two principal reasons. The first is that the judge did not, in explaining his conclusions, address the above evidence. By implication, its force was not relevant because the judge considered that the involvement of Dr Hogan had fundamentally changed the landscape and the applicant simply could not show that his condition was permanent when a new drug had only just been commenced.

57 Secondly, among the other evidence were several statements of opinion as to the applicant's prospects even assuming resort to antidepressant drugs or SSRIs other than Cymbalta. In particular, Dr Wahr acknowledged the potential role for 'realistic doses of psychotropic medication' for symptomatic improvement only, concluding that the prognosis was poor. Dr Lefkovits advised concentrating on non-pharmaceutical benefits and considered the likelihood of significant recovery was slim, notwithstanding the use of antidepressants. These statements contrasted with the more positive tenor of Dr Hogan's view that it was likely that there would be a 'positive but partial' response to the proposed regime. Further, Dr Strauss considered there to be a role for rehabilitation but did not recommend psychiatric medication. The judge did not refer to these various positions, or to Dr Hogan's own expression of opinion on the point. Instead, he appears to have relied on the uncertainty created by the recent pharmacological intervention as critical.

58 Given the range of expert opinion, including as to the likely efficacy of the new treatment, we conclude that the judge erred in treating the recent change in circumstances as preventing the applicant from being able to make out his case in reliance on the experts other than Dr Hogan. In our view, that was not so. There were two alternative conclusions open on the evidence and the judge needed to evaluate and decide between them. As a result of this specific error, the decision should be set aside.

59 In our opinion, we are in as good a position as the judge to make the decision afresh. We do not accept the respondent's submission that there are issues of credit of the applicant as to which the trial judge had an advantage we do not enjoy. In that regard, we reject criticism of the applicant for having failed to disclose to Dr Wahr or Dr Strauss that he was being treated by Dr Hogan. The report of Dr Hogan is itself at odds with that suggestion. He indicated only that he would be happy to see the applicant for review, or to discuss his further management by telephone, and there is no evidence of any ongoing treatment by him. Nor is the applicant shown to have been an unreliable historian. He told Dr Wahr and Dr Lefkovits about his medication other than Cymbalta and there is no evidence that when he saw Dr Strauss, about ten days after Dr Hogan's report, he was already on the new medication. We attach no significance to the fact that Dr Macaulay did not give evidence as to having referred the applicant to Dr Hogan, or about any ensuing events or circumstances, including the writing of a prescription. We infer, from the fact that Dr Hogan only referred to use of Pristiq using the word 'perhaps', that Dr Hogan did not write the prescription but that this was done by Dr Macaulay.

60 Taking all the evidence together, in our view the applicant has satisfied the test of permanence. The overwhelming prognosis is poor, as the longevity of his condition itself tends to suggest. The view of Dr Hogan that some benefit from the new regime was likely, although partial, is itself not particularly promising (especially taken together with the use of terms like 'perhaps' and 'might' when proposing the new regime to be 'trialled'). Moreover, Dr Hogan thought the likely benefit would only be 'partial', without specifying the likely extent of the expected improvement. But in any event, the overwhelming weight of the other medical evidence (set out above) is that resort to alternative pharmacological approaches was unlikely to alter the underlying prognosis and that it remained poor. The applicant's history bears this out. As early as 2010, Dr Stern identified that the applicant's condition had a psychological component. By 2015, Associate Professor Paoletti and Dr Blombery identified that component as predominant. The applicant has seen numerous doctors and specialists over the years and his psychological condition is longstanding, Based on all the evidence, in our view, the requirement to show that the consequences of the injury are permanent is met.

61 It is then necessary to decide whether those consequences are 'severe' so as to satisfy the definition of 'serious injury'. The terms 'serious' and 'severe' are to be satisfied by reference to the consequences to the applicant of his mental or behavioural disturbance or disorder with respect to pain and suffering or loss of earning capacity (when judged by comparison with other cases in the range of mental or behavioural disturbances or disorders): s 134AB(38)(b). 'Severe' in this context is a word of stronger force than 'serious'.[15]

62 It is evident that the applicant is not wholly incapacitated by his injury. As the respondent submitted, he is able to perform many basic tasks. The applicant acknowledged in cross-examination that 'maybe' he could return to work. However, at the same time, he has not been employed for a very considerable period and the medical evidence is bleak as to the prospect of that situation changing. There is no suggestion that the applicant is malingering, or that he has feigned or exaggerated his symptoms.

63 Dr Wahr considered that the applicant would have difficulty working or performing any other duties, by virtue of his psychiatric condition (for the foreseeable future, by implication from the question being addressed). Dr Strauss regarded the applicant's chances of finding work in the future as limited, noting that his enjoyment of life and ability to engage in social, domestic and recreational activities remained reduced. The opinion of Dr Hogan to the effect that the applicant 'may not be employable' due to his lack of education and occupational skills must be treated with caution because it is based on inaccurate factual information, but it provides no basis for optimism. Dr Macaulay did not believe that the applicant had any meaningful work capacity, noting that each time the applicant tried to work over the years his pain had become progressively worse until he had to cease. He considered that, due to pain, mood and poor concentration, the applicant would struggle to learn new skills and would probably fail to hold down any employment.

64 In context, the fact that the applicant performs many ordinary daily tasks and acknowledges that 'maybe' he could return to work fits into a picture of a man pressing on with daily life, without giving up hope of recovery, but in the face of an injury whose consequences have prevented him from holding down employment for the best part of ten years. We are satisfied that those consequences, with respect to earning capacity, have been shown to be severe in the required sense.[16]

65 As a result, the applicant should be given leave to bring an action, which will extend to pecuniary loss damages as well as pain and suffering damages.[17]

66 Leave to appeal should be granted generally and the appeal allowed. In place of the orders of the trial judge, it should be ordered that the plaintiff be granted leave under s 134AB(16) of the Act to commence common law proceedings against the first defendant in respect of the injury arising out of or in the course of his employment with the first defendant.

[1] Cardoso v Staff Australia Payroll Services Pty Ltd [2018] VCC 1539 [51] (Judge Bowman) ('Reasons') .

[2] Ibid [54]-[58] (citation omitted).

[3] [2005] VSCA 33; (2005) 14 VR 622 ('Barwon Spinners').

[4] Mobilio v Balliotis [1998] 3 VR 833, 841 (Brooking JA).

[5] Mason v Transport Accident Commission (2014) 68 MVR 474, 498 [101]-[103]; [2014] VSCA 267 (Whelan JA).

[6] [2005] VSCA 33; (2005) 14 VR 622, 638-9 [33]-[34] (Phillips JA, with Ormiston and Chernov JJA agreeing).

[9] Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 [4] (Tate JA, with Redlich JA agreeing), applying Mobilio v Balliotis [1998] 3 VR 833, 858 (Phillips JA) and referring also to 835 (Winneke P), 836-7, 841-3 (Brooking JA), 853-4 (Ormiston JA), 860 (Charles JA). See also Housden v Boral Australian Gypsum Ltd [2015] VSCA 162 [90]-[91] (Santamaria JA, with Tate and McLeish JJA agreeing).

[14] It was also submitted that the judge had not addressed the question whether the consequences identified as permanent qualified as severe. That raises a separate issue, dealt with later in these reasons.

[15] Mobilio v Balliotis [1998] 3 VR 833, 834-5 (Winneke P), 846 (Brooking JA), 854 (Ormiston JA), 858 (Phillips JA), 860-1 (Charles JA).

[16] It was not suggested by the respondent that separate consideration of the tests in s 134AB(38)(e) and (f) was required in this scenario.

[17] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 [63] (Redlich and Beach JJA).