Davies v Nilsen & TAC [2014] VSCA 278

Court of Appeal (Vic)|2014-11-07|Before: Mr J, Warren CJ

Davies v Nilsen & Transport Accident Commission [2013] VCC 1242 (Judge Misso)

ACCIDENT COMPENSATION - Transport accident - Application for leave to appeal - Transport Accident Act 1986, s 93(4)(d) - Where concession made that if causation was established the injuries complained of constituted 'serious injury' - Where trial judge found causation was not established - Trial judge erred in deciding the causation issue on only a part of the evidence - Application for leave granted - Appeal allowed.

1 On 22 November 1995, the applicant, Dianne Davies, was the driver and sole occupant of a motor car which, whilst stationary, was crushed as the middle vehicle in a double impact, three car, rear end collision.

2 By originating motion filed 22 October 2009 Ms Davies sought leave pursuant to s 93(4)(d) of the Transport Accident Act 1986 to bring a proceeding in respect of injuries which she alleged she had suffered in the 1995 collision.[1] She relied upon injuries to her low back and left knee - that is, injuries comprehended by paragraph (a) of the definition of 'serious injury' in s 93(17) of that Act - and upon psychiatric injury - it was described as adjustment disorder with anxiety and depression, and chronic pain disorder - said to be comprehended by paragraph (c) of that definition.

3 The application was heard by a County Court judge over a three day period between 30 August and 2 September 2013. The applicant and her mother, having sworn affidavits in support of the application, were cross-examined. Otherwise, a substantial amount of documentary material was put into evidence.

4 On 25 September 2013, the judge dismissed the application. That made it unnecessary for his Honour to consider an opposed application by Ms Davies for extension of time within which to bring a proceeding.

5 The judge dismissed the serious injury application because he was not satisfied that the applicant had established that any of the injuries relied upon had been caused by the transport accident.

6 The applicant seeks leave to appeal against the order dismissing her application. The ordinary leave to appeal test applies. Often, leave to appeal in a case such as this challenges a decision that injury as found did or did not (depending upon who is the applicant for leave) meet the 'serious injury' threshold - which makes relevant the considerations mentioned in Mobilio v Balliotis.[2] But that is not this case. The judge did not get to the question whether injury was 'serious injury'. In fact, had he decided the causation questions favourably to the applicant, he would never have been required consider that question. It was specifically conceded for the respondent, if causation was established, that the physical injuries were serious and the psychiatric injury was severe in their respective consequences.[3]

7 By her application for leave to appeal, then, the applicant challenges the judge's findings as to causation. As explained in Phelan v TAC,[4] that raises an issue for determination by this Court by way of rehearing. This Court must give the judgment which, in its opinion, ought to have been given at first instance. If the Court concludes, by reason of what it holds to have been a wrong decision on a question of fact, that the decision appealed from was wrong, the decision cannot be saved because it could be said that the wrong decision was reasonably open. This Court's conclusion, based upon its own consideration of the evidence, that the judge made a wrong decision on a question of fact, would demonstrate error. Although the trial judge had the advantage of seeing and hearing (in this case, a very few) witnesses, which imposes a natural limitation on this court's ability to review factual findings, it may nonetheless reach a conclusion contrary to that of the trial judge, even in the case of a finding apparently dependent upon witness credibility - for example, where it concludes that the decision at trial was 'glaringly improbable' or 'contrary to compelling inferences'.[5]

8 In undertaking the rehearing, it has been necessary to consider, importantly, the evidence given on oath by the applicant and her mother in the County Court hearing. It has also been necessary to examine a large body of documentary medical material, the authors being treating practitioners and medico-legal consultants. Most of it relates to the period of nearly 19 years which has elapsed since the transport accident. A little of it relates to the applicant's pre-accident medical history. In addition, it has been necessary to consider a variety of material relating to a WorkCover claim made by the applicant in 1996.

9 Having undertaken the necessary task, I am of opinion, for the reasons which follow, that the applicant should have leave to appeal, and that the appeal should be allowed. Because it was not in issue below that, if causation was established, the injuries complained of constituted 'serious injury', I would grant leave to the applicant to bring a proceeding for damages in respect of those injuries. The question whether the applicant should have an extension of time within which to bring a proceeding would then require determination by the County Court.

10 The judge found that the applicant had not discharged the burden of proving causation because, as he concluded, the 'primary evidence' did not support the applicant's claim that she had suffered injuries to her lower back and left knee in the 1995 transport accident. For that reason, his Honour rejected not only the evidence of the applicant, but also the evidence of her mother that she had suffered symptoms referable to her knee within days of the accident. Because, his Honour concluded, the opinions of medico-legal examiners as to the causal relationship between the accident and the knee and back injuries had depended upon the accuracy of the applicant's history of symptoms from the outset, those opinions were vitiated. Moreover, since the opinions of psychiatrists as to the compensability of the applicant's psychiatric injury had assumed that the applicant had suffered knee and low back pain from the outset, those opinions also were vitiated.

11 The 'primary evidence', as identified by the judge, consisted of entries made on about 20 occasions by the applicant's treating general practitioners in the period between 23 November 1995 and 14 November 1996. Those practitioners were Drs McPherson (since deceased) and Rose.

12 Apart from the 'primary evidence' as thus characterised, the judge also called in aid of his conclusions material relating to a WorkCover claim made by the applicant subsequent to her cessation of employment in mid 1996 by reason, as she then alleged, of work-related stress. In a claim form, she had made only 'fleeting reference' to the transport accident, mentioning 'back injury, whiplash and shoulder injury'.[6] Further, two persons at her former workplace had gone on affidavit in 2013 in relation to the present matter. Each deposed to knowing of the transport accident, but of not being told of any continuing problems.[7]

13 By amended notice of appeal, the applicant contended that the judge's approach to resolving the question of causation had been skewed, that his Honour had misinterpreted some of the medical material, and that he had wrongly ignored other material. It was further contended that the reasons for decision failed the 'path of reasoning' test.

14 Orally, counsel submitted that his Honour had immersed himself in an assessment of the clinical notes. The judge had not heeded the warning by Kaye J in Woolworths Ltd v Warfe[8] against placing too much reliance on the detail of such notes as those notes rarely purport to be a verbatim record of what the plaintiff has told the medical practitioner on examination and are often, at best, an approximate paraphrase or précis of the account given by the plaintiff. His Honour had effectively ignored other medical material. In any event, the judge had inaccurately or incompletely described the content of some of the clinical notes. Further, the applicant's medical history had been free of low back or left knee problems before the accident. She was then a young woman. On any view within a quite short period of time, she was complaining of symptoms in those areas, radiology revealed abnormalities, and the injuries had thereafter progressed to the point where it was accepted by the respondent that they met the 'serious injury' test. No other cause for the injuries had been suggested.

15 At trial, counsel submitted, the respondent's case with respect to the left knee, had been that, whilst the applicant had given a history of hitting her knees in the accident, X-Rays had led nowhere. Thereafter, she had not complained about her left knee for 'years and years'. As for the low back, the respondent's case had been that the applicant had injured her dorsal spine, not her lumbar spine, in the accident. The applicant had made no complaint about her lumbar spine until September 1996. The applicant's response to these problems had been to say that she did complain about her left knee and low back after the accident. That made her credit 'very significant'. The judge's findings, credit-influenced, were not 'glaringly improbable'. Whilst the applicant had given a consistent history to many medical practitioners over the years, the judge had been best-equipped to decide upon her credit. There was nothing in the radiology to 'get the [applicant] home when looking at all the evidence'. Dr McPherson's reports did not assist the applicant. His reports of 1997 and 2007 were inconsistent. In his 1997 report he did not refer to the applicant having suffered low back or left knee injuries in the transport accident. Medico-legal examiners in 1996 had taken histories inconsistent with the applicant's present account. Counsel also emphasised and relied upon the material referable to the WorkCover claim, and to the applicant having visited her general practitioner 15 times after 23 November 1995 without the doctor having noted a left knee injury. Further, assuming the development of left knee and low back symptoms in 1996, counsel posed the question: where was the 'necessary link' with the transport accident? It was not the judge's obligation to 'fill' any 'gap'. As to the use of histories given to medical practitioners, counsel called in aid passages from Veljanovska v Verducci[10] and Warfe.[11]

16 As I have said, the question for the Court, upon an appeal by way of rehearing, is to give the judgment which, in its opinion, ought to have been given at first instance, giving proper weight to the limitations of a court which has neither seen nor heard such witnesses as gave evidence viva voce. In undertaking that task, revealed flaws in the path of reasoning by which the trial judge arrived at his or her decision will be pertinent to a conclusion that the decision was erroneous.

17 In my opinion, there is no merit in the applicant's complaint that the judge's reasons fail the path of reasoning test. But was that path flawed, as the applicant submitted was the case? In answering that question it must always be borne in mind that the judge was required to decide the causation issue on consideration of all the evidence. That consideration was not confined to the direct evidence. Just as at any trial, it permitted inferential - but not speculative - reasoning.

18 In the period between November 1995 and March 1998 - (1) the applicant attended her general practitioners from time to time; (2) radiological and other investigations were performed; (3) the applicant made a transport accident claim and a WorkCover claim; (4) Dr McPherson wrote reports pertinent to each of those claims; and (5) medico-legal consultants examined the applicant in respect of each of those claims, and reported. Putting to one side, for the moment, the evidence of the applicant and her mother, each of those sources of information was, and is, relevant to determining whether the applicant injured her low back and left knee in the transport accident. It is to those sources which I now turn.

19 On 23 November 1995, which was the day after accident, the applicant attended upon Dr Rose. The doctor recorded that the applicant had 'hit both knees'. Her 'upper back' had been sore, but 'now only neck'. She was 'V tender upper thoracic spine and neck [?] esp. [?] spine'.

20 On 5 December 1995, the applicant made a claim on the Transport Accident Commission ('TAC') with respect to the accident on 22 November. She described 'injuries to neck, back and left shoulder. Bruising to legs'. As can be seen, she did not particularise the area of the back which was affected. As can also be seen, she was asserting that she had not merely hit her legs in the accident, but had injured them.

21 In the 12 months following 22 November, the applicant attended on her general practitioners a number of times for a variety of reasons. Practice notes record a complaint by the applicant about her left leg on 27 September 1996, a complaint of knee injury in early October, and of an X Ray performed at that time. Whilst notes in that period did refer to 'back' complaints, the only spinal injury distinctly identified in that 12 month period referred to the applicant's upper back and neck. It is true that on 1 March 1996 Dr McPherson noted 'Aggravation Back', and 'TAC'. But on 1 April 1996 the doctor made a note, 'Still Dorsal spine distress', and ordered a CT scan of the dorsal spine,[12] this implying that the March complaint had related to the dorsal spine.

22 By June 1996, the applicant was seeing Dr McPherson quite often. He noted: 'Acute work situation - Boss seems hell-bent on booting her out - very stressed.' This was a reference to the applicant's employment as an office manager and administrative assistant at the computer sales firm Centari Systems in Box Hill.

23 The applicant's work performance had been satisfactory prior to the transport accident. Immediately after that accident, she took two days off work. Then she resumed her usual activities. But according to the affidavit[13] of Jon Johnston, the then managing director of Centari, the applicant's work performance fell off from about the beginning of 1996, and deteriorated thereafter.

24 Dr McPherson gave the applicant medical certificates for her absences from work. She finally ceased employment with Centari on 24 June 1996.

25 The applicant continued to attend on Dr McPherson. He made notes of work and general health matters of which the applicant complained.

26 On 22 August 1996, the applicant was examined by Dr Shan, a psychiatrist, in connection with a claim she had raised against her employer for a work-related stress condition. The applicant, described by the doctor as a '25 year old individual', was recorded as having told him that she had suffered 'back and neck pain for two weeks' after the accident, but having returned to work 'with no further complaints'.

27 Five matters may be noted. First, the applicant did not attend on Dr Shan for assessment with respect to the transport accident. Second, the doctor's specialty was psychiatry. Understandably, he did not examine her back. Within his specialty, I add, he concluded that the applicant had no psychiatric or psychological disorder that had been significantly caused by her employment. She had 'no incapacity for work and no loss of mental powers involving inability to work'. Third, it is nonetheless the position, favourable to the respondent, that the applicant apparently made no mention of injuring her left knee in the transport accident. Fourth, the doctor's notes do not identify the area of the 'back' which was injured. Fifth, the history noted by Dr Shan that there were 'no further complaints' after two weeks is not compatible with the general practitioners' contemporaneous notes nor with the history recorded by a surgeon, Mr Kenneth Brearley, only three weeks later.

28 On 13 September 1996, the applicant attended Mr Brearley in respect of her transport accident claim. She gave him a history of complaining to her doctor, the morning after the accident, of pain in the neck and left shoulder, and in the lower back. She told him also that she had suffered bruising and abrasions over the arms and knees. Her current complaints were of low back pain and discomfort. The applicant told Mr Brearley that she had undergone a CT scan of the lower spine, but Mr Brearley did not see any report, and the applicant probably confused the dorsal spine and lumbo-sacral spine in giving that history. Examination of the low back revealed some restriction of lateral bending and some restriction of straight leg raising. Mr Brearley opined that the applicant's ongoing problem was soft tissue injury of the lumbar spine. That diagnosis, of course, was made in the absence of the doctor viewing investigation results. He further concluded that the reported injuries were 'consistent with the accident'.

29 Pausing, three observations may be made. First, this seems to be the applicant's first express mention of a low back injury. Second, the applicant stated that she had not merely hit her knees in the transport accident, but that they had been abraded and bruised. This tells against the submission for the respondent that the applicant had merely hit her knees - that is, without there being any indication of injury.[14] Third, the applicant did not complain to Mr Brearley of persisting left knee symptoms.

30 But, as to the third of those matters, only a fortnight later, on 27 September 1996, Dr McPherson noted the applicant was not sleeping well due to discomfort of the left elbow and left leg. The doctor prescribed Naprosyn.

31 In early October, the applicant was complaining about her left knee and her 'back' and there is reference to her having physiotherapy (a form of treatment noted as continuing in November 1996).

32 On or about 5 October 1996, the applicant's left knee was X-rayed. The outcome, as recorded in the practice notes, was 'NAD' and '(therefore) osteochondritis dissecans'. One matter is clear. The applicant was then complaining of a level of discomfort in her knee sufficient to warrant radiological investigation.

33 I have mentioned that the applicant made a WorkCover claim. I will go back a little in time to develop what happened in that connection.

34 The applicant was managed by Dr McPherson for stress from 18 May 1996, at which time she was suffering difficulty in completing tasks, and with concentration, relaxation and sleeping. Eventually, after a period off work, and then an unsuccessful return, she ceased work on 24 June 1996.

35 Dr McPherson provided the applicant with successive WorkCover certificates embracing periods the last of which ended on 23 December 1996. The description of injury in each of the certificates was 'acute stress reaction to workplace situation'.

36 The applicant made a claim for accident compensation. Dated 27 June 1996, it described the compensable injury as 'acute work-related stress - cfs'.[15] The injury was attributed to 'pressure from superiors work related stresses'. In response to a question whether she had 'had any previous pain or disability in the area of your present injury/condition', the applicant replied 'chronic fatigue syndrome'. Of course, she did not refer to physical injuries suffered in the transport accident. Why would she have done so?

37 In a statement dated 27 June 1996 made in connection with her WorkCover claim, the applicant said that before June 1996 she 'had an active social life and was fit and healthy'. But she also said that, apart from suffering chronic fatigue syndrome from age 19 for about four years, she 'never had any other serious illness apart from a back injury, whiplash, and shoulder injury, sustained in a car accident in November 1995'.

38 These observations may be made. First, the applicant inferentially treated the 1995 transport injuries as 'serious'. Second, the statement did not suggest that the effects of the injuries had passed. Third, the reference to a 'back' injury was ambiguous as to the area involved. Fourth, the statement did not refer to an injury to the left knee.

39 Between August 1996 and February 1997 the applicant consulted with a clinical psychologist, Mr Robert Wilks. This was to do with the subject-matter of her WorkCover claim. The applicant described various symptoms to Mr Wilks, including insomnia, tremors, weight gain, neck and shoulder tightness and lack of confidence. Mr Wilks was of the opinion that the applicant had no pre-existing psychological disorder before June 1996. He described her as suffering a moderately severe anxiety-depressive disorder to which her work was a significant contributing factor. That situation persisted as at February 1997, at which time Mr Wilks opined that the applicant would slowly improve, probably over a six to eight months' period.

40 On 6 March 1997, Dr McPherson wrote to WorkCover confirming his management of the applicant for work-related stress from 18 May 1996. In addition to providing a work and illness history, Dr McPherson opined that the applicant had an excellent prognosis, provided she changed employer and attended the psychologist, Mr Wilks. Significantly, Dr McPherson said:

Currently there is no physical handicap or impairment relating to the workplace situation, but the emotional/psychological issues would approximate to 20% whole body impairment.[16]

41 On 15 April 1997, the applicant issued proceedings in the Magistrates' Court against her former employer's insurer. The particulars of injury listed were: 'stress reaction, anxiety reaction, depression, sleep disorder, pain and suffering'.

42 The WorkCover claim was settled on 1 May 1997, on terms which are unknown.

43 I have already noted that the applicant made a claim on the TAC arising out of the transport accident, and have mentioned Mr Brearley's examination in that connection. It is convenient to trace developments with that claim.

44 On 19 May 1997, Dr McPherson wrote to Mr Cottier, the applicant's then solicitor, with respect to the transport accident injuries. He reported that -

No fractures or joint separations were sustained, but multiple soft tissue discomfort was experienced without nerve damage.

The discomfort related solely to the soft tissue ligamentous region.

Discomfort was noted:

With both knees after collision with the dashboard.

At over the cervical and upper thoracic spines.

In the left neck and shoulder areas (brachydynia) with referral to the left shoulder and left elbow and hand

The only limiting range was in the neck on extension

All the discomfort was from mild to moderate intensity initially.

The current residual consists of tenderness in the left neck and left elbow and mild discomfort in the intrascapula (sic) area on the back.

46 Further in this report, Dr McPherson noted that the applicant experienced 'considerable suffering' from her injuries and had required 16 sessions for trauma counselling and over 20 physiotherapy sessions. Dr McPherson regarded the future as 'one of full recovery over the next year'.

47 This was, by reference to the practice notes, an odd document. Despite recorded injury to the knees, there was not a word about the problem with the left knee which had required radiological examination. Further, by contrast with Mr Brearley's report of September 1996, there was no reference in the report to the applicant having a low back problem, but rather a reference to there being continuing neck and mild intrascapular symptoms - from which the applicant had told Mr Brearley, in September 1996, she had recovered. Note also that Dr McPherson's notes of October 1996 referred to 'back' as well as to 'neck'.

48 Even before this report was provided, TAC had advised - by letter dated 10 October 1996 - that it would no longer pay the applicant's medical and related expenses, or loss of earnings benefits, 'as we consider that you no longer require treatment'. The provision of Dr McPherson's report of 19 May 1997 did not alter the TAC's position.

49 The applicant continued to attend Dr McPherson, and to seek, through her solicitor, a change in TAC's position.

50 Dr McPherson's notes of 3 July 1997 include references to back pain, the left leg, and difficulty with sitting for extended periods.

51 Notes dated 31 March 1998 record 'problems with back and leg', a reference to the 'L4/5 disc', a finding of restricted straight leg raising bilaterally, and 'CT to 'L.Spine.'

52 Notes dated 6 April 1998 record 'disc prolapse at L5/S1'.

53 In June and July 1998, the applicant was prescribed, inter alia, Panadeine Forte.

54 On 27 July 1998 the notes record 'Awaiting result of MRI'.

55 On 11 November 1998, Dr McPherson reported to Mr Cottier, who was then the applicant's solicitor. He stated that an MRI had been performed, but that results were not to hand. The doctor also noted:

On observation using CAT scanning techniques the patient has been found to have a prolapse of L5 S1 right disc, the bugle [sic] of which is compressing the right L5 and S1 nerve roots as well as the cauda equina producing pain in both legs, worse on the left by compressing across the spinal canal space right to left. The compression on these nerve roots contributes to each sciatic nerve discomfort - intensity being equal. The pain in the lower back and down the legs intensifies at night and consequently insomnia results.

Because of the pain and insomnia over a protracted time the patient has become quite depressed because of the hopelessness of the situation. Lovan (a Prozac equivalent) was given with very little benefit and so indicated that the mental state was a consequence of a situation.

56 Dr McPherson, further noted that the applicant had no pre-existing condition prior to the accident, but because of her pain and reduced activity she had developed obesity, which did not help her circumstances.

57 Thus by the end of 1998, the applicant presented as a 27 year old woman with no prior history of back injury who had been diagnosed with a prolapse at L5/S1 and associated pain.

58 Provision of this report to TAC did not result in its changing its position. In a letter dated 17 December 1998, TAC relied upon Dr McPherson's earlier report and Mr Brearley's report (apparently without appreciating that they were in conflict), and further stated that Dr McPherson's recent report did not 'link [the applicant's] multiple symptoms to the motor vehicle accident'.

59 It was there that any claim arising out of the 1995 transport accident rested until more recent times. But the applicant's treating history continued; and from time to time the applicant was examined for medico-legal purposes - both with respect to physical and psychiatric disabilities. Investigations were conducted. It is unnecessary to mention every examination, every investigation result or to all the reports which were generated, but I should mention some of them.

60 Dr McPherson referred the applicant to a neuropsychiatrist, Dr John Lloyd, in mid 2000. The applicant gave the doctor, so far as physical symptoms are concerned, a history of gradual development of back pain in the period of resumed work with Centari, and of left knee pain often worse at night. This was a history of the kind which she thereafter repeated to other doctors.

61 In March 2001, the applicant was sent to Dr Vivian, a pain management specialist. She complained of low back and left knee symptoms. The doctor found evidence of low back disability, but no abnormal signs with respect to the left knee.

62 An X Ray of the left knee, performed in October 2004, revealed 'Low grade osteochondral lesions of the patella consistent with chondromalacia'.

63 X Ray of the lumbar spine, performed in February 2006, revealed a minimal slip at L5/S1. There were signs of disc degeneration at that spinal level only. There was generalised disc bulge.

64 The applicant began to attend Dr Tony Pastore, a clinical psychologist, in 2006. He took a history that the applicant had suffered injuries 'to the neck and shoulder, with pain also radiating down into her back'. He diagnosed adjustment and pain disorders, which he associated with her transport accident injuries.

65 In June 2007, the applicant was referred by her general practitioner, now Dr Penny Gaskell,[17] to Dr Paul Verrills, a pain medicine specialist. In a report dated 8 February 2008, Dr Verrills described the applicant as suffering severe disabling pain, predominantly in two areas, the left knee and the back. He noted that the applicant had 'a high intensity zone in the posterior annulus at L4/5.' He also noted the applicant had a narrow disc with moderate modic type 2 changes at L5/S1. In a later report, dated 21 March 2011, he confidently opined that 'the clinical indication is ongoing severe back pain and it is directly related to this lady's transport accident injury'.

66 Dr John Merory, a neurologist, provided a report dated 26 August 2007. The applicant had been referred to him by Dr Gaskell in 2005. The applicant gave Dr Merory a history of suffering severe low back pain within two days after the accident, and that she only later noticed left knee pain. He described the likely mechanism by which the applicant suffered left knee injury. He stated that he did not know whether the chondromalacia of the applicant's left knee was related to or aggravated by the accident, but said that 'the worsening of the lumbar disc disease could be'.

67 On 21 October 2007 Dr Gaskell provided a report about her treatment of the applicant since 2004, and more generally as to the applicant's attendances at the clinic from 1989. She stated, inter alia:

I began seeing [the applicant] regularly in June 2004 ... [The applicant] still complained of constant back and right (sic) knee pain which was not well controlled despite being on significantly high doses of anamorph and MS contin ... My concerns at this time were multi-factorial. I was concerned about her on-going knee and back pain, her significant dependence on narcotics, a probable depressive illness, anxiety, chronic fatigue syndrome and her on-going social and financial issues.

...

From the medical documentation it does appear that there were no significant back or knee problems prior to the motor accident in 1997. Following this accident, [the applicant] has suffered significant pain - which has contributed to a depressive and anxiety condition, dependence of narcotic analgesics and numerous other medical issues from this ... .

68 I should next mention a further report provided by Dr McPherson to solicitors[18] acting for the applicant in 2007. In that report, dated 18 July 2007, Dr McPherson referred to the car accident and also to the applicant's work situation. He noted that 'over the months' after the accident, the applicant's neck, head, shoulder and arm discomfort eased. However, Dr McPherson noted:

[s]he was having considerable discomfort relating to her lumbar spine - particularly on the left side. As time went by the discomfort continued and precluded walking any significant distance. Yet on examination with her supine, straight leg raising was restricted to approximately 40º because of low back pain. Yet again, on getting her to sit upright on the couch she could easily attain 90º without complaint. This was perplexing. X-rays were repeated and found to be normal. Therefore, CT was performed on 4th April 1996 relating to the thoracic spine and this was regarded as normal also. An MRI was performed on 6 November 1998, revealing nothing of significance, apart from a certain degree of high wear at the facet joint of L5/S1 left side. One of the imaging techniques demonstrate a possible disc prolapse which could not be confirmed on later episodes of imaging.

At my time of departure, Ms Davies had developed left knee pain as well as persistent sacroiliac and left leg pain of a sciatic nature. In addition, this patient was suffering a reactive complex of depression with anger and anxiety. Because of the multi-faceted situation involving physical, emotional and workplace issues, I did not in 2002 perceive there was any chance of meaningful employment for quite some time into the future and that pain relief may be afforded by an orthopaedic medicine facility.

69 The report was written long after Dr McPherson had retired from the practice - that having happened, it seems, in August 2002. If the doctor compiled the report by reference to the practice notes, such reference appears to have been incomplete, in consequence of which the report was misleading. For instance, the history of onset of the applicant's left knee problem was erroneous and there was no reference to the CT scan mentioned by Dr McPherson in his 1998 report. Moreover, the doctor's summation of the findings on MRI of the low back which was performed in November 1998 was much less than complete. Further again, the 2007 report was also erroneous as to the time when Mr Cottier became involved. Other than that, the report confirmed, in effect, that the applicant had not made complaint about her low back at the outset, but stated that at some indefinite time - it seems to have been within months of the accident - she suffered increasing lumbar spinal discomfort. In that respect, the report may be compared with the report of 18 May 1997.

70 Subsequent to Dr Gaskell's 2007 report, the applicant continued her attendances upon that doctor. In reports dated 26 October 2009 and 12 April 2010, the doctor noted little change in either the applicant's physical or psychiatric disabilities. The applicant's 'overall quality of life [remained] poor for a young woman'.

71 The applicant has also seen a number of specialists for treatment or medicolegal assessment since Dr Gaskell reported in 2007: Dr Verrills, Dr Pastore, Dr Leonard Rose,[19] Mr John O'Brien,[20] Dr Peter Blombery,[21] Mr Jonathan Hooper,[22] Mr Iain McLean,[23] Dr David Hickingbotham,[24] Dr Nigel Strauss,[25] Dr Robert Hjorth,[26] and Mr Russell Miller.[27]

72 In a broadly consistent way, in the case of each examining doctor, the applicant described her involvement in the rear end collision, hitting her knee on the dashboard area of the car and suffering injuries to her neck and shoulder, the development of low back pain and the progressive worsening of left knee pain.

73 To complete the medical picture, I should mention that repeat X Rays of the knee and low back, performed in July 2013, revealed more extensive abnormality of the applicant's left knee, and confirmed damage at the L5/S1 disc..

74 By mid-2013, the applicant was noted by a pain management specialist, Dr Leonard Rose, to be suffering various injuries sequelae - he having seen her since 2009. The physical conditions of the applicant were predominantly multi-level disc disease and severe pain in the lower lumbar spine; severe neuropathic knee pain, particularly, the left knee; significant depression; and long term dependence on opiates analgesia. Other observations by Dr Rose were that the applicant had all her teeth removed because of morphine ingestion, weight gain - 35 kilograms - due to cortisone ingestion and superficial lacerations arising from self-harm in the area of the knee.

75 The medical material was only part of the evidence before the judge. Importantly, the applicant went on affidavit and was cross-examined.

76 In her oral evidence, the applicant said that when she saw the general practitioner, Dr Rose, on 23 November 1995 she had pain in her knee, shoulder, neck and lower back. She said that a few days later, on 27 November 1995, when she saw Dr McPherson, she had pain in her knee, lower back and neck but she was not sure whether the pain in her shoulders had settled down. The applicant also gave evidence that she had experienced constant back and knee pain ever since the accident. She said the left knee pain started within two or three days of the accident and had definitely commenced before the end of November 1995. She said that within a matter of days after the accident, she woke up in the middle of the night and banged her leg against the bed and was in tears from the pain. She said she woke up her mother and father and asked for their assistance. The applicant gave evidence that in the early stages after the accident the left knee pain would keep her awake at night and she would quite often wake and be banging her leg against the bed. The applicant was asked to clarify why there was no mention in the clinical notes of the general practitioners about her knee and lower back injury. The applicant said she did not understand why there was no mention in the notes. The applicant also said that for at least the first two years after the accident the left knee pain was mainly a night-time issue but it slowly became worse as time passed. She said around two years after the accident the left knee pain became problematic: 'more of an issue'.

77 So far as her lower back was concerned, the applicant said she had pain in that area immediately after the accident and that it gradually became more and more of a problem as time passed. She said that maybe two or three years after the accident she really started to notice that the lower back pain was substantially increasing.

78 The applicant was cross-examined about her worker's compensation application. She acknowledged that she worked at least eight hours per day each week day in the three month period preceding the claim for worker's compensation which was lodged in late June 2006. In other words, she was working as described in the six month period immediately after the accident. As for her statement that 'prior to June 1996 [she] had an active social life and was fit and healthy' the applicant said that she had not intended to convey that the accident had not interfered with her ability to do her job and, further, she was having trouble sitting and standing at work due to her back pain. The applicant also gave evidence that she was struggling at times because the knee pain would quite often keep her awake at night. When pressed, the applicant said she did not mention the car accident related injuries in the worker's compensation statement dated 27 June 1996 because that statement referred to issues pertaining directly to her work situation.

79 There were other matters acknowledged by the applicant with respect to her work situation. She admitted experiencing a significant flare-up of chronic fatigue syndrome symptoms in 1996 but she said that whilst the symptoms revealed themselves when she was employed she did not really become ill until she left her employment. She said it was not unusual for her symptoms of chronic fatigue syndrome to occur when she was under stress. The applicant said she was under an 'incredible amount of stress' at the time she ceased to work and that she was under 'significant stress' throughout the second half of 1996 because of the conflict in her former workplace.

80 The applicant's mother also went on affidavit, and was cross-examined. In her affidavits, she deposed that she had read the applicant's affidavits and that their contents accurately reflected her daughter's continuing disabilities. In crossexamination, there were this question and answer:

All right. Well, what happened to cause her to leave Centari, as far as you're aware?---I'm aware of the car accident causing the trouble. She was - a couple of days from the accident, she woke her father and I up at night with this bad nerve pain in her knee, which we had never experienced anything like that, and I spent all night up with her.

81 The witness had not deposed to this matter. There was no challenge to that answer.

Problems with the judge's approach to resolving causation issues. How those issues should be resolved

82 I begin with the judge's consideration of the applicant's claim in respect of her low back condition. The causation issue was not entirely simple because of the elapse of time, because the practice notes did not specifically identify complaint by the applicant about low back injury until 1997 (although references to back injury in late 1996 were equivocal), and because Dr McPherson's reports of May 1997 and July 2007 were in conflict.

83 On the other hand, there was a body of material to which the judge did not refer that needed to be considered in resolving the particular causation issue, there was material to which his Honour gave, I consider, insufficient weight, and there needed to be very careful evaluation of Dr McPherson's reports. The following matters are in point.

84 First, the collision itself involved a very considerable impact. The applicant's car was 'written off'. Experience shows that a minor impact may lead to substantial injury, and that the converse may occur. But as a matter of probability, the more severe the impact, the greater the prospect of more severe injury.

85 Second, before the transport accident the applicant was a healthy 24 year old woman with no prior history of low back injury.

86 Third, Mr Brearley recorded a history of persisting low back symptoms when he examined the applicant in September 1996, and he made relevant findings. In substance, he accepted that there was a relationship between the transport accident and that condition. He so concluded even without the benefit of X Ray and other investigations, which soon showed that there were abnormalities in the applicant's low back.

87 Fourth, the fact that Mr Brearley obtained a relevant history and made relevant findings was just as much 'primary evidence' as the practice notes.

88 Fifth, not only did the applicant complain of low back symptoms to Mr Brearley, she told him that the neck and upper back symptoms had subsided. This was consistent with her later presentation, and suggests that her attention was truly directed to a continuing post-accident problem.

89 Sixth, in July 1997, and again in March 1998, the applicant unequivocally complained to her general practitioner of low back symptoms; and a CT scan performed in March 1998 showed that the applicant, then aged only 26, was suffering from a degenerative condition affecting the L5/S1 level of her spine which was causally unexplained save for the trauma of the transport accident.

90 Seventh, Dr McPherson's reports of May 1997 and July 2007 were, for reasons which I explained at [47] and [69] above, unsatisfactory. There were frank inaccuracies, and inconsistencies with the practice notes. To rely upon those reports to show either that the doctor did not give support to the applicant's claim, or that there were relevant and significant discrepancies between them, was to give them a significance which they did not deserve.

91 Eighth, the judge relied upon what he identified as the 'primary evidence' as a significant reason why the applicant's account of her back and knee injuries should not be accepted. Examination of the transcript of the applicant's evidence shows that she was at times belligerent, fractious and emotional in answering questions which probed her credit. Due regard must also be paid to the fact that the judge had the advantage of seeing and hearing the applicant. But the judge's identification of the 'primary evidence' was incomplete, both with respect to the back and knee conditions.

92 Ninth, the judge relied in part, in not accepting the applicant's account of her knee and back injuries, upon Dr Shan's report, the accident compensation claim form which the applicant completed, and the accident compensation statement which she made. But, for reasons which I explained at [27], [36] and [37]-[38] above, there was little to be made from that material which bore upon the applicant's credit so far as the cause of her low back problem was concerned.

93 Tenth, the judge seems to have treated the applicant's claim as succeeding or failing on the most extreme view of her account of the onset of her low back and knee symptoms - that is, that they manifested themselves immediately, as the predominant features of her symptomatology. But in a number of instances, in histories given to doctors, the applicant emphasised the developing nature of her low back and knee problems, albeit that she identified immediate knee symptoms (which her mother confirmed in her evidence). Moreover, the sequence of events about which there was certainty made acceptance or rejection of the applicant's account as to the timing of onset of her low back (and left knee) problems of no more than modest importance.

94 Eleventh, it was pretty remarkable for the judge to reject the evidence of the applicant's mother, particularly, the mother's evidence about the applicant's immediate problem with her knee. This was elicited in cross-examination; and when given, was not challenged. True, that evidence did not relate to the low back injury which I am now considering, but the applicant's credit was treated indivisibly by the judge.

95 Cases must be determined on all the evidence. Here the effect of what his Honour did was to decide the causation issue, so far as the low back condition was concerned, on only a part of the evidence. I do not accept, I add, the respondent's submission that (assuming there to have been a time elapse between the transport accident and the onset of low back symptoms), the entirety of the evidence did not permit an inference that the one was a cause of the other. An inference of that kind was not only available, I would draw it.

96 In the event, I am satisfied that the judge's approach was erroneous, and that consideration of all the evidence leads to the opposite conclusion.

97 I turn to the judge's conclusion that the applicant had not established that her left knee problem was caused by the transport accident. In my opinion, his Honour's conclusion was flawed because, again, he did not take a whole of evidence approach.

98 Because his Honour, in substance, treated the applicant's credit as indivisible, matters which caused him to reject the applicant's account with respect to her low back injury inevitably affected his assessment of the causation question with respect to the knee condition. I will not recapitulate those matters, but will focus upon matters specific to the latter condition.

99 First, the applicant described from the outset suffering direct trauma to her knees in the transport accident. Early on, she described not merely hitting her knees, but of suffering external signs of injury. See [20] and [28] above.

100 Second, his Honour concluded that the applicant did not make a contemporaneous complaint that she suffered an injury to her knee. That conclusion involved rejection of the evidence not only of the applicant, but of her mother as noted at [94] above. In the circumstances in which the mother's evidence emerged, I do not accept that it should have been rejected.

101 Third, let it be assumed that the applicant did not make complaint about her knee to her general practitioner until October 1996, and that she was not observed having problems with the knee in her work up to the time when she ceased in late June that year. It is nonetheless the fact that by early October 1996 her knee was causing her sufficient symptoms to lead to her being referred for X Ray. The results of the X Ray, as described in the notes, were not - for reasons explained at [32] above - significant. Later radiology confirmed the existence of a problem such as was suspected in October 1996.

102 Fourth, contrary to the submission for the respondent, it is not the case that, after complaint about her left knee in October 1996, and inconclusive radiology, the applicant did not complain about her knee for 'years and years'. As I read the available practice notes, she did so in July and September 1997, and in March 1998. Moreover, she complained to Dr Lloyd about left knee pain in 2000, and to Dr Vivian in 2001.

103 Fifth, as is the case with the applicant's low back condition, the applicant had no history of left knee symptoms before the transport accident. She struck her knee in the course of that substantial impact. Within a relatively short period of time, the applicant, then a young woman, was complaining of symptoms sufficient to cause her referral for X Ray; and within a matter of years thereafter, radiology revealed multiple areas of damage. No other trauma was identified as being potentially causative of that damage.

104 In the event, I consider that the judge's approach to the evidence led him into error with respect to causal connection between the transport accident and the applicant's left knee injury.

105 I turn to the psychiatric injury relied upon by the applicant. Essentially, the judge rejected the opinion of psychiatrists which linked a diagnosed adjustment disorder and chronic pain disorder with the transport accident because: (1) opinions which asserted a linkage assumed that the low back and left knee injuries were caused by that accident; and (2) there were other possible causes of the applicant's psychiatric upset - her susceptibility to chronic fatigue syndrome and work-related stress.

106 Because the applicant established that her low back and left knee injuries were caused by the transport accident, the opinions of the psychiatrists which linked her psychiatric disabilities with the transport accident were, I consider, made good. Nothing in the practice notes, Mr Wilks' reports or Dr Shan's report tells to the contrary.

107 I have been somewhat critical of the judge for failing to take a 'whole of evidence' approach to resolving the causation issues. In fairness to his Honour, I should say that the task which he was set was not easy. Rather than his Honour being assisted by a focused analysis, a chronology and narrative of the injuries, he was given a volume of reports and left to the task. In some respects the applicant presented the matter in the same way in this Court. For instance, obvious

inaccuracies and deficiencies in particular material were left to the Court to identify. This is less than satisfactory. It was a tedious task for his Honour and it has been a tedious task for this Court, to traverse some 18 years of medical histories, findings and opinions with limited assistance. Although the matter was not raised in argument, it seems to me that applicants under the legislation are subject to the obligations under the Civil Procedure Act 2010. As part of the mandatory overarching obligations under the Civil Procedure Act applicants are bound to present their evidence to the Court in a comprehensive and comprehensible manner.[28] In any event, for the reasons explained scrutiny of the evidence before his Honour means that on the application of correct principle the judgment cannot stand.[29]

108 As I foreshadowed at [9] above, the applicant should have leave to appeal. The appeal should be allowed. The applicant (it not being in issue below that, if causation was established, the injuries complained of constituted serious injury) should have leave to bring a proceeding for damages in respect of those injuries. The originating motion by which the applicant sought leave to bring a proceeding under s 93(4)(d) of the Transport Accident Act also sought an extension of time to bring the proceeding. The latter application will remain extant in the event that the orders which I propose are made, and it must be determined in the County Court.

109 I agree with the Chief Justice that the orders which she proposes should be made, for the reasons which her Honour gives.

[1] The date of accident was misstated, but nothing turns on it.

[3] Davies v Nilsen [2013] VCC 1242 [10] ('Reasons').

[5] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 128 (Gleeson CJ, Gummow and Kirby JJ).

[7] One of the deponents was the then managing of the applicant's employer, whom the applicant implicated in her WorkCover claim as the person who had imposed undue pressure upon her, this causing the work-related stress. His objectivity might be doubted although, as happens in the hearing of these applications, he was not called for cross-examination.

[8] [2013] VSCA 22 [112] ('Warfe').

[9] There are two respondents: Judith Nilsen (presumably the driver of the vehicle which collided with the rear of the applicant's vehicle) and the Transport Accident Commission. It is convenient, however, to treat them in the singular in these reasons.

[10] [2014] VSCA 14 [39]-[40].

[11] [2013] VSCA 22 [107]-[108].

[12] The result of the CT scan is unknown, but it matters not. The point, helpful to the respondent, is that the investigation related to the dorsal spine.

[14] The same may be said of the reference in the TAC claim form, dated 5 December 1995, to 'bruising to legs'. See [20].

[15] 'cfs' meaning, presumably, 'chronic fatigue syndrome'.

[17] She had become the applicant's general practitioner in 2004, succeeding Dr Barham, another member of the practice, who had succeeded to Dr McPherson when that doctor retired.

[19] A specialist in pain management, to whom Dr Gaskell referred the applicant in 2009, and who thereafter regularly reviewed the applicant.

[20] An orthopaedic surgeon who examined the applicant for the TAC in 2008. In his report dated 30 September 2008, he did not exclude the presence of some non-specific back pain given the radiological change that had been noted. However, he observed that there were 'very definite signs to suggest non-organic factors' being relevant to the applicant's presentation. He went on to state that the applicant presented with a chronic pain syndrome which he believed was significantly influenced by non-organic factors. He stated that the history suggested that the current clinical condition related to the described accident.

[21] A consultant physician in vascular disease.

[22] An orthopaedic surgeon, who examined the applicant on behalf of the TAC in 2011.

[23] An orthopaedic surgeon specialising in knee injuries.

[28] See Yara Australia Pty Ltd & Ors v Oswal [2013] VSCA 337 [9]-[10].

[29] Mobilio v Balliotis [1998] 3 VR 833.

At a glance

Court

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Before

Source

Judgment (144 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)