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[2003] VCAT 2027
appellant. TAC's determination of 12 March 2002 of whole-person impairment of 11% was set aside and in lieu it was determined that the applicant has a whole-person impairment of 20%. Respondent ordered to pay...
VCAT reviewed a TAC determination that the applicant had an 11% whole-person impairment from a serious 1993 motor vehicle accident. The Tribunal accepted a 10% psychiatric impairment report, rejected a claim that left ankle instability was caused by the accident because contemporaneous medical records did not support it, accepted 10% for brain dysfunction based on the applicant's neuropsychological and neurosurgical experts, and accepted 1% for vision impairment. Using the AMA Guides combined values chart, the Tribunal set aside the TAC's 11% finding and substituted a 20% whole-person impairment, and ordered the TAC to pay the applicant's costs (see [7], [9]-[15], [16]-[21], [22]-[29]).
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1,834 words · generated 15/08/2026
This is a VCAT decision in which Judge Bowman reviewed the Transport Accident Commission's (TAC's) determination of whole-person impairment (WPI) for the applicant, Mr David Farquhar. The judgment records that Mr Farquhar was involved in a serious motor vehicle accident described in the text as occurring on 31 September 1993; the Tribunal accepts the accident was horrific, with two fatalities in another vehicle, and that the applicant suffered a brief period of unconsciousness and post-accident amnesia and was hospitalised for about four days ([1]-[2], [13]).
No linked legislation citations have been extracted yet.
TAC had determined the applicant’s whole-person impairment as 11% on 12 March 2002 (the starting point for the review) ([5]). The applicant sought a VCAT review by application dated 14 February 2003 and the matter was heard on 27 and 28 October 2003 with decision delivered on 31 October 2003 ([6]; header details).
Four heads of injury were relevant to the AMA Guides assessment. One head, a psychiatric impairment assessed by Dr Serry at 10%, was accepted by both sides and by the Tribunal ([7]). The three contested heads were: (1) left ankle laxity/instability; (2) disturbance of complex integrated cerebral function (brain injury); and (3) visual impairment including a left-eye squint. The Tribunal evaluated contemporaneous medical records, treating practitioners’ notes, and competing expert reports (orthopaedic/orthoptic, neuropsychological, neurosurgical, ophthalmological and other specialists) in reaching findings on causation and impairment percentages for each head ([9]-[28]).
The Tribunal rejected a causal link between the left ankle condition and the accident; accepted a 10% brain impairment for disturbance of complex integrated cerebral function; accepted a 1% vision impairment related to the accident; and, applying the combined values chart, arrived at a whole-person impairment of 20%, setting aside TAC’s 11% determination and substituting 20%. The Tribunal also ordered costs to the applicant ([14]-[15], [19], [28]-[29]; Orders).
Two main evidential themes shape the Tribunal's decision-making: (a) weight given to contemporaneous medical records where the applicant is an unreliable historian; and (b) the Tribunal's evaluation and preference between competing expert opinions after examining the applicant and considering testing.
Left ankle causation: The Tribunal described the applicant as a "poor historian" ([10]) and therefore placed "greater emphasis on the contemporaneous medical material" (ibid). The GP notes from Dr Shevill (treating GP) contained records of right ankle/foot complaints both before and after the accident, but no recorded left ankle complaints until September 1999 (almost six years after the accident) according to Dr Campbell’s notes; Ballarat Base Hospital records at the time of admission shortly after the accident showed no limb abnormality and no walking difficulty ([11]-[13]). On that basis the Tribunal preferred the view that a left ankle injury causally related to the accident would have produced earlier complaints, and allowed no impairment for the left ankle ([14]-[15]).
Brain impairment: The Tribunal had competing expert evidence. It preferred the neuropsychological testing and clinical diagnosis of Dr Molloy and the neurosurgical assessment of Mr Southby, which diagnosed an enduring disorder of attention and concentration attributable to the concussive head injury and assessed disturbance of complex integrated cerebral function at 10% ([18]-[19]). The Tribunal expressly acknowledged the respondent’s experts were eminent but nonetheless found the applicant’s experts more persuasive on the evidence and accepted causation, noting early indicators in Dr Garner's report and GP notes ([16]-[21]).
Vision impairment: Dr Lazarus, the ophthalmologist, assessed 1% vision impairment. Although Dr Lazarus later qualified his causation opinion, asking whether the impairment could be distinguished from previous head traumas, the Tribunal considered the initial specialist view, the applicant's statement, GP and neuropsychological reports, and Mr Southby's observations suggesting mid-brain involvement, and accepted on balance that the visual impairment was related to the accident ([23]-[28]). The Tribunal therefore allowed 1% under Chapter 6.
Finally, the Tribunal combined the accepted assessments (10% psychiatric, 10% cerebral, 1% vision, noting the left ankle was disallowed) using the AMA Guides combined values chart and calculated a 20% whole-person impairment, substituting that for TAC’s prior 11% determination ([7], [19], [28]-[29]).
This decision is an administrative/compensation tribunal determination applying the AMA Guides and established evidential principles. It does not purport to set new legal doctrine beyond reaffirming evidential approaches commonly applied in impairment and causation disputes:
Before: In cases assessing impairment and causation, courts and tribunals routinely weigh contemporaneous medical records heavily and evaluate competing expert opinions on their merits, including the quality of testing and direct examination of the claimant.
After: The Tribunal's decision illustrates application of those evidential principles in a TAC WPI context: (a) if contemporaneous records do not support a claimed injury soon after the event, the Tribunal may reject a retrospective causal claim; (b) detailed neuropsychological testing and coherent clinical explanation may carry significant weight in assessing cerebral impairment; and (c) even where a specialist later qualifies causation, the Tribunal may accept causation on balance if other evidence supports a link.
The judgment does not cite or distinguish authorities, nor does it claim to change law. It demonstrates practical application of evidential evaluation in impairment disputes under the AMA Guides.
Paragraph 10: "It is simply that he is a poor historian, and this places greater emphasis on the contemporaneous medical material."
Paragraph 13: "Examination of his limbs on 31 December 1993 revealed no abnormality. On 5 January 1994 there is reference to a grazed hip, and to the fact that the applicant had no difficulty walking."
Paragraph 18: "Dr Molloy diagnosed an enduring 'disorder of attention and concentration which adversely affects the applicant's ability to cope with multi-testing and to deal with multiple current inputs in daily life in an effective manner'."
Paragraph 19: "Mr Southby ... has arrived at the conclusion that the applicant suffers a disturbance of complex integrated cerebral function resulting in an assessment of 10%."
Paragraph 27: "On balance, I accept that the impairment of vision is related to the accident."
Paragraph 29: "Accordingly, using a combined values chart, and if my mathematics are correct, the result is a whole-person impairment of 20%."
This decision is most directly relevant where:
An insurer's WPI determination is challenged and the dispute turns on causation and the correct allocation of impairment percentages under the AMA Guides.
The claimant is an unreliable historian (memory gaps, amnesia) and contemporaneous medical records are sparse or point away from a claimed injury; tribunals will scrutinise early records for objective signs or complaints.
There are competing experts with different ratings; where neuropsychological testing is available and well-explained, a Tribunal may prefer that evidence when assessing cerebral impairment.
A specialist assessment initially links impairment to the accident but later qualifies causation because of prior injuries; the Tribunal may nonetheless accept causation on balance if other contemporaneous and expert evidence supports the link.
Practitioners should note this is a fact-sensitive application: the Tribunal's preference depended on the timing and content of GP and hospital notes, the nature of the specialists' testing, and the overall clinical narrative ([10]-[21], [23]-[28]).
The judgment itself does not discuss subsequent judicial or tribunal treatment; it is a single VCAT panel decision applying evidential and medical-assessment principles to the facts before it. The text contains no analysis of later precedent treatment or any appellate consideration. Therefore, from the source document alone, no direct statements can be made about how later courts have treated this specific decision.
For practitioners seeking to rely on its reasoning, it should be treated as persuasive within the Victorian tribunal context for similar fact patterns, rather than as binding precedent from a superior court.
The judgment leaves a few practical questions for future cases, driven by the factual and evidential approach the Tribunal used:
Weight of medical records vs late-reported symptoms: How strong must contemporaneous silence be before a Tribunal rejects a retrospective causal claim where later objective findings exist? This decision rejects the left ankle claim based on lack of early complaints and early normal examinations ([11]-[14]), but borderline cases will present difficult evidential questions.
Dealing with multiple head traumas: Where a claimant has prior head injuries and a specialist cannot distinguish the causal contribution between earlier traumas and the subject accident (as Dr Lazarus later indicated), what combination of evidence will suffice for a Tribunal to accept causation on balance? Here the Tribunal accepted causation for vision impairment despite the specialist's qualifications because of the totality of evidence ([24]-[28]).
Expert preference after direct observation: This decision shows a Tribunal will prefer one set of experts over another after directly viewing the claimant and considering testing results ([17]-[19]). Future cases will need to carefully record the basis on which one expert's evidence is preferred, especially where experts are equally credentialed.
Calculation transparency: The Tribunal used the combined values chart and concluded a 20% WPI, noting "if my mathematics are correct" ([29]). While not a legal issue, parties and practitioners may seek clearer, step-by-step disclosure of the combination calculation to avoid challenges on computational grounds.
Costs at VCAT for impaired person reviews: The Tribunal awarded costs on County Court Scale A including circuit fees and counsel for reserved decision (Orders). How routinely such costs will be awarded in VCAT reviews of TAC determinations is an open practical question, dependent on conduct and context.
These questions highlight that the decision is a fact-driven application of general evidential principles, and that similar outcomes depend on the precise medical record, the quality of testing, and the coherence of expert opinion.
General note: This is a VCAT decision by Judge Bowman; the analysis above is grounded in the judgment text (paragraph citations given). Before relying on this summary or any draft or interpretation for action, obtain a qualified Australian lawyer to check it. This is general legal information, not legal advice; Zoe can make mistakes; get a qualified Australian lawyer to check before you act on or rely on this.
1. Determination of Respondent of 12 March 2002 that Applicant has a Whole Person Impairment of 11% is set aside and in lieu thereof it is determined that Applicant has a Whole Person Impairment of 20%.
2. Order Respondent to pay Applicant's costs on County Court Scale "A" to be taxed in default of agreement, and including a certificate for a circuit fee of $346 and for counsel to hear reserved decision.
1. In this matter, the applicant, who is aged 31 years, sustained injuries when involved in a motor vehicle accident on 31 September 1993.
2. I accept that the accident was horrific in nature, involving the death of two occupants of one of the other vehicles involved. I also accept that, following the accident, the applicant was knocked unconscious for a brief period, measured in minutes rather than hours, but probably being in the order of 15 to 30 minutes, and with corresponding amnesia. There is a gap in his recollection from seeing, prior to the accident, the face of the lady who was subsequently killed in the other vehicle until his next recollection of walking on the roadside. He was hospitalised for some four days, and I accept his evidence that there are some aspects of this period of four days concerning which his recollection is hazy.
3. I also accept that, prior to the accident, he was an elite runner of near Olympic standards, running some 150 to 160 kilometres per week. He resumed running after the accident, not quite achieving the same high levels, but still running a considerable, though lesser, distance each week. He seems to have last raced competitively in a cross country or long distance race in June 1999.
4. I also accept that, after the accident, he has engaged successfully in various studies and now works as a consultant draftsman.
5. The history of this litigation is as follows. The case involves assessment of impairment in accordance with the 2nd edition of the AMA Guides, and particularly in reference to four areas of injury. The respondent has assessed the applicant as having a whole-person impairment of 11%. This assessment was determined on 12 March 2002.
6. By an application dated 14 February 2003, the solicitors for the applicant sought a review of this determination on the ground that it was too low. Oral evidence was taken from the applicant, the balance of the evidence being introduced by way of tendered documents and reports.
7. Of the four heads of injury which constitute the assessment, one of them is not controversial. The assessment of Dr Serry, consultant psychiatrist, who examined the applicant on behalf of the respondent, is accepted by the applicant. It is an assessment of 10% primary psychiatric impairment pursuant to the Guides. Given the nature of the accident in which the applicant was involved, such an assessment is hardly surprising, and I also accept it.
8. I will now deal with the three controversial areas of assessment in turn.
9. The level of impairment, namely 10%, is not controversial. There is no doubt but that there is laxity and instability in the left ankle due to a partial tear of the lateral ligament. The real question is whether this is related to the subject accident.
10. In my opinion, on balance it is not. I accept that the nature of the other injuries sustained by the applicant may well render him a poor historian in relation to these matters. Nevertheless, I am far from satisfied by his evidence concerning the link between the left ankle injury and the accident. I am not suggesting that he was deliberately misleading. It is simply that he is a poor historian, and this places greater emphasis on the contemporaneous medical material.
11. His treating general practitioner, the late Dr Shevill, has, in her clinical notes, recorded various complaints concerning the applicant's right ankle, such complaints being both before and after the accident. This conflicts with the history he has given elsewhere, for example to Mr Bourke, that he had no ankle problems in either foot prior to the accident, and conflicts with his history to Messrs Carey and Pryor that he had no previous musculo-skeletal problems. In any event, all the complaints to Dr Shevill concerned his right ankle or foot, including a complaint on 24 September 1994.
12. When Dr Shevill died, Dr Campbell became the applicant's general practitioner. Whilst there is an earlier reference to right ankle problems, the earliest reference to any left ankle problem as recorded by Dr Campbell appears to be in September 1999, almost 6 years after the accident. What is of added significance is that during that 6 year period the applicant had seen doctors on some seven occasions concerning various problems, but had not mentioned the left ankle. He had twice mentioned the right foot or ankle and, indeed, in October 1998, an x-ray of the right ankle was organised. Thus, however poor an historian, he was conscious of right lower limb problems but made no mention of the left.
13. Further, there is no reference to any left ankle problems in the records of the Ballarat Base Hospital to which he was admitted immediately after the accident, and where he was subsequently seen. Examination of his limbs on 31 December 1993 revealed no abnormality. On 5 January 1994 there is reference to a grazed hip, and to the fact that the applicant had no difficulty walking.
14. In those circumstances, and where contemporaneous records are important, I do not accept that the left ankle injury is related to the accident. I prefer the view expressed by Mr Carey that, given the nature of the injury, some complaint would have been expected near the time of the accident if the two were related.
15. Accordingly I allow no impairment assessment in relation to the left ankle.
2. Disturbance of Complex Integrated Cerebral Function, or Brain Injury
16. This area of dispute relates to Chapter 2 of the Guides, and in particular Table 2.1. As was pointed out by Mr Keogh on behalf of the applicant, this is really a conflict of views between Dr Elsass, Dr Molloy and Mr Southby for the applicant, and Dr Drury and Professor Davis for the respondent.
17. Having viewed the applicant and read the detailed expert opinions, I prefer the approach taken by those on behalf of the applicant. That is no criticism of Dr Drury and Professor Davis, both of whom are eminent and expert practitioners.
18. It seems to me that the evidence of Mr Southby, particularly when read in the light of Dr Molloy's subsequent report and the testing which she conducted, accurately reflects the applicant's level of impairment. Dr Molloy diagnosed an enduring "disorder of attention and concentration which adversely affects the applicant's ability to cope with multi-testing and to deal with multiple current inputs in daily life in an effective manner". She opines that the overall level of efficiency of his apparent intellect is compromised. She expresses the view that the primary cause of his problems is the concussive head injury which has led to a disturbance in brain function.
19. Mr Southby, neurosurgeon, has arrived at the conclusion that the applicant suffers a disturbance of complex integrated cerebral function resulting in an assessment of 10%. As stated in his brief subsequent report, his assessment allows for a degree of organic brain damage. Professor Davis has arrived, with considerable misgivings, at a tentative assessment of possibly 5%. However, I prefer the assessment of Mr Southby, and I prefer the views of the neuropsychologists referred to above and who examined the applicant - that is Drs Elsass and Molloy.
20. I also accept that the condition is related to the subject accident. Early indications of some difficulties are apparent in the report of Dr Garner and the notes of Dr Shevill. In any event, it is also the view of those practitioners whose opinions I prefer.
22. The applicant also claims an impairment assessment pursuant to Chapter 6 of the Guides. He claims visual difficulties, including a squint in the left eye, following the accident.
23. The only examination and assessment by an eye specialist is that of Dr Mark Lazarus, who examined the applicant on behalf of the respondent, although Mr Southby also had some observations to make concerning the problem. It is also referred to in the report of Dr Molloy.
24. The assessment of Dr Lazarus is of 1%. The amount of that assessment is not challenged. However, in a brief subsequent report, Dr Lazarus who had previously attributed the impairment to head injury presumably sustained in the accident, expresses some qualification of his views in relation to causation. He notes that the applicant had been involved in multiple episodes of head injury prior to the accident, and can not then satisfactorily distinguish between them. It seems that he still relates the condition and impairment to trauma, but has difficulty in distinguishing between the causative effect of these traumas.
25. The notes of Dr Shevill, whilst difficult to read, seem to reveal that the applicant was involved in two fights prior to the accident. Whilst there was reference to the head in each of these notes, and to the right eye in one of them, neither seem to have resulted in any treatment of note, if any treatment at all. Perhaps an x-ray may have been arranged.
26. By way of contrast, the accident involved a concussive head injury of substance. Mr Southby refers to the eye condition as being suggestive of some damage to the upper mid brain. This fits in with the overall assessment of a degree of organic brain damage.
27. On balance, I accept that the impairment of vision is related to the accident. This appears to me to be logical, and also in accord with the applicant's statement, which he adopted in evidence. It also accords with the history given to Dr Campbell and Dr Molloy, with the initial views of Dr Lazarus, and is consistent with the remarks of Mr Southby.
28. Accordingly, an assessment of 1% is allowed pursuant to Chapter 6.
29. In conclusion, using a combined values chart, and if my mathematics are correct, the result is a whole-person impairment of 20%. Accordingly, the determination of the respondent of 12 March 2002 of a whole-person impairment of 11% is set aside, and in lieu thereof it is determine that the applicant has a whole-person impairment of 20%.
Farquhar
Transport Accident Commission [2003] VCAT 2027
TAC's determination of 12 March 2002 of whole-person impairment of 11% was set aside and in lieu it was determined that the applicant has a whole-person impairment of 20%. Respondent ordered to pay applicant's costs on County Court Scale 'A' to be taxed in default of agreement, including a certificate for a circuit fee of $346 and for counsel to hear reserved decision (Orders; [29]).