Gennimatas v Transport Accident Commission [2002] VSC 552

Supreme Court of Victoria|2002-12-18|Before: Ashley J

Accident compensation - transport accident - determination of degree of impairment - multiple transport accidents - nature of necessary causal connection between transport accident and injury and between injury and degree of impairment - apportionment of overall degree of liability - whether misdirection. Courts and Tribunals - statement of reasons for decision - whether adequate.

This is an appeal from a decision of the Victorian Civil and Administrative Tribunal constituted by Deputy President Galvin. Written reasons for the decision were delivered on 24 May this year after a hearing on 15, 16 and 17 April. By its decision, on a review under Division 3 of of the (the Act), the Tribunal set aside a decision of the Transport Accident Commission (the Commission), and determined that the whole person impairment of the appellant, Bill Gennimatas, arising from a transport accident which occurred on 23 February 1997 was 20%. That was a pyrrhic victory for the appellant. The Commission had earlier determined that the appellant's whole person impairment was 19%. The appellant doubtless sought a determination that the degree of the impairment was 30% or more.

Appeal to this Court from the Tribunal's decision is only available by leave upon a question of law.[2] A Master granted the appellant leave to appeal on 2 August this year upon four grounds specified in a proposed Notice of Appeal. They were claimed to relate to two questions of law. Those questions were stated as follows:

"1. How should a tribunal of fact determine and/or apportion an impairment assessed under s. 46A(1) of the Transport Accident Act 1987 (as at reprint No 4) as a result of a transport accident where the impairment has been contributed to by a subsequent independent event? 2. What reasons for decision in a review of an impairment determination under s. 46A(1) of the Transport Accident Act 1987 are proper and adequate reasons to explain the basis for an apportionment of an assessed impairment having regard to subsequent independent events contributing to the impairment?"

The questions were given context by the grounds of appeal. The first question challenged the Tribunal's finding that only 50% of the overall degree of impairment in the case of each of 2 spinal impairments was related to the accident of February 1997. That finding was said to be the consequence of a misdirection. The second question proposed, simply, that the Tribunal's Reasons were inadequate.

The framework of the appeal may quickly be sketched, essentially by reference to findings made by or to an approach taken by the Tribunal neither of which were challenged before me.

* The appellant suffered from asymptomatic spinal degeneration before he was involved in a transport accident on 23 February 1997.

* Thereafter, he was involved in three further transport accidents - on 10 March 1997, 28 July 2000 and 7 June 2001.

* The third of the accidents played no significant part in the plaintiff's impairment.

* Regard should be had only to evidence of impairment prior to and without regard to the occurrence of the fourth accident.

* Whilst the appellant had suffered certain falls, any contribution by them to his spinal symptoms was speculative.

* The appellant's whole person impairment in respect of loss of thoraco-lumbar spine mobility, calculated by reference to the what the Act calls "the AMA Guides" (the Guides), was 24%.[3]

* The appellant suffered from a further 10% whole person impairment in respect of "non-operated, clinically established disc derangement with residuals" at two levels, L4/5 and L5/S1, each of the lesions attracting a 5% whole person impairment. [4]

* The appellant's whole person impairment attributable to his spine was 32%[5].

* The appellant had a primary psychiatric whole person impairment of 5% attributable to the transport accident which occurred on 23 February 1997.[6]

Against the background described, the Tribunal concluded, critically, that only one half of each of the spinal impairments should be attributed to the transport accident which occurred on 23 February 1997. In consequence, after an exercise combining the reduced spinal impairment assessments and the psychiatric assessment, it arrived at a whole person impairment of 20%.

The appellant's principal submission was that the Tribunal's conclusion that only one half of each of the spinal impairments should be attributed to the transport accident of 23 February was arbitrary and capricious. The Tribunal had misdirected itself. It had evidently failed to consider whether injury suffered on 23 February 1997 was a cause - not necessarily the only cause - of the whole of the spinal impairments which it determined were present. The Tribunal's reasons disclosed the error. They said this:

"Upon the evidence, it is reasonable to conclude that both accidents contributed to his symptoms".[7]

According to the submissions for the appellant it was enough that the relevant transport accident was a cause of the entirety of the spinal impairment. It did not have to be the sole cause. Attention was drawn to authorities dealing with workers compensation and crimes compensation legislation. There it has been respectively held that incapacity results from injury if the injury materially contributes to the incapacity; and that it is enough, to satisfy the requirement that a person be injured "by or as a result of" a criminal act, that there be a causal relationship between the criminal act and such injury , it being immaterial that other unconnected events are also implicated therein.[8] Similar notions of causation are, of course, well known to the law. In a claim in negligence, for example, it is only necessary that, applying the test of common sense and experience, a defendant's negligence be a cause of the plaintiff's loss and damage - an approach that has several applications.

The first question to be decided is the validity or otherwise of the argument just described in the context of the pertinent provisions of the Act. If the argument was invalid, it would be pointless examining whether the Tribunal had failed to apply that approach.

The Act has undergone change since 1997; in particular by the Transport Accident (Amendment) Act 1998[9] (the 1998 Act). Notwithstanding repeated amendment, however, little that is presently relevant has changed since 1997. But I should mention s. 46A(9), inserted by the 1998 Act. The subsection provides in substance that s. 46A and certain Regulations as in force immediately before it commenced "continue to apply for the purpose of determining the degree of impairment in respect of an injury as a result of a transport accident" which happened before its commencement.

Under the earlier provisions recourse to the AMA Guides, 2nd edition, was obliged by the definition of "degree" in s. 3(1) of the Act and the Transport Accident (Impairment) Regulation 1988. Under the present legislation s. 46A(2) prescribes that, in the usual case, the degree of impairment must be determined in accordance with the AMA Guides, which by s. 46A(7) is to be understood to mean for the most part the 4th edition of that work.

Central to the Act, at all times, have been the following elements:

I should say something about the framework of the legislation. A person who is injured as a result of a transport accident must, ordinarily, make a claim for compensation within a year after the accident: s. 68(1). There is a form of claim: see s. 67(1) and form 5 prescribed by the Transport Accident Regulations 1996. That form requires a claimant to describe his or her "transport injuries". A person so injured is entitled to compensation in accordance with the Act. See, for example, s. 35(1).

The financial consequences of injury are compensable under the Act; whether by way of weekly compensation or by payment for medical services which have been rendered. If the injury qualifies as serious, damages are recoverable both in respect of pecuniary loss and pain and suffering. It is unnecessary to here refer to the qualifications which the Act imposes in respect of recovery of damages of the two types.

What then is the place of (degree of) impairment in the Act? Impairment is distinct from injury, as is evident from the fact that some compensation is payable without the interposition of a determination of impairment. See also the distinction drawn between injury and impairment in, for example, ss. 46A(8)(9), 46AA(1), 46B(1), 47(7) and 93(2) - (4).

Under the Act a determination of degree of impairment must be made in the case of each person injured as a result of a transport accident in the event that it appears to the Commission that such person is or may be entitled to an "impairment benefit": s. 46A(1). It must also be made on application by an injured person in other circumstances: ss. 46A(1A), 47(7). An impairment benefit is of two kinds: a lump sum, so long as the degree of impairment is more than 10%[10]; and an annuity. Determination of degree of impairment is also relevant to an injured person's ability to recover damages via the s. 93 gateway.

What the Commission must do, whether under ss. 46A(1), 46A(1A)[11] or 47(7), is to determine "the degree of impairment of a person who is injured as a result of a traffic accident."

One point should immediately be made. The task is imposed upon the Commission; and so, on review, the Tribunal. Although, originally by the Act and Regulations, and now by the Act, recourse must be had to the Guides,[12] and although the Guides are most obviously designed for use by medical practitioners, the task of determining the degree of impairment is not confided to medical practitioners. Compare the medical panel provisions of the Accident Compensation Act 1985.

It must next be said that the requirement that the Commission determine "the degree of impairment of each person who is injured as a result of a transport accident" would, if applied literally, create a nonsense. Clear it is, though the words do not say it, that the degree of impairment must be connected with - to use a neutral term - the transport accident. That is so as a matter of common sense on reading the Act. It is also made clear by s. 46A (8) (9) and s. 46AA (1). Of these matters, more later.

It seems to me very clear, having regard to the legislative framework which I have described, that the Commission's first task, when required to determine degree of impairment in a particular case, must be to decide whether any and what injury was caused by the traffic accident. Once having isolated the pertinent injury the Commission will be in a position to determine the degree of impairment "in respect of" that injury.

The Act uses varying language to describe the required connection between transport accident and injury, and between injury and compensable consequences.

In the latter connection it both imposes liability upon and exempts the Commission from liability for "loss of earnings as a result of, or materially contributed by, injury": ss 43(1)(a), 44(1)(4), 45(1)(6). But it also uses other language in that connection. An example is: "medical services received by a person because of an injury as a result of a transport accident.": s 43 (1A)(1B). Another example is the reference to prospective loss of earning capacity "as a result of the injury": s. 46(1). To somewhat similar effect is the language of, inter alia, ss. 50(1)(5), 51(1), 57(1), 58(1)(6), 59(1)(2)(8) - (11).

I turn to the language used by the Act to describe the required relationship between a transport accident and injury. Again the language varies.

Section 1 says that the purpose of the Act is to establish a scheme of compensation in respect of persons "who are injured or die as a result of transport accidents." Section 35(1)(2), the gateways to compensation, use the same language. So do ss. 36, 37, 39(1)(2)(a), 40(1), 41(1), 41A(1), 41B(1), 42(1), 46A(1)(1A)(8) and (9).

Section 3(2) refers to a person "who is injured or dies in or as a result of a transport accident".

Section 3(3)(a) says that a reference to an injury or death is a reference to an injury or death "caused by a transport accident". See also s. 3(3)(b).

Section 7 uses the phrase "injury as a result of a transport accident." So does s. 40A(1)(a).

Section 40(2)(3)(4) refer to a person "injured in a transport accident", sub-s. (1) having referred to a person "injured as a result of a transport accident."

Within ss. 44(1) and 45(1) there is reference both to the required connection between transport accident and injury and to the required connection between injury and loss of earnings. The former is that the person be "injured as a result of a transport accident." The latter is that the loss of earnings be suffered "as a result of or materially contributed to by the injury."

The required connections between transport accident and injury, and between injury and impairment, are set out in s. 46A(8) and (9). The former requirement is "injury as a result of a transport accident". The latter is "the degree of impairment in respect of" such an injury. The same requirements are repeated in s. 46AA(1). See also s. 47(1)(7).

Section 93(1) proscribes the recovery of damages "in respect of the injury or death of a person as a result of a transport accident" save in particular circumstances. As will now be apparent, the language is that of, inter alia, ss 1, 35(1), 36(1), 44(1), 45(1), 46(1), 46A(1)(8)(9). For a person injured to recover damages the injury must be a serious injury.

Finally I should refer to s. 3(3)(c). It says that a reference to injury or death "in or as a result of or resulting from a transport accident" is a reference, inter alia, to "an injury or death directly caused by the driving of a motor vehicle".

It is, I must say, highly unsatisfactory that the relationships required by the Act between a transport accident and injury and between injury and compensable consequences are expressed in so many formulations. The Act has been more than 15 years in existence and has undergone major and minor amendments. It potentially affects every road user in the State. Still its language jumps from one form of words to another.

Given the variations in language, and the difficulties which they create, the relatively constant theme of the required relationship between transport accident and injury is that injury be a result of the transport accident.

The consequence of the definition of "transport accident" in s. 3(1) of the Act is that the injury must be a result of an accident "directly caused" by the driving of, inter alia, a motor car. That was held in Dunin v Harrison[13] not to preclude recovery under the Act for injury done by a medical practitioner in the treatment of injury suffered by a person in a transport accident.

Dunin did not have to consider the present definition of "injury" in s. 3(1) of the Act; nor s. 3(3)(c), to the language of which I referred a few moments ago. But the explanation of the reference to injury "directly caused" by the driving of a motor vehicle in s. 3(3)(c) is clear enough. The subsection was introduced in substantially its present form by Act No. 84/1994. It followed amendment of the definition of "transport accident" by Act No. 32/1988, and was accompanied by further amendment of that definition by the 1994 Act. The overall effect of the amendments was to cut down the circumstances in which an accident could be said to be a transport accident and in which injury could be considered to result from such an accident. The type of situation to which the amendments were directed was probably exemplified by the facts in TAC v Locastro[14]; although there the application of the post 1988 definition of transport accident did not have to be determined. Section 3(3)(c), in my opinion, has nothing to say about the questions of causation which need to be decided in this case. Counsel for the respondent did not contend to the contrary. Neither, in my opinion, does the definition of "injury" in its present form bear upon the outcome of this case.

Dunin by no means resolved all questions of causation which are created by the conception that injury be a result of a transport accident. But it shows that in at least one situation injury may be said to so result although concurrent causes operate.

Notwithstanding the form of words to which I referred in [33], a form which makes no specific reference to material contribution, and notwithstanding that there are scattered references to material contribution in those provisions of the Act which specify the required relationship between injury and certain consequences of injury, I think there is little doubt that it is sufficient that a transport accident be a cause of injury. The requirement that injury be suffered as the result of a transport accident raises a question of causation. In many cases, but not all, the nature of a transport accident will be such that any injuries resulting from it will be clear cut. That may be contrasted with the potential for claims for non-traumatic injuries under the Accident Compensation Act. But there is no reason why the fact that many transport accident injuries will be traumatic and clear cut should lead to a conclusion that the conception of concurrent causation is relevantly alien to the Act. Dunin is one class of case that evidences the contrary.

Reference may be had, also, to s. 93. What is precluded at the outset is recovery of damages "in respect of injury of a person ... as a result of a transport accident." What is permitted, in certain circumstances, is recovery of damages in respect of such injury. It is the injury - that is, the injury which results from the transport accident - which must be serious, a matter which may be established by any one of a number of routes.

Upon an action to recover damages permitted by s. 93 it would be enough for a plaintiff to establish that the transport accident was a cause of his or her injuries, applying the commonsense test of causation. That exercise would admit of there being concurrent causation. It would be strange indeed if the injuries of which the transport accident could be held to be a cause could be different from the "injury as a result of a transport accident" and the "serious injury" in respect of which the same section of the Act authorised the recovery of damages.

It would, I think, also be strange if the Act was interpreted to mean that injury was only compensable if it resulted from a transport accident - this requiring that the accident be the sole cause of the injury - but that once injury was so established compensation would be payable if the injury either resulted in or materially contributed to earnings loss.

There are a few authorities, aside from Dunin, which, touch on the present question. In Petkovski v Galletti [15] the Full Court was concerned with a serious injury application by a person who had suffered the aggravation of a pre-existing condition in a transport accident. The Court held that the applicant must establish what injury was caused by the accident and the extent of impairment of body function before and after the accident. Southwell and Teague JJ said this:

"One should commence with the acknowledgment that it has for long been the law that an injured person is to be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident. While the wrongdoer must take the victim as he finds him, he must compensate only for the damage he has wrought. The Act does not affect that long-established principle. And so it is that when a person is given leave to sue, the principle applies; and the court in assessing damages, where the case is one of the aggravation of a pre-existing condition, must consider what the evidence discloses as to the prior condition of the claimant. Since it is upon the defendant to do the disentangling, and to show what the probable future course of the pre-existing condition will be (Watts v. Rake [1960] HCA 58; (1960) 108 C.L.R. 158; Purkess v. Crittenden [1965] HCA 34; (1965) 114 C.L.R. 164) that evidence may sometimes be held to disclose not much more than that there was a risk of later development of the condition. It is necessary now again to examine the language of s. 93. "(2) A person who is injured as a result of a transport accident may recover damages in respect of the injury if - (a) the Commission has determined the degree of impairment of the person under section 46A, 4797) or 47(7A); and (b) the injury is a serious injury." That must mean that the injury which has been caused by or is the result of the relevant accident is a "serious injury."

"The accident did not cause the pre-existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury."

Insofar as those propositions accept that injury may be contributed by the aggravation of a pre-existing condition they support, inferentially, a conclusion that injury for the purposes of the Act embraces injury with concurrent causes. Insofar as they state that a person is only to be compensated for such injury as is caused by the accident, and for such impairment as is caused thereby, they say nothing determinative of the nature of the required causal links between transport accident and injury and between injury and impairment. I add only that s. 46A(8)(9), which deal with the second of the matters, were inserted into the Act after Petkovski was decided.

Petkovski has been applied,[16] cited[17] and considered.[18] Some of the cases arose under the Act and others under the Accident Compensation Act. Very little is said in any of them which bears upon the present question; sometimes nothing at all. The first question for consideration in Davies v TAC gave promise that the issue of required relationships would there be resolved. But that did not happen; see paragraphs 8-14 of the Reasons. The apparent issue proved to be a non-issue. Other than Davies, there is a short passage in the judgment of Chernov JA in Lu v Mediterranean Shoes;[19] and a passage in the judgment of Winneke P in Angelatos v Museum of Victoria.[20]

There are several authorities dealing with appeals from decisions on serious injury applications where the problems of successive injuries[21] and of a transport accident injury superimposed on pre-existing degeneration[22] have arisen. Nothing there said bears on the content of the required relationship between transport accident and injury.

In the end, the authorities are not at odds with my conclusion that it is sufficient that a transport accident be a cause of injury as determined by the application of common law principle; and that the incapacitating consequences of injury are to be similarly determined. Those conclusions are entirely compatible with the proposition that it is injury caused by the transport accident which is to be compensated, and the impairment caused thereby which to be determined.

I have now dealt with the first question that the Commission (and, on review, the Tribunal) must decide on an application under s. 46A(1) - that is, what injury did the applicant suffer as a result of the transport accident. The second question that must be decided is what connection there must be between the injury and impairment.

Section 46A(1), now as when Petkovski was decided, on its face draws no connection between transport accident - caused injury and impairment. But there must be a connection. In Petkovski, resort was had by Southwell and Teague JJ to a formulation in the judgment of Crockett and Southwell JJ in Humphries v Poljak[23]. The required connection is now spelt out, though indirectly, by s. 46A(8) and (9). What must be determined is the "degree of impairment in respect of an injury".

The phrase "in respect of" has been used very widely in legislation. It has often enough found its way into legislation concerned with the connection between injury or death and use of a motor vehicle. One example is Club Motor Insurance Agency Pty Ltd v Sargeant and ors,[24] where the question was whether a certain liability had been incurred "in respect of the death or bodily injury to any person caused by or arising out of the use of the motor car...". Owen J said[25] that the words "in respect of the death or bodily injury to any person" were to be given a wide meaning, as had been pointed out in an earlier authority.

In a different context, Stephen J described the phrase as "capable of describing relationships over a very wide range of proximity",[26] though the context might confine its bounds. Mason J with whose judgment Aickin J agreed, said much the same thing.[27]

In another case, concerned with the question whether an employer was "liable by way of damages in respect of [a] motor vehicle", Brennan, Deane and Gaudron JJ said that:

"the words... have a very wide meaning. Indeed, they have a chameleon-like quality in that they commonly reflect the context in which they appear."[28]

"It is true that the words `in respect of' may have a wide meaning but it is not correct to say that they extend to any relationship, however tenuous... The words take their colour from the context in which they are found."[29]

It would be pointless restate these propositions by reference to observations made by lesser courts in the judicial hierarchy. The thrust of the matter is clear: the phrase "in respect of" does have a wide meaning, capable of describing relationships over a very wide range of proximity. But its range may be cut down by the context in which it appears.

It should not be thought, despite the apparently random use of causation language in the Act, that use of the phrase "in respect of" in ss. 46A(8)(9) and 46AA(1), the phrase being also used in s. 93(1)(2), was accidental. That said, in my opinion what s. 46A(1) requires is that the compensable injury be a cause of a particular degree of impairment by application of the common sense test of causation. Any more tenuous connection would make no sense in the particular context.

Summarising, what the Act requires the Commission to do when determining the degree of impairment of a person injured in a transport accident is this:

s First, to determine what injury resulted from the accident, the test being whether the accident was, applying the common sense test of causation, a cause of particular injury.

s Second, to determine the degree of impairment in respect of that injury, the test of causation between injury and impairment again being whether by the conventional test the injury was a cause of the particular degree of impairment.

Application of the tests of causation which I have described will cause no difficulty, I am sure, in the vast majority of transport accident cases; for what will there be involved will be traumatic injury affecting a particular limb or sense.

Neither will application of that methodology cause any difficulty where a transport accident causes injury to a bodily structure that was already the subject of degenerative change. That was the Petkovski situation; and it can be dealt with by application of the principles, first, that the wrongdoer - but here the Commission - takes the victim as he finds him; and second, that he must compensate the victim only for the damage which he causes.

Neither again should application of that methodology cause any difficulty when, a transport accident having resulted in injury to a bodily structure which had earlier been injured in another transport accident, the injury and degree of impairment attributable to the earlier accident has been determined before the occurrence of second accident. It will be possible in such a case to determine injury and degree of impairment caused by the second accident taking the situation determined to result from the first accident as the starting point. It will be beside the point that the first accident might also have been held to be a cause of the second injury and of the overall degree of impairment. It may be that s. 47(6) will operate in such a case, just as it could if the overall degree of impairment was attributable to injury to different parts of the body. But again, that is beside the point.

The more difficult situation in which to apply the necessary methodology will be where:

s a person is involved in two or more traffic accidents;

s each of them results in injury to the same bodily structure;

s the degree of impairment is only assessed after all the accidents have occurred.

What an examining doctor will surely do in such a case, applying the Guides, is to determine the overall degree of impairment then present. Tables 51 and 52 of Chapter 1 of the Guides show why that must be so. The Guides do refer to apportionment. But application of what is said in that connection will not yield apportionment of the overall degree of impairment as between the various transport accidents and resulting injury. Yet what the Commission must do in such a case is to apply the necessary methodology despite the fact that application of the Guides will produce an undifferentiated degree of impairment.

In attributing degrees of impairment to the various injuries, I consider that it would be wrong for the Commission to make attributions accumulating to a degree of impairment greater than the overall degree of impairment then present. Take a case in which a man was involved in two transport accidents. Suppose that in each accident he suffered injury to his back. Suppose that his degree of impairment by reference to Tables 51 and 52 was 30% when assessed after the second accident.

Depending upon the facts, it might be that a degree of impairment would be attributed to each injury. The degrees of impairment should not exceed 30% in all.

It might be the case, again, that the entire degree of impairment would be attributed to one of the injuries. The degree of impairment, evidently, would be 30%.

Applying the methodology which I have described, however, could the Commission be compelled to determine that the overall degree of impairment was caused by one of the injuries, and that some part of that impairment was also caused by the other injury? If it was so compelled, the accumulation of the degrees of impairment would yield an outcome exceeding the overall degree of impairment; something which in my opinion would be an impermissible outcome.

It was no part of the appellant's argument that in a two injury delayed assessment situation a person should be entitled to determination of degrees of impairment exceeding by accumulation the overall degree of impairment. But the fact that no submission was advanced to that effect leaves open the question whether the Commission could be compelled by the Act to arrive at such determination.

If possible, the Act must be made to work. Notwithstanding the nature of the causal relationships which it requires between transport accident and injury and between injury and degree of impairment, I do not consider that it compels the Commission to make determinations of the kind now under discussion. If the Commission was to conclude that the entire degree of impairment resulted from injury attributable to one of two transport injuries, in my opinion it would not be open to it to determine that any part of the impairment resulted from injury attributable to the other injury. The positive finding should be taken to exhaust attribution of impairment. That is so even though it is a question of fact what injury results from an accident, and what degree of impairment is attributable to that injury.

Workers Compensation legislation provides a very imperfect analogy with the Act. That said, it has long been the law that where total incapacity for work resulted from compensable injury the fact that the worker thereafter became totally incapacitated for work by another compensable injury could give no entitlement to relief in respect of the latter incapacity. The situation was the same if the initial total incapacity was attributable to a non-compensable condition.[30] Where, in the context of the Act, a finding is made which attributes the entire degree of impairment to a particular accident - caused injury, I see no reason why, by analogy, it should not be said that a finding attributing some part of that impairment to another accident - caused injury would be impossible.

I have thus far assumed that in the rare type of case now under discussion it would be possible for the Commission to determine that the entire degree of late-assessed impairment was attributable to one injury. In my view, having regard to the appropriate test of causation, that would indeed be possible. That would be the case even though the entire impairment was not present until after the occurrence of a second transport accident and further injury. Again remembering that pertinent Workers Compensation Legislation differed from relevant provisions of the Act, Bradshaw v Richardsons Westgarth & Co Ltd[31] was by analogy such a case. So was Conkey and Sons Ltd v Miller[32]. Contrast, upon the findings of fact, Commonwealth v Butler.[33] It would be the case even if, viewed independently, some part of the overall degree of impairment could be attributed to another accident and resulting injury.

The obligation to give reasons and the necessary content of reasons has been stated over and over again. It would be otiose to re-invent the wheel yet again. I refer to Fletcher Construction Australia Ltd v Lines Macfarlane and Marshall Pty Ltd[34] in which the Court of Appeal recently reviewed pertinent authorities. I adopt what the Court said concerning obligation and content. See also s. 117 of the Victorian Civil and Administrative Tribunal Act 1998.

A good deal of evidence was given before the Tribunal. But the questions of law focus upon the Tribunal's Reasons. Any misdirection should emerge from the Reasons, subject only to their being adequate.

The Tribunal reviewed at some length both the medical reports tendered at trial and the viva voce evidence that was given concerning presently pertinent matters. It noted:

* The appellant's account of events, in which the appellant attributed all his problems to the February 1997 accident.

* That the appellant had first mentioned the accidents of February and March 1997 to a medical practitioner in February 1998, at which time X Rays showed damage of the L5/51 disc and canal stenosis at L4/5.

* The opinion of orthopaedic surgeon Mr Gardiner that the appellant experienced a significant exacerbation of his low back degenerative change as a result of the accident.

* The opinion of neurosurgeon Mr Fabinyi that it was probably the second collision which was the main cause of ongoing pain in the right side of the appellant's back with radiation to the upper leg and abdomen.

* The opinion of Mr Phillips, surgeon, that the appellant's previous asymptomatic degenerative changes had been worsened by "the accident"; his view being "that of the first two accidents, the first was the more significant."

* The opinion of Mr Jensen, neurosurgeon, that the appellant had suffered lower back injuries where the spine was already in a state of degenerative change; that "the accident" appeared to have made the situation more symptomatic; and that impairment of lumbar mobility was 23% with 5% impairment for disc degeneration at 3 levels.

* The opinion of Mr Klug, neurosurgeon, in January 2001 that the appellant's pre-existing lumbo sacral degenerative disease had been aggravated "in the accident"; that the lumbar spine impairment was 19% "with a further 5% for each of the L4/5 and L5/S1 discs"; and that, whilst it might be argued that the steady progression of the disorder could be related to other factors, on the basis of probability the accident of February 1997 "remains a significant factor."

* The opinion of Mr Klug in December 2001 that the degree of spinal impairment was 24% and 5% for each of 2 discs; but that "no more than half of it related to the accident, the other half being attributable to a degenerative disorder of the spine complicated by obesity."

* The opinion of Mr Conroy, surgeon, based upon examination on 17 November 1998, that the accident had aggravated a previous asymptomatic degenerative process in the appellant's lumbar spine.

* The opinion of Mr Stapleton, plastic and reconstructive surgeon, based upon examination in July 1999, that in the accident the appellant had suffered significant damage to his lumbar spine, the degree of impairment being 11%.

* The opinion of Mr Jones, surgeon, that the degree of impairment of the thoraco-lumbar spine was 25%, of which no more than 12% related to the accident, the balance being due to advanced degenerative disease which had been developing for at least 10-15 years before the accident of February 1997.

Having carefully reviewed the medical evidence, the Tribunal found that -

* The appellant suffered from a pre-existing degenerative back condition which was asymptomatic prior to the accident.

* The degenerative condition was rendered symptomatic by the accident of February 1997.

* It was difficult to determine the extent to which back symptoms were further exacerbated by later accidents. The matter was complicated by the delay in seeking medical attention and the incomplete and to some extent inconsistent histories given by the appellant to doctors.

* On the evidence "it (was) reasonable to conclude" that the first two accidents contributed to the appellant's symptoms; the difficulty being "in determining respective degrees of condition."

* The third accident "played no significant part" - query: in the appellant's symptoms.

In an attempt to resolve the question which was understandably troubling it, the Tribunal considered aspects of the history given by the appellant to Mr Jensen and Mr Conroy; evidence which the appellant gave at the Tribunal hearing; and a letter written by the appellant to TAC in February 1998. The Tribunal then observed that "(t)here was little in medical reports provided to assist in apportioning impairment as between the first and second accident."

The Tribunal concluded its deliberations this way.

"42. Having regard to the long absence of complaints to the applicant's general medical practitioners following the accident and to his continued involvement in some work and driving and, doing the best I can in the circumstances, I consider that it would be both fair and reasonable to apportion one half of the applicant's lower back impairment to the first accident. 43. In arriving at a total whole person permanent impairment of low back, I prefer to be guided by the assessments of those specialists whose evidence was able to be tested by cross-examination viz, Mr Jensen and Mr Klug. The former assessed impairment in respect of lumbar spine mobility at 23% and allocated 5% for each of three discs and the latter assessed impairment in respect of lumbar mobility at 24% and allowed 5% for each of two discs. 44. I find that whole person permanent impairment of the lumbar spine due to loss of motion is 24%. 45. I accept the assessment of Mr Klug that the applicant is also entitled to an assessment of impairment of 5% in respect of each of two discs (namely L4/5 and L5/S1) by reference to Table 53 B3 of the Guides, one half of which is attributable to the first accident. Total whole person impairment in respect of the lower back is therefore 32%. Impairment resulting from the first accident in respect of lower back is consequently 16%."

It does not seem to me, with respect, that any criticism can be legitimately made about the Tribunal's Reasons. What the Tribunal did, and its reasoning process, is in each instance clearly exposed.

Evidently the Tribunal did not analyse the causation requirements of the Act in the way that I have done. But why should it have done so? The adequacy of the Tribunal's Reasons should be considered in the context of the way in which the matter was conducted before it. The submissions made for the appellant to the Tribunal were simply that:

* Asymptomatic pre-existing spinal degeneration must be ignored. In the absence of symptoms there was no impairment. The accident of February 1997 was a cause of injury and all the appellant's symptoms.

* The second accident as a matter of fact was not productive of any significant effect on the appellant's back.[35]

I consider that the Tribunal confronted those submissions by its reasons. There is every indication that, having concluded that the appellant suffered from asymptomatic spinal degeneration prior to the accident of February 1997, the Tribunal excluded it as a factor going to reduce the degree of impairment; and that it focussed upon the question whether later accidents had made discrete contributions to the overall degree of impairment. So it said:

"It is reasonable to conclude therefore that his pre-existing degenerative back condition was asymptomatic prior to the accident. It is difficult to determine the extent to which back symptoms were further exacerbated by later accidents."

"Upon the evidence, it is reasonable to conclude that both accidents contributed to his symptoms. The difficulty is in determining respective degrees of contribution. I accept that the third accident played no significant part."

Having regard to what I have just said, it is clear that the apportionment made by paragraph 42 of the Reasons must be understood as a distribution of the overall degree of impairment between the first and second transport accidents; and that whilst the Tribunal adopted the apportionment of impairment made by Mr Klug, it made that apportionment on a quite different basis.

I have said that the Tribunal, explicably having regard to the way the matter was conducted before it, did not analyse the causation requirements of the Act as I have done. Did it misdirect itself? It would be mere speculation to reach such a conclusion if the Tribunal's reasoning did not make it apparent that there had been an erroneous approach. In my opinion the Tribunal's reasoning discloses no such error.

It was plainly open to the Tribunal to find that the overall degree of impairment was in part attributable to injury sustained in the traffic accident of February 1997 and in part attributable to injury sustained in the accident of March 1997. The Tribunal might have concluded that all the impairment was attributable to the first accident and injury notwithstanding that its full extent only developed after the second accident and injury. I have explained, by reference to principles in the context of the Act, why such a conclusion might have been reached. But the Tribunal was not bound so to conclude; and mere failure to do so reveals no misdirection.

It was argued for the appellant that the Tribunal evidently fell into error because it "apportioned" despite a finding that the first and second accidents contributed to the plaintiff's symptoms. But that finding must be read in context. It is not consistent only with all the appellant's symptoms - read "degree of impairment" - being attributable to both accidents. It is capable of being read to mean that each of the injuries resulting from the first and second accidents resulted in degrees of impairment accumulating to the overall degree of impairment - using "degree of impairment" in lieu of "symptoms".

Counsel for the appellant also focussed upon the Tribunal's finding that the plaintiff was entitled to an impairment assessment of 5% in respect of each of two discs and that one half of that impairment was attributable to the first accident. Counsel submitted, as I understand it, that the Tribunal must be taken to have concluded that the impairment described in Table 53 of Chapter 1 of the Guides resulted from injury caused by the February 1997 accident; in which circumstances there was evident error in then apportioning that degree of impairment. Counsel argued, in effect, that once the Tribunal found that the discs had been damaged by compensable injury in February 1997 there was no room for a finding that any subsequent damage did not also result from the initial injury.

Doing its best upon evidence which was less than precise, the Tribunal was able to conclude, as it did, that there was "clinically established disc derangement with residuals" at two levels in the spine at a time after the accidents of February and March 1997 had occurred. It was well able to conclude that the derangement had been present, but without "residuals", before February 1997; and so to exclude the pre-existing condition from having any impact upon its determination of the degree of impairment. I am satisfied that is what it did. Beyond that, in my opinion the Tribunal was not bound to conclude that the impairment which was ultimately present must be attributed entirely to the accident of February 1997. It was open to it to find that each of the February and March 1997 accidents resulted in disc injury and resulted in turn in some part of the "residuals". Once such a finding was made it was open to the Tribunal, considering all the evidence, to make its best assessment of the degree of impairment attributable to each injury. I am satisfied that it was it did. It carefully reviewed the evidence, lay and medical. Although it ultimately adopted a 50/50 apportionment of the overall degree of impairment, it did so on a different basis than that proposed by Mr Klug in the opinion noted at paragraph 21 of the Tribunal's Reasons. He had apportioned between a degenerative disorder of the spine and the accident of February 1997; but the Tribunal apportioned between the accidents of February and March 1997.

Counsel for the appellant developed a submission, referable to both aspects of the spinal impairment, that the Tribunal acted arbitrarily and capriciously, and made clear its error in the required approach, simply by its apportionment of 50% of the overall degree of impairment to the injury caused by the February 1997 accident. I do not accept that submission. The Tribunal was not bound to find that all the impairment was attributable to that injury. It was entitled to find that it was partly attributable to another injury. That is what it did. It then considered the evidence lay and medical; and it made its best assessment of contribution. That was not a scientific exercise, but an exercise in fact-finding by a jury of one.

[2] See s. 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1986.

[3] The Tribunal accepted the evidence of the neurosurgeon, Mr Klug, whose report dated 11 December 2001, exhibit BHC to the affidavit of Benjamin Hill sworn 13 September 2001, shows that the calculation was made by reference to Chapter I, Tables 50-52 of the Guides.

[4] Again the Tribunal accepted the evidence of Mr Klug. His explanation of the pertinent conclusion, at page 4 of his report dated 11 December 2001, shows that his calculation was made by reference to Chapter I, Table 53 of the Guides. "Residuals", it seems, is a reference to the presence of consequences of disc lesion - restriction of movement, for example. That is why the Guides, a copy of which was provided to me in the course of argument, direct the examiner, in Table 53, to combine the impairment rating yielded by disc lesion with residuals "with the appropriate value(s) for residuals" based on, inter alia, abnormal motion in the spinal area.

[5] That is a consequence of applying the Combined Values Chart of the Guides. Twenty four percent plus 10 per cent yield a combined total of 32%.

[6] As to the notion of "primary" psychiatric impairment, see s. 46B(1) of the Act.

[7] Exhibit BG 3 to the appellant's affidavit sworn 28 June 2002, at par. 34. The reference to "both accidents" was a reference to the transport accidents which occurred in February and March 1997.

[8] Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666 at 672-674 per Mason and Wilson JJ; Murphy J agreeing at 675.

[10] See also s. 47(6), substituted by Act No 84/2000.

[12] The 4th edition has superseded the 2nd edition. By operation of ss. 46A and 46AA the Guides will not necessarily remain the basis for determining the degree of impairment .

[16] Cropp v TAC and Anor [1998] 3 VR 357; RJ Gilbertsons P/L v Skorsis [2000] VSCA 5; Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65; [2000] 1 VR 511.

[17] Byrne v TAC and Shaw, Full Court , unreported, 20/10/1993; Hanrahan v Davis [1998] 3 VR 357.

[18] Palmer Tube Mills (Aust) Pty Ltd and anor v Semi [1998] 4 VR 439; Angelatos v Museum of Victoria [1999] VSCA 129; [1999] 3 VR 157 and Davies v TAC [2001] VSC 142.

[21] Though not necessarily to the same part of the body.

[22] Belcher v Wolfenden and anor, Court of Appeal, 24 April 1996, unreported; Nicholls v Robinson [2001] VSCA 11.

[23] [1992] VicRp 58; [1992] 2 VR 129 at 140; see at 444 in Petkovski.

[26] State Government Insurance Office v Rees & anor [1979] HCA 52; (1979) 144 CLR 549 at 553.

[28] Technical Products Pty Ltd v State Government Insurance Office (Queensland) [1989] HCA 24; (1989) 167 CLR 45 at 47.

[30] Amalgamated Anthracite Collieries Ltd v Wilds [1947] 2 All ER 252; Dawson v Metropolitan Coal Co Ltd (1947) 75 CLR 169 particularly at 187 per Dixon J. That was not to say that a worker's incapacity, total or partial, might not be materially contributed to by more than one injury: Bushby and anor v Morris and Ors (1979) 51 ALJR 240 (PC). But there, of course, compensation was payable once only for the one incapacity.

[34] [2002] VSCA 189 at paras 99-106, 157, 166.

[35] See Exhibit BHA to Mr Hill's affidavit at pp. 179-185.

Transport Accident (Impairment) Regulation 1988