Haidar v Transport Accident Commission [2016] VSCA 182

1 On 20 March 2010, the applicant (Ms Susanne Haidar) was involved in a transport accident when a motor vehicle driven by another person made a right-hand turn across the path of the motor vehicle that she was then driving, and a collision ensued. Following the collision, the applicant was taken to the Dandenong Hospital. She claimed that she suffered injuries to her right wrist, chest, right hip and lower back.

2 By an originating motion filed in the County Court on 18 November 2013, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 ('the Act'), to commence a proceeding at common law claiming damages for the injuries she sustained as a result of the collision. The application was heard at the County Court on 11 and 12 April 2016. At the hearing of the application, the applicant relied upon paragraph (a) of the definition of 'serious injury' in s 93(17) of the Act - namely, 'serious long term impairment or loss of a body function'. The body function relied upon by the applicant was the function of the right hand. The applicant's case was that the function of her right hand was impaired by the injury she alleged that she sustained as a result of the collision.

3 On the hearing of the application, the applicant relied upon two affidavits that she had affirmed on 3 September 2013 and 1 April 2016 respectively. The parties tendered various documents, including medical reports, medical records, pay slips, payment summaries and video surveillance taken of the applicant on 19 February 2015. The applicant was the only witness to give viva voce evidence.

4 On 29 April 2016, the judge dismissed the applicant's application.[1] The applicant seeks leave to appeal. The matter has been dealt with on the basis that, if leave to appeal is granted, the appeal would be treated as having been heard instanter. The applicant's proposed grounds of appeal are as follows:

When finding that the applicant did not suffer a serious injury, her Honour erred by:

1. Failing to use the correct test for serious injury;

1. Failing to find that the applicant's loss of her profession as a hairdresser was a serious consequence;
2. Finding that the applicant was permanently incapacitated by drugs of dependence which was inconsistent with the evidence;
3. Failing to show an adequate path of reasoning;
4. Making a finding that the applicant did not suffer a serious injury when it was against the weight of the evidence.

5 The applicant was born on 8 September 1977. At the time of the accident, she was 32 years of age. The applicant left school during year 10.

6 The precise detail of the applicant's work history was a matter of controversy in the County Court hearing. Her evidence on that matter was generally to the following effect. After leaving school, the applicant worked in her cousin's hairdressing salon for about two years. She then went to Lebanon where she did a hairdressing course for six months. When she returned to Australia, she completed an apprenticeship in hairdressing and thereafter worked at different times as a hairdresser in various hairdressing salons in Melbourne. In 2004, the applicant again went to Lebanon. In Lebanon, she ran her own hairdressing salon for about six or seven months. Upon returning to Australia, she worked at 'Model' as a hairdresser for about seven to eight months, before setting up her own hairdressing salon in Coburg. She ran that salon for about a year before selling it. She then commenced employment as a hairdresser at 'Hair World' in April 2007. At different times up until the accident, she worked for different Hair World franchise owners at different locations.

7 The evidence of the dates upon which the applicant was employed in her various hairdressing positions was not precise. Before the judge, the applicant's senior counsel submitted that the applicant had demonstrated a long term capacity as a hairdresser who had worked continuously at least for the 12 months before the accident, before he then conceded that 'the court could not be satisfied on the evidence as to exactly when she was and was not working'.

8 In addition to the accident the subject of the present proceeding, the applicant was involved in transport accidents on 29 July 1999, 29 April 2001, 4 October 2010 and 16 April 2012. In the accident on 29 July 1999, the applicant suffered injuries to her right wrist, right scapula, left knee and neck. The applicant agreed in cross-examination that the right wrist injury suffered in July 1999 had resulted in 'regular consistent pain'. In the accident on 29 April 2001, the applicant suffered injuries to her head and face, left knee, left ankle, and left and right scapula.

9 In the accident on 4 October 2010 (six and a half months after the accident the subject of this proceeding), the applicant suffered a third injury to her right wrist. She also suffered injuries to her back, ribs and left knee. As to the accident on 16 April 2012, the applicant said that she did not suffer any injury.

10 At the time her application was heard by the judge, the applicant was 38 years of age. She had given birth to two children after the subject collision, a son born in 2013 and a daughter born in 2014.

11 The evidence before the judge disclosed that for many years the applicant had been addicted to heroin. It seems that the applicant started using heroin when she was 19 years of age. Between November 2005 and January 2011, the applicant's heroin addiction was treated with a series of naltrexone implants. In December 2011, the applicant was commenced on a methadone program. The applicant remained on that program as at the date of the hearing. Her evidence was that at the time of the hearing she was not using heroin. She said she had not used heroin since June 2014. The history, nature and extent of the applicant's illicit drug use were also matters of controversy in the County Court.

12 Following the transport accident on 20 March 2010, the applicant was taken to the Dandenong Hospital where she was examined and X-rays were taken. At the hospital, the applicant complained of having hurt her neck and her chest in the accident, but said nothing about injuring her right wrist. After a few hours at the hospital, the applicant was discharged home.

13 The applicant did not return to work initially. She remained off work for some months. She claimed in the County Court that this was due to the injuries she received in the transport accident.

14 On 17 May 2010, the applicant attended her general practitioner (Dr Grokop). Dr Grokop arranged for X-rays to be taken of the applicant's chest, pelvis, hips, right wrist and left knee. X-rays of the applicant's right wrist disclosed no fractures or dislocations.

15 The applicant was due to resume work in October 2010 but before doing so she was involved in the fourth of her motor vehicle accidents (the 4 October 2010 accident). The applicant's return to work was then delayed until March 2011. This further delay was attributed by the applicant to the 4 October 2010 accident.

16 The applicant's evidence was that her right wrist and hip injuries were aggravated in the October 2010 accident. She said, however, that the aggravation only lasted two or three months, and then the wrist pain was back to how it was before the October 2010 accident. In late 2010, after the 4 October 2010 accident, the applicant was referred for physiotherapy. The applicant's evidence was that she did not persist with the physiotherapy, as it was not of assistance and caused her more pain in her right wrist and hip.

17 In March 2011, the applicant returned to work, initially working four hours per day for two days per week. Her hours were subsequently increased. However, she stopped work in December 2011. According to the applicant's first affidavit in the County Court, this was 'because of increasing right hip and right wrist pain'. The applicant also gave evidence in the County Court that she had not been able to work since December 2011.

18 In April 2011, an MRI of the applicant's right wrist was reported as showing that the medial attachments to the TFC[2] were slightly swollen and oedematous, and that there was local minor swelling of the applicant's ECU.[3] The author of this MRI report (Dr Ron Dorey) commented that these findings suggested a sprain of the applicant's TFC attachment with localised ECU tendinosis.

19 During 2011, the applicant was referred to an orthopaedic surgeon (Mr Blackmore) and a consultant physician (Dr Blombery). Mr Blackmore arranged for the applicant to receive an ultrasound-guided corticosteroid injection into her right wrist in early July 2011. The applicant only saw Dr Blombery on one occasion for treatment purposes. She did not re-attend for treatment, but she subsequently saw Dr Blombery for medico-legal purposes.

20 The applicant's evidence at trial (as set out in her second affidavit) was that she did not have the full and free use of her dominant right hand. She said that sustained activity or use of her right hand caused an increase in her pain. She said that hairdressing had been her 'passion' since she was 14 years of age. She said that she does not believe that she will be able to return to work as a hairdresser. In elaboration of this evidence, the applicant said that the condition which 'most affects' her ability to work as a hairdresser is her right wrist condition, although she said that she would also find it hard to stand on her feet for long periods of time because of her back pain.

21 Both sides tendered a number of medical reports and medical records. The medical evidence came from medical practitioners who had treated the applicant and medical practitioners who had examined the applicant for medico-legal purposes.[4]

22 The medical evidence did not speak with one voice. As senior counsel for the applicant said in final address to the judge, one group of doctors accepted that the applicant was incapacitated, while another group of doctors said 'look, it's a minor sprain, we don't accept [that] she's incapacitated'.

23 More particularly, the reports relied upon by the applicant tended to support the proposition that the applicant's right wrist condition incapacitated her from performing work as a hairdresser. However, as the judge noted, some of these opinions did not differentiate between the injuries the applicant claimed to have sustained in the various transport accidents. In particular, some of the opinions did not address the possible effects of the injury the applicant sustained to her right wrist in the July 1999 accident. The judge summarised the medical material on which the applicant principally relied in the following terms:

The [applicant] relied upon reports from her general practitioner Dr Grokop, who treated her for the injuries she suffered in the March 2010 accident. In his report dated 25 January 2013, he stated that he treated her for the right wrist, right hip and lower back pain. He considered her to have some work capacity, but not in hairdressing. He commented that her injured wrist would prevent her doing jobs involving repetition or heavy tasks, and that due to her hip injury, she should avoid prolonged standing and bending.

In his next report dated 26 November 2014, Dr Grokop said there was a causal link between her physical injuries and her accidents. He did not identify which accidents he was referring to. He also stated that 'the degree of disability due to pain appears to be out of keeping with the severity of her injuries'.

Although the [applicant] originally saw Dr Blombery for treatment, she was subsequently referred back to him by her solicitors for medico-legal purposes. He examined her on 9 October 2014 and 11 March 2016. On each occasion, Dr Blombery found no objective signs of Complex Regional Pain Syndrome Type 1. He found a full range of movement, with tenderness on the ulnar side of the wrist. The right hand was stronger than the left. He considered it had merged into a non-specific Pain Syndrome with sensitisation of pain nerve pathways.

In a supplementary report, Dr Blombery was asked to comment whether the [applicant's] right wrist injury incapacitated her from returning to her pre-injury duties as a hairdresser. He thought she was incapacitated, but did not explain why.

The [applicant's] solicitor arranged for her to be examined by Mr Thomas Kossmann, orthopaedic surgeon, on 26 November 2013 and 4 October 2014. She complained to him about her right wrist, lower back and right hip injuries. In relation to the wrist injury, at his first appointment he obtained a history of right wrist problems related to a transport accident 10 years prior to this accident. He noted that she was treated with a brace for approximately 12 months and that she had 'ongoing mild right wrist pain with activity that persisted up until ...' the March 2010 accident.

Mr Kossmann diagnosed a medial TFC sprain and ECU tendonosis. He also diagnosed injuries in respect of the lower back and right hip. He concluded that her condition is consistent with the March 2010 accident as 'her symptoms appeared following this accident'. That comment may be correct in respect of the lower back and hip injuries, but it cannot apply to her wrist injury. In the body of his report Mr Kossmann referred to her complaint of ongoing mild wrist pain for 10 years prior. Yet her overlooked this history when making this comment on causation. I consider this a significant omission by Mr Kossmann. His failure to distinguish between her pre-existing condition and any aggravation, means his opinion does not assist me in determining the injury and impairment arising from the March 2010 accident.

The [applicant's] solicitors also arranged for her to be examined by another orthopaedic surgeon, Mr Ash Chehata, on 15 February 2016. It is significant to note that he obtained no history of prior wrist problems. On examination, he found that while she was tender in the wrist, she had a full range of movement. The ECU tendon was not swollen, nor was it painful. He stated that she has a TFC tear and ECU tendonosis. However, given he did not have the history of the prior wrist problems, like Mr Kossmann, his opinion does not assist me in determining the injury and impairment arising from the March 2010 accident.[5]

24 While the judge did not refer to all of the medical evidence relied upon by the respondent, she did refer to the respondent's principal medical witness, Dr Ireland. The judge summarised Dr Ireland's evidence as follows:

The [respondent] arranged for the [applicant] to be examined by orthopaedic surgeon, Mr Damian Ireland. He is a specialist hand surgeon. He examined the plaintiff on two occasions. In November 2013, he reported a full range of movement in the wrist, no tenderness and no crepitus. He considered she suffered a soft tissue injury to the distal radioulnar joint.

In August 2015, Mr Ireland recorded that the [applicant] complained of intermittent right wrist pain that occurred approximately once a week and lasted for one to two days. On examination he noted some minor restriction in the extension of the wrist. He noted no wasting. He diagnosed a chronic soft tissue injury to the distal radioulnar joint.[6]

25 In addition, as further indicated below, the judge made particular reference to the reports of Dr Churchman who had been treating the applicant for drug addiction and whose reports had been tendered by senior counsel for the applicant.

The hearing at first instance and the judge's reasons

26 At the hearing below, the credit of the applicant was a major issue. The applicant was extensively cross-examined about her affidavits; about her use of, and addiction to, illicit drugs; about claim forms that had been submitted to the Transport Accident Commission; about asserted failures to disclose matters of relevant medical history (either in claim forms or to relevant medical practitioners); and about the true extent of any disability that she actually suffered as a result of the transport accident.

27 The judge commenced her reasons for judgment with a description of the issues before her and a summary of the relevant background facts.[7] The judge then summarised the evidence concerning the applicant's claimed injury and its consequences.[8] The judge then turned to the issue of the applicant's credibility.

28 The judge conducted a detailed analysis of each of the credit issues raised in the proceeding.[9] In that regard, the judge rejected a submission made by the applicant's senior counsel that the applicant was 'a witness of truth, but not of accuracy'.[10] Her Honour found that there were 'numerous occasions in which the [applicant] would provide an answer to a direct question, only to retract or change that answer when referred to a document that contradicted her'.[11] The judge then set out, in some detail, six examples which she said, when considered collectively, led to the conclusion that the applicant was not always honest in the evidence that she gave. These examples included an attempt by the applicant to explain why she put a brace on her right wrist shortly before seeing a doctor for a medico-legal examination; the applicant's explanations for incorrect or incomplete answers on her four TAC claim forms (being the claim forms in respect of her transport accidents of July 1999, April 2001, March 2010 and October 2010); and her explanation for being unable to provide a urine sample for drug testing for two and a half hours at an examination in December 2015. The judge then said:

In such circumstances, I have therefore only accepted her evidence where she gave concessions against her interest or where her evidence was corroborated by contemporaneous documents.[12]

29 Next, the judge analysed the medical evidence in the way we have already described. On the basis of that analysis, the judge observed that 'the medical material showed a relatively mild organic injury to the [applicant's] wrist'.[13] The judge noted that the onus was on the applicant to prove her claimed wrist injury (characterised as an aggravation caused by the March 2010 transport accident) and to prove the impairment arising from that (aggravation) injury. The judge stated that there were no medical opinions that enabled the applicant to do this.[14] The judge concluded:

Further, at the highpoint of the [applicant's] claim, she suffered a TFC sprain and tendonosis of the ECU. There are no objective signs to support this being

an ongoing condition. Her complaints of wrist pain have not been consistent. Given the misgivings I have regarding her credit, I believe any wrist pain she now suffers from the March 2010 accident is modest.

In relation to the impact the injury had upon her capacity to work, Dr Churchman was of the view that her drug dependence and anxiety rendered her unfit for all full-time work. In his report of 13 April 2015 he said that :

'Increased stress places a person with the disease of addiction at more risk of relapse into drug use. Ms Haidar is dealing with significant stress in her life currently, caring for two young children a 21 month old and a 9 month old and dealing with a partner who also has the disease of addiction and is, by her report, using illicit drugs intermittently. The further requirement to seek work would, I feel, put her at significant risk of relapse and I do not regard her as fit to return to work at this time.'

In his report dated 16 February 2016 he confirmed his view that she was completely disabled for work. He commented that it was not apparent to him that her disability for work was a result of the transport accident. He considered her incapacity to be permanent.

Dr Churchman's opinion is fundamental to the [applicant's] claim for pecuniary disadvantage. He is probably the doctor who knows her best, having treated her regularly for the last two years. The [applicant] agreed his opinion would be guided by what she had told him.

I accept the opinion of Dr Churchman that the [applicant] is indefinitely incapacitated for work due to her drug dependence. Both counsel agreed that if I made such a finding, then I did not need to look at the impact her wrist injury had on her capacity to work. Whilst urging me against such a finding, [senior counsel for the applicant] accepted that if I found this, the [applicant] could not establish pecuniary loss arising from the wrist injury.

Even setting aside the loss of earning capacity as a result of her drug dependency, I am not satisfied, given the modest nature of her injury, that the March 2010 accident significantly impairs her capacity for employment.

In my opinion the [applicant] has failed to satisfy me that she suffers a serious injury as a consequence of the March 2010 accident and when judged in comparison with other cases in the range of possible impairments or losses, I am not satisfied that the consequences for the [applicant] are very considerable.

The application is dismissed.[15]

30 As Brooking JA[16] noted in Palmer Tube Mills (Aust) Pty Ltd v Semi,[17] in serious injury applications the credit of the applicant is usually of great importance. This is so because often the opinions of medical witnesses depend on what they have been told by the applicant and upon the applicant's behaviour or performance on examination or upon testing.[18] The present case was a paradigm example of the type of case described by Brooking JA. The credit of the applicant was a matter of critical significance in the determination of her application. Indeed, so much was conceded by senior counsel for the applicant when he said, in final address to the judge that, in respect of whether the applicant's injury was serious, 'the [applicant's] claim is dependent upon the Court accepting what she says'.

31 In this Court, the applicant conceded that the judge's adverse findings as to the credit of the applicant were open to her Honour on the evidence before her. Additionally the applicant conceded that the nature of the applicant's right wrist injury was modest. On the evidence, we accept that those concessions were rightly made by the applicant. The applicant, however, submitted that the judge's findings about credit '[did] not relate to the principal issue, which is the consequences of the impairment to the applicant resulting from the injury'; and also submitted that, notwithstanding the modesty of the applicant's injury, 'the weight of the evidence supported the applicant's case that the consequence of her injury was that she was unable to work in her chosen profession as a hairdresser'.

32 These submissions must be rejected. Even apart from the drug dependence issue, the fallacy in the applicant's submissions is that they wrongly assume the substantial accuracy of the histories given to the medical practitioners by the applicant and of the applicant's own evidence insofar as those histories and that evidence tended to favour her claim that the aggravation of her wrist injury precluded her employment as a hairdresser.

33 For present purposes it may be accepted that, if the applicant's credit had not been successfully attacked at trial, then one might have expected the judge to conclude that the applicant's right wrist condition precluded her from engaging in work as a hairdresser. An issue would then have arisen as to whether this condition was caused by the March 2010 transport accident or one of the other transport accidents in which the applicant claims to have injured her right wrist. However, while there is force in the argument that the applicant's loss of the ability to engage in employment as a hairdresser is serious, the problem for the applicant was the undermining of her evidence (and by extension, the evidence of those medical practitioners who were supportive of her case) by the matters which the judge was entitled to view as substantially impeaching the reliability of the applicant's evidence.

34 Put shortly, there is simply no basis for asserting that the judge failed to use the correct test for serious injury (ground 1); or that the judge made a finding that was against the weight of the evidence (ground 5). Further, there was no error in the judge failing to conclude that the applicant had lost her profession as a hairdresser as a result of injury suffered in the subject transport accident (ground 2). Moreover, it was open to the judge to conclude, as she did, that the applicant was indefinitely incapacitated for work due to her drug dependency alone (ground 3). That said, it is, in any event, to be noted that while the judge accepted the evidence of Dr Churchman about the applicant's addiction and her capacity for work, the judge concluded that, even if this evidence was set aside, she was not satisfied that the subject transport accident significantly impaired the applicant's ability for employment.[19] We see no error in this conclusion.

35 It follows that there is no substance in the proposed grounds of appeal 1, 2, 3 and 5. This leaves the applicant's proposed ground 4, a complaint about the adequacy of the judge's reasons.

36 In oral argument, the applicant's counsel submitted that the judge's reasons were inadequate because the judge did not explain why the applicant's inability to work as a hairdresser as a result of the 'compensable injury', accepted by the judge as having been sustained in the March 2010 accident, was not a relevantly serious consequence that satisfied the 'very considerable' test.

37 Notwithstanding the able manner in which this point was argued before us by the applicant's leading counsel,[20] in our view, proposed ground 4 must fail. The fallacy in the applicant's argument is that it wrongly assumes that the judge found that there was a 'compensable injury' caused by the subject collision. In fact, the judge accepted that while the applicant suffered from a 'relatively mild organic injury to the wrist', she concluded that there were no medical opinions which enabled her to make a finding as to the 'relevant injury [suffered in March 2010] arising from the aggravation of the pre-existing [July 1999] injury'.[21]

38 In any event, the judge's path of reasoning to her conclusion, that the application should be dismissed, is brightly illuminated. In a proceeding where success for the applicant was heavily, if not solely, dependent upon her evidence and histories being accepted as honest and accurate, the judge provided detailed reasons why the applicant's evidence and histories could not be accepted. Moreover, the injury, that was conceded by the applicant's counsel to be relatively modest, could not, without an acceptance of the applicant as a truthful and reliable historian, have led to a conclusion that the applicant's injury satisfied the 'very considerable' test.[22]

39 The applicant's complaint about the judge's reasons is, in truth, no more than a complaint that the judge did not engage in the reasoning process contended for by the applicant. Once the judge concluded, as she was entitled to conclude, that the applicant was not a truthful or reliable historian, the judge was entitled to reject the medical opinions upon which the applicant relied, being opinions that were based on the applicant's histories and behaviour at examinations. It was not necessary for the judge to engage in any further reasoning process. Much less, in the circumstances of this case, was the judge required to analyse further the extent of the applicant's claimed injury or its consequences.

40 The application for leave to appeal must be refused.

[1] Haidar v Transport Accident Commission [2016] VCC 489 ('Reasons').

[4] Some medical practitioners had examined the applicant for the purposes of this proceeding, while others had examined her for the purpose of a claim for compensation made under the provisions of the Accident Compensation Act 1985.

[5] Reasons [51]-[57] (footnotes omitted).

[6] Ibid [58]-[59] (footnote omitted).

[15] Ibid [71]-[78] (footnotes omitted).

[16] With whom Tadgell and Buchanan JJA agreed.

[17] [1998] 4 VR 439, 448.

[18] See further, Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598, 1607 [47], 1609 [60] (Gleeson CJ, McHugh and Gummow JJ).

[20] Not counsel who appeared for the applicant at first instance.

[22] Cf Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 140; Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436, 442-444.