Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1

Court of Appeal (Vic)|2005-02-10|Before: BATT, VINCENT and NETTLE, JJ.A.

ACCIDENT COMPENSATION - Transport accident - Serious injury - Severe long-term mental or severe long-term behavioural disturbance or disorder - Judge's reasons for refusing leave inadequate - Application re-determined on appeal - Leave to proceed granted - Transport Accident Act 1986, ss.93(17); 93(4)(d); County Court Act 1958, s.74(3).

The main contention for the applicant (as I shall call her) before this Court was that the primary judge failed to deal adequately or (almost) at all with the applicant's claimed loss of income-earning capacity since her accident and that, properly assessed, that loss showed that she had a "serious injury" within paragraph (c) of the definition of that expression. I agree with Nettle, J.A., whose reasons for judgment I have had the benefit of reading, that, for the reasons he gives, the contention should be upheld and error of law in her Honour's reasons held to have been made out.

I agree also with Nettle, J.A.'s conclusion that error of law is established in her Honour's reasons concerning the psychiatric and psychological evidence bearing on whether the applicant had a severe long-term mental or behavioural disturbance or disorder. I agree that the reasons are inadequate in the ways his Honour demonstrates and that, properly assessed, the evidence established such a disturbance or disorder.

Finally, I agree in the disposition of the matter proposed by his Honour.

I agree with the disposition of this matter as proposed by Nettle, J.A. for the reasons advanced by him in his judgment.

This is an application for leave to appeal from a judgment and orders of a judge of the County Court, given and made on 22 August 2003. By her orders the judge dismissed the appellant's application for leave pursuant to s. 93(4)(d) of the Transport Accident Act 1986 to bring a proceeding for the recovery of damages in respect of an injury said to have been sustained in a transport accident on 8 March 1997. The applicant contends that the judge's decision is manifestly and wholly erroneous and further or alternatively that the judge erred by failing to take into

account the substantial loss of earnings which the applicant is said to have suffered by reason of the injury.

This matter is unfortunately old. The applicant instituted her application for leave by originating motion filed in the County Court on 20 March 2002. It did not come on for hearing until 5 August 2003 and after a hearing that extended over 5 and 6 August 2003 the judge reserved her decision until 22 August 2003. The applicant filed a notice of appeal on 4 September 2003 but it took until December 2004 for the appeal to come on for hearing in this court.

The applicant is a 44 year old married woman with two teenage daughters. She was born on 9 February 1960 and she was 37 years old at the time of the accident and 43 years old at the time of hearing. She graduated with a Diploma of Education in 1979 and between 1980 and 1983 she worked full time as a primary school teacher at St Peter's Primary School. In 1984 and for two terms of 1985 she worked full time as a primary school teacher at St Justin's Primary School. Thereafter she took maternity leave for the birth of her first child, and in 1987 she returned to work, part time, as co-ordinator of the after-school programme and she worked in that capacity in 1986 and 1987. In 1988 she worked part time as a primary school teacher at St Benedict's Primary School and in 1989 and 1990 she worked as an emergency teacher at Aymard Hill Primary School. Meanwhile, in 1989 she had graduated to the degree of Bachelor of Education. In 1991 and 1992 she worked two days a week as a kindergarten directress and in 1993 she worked as an emergency teacher at four different primary schools before beginning in 1994 as a part-time physical education teacher at St Michael's Primary School. In 1995 she returned to full time work as a primary school teacher and she was so working at St. Simon's Primary School at the time of the accident on 8 March 1997. According to evidence given by the school principal, which the judge appears to have accepted, the applicant:

"...was employed in the position of classroom teacher at St. Simon's primary school from January 1997 to December 1997. During [that] time [she] had responsibility in conjunction with other staff for the planning and implementation of an appropriate course of studies in all subject areas for students at year 2 level. During 1996...[she] presented as a competent and dedicated teacher. She was able to establish a good rapport with students, parents and staff; displayed a willingness to take an active role in the many and varied aspects of school life; was prepared to spend additional time out of school hours to ensure all relevant documentation was completed and the class program was well planned. [She] appeared to gain satisfaction both personally and professionally in her role as a teacher."

On 8 March 1997, the applicant was involved in a transport accident at the intersection of Blackburn and Doncaster Roads, Doncaster. It is said to have occurred when a taxi driven by the second respondent went against a red traffic light and collided with the car which the applicant was driving. Both cars were badly damaged; the appellant's so badly that it was written off. The appellant's two young daughters were travelling with the applicant in her car at the time of the accident and one of them suffered serious facial injuries as a result of the accident. The applicant suffered great pain from the top of her chest to her abdomen, which was caused by the impact of her seat belt, and she was extremely concerned about her daughter. The accident was thus a shocking and terrifying experience for the applicant and it was made worse by abuse directed at the applicant by another motorist at the scene. The applicant and her daughters were taken by ambulance to the Box Hill Hospital. The applicant was x-rayed and kept for a time for observation and later allowed to go home.

In April 1997 the applicant returned to work at St Simon's Primary School but from the start she appears to have been unable to cope with her teaching duties. According to the judge's findings, the applicant was frequently in tears during breaks and was generally distressed, she had difficulty in concentrating and planning classes and, for the first time in her professional career, she had difficulty in controlling students. Such was her condition that she had to take off various days from work and that led eventually to her taking an unpaid leave of absence from 9 October 1997 to 31 October 1997, and that was later extended by a further 15 days. At the end of the 1997 school year the applicant felt constrained to advise the school that she would be unable to return full time in the following year. According to further evidence of the school principal, which the judge appears also to have accepted:

"In the weeks following [the accident the applicant] reported on a number of occasions, she was experiencing ongoing pain as a result of the injuries sustained in the accident. As a consequence she was obliged to take a number of days sick leave. Towards the end of Term 3 the severity and nature of her health problems had still not improved despite seeking extensive medical assistance and advice. As a result [the applicant] was unable to continue to effectively function within her role as class teacher. She requested and was granted an extended period of leave...Despite various attempts to return to full-time employment...during Term 4, [the applicant] continued to have difficulty in carrying out the responsibilities related to the role of class teacher. In light of the ongoing medical problems and the lack of any indication of when her health would improve [the applicant] reached the decision not to seek employment at St Simons in 1998. To the best of my knowledge up until the present time [the applicant] has not been able to return to her teaching career which based on my contact with her, was an occupation she took great pride in and enjoyed."

The application below was put on the basis that the applicant had suffered a serious long-term impairment or loss of a body function within the meaning of paragraph (a) of the definition of "serious injury" in s.93(17) of the Act and also or alternatively a severe long-term mental or severe long-term behavioural disturbance or disorder within the meaning of paragraph (c) of that definition. The judge rejected both legs of the application. This application for leave to appeal is confined to the second leg. The applicant accepts that it was open to the judge to find that the applicant had not suffered a serious long term impairment or loss of body function, and that "severe" where used in paragraph (c) is a word of stronger force than the word "serious" where used in paragraphs (a) and (b) of the definition.[1] But the applicant contends that the judge was in error in rejecting that she had suffered a severe long-term mental or severe long-term behavioural disturbance or disorder within the meaning of paragraph (c). In effect the application is put on the basis of both specific error and manifestly or wholly erroneous estimate.[2]

The application below was supported by a substantial body of medical opinion directed to both aspects of the application although, for the purposes of this application, it is only necessary to refer to that part of the medical evidence which was directed to the appellant's mental and behavioural condition.

In March 1998 the appellant's general practitioner, Dr Ostberg, reported that the applicant had suffered from a plethora of complaints during the year, but that only some of those were attributable to the accident. In his opinion, the appellant's pain needed ongoing treatment but it should not have been such as to prevent the applicant working in the class room as a teacher. He considered that there may be periods of exacerbation that would require the applicant to take time off from work. He also observed that the applicant appeared to have suffered an exacerbation of a pre-existing neck injury which had resulted in both physical and emotional problems, and that it had prevented the applicant working in a classroom during the last year. His prediction at that stage, however, was that the continuance of pharmaceutical and physical therapy should allow her to return to work as a class room teacher in 1998.

By August 1998 Dr Ostberg's opinion had changed for the worse. In his report of that month he recorded that the accident had exacerbated the appellant's neck pain, and that the resulting fear of chronic ill-health had made her believe that her other illnesses were worse than they really were. Dr Ostberg also considered that the extent of any such exaggeration needed to be analysed by reference to the clinical notes of the appellant's former treating physician and with the aid of an opinion from a psychiatrist specializing "in the area" (which I take to mean in the area of psycho-somatic pain).

In August 1997, the applicant first saw psychologist, Mr John Corbett. In the same month he reported that since the accident the applicant had suffered from increasing somatisation, anxiety and continual crying. He diagnosed either post-traumatic stress disorder or an anxiety disorder due to a medical condition. He considered that the injuries presented were consistent with the appellant's stated cause of anxiety and stress directly related to the impact of the accident in a person who by nature had a predisposition to worry and anxiety. Mr Corbett was also of opinion that the applicant should have a reasonable prognosis with adequate medical psychological and physical care, but he noted that the applicant had still not resumed her teaching duties and that she believed that she did not have the capacity to tolerate the demands of teaching young children. He remarked that that had led to a significant impact on the economic viability of the appellant's family and that the applicant was currently looking at alternative forms of employment.

On 8 April 1998 another psychologist, Dr Michael Heffernan, reported that upon examination he had found the applicant to be a genuine person suffering from significant depression and anxiety with very high levels of confusion and cognitive dysfunction. He considered that the manner in which she reported some of her symptoms suggested a degree of depersonalisation, and that she was exposed to amplifying pain and intercurrent illness.

On 19 May 1999 the applicant was examined by psychiatrist, Dr David Weissman. He reported that the applicant had mild to moderate post-traumatic stress and anxiety symptoms such as driving fear and anxiety, hyper-vigilance, arousal and nightmares. He thought that they had improved over time with psychological intervention, and thus that they did not any longer quite satisfy the diagnostic criteria for a full blown post-traumatic stress disorder. He found nevertheless that the applicant still had moderate symptoms of depression and anxiety, and that despite improvement over the past six months with the use of anti-depressant medication, the applicant still satisfied the diagnostic criteria for a moderate adjustment disorder with depressed and anxious mood. Dr Weissman also opined that the appellant's prognosis was uncertain and guarded. It had been more than two years since the accident and the applicant continued to experience moderate pain. He was uncertain as to whether her adjustment disorder symptoms and post-traumatic stress and anxiety symptoms would further improve with medication and supportive therapy. He noted that the applicant was at that stage working 30 hours per week in a new giftware business, and that her psychiatric symptoms were not interfering with her capacity to do that work. It remained, however, that she still experienced a range of significant psychiatric symptoms which Dr Weissman attributed as to 20% to pre-existing psychiatric impairment; as to 30% to primary psychiatric impairment relating to post-traumatic stress and anxiety symptoms; and as to 50% to secondary psychiatric impairment, relating to mixed depression and anxiety in a setting of chronic pain, injury and disability.

In March 2000 the applicant was examined by psychiatrist, Dr Colm Moore. Dr Moore found that the appellant's symptoms did fulfil the diagnostic criteria for a full blown post-traumatic stress disorder. In a report dated 2 March 2000, Dr Moore explained that the applicant was suffering from clinically significant post traumatic stress disorder which had not stabilized and which was continuing at a relatively high level warranting specialist psychiatric treatment. Dr Moore noted that the applicant had been unable to return to teaching for two reasons: in part because of the severity of her headache, which disrupted her ability to think; and, equally importantly, because of the features of post-traumatic stress disorder, particularly those covered under the so-called "D" criteria of hyper-arousal. Dr Moore was also of the opinion that it was uncertain that the applicant would be able to return to work as a teacher in the future. Much would depend, he said, upon the outcome of her head and neck pains and also the post-traumatic stress disorder. Dr Moore added that, despite what he had read, he considered that there were no predisposing factors in this case. As he explained, the only predisposing factors to a post-traumatic stress disorder are a post-traumatic stress disorder preceding the time of trauma, or a post traumatic stress disorder extant at the time of trauma; and that neither applied in this case. Dr Moore was of opinion that the applicant did not suffer from an anxiety disorder prior to the injury accident. She suffered from trait anxiety associated with strong obsessional personality traits, and they as such did not constitute a disorder.

In September 2000 the applicant was examined by another psychiatrist, Dr Diane Neill. Dr Neill's opinion was that the applicant had suffered from a number of pre-existing psychiatric problems. Like Dr Weissman, however, Dr Neill considered that the applicant had had a chronic post-traumatic stress disorder from the time of the accident in 1997 and longstanding somatization as a reaction to internal and external stressors. Dr Neill also considered that the appellant's somatization had skewed her post accident "help-seeking" and was then manifest chiefly in the appellant's chronic pain syndrome and hypochondriasis and preoccupation with fears of having a serious disease (such as cancer) based on misinterpretation of bodily symptoms, causing clinically significant distress and impairment. Like Dr Weissman, Dr Neill observed that there had been some response to appropriate anti-depressant treatment, but added that the treatment had been discontinued prematurely at the appellant's instance and that there had been some global worsening of the appellant's symptoms except for pain. Like Dr Weissman, Dr Neill also noted that the applicant was working 20 to 30 hours a week in the gift shop, but could not envisage returning to teaching because of her ongoing symptoms and unresolved shame about her failure. Dr Neill considered that the applicant was likely to follow a waxing and waning course in her anxiety somatization and hypochondriasis, as had happened in the past, with reactivity to internal and external stressors and that the greatest impediment to best outcome was the appellant's own resistance to engaging in psychiatric/psychological treatment even though she had an understanding that her physical symptoms and fear of serious illness were emotionally driven.

The applicant was re-examined by Dr Neill in January 2003. Following that examination, Dr Neill reported that while she found the applicant to be recovered in all respects "with regard to the multiple psychiatric conditions present at the previous assessment", the applicant still had manifestations of trait anxiety and chronic pain (albeit with greatly diminished somatic focus). Dr Neill added that although those problems and the appellant's hypochondriacal condition were pre-existing and long standing, they had been aggravated by her accident post-traumatic stress disorder, and Dr Neill expressed the expectation that the applicant would need to remain on anti-depressant medication of some kind for at least the next two years and possibly "long term" in view of "the multiplicity and chronicity of her condition". Dr Neill added the observation that although the applicant was working 20 to 25 hours a week in the retail giftware business, and although "[the applicant was] contented with her work now, she misses the contact with children teaching gave her". Dr Neill considered that the applicant would have difficulty with teaching in a full-time capacity due to her labile moods, interpersonal sensitivity and propensity to pain.

In June 2003, the applicant was examined by yet another psychiatrist, Dr Nigel Strauss. In his report dated 18 June 2003 Dr Strauss concluded that the applicant was a tense and anxious person whose condition had been exacerbated considerably by the accident. It had been sudden, frightening, upsetting and distressing, due not only to the circumstances of her own injuries but also to the injuries suffered by her children. Dr Strauss considered that the applicant had not coped well with the accident and that her anxiety levels had ever since been high. There had been improvement with the lapse of time and treatment with anti-depressant medication, but she remained a very anxious woman preoccupied with physical and psychological symptoms. There was a direct relationship between her physical symptoms and her psychological state. In Dr Strauss' opinion, the applicant suffered from a pain disorder and a post-traumatic stress disorder associated with very high levels of anxiety and some depression. The accident was a major cause of her psychiatric difficulties, and her injuries were consistent with the stated cause. She would always suffer from significant ongoing psychiatric problems. Her levels of competency and efficiency would remain permanently reduced because of her psychiatric problem caused by the accident and because of her pre-accident personality type. She would never be able to get back to teaching again and she would always remain somewhat disorganized. She could cope with a part-time job working in her own store, but she could not do a complex full-time job like school teaching. She would always suffer from significant psychiatric problems largely related to anxiety, and her prognosis must be guarded. She needed to continue to take anti-depressants.

When a judge decides an application under s. 93(4)(d) of the Act the judge is under a duty to provide reasons for his or her decision. Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion.[3] It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case[4], where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue.[5] Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.[6]

These points are encapsulated in the judgment of Chernov, J.A. in Barlow & Anor v Hollis.[7] As his Honour there said, the fact that a judge may not mention some matter relevant to the disposition of a s. 93(4)(d) application does not necessarily mean that his or her judgment is deficient. For example, matters which are obvious need not be restated,[8] and the element of value judgment involved in the determination of such an application does not always lend itself to the degree of precision in expression that can be achieved in other matters.[9] But interlocutory in nature though these applications have now been determined to be[10], in reality they are finally determinative of rights. If an application is rejected, it is the end of the road for the applicant. And if the application is successful, it is odds on that the matter will settle.[11] Logic and fairness dictate that the reasons for judgment of such an application should be of a standard which is commensurate with that degree of finality.

In this case the judge adopted the course of setting out large tracts of the tendered medical opinions. But, despite the depth and sophistication of that evidence, the judge's only findings on the applicant's mental or behavioural disturbance or disorder were limited to this:

"In my view, Dr Neill provided the most thorough and comprehensive assessment of the [the applicant], with the added advantage of having reviewed her on two occasions more than two years apart. In addition, Dr Neill most accurately describes [the applicant] in terms which I can vividly recognize as the same person who gave oral evidence.[12] I will not repeat again here Dr Neill's most recent diagnosis, work and home activities and prognosis. I am satisfied that Dr Neill's assessment most accurately describes [the applicant's] status from a psychiatric perspective. Dr Neill's assessment recognized a marked improvement in [the appellant's ] psychiatric conditions whilst also acknowledging some mild ongoing post traumatic stress symptoms. [The applicant] has shown a very good response to antidepressant medication. Dr Neill notes that [the applicant] is content with her work, with no interference from her injuries. She also participates, with help, in the domestic chores. Dr Neill also confirms that [the applicant] would have difficulty teaching in a full time capacity.".

On that basis, and the evidence given by the applicant, the judge stated:

"67.3 ...I am satisfied after hearing the [applicant's] evidence and taking into account the preponderance of medical evidence, with particular regard to the opinions of Dr Neill [13]that: * The [applicant] is directly, consistently and constantly involved in the co-management of the giftware shop including the selection and purchasing of stock; * The [applicant] drives her car to and from work and for the purpose of other family related activities; * The [applicant] gains considerable satisfaction from her work and involvement in a giftware business which is doing well; * With the assistance from her family the [applicant] participates in all usual family activities and chores; * On the evidence of Dr Neill's assessment, which I accept as most insightful and balanced in the circumstances,[14] the [applicant] has shown a marked improvement over time in her psychiatric condition although her pre accident trait anxiety and hypochondriacal condition remain long standing. 67.4 In addition, I attach some significance to the following current circumstances: * The [applicant] is now apparently being managed by [her GP] at a relatively low level - August 2002 and very recently [15] being the most recent consultations; * She does not have and has never had any specialist psychiatric treatment; * The [applicant's] observance of recommended treatment regimes [scil. taking anti-depressant medication], as has been commented upon by a number of doctors, has been erratic but she now appears to be maintained on low dose anti-depressant; * There is no evidence that the [applicant] has ever sought alternative employment since she ceased teaching or been assessed by either a rehabilitation specialist (as recommended by Dr Ostberg as early as March 1998) or an occupational specialist; * In my view it is no small achievement to have started a small business from scratch and continue to maintain it profitably over a number of years. 69. The [applicant] and her husband chose to pursue a particular business opportunity in which they have achieved marked success. The business provides both work and personal satisfaction to the [applicant]. I am satisfied that the medical evidence on the whole [16] suggests that her psychiatric symptoms do not impair her capacity to work in the gift shop business or that she works around them and they have improved and continue to improve with time. ... 71. Having regard to the totality of the evidence I am satisfied that even allowing for some residual mental disorder or behavioural disturbance as a result of the 1997 accident, I am not satisfied [sic] that it is severe or that the consequences for the [applicant] are severe and long term. ... 73. I find that the [applicant] has suffered a mental disturbance (or disorder) or behavioural disturbance (or disorder). However, I am not satisfied on the balance of probabilities that it is severe and long term within the meaning of section 93(17)(c) of the Act. Accordingly, I am not satisfied that the injury suffered is a `serious injury' within the meaning of the Act..."

In my opinion the judge's reasons were inadequate. The judge's expressed satisfaction that Dr Neill's assessment "most accurately described the appellant's status from a psychiatric perspective" and that it was the "most insightful and balanced in the circumstances" implies that her Honour accepted that the applicant suffered a chronic post-traumatic stress disorder from the time of the accident in 1997 and somatization and that the applicant still suffers from trait anxiety and chronic pain and that those problems and the appellant's hypochondriacal condition have been aggravated by her accident post-traumatic stress disorder, and that that the applicant would have difficulty with teaching in a full-time capacity due to her labile moods, interpersonal sensitivity and propensity to pain. It also suggests that her Honour concluded (as appears to be implicit in Dr Neill's report of January 2003) that the recovery observed by Dr Neill "with regard to the multiple psychiatric conditions present at the previous assessment", was attributable to the continued ingestion of anti-depressant medication, and that, as a consequence of the accident, the applicant will need to remain on anti-depressant medication of some kind for at least the next two years and possibly "long term" in view of "the multiplicity and chronicity of her condition".

But, contrastingly, it is not apparent from the judge's conclusions whether the judge's satisfaction that Dr Neill's assessment "most accurately described the appellant's status from a psychiatric perspective" and that it was the "most insightful and balanced in the circumstances" means that the her Honour rejected Dr Moore's thesis that the only predisposing factors to a post-traumatic stress disorder are post-traumatic stress disorder preceding the time of trauma, or a post traumatic stress disorder extant at the time of trauma, and that neither applied in this case. Nor is one able to say whether the judge rejected Dr Strauss's opinion that the applicant suffers from a pain disorder and a post-traumatic stress disorder associated with very high levels of anxiety and some depression; or that the accident was a major cause of her psychiatric difficulties, and that her injuries were consistent with the stated cause; or that she will always suffer from significant ongoing psychiatric problems; or that her levels of competency and efficiency will remain permanently reduced because of her psychiatric problem caused by the accident and because of her pre-accident personality type; or that she will never be able to get back to teaching again and she will always remain somewhat disorganized; or that while she can cope with a part-time job working in her own store, she could not do a complex full-time job like school teaching; or that she will always suffer from significant psychiatric problems largely related to anxiety, and her prognosis must be guarded and hence that she will need to continue to take anti-depressants.

The problem at its most basic is that Dr Neill's assessment is silent about a number factors dealt with in Dr Moore's and Dr Strauss's opinions, and, so far as appears, Dr Neill's assessment is not necessarily inconsistent with Dr Moore's and Dr Strauss's opinions on those factors. So therefore for the judge to say only that she is satisfied that Dr Neill's assessment "most accurately described the appellant's status from a psychiatric perspective" or that it is the "most insightful and balanced in the circumstances" does not necessarily say anything as to whether the judge accepted or rejected Dr Moore's and Dr Strauss's opinions on those factors. If, however, it is to be concluded that the judge rejected any of those opinions, the judge has not provided any reasons for their rejection. Given the nature and sophistication of the disciplines involved, her Honour's ipsa dixit as to the appearance of the applicant in the witness box falls a long way short of the mark. Alternatively, if it is to be concluded that the judge did not regard those opinions as relevant to her final conclusion, the judge has not provided any explanation of the steps involved in excluding them from consideration.

The judge may have thought that it was enough simply to set out the evidence and other material upon which her findings were based and then to state her conclusions. But for the reasons already explained that was not enough. The requirement to refer to the evidence upon which findings are based is a requirement to analyse the evidence and to explain why some parts of it do and others do not lead to the ultimate conclusion. And that analysis must be recorded in the reasons. In general, and in this case in particular, the mere recitation of evidence followed by a statement of findings, without any commentary as to why the evidence is said to lead to the findings, is about as good as useless.[17]

There is then the applicant's principal complaint that the judge failed altogether to deal with a major aspect of the applicant's case (which was that her injury had rendered her unable to return to full time work as a teacher, as she would like to be able to do, and that as a result her income was significantly reduced). In my opinion that complaint is also well founded.

Counsel for the applicant opened the case below on the basis that:

"...her case is that she was able [before the accident] to juggle those responsibilities to work and to lead a reasonable life. The motor car accident of 8 March 1997 has brought a dramatic change in that situation which has resulted in her neck condition becoming far worse and has resulted in a very serious psychiatric reaction to the accident and to the symptoms which she has had, which has now become chronic, which has prevented her from following her career as a school teacher and which is likely to prevent her from following her career as a schoolteacher into the future. ... ...it's put that if the mental or behavioural disturbance or disorder is considered by itself, it is undoubtedly severe and long term because it's had the consequence that the plaintiff has not been able to return to school teaching and that she has suffered thereby a very substantial loss of earning capacity compared to what she has earned from work activities which she has engaged in elsewhere at the gift shop and that the past loss of earnings alone, Your Honour, would amount to something around or approaching $100,000 net and it's continuing. On top of the loss of career and the fact that she has been on antidepressants for years and is likely to remain on them into the long-term future. She tried going off the antidepressants at one stage because of their effects upon her and she got back on them and she's been on them for years and it seems from the medical material which I'll take you to, that the strong likelihood is that she will be on antidepressant medication in the indefinite future to maintain her present position..."

Similarly in final address, counsel for the applicant submitted to the judge:

"[Even] if you find that there is at this stage no organic basis for her symptoms she should not miss out under (c) because the consequences to her have been extremely severe. She's lost her career and she is - if you go to the tax returns, there's a financial summary there, Your Honour, which Mr Dalton has meticulously worked out and you'll see it's divided into columns of years, wages, the distribution from the partnership, there's some capital gains that have come along which has nothing to do with [personal] exertion, and taxable income at the end."...

And after referring to the table and contrasting the figures, counsel continued:

"...So she's suffered a massive loss. It's referred to by Mr Corbett, and it's obvious from the documentation. There's a massive past loss of wages as a schoolteacher in addition to the loss of her career. In my submission that loss is something that Your Honour should place great weight on in relation to the past and also the future because it's likely to continue. This woman's earning capacity has been devastated, absolutely devastated. On top of it all, she's still got these symptoms and she's still on antidepressants... ... So to summarise she still has the condition, it affects her, she's tearful, she has feelings of panic and hopelessness and despair and all those things that are set out in her affidavit. It has been helped to some degree by the medication but the medication itself causes problems and will continue to do so if the past is any guide. She has suffered a very substantial financial loss, that loss is likely to continue into the future, and [she] has suffered the loss of her career and the ability to be able to lead the full life that she led beforehand...."

Yet despite counsel's heavy concentration on loss of career and the financial consequences of it, there is only the slightest mention of the subject in the judge's reasons for judgment and not a word as to why the financial loss outlined by counsel was thought to lack the significance which he attributed to it. After stating that counsel's submission was that:

"...the [applicant] ... has suffered a very substantial financial loss, that loss is likely to continue into the future. She has suffered the loss of her career as a school teacher and the loss of her ability to be able to lead the full life that she led before hand. She can no longer foster children..."

all that the judge said about the subject is that the applicant is involved part time in a gift ware shop which gives her "considerable satisfaction", that it is in the judge's opinion "...no small achievement to have started a small business from scratch and to maintain it profitably over a number of years"(whatever that means), and that (presumably apart from the giftware shop) the plaintiff has not "ever sought alternative employment" since she ceased teaching. There are no findings as to whether the judge accepted or rejected the financial analysis to which counsel referred; or, if she rejected it, why she rejected it; or, if she accepted it, why she did not consider that it evidenced a profound loss of income and income earning capacity; or whether the judge considered that the applicant would have been able to earn in some alternative employment an income comparable to a full time school teacher; or, if that were so, what evidence it was based upon and why it was that such evidence was regarded as preferable to Dr Weissman's opinion that although the applicant could cope with a part-time job working in her own store, she could not cope with a complex full-time job like school teaching.

It was submitted on behalf of the respondent that the loss of income was in fact quite small and that one might readily infer that the judge regarded it as de minimis or as so insignificant as not to warrant specific mention. That is not so. As I explain below, the loss of income resulting from the applicant's injury was for her relatively very significant.

It was also submitted on behalf of the respondent that to criticise the judge for failing to deal with the applicant's loss of career and the economic consequences of it was to rework the statutory test so as to require consideration of some facets of economic loss in a way that the statute does not require, and that to do so was to elevate judicial observations about the effect of the statute to the level of the statute itself. In my opinion that is also not so. Apart from authority that it is appropriate to have regard to pecuniary disadvantage as well as pain and suffering[18], logic and common sense commend loss of income and loss of career as obvious measures of the severity of an injury and, in any event, loss of career and loss of income were in issue. The applicant relied upon them as measures of loss and hence as a measure of the severity of the injury, the respondent took issue with them, and the applicant tendered evidence and made submissions in support of them. In those circumstances the obligation of the judge to provide intelligible reasons for her decision to refuse the application required no less than that she deal with those issues; make findings on questions of fact material to those issues; refer to the evidence or other material upon which those finding were based; and provide an intelligible explanation of the process of reasoning that led to the findings and from the findings to the determination of the issues and from the determination of the issues to the ultimate decision.

As has already been observed, reasons are not intelligible if they leave the reader to wonder which of a number of possible routes have been taken to the conclusion expressed. A fortiori they are inadequate when they leave out altogether discussion and resolution of major issues and the role if any which they have been accorded in the ultimate determination. In this case the issues of loss of career and consequent loss of income and income earning capacity were at once so strikingly relevant and cogent that the judge could not give fair and sensible reasons for her decision without adverting to them and assigning reasons for their rejection.[19]

It was then further submitted for the respondent that the judge should be taken to have found that the applicant would be able, if she chose, to return to part time work as a school teacher and that the finding was a sufficient basis for the judge's conclusion that the appellant's mental disturbance or disorder or behavioural disturbance or disorder was not shown to be severe and long term within the meaning of paragraph (c) of the definition. The submission was based upon Dr Neill's observation that the applicant would have difficulty with teaching in a full-time capacity due to her labile moods, interpersonal sensitivity and propensity to pain. But it too is not persuasive. Apart from the fact that there is no such finding recorded in the reasons for judgment (which is probably a sufficient reason for concluding that the finding was not made), and that such a finding would fly in the face of the conclusions expressed by Drs Moore and Strauss (which her Honour did not in terms reject), logically it does not follow from the fact that someone would have difficulty working at something full time that they would not have difficulty working at the same thing part time.

In my opinion the errors in the judge's reasoning are such that her Honour's judgment should be set aside. I am also of the opinion that it is more appropriate that this court decide the matter ourselves (based upon the evidence and other material that were before the judge below) than that we remit the matter to the County Court for rehearing.[20] Apart from the further delay that remitter would entail, it appears that we are as well placed as the judge below to decide the matter ourselves.[21] We have been provided with a transcript of the applicant's evidence below and of counsel's submissions below, we have heard further submissions from counsel on the appeal as to whether the applicant's injury should be regarded as severe, and we have before us all of the documentary medical evidence which was before the judge below. We have not had the benefit of seeing the applicant cross-examined, as the judge did, but as appears from the judge's reasons for judgment, there was no credit issue.[22]

On the evidence before us, I find no reason, and none was suggested before the judge or before us, for rejecting Dr Moore's thesis that the only predisposing factors to a post-traumatic stress disorder are post-traumatic stress disorder preceding the time of trauma, or a post traumatic stress disorder extant at the time of trauma, and that neither applied in this case. Equally, I find no reason, and none was suggested before the judge or before us, for rejecting Dr Strauss's opinion that the applicant suffers from a pain disorder and a post-traumatic stress disorder associated with very high levels of anxiety and some depression; or that the accident was a major cause of her psychiatric difficulties, and that her injuries were consistent with the stated cause; or that she will always suffer from significant ongoing psychiatric problems; or that her levels of competency and efficiency will remain permanently reduced because of her psychiatric problems caused by the effects of the accident on her pre-accident personality type; or that she will never be able to get back to teaching again and she will always remain somewhat disorganized; or that while she can cope with a part-time job working in her own store, she could not do a complex full-time job like school teaching; or that she will always suffer from significant psychiatric problems largely related to anxiety, and her prognosis must be guarded and hence that she will need to continue to take anti-depressants. None of that is inconsistent with Dr Neill's conclusions, albeit that Dr Neill's conclusions are less extensive than Dr Moore's and Dr Strauss's opinions.

If then Dr Moore's and Dr Strauss's opinions are to be accepted, as I think they should be, it appears to me that the applicant has suffered a mental impairment which has a serious consequence for her in the form of disablement from work or interference with enjoyment of life.[23] How else realistically does one characterise a pain disorder and a post-traumatic stress disorder associated with very high levels of anxiety and some depression, significant ongoing psychiatric problems, permanent reduction in the appellant's levels of competency and efficiency, consequent inability ever to get back to a complex full-time job like school teaching, for which before the accident she was fit, and a continuing dependence upon anti-depressant medication in order to cope with significant psychiatric problems largely related to anxiety?

I add that even if it were thought that the applicant was able to return to part time teaching, and in my opinion the evidence does not support that conclusion, the position would likely be the same. As at present advised, I do not see why the ability to return to part time school teaching should be thought so much to ameliorate the effects of the appellant's pain and post-traumatic stress disorder associated with very high levels of anxiety and some depression, significant ongoing psychiatric problems, permanent reduction in levels of competency and efficiency, and a continuing dependence upon anti-depressant medication in order to cope with significant psychiatric problems largely related to anxiety, as to mean that they should not be regarded as constituting a mental or behavioural disturbance or disorder which is severe and long term within the meaning of paragraph (c) of the definition.

Turning then to the pecuniary consequences of the applicant's injury, the figures presented to the judge showed that in the 1997 year of income, which was the last fiscal year in which the applicant worked full time as a school teacher, she received gross wages of $37,546, and she was also entitled to accruals for long service leave and superannuation. In the 1998 year of income, which was the first fiscal year following the accident, the applicant worked only part time, and received a salary of only $16,917. In the 1999 year of income, which was the first fiscal year in which the applicant worked part time in the gift shop, she received only $714 from part time teaching and only $12,994 from the shop (a total of $13,531). In the 2000 year of income the applicant received only $13,948 from the gift shop. In the 2001 year of income she received only $9,711 from the gift shop. And in the 2002 year of income, which was the last complete year of income before the hearing of the application, the applicant received only $6,100 from the gift shop. Therefore, and even assuming that the salary of a full time primary school teacher did not in six years increase above the level of $37,000 per annum, which I should have thought was unrealistic, and putting aside the benefit of long service leave and superannuation entitlements which would attach to a full-time position, which I should have thought would be considerable, the loss to the applicant for the five years to the date of hearing was not less than $161,616.

In my opinion the evidence shows that the applicant has suffered a very significant pecuniary disadvantage by reason of her injury.

In Humphries v Poljak[24] Crockett and Southwell JJ. laid down that the seriousness of an injury for the purposes of s. 93(4) is to be assessed by reference to the consequences of the injury to the applicant and that in assessing the consequences of the injury regard may be had to pain and suffering and pecuniary disadvantage alike. That approach has since been followed across the board.[25] An analysis must be made of the extent of impairment of bodily function before and after the relevant injury[26] and in the case of an injury within paragraph (c) of the definition, the necessity for treatment, including the need for antidepressant medication and the side effects of the medication, and any accompanying physical incapacity, are relevant to the assessment.[27] I approach the matter accordingly.

For the reasons already given I consider that the applicant has suffered a mental impairment which has a serious consequence for her in the form of disablement from work and interference with enjoyment of life and that she has suffered very significant pecuniary disadvantage as the consequence of that affliction. The aggregate of those considerations leads me to conclude that the applicant has suffered a severe long-term behavioural disturbance or disorder within the meaning of paragraph (c) of the definition of "serious injury".

In the result, I would allow the application for leave to appeal, treat the appeal as having been heard instanter, and allow the appeal. The judgment and orders the subject of appeal should be set aside and in lieu thereof I would grant the applicant leave pursuant to s. 93(4)(d) of the Transport Accident Act 1986 to bring a proceeding for the recovery of damages in respect of the injury which she sustained in the transport accident on 8 March 1997.

[1] Mobilio v Balliotis [1998] 3 V.R. 833 at 834-5, per Winneke, P.; at 842; per Brooking, J.A.; at 854, per Ormiston, J.A.; at 858, per Phillips, J.A.; at 860, per Charles, J.A.

[3] Cropp v TAC [1998] 3 V.R. 357 at 376, per Charles, J.A.; Giannakopoulos v Melwire Pty Ltd and MMI Workers' Compensation (Victoria) Ltd [2000] VSCA 153 at [23] et seq., per Tadgell, J.A.; Dodoro v Knighting [2004] VSCA 217 at [39], per Buchanan, J.A., and at [45] and at [58], per Eames, J.A., in diss.

[4] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 A.L.R. 447 at 463 [62].

[5] _Sun Alliance Insurance Ltd v Masso_ud [1989] VicRp 2; [1989] V.R. 8 at 18.

[6] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 N.S.W.L.R. 247 at 279-280 and 282, per McHugh, J; Fletcher Constructions Australia Ltd v Lines Macfarlane & Marshall Pty Ltd [2001] VSCA 167; (2001) 4 V.R. 28 at 35[18], per Chernov, J.A.

[7] [2000] VSCA 26 at [ 15] and [16].

[8] Humphries v. Poljak [1992] VicRp 58; [1992] 2 VR 129; Stone v Jarvis, ibid at 146.

[9] Nichols v Robinson [2001] VSCA 11 at [14] - [16]

[10] Dodoro v Knighting [2004] VSCA 217.

[11] So we were told by counsel for the respondent.

[17] Dodoro v Knighting [2004] VSCA 217 at [65], per Eames, J.A., in diss., but not in point of principle.

[18] See, for example, Ninkovic v Pajvancek [1991] VicRp 81; [1991] 2 V.R. 427 at 429; Humphries v Poljak [1992] VicRp 58; [1992] 2 V.R. 129 at 140, per Crockett and Southwell, JJ.

[19] See and compare Bausch v TAC [1998] 4 V.R. 249 at 260-261.

[20] County Court Act 1958, s. 74(3); Mobilio v Balliotis [1998] 3 V.R. 833 at 850.

[21] Warren v Coombes [1979] HCA 9; (1979) 142 C.L.R. 531 at 551; Fox v Percy [2003] HCA 22; (2003) 214 C.L.R. 118 at 126-7[24]-[26] .

[22] cf. Whisprun v Dixon [2003] HCA 48; (2003) 200 A.L.R. 447 at 459[45].

[23] cf. Ninkovic v Pajvancek [1991] VicRp 81; [1991] 2 V.R. 427 at 429, per Marks, J; Turner v Love (1995) 21 M.V.R. 314 at 323, per Ashley and Hedigan, JJ.; Richards v Wylie [2000] VSCA 50; (2000) 1 V.R. 79 at 90[28], per Chernov, J.A.

[24] Humphries v Poljak [1992] VicRp 58; [1992] 2 V.R. 129 at 140.

[25] Mobilio v Balliotis [1998] 3 V.R. 833.

[26] Petkovski v Galletti [1994] VicRp 32; [1994] 1 V.R. 436 at 443-4.

[27] Turner v Love (1995) 21 M.V.R. 314 at 323; Richards v Wylie [2000] VSCA 50; (2000) 1 V.R. 79 at 90[28].

At a glance

Court

Decision date

Before

Source

Judgment (79 paragraphs)

Parties