Lucas v Transport Accident Commission [2003] VSC 97

5. The respondent determined his whole person impairment pursuant to the provisions of the Transport Accident Act as being 32%. The appellant appealed this determination to the Victorian Civil and Administrative Tribunal and on 16 August 2002 the Tribunal set aside the respondent's determination and substituted a decision that the appellant has a whole person impairment of 43% arising from the accident.

8. The effect of s.53 of the Act is that unless the appellant's whole person impairment exceeds 50% his entitlement to benefits in respect of loss of earnings ceased three years after the date of his injuries.

11. The appellant contends that the Tribunal failed to assess his impairment in accordance with law with respect to:

(a) restriction of right hip movement (assessed at 33%); and

(b) restriction of movement of the lumbar spine (assessed as 0%).

17. The Tribunal's conclusions with respect to these matters were expressed as follows:

"41. It has frequently been the subject of observation by members of this Tribunal that orthopaedic movements 'fluctuate proverbially' and that the range of movement model will of necessity produce disparate results due to an applicant's 'good days and bad days' and due to differing measurement techniques. What of course is required of the Tribunal is that it make a finding of permanent impairment taking into account an applicant's typical presentation and excluding from consideration exceptionally good days and exceptionally bad days. Both Mr Lugg and Mr O'Brien are acknowledged experts in their field as is Mr Dooley. But this case is clouded by the absence of any ongoing observations from any treating practitioners and the result is that the Tribunal is presented with three 'snapshots in time' taken years after the accident, and in the case of Messrs Lugg and O'Brien, seven years post-accident. Doing my best with the evidence I accept Mr Lugg's evidence (with the exception of impairment of the left knee) it being the latest in time and representing what I regard as a 'fair middle ground'. In accepting Mr Lugg I also set to one side the finding of Mr O'Brien in respect of the lumbar spine. Indeed there is no credible evidence before me that the applicant injured his back in any way."

21. The appeal before this Court is by leave and is restricted to questions of law. A finding of fact may disclose an error of law if such finding was not open to the Tribunal.[1]

24. Section 117 of the Victorian Civil and Administrative Tribunal Act 1998 requires the Tribunal to give reasons for any final Order made by it. A failure to advert to a relevant matter in a Tribunal's reasons may in certain circumstances lead to the conclusion that it has not had regard to a relevant matter in reaching a conclusion of fact and hence has erred in law. In Harrison v Mansfield[2] Sholl J stated at 404:

"The true principle ... must be, not that everything relevant which a magistrate does not refer to is to be taken to have been overlooked, or on the other hand, that it is to be taken to have been considered, but that, if something which should have been considered is not referred to, and the nature of the decision suggests some error, which may have been due to that matter not having been considered as it should have been, or if the magistrate's observations indicate, on a comparison of what he said with what he did not say, that the matter in question has not been considered as it should have been, the appellate tribunal may properly draw such an inference, and the magistrate will have no cause to complain if it does so."[3]

28. It is nevertheless generally incumbent upon a tribunal such as VCAT which is obliged to give reasons, and exercises a quasi-judicial function in cases where argument and analyses are advanced on either side, to enter into the issues canvassed before it and explain why it prefers one case over the other. As was stated of the obligations of a Court in Flannery & Anor v Halifax Estate Agencies Ltd[4]:

"This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases."[5]

32. In Fletcher Constructions Australia Limited v Lines MacFarlane at Marshall Pty Ltd[6] (2002) VSCA 189 at paragraph 193 to paragraph 157 the Court of Appeal addressed the question of inadequate reasons. At paragraph 157, the Court said:

"The duty to deal with facts or evidence is not absolute. The evidence must be significant in the sense that, unless disposed of, it stands in the way of the Court's conclusions. The Court need not deal in terms with evidence when its importance falls away because of the manner in which the Court disposes of the case. Nevertheless, if evidence is significant, it is not to be peremptorily shunted aside or ignored". (Citation omitted).

36. It is not, however, sufficient to establish an error of law to demonstrate that there is some defect in the logic of the reasons stated by a tribunal. In Australian Broadcasting Tribunal v Bond[7] Mason CJ (with whom on this point Brennan, Toohey and Gaudron JJ agreed) stated:

"Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."

40. An error of law must be a vitiating error before the Court will act upon it and set aside the decision of the Tribunal.

43. As Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[8]:

"Not every consideration that a decision maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision."

47. In Portland Properties v MMBW[9] Smith J stated:

"It would not be enough for the appellant to show that the Tribunal's reasons for its decision are so expressed as to suggest the possibility that the Tribunal proceeded upon a wrong view of the law. This Court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law."[10]

52. It is first contended that the Tribunal's finding as to the right hip was the consequence of a misdirection because it could not properly accept Mr Lugg's evidence as reflecting the "fair middle ground".[11]

55. In my opinion it was open to the Tribunal to accept Mr Lugg's evidence:

(a) The Tribunal had before it observations from three orthopaedic specialists made on different dates;

(b) Oral evidence was given by two only of such specialists, the evidence of one of whom the Tribunal preferred;

(c) There was no oral evidence from any treating practitioners to materially elaborate the context in which the observations of the witnesses should be evaluated. Although an assessment in accordance with the Guides is not in itself an incidence of medical treatment and this fact must be treated with some caution;

(d) The witness whose evidence was preferred was:

(i) the expert witness who had last seen the appellant;

(ii) a witness who assessed the degree of impairment in accordance with the Guides as being between that assessed by Mr Dooley 29% and Mr O'Brien 41%.

"(2) In this part, a reference to the determination of a degree of impairment is a reference to a determination by the commission - (a) made in accordance with - (i) the AMA Guides; or (ii) methods prescribed for the purposes of this section - and in accordance with operational guidelines (if any) as to the use of those Guides or methods issued by the Minister; and (b) if the Minister has approved a training course in the application of those Guides or methods, made after an assessment by a medical practitioner who has successfully completed such a training course."

65. Regulation 6 of the Transport Accident (Impairment) Regulations 1998 provides for the assessment of degrees of impairment. Regulation 1 provides:

"(1) The methods to be used in determining a percentage for the purpose of establishing the degree of impairment of a person of a result of a transport accident are those described in "Guides to the Evaluation of Permanent Impairment", Second Edition, published by the American Medical Association".

69. It was accepted before me that the reports before the Tribunal demonstrate that Mr Dooley assessed the degree of lost flexion of the right hip by measuring against the existing flexion in the other hip. The reports and evidence of the other orthopaedic witnesses do not expressly state that they did not proceed on this basis but appear to reflect a measurement using a notional starting point of no pre-existing restriction. The cross-examination of Mr Lugg at transcript p 91 confirms that he measured the relevant arc against the average range of flexion and extension stated in the guide.

72. The relevant portion of the Guides suggests that the procedure adopted by Mr Dooley was correct.

"Techniques of measurement should be simple, practical and scientifically sound. A large and a small portable goniometer are useful and are the only medical devices necessary. Suggested types of these devices for measuring angles of fixation and ranges of motion of joints are illustrated in the text. Procedures for testing restriction of active motion and ankylosis are described in detail and also are illustrated. The contralateral normal joint should serve as the standard against which the impaired joint is measured. To determine restriction of motion, several measurements are necessary. If the patient cannot assume the prescribed neutral position for each joint, then the degree of deviation from the prescribed neutral position should be recorded, which is the degree of ankylosis of the joint. Next, the full range of active motion, that is, the range throughout which the patient can move the part, should be carried out by the patient and measured by the examiner. Finally, if possible, the examiner should complete the range of motion of the joint (passive motion) and record the results. Additional testing procedures may be desirable in specific cases. However, in most instances the measurement techniques described in this chapter are adequate. The measurements are converted to impairments by referring to the appropriate tables of the chapter. The criteria used to develop the relative impairment ratings in this chapter involve analysis of anatomic and physiological factors underlying the function of the joint, and observation of the following interrelationships: a. observed range of motion compared with 'normal' or 'expected' motion; b. angles of fixation, if there is ankylosis; c. the extremities and spine and the whole person; d. the spinal regions and the whole person." (emphasis added)

76. It follows that it is strongly arguable that both Mr Lugg and Mr O'Brien have proceeded on a basis that exaggerates the appellant's loss of flexion. It also follows that insofar as Mr Lugg may have calculated the relevant degree of impairment other than strictly in accordance with the Guides such error was to the appellant's benefit and not to his prejudice.

79. In my opinion the Tribunal was nevertheless literally correct in stating that the assessment of Mr Lugg was in the middle ground of assessments made by the three specialists. It was also open to it to conclude that it constituted "the fair middle ground" having regard to the evidence as a whole.

82. The use of the word "fair" should not be understood as conveying more than that on the balance of probability the Tribunal preferred the evidence of Mr Lugg. It cannot be read as implying the Tribunal misdirected itself by assuming that the "middle" assessment of three would necessarily be the most satisfactory.

85. Even if I were satisfied there was a demonstrable lack of logic in the Tribunal's reasoning (which I am not) it could not be said that the Tribunal's conclusion was not open to it in the sense explained by Mason CJ in Bond.

88. Further, it is apparent that the difference between the assessment of Mr Lugg and Mr O'Brien as to this aspect is not such as to materially affect the assessment of the appellant's whole person impairment in any event (particularly if Mr O'Brien himself has overestimated the appellant's impairment as his counsel contend). It could not of itself affect his substantive rights to benefits and an error with respect to it would not justify an interference with the decision of the Tribunal unless such error were committed in conjunction with the further error alleged in respect of the lumbar spine.

92. It was agreed before the Tribunal that the impairment resulting from shortening of the appellant's right leg was 15%. It was common ground that if such shortening produced pain in the lumbar spine but no restriction of movement no further impairment was assessable with respect to the lumbar spine under the Guides. At paragraph 39 the Tribunal stated:

"39. Other orthopaedic impairments claimed by the applicant related to the lumbar spine and the left knee. In relation to the lumbar spine, Mr O'Brien found restrictions in all movements and assessed the applicant's impairment of movement in the lumbar spine 12%. Mr Lugg found a good range. He told the Tribunal that he elected not to continue with the use of a goniometer because of the applicant's presentation on the day. He told the Tribunal that the goniometer was useless on the day because such varying results were being presented. Instead he elected to make his observations of range of movement as he was examining other joints and as he checked straight leg raising. His observation was that essentially the applicant had a good range of movement in his spine on the day."

96. As already noted the Tribunal concluded paragraph 41 by stating:

"In accepting Mr Lugg I also set to one side the findings of Mr O'Brien in respect of the lumbar spine. Indeed there is no credible evidence before me that the applicant injured his back in any way."

100. This finding may be regarded as responding to the terms of Mr Lugg's report which concluded in part:

"10. Mr Lucas did spontaneously complain of back pain. I believe this probably more relates to the leg length discrepancy and the fact that he does not wear a shoe raise rather than injuries sustained in the accident, although it is certainly possible that he has suffered a soft tissue injury in the lumbar spine from the motor vehicle accident. I could not detect any restriction of motion in the spine. 11. In my opinion Mr Lucas' level of pain was entirely consistent with the radiological appearance of his hip, and his back pain is consistent with the limp that he suffers from."

104. Page 80 of the transcript records the cross-examination of Mr O'Brien as follows:

"The restrictions that you've recorded are not gross, would that be fair to say, as far as the spine is concerned?---I would certainly say they're not gross. They are the type of restriction that could vary from time to time?---They are subjective, correct. I suppose to give you a cliché of a question and to state the obvious, it would therefore not surprise you that there were findings that are not in accord with your own by other examiners at different times?---In terms of - there's variation in the degrees of restriction of movement? Yes?---No, it wouldn't surprise me. Could I suggest to you, it would be fair to say these are minor restrictions that have been measured?---I think it's fair to say they've been fairly recent. I've given him the least amount of restriction - sorry - of impairment in association with the range of movement - restriction of range of movement I've found. Do you say it's fair to say you've been reasonable?---Yes. I wasn't saying you've been unreasonable. I agree entirely with you that you've been reasonable, Mr O'Brien. But what I'm putting to you is that you would agree yourself that they are minor restrictions in the overall?---they are minor restrictions. Mr Lugg will give evidence this afternoon that he examined the patient some months after yourself during the course of 2001 and he found no observable restriction of movement of the spine. Would you agree that's something that could occur in the variations from day to day with a patient such as this?---I would be very, very surprised that anybody would find that this gentleman had a normal range - let's just say flexion. I think the book says it's 90 degrees to be normal. Now, I would be very surprised if this gentleman could actually get to 90 degrees. Even at 80 degrees you get 1 per cent. So Mr Lugg must have been - found an extremely sort of normal person."

108. Further, evidence was given by Mr O'Brien to the effect that he would be amazed that any man with hip pathology would have a normal spine flexion.

111. As against this Mr Lugg gave evidence at p.89:

"As I alluded to before, the history and examination weren't easy. I started to try and (indistinct) range of movement of the spine but I got widely varying ranges. So then I used goniometers for knee range of movement. I omitted to use - or elected to not use the goniometer because it was useless for the spine and instead made my observations of a range of movement as I (was) examining other joints, such as the hip and the knee. So during straight leg raising there's a flexion component of the spine. During testing the collateral ligaments of the knee, for instance, you get the lateral flexion of the spine. My observation was that he had essentially a normal range of movement of the spine during the tests. But it was not measured with a goniometer."

"You would have seen there that Mr O'Brien has measured - done a formal measurement of the spine and you explained that you were not (indistinct)?---I don't have a problem with this (indistinct) I think on any one day, particularly if one his a patient that has a chondral discrepancy and a vascular necrosis of the hip, the spine can be irritable - you have good and bad days, basically. In fact the assessment that Mr O'Brien has undertaken shows relatively mild restrictions of virtually each of the movements. We don't have marked or gross restriction of the spine. I presume you've acknowledged that it would be possible on your informal examination of him for there to have been some mild restriction which informal examination didn't pick up?---Possibly. My memory was that in fact the range of movements (indistinct) for instance, I remember during the straight leg raising he was virtually (indistinct) but it is possible. Certainly you said the measurements that Mr O'Brien has formerly obtained don't surprise you in the history of the injuries of this young man?---Yes."

119. Before the Tribunal counsel for the appellant characterised Mr O'Brien's evidence "as an accurate reflection of the mild degree of difficulty the appellant has in virtually all the movements of the lumbar spine." (emphasis added)

122. The Tribunal was required to determine whether the appellant has suffered a relatively minor degree of permanent impairment. Such an impairment might be thought to be inherently one on which views might differ and in respect of which observations based on one particular occasion might not be regarded as conclusive by the Tribunal.

125. The grounds of appeal assert that the Tribunal erred in its determination in that:

"(b) it erroneously assumed that, in the absence of evidence that the appellant had injured his back in the transport accident, the appellant could not be found to suffer from an impairment of the lumbar spine as a result of the transport accident;"[12]

129. I do not accept this contention. The Tribunal's decision is to be read as rejecting Mr O'Brien's finding that movement of the appellant's lumbar spine was impaired and accepting Mr Lugg's finding that it was not. It does not reflect a misinterpretation of the expression "injured as a result of a transport accident" in s.35 of the Transport Accident Act 1996. It must be read as directed to the relevant issue before the Tribunal which was whether the appellant had established actual impairment of movement of the lumbar spine.

132. The final sentence of paragraph 41 of the Tribunal's decision does not refer to the question of whether "the applicant injured his back in any way in the transport accident" but simply to the question of whether the applicant injured his back "in any way". This question embraces "injury to his lumbar spine as a result of altered gait resulting from lower limb injuries caused by the transport accident" being the phraseology used on behalf of the appellant in the next ground of appeal. It is in my view quite clear that the Tribunal has considered the evidence as to impairment of movement of the lumbar spine set out in paragraph 39 of its decision. Its conclusion at paragraph 41 responds to this evidence.

135. It was further contended, however, that the Tribunal erred in its determination in that:

"(c) It ignored uncontradicted and inherently plausible evidence that the appellant had suffered injury to his lumbar spine as a consequence of altered gait resulting from lower limb injuries caused by the transport accident."

139. I do not accept this contention. The Tribunal addressed both the evidence before it and the nature of the evidentiary issues. As it stated in another context at paragraph 16 (prior to the elaboration of the issue in paragraph 41):

"The Tribunal must be satisfied on the balance of probabilities that the impairment exists and that it is a permanent impairment."

143. The Tribunal was not so satisfied. It was open to the Tribunal to reject the evidence of Mr O'Brien:

(a) having regard to the fact that Mr O'Brien's observations were made on one occasion nearly seven years after the accident;

(b) the observations were not supported by oral evidence from the appellant's treating medical practitioners. Although not stated by the Tribunal the written reports of such practitioners also fail to support this aspect of the claim. This evidence included a report from Mr Chamberlain, the appellant's treating orthopaedic surgeon of 1 May 2001, recording no observations of limitation of back movement or complaint in relation to lower back pain. It can be seen that in the context of such a report it was open to the Tribunal to regard the absence of direct oral evidence from the appellant's treating doctors supporting the appellant's claim as a relevant factor;

(c) the observations made by Mr O'Brien were the subject of a number of concessions in cross-examination as set out above;

(d) there was evidence directly supporting the Tribunal's conclusion from Mr Lugg who expressly adverted to the effect of the leg length discrepancy; and

(e) it expressed a rational basis for assessing the evidence before it:

"41. It has frequently been the subject of observation by members of this Tribunal that orthopaedic movements 'fluctuate proverbially' and that the range of movement model will of necessity produce disparate results due to an applicant's 'good days and bad days' and due to differing measurement techniques. What of course is required of the Tribunal is that it make a finding of permanent impairment taking into account an applicant's typical presentation and excluding from consideration exceptionally good days and exceptionally bad days."

150. The grounds of appeal further assert as follows:

"3. The Tribunal rejected the only evidence given in relation to assessment of impairment of the appellant's lumbar spine made by an appropriately qualified medical practitioner in accordance with the Guides ... in circumstances where the credit of the medical practitioner was not in question."

154. In essence, it is submitted that Mr O'Brien carried out an assessment in accordance with the Guides by utilising a goniometer, whereas Mr Lugg did not. The Guides set out procedures for measuring flexion and extension, lateral bending and rotation of the thoraco-lumbar region. These procedures each utilise a goniometer and as is apparent Mr O'Brien adopted these procedures in making his assessment.

157. In my view it cannot, however, be concluded that the Tribunal's decision was not open to it.

(a) The Tribunal is not bound to accept the evidence of a particular expert before it. As Nettle J stated in Gillat v Transport Accident Commission[13]:

"The section does not say in terms that the Commission must adopt an assessment prepared by a practitioner who has successfully completed the course. It says that the determination is to be made by the Commission after completion of an assessment by a medical practitioner who has successfully completed the course. In the context in which the section appears, that falls considerably short of a requirement that the Commission make the determination in accordance with the assessment."

In turn the Tribunal was entitled and indeed bound to make its own assessment of the evidence before it.

(b) Mr Lugg's evidence presented an entirely rational reason for not using a goniometer recorded by the Tribunal as follows:

"Mr Lugg found a good range. He told the Tribunal that he elected not to continue with the use of a goniometer because of the applicant's presentation on the day. He told the Tribunal that the goniometer was useless on the day because such varying results were being presented."

(c) The procedures set out in the Guides are to be read subject to the introductory passage relating to techniques which I have quoted above. A fair reading of this passage (including the sentences the subject of the second emphasis) does not suggest that the procedures set out in the Guides are to be followed if the medical practitioner concerned finds them to be "useless", and is satisfied by reason of other observations that there is in fact no or no material impairment of movement.

(c) The Court of Appeal has emphasised that the Guides are to be read as guides. In Lake v TAC[14] Callaway JA stated at 626:

"It must be remembered that the Guides are only guides, though they are to be applied as required by the regulations. The task of assessment is far from being an exercise in an exact science and plainly it is to be assisted by medical opinion - in this instance from experts in neurology. Their efforts will not be helped if the Guides become overlaid with a lawyer's precise interpretation, derived from one or two cases that are regarded by the lawyers as testing and which are probably governed, to a greater or lesser degree, by their own particular facts. In too short a time the Guides would become a legal 'minefield', and be of much less help to doctors and lawyers alike, although for different reasons. The task confronting the doctor was to express an opinion on where the applicant stood in the grading which comprises the fourfold classification. Dr. Sedal considered that the applicant fell into Class 1, and not Class 2, and was not persuaded otherwise by the mother's evidence when that evidence was put to him. The view which he adopted was, I think, open to him and it was open to the Tribunal to adopt that view. That is not to say that the same result must follow in another case; each case will turn on its own facts. But the applicant does not establish error of law by arguing that some other view was also open in this instance and ought to have been preferred as a matter of fact."

(d) The Tribunal's conclusion was directly supported by Mr Lugg's report which I have quoted above and which expressly referred to the effects of leg length discrepancy and the fact of back pain.

174. This is not a case where the Tribunal has failed to identify the evidence of Mr O'Brien or failed to give reasons for rejecting it. Ultimately it has not been persuaded to accept the opinion expressed in that evidence in preference to that of Mr Lugg. Such a conclusion was one of fact open to the Tribunal on the evidence before it.

[1] Roads Corporation v Dacakis [1995] VicRp 70; (1995) 2 VR 508; S v Crimes Compensation Tribunal [1998] 1 VR 83 per Phillips JA at 89-93

[2] [1953] VicLawRp 60; [1953] VLR 399

[3] See further Charnley Glen Pty Ltd v Boroondara City Council & Ors 6 VPR 93 at 104-105 and the cases there cited by Balmford J.

[4] [1999] EWCA Civ 811; [2000] 1 All ER 373

[6] Fletcher Constructions Australia Limited v. Lines MacFarlane & Marshall Pty Ltd [2002] VSCA 185 at [153] - [157]

[7] [1990] HCA 33; (1990) 170 CLR 321

[8] [1986] HCA 40; (1986) 162 CLR 24 at 40

[9] 38 LGRA 6 at p.18

[10] Also see Teston Investments Pty Ltd v Council of the Shire of Whittlesea & Anor 3 PABR 273; Department of Premier v Hulls [1999] VSCA 117; (1999) 3 VR 331 per Phillips JA at 335

[11] This proposition underpins Ground 1(a) and forms the express basis of Ground 1(b) in the Notice of Appeal.

[12] Ground 2(b) in effect particularises Ground 2(a) of the Notice of Appeal.

[13] [2003] VSC 15

[14] (1998) 1 VR 616