IN THE APPEAL DIVISION OF THE SUPREME COURT OF VICTORIA

Appeal - transport accident - "serious injury" - mental disturbance or disorder - Transport Accident Act 1986 s.93 (4) (17)

with Mr T.P. Tobin

Solicitors for the Appellant: Fogarty and Bacchetti

Counsel for the Respondents: Dr P. Buchannan QC

with Mr G.A. Lewis

Solicitors for the Respondents: Phillips Fox

ASHLEY AND HEDIGAN JJ This is an appeal from the order of a County Court judge dismissing the appellants application, brought pursuant to s.93(4)(d) of the Transport Accident Act 1986 (the Act), for leave to bring a proceeding to recover damages in respect of injury resulting from a transport accident. The order was made on 3 December 1993.

2. The appeal is brought under s.74 of the County Court Act 1958. The nature of such an appeal was described in the judgment of Crockett and Southwell JJ in Humphries and Anor. v. Poljak [1992] VicRp 58; (1992) 2 VR 129 at pp 139-140. Speaking of the matters before them, their Honours said this (at p 140):

"In deciding for itself what was the proper order to have been

made this court is, of course, in as good a position as the

primary judge to decide the matter where the material is

confined to affidavits and exhibits thereto. That is the case

in four of the appeals. In the fifth ... the applicant was

cross-examined. In such a circumstance, if the primary judge

has made a finding of fact which he was led to make by reason

of his resolution of an issue of credibility made possible by

the advantage he enjoyed of seeing and hearing a witness, then

the appellate court must accept that finding of fact. As was

said by the majority in Warren v. Coombes [1979] HCA 9; (1979) 142 CLR 531,

at p 552: 'The duty of the appellate court is to decide the case

- the facts as well as the law - for itself. In doing so it must

recognize the advantages enjoyed by the judge who conducted

the trial.' See, too, Taylor v. Johnson [1983] HCA 5; (1983) 151 CLR 422."

That is the approach we should take in considering the present matter. Counsel for neither party contended to the contrary.

3. The task of the appellant below was to satisfy the primary judge that "the injury" resulting from the Transport Accident was "a serious injury": s.93(6). She was required to establish that fact on the balance of probabilities, rather than simply making out a prima facie case, or a good arguable case concerning the matter: Petkovski v. Galletti [1994] VicRp 32; (1994) 1 VR 436 per Brooking J at p 437 and per Southwell and Teague JJ at p 445.

4. Before turning to matters of particularity it is convenient to sketch certain facts. The appellant, Maree Turner, is a married woman born in 1938. Most of her life she has lived in Warrnambool. She left school when aged 14. By the age of 15 she was working in the Fletcher Jones factory at Warrnambool as a machinist. She remained in that employment until 1964, in which year she married. She had two children, born in 1966 and 1970. In late 1971 or early 1972 she went back to work at Fletcher Jones. She has remained in that employment ever since. Prior to sustaining injury the subject of this appeal the appellants interests, her work apart, were principally domestic - in the house and garden; and recreational - with her family and friends.

5. On 16 July 1987 the appellant was the driver of a motor vehicle which was involved in a two car intersectional collision. Her vehicle was struck on the left hand side. It suffered, inferentially, considerable damage. The appellant suffered physical injuries. They were to the cervical spine and the left shoulder. Mild, asymptomatic cervical spinal degeneration had pre-dated the collision. It was significantly affected by the collision; and soft tissue damage also was inflicted upon the cervical spine. In addition, there was injury to the rotator cuff on the left side. Treatment was by way of regular physiotherapy for a period of about twelve months, then physiotherapy "as required"; and by way of medication and use of a supporting cervical collar. The appellant, who is right-handed, was continuing, at the time when her application was heard in November 1993, to complain of symptoms affecting her cervical spine, left shoulder and left arm. We must later consider those complaints. But it may now be noted that Mr. R. P. Gorton of Queen's Counsel, who with Mr. Tobin of counsel appeared for the appellant, did not seek to contend that the consequences of the physical injuries, discretely considered, satisfied the requirements of "serious injury".

6. In consequence of the collision the appellant also suffered psychiatric injury. The first doctor to identify its presence was Dr. Nigel Strauss, who examined the appellant on behalf of the second respondent, Transport Accident Commission (TAC) on 10 May 1990. He reported that:

"This woman has suffered from a moderately severe reactive

depression as a consequence of her car accident in 1987. She

has developed a number of depressive symptoms and she has

also developed some concomitant anxiety."

7. The appellant's general practitioner was apparently contacted by TAC concerning the matter. On 15 June 1990 he prescribed appropriate medication. There was improvement in symptoms. But sometime between 6 July 1990 and 18 January 1991 the appellant's supply of tablets ran out. Medication resumed on the latter of those dates, at a considerably higher dosage than had previously been prescribed. But the appellant did not do well. She was then referred to Dr. Mark Ivers, psychiatrist, first consulting him on 12 March 1991. As at November 1993 she was continuing to attend him. It is only necessary at this stage to note that his ultimate diagnosis was one of "major depressive illness", that he considered the motor vehicle accident to be the cause of such condition and that he related certain exacerbations in the condition to extraneous events.

8. We turn to areas of factual dispute. The material before the learned judge mainly consisted of affidavits and exhibits. The appellant relied upon affidavits made by her husband, her son and herself. To her first affidavit were exhibited a number of medical reports and a detailed pharmaceutical dispensing report covering the period June 1991-May 1993. The respondents relied upon the affidavits of two of the appellant's superiors at her workplace, and a solicitors affidavit exhibiting a further medical report.

9. The affidavits and exhibits apart, two persons gave viva voce evidence below. They were the appellant and Dr. Ivers. The learned judge was thus confronted by the problem of resolving factual issues partly by reference to viva voce evidence tested by cross-examination, and partly by reference to affidavit evidence which, in some significant ways, did not speak with one voice - as to which see the pertinent observations of Crockett and Southwell JJ in Humphries, supra, at p.133 and of Southwell and Teague JJ in Petkovski, supra, at p.445.

10. Given the existence of this difficulty we should immediately note that his Honour was evidently satisfied that the appellant and Dr. Ivers were credible witnesses. Concerning the appellant he said this:

"Mrs. Turner describes her pain and disabilities in her

affidavits sworn on 18th May 1993 and 7th October 1993 and in

her viva voce evidence before me. I thought her an entirely

credible witness. She described persistent significant pain

and disability in her neck and left shoulder which, she said,

substantially limited her capacity to undertake her domestic

responsibilities. Indeed although, out of necessity, she has

continued in her employment, practically without interruption,

the discomfort she experiences so exhausts and distresses her

that she is capable of very little else in her life.";

"The fact that the plaintiff has continued work, almost without

interruption, since this accident is a tribute to her courage

and her character."

"The sincerity of her complaints is not in question. The pain

and disability she continues to suffer cannot, in my view, be

questioned."

As to the appellant's "psychological injuries" his Honour said this:

"The history which she gave, and which I accept, is that

depressive symptoms were first apparent soon after the

accident.";

"The plaintiff, her husband and her son, in their various

affidavits, attest to the manifestations of depression and

unhappiness the plaintiff continues to exhibit. Unfortunately,

there have been several other factors in the applicant's life

which have contributed to her unhappiness. Of these, the most

significant perhaps is the deterioration of her relationship

with her husband. Mr. Lewis, who appeared on behalf of the

respondent, went to same lengths in his cross examination of

the applicant and Dr. Ivers to demonstrate, or attempt to

demonstrate, that the marital relationship was potentially

unstable irrespective of the effects of the accident. My own

view is that the applicant's psychological reaction to her

injuries was the precipitating cause of the breakdown."

11. Consistent with the approach to resolution of factual issues to which we have earlier adverted, in our view those findings - no doubt assisted by his Honour's opportunity to see and hear the appellant - should be accepted.

12. We turn to the evidence of Dr. Ivers. There was a dispute as to the severity of the appellant's psychiatric disorder. As at August 1991 Dr. Strauss had concluded:

"I believe that she will always suffer from some mild and

intermittent anxiety and depression because she appears to have

an ongoing organic problem causing her ongoing pain. It is not

surprising therefore that she will continue to suffer from

some intermittent emotional upset. Her prognosis is fair. She

will need to continue psychiatric treatment for several more

months."

In cross-examination Dr. Ivers said that he generally disagreed with an opinion that the residual problems would not be severe.

13. Again, in November 1991 the appellant was examined by a third psychiatrist, Dr. Kenny. He concluded that she was not then seriously psychiatrically disturbed. Dr. Ivers explained that, as at November 1991, the appellant was relatively well, being on a dosage of 100 mgs of Prothiaden daily.

"Under cross-examination, Dr. Ivers expressed disagreement with

Dr. Strauss' assessment of the severity of the plaintiffs'

condition and noted that the plaintiff was relatively well at

the time she saw Dr. Kenny. I attach greater weight to Dr.

Ivers' opinion than I do so (sic) those expressed by the

psychiatrists who saw her less frequently. Dr. Ivers impressed

me as a witness and I had no real reason to doubt his

objectivity."

15. Notwithstanding that his Honour observed that he was not saying that he found the evidence of Drs. Strauss and Kenny to be unhelpful, it appears to us that in the case of the actual or possible conflicts to which we have referred he preferred the tested evidence of Dr. Ivers. We consider that we should act upon that preference.

16. Areas of factual dispute may now be further examined. Acceptance by the learned judge of the appellant's description of the pain and disability affecting her neck and left shoulder is in our opinion compatible with the description of her medical condition by Messrs. Matheson and Buzzard, surgeons, and by Dr. Awburn, general practitioner. The burden of that description was that the appellant had suffered, as a result of the collision, significant aggravation of cervical spinal degeneration, and significant soft tissue damage to the cervical spine and left shoulder the latter leading to calcification in the rotator cuff. Relevant clinical findings as at 1991 were a degree of neck and shoulder stiffness and wasting of the left upper arm. The injuries were productive of headache, neck, shoulder and left arm pain and disability. As at 1991, when the doctors reported, it was considered likely that the injuries would have permanent symptomatic consequences, with resulting inhibition upon the appellant engaging in domestic and social activities. Also as at 1991 it appeared that her work was and would to an extent continue to aggravate her condition, although it seemed likely that she would be able to continue with her employment. The appellant's account of her situation as at late 1993 was in our opinion consistent with that general picture. It was submitted by Dr. Buchanan of Queen's Counsel, who with Mr. G. Lewis of counsel appeared for the respondents, that the appellant had described herself in evidence as having been "pretty good" in the preceding six months. But such description was scarcely consistent with the description of the appellant's lifestyle that followed, which his Honour plainly accepted.

17. On the question of the extent of the physical injuries the picture which we accept as being established is to an extent at odds with the opinion of Professor Kune, surgeon, expressed in his report following examination on 5 March 1990. To the extent that Professor Kune's opinion differed from the burden of medical opinion, and with the appellant's viva voce evidence which the learned judge accepted, we are persuaded that such opinion should be rejected.

18. We turn next to the question of psychiatric injury. It is convenient to set out the conclusions of the learned primary judge upon this issue as a starting point. Thus:

"The picture is of a genuine woman who had a major depressive

illness which, for some time, was untreated, which may have

worsened had it remained untreated, but which has responded

well to medication. True it is that the applicant will require

continuing psychiatric management and medication - perhaps for

the remainder of her life. But there is no reason to suppose

that her depressive illness cannot be satisfactorily managed.

That is not to say she will be symptom free. obviously, the

illness will rear its head to varying degrees from time to

time.";

"... the applicant has a long term mental disorder, but I am not

satisfied that it is severe within the meaning of the section.

It is not severe because it is being satisfactorily controlled

with medication and there is no reason to suppose that this

will not be the case in the future."

19. Within the second of those passages dwells an issue of principle that was the subject of argument before us. We will mention it later, although it has not been necessary to resolve it.

20. We should immediately say that, having considered all the material, we think it right to describe the appellant's psychiatric injury as a "major depressive illness". That was the opinion of Dr. Ivers, who as at November 1993 had been regularly treating the appellant for some two and a half years. It was consistent with the accounts of the appellants situation given by her, her husband and son. To the extent that Dr. Ivers' categorization of the illness as "major" was at odds with the characterization of the other psychiatrists we think it important that, subsequent to their examinations, the appellant had continued in Dr. Ivers' care for about two years, and that she had, to his knowledge, relapsed when medication was reduced; and moreover, that she had required an overall increase in medication. By November 1993 the appellant was receiving the maximum dose of a particular tricyclic anti-depressant medication that would be prescribed before evaluating the heart and other functions of the patient, and perhaps before seeking a second psychiatric opinion. Her medication had been increased to such a level because of poor control of depressive symptoms. The doctor considered it probable that she would require medication for a "long time". He was, in the circumstances, better placed than the other psychiatrists to categorize the severity of the appellants psychiatric condition. Quite apart from Dr. Ivers' expressed opinion, the facts tend, in our view, to justify the description of the psychiatric illness as "major". By November 1993 the collision was more than six years past. Yet the psychiatric condition which had first manifested itself shortly after the collision remained unresolved, was prone to relapse and was being treated with the highest drug dosage that had ever been prescribed for her. The appellant was continuing regularly to attend Dr. Ivers for review. She was suffering still from physical symptoms. These were likely to persist. Dr. Ivers, opinion - which we accept - was that they played a part in the chronicity of her psychiatric condition. That assists in a conclusion that the illness was likely to persist indefinitely, this requiring continuing drug therapy and psychiatric counselling.

21. To describe the appellants psychiatric condition as "major", by reference to the considerations thus far mentioned, does not necessarily resolve the question whether it satisfied the requirements of "serious injury" set out in s.93(17) of the Act. Before turning to that matter several other factual issues require consideration. First, there is a question of causation - at least so far as the continuing psychiatric condition is concerned. It was contended for the respondents below that the condition was largely or completely referable to a marriage breakdown and/or domestic violence unrelated to the collision and its physical and psychiatric sequelae. That was not Dr. Ivers' opinion, although he accepted that particular exacerbations had been precipitated by extraneous circumstances. He was of opinion that one of the major causes of the marital breakdown, which breakdown effectively dated from 1988, was the pain and depression following upon the collision. That was a conclusion consistent with the evidence of the appellant, her husband and son. On the available evidence we reach the same conclusion, as did the learned judge who has the advantage of seeing and hearing both the appellant and Dr. Ivers.

22. Second, there is an issue as to the extent of beneficial effect of anti-depressant medication. The issue has both past and future aspects. In our opinion, the findings of his Honour to which we have earlier referred considerably over-estimated that beneficial effect. The appellant's evidence was that, despite treatment having improved her symptoms of being short-tempered, irritated, upset and always crying, yet she continued short-tempered and prone to outbursts. She quite frequently took her tablets and went to bed at 5 p.m. She did not go out with friends because she could not bring herself to get dressed. She was short-tempered and difficult with her young grandchildren. It being put to her in cross-examination that when on medication she could cope well, she answered:

"Well, not all the time, but sometimes; I have me ups and

downs."

She said that, for no particular reason, she continued to cry often.

23. A reading of her evidence, both on affidavit and viva voce, suggests that the appellant was not an effective and articulate advocate in her own cause. She understated rather than overstated her continuing disabilities. This accords with the view taken of her by the learned judge.

24. The affidavits made by the appellant's husband and son confirmed the consequences of both the physical and psychiatric injuries. So, for example, her husband referred to the appellant having outbursts of "crying, irritation and agitation", of her becoming "short tempered" and picking on him. He said that when she was put on to medication in 1991 her condition improved; but when dosage was reduced she "would return to her crying temperaments and her behaviour would return to the previous pattern". Speaking as at May 1993 he said that she had "settled down a little bit" as she no longer had bouts of crying over minor situations. Her son referred in his affidavit to his mother having mood swings and crying outbursts, of her being tense and anxious without medication, but "subdued" or "docile" when receiving it. Yet he said that she continued to be more aggressive, with more of a tendency to argue.

25. As against the evidence and the impression given by the appellant, her husband and her son, the respondents relied upon the observations of two superiors at the appellant's workplace. Mr. Russell O'Brien, a supervisor, deposed that the appellant had continued on with her work, apparently coping, after the accident. She had made no complaint of any problems to him. Mrs. Via Turner reported that the appellant had at times complained of pain in her shoulders after undertaking pressing work, but that she was a good worker who appeared to do her work cheerfully. She knew that appellant was attending a psychiatrist and that the appellant's domestic situation was unsatisfactory.

26. None of the appellant's husband, her son, Mr. O'Brien or Mrs. Via Turner were cross-examined. Clear it is that the appellant in fact continued work with Fletcher Jones. In assessing the extent of the physical and psychiatric consequences of her injuries that fact cannot be ignored. But, as to the extent of pain, disability and the symptoms of the psychiatric condition, it seems to us that the appellant, her family and the treating doctors were likely to provide a more reliable guide than persons only seeing the appellant as one of a group of workers in an employment environment.

27. What, then, did Dr. Ivers say in this connection? In his report dated 1 November 1991 he noted that the appellant had, in August, September and October "really been quite well on Prothiaden 150 mg..". He said that "She is now ... feeling reasonably well ...". Then, in his report dated 22 July 1992, he noted that, following resumed medication in April 1992 "she has remained well"; and that, whilst on medication, "she feels well, sleeps well and can function at a reasonable level in her workplace". Understandably the respondents relied upon the use of the word "well"; and it appears to have had an impact upon the learned primary judge. We note, however, the following questions and answers in Dr. Ivers' viva voce evidence:

"And what has the nature of the treatment - sorry, the frequency

and the nature of the treatment been over the last 16 months? ---

In the form of a review session every three weeks, and medication

in the form of a tricyclic anti-depressant known as Prothiaden.

Has there been any change in the level of the prescribed

prescription? --- Well, the doses I have used have varied, but

in recent times the dose of Prothiaden has increased to 25

milligrams in the morning and 200 milligrams at night.

And what has the reason for the increase in the dosage

been? --- Because of poor control of depressive symptoms, I

have had to increase the dose in order to gain better control

of her depressive symptoms.

What has the progress of her symptoms been over the last 16 to

18 months? --- Can I just refer to my notes? It's generally

been reasonable; however, there have been times when there have

been flareups of depressive symptoms, and that has been over the

last 16 months.

What is the extent to which those depressive symptoms affect her

at this time in her day-to-day activities? --- At the moment,

I have achieved reasonable or relatively good control of her

depressive symptoms with the medication. She has certainly had

a change in her personality and the way she has been feeling

since this accident, and really a number of the symptoms of

depression and pain that she suffers tend to overlap; in other

words, she's had a reduced ability of motivation to go out and

socialise, which she used to do a lot before her car accident,

and that is partly due to the loss of motivation which occurs

with depression and partly due to the pain in her neck, which

particularly has worried her.

What is the prognosis in respect of the condition that she now

suffers from? --- Well, in my view she will require (inaudible)

medication for a long time. I think that she will continue to

suffer from this chronic depressive illness for many years to

come.

The current level of medication, is that the level that you

expect it to be in the future, or more or less? --- I would hope

that in the future we can get that dose down. I am hoping we

don't have to increase the dose above 225 milligrams.

Is there any concern as to an increase in that dosage? --- Well,

above that dose there can be problems with cardiac function."

28. The doctor also said that it was quite likely that the appellant would have further exacerbations of her illness in the coming years.

29. In our opinion nothing in Dr. Ivers' reports or evidence should, in context, be taken to mean that, even with the increased level of medication, the appellant had been or was likely to be symptom free, or that an established personality change had been reversed. Rather, by dint of increased medication, the appellant's depression had been kept reasonably controlled - though subject still to flareups. In our view Dr. Ivers offered no encouragement to a conclusion that medication could be reduced in the future. That was simply expressed as a "hope". Another "hope" was that further increased dosage would not be necessary. It left open the prospect that such a step would be necessary, particularly bearing in mind the fact that between 1990 and 1993 the pattern had overall been one of increasing dosage.

30. In the event, it appears to us that starkly to speak, as the learned judge did, of satisfactory management or control of the depressive illness was to give insufficient weight to the appellant's past, continuing and probable future level of persisting symptoms, quite apart from the level of symptoms during periods of exacerbation.

31. We should add this: Dr. Ivers made it clear that there was "overlap" between a number of the symptoms of the depression and pain from which the appellant suffered. Her reduced motivation to get out and socialize, for example, was not simply attributable to neck pain or to depression. The doctor was saying, no doubt, and it appears to us to be likely, that the depression and the physical symptoms fed upon each other. For that reason it would be unrealistic to conclude, because the appellant attributed some inhibition upon her activities to neck pain, that the depressive illness played no causative part in the inhibition.

32. In summation, for reasons stated we consider that the evidence of the appellant, her husband, her son and Dr. Ivers should be accepted in reaching conclusions as to:

* the nature and extent of the mental disturbance or disorder

from which the plaintiff had suffered and continued (when the

matter was before the judge in late 1993) to suffer;

* the likely period of continuance and the extent of the

disturbance or disorder from which it was probable the plaintiff

would suffer in the future;

* the nature and extent of the consequences for the plaintiff

of the disturbance or disorder; and the likely period of

persistence of those consequences.

33. The condition itself was properly characterized as a "major depressive illness". That is not to say that major symptoms were at all times present. It means that the condition was persistent, that it was prone to exacerbation by a variety of factors, and that the transport accident was relevantly a cause of the persistent condition. It further means that the condition required psychotherapy and constant medication, the latter at a level which had generally increased over the period of treatment and which was high at the time when the application was heard. In this case, it meant that persistence of the disturbance of disorder into the foreseeable future was likely, that being attended by a need for continuing psychotherapeutic consultations and for medication at the same high level. It is to say, again, that despite consultations and medication, the plaintiff's social functioning had been and was likely to continue to be very much disordered by reason of symptoms which, probably, were a consequence in part of the condition and in part of medication to control it. The fact that the plaintiff had continued on in her occupation (according to the judge's finding "out of necessity") does not gainsay that last conclusion.

34. The relevant findings must now be applied to the pertinent provisions of the Act. The appellant was injured on 16 July 1987. The Act was then in operation. By Act 32 of 1988 it was considerably amended. The amendments included substitutions for the former s.93(2)(a), (3)(a)(b) and (4)(a)(b). In addition s.46A was inserted and s.47 was reworked. Those particular amendments operated from 24 May 1988. Mr. Gorton submitted that the sections in their unamended form applied to the appellant. Dr. Buchanan did not demur. It is unclear when a determination of impairment relevant to the operation of s.93 was made by TAC, although it communicated its refusal to issue a certificate under s.93(4)(c)(ii) by letter dated 19 November 1991 to the appellant's solicitors. In the somewhat uncertain factual circumstances, and in the absence of argument, we are content to consider the appeal on the footing that the relevant provisions apply in their unamended form. We think, in fact, that no different outcome would ensue were the matter considered in the context of the provisions as amended.

35. The appellant brought application for leave to issue proceedings under s.93(4)(d) because, it must be assumed, TAC had made an impairment assessment, the degree of impairment had been assessed to be less than 30%; and because, as was disclosed by letter, it was not satisfied that she had suffered "serious injury". The Court, by s.93(6), is precluded from a grant of leave "unless it is satisfied that the injury is a serious injury".

36. "Serious injury" is defined, for the purposes of s.93, by s.93(17). The definition may conveniently be set out. Thus:

"93(17). In this section -

'Serious injury' means -

(a) serious long-term impairment or loss of a body function; or

(b) permanent serious disfigurement; or

(c) severe long-term mental or severe long-term behavioural

disturbance or disorder; or

(d) loss of a foetus."

37. Before us Mr. Gorton advanced two submissions. The first, which addressed attention to s.93(17)(a), was that an impaired body function could be identified which would pick up the effects of both the physical and psychiatric injuries sustained by the appellant. The impairment of that function could be serious and long-term. Upon this submission it was said not to matter that the impairment of function, insofar as it resulted from physical injury alone, would not qualify as serious or long-term. Mr. Gorton's second contention was that the psychiatric injury suffered by the appellant met the requirements of s.93(17)(c). It did so even if it was correct to conclude that, by reason of necessary treatment, there were limited (or no) symptoms of the condition.

38. Despite frequent consideration of s.93 by this Court, a considerable number of textual problems remain to be determined. Some of them were raised by each of Mr. Gorton's submissions. In the event, in our opinion this appeal can be resolved within the confines of s.93(17)(c). It thus becomes unnecessary to consider the manner in which a "body function" may permissibly be delineated for the purposes of s.93(17)(a) - see Humphries, supra, at p.138. Nor is it necessary to revisit the question whether a mental disturbance or disorder could, by reason of its consequences in terms of impairment of body function, fall for consideration under s.93(17)(a); or rather, whether it must be kept confined within s.93(17)(c). That issue was passed upon in Humphries at p.140 by Crockett and Southwell JJ, although upon the facts it did not arise - see at pp.142-143; compare the opinion of McGarvie J at p.170.

39. Turning then to the text of s.93(17)(c), it was said by Crockett and Southwell JJ in Humphries at p.138 that:

"... we consider ... that, correctly construed, subs.(17)(c)

means severe long-term mental disturbance (or disorder) or

severe long-term behavioural disturbance (or disorder)."

40. Although, as we have said, the construction of subsection (17)(c) did not squarely arise in Humphries, the passage which we have just cited is in our respectful opinion plainly correct.

41. For present purposes the concept of "behavioural disturbance or disorder" appears not to be relevant. Upon the evidence the appellant's psychiatric illness is either to be described as a mental disturbance or disorder.

42. We have on several occasions referred to the consequences for the appellant of psychiatric injury in the present case. Sub-paragraph (c) of s.93(17) does not in terms refer to the consequences, for an injured person, of injury sustained - contrast sub-paragraph (a), which refers to impairment or loss of a body function: Ninkovic v. Pajvancek [1991] VicRp 81; (1991) 2 VR 427 at p 429, Humphries at (1992) 2 VR p 140. Senior counsel for both the appellant and the respondents submitted, as we understood it, that whilst subparagraph (a) unequivocally requires a consideration of the consequences of injury for an injured person, and that whilst sub-paragraphs (b) and (d) address - at least in part consequences of injury, sub-paragraph (c) addresses only the severity of the disturbance or disorder itself. That is, in our opinion, an improbable meaning to be attributed to the sub- paragraph. It would run very much counter to the thrust of the sub- section generally; see not only sub-paragraph (a), but sub-paragraphs (b) and (d). In respect of (b) and (d), it is the consequences to the plaintiff of the disfigurement or the loss of the foetus respectively that dominate the concept of seriousness. But in the present case it matters not whether attention be paid to the severity of the underlying disturbance or disorder or to its consequences for the plaintiff. For the extent of the condition is in our opinion accurately reflected by its consequences for the plaintiff - consequences to which we have already referred.

43. There is another matter that may now conveniently be addressed. In our opinion, for the purposes of s.93(17)(c), the consequences of psychiatric injury for an injured person should not be confined to symptoms which it directly produces. Those consequences should include the need for treatment, its type and frequency, and any past or future potential side-effects it might have. So, it might be that treatment would in some cases be the principal long-term consequence of psychiatric injury. Thus a patient with a depressive illness might be symptomatically well provided that he or she regularly underwent a course of electroconvulsive therapy, which caused memory loss; or the patient might be free of the symptoms of a depressive illness but subject to symptoms and disabilities which were side effects of medication used to relieve symptoms of the psychiatric condition.

44. It should be borne in mind that determination of "serious injury" for the purposes of s.93(4)(d) is governed by the language of s.93(17). Provided that the boundaries of that framework are not transgressed, the content of "serious injury" in a particular instance is to be decided by a court. Its task is different to that which confronts TAC under ss.46A, 47(7) or 47(7A) of the Act, where a determination of "degree of impairment of a person" must be made. By reason of the definition of "degree" in 3(1) of the Act, and by reason of Regulations made pursuant to the Act, TAC must there apply a text entitled "Guides to the Evaluation of Permanent Impairment" (2nd Ed.), issued by the American medical Association. Even if it was the case that the US text takes no account of need for or effects of treatment in assessing impairment of a person resulting from a mental disorder, that would not oblige a similar approach by a court in the context of deciding, for the purposes of s.93(17)(c), whether a plaintiff had suffered a 'serious injury'.

45. We turn to another aspect of s.93(17)(c). None of the words "severe", "mental", "disturbance" or "disorder" is defined by the Act. Dr. Buchanan informed us that his researches had not identified any provision similar to subparagraph (c) in any no-fault transport accident compensation scheme. He suggested that sub-paragraphs (a) and (b) of subsection (17) rework language used in s.3135(1) of the State of Michigan's no fault automobile insurance law. That may well be the case, but it leaves the resolution of subparagraph (c) unaddressed. That resolution must, it appears, be undertaken without the assistance of a settled construction of a closely comparable provision.

46. The first word requiring consideration is "severe". The adjective "serious" is used in each of sub-paragraphs (a) and (b), but "severe" is twice used in sub-paragraph (c). It should ordinarily be thought that the use of different adjectives in the course of a single definitional provision that is, sub-section (17) - would connote a different legislative intention. So, in his dissenting judgment in Humphries, McGarvie J said this (at p.159):

"There could be little argument that, as was submitted for the

commission, the word 'severe' means 'grievous' or 'extreme'.

That adjective is used in the meaning given in s.93(17) by

para.(c) while paras (a) and (b) use the adjective 'serious'.

That tends to indicate that the notion conveyed by 'serious'

is different from that conveyed by 'severe' without indicating

the extent of the difference."

47. The judgment of the majority in Humphries, however, adopted as the appropriate meaning to be given to the word "serious" a meaning approximating "severe"; though note the observations of the High Court when rejecting the plaintiff's special leave application. In connection with sub-paragraph (a) Crockett and Southwell JJ said this (at p.140):

"To be 'serious' the consequences of the injury must be serious

to the particular applicant. Those consequences will relate to

pecuniary disadvantage and/or pain and suffering. In forming a

judgment as to whether, when regard is had to such consequence,

an injury is to be held to be serious the question to be asked

is: can the injury, when judged by comparison with other cases

in the range of possible impairments or losses, be fairly

described at least as 'very considerable' and certainly more

than 'significant' or 'marked'?"

48. Their Honours rejected the submission that "serious" should be construed to mean "not trifling"; or, as McGarvie J put it, as requiring simply "more than a minor impairment or loss".

49. The Oxford English Dictionary, 2nd Edition, (OED) attaches to the words "serious" and "severe" meanings both of approximation and divergence. However, in light of the jurisprudence which has developed concerning the meaning to be attributed to "serious" in the present context, we think that little would be gained by exploring the possible points of convergence and divergence of meaning. It might be said, we suppose, that the words "very considerable" (used by the majority in Humphries) encompass a certain range of situations; and that "severe" would more comfortably fit within that range at its higher end. On the other hand, if the consequences of psychiatric injury may be considered under sub-paragraph (a) it would be strange, to say the least, if the disorder or disturbance (or its consequences) viewed within sub-paragraph (c) was required to satisfy a different test of magnitude than the impairment consequences of such disorder or disturbance viewed within sub-paragraph (a). It might also be thought inconsistent, despite the alteration in verbiage between sub-paragraphs (a), (b) and (c), if psychiatric injury was required to satisfy some different test of magnitude than the consequences of physical injury. In the end, in our opinion, the adjective "severe" should be accorded a meaning approximating "serious", as the latter has been construed.

50. What then of "mental ... disturbance or disorder"? According to the OED, the terms "mental breakdown, mental deficiency, mental derangement, mental disease and mental disorder" are "general terms indicating temporary or permanent impairments of the mind .. which usually need special care". The term "mental disturbance" is not included in that series. No doubt the noun "disturbance" may offer a shade of meaning not conveyed by the noun "disorder"; it may be that "disorder" is apt to describe a condition where symptoms are, at a particular time, controlled; whereas "disturbance" suggests present symptoms. That was a submission made for the plaintiffs. Or it may be, as the OED suggests, that "disorder" connotes a disturbance of mental functions, but is a weaker term than "disease" and does not imply structural change. We need express no conclusion about these matters. Nothing turns on any possible variation in the present case, having regard to the view we take of the facts. We need only conclude, as we do, that sub-paragraph (c) uses both terms to the general effect described in the OED. A disturbance or disorder requiring repeated consultations and administration of psychotherapeutic drugs over a protracted period and at high dosages would seem readily enough to fit the description of one requiring "special care".

51. Against sub-paragraph (c) as now construed we can determine the critical issue. In our opinion, the facts found by the judge, modified to some extent by conclusions we have reached, satisfy us that the appeal must be allowed. That is so whether regard is had to the underlying mental disturbance or disorder, or to the consequences for the plaintiff of that disturbance or disorder. We have not found it necessary to decide whether a condition or disorder could properly be characterized as severe, if, by reason of medication, symptoms are presently eliminated or very much alleviated. Nor have we found it necessary to decide whether the consequences for an injured person of a mental disturbance or disorder might properly be considered as severe even if, by reason of medication, symptoms were presently non-existent or negligible. We need not repeat the conclusions we have expressed as to the consequences for the plaintiff of the mental disturbance or disorder from which she suffers. Those consequences - namely, the combination of the probability of prolonged future medication at a high level, the persistence of symptoms despite or in part because of treatment, the likelihood of periodic exacerbation of symptoms despite treatment, and the impact of the condition and its treatment on the social fabric of the appellant's life - should be characterized as severe. The disturbance or disorder, accurately reflected by those consequences, should itself be characterized as severe. Further, the evidence which we accept satisfies us that both the condition itself and its consequences for the plaintiff will continue into the indefinite future, if not permanently.

52. Subject to anything that counsel may say, orders should be made in accordance with the following minutes:

1. Appeal allowed with costs.

2. Order of the County Court made 3 December 1993 set aside.

3. In lieu thereof order that:

(a) the plaintiff have leave pursuant to s.93(4)(d) of the

Transport Accident Act 1986 to commence a proceeding in the

County Court claiming damages in respect of injury allegedly

sustained by her as a result of a transport accident occurring

on or about 16 July 1987;

(b) the initiating document in the proceeding referred in

sub-paragraph (a) be filed within 28 days of 4 April 1995;

(c) the defendants pay the plaintiff's costs of the application

on scale D; certify for one refresher.