Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46

"... [T]he proper identification of pain and suffering attributable to impairment which is physical or physiological in origin ... requires that any psychological or psychiatric overlay be stripped aside."[1]

That this is what s 134AB(38)(h) requires cannot be doubted. But it is one of the most difficult tasks confronting judges in an already difficult jurisdiction.

3 Much of the difficulty for the Court lies in the imprecision of clinical assessments. Rarely does a medical opinion attempt to apportion pain and suffering between organic and psychological causes. This suggests that any such apportionment, let alone a precise apportionment, is a difficult clinical exercise in itself. That the clinical assessment of pain is a complex task is well-documented:

"Despite recent advances in the understanding of the neurophysiology of the human pain response, clinical pain remains one of the greatest challenges to the efficacy and ethics of medical practice. Clinicians confronted with patients who claim to suffer from pain must differentiate those who need analgesia from malingerers, drug-seekers, or those in need of some form of therapy. Because deception is logically possible and because pain can often lack a readily apparent cause, many clinicians routinely face doubt about the pain status of a patient."[2]

4 Part of the difficulty also lies in the use - often interchangeably - of imprecise terms such as "chronic pain syndrome", "chronic pain adjustment disorder", "chronic illness behaviour", "learned pain behaviour", "psychological embellishment" and "functional overlay". The present case provides illustrative examples, as follows:

•

"... [the plaintiff] had an exaggerated response to her illness ... and she has developed a chronic pain syndrome accompanied by chronic illness behaviour."[3]

•

"The degree of disability related to the original work-related injury is perceived as extensive, however, this is subjective and not supported by objective evidence."[4]

•

"... [T]here is an inconsistency between the ability for her to bend in the waiting-room compared to her restricted movement of the spine during the formal assessment. I consider there is a non-physical component to her presentation and this is becoming more marked as time progresses."[5]

•

"The psychiatric reaction would be worsening any incapacity she has from the physical point of view."[6]

•

"Certainly, there is sufficient pathology to account for the kind of symptoms she has been describing.

Additionally, however, even by [the plaintiff's] own account, it is clear that this woman is exhibiting quite a substantial degree of psychological embellishment of her problems. There is thus a considerable non-organic element which is compounding the underlying situation."[7]

5 The term "chronic pain syndrome" (or "chronic pain disorder") is frequently used. The only authoritative definition of this term available to the Court is that contained in the fourth edition of the work best known by its abbreviation "DSM", more accurately the "Diagnostic and Statistical Manual of Mental Disorders (Text Revision)", published by the American Psychiatric Association. In DSM, pain disorders are described as a type of "somatoform disorder". The common feature of somatoform disorders is -

"the presence of physical symptoms that suggest a general medical condition (hence, the term somatoform) and are not fully explained by a general medical condition ... or by another mental disorder (eg, Panic Disorder). The symptoms must cause clinically significant distress or impairment in social, occupational or other areas of functioning. ... [T]he physical symptoms are not intentional (ie, under voluntary control)."[8]

"The essential feature of Pain Disorder is pain that is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention. ... The pain causes significant distress or impairment in social, occupational, or other important areas of functioning. ... Psychological factors are judged to play a significant role in the onset, severity, exacerbation, or maintenance of the pain. The pain is not intentionally produced or feigned ... Pain Disorder is not diagnosed if the pain is better accounted for by a Mood, Anxiety or Psychotic Disorder ... ."[9]

7 Functional overlay is a somatoform disorder. Physical symptoms are present but they are not explained by any organic condition. In TAC v Lincoln,[10] for example, the injured person had very substantial restriction of her left arm and shoulder movement, but this could not be explained by any ongoing physical effect of the relevant motor vehicle accident. Underlining the interchangeability of terms, the opinion of the rheumatologist was that the claimant had a "chronic pain syndrome".[11]

8 Because of s 134AB(38)(h), the Court must endeavour to separate the physical from the psychological causes of pain and suffering notwithstanding these difficulties. Of course, it may be that the clinical assessments in a particular case simply do not permit a sufficient "stripping out" of the psychological causes of pain to enable the Court to be satisfied, on the balance of probabilities, that the physically-based pain and suffering consequences satisfy the "serious injury" test. Where pain is referable to both physical and psychological causes, it will obviously assist the court if medical experts on both sides are asked to quantify, so far as possible, the respective contributions of the physical and the psychological to the pain and suffering being experienced by the injured person.

9 For the assistance of judges, the applicable principles may be summarised as follows:

(1) Where an applicant for leave under s 134AB(16)(b) relies on physical injury - "permanent serious impairment or loss of a body function" - the Court in assessing the "pain and suffering consequences" must exclude "the psychological or psychiatric consequences" of the injury: s 134AB(38)(h).

(2) Accordingly, so far as the evidence allows, the Court must identify, and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or physical basis.

(3) The Court must therefore exclude any pain and suffering consequences which result from or are a manifestation of -

• any recognised psychiatric condition (eg depression, adjustment disorder);

• chronic pain syndrome or disorder;

• functional overlay;

• exaggeration of symptoms, whether conscious or unconscious; or

• any other aspect of the injured person's psychological response to the physical injury.

(4) Where the Court is unable to "disentangle" the pain and suffering consequences in this way, this will ordinarily mean that the application must be refused, since the Court cannot be satisfied on the balance of probabilities that the organically-based pain and suffering consequences satisfy the statutory criterion ("more than significant or marked, and ... at least very considerable").

(5) For the assistance of the Court in deciding such matters, any medical witness who is of the opinion that there are both organic and non-organic contributors to the pain and suffering should be asked to quantify, so far as possible, the respective contributions to the pain and suffering of the organic and non-organic causes.

(6) The reasoning in Richards v Wylie[12] has no application to proceedings under s 134AB.

10 The preceding discussion raises at least two questions which warrant consideration by the legislature, as follows. First, in view of the clinical difficulty of "stripping out" the psychological causes from the physical causes of an injured worker's pain, is it practicable for judges to undertake that task? Secondly, given that genuine (non-feigned) pain is just as disabling when it has a psychological cause as when it has a physical cause, does this distinction have any place in a legislative scheme whose object (amongst others) is to provide "just compensation" (s 3(d))?[13]

11 The respondent, Mrs Stamboulakis, migrated to Australia from Greece in 1965. She worked as an assembler in various factories and later as a cleaner. Early

in 2001 Mrs Stamboulakis was employed by Mutual Cleaning & Maintenance Pty Ltd ("Mutual Cleaning") as a casual cleaner for three hours a day, five days a week at Deakin University. At first she did not do any vacuuming, but three months after she began working at Deakin she was required to vacuum four floors of the University using a "back-pack" vacuum cleaner, as well as doing other cleaning. For the first two days she found the work difficult and tiring and by the fourth day she began to experience back pain and went to see her doctor.

12 By 23 May 2001 Mrs Stamboulakis was unable to carry on vacuuming, and stopped working for about three months. After receiving treatment she returned to light duties on reduced hours, but her back pain worsened and she took more time off work. After two other periods at work on light duties she stopped working altogether on 20 January 2003.

13 Mrs Stamboulakis sought leave to bring an action for common law damages[14] against her former employer, Mutual Cleaning, for the pain and suffering she claimed to have suffered as a result of her back injury, on the basis that she had sustained a "serious injury" within the meaning of the Accident Compensation Act 1985 (Vic) ("the Act"). She was given leave by a Judge of the County Court to commence proceedings. Mutual Cleaning now appeals to this Court against that grant of leave.

Serious Injury

14 The definition of serious injury is found in s 134AB(37), read in combination with s 134AB(38) of the Act. Mrs Stamboulakis claimed that she had suffered a "permanent serious impairment or loss of a body function" within sub-paragraph (a) of the definition. In order to recover damages for pain and suffering the Act requires that the impairment or loss of body function be serious "when judged by comparison with other cases in the range of possible impairments or losses of a body function".[15] To obtain leave the respondent had to satisfy the Court that the pain and suffering consequence was, when judged by comparison with other cases, in the range of possible impairments or losses of a body function "fairly described as being more than significant or marked, and as being at least very considerable".[16]

15 Under s 134AB(38)(h) of the Act

"the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of "serious injury" and not otherwise."

Paragraph (c) of the definition of "serious injury" includes

"permanent severe mental or permanent severe behavioural disturbance or disorder."[17]

16 Mrs Stamboulakis did not contend that her injury fell within paragraph (c). Hence she was required to show, on the balance of probabilities, that the impairment was serious within the provisions described above, and that it was attributable to physical causes, rather than to any psychological or psychiatric consequences of her injury.

The reasons for decision

17 In his reasons, his Honour said that the plaintiff had put her case on the basis that she had suffered an aggravation of a pre-existing back condition as a result of being required to use a back pack style vacuum cleaner between 8 May and 23 May 2001. His Honour set out the contents of an affidavit sworn by the respondent, which described the nature of her symptoms and treatment and referred to the fact her employer made no change to her working conditions after she complained about her difficulty in using the vacuum. He also referred to an affidavit sworn by the respondent's husband, which referred to Mrs Stamboulakis's pain, breathlessness and difficulty in performing household tasks.

18 His Honour quoted from a medical report dated 15 February 2006 provided to the defendant's solicitors by Dr Chris Baker, a specialist in occupational medicine, and to a report dated 10 March 2006 from Mrs Stamboulakis's treating doctor, Dr Pliatsos. He made brief reference to notes prepared by Dr Feldman, a general practitioner who had treated her for a time after the accident, in the context of a discussion of Mrs Stamboulakis's credibility, but did not discuss Dr Feldman's opinion that her pain was partly caused by her psychological condition. He made no specific reference to a number of other medical reports put in evidence, but commented as follows.

"It is fair to say, I think, that medical reporters on both sides are of the opinion that there is a significant 'functional' [that is psychological] element in the plaintiff's presentation. Whilst that may be so, it is nevertheless true, in my view, that there is broad agreement that she has a degenerative condition in the lumbar spine and that it is likely to get worse over time. Radiological evidence supports such a diagnosis. There is also broad agreement that her service with the defendant rendered a previously asymptomatic condition symptomatic and that although she could perform light work with restrictions, she could not return to her pre-injury duties without restrictions."

19 His Honour referred to Mrs Stamboulakis's answers in cross-examination to questions about the contents of Dr Feldman's notes and about the contents of surveillance videos and concluded that none of this material compromised her credibility. Although the videos showed Mrs Stamboulakis driving a car, walking, going shopping and going to a pool, she had not claimed that her back injury prevented her from doing these things. His Honour considered the fact that she was videoed carrying shopping bags did not impugn her credibility because she had not been cross-examined on the weight of the bags.

20 In a passage in his judgment in relation to which the appellant claimed specific error his Honour commented -

"Further, as I have already mentioned, the films in evidence were taken over a number of years. There may have been films showing the plaintiff going shopping with her husband or son but they were not put to her or the surveillance officers may have been told to only take film of the plaintiff shopping alone - we simply do not know. In the circumstances of this case, I would be reluctant to come to any conclusion adverse to the plaintiff based on the videos in evidence unless it was clear that all the surveillance instructions, notes and films relevant to this application were in evidence as well."

21 His Honour therefore accepted Mrs Stamboulakis as a credible and reliable witness and accepted that she was injured in the way she described and was suffering from severe pain.

22 Finally, the learned Judge briefly discussed the submission, made by counsel for the respondent, that s 134AB(38)(h) required the physical effects of the injury suffered by Mrs Stamboulakis to be disentangled from its psychological effects. He said

"Based on Barwon Spinners,[18] Mr Myers also made submissions on the 'disentangling' issue. In my opinion, and in the circumstances of this case, the contention is misconceived. This is not a case of the 'tail wagging the dog' so to speak and although he did not put it in those terms, that seems to me to be the effect of the way Mr Myers put the defendant's case on this issue. As Chernov JA pointed out at page 90 in Richards[19] one is more likely to avoid the pitfalls of erroneous reasoning alluded to by his Honour in a paragraph (a) 'serious injury' case if one keeps one's focus firmly on the "dominant cause" of the plaintiff's condition. Although his Honour said that one could take a 'mental or behavioural disturbance' (now prohibited by s 134AB (38)(h) of course) to a physical injury into account (as the other members of the Court likewise agreed), one had to ensure that it did not dominate one's assessment when dealing with a paragraph (a) claim.

In this case, on the evidence I have accepted, the dominant cause of the plaintiff's impairment is the physical injury she sustained on or about 11 May 2001 and it is the physical s_equelae_ of that injury, namely chronic pain in her low back and restriction of movement which have produced the Humphries' pain and suffering consequences of which she complains.

In other words, the non-physical sequelae of the plaintiff's physical injury identified by Mr Myers like anxiety and depression are not responsible for the Humphries[20] consequences suffered by the plaintiff, they are secondary to it. There was no evidence to suggest that if the plaintiff were not suffering from her back injury any of the non-physical sequelae of which she complained or complains would have produced the Humphries consequences. It would be surprising, as President Winneke and the other members of the court pointed out in Richards, if the plaintiff were not suffering from a level of anxiety and depression given the nature of her physical injury and its chronicity but that is not to accept that those sequelae are the cause of her Humphries' consequences.

In my view, and consistent with s 134AB(38)(h) of the Act, all that one is required to do with the non-physical sequelae is ignore them for the purposes of this application. I do not believe that that provision requires the plaintiff to establish by medical or other evidence which of the physical and non-physical sequelae have produced her Humphries' consequences as long as the evidence establishes that the plaintiff is suffering from the required level of Humphries' consequences based on the physical sequelae of her injury."

23 In his conclusion his Honour reiterated that he had not "taken into account any emotional or psychiatric consequence of the plaintiff's physical injury" and that he had been mindful of s 134AB(38)(h).

The nature of the appeal

24 This is an appeal under s 74(1) of the County Court Act 1958. The nature of an appeal from a decision on an application for leave to seek damages for serious injury under the Act was examined by this Court in Barwon Spinners Pty Ltd Podolak.[21] Section 134AD of the Act requires the Court to decide for itself whether the injury is a serious injury, on the evidence before the judge who heard the application and any other evidence which this Court may receive under any other Act or rules of court. Nevertheless the appeal is an appeal in the true sense of the word and not a new hearing.

"Thus, it is for the appellant to persuade the Court that the decision produced below was the wrong one and should be reversed, or at least set aside."[22]

25 Section 134AD does not require the appellant to show that the trial judge made a specific error, though this would, of course, provide a basis for allowing an appeal. If the Court takes the view that the decision is wrong it must allow the appeal. In deciding whether this is the case, the Court must also recognise the advantages of the trial judge, including the advantages of seeing and hearing witnesses, such as the respondent in this case, and the familiarity which the judge below is likely to have had with the range of injuries which are claimed to fall within the definition of serious injury under the Act.[23]

26 At the commencement of the hearing this Court granted the appellant leave to amend the original grounds of appeal. The main ground of appeal was that the learned judge below had erred in finding that the respondent had suffered a permanent serious loss of body function following her physical injury, because he had not adequately disentangled the physical and psychological factors contributing to her impairment. In addition it was said that his Honour had failed to give adequate reasons for finding that the respondent had suffered a "serious injury" under the Act.

27 It was also submitted that his Honour had erred in

•

concluding that the respondent suffered from a "serious injury", against the weight of medical evidence;

•

relying inappropriately on the decision of Richards v Wylie & Anor,[24] and

•

assessing the credit and reliability of Mrs Stamboulakis.

Submissions

28 Counsels' oral submissions dealt mainly with the issue of whether his Honour failed to adequately separate the physical and psychological/psychiatric aspects of Mrs Stamboulakis's injury.

29 Counsel for the appellant, Mr Forrest, submitted that his Honour had not adequately differentiated between the physical and psychological effects of the respondent's injury. Although his Honour had acknowledged in his reasons that s 134AB(38)(h) prevented him from taking account of the psychological or psychiatric consequences of the respondent's physical injury and had said that he had not done so, the decision to grant leave was explicable only on the basis that the "functional overlay" component of the respondent's pain had been taken into account.

30 Mr Forrest also submitted that his Honour could not have reached the conclusion that Mrs Stamboulakis's physical injury was a serious one, without undertaking a careful analysis of medical and psychiatric reports. The medical reports of Dr Baker and Dr Pliatsos referred to both the physical and psychological basis of the respondent's pain. Although his Honour had referred to these reports in his judgment he had not explained how he distinguished between the physical and psychological effects of the respondent's injury. Nor did his Honour examine material in other reports which suggested that much of the plaintiff's pain was attributable to psychological factors. Evidence supporting this conclusion included Dr Feldman's medical notes, covering the period shortly after Mrs Stamboulakis's injury, a report of Dr Brzozek, to whom Mrs Stamboulakis was referred for treatment in 2002 by Dr Feldman, a report prepared by Ms Papamarkou to whom the respondent was referred for psychological counselling, and a report of Dr Pieperoglou, a psychiatrist to whom she was also referred for assessment, prognosis and further treatment.

31 Further, his Honour had not referred to Associate Professor Mendelson's psychiatric report of 7 October 2003, which said that Mrs Stamboulakis's pain complaints could be described as "learned pain behaviour".[25] These reports indicated that the respondent's chronic pain and restriction of movement were attributable, at least in part, to her psychological reaction to her injury and the pressure imposed upon her to return to her cleaning work, rather than to the physical effects of the degenerative changes in her lower back, which were aggravated by the injury.

32 Mr Forrest submitted that these references to the psychological basis of the respondent's symptoms required his Honour to explain his conclusion that the seriousness of her pain and suffering was attributable to organic, rather than psychological factors. It was also submitted that his Honour's statement that the "dominant cause of the plaintiff's impairment is the physical injury" showed that his Honour had incorrectly followed the approach in Richards v Wylie, despite his recognition that 134AB(38)(h) now prevented "mental or behavioural disturbance" consequent on the physical injury from being taken into account.

33 Counsel for the respondent, Mr Richards, submitted that his Honour had adequately disentangled the physical and psychological/psychiatric effects of the respondent's injury. In his reasons his Honour had recognised that s 134AB(38)(h) required the psychological or psychiatric consequences of the injury to be disregarded. He had specifically referred to the fact that there was a significant "functional" element to the plaintiff's pain, but had properly relied on material in the medical reports which indicated that she had a degenerative condition of the spine which had become symptomatic as the result of her work injury and was likely to worsen over time. His Honour had specifically said that Richards v Wylie had been negated by s 134AB(38)(h).

34 In Mr Richards' submission, his Honour's reasoning that

"the plaintiff is suffering from chronic pain and limitation of movement in her lumbar spine. She cannot now perform a number of normal domestic and other activities she engaged in before her injury. And she is unable to work and earn income as she did before her injury."

showed that he had dealt only with the physical effects of the injury and had not considered psychological factors which may have been the secondary effects of her pain.

35 Further, Mr Richards submitted that his Honour's conclusion was supported by the medical evidence. Dr Pliatsos's report of 10 March 2006, from which his Honour quoted, had said that the respondent was "suffering terribly with severe lower back pain radiating into her R thigh/leg, as well as severe anxiety and depression since her work injury in May 2001". Dr Pliatsos had clearly differentiated between the physical effects of the injury on the one hand and the psychiatric effects of anxiety and depression on the other, and his Honour had explicitly taken this distinction into account in his judgment. Further, Associate Professor Mendelson had said that the respondent was not suffering from "any specific diagnosable mental disorder".

Necessity to "disentangle" the physical and psychological consequences of the injury

36 In Pausak v Barwon Health[26] the appellant appealed against a refusal of leave to bring common law proceedings against her employer, on the basis that she had suffered a serious back injury. As in this case, expert medical reports said that the severe and chronic pain experienced by the plaintiff following her back injury were partly attributable to psychological factors (described in the reports as "chronic pain syndrome" or "functional overlay"). The trial judge had carefully analysed all the medico-legal reports, but had not differentiated between the organic factors contributing to the appellant's pain and the effects of functional overlay.

37 The appeal against the trial judge's refusal to grant leave was dismissed by this Court, which held that the medical evidence could not have satisfied the learned trial judge that the pain and suffering consequences of the injury were serious, because it did not enable her Honour to disentangle the impairment consequent on the organic injury and any consequent functional overlay. In reasons delivered for the Court,[27] Phillips JA said

"The judge does not appear to have made any attempt to separate the organic from the psychiatric or psychological in origin, and no doubt that was because the evidence did not really permit it. Nor did plaintiff's counsel make any such attempt on appeal. Yet it is then very difficult indeed to see how the judge could have been satisfied that a given consequence, and in particular as to pain and suffering, answered the necessary threshold test in subs (38)(c).

Of course it may be, as to pain and suffering in particular, that her Honour, wanting any basis in the evidence for separating out the organically based impairment from the other, was content to proceed without differentiation because even on that footing her Honour considered that the plaintiff failed. If so, we agree. But we agree also with Mr Gorton that wanting the proper identification of pain and suffering attributable to impairment which is physical, or physiological in origin, the plaintiff cannot have established pain and suffering that answers the statutory description. To do so requires that any psychological or psychiatric overlay be stripped aside."[28]

38 In this case his Honour's reasons for the grant of leave were based mainly on the respondent's account of her pain and on extracts from two of the expert reports put in evidence--the reports of Dr Baker and Dr Pliatsos. Dr Pliatsos's report of 1 February 2004 said that her MRI scan showed she had "severe degenerative facet joint arthropathy and spondylolisthesis at L5/S1 and moderately severe arthropathy at L4/L5" and that she was suffering from "chronic pain syndrome".[29] Dr Baker's report of 2 January 2003 said that "There was no obvious evidence of abnormal illness behaviour or exaggeration. She does have well-established degenerative changes, which she stated were asymptomatic prior to the injury." He was of the view that she was capable of returning to light work. In his report of 15 February 2006 he confirmed his former comments about the physical effects of the injury but said that "I consider she is suffering with depression and this is impacting on her presentation."

39 His Honour found that Mrs Stamboulakis was a credible witness, a conclusion which was challenged by the appellant. Even if the respondent's credibility is accepted, the medical evidence relied upon by his Honour suggested that the respondent's level of pain may have been partly attributable to her psychological reaction to the injury. Other medical reports which were not discussed in detail by His Honour expressed a similar view. In his reasons the learned judge did not explain how he had differentiated between the organic and psychological factors which contributed to the respondent's pain, although he acknowledged that "medical reporters on both sides are of the opinion that there is a significant functional element in the plaintiff's presentation".

40 Despite his reference to Richards v Wylie, the learned trial judge acknowledged that he was required to disregard the psychological/psychiatric causes of the injury. It is however difficult to understand how his Honour could have concluded that "the plaintiff is suffering from the required level of Humphries consequences based on the physical sequelae of her injury" while at the same time regarding it as unnecessary to "establish by medical or other evidence which of the physical and non-physical sequelae have produced her Humphries consequences".

41 In the second reading speech introducing s 134AB, the MP explained the process to be engaged in by the Court in the following terms:

"The process undertaken by the courts will be to determine the consequence of a particular impairment to the worker in order to determine whether that consequence is serious to the worker. The test to be applied is subjective in the sense that it is the effect of the injury which must be considered, but the determination must be objectively made by reference to the consequences judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements or mental or behavioural disturbances or disorders. The two categories of consequences, pain and suffering and loss of earning capacity, must be considered separately in deciding whether an injury is serious."[30]

42 In discussing the relevance of psychological factors in determining if an injury was "serious", the second reading speech said:

"In terms of what constitutes a mental or behavioural disturbance or disorder, the government considers that what is known as a functional overlay should never be sufficient to satisfy the serious injury test..."

"...The psychological or psychiatric consequences of a physical injury and a physical injury are not to be combined. The former fall under paragraph (c) and the latter under paragraph (a) of the definition. In Humphries v Poljak, the court said it would be anomalous to regard the consequences of mental disturbance or disorder to fall under paragraph (a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of paragraph (c). The government considers this distinction to be proper and should be maintained."[31]

43 This provision requires a judge considering an application for leave to commence common law proceedings in respect of a serious injury to separate out the physical and psychological/psychiatric factors which give rise to the plaintiff's loss of earning capacity or pain and suffering and to exclude the psychological/ psychiatric consequences of the injury. Except in cases where the effects of the injury are manifestly due to physical factors (for example paralysis caused by the severing of a plaintiff's spinal cord) or due solely to psychological factors (in which case the definition in (a) cannot be satisfied) it will be necessary for the trial judge to undertake a careful comparison and analysis of the medical reports put in evidence, in order to determine whether the physical consequences of the injury are "serious" within the definition. His Honour's reasons do not show that he engaged in such a reasoning process.

44 There are difficulties in disentangling the physical and psychological effects of an injury in cases where the plaintiff seeks leave to commence proceedings to recover damages for pain and suffering. In the course of argument Mr Richards submitted that as long as there was some physical basis for the pain[32] it was not possible to assess whether it was "serious" without taking account of the injured person's subjective feeling of pain. His contention was that s 134AB(38)(h) required only pathological states such as anxiety and depression, to be disregarded. Having found that the respondent was a credible and honest witness, his Honour was therefore entitled to rely mainly on the respondent's account of the severity of her pain. This Court commented on a similar submission in Barwon Spinners Pty Ltd v Podolak as follows

"Mr Maxwell submitted that ultimately all pain and suffering lay in the mind, but that argument must be rejected by reason of sub-s (38)(h)."[33]

45 While a plaintiff's evidence about the level of pain suffered is relevant in considering whether the injury is serious, to the extent that the severity of the pain is caused by "functional overlay" or "chronic pain syndrome", the Act requires it to be disregarded.

46 There will often be difficulties in differentiating between the pain and suffering consequences of a physical injury and "functional overlay". This Court has addressed the question of what constitutes "functional overlay", commenting that

"In psychiatric parlance a 'functional overlay' is defined as "an emotional aspect of an organic disease". It may appear as 'an over-reaction to an illness, and is characterised by symptoms that continue long after clinical signs of the disease have ended'."[34]

47 It is likely that medical experts will often be unable to define the precise contribution which organic and other factors make to the plaintiff's pain and suffering. Despite this difficulty, that process is required by s 134AB(38)(h).[35] In my opinion his Honour's analysis does not indicate that he "stripped aside" elements of functional overlay in order to consider whether the pain and suffering was, when judged in comparison with other cases in the possible range of impairments, fairly described as more than significant or marked and as at least very considerable. It follows that this appeal must therefore be allowed.

Adequacy of reasons

48 Counsel for the respondent also submitted that his Honour had failed to provide adequate reasons in support of his decision. There is an inter-relationship between this ground of appeal and the main ground of appeal relating to his Honour's failure to disentangle the physical and psychological effects of the respondent's injury.

49 Section 134AE of the Act requires that in deciding an application under s 134AB(16)(b), the Court will give reasons that "shall not be summary reasons but shall be detailed reasons which are as extensive and complete as the court would give on the trial of an action".

50 In Spence v Gomez,[36] a case under the Transport Accident Act, this Court considered the adequacy of reasons given by a trial judge who had concluded that the injury suffered by a plaintiff was caused by her transport accident. Nettle JA referred to the decision of McColl JA in Ainger v Coffs Harbour City Council[37] and said

"Thus, as her Honour put it, while a primary judge is not obliged to spell out every detail of his or her process of reasoning, the judge is obliged to expose his or her reasons for resolving a point critical to the contest between the parties and in such a way as to enable the parties to identify the basis of the judge's decision and the extent to which their arguments have been understood and accepted; in other words, to 'enter into' the issues canvassed and explain why one case is preferred over another.

The application of those principles to the field of accident compensation is undoubted. As this Court has said before in appeals of this kind, when a judge decides an application under s 93(4)(d) of the Transport Accident Act 1986, or under another similar legislative provision, the judge is under a duty to provide reasons for his or her decision, and the reasons must be comprehensible. While the extent of the reasons needed in a given case will depend upon the circumstances of the case, in a matter of this kind it is necessary for a judge to 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."[38] (citations omitted)

51 Although my conclusion on the "disentangling" makes it unnecessary to determine this ground of appeal, in my opinion, it was insufficient for his Honour to simply refer to the opinions of "medical reporters on both sides". The obligation to give reasons required his Honour to refer to the evidence which suggested that the respondent's pain was attributable to functional overlay and to explain why he took the view that her chronic pain and limitation of movement arose from her physical injury. As Nettle JA said in Spence v Gomez[39]

"The obligation to give reasons necessitates a rational and analytical explanation of the basis for preferring one witness's opinion to another."

52 In Spence v Gomez there was a dispute between expert witnesses which involved "something in the nature of an intellectual exchange with reasons and analysis advanced on either side".[40] The trial judge's obligation to give a rational explanation of the basis for preferring a particular view seems to me to be even stronger here, where most of the expert reports agreed that there was a psychological component to the respondent's pain, but disagreed about the extent to which it arose from physical causes.

Other grounds of appeal

53 Since I would allow the appeal for the reasons given above, it is unnecessary to discuss the grounds of appeal relating to his Honour's findings on the respondent's credibility and reliability. I note, however, that the basis for his Honour's comment that there may have been films "showing the plaintiff going shopping with her husband or son" is not clear. The private enquiry agent who conducted surveillance swore an affidavit as to dates on which that surveillance was conducted. The annexures to that affidavit contained copies of two activity reports based on his observations and accompanying surveillance videos.

54 His comment suggesting that there may have been other films which were not led in evidence may have been based on the fact that the private enquiry agent's affidavit referred to dates on which the respondent's activities were videoed, but his annexed activity reports included additional dates, in which observations are described for which no video footage was provided. Given the terms of the affidavit, the inference from the affidavit is that no videos were taken on some of the dates on which her activities were observed.

55 Even if the judge drew the incorrect conclusion that there may have been other films which were not put in evidence, this was not his main reason for finding that the videos in evidence did not reflect on the respondent's credibility. In my view it was open to his Honour to conclude that the videos were of little assistance in determining whether the respondent evidence about her pain was credible. As his Honour observed, the videos showed the respondent carrying plastic bags of shopping, but she was not cross-examined as to whether the shopping bags were light or heavy. His remarks about the possible existence of other videos was a trivial matter which would not, of itself, have been a sufficient basis for allowing the appeal.

Re-hearing

56 The question now arises as to whether this Court should reach a decision about the seriousness of the respondent's injury or should, instead remit the matter to the County Court to be re-heard.

57 Section 134AD of the Act requires the Court to "decide for itself" whether the

injury in question was a serious injury. Because of the cost and inconvenience which a new trial will impose on a successful party,[41] this Court will only order a retrial if it cannot justly determine the matter on the materials before it.

58 This Court is able to undertake an analysis and comparison of the medical reports. However the decision whether the respondent's injury was serious depends in large part upon an assessment of the credibility of her evidence about the symptoms she continues to experience as a result of her injury. If the court determining this matter finds that the respondent's evidence about the severity of her pain is truthful, it will then have to assess the extent to which her pain is the product of functional overlay. The importance of the respondent's evidence to the outcome of the application is such that I consider it appropriate to remit this matter to the County Court for a rehearing.

59 I have had the benefit of reading the judgment of Neave JA in draft. I adopt her Honour's analysis of the facts and the issues in the appeal. I agree with her Honour that the trial judge's reasons fail to reveal any analysis of the evidence before him upon which it can be concluded that he excluded from his assessment of the impairment of the respondent, functional symptoms secondary to any physical injuries suffered by her. Furthermore as stated by her Honour, the trial judge was under an obligation to give detailed reasons as to why it was that he formed the view that the pain and limitation of movement suffered by the respondent arose from her physical injury. He did not do this.

60 The trial judge had tendered before him a considerable body of medical evidence. The respondent had been examined by orthopaedic surgeon Mr David Chamberlain in November 2001, by Professor George Mendelson on two occasions in 2003, and by a specialist in occupational medicine, Dr Chris Baker in 2002, 2003

and 2006. In addition, Dr Baker had provided a report in January 2004 which was before his Honour. Furthermore, reports from doctors who had treated the respondent and from others who had provided reports to her solicitors were before his Honour. They included two reports from her treating general practitioner Dr Pliatsos; a report from orthopaedic surgeon Mr David Harp; and from a muscular-skeletal physician, Dr Brzozek; two reports from psychiatrist Dr Michael Piperoglou; a report from psychiatrist Dr Paul Korman; a report from vascular surgeon Mr Flanc; and a further report from orthopaedic specialist Mr Hugh Weaver. In addition, his Honour had before him a number of reports from acupuncturists, chiropractors and psychologists. In the course of his judgment, and having recited over a number of previous pages the relevant legislation and repeated many paragraphs of affidavits sworn on behalf of the respondent, the judge repeated two paragraphs from one report of Dr Chris Baker, the occupational medicine specialist, and repeated several paragraphs appearing in one report of the respondent's general practitioner, Dr Pliatsos. No reference at all was made to any other medical report before him, and in particular no mention was made of the opinions of any of the specialist psychiatrists or physicians or surgeons who had examined the respondent and reported in relation thereto. His Honour summarised the large quantity of medical evidence before him in the following terms. "In relation to the medical evidence, there was a substantial degree of unanimity from both sides' treating and medico/legal reporters." He said further, "It is fair to say, I think that medical reporters on both sides are of the opinion that there is a significant functional element in the plaintiff's presentation. Whilst that may be so, it is nevertheless true, in my view, that there is broad agreement that she has a degenerative condition of the lumbar spine and that it is likely to get worse over time. Radiological evidence supports such a diagnosis. There was also broad agreement that her service with the defendant rendered a previous asymptomatic condition symptomatic and that although she could perform light work with restrictions, she could not return to her pre-injury duties without restrictions."

61 Whilst, as his Honour observed, it was undoubtedly correct that the medical reports produced before him, established a firm body of opinion that there was a significant "functional" element in the plaintiff's presentation, it was necessary for his Honour to disentangle those functional elements from any physical impairment suffered by the respondent and to give reasons why he concluded that such physical impairment as there was, was serious, within the meaning of s 134AB(37) and ss (38) of the Accident Compensation Act 1985 (Vic). Likewise to state that there was "broad agreement" amongst the various medical reporters as to the respondent's incapacity was not sufficient in the circumstances of this case. For instance, the opinion of the respondent's treating musculo-skeletal physician, Dr Brzozek as at 16 April 2003 was that: " The stated cause being a few days of vacuuming with a vacuum pack is consistent with a minor aggravation of a pre-existing degenerate back condition and may have contributed to the development of a radicular type lower limb pain syndrome but is not consistent with the ongoing chronic nature of her complaint. Therefore I consider that the worker's employment was a minor contributing factor to the worker's original condition, but I do not consider that her ongoing work in light duties contributes to the ongoing nature of her condition........... The degree of disability related to her original work related injury is perceived as extensive, however this is subjective and is not supported by objective evidence." Presumably the trial judge rejected this and other similar evidence, but the basis of his doing so is unclear. It is simply not possible upon a reading of the judgment and having regard to all of the evidence adduced at the hearing, to determine why it was that his Honour was satisfied that the respondent had established that the organically based impairment was separated from the functional aspects of her presentation.

62 It follows that I am satisfied that Ground 2.1 of the appellant's notice of appeal which in summary makes complaint that his Honour failed to disentangle the physical consequences of the respondent's injury from the functional and/or psychological consequences of the injury is made out. Furthermore, Ground 3.1 which in essence is to the effect that the learned trial judge failed to give adequate reasons for the decision that the respondent had satisfied him that she had suffered a "serious injury" is also made out. It follows that it is unnecessary to consider further the grounds of appeal relating to the respondent's credibility and reliability.

63 I agree with Neave JA that this Court cannot determine justly the question of whether or not the injury in question was a serious injury. Regrettable though it is, it appears to me that the only appropriate course is to remit the matter to the County Court for hearing. It is apparent that the decision as to whether the plaintiff's injury is serious, depends substantially upon an assessment of the credibility of her evidence about the symptoms she continues to experience as a result of her injury. Once that issue is determined, the Court will be required to disentangle the evidence which relates to her physical injury and the evidence which relates to the issue of functional overlay for the purposes of complying with the requirements of s.134AB(38)(h) of the Act.

[1] [2005] VSCA 33 at [117] per Ormiston, Chernov and Phillips JJA.

[2] Ruth J Cronje and Owen D Williamson, "Is Pain Ever Normal?" (2006) 22 Clinical Journal of Pain 692.

[3] Dr R Brzozek.

[4] Ibid.

[5] Dr C Baker.

[6] Dr M Piperoglou.

[7] Mr H Weaver.

[8] At 485.

[9] At 498 (emphasis added).

[10] [2003] VSCA 67; (2003) 6 VR 199.

[11] At [7].

[12] [2000] VSCA 50; (2000) 1 VR 79 at [16], [17], [24], [28].

[13] cf Lincoln at 204 [11], setting out the views expressed by the trial judge in that case.

[14] As required by Accident Compensation Act 1985 s 134AB(16)(b).

[15] Section 134AB(38)(b) of the Act.

[16] Section 134AB(38)(c) of the Act.

[17] Section 134AB(37) of the Act.

[18] Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33.

[19] Richards v Wylie [2000] VSCA 50; (2000) 1 VR 79.

[20] Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129.

[21] [2005] VSCA 33.

[22] Ibid at [45]

[23] Ibid at [40] -[41].

[24] [2000] VSCA 50; (2000) 1 VR 79.

[25] He expressed a similar view in his Report of 17 April 2003.

[26] This was one of the four cases considered by the Court of Appeal at the same time as Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33.

[27] Ormiston, Chernov and Phillips JJA.

[28] Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33 at [116] - [117].

[29] Dr Pliatsos's report of 10 March 2006 said that she had chronic pain which had caused a significant psychiatric reaction associated with feelings of fear, anxiety, loss of control, helplessness, depression and a general loss of confidence, identity and self esteem.

[30] Gould, M, Second Reading Speech, Accident Compensation (Common Law Benefits) Bill, 23 May 2000, pp 1168--1169.

[31] Gould, M, Second Reading Speech, Accident Compensation (Common Law Benefits) Bill, 23 May 2000, pp 1170-1171.

[32] For an example of a case where there were no on-going physical effects of the accident and the pain was said to be solely attributable to functional overlay see Transport Accident Commission v Lincoln [2003] VSCA 67; (2003) 6 VR 199.

[33] Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33 at 117 in determining the matter of Pausak v Barwon Health, heard at the same time.

[34] TAC v Lincoln [2003] VSCA 67; (2003) 6 VR 199 at 207-208.

[35] Refer to TAC v Lincoln at 208-209, discussing the purpose of excluding "functional overlay" as being to "exclude from any assessment of impairment to the person functional symptoms secondary to an injury, whether genuine or not."

[36] [2006] VSCA 48; see also Dressing v Porter & Transport Accident Commission [2006] VSCA 215, at [26], per Ashley, JA.

[37] [2005] NSWCA 424 at [47].

[38] Spence v Gomez [2006] VSCA 48 at [65] - [66]; see also Dressing v Porter & Transport Accident Commission [2006] VSCA 215.

[39] Spence v Gomez [2006] VSCA 48 at [73].

[40] Ibid.

[41] Tzouvelis v Victorian Railways Commissioners [1968] VicRp 13; [1968] VR 112 at 129.