1 The applicant, Mr Noonan, seeks an extension of time pursuant to the rules of court in which to apply for leave to appeal orders of the County Court dismissing an application for leave to bring proceedings for common law damages for personal injuries against the State of Victoria under s 135A(4)(b) of the Accident Compensation Act 1985.

2 The respondent does not oppose the application for an extension of time to seek leave to appeal and I am satisfied that that concession is properly made.

3 The respondent nevertheless opposes the substantive application for leave to appeal on the basis that it is not reasonably arguable.

4 The applicant worked as a police officer between 1981 and 1990. It is common ground that as a result of this employment he has since suffered from post-traumatic stress syndrome ('PTSD'). What is in issue between the parties is whether he has suffered a serious injury within the meaning of s 135A(19) of the Act, being relevantly:

(c) severe long-term mental or severe long-term behavioural disturbance or disorder;

5 On 28 June 2012 the applicant lodged claims in the County Court:

(a) seeking leave pursuant to s 135A(4)(b) of the Act to issue common law proceedings for the recovery of damages in respect of personal injury against the State; and

(b) seeking a declaration pursuant to s 135AC(b) that this application was made before the expiration of three years after the date the incapacity became known enabling the application to made despite the lapse of time.

6 The limitations issue was resolved by consent but his Honour Judge McInerney determined that the applicant had not satisfied the statutory requirement that the injury in issue was a 'serious injury' in the necessary sense.

7 In particular his Honour was not satisfied the applicant had suffered a 'severe long-term mental or severe long-term behavioural disturbance or disorder'. Thus whilst his Honour accepted unreservedly that as a result of the applicant's experiences in the police force he had suffered PTSD, his Honour was not satisfied that the long-term consequences of such condition were such as to satisfy the statutory test. Whilst 'considerable' and even 'substantial', he was not satisfied that they were 'severe'.

8 As his Honour noted the word 'severe' which is utilised in s 135A(19)(c) with respect to mental disturbance or disorder is a stronger word than 'serious' as utilised in the preceding definitions of 'serious injury'.[1] Because 'severe' is a stronger word than 'serious' the consequences of the relevant injury must be relatively more significant under part (c) of the definition than under part (a) or (b).[2]

9 His Honour had regard to the overall relevant impact of the disorder in issue upon the applicant and referred to the observations of Ashley JA in Dwyer v Calco Timbers Pty Ltd (No 2):[3]

Finally, I agree with the submission for the respondent that in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.

10 His Honour also referred to a series of authorities identifying the potential significance of a continuing capacity to work in respect of the issue which fell to be determined by him.[4]

11 There was no error of principle in his Honour's approach.

12 The proposed grounds of appeal are relatively discursive:

1. The learned trial judge erred in determining the Appellant had not sustained a serious injury within the meaning of section 135A(19) paragraph (c) of the Accident Compensation Act 1985 (as amended) ('the Act').
2. The learned trial judge's findings of facts as to the nature and extent of the Appellant's injury and consequences thereof was against the weight of the evidence and were not open to him having regard to:

(a) the nature and extent of the medical evidence;

(b) the evidence concerning the severity and extent of the consequences arising from the injury.

1. The learned trial judge either misunderstood the evidence or failed to correctly apply the evidence to relevant legal principles or was the result of an erroneous reasoning process:

(a) the reference at paragraphs 31 through to 41 to the Appellant's work history. In making reference to same the learned judge failed to take into account, or give any, or any sufficient weight, to the Appellant's evidence in paragraph 12 of his Affidavit sworn 31 May 2012 [Exhibit B1] in which he gave a reason for not being able to hold a job for more than 3 years since leaving the Respondent's employment and his evidence at Transcript 47 lines 27 to 29 and Transcript 106 lines 19 to 31 and Transcript 107 lines 1 to 3 which evidence was not challenged.

(b) the reference at paragraph 37 and 51 to the Appellant's Workcover claim in 2006. In making reference to same the learned judge failed to take into account, or give any, or any sufficient weight, to the Appellant's evidence in paragraph 3 of his Affidavit sworn 5 July 2013 [Exhibit B2] in which he gave a reason for not telling doctors about his experiences with the Respondent and his evidence at Transcript 75 lines 13 to 23 which evidence was not challenged.

(c) the reference at paragraph 40 to the Appellant's earnings. In making reference to same the learned judge failed to take into account, or give any, or any sufficient weight, to the evidence of Dr Aitkin [sic] at page 2 of his report dated 15 July 2013 [Exhibit D4] in which Dr Aitkin [sic] opined that the Appellant's prognosis 'must be qualified with an expectation of moderately effective function at home and work if an effective treatment programme is delivered ... currently impossible to deliver due to his frequent interstate travel'.

(d) the reference at paragraph 42 to the Appellant being able to 'work at his own pace to handle the post traumatic stress disorder'. In making reference to same the learned judge failed to take into account, or give any, or any sufficient weight, to the evidence of the Appellant in his Affidavit sworn on 5 July 2013 [Exhibit B2] at paragraphs 17, 18, 19 and 39 and his evidence at Transcript 81 lines 18 to 23, Transcript 83 lines 19 to 24, Transcript 84 lines 5 to 10, Transcript 103 lines 18 to 27, Transcript 116 lines 23 to 31, Transcript 117 lines 1 to 21, Transcript 122 lines 27 to 31 and Transcript 123 lines 1 to 21 which evidence was not challenged.

(e) the reference at paragraph 46 to the Appellant's current activities. In making reference to same the learned judge failed to take into account, or give any, or any sufficient weight, to the evidence of the Appellant as to the consequences of his injury in paragraphs 32, 33 and 39 of his Affidavit sworn on 31 May 2012 [Exhibit B1] and paragraphs 35, 36, 37 and 40 of his Affidavit sworn on 5 July 2013 [Exhibit B2] and his evidence at Transcript 104 lines 15 to 22, Transcript 105 lines 1 to 2, Transcript 106 lines 1 to 8, Transcript 109 lines 30 to 31, Transcript 110 lines 1 to 3, Transcript 119 lines 21 to 31, Transcript 120 lines 1 to 5, Transcript 121 lines 16 to 30, Transcript 122 lines 5 to 20, Transcript 125 lines 13 to 31 and Transcript 126 lines 1 to 23 which evidence was not challenged.

(f) the reference at paragraph 47 to the Appellant being in a new relationship since 2012. In making reference to same the learned judge failed to take into account, or give any, or any sufficient weight, to the evidence of the Appellant in paragraphs 35 and 38 of his Affidavit sworn on 31 May 2012 [Exhibit 81] and paragraphs 14, 42, 43 and of his Affidavit sworn on 5 July 2013 [Exhibit B2].

(g) the reference at paragraph 48 to the Appellant writing a book. In making reference to same the learned judge failed to take into account, or give any, or any sufficient weight, to the evidence of the Appellant in paragraph 30 of his Affidavit sworn on 31 May 2012 [Exhibit B1] as to the reason he wrote the book and his evidence at Transcript 100 lines 21 to 23 and Transcript 121 lines 6 to 12 which was not challenged.

(h) the reference at paragraph 59 to the lack of any evidence from any General Practitioner. In making reference to same the learned judge failed to take into account, or give any, or any sufficient weight, to the evidence of the Appellant in paragraph 29 of his Affidavit sworn on 5 July 2013 [Exhibit B2] that treatment-wise he is currently in the hands of his treating psychiatrist, Dr Atkins and his evidence at Transcript 88 lines 5 to 26 which evidence was not challenged.

(i) the learned judge failed to take into account, or give any, or any sufficient weight, to the evidence of the Appellant in paragraph 30 of his Affidavit sworn 5 July 2013 [Exhibit B2] as to the level of his medication and the number of attendances upon his psychiatrist and his evidence at Transcript 123 lines 122 to 28, Transcript 124 lines 10 to 31 and Transcript 125 lines 1 to 12 which was not challenged and the opinions of Dr Michael Epstein in his report of 14 June 2013 [Exhibit J] on page 11, Mr Peter Powles in his report of 6 July 2013 [Exhibit E2] on page 5, Dr Atkin in his report of 15 July 2013 [Exhibit D4] on page 2 as to the requirement for ongoing treatment.

(j) the reference at paragraph 63 to having to 'consider all of the consequences'. In making reference to same the learned judge failed to take into account, or give any, or any sufficient weight, to the evidence of the consequences as referred to in paragraph (e) above.

(k) the finding at paragraph 76 that the learned judge was 'not convinced post traumatic stress disorder contributed to the marriage breakdown'. In addition to not providing adequate or appropriate reasons for reaching that conclusion, particularly by failing to provide any appropriate path of reasoning in support of the conclusion, the learned judge failed to take into account, or give any, or any sufficient weight, to the evidence of the Appellant in paragraph 35 of his Affidavit sworn 31 May 2012 [Exhibit B1] and paragraph 42 and of his Affidavit sworn 5 July 2013 [Exhibit B2] and his evidence at Transcript 84 lines 15 to 21 which evidence was not challenged and to the opinion of Dr Prytula in his report dated 2 May 2011 [Exhibit H] that 'unless he receives specific treatment, it is likely that his marriage will fail ... '.

(l) the reference at paragraph 74 to the report of Dr Prytula dated 2 May 2011 [Exhibit H]. In making reference to same the learned judge failed to take into account, or give any, or any sufficient weight, to Dr Prytula's opinion that 'unless he receives specific treatment, it is likely that .......... the psychiatric treatment that he is receiving at present will only maintain him in a chronic state. This is likely to worsen his state'.[5]

13 When a party bearing the onus of proof fails at first instance that party faces a difficult task in persuading this Court on appeal that the Court below was bound to be persuaded of his or her case if that case involves assessment of a complex matrix of fact including matters which are adverse to the appellant.

14 Proposed ground 1 does not particularise any specific error on the part of the trial judge.

15 Proposed grounds 2 and 3 are misconceived insofar as they are formulated simply by reference to the alternative of the weight of the evidence. In order to succeed in an appeal of this type the appellant must demonstrate the decision was plainly wrong.[6]

16 Further I accept the submissions of the respondent that it was open to the judge to conclude as his did that the applicant's PTSD did not meet the relevant narrative test having regard to the following features of the evidence:[7]

(a) There was considerable evidence that the applicant had been in essentially continual employment since he left the police force, in well-remunerated positions of considerable responsibility.[8] At the time of hearing the applicant was employed as Development Manager - Specialist Security with Wilson Security, with a total salary package of $200,000.[9] Despite the responsibility of this position, the applicant deposed that ''[he was] probably making the easiest money [he'd] made".[10] His previous roles had included National General Manager for SecureCorp[11] and as Regional Operations Manager for Chubb Security Services Ltd.[12]

(b) Contrary to the applicant's assertion that his jobs had generally ended badly (which carries the suggestion of relationship breakdown), while employed by Wilson Security he had been headhunted by G4S and, shortly after commencing with that company, was enticed back to Wilson Security on highly favourable terms.[13]

(c) Notwithstanding the breakdown of his marriage (which the primary judge was not satisfied was caused by his PTSD), he had since 2012

been in a relationship with a woman he had met through online dating, and with whom he had commenced living.[14]

(d) The applicant had completed a Graduate Diploma in Business Management while being employed in demanding jobs with Australian Fire and Security, SecureCorp and Chubb. He had not been able to convert this qualification to a Masters of Business Administration due to the "inordinate hours" he was working at Chubb.[15]

(e) He had written a 220,000-word book about his experience in the police force. While he had commenced this endeavour on the recommendation of his psychiatrist, Dr Atkin, he had subsequently edited the book around six times, and had sent it to a number of publishers, suggesting that the exercise had moved beyond one that was purely therapeutic in nature.[16]

(f) The applicant led an active life, which included three to four gym sessions weekly, and he described himself as being "in reasonable nick".[17] In 2009, at the age of 47, he tried out for the Stanhope Football Club, but pulled his groin at the first training session. He had played tennis until 2006.[18]

17 Based on the above features of the case the primary judge concluded that the applicant was the 'antithesis of a person who has a severe long-term mental or behavioural disorder, albeit that he may have a post-traumatic stress disorder'.[19] This conclusion was open to him.

18 It remained open despite the applicant's evidence that he had suffered ongoing anger management and relationship problems since leaving the police force. His Honour specifically noted:[20]

Mr Noonan says that during, and since, his time in the police force, he has been a violent person, a person who is argumentative, a person who has drunk to excess and has had difficulties with coping and relating to his employers and with his family.

19 In particular, it was open to the trial judge when assessing the severity of the consequences of what had been lost to take account of the evidence as to the extent of what the applicant remained capable of. The respondent's case was put expressly on this basis:[21]

Mr Jens, in final submission, submitted that when one assesses what the plaintiff retains in life, despite his Post-Traumatic Stress Disorder, that such is very much an active life, a fruitful life in regard to both employment, relationships, the capacity to write a large text, and his gymnasium activity. Mr Jens submits that the medical opinion relied upon by Mr Monti as to the risks to the plaintiff's employment caused by Mr Noonan's Post-Traumatic Stress Disorder beggars reality. Mr Jens submitted that that is so, especially given the circumstances in the last year where he was head-hunted from his employer, and then re-head-hunted by Wilsons upon a much higher package.

20 The fact that his Honour accepted that the applicant suffered from PTSD did not compel the conclusion that its long-term pain and suffering consequences were severe.

21 Likewise, his Honour was not bound to accept the characterisation by Dr Atkin (treating psychiatrist) of the applicant's PTSD as 'severe'. Nor was he bound to accept in an unqualified manner the medical prognoses upon which the applicant relied.

22 The extent and character of the long-term severity of the pain and suffering consequences of the applicant's PTSD fell to be resolved on the whole of the evidence and not simply by reference to medical opinion.[22] The relevant principle was stated by Ashley JA (with whom Neave JA and Pagone AJA agreed) in Jayatilake v Toyota Motor Corporation Australia Pty Ltd:[23]

In point of principle, the question whether a worker has established that he or she has suffered serious injury should be decided by consideration of all the evidence. As I observed in Grech,[24] re-expressing a long-established position:

The matters which the plaintiff needed to establish ... were to be resolved upon all the evidence before the court. It was not a trial by doctors' opinions; nor a trial in which relevant questions were to be decided on the footing, in effect, that medical opinion did not of itself provide answers to those questions.

Section 134AB(38)(h) says nothing to suggest that the general approach is to be abandoned in favour of trial by medical opinion. Simply, a plaintiff is required to establish, in order to satisfy the presently pertinent aspect of the definition of 'serious injury', that he or she suffers an impairment or loss of function the consequences of which, physically based, are serious in terms of pain and suffering or loss of earning capacity. Like any other question for determination, it is a question to be resolved by consideration of all the evidence before the court. Stamboulakis should not be understood to mean that, upon the serious injury question, the principle that an issue is to be determined by reference to all admissible and relevant evidence is inapplicable.

23 His Honour summarised the chief features of the opinions upon which the applicant relied in the course of his reasons:[25]

Dr Aitken [sic], in the report of 21 September 2010, opined that Mr Noonan was:

(a) totally and permanently incapacitated for police work;

(b) incapacitated for full-time work in other fields, especially in fields dealing with the public, such as sales; and

(c) as to his capacity overall, the doctor assessed Mr Noonan to be very significantly affected.

In Dr Aitken's [sic] update, in the report of July 2013, Exhibit D4, he said the injury, that is, the Post-Traumatic Stress Disorder, had severely impacted Mr Noonan's social, recreational and domestic activities. He has lost his marriage, his friends and his employment. As to the future, the doctor considered a moderately effective functioning was possible for Mr Noonan if he is subject to an effective treatment program; however, the doctor noted that, to date, such effective treatment program has been impossible due to Mr Noonan's interstate travel in his employment.

Mr Monti also relied upon the opinion of the treating psychologist, Mr Powles. In Mr Powles' report of 6 July of this year, Mr Powles - such based of course upon the history provided by Mr Noonan - opined in regard to the post-traumatic stress condition, that it makes "continuing employment in any field problematic" and such condition "is likely to result in constant job changes and unemployment as has been the norm up to the present time", that such "condition" has led to Mr Noonan "being incapacitated for his pre-injury duties as a police officer and to being incapacitated for any other form of employment where managing stress and cognitive ability are a significant requirement for the job".

Further, Mr Monti relied upon the opinion of Dr Epstein in a report given in June this year. Dr Epstein said that as a result of the Post-Traumatic Stress Disorder "Mr Noonan has been unable to return to his work with the police force, and has had difficulty working in any situations where he is placed under pressure because of his marked irritability". Dr Epstein thought that this situation would continue indefinitely, and his diagnosis for improvement of Mr Noonan was poor.

24 It may be observed that at the date of hearing the applicant was successfully working in the field of sales (contrary to the first opinion of Dr Atkin). Further he was on any view working with at least 'moderate effectiveness', whereas the second opinion implied that he could not do so without further treatment. He had also subsequently formed a new domestic relationship.

25 Likewise the opinions of Mr Powles and Dr Epstein did not sit consistently with the applicant's more recent employment history.

26 In oral submissions on the appeal senior counsel for the applicant emphasised that although the evidence showed that the applicant was a valued, sought-after and effective employee in his current role, nevertheless he still suffered from ongoing effects of PTSD, both in his job and in social relationships. Thus the applicant's evidence was that he worked three weeks on and one week off because in part it suited him to go to the bush. He said he communicated predominantly by phone or email rather than face to face. This reduced the chance of confrontation. He said further his employer accepts that he needed regular sleeps throughout the day and that he may need to take a walk from time to time for half an hour in order to manage anger. One reason he was happy to work in the bush was that it distanced him from his children, with whom he had ongoing difficulties.

27 Whilst I accept that the evidence demonstrated that the applicant was suffering from ongoing consequences as a result of PTSD, nevertheless it remained open to his Honour to reason as follows:[26]

The problem in assessing such opinions as against the evidence the Court has heard is the reality, as already demonstrated, of Mr Noonan's work history, his social activity, his intellectual achievements and his relationship capacity.

I find that those realities which make up Mr Noonan's current life are such that I cannot accept the opinions of Dr Aitken [sic], Mr Powles or Dr Epstein as to the extent of the consequences of Mr Noonan's Post-Traumatic Stress Disorder. To use Mr Jens' phrase, such medical opinions beggar reality.

28 In turn, it was open to his Honour to take the view that although the pain and suffering consequences of PTSD felt by the applicant were considerable and even substantial, they were not severe.

29 Accordingly proposed ground 2 is not seriously arguable.

30 Insofar as proposed ground 3 is concerned, it is also not seriously arguable that his Honour failed to take into account any of the evidentiary considerations identified. All but two of the sub-paragraphs of the proposed ground complain of alleged inadequacies in the manner in which the trial judge proceeded 'in making reference' to the matter complained of.

31 In my view it is not reasonably arguable that it can be inferred his Honour failed to have regard to relevant evidence or that his conclusions were plainly wrong.

32 Proposed grounds 3(a) to (g) relate to a summary of the applicant's work life and his life outside work contained in his Honour's reasons. The matters particularised in the proposed grounds do not demonstrate any material inaccuracy in the summary or give rise to an inference his Honour failed to take material considerations into account. It was perfectly proper for his Honour to summarise those matters which he regarded as of significance in the applicant's history. A summary requires some editing.

33 Proposed grounds 3(h) and (i) assert in part that his Honour failed to take into account evidence of the applicant as to his treatment by his psychiatrist, Dr Atkin, his level of medication, the number of attendances on his psychiatrist or the opinions of Dr Epstein and Mr Powles. It may be noted:

• His Honour referred to evidence of medication.[27]

• His Honour also referred to the applicant's description of his treatment.[28]

• His Honour specifically took account of the opinions of Dr Epstein and Mr Powles.[29]

When his Honour's judgment is read as a whole these grounds are not seriously arguable.

34 Likewise his Honour was not bound to record every aspect of the evidence given by the applicant as to the consequences of his disorder. When his Honour's judgment is read as a whole I am not persuaded he failed to address the evidence as a whole fully and fairly. Proposed 3(j) does not raise matters which could be said to demonstrate his Honour's conclusions were plainly wrong.

35 Proposed ground 3(k) relates in part to the adequacy of the reasons given for a specific subsidiary conclusion reached by his Honour relating to the failure of the applicant's first marriage. The full terms of [76] of his Honour's judgment are as follows:

I am not satisfied that the Post-Traumatic Stress Disorder was a cause of his marriage breakdown, as attested to by Mr Noonan. At any rate, as of today, he has been able, certainly since 2012, to re-establish an ongoing relationship, with which he says he is very happy, in that he has shifted into premises in Brighton with the lady he met on RSVP.[30]

36 It is plain that it is the latter conclusion which was material to his Honour's considerations. The path of reasoning substantiating his overall conclusions was abundantly clear from his Reasons.

37 The question for the Court was not whether the applicant had suffered severe consequences in the past but whether the long-term consequences of his condition were severe judged at the date of trial.

38 Proposed ground 3(l) takes issue with his Honour's summary of the effect of Dr Prytula's evidence. There is nothing in this point. It was open to his Honour to identify the significant aspects of the relevant evidence as he did.

39 In my opinion the proposed appeal is not reasonably arguable and leave to appeal should be refused.

[1] Mobilio v Balliotis [1998] 3 VR 833; Rodda v TAC [2008] VSCA 276.

[2] These paragraphs define 'serious injury' as:

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

[3] [2008] VSCA 260, [27].

[4] Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, [24]; Stijepic v One Force Group [2009] VSCA 181, [47]; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; (2010) 31 VR 1, [15].

[5] Notice of appeal dated 19 August 2013 (original emphasis).

[6] Mobilio v Balliotis [1998] 3 VR 833.

[7] Respondent's Outline of Submissions dated 19 September 2013, [14] (emphasis in original; citations in original).

[8] Summarised at Noonan v State of Victoria [2013] VCC 978 ('Reasons') [31]-[41].

[11] A role which he agreed was CEO-like, and which required him to manage a staff of 500-600 employees, Australia-wide: T40.9-24.

[12] In this role the applicant was in direct control of 100 direct employees across four states and some 1,500 contract workers. The applicant agreed that this was a position of "great authority" in a "very substantial business" and that [he] was "a very good person at that job": T43.5-44.20; 46.20-47.2.

[22] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642; R v Hall (1988) 36 A Crim R 368, 370; Jayatilake v Toyota Motor Corporation Australia Pty Ltd [2008] VSCA 167; (2008) 20 VR 605.

[23] [2008] VSCA 167; (2008) 20 VR 605, 610 [17]-[18] (citations in original).

[24] At 611, [35]. The observation was directed to a different issue, but nothing turns on it.