Court of Appeal (Vic)|2013-11-18|Before: Mr J, Ashley JA

Phelan v TAC [2013] VSCA 306 (18 November 2013)

ACCIDENT COMPENSATION - Transport accident - Refusal of leave to bring common law proceedings - Application for leave to appeal against judge's ultimate finding that, whilst applicant had significant and marked disability, it did not meet 'very considerable' threshold for 'serious injury' - Whether judge failed to consider consequences of injury for the applicant in evaluating if injury was serious - Whether errors in fact finding - Whether judge failed to provide adequate reasons - Leave to appeal granted - Appeal dismissed.

Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Richards v Wylie [2000] VSCA 50; (2000) 1 VR 79; Stijepic v One Force Group Aust Pty Ltd and Anor [2009] VSCA 181.

1 Anita Phelan made application in the County Court for leave to bring a proceeding to recover damages in respect of injuries sustained in a transport accident which occurred on 13 April 2007. Her application, brought pursuant to s 93(4)(d) of the Transport Accident Act 1986 (the Act), necessarily alleged that she had sustained 'serious injury' as defined by s 93(17). At the hearing, which took place on 23 and 24 May 2012, she relied upon paragraph (a) of the definition, alleging that she had sustained 'serious long term impairment or loss of body function'. She relied upon disability affecting her cervical and thoracic spine.[1] On 6 June 2012, the judge dismissed her application. He held, in short, that whilst the applicant had a significant and marked disability, it did not meet the 'very considerable' threshold for 'serious injury' described in Humphries v Poljak.[2]

2 Now the applicant seeks leave to appeal against the order made. Leave is necessary because this Court decided, in Dodoro v Knighting,[3] that an order refusing leave to bring a proceeding under s 93(4) of the Act is an interlocutory order within s 74(2D) of the County Court Act 1958. The conventional test whether leave should be granted applies: Is the decision below attended with sufficient doubt to warrant grant of leave, and would substantial injustice be caused if the decision was allowed to stand?

3 In considering the application of that test, a number of matters need to be borne in mind. First, the applicant bore the burden of persuasion below, and she failed to discharge it. Second, her application required findings of fact to be made. In considering whether it has been demonstrated that a finding was erroneous (a matter which can be relevant to 'specific error' - see below), the ordinary appellate process is engaged. It is informed, where applicable, by consideration of credit in accordance with Fox v Percy.[4] Of course, the question whether there was an error in fact finding is to be determined by consideration of all the pertinent evidence, not just medical opinion evidence.[5] Third, once the facts were found, the judge was required to decide whether the applicant had established that her injury was, in the statutory context, 'serious injury'. It is that ultimate finding which must be displaced if the applicant is to succeed in this Court. Fourth, the ultimate finding was one which involved elements of 'fact, degree and value judgment'. A decision that injury was or was not serious injury will only be set aside for specific error, or if it was plainly wrong or wholly erroneous.[6] Fifth, specific error may lie in an erroneous finding of fact, or in a wrong expression of legal principle. Sixth, not every fact-finding error, or misstatement or misapplication of legal principle, will result in grant of leave to appeal and the success of the appeal. An error, on analysis, may not have been

material to the decision ultimately arrived at by the judge or to have vitiated that decision in the sense that the outcome of the case might have been different if the error had not occurred.[7]

4 Against that background, for the reasons which follow, I would grant leave to appeal, but dismiss the appeal.

5 It is desirable, so that the significance of certain circumstances of the matter can be immediately understood, to set out the proposed amended grounds of appeal. As the applicant put her argument, they should lead to the success of the appeal and an order that she have leave to bring a proceeding for damages. Thus:

1A. The learned trial judge erred by failing to make findings in relation to the consequences to the appellant of her injury, for the purpose of then evaluating by reference to those consequences whether the injury was a serious injury.

Alternatively to 1A, if the learned trial judge accepted the consequences as deposed to by the appellant, and having found at [34] that the appellant's pain and restrictions described by Mr Hunt resulted from aggravation of degenerative change in the cervical region and upper thoracic crush fractures suffered in the transport accident ("the injuries"), it was against the evidence and the weight of the evidence, in the sense of plainly wrong, for the learned Trial Judge to find that the pain and restriction was not a serious long-term impairment or loss of spinal function within the meaning of s 93(17) of the Transport Accident Act 1986.

2A. The learned trial judge dismissed the application as a result of erroneous approaches to the evidence, in that:

2a. The learned Trial Judge erred by taking into account at [42] the fact that the appellant had travelled to Europe and returned to Australia by commercial airlines in September 2007:-

(i) as sufficient evidence that the injuries did not meet the narrative test for serious injury as at the date of trial; and/or

(ii) without regard to the appellant's evidence (at T. 105) of how she coped with the flights; and

(iii) in the absence of any medical evidence to indicate whether and if so to what extent the plaintiff's ability to cope with the flights was informative in determining the permanent consequences suffered by the appellant.

The learned trial judge at [40] took the appellant's evidence to be that the 12 month period prior to her accident was the worst part of her life, when her evidence read as a whole and in context was to the contrary with the passage relied upon clearly intended to convey that the period prior to the holiday was the worse (sic) part of her life.

The learned Trial Judge erred by taking into account in-court observations of the appellant in the witness box:

(a) that were erroneously based on his finding at [42] that the appellant had been exposed to a lengthy cross-examination that extended over 2 days when in fact the appellant gave evidence for about 2 hours in the morning and 2 hours with a short break in the afternoon of the first day and for about 1 hour on the morning of the second day;

(b) without regard to the appellant's unchallenged evidence of discomfort and restriction (at T.106); and

(c) when none of the observations were necessarily inconsistent with the appellant's case.

The learned Trial Judge erred by finding at [43] against the evidence and the weight of the evidence that the appellant's emotional and psychological issues were not at least in part, secondary to physical pain and restriction from the injuries.
The learned Trial Judge erred by failing to have regard to uncontradicted medical evidence of the appellant's mental response to the injuries (i.e. as summarised in [25] of the reasons) in determining the seriousness and longevity of the appellant's spinal injury.
The learned Trial Judge failed to provide adequate reasons for decision, in that:-

(a) if, contrary to ground 1, he did not accept the pain and restrictions referred to by Mr Hunt then he failed to identify what long term pain and restriction from her physical injury the appellant has suffered;

(b) he failed to analyse the evidence or make findings in respect of the appellant's pre-injury physical activities that would explain the consequent loss the appellant has suffered arising from her injuries;

(c) he failed to identify the appellant's experience of pain or the disabling effects for her of the pain arising from the injuries; and

(d) he failed to identify the extent to which, if at all, the appellant's credit as a witness informed any findings of fact.

Insofar as it was a matter relevant to the appellant's credit or otherwise, the learned Trial Judge erred in finding at [40] that her evidence of having a premorbid "happy go lucky" personality was inconsistent with having received psychological counselling for a relationship breakdown prior to the transport accident and in any event failed to take into account evidence of an improving adjustment to the breakdown prior to the transport accident.

6 The applicant was born on 30 January 1975. She was aged 32 when, whilst using a pedestrian crossing in Elsternwick, she was struck on her right side by a motor car and thrown onto the bonnet of the vehicle before falling onto the roadway, then hitting her head and left shoulder area.

7 The applicant was employed at the time as a medical products marketer. She had been employed in such work for some years, earning a quite substantial income.

8 The applicant was a single woman. She had been in a relationship, which had ended in about mid-2006. Of this, more later.

9 The applicant had sustained a 'whiplash' injury when aged eight, and ligamentous strain of her right shoulder area in 2006. Neither had resulted in any permanent disability. That was undisputed below.

10 The applicant did not lose consciousness in consequence of the accident on 13 April 2007. She was taken by ambulance to the Alfred Hospital, where she was admitted overnight. There was a dispute at the hearing below as to the extent of upper back and neck pain which she suffered in the immediate aftermath of the accident. The judge was understandably persuaded that her pain must have been very considerable, because she had been given an intravenous injection of morphine on the evening of her admission.

11 The applicant was discharged on 14 April. X-rays and a CT scan performed on the day of her admission had shown no abnormality. An MRI performed a few days later, however, showed that the applicant had in fact suffered mild compression fractures of the vertebral bodies of T2 and T3; but no other bony or ligamentous damage.

12 After discharge, the applicant came under the care of her local general practitioner, Dr Gillian Taylor, whom she had been attending for other matters for several years.

13 There was dispute below as to the frequency with which the applicant attended Dr Taylor for neck, upper back and shoulder symptoms in the ensuing years. I will refer to aspects of that dispute later. For the moment, I note that the applicant unarguably attended the doctor in respect of those symptoms between April and July 2007, in September 2008, on four occasions in 2009 and twice in 2010.

14 It is also clear that the doctor prescribed Panadol Osteo on one occasion, but that otherwise the applicant used over-the-counter medicines - Nurofen, Panadol Rapid and Voltaren cream were mentioned - as required. Finally, it is clear that the doctor referred the applicant for physiotherapy to various practices between May 2007 and 2011 - the changes being, for the most part at least, at the applicant's behest.

15 The applicant gave evidence that, in addition to attending on Dr Taylor, she may have attended other practices. But she identified only one other general practitioner by name. That was a Dr Duff, whom she first consulted in January 2008, apparently for dizziness.

16 The applicant got back to work a week after the accident. Thereafter, up to the time of the hearing below, she was in employment except when changing jobs; and, on one occasion, when she lost a job. At times, she worked 50-60 hours per week. She gave evidence that her jobs were not easy. She used the description 'full on'. A summary of taxation returns showed that her gross earnings increased from $68,204 in the 2007 tax year to $93,339 in the 2010 tax year. The fact that the applicant maintained employment does not deny, of course, her evidence - of which more later - that she had to make some changes to her work practices to protect her spine. But it is some evidence of what she had retained.[8]

17 It being certain that the applicant suffered traumatic damage to her thoracic spine in the accident, there was nonetheless an issue at trial whether the symptoms of which she was complaining at that time - neck, upper back and shoulder pain - were organically determined, or were rather a psychogenic manifestation. Messrs Hunt and Myers, consulting surgeons engaged by the applicant's solicitors, opined the former. Mr John O'Brien, consulting surgeon engaged by the respondent's solicitors, opined the latter. The judge decided, 'with some hesitation', that he 'concurred in the view expressed by Mr Hunt that the pain and restrictions which [he] accept[ed] Ms Phelan suffers are organically driven'. That was not the only occasion on which his Honour adverted to the applicant suffering 'pain and restrictions'.

18 Just what 'pain and restrictions' was the judge alluding to? There were a number of potential sources of information: (1) the applicant's three affidavits in support of her application; (2) her history of current symptoms given to Mr Hunt - whose opinion the judge accepted; (3) reports provided by Dr Taylor.

19 Putting aside symptoms of emotional upset, which I must separately consider, the applicant referred in her affidavits to - (1) pain in her head, neck and back, made worse by lifting heavier items, bending, pushing or pulling, jogging or running; (2) difficulty with heavier household chores; (3) restrictions upon a multiplicity of previously-enjoyed sporting activities, and dancing; (4) difficulty being in a seated position for too long; (5) trouble sleeping because of pain; (6) weight gain because of relative physical inactivity. The applicant also averred that she had changed her motor vehicle so as to have a more comfortable sitting position. She detailed ways in which she now received help from workmates and her parents.

20 The applicant's physical difficulties, as she recounted them to Mr Hunt on 4 July 2011, were almost exactly the same. This is what the doctor noted:

Ms Phelan described pain in her head radiating to her neck and into her spine and back and coccyxgeal region. She described the pain in her head was in the occipital region with radiation to the cervical region associated with the thoracic region and across the shoulders posteriorly. She stated that her spine was very irritable and tended to easily exacerbate pain symptoms.

Ms Phelan said she found sitting and standing for too long exacerbate her pain symptoms. She was able to drive, but long trips tended to aggravate her pain symptoms, in particular her neck and back symptoms. She experienced difficulty sleeping at night and could not get into a comfortable position. She had used a special pillow to help and she was now quite dependent on this pillow and took it with her when she went away overnight, for example when she travelled with her work.

Ms Phelan indicated that since her accident she has difficulties performing her daily activities around her home. She had trouble vacuuming and cleaning and hanging out the washing. She could not lift heavy objects and had difficulty bending over. She also had difficulty cooking and preparing meals. She now required the assistance of her parents and boyfriend to help with most of her daily activities. She had trouble with sitting intolerance and had difficulty sitting for long periods of time, particularly if sitting in an aircraft she needed to get up and move around to try and reduce her symptoms.

Ms Phelan indicated that parts of her work role involved sitting in cars for long periods and also sitting at desks for long periods, and these activities tended to exacerbate her symptoms. She was also limited in her ability to walk, and tended to walk much less than she had done in the past. If she walked excessively she developed worsening symptoms of axial neck pain and thoracic pain and also lower back pain in the coccyxgeal region.

Ms Phelan explained that prior to her motor vehicle accident she had enjoyed staying fit and participating in playing netball and going for long runs. She had also enjoyed playing tennis weekly but now had difficulty with all these sports. She had also previously enjoyed salsa dancing and going out with friends and socialising but was now restricted. She did not feel sociable due to her pain symptoms, persistent headaches, weight gain, due to her lack of exercise which distressed her.

21 In my opinion, understood in context, it is clear that the judge's several references to the applicant's 'pain and restrictions' were his Honour's shorthand for the painful symptoms, and for the difficulties and restrictions in her daily life, which the applicant both averred and reported to Mr Hunt.

22 Next, it was said in Richards and Anor v Wylie[9] that it is legitimate to take into account, in determining whether the consequences of an impairment or loss of body function are serious, that there has been a mental response to that impairment or loss.[10] In the present case, the applicant contended that there had indeed been such a mental response. She had been transformed from being a happy-go-lucky, easygoing, optimistic person into someone who was less happy, somewhat anxious, nervous, worried, and insecure. This is what she deposed in her affidavit sworn 12 October 2011:

Prior to the transport accident I was a happy and vivacious person. I was excited about life and I enjoyed living my life. I had a beautiful home by the beach, I was healthy and in good shape, I was confident and I was looking forward to progressing in my career and life.
Since the transport accident I am now very emotional and get upset easily. Each day is a struggle. Prior to the transport accident I always approached life from a positive perspective, however, now I approach life from a defence perspective and it takes so much effort for me to have a good day. Prior to the transport accident it was very rare that I would have a bad day. It now takes effort to challenge the negative and I feel that my life is a constant battle each day in order to maintain a neutral state.
Since the transport accident my injuries significantly interfered with my ability to live a fulfilling life that I used to enjoy and prosper with. I struggle to maintain a brave face and I no longer have the outgoing and vivacious personality that came naturally prior to the transport accident.

23 In pursuit of this aspect of her claim, the applicant relied, in addition to her own evidence and other lay evidence, upon two reports of Dr David Weissman, consultant psychiatrist. Based upon the history given him by the applicant, and having regard to written material with which he was supplied, the doctor opined that the applicant suffered from (1) 'mild post traumatic stress disorder symptoms and features of traumatisation'; and (2) 'mild to moderate mixed, reactive depressive and anxiety symptoms, signs and feature (sic) as a consequence of, or secondary to, her accident-related pains, injuries and disabilities, limitations and restrictions, changes and losses to her lifestyle and functioning since the transport accident'.

24 The history which the applicant had given the doctor was that -

She used to be happy and .. this was her natural disposition ... since the accident she is not as happy as she was and it is now harder for her to be happy.

And

Before the accident she was usually a positive and happy person ...

And

She had a break up of a relationship in 2006 but then she was thinking very positively about her life. She was enjoying her job, enjoying living at Black Rock and moving forward with her life but then "this happened (the accident), it all stopped."

25 The judge correctly put to one side the diagnosis of post traumatic stress disorder deriving directly from the transport accident. Such injury, if present, would fall within para (c) of the definition of 'serious injury' in s 93(17) of the Act, and the applicant did not rely upon para (c).

26 The judge referred, in passing, to the applicant not having said anything in her affidavits or viva voce evidence about some of the symptoms which she had recounted to Dr Weissman, and which bore upon the diagnosis now under discussion. The fact that the applicant had not given evidence in written or oral form about those matters did not mean that there was no admissible evidence about them. But it is not necessary to develop that point any further.

27 The judge adverted to Dr Weissman's opinion that the applicant suffered from depressive and anxiety symptoms secondary to her accident-related pain, disabilities, and so on. He rejected that opinion because he did not accept the premise that the applicant had been a 'happy', 'happy-go-lucky', 'easygoing' person in the period preceding the transport accident. That was the way in which the applicant had portrayed herself to the doctor. It was also the import of an affidavit sworn by the applicant's friend Adrienne Costello. But there was evidence that, before the accident, the applicant's mental state had been far from good. Problems in her relationship with a man had caused her to consult Dr Taylor in 2005, and again in 2006. In April 2005, the applicant had reported to Dr Taylor that she had some very low, despairing days, but was not suicidal. She reported attending a psychologist. The breakdown in the relationship, which apparently occurred in mid-2006, led to her seeking referral to a new counsellor, and to there being such a referral. Counselling was continuing at the time of the accident. Not long after the accident, the applicant told Dr Taylor that she would like to proceed with a mental health plan, as suggested by the counsellor. Further, whilst the applicant maintained in parts of her evidence that she was getting on top of things at the time of the accident, she also appeared to admit that - (1) there were issues in her life that were troubling her in a serious way, connected with her emotions, before the car accident; (2) immediately prior to the accident, she thought she would need further professional help; and (3), she consulted a psychotherapist, Ms Power, after the accident, for major psychological issues.

28 The consultations with Ms Power began in early 2009, and it is apparent from the applicant's cross-examination that matters reaching back into her childhood were explored.

29 In addition to the matters which I have already mentioned, the judge referred in his reasons to a question which he asked the applicant, and to her response. He slightly misstated her response. The actual question and answer were as follows:

You took a holiday in France. Was it within the first 12 months after the accident or was it a bit longer? --- It was actually my main reason was because of the accident and the past 12 months prior to the accident was probably the worst part of my life so I really wanted a holiday.

30 Senior counsel for the applicant, who made most attractive submissions, pointed out that the answer was not responsive. He argued that what the applicant had really meant was that the motivation for her going on the holiday was the accident and the period of months thereafter until she went on the trip, that period being 'probably the worst part of [her] life'. To understand her answer otherwise, he submitted, would run counter to the repeated thrust of her evidence that she was getting on top of things at the time of the accident.

31 I cannot accept that submission. The answer was clear enough, and it accorded with a number of concessions that the applicant made in crossexamination.

32 In rejecting the applicant's case that she suffered from a reactive depression/anxiety, the judge said this:[11]

The plaintiff, in her evidence, said a lot to the effect that her previously happy life had been spoiled by the pain and restrictions which she now suffers. That view is either entirely untenable or at best a great exaggeration. [Respondent's senior counsel] correctly drew my attention to the psychological counselling from Ms Lavery which Ms Phelan was receiving from her in the breakdown of a personal relationship prior to the transport accident. That Ms Phelan required this sort of assistance in those circumstances is inconsistent with the history she gave to Dr Weissman that immediately before the accident she was a "happy go lucky" personality. Ms Phelan took a holiday in France in September 2007. The holiday extended over about two weeks. She flew directly from Australia to France and took a direct flight back. I enquired about this, having regard to the stress that this might have put on her back and neck. I asked her if this happened within a 12 month period after the accident. She replied "It was actually my main reason was because of the accident. In the past 12 months prior to the accident was probably the worst part of my life so I really wanted a holiday" [my emphasis].
After the accident Ms Phelan continued to receive emotional support from counsellors including Ms Cook. The sessions apparently related to a number of issues being relationship matters entirely distinct from the transport accident. The view that the pain and restrictions in her neck and shoulders aside, Ms Phelan "would be happy go lucky" is untenable.

... For the reasons explained, I do not believe that there is, in this case, any "top up" for the psychological consequences of injury. The emotional and psychological issues which Ms Phelan has been coping with are, in my view, unrelated to the accident and are not secondary to physical pain and restriction.

33 In my opinion, those conclusions are unassailable. Whether or not the applicant was, by nature, happy-go-lucky and optimistic, there was a body of evidence that this was not her disposition for a period of several years preceding the transport accident; and evidence that her actual disposition in those years persisted after the accident.

34 Accepting that the applicant had attended several counsellors in the two years preceding the accident for relationship problems, her counsel submitted that this did not mean that she had not remained a happy, optimistic person in that period. He argued that Dr Weissman's opinion was not subverted because the doctor had not known the full history. It would not have altered his opinion.

35 I reject those submissions. The first of them appeared to offer evidence from the Bar Table. The second was speculative. All that is known is that, supplied with an incomplete history, the doctor gave a particular opinion.

The extent of the applicant's medical treatment

36 I noted at [13] that there was dispute as to the extent of treatment which the applicant received for her injuries in the period between April 2007 and the hearing in May 2012. The notes of Dr Taylor's practice revealed relatively few relevant attendances after July 2007. The applicant sought to paint a different picture. She said that - (1) each time she attended the practice, for whatever reason, she mentioned her spinal problems. The attending doctor must simply have not noted it on a number of occasions; (2) she may have attended other practices (she did not identify them, save for referring to Dr Duff); (3) she had attended Dr Duff not only for dizziness, but for spinal symptoms; and (4), she had attended physiotherapy practices regularly until funding was cut off.

Ms Phelan's principal primary health carer has been Dr Gillian Taylor, who carries on practice at Hampton Bayside Medical Centre. At the time of the transport accident, Ms Phelan lived in Black Rock. Shortly after, she moved to a property which she owned in Pakenham to be closer to her parents and to have the advantage of her parents' support. As a result, her attendances at Dr Taylor's surgery became more problematic. Whilst Ms Phelan believes she has consulted other general practitioners, the evidence established with certainty only that she consulted Dr Taylor and other practitioners at the Hampton Clinic and a Dr Duff.

On 1 February 2008, Dr Richard Duff, who practices at Point Nepean Road, Rosebud, referred Ms Phelan to ear, nose and throat surgeon, Mr Sarin Wongprasartsuk. Ms Phelan said that she suffered serious problems with vertigo which impaired her driving capacity. She was in need of urgent attention and wished to avoid a long journey to the Hampton Clinic, seeking assistance closer to her then home. Mr Wongprasartsuk reported on 19 February 2008 recording the vertigo problems, but making no particular finding. He said:

She is coping quite well with things. I think it may well be a case of vestibular rehabilitation for her.

...

[Respondent's senior counsel] conducted a detailed cross-examination of Ms Phelan and demonstrated that after July 2007 her attendances on the general practitioners for treatment of the neck and back problems were, at best, desultory. Treatment focused on therapy from a number of physiotherapists. First, those at a clinic known as "Body Wise" at which Ms Phelan ultimately became disenchanted, then later Mr Lensen and again Mr Erlich (sic). The physiotherapy had been funded by the Victorian WorkCover Authority, presumably because the transport accident occurred during Ms Phelan's work not merely during what were, under the old law, "protected journeys" to and from work. The Authority has ceased funding the physiotherapy and Ms Phelan is no longer undertaking it.
The lack of intervention from the medical profession in the narrow sense is a contraindication to the seriousness of the pain and restrictions. On the other hand, from a fairly early stage the assessments suggest that Ms Phelan's condition has stabilised and therefore there is little which orthodox medicine could offer. To take an extreme example, a plaintiff who has suffered an amputation has suffered a very serious injury but once the immediate post-operative phase of the amputation is complete there will be little medical attention given to the stump. This does diminish the seriousness of the injury, however.

38 The last two paragraphs immediately followed the judge's rhetorical question, concerning the applicant's disabilities: 'But how serious are they?' It is, I consider, apparent that his Honour was not persuaded that the applicant's medical and like treatment had been more extensive than the records suggested, and that he considered this to be relevant to his assessment of the seriousness of her impairment.

39 That this circumstance was relevant cannot be gainsaid. His Honour's factual conclusions were soundly grounded in the evidence and what followed was logical.

40 In different ways, these grounds challenge the judge's rejection of the applicant's contention that she suffered reactive anxiety/depression secondary to her physical disability. For reasons already discussed, I consider that these grounds are not made good.

41 I have already concluded that the judge did find that the applicant suffered from the pain and restrictions described by the applicant in her consultation with Mr Hunt, which description mirrored what she had deposed to in her affidavits. His Honour did so in shorthand form; but the import of what he concluded is not in doubt. The premise upon which Ground 6(a) rests does not represent the situation.

42 I turn to Ground 1A and to paragraphs (b) and (c) of Ground 6. This is what the judge pertinently said:

[42] I cannot accept that a person who suffered a spinal injury which five years after the event remains 'very considerable' would have within a few months of the accident taken a holiday with two lengthy intercontinental flights, within 2 weeks. Again, whilst in answer to my direct questioning Ms Phelan complained of discomfort as she sat in the witness box, to the casual observer she displayed no major discomfort during a lengthy cross-examination that extended over two days. She manages her pain with 'over the counter' preparation such as Nurofen.

[43] Applying the tests laid down in Humphries v Poljak, whilst I accept that Ms Phelan continues to suffer pain and restrictions which can be regarded as having an organic cause and therefore are appropriately to be considered under paragraph (a) of the definition of serious injury, these pain and restrictions are marked and significant but I cannot accept that they are 'very considerable.' The restrictions in day to day life with lifting and the like are again significant and marked but not very considerable. The fact that after a relatively brief time Ms Phelan has been fit and available to continue her pre-accident work also points away from her injuries being serious. For the reasons explained, I do not believe that there is, in this case, any 'top up' for the psychological consequences of injury. The emotional and psychological issues which Ms Phelan has been coping with are, in my view, unrelated to the accident and are not secondary to physical pain and restrictions.

43 The observations which his Honour made in the first two sentences of the first of those paragraphs are the subject of specific attack by Grounds 2 and 3. Later, I will deal with them discretely.

44 Applicant's counsel particularly focused on what he contended were the inadequacies in the first three sentences of the second paragraph cited. He submitted that the judge had not, as he should have, detailed the applicant's painful symptoms and the multiple restrictions upon her enjoyment of life, and considered the seriousness of the consequences of her impairments for her. Instead, his Honour had identified the applicant's pain and restrictions in a global way, had descended to consideration of only a few aspects of her impairment - 'restrictions in day to day life with lifting and the like'; 'fit and available to continue her pre-accident work' - and had made a global assessment that their impact was 'marked and significant but not very considerable'. Counsel added that the judge had not adverted in his analysis to the applicant's relative youth.[13]

45 Counsel was correct to emphasise that it is the consequences of impairment for the particular applicant which must be put in the balance.[14] But it does not follow that by identifying the pain and restrictions from which the applicant suffered in a global way the judge was omitting from his consideration the discrete effects of that pain and those restrictions upon her. I think that it would have been better for the judge not to abbreviate his reasons as he did; but that does not bespeak error. I should add that his Honour's failure to specifically refer to the applicant's relative youth cannot be read to mean that he did not bring it to account. A judge's failure to mention a matter does not necessarily bespeak failure to consider it. Here, senior counsel for the applicant below had relied upon his client's youthfulness; and his Honour mentioned it at the outset of his reasons. I could not infer, in those circumstances, that his Honour neglected to consider it.

46 There is nothing, in my opinion, to Ground 6(d). The judge reached a conclusion adverse to the applicant on the question of a relationship between her physical injuries and such anxiety/depression as was present between April 2007 and date of trial. That involved a rejection of part of the applicant's evidence, which impacted upon her credit. All this, his Honour made clear. But otherwise, in substance, he accepted her evidence. Indeed, some of his findings were generous in her favour. I instance the extent of her post-accident recreational activities, in respect of which she made some implausible denials of histories recorded by medical professionals.

47 This Ground focuses upon the first sentence of the first paragraph in the cited passage at [42] above.

48 It is convenient to first address paragraph b. It contends that the judge made a fact-finding error. I have already addressed the substance of that contention[15] and have rejected it.

49 The gist of paragraph a, as argued by counsel, was that the judge had not embarked upon the necessary balancing exercise at all. He had rather concluded that the applicant could not be suffering from an impairment which was very considerable as at May 2012 because she had made two lengthy intercontinental flights in a two week period within months of being injured.[16] This was, counsel submitted, an erroneous application of principle.

50 This submission rested upon the words 'I cannot accept'. Read in isolation from what followed, they would support counsel's submission. But they cannot be divorced from context. They were immediately followed by reference to his Honour's observation of the applicant whilst in the witness box, and then by an apparent balancing exercise of the Humphries v Poljak kind. If the judge really had decided that the fact of the plane flights was decisive against the applicant, nothing more was necessary. The reasons would have ended there and then. It should not be supposed that what followed was mere window-dressing. Counsel accepted that the applicant making the trip was not an irrelevant matter, although he emphasised that the steps which his client took, as she said, to avoid or alleviate pain and stiffness, were part of the necessary analysis. The judge having pursued that matter in his questioning of the applicant, it should not be supposed that he ignored it when arriving at his conclusions.

51 In the event, although I consider that Ground 2a merits close consideration, and justifies grant of leave to appeal, I would reject it.

52 Ground 3 focuses upon the second sentence in the first paragraph cited at [42] above.

53 Paragraph (a) contends that there was a fact-finding error. The judge said in his reasons that the applicant's cross-examination had 'extended over two days', when in fact it had occupied about two hours on the morning of the first day of hearing, two hours with a short break on the afternoon of that day and about one hour on the morning of the second day.

54 In my opinion there is no merit in this sub ground. The judge did not say that the applicant had given evidence for two days, but rather that her evidence had extended over two days. What he said was literally correct.

55 Contrary to the contention raised by paragraph (b) of this Ground, it appears to me that the judge did have regard to the applicant's evidence that she had been in some discomfort when seated in the witness box. His Honour elicited that this was the situation when questioning her. Indeed, he gave her the clearest opportunity of telling him that she was in discomfort. He referred to her answers in his Reasons. It is unrealistic to imagine that, having done so, he rejected them. Rather, it remained the situation that, whatever discomfort the applicant had experienced, it did not appear to the judge, as observer, to be of major degree.

56 I turn to paragraph (c). I do not agree that the judge erred by taking account of his in-court observations of the applicant. Those observations, allied with the applicant's explanation of her discomfort, were consistent with the history which she had given to Mr Hunt and with her affidavit evidence. Their significance was as a practical demonstration - by contrast with what appeared on pieces of paper - of an activity in which she engaged every day; and this bore upon the seriousness of her impairment for her.

57 The judge, I have concluded, did accept the consequences of injury deposed to by the applicant and as described by Mr Hunt. There was no error in his Honour's fact-finding or in his approach in point of principle. Ground 1 then resolves itself into the contention that his Honour's ultimate conclusion - that is, that the applicant had not established that she was suffering from 'serious injury' - was plainly wrong. That involves consideration of the Mobilio test.

58 I am quite unable to say that the applicant has made out Ground 1. On the one hand, there was the pain and disability (including sleep difficulties), the limitations upon her daily activities and the restrictions upon recreations previously enjoyed, which the applicant described. There was also her relative youthfulness. On the other hand, there had been a dearth of medical treatment, very little medication, persistence in most daily activities, and continuation in employment - at times with long hours of work. I do not say that another judge, taking different account of elements of fact, degree and value judgment, might not have reached a contrary conclusion; and had that happened, an appeal by the Commission could have been expected to fail. But that is not to the point. In short, the applicant has not shown that the ultimate decision was 'plainly wrong', 'wholly erroneous' or 'patently untenable'.

59 As I have already said, I would grant leave to appeal, but dismiss the appeal.

60 For the reasons given by Ashley JA, I agree that leave to appeal should be granted but the appeal should be dismissed.

61 I have had the benefit of reading the reasons of Ashley JA, and I agree with them.

[1] There was passing mention also of disability affecting her lumbar spine.

[2] [1992] VicRp 58; [1992] 2 VR 129, 140 (Crockett and Southwell JJ).

[5] Just as a trial judge must do: Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; (2008) 20 VR 605, 610 [17]-[18] (Ashley JA).

[6] Mobilio v Balliotis & ors [1998] 3 VR 833, 858 (JD Phillips JA).

[7] Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 [79] (Tate JA); and see also the authorities cited by her Honour.

[8] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 [27] (Ashley JA).

[10] Ibid, 87-88 [17] (Winneke P), 89 [24] (Buchanan JA), 90 [28] (Chernov JA).

[11] Phelan v TAC [2012] VCC [40], [41], [43].

[12] Ibid, [14], [16], [37], [38].

[13] He cited Stijepic v One Force Group Aust Pty Ltd and Anor [2009] VSCA 181. See also Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; (2010) 31 VR 1, 7 [17] (Maxwell P), and the qualification expressed in Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA26 [78] (Tate JA).

[14] See, for instance, Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129, 137 (Crockett and Southwell JJ, and Bezzina v Phi and Anor [2012] VSCA 161 [23] (Harper JA and Beach AJA).

[16] Or, perhaps, because she had considered herself able to do so.

Phelan v TAC [2013] VSCA 306

At a glance

Court

Decision date

Before

Source

Judgment (102 paragraphs)

Phelan v TAC [2013] VSCA 306 (18 November 2013)

Parties

Legislation Cited (2)

Cases Cited (5)