Philippiadis v Transport Accident Commission [2016] VSCA 1

Court of Appeal (Vic)|2016-02-11|Before: Redlich JA, Kyrou JA

ACCIDENT COMPENSATION - Transport accident - Application for leave to appeal against orders made by a County Court judge refusing leave to commence proceedings for serious injuries - Aggravation of a pre-existing neck injury resulting from two separate accidents - Applicant and his wife gave viva voce evidence - Clinical notes and medical reports prepared by applicant's long-term treating general practitioner tendered by applicant - General practitioner not called - Inconsistencies between the evidence of the applicant and his wife and the clinical notes and medical reports of practitioner - Attention drawn to inconsistencies at commencement of proceedings - Applicant not questioned about inconsistencies in evidence in chief or cross examination - Whether the judge erred in rejecting the evidence of the applicant and his wife on the basis of the clinical notes and medical reports - Rule in (1894) 6 R 67 not infringed - Forensic decision by applicant's counsel not to call practitioner or seek explanation for inconsistencies from applicant - , followed - Whether the judge's reasons were inadequate - Test for leave to appeal from an order of the County Court - Application for leave to appeal refused - ; s 14C.

1 On 5 March 2015, a judge of the County Court dismissed two applications by the applicant, pursuant to s 93(4)(d) of the Transport Accident Act 1986 ('Act'), for leave to commence proceedings to recover damages for injuries suffered by him as a result of two transport accidents.[1] Those accidents occurred on 7 November 2008 and 3 February 2011, respectively.

2 Section 93(6) of the Act provides that a court must not give leave under s 93(4)(d) unless it is satisfied that the injury is a serious injury. Paragraph (a) of s 93(17) defines 'serious injury' as 'serious long-term impairment or loss of a body function'.

3 The applicant now seeks leave to appeal on the principal ground that the judge gave too much weight to the clinical notes of the applicant's general practitioner and failed to take into account the entirety of the evidence. The applicant's secondary ground is that the judge's reasons are inadequate.

4 For reasons that follow, we have concluded that the application for leave to appeal should be refused.

5 The applicant is 83 years of age. He was born in Greece and migrated to Australia in 1961.

6 In 1967, the applicant underwent a two level cervical fusion at C4-5 and C5-6 and from time to time he suffered exacerbations and recurrences of neck symptoms and headaches.

7 In 1982, the applicant was assaulted, suffering injuries to his lower back and head and was off work for seven weeks. After this incident he returned to work as a truck driver and continued in this job until 1986. While working as a truck driver, he fell off a truck and injured his left elbow.

8 In 1987, he obtained a disability pension for reasons not associated with disability from his neck or other physical injuries. Since 2004, he has been in receipt of an aged pension.

9 In 1991, the applicant qualified as a massage therapist. He commenced working as a masseur at a natural therapies clinic in Ballarat. In 1993, he married his second wife, who was the owner of the clinic. He assisted at two 'bed and breakfast' properties that his wife operated.

10 Dr Charles Lewis has been the applicant's general practitioner since at least 1999.

11 A CT scan taken in late 2002 showed disc degeneration above and below the 1967 fusion.

12 In 2004, the applicant developed carpal tunnel syndrome of the left hand. In June 2008, the syndrome also affected his right hand. The bilateral carpal tunnel syndrome at times caused pain in both wrists and forearms, which would interfere with his sleep. He was prescribed medication for the condition but not on a continuous basis.

13 The applicant had a history of low back pain, sciatica and arthritis of the right hip and right knee.

14 On 29 April 2008, the applicant attended Dr Lewis complaining of acute neck pain. There was tenderness at C4-5 and reduced range of movement. An x-ray revealed spondylosis above the cervical fusion with possible left C4 nerve root irritation. Dr Lewis prescribed Panadeine Forte tablets and Mobic. Both medications were discontinued after a short period because the applicant could not tolerate them.

15 On 7 November 2008, the applicant was driving his car when it was struck by an oncoming vehicle which was travelling on the wrong side of the road ('2008 accident' or 'first accident'). He felt immediate pain in his wrists, shoulders and neck, lower back and right knee and developed a headache. He was taken by ambulance to Ballarat Base Hospital, where he was assessed as being stable 'apart from some soft tissue tenderness around the cervical spine and [right] shoulder.' He was sent home that night. Four days later, the applicant consulted Dr Lewis, complaining of pain in the right side of his chest and pain on breathing. Two weeks later, he attended again, complaining of discomfort in the right buttock and soreness in the right knee and left elbow.

16 On 4 March 2009, Dr Lewis signed a medical certificate for the respondent listing his accident-related conditions as a soft tissue injury to his right shoulder, a soft tissue injury to the right side of the chest, an injury to the right pelvic/hip area and a soft tissue injury to the neck.

17 On 12 October 2010, the applicant underwent surgery for bilateral carpal tunnel syndrome.

18 On 3 February 2011, the applicant was involved in a second transport accident ('2011 accident' or 'second accident'). He was a front seat passenger in a stationary car when it was hit from behind. On 8 February 2011, he attended Dr Lewis complaining of pain in his neck, referred to his left shoulder, which kept him awake at night. A CT scan showed marked arthritic changes above and below the previous fusion at C4-5 and C5-6, with narrowing of the neural foraminae, especially at C3-4 and C4-5 bilaterally.

19 On 2 May 2011, the applicant told Dr Lewis that he was experiencing pain on his neck and down his arm. An x-ray of the cervical spine showed some anterolisthesis of C4 on C5. Dr Lewis prescribed Brufen and referred the applicant to a neurosurgeon, Mr Patrick Chan. Later that month, Dr Lewis prescribed Panadeine Forte and in June he prescribed Panadol Osteo.

20 Mr Chan saw the applicant in June and August 2011 and arranged for him to undergo two cervical nerve root injections. In mid-February 2012, the applicant informed Dr Lewis that, following the injections, his pain had improved.

21 In June 2012, the applicant's neck pain returned and, in November, Celebrex was prescribed. The neck pain remained a problem in December 2012.

22 In 2013, the applicant developed a foot drop on his right side due to a spinal canal stenosis, for which he occasionally wore a calliper. The foot drop resulted in the applicant sustaining some falls. One such fall, in May 2014, caused significant left shoulder pain. A subsequent ultrasound found a supraspinatus tear in his left shoulder. An x-ray showed arthritis of the left acromioclavicular joint.

Principles for establishing a 'serious long-term impairment'

23 The principles governing an application for leave pursuant to s 93(4)(d) of the Act were not in dispute either below or on the hearing of the application for leave to appeal, and may be briefly summarised.

24 Pursuant to para (a) of the definition of 'serious injury' in s 93(17) of the Act, the applicant has the burden of proving, on the balance of probabilities, that he or she has suffered an impairment or loss of a body function that, as a result of the infliction of the injury complained of, is both serious and long-term. In order to be 'serious', the consequences of the injury must be serious to the particular applicant in relation to either pecuniary disadvantage or pain and suffering, or both. Moreover, it must be established that the injury has produced an impairment or loss of body function which, when judged by a comparison with other cases in the range of possible impairments or losses, can be fairly described at least as 'very considerable' and certainly more than 'significant' or 'marked'.[2]

25 The test for determining whether an applicant for leave under s 93(4)(d) of the Act has suffered serious long-term impairment or loss of a body function is subjective in the sense that it is the effect on the particular applicant's body function that must be considered. That determination, however, must be objectively made: it is the judge's opinion as to the seriousness of the impairment or loss - not that of the applicant or his or her medical practitioners - that is decisive.[3]

26 In determining whether an applicant has suffered a serious long-term impairment or loss of a body function, it is impermissible to aggregate impairments or losses of different body functions. Each body function must be considered separately and a determination must be made as to whether that function has been impaired or lost and, if so, whether the impairment or loss is serious and long-term.[4]

27 Where a transport accident is said to cause an aggravation of an existing injury, the aggravation must satisfy the definition of 'serious injury' in the sense of producing a serious long-term impairment or loss of a body function. In assessing whether the definition is satisfied it is impermissible to take into account the cumulative effect of the pre-existing injury and the aggravation. Rather, an analysis must be made of the extent of impairment of the relevant body function before and after the relevant injury to determine the extent of the additional impairment that was caused by the injury. Where, as in the present case, there is more than one accident which is said to aggravate an existing injury, the aggravation resulting from each accident must be considered separately to determine whether it satisfies the definition of 'serious injury'.[5]

28 A stoic applicant who has been prepared to put up with pain and suffering and make the best of his or her situation should not be treated less favourably than an applicant who, being of less strength of character, simply resigns himself or herself to the injury.[6]

29 The applicant issued an originating motion on 26 June 2013 seeking leave pursuant to s 93(4)(d) of the Act to bring a common law proceeding for damages for pain and suffering in respect of injuries he sustained in the 2008 accident. He issued a similar originating motion on 7 July 2014 in respect of the 2011 accident. For both accidents, he relied on injuries to his neck, both shoulders and lower back. In both applications, he relied upon only para (a) of the definition of 'serious injury' in respect of impairment and loss of function of his neck, shoulders and lower back.

30 The applications were heard together by the judge on 3 and 4 February 2015. In his final address, senior counsel for the applicant confined each of the applications to an aggravation of the applicant's pre-existing neck condition. Accordingly, for each application, the issue before the judge was whether the consequences of the aggravation of the applicant's pre-existing neck condition were 'serious'.

31 We will refer to the aggravation of the neck injury resulting from the 2008 accident as 'the 2008 neck injury' and the aggravation of the neck injury resulting from the 2011 accident as 'the 2011 neck injury'.

32 The applicant relied on three affidavits sworn by him on 29 November 2013, 22 January 2014 and 12 January 2015, respectively, and an affidavit affirmed by his wife on 12 January 2015. The respondent did not file any affidavits.

33 In their affidavits, the applicant and his wife attributed most of the pain and suffering consequences to the 2008 neck injury.

34 In his affidavit sworn on 29 November 2013, the applicant relevantly stated:

In about 1967 I had a cervical fusion, performed by Mr Henry Crock. This settled reasonably well, and although I had occasional problems in my neck prior to the [2008] accident, and from time to time sought treatment for it, this was not a major problem.

...

Following the [2008] accident I had immediate pain in my wrists, shoulders and neck, lower back, right knee, and headaches. My doctor put me on pain killers - mainly Panadol Osteo.

...

After the [2010] wrist operation, and the knee had healed, I still had pain in my lower back and buttocks, but the most serious residual problem was the pain in my neck and shoulders, which has persisted, and is associated with headaches. I always have some pain which varies usually depending on activity. It can be extremely painful. The pain can become worse to the point where it is difficult to move my head. I get up during most nights because of the pain. I take Panadol Osteo and Voltaren for the pain. I am usually up for about an hour each night. I seldom have an unbroken night's sleep. During the day I experience bad headaches and at these times I sit down and try to relax, which eases the pain. I did not have this pain before the [2008] accident.

...

My neck is worse with more activity, or with particular movements. I find that if I lift my arm up or lift a weight it gets worse ... I used to do gardening at the back of our house and at [my wife's] bed and breakfasts, but largely have neglected this since the [2008] accident. I find it too difficult now to mow the lawn.

35 In his affidavit sworn on 22 January 2014, the applicant relevantly stated:

The impact in the first accident was [considerably] more severe than that in the second accident. As a result of the second accident I had an increase in neck and shoulder pain, particularly in the left shoulder, which appeared to last for a few months before the pain returned to the level which I was suffering before the second accident.

36 In his affidavit sworn on 12 January 2015, the applicant relevantly stated:

As a result of the 2008 accident I continue to have significant pain in my neck which is always present and which varies from background pain to being quite severe. Any problems I had with the neck previous[ly] by comparison were minor compared with the present pain and restrictions.

37 In her affidavit affirmed on 12 January 2015, the applicant's wife gave evidence that, after the 2008 accident, he complained of neck pain, had interrupted sleep and frequent headaches and that his gardening, massaging activities and sex life had decreased. She relevantly stated:

We married in 1993. [The applicant] is about 18 years older than I. He is very stoic and uncomplaining and in his pride as an older Greek man with a younger wife he has tried to hide his injuries and his incapacity from me.

From the time of the 2008 ... accident, [the applicant] has suffered badly from the pain, particularly in the neck and shoulder ...

I am aware that he underwent a cervical fusion in the 1960's. However up until the car accident I cannot recall him previously complaining of pain or appearing to have problems with his neck.

38 In addition to his three affidavits, the applicant gave oral evidence. We set out relevant parts of the oral evidence at [59] to [60] below.

Clinical notes of Dr Lewis and medical reports of Dr Lewis and other practitioners

39 The applicant tendered a number of medical reports, including medical reports dated 11 July 2010, 31 October 2010, 1 December 2010, 13 March 2011, 16 November 2013, 22 March 2014, 4 September 2014 and 18 December 2014 that were prepared by Dr Lewis. Dr Lewis's clinical notes for the period from 18 April 2000 until 4 June 2010 were attached to his report dated 11 July 2010. Further clinical notes for the period from 7 February 2009 until 29 April 2013 were tendered by the applicant.

40 According to the clinical notes, between the 2008 and 2011 accidents, the applicant consulted Dr Lewis on approximately 14 occasions and the only references to the applicant's neck are in the clinical notes for the consultations on 4 March 2009 (when Dr Lewis signed a medical certificate for the respondent)[7] and 21 January 2011.

41 In addition to Dr Lewis's reports and clinical notes, each party provided to the judge an 'aide memoire' which summarised chronologically aspects of the applicant's medical condition and treatment based on Dr Lewis's clinical notes.

42 Set out below is a brief summary of the medical reports tendered by the parties. The summary is substantially based on the judge's reasons.

43 In a report dated 11 July 2010 to the respondent, Dr Lewis stated that the soft tissue injury of the neck which the applicant suffered in the 2008 accident did not appear to have worsened his pre-existing neck problem.

44 In a report dated 31 October 2010 to the applicant's solicitors, Dr Lewis stated:

The current clinical and functional status of [the applicant's] conditions is as follows:

Myositis ossificans - gets occasional aching in one or the other buttock, and his driving time is limited to one hour.

The soft tissue injury of the neck does not appear to have worsened his pre existing neck problem.

His right shoulder pain flares from time to time.

Soft tissue injury of the right side of the chest ─ settled.

Carpal tunnel syndrome ─ much improved since carpal tunnel release procedures were performed on the 12/10/2010.

45 In his report dated 16 November 2013 to the applicant's solicitors, Dr Lewis stated:

On the 21/01/2010[8] [the applicant] complained of a sore muscle in the left side of the neck, seeming to him to come from the shoulder.

... Since [the 2011] accident, he had suffered pain in the neck referred to his left shoulder. The pain had kept him awake at night. A CT scan showed the previous fusion from C5 to 7, marked arthritis changes above and below this, with narrowing of the neural foraminae especially at C3─4, and C4─5, bilaterally.

On the 2/5/2011 he presented with pain to the left of C4 with some pain down the arm, normal power in the arm, but with reflexes more responsive in the right arm than the left. An x-ray of the cervical spine with functional views showed some anterolisthesis of C4 on C5. Brufen was prescribed on the 6/5/2011 and he was referred to a neurosurgeon for an opinion. Panadeine forte was prescribed on the 19/5/2011 and panadol osteo on the 28/6/2011.

When he presented on the 15/2/2012 he had cervical nerve root injections and his pain had improved.

On the 14/3/2012 panadol osteo was prescribed.

On the 13/6/2012 his neck pain was returning.

On the 23/11/2012 celebrex was prescribed.

His neck pain remained a problem on the 10/12/2012 and the 15/1/2013. He was referred to Mr Chan again on the 13/12/2012.

More recently [the applicant] has been affected by a spinal canal stenosis with a foot drop on the right side, for which he must wear a caliper. He has had back problems with sciatica in the past, before the motor car accident of 2008, and low back pain was not mentioned as a complaint after the accidents of 2008 and 2011.

His neck pain can be expected to be an ongoing or recurrent problem. There is a possibility that surgery may be required to relieve his symptoms.

His carpal tunnel syndrome does not appear to have been cured by his surgery. His symptoms may continue, although he has not complained of them to me for some time.

46 In his report dated 22 March 2014 to the applicant's solicitors, Dr Lewis stated that, after the 2008 accident, the applicant complained about pain in the left shoulder more than pain in the neck and that it felt to him that the neck pain was coming from the shoulder. However, after the 2011 accident, the applicant felt that the pain was different, starting in the neck and referred to the left shoulder and left anterior chest. It was after the 2011 accident that the applicant's neck pain, which was described as referred to the shoulder, became his main complaint and that the neck and shoulder pain became severe enough to warrant referral to Mr Chan. The bilateral carpal tunnel syndrome had continued despite the surgery on 12 October 2010 and the applicant had arthritis in both shoulders. It was reasonable to expect that the applicant would have ongoing pain in the neck and both shoulders. The applicant would gain temporary relief from further injections of cortisone to the neck. Although the applicant had sciatica and a right footdrop, he regarded his neck and shoulder pain as the main factors limiting his massage work.

47 In his report dated 4 September 2014 to the applicant's solicitors, Dr Lewis stated that the applicant continued to have left-sided neck and bilateral shoulder pain and was taking medication for his pain.

48 In his final report dated 18 December 2014 to the applicant's solicitors, Dr Lewis stated that the applicant had told him that hydrotherapy had improved his neck, which felt stronger, and that he could turn his neck to the left with less pain. On examination, the applicant could rotate his neck 70 degrees to the left. Dr Lewis predicted that both the neck and shoulder problems were likely to be ongoing with occasional exacerbations of pain.

49 In a report dated 26 May 2014 to the applicant's solicitors, Mr Chan recorded that the applicant described left-sided neck pain that radiated into his left shoulder since the 2008 accident. There was no reference in the report to the 2011 accident. Mr Chan noted that clinical examination showed a good range of neck flexion with neck extension exacerbating the pain and left lateral flexion and rotation of the neck further exacerbating the pain. A CT scan taken in February 2011 and an x-ray taken in May 2011 showed significant facet arthropathy and disc desiccation at C3-4 and C4-5 levels. There was severe bilateral foraminal stenosis at those two levels and anterolisthesis at C4-5 level worse with flexion. An MRI taken in mid-August 2011 showed that there was severe adjacent segment bilateral foraminal stenosis at C3-4 and C4-5 level and mild ventral listhesis at C4-5 level. Mr Chan stated that his impression was that the applicant had exacerbation of mechanical axial pain and left C4 and left C5 radicular pain related to exacerbation of the underlying adjacent segment degeneration by 'the accident'. When he last saw the applicant on 23 August 2011, the prognosis was fair.

50 Dr Anthony Capes, an occupational health physician, provided a medico-legal report dated 15 February 2011 to the applicant's solicitors. The report only mentioned the 2008 accident. On examination, Dr Capes found that neck movements were reduced, especially lateral flexion, and the applicant was tender over the left side of the low cervical spine. Dr Capes was of the opinion that the applicant had aggravated and possibly accelerated cervical and lumbar disc degenerative disease.

51 Mr Michael Shannon, an orthopaedic surgeon, provided a medico-legal report dated 22 July 2011 to the respondent. The report did not refer to the 2011 accident. Mr Shannon found that the applicant had quite a good range of cervical flexion, but other movements were significantly restricted, particularly lateral flexion and rotation, and moderate restriction of movement of the left shoulder. He considered that, as the applicant's neck was symptomatic prior to that accident and neurological examination did not indicate any objective evidence of radiculopathy, the 2008 accident had resulted in temporary aggravation of the underlying cervical disc degeneration.

52 Mr Thomas Kossmann, an orthopaedic surgeon, provided a medico-legal report dated 13 July 2012 to the applicant's solicitors. The report mentions only the 2008 accident. His diagnosis was of pain and movement restrictions in the cervical spine. He considered that the applicant had suffered injuries in the 2008 accident but his report did not analyse the cause of the neck symptoms. He stated that the applicant was suffering from pain in the cervical and lumbar spine, both of his shoulders, both of his elbows and both of his wrists and that it was likely that the applicant would suffer from pain in these areas for the rest of his life.

53 Mr Rodney Simm, an orthopaedic surgeon, provided a medico-legal report dated 28 October 2013 to the respondent. The applicant referred to both accidents and his main complaint was pain on the left side of the neck, over the top of the left shoulder and into the left pectoral region. On examination, Mr Simm found moderate restriction of cervical movement in all directions with complaints of tightness and discomfort at extremes of movement but no particular tenderness to palpation. In his opinion, as a result of the 2008 accident, there was evidence that the applicant suffered a soft tissue injury to the neck, soft tissue injury to the right shoulder or, alternatively, referred pain to the right shoulder from the neck and soft tissue injuries to his right knee and right chest wall.

54 Mr Simm stated that the applicant had residual symptoms in the cervical spine but they had been present since the 1960s and it was not possible to determine whether there had been any influence on his long-standing condition as a result of the 2008 accident. He considered that, as a result of the 2011 accident, the applicant suffered an extension injury to the cervical spine with an exacerbation of his long-established cervical condition, and with either referred pain or a soft tissue injury to the left shoulder. He was of the opinion that the cervical diagnosis was multi-level degenerative cervical pathology in association with the fusion undertaken in 1967, that neither the 2008 nor the 2011 accident changed the structural pathology, and that the applicant had a substantial impairment of the cervical and lumbar spines and moderate impairment from degenerative rotator cuff pathology to the left shoulder.

Submissions of counsel and oral evidence of applicant

55 In his opening address, senior counsel for the applicant, Mr Walters QC, referred to Dr Lewis's report dated 11 July 2010 and drew attention to his conclusion that '[t]he soft tissue injury of the neck does not appear to have worsened [the applicant's] pre-existing neck problem'. Mr Walters then stated: 'we anticipate that there may be something that our friends make of that'.

56 In his opening address, senior counsel for the respondent, Mr Scanlon QC, stated:

My learned friend quite properly says an observation by the general practitioner might cause us some interest. It certainly does when the general practitioner says that the condition of the neck does not appear to have worsened [the applicant's] pre-existing neck problem, and that goes to the very core of the case.

57 After he commenced cross-examining the applicant, Mr Scanlon referred to the respondent's aide memoire and stated that that document would 'reduce the cross-examination significantly'.

58 Mr Walters agreed that the respondent's aide memoire would foreshorten the cross-examination because there was no dispute that it referred to matters in Dr Lewis's clinical notes. Mr Walters noted that the respondent's aide memoire was not 'complete in all respects' and that the primary evidence was the clinical notes rather than the aide memoire.

59 Mr Scanlon cross-examined the applicant largely by reference to the respondent's aide memoire rather than Dr Lewis's clinical notes. He did not put to the applicant the adverse conclusions in Dr Lewis's reports or any adverse inferences arising from Dr Lewis's clinical notes about the impact of the 2008 accident on the applicant's pre-existing neck injury. The focus of the cross-examination was the impact on the applicant of medical conditions other than the injury to his neck, for the purpose of demonstrating that it was those other conditions, rather than the neck injury, which restricted the applicant's bodily functions. This is illustrated by the following exchange between Mr Scanlon and the applicant:

Did you have a number of falls because of your foot drop or your toes catching on the floor? - - - Well, my toe touching on the ground, yes.

And the foot drop is caused by, as you understand it, a problem with your low back? - - - Yes.

So with your low back and your foot drop and the need to [wear] a calliper, that has a big effect on your ability to garden, doesn't it? - - - It does but mostly the gardening is - I don't do anything because I have a friend Bill who does it for me and just I cannot do any gardening.

I am not speaking across you - - - ? - - - anymore.

We may just be [at] cross-purposes. It will be my fault. But what I am saying to you is that with your low back problem, with your foot drop and your calliper, that that makes it hard for you to garden, doesn't it? - - - Yes.

That makes it impossible, doesn't it, for you to do home repairs or renovations, is that right? - - - I don't do that thing.

Sorry? - - - I don't do that thing, renovations.

...

So with those problems that you have, sadly, that affects the way you can do things around the house? - - - Very little.

Exactly? - - - I do very, very little.

I understand you do very little but you do very little, you couldn't do much with your back and your wrists and your foot drop. It is hard for you to do these things, isn't it? - - - It is, yes.

And so the amount of work that you do in the massage, I suggest to you, is also affected by your low back, your foot drop, and your wrists, is that right? - - - Yeah.

60 During cross-examination, Mr Scanlon used Dr Lewis's clinical notes to ask the applicant whether, on specific days, he suffered from particular pain or whether particular procedures were undertaken or medications were prescribed. Where the applicant did not remember, he said, in substance that, if the clinical notes stated that something occurred, he would agree.

61 In his re-examination of the applicant, Mr Walters focussed on the causal relationship between the 2008 accident and the problems associated with the applicant's neck.

62 In his closing address, Mr Scanlon placed primary reliance on Dr Lewis's medical reports. He said the following:

The general practitioner who must know [the applicant] the best of all of the medical examiners, once he opines that the soft tissue injury of the neck does not appear to have worsened his pre-existing neck problem then that we say is the end of the case full stop. He has known him for a long time. ... [N]o other doctor - except for the defendant's doctors even know about the second accident.

...

We say that you'd look no further than the general practitioner who says that these age related conditions, or the neck condition has not been aggravated by the [2008] accident, and he's in the driver seat to make the assessment, someone who's been seeing [the applicant] for years before his accident.

63 In his closing address, Mr Walters submitted that the application relating to the 2008 accident was stronger than the application relating to the 2011 accident. The following relevant exchange took place between him and the judge:

MR WALTERS: In my submission the stronger case is in respect of the first accident, and the reason for that is that Dr Lewis refers the patient to an expert, Mr Chan who is given the information about the two accidents, but also takes a history from [the applicant], and he as a treating expert attributes it to the first accident. Now, we think that's the stronger position. It's unsatisfactory obviously, because there isn't unanimity.

...

HER HONOUR: But on what I've read and considered so far, there's not strong enough evidence here that each car accident distinctly caused enough worsening of the condition, and consequences from it for there to be a serious injury caused in both. I understand the proposition of not wanting to fall between two stools. The great difficulty is the legislation and the law about it ... which I have to apply, whether it results in someone falling between two stools, or not unfortunately.

...

HER HONOUR: But you're stuck with [Dr Lewis's] reporting ... before the second accident that the acknowledged soft tissue injury to the neck does not appear to have caused long term impact on the - I forget his wording now - but the - - -

MR WALTERS: Doesn't appear to have made it worse.

HER HONOUR: It hasn't aggravated the long term condition.

MR WALTERS: Yes, we are stuck with that. But by the time he's making a letter of referral to Mr Chan, he is - as it were - resiling from that and saying that he's had pain since the accidents, and there [have] been two accidents and this is what happened, and 'you're the expert'.

...

MR WALTERS: We wanted to say a few things if we could just about clinical notes or progress notes, nothing that's particularly controversial, but of course progress notes can be of assistance but in the end they're necessarily truncated and interpreting them without the maker being called to explain them does have difficulties, and they're not intended to be and are not in fact a complete record.

64 The judge made the following observations about the reliability of the applicant's evidence:

In this case my impression was that [the applicant] was genuinely trying to tell the truth as he recalls it and from his perceptions, but not always reliable in those memories or perceptions.

I took into account that although [the applicant] speaks creditable English and made his affidavits and gave oral evidence without an interpreter, English is not his first language, and it was apparent that he did not always understand what he was being asked. ... I made allowance for these circumstances, in relation to answers he gave when I did not think he had understood the question fully, and did not attribute to him any deliberate avoidance or prevarication in answering.

My impression was that [the applicant] is a reasonably stoic and determined man, who was not deliberately exaggerating or embellishing what he had to say about his injuries or their impact on his life. I thought that his wife's description of his attitude to his injuries was accurate - that he is a proud man who does his best to keep the extent of his suffering to himself, or at least not to show her. Nevertheless, when considered objectively and compared with other evidence, his perceptions of some matters appeared less reliable.[9]

65 In relation to the applicant's 2008 neck injury, the judge relevantly stated:

In 1967 [the applicant] underwent major surgery on his neck - a two level cervical fusion at C4-5 and C5-6. ... [A]fter a recovery period [this] settled well, enabling [the applicant] to return to full-time work. Despite his wife's evidence that she had never known him to suffer or complain of neck problems before the first accident, I am satisfied from medical attendances that from time to time he would suffer exacerbations or recurrences of neck symptoms, and at times headaches. In December 2002 in an attendance on his GP after a CT scan of his cervical spine, there were 'A lot of concerns', discussion of CT showing disc degeneration above and below the neck fusion, and whether symptoms in his arms could be from his neck. Nevertheless, each of those previous exacerbations had apparently settled in time, and although for such episodes he had been prescribed medication, he did not take either painkilling or anti-inflammatory medication on a long-term basis.

...

At age 78, and despite a number of long-term health issues, [the applicant] was leading a relatively active life and enjoying it. He would drive his car some distances, including to Melbourne to visit his son and grandchildren, perform massages at his wife's business, assist in her bed and breakfast property next door to their home, and enjoyed gardening especially keeping a large vegetable garden. He and his wife say that they also still enjoyed an active sex life together.

...

The [applicant] says that since the first accident his neck has remained painful, although the pain has been eased at times with medication, that he has needed more medication for longer, and he has more frequent headaches and virtually nightly interruption of sleep. However, the notes of his general practitioner's clinic do not bear out that the neck pain was a constant problem from November 2008 even if at varying levels. On the contrary, the notes reflect that other conditions, as well as other injuries suffered in the first accident, were the subject of most visits to the doctor, from the initial right side of chest or rib pain, to right buttock, and knee, to the carpel tunnel condition's worsening. While neck pain was initially reported, and repeated with other injuries on 4 March 2009 (when the main reason for the attendance was for a TAC certificate to enable him to get his glasses replaced from the accident), it did not feature much further until a report on 21/1/10[10] of a sore muscle in the left side of the neck. There was no referral to a specialist for his neck until after the second accident.

In my view of particular significance is that as of July and October 2010, Dr Lewis was reporting that the soft tissue injury to [the applicant's] neck did not appear to have worsened his pre-existing neck problem.

None of the other medical opinions, except that of Mr Simm, reflect knowledge that there had been two transport accidents, so they do not differentiate the effects of a neck injury suffered in the first accident from those of the second accident. ...

Also relevant are the other conditions which were impacting on the [applicant's] life and ability to engage in his previous activities. In an entry in the GP's notes for January 8, 2010, the reason for contact was a care plan, with diet and lifestyle discussed, and it was noted that he was limited with physical activity due to sciatica and pain in right shoulder and hands. There was no mention of his neck condition as contributing to limiting his physical activities.

...

I find that [the applicant] has been more limited in his activities since the first accident ...

However, I am not satisfied that the neck injury suffered by [the applicant] in the first accident caused most or all of this impairment of his activities or even substantially contributed to them, when the role and symptoms of the other injuries from the accident and conditions from which he suffered are considered, including the bilateral carpel tunnel, seeming to have been much more significant in their symptoms and disabling effect during the period between the first and second accident.

I accept that [the applicant] genuinely believes that since the first accident he has had symptoms which have significantly limited him from engaging in activities he could previously still manage, such that he feels that they have significantly impacted on his enjoyment of life. However, I must view only the consequences of his neck injury suffered in the first accident when deciding on his application in respect of that accident. When the limited reports of neck symptoms to his general practitioner in the period between the two accidents is taken into account, his general practitioner's view that the injury did not appear to have worsened his pre-existing neck condition, and compared with the degree to which other conditions were troubling him as reported to his doctor, I consider that objectively they do not bear out his subjective perception of the origin of the symptoms that now impair his lifestyle. Undoubtedly, his subjective view is probably affected by reconstruction of events in his mind, and also by the combination of injuries and conditions that have impacted on his lifestyle since the first accident.

I do accept that the neck injury from the first accident caused him pain, and contributed to headaches and loss of sleep, and that he has needed medication to reduce or relieve them. I am not satisfied however, despite [the applicant] believing it to be so, that these symptoms became constant as opposed to intermittent following the first accident, and I make this finding based on the GP clinic records and Dr Lewis' reports about [the applicant's] condition in the period between the two accidents. All of those symptoms had previously been suffered by him from time to time, required medication to relieve them, and were sometimes acute when exacerbations of his neck condition occurred. On these findings, I am not satisfied that the degree to which his neck symptoms and their impact on his life were worsened by the first accident can fairly be described as more than significant or marked and at least very considerable.[11]

66 In relation to the applicant's 2011 neck injury, the judge relevantly stated:

I am satisfied that there has been some long-term worsening of the [applicant's] neck symptoms, his pain, headaches and the interruption of his sleep now being virtually nightly. This is reflected in the GP clinical notes, as well as Dr Lewis' reports.

However, the [applicant's] evidence and his wife's is that the reduction in his capacity to engage in gardening, driving without breaks, and performing massages, had occurred before the second accident.

In light of the [applicant's] evidence that the impairment on his ability to engage in previous activities to the same extent occurred before the second accident and following the first accident, it is difficult for the [applicant] to discharge his onus of proving that the extent of worsening caused by the neck injury in the second accident meets the level of seriousness required to satisfy the definition. There is only Dr Lewis' evidence that neck symptoms reported have been more frequent and have warranted further medical treatment including specialist opinion and cortisone injections, and may require further injections in the future.

Based on the evidence including the [applicant's] own, I am not satisfied that the injury to his neck suffered in the second accident, taking into account only the consequences of the aggravation or worsening of his neck condition, and disregarding the consequences of other injuries or co-existent medical conditions, can fairly be described as more than significant or marked and as at least very considerable.[12]

67 The applicant's application for leave to appeal relied on three proposed grounds of appeal. At the hearing of the application, ground 2 was abandoned. The extant grounds are as follows:

The learned judge erred in the exercise of her discretion in refusing to grant leave to bring common law proceedings under s 93(4)(d) of the [Act] by failing to take into account the entirety of the evidence and by giving too much weight to medical clinical notes (Reasons for Judgment at [11], [70], [73], [79] & [80]) in preference to other evidence, particularly in circumstances where her Honour accepted that the applicant:

(a) was genuinely trying to tell the truth as he recalled it;

(b) was reasonably stoic and determined and was not deliberately exaggerating or embellishing what he had to say about his injuries or their impact on his life;

(c) was a proud man who does his best to keep the extent of his suffering to himself;

(d) spoke English as his second language and this impacted upon his comprehension and vocabulary; and

(e) prior to the 2008 ... accident the applicant had led a relatively active life for his age, despite his pre-existing injuries.

...

The learned judge's reasons are inadequate. In particular, they contain bare conclusions and fail to:

(a) provide an intelligible explanation of the process of reasoning that led her from the evidence to the findings and from the findings to the ultimate conclusion; and

(b) in giving reasons which deal with the substantial points that were raised, explain why that evidence or material was rejected.[13]

68 At the hearing of the application for leave to appeal, there was some debate as to whether the application was governed by:

(a) the 'real prospect of success' test in s 14C of the Supreme Court Act 1986; or

(b) the Niemann[14] test, namely, that the decision below is attended by sufficient doubt to justify the grant of leave to appeal and that substantial injustice would be caused if such leave were refused.[15]

69 This Court has considered this issue in a number of cases without resolving it.[16] It is not necessary for us to resolve it in the present case, as we have concluded that the applicant has failed to satisfy either of the tests.

70 At the hearing of the application for leave to appeal, the respondent submitted that, insofar as the application related to the 2011 neck injury, it should be refused because neither the grounds of appeal nor the applicant's written submissions dealt with that injury. The applicant properly conceded that, considered in isolation, the material before the Court that relates to the 2011 neck injury was insufficient to warrant the grant of leave to appeal. However, the applicant submitted that, if leave to appeal were granted in relation to the judge's decision concerning the 2008 neck injury and that appeal were successful, the appropriate order would be to remit both proceedings for re-hearing by the County Court. This was said to be because the proceedings were heard together and were the subject of a single set of reasons which were infected with error.

71 As we have concluded that leave to appeal should be refused in respect of the judge's decision concerning the 2008 neck injury, there is no basis for granting leave to appeal in respect of her decision concerning the 2011 neck injury. Accordingly, we will discuss the 2011 neck injury only insofar as it relates to the challenge to the decision concerning the 2008 neck injury.

Ground 1: Did the judge fail to take into account the entirety of the evidence?

72 The applicant submitted that the judge erred in preferring the clinical notes and medical opinions of Dr Lewis to the evidence that he and his wife had given having regard to the following considerations:

1. The applicant's evidence was that most of the pain and suffering consequences resulted from the 2008 neck injury. He was not directly cross-examined on the parts of his affidavits that attributed those consequences to that injury. Further, Dr Lewis's clinical notes and medical opinions were not put to him in cross-examination.

2. The judge found that the applicant: was genuinely trying to tell the truth as he recalled it; was reasonably stoic and determined and was not deliberately exaggerating or embellishing what he had to say about his injuries or their impact on his life; and was a proud man who did his best to keep the extent of his suffering to himself.

3. The judge also found that, prior to the 2008 accident, the applicant had led a relatively active life for his age, despite his pre-existing injuries.

4. The applicant's wife gave evidence that, after the 2008 accident, he complained of neck pain, had interrupted sleep, had headaches, and his gardening and massaging activities decreased as did their sex life. She also said that the applicant was a proud man who tried to hide his injuries and his incapacity from her.

5. The applicant's wife was not cross-examined and therefore her evidence was unchallenged.

6. Dr Lewis was not called to give evidence.

73 According to the applicant, as his wife's evidence was unchallenged and the judge found him to be a witness who was genuinely trying to tell the truth as he recalled it, a proper consideration and weighing up of the entirety of the evidence would have resulted in a finding that the pain and suffering consequences of the 2008 neck injury satisfied para (a) of the definition of 'serious injury' in s 93(17) of the Act. The judge failed to make such a finding, so it was said, because she gave undue weight to the clinical notes of Dr Lewis without giving proper consideration to the entirety of the evidence.[17]

74 The applicant submitted that the judge erred in relying on the absence of any record in Dr Lewis's clinical notes of a complaint by him of neck pain resulting from the 2008 accident for a lengthy period after that accident in support of her finding that, contrary to the evidence of the applicant and his wife, he did not suffer constant neck pain from the time of the 2008 accident. That finding was said to be a crucial underpinning of the judge's conclusion that the 2008 neck injury did not satisfy the definition of 'serious injury'. The applicant submitted that the absence of recorded complaints could be attributable to his stoicism, which the judge accepted, or the failure by Dr Lewis to record each and every complaint that the applicant made. The applicant contended that it would not be unusual for a doctor who regularly sees a patient for the same ailments not to make a record of those ailments in the clinical notes for each of the patient's attendances.

75 The applicant also submitted that the judge erred by drawing an inference from Dr Lewis's clinical notes that should not have been drawn. That inference was that the applicant did not suffer from constant neck pain after the 2008 accident. According to the applicant, there were seven reasons why the inference should not have been drawn. The first two reasons were that the inference was inconsistent with the evidence of the applicant and his wife. The third reason was that the absence of references to neck pain in the clinical notes could have been due to the applicant's stoicism. The fourth reason was that the clinical notes did not positively state that, after the 2008 accident, the applicant's neck pain had ceased. The fifth reason was that there was no evidence from Dr Lewis about his record-keeping practices, particularly in relation to the contents of his clinical notes. The sixth reason was that the judge erred in failing to have regard to the evidentiary difficulties associated with clinical notes.[18]

76 The seventh reason was that, if the judge proposed to reject the evidence of the applicant and his wife on the basis of Dr Lewis's clinical notes, it was incumbent on her to raise this possibility during the hearing. The applicant also submitted that the judge should have been wary of drawing such an inference in the light of the respondent's failure to put to the applicant Dr Lewis's clinical notes and reports during cross-examination. According to the applicant, the judge acted unfairly in drawing the impugned inference. Following discussion with the Bench, the applicant clarified that he was relying on the rule in Browne v Dunn.[19]

77 The respondent submitted that it was evident from the judge's reasons that she considered all the relevant evidence. It emphasised that applications under s 93(4)(d) of the Act involved questions of fact, degree and value judgment[20] and that in the present case, the judge correctly gave considerable weight to the contemporaneous clinical notes and progressive opinions of Dr Lewis who, as the applicant's long-term general practitioner, had the opportunity of observing him both before and after the two accidents.

78 The respondent contended that, in the circumstances that prevailed at trial, it was not necessary for its trial counsel, Mr Scanlon, to put to the applicant the medical reports and clinical notes of Dr Lewis. This was said to be because the inconsistency between the evidence of the applicant and his wife and the observations and opinions of Dr Lewis was a live issue at trial and one that the applicant's counsel was aware had to be dealt with by the applicant. According to the respondent, the rule in Browne v Dunn was not infringed as no unfairness to the applicant resulted.

79 As the parties' submissions raised for consideration the applicability of the rule in Browne v Dunn, we will summarise the scope of that rule before setting out our conclusions on ground 1.

80 In Browne v Dunn, Lord Herschell LC held that, if a party intended to 'impeach a witness' - that is, to suggest that a witness was 'not speaking the truth on a particular point' - the party was bound to give that witness notice of the imputation intended to be made and an opportunity to make any explanation which was open to him or her.[21] Similarly, Lord Halsbury held that it was impermissible for a party to ask a jury to 'disbelieve' a witness if, during cross-examination, 'not one question has been directed either to their credit or to the accuracy of the facts they have deposed to'.[22]

81 In MWJ v The Queen,[23] Gummow, Kirby and Callinan JJ stated that the rule in Browne v Dunn was 'essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit'.[24]

82 A number of decisions of this Court have given the rule in Browne v Dunn a wider ambit. For example, in Reza v Summerhill Orchards Ltd,[25] Kyrou AJA (with whom Warren CJ and Harper JA agreed) stated that the rule 'broadly requires that any matter upon which a party proposes to rely to contradict the evidence of a witness must be put to that witness'.[26] Similarly, this Court has repeatedly endorsed the principle that it is necessary to put to an opponent's witness, in cross-examination, the nature of the case upon which it is proposed to rely in contradiction of that witness's evidence.[27]

83 The rule in Browne v Dunn rests upon notions of fairness.[28] The primary justification for the rule is to provide the other party, relying upon the witness, the opportunity to call evidence to support the witness's account, or to contradict any contrary inference sought to be drawn.[29]

84 The rule in Browne v Dunn has two aspects. Its first aspect is 'a rule of practice or procedure designed to achieve fairness to witnesses and a fair trial between the parties'.[30] Its second aspect is a 'rule relating to weight or cogency of evidence'.[31]

85 In relation to the first aspect, this Court has endorsed the proposition that non-compliance with the rule in Browne v Dunn will 'not always be a reason for setting the decision aside on appeal' and that, instead, an appellate court must take into account all of the circumstances so as to see whether the conduct of the trial was in fact unfair to the appellant.[32]

86 In relation to the second aspect, in MWJ v The Queen, Gummow, Kirby and Callinan JJ stated that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with the rule in Browne v Dunn.[33] Notwithstanding this, non-compliance with the rule does not mean that the evidence led in contradiction of the relevant witness's evidence cannot be considered. Instead it is a matter of weight for the court to take into account.[34] If a witness is not cross-examined upon a particular matter in relation to which he or she has given evidence, then that circumstance will often be a very good reason for accepting the witness's evidence upon that matter. However, if a witness's evidence appeared to be incredible or unconvincing, or if it was contradicted by other evidence which appeared worthy of credence, the fact that the witness had not been cross-examined would, or might, be of little importance in deciding whether to accept his or her evidence.[35]

87 In considering the above two aspects of the rule in Browne v Dunn, courts should bear in mind the following observation made by Gummow, Kirby and Callinan JJ in MWJ v The Queen:

Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put.[36]

88 Although the matter has not been decided by this Court, appellate authority supports the proposition that the rule in Browne v Dunn does not preclude a judge from making a finding against a party-witness based on inconsistencies between their evidence and other evidence that they lead at trial, notwithstanding that they were not cross-examined in relation to those inconsistencies.

89 In WAQ v Di Pino,[37] the Queensland Court of Appeal considered a credit finding made by a trial judge against a plaintiff on the basis of internal inconsistencies in the plaintiff's evidence and inconsistencies with other evidence that she tendered at trial. On appeal, the plaintiff submitted that the judge had erred in disbelieving her evidence in relation to certain issues in the absence of being cross-examined on those issues. The Court rejected this submission and dismissed the appeal. Gotterson JA, with whom Fraser JA and Mullins J agreed, relevantly stated:

The [plaintiff's] submissions involve a proposition that the learned Judge could not resort for any purpose to any of the information within the documents which contradicted the [plaintiff's] evidence otherwise given, unless the [defendant] had cross-examined her or, where appropriate, witnesses called in her case, on the contradiction. I cannot accept that proposition as a true statement of the law. No authority was cited by the [plaintiff] for it. Where there is divergence within the evidence led by a party, the responsibility lies with the party leading it to explain the divergence. That party may not refrain from explaining the divergence with the comfort that it will have no forensic utility unless cross-examined upon by the party against whom the divergent evidence is led.[38]

90 Similarly, in Watkins v Valley View Poultry Pty Ltd,[39] the New South Wales Court of Appeal considered a finding of a trial judge in a personal injury case that the plaintiff's medical evidence was marked by contradictions and uncertainties in history. These inconsistencies emerged from a number of doctors' reports tendered by the plaintiff. On appeal, the plaintiff implicitly relied on the rule in Browne v Dunn and submitted that before the judge was entitled to act upon the inconsistencies in the histories referred to in the reports, he was bound to ensure that opposing counsel had challenged the plaintiff upon each of the inconsistencies.

91 The Court rejected these submissions. Clarke JA, with whom Meagher and Sheller JJA agreed, relevantly stated:

If [the plaintiff] presents a case which contains within it a significant number of inconsistencies and contradictions and does not seek to explain these problems either by oral evidence or any other appropriate form of explanation, it does not sit happily in her mouth to complain about the [defendant] failing to bring to the [plaintiff's] own attention that of which she, or at least her legal representatives, should have been well aware.

...

[I]t was well open to his Honour in the light of the contradictions and inconsistencies to find himself unable to be satisfied that he could rely on the [plaintiff's] evidence as accurate and reliable. I do not think that his Honour was disqualified from taking that course because the attention of the [plaintiff] was not drawn to the inconsistencies in her own case, most of which had existed prior to the commencement of her oral evidence, because, as the party bearing the onus, it was her obligation to bring before the court the case upon which she wished to rely which was either clear or in respect of which any difficulties were met one way or another. No doubt she may have been unable to explain all the contradictions and inconsistencies but if she could not they remained as weaknesses in the case she was presenting to the court. I don't think in the circumstances of this case there was any obligation upon counsel for the [defendant] to ask questions to put her house in order.[40]

93 We will first consider whether the respondent's failure to put to the applicant Dr Lewis's clinical notes and reports during cross-examination constituted a breach of the rule in Browne v Dunn and whether, as a result of any such breach, the judge was wrong to place substantial reliance upon them. This issue was raised by the seventh reason upon which the applicant relied in support of his contention that the judge should not have inferred from the clinical notes that he did not suffer from constant neck pain after the 2008 accident.[41]

94 In our view, it cannot be sensibly contended that any aspect of the rule in Browne v Dunn was infringed in the present case. No unfairness was occasioned by the respondent failing to put to the applicant Dr Lewis's clinical notes and reports so that he could have the opportunity of giving evidence as to their accuracy and reliability and as to any inconsistency between them and his evidence-in-chief. As such, the judge was not required to moderate the weight she gave to the clinical notes and reports. Our reasons for these conclusions follow.

95 As discussed at [80] to [91] above, breaches of the rule in Browne v Dunn usually occur where the adverse evidence that was not put to a witness for a party is subsequently adduced by the opposing party. In the present case, the adverse evidence, namely Dr Lewis's clinical notes and reports, was tendered by the applicant himself. The contents of the tendered notes and reports, in effect, constituted Dr Lewis's evidence in chief. The inconsistencies between the evidence of the applicant and his wife on the one hand and Dr Lewis's clinical notes and reports on the other hand were recognised as a key issue from the outset of the trial. Indeed, in his opening address, senior counsel for the applicant anticipated that the respondent would rely on Dr Lewis's clinica[42]notes and reports.42 There was nothing subtle or indirect about the adverse inference that could be drawn and the findings that could be made based on Dr Lewis's clinical notes and reports.

96 As the applicant was well aware of the adverse evidence at the commencement of the trial, it was a matter for him to advert to any inconsistency between that evidence and his own. His counsel made a forensic decision not to put the inconsistencies to him or to call his wife to explain the inconsistencies between Dr Lewis's clinical notes and reports and her evidence. Nor did he call Dr Lewis to give evidence about his clinical notes and reports.

97 As the applicant adduced inconsistent evidence without explanation, the respondent was entitled to exploit the inconsistencies and the judge was entitled to choose which evidence to accept.[43] In effect, the applicant's counsel left it up to the judge to assess the relative probative value of the evidence of the applicant and his wife on the one hand and that of Dr Lewis (constituted by his clinical notes and reports) on the other hand, without the benefit of evidence from the applicant or his wife about Dr Lewis's evidence.

98 Although the applicant was not directly cross-examined on statements he made in his affidavits about the consequences of the 2008 neck injury and their inconsistency with the clinical notes and reports, the general thrust of the cross-examination was that his evidence should not be accepted because those consequences resulted from medical conditions other than the neck injury. This line of cross-examination drew upon Dr Lewis's notes and reports even though very little reference was made to them.

99 The fact that little direct use was made of Dr Lewis's clinical notes and reports in cross-examination did not alter the fact that they constituted evidence upon which the judge could rely. If counsel for the applicant decided not to ask him any questions about Dr Lewis's clinical notes and reports during his evidence-in-chief in order to assess what use was made of the notes and reports in cross-examination, at the conclusion of the cross-examination, he could have sought leave to ask questions about the notes and reports during re-examination in order to give the judge an evidentiary basis for not preferring the notes and reports to the evidence of the applicant and his wife. Counsel did not seek such leave. He also made a forensic decision not to call the applicant's wife and Dr Lewis.

100 Another important consideration in the present case is that both parties prepared a separate 'aide memoire' based on Dr Lewis's clinical notes and informed the judge that these documents would shorten the cross-examination of the applicant. Accordingly, the applicant may be said to have acquiesced in the process of being cross-examined by reference to the respondent's aide memoire rather than directly by reference to the clinical notes. Moreover, when his memory was tested, the applicant said on a number of occasions that he would accept the contents of the clinical notes.[44] Thus, although the cross-examination of the applicant on the contents of the clinical notes was limited and largely indirect, in conjunction with the other evidence in the case, it provided the judge with a sufficient basis to assess the applicant's credit and the merits of his contention that he suffered constant neck pain following the 2008 accident.

101 Having regard to the matters discussed at [94] to [100] above, in the circumstances of this case, the respondent was not required to put Dr Lewis's clinical notes and repor[45] to the applicant.45 Likewise, the judge was not required to warn the applicant of the risk that she may reject parts of the evidence given by him and his wife on the basis of Dr Lewis's clinical notes and reports. There was no unfairness in the course adopted either by the respondent or the judge.

102 We will now discuss the other issues that the applicant has raised under ground 1.

103 The applicant has not complained that the judge did not accurately describe the evidence adduced by both parties or that she omitted to refer to any material evidence. Such a complaint would have been unsustainable given the detailed and comprehensive summary of the evidence in the judge's reasons. The applicant's real complaint is that the judge should have preferred the evidence that he and his wife gave to the observations and opinions of Dr Lewis. However, in the circumstances of the present case, the judge was more than justified in preferring the observations and opinions of Dr Lewis.

104 Dr Lewis had been treating the applicant continuously since at least 1999 and made notes of the applicant's attendances upon him. The applicant did not contend that Dr Lewis's clinical notes were inaccurate. Rather, his counsel contended that the notes were truncated and incomplete and did not necessarily reflect the applicant's medical condition at the time of each attendance. Counsel submitted that the fact that the notes of a particular attendance did not record any complaint by the applicant about neck pain did not enable an inference to be drawn either that the applicant did not suffer from neck pain at the time of the attendance or that he did not complain about neck pain at that attendance.

105 We accept that courts need to exercise care in relying on the records of medical practitioners. Such records usually contain a selective summary in the doctor's own words of what the patient tells the doctor and cannot be treated as a verbatim transcript of the entire medical attendance.[46] The records may be inaccurate through miscommunication or misleading through omission. However, notwithstanding their limitations, very often clinical notes constitute highly probative evidence because they are independent and contemporaneous and deal with matters within the author's area of expertise.

106 Ordinarily, a patient who visits his or her longstanding general practitioner is likely to inform the general practitioner of the health issues that are then of concern to the patient. Also, a general practitioner who makes notes of each attendance would be expected to record the main health complaints made by the patient and the practitioner's observations and actions taken in relation to such complaints. It may be accepted that, in respect of some attendances, there may be departures from what would ordinarily be expected. However, where an injury is having serious adverse health consequences for a patient and that patient visits his or her general practitioner on a regular basis, it would be very unusual for the patient not to mention those consequences and for the practitioner's clinical notes not to refer to them over a lengthy continuous period of time.

107 In the present case, the applicant did not give evidence that Dr Lewis's clinical notes did not accurately reflect the condition of his neck at the time of each consultation. In particular, he did not give evidence that, for any specific consultation, the explanation for the absence of a reference to his neck condition in Dr Lewis's clinical notes was that he did not mention to Dr Lewis that he was experiencing neck pain when he in fact was or that he mentioned neck pain but Dr Lewis failed to record this. On the contrary, in his oral evidence, the applicant repeatedly stated that he would accept the contents of Dr Lewis's clinical notes.[47] It follows that the submissions of his counsel that the absence of a record of neck pain in a clinical note could be attributed to the applicant's stoicism or omission by Dr Lewis are not based on any evidence but are speculative.

108 Even if it is accepted that Dr Lewis's clinical notes are not comprehensive, the judge had the benefit of not only those notes but also a series of reports prepared by Dr Lewis between 11 July 2010 and 18 December 2014 in which he set out his opinions about the nature and severity of the applicant's neck injury both before and after the two accidents. Those reports were based not only on the contents of the clinical notes but also on prescription records, independent radiology reports and Dr Lewis's recollection of his discussions with the applicant and his examination of him since their professional relationship commenced.

109 It must also be borne in mind that, while the applicant's wife gave evidence that he was a proud man who hid his injuries and his incapacity from her, there was no evidence that he concealed his health problems from Dr Lewis. On the contrary, Dr Lewis's clinical notes indicate that the applicant regularly sought medical assistance for various afflictions.

110 In deciding the key issue of whether the applicant experienced constant neck pain as a result of the 2008 accident, the judge did not face a simple choice between Dr Lewis's clinical notes and opinions on the one hand and the evidence of the applicant and his wife on the other hand. The absence of recurring references to neck pain in the clinical notes after the 2008 accident was supported by the fact that it was not until after the 2011 accident that Dr Lewis referred the applicant to a specialist (Mr Chan) specifically for neck pain. Further, the medical reports of the other doctors tended to support the opinions of Dr Lewis, rather than the evidence of the applicant and his wife, about the causal relationship between the 2008 neck injury and the pain and suffering to which the applicant was subject. This is particularly so in relation to the reports of Mr Shannon and Mr Simm. A key difficulty for the applicant is that most of the reports failed to deal separately with the pain and suffering consequences of the two accidents.

111 Having regard to the above and the absence of any challenge to the accuracy of Dr Lewis's clinical notes, the judge was entitled to rely on those notes on the question of the timing and nature of any complaints by the applicant to Dr Lewis about the injury to the applicant's neck.

112 The judge had the considerable advantage of observing the applicant when he gave oral evidence. Although she stated that he genuinely tried to tell the truth as he recalled it, she concluded that his recollection was not always reliable and that there was probably some reconstruction of events. In the light of this conclusion, it was open to the judge to reject the applicant's evidence insofar as it was inconsistent with the clinical notes and opinions of Dr Lewis.

113 It is true that, as the applicant's wife was not cross-examined, her evidence was unchallenged. However, this did not compel the judge to accept her evidence. Rather, it was open to the judge to prefer other evidence which she found was more reliable.

114 The applicant did not contend that he suffered any specific prejudice due to his limited English language skills. In particular, he did not argue that he misunderstood any particular question or that any of his answers failed to accurately convey his intended meaning.

115 It follows from what we have said that we do not accept that, individually or collectively, the first seven reasons given by the applicant as to why the judge should not have inferred that he did not suffer from constant neck pain as a result of the 2008 accident provide a proper basis for not drawing that inference. That inference was fairly open to the judge on the whole of the evidence.

116 It also follows that the judge refused the application for leave pursuant to s 93(4)(d) of the Act on the basis of the whole of the evidence before her and that she did not err in relation to the weight that she gave to the clinical notes and reports of Dr Lewis relative to the other evidence.

Ground 3: Failure to provide adequate reasons

117 Ground 3 is set out at [67] above.

118 During the hearing of the application for leave to appeal, the applicant conceded that it would be very difficult for him to succeed on ground 3 if he failed on ground 1. This was said to be because the applicant's complaint about the adequacy of the judge's reasons was based on the judge's alleged failure to adequately explain how Dr Lewis's clinical notes warranted rejection of the evidence of the applicant and his wife that he suffered constant neck pain as a result of the 2008 accident.

119 In our opinion, the applicant's concession was properly made. As his attack on the judge's reasons in substance depended on the same arguments as those used for ground 1, the failure of ground 1 means that ground 3 must be rejected. In any event, the judge's reasons are comprehensive and clearly disclose her path of reasoning in relation to all her factual findings and ultimate conclusions in each proceeding.

120 For the above reasons, the applicant has not demonstrated either that the decisions below are attended with sufficient doubt to warrant the grant of leave to appeal or that the appeals have a real, as distinct from a fanciful, prospect of success. Accordingly, the application for leave to appeal will be refused.

Acknowledgment of pro bono assistance by junior counsel for the applicant

121 At the conclusion of the hearing of the application for leave to appeal, the Court thanked junior counsel for the applicant for drawing the application for leave to appeal and the applicant's written case pro bono pursuant to the Victorian Bar's Duty Barristers' Scheme. The Court also stressed that the scheme is an invaluable part of the Court's process. We wish to record our statement of gratitude and to acknowledge the importance of the scheme in these reasons for judgment. By providing pro bono assistance to a party, counsel not only advance the interests of that party, but also greatly assist this Court and facilitate the course of justice in the best traditions of the Bar.

[1] Philippiadis v Transport Accident Commission [2015] VCC 219 ('Reasons').

[2] Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 134, 140 ('Humphries'); ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31 [69].

[4] Ibid 138; Transport Accident Commission v Kamel [2011] VSCA 110 [63] ('Kamel').

[5] Petkovski v Galleti [1994] VicRp 32; [1994] 1 VR 436, 443-4.

[6] Dwyer v Calco Timbers Pty Ltd [No 2] [2008] VSCA 260 [3]; Kamel [2011] VSCA 110 [67].

[8] According to Dr Lewis's clinical notes, the applicant complained of a sore muscle in the left side of the neck on 21 January 2011. There is no clinical note for 21 January 2010. Accordingly, it appears that the date of 21 January 2010 is a typographical error.

[11] Reasons [15], [25], [70]-[73], [77]-[80] (citations omitted).

[14] Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431 ('Niemann').

[16] See, eg, Northern Health v Kuipers [2015] VSCA 172 [6]-[16]; Cross Country Realty Victoria Pty Ltd v Ubertas 350 William Street Pty Ltd [2015] VSCA 347 [72]-[73].

[17] For a discussion of the importance of deciding serious injury applications on the evidence as a whole, see Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; (2010) 31 VR 1, 11 [47]-[48], [51]-[53]; Davies v Nilsen [2014] VSCA 278 [17], [95], [107].

[18] The applicant relied on Woolworths Ltd v Warfe [2013] VSCA 22 [112] ('Woolworths').

[20] See Phelan v Transport Accident Commission (2013) 65 MVR 427, 429-30 [3].

[21] Browne v Dunn (1894) 6 R 67, 70.

[24] MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436, 448 [38].

[26] Reza (2013) 37 VR 204, 12 [45].

[27] See, eg, Chong v CC Containers Pty Ltd [2015] VSCA 137 [201] ('Chong'); Burgess v Y-Trans Pty Ltd [2010] VSCA 28 [54] ('Burgess').

[28] Chong [2015] VSCA 137 [201].

[29] Burgess [2010] VSCA 28 [54].

[30] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 [13] ('Advanced Wire'), quoting Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 846 ('Bulstrode').

[31] Advanced Wire [2009] VSCA 170 [13], quoting Bulstrode [1970] VicRp 104; [1970] VR 840, 846.

[32] Ronstan International Pty Ltd v Thomson [2002] VSCA 75 [18], quoting Bulstrode [1970] VicRp 104; [1970] VR 840, 847.

[33] MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436, 448 [39].

[34] R v Morrow [2009] VSCA 291; (2009) 26 VR 526, 542 [59].

[35] Govic v Boral Australian Gypsum Ltd [2015] VSCA 130 [97], quoting Bulstrode [1970] VicRp 104; [1970] VR 840, 848.

[36] MWJ v The Queen [2005] HCA 74; (2005) 222 ALR 436, 448 [40]. See also s 46 of the Evidence Act 2008.

[37] [2012] QCA 283 ('WAQ').

[38] WAQ [2012] QCA 283 [32].

[39] [1995] NSWCA 496 (5 May 1995) ('Watkins').

[41] See [76] above.

[42] See [55] above.

[43] Steen v Worksafe Victoria [2014] VSC 299 [82]-[83].

[44] See [60] above.

[45] See WAQ [2012] QCA 283 and Watkins [1995] NSWCA 496 which are discussed at [89]-[91] above.

[46] See further Woolworths [2013] VSCA 22 [112].

[47] See [60] above.

At a glance

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Judgment (195 paragraphs)

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Legislation Cited (2)

Cases Cited (5)