Randhawa v Transport Accident Commission [2021] VSCA 135

1 On 20 February 2013, the applicant was riding her bicycle at the intersection of St Georges Road and Oakover Road, Preston, when she was struck by a motor vehicle ('the accident'). She was taken by ambulance to the Royal Melbourne Hospital, where she was admitted and underwent radiological investigations which revealed fractures in her spine.

2 By an originating motion filed in the County Court on 7 June 2019, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 ('the Act'), to commence a proceeding at common law claiming damages in respect of the injuries she sustained as a result of the accident. The applicant relied upon paragraph (a) of the definition of 'serious injury' contained in s 93(17) of the Act - namely, 'serious long-term impairment or loss of a body function'.[1] The body function relied upon was the function of the spine.

3 The application was heard in the County Court by Judge Kings on 11 and 12 May 2020. On 9 June 2020, her Honour dismissed the application. While the judge accepted that the applicant had suffered an injury to her spine, she was not satisfied that the consequences of the applicant's injury could fairly be described as being 'more than significant or marked', and as being 'at least very considerable'.[2]

4 The applicant now seeks leave to appeal against the order refusing her application, on the following proposed grounds:

1. The judge erred in the application of Humphries v Poljak[3] to the facts of the case.
2. The reasons for judgment do not disclose an adequate process of reasoning to demonstrate why upon the whole of the evidence and upon the proper application of Humphries v Poljak[4] the applicant's application was refused.
3. The judge erred in fact and in law in finding at [95], with respect to the pecuniary disadvantage consequences relied upon at trial, that the applicant had not demonstrated that she had 'suffered a loss of opportunity to obtain an academic position that was more than speculative'.
4. The judge erred in fact and in law in the application of Richards v Wylie[5] in finding at [100] that - 'I take the view that none of the applicant's claimed mental conditions are in response to any impairment or loss of a bodily function. They are primary symptoms from the accident itself' and, at [101] - 'accordingly, I accept that this is not within the principle of Richards v Wylie'.

5 On the hearing of the application in the County Court, the applicant relied upon three affidavits that she swore on 12 April 2018, 17 December 2019 and 25 April 2020.[6] She also relied upon a supporting affidavit sworn on 16 December 2019 by her husband, Su Huat Teoh. The parties also tendered various documents, including medical reports, radiological reports, clinical notes, a contract of employment between the applicant and the University of Melbourne, and a Transport Accident Commission claim form.

6 The only witness to give viva voce evidence on the application was the applicant. In her examination-in-chief, the applicant adopted her affidavits. She was then cross-examined, and subsequently re-examined.

7 The applicant was born in 1974. She was 38 at the time of the accident, and 46 at the time of trial. She was born in Kuala Lumpur. She came to Australia with her family when she was five, and stayed for approximately five years until they moved to Malaysia. She attended boarding school in the United Kingdom from approximately 14 years of age, before attending Oxford University where she studied philosophy, politics and economics.

8 The applicant first met her husband in 1992. They lost contact for a period, before they met again in approximately 2005. They married, had two children, and have lived together ever since. At the time of the accident, the applicant's two children were aged one and three.

9 When the applicant moved back to Australia, she initially did some 'temp' work. She then worked for the ABC for approximately a year, on a casual, full-time basis, as a radio journalist. She stopped full-time work while pregnant, but continued working part-time, doing editing and consultancy work.

10 The applicant commenced a PhD in February 2012 at the University of Melbourne. Just prior to the accident, she earned the right to undertake tutoring and research assistant work at the University. She started the research assistant work in approximately January 2013, but had not commenced the tutoring work when the accident occurred.

11 The accident occurred when a motor vehicle turned in front of the applicant. She was taken by ambulance to the Royal Melbourne Hospital. She was in a lot of pain, particularly in her lower back, and she had difficulty moving. Radiological investigation revealed fractures and damage to the applicant's spine.

12 On 21 February 2013, the applicant was transferred to Brunswick Private Hospital for rehabilitation, where she remained until 2 March 2013. Her mother flew out from Malaysia to assist with the children, the applicant's personal care and general domestic activities. The applicant's mother stayed for approximately three months.

13 After her discharge from Brunswick Private Hospital, the applicant was visited by an occupational therapist who provided her with various aids including a walking frame. The applicant also underwent physiotherapy for approximately six weeks.

14 On approximately 25 March 2013, the applicant commenced an outpatient multidisciplinary rehabilitation program at Brunswick Private Hospital, generally attending for two sessions per week. Despite there being an improvement in her symptoms after the rehabilitation program, when her mother returned to Malaysia, the applicant said that she had to hire a nanny as she required further assistance with the children due to her pain and restriction caused by her back injury. In 2013, she also attended her general practitioners' clinic where 'on a couple of occasions' she was prescribed OxyContin.

15 In 2015, the applicant sought treatment in respect of left shoulder pain which she said she developed shortly after the accident.

16 In her first affidavit (April 2018), the applicant described pain in her lower back which she said was generally present all the time, although it varied in intensity, depending on the amount of physical activity that she was required to do. She said she tried to manage her pain with Ibuprofen which she would take, 'at most, once a day'.

17 In her first affidavit, the applicant said that she had not undergone physiotherapy, counselling or any other treatment since 2013. She said her treatment had been curtailed due to the need to care for her children. She described her physical pain as having a 'very considerable impairment' upon her former social, recreational, domestic and employment activities. She also referred to having been diagnosed with a 'panic disorder with secondary agoraphobic features and features of traumatisation'. The applicant described feeling 'anxious, generally all of the time, frequently panicky, particularly in relation to [her] son's safety' and having frequent nightmares about her son being involved in a transport accident.

18 In April 2018, the applicant was still undertaking her PhD. She said she took leave from the University for approximately four months following the accident. Since then, her studies had remained on track, although she did not attend the University as frequently as she did prior to the accident. She attributed this to her injuries.

19 The applicant's evidence was that she returned to paid employment in approximately late 2015, doing some freelance work. She said she had also written articles occasionally, and in August 2017 she commenced tutoring at the University. As to these activities, the applicant deposed:

I have lost opportunities as a result of my injuries. For example, I was unable to do the research assistant and tutoring work I was offered immediately prior to the transport accident. As a result, I believe that my career development has been set back as a result of the transport accident. Prior to the transport accident, I was keen to develop a career as an academic. This is much harder now due to the pain and restriction caused by each of my transport accident related injuries.[7]

20 In her first affidavit, the applicant identified difficulties with a variety of movements (anything requiring prolonged, sustained, awkward or repetitive bending, twisting or lifting). Specific activities said to have been affected include activities around the home, activities with her children, shopping, and camping and hiking which she had done previously. She also deposed to an impairment in her enjoyment of sexual relations with her husband, caused by pain in her sacrum.

21 In her second affidavit (December 2019), the applicant deposed to never being free of pain in her spine, and the level of pain varying from 3 out of 10 to 7 out of 10. She said she attended one of her general practitioners, Dr Effie Frangoulis, 'on a month by month basis'. She said she used medication in the form of Ibuprofen tablets (usually 1 to 3 tablets a day) and Voltaren gel (as required). She also referred to an inability to resume cycling 'to the same level as [she] did prior to the accident'.

22 In her third affidavit (April 2020) the applicant referred to the impact which her injuries have had on her proposed academic career. The applicant said:

I was looking to pursue an academic career which normally begins with tutoring work and work as a research assistant while undertaking doctoral studies. My transport accident injuries precluded me from pursuing these first steps on the academic ladder. I had signed a 100 hours contract to undertake these types of tasks but was unable to fulfil that contract by reason of my transport accident injuries. I would then have hoped to expand to a role of tutor and then lecturer, earning in the order of $100 to $200 per hour on a contract basis. Having completed my doctoral studies, I would have looked to obtain a post-doctoral fellowship which pays in the order of $90,000. There was a position in my field at ANU which I would have been able to apply for and take up had I not suffered the transport accident injuries. The next step up the academic ladder would be a position of either tenured or contract lectureship which, depending on seniority, remunerates in the range of $150,000-$200,000 per annum.

Because of the transport accident injuries, I missed out on climbing the lower rungs of the academic ladder, and the consequences being that my academic career has been seriously hindered. I have continued to maintain my academic links with the submission on an irregular basis of academic articles to peer reviewed journals but had I been able to pursue my career as envisaged, believe that my employment situation today would have been entirely different from my current circumstance and would by this stage have been on a path to tenured lectureship.

As matters presently stand, apart from irregularly writing articles, I am involved in attempting to establish a business in capacity building particularly for local government, an area far removed from that in which my academic interests lay.

I therefore rely not only on the pain and suffering consequences which have been referred to in my earlier affidavits, but also upon pecuniary disadvantage consequences which are directly attributable to my transport accident injuries.

23 During the course of cross-examination, the applicant gave the following evidence:

• Since the accident, she had fostered a number of children, generally doing this once a month for a few days.
• The applicant home schooled her children. This involved her in working the night before each school day, writing activities in each child's planner. The children would then work on those activities through the morning, while the applicant tried to get some other work done, which she described as 'research or other consulting work or whatever'. In the afternoons, the home schooling involved her conducting activities such as chemistry experiments and the like.
• Since the accident, the applicant had travelled interstate and overseas on a number of occasions. She thought she had been interstate four times. On one of the interstate trips, the applicant went on a five kilometre hike in the Blue Mountains. Travel was for both leisure and work purposes.
• In 2014, the applicant went to Malaysia for three and a half months. She was there primarily for work, conducting interviews with women journalists.
• In 2015, the applicant went overseas, again to Malaysia.
• In 2016, the applicant went on an overseas trip to Indonesia and Malaysia. There was a leisure component and a work component to this trip.
• In 2017, the applicant went to Sri Lanka. She did some hiking on this trip.
• In 2018, the applicant went to China and Malaysia. The China leg of the trip was for leisure. The Malaysian leg involved research.
• The applicant had also been on other trips to Malaysia, including trips in March 2019 and July 2019. On one of these trips, she ran a conference involving the Malaysia Media Council.
• The applicant completed her PhD in June 2019, her PhD having 'remained on track' following the accident.

24 The applicant was cross-examined by reference to the clinical notes of her general practitioners. A line of cross-examination concerned the applicant's attendance on general practitioners for other medical conditions between 2013 and 2018. It was put to the applicant that during these consultations she made no reference to any back injury or the accident. The applicant cavilled with some of the matters put to her. For example, notwithstanding the absence of any reference to a back injury or the accident in her consultation with Dr Frangoulis on 7 April 2017, the applicant initially said in cross-examination that she believed that she told the doctor about the accident in connection with arthritic pain. Later, however, the applicant conceded that she did not tell Dr Frangoulis that she had back pain. The clinical notes reveal that the applicant consulted Dr Frangoulis on three occasions in April 2017 for a blocked sinus, arthritic pain in the right shoulder, right elbow and right wrist, and pain in the left knee.

25 In re-examination, the applicant gave evidence that she disliked taking painkillers. She said she was incapable of undertaking contract work or research assistant work until 14 to 18 months after the accident. She said she undertook tutorial work in August 2017 only because that was her last opportunity to undertake that work while doing her PhD.

26 As to the children she fostered, she said she worked through the Victorian Aboriginal Childcare Agency, doing respite care, looking after children for a weekend or so.

27 The applicant gave evidence that her back injury prevented her from overnight camping and hiking with her family. This was something that she had always anticipated would be one of the things they would do as a family when she first met her husband.

28 Finally, the applicant gave evidence that she no longer had any shoulder or knee pain.

29 The applicant underwent CT imaging on the day of the accident. This showed minimally displaced fractures through the right transverse processes of L2 and L3, chronic bilateral L5 pars interarticularis defects with minimal anterolisthesis of L5 on S1, and vertically orientated minimally displaced fractures through the sacral ala.

30 After her discharge from Brunswick Private Hospital, the applicant visited her general practitioners' clinic in relation to her back on four occasions between March and October 2013. She had a consultation with a psychiatrist, Dr Nathan Serry, in November 2013. A discharge report, dated 23 June 2014 from Brunswick Private Hospital, recorded that the applicant had reported significant improvement in her symptoms.

31 Between 1 October 2013 and 28 November 2018, notwithstanding attendances upon her general practitioners' clinic for other medical conditions, there is no record of any complaint of back pain or the accident by the applicant. In a report dated 27 May 2015, one of the applicant's general practitioners, Dr Omar Seedat, said that the applicant had not been seen in respect of her back condition since 1 October 2013. Dr Seedat said that the applicant's injuries had 'substantially stabilised' and that no further treatment or investigation was recommended. Dr Seedat's opinion at that time was that the applicant's injuries had 'not affected her ability to perform her normal occupation'.

32 On 30 September 2019, the applicant attended her general practitioner, Dr Frangoulis. She gave a history of chronic back pain since the accident, which had been exacerbated over the previous three months. Dr Frangoulis referred the applicant to an orthopaedic surgeon, Mr Audi Widjaja. Mr Widjaja examined the applicant and concluded that surgical intervention was not necessary. In her report dated 18 April 2020, Dr Frangoulis said that she last saw the applicant on 28 October 2019. Her opinion at that time was that the applicant 'may possibly continue to have chronic lower back pains (possibly for years) with exacerbations if not managed appropriately', and that the applicant was 'most likely to be able to work with work modifications as appropriate'.

33 The up-to-date opinions about the condition of the applicant's back at the time of trial were contained in reports written by Mr Garry Grossbard (orthopaedic surgeon), Mr Ales Aliashkevich (neurosurgeon) and Dr John Owen (orthopaedic surgeon)[8].

34 Mr Grossbard examined the applicant on 26 November 2018, at the request of the applicant's solicitors. Mr Grossbard concluded that there were symptoms suggestive of the presence of facet joint arthropathy, and that this may well have been significantly aggravated by the accident. He concluded that the applicant's ongoing symptoms and signs limited the applicant's activity, particularly when bending and lifting were involved. He said that the symptoms were sufficient to warrant ongoing medication and the use of mechanical applications such as heat packs.

35 Ultimately, Mr Grossbard concluded that there was probably a pre-existing spondylolysis at the L5 level which 'may well have been made symptomatic following [the accident]'. He said that the applicant's prognosis was good, except that she was likely to go on complaining of lower back pain with the possibility of periods of exacerbation.

36 Mr Aliashkevich examined the applicant in August 2019, again at the request of her solicitors. He diagnosed her as suffering from chronic right lower back pain. In his opinion, the applicant's prognosis was guarded. In forming this opinion, he relied upon the fact that the applicant had had an incomplete response to previous conservative treatment, and that she had been taking pain medications on a regular and long-term basis. He also thought that she was likely to experience further deconditioning of her muscles, spine and joints and that this might lead to a deterioration of her condition, with a progression of her spinal degenerative changes.

37 Dr Owen examined the applicant on 13 November 2019, at the request of the respondent. He diagnosed her as having suffered a fracture of the alar of her sacrum and fractures of the transverse processes of L2 and L3. He said that the problem was that these injuries should not cause any long-term disability so that the ongoing issue of pain in the lower back was yet to be resolved or identified. He said that the applicant's ongoing pain interfered with her domestic, employment, and leisure activities that involved prolonged sitting and using transport. He also said that these issues were complicated by an anxiety state. He went on:

I did not think she tried to exaggerate her clinical condition in any way. However I do think that the anxiety state is playing its part in restricting her from say accessing public transport, cycling and travelling to the CBD.

...

I do not think there are major inconsistencies here but it is strange that her pain has persisted for such a long time from what one would consider to be a stable injury.

38 The evidence in Mr Teoh's affidavit was largely corroborative of the applicant's evidence. He said that the applicant had attempted to ride her bicycle after the accident, but that she has lost confidence, does not enjoy it as much, and has to take painkillers after doing so. He also gave evidence about a diminution in the applicant's engagement in hiking and camping.

39 Mr Teoh said that, around the home, the applicant avoids the heavier housework for fear of aggravating her spine. She would assist, however, with whatever she could. He said that his intimate relationship with the applicant was also diminished due to her pain.

40 The judge identified the issues in dispute before her as being:

• whether the applicant had suffered a serious and long-term impairment or loss of a body function caused by the accident;[9]
• whether the applicant's claimed mental conditions were primary injuries, in the sense that they were not part of or a response to physical injury;[10]
• whether the applicant suffered the pecuniary disadvantage she claimed as a result of the accident;[11] and
• accepting that the applicant suffered all of the consequences claimed by her, whether those consequences satisfied the requisite test of being 'fairly described at least as "very considerable" and certainly more than "significant" or "marked"'.[12]

41 Next, the judge observed that the applicant's credit was not in issue.[13] The judge found the applicant to be 'an intelligent woman who answered questions directly', who made concessions, and who was 'straightforward in her evidence'.[14] The judge said that there was no suggestion that the applicant had exaggerated her symptoms.[15]

42 The judge then set out the relevant background of the application, aspects of the applicant's evidence and a summary of the relevant medical evidence,[16] before turning to consider the consequences of the applicant's injury as they were at the time of trial.[17]

43 The judge analysed the consequences of the applicant's injury under a number of headings. Under the heading 'Pain and treatment' the judge observed that the applicant had 'limited ongoing treatment' for her lower back pain. The judge said that the level of pain and treatment the applicant described were 'at the low end of the scale'.[18]

44 With respect to the applicant's sleep, the judge said that she accepted that it had been affected, noted that the applicant was not taking medication to assist with it, and noted the applicant's evidence that her sleep had improved. The judge said that the impairment of the applicant's sleep was 'at the low end of the scale'.[19]

45 Under the heading 'Mobility', the judge reviewed the relevant evidence before coming to the conclusion that the applicant's impairment of mobility as a consequence of the accident fell to be assessed 'in the low to middle of the range'.[20]

46 In relation to household duties, the judge observed that the applicant had not attempted to disentangle any contribution from her shoulder and elbow complaints.[21] The judge found this impairment to be 'at the low end of the range'.[22] The judge also noted that the applicant reported to some medical witnesses that she had returned to gardening and cooking.[23]

47 Under the heading 'Family duties', the judge considered the applicant's relationship with her children, the applicant's fostering of other children and the fact that the applicant voluntarily home schools her children. The judge noted that, while the applicant would like to foster children who are under the age of four (but claimed she could not do so, due to lifting restrictions), she was only accredited to foster children aged four and above.[24] The judge held this consequence to be 'at the low end of the range'.[25]

48 The judge analysed the evidence in relation to cycling activities, noting that the applicant had reported to a medical practitioner in December 2013 that she had resumed cycling to university.[26] The judge then noted the applicant's evidence that she dreamed about her son dying whenever she rode her bicycle, and that she decided not to ride her bike anymore in 2018 or 2019.[27] The judge concluded that the physical consequences of the applicant's injury had not restricted her from cycling and, accordingly, said that the diminution in the applicant's cycling was not a consequence which could be taken into account.[28]

49 Next, the judge dealt with hiking and camping. The judge concluded that the applicant had a retained capacity to go hiking, but could not go camping. This was described as being a consequence 'in the low to middle of the range'.[29]

50 As to travel, the judge observed that the applicant had travelled interstate and overseas for academic pursuits and leisure, and that the applicant had been able to undertake hikes and snorkelling on some of these occasions. The judge described travel as 'a retained capacity'.[30]

51 As to 'social activities', the judge noted the lack of detail in the applicant's evidence, before ultimately concluding that 'social activities have not been affected'.[31]

52 Under the heading 'Sexual life', the judge said that she accepted the applicant's evidence, which was supported by the evidence of her husband. The judge said that this was a consequence which she assessed to be 'in the middle of the range'.[32]

53 Under the heading 'Economic loss', the judge considered the pecuniary disadvantage the applicant alleged that she suffered as a result of the accident. The judge made the following findings and conclusions:

• The applicant took leave from the university for approximately four months following the accident. Since that time her studies had remained on track.[33]
• In December 2013, the medical evidence (Mr Chris Haw[34]) was that it was unlikely that the applicant's injuries would interfere with her earning capacity. In May 2015, Dr Seedat reported that the applicant's injuries had not affected her ability to perform her normal occupation.[35]
• The preponderance of the medical evidence was that the applicant's ongoing lower back pain was minor. This was consistent with the applicant's own evidence about the lack of treatment for it.[36]
• The applicant had not explained why she could not commence tutoring before 2017, and there was no medical evidence in support of any such inability. Additionally, the applicant had published widely since the accident.[37]
• The applicant had given inconsistent evidence: first when she told Dr Serry that the demands of her two small children had contributed to her missing six months of her studies; and secondly, when she told Dr Owen that she had completed her PhD and was now looking for suitable work.[38]
• There was no supporting evidence from the University of Melbourne or the applicant's supervisor in relation to her evidence of impeded progress and 'her inability to climb the lower rungs of the academic ladder'.[39]

54 The judge noted that the applicant had continued to pursue academic activities. She has been a media freedom advocate for the Centre of Independent Journalism in Malaysia, and has maintained her positions with other relevant organisations.[40] After referring to Demmler v Transport Accident Commission,[41] and Dwyer v Calco Timbers Pty Ltd [No 2],[42] the judge said:

The [applicant] sleeps well and retains full mobility. She retains her cognitive ability and was able to complete her PhD, missing approximately four months following the transport accident. She can shop and perform most household activities with limited restrictions. She can garden and cook. Following the transport accident, she home-schooled her children and has fostered children. She has retained the ability to travel interstate and overseas without reported difficulties. The trips have involved work and leisure activities, including hiking and snorkelling. She has published articles widely in her area of expertise.

I accept the [applicant] has suffered some consequences of the physical injury to her lower back as a result of the transport accident. Namely, limited pain, low levels of analgesia, very limited treatment, an inability to participate in camping activities with her family, and a lessening of intimate relationship with her partner. In considering those consequences, I am not satisfied that they are considerable when judged by a comparison with other cases in the range of possible impairments. They certainly cannot be described as being 'more than significant or marked' and as being 'at least very considerable'.

Accordingly, I take the view that the [applicant] has not satisfied the Court that she has suffered a loss of opportunity to obtain an academic position that was more than speculative.[43]

55 The judge then dealt with the issue of any mental response by the applicant to her physical impairment - an issue analysed by this Court in Richards v Wylie.[44] The judge concluded that none of the applicant's claimed mental conditions were in response to any impairment or loss of a body function. She said that they were 'primary symptoms from the accident itself'.[45] Her Honour then said that this was not within the principle of Richards v Wylie.[46] The judge then concluded her Reasons as follows:

Based on my above assessment, I accept that, as a result of the transport accident, there have been some consequences to this [applicant] of an impairment to her spine. Taking all the evidence in account, I am not satisfied that the [applicant] has established that the consequences of her spine meet the test. I accept the [applicant] has suffered an impairment to her spine. I accept that the injury has had consequences to her; however, I am not satisfied that when judged by comparison with other cases in the range of possible impairments, the injury can be fairly described as being 'more than significant or marked', and as being 'at least very considerable'.

Accordingly, I dismiss the [applicant's] application in respect to a serious injury for the spine.[47]

56 Under proposed grounds 1 and 2, the applicant contended that the judge's Reasons 'disclosed an erroneous application of the decision in Humphries v Poljak'. The applicant submitted that the judge adopted a formulaic approach, by reference to a checklist, and then applied the 'very considerable' test to each of the individual items on the checklist. In short, it was asserted that the judge adopted the approach identified as being erroneous in Sutton v Laminex Group Pty Ltd.[48]

57 Secondly, it was submitted that the judge erred in disregarding the pecuniary disadvantage consequences relied upon by the applicant, in circumstances where the applicant's evidence as to the impact of her back injury upon her academic career was 'uncontested'.

58 Thirdly, the applicant submitted that the judge erred in respect of assessing the consequences of the applicant's psychiatric injury by misapplying Richards v Wylie.

59 Fourthly, the applicant contended that the judge's Reasons were 'inadequate having regard to the evidence adduced at trial'. In support of that submission, the applicant relied upon this Court's decisions in Hunter v Transport Accident Commission,[49] Franklin v Ubaldi Foods Pty Ltd,[50] Dressing v Porter[51] and Transport Accident Commission v Kamel.[52] As part of the argument in respect of this submission, the applicant identified individual items of evidence which she contended were supportive of her case, and specific errors she contended had been made by the judge. Ultimately the applicant submitted that:

There is, in the reasons, no application of the 'very considerable' test upon a consideration of the whole of the evidence adduced by the applicant at trial.

60 Under proposed ground 3, the applicant contended that the judge erred in her conclusion that the applicant had not demonstrated that she had 'suffered a loss of opportunity to obtain an academic position that was more than speculative'. In support of this contention, the applicant referred to the evidence she gave about which she said that there was 'no challenge' and no 'contradictory evidence'.

61 The applicant also made complaint that the judge appeared to have drawn a Jones v Dunkel[53] inference against the applicant, in circumstances where such an inference was not open.

62 Additionally, the applicant submitted that there was no evidence to contradict her evidence that she 'missed out on climbing the lower rungs of the academic ladder, and the consequence has been that [her] academic career has been very seriously hindered'.

63 The applicant cavilled with some of the judge's factual findings, asserting that the medical evidence (in particular from Dr Frangoulis and Mr Aliashkevich) supported her case. She contended that the opinion of Mr Aliashkevich should have been preferred over Dr Owen because his 'expertise in the relevant area exceeded that of ... Dr Owen'.

64 Under proposed ground 4, the applicant contended that the evidence disclosed that part of her psychiatric condition was secondary and reactive to her physical injuries. The applicant relied upon two reports of the psychiatrist, Dr Serry. In his first report, Dr Serry assessed the applicant's psychiatric impairment at 13 per cent, with 9 per cent being 'non-secondary psychiatric injury' and 4 per cent being 'secondary and reactive to the applicant's physical injuries'. In his second report, he assessed her impairment at 10 per cent, of which 6 per cent was non-secondary, but 4 per cent 'remained secondary and reactive to the physical injuries'.

65 The applicant described Dr Serry's evidence as 'uncontested', and therefore evidence which the judge was wrong to disregard. It was contended that acceptance of this evidence meant that the judge had to make some assessment of the applicant's loss of the ability to cycle.

66 In response to the applicant's submissions, the respondent contended that the judge did not make any of the errors contended for by the applicant. The respondent submitted that the judge's Reasons, when read as a whole, were clear and provided an intelligible explanation for her Honour's ultimate conclusion.

67 The respondent submitted that merely because the judge found the applicant to be a witness of credit did not mean that the judge was required to accept each and every aspect of the applicant's evidence.

68 Contrary to the applicant's contentions, the respondent contended that the judge did not draw a Jones v Dunkel inference in relation to the applicant's failure to call evidence from an academic in her field. The respondent submitted that the significance of that failure, in combination with the state of the evidence as a whole, was that her Honour was simply not satisfied that the applicant had lost an academic opportunity that was more than speculative.

69 In relation to proposed ground 4, the respondent contended that the evidence of mental distress relied upon by the applicant was not of any response to her physical impairment. The respondent submitted that the judge was thus correct to disregard that evidence in assessing whether the back injury was serious within the meaning of paragraph (a) of the definition of 'serious injury'.

70 For the reasons which follow, this application for leave to appeal does not have any real prospect of success. Accordingly, it must be refused.[54]

71 Contrary to the applicant's submissions, the judge did not misapply Humphries v Poljak. Her Honour's Reasons contain a careful consideration of each of the various matters relied upon by the applicant in support of her contention that the consequences of the injury to her spine were more than 'significant' or 'marked', and could fairly be described as 'very considerable'.[55]

72 Similarly, there is no substance in the suggestion that the judge 'adopted a formulaic approach', only applying the 'very considerable' test to each of the 'individual items on the checklist'. The various consequences alleged by the applicant were dealt with by reference to their subject matter as identified by the applicant. While they were each assessed individually (and it is difficult to see how her Honour could have done otherwise), they were then considered and dealt with in combination when the judge said:

I accept the [applicant] has suffered some consequences of the physical injury to her lower back as a result of the transport accident. Namely, limited pain, low levels of analgesia, very limited treatment, an inability to participate in camping activities with her family, and a lessening of intimate relationship with her partner. In considering those consequences, I am not satisfied that they are considerable when judged by a comparison with other cases in the range of possible impairments. They certainly cannot be described as being 'more than significant or marked' and as being 'at least very considerable'.[56]

...

Taking all the evidence in account, I am not satisfied that [the applicant] has established that the consequences of her spine meet the test. ... I am not satisfied that when judged by comparison with other cases in the range of possible impairments, the injury can be fairly described as ... 'at least very considerable'.[57]

It follows that the judge did not adopt the approach taken by the primary judge in Sutton,[58] and identified in that case as being erroneous.

73 In argument, counsel for the applicant described significant parts of the applicant's evidence as being 'uncontested' and 'not the subject of challenge'. From this premise, it was contended that the judge, who had found the applicant to be 'straightforward in her evidence',[59] with no suggestion of any exaggeration of her symptoms,[60] should have accepted the applicant's evidence - particularly in relation to pecuniary consequences. Criticism was made of the judge's references to the lack of supporting evidence from the University of Melbourne and the absence of any expert evidence from an occupational physician or an academic employment expert.[61] Similarly, the applicant took issue with the judge's use of the word 'speculative' - a word that appears to have had its origins in the respondent's submissions to the judge.

74 There is no substance in these criticisms. The judge's task was to evaluate the applicant's evidence on the issue of pecuniary disadvantage, in the light of the whole of the evidence. The applicant's evidence fell to be evaluated in the context of quite modest medical evidence concerning her back injury and its physical consequences. In particular, the applicant's evidence as to pecuniary consequences fell to be evaluated in the light of the evidence that she underwent little or no treatment for a period in excess of six years between 2013 and 2019, and in the context of the evidence of activity she was able to engage in on various interstate and overseas trips, as well as the activity she was able to perform which permitted her to home school her children, foster other children and complete her PhD.

75 In referring to the applicant's submissions on the issue of pecuniary disadvantage as being 'speculative',[62] it seems to us that the judge was saying no more than that, on the whole of the evidence, she was not satisfied that a consequence of the back injury was that the applicant was denied the ability to pursue the academic career she described in her evidence. We see no error in this conclusion. Indeed, having reviewed all of the evidence for ourselves, it is a conclusion with which we agree. The problem for the applicant was that, on any view, the medical evidence combined with the lack of relevant medical treatment for significant periods, coupled with the evidence about activity that the applicant was able to engage in (overseas and in Australia) made it difficult to accept that the injury to the applicant's spine had given rise to consequences (pecuniary or otherwise) which were more than 'significant' or 'marked'.

76 In particular, on the evidence, the judge was entitled to reject the claim by the applicant that, as a result of her injuries, she had lost the opportunity to advance in her academic career. There were two problems that confronted the applicant in making that claim. First, as the judge found,[63] the applicant did not establish, on the balance of probabilities, that she had been physically incapable of, or prevented from, performing tutoring work while undertaking her PhD because of her injuries. At its highest, the applicant's evidence was that she was prevented by pain from doing that work 'for the first year or so'. Her evidence did not explain why she had not undertaken that work until 2017, some four years after the accident. Secondly, there was insufficient evidence that the applicant's failure or inability to undertake the tutoring work earlier had the result that she lost an opportunity to progress as she wished to in her academic career. In the absence of supporting evidence, the judge was entitled not to be satisfied, on the balance of probabilities, that it was necessary or important for the applicant to have undertaken tutoring work during the early phase of her PhD studies in order to later secure academic tenure.

77 Next, we reject the applicant's submissions that the judge impermissibly drew any Jones v Dunkel inference against the applicant. While the respondent submitted to the judge that such an inference could and should be drawn, fairly read, the judge did no more than observe (correctly) that evidence which could have been called by the applicant, on a topic which was contested, was not called.

78 In our view, the judge analysed all of the evidence and the parties' submissions with some care. Properly analysed, that evidence showed that the accident caused a spinal injury which, when judged by comparison with other cases in the range of possible impairment or losses,[64] could not be described as more than 'significant' or 'marked'. Moreover, we would arrive at the same conclusion even if one attributed all of the applicant's psychiatric consequences to her spinal injury as secondary consequences of that injury - rather than primary consequences which fall to be taken into account only under paragraph (c) of the definition of 'serious injury'.

79 Contrary to the applicant's submissions, the judge did not err in her consideration or application of Richards v Wylie. The nightmares which the applicant gave evidence of suffering following cycling were not relevant to her claim under paragraph (a) of the definition of 'serious injury'. Based on the applicant's evidence, her nightmares were not a response to her lower back injury. Rather, they were a response to the traumatic circumstances of the collision. In her evidence, she said that the nightmares usually occurred when she had been cycling or when she had to retell the story of what had happened during the accident. When interviewed by Dr Serry, she said that she was extremely cautious when riding a bicycle, she anticipates the worst when she is on the road, and she is extremely sensitive to other cyclists on the road. Dr Serry said that the applicant remained 'somewhat traumatised by the direct accident circumstances'. There was thus no error in the judge concluding that it was not the applicant's back injury or any mental response to that back injury which was a cause of the applicant giving up cycling. The judge was correct when she determined that the applicant's nightmares which caused her to give up cycling were not matters that could be taken into account under paragraph (a) of the definition of 'serious injury'.

80 Finally, there is no substance in the applicant's complaint about the adequacy of the judge's Reasons. Her Honour's Reasons were clear, concise and of a high standard. They dealt with the issues that were argued before her. They more than adequately explained her path of reasoning, and why the applicant failed in her application.

81 There is no substance in any of the applicant's proposed grounds of appeal. The judge was plainly correct when she determined that the applicant's injury did not meet the 'very considerable' test. The application for leave to appeal will be refused.

[1] Prior to the hearing of the application, the applicant abandoned reliance upon paragraph (c) in respect of what she had previously particularised as a 'severe long-term mental or severe long-term behavioural disturbance or disorder, involving a panic disorder with secondary agoraphobic features and with features of traumatisation'.

[2] Randhawa v Transport Accident Commission [2020] VCC 780, [102] ('Reasons').

[3] [1992] VicRp 58; [1992] 2 VR 129, 140 ('Humphries v Poljak').

[5] [2000] VSCA 50; (2000) 1 VR 79 ('Richards v Wylie').

[6] The judge referred to the affidavit dated 25 April 2020 as having been sworn, but it may be that, due to COVID-19 restrictions, the affidavit was not sworn. No issue was, however, taken about that, on the application or in this Court.

[7] The applicant's first affidavit refers to lower back and knee injuries, as well as an injury to her shoulders (the left shoulder being worse than the right shoulder).

[8] Notwithstanding that Dr Owen is a surgeon, on his letterhead he refers to himself as 'Dr Owen'.

[12] Ibid [11]. See Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 140.

[41] [2018] VSCA 284.

[42] [2008] VSCA 260.

[43] Ibid [93]-[95] (citation omitted).

[44] [2000] VSCA 50; (2000) 1 VR 79.

[48] [2011] VSCA 52; (2011) 31 VR 100, 121 [112]-[114] ('Sutton').

[49] [2005] VSCA 1 ('Hunter').

[50] [2005] VSCA 317.

[51] [2006] VSCA 215 ('Dressing').

[52] [2011] VSCA 110 ('Kamel').

[53] [1959] HCA 8; (1959) 101 CLR 298 ('Jones v Dunkel').

[54] See s 14C of the Supreme Court Act 1986.

[55] See Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 140.

[58] [2011] VSCA 52; (2011) 31 VR 100, 121 [112]-[114].

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