Richards & Anor v Wylie [2000] VSCA 50

"(a) serious long term impairment or loss of a body function; or (b) permanent serious disfigurement; or (c) severe long term mental or severe long term behavioural disturbance or disorder; or (d) loss of a foetus."

6. In the proceedings before his Honour, which were conducted on 7 and 8 September 1998, the respondent claimed to have suffered a "serious injury" within the meaning of sub-paragraph (a) and/or sub-paragraph (c) of the sub-section. His Honour found that the respondent had suffered a "serious injury" within the meaning of sub-s.(17)(a) but had not suffered a serious injury within the meaning of sub-s.(17)(c). Upon this appeal the appellants, pursuant to a notice of appeal which was amended on the day of the hearing, contend that his Honour's decision is vitiated by specific error and/or is plainly wrong (cf. Mobilio v. Balliotis [1]).

9. The transport accident giving rise to the respondent's injuries, occurred when a car which he was driving came into collision with another vehicle at an intersection. The respondent claimed to have suffered a "whip-lash type" injury to his neck. His application for leave to bring the proceedings was made after the T.A.C. had unfavourably assessed his degree of impairment pursuant to sub-ss. (3) and (4) of s.93 of the Act. Upon the hearing of the application the respondent and his general practitioner (Dr. Christian) gave oral evidence and were cross-examined. There was also put before his Honour a number of medical reports from medical practitioners who had examined the respondent either at the behest of his own legal advisers or those of the appellants. During the course of the hearing of the application, counsel for the appellants had strongly attacked the credit of the respondent and, in the course of doing so, had tendered a video-tape recording showing the movements of the respondent on two days in 1998, as well as a number of previous claims for compensation made against his employer, Coles Myer Limited, in April 1988, March 1993 and June 1993.

13. At the time when the application was heard the respondent was aged 48 years having been born in August 1950. At all material times he had been employed as a "bakery manager" at the "Coles Supermarket" in Forest Hill. He had been employed by Coles for some 11 years. Following the accident on 4 March 1995, he was taken to the Dandenong Hospital where his neck had been x-rayed. Nothing abnormal was detected. He remained absent from work until 24 July 1995 when he resumed his employment. After working for some five weeks he suffered from what was described upon the hearing as "a blackout" and he ceased to work. He has not worked since. From that time he has been under the regular care and management of his general practitioner. Indeed it became apparent upon the hearing that he had been under the care of Dr. Christian since approximately 1992, including a period of some four months in 1993 (following a dispute which had occurred with his superior at work) during which he had been treated for what was said to be a "stress related" illness or "adjustment disorder". After the car accident in 1995, the respondent had been referred to a large number of medical practitioners for the purpose of obtaining their opinions as to the cause of his ongoing disabilities. It was apparent from the medical reports tendered before his Honour that the medical experts differed as to the primary cause of his pain and incapacity. Some believed that the symptoms were primarily the result of soft tissue injury to the neck; others regarded the real cause of his symptoms as "functional" or psychosomatic. However all expressed an opinion that psychological factors played a part in producing the symptoms At the behest of his general practitioner, further x-rays of the cervical spine were taken in September 1995; a CT scan was performed in the same month; and an MRI scan was undertaken in February 1998. Again medical opinion as to the results of those various procedures differed. One medical expert suggested that "changes" to the spine noted in the CT scan were of "uncertain clinical significance"; another regarded the "changes" as "mild degenerative changes with a small osteophite formation"; yet another regarded the "changes" shown on the x-ray and CT scan as "degenerative" in nature. Most practitioners regarded the films and scans as showing nothing in the form of major abnormality, but as "minor". It was universally agreed that the x-rays and scans disclosed no disc damage or protrusion. In his affidavit and evidence, the respondent said that, following the motor car accident, he suffered from occasional "black-outs" for which he had been referred for neurological assessment. No neurological or organic basis could be found for them. At the time of the application the respondent was taking various forms of medication including tryptanol, tegretol and panadeine forte. He claimed that he was suffering from a diffuse range of symptoms including pain and stiffness in the neck, pain in both shoulders and arms, tingling sensation in the hands, pain in the lower back, headaches in the form of a "numb feeling" and loss of memory and concentration. Under cross-examination, the respondent first told the court that he had made no previous claims for work related compensation but, when confronted with the applications to which I have previously referred, admitted that he must have made such claims but could not remember them. Upon being shown the video-recording which had been taken in February 1998, the respondent agreed that it demonstrated that on that day he was engaging in a "short jog". He further agreed that the other video-recording taken in August 1998 showed that he had been shopping in Knox and had been "moving freely" in contrast to how he presented in court; but said that "I get some good days and other days I am bad". He agreed that it was a "fair summation of the video" that he was displayed as "going about his business in a mobile and unrestricted fashion". He also said that he frequently drove his car.

17. His Honour's reasons appear to me to be more discursive than they are conclusive. He accepted that, as a result of the transport accident the respondent had suffered a "whip-lash injury" to the cervical spine, but was not satisfied that any of the "changes" to the processes of the spine "were caused by [that] injury". He accepted that no major abnormalities were disclosed in the x-rays or scans which had been taken of the spine and nothing to suggest disc lesion or nerve root compression.

20. His Honour was content to accept that the respondent's description of his symptoms was genuine, although "bizarre". He concluded that the respondent's credibility had not been shaken in cross-examination which, although perhaps generous in the light of matters to which I have previously referred, is not a finding which can be disturbed by this Court.

23. It is also apparent that his Honour was content to accept the evidence of Dr. Christian that the soft tissue injury to the neck had and would continue to cause painful symptoms of various kinds and that, "although the physical side of the injury had stabilized, the psychosomatic component of it had not". In respect of this psychological component, his Honour referred at some length, and with apparent approval, to other medical opinion evidence before him; namely:-

(a) The evidence of Mr. McNeill - a neuro-surgeon that:

"[the repondent] suffers from the effects of a soft tissue injury of the cervical spine. ... There are superimposed psychological effects with apparently both depression and anxiety. I believe that the episodic disturbances [blackouts] are of a psychological nature, not ... neurological ...".

"[the respondent] has suffered from a depressive reaction from anxiety apparently associated with pain attacks ... . His psychiatric condition appears to be predominantly a primary response to his vague and jumbled memories of the accident scene."

"[the respondent's] description ... is suggestive of a major psychogenic component ...; [he] may be displaying hysterical symptoms secondary to a depressive illness."

It is, perhaps, surprising that his Honour was prepared to rely upon Dr. Gayner's opinion having regard to the fact that the doctor, upon being informed during the hearing that the respondent had conceded that he had made prior claims for compensation, had withdrawn his opinions. He claimed that the usefulness of his opinions depended "upon the accuracy of the information upon which they were based", and that he was satisfied that [the respondent] had misinformed him upon matters of substance. Notwithstanding Dr. Gayner's statement, his Honour said that:

"Despite the views of Mr. Gaynor, I am not deterred from accepting his conclusions set out in [his reports]."

No point has been taken by the appellants on this hearing of the use made by his Honour of the opinions of Dr. Gayner, largely because their withdrawal would not have affected the tenor of the evidence which was before the County Court.

41. Although his Honour was not satisfied that the evidence of the respondent's psychiatric condition amounted to a "severe long-term mental disturbance or disorder" within the meaning of sub-paragraph (c) of the definition in s.93(17), he was nevertheless prepared to have regard to it in considering whether the respondent was suffering from a "serious long-term impairment of a body function" within the meaning of sub-paragraph (a). He said he accepted that the soft tissue injury to the cervical spine was "a long term organic injury" and that the question was "the extent of such injury". It was in this context that his Honour considered the evidence of the "psychological impact" and, having done so, concluded that:

"On the balance of probabilities ... the injury caused by the accident has impaired the body function of the plaintiff's spine. I find such impairment to be long term and I find such impairment of function of the spine ... will continue to impact upon the plaintiff into the future."

"The injuries caused by the accident have had a particularly serious impact upon the plaintiff insofar as physical and mental pain and suffering and loss of enjoyment of life is concerned, and particularly in regard to his ability to utilize his bodily functions to carry out his normal daily activities and home chores, and in particular so far as he is concerned, the ability to be employed."

He also found that the respondent was not fit for his previous work and that his working capacity had been impaired. In his Honour's view the impact of the accident upon the respondent was "marked" and "especially so when I take into account the findings and his reaction ... in particular his psychological reaction."

48. Although it is clear that his Honour found that the respondent was suffering from a long-term impairment in the neck (or spine, as he put it), it is also clear that he was satisfied that the respondent had developed recognized mental disorders, variously described as "post-traumatic stress disorder", "depressive illness or disorder", and "anxiety disorder"[2]. What is not clear, however, is the view which his Honour formed as to whether the mental disturbances or disorders were the cause of the long-term impairment of body function which he found to exist, or a mere consequence of it. Trial counsel for the appellants had submitted to his Honour that where, as here, the evidence suggested that the respondent's symptoms were clearly influenced by mental factors, the Court had to maintain a clear distinction between the mental consequences produced by the accident and the physical consequences. The former, it was submitted, fell to be evaluated under sub-paragraph (c) of s.93(17) and the latter under sub-paragraph (a). Counsel submitted that the proper interpretation of the sub-section required the maintenance of this distinction and referred to a passage in the majority judgment of Crockett and Southwell, JJ. in Humphries v. Poljak[3] as support for his submission. The passage in the majority judgment to which counsel referred was one of a number of "propositions" which their Honours had put forward as governing the proper interpretation of sub-section (17) of s.93. They said:

"8. Sub-section (17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under paragraph (a) and the latter under paragraph (c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under paragraph (a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of paragraph (c). A `functional overlay' will, we consider, rarely amount to behavioural disturbance or disorder as that term is used in the legislation."

In a separate judgment in which he dissented on this point, McGarvie, J. (at 170) said that he could see no reason why mental disorders should be disregarded when considering whether a person has a serious long term impairment or loss of a body function within the meaning of sub-paragraph (a). His Honour acknowledged that, in expressing this view, he was differing from the view expressed by the majority (p.167).

53. At the outset of his reasons, his Honour had noted the submission made by counsel to which I have referred in the preceding paragraph. His Honour referred to it as "one of the issues that arose in this case" and defined it as one of "classification" - that is, where the evidence reveals psychological "reaction to a physical injury", which "particular sub-heading of serious injury is it correctly classified into, especially ... where both sub-headings are maintained?" His Honour answered the question which he posed for himself by rejecting the submission which counsel had made. Having referred to the passages in Humphries v. Poljak (to which I have referred), he said that he took the view that the "principle as set out by Crockett and Southwell, JJ. in my view provides for `functional overlay' as it was termed ... to be part of a consideration of the criteria under part (a)". His Honour went on to say that he regarded the comments of McGarvie, J. in Humhries v. Poljak (at 170) as "appropriate" and that it would be "artificial" to accept that "part (a) requires consideration of physical injuries only".

57. On this appeal, it was submitted on behalf of the appellants that his Honour had misconstrued the statement made by the majority in Humphries v. Poljak, supra, at 140 and had fallen into error in concluding that the respondent had suffered a "serious injury" within the meaning of s.93(17)(a) of the Act by having regard to the psychiatric consequences to the plaintiff of the injury which he had sustained.

60. Counsel further submitted that the textual distinction which had been drawn by the majority in Humphries v. Poljak was an appropriate distinction to be drawn on the proper interpretation of the sub-section and that, having regard to the differing standards to be applied by the court in determining whether an injury was "serious" under sub-paragraphs (a) and (c) (as to which see Mobilio v. Balliotis supra at 834-5, 846, 858 and 860-861) it was fundamentally wrong for his Honour to have taken into account evidence of recognised "mental disturbances and disorders" in determining whether the respondent was suffering from a "serious long term impairment of a body function" pursuant to sub-paragraph (a) of the sub-section. Appellants' counsel sought to call in aid of his submission a passage in the judgment of Callaway, J.A. in Ingram v. Ingram & Anor.[4] in which his Honour was considering an applicant's claim of "permanent serious disfigurement" within the meaning of sub-paragraph (b) of the definition of "serious injury". In that passage his Honour had said that he considered:-

"There is much to be said for the view that the psychological dimension of an injury, or at least that part that can be described as mental or behavioural, is primarily to be considered by reference to para (c) of the definition and that it would be an unusual case where it was appropriate to lead evidence of subjective response to disfigurement."

64. In the light of the authorities counsel contended that the court should continue to apply the textual distinction to which the majority in Humphries v. Poljak (supra) had referred and to hold that only injuries with physical consequences can constitute serious long term impairments for the purposes of s.93(17)(a) of the Act. It was contended that, having found that the evidence of mental disturbance or disorder could not support the existence of a "serious injury" under sub-paragraph (c), it was quite wrong for his Honour then to have transported that evidence into a finding that the respondent had suffered a "serious injury" within the meaning of sub-paragraph (a). The appellants' counsel contended that, although pain and suffering can be relevant in determining whether consequences are "serious", it was only injuries with physical consequences which could bear upon the question whether an identified impairment of body function existed. Alternatively, it was submitted that in determining whether an impairment of body function was "serious and long term" the court could only look at psychiatric or psychological responses which fell short of "mental disturbances or disorders". But, it was contended, for a judge to take into account evidence of what was truly a mental disturbance or disorder in determining that a "serious injury" had been suffered within the meaning of sub-paragraph (a) would fundamentally undermine the purposes of the statutory scheme.

67. In response to the appellants' submissions, it was contended on behalf of the respondent that his Honour was correct in concluding that the respondent was suffering from a loss of body function which was both "serious" and "long term" and in taking into account evidence of the respondent's psychological response to his organic injury. It was submitted that his Honour was correct to have found that there was an identified impairment of body function in the neck (or spine) which was "long term" and constituted by the soft tissue injury to the cervical spine. Having so found, it was contended that, in considering the seriousness of the impairment, his Honour was entitled to take into account the psychological responses of the respondent to that impairment. Counsel referred to the decision of Marks, J. in Ninkovic v. Pajvancek[5] where his Honour said (at page 429):-

"I think that for an impairment to be serious it must have consequences which are serious for the plaintiff, and having regard to the context of the statute in which this definition appears, I am of the opinion that a serious impairment which is long term is one which has serious consequence for the plaintiff in the form of disablement from work or interference with enjoyment of life."

This statement, "so far as it goes", was accepted by the majority of the court in Humphries v. Poljak (supra at page 136). Respondent's counsel thus submitted that it was both legitimate and appropriate for a judge, in considering whether an impairment of body function was "serious" within the meaning of sub-paragraph (a) to take into account any genuine psychological response of the applicant to his impairment. In this regard counsel referred to a passage in the judgment of Charles, J.A. in Cropp v. The Transport Accident Commission[6] where his Honour said:-

"As to the second issue, the functional overlay, it was said in Humphries v. Poljak (at 140) that a `functional overlay' will not ordinarily amount to a behavioural disturbance or disorder as that expression is used in sub-paragraph (c) of the definition of `serious injury'. But it does not follow that a functional overlay may not, in an appropriate case, constitute a relevant consequence of the impairment or loss of a body function when one is considering sub-paragraph (a) of the definition ..."

Accordingly, counsel submitted that his Honour was not in error in taking into account the psychological consequences of the respondent's injuries in determining whether he had suffered a "serious injury" within the meaning of sub-paragraph (a) of the definition.

75. It is not in doubt that this Court will not lightly interfere with a judge's finding that an applicant is suffering from "a serious injury" within the meaning of s.93(17). It is for the appellants to persuade us that the primary judge was wrong, and that is no easy task where the decision appealed against is one involving elements of fact, degree and value judgment (cf. Fleming v. Hutchinson[7]). Furthermore, the Court must be astute to have regard to the advantage which the primary judge had in assessing the respondent's credibility and determining disputed issues of fact. As this Court said in Mobilio v. Balliotis (supra at page 815, 841, 858 and 860) a judge's finding that an applicant had suffered a "serious injury" within the meaning of s.93 of the Act will only be disturbed if it is vitiated by specific error or can otherwise be shown to be plainly wrong.

78. Notwithstanding the constraints to which I have referred in the preceding paragraph, I am nevertheless persuaded that his Honour has fallen into error in permitting the evidence of mental disturbance or disorder to govern his decision that the respondent was suffering a long term impairment of a body function within the meaning of sub-paragraph (a) of the definition. I agree with the appellants' submission that s.93(17) intends to maintain a division between injuries with physical consequences and those with mental consequences, as Crockett and Southwell, JJ. pointed out in Humphries v. Poljak. Their Honours' comments, with which I agree, were intended to underline the distinction between the inquiry which is to be made under sub-paragraph (a) and that which is to be made under sub-paragraph (c). The inquiry which the judge must make under sub-paragraph (a) focuses his attention first upon whether the injury has produced an organic impairment (or loss) of a body function and then, by reference to the consequences of that impairment, to determine whether it is "serious" and "long term" (see Humphries v. Poljak, supra at 138 and 140, per Crockett and Southwell, JJ.). The "division" to which their Honours referred emphasizes, and was intended to emphasize, the nature of the inquiry which a judge is called upon to make under sub-paragraph (a) and to caution judges against succumbing to the temptation of equating "impairment of body function" with "injury". Their Honours noted, with apparent approval, a proposition which had been put on behalf of the respondents in that case to the following effect (134):

"It was pointed out that it is not the injury itself which must be looked at in order to determine if the requirement of the definition is met. Attention must be focused upon impairment or loss of body function. If such impairment or loss of body function is shown to exist, the question is then : is that impairment or loss both serious and long-term? If it is then, and only then, can the injury responsible for such loss or impairment possibly be regarded as a serious injury. This approach will prevent one from succumbing to the temptation to equate "body function" to "injury". The impairment of a person is not the same thing as the impairment of a person's body function."

Thus, the judge, in making the inquiry, must be careful - particularly in cases where mental disturbances or disorders have supervened - not to lose sight of the focus which the definition in sub-paragraph (a) calls for lest he falls into the erroneous reasoning process of allowing the consequences of a mental disturbance or disorder to govern, or even intrude into, a finding of "impairment or loss of a body function". If, for example, a person loses the use of his or her limbs as a consequence of injury to the spinal column and cord, that loss is a consequence of the long-term impairment of the function of the spinal process. If, on the other hand, a loss of use of the limbs occurs as an hysterical response to minor trauma, it is the "mental or ... behavioural disturbance or disorder" which is producing the impairment of body function and it is, accordingly, the severity of the mental disorder itself which must fall to be considered under sub-paragraph (c). Between the two extremes to which I have referred will, no doubt, be a range of differing circumstances; but if the body of evidence before the judge demonstrates that the consequences of a mental disturbance or disorder are themselves producing the impairment of body function complained of, it would be, as Crockett and Southwell, JJ. pointed out, "anomalous" to regard those consequences as falling to be considered under sub-paragraph (a) of the definition when clearly it is the severity of the disorder or disturbance itself which falls to be judged under sub-paragraph (c). Although the textual distinction between sub-paragraphs (a) and (c ) has been touched upon in other decisions since Humphries v. Poljak (see, for example, Turner v. Love and The Transport Accident Commission[8]) their Honours' statement of principle remains as a seminal statement of principle governing the interpretation of the sub-section and ought, in my view, to be followed.

83. I do not understand Crockett and Southwell, JJ., in stating the principle to which I have referred in the preceding paragraph, to have been suggesting that a mental or behavioural disturbance or disorder can never be taken into account in determining the seriousness of an impairment of body function which, in the exercise of the judge's task under sub-paragraph (a), he has found to exist (my emphasis). If, as a result of an injury, a person loses a limb, it will, no doubt, often occur that one of the consequences of such a loss or impairment will be the development of a mental response to that impairment or loss. That is one of the consequences which, along with others, the Court will need to evaluate in determining whether the loss or impairment of a body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as "serious" (cf. Humphries v. Poljak, supra at page 140). Such a response, as I see it, would be an expected consequence of an impairment or loss of a body function of the sort to which I have referred. I do not see the comments of Charles, J.A. in Cropp v. The Transport Accident Commission, supra at page 377, and to which I have earlier referred, as going beyond the proposition which I have stated. Thus, the "serious injury" defined by sub-paragraph (a) of sub-s.(17) can, I think, have its seriousness measured in part by a mental response to a physical impairment. What it will not recognize is that the mental disorder can itself constitute or be the producer of the impairment of a body function.

86. Although his Honour's reasons in this case are far from clear, it seems to me that they fail to recognise the textual distinction which sub-s. (17) intends to make between a "serious injury" as defined in sub-paragraph (a) and a "serious injury" as defined in sub-paragraph (c). It is clear from his reasons that his Honour accepted medical opinion evidence to the effect that the respondent had developed mental or behavioural disturbances or disorders as a result of his accident; and that it was those disturbances or disorders which were producing the symptoms upon which his Honour relied to found his conclusion that there had been an impairment of body function. Thus, his Honour accepted the opinion of the respondent's general practitioner that the respondent is suffering from a post-traumatic stress disorder which was producing or aggravating symptoms of pain and stiffness in the neck and other bizarre symptoms affecting other parts of the body. He accepted the evidence of Mr. McNeill that the "superimposed psychological effects of depression and anxiety" were producing black-outs. He accepted the opinion of Dr. Gibney that it is the psychiatric condition, manifesting itself in depression and anxiety, which is responsible for producing a variety of symptoms of which the respondent complains. He further accepted the opinion expressed by Dr. Gayner, notwithstanding that it had been withdrawn, that the symptoms were suggestive of "a major psychogenic component" and that the respondent "may be displaying hysterical symptoms secondary to a depressive illness".

89. In my opinion, it is implicit in his Honour's conclusions that he was accepting that the respondent's mental disorders or disturbances were, to a significant degree, producing the symptoms upon which his Honour relied in finding that the respondent was suffering from a long term impairment of a body function. That implication arises, not only from his Honour's departure from the proper construction of s.93(17) but also from his conclusions. Thus he found that the injuries caused by the motor car accident, physical and mental, have had a serious impact upon the respondent, particularly "in regard to his ability to utilise his bodily functions, to carry out his normal bodily daily activities". He found that the impact of the motor car accident upon the respondent's earning capacity is "marked" having regard to the respondent's "reaction - particularly his psychological reaction". These reasons, when taken as a whole, suggest to me that he was finding that it was the respondent's mental response to the motor car accident, in combination with the "soft-tissue" injury, which was producing, or at least playing a large part in producing, the impairment or impairments to what his Honour described as the "bodily functions" of the respondent. I agree with counsel for the appellants that the overall effect of what his Honour did was to fail to observe the textual distinction which the legislature has intended to draw between sub-paragraphs (a) and (c) and that, in substance, he has found that the "impairment of the body function" is the product, or largely the product, of the mental disturbance or disorder which he found to exist. For the reasons which I have given, that disturbance or disorder fell to be judged under sub-paragraph (c) and not under sub-paragraph (a) of the definition contained in sub-s.(17). Stripped of the consequences of such mental disturbance or disorder, his Honour could not reasonably have been satisfied, in my opinion, that the impairment of function in the spine itself was either "long term" or "serious".

92. I am, accordingly, of the view that this appeal should be allowed, that his Honour's order granting leave to bring the proceedings should be set aside and that this Court should order that leave to bring such proceedings should be refused.

97. I have had the advantage of reading in draft the reasons for judgment prepared by Winneke, P. I agree with him that the appeal should be allowed.

100. I was initially attracted to the view that the relevant distinction between paragraphs (a) and (c) of the definition of "serious injury" was that the former was concerned with the results of injuries while the latter was concerned with the injuries themselves. Paragraph (a) of the definition was concerned with the physical consequences of injuries, no matter what their origin, be it mental or physical, whereas paragraph (c) of the definition dealt with behavioural or mental disturbances or disorders themselves.

103. Upon further reflection I have formed the view that each of the paragraphs of the definition was intended to cover a separate area. If mental or behavioural states causing impairment or loss of a body function can fall within both paragraphs (a) and (c), there will be a large degree of overlapping, which I do not think was intended. Overlapping is largely avoided if paragraph (a) is viewed as being concerned with physical or organic injuries and paragraph (c) as dealing with mental or behavioural conditions. An injury causing organic damage is to be evaluated in terms of the effect which it has on a body function. On the other hand, if impairment or loss of a body function is not the result of organic damage but rather a mental or behavioural reaction to past damage or trauma, the condition producing the impairment or loss is to be assessed according to the criteria found in paragraph (c). This appears to me to be the distinction made by Crockett and Southwell, JJ. in Humphries v. Poljak [1992] VicRp 58; [1992] 2 V.R. 129 at 140.

106. That is not to say that mental or behavioural disorders have no part to play in considering whether the requirements of paragraph (a) have been met or that physical incapacity is irrelevant in considering the applicability of paragraph (c). Just as the physical consequences of a mental or behavioural disorder may have a bearing on the severity of the disorder, a mental or behavioural component can affect the question whether a physical injury is serious and long-term. However, there must be existing organic or physical injury if the injury is to be judged according to the criteria found in paragraph (a) of the definition. If physical incapacity is due to a mental or behavioural state, it is not a serious injury within the meaning of paragraph (a). In the present case there was either no current physical basis for the respondent's symptoms or, if there was a persisting soft tissue injury, it was no more than the trigger of a psychological disturbance which far outweighed the direct effects of any organic damage. The respondent did suffer physical injury in the accident that occurred on 4 March 1995. However, a mental or behavioural disorder supervened and that disorder was responsible for the impairment of a body function suffered by the respondent.

109. The impairment or loss of a body function of the respondent was the consequence of a mental or behavioural disturbance or disorder, and in the words of Crockett and Southwell, JJ., it would be anomalous to regard it as falling within paragraph (a) when the disorder or disturbance itself is to be judged according to the criteria found in paragraph (c).

113. I also agree that, for the reasons given by the President, the appeal should be allowed.

116. The requirement formulated by Crockett and Southwell, JJ. in Humphries v. Poljak[9] that, in the context of determining whether the injury sustained by the plaintiff as a result of the accident is a "serious injury" a distinction must be maintained between the physical consequences of the injury and those which have resulted in mental or behavioural disturbances, is a reflection of the wording of s.93(17) of the Transport Accident Act 1986. Thus, so far as is relevant, the consequences of the injury are to be determined by reference to the definition of "serious injury" in either para.(a) or (c). Although the textual distinction between those paragraphs may be simply stated, it will often be a difficult task for the trial judge to determine which of para.(a) or (c) applies for the purpose of establishing whether an injury and its manifestations amount to a "serious injury".

119. It is likely that in many cases the injuries caused by a transport accident will have physical as well as mental consequences for the plaintiff, with the result that it may appear that either definition could be appropriately applied in determining whether the relevant injury is a "serious" one. In such circumstances, which test is appropriate will fall to be determined by the consideration of what is the dominant cause of the plaintiff's condition. Is it predominantly the result of the physical injuries arising from the accident, or is the dominant cause of the condition the mental and psychological factors flowing from the accident? But whichever test is to be applied, in determining if its requirements have been satisfied, all the relevant consequences for the plaintiff arising from the accident are to be considered. Thus, if it is decided that, in a given case, the test in para.(a) is appropriate because the plaintiff's relevant condition has been brought about predominantly by the relevant physical injuries, in deciding whether the relevant impairment is serious and long term, regard is to be had not only to the physical cause of the impairment, but also to any mental or behavioural disturbances flowing from the physical injury, such as "functional overlay" to which the President refers in his judgment. The same applies where the dominant cause of the plaintiff's condition consists of mental or psychological factors. In such a case, any accompanying physical incapacity may be taken into account in determining whether the plaintiff's mental or behavioural disabilities are serious and long term. But the first task is to decide whether the dominant cause of the plaintiff's condition falls to be determined by reference to the criteria in para.(a) or (c). Such an approach is likely to prevent the tail wagging the dog or creating the "anomaly" to which their Honours referred in Humphries v. Poljak[10] which might otherwise take place as it did in this case. The medical evidence summarised by the President seems to establish that, although the plaintiff suffered a soft tissue injury of the cervical spine, it was the operation of mental and psychological factors that were the dominant cause of his condition. In those circumstances, it was inappropriate to determine the relevant issue by applying the criteria in para.(a) of the definition section. As the President has pointed out, in the circumstances of this case, the question whether the plaintiff suffered a "serious injury" fell to be determined by the provisions of para.(c) and not para.(a).

[ ]2 See "Medicine & Surgery for Lawyers", A.J. Buzzard et al (1986) at 98, 99 and 105.

[ ]3 [1992] VicRp 58; [1992] 2 V.R. 129 at 140.

[ ]4 [1996] VicRp 77; [1996] 2 V.R. 435 at 438.

[ ]5 [1991] VicRp 81; [1991] 2 V.R. 427.

[ ]6 [1998] 3 V.R. 357 at 377.

[ ]7 (1992) 66 A.L.J.R. 211.

[ ]8 (1995) 21 MVR 314 at 323.

[ ]9 [1992] VicRp 58; [1992] 2 V.R. 129 at 140