Rodda v Transport Accident Commission [2008] VSCA 276

1 I have had the advantage of reading, in draft, the reasons for judgment of Hargrave AJA. I agree, for the reasons which he gives, that the appeal should be allowed, and that an order should be made on the appellant's substantive application as his Honour proposes.

2 I have had the benefit of reading in draft the reasons of Hargrave AJA. I agree with his Honour's proposed disposition for the reasons he gives.

3 The appellant, Paul Rodda, sought leave pursuant to s 93(4)(d) of the Transport Accident Act 1986 (Vic) ('the Act') to commence proceedings for damages in respect of injuries suffered by him in a transport accident, which occurred in the course of his employment, on 11 June 2000 ('the collision'). In his application, the appellant contended that he had suffered a 'serious injury', as defined by s 93(17) of the Act, in two respects. First, a back injury which gave rise to a serious long-term impairment or loss of a body function, within the meaning of paragraph (a) of the definition. Second, a severe long-term mental or severe long-term behavioural disturbance or disorder, within the meaning of paragraph (c) of the definition.

4 A judge of the County Court dismissed the application for leave to commence proceedings. The appellant seeks leave to appeal this decision, that his appeal be allowed, and that this Court grant him leave to commence proceedings in respect of the injuries suffered by him as a result of the collision.

5 The grounds of appeal may be summarised as follows. First, it is contended that the judge made two erroneous factual findings, each of which was an essential

step in reaching critical conclusions upon which her judgment is based. Second, that the trial judge failed to make sufficient findings of fact necessary to support the conclusions reached. Third, that these conclusions were in fact not supported by the evidence. Fourth, that the judge failed to give adequate reasons for her decision to refuse the application.

6 The respondent contends that the judge's reasons, in the light of the evidence as a whole and as referred to by the judge, demonstrate that the alleged factual errors are without substance; that the judge took into account facts which it is alleged she failed to make sufficient findings in respect of; that the conclusions reached by the judge were open to her on all of the evidence; and that, when read as a whole, the reasons adequately disclose the judge's path of reasoning which led her to dismiss the application.

7 In order to determine the issues raised on appeal, it is necessary to consider the essential facts. In this regard, although there are material aspects of the evidence given by or on behalf of the appellant which are not referred to in the judge's reasons, those aspects of the appellant's evidence which are referred to demonstrate that the judge accepted the appellant as a witness of truth. There is no criticism or rejection of any of his evidence in the reasons. In these circumstances, this Court should proceed on the basis that the evidence given by the appellant, both in his affidavit and orally, is to be accepted unless there is something inherently improbable about any aspect of it. In my view, there was no evidence of this kind given.

8 Further, in the absence of the judge rejecting the evidence given by friends and work acquaintances of the appellant as to the effect of his injuries upon him, that evidence should also be accepted on this basis.

9 The medical evidence, from both treating and forensic medical specialists, was referred to by the trial judge without criticism except that a preference was stated for some experts over one other.

10 The appellant was born in 1968. At the time of the collision, he was 32 years old.

11 The appellant left school when he was 15 years old. He completed a graphic reproduction/printing apprenticeship and worked for a brief time in that trade. However, he was trained only in the manual aspects of graphic production. With the increasing advent of computerisation, his skills became redundant. As a result, he did a variety of work and, until the mid 1990s, had a good employment history. However, from this time, until late 1999, he found work difficult to obtain and was on social security benefits. In late 1999, he did find some work. However, his hours were reduced and he began looking for other employment.

12 In 1998, while the appellant was experiencing difficulties finding regular employment, he attended night school and obtained a sub-agent's real estate licence.

13 In August 1999, the appellant was involved in a minor car accident and suffered minor injuries which quickly resolved.

14 In late 1999, the appellant commenced part-time security work, including crowd control, at a hotel. In March 2000, the appellant began fulltime work as a maintenance manager in the property management section of a real estate firm. He continued doing about four hours per week of part-time security and crowd control work. At this stage, the appellant was working 44 hours per week.

15 The collision occurred three months or so after the appellant had commenced regular work in the real estate industry. The evidence demonstrates that the back injury resulting from the collision has had a very substantial effect upon his ability to obtain and maintain regular employment since that time.

16 Immediately following the collision, the appellant had a sore lower back, sore left shoulder from the seat belt and a sore neck. He did not attend a doctor immediately, but waited in the hope that his symptoms would resolve quickly as had happened following his previous motor vehicle collision. However, three days afterwards, symptoms persisted and he attended his general practitioner, Dr McKenzie. The evidence about this consultation is sparse. It appears that Dr McKenzie examined him and prescribed some painkillers and anti-inflammatories.

17 The appellant commenced some exercises and stretches to assist with his back pain, and, in his own words, 'continued to struggle on at work'. These exercises did not assist, and he started suffering pain in his legs, particularly his right leg. Accordingly, he again consulted Dr McKenzie on 11 August 2000, one month after the collision. At this time, he was prescribed further medication and referred for physiotherapy. The physiotherapy aggravated his pain, so he ceased treatment in this regard.

18 Next, Dr McKenzie ordered an X-ray and CT scan of the lumbar spine and referred him to an orthopaedic surgeon, Mr Dunin, for assessment. In the meantime, a bone scan of his lower back was performed and Dr McKenzie certified that the appellant was unfit for work for various periods of time. The appellant ceased his part-time crowd control work.

19 The orthopaedic surgeon, Mr Dunin, referred the appellant to Dr Clayton Thomas, a rehabilitation and pain management practitioner. Dr Thomas prescribed a strong morphine-based analgesic, Oxycontin, and an anti-depressant, Endep. He also referred the appellant to see a psychiatrist, Dr Blandthorn. The appellant saw Dr Blandthorn on a number of occasions between December 2000 and October 2001. The appellant continued taking anti-depressants until he ceased, on his own volition, in 2002.

20 The appellant took leave from work for about two months until November 2000. During this period, he suffered considerable pain in his lower back and right leg. His sleep was disturbed and he had difficulty driving, sitting and performing other normal activities. In November 2000, the appellant returned to work on light duties and reduced hours. He gradually built up the hours and continued working throughout 2001 until his dismissal in December 2001.

21 In late 2000 and during 2001 the appellant was assessed by The Victorian Rehabilitation Centre for his chronic pain, physical and psychological issues. A rehabilitation program was recommended. The appellant participated in the program with enthusiasm and undertook the home exercises and other self-management principles taught.

22 During this period, he was also assessed by Worklife Rehabilitation and recommendations were made for strategies to be adopted by him in the workplace. In its final assessment and report dated 19 September 2001, Worklife stated that the appellant was no longer suitable for fulltime employment; that his future employment capacity was up to 30 hours of work per week with restrictions; that his duties involve no repetitive lifting, bending or prolonged sitting; and that he lift no more than 5 kilograms. In these circumstances, the appellant was referred to a specialist job placement company with experience assisting people with work injuries in finding employment. When the appellant was dismissed from his job in December 2001, this company assisted him to obtain part-time work as a security guard for 16 to 20 hours. However, after about six months, his employment was terminated when the employer lost a security contract.

23 The appellant then obtained work in the security industry from mid-2002 until June 2005. This work averaged between 20 and 30 hours per week, at a rate of approximately $18.00 per hour, and was suitable for the appellant because he was principally involved in a supervisory capacity, undertaking administrative tasks with little physical work. From time to time, he also did some security guard work. During this period, the appellant was supported by a tolerant and flexible employer, and able to roster his own hours according to his work capacity. Although the work was more suitable, the appellant found that he was nevertheless physically drained at the end of his short working week and his pain continued.

24 In 2004, when his employer decided to reduce administration costs, the appellant lost his supervisory position and was assigned to the more physically demanding job of a security guard. This involved him being on his feet most of the time and included substantial bending and twisting of his back. His pain increased to the extent that he was forced to stop work in about June 2005.

25 From this time, the appellant has had great difficulty in obtaining employment. He has lived off his savings and resides with his parents, who support him. An attempt at establishing a handy-man business with a friend was unsuccessful. In early 2007, he applied for and was granted a Disability Support Pension.

26 The appellant's back and leg pain continued unabated throughout this period and was still present at the time of the hearing of his application in the County Court. Unsurprisingly, the appellant was both physically and emotionally affected by his injuries, and the consequences upon his ability to obtain and maintain employment, and to enjoy life by the pursuit of regular employment, social and recreational activities and personal relationships.

27 The appellant did not like taking medication. In particular, as appears above, he disliked being on anti-depressants and ceased taking them in 2002. Further, he made efforts to reduce his reliance upon Oxycontin and ceased taking it for a period of time from early 2004. However, he still required the occasional prescription for Oxycontin and his resumption of its use coincided with the change in his employment duties in about May 2004, from principally supervisory to those of a security guard.

28 In summary, the appellant's evidence about his loss of employment and employment opportunities as a result of his injuries was as follows. He was forced to reduce his hours of work with the real estate agency and, subsequently, lost that job. Since then he has only been able to work part-time; going from working a 44 hour week at the time of the collision to a 30 hour week with restricted duties. Although he was able to maintain employment on this basis for about three years, he has since been unable to do so and feels, in my view justifiably, that his job applications are not taken seriously. In his words, when prospective employers discover that he has limited capacity to work due to a long-term injury from which he is unlikely to recover, his job applications are 'put in the shredder'.

29 In his affidavit in support of his application, the appellant described the effect of his injuries arising from the collision in clear terms:

1. The injury has affected me in a number of other ways. I notice that I suffered a substantial loss of appetite, particularly in late June 2000 and throughout 2001 when I had the very bad psychological reaction to my injuries. I lost about 11 kgs. I'm 181 cm tall and only weigh in the low 60 kgs.
2. Before the accident I enjoyed a very active life. One of my main recreations was going camping, when I would enjoy hunting and fishing. I'd go regularly with friends to Deniliquin and Wakool. On average I'd say I would go once every three months for a weekend or sometimes longer. In addition I went fishing regularly in rivers, in Port Phillip Bay and in the sea. Now I do the occasional bit of fishing and I've only been camping once or twice since the accident. Those sorts of activities just cause my injuries to flare up. It's just too painful to be fun anymore.
3. In the past I enjoyed going to a lot of motor sports as a spectator. I enjoyed going to the Grand Prix, the super bikes and the Nascar drag racing. I've hardly been since the accident. Driving to and from these events, standing for long periods during the events, and camping out over the weekend of the events all cause substantial increase to my back pain. When I do drive I have to stop every 30 minutes or so to stretch and move around. I feel sometimes that I am a burden on my family.
4. In the past I played squash about once a fortnight and tennis socially about once a month. My back and leg pain has prevented me returning to those sports. I still attempt fishing close to home but do not enjoy it much anymore especially in cold weather because of my back pain.
5. In the past I went to the gym pretty regularly for fitness. As I say I still go regularly, but now lift very light weights and there are limits to what I can do. In the past I enjoyed socialising going out for dinner and to night clubs and that sort of thing. I find those activities much less enjoyable these days. It is difficult sitting around the dinner table for long periods of time. Standing up at night clubs just causes an increase in back pain. As a consequence I go out socially far less than I used to and spend a lot of time on my own at home.
6. I now suffer constant pain in my lower back. The level of the pain fluctuates depending on activity. There is stiffness in my lower back. Regularly I feel muscle spasms tightening up my back. I continue to have pain into my right leg down the back of the leg as far as my foot. There is some associated numbness. Often I feel as if I am dragging my right leg, as if it doesn't want to work properly. I tend to walk with a limp sometimes since it seems to relieve pressure on my back. I also suffer from time to time with sciatic pain in my left leg down to my knee.
7. I continue to feel depressed, particularly about the ongoing pain and the way that injury restricts me and when I compare what I can do now to what I used to be able to engage in socially and occupationally, I become very despondent and withdrawn.
8. I am very worried about the future and how my back will be. After the accident I endeavoured to limit my activities to ensure that I could continue working but the security guard duties where I was working back on the floor were just too much for me and I do not believe I will ever be able to undertake such work again. The handyman painting type business which I engaged in for a short period of time in 2006 was lighter work but the business nevertheless failed. I have sought different types of work as a forklift driver and jobs in the general maintenance area but without success and I am currently in receipt of a disability support pension. I believe that I will have difficulty in ever getting back into the workforce.

30 In addition, as is to be expected, his injuries have had a significant effect upon his ability to establish and maintain a personal relationship.

31 The appellant was cross-examined before the judge. There was some attempt to challenge his description of his pre-collision activities, on the grounds that he was not earning sufficient income to engage in those activities to any meaningful extent. The credible response of the appellant was that money was tight and he needed to 'stretch things' and, most importantly, that he enjoyed social and recreational activities in company with others and that all participants pooled resources. The judge made no reference to this cross-examination in her reasons for judgment. She must be taken to have accepted the appellant's evidence in this regard.

32 The appellant's evidence as to the effect of his injuries upon his enjoyment of life and ability to work to his pre-collision capacity was supported by affidavit evidence of his friends and work acquaintances. As I have said, none of these witnesses were cross-examined, and the judge made no reference to their evidence in her reasons. Accordingly, their evidence must be taken as accepted by the trial judge.

33 In these circumstances, no issue arose before the trial judge, or on appeal, as to the reliability of the appellant as a historian in recounting his symptoms to the various treating medical practitioners consulted by him or who he saw for medico-legal purposes.

34 With a few exceptions, the medical evidence supports the appellant's evidence as to the effect which his injuries, arising from the collision, have had upon him.

35 None of the doctors, treating or forensic, were cross-examined. The only evidence from them is that contained in their reports and notes of attendances upon the appellant.

36 The initial X-ray, CT scan and bone scan taken in August and September 2000 were reported as normal, with no disc protrusions or spinal canal stenosis noted. Notwithstanding this, the doctors who examined the appellant generally accepted his description of his symptoms and considered that the likely cause of those symptoms was 'discogenic'.

37 A CT scan performed on 3 November 2006, about four months before the hearing in the County Court, was reported as disclosing mild central disc bulges at L4/5 and L5/S1, with no evidence of direct nerve root impingement or significant degenerative change.

38 The appellant's general practitioner, Dr McKenzie, provided a number of reports which were placed in evidence. Having regard to the specialist orthopaedic and pain management opinions, it is unnecessary to consider Dr McKenzie's evidence in any detail. It is sufficient to state that, although he was initially optimistic that the appellant would recover sufficiently to enable him to return to normal fulltime work, Dr McKenzie was of the consistent view that the collision resulted in Mr Rodda suffering a physical injury to his spine with secondary psychological symptoms, including depression.

39 Dr McKenzie's opinion as to the amount of work which the appellant could perform each week varied from up to 30 hours to up to 40 hours per week. However, in 2004 Dr McKenzie noted that when the appellant's working week approached 40 hours his pain was definitely worsened. Dr McKenzie consistently stated that due to the appellant's physical injury, he should limit his hours of work, not lift more than 5 kilograms, not lift or bend repetitively and not sit or stand for prolonged periods.

40 In his final report in December 2006, Dr McKenzie noted that during 2005 the appellant developed more definite right-sided leg pain which had persisted since that time. He recommended that the appellant's work hours should be restricted, and that there be continued restrictions upon his work tasks. Dr McKenzie concluded:

In summary Paul continues to suffer significant pain which seems related to a lumbar disc injury sustained in [the collision]. Due to the ongoing nature of the pain he appears to have a stable but poor prognosis and will likely suffer ongoing back pain.

41 Upon the appellant informing him that he was suffering persistent pain in both his lumbar spine and legs, with the leg pain associated with a feeling of intermittent weakness and numbness, Dr McKenzie referred the appellant to see an orthopaedic surgeon, Mr Dunin. Mr Dunin examined the appellant in October 2000, four months after the collision. In a report to Dr McKenzie, Mr Dunin recorded the appellant's pain history following the collision and noted that the CT scan did not demonstrate any disc prolapse. Notwithstanding the results of the CT scan, Mr Dunin gave the following opinion:

I suspect that Paul may well have disrupted one of his lumbar discs and has associated irritation of one of his nerve roots. He is not a candidate for any surgical procedure. He presents mainly with a pain management problem.

42 Mr Dunin referred the appellant to see Dr Clayton Thomas at the Victorian Rehabilitation Centre to arrange a rehabilitation program.

43 Mr Dunin did not see the appellant again until March 2007, five months before the hearing of the application in the County Court. At this time, Mr Dunin provided a more detailed report. He recorded the appellant's symptoms in terms indicating that he accepted the appellant's reports as genuine. He noted that the appellant reported constant pain in the right side of his back, with radiated pain into his right leg and constant numbness in the right foot; difficulty in driving, standing or sitting for prolonged periods; sleep disruption; and 'a dramatic change to his lifestyle and he generally feels pessimistic about life and has had suicidal thoughts.' He noted that the appellant was presently taking Oxycontin 'which he tries to take as little of as possible.'

44 On examination, Mr Dunin noted that the appellant walked with a moderate right-sided limp; there was significant para-vertebral spasm; there was marked tenderness in the lumbar spine, more so on the right side; that flexion and extension were markedly restricted, as was straight leg raising; and that the appellant had altered sensation in most of his right leg.

45 Based upon the appellant's reported history and symptoms, and upon his own examination, Mr Dunin expressed the following opinion:

Paul sustained a soft tissue injury to his lumbar spine as a result of a motor vehicle accident in 2000. He has not recovered from this injury and has ongoing, severe lower back pain. Although there was no objective evidence of a severe mechanical injury to his back, there has been dramatic alteration in his lifestyle as a result of this injury. He has not been able to work since 2005 and up until then he was only doing light manual work. His long term prognosis is poor. I consider that there is a significant functional overlay and secondary depression contributing to his level of disability. His examination findings reveal marked para-vertebral muscle spasm, back stiffness and limited straight leg raising. In addition he appears quite depressed and as I have stated in my report has had suicidal thoughts. The CT scan of his back does not show any serious abnormality.

Mr Rodda may be able to return to some part time work in the future if there is some improvement in his back condition. He would have to be in a position where he was allowed some flexibility of posture as he is unable to sit or stand for prolonged periods. In addition he would not be able to lift any objects more than five kilograms. I do not consider that his condition is likely to change in the future and his present level of incapacity will persist. He is not a candidate for any surgical procedure.[1]

46 As I have said, in October 2000 Mr Dunin referred the appellant to Dr Thomas, a pain management and rehabilitation specialist. The appellant gave Dr Thomas a history and description of his symptoms which accords with that given to Mr Dunin.

47 Dr Thomas' initial impression was that the appellant was suffering from mechanical back pain complicated by emotional distress. He concluded that the appellant needed psychology, physiotherapy and occupational therapy as soon as WorkCover funding could be made available and referred him to the Victorian Rehabilitation Centre for this purpose. He was concerned about the amount of pain killers the appellant was taking, and prescribed Oxycontin twice daily in lieu. Further, Dr Thomas prescribed an anti-depressant and some sleeping medication.

48 By December 2000, Dr Thomas was so concerned about the appellant's depression and emotional volatility that he referred him to Dr Alan Blandthorn, a psychiatrist, for review and treatment.

49 Dr Thomas saw the appellant on a number of occasions during 2001 and provided further reports to the workers compensation insurer. It is unnecessary to refer to them.

50 In May 2004, Dr Thomas took a new history and re-examined the appellant at the request of his solicitors. By this time, the appellant's duties in his employment had moved from a predominantly supervisory/administrative role to more of a hands on role as a plain clothed store detective. The appellant complained of constant pain in his lower back and some pain radiating down the right leg to his foot. Dr Thomas noted that the appellant, at this time, was not taking any medication. This appears to be a reference to his break from taking Oxycontin. Dr Thomas concluded that the appellant's symptoms arose 'from the structures of his lower back' and that conservative treatment, including an active exercise program, was required. He thought that the work which the appellant was then performing was ideal for the nature of his condition.

51 Dr Thomas reviewed the appellant again in December 2006. He again opined that the appellant's back pain appeared to come from the structure of his lower lumber spine 'and is probably related to facets and discs'. Dr Thomas concluded that the appellant's injury had left him with a partial incapacity for employment, limited to 30 hours per week with restrictions that he lift between waist and shoulder height only, lift a maximum of 5 kgs, avoid lifting, bending and twisting below waist height and above shoulder height, and that any light physical work would need to be done at bench height.

52 Dr Shanmugan, a general surgeon, examined the appellant in October 2000 at the request of the workers compensation insurer. He diagnosed a minor soft tissue injury to the lumber spine arising from the collision. He thought that the appellant may have a poor pain threshold and a perception that his injury was serious. He concluded that there was a 'partial incapacity' at that stage, and saw no reason why the appellant could not perform his pre-collision duties at work.

53 Mr Rodney Sim, orthopaedic surgeon, also examined the appellant on 31 August 2001 at the request of the workers compensation insurer. He too diagnosed a soft tissue injury to the lower back as a result of the collision. In his opinion, the appellant had subsequently developed 'the clinical picture of a pain syndrome with symptoms of depression and increasingly severe pain with difficulty coping at work.' However, Mr Sim recognised that 'there may well be a substantial physical component to his condition' and noted the difficulty in determining 'the nature and extent of this physical component as the injury has been complicated by an adverse pain response and reactive depression.' Mr Sim concluded:

Physically one would have expected him to be able to cope with his relatively light work but if one takes his clinical presentation as a whole, his adverse pain response and associated emotional condition seems to incapacitate him for fulltime employment.

54 Mr Michael Shannon, orthopaedic surgeon, examined the appellant on behalf of the workers compensation insurer in February 2003. He thought that the CT scan taken in 2000 did show a small central bulge of the lumbo-sacral disc, notwithstanding that the radiologist had reported it as normal. He concluded that the appellant had 'ongoing pain in the low back which may be discogenic in origin', that his complaints were consistent, and that he was limited in physical work, particularly bending or lifting.

55 In April 2007, Mr Shannon provided a report to the respondent. He noted that, at this time, the appellant was taking Oxycontin, which he was trying to avoid, and that he sometimes went for as long as a week without any painkillers. He considered the appellant's condition to have deteriorated since his previous examination in 2003, and thought that this was more likely a result of his worsening psychological condition rather than the effects of his physical injuries. Nevertheless, he was of the opinion that the appellant was not suited to heavy physical work and should be able to perform light security work, or other work not involving prolonged or repetitive bending or heavy lifting and which permits him to vary his posture. On the assumption that his presentation was genuine, he concluded that the appellant would not be able to do any physical maintenance work.

56 Mr Geoffrey Klug, neurosurgeon, examined the appellant at the request of his solicitors in May 2004. In his opinion, he stated it was not possible to precisely define the exact cause of the appellant's symptoms of back and leg pain. On the basis of the appellant's history as presented to him and his examination, he concluded that the appellant had 'a genuine and ongoing disorder of his lumbar spine' which limited appropriate employment to that which did not require frequent bending, lifting and twisting, and which would certainly reduce the appellant's enjoyment of life in general to some extent.

57 Mr Klug examined the appellant further in December 2006. He noted that the appellant was still taking Oxycontin when his pain was severe. He also observed very significant restriction in the appellant's movement and flexion, with the limiting factors being back and, to a lesser extent, right leg pain. He noted that the mild disc bulges disclosed by the recent CT scan could be consistent with discogenic back pain with referral of pain to the right leg. He regarded the appellant's prognosis as very guarded and stated that he did not believe the appellant should undertake activities where he was required to bend, lift and twist on a repeated basis. Light physical tasks at bench top height with some flexibility in the workplace may be appropriate, as would some activities in the security industry. He saw no reason to doubt that the appellant's persisting symptoms interfered with his enjoyment of life.

58 Mr Roger Westh, orthopaedic surgeon, examined the appellant at the request of his solicitors in April 2004. He noted that the appellant had tenderness at the lumbo-sacral junction and upper sacral region, restricted range of movement in his lumber spine, reluctance to move freely, and that the appellant complained of back pain upon forward flexion. He concluded that the appellant had likely suffered a lower back strain injury with a possible internal lumber disruption and, at that time, presented with chronic lower back pain of a mechanical nature, which was mainly activity related and had a significant accompanying psychological stress reaction affecting his overall condition. He assessed the appellant as having a 20 per cent permanent disability to his lumber spine as a result of the injury sustained in the collision.

59 Mr Westh saw the appellant again in March 2007. In his opinion, the appellant's physical condition had deteriorated and was accompanied by a psychological stress reaction which was 'interfering with his progress and is also affecting his overall outlook'. He concluded that the appellant:

Can be considered to have a poor long term prognosis particularly given his severe accompanying psychological stress reaction. His future job prospects can be considered to be poor given his overall difficulty coping and he also has difficulty sitting and standing for long periods. As a result of his injury Mr Rodda has been markedly affected both recreationally and socially.

60 Dr Alan Blandthorn was the appellant's treating psychiatrist between December 2000 and October 2001.

61 In December 2000, Dr Blandthorn diagnosed the appellant as suffering chronic pain syndrome and a major depressive episode. He continued the appellant on anti-depressant therapy and reviewed him regularly until May 2001. During this process, the appellant expressed dissatisfaction with the treatment he was receiving from WorkCover, but made positive statements about the pain management program he was undertaking and his depression somewhat reduced. After a break from psycho-therapy for some months, the appellant attended Dr Blandthorn again in October 2001 as a result of receiving a warning at his work about his performance. There was a brief exacerbation of his depressive symptoms and Dr Blandthorn recommended continuing treatment with anti-depressants. As I have said, the appellant ceased taking anti-depressants in 2002, on his own volition. He did not think he needed them.

62 Dr Blandthorn reviewed the appellant in December 2006 for medico-legal purposes. He gave a full history to Dr Blandthorn, which was consistent with that given to other medical practitioners. In addition, he stated that he was now living with his parents and felt guilty relying upon them. Further, the appellant told Dr Blandthorn that he called off a relationship with a younger woman because he 'could not consider' marriage and children and that he had lost interest in sex to some extent because he was apprehensive of the pain it might cause to his back. He stated that he was intermittently using Oxycontin when the pain was more intense. Further, he related inability to participate with his friends in activities such as fishing, camping, motor bike riding, and pig shooting, that he had lost interest in 'anything' and could not even sit and watch television. He was disinterested in food and his weight had dropped to 60 kgs. He considered himself 'better off dead', but had no clear suicidal plans. In summary, he gave Dr Blandthorn a history of pessimism, hopelessness and frustration, with a focus on loss of income, activity and enjoyment.

63 In all the circumstances, Dr Blandthorn concluded that the appellant continued to fulfil the diagnostic criteria for a pain disorder associated with both psychological and physical factors. As to his depression, Dr Blandthorn thought that his initial diagnosis of major depressive disorder, in 2000, was now in partial remission. The conclusion expressed by Dr Blandthorn was in the following terms:

Unless some change is expected in Mr Rodda's physical condition, I would consider his psychiatric state to have stabilised.

Mr Rodda describes a pervasive loss of pleasure in recreational pursuits.

In the absence of pain, Mr Rodda's depressive symptoms alone would not restrict his hours of employment or work duties.[2]

64 The appellant was seen by Dr David Weissman, consultant psychiatrist, at the request of his solicitors in December 2006. Dr Weissman provided a detailed report in which he concluded that the appellant had sustained, as a result of the collision, a serious or severe injury according to the Act. He based this opinion on the following diagnosis.

65 First, Dr Weissman diagnosed, at that time, a major depressive disorder with anxiety and agitation, which he described as 'essentially a secondary reactive or consequential accident-related psychiatric condition.' On purely psychiatric grounds alone, Dr Weissman was of the view that the appellant had sustained a moderately severe psychiatric injury from the collision. Reading his report as a whole, it is evident that the appellant's physical pain, symptoms and disabilities and the impact which they have on his work capacity and enjoyment of life were substantial contributors to his overall medical condition.

66 Second, as to the effect upon the appellant's daily life, Dr Weissman considered that his moderate psychiatric symptoms had only a moderate impact, with the clear inference that it was the physical symptoms which predominantly affected the appellant's enjoyment of life.

67 Third, 'on purely psychiatric grounds alone', Dr Weissman considered that the appellant would not be able to work fulltime and would have difficulty coping with part time work unless it was simple, low-pressure and in a supportive environment. When the appellant's physical symptoms were also taken into account, Dr Weissman was of the opinion that the appellant was totally incapacitated for all employment, even on a part time basis.

68 Dr Weissman concluded his report by stating that the appellant should be receiving regular treatment for his psychiatric condition and that his psychiatric prognosis was 'only fair'.

69 The appellant was reviewed by Dr Victor Botvinik on behalf of the workers compensation insurer in January 2003. In Dr Botvinik's opinion, the appellant had demonstrated symptoms of an adjustment disorder with anxious and depressed mood soon after the collision, which was his reaction to quite significant pain, but his psychiatric condition had by January 2003 'lifted nearly completely'. Dr Botvinik expressed the opinion that the appellant was not, at that time, suffering from any form of psychiatric impairment and required no form of psychiatric treatment.

70 The appellant was reviewed by Dr Nicholas Ingram on behalf of the respondent in November 2006. Dr Ingram was of the opinion that the appellant suffered from a chronic adjustment disorder with depressed mood 'which is a secondary consequence of his chronic pain and the limitations that this has led to in his life, particularly the fact that he has been unable to continue working and find new employment.' Dr Ingram noted that there might be some improvement in the appellant's psychiatric condition if he were able to find employment. Dr Ingram concluded:

Ultimately, however, I feel there is unlikely to be a complete resolution of his depression unless there is an improvement in his pain. Overall, therefore, although there might be a few percent improvement in his depression if he were to try an anti-depressant, I think his symptoms are probably fairly stable, given that the depression has now been present for several years and there has been no improvement in his pain over that time. I do not feel that his depression on its own would be likely to cause him difficulty in finding employment, which I feel is due to his back pain, though the depression affects his ability to enjoy leisure activities.[3]

IV APPLICABLE LAW - SERIOUS INJURY CLAIMS UNDER THE ACT

71 By s 93(4)(d) of the Act, a Court may give a person leave to bring proceedings in respect of an injury suffered as a result of a transport accident.

72 In this case, there is no issue that the appellant's injuries were caused by the collision. Nor is there any issue concerning the effect of any pre-existing physical or psychological impairment. The issue the trial judge had to consider was limited to whether the appellant had established that his injuries fell within the definition of 'serious injury' at the date of the hearing of the application.

73 Section 93(6) provides that a Court must not give leave under sub-section (4)(d) unless it is satisfied the injury is a serious injury. Relevantly, 'serious injury' is defined by s 93(17) as follows:

Serious injury means -

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

(b) ...

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

...

74 In cases such as the present, where there are both physical injuries and resulting psychological effects upon the applicant, the Court is required to consider paragraphs (17)(a) and (17)(c) of the definition of serious injury in the Act. The following principles are established.

75 First, s 93(17) intends a division between injuries with physical consequences and those with mental consequences. In that regard, a 'functional overlay' or mental response to a physical injury will rarely amount to a behavioural disturbance or disorder within paragraph (c) of the definition.[4]

76 Second, to fall within paragraph (a) of the definition of serious injury, the consequences of a physical injury must be both long-term and serious to the particular applicant. The relevant consequences to be considered include both pecuniary disadvantage and pain and suffering. The test for determining whether the consequences of an injury are serious is:

can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as 'very considerable' and certainly more than 'significant' or 'marked'?[5]

77 Third, to fall within paragraph (c) of the definition of serious injury, the consequences of a mental or behavioural disturbance or disorder to the particular applicant must be 'severe'. Because severe is a word 'of stronger force' than the word 'serious', the consequences must be more significant under paragraph (c) of the definition than under paragraph (a).[6]

78 In Richards v Wylie,[7] the Court of Appeal considered a case involving an applicant whose symptoms were produced by a combination of a physical injury and consequential psychological factors.

79 The applicant had suffered a minor whiplash injury, resulting in a psychiatric condition which, in turn, was responsible for producing a variety of 'bizarre' physical symptoms. The County Court judge applied paragraph (a) of the definition and granted leave to commence proceedings on the basis that the combination of physical and psychological injuries had resulted in serious consequences for the applicant. The Court of Appeal held that the application fell to be determined under paragraph (c) of the definition because the principal cause of the applicant's symptoms was the mental disturbance or disorder and not the physical impairment suffered as a result of the motor vehicle accident.

80 In considering whether the applicant needed to establish that the consequences of his injury were severe, or whether it was sufficient to establish that they were serious, the Court dealt with the inter-relationship between paragraphs (a) and (c) of the definition of serious injury.

81 Winneke P referred to the joint judgment of Crockett and Southwell JJ in Humphries v Poljak and continued:

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 ... 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.[8]

82 Chernov JA said the following in relation to the inter-relationship of paragraphs (a) and (c) of the definition in a case involving both physical injury and consequent psychological factors:

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 'erious' 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 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).[9]

83 Fourth, this Court will not interfere with a judge's determination to grant or refuse an application for leave to bring proceedings under s 93(4)(d) of the Act 'in the absence of specific error, unless satisfied that the determination was plainly wrong or wholly erroneous.'[10]

84 The grounds of appeal can conveniently be divided into three categories. First, alleged factual errors made by the trial judge. Second, inadequacy of the trial judge's reasons. This second category includes the failure to make sufficient findings of fact necessary to support the conclusions reached. Third, that the conclusions reached were not in fact supported by the evidence and that this Court should itself re-determine, and grant, the appellant's application for leave to commence proceedings.

85 It was contended on behalf of the appellant that the trial judge made two significant factual errors, each of which substantially affected the critical conclusions upon which her judgment is based.

86 The trial judge found that the appellant had suffered a physical injury to his lumbar spine as a result of the collision, and that the physical injury 'has left him with persistent low back pain and some pain into the leg.'[11] The trial judge then considered and rejected the appellant's claim that this physical injury constituted a serious long-term impairment or loss of a body function within the definition of 'serious injury' contained in s 93(17)(a) of the Act.

87 The first reason given by the trial judge for rejecting this aspect of the appellant's application was that he 'ceased to taking anti-depressants in 2002 and Oxycontin in early 2004.'[12] Insofar as that finding relates to the appellant's use of Oxycontin to control the pain in his back and right leg, it was clearly erroneous. As appears above, the evidence established that the appellant made efforts to reduce his reliance upon Oxycontin and ceased taking it for a period of time from early 2004. However, he still required the occasional prescription for Oxycontin and his resumption of its use coincided with the change in his employment duties in about May 2004, from principally supervisory to those of a security guard. The records of Dr McKenzie's practice indicate that the appellant was prescribed Oxycontin on a fairly regular basis from May 2004 until those records ceased to be maintained in December 2006. The appellant said that he had taken Oxycontin on the day he gave evidence, and this was not challenged.

88 It was submitted on behalf of the respondent that a reading of the judge's reasons as a whole discloses that the judge well understood that the appellant ceased regular use of Oxycontin in early 2004 and was still using it about three months before the hearing of the application. Further, it was submitted that the challenged finding was open to the interpretation that it was a reference to the short period in early 2004 when the appellant ceased taking Oxycontin altogether.

89 I do not accept the submissions of the respondent in this regard. The trial judge gave brief and, as will appear, inadequate reasons for concluding that the appellant's physical injuries were not 'serious' within the meaning of paragraph (a) of the definition of 'serious injury' in the Act. If the trial judge had meant to record only that the appellant had ceased taking Oxycontin for a period, or had intended to rely upon the appellant's reduced reliance upon Oxycontin at relevant times, she would or ought to have said so.

90 The finding that the appellant ceased taking Oxycontin in early 2004 was wrong. On a reading of the judgment as a whole, that wrong finding contributed to both the judge's conclusion that the physical injuries of the appellant were not serious and her conclusion that the dominant causes of the appellant's symptoms were psychological and not physical, thus requiring (as the judge held) the application to be determined under the more stringent 'severe' standard required in order to satisfy paragraph (c) of the definition.

91 Having rejected the appellant's claim that his physical injuries were serious, the trial judge determined that, in any event, the dominant cause of the appellant's symptoms was his psychological response to the physical injuries. This conclusion was expressed in the following way:

In any event, having regard to the fact that the weight of the orthopaedic evidence is that the low back strain or discogenic pain has been overtaken, as early as August 2001, by a pain syndrome, I consider that it is more appropriate to consider the psychological aspect of [the appellant's] injury under paragraph (c) of the definition of serious injury.[13]

92 In my view, the trial judge's conclusion in this regard was clearly wrong. The application fell to be determined under paragraph (a) of the definition of serious injury, not under paragraph (c). The weight of the evidence was that the appellant continued to suffer pain from his physical injuries; that the pain was genuine; that the pain and physical injuries caused the appellant to have restricted movement and ability to perform physical tasks in his social, recreational and work activities; and that, secondary to these physical consequences, the appellant suffered from a mental, emotional or psychological response. I accept that there are some contrary views expressed by some of the medical experts, particularly those who examined the appellant on behalf of the workers compensation insurer or the respondent. However, the weight of the evidence is not to the effect found by the trial judge. I am of this view for the following reasons.

93 First, in reaching her conclusion that psychological factors were the dominant cause of the appellant's symptoms, and that his application fell to be determined under paragraph (c) of the definition of serious injury, the judge was wrong to focus only upon her view of the weight of the orthopaedic evidence. The judge was required to consider the whole of the evidence, both lay and expert, in reaching her determination as to the dominant cause of the appellant's symptoms. This included an analysis of the appellant's own evidence, the evidence of his friends and work acquaintances, the evidence of the treating medical practitioners and the evidence of the medico-legal doctors, both orthopaedic and psychiatric.

94 Second, the appellant's own evidence was that it was the physical symptoms which were the dominant cause of his pain and suffering, loss of enjoyment of life and reduced earning capacity. That evidence was not rejected by the judge. Nor was the evidence of the appellant's friends and work acquaintances which supported it. As I have said, the appellant's evidence was in no way inherently improbable, such that the judge must have determined to reject it. In the absence of any reasoned findings rejecting his evidence, and the evidence of his friends and work colleagues, it should be accepted.

95 Third, almost without exception the medical practitioners who gave evidence accepted the appellant as a credible historian of his symptoms. To the extent that there may have been some doubts expressed as to the reliability of the appellant's account of his symptoms, those doubts are far outweighed by the majority of the medical practitioners who provided reports.

96 Fourth, the weight of the medical evidence is that the appellant's physical symptoms were the dominant cause of his pain and suffering, loss of enjoyment of life and reduced capacity to work:

(1) The appellant's treating general practitioner, Dr McKenzie, consistently stated that it was the appellant's physical injury which limited his capacity for work.

(2) The first orthopaedic surgeon who consulted the appellant, Mr Dunin, was of the opinion that the appellant may well have disrupted one of his lumbar discs with associated irritation of one of the nerve roots. In his opinion, the appellant presented 'mainly with a pain management problem'. When Mr Dunin examined the appellant in 2007, shortly before the hearing of his application, he concluded that the appellant had not recovered from the injury suffered by him in the collision and that he had 'ongoing, severe lower back pain' and, further, 'that there is a significant functional overlay and secondary depression contributing to his level of disability.'[14] Mr Dunin concluded that the ability of the appellant to return to part time work was dependent upon 'some improvement in his back condition'. It is clear Mr Dunin was of the general opinion that the primary cause of the appellant's overall medical condition was physical, with secondary or consequential psychological factors having some contribution.

(3) Dr Thomas, the pain management and rehabilitation specialist who consulted and treated the appellant, while expressing real concern about the appellant's psychological condition during late 2000, concluded in 2004 and 2006 that the appellant's symptoms arose 'from the structures of his lower back' and that the symptoms were 'probably related to facets and discs'. For this reason, accepting the history presented to him by the appellant, and having regard to his clinical examinations of the appellant, Dr Thomas concluded that the appellant's ability to work had been significantly restricted as to both duration and capacity.

(4) Mr Michael Shannon, an orthopaedic surgeon who examined the appellant on behalf of the workers compensation insurer in 2003 and 2007, accepted that the appellant had ongoing pain which 'may be discogenic in origin' and that, by reason of his physical symptoms, the appellant was not suited to work involving prolonged or repetitive bending or heavy lifting, and that any work undertaken by the appellant should enable him to frequently vary his posture. On the assumption that the appellant's presentation was genuine, about which he expressed no opinion, Mr Shannon concluded that the appellant would not be able to do any physical maintenance work. Mr Shannon did express the opinion that he thought the deterioration of the appellant's overall condition between 2003 and 2007 was more likely to have been the result of his worsening psychological condition rather than the effects of his physical injuries. However, Mr Shannon is not a psychiatrist or psychologist, and expressed no opinion as to the dominant cause of the appellant's overall physical and mental condition.

(5) Dr Shanmugan, who examined the appellant once in October 2000 at the request of the workers compensation insurer, stands alone among the medical practitioners in his opinion that the appellant's physical injuries were minor.

(6) Mr Sim, an orthopaedic surgeon, examined the appellant in August 2001 on behalf of the workers compensation insurer. The reference in the trial judge's reasons to the appellant's physical symptoms being 'overtaken, as early as August 2001, by a pain syndrome' is obviously a reference to Mr Sim's report. However, Mr Sim's report says no such thing. Mr Sim's report noted the existence of both physical injuries and a pain syndrome, and expressed the view that the nature and extent of the physical component of the appellant's injuries had been 'complicated by an adverse response and reactive depression.'[15] Mr Sim did not conclude that the appellant's physical symptoms had at that time been overtaken by his psychological symptoms. In any event, the trial judge was required to determine the application as at the date it was heard. Mr Sim's opinion was expressed six years beforehand, and is not supported by the weight of the medical evidence arising from further examination of the appellant by other medical practitioners over the following six year period.

(7) Mr Klug, a neurosurgeon, concluded that the appellant's physical symptoms were genuine and interfered with his ability to work and his enjoyment of life.

(8) Mr Westh, an orthopaedic surgeon, saw the appellant in 2004 and 2007. He accepted that the appellant had suffered a physical injury with an accompanying psychological stress reaction.

(9) Dr Blandthorn, the appellant's treating psychiatrist, upon whose opinion the trial judge placed much reliance, did not express the opinion that the appellant's physical injuries had been overtaken by his psychological response to them. Although he diagnosed a pain disorder as late as December 2006, he stated that it was associated with both physical and psychological factors. He referred to the fact that the major depressive disorder, which he had been initially diagnosed in December 2000, was by this time in partial remission. He concluded that it was Mr Rodda's pain which was causing his suffering, loss of enjoyment of life and restriction on his ability to work. In Dr Blandthorn's opinion, the key to an improvement in the appellant's overall condition was a change in his physical condition, as his psychiatric state had stabilised.

(10) Dr Weissman, consultant psychiatrist, while diagnosing a major depressive disorder, described it as 'essentially a secondary reactive or consequential accident-related psychiatric condition.' As appears above, when considered as a whole, Dr Weissman's report clearly infers that the appellant's physical symptoms were the predominant cause of his pain, loss of enjoyment of life and restricted ability to work. If that not be the case, the overall diagnosis of a major depressive disorder, and the reasons given for it in his report, support Dr Weissman's conclusion that the appellant had suffered a severe mental disturbance or disorder as a result of the injuries sustained by him in the collision.

(11) Dr Botvinik, who examined the appellant on behalf of the workers compensation insurer in January 2003, expressed the opinion that, at that time, the appellant was not suffering from any form of psychiatric impairment.

(12) Dr Ingram, who reviewed the appellant on behalf of the respondent in November 2006, was of the view that the appellant's psychological symptoms were a 'secondary consequence of his chronic pain and the limitations that this had lead to in his life, particularly the fact that he has been unable to continue working and find new employment.'[16] Like Dr Blandthorn, the treating psychiatrist, Dr Ingram concluded that the appellant's psychiatric symptoms were unlikely to improve unless there was an improvement in his pain arising from the physical injuries.

97 Having regard to my conclusion that the trial judge made two fundamental factual errors, each of which undermines the conclusions reached by her, it is unnecessary to consider in detail the respects in which the judge's reasons were inadequate. However, as the matter was fully argued, I will briefly express my view.

98 This Court has in recent times considered the standard of reasons which are expected of judges when dealing with cases that actually or practically have the result of finally disposing of the rights of parties.[17] It is unnecessary to canvass the principles in any detail for the purposes of disposition of this appeal. It is sufficient to note that it is established that adequate reasons will provide an intelligible explanation of the process or path of reasoning which has led to the conclusion reached, and that a judge is required to consider and give adequate reasons in determining each of the substantial issues which have been raised for determination in the proceeding. Where there is a conflict on the evidence, and one version is accepted and the other rejected, the judge must avert to and assign reasons for preferring one version of the evidence over another. As appears below, the trial judge's reasons in this case did not, in a number of important respects, meet the standard expected and an error of law has thus been disclosed.

99 First, the inadequacies in the trial judge's reasons emerge from a simple comparison between the brief reasons given by the trial judge, quoted in full above, for her erroneous finding that the appellant's physical symptoms arising from his back and leg injuries had been overtaken by his psychological response to those injuries, and the evidence as a whole, to which I have referred. It is apparent from this comparison that the judge's conclusion in this regard involved the rejection of evidence by the appellant, lay witnesses supporting him and opinions expressed in medical reports. However, the judge did not advert to that evidence or assign logical reasons for its rejection.

100 Second, in reaching her conclusion that the appellant's physical injury did not constitute a serious long-term impairment or loss of body function within paragraph (a) of the definition of 'serious injury', the trial judge's reasons fell short of the required standard. The reasons are inappropriately brief having regard to the factual issues presented for determination, and are stated in a conclusory fashion without any analysis of the relevant evidence. The full reasons are quoted below:

1. The plaintiff ceased taking anti-depressants in 2002 and Oxycontin in early 2004. He continued to work in his pre-accident employment for some time after the transport accident, and since late 2001 has been certified physically fit to work 30 hours per week with restrictions in his pre-injury employment in the real estate industry as a maintenance manager or in the security industry doing loss prevention work. I acknowledge that some loss of income may flow from the reduced working week. I am mindful that there has [been] some loss of enjoyment of life flowing from his back pain in terms of interference with recreational activities involving prolonged sitting, standing or bending. I am not persuaded, however, having regard to the pain and suffering and pecuniary consequences of this impairment, that the impairment resulting from the injury, when judged by 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'.[18]

101 I have considered above the erroneous finding that the appellant ceased taking Oxycontin in early 2004. Further, whether correct or not, the significance of that finding is not explained in the reasons. Nor is the significance of the finding that the appellant ceased taking anti-depressants in 2002.

102 A substantial part of the appellant's case was that his physical injuries had caused him significant pecuniary loss, arising from his inability to work more than about 30 hours per week and from the restrictions upon the work tasks which he is now capable of undertaking. In these circumstances, the trial judge was required to consider the actual pecuniary consequences of the appellant's reduced work capacity and to make relevant findings of fact. The same may be said of the appellant's case that his social and recreational activities had been very substantially interfered with by reason of his physical injuries, thus causing loss of enjoyment of life. In these circumstances, it was wholly insufficient for the trial judge to make bland and unspecific acknowledgments that the appellant had suffered 'some loss of income' and 'some loss of enjoyment of life' and then state in a mechanical fashion that she was not persuaded that the physical and pecuniary consequences of the appellant's injury fell within the test stated in Humphries v Poljak, quoted above.[19]

103 Furthermore, in considering whether the appellant's physical injuries and their consequences were serious within the meaning of paragraph (a) of the definition of serious injury, the judge was required to consider the accompanying emotional or psychological response of the appellant to his injuries. Apart from the unexplained reference to the appellant ceasing to take anti-depressants in 2002, the judge's reasons for rejecting this aspect of the appellant's case reveal no consideration of this important factor. The reasons given by Winneke P and Chernov JA in Richards v Wylie, quoted above,[20] clearly establish the need to consider the consequential psychological effects of a physical injury when dealing with an application which falls to be considered under paragraph (a) of the definition. The reasons in this case fail to disclose whether, and if so to what extent, the trial judge took the psychological consequences into account. If she did so, the reasons are inadequate for failing to explain why those consequences, when combined with the physical consequences, did not satisfy paragraph (a) of the definition. If she did not take the psychological consequences into account, then a separate error of law is apparent.

104 Third, the trial judge's reasons for rejecting the appellant's claim under paragraph (c) of the definition were inadequate. The full reasons appear below:

1. Although Dr Weismman [sic] diagnosed a major depressive disorder and mild Post Traumatic Stress Disorder in December 2006, he only examined the plaintiff on one occasion. I prefer the evidence of the plaintiff's former treating psychiatrist, Dr Blandthorn, who has seen him at least 10 times since 2000, the last time in late 2006. His opinion that the plaintiff suffers from a depression which is in partial remission and does not prevent him from working is shared by Dr Ingram, who also examined the plaintiff in late 2006. The weight of the psychiatric evidence is that the plaintiff's pain disorder and [sic] interferes somewhat with his enjoyment of life, but that part of his concern relates to his inability to find work.
2. This conclusion was echoed by the plaintiff, who dissolved into tears when giving evidence about his repeated failure to obtain work, which he attributed to having made a WorkCover claim. He repeatedly said he would undertake certain jobs, such as those in the real estate or loss supervision areas, if they were available to him. Even assuming that he meant he was able only to work within the restrictions imposed by Dr McKenzie, 30 hours per week, with no prolonged sitting, standing, lifting, bending or twisting, it is clear that the plaintiff (and some of the experts who examined him) regards himself as psychologically fit for employment. He ceased anti-depressant medication in 2002, and has not sought treatment for any psychological problems since late 2001. His affidavit describes no psychological symptoms other than depression (in paragraph 32) about the physical restrictions flowing from his pain, and concern (in paragraph 33) about the future and how his back will be.
3. I am satisfied on all the evidence therefore that the plaintiff has suffered a pain disorder or chronic adjustment disorder resulting from the injuries sustained in the transport accident which have had some impact on his enjoyment of life, particularly his leisure activities, and some impact on his capacity to work fulltime in his pre-injury duties. I am also satisfied that the depression suffered by him is in partial remission and may impact on his quality of life but does not prevent him working. In all the circumstances, however, having regard to the consequences of the mental disturbance or disorder in terms of pain and suffering and pecuniary disadvantage, I am not satisfied that the plaintiff's injury, when compared with other cases in the range of mental disorders or disturbances, is more than serious, to the extent of being severe.[21]

105 The first thing to note about these reasons is that it is remarkable that the trial judge should reach such a conclusion in light of the evidence as a whole and in light of her own finding that the application fell to be determined under paragraph (c) of the definition.

106 As to the inadequacy of the reasons given, in considering whether the appellant's mental disturbance or disorder was severe, the trial judge was obliged to consider both the psychological and physical symptoms suffered by the appellant as a result of the collision. This is also clear from the statements by Winneke P and Chernov JA in Richards v Wylie, quoted above.[22] The trial judge's reasons for concluding that the appellant's psychological symptoms were not severe contain no reference to the appellant's accompanying physical incapacity, which the trial judge found existed and was causing pain and suffering, loss of enjoyment of life and pecuniary loss to the appellant. The reasons fail to disclose whether, and if so to what extent, the trial judge took these physical consequences into account. If she did so, the reasons are inadequate for failing to explain why those consequences, when combined with the psychological consequences, did not satisfy paragraph (c) of the definition. If she did not take the physical consequences into account, then a separate error of law is apparent.

107 My reasons have been critical of the standard of reasons given by the trial judge. In this regard, it is important to recognise the large volumes of similar applications determined by the County Court, and the consequent pressures facing County Court judges to deal with such applications fairly and efficiently. I understand that available judgment writing time is limited due to the pressure of work in that court. However, the parties, both winning and losing, are entitled to expect that their cases will be the subject of adequate reasons. Adequate reasons serve to inform the parties as to why the result has been reached and enable them to consider their respective positions if an appeal is brought. Further, the volume of work in this court in considering appeals based upon lack of adequate reasons, and the consequent delays for other litigants in having their appeals determined, is an important factor in the administration of justice in this state.

108 In circumstances where the trial judge made no material findings about the credibility of any witness, this Court is in as good a position as was the trial judge to determine the appellant's application. In my view, this Court should do so.

109 For the reasons given above, the application should have been determined under paragraph (a) of the definition of serious injury contained in the Act. The evidence of the appellant as to the effect of his injuries upon him, the evidence of his friends and work acquaintances supporting that evidence, and the medical evidence taken as a whole demonstrates a convincing case that the consequences of the injuries suffered by the appellant in the collision, including his mental response to those physical injuries, were serious in the relevant sense. There has been a very considerable adverse affect upon the appellant's ability to enjoy social and recreational pursuits, his ability to work and gain income and personal satisfaction from work, his ability to develop and maintain a personal relationship and, in addition, the appellant has to endure the mental symptoms experienced by him as a result of these matters. I would allow the application and grant the appellant leave to commence proceedings against the respondent for the recovery of damages in respect of the injuries suffered by him in and as a result of the collision.

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

[6] Mobilo v Balliotis [1998] 3 VR 833, 834-5 (Winneke P), 846 (Brooking JA).

[7] [2000] VSCA 50; (2000) 1 VR 79.

[9] Ibid [28]. Emphasis added. Citations omitted.

[10] Spence v Gomez [2006] VSCA 48 [8] (Maxwell P).

[17] For example, Hunter v TAC & Anor [2005] VSC 1 [21]-[22]; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 [38]; Sun Alliance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, 8-19.

[19] At [74]; Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 140.

[20] At [79]-[80]; Richards v Wylie [2000] VSCA 50 [17] (Winneke P), [28] (Chernov JA).

[22] At [79]-[80]; Richards v Wylie [2000] VSCA 50 [17] (Winneke P), [28] (Chernov JA).