Spence & Anor v Gomez [2006] VSCA 48

The legislative scheme

6 Under s.93(4)(d) of the Act, a person whose impairment is assessed at less than 30% can seek leave to bring proceedings for the recovery of common law damages. Under s.93(6), a court must not give such leave unless it is satisfied that the injury is a serious injury. "Serious injury" is defined by s.93(17) as meaning -

"(a) 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."

7 Mrs Gomez relied on paragraphs (a) and (c) of the definition. The injuries in question were said to be -

• under paragraph (a) - impairment of the function of the pudendal nerve in the context of a pre-existing sphincter defect; and

• under paragraph (c) - chronic pain disorder, adjustment disorder, depression and post-traumatic stress disorder.

Guiding principles

8 The principles governing the application of s.93, as developed in this Court, may be summarised as follows:

(a) Standard of proof: an applicant for leave to bring proceedings must establish on the balance of probabilities that he/she suffered a serious injury (as defined) as a result of the transport accident;[1]

(b) Meaning of "serious injury": it is the Judge's opinion as to the seriousness of the impairment or loss, determined by comparison with other cases in the range of possible impairments or losses, which is decisive.[2] To be "serious", the injury must be capable of being fairly described as at least "very considerable" and certainly more than "significant" or "marked";[3]

(c) Pre-existing conditions: where there is aggravation of a pre-existing condition, the applicant must establish what injury was caused by the accident. An analysis must be made of the extent of impairment of the relevant body function before and after the relevant injury, and the additional impairment must itself constitute serious long-term impairment of a body function;[4]

(d) Appealing against the grant or refusal of leave: the Court will not interfere with a judge's determination under s.93(4) in the absence of specific error, unless satisfied that the determination was plainly wrong or wholly erroneous.[5]

Grounds of appeal

9 In their written submissions, the appellants contend that the Judge erred in:

• concluding that he was "controlled" by the decision of this Court in Alcoa of Australia Ltd v McKenna[6] ("Alcoa") when considering whether the accident caused serious injury to Mrs Gomez;

• failing to consider whether Mrs Gomez's mental condition was a "severe long-term mental or behavioural disturbance," as required by s.93(17)(c); and

• failing to provide adequate reasons for his conclusions.

10 They submit that the findings of serious injury under ss.93(17)(a) and (c) were against the evidence, especially given the pre-existing conditions of Mrs Gomez, and that the Judge failed to consider evidence from medical practitioners which refuted the causal link between the accident and the injuries claimed.

The test for a grant of leave

11 The learned trial Judge held that, in exercising the discretion whether or not to give leave, he was "controlled by the description of such a role" set out in Alcoa.[7] (The decision in Alcoa concerned the Accident Compensation Act, which his Honour held was in pari materia with the Transport Accident Act.) According to his Honour, the decision in Alcoa -

"... explains the onus or burden of proof upon which of the parties it lies and the standard of persuasion required to enable the exercise of a discretion adverse to the applicant once prima facie evidence arises on the applicant's case."[8]

"At the very least I think that the evidence in the case supports the view that her condition was at least arguably caused by the subject accident."[9]

"... Even if I am wrong in applying Alcoa as the control of my present role - I would be satisfied on that evidence, coupled with the evidence of the plaintiff as to her first complaint about these issues, to be persuaded that on the probabilities the accident was the cause of this lady's anal disability and in that way she has come to suffer a serious injury."[10]

14 In fact, the decision in Alcoa had no application to the case at hand. Nothing decided in that case affected in any way the principles set out in paragraph 8 above. In their application to the present case, those principles meant that Mrs Gomez as plaintiff had to establish -

(a) on the balance of probabilities, that she had suffered a serious injury;

(b) there being a pre-existing condition, that the impairment relied on to constitute the serious injury under paragraph (a) of the definition was causally related to the transport accident.

15 That both of these requirements apply in a case such as this has been clear law in Victoria since the decision of the Appeal Division in Petkovski v Galletti.[11] That was the case in which the "balance of probabilities" test was said by Brooking J to have led to the development of what he described as a "foolish, wasteful and inconvenient system," under which considerable time and expense was devoted to the resolution of what is no more than a threshold question. But his Honour's suggestion - that a test requiring only a "prima facie case" or "good arguable case" test would be more appropriate - has gone unheeded in the years since.

16 The trial Judge's reliance on Alcoa, was, therefore, entirely misplaced. In the event, however, I do not consider that it was productive of error. His Honour wisely took the precaution of considering - in the alternative - whether he was satisfied on the balance of probabilities (that being the correct standard) as to serious injury and causation. He decided that he was. That conclusion was unaffected by the Alcoa error.

17 In relation to causation, the appellants maintain that if his Honour had properly analysed the evidence, he must have concluded that no causal link was satisfactorily established. Critical to this question was the issue of Mrs Gomez's credibility.

Findings on credibility

18 One of the key factual issues was the date of onset of incontinence, that being the key symptom of impaired sphincter function. As the Judge recorded in his reasons, the first written record of a complaint of incontinence being made by Mrs Gomez to a medical practitioner was on 18 January 1999, more than three years after the transport accident. The notes kept by her general practitioner, Dr Patterson, appeared to record her as having told him on that occasion that she had suffered urinary or faecal incontinence during sexual intercourse during the previous six months. In her evidence, however, Mrs Gomez said that the incontinence had commenced soon after the accident and that she had mentioned it "many times" to her general practitioner before 1999.

19 His Honour made no finding as to when it was that Mrs Gomez first suffered from, or first complained of, incontinence. His Honour's conclusion was instead expressed in the following terms:

"Of course these varying accounts because of the variation in time was [sic] attacked in terms of their creditworthiness. But it seems to me that her basic honesty was not the subject of attack, although her credibility was. These were variations in description over a fairly lengthy period of time and perhaps telescoped. Notwithstanding that consideration I am prepared to accept her by and large as an honest witness; certainly no specific material is contained in the case to show clearly to the contrary. I accept her as a basically honest, accurate witness having regard to her demeanour and other matters. I can understand, as she indicated in the course of her evidence, that the nature of the complaint was inevitably something that she would be reluctant to disclose without necessity to people."[12]

20 It seems to me to be clear enough from this passage that the Judge accepted Mrs Gomez's evidence that the symptoms had manifested themselves quite soon after the accident, and that her failure to make any earlier report of incontinence to a medical practitioner was to be explained by what the Judge regarded as her understandable embarrassment.

21 In my view, this Court must accept the Judge's finding on credit, especially so since it was based in part on the demeanour of Mrs Gomez in court. As to the finding of fact itself, it is instructive to consider what was said by Brennan, Gaudron and McHugh, JJ. in Devries v Australian National Railways Commission,[13] as follows:

"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's findings depend to any substantial degree on the credibility of a witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'."[14]

22 In my view, his Honour's (implicit) finding as to the date of onset of incontinence must stand. As will appear, however, this was not itself the critical issue. What mattered was what caused the onset of incontinence.

Medical evidence as to causation

23 The learned trial Judge had before him the evidence of a number of medical practitioners on the question whether the injury complained of was causally connected to the transport accident. As the appellants point out, only one of these witnesses was referred to by name in the reasons for judgment. That was the treating colo-rectal surgeon, Mr Tjandra. His Honour said:

"In this case a deal of expert evidence has been brought to bear on that issue [of causation]. I refer in particular to the written medical reports in evidence given by Mr Joe Tjandra and the associated physiological pressure tests contained in the material before me...

In one sense some of the opinions expressed in that material may be regarded as creating uncertainty as to the possible causes of this woman's anal condition, but if there be such uncertainty, in my view the doctor's opinion came through very clearly in his oral evidence before me. I have carefully reread it and although it is plain to me that English was not the doctor's native language, he was careful to convey his basic opinion about the matter and I take his evidence to mean, after some substantial thought and rereading of it, that it was his opinion - taking all matters into account, including the possibility, indeed the fact of, if it is seen that way, a long period of delay in complaints - that nevertheless the likelihood of a connection to the accident with the anal complaint was in fact and is in fact there."[15]

(a) did not specifically advert to any of the evidence which had been led contrary to this proposition; and

(b) did not deal in any way with the contrary proposition advanced by a number of other senior medical specialists viz that the damage to Mrs Gomez's pudendal nerve was not, on the balance of probabilities, caused by the transport accident and that her incontinence was caused by other factors.

The appellants argued that his Honour appeared not to have considered the opinions of Dr White, Dr Symington or Mr King.

25 I am not persuaded by that submission. Notwithstanding the failure to refer to the other doctors by name or to cite any particular aspect of their evidence, I see no reason to doubt that his Honour had given proper consideration to that evidence in arriving at his decision. He summarised the countervailing views of the other doctors in the following terms:

"At the very least I think that the evidence in the case supports the view that her condition was at least arguably caused by the subject accident by an injury to the lower spine and hence the pudendal nerve which supplies the anal sphincter. Argument was mounted that this woman's condition was not shown to have been caused in that way. Alternative causes put forward included the fact that she had had seven vaginal births in her life before this accident; that there was [sic] signs on x-ray material of her spine over some long period of time that she was a sufferer of pre-existing degeneration of the spine and lower back and it was said that for that and other reasons, unrelated to the accident, that it could not be shown that the accident was the cause of this problem.

The mechanisms of the condition can occur from muscular damage to the anal sphincter. It can also be caused by damage to the pudendal nerve which originates in the lower spine."[16]

26 In my view, this summary fairly represented the range of alternative possible causes as identified in the medical evidence. That being so, I see no necessity for that other evidence to have been rehearsed in any detail. In my view, his Honour was entitled to conclude, on the whole of the evidence - including, in particular, Mrs Gomez's account of the onset of symptoms - that there was a causal connection between the accident and the incontinence. As Nettle, J.A. pointed out recently, even where medical opinion evidence goes no higher than that an event is capable of being a possible cause of an observable medical condition, it may still be inferred upon the totality of the evidence that the event was a cause of the condition.[17]

27 Once again, however, this conclusion was not decisive, given that there was a pre-existing condition which was also causally significant.

The significance of the pre-existing condition

28 As the learned trial Judge noted, Mrs Gomez suffered from a "pre-existing sphincter defect". He also noted that she had pre-existing degeneration of the spine and lower back. As the appellants pointed out, Mr Tjandra's evidence was that the functional deficiency revealed by the tests which he carried out was reflective of -

"some underlying damage [which] could happen as a result of the muscular trauma of the sphincter or it could result from the nerve damage, the pudendal nerve damage, and often they are combinational factors..."

According to Mr Tjandra, Mrs Gomez's seven vaginal deliveries would adequately account for "the muscular trauma of the sphincter" to which he referred. As for the nerve damage, he thought that it could have arisen to some extent from the births and to some extent from the injury to the back which she sustained in the accident. Asked which of these was the more probable explanation for the observed incontinence, he said:

"I think that both factors perhaps are contributory in this particular instance."[18]

In his view, it was unlikely that either factor could, by itself, account for the extent of sphincter impairment present in this case.[19]

29 In accordance with Petkovski, what this evidence raised for consideration by the Judge was the critical question of whether he could be satisfied on the balance of probabilities that the additional impairment of the function of the sphincter attributable to the back injury (over and above the impairment attributable to the successive births) was sufficient to constitute a serious injury. His Honour dealt with this issue in the following terms:

"In relation to problems in respect of her anal disability, to the extent that disruption of her back occurred in the accident, then that disruption in my view has upset her pre-existing back degenerative problem in the lower spine so as to kick that condition of the pudendal nerve and anal problem into a matter of real seriousness for her."[20]

30 In my opinion, his Honour here fell into error. In the first place, he made no attempt to identify the extent to which the impairment of the functioning of the sphincter had worsened as a result of the accident. (This was the second of the Petkovski requirements referred to in paragraphs 14 and 15 above). Secondly, he misstated the facts. The Tjandra evidence, on which the judge relied, did not treat "her pre-existing back degenerative problem" as causally significant. Rather, as explained above, the other contributing cause was said to be the muscular damage to the sphincter resulting from successive vaginal births. Thirdly, and in any event, the question was an objective one. While to qualify as "serious" the consequences of the injury had to be serious for Mrs Gomez,[21] the task for the Court was to determine whether the extent of the impairment attributable to the back injury could properly be characterised as a serious long-term impairment of function.

31 It follows, in my view, that the decision below must be set aside. In short, the learned Judge failed to apply the Petkovski test, that is, failed to determine whether the additional impairment of the body function attributable to the back injury - that is, the deterioration in the functioning of the sphincter - constituted a long-term serious impairment of that body function.

32 No occasion arises on the present appeal to revisit the decision in Petkovski. For the following reasons, however, it appears to me that the Court may in due course need to consider whether the Petkovski approach caters adequately for a case of this type.

Should Petkovski v Galletti be revisited?

33 Petkovski was a case just like the present. The applicant was injured in a car accident which aggravated a pre-existing condition, in that case, a back injury. The applicant applied to the County Court for leave to bring common law proceedings under s.93 of the Act. The County Court judge gave leave. The respondent appealed, arguing that the applicant's pre-existing condition itself constituted a serious injury and that, although the accident might have aggravated the pre-existing condition, it did not itself cause a serious injury.

34 In their joint judgment, Southwell and Teague, JJ. upheld the submission made by the respondent that a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment. If that additional impairment was not "serious", then leave must be refused. Their Honours gave the following reasons for upholding that proposition:

"... It has for long been the law that an injured person is to be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident. While the wrongdoer must take the victim as he finds him, he must compensate only for the damage he has wrought.

The Act does not affect that long-established principle.

And so it is that when a person is given leave to sue, the principle applies; and the Court in assessing damages, where the case is one of the aggravation of a pre-existing condition, must consider what the evidence discloses as to the prior condition of the claimant. Since it is upon the defendant to do the disentangling, and to show what the probable future course of the pre-existing condition will be (Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164) that evidence may sometimes be held to disclose not much more than that there was a risk of later development of the condition."

35 Their Honours referred to s.93(6) which, as already noted, provides that -

"a court must not give leave... unless it is satisfied that the injury is a serious injury." (emphasis added)

Their Honours went on:

"The accident did not cause the pre-existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.

But, next, 'the injury' - that is, the injury which resulted from the accident - 'must involve serious long-term impairment... of a body function'.

...

The matter may be tested in this way: let it be assumed that a claimant was at the time of the relevant accident already suffering from a 'serious injury'; and that the accident aggravated his condition to a minor extent. If the reasoning of the learned trial Judge were to be applied, the claimant must be given leave to pursue the claim for that minor aggravation. We cannot accept that as correct. The clear intention of the Parliament in passing the Act was to prevent such minor claims."

36 Their Honours were satisfied, in the case before them, that the preponderance of medical evidence established that the aggravation of the pre-existing condition of the applicant's lumbar spine did itself constitute a serious long-term impairment of a body function, namely, the function of the spine. For that reason, the appeal against the grant of leave was dismissed.

37 As appears from these extracts, the Court in Petkovski addressed itself to two types of case involving pre-existing conditions. In the first class of case, the applicant already has a "serious injury", that is, is already suffering from a serious long-term impairment of the relevant body function. The accident aggravates that pre-existing condition to a minor extent. The view expressed in Petkovski was that no leave should be granted in such a case. With respect, this conclusion is clearly correct. On no view can it be said that the transport accident caused serious long-term impairment of the body function.

38 In the second class of case, the accident causes an aggravation of the pre-existing condition, and that aggravation itself constitutes a serious injury, that is, a serious long-term impairment of the relevant body function. (That was, as we have seen, the case in Petkovski itself). In that case, according to Petkovski, leave should be granted, since the accident has caused a serious injury. With respect, the correctness of this conclusion is also beyond doubt.

39 The present case arguably falls into a different category, with which the Court in Petkovski was not called on to deal. In this third category of case, the applicant suffers from a pre-existing condition which involves a degree of impairment of the relevant body function but not serious long-term impairment of that function. The accident causes an injury which aggravates that condition, such that for the first time it can be said of the applicant that she has sustained serious long-term impairment of the relevant body function. The additional degree of impairment resulting from the accident injury does not, of itself, constitute serious long-term impairment but it is true, nevertheless, that as a result of the accident the applicant is for the first time suffering from impairment of the requisite kind.

40 On the Petkovski approach, leave would have to be refused in this third class of case. If the Court were to undertake, as Petkovski requires -

"an analysis... of the extent of impairment of [the] body function before and after the relevant injury",

the Court would have to conclude (on the assumed facts) that the additional or incremental impairment attributable to the transport accident injury was not itself a serious injury and, hence, that the accident had not caused a serious injury. In my view, this is a result which Parliament is unlikely to have intended. Moreover, it seems to me to be a result inconsistent with the approach enunciated by the High Court in the very decisions to which Southwell and Teague, JJ. referred in Petkovski, to which it is now necessary to turn.

41 In Watts v Rake,[22] the plaintiff had obtained judgment for damages for injuries he suffered in a motor car accident caused by the defendant's negligence. The plaintiff suffered from a pre-existing condition. The trial Judge held that the injuries suffered in the accident had had the effect of accelerating the development of the pre-existing disease which would, in any event, have caused a deterioration in the plaintiff's physical condition. The award of general damages was reduced as a result. On appeal to the High Court, Menzies, J. (with whom Dixon, C.J. and Windeyer, J. agreed) said:

"It was for the appellant as plaintiff to prove his damages, and merely to prove his present condition and his incapacity to work would not prove that these things resulted from the accident. It was not, however, for the plaintiff to disprove that his pre-accident ill health would eventually cripple and incapacitate him. Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it eg. that the plaintiff has aggravated his condition by some unreasonable act or omission. Similarly, although it is of course material to ascertain what was the pre-accident condition of the plaintiff who alleges that his post-accident ill health is due to the accident, it is for the defendant to prove that before the accident the plaintiff was in a condition that without the accident would have led to his post-accident state of health. It should also be observed that a negligent defendant must take his victim as he finds him and pay damages accordingly. The fact that the person injured was peculiarly susceptible to ensuing complications that would not in a normal person have followed from the injuries received, or that the person injured already had a disability which made the injury the more disabling eg. the loss of an only eye - does not mean that damages are not to be assessed according to the circumstances of a particular case."[23]

42 In Purkess v Crittenden,[24] Windeyer, J. reinforced the point:

"The evidence may not show that the conduct of the defendant did more than accelerate a misfortune. But of course, it will not avail a defendant to show that but for the plaintiff being in some way ailing when he was hurt his injuries would have been less serious than they were. A tortfeasor gets no allowance because of the frailty of his victim.

... It was suggested in argument for the respondent that the chronic pain and restricted movement from which [the plaintiff] now suffers could somehow be as it were apportioned, a part only of each being attributed to the accident, the rest being attributed to other factors. And there was nothing at all to sustain this entangled and difficult proposition. Her infirmities before the accident may have made its consequences more serious for her than they would have been for a person in good health. But that does not reduce the damages for which the defendant is liable."[25]

43 These considerations apply, by direct analogy, to cases of the third type which I have described. That is, the applicant in such a case has a pre-existing condition which means that the injury resulting from the transport accident has more serious consequences for her than would have been the case had she been free of any such condition. What matters is that the accident causes a change in the applicant's position, from that of a person without a serious injury to that of a person with a serious injury. For the first time, as a direct result of the accident, the injured person is suffering from a serious long-term impairment of the body function. It seems that this is what the Judge in the present case had in mind when he said that the effect of the accident injury was -

"... to kick that [pre-existing] condition of the pudendal nerve and anal problem into a matter of real seriousness for her."[26]

44 This is, in my view, no more than a straightforward application of the well-established principle - exemplified by Watts v Rake and Purkess v Crittenden - that -

"a tortfeasor must take his victim as he finds him".[27]

45 It follows, in my view, that in a case which fell into this third category, it would be open to the injured person to argue that the injury resulting from the transport accident was a serious injury and, accordingly, that leave should be granted. But, as I have said, the resolution of that question is for another day.

Para (c): mental or behavioural disorder

46 As regards the psychological injury complained of, no question of causation arose. What was disputed was whether the psychological consequences of the accident amounted to serious injury, within the meaning of sub-paragraph (c) of the definition. It will be recalled that, for this purpose, Mrs Gomez had to establish, on the balance of probabilities, that she had sustained -

"severe long-term mental or severe long-term behavioural disturbance or disorder."

47 Responding to the argument that Mrs Gomez had "no known or clear or clearly defined psychological disorder", his Honour said:

"... [W]hatever it may be described as it has worked a serious disturbance of her life and future and it too is likely to be long-term. Even if the condition is properly described as a somatoform disorder, that is to say something in the way of a condition otherwise undefined by lacking some of the features described in various defined disorders, I am satisfied that she suffers a serious injury in this regard."[28]

"She has had a substantial degree of treatment. Various of the many, many doctors she has seen describe her condition as at least involving much in the way of a chronic pain problem or depression or chronic pain syndrome or psycho-social factors as being a very major problem; as post-traumatic stress disorder symptoms; as depression and anxiety and general agitation and such descriptions."[29]

48 The appellants make a number of attacks on these findings. The first is that his Honour applied the wrong test, in that he failed to ask himself whether the psychological impairment was "severe", as the statutory definition requires. As this Court made clear in Mobilio v Balliotis,[30] the adjective "severe" imposes a stricter test than the adjective "serious".[31] In this respect, Parliament deliberately made the test under sub-paragraph (c) different from that under sub-paragraph (a). In a case like the present, where the applicant relies on both of those paragraphs, it is essential that the distinction be adverted to. Otherwise there is a real risk that, as appears to have occurred here, the Court will approach the question as if the adjective "serious" governed both (a) and (c).

49 In my opinion, this ground of attack is made out. As already noted, his Honour's critical finding was that the psychological impact of the accident had -

"worked a serious disturbance of her life and... is likely to be long-term".

There is no indication that his Honour was alive to - or, therefore, applied - the more rigorous test which sub-paragraph (c) imposes. Accordingly, the decision with respect to this aspect of the claim of serious injury must also be set aside.

50 That being so, it is unnecessary to deal with the alternative argument advanced by the appellants, that there were "any number of matters" indicating that the psychological condition was not "severe". There is a very great deal of evidence, from different practitioners, about the psychological condition which afflicts Mrs Gomez. The opinions vary widely. Whether the conclusion is open that this is a "severe long-term" condition will be a matter for the Court at the re-hearing. One would think that the account which Mrs Gomez herself gives in evidence will be highly significant in the Court's consideration of whether "severe" or "serious" is the correct description.

51 Two further points should be made. First, as with the physical injury so with the psychological, there was evidence of pre-existing problems. What I have said in relation to the causative effect of the accident in worsening the physical condition applies equally to its effect on the psychological condition. That is, the Petkovski analysis is equally applicable, as is my discussion of a possible third category into which the present case may fall.

52 Finally, no attention appears to have been paid at the trial of this proceeding to the requirement that the psychological effects of the accident be taken into account in determining whether Mrs Gomez had suffered a serious physical injury, within the meaning of sub-paragraph (a). That such consideration is not only permissible but necessary was made clear by each member of the Court of Appeal in Richards v Wylie.[32]

53 The Court began by confirming that:

"... s.93(17) intends to maintain a division between injuries with physical consequences and those with mental consequences... 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 para (c)".[33]

54 Where, however, there clearly is an impairment of a body function, such that paragraph (a) is engaged, the Court affirmed that the psychological consequences of that physical injury must be taken into account in determining the seriousness of the impairment. According to Winneke, P.:

"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'."[34]

"Just as the physical consequences of a mental or behavioural disorder may have a bearing on the severity of the disorder [for the purposes of paragraph (c)], 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 para (a) of the definition."[35]

"... [I]f 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."[36]

57 In the present case, since there is physical injury, paragraph (a) of the definition is engaged. In deciding whether the impairment of the body function is "serious and long-term", the trial Court is bound to consider all the relevant consequences of that injury, including the psychological. This would include "functional overlay", to which Chernov, J.A. referred. It would also include such conditions as "post-traumatic stress disorder" and "depressive illness or disorder", each of which was described by Winneke, P. in Richards as a "recognised mental disorder".[37]

58 I have had the benefit of reading the draft reasons for judgment in this case of the President and Nettle, J.A. I have some difficulty understanding in what way his Honour regarded himself as "controlled" by what Buchanan, JA. and I said in Alcoa of Australia Ltd v. McKenna[38] in determining whether leave should be given to the respondent pursuant to s.93(4)(d) of the Transport Accident Act 1986 ("the Act") to commence proceedings for the recovery of damages. What was there relevantly said was said in the context of the construction and operation of s.135A(2) of the Accident Compensation Act 1985 and the principles underpinning that particular provision do not arise for consideration here. Be that as it may, as the learned President pointed out, nothing turns on this aspect of his Honour's decision, given that he proceeded to consider the matter on the basis that Alcoa had no application to the matter before him.

59 I also agree with the conclusion of the President and Nettle, J.A. that, fairly read, the reasons of the trial judge, although brief, sufficiently explain the basis of his preference for Professor Tjandra's evidence to that of the medical experts on which the appellants relied. Although, by itself, Professor Tjandra's evidence might not establish that there was a causal link between the respondent's incontinence and the accident, when it is considered together with the evidence of the respondent - which his Honour accepted - I think the totality of it amounts to a sufficient basis for the judge to have formed the conclusion that there was a causal connection between the accident and the respondent's impairment.

60 A difficulty that was raised by the appeal was whether the learned trial judge erred in concluding that the accident was productive of the serious and long term impairment of the respondent's relevant body function - that is, her anal sphincter function - given that she suffered from a "pre-existing sphincter defect", probably due to having given birth to seven children and a degeneration of the spine and the lower back. The learned trial judge concluded that the accident resulted in the respondent suffering an injury to her back which, as I understand his Honour, so aggravated her anal sphincter as to cause that impairment to be both long term as well as serious from her perspective. That this conclusion was open to his Honour seems clear enough. Although his Honour did not, in terms, refer to the requirements of Petkovski v. Galletti[39], he nevertheless compared, as is required by that case, the state of the respondent's pre-accident impairment with that which existed after it and, on that basis, effectively came to the conclusion that the accident so aggravated the respondent's pre-accident condition as to bring about a serious injury. He said, for example, that he was persuaded on the balance of probabilities that "the accident was the cause of this lady's anal disability and in that way she has come to suffer a serious injury". A little later, his Honour said that the "disruption in my view has upset her pre-existing back degenerative problem in the lower spine so as to kick that condition of the pudendal nerve and anal problem into a matter of real seriousness for her".

61 Thus, like Nettle, J.A., I can find no relevant error in the judge's process of reasoning that led him to conclude that the impairment to the applicant's anal functions amounted to a serious injury for the purposes of the Act. Consequently, I agree that the appeal should be dismissed. In the circumstances, it is not necessary to consider whether his Honour erred in his finding that the requirements of paragraph (c) of that section had been made out.

62 I note for completeness that, in the absence of full argument on the matter, I do not think that it is necessary to reconsider the principles laid down in Petkovski v. Galletti.

63 I have had the advantage of reading in draft the reasons for judgment of the President and I gratefully adopt his Honour's statement of the facts and legislation.

64 As McColl, J.A.. stated recently in Ainger v Coffs Harbour City Council:[40]

"Adequacy of reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes 'a sense of grievance' and denies 'both the fact and the appearance of justice having been done', thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442 per Meagher JA."

65 Thus, as her Honour put it, while a primary judge is not obliged to spell out every detail of his or her process of reasoning, the judge is obliged to expose his or her reasons for resolving a point critical to the contest between the parties and in such a way as to enable the parties to identify the basis of the judge's decision and the extent to which their arguments have been understood and accepted; in other words, to 'enter into' the issues canvassed and explain why one case is preferred over another.

66 The application of those principles to the field of accident compensation is undoubted. As this Court has said before in appeals of this kind, when a judge decides an application under s. 93(4)(d) of the Transport Accident Act 1986, or under another similar legislative provision, the judge is under a duty to provide reasons for his or her decision, and the reasons must be comprehensible. While the extent of the reasons needed in a given case will depend upon the circumstances of the case, in a matter of this kind it is necessary for a judge to deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion.[41]

67 The appellants contend that the judge below failed to heed those principles. They submit that there was a conflict of expert evidence as to whether the accident caused the claimed injury and that the judge erred by failing to deal adequately with the evidence which ran counter to causation. The appellants rely in particular upon reports of Dr Bernadette White, an obstetrician and gynaecologist, Dr Graeme Symington, the plaintiff's treating neurologist, and Mr Kevin King, the plaintiff's treating orthopaedic surgeon. As the appellants would have it, the judge erred in failing to refer to that material.

68 In her report, Dr Bernadette White stated:

"...However, the important question with [the plaintiff] is the degree to which her current impairment in the area of urinary and faecal incontinence can be attributed to her accident in 1995. Given her high parity, her age and weight, and the significant degree of uterovaginal prolapse that is present, there is enough to account for [the plaintiff's] gynaecological symptoms without implicating the 1995 accident at all. To suggest that there is a link between the two, would either imply that there was direct damage to pelvic structures at the time of the accident, and there is no evidence at all to support this, or that the symptoms are secondary to neurological impairment. However, it would seem that [the plaintiff's] previous assessments do not suggest any neurological impairment that can be directly linked to her cervical or lumbar spine. Pudendal neuropathy, which Professor Tjandra reports, is well recognized as being secondary to pregnancy and vaginal delivery. It is my belief therefore, that, although Mrs Gomez does suffer a significant impairment, that this cannot be causally linked to the accident."[42]

69 To similar effect, Dr Graeme R. Symington, neurologist, stated in his report that:

"There was no objective neurologic abnormality and the significance of the diffuse disturbance of sensitivity in the left lower limb is uncertain. "

70 Mr Kevin F. King, orthopaedic surgeon, was more equivocal on the point. He stated that he regarded the question as being outside his field of expertise and suggested that an opinion be sought from Mr Joe Tjandra, a general surgeon at the Royal Melbourne Hospital whom Mr King thought may have advised on some form of anal palliative operation to improve the plaintiff's faecal incontinence. But he added that he could not see "any direct [connection] between the involvement of mild faecal and urinary incontinence...and the car accident itself."

71 To the contrary, Professor Tjandra was of the opinion that in all probability the accident was one of the causes of the plaintiff's faecal impairment.

72 Regrettably, there is very little mention in the judge's reasons of Dr White or Dr Symington or Mr King. There is only passing reference to when the plaintiff first told each of those doctors about her condition and nothing explicit about those doctors' opinions as to the cause of the plaintiff's condition. But, as the President has observed, the judge surely had their opinions in mind when his Honour referred to:

"Alternative causes put forward included the fact that she had had seven vaginal births in her life before this accident; that there [were] signs on x-ray material of her spine over some long period of time that she was a sufferer of pre-existing degeneration of the spine and lower back and it was said that for that and other reasons, unrelated to the accident , that it could not be shown that the accident was the cause of this problem."

In the context of this case, I agree with the President that what is said there was sufficient identification of the witnesses.

73 Of course, where a case such as this turns on a conflict of expert testimony, it is usually not enough for a judge simply to refer to the opposing material. If a party has relied on evidence or material which the judge has rejected, the judge should not only refer to that evidence or material but, in giving reasons which deal with the substantial points that have been raised, should also explain why that evidence or material has been rejected. The obligation to give reasons necessitates a rational and analytical explanation of the basis for preferring one witness's opinion to another. And where, as here, the dispute between expert witnesses involves something in the nature of an intellectual exchange with reasons and analysis advanced on either side, and "there [is] nothing in the nature of the dispute that preclude[s] a decision being made substantially through examination of the material, and rational anyalsis,"[43] the parties are entitled to have the judge enter into the issues canvassed and to provide a rational and analytical explanation as why the judge prefers one set of experts to the other. [44]

74 Sometimes, a judge may not be in a position to decide whether the facts on which an expert witness relies are true and therefore may not be able to judge the scientific or professional accuracy of the principles which the witness espouses. Where that occurs, the judge is likely to be prevented from forming a conclusion by reference to the facts and expert opinions alone, and he or she may have to depend upon the impression which a witness has made.[45] But in cases of that kind, the judge will need to explain by reference to the evidence why it is not possible, apart from witness demeanour, to prefer one expert view to another. It is not enough for a judge simply to say that he or she has had the advantage of hearing and seeing the various witnesses give their evidence and that, based upon the way in which they reacted to the questions that they were asked, the judge prefers the evidence that was given for one side to that which was given for the other.[46]

75 But all that having been said, I have come to agree with the President that the judge in this case did provide a rational and analytical explanation of the basis for preferring Professor Tjandra's opinion to the opinions of the other experts, as follows:

"...in my view [Professor Tjandra's] opinion came through very clearly in his oral evidence before me. I have carefully reread it and... he was careful to convey his basic opinion about the matter and I take his evidence to mean, after some substantial thought and rereading of it, that it was his opinion - taking all matter into account, including the possibility, indeed the fact of, if it is seen that way, a long period of delay in complaint - that nevertheless the likelihood of a connection to the accident with the anal complaint was in fact and is in fact there."

And then after referring to several passages from Professor Tjandra's oral evidence which included the following:

"...the likelihood from what I can see is that there is perhaps some back injury on someone [the plaintiff] who already had a borderline nerve function because of a childbirth injury".

"...A large part of the evidence basing the opinion of this doctor [Professor Tjandra], I think, concerned the unlikelihood of suggested causes other than damage to the pudendal nerve via the spine being the cause of [the plaintiff's] present problems. Looked at in the light of the natural history of the development of this kind of problem other than the accident in question then I think at the very least the plaintiff has a strong arguable case on this issue. But whether that be so or not - ... I would be satisfied on that evidence, coupled with the evidence of the plaintiff as to her first complaint about these issues, to be persuaded that on the probabilities the accident was the cause of this lady's anal disability and in that way she has come to suffer a serious injury."

76 A possible problem with that section of the judge's reasons is that it does not refer by name to the other experts, and it does not refer in terms, or otherwise than by implication, to Dr Symington's opinion that there was no objective neurological abnormality, or to Dr White's suggestion that the pudendal neuropathy identified by Professor Tjandra was the result of childbirth. To make sense of the reasons one must also read the transcript of Professor Tjandra's evidence, as the judge said that he had. But, if that is done, it will be seen why his Honour preferred Professor Tjandra's opinion to the opposing views. Professor Tjandra stated that it was possible to determine the existence of pudendal neuropathy, objectively, by means of electrodes designed in England for St Mark's Hospital, that measured electronically the plaintiff's pudendal nerve response. Upon such measurement, Professor Tjandra said, it was found that the plaintiff's pudendal nerve response of 2.6 milliseconds was prolonged to the extent of two standard deviations from the norm of 2.2 milliseconds. And, judged objectively, that degree of prolongation was so profound as to make probable that both childbirth and back injury had contributed to the claimed injury.[47] Hence, as Professor Tjandra expressed his ultimate conclusion in his evidence-in-chief:

"You say in your report of 3 June 2002, in the middle paragraph, 'Obstetrics often leads to sphincter defect but in many women they could cope with the situation quite well. In the presence of coexisting pudendal neuropathy or borderline pudendal nerve function, faecal incontinence might result.' Is 'might' an understatement or an exact? --- No, ... I think that is a good reflection that you 'might' result, but one should be mindful that you can get pudendal neuropathy from both childbirth injury as well as back injury. What I'm trying to explain to the court is that often the most profound injury has a combination of factors, not related to one single factor, so it could be a back injury on top of a nerve damage or borderline from childbirth injury, and is unlikely to be one alone. It is also unlikely to be coming from the back injury alone because if you have a back injury alone causing such degree of profound nerve function[sic], you would expect other nerves to be damaged as well, not just on the one nerve. So it is often a combination of factors that lead on to that.

What assistance, if any, do you get in your opinion from the outcomes of MRIs, CT scans and plain x-rays of the lumbosacral area? --- Those will reflect the structurally more severe causes of injury. You could find injury to the nervous system which would not be reflected by any of those methods of imaging. For example, you can have a minor alteration in sensation that can have a profound impact on your faecal continence. This again supports what I said beforehand, that the likelihood from what I can see is that there is perhaps some back injury on someone who already has a borderline nerve function because of a childbirth injury."

"...I said it again and again, I think I will be surprised if the pudendal nerve is not compromised in some way by the seven deliveries; the question is whether that alone is enough to account for the physiological findings, and that is open to conjecture. I think there is a possibility that the back injury would have compromised an already compromised nerve further. The same injury in a man without childbirth might not have done any problem."

77 As the President has remarked, Professor Tjandra's opinion rose no higher than that pudendal nerve damage resulting from the claimed accident might have been a cause of the plaintiff's faecal incompetence. In some circumstances that would not be enough to satisfy the burden of establishing that it was more likely than the claimed accident caused the faecal incontinence. But here it was not suggested that there was any possible cause of the condition other than pre-existing injury and the claimed injury. With respect, therefore, I agree with the President that the absence of another possible cause, coupled with the plaintiff's evidence that she had first experienced the faecal incontinence five to six weeks after the accident, was sufficient to enable the judge to be:

"... satisfied on that evidence [scil]. of Professor Tjandra, coupled with the evidence of the plaintiff as to her first complaint about these issues ... that on the probabilities the accident was the cause of this lady's anal disability..."

78 The principle is stated in the following well known passage from the judgement of Asprey, J.A. in E.M.I. (Australia) Ltd v Bes: [48]

" ... Where scientific knowledge properly adduced in evidence as expert opinion deposes to more than one event as a possible cause of a medical condition and where it appears from the evidence accepted by the tribunal of fact that of those possible causes of that condition one of them, on the balance of probabilities, is more likely than the others to be the cause of the medical condition in question ... then the tribunal may properly draw the inference of fact that such was the operating cause of that condition in the particular circumstances.

Parity of reasoning implies that, where scientific knowledge properly adduced in evidence as expert opinion deposes to no more than two events as possible causes of a medical condition, and where it appears from the evidence accepted by the tribunal of fact that on the balance of probabilities both causes are operative, the tribunal may properly draw the inference that both were operative causes.

79 Having reached that point, however, I am unable to agree with the President that the judge fell into error by failing to identify the extent to which the impairment of the functioning of the plaintiff's sphincter worsened as a result of the claimed accident or by misstating the facts. As it appears to me, the judge did identify the degree of aggravation and with respect I think that he did so correctly.

80 Early in his reasons for judgment the judge stated that the test of serious injury is one serious long term impairment of body function and his Honour identified the disability the subject of claim, as follows:

"2. In order to succeed in an application for leave, the applicant so far as this case is concerned must show under paragraph 17(a) of s.93 a 'serious long-term impairment or loss of a body function', or under paragraph (c) of that subsection a 'severe long-term mental or severe long-term behavioural disturbance or disorder."

3. The application, however, is restricted to the following descriptions of claimed injury. Under paragraph (a) ...impairment of the function of the pudendal nerve in the context of pre-existing sphincter defect."[49]

81 Read in context it will be seen that the expression "impairment of the function of the pudendal nerve in the context of pre-existing sphincter defect" meant faecal incontinence the result of pudendal neuropathy caused by the claimed accident. That appears from paragraphs 10 and 11 of the judge's reasons for judgment, as follows:

"10. The respondent points [then] to the fact that the first time that the applicant complained of her anal and faecal disability was to her general practitioner, then Dr Patterson, that is on 18 January 1999, a very long time after the accident in question, on which occasion she told the doctor in effect that she had had that problem on intercourse for the last six months. She next complained of it in giving a history to Dr Symington, a neurologist, in November 1999 on which occasion she said that she had suffered the problem for some two years, the last two years. It was mentioned also in December 1999 to an orthopaedic surgeon Mr King, and it was mentioned in 2003 on an interview with a psychiatrist Dr Kaplan, on which date she described herself as having suffered from that difficulty for some six months after the accident. Finally, in evidence-in-chief[50] before me she mentioned the matter as having first been experienced some five to six weeks after the accident.

11. Of course these varying accounts because of the variation in time [were] attacked in terms of their creditworthiness. But it seems to me that her basic honesty was not the subject of attack, although her credibility was. These were variations in description over a fairly lengthy period of time and perhaps telescoped. Notwithstanding that consideration I am prepared to accept her by and large as an honest witness; certainly no specific material is contained in the case to show clearly to the contrary. I accept her as a basically honest, accurate witness having regard to her demeanour and other matters. I can understand, as she indicated in the course of her evidence, that the nature of the complaint was inevitably something that she would be reluctant to disclose without necessity to people."

82 Next, having so identified the disability the subject of claim, the judge reasoned by reference to the evidence to the conclusion that the disability of body function constituted by faecal incontinence was caused by the claimed accident. As his Honour put it:

"In relation to problems in respect of her anal disability, to the extent that disruption of her back occurred in the accident, then that disruption in my view has upset her pre-existing back degenerative problem in the lower spine so as to kick that condition of the pudendal nerve and anal problem into a matter of real seriousness for her. "

83 Then, having thus identified the test of serious injury, and the disability itself, and that it was caused by the accident, the judge considered the question of whether the disability amounted to a serious long-term impairment or loss of a body function within the meaning of the definition of serious injury. As appears in what follows, his Honour did so objectively, as authority dictates that he should have:

"12. That injury [scil. the impairment of body function constituted by faecal incontinence] I regard as a serious injury. A number of matters were urged upon me with the view of persuading me that it was not, including the fact that it was said [the plaintiff] could manage with pads and other kinds of aids; that from time to time her treatment with respect to going to doctors was at least sporadic. It was also mentioned that there were surgical procedures available with a chance of relief, to some extent at least, from her anal condition and that there were new treatments on the frontier of modern medicine having the potential perhaps to alleviate or cure her problem.

13. Notwithstanding those kinds of matters, I am not persuaded that she is or has been unreasonable in not following through on some of those matters. None of the evidence goes so far as to offer a cure without risk of harm in the relevant procedures and all in all I think her problem is very likely to be at least long term and it is a problem notwithstanding the way she copes with it, of genuine difficulty with a substantial impact on her way of life. It is in my view a problem of an order which is well within the range of serious injury which commonly occurs in these courts. I think the injury is properly to be regarded as a serious injury within the definition contained in sub-s. (a) and as understood in the long line of cases explaining that definition."[51]

84 With respect, I also do not agree that the judge misstated the facts in referring to "her pre-existing back degenerative problem in the lower spine". Professor Tjandra's evidence (which the judge accepted) was that the plaintiff's faecal incontinence was a combination of muscular damage and nerve damage and, because of the profundity of the plaintiff's pudendal neuropathy, the nerve damage could have arisen to some extent from childbirth injury and to some extent from a back injury or back surgery. As Professor Tjandra put the point in evidence:

" ... there is perhaps some back injury on someone [the plaintiff] who already has a borderline nerve function because of childbirth injury."

85 When, therefore, the judge referred to "her pre-existing back degenerative problem in the lower spine", I take his Honour to have been referring to what Professor Tjandra had identified as pudendal neuropathy caused by childbirth resulting in borderline nerve function. And when the judge stated that the accident "had upset her pre-existing back degenerative problem in the lower spine so as to kick that condition of the pudendal nerve and anal problem into a matter of real seriousness for her", I take his Honour in effect to have been reiterating the conclusion, stated earlier in his reasons, that the exacerbated condition of the plaintiff's pudendal nerve and consequent faecal incontinence were caused "by the subject accident by an injury to the lower spine and hence the pudendal nerve which supplies the anal sphincter".

86 Consequently, I am unable to agree that the judge erred in his determination that the plaintiff suffered a serious injury within the meaning of s.93(17)(a). In my judgment, the appeal should be dismissed. [52]

87 In the result, it is unnecessary for me to consider whether the effect of the decision in Petkovski v Galletti[53] is that leave must be refused in a case where an applicant suffering from a pre-existing condition, involving a degree of impairment of relevant body function not amounting to a serious long-term impairment of that function, is involved in an accident which so aggravates the condition as to result in serious long-term impairment of the relevant body function, but in circumstances where the additional degree of impairment the consequence of the accident does not, of itself, constitute serious long-term impairment.

88 With respect, I agree with the President that some of the things said in Petkovski, and also by Winneke, P. and Chernov, J.A. in R. J. Gilbertsons Pty. Ltd. v Skorsis[54] (concerning the comparable provisions of s.135A(19)(a) of the Accident Compensation Act 1985), suggest that it may be so. Like his Honour, my initial inclination is to think that the refusal of leave in such a case may not be what Parliament intended.[55] But, as the President says, it is a matter for another day and only to be decided after full argument, when and if the need arises.

I certify that this and the preceding 32 pages are a true copy of the reasons for judgment of Maxwell, P., Chernov and Nettle, JJ.A. respectively of the Court of Appeal of the Supreme Court of Victoria delivered on 9 March 2006.

DATED the day of 2006.

[1] Petkovski v Galletti [1994] VicRp 32; [1994] 1 VR 436 at 437 per Brooking, J.A.

[2] Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 140 per Crockett and Southwell, JJ.

[3] Ibid.

[4] Petkovski (supra) at 443-4 per Southwell and Teague, JJ.

[5] Mobilio v Balliotis [1998] 3 VR 833 at 835 per Winneke, P., 854 per Ormiston, J.A.; Richards v Transport Accident Commission [2004] VSCA 91 at [45] per Buchanan, J.A.

[6] (2003) VSCA 182.

[7] ibid.

[8] Reasons para [8] (emphasis added).

[9] Reasons para [13] (emphasis added).

[10] Reasons para [19].

[11] [1994] VicRp 32; [1994] 1 VR 436.

[12] Reasons para [11].

[13] (1993) 177 CLR 472.

[14] ibid at 479.

[15] Reasons paras [15]-[16] (emphasis added).

[16] Reasons paras [14]-[15].

[17] Forder v Hutchinson [2005] VSCA 281 at [47], citing Tubemakers of Australia v Fernandez (1976) 50 ALJR 720 at 724, and Dahl v Grice [1981] VicRp 50; [1981] VR 513 at 520-2.

[18] T 152.

[19] T 160.

[20] Reasons para [24] (emphasis added).

[21] Humphries v Poljak (supra) at 140.

[22] [1960] HCA 58; (1960) 108 CLR 158.

[23] ibid at 163-4 (emphasis added).

[24] [1965] HCA 34; (1965) 114 CLR 164.

[25] ibid at 170, 171-2 (emphasis added).

[26] Reasons para [24].

[27] JG Fleming, The Law of Torts (9th ed. 1998) p.234, citing Dulieu v White [1901] EWHC KB 1; [1901] 2 KB 669 at 679 per Kennedy, J.

[28] [22].

[29] At [21].

[30] [1998] 3 VR 833 at 836 and 837.

[31] See also at 843.

[32] [2000] VSCA 50; (2000) 1 VR 79.

[33] At 86-7 [16] per Winneke, P.

[34] At 87-8 [17].

[35] At 89 [24].

[36] At 90 [28].

[37] At 83 [9].

[38] [2003] VSCA 182; (2003) 8 V.R. 452.

[39] [1994] VicRp 32; [1994] 1 V.R. 436 at 444-445 per Southwell and Teague, JJ.

[40] [2005] NSWCA 424 at [47].

[41] Cropp v TAC [1998] 3 V.R. 357 at 376, per Charles, J.A.; Giannakopoulos v Melwire Pty Ltd and MMI Workers' Compensation (Victoria) Ltd [2000] VSCA 153 at [23] et seq., per Tadgell, J.A.; Dodoro v Knighting and Transport Accident Commission [2004] VSCA 217 at [39], per Buchanan, J.A., and at [45] and at [58], per Eames, J.A., in diss; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 at [38], per Ashley, J.A.

[42] Emphasis added.

[43] Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 N.S.W.L.R. 127 at 139 [73], per Ipp, J.A.

[44] Flannery v Halifax Estate Agencies Ltd [1999] EWCA Civ 811; [2000] 1 W.L.R. 377 at 381-382; Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 N.S.W.L.R. 127 at 135 [57] - [73].

[45] Public Trustee v Commonwealth of Australia (NSWCA, 20 December 1994, unreported) per Mahoney, J.A.; BC 9606816 at [67] - [68].

[46] Moylan & Ors. v The Nutrasweet Co & Ors. [2000] NSWCA 337 at [64].

[47] T. 152.6 -16.

[48] [1970] 2 N.S.W.R.238 at 243; see too Tubemakers of Australia Ltd v Fernandez (1976) 50 A.L.J.R. 720 at 724; Dahl v Grice [1981] VicRp 50; [1981] V.R. 513 at 520-521.

[49] Emphasis added.

[50] It was pointed out in argument that the reference should have been to re-examination.

[51] Emphasis added.

[52] It is unnecessary to consider the appellant's further argument that the judge erred in determining that the plaintiff had also suffered a serious injury within the meaning of s. 93(17)(c) of the Act, because it was accepted that it was enough for the plaintiff's claim to proceed to trial that she was able to demonstrate a serious injury within either leg of the definition.

[53] [1994] VicRp 32; [1994] 1 V.R. 436.

[54] [2000] VSCA 51.

[55] See and compare Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51 at [25] and [27], per Buchanan, J.A. and Dalton v Dandenong Scaffolding Hire Co. Pty Ltd [2003] VSCA 183 at [44], per Ashley, J.A.