Spence & Anor v Gomez [2006] VSCA 48

Spence & Anor v Gomez [2006] VSCA 48 - VSCA 2006 case summary — Zoe

[35]

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:

[39]

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 -

[63]

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.

[66]

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:

[72]

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:

[94]

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.

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