Thapa v Transport Accident Commission [2021] VSCA 239

1 By originating motion filed 17 October 2019, the applicant sought leave, pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013, to bring a proceeding against his former employer, Martin Brower Australia Pty Ltd ('Martin Brower') in respect of an injury to his lower back that he sustained in the course of his employment on 10 September 2015. Subsequently, by an originating motion filed 21 November 2019, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986,[1] to bring proceedings for the recovery of damages for injuries that he sustained in a transport accident that occurred on 1 May 2017. The originating motion filed 21 November 2019 named the Transport Accident Commission ('TAC') as the defendant.[2]

2 The two originating motions came on for trial before a judge of the County Court on 24 November 2020. By judgment delivered on 1 December 2020, both originating motions were dismissed by the trial judge with costs.[3] The applicant seeks leave to appeal against the decision of the judge to refuse leave to bring proceedings claiming damages in respect of the injuries he sustained in the transport accident of 1 May 2017.

3 The applicant relies on three grounds in the application for leave to appeal, namely:

1. The trial judge erred in the application of Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 140 to the whole of the evidence adduced at trial, and ought to have determined that the applicant had established 'serious injury' within the meaning of s 93(4)(d) of the Transport Accident Act 1986.

2. The trial judge failed to fully or adequately consider the evidence adduced by the applicant addressed to pecuniary disadvantage and limitations on future employment.

3. The reasons for judgment do not disclose an adequate process of reasoning to demonstrate why upon the proper application of Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 140 to the whole of the evidence the applicant's application was refused.

Summary of background facts and circumstances

4 The applicant was born in Nepal in October 1980. After completing high school, he moved to Singapore where he completed a Diploma in Marine and Offshore Technology. Following that, the applicant was employed in the petroleum industry for three years as a manufacturing technician and computer-aided drafter. Subsequently, he moved to Malaysia where he commenced a Degree in Mechanical Engineering at Monash University. In 2007, he came to Australia where he completed a Bachelor of Mechanical Engineering at Swinburne University.

5 Following his graduation, the applicant was unable to obtain employment as a mechanical engineer. In 2011, he commenced employment with Martin Brower, initially as a casual warehouse picker and packer, and from July 2012, as a permanent full-time employee. In the following year, he progressed from level 1 to level 2, and then to level 3, as a picker and packer.

6 In May 2014, the applicant experienced pain in his left shoulder and neck when moving boxes of frozen products. He did not require any time off work but was placed on lighter duties. Subsequently, he experienced further left shoulder pain in 2014 when lifting pallets at work. He received physiotherapy and medical treatment.

7 On 10 September 2015, the applicant experienced back pain while lifting packed boxes of meat in the freezer department. The pain gradually became worse and affected his left leg. He consulted a general practitioner. He lodged a WorkCover claim and continued in employment on lighter duties. An MRI scan that was undertaken on the lumbar spine on 8 October 2015 demonstrated a disc protrusion at the L 4-5 level that compressed the left L 4 nerve root. The applicant was treated with physiotherapy and hydrotherapy by Mr Rany Louka at Hampton Park. He undertook hydrotherapy and exercises that were recommended to him by the physiotherapist. On 24 February 2016, he was administered an L 4-5 epidural injection which resulted in significant pain relief for him. As a consequence, in June 2016, he was given a full clearance to resume his normal work duties.

8 In February 2017, the applicant experienced a further flare up in his left shoulder pain. The injury was treated by physiotherapy and he was placed on lighter duties, which he continued to perform at the date of the transport accident. At that point, the applicant's back injury had responded well to the epidural injection, and it was no longer causing him any discomfort.

9 On the night of 1 May 2017, the applicant was involved in a motor vehicle accident that occurred at the intersection of Assembly Drive and the Princes Highway, Dandenong South. At the time, the applicant was driving home from work. As he turned right on a green arrow, a vehicle on his left failed to stop at a red light and collided with the passenger side of the applicant's vehicle. It was a high impact collision which caused the applicant's vehicle to spin around. As a consequence, the applicant's vehicle was a 'write off'.

10 The applicant was conveyed by ambulance to the Dandenong Hospital. At the time he was suffering neck pain radiating into the right shoulder, and sharp pain down the length of his spine. The applicant was placed in a cervical collar and kept overnight under observation in the casualty department. On the following day, he was discharged home with pain medication. The applicant subsequently returned to Dandenong Hospital on 5 May 2017 complaining of neck pain radiating into his head and also of lower back pain.

11 Following the motor vehicle accident, the applicant was unable to work for a number of months. He consulted his general practitioner, Dr Vithura Jeyasingham of the Casey Super Clinic, and resumed physiotherapy treatment for his back.

12 In about August 2017, the applicant returned to work on light duties which substantially consisted of completing paperwork and forklift driving. However, in the lead up to Christmas 2017, his workplace became busy and he was required to perform work involving some manual handling. On 5 December 2017, he was asked to undertake some picking and packing. As he was performing that work, his back pain became unbearable with a tingling or numbness in the back of his left thigh and calf. He was certified unfit for work.

13 In December 2017, the applicant was advised by representatives of Martin Brower that light duties were no longer available to him. He was told that he could not return to work unless he had a full clearance for normal duties. As a result, he ceased employment with Martin Brower.

14 In January 2018, the applicant commenced physiotherapy treatment with Ms Rani Marina of the Hampton Park Physiotherapy Clinic. In March 2018, he consulted a psychologist, Beenish Shahzad of New View Psychology, for treatment of anxiety and depression. He was trialled on anti-depressant medication for a short period.

15 On 11 May 2018, the applicant underwent a CT scan of the thoracic spine and lumbar spine. The scan of the lumbar spine demonstrated a left lateral and foraminal disc bulge at the L 4-5 level narrowing the left subarticular recess and the left foramen, traversing L 5 and exiting such that the left L 4 nerve roots could be impinged.

16 Subsequently, in April 2019 the applicant commenced courier driving work for GO People averaging one or two jobs per week, with each job usually taking a maximum of four hours. In June 2019, he commenced work as an Uber driver in addition to some courier work. He was then driving approximately twenty to twenty five hours each week. After he commenced with Uber, he also signed up with DiDi performing the same type of driving work.

17 On 14 January 2020, the applicant underwent an MRI scan of the cervical spine and the lumbar spine. The scan of the cervical spine revealed no significant spinal canal or neural foraminal stenosis. The scan of the lumbar spine did not reveal any significant spinal canal stenosis or neuro-compressive neural foraminal stenosis. The scan did identify at the L 4-5 level a posterior annular fissure with shallow postero-central disc protrusion, and mild left neural foraminal stenosis, but no neural compression.

18 In March 2020, the applicant commenced employment as a telemarketer for Capital Print Solutions working for twenty five hours per week. In doing so, he ceased Uber driving. However, the telemarketing work dried up after a few weeks due to the COVID-19 pandemic. Subsequently, in late June 2020 the applicant commenced employment as a Project Coordinator with Raeco Pty Ltd ('Raeco'). That company provided shelving and furniture to schools and libraries. The applicant was employed working forty hours per week on a casual basis, on the understanding that if he did well during an initial probationary period he would be offered a permanent full-time position. The applicant's work did not involve any manual handling. He worked in an office liaising with customers and managing the company's projects. Most of his work involved sitting at a computer. However, on 6 August 2020, the applicant and all his fellow employees were stood down from employment with Raeco due to the temporary shutdown of the company resulting from the COVID-19 restrictions. At the date of the hearing before the County Court, Raeco had continued to keep the applicant updated as to a possible return to work. However, that had not occurred at the time of the hearing.

19 At the hearing of the applications, counsel for the TAC and Martin Brower acknowledged that the applicant was a straightforward and credible witness. The judge agreed with that assessment.[4]

20 The applicant made three affidavits and was cross-examined at the hearing. In his first affidavit dated 4 June 2019, he stated that at the time his employment ceased with Martin Brower, his back pain had become unbearable. The severity of the pain had decreased after he ceased work, but he still continued to suffer from flare ups if he attempted to lift heavy objects, stand or walk for long periods. He found it necessary to keep changing his position in order to avoid stiffness and relieve discomfort in his back. After he commenced courier driving work, he found that his back became sore while he was driving, but the work assisted with his self-esteem. As a result of his pain and disability, his relationship with his wife was badly affected. He was significantly restricted in any work that he did around the house and he avoided tasks that involved lifting, pushing or bending. He was able to undertake some gardening work, but he had to carry out that work slowly and take frequent rests. He was then seeing his general practitioner on a monthly basis, and undertaking monthly physiotherapy treatment with Ms Marina.

21 In his second affidavit dated 20 July 2020, the applicant stated that he continued to suffer the symptoms and disabilities that he had described in his first affidavit. He said that there was still a constant, dull ache in his lower back, and that he suffered some pain in his neck and left shoulder from time to time. However, the lower back was his most significant problem. The applicant stated that before the motor vehicle accident, he had aspirations of applying to join the Australian Defence Force, but he had given up on that plan because he felt he would not be able to pass the physical test. He again stated that his injury had placed a significant strain on his family and on his marriage. The tension between himself and his wife had increased and they had considered separating. They recently undertook some counselling which assisted.

22 The applicant stated that he had done some rehabilitative work in a gymnasium, but he was unable to 'push' himself physically like he used to. He also attempted outdoor activities with his young daughter, but he found he was much less active with her than he would have liked to have been. As a result, he became irritated, which affected his relationship with his daughter. He found it difficult to get a full night of uninterrupted sleep because of the back pain. As a result, in the morning he felt his back was stiff and he felt lethargic. The applicant was continuing to receive physiotherapy treatment from Ms Marina.

23 The applicant's third affidavit was sworn on 27 October 2020. By that time, he had been stood down from his position as Project Coordinator at Raeco. He said that his work with Raeco had mainly involved him sitting at a computer, but he found that sitting for long periods of time would aggravate his back pain and stiffness. His role with Raeco was sufficiently flexible to enable him to take breaks and go for short walks. Since he was stood down in August 2020, he had undertaken light housework in the home, and assisted his daughter with her home schooling. He said he had not noticed any significant improvement in his back pain since he had ceased work, and he accepted that he would have to live with the current level of pain and restriction. The applicant's wife was then working, but she was due to give birth to their second child in two months (that is, December 2020). While his shoulder pain continued to flare up from time to time, his back was his main source of pain and discomfort.

24 In cross-examination, the applicant confirmed that the epidural injection in February 2016 had relieved his pain, and he was able to resume employment performing his pre-injury duties by June 2016. Before his motor vehicle accident, he had been able to attend his gymnasium two or three times each week. However, he had not carried out heavy gym work during that time, because he was conscious that he needed to take care to avoid causing further injury to his back. In respect of his present activities, he said that he was able to drive a motor vehicle. He helped his wife with the cooking, and he attempted to assist with domestic tasks. He also did some work in the garden. He agreed that if the COVID-19 pandemic had not intervened, he would be continuing to work with Raeco. He also agreed that he had never been referred to an orthopaedic surgeon or a neurosurgeon for treatment of his lower back injury. He was no longer taking any medication for it, and in July 2020 he had commenced jogging once or twice per week. In further cross-examination, he agreed that he had not received any active treatment for his back injury since about 2019.

25 In the course of cross-examination, the applicant sought and was given leave by the judge to stand while giving evidence, due to discomfort he was experiencing. In re-examination, he said that with prolonged sitting or prolonged walking, his back became really stiff and he needed to keep changing his posture. He said that at the time that he requested permission to stand while giving evidence, his pain was 'really intense' and his back felt 'really painful'. He said that if he sat for long periods or walked for too long (for over an hour), his back would become very stiff. He said that he suffered back pain every day. By the end of the day, if he had been trying to do something around the house, his back pain was at a level of eight out of ten. He said he was never free from pain, it was always constant, like a dull aching pain. If he helped his wife in the garden, his back would become stiff and the pain level would be about seven or eight out of ten.

26 The applicant's wife, Genisha Thapa, swore an affidavit on 20 July 2020. She recalled that the applicant first had problems with his back towards the end of 2015, but it had improved by mid-2016. After the motor vehicle accident in May 2017, the applicant could do very little around the house. He was extremely stiff and sore due to his back pain. Shortly before Christmas 2017, the applicant told her that it was a busy time at work and he was finding it difficult to continue because of the back pain. After the applicant ceased employment with Martin Brower, he became very stressed, and their marriage suffered. The applicant and Mrs Thapa attended a psychologist, to try to assist rehabilitate their marriage.

27 Mrs Thapa confirmed that, before he was injured, the applicant had expressed a long term ambition to join the Australian Defence Force. However, since the motor vehicle accident, the applicant had abandoned that plan because he would not be able to pass the requisite physical test. Mrs Thapa said that while the applicant is an 'uncomplaining' person, she could see that he was still in pain. He struggled to bend down to put on his socks and shoes when dressing, and around the house he avoided tasks that involved a lot of bending, lifting or squatting. He had difficulty bending down to pray and worship, and he was unable to squat on the floor to chop up chicken for her in order to make a traditional Nepalese chicken curry. Mrs Thapa said that the applicant's back pain was unpredictable. On some occasions it seems alright, but on other days he was in a lot of pain.

28 The medical evidence, concerning the applicant's condition, consisted of a number of reports by different practitioners that were tendered at the hearing of the application. The following is a brief summary of the salient aspects of those reports.

29 Dr Vithura Jeyasingham provided a report dated 6 June 2020. The applicant presented to Dr Jeyasingham on 9 February 2017 complaining of a pre-existing injury to his left shoulder. In the ensuing weeks he reported that the shoulder was improving. On 7 May 2017, he attended Dr Jeyasingham, following the transport accident. Dr Jeyasingham noted that the applicant had been diagnosed at the Dandenong Hospital with soft tissue injury to the neck and shoulder. In December 2017, the applicant reported that he suffered lower back pain which was possibly a flare up due to the motor vehicle accident. In following visits, the applicant said that his shoulder and neck were improving.

30 The applicant was examined by Professor Richard Bittar, a consultant neurosurgeon, for medico-legal purposes on 17 May 2019, and subsequently on 9 January 2020. In his first report, Professor Bittar noted that a CT scan of the lumbar spine performed in May 2018 demonstrated a left lateral and foraminal disc bulge at L 4-5 narrowing the left subarticular recess. He also noted that an MRI of the lumbar-sacral spine performed on 8 October 2015 demonstrated a left paracentral and foraminal protrusion at L 4-5 causing severe left subarticular recess narrowing. Professor Bittar noted that the applicant had not then had any MRI scans since the transport accident on 1 May 2017.

31 Professor Bittar expressed the view that the applicant had a non-specific injury to his cervical spine, which might have been an injury to the soft tissues, facet joints, or intervertebral discs. In addition, he had suffered an aggravation of lumbar spondylosis or L 4-5 disc prolapse. He considered that the applicant had a pre-existing lumbar intervertebral disc prolapse, which was symptomatic, and which had been aggravated and rendered more symptomatic as a result of the transport accident. Professor Bittar therefore considered that the transport accident had been a significant contributing factor to the applicant's cervical and lumbar spine conditions. He considered that the applicant was then incapacitated for his full pre-injury duties as a result of the transport accident related lumbar spine condition. Professor Bittar considered that the applicant had the capacity to work up to four hours each day, three to four days per week in a light physical (sedentary) role. That partial incapacity for work was permanent. Professor Bittar also considered that the accident did not result in any degenerative injuries and that his current injuries were unlikely to become degenerative.

32 In his second report dated 9 January 2020, Professor Bittar noted that an MRI scan of the cervical spine and lumbar spine had been performed on 14 January 2020. The MRI of the lumbar spine demonstrated disc desiccation and an annular tear at the L 4-5 level with left sided subarticular narrowing and foraminal narrowing. Professor Bittar could not detect any definite neural compression. The MRI of the cervical spine demonstrated a loss of normal cervical lordosis, with multi-level disc bulging, predominantly at the C 4-5 and C 5-6 levels.

33 Professor Bittar considered that the applicant suffered from an aggravation of cervical spondylosis, an aggravation of lumbar spondylosis, and an intervertebral disc prolapse at the L 4-L 5 level. He considered that the prolapse was work related, resulting from heavy and repetitive activities undertaken by the applicant in his employment in about September 2015. The aggravation of the cervical spondylosis and of the lumbar spondylosis were related to the transport accident of 2017. Professor Bittar considered that the current neck and lower back symptoms were most substantially related to the transport accident of 1 May 2017, with a relatively minor contribution being made by his previous workplace activities.

34 Professor Bittar considered that the applicant's prognosis was guarded. The applicant was permanently incapacitated for his full pre-injury duties as a result of the injuries he sustained in the transport accident. His partial incapacity for work was permanent. Professor Bittar expressed the view that, given the applicant's age, education, training and experience, his injuries had substantially reduced his capacity to obtain and maintain employment in a competitive job market. Professor Bittar concluded:

His injuries are an aggravation of pre-existing degenerative condition. Specifically, he does have degenerative change in his cervical spine which was most likely present prior to the transport accident, although one cannot be certain of this. Similarly, he has degenerative change in his lumbar spine which may be related to the L 4-L 5 disc prolapse or may predate the disc prolapse. It is very difficult to be more specific than this and it is also difficult to predict the effect of any accelerated degeneration on his need for future treatment as well as on his social, domestic, recreational and working life.

35 The applicant was examined by Dr James Rowe, a specialist occupational physician, on 18 February 2020. Dr Rowe expressed the view that the applicant had suffered multiple injuries as a result of his work, which had been aggravated by the motor vehicle accident in May 2017. As a result of the injuries to his lower back, he would be restricted in performing work that involved lifting and carrying, bending and twisting, pushing and pulling, squatting and crouching, and prolonged periods of sitting, standing or walking. Those limitations were likely to continue for the foreseeable future. As a consequence, Dr Rowe was of the view that the applicant was not fit for his pre-injury employment as a warehouse operator. In particular, he is unable to perform repetitive picking and packing duties, lifting, twisting, bending and carrying. Dr Rowe expressed the view that it was unlikely that the applicant's capacity to perform such physical work would improve in the future. He has a capacity for part-time work in a position in which the restrictions on the use of his lower back could be accommodated. In particular, Dr Rowe considered that the applicant was currently fit to perform work as a Uber driver, or to work in some other sedentary position such as office work, for a maximum of fifteen hours per week. He considered that the applicant had been left with a permanent long-term impairment in his neck, left shoulder and lower back as a result of his work and the transport accident.

36 As we have mentioned, the applicant consulted Mr Beenish Shahzad, a psychologist, on 28 March 2018. He attended seven sessions with Mr Shahzad between that date and 14 September 2018. Mr Shahzad noted that in the initial sessions the applicant appeared to be struggling with the changes to his life caused by his injury. He presented with severe symptoms of depression. Following several sessions of cognitive behavioural therapy, the symptoms gradually subsided. At the time of writing the report in September 2018, Mr Shahzad considered that the applicant seemed to be coping well with work stress as long as it did not place undue demands on his physical capacity. The applicant's overall prognosis remained positive.

37 Dr Nigel Strauss, a consultant and occupational psychiatrist, interviewed the applicant in June 2018, and subsequently, on the telephone, on 30 April 2020. In his first report, Dr Strauss diagnosed that the applicant suffered from a chronic adjustment disorder with mixed anxiety and depressed mood and evidence of traumatisation. Following the transport accident, the applicant had developed a significant psychiatric reaction. His quality of life remained significantly reduced as a result of the effects of the accident and his reduced capacity to engage in social, domestic and recreational activities. Dr Strauss considered that there was scope for improvement.

38 Following the second consultation (on the telephone) in April 2020, Dr Strauss expressed the view that the applicant's condition had improved from a psychiatric perspective. He had been left with mild symptoms of anxiety and depression, but there was minimal evidence of traumatisation. Dr Strauss considered that the applicant did not require any further psychiatric treatment. He also expressed the view that the mild symptoms of anxiety and depression, and the evidence of traumatisation, were entirely due to the motor vehicle accident in May 2017.

39 Ms Katrine Green, a qualified psychologist, undertook a vocational assessment of the applicant in July 2020. Ms Green gave consideration to a number of potential occupations to which the applicant might be suited by reason of his education, work history and transferable skills. She expressed the view that, from a physical perspective, alternative employment as a store person/order picker/assembler, a hand packer, a forklift driver and a courier/delivery driver would not be suitable employment options for the applicant in light of his physical restrictions. She considered that, from a physical perspective, the applicant could undertake employment as a call centre information clerk, a mechanical engineering technician, or a computer aided design drafter.

40 The applicant was examined by Mr Gary Speck, an orthopaedic surgeon, on 7 July 2020, on behalf of the TAC. After he examined the applicant, and having had reference to the relevant radiology and other reports, Mr Speck concluded that the applicant had suffered a soft tissue injury to the lower back in the presence of degenerative change with a previously symptomatic disc prolapse at the L 4-L 5 level. Mr Speck considered that the soft tissue injury had resolved, and that the applicant's present symptoms in the lower back reflected fluctuating degenerative lumbar spine disease with an overlay of fear avoidance and chronic pain behaviour. The applicant had unrelated symptoms relating to his left shoulder and neck. Mr Speck considered that the restrictions of movement detected on examination were modest and only affected lateral flexion to the left, with extension of the thoracolumbar spine and neck movements being minimally reduced. He considered that the applicant's incapacity in relation to his daily living, and in relation to his work, was not related to his transport accident injury. He also was of the view that the prognosis for the applicant's injuries was good.

41 The applicant was examined by Mr Rodney Simm, an orthopaedic surgeon, on 26 February 2020 on behalf of Martin Brower. Mr Simm expressed the view that the applicant had symptomatic L 4-5 lumbar disc degeneration, which included an associated left sided disc protrusion with the potential for nerve root irritation. However, the applicant had no distal symptoms below the left knee and no abnormal neurological findings to suggest that he had radiculopathy. Mr Simm considered that the physical demands of the applicant's work had caused an exacerbation of pain from the pre-existing pathology, which had settled completely in the year before the transport accident. Mr Simm also considered that the applicant suffered a soft tissue injury to the lower back as a consequence of the transport accident on 1 May 2017, so that he had persistent symptoms in the back and left lower limb from the lumbar disc degeneration since that date. Mr Simm considered that the soft tissue injury, resulting from the transport accident, aggravated, rather than exacerbated, the lumbar disc degeneration. Mr Simm attributed the applicant's current symptoms to the aggravation of the L 4-5 disc degeneration, which occurred as a result of the transport accident. He considered that the applicant's employment had not been a significant contributing factor.

42 Mr Simm further considered that the applicant had a limited work capacity as a result of the back injury, which he sustained in the transport accident. He considered that, in light of the applicant's history, he was not suited to work in a heavy manual occupation. Accordingly, he was unsuited to continuing employment as a picker and packer. He did have capacity for suitable employment, and was currently undertaking such employment as a Uber driver. Mr Simm concluded that the applicant was capable of working full-time in suitable light employment.

43 Finally, the applicant was examined by Associate Professor Bruce Love, an orthopaedic surgeon, on 23 October 2018, on behalf of the TAC. Mr Love considered that the applicant had pre-existing lumbar disc pathology at the L 4-5 level and a soft tissue injury to the left shoulder girdle, which had been aggravated by the transport accident. He considered that the applicant did not then have capacity for employment, and that he would be permanently incapacitated from performing work which involved repeated bending or stooping or heavy lifting.

44 After summarising the relevant chronology relating to the applicant's injury, the judge considered, first, the question whether the injury to the applicant's spine amounted to a serious long-term impairment of the spine within the meaning of the definition of serious injury in s 93(17) of the Transport Accident Act.

45 In addressing that question, the judge noted that the applicant's predominant current issue is his lower back pain. Her Honour noted that, during cross-examination, the applicant had needed to request permission to stand after one hour sitting, and that he had appeared to be in some discomfort at that time.[5] The judge noted that he was still able to drive, garden, cook, walk, jog, do housework and care for his daughter. However, his lower back pain restricted his capacity to perform his activities and the enjoyment of them.[6] Her Honour noted that the applicant had difficulty bending down to pray and worship, that he had been unable to be as physically active as he was before 2015, and that his sleep was interrupted by pain and stiffness.[7] Further, the applicant was unable to work as a picker and packer.[8] In addition, he had been unable to pursue his long-term aim of working for the Australian Defence Force.[9]

46 On the other hand, the judge noted that, with hourly breaks, the applicant was able to work twenty to twenty five hours per week as a courier or delivery driver, to work twenty five hours per week as a telemarketer for Capital Print Solutions, and to work forty hours per week as a Project Coordinator for Raeco. Her Honour took into account that the applicant suffered anxiety and stress as a result of his injury, but that Dr Strauss in his most recent report indicated that the applicant's condition had improved. Her Honour also took into account that the applicant was not currently taking medication, and he had not been referred to an orthopaedic surgeon or neurosurgeon.

Overall, Mr Thapa suffers constant pain which fluctuates from a dull ache to more severe pain. He can no longer work in his pre-injury career as a picker and packer. He has also lost the chance of pursuing a career in the Australian Defence Force. I am conscious that Mr Thapa is relatively young. I am also conscious that Mr Thapa is clearly stoic, motivated and hardworking and should not be penalised for that.

On the other hand, Mr Thapa is tertiary educated and impressed me as articulate and intelligent. He has alternative careers open to him which may actually be more suited to his skill-set than employment as a picker and packer. These include positions such as mechanical engineering technician, computer aided design drafter and call-centre information clerk.

He is presently employed as a project co-ordinator with Raeco. Although he was on probation when he was stood down due to the COVID-19 pandemic, there is no reason to believe that this position will not be ongoing once the company's operations resume. Whilst this position pays less than his previous employment as a picker and packer, I am not satisfied on the (limited) evidence before me that he will suffer significant long-term pecuniary disadvantage from being required to move into a more white-collar/clerical field of employment. In this regard, I note that the vocational assessment report of Katrine Green described a position as a mechanical engineering technician as a good 'introductory job' for Mr Thapa.

Whilst his pain restricts his daily activities, he is still able to engage in activities such as gardening and housework and driving and caring for his young daughter.

He is able to achieve all of the above without surgery, medication or significant ongoing treatment.

I acknowledge that Mr Thapa's lower back pain, in particular, is significant and distressing to him. However, having considered all of the above matters, I am not satisfied that, judged in comparison to other cases in the range of possible impairments or losses, his current spinal impairment passes the required threshold of being very considerable and more than significant or marked.

It follows that Mr Thapa has not suffered a serious injury by reason of the car accident.[10]

48 Her Honour then addressed the question of the extent to which the current impairment of the applicant's spine was a consequence of the motor vehicle accident on 1 May 2017, and the extent to which it was a consequence of an injury suffered by the applicant in the course of his employment in about September 2015. Her Honour accepted the opinion of Professor Bittar, that the applicant had suffered an L 4-L 5 intervertebral disc prolapse due to heavy and repetitive activities in the course of his employment in September 2015. The judge preferred the opinion of Professor Bittar to that of Mr Simm,[11] and accepted the opinion of Professor Bittar that, by the time of the transport accident on 1 May 2017, the applicant had made a full recovery from the injury.[12] Her Honour was not satisfied that, as a result of the disc prolapse in September 2015, the applicant had a weakened spine which had predisposed him to further injury.[13] Her Honour therefore accepted the opinion of Professor Bittar that the transport accident of 1 May 2017 had caused an aggravation of cervical spondylosis and lumbar spondylosis.[14]

49 The judge concluded that she was not satisfied that the applicant had been precluded from working as a picker and packer by reason of the injury he sustained in September 2015.[15] Her Honour accepted that the applicant suffered soft tissue injuries to his neck and lower back as a result of the transport accident on 1 May 2017.[16] In reaching that conclusion, the judge did not accept the opinion of Mr Speck that the applicant had made a full recovery from that injury.[17] Her Honour considered that it was more probable that the injury to the applicant's lower back, which he suffered in the transport accident, had not resolved, and that the deterioration of his back pain in December 2017 constituted an exacerbation or aggravation of that injury.[18]

50 The judge was not satisfied that the applicant's inability to work as a picker and packer was a consequence of the injury that the applicant had suffered in the transport accident. Her Honour noted that the applicant had suffered repeated incidents of shoulder pain during the course of his employment as a picker and packer, and her Honour was not satisfied that he would ever have been able to return to full duties in that capacity due to his ongoing shoulder pain.[19]

51 In support of grounds 1 and 2, counsel for the applicant referred, first, to a number of findings by the judge that demonstrated that the applicant suffered significant pain and suffering consequences as a result of his lower back injury. In particular, counsel noted the judge's findings that: the applicant suffered a constant dull ache in his lower back; he needed to stand and move at least hourly because of his back pain; he suffered pain upon bending, squatting and getting up and down from the floor; his pain was more intense with activity including working; he suffered flare ups if he attempted to lift heavy objects or stand or walk for long periods of time; he had difficulty bending down to pray and worship; his lower back pain restricted his activities including driving, gardening, performing domestic tasks and parenting; and he had interrupted sleep. Counsel noted that the findings by the judge, to that effect, were supported by the evidence of the applicant's wife. In those circumstances, it was submitted, the consequences, including the applicant's constant pain, compelled a conclusion that the applicant had suffered a very considerable impairment as a consequence of the transport accident.

52 In respect to pecuniary disadvantage, counsel submitted that it was relevant that the applicant's flexibility of employment had been impacted as a consequence of his injury. Counsel submitted that the judge's conclusion, that she was not satisfied that the applicant would suffer significant long-term pecuniary disadvantage, was erroneous in the following respects. First, (it was submitted) the judge failed to place adequate weight on the applicant's loss of flexibility in the work force. Secondly, notwithstanding intermittent shoulder pain, the applicant had held a permanent position with Martin Brower, and it was the injury sustained as a consequence of the transport accident that had precluded him from continuing in manual work. Thirdly, it was submitted, the judge erred in not being satisfied that the applicant's inability to work as a picker and packer was a result of the transport accident injury. In that respect, it was submitted, the evidence established that before the transport accident the applicant was able to maintain his employment with Martin Brower. Fourthly, it was submitted, the evidence established that the applicant had had difficulty finding stable full-time employment since the transport accident. Fifthly, counsel noted that there was a 'strong element of unpredictability' in terms of the applicant's future employment prospects, as a result of the injury that he sustained as a consequence of the transport accident. Sixthly, counsel submitted that the judge failed to take into account the opinion expressed by Professor Bittar (whose opinion the judge accepted), that the applicant had a permanent partial incapacity for work. Seventhly, it was submitted, the judge erroneously disregarded the opinion expressed by Dr Rowe as to the limitations sustained by the applicant as a consequence of the injury to his lower back.

53 In those circumstances, it was submitted that the judge erred in failing to conclude that the applicant had sustained a serious long-term impairment of his spine as a consequence of the transport accident.

54 In support of ground 3, counsel for the applicant submitted that the judge's reasons, for concluding that the applicant had not suffered such an injury, are inadequate. It was submitted that, in a number of respects, the judge failed to give adequate reasons for concluding that the applicant had not suffered pecuniary disadvantage, which, in combination with the pain and suffering consequences, was very considerable, and thus constituted a serious injury.

55 In response to ground 1, counsel for the respondent noted that the applicant's written case did not contend that the judge had made any specific error in determining that the applicant had not sustained a serious injury as a consequence of the transport accident, nor was it contended that the judge's conclusion, to that effect, was plainly wrong or wholly erroneous. Counsel further submitted that any such submission could not be upheld, as, based on the whole of the evidence, the judge was not compelled to find in favour of the applicant.

56 In response to ground 2, counsel for the respondent submitted that, based on the evidence, it was open to the judge to conclude that she was not satisfied that the applicant would suffer significant long-term pecuniary disadvantage as a consequence of his injury. In respect to the seven matters relied on by counsel for the applicant, counsel for the respondent noted, first, that in the hearing before the primary judge, counsel then appearing on behalf of the applicant did not rely on a loss by the applicant of flexibility in the work force. In any event, the judge acknowledged the fact that the applicant would be unable to work as a picker and packer or pursue a career in the Australian Defence Force. Nevertheless, the applicant was intelligent, being tertiary educated, and as such he had alternative careers available to him. In respect to the second matter relied on by counsel for the applicant, counsel for the respondent submitted that it was open to the judge, on all the evidence, not to be satisfied that the applicant was precluded from returning to unrestricted duties as a picker and packer by reason of the injury that he sustained in the transport accident. Counsel submitted that it was open to the judge to take into account that, by reason of the applicant's shoulder injury, he was, in any event, precluded from engaging in full time duties as a picker and packer by reason of his shoulder condition.

57 Counsel for the respondent further noted that, in the proceeding before the primary judge, counsel acting for the applicant had not relied on the evidence that the applicant had struggled to secure stable employment since the transport accident. In any event, the evidence reflected that the applicant's employment with Capital Print Solutions and Raeco had been interrupted, not by reason of any medical injury, but due to the COVID-19 pandemic. At the time of the hearing, the applicant was contracted to work forty hours per week with Raeco on a probationary basis, and if he successfully handled the job requirements, he was likely to be offered a full time employment in that capacity. Counsel further submitted that the evidence of Professor Bittar was consistent with the judge's findings, in light of the fact that Professor Bittar was not aware of the employment positions held by the applicant subsequent to his examination. Counsel further submitted that the judge did not err in her conclusions concerning the report of Dr Rowe. Her Honour stated that she did not find that report to be helpful, because it did not distinguish between the neck, left shoulder and lower back injuries, and between the injury sustained by the applicant in the course of his employment and the injury that he sustained as a consequence of the transport accident.

58 In response to ground 3, counsel submitted that the reasons provided by the judge reflected the manner in which the case had been conducted before her. In particular, he submitted that the judge's reasons properly disclosed the path by which she concluded that the application against the respondent should be refused.

59 The principles, that apply to grounds 1 and 2, are well established. In order that the applicant's injury be held to be serious, the consequences of the injury to the applicant, when judged by comparison with other cases in the range of possible impairments or losses, must be at least 'very considerable' and certainly more than 'significant' or 'marked'.[20]

60 As a consequence of the transport accident, the applicant suffered injury to both the lower back and the neck, albeit that the injury to the lower back was more substantial. In determining whether the injury sustained by the applicant was serious, the lumbar spine and the cervical spine are regarded as a single body function.[21]

61 In the application under s 93(4)(d) of the Act, the judge was required to determine whether the pain and suffering consequences, in combination with the pecuniary disadvantage consequences, satisfied the test stated in Humphries v Poljak. In that regard, an application under s 93(4)(d) of the Act differs from applications under s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (and its predecessor, s 134AB(16)(b) of the Accident Compensation Act 1985), in which pain and suffering consequences are considered separately from loss of earning capacity consequences to an applicant.

62 As mentioned, the predominant injury sustained by the applicant in the transport accident constituted the injury to his lower spine. In addition, he suffered a psychological reaction arising from the injury, as a consequence of which he was required to undergo psychological treatment. In determining the severity of the injury to the spine, it was permissible for the judge to take into account the psychological consequences of the injury.[22]

63 Ground 1 of the application for leave to appeal contends that the trial judge erred in failing to conclude that the applicant had established that he had sustained a 'serious injury' in accordance with those principles. While ground 2 makes separate allegations of specific error, the applicant argued grounds 1 and 2 together. The specific errors were relied on as a stand-alone basis for overturning the judge's decision, and also as supporting the contention advanced under ground 1. As we will discuss, some of the points made by counsel for the applicant, in argument, might be more properly treated as pertaining to the error alleged in ground 1, rather than as discrete specific errors.

64 In Mobilio v Balliotis,[23] this court, sitting as a bench of five members, gave detailed consideration to the test to be applied in determining such a ground. The court held that, as the question, whether an injury sustained in a transport accident is a serious injury, involves elements of fact, degree and value judgment, it followed that, in the absence of specific error, a determination by a trial judge relating to serious injury will only be set aside on appeal if the decision is plainly wrong or wholly erroneous.[24] In the last two decades, that approach has been adopted and applied in a large number of decisions of the court.[25]

65 We note that, in light of the decision of the High Court in Minister for Immigration and Border Protection v SZVFW,[26] it might be necessary to reconsider the question of the correct test to be applied by this court to such a ground of appeal. In the present application, the parties did not undertake to address that question in the course of submissions. Accordingly, we will proceed on the basis that the approach outlined in Mobilio should be applied to ground 1.

Grounds 1 and 2 - consideration and conclusions

66 Before turning to ground 1 and to the submissions, advanced under ground 2, in support of it, it is convenient first to address the aspects of ground 2 which, it would seem, allege specific error by the judge.

67 As we have noted, counsel for the applicant raised seven points in support of ground 2. On analysis, the second, third and seventh points appear to allege specific error by the judge. The other four points more appropriately would seem to have been argued as particulars of ground 1.

68 The second point advanced on behalf of the applicant was that the judge erred in finding that she was not satisfied that the applicant would have been able to successfully return to full duties as a picker and packer due to his ongoing issues with shoulder pain.[27] In our view, that finding by the judge was supported by the evidence. In cross-examination, the applicant agreed that in the period of months leading to the transport accident in May 2017, he had been on light duties because he had further problems with his neck and left shoulder for which he was then receiving treatment by way of anti-inflammatory tablets, physiotherapy and hydrotherapy. The applicant was examined by his general practitioner on 28 April 2017, three days before the transport accident. He was then limited in his work to lifting no more than 20 kilograms. The applicant further agreed that after he returned to work in August 2017, he was placed on light duties because of his shoulder pain. He remained on restricted duties until he suffered the further bout of lower back pain in the course of his work in December 2017. Based on that evidence, in our view the judge was justified in concluding that, in light of the applicant's ongoing issues with shoulder pain, he had not established that he would have been able to successfully return to full duties as a picker and packer if the transport accident had not occurred.

69 The third point, advanced under ground 2, was that that finding by the judge - as to the applicant's inability to return to full duties as a picker and packer - was irrelevant, because the evidence established that before the transport accident, and the applicant's deterioration of his back injury in December 2017, he had been able to maintain his employment with Martin Brower. It was therefore contended that it was the deterioration of the applicant's back pain in December 2017 that led to the termination of his employment.

70 There is, we consider, some substance in that point. As we have noted, the applicant was confined to light duties in his employment, as a result of his shoulder injury, for some period before the transport accident in May 2017. Following his return to work in August 2017 he remained on light duties, until he sustained a further bout of lower back pain in the course of his work in December 2017. In cross-examination, the applicant stated that once he reported his back injury to his employer, he was sent to consult the company doctor. That medical practitioner would not provide the applicant with an appropriate certificate, and accordingly the applicant consulted his own doctor, Dr Jeyasingham. It was at that point that the applicant was permanently stood down from employment with Martin Brower. Relevantly, in her affidavit, the applicant's wife, Ganisha Thapa, stated that, at that time, the applicant told her that Martin Brower could not make any further allowances for him, because his back injury was a 'TAC issue' and not related to his WorkCover claim. The applicant was told that he was not permitted to return to work until he was given a full medical clearance to perform full duties.

71 The seventh point, advanced on behalf of the applicant under ground 2, was that the primary judge impermissibly disregarded the report of Dr Rowe. The judge did so on the basis that the report of Dr Rowe did not clearly distinguish between the workplace injury and the transport accident injury.[28]

72 The judge was correct to note that, in assessing the restrictions suffered by the applicant, Dr Rowe did not differentiate between the injury to the applicant's lower back sustained in the course of his employment, and the injury that he had sustained in the transport accident. However, that omission by Dr Rowe was not of particular moment, in view of the conclusion by the judge that the applicant's current spinal impairment was a consequence of the transport accident of May 2017, and not the workplace incident in September 2015. Nevertheless, the conclusions formed by Dr Rowe concerning the nature and extent of the applicant's lower back injury, and the limitations that the applicant suffers as a result of them, were, in the main, similar to those formed by Professor Bittar, whose evidence the judge accepted. Accordingly, the point made by counsel for the applicant concerning Dr Rowe's report does not advance the argument on behalf of the applicant.

73 We turn to consider whether the applicant has demonstrated that the judge's conclusion, that he had not sustained a serious injury, was 'plainly wrong'.

74 It is quite clear, on all the evidence, that the lower back injury, sustained by the applicant in the transport accident, has had a particularly substantial effect both in terms of the applicant's pain and suffering and loss of enjoyment of life, and in terms of his earning capacity.

75 As we have noted, the judge accepted that the applicant was a truthful witness. Based on the applicant's evidence, the judge accepted that the applicant suffered from a constant dull ache in his lower back.[29] Simple movements, such as bending, squatting, getting down onto the floor and raising himself up from the floor, were painful for him. When he was seated, he would need to stand and move every hour or his back would become stiff and the pain more intense, as occurred when the applicant had been cross-examined in the hearing for a period of one hour. The applicant would suffer episodes of more intense pain on a daily basis when he was more active. Ganisha Thapa stated that when the applicant suffered a flare up of his back pain, he would be very physically restricted for about one week. Those flare ups would occur if the applicant attempted to lift heavy objects, or stand or walk for long periods. As a consequence, the applicant was constantly aware of the risk that he might exacerbate his pain and of the need to be careful to restrict himself in order to avoid doing so.

76 The judge accepted that while the applicant was still able to drive, carry out some gardening tasks, cook, walk, jog and do housework, nevertheless his lower back pain, and his fear of triggering exacerbations of it, restricted his capacity to perform those activities. In his affidavit, the applicant stated that he used to enjoy gardening. He still tried to work in the garden, but he was required to carry out tasks such as weeding and mowing very slowly, and to take frequent rest breaks to avoid provoking severe pain and stiffness. When the applicant performed courier driving work, he found that his back became sore, but due to the limited hours in which he performed that work, he was able to take regular breaks when necessary.

77 The applicant also gave evidence, that was accepted by the judge, that he would wake from his sleep every few hours experiencing back stiffness. Ganisha Thapa stated that the applicant found it necessary to move around in bed a lot more than he used to, and that he often got up out of bed at night in order to relieve the stiffness in his back.

78 It is clear that the applicant was a person who preferred to work, and who derived particular satisfaction from doing so. The fact that he has become physically restricted, particularly in his employment, and that he has had to abandon his aspirations to join the Australian Defence Force, were also relevant circumstances in assessing the extent and the effect of the applicant's loss of enjoyment of life.

79 The applicant's lower back injury has had a significant effect on his personal life and his relationship with his wife and young daughter. At one stage, the pain and disability occasioned to the applicant, as a result of the injury, placed considerable stress on his marriage, to the point that the couple considered separating. While the psychological sequelae of the injuries had, to a measurable extent, subsided, nevertheless they were a relevant aspect of the applicant's pain, suffering and loss of enjoyment of life.

80 It would seem from the applicant's wife's affidavit that, before he suffered injury, they were a very active couple, and that they had particularly enjoyed outdoor activities together. On their honeymoon they trekked in Nepal. When their daughter was born, they bought a running pram so they could run with her. A few times each month, they used to climb the 1,000 steps in the Dandenong Ranges. All of those activities have come to a halt as a consequence of the applicant's lower back injury. Further, while the applicant had attempted to care for his young daughter and to spend time with her, he was much less active with his daughter than he otherwise would wish to be. In his affidavit, he stated that he tended to lose patience with his daughter, and become irritable, which, he was concerned, might affect his relationship with her and her perception of him as a father.

81 The judge, and the respondent, placed some weight on the circumstance that the applicant did not currently take medication for his back pain, that he had not been referred to a specialist neurosurgeon or orthopaedic surgeon, and that he only occasionally received physiotherapy.

82 In his affidavit, the applicant explained that he tried to avoid taking medication as much as possible, and that he found that the best way to manage his back pain was by keeping mobile, by engaging in regular walking, and by stretching and getting up and down from his desk when he was working. The applicant also explained that for some time he had continued to receive physiotherapy treatment, but when the TAC stopped providing funds for that treatment, he could only afford to have the treatment sparingly. However, he continued to regularly perform exercises and stretches that were recommended by the physiotherapist in order to alleviate his pain levels.

83 The medical evidence, of Professor Bittar, was to the effect that the applicant's condition was permanent. In his second report he recommended that the applicant should be assessed by a qualified pain specialist and considered for a series of diagnostic blocks in relation to his lumbar spine, and that he should also receive regular physiotherapy and hydrotherapy. The fact, that no recommendation has been made that he undergo surgery, or that he be referred to an orthopaedic surgeon or a neurosurgeon, only reflected the nature of his injury, and not the seriousness of it.

84 Pausing there, it is clear, on the evidence, that the lower back injury, sustained by the applicant in the transport accident in May 2017, had resulted, and would continue to result, in significant pain and disability to the applicant. His pain and disability had impacted significantly on his capacity to perform simple routine physical functions. As Professor Bittar noted in his first report, overall the applicant's quality of life had significantly diminished.

85 Further, the evidence established that the injury would be permanent. There was no suggestion in the medical reports that the applicant would experience any improvement in his physical condition. Professor Bittar considered that the applicant's prognosis was guarded, and that he was likely to continue to experience symptoms and associated disability, at the current levels, into the foreseeable future. Professor Bittar further noted that the applicant's injuries comprised an aggravation of a pre-existing degenerative condition, and that it was difficult to predict the effect of any accelerated degeneration on his social, domestic, recreational and working life.

86 As the authorities have noted, the assessment as to whether an injury is a serious injury involves questions of degree and value judgment. Notwithstanding that different minds may come to competing conclusions on that issue, in our view, in light of the matters that we have discussed, the conclusion is irresistible that the consequences of the applicant's lower back injury, in terms of the pain, suffering and loss of enjoyment of life resulting to the applicant, have been, at the least, very considerable and certainly substantially more than 'significant' or 'marked'.

87 In addition, as a result of the injury, the applicant's capacity for gainful employment has been significantly affected. While, as we have noted, in the period preceding, and shortly following, the transport accident, the applicant was also suffering from a shoulder injury, the judge noted that the applicant's back injury was his most significant problem. Specifically, her Honour found:

He also suffers some pain in his neck and left shoulder from time to time, but back pain is his biggest problem. I accept that any neck pain he suffers is a consequence of the impairment of his spine and ought to be taken into account. However, it is the lower back pain which is the predominant cause of his current issues. Any shoulder pain is not a consequence of the impairment of his spine.[30]

88 As we have discussed, it was the applicant's lower back injury, and not his shoulder injury, that brought his employment with Martin Brower to a conclusion. Professor Bittar, in his first report, considered that the applicant had the capacity to work up to four hours per day, three to four days per week, in a light physical (sedentary) role. He realistically observed that it was uncertain whether the applicant would be able to obtain such a position in the open labour market. In his second report, Professor Bittar concluded that the applicant's injuries had 'substantially reduced' his capacity to obtain and maintain employment in a competitive job market.

89 The impact of the applicant's lower back injury on his earning capacity was quite evident. After the flare up of his injury in December 2017, he remained off work for more than twelve months, before he commenced courier driving and Uber driving work in early 2019. The applicant performed that work on a part-time basis, taking care to select how many jobs he undertook in order to avoid provoking his back pain. Subsequently, he worked, part-time, for Capital Print Solutions. Although, more recently, he had commenced working with Raeco, that employment was on a probationary basis, and aggravated his back pain and stiffness. It is plain that the applicant's lower back injury had significantly impacted on the range of employment which he might undertake, and thus, as was submitted on behalf of the applicant, had impacted his flexibility in the labour market.

90 In considering this aspect of the applicant's case, the judge took into account that the applicant has tertiary educational qualifications, and that he is articulate and intelligent.

91 It may be observed that since graduating, the applicant had been unable to obtain employment in his chosen career as an engineer. Rather, his employment, for some time, involved performing manual work with Martin Brower. Ms Katrine Green, whose vocational assessment report the judge referred to, considered that the applicant would only be capable of undertaking work as a call centre information clerk, a mechanical engineering technician or a computer aided design drafter, 'in conjunction with considering the physical restrictions and work guidelines provided in the Medical Opinions'. Ms Green noted that the role of a call centre information clerk involved prolonged sitting, that the role of a mechanical engineering technician required prolonged sitting and some manual handling, and that the role of a computer aided design drafter involved prolonged sitting, walking and standing. In practical terms, the rider expressed by Ms Green - that the employment must be in conjunction with the applicant's prescribed physical restrictions and work guidelines - constituted a significant qualification to his work capacity. As Professor Bittar observed, the applicant's injury had substantially reduced his capacity to obtain and maintain employment in a competitive market.

92 In essence, then, by reason of the lower back injury that he sustained as a consequence of the transport accident, the applicant suffered and would continue to suffer a significant degree of pain, discomfort and restriction in everyday activities, and in his enjoyment of life. Further, he sustained a considerable permanent impairment to his earning capacity. At the time of the injury, the applicant was 36 years of age. As we have already concluded, considered alone, the pain, suffering and loss of enjoyment component of the applicant's claim would, of itself, compel a conclusion that the applicant had sustained a serious injury. The permanent impairment of the applicant's earning capacity further fortifies that conclusion.

93 In those circumstances, we are driven to the view that the only reasonable conclusion is that the applicant did sustain a serious injury in terms of s 93(4)(d) of the Transport Accident Act, in that the lower back injury sustained by him as a consequence of the transport accident has had consequences to the applicant which, when judged by comparison with other cases in the possible range of impairments or losses, must be characterised as at least 'very considerable' if not more. For those reasons, adopting the formula specified in Mobilio, we consider that the decision of the primary judge to the contrary effect was 'plainly wrong'.

94 It follows that grounds 1 and 2 of the application for leave to appeal, and of the appeal, must succeed.

95 Under ground 3, the applicant contended that the reasons by the judge, for her decision, do not disclose an adequate process of reasoning to demonstrate why the applicant's application was refused. In view of the conclusion that we have reached in respect of grounds 1 and 2, it is only necessary to briefly express our conclusions on the matters raised under this ground.

96 The obligation of a trial judge to give sufficient reasons for decision is a fundamental requirement. In essence, the reasons must disclose the 'path' or 'route' by which the judge reached the ultimate conclusion in the judgment.[31] In Hunter v Transport Accident Commission,[32] Nettle JA, in an application under s 93(4)(d) of the Transport Accident Act, expressed the fundamental requirements necessary for the provision of adequate reasons in the following terms:

When a judge decides an application under s 93(4)(d) of the Act the judge is under a duty to provide reasons for his or her decision. Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should 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. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.[33]

97 In our view, and contrary to the submissions made on behalf of the applicant, the reasons provided by the primary judge were commendably clear and sufficient. Her Honour, stated, in sequential terms, her findings concerning the degree of pain and disability sustained by the applicant,[34] and concerning the effect that the applicant's injury had had on his working capacity.[35] As we have discussed, the judge found that, nevertheless, because the applicant is an intelligent person who is well educated, he had skills that were suited to alternative positions that were available to him as a technician, computer aided design drafter and call centre information clerk. She also considered that there was no reason why the applicant's present employment as a project coordinator with Raeco might not continue.[36] The judge took into account that, while the applicant's pain restricted his daily activities, he was still able to engage in activities such as gardening, housework, driving and caring for his daughter.[37] It was for those reasons that her Honour concluded that although the applicant's lower back pain was significant and distressing to him, she was not satisfied that, in comparison to other cases, his spinal impairment passed the threshold of being very considerable.[38]

98 In that way, while we have reached the view that that conclusion was not reasonably open to the judge, nevertheless the judge made adequate findings of fact, and her reasons succinctly and clearly disclosed the path or route by which she reached the ultimate conclusion that the applicant had not suffered a serious injury.

99 It follows that we would not uphold ground 3 of the application for leave to appeal.

100 For the foregoing reasons, we have concluded that the application for leave to appeal, and the appeal, should be allowed on grounds 1 and 2.

101 It follows that the orders made by the primary judge should be set aside, and that, in their place, it be ordered that the applicant be granted leave to bring a proceeding in respect of the injury he sustained as a consequence of the transport accident on 1 May 2017.

[1] 'Transport Accident Act' or 'the Act'.

[2] Cf s 93(5) of the Act.

[3] Thapa v Martin Brower Australia & TAC [2020] VCC 1868 ('Reasons').

[10] Ibid [29]-[35] (citation omitted).

[20] Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 140 (Crockett and Southwell JJ) ('Humphries v Poljak').

[21] Transport Accident Commission v Zepic [2013] VSCA 232, [11], [138]-[139] (Maxwell P).

[22] Richards v Wylie [2000] VSCA 50; (2000) 1 VR 79, 87-8 [17] (Winneke P), 89 [24] (Buchanan JA), 90 [28] (Chernov JA); [2000] VSCA 50.

[23] [1998] 3 VR 833 ('Mobilio')

[24] Ibid 835 (Winneke P), 841 (Brooking JA), 853-4 (Ormiston JA), 858 (Phillips JA), 860 (Charles JA).

[25] See, eg, Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26, [4] (Tate JA); Housden v Boral Australian Gypsum Ltd [2015] VSCA 162, [90]-[92] (Santamaria JA); Wesfarmers Ltd v Lloyd [2016] VSCA 41, [32] (Osborn JA); Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139, [49] (Kaye, McLeish and Niall JJA); TTB SMS Pty Ltd v Reading [2020] VSCA 203, [30] (Tate and T Forrest JJA).

[26] [2018] HCA 30; (2018) 264 CLR 541, 555-563 [29]-[50] (Gageler J), 591-2 [150]-[151] (Edelman J); [2018] HCA 30.

[31] Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317, [38] (Ashley JA); ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31, [78]-[80] (Kyrou JA).

[32] [2005] VSCA 1.