Court of Appeal (Vic)|2013-09-13|Before: Tate JA, Hansen JA

Transport Accident Commission v Florrimell [2013] VSCA 247 (13 September 2013)

(Unreported, County Court of Victoria, Judge Brookes, 25 June 2013)

2 This is an application for leave to appeal brought by the Transport Accident Commission ('the TAC') against the orders made by his Honour Judge Brookes of the County Court on 25 June 2013 granting leave to the respondent, Douglas Florrimell ('Florrimell'), to commence proceedings at common law for damages arising out of a motor vehicle accident which occurred on 27 July 2004.[1] The application for leave to appeal was heard at the same time as the appeal.[2]

3 For the reasons which follow, I would grant the application for leave to appeal, allow the appeal, and remit the matter to the County Court, constituted by a different judge, for a fresh hearing and determination of Florrimell's application for leave to commence proceedings for common law damages pursuant to s 93 of the Transport Accident Act 1986 ('the Act').

4 On 27 July 2004, Florrimell was involved in a two-vehicle collision when the driver of the other car failed to give way ('the accident'). He lodged a compensation claim with TAC for injuries sustained in the accident, citing back, neck, and shoulder pain.

5 Before the accident, Florrimell had lumbar spine problems. He had had another car accident at 24 or 25 years of age. He had undergone a fusion at the L4-5/L5-S1 level and had pre-existing problems at the L3-4 level. He had also made complaints about symptoms affecting his left hip, and had suffered leg pain from

time to time that appeared to result from nerve-root irritation. He had undergone surgery on his left shoulder. He was on a disability pension because of his inability to work as a result of these conditions, and he was significantly restricted in most of his physical activities by the symptoms from these pre-existing injuries.

6 As his Honour recognised, before the accident Florrimell also had pre-existing arthritis in the acromioclavicular joint ('the AC joint') of the right shoulder and this had required symptomatic treatment from time to time.[3] Florrimell had complained in September 2003 to his General Practitioner, Dr Stobart, that he experienced pain in his right shoulder when he lay on it. In November 2003 he complained of increased pain and he was sent for an X-ray and an ultrasound. Dr Stobart injected the right AC joint with anaesthetic and Depo-Medrol. The pain was a lot less after the injection. A second injection of the right AC joint was given in February 2004 and it seemed to improve the pain in the shoulder.

7 Florrimell had also suffered a compression fracture at T11 that led to the need for an MRI. There was evidence of previous mobility difficulties, including sleeping difficulties and emotional problems. He also suffered from pre-existing headaches for which he sought treatment from Dr Stobart. He 'was taking significant amounts of medication'[4] to manage his pain. He was in a significant amount of constant pain because of his back before the accident. He was restricted in what he could do about the house because of his lumbar pain.

8 After the accident a CT scan was taken of Florrimell's cervical spine on 30 August 2004 that showed some instability at the C3-4 level with osteophytes present at the site. It was not in contest that these changes pre-dated the accident. An MRI scan was taken of the cervical spine on 10 November 2004 and this was reported as showing 'minor dehydration of the mid-cervical disc area, normal signals, no herniation and no nerve-root compression'.[5]

9 Florrimell had nerve-blocking treatment and radiofrequency denervation for damage to his cervical spine,[6] at the cost of the TAC. On 15 June 2009 he had surgery on his right shoulder, performed by Mr Russell Miller, also paid for by the TAC.[7]

10 In 2010 he sought leave in the County Court to bring a claim for damages at common law due to having sustained 'serious injury' in the accident. He relied on paragraph (a) of the definition of 'serious injury' in s 93(17) of the Act which reads:

serious long-term impairment or loss of a body function.

11 Florrimell alleged that he suffered injuries to his cervical spine and right shoulder which impaired bodily functions of the cervical spine and right shoulder respectively. Alternatively, it was alleged that the injuries to the cervical spine and the right shoulder combined to impair the function of the right shoulder. The injury to the cervical spine was alleged to be a soft tissue injury plus aggravated degenerative changes. The injury to the right shoulder was alleged to be damage to the rotator cuff, bursitis, impingement syndrome and aggravation of pre-existing arthritis.

12 Judge Brookes treated both injuries as 'in effect aggravations of pre-existing pathological conditions'[8] and set out the test for determining whether a plaintiff has a serious injury in those circumstances, including the need to: identify each injury; delineate the impairment consequences of each injury; determine whether the aggravation injury qualifies as a serious injury; compare the plaintiff's condition before the accident and his or her condition after the accident and assess the additional impairment, if any; and ensure that the pre-existing condition and the injury arising from the accident not be accumulated. As his Honour said:

Each injury has to satisfy the requirements of a 'serious injury' in its own right rather than in combination with the pre-existing injuries.[9]

13 Judge Brookes found that the effects of the cervical spine condition did not meet the statutory definition of 'serious injury'.[10] The evidence showed that the nerve blocking and radiofrequency denervation had largely addressed the resulting neck pain and that Florrimell's headaches, while more frequent after the accident, did not meet the test of 'being very considerable and more than significant or marked'.[11]

14 However, Judge Brookes found that Florrimell had 'just discharged the onus of proof with respect to the consequences from the shoulder injury satisfying the "very considerable" test.'[12] Accordingly, his Honour granted leave for Florrimell to proceed with a common law damages claim for injury sustained to the right shoulder.

15 His Honour confirmed that it was common ground that Florrimell did not inform his general practitioner of right shoulder pain until six weeks after the collision, 'until at least 10 September 2004'.[13] While the TAC submitted that no causal connection could be established, his Honour considered the reports of six doctors who either examined or treated the shoulder and found that the pain was causally connected with the accident and the surgery of 2009, and that Florrimell experienced ongoing physical difficulties, including 'an adhesive capsulitis' as a direct consequence of the accident.[14]

16 By summons dated 9 July 2013, the TAC now seeks leave to appeal his Honour's judgment and orders. It advances eight grounds:

The learned trial Judge's finding that [Florrimell] suffered a right shoulder injury in the accident was against the evidence and the weight of the evidence.
The learned trial Judge's finding that the right shoulder injury was causally related to the accident and the operation performed by Mr. Russell Miller in 2009 was against the evidence and the weight of the evidence for the judge.
The learned trial Judge in dealing with the issue of causation of [Florrimell's] right shoulder injury failed to place any or any sufficient weight upon:

(a) [Florrimell's] pre-accident right shoulder symptoms, disabilities and medical treatment;

(b) the fact of [Florrimell] being asymptomatic in respect of the right shoulder during the six weeks succeeding the date of the collision or any significant symptoms until 22 October 2004 and the fact that he had no significant symptoms in 2005.

The learned trial Judge failed to give any or any sufficient reasons for finding that [Florrimell] suffered a right shoulder injury in the accident and that such injury was causally related to the much later symptoms and disabilities and the surgery.
The learned trial Judge failed to give any or any sufficient reason for rejecting the opinion of Mr Paul Kierce [an orthopaedic surgeon] in relation to the issue of causation when such doctor was -

(a) the only specialist who was given a history of [Florrimell's] previous right shoulder trouble;

(b) in fact provided with all relevant radiological evidence and when the radiological evidence insofar as the issue of causation was concerned was misleading in relation to the existence of a rotator cuff tear.

Insofar as the learned trial Judge accepted the opinion of Dr. Rob Stobart a general practitioner in relation to the issue of causation wrongly ignoring the weight of specialist orthopaedic opinion to the contrary and the existence and weight of objective evidence to the contrary.
Wrongly accepting the opinion of Mr Brendan Dooley [an orthopaedic surgeon] in relation to the issue of causation when such doctor -

(a) was led into error in believing that [Florrimell] -

(i) had no previous right shoulder symptoms or disabilities;

(ii) experienced right shoulder pain immediately after the accident and thereafter;

(b) had wrongly concluded that [Florrimell] had suffered a torn rotator cuff in the right shoulder as a result of the accident when the surgery later performed by Mr Russell Miller demonstrated that such damage had not been sustained;

(c) was unable to proffer an opinion based on correct facts because of a subsequent serious illness.

Insofar as the learned trial Judge accepted the opinion of Mr. Russell Miller in relation to the issue of causation wrongly ignoring that such doctor was led to mistakenly believe that [Florrimell] -

(a) had no previous right shoulder symptoms;

(b) experienced right shoulder pain immediately after the accident and thereafter.

17 The focus of the oral submissions made by Mr Gorton QC, counsel for the TAC, lay in the challenge to the adequacy of the Judge's reasons with respect to the findings he made on causation and to the preference he expressed for relying upon the opinions of medical practitioners who had been given an inaccurate medical history by Florrimell over those medical practitioners who had an accurate understanding of Florrimell's medical history; that is, grounds 4 and 5 of the grounds of appeal. The core of the Judge's conclusions on these issues was as follows:

I prefer the combined evidence of Mr Miller and Mr Dooley and that of the two treating general practitioners over that of Mr Kierce and Mr Flaim as to the identity of the injury and its permanent effects. I accept that [Florrimell] has ongoing physical restrictions due in part to an adhesive capsulitis which is a direct consequence of the surgery and the accident.[15]

18 Specifically on causation, his Honour stated that:

Doing the best I can, I consider [Florrimell] has established on the balance of probabilities that he suffered a right shoulder injury in the accident, the pathology of which is most succinctly set out by Mr Dooley in his second report above.[16]

19 The TAC first challenged the judge's reliance upon Mr Dooley's evidence. Mr Dooley was engaged by the TAC to examine Florrimell. Mr Dooley clinically examined Florrimell on 16 March 2005 and in his first report, dated 17 March 2005, he said:

In his right shoulder, he had a free range of movement in all direction, with no evidence of muscle spasm or overreaction. The right shoulder joint was stable. Tests for impingement were negative.

...

It was extremely difficult to assess this man, as he was so vague in his history. He could not remember any dates. He may have sustained minor soft tissue injury to the cervico-thoracic spine, with aggravating in particular of previous spondylitic changes at the lower thoracic level and midthoracic level, for which he has undergone nerve blocks and radio frequency deneravation, allegedly without great benefit.

He has no signs of injury to his right shoulder of any moment. Similarly, there does not appear to have been any significant injury to his lumbo-sacral spine.

20 In his second report, dated 23 December 2008, he made it clear in his diagnosis that: (1) he understood that Florrimell experienced right shoulder pain immediately after the accident; and (2) he relied on an MRI report of Florrimell's right shoulder (dated 26 August 2008) which indicated a tear. Both matters were erroneous.

CLINICAL HISTORY

...

Over the past year he [Florrimell] has developed increasing problems with his right shoulder, with pain and stiffness. He has consulted an Orthopaedic Surgeon, Mr Russell Miller, who arranged for Magnetic Resonance Imagings to be done of his right shoulder. X-rays of his right shoulder have shown arthritic changes in the acromio-clavicular joint, also a right acromial bone spur. Ultrasound of his right shoulder on 7 July 2008, showed subdeltoid-subacromial bursitis, biceps tendon tenosynovitis; the Magnetic Resonance Imaging of his right shoulder showed a moderate sized full thickness tear of the infraspinatus tendon. (emphasis added)

...

DIAGNOSIS AND CLINICAL IMPRESSIONS

This man is still difficult to assess and certainly vague with poor memory; he cannot remember any dates. I believe that his right shoulder condition now is accident related, in that immediately after the accident of 27 July 2004, he experienced onset of neck pain and right shoulder pain. He has physical signs of impingement relating to the torn rotator cuff in his right shoulder and on Magnetic Resonance Imaging he has a complete tear, mainly in the infraspinatus tendon but almost certainly extending into the supraspinatus tendon at its posterior margin. (emphasis added)

Although when I last examined him, his right shoulder joint was relatively normal; I believe that the full thickness rotator cuff tear, noted on the recent MRI, does relate to the MVA of 2004. He has complained of a painful right shoulder from the time of the accident; the tear may initially have been relatively small, causing minimal pain and allowing a free range of motion, but over the past twelve months his right shoulder condition has become progressively worse.

23 The judge preferred the evidence of Mr Dooley despite it having been common ground that quite some time elapsed between the accident and any complaint by Florrimell of right shoulder pain.

24 Furthermore, the evidence relied on by Mr Dooley of the rotator cuff tear, as indicated in the MRI report, was shown to be mistaken by the report of the surgeon, Mr Miller, dated 15 June 2009, after he had performed surgery on Florrimell. This report post-dated the MRI relied upon by Mr Dooley and post-dated Mr Dooley's report. That report indicated that while there was some thinning, the rotator cuff was normal and 'the long term prognosis should be good'. Mr Miller's report stated:

OPERATION: RIGHT SHOULDER ARTHROSCOPIC

SUBACROMIAL DECOMPRESSION

EXCISION SUBACROMIAL BURSA

The patient was placed in a lateral position, and was prepared and draped in a routine manner. Standard posterior and lateral portals were used. Glenohumeral arthroscopy revealed partial thinning of the supraspinatous tendon. The remaining cuff was normal. The articular surfaces were normal. The subacromial space was entered. It was a tight subacromial space with a large overhanging acromial beak. A routine subacromial decompression was performed, including division of the coracoacromial ligament. There were impinging osteophytes on the undersurface of the clavicle. These were excised with the power burr. The cuff was inspected. There was some scuffing of the cuff but no significant tearing. The portals were closed with 3-0 Monocryl. (emphasis added)

25 The TAC submitted that it was not open for his Honour to rely on the accuracy of Mr Dooley's opinion when two fundamental planks of that opinion were wrong.

26 Furthermore, the TAC challenged the basis on which his Honour preferred the evidence of Mr Dooley over that of Mr Kierce. The judge said:

Because of the limited reference to the available radiological evidence, and because the clinical course of the condition was more elaborately detailed in Mr Dooley's reports, I find that I prefer Mr Dooley's opinions over those of Mr Kierce.[17]

27 Mr Kierce saw Florrimell twice, the first time on 10 September 2009 and the second on 11 September 2012, at the request of the TAC, both occasions post-dating the surgery and the observations made in relation to it. He carried out the clinical assessment in response to a letter from TAC's solicitors which set out extensively Florrimell's medical history, including the problems he suffered from before and after the accident. The letter also enclosed:

(1) x ray and ultrasound report right shoulder 24 November 2003;

(2) ultrasound report right shoulder 27 October 2004;

(3) ultrasound report right shoulder 30 January 2008;

(4) x-ray and ultrasound report right shoulder 7 July 2008;

(6) Operation report prepared by Mr R Miller dated 15 June 2009;

28 The seventh item, the report of Mr Thomas was prepared at the request of Florrimell's solicitors, and did not address the issue of causation with respect to the right shoulder pathology.[18] Mr Clayton Thomas is a consultant in rehabilitation and pain medicine.

29 Mr Kierce identified each of these seven documents in his report and stated that he took them into account in his deliberations. He was not called as a witness and the statement that he took into account all of the seven items (including the radiology) was never challenged.

30 In his report dated 11 September 2012, Mr Kierce went on to say that he realised 'that this man's recollection of events cannot be relied upon', adding:

Certainly when I asked him about his previous history on my first consultation, he did admit to his back injury in a car accident in which he then needed a lumbar spinal fusion around 25 years ago. He also did admit that he had had operations on his left shoulder and right elbow which were unrelated to any motor vehicle accident, but he specifically said that he never had trouble with his right shoulder before the motor vehicle of 27th July 2004. (emphasis added)

31 Having been made aware that Florrimell had a pre-existing right shoulder condition, he gave the following diagnosis:

It is my considered opinion, now that I have extra information regarding this man's history, that in reality he has not suffered any significant injury in the accident of 27th July 2004. If he did suffer any aggravation of his dorsal and lumbar spondylosis, that has now resolved. In my opinion he did not sustain a crush fracture of any dorsal vertebra.

There is a strong history of previous right shoulder trouble preceding the motor vehicle accident. Any further injury to his right shoulder which he has sustained has now resolved also in my opinion.

He is obviously an unreliable historian.

32 In particular, he concluded that the right shoulder pathology could not be attributed to the accident:

In my opinion this man did not suffer any significant injury in the accident and in particular, if he did sustain any injury to his right shoulder, this was not a significant injury. I would refer you to the operation note of the operation carried out by Mr. Miller on 15th June 2009 which after all was five years after the accident.

All he found was 'partial thinning of the supraspinatous tendon. The remaining cuff was normal. The articular surfaces were normal.'

He also noted 'impinging osteophytes on the undersurface of the clavicle. These were excised with a power burr.'

Given his preceding history of right shoulder problems, it cannot be said that he sustained a significant injury to his right shoulder in this accident.

33 The TAC submitted that it was not open for his Honour to prefer the evidence of Mr Dooley to that of Mr Kierce in circumstances in which:

(1) there was no challenge to the statement of Mr Kierce that his assessment had been informed by the radiology he had identified in his report;

(2) Mr Kierce was apprised of Florrimell's medical history, including Florrimell's pre-accident right shoulder symptoms and disabilities whereas Mr Dooley was not; and

(3) Mr Kierce had the benefit of Mr Miller's post-surgery report which revealed that the MRI was erroneous whereas Mr Dooley did not.

34 Alternatively, it was submitted, if it was open for the judge to prefer Mr Dooley's conclusions to those of Mr Kierce, the judge was under an obligation to adequately set out his reasons for doing so which, it submitted, he failed to do.

35 Mr Gorton QC accepted, quite properly in my view, that if this Court concluded that the reasons given by his Honour were inadequate it would be necessary for the matter to be remitted to the County Court for further hearing and determination. He accepted that there was some evidence from Dr Stobart that there was a soft tissue injury in the right shoulder caused by the accident. That view also gained some support from the report of Mr Miller when he further assessed Florrimell on 22 June 2010, in which he said:

Right Shoulder

This man suffered an injury to his right shoulder. He developed an impingement syndrome and aggravation of what was probably pre-existing arthritic disease in the right acromio-clavicular joint. When last seen he had made a satisfactory progress to surgery and the prognosis for the shoulder should be good although I do anticipate some ongoing symptoms.

...

Relationship to Accident

On the information available to me the motor vehicle accident outlines above precipitated symptoms in relation to the cervical spine and right shoulder.[19]

36 The relevant evidence from Dr Stobart, who as Florrimell's General Practitioner was aware of his pre-existing right shoulder condition, was to the effect that before the accident when he injected Florrimell in his right AC joint he had eliminated all the right shoulder pain, but, after the accident, he had administered an injection into the deltoid bursa but this did not remove all pain. This suggested that the only pre-existing problem in the right shoulder was the AC joint and the problem with the tendons in the right shoulder occurred later. When asked in cross-examination if the shoulder condition could have progressed to the point observed in the operation report unaffected by the car accident, Dr Stobart said:

There are - the confusion is that I got rid of all his pain by treating his ac joint only. And at some subsequent time he - I reduced most of his pain by injecting [but] a second problem, that is, the bursitis, which was a new issue. And when that occurred we can only contemplate.

37 The other General Practitioner, on whom the judge relied, expressed an equivocal opinion on causation, saying:

It is possible that the right shoulder pain and limitation of movement was worsened by each of the two motor vehicle accidents that he sustained. However, the right acromioclavicular osteoarthritis predated the motor vehicle accident from the 24th July, 2004.

38 Accordingly, Mr Gorton QC submitted, this Court is placed in a position whereby there was some evidence that the accident may have been the cause of the aggravation of Florrimell's shoulder pathology but there was no adequately supported finding of causation in the reasons below nor any precision, by way of a finding of fact, as to the nature of the injury suffered as a result of the accident or the pain and suffering consequences, if any, flowing from the injury. Moreover, there were conflicts amongst the medical opinions. The matter would need to be remitted to the County Court for a proper identification of the injury suffered as a result of the accident and necessary findings of fact made, especially on causation. It was submitted that there were inadequate findings of fact to allow this Court to make the relevant decision in substitution for the proper consideration of the trial court.

39 Florrimell responded to the submissions of the TAC by arguing that there was adequate evidence that the accident made a 'material contribution' to the injury.[20] He submitted that his Honour was correct to rely principally on the evidence of Dr Stobart, which I have set out above, to the effect that a new condition was discovered after the accident, namely, a bursitis or inflammatory condition in the right shoulder. As mentioned above, Dr Stobart saw Florrimell before and after the accident and had treated him for the pain in the AC joint of his right shoulder. He knew of his pre-existing condition and was in a position to identify additional pathology. This understanding was supported by Mr Dooley and the MRI image showing subacromial bursitis in the right shoulder joint. The difference in the ultrasound images taken before and after the accident also demonstrated, it was submitted, that bursitis was not present in the right shoulder before the accident and that as such, Dr Stobart's opinion was justified and his Honour was similarly justified in relying upon it. Thus, while the report of the pre-accident ultrasound of 24 November 2003 stated that there ' is no rotator cuff or tendinopathy change. Sub-deltoid bursa is not distended', the post-accident ultrasound of 27 October 2004 stated that there was a 'moderate quantity of hypoechoic fluid ... within the subdeltoid - subacromial bursa, consistent with bursitis'.

40 Florrimell also submitted that the judge was correct in not regarding the gap of time between the accident and the onset of an inflammatory condition as relevant because inflammatory conditions can take time to build up, as was acknowledged by Dr Stobart.

41 Furthermore, Florrimell submitted, the evidence of Mr Kierce was not unreasonably rejected because:

(1) he made no attempt to analyse the opinion of Mr Dooley;

(2) he failed to comment on the new findings in the post-accident ultrasound and to this extent his Honour was correct in his criticism of the limited reference made by Mr Kierce to the radiological material;

(3) the instructions to Mr Kierce failed to mention the efficacious aspect of the injection administered by Dr Stobart in February 2004 and the ongoing shoulder symptoms recorded by Dr Stobart post-accident and the injections he administered for tendon damage;

(4) there were shortcomings in the history taken by Mr Kierce, which his Honour remarked upon,[21] to the effect that the only medication he thought Florrimell was taking was an anti-depressant and that he reported that Florrimell's wife helped him shower and dress when the evidence was the other way.

42 The difficulty faced by Florrimell is that, while it may be that a new condition of bursitis has developed after the accident, his Honour relied upon the report of Mr Dooley who in turn based his assessment upon the MRI image of a tear of the rotator cuff which was later revealed to be mistaken. Moreover, even if it be the case that inflammatory conditions may take time to build up, Mr Dooley's assessment on causation was premised, erroneously, upon the assumption that the right shoulder had become increasing painful immediately after the accident. Furthermore, there was no need for Mr Kierce to analyse the opinion of Mr Dooley and Mr Dooley's reliance on the MRI given the observations Mr Kierce made about Mr Miller's post-surgery report; it remains the case that Mr Kierce was not called as a witness and he was not challenged as to the extent to which he took account of the radiology; he expressed the opinion that any further injury Florrimell had sustained to his right shoulder had resolved; and the fact that Mr Kierce also recorded mistaken information about Florrimell's circumstances in respect of his wife is of no consequence when the information was immaterial to the pathology (and was in any event favourable to Florrimell).

43 Florrimell also submitted that the fact that the TAC paid for the injection into the deltoid bursa in October 2004 and for the arthroscopic surgery performed by Mr Miller amounted to significant admissions by the TAC on the subject of causation. Reliance was placed on Ansett v Taylor.[22]

44 However, Ansett v Taylor was concerned only with the question whether the prior acceptance by the WorkCover Authority, under s 104B(2) of the Accident Compensation Act 1985, of a worker's claim under s 98C for lump sum compensation for non-economic loss in respect of an injury resulting in permanent impairment[23] established conclusively that the worker had sustained compensable injury. The Court held that it did not so conclusively establish that a compensable injury had occurred, but such a prior acceptance should be regarded as having evidentiary value as amounting to a very significant admission by the Authority that the compensable injury was sustained.

45 In my view, those circumstances are far removed from the proposition that a payment by TAC for various procedures is to treated as evidence of an admission on the subject of causation. The issue of causation may well be a complex one and, as here, may be one on which medical opinions conflict. It may also be an issue in relation to which, as here, relevant information is not available until surgery or other forms of medical procedure are performed. For the TAC to accept to pay for the cost of a procedure cannot have the effect of precluding them from later contesting the issue of causation, perhaps on the basis of the information obtained from the very procedure that it paid for. Nor, for similar reasons, ought such payment be treated as having the evidentiary value of an admission because the question of causation may well be a live one until all the procedures have been completed. It would be contrary to the efficient administration of the compensation scheme as a whole if the TAC resisted paying for medical procedures that might reduce the pain and suffering of someone injured in a transport accident on the basis that if it did so it would be regarded, at law, as having made an admission.

46 Florrimell further submitted that there is a value judgment inherent in the context of findings of serious injury and, that being so, the setting out of reasons is not wholly susceptible to precision.

47 It is true that 'the element of value judgment involved in the determination of [a 'serious injury'] application does not always lend itself to the degree of precision in expression that can be achieved in other matters'.[24] However, the intrusion of a value judgement in this context is most typically to be found in evaluating whether the pain and suffering consequences of an injury caused by an accident covered by the Act are more than 'significant' or 'marked', but are rather 'very considerable'. As Crockett and Southwell JJ famously said in Humphries v Poljak, in the context of the Act:

To be 'serious' the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary advantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as 'very considerable' and certainly more than 'significant' or 'marked'?[25]

48 Such evaluation is well accepted to involve matters of fact and degree and impression.[26] For example, in Stijepic v One Force Group Aust Pty Ltd,[27] Ashley JA and Beach AJA said that the question on the appeal, was whether:

the appellant has established that the pain and suffering consequences of his injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than significant or marked - and as being at least very considerable. As has often been remarked, this involves a value judgment, in which matters of fact and degree, and of impression, are operative.[28]

49 But a finding as to causation is not a matter into which value judgments should intrude, nor is a determination to reject relevant and sound evidence on causation in favour of evidence which can be readily impugned something to which value judgments are likely to make a significant contribution. In those circumstances the obligation remains on the judge to provide cogent reasons to explain a finding of causation and, where relevant, why one medical opinion has been preferred over another on that issue.

50 Florrimell also submitted that an appeal court, in this context, should not examine a trial judge's reasons too closely as if searching for error. A trial judge's path of reasoning might be apparent despite the absence of specific findings.[29] As Ashley JA said in Dressing v Porter and Transport Accident Commission:

The issue of sufficiency of reasons has been very often addressed in recent years. The principles are clear enough: It is necessary that a judge's reasons sufficiently explain the path of reasoning which led to the outcome in the proceeding. Failure to provide such reasons constitutes an error of law. Perfection is not required. An appeal court should not examine a trial judge's reasons too critically, seeking, as it were, to discern a want of explanation. Further, what will be sufficient in a particular case will be influenced by the ambit of dispute at trial. Nevertheless, an examination of the reasons should enable the losing party to know why he or she lost.[30]

51 No doubt it is true that an appeal court should read impugned reasons 'fairly,' with 'particular parts' viewed against the background of the entire judgment.[31] However, where a judge, as here, prefers the opinion of one medical practitioner to another, especially where the result is that the medical practitioner who is preferred based his or her opinion on mistaken information concerning pathology and medical history, the obligation to expose the path of reasoning to demonstrate why that opinion has been preferred is a stringent one. As Nettle JA said in Hunter v TAC, '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'.[32] So too, the judge should bear in mind that reasons are not intelligible if they leave the reader to wonder how it could be that a medical opinion based on up-to-date and accurate information could be rejected in favour of an opinion that does not have such a firm factual foundation.

52 It follows that I consider that grounds of appeal 4 and 5 are made out.

53 I consider that there ought be a grant of leave to appeal in favour of the TAC. The deficiencies displayed in the path of reasoning adopted by the judge amount to a specific error of law. That being so, the test in Mobilio v Balliotis[33] is satisfied and the appeal should be allowed. As I consider that the matter ought be remitted, it is unnecessary to consider the remaining grounds of appeal. Moreover, as the TAC has succeeded in demonstrating the inadequacy of the judge's reasons on causation, and on the rejection of the opinion of Mr Kierce, it would be prudent for this Court not to make any further observations as to where ultimately the weight of the evidence lies.

54 Florrimell submitted that if the matter was to be remitted, the remitter ought be confined to the question of causation alone, specifically whether his current symptoms in his right shoulder are attributable to the accident. This approach was opposed by the TAC on the ground that the inadequacy of the judge's reasons extended to a failure to isolate the precise injury in relation to which an assessment was to be made of its pain and suffering consequences. The absence of a cogent and sound identification of the relevant injury undermined the judge's assessment of all relevant issues.

56 I consider that it is necessary for the matter as a whole to be remitted to be heard and determined by a different judge of the County Court.

[1] Florrimell v Transport Accident Commission [2013] VCC 785 (25 June 2013) ('Reasons').

[2] The appeal was heard by two Judges of Appeal in accordance with a determination of Maxwell P pursuant to s 11 (1A) of the Supreme Court Act 1986, dated 19 August 2013.

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

I think it is reasonable to indicate that the accident did lead to an aggravation of his neck problem with associated headaches and pain in the upper thoracic spine. I accept that there was an aggravation of his lower back pain at the same time. I would accept that the thoracic spine fracture at T11 may have been caused by this accident.

The residual problems relate however to the upper back his neck with some neck stiffness and his right shoulder with pain at end range, and with headaches.

[19] Mr Miller proceeded in ignorance of the shoulder complaint prior to the accident and the injections in the right AC joint. He reported that Florrimell, when examined, 'stated there were no prior shoulder problems'. However, after examination Mr Miller did appear to accept that there was a pre-existing arthritic condition in the right AC joint.

[20] See Amaca Pty Ltd v Booth [2011] HCA 53; (2011) 246 CLR 36.

[23] In circumstances in which the accepted s 98C injury had allegedly been sustained in whole or in part after 20 October 1999.

[24] Hunter v TAC and Avalanche [2005] VSCA 1; (2005) 43 MVR 130, 137 [22] ('Hunter v TAC').

[26] Sutton v Laminex [2011] VSCA 52; (2011) 31 VR 100, 119 [99].

[29] Hesse Blind Roller Co Pty Ltd v Hamitoski [2006] VSCA 121, [22].

[31] Shock Records v Jones [2006] VSCA 180 [85] (Bell AJA).

[32] [2005] VSCA 1; (2005) 43 MVR 130, 137 [21]. See also Boland Nominees v Hobbs [2013] VSCA 66, [57]-[64].

[33] (1998) 3 VR 833, 835, 841, 854, 858, 860; Richards v Wylie [2000] VSCA 50; (2000) 1 VR 79, 86 [15].

Compensation Act 1985

Transport Accident Commission v Florrimell [2013] VSCA 247

At a glance

Court

Decision date

Before

Source

Judgment (113 paragraphs)

Transport Accident Commission v Florrimell [2013] VSCA 247 (13 September 2013)

Parties

Legislation Cited (3)

Cases Cited (5)