Transport Accident Commission v Garcia [2015] VSCA 225

1 On 29 September 2012, Emmanuel Garcia, the respondent, was involved in a transport accident, when a motor vehicle in which he was travelling collided with another motor vehicle that had attempted to execute a right-hand turn across his path. As a result of the accident, the respondent suffered a fracture of his left humerus that required treatment by open reduction and internal fixation with a plate and multiple screws. The respondent has now been left with a 15 centimetre long scar down the front of his left upper arm.

2 By an originating motion filed in the County Court on 4 September 2014, the respondent sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 ('the Act'), to bring proceedings at common law claiming damages for the injuries he sustained as a result of the accident. The application was heard in the County Court by Judge Misso on 19 February 2015. At the hearing of the application, the respondent relied upon paragraph (b) of the definition of 'serious injury' in s 93(17) of the Act, namely, 'permanent serious disfigurement'. The disfigurement the subject of the application was the scar on the respondent's left upper arm.

3 On the hearing of the application, the respondent relied upon affidavits he swore on 1 May 2014 and 30 January 2015. A number of medical reports and photographs of the respondent's scarring were also tendered. The only witness to give viva voce evidence was the respondent. He gave brief evidence-in-chief, adopting his affidavits and identifying photographs of his scarring. During the course of his evidence, the judge inspected the respondent's scarring. The Transport Accident Commission ('the Commission') chose not to cross-examine the respondent.

4 On the following day, on 20 February 2015, the judge granted the respondent's application and gave him leave to bring a proceeding at common law to recover damages for the injuries he suffered in the accident.[1]

5 The Commission now seeks leave to appeal and, if leave is granted, appeals against the order granting the respondent's application. The Commission's grounds of appeal are as follows:

1. The primary judge erred in law by failing to apply the criteria in section 93(17)(b) of the Transport Accident Act 1986, and in particular by failing to apply those criteria as explained in Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129 and Ingram v Ingram [1996] VicRp 77; [1996] 2 VR 435 in that the primary judge did not evaluate the consequences of the respondent's scarring.
2. The primary judge's finding at [29] that the respondent's scarring constituted disfigurement which was 'serious' [for the purposes of s 93(17) of the Transport Accident Act] was, on the weight of the evidence, plainly wrong.

6 In his first affidavit, the respondent described his scarring in the following terms:

I have been left with an obvious keloid scar over the anterior aspect of my left upper arm at approximately the level of the mid shaft of the humerus. The scar is keloid and very prominent. It is very sensitive to touch. It itches from time to time. I need to be careful not to bump the scar and I try to wear clothing to cover the scar from exposure to sunlight. I have been told that the scar measures 15 centimetres in length. It is very red.

I am embarrassed by the scarring. I consider it very obvious and people often ask or comment about it.

The scar continues to be tender and sensitive. It is thick and discoloured. At times, it can be itchy. It is also sensitive to heat. Recently, when I visited my local leisure centre, I attended the steam room but the heat aggravated my scar and caused it to be painful and uncomfortable for some time afterwards.

I remain self-conscious and embarrassed about the appearance of my scar. I attempt to conceal the scarring on my left upper arm from the public gaze.

8 The respondent was examined by a plastic surgeon, Mr Murray Stapleton, on 17 December 2013 and 29 January 2015. After his first examination, Mr Stapleton reported as follows:

Confining my comments to the scarring, and I do so in my capacity as a plastic surgeon, the long scar is red and thickened. It is tender in spots and itches from time to time. He [the respondent] is careful not to bump the scar which remains quite tender and he dresses to cover the scar from exposure to sunlight and also to prevent the passerby (sic) asking questions as to how the scar was there in the first place.

...

The scar that he has is a reddened, thickened scar positioned over the front of his left arm. The scar is 15 centimetres in length.

...

The prognosis is that he has reached maximum medical improvement.

...

His capacity for employment, domestic, social and leisure activities, ie his activities of daily living, are all affected because of the scarring for reasons stated.

9 Following his second examination, Mr Stapleton expressed views consistent with those expressed following the first examination, saying again that the prognosis was that the respondent's condition had now reached maximum medical improvement.

10 On 14 November 2013, the respondent was seen by a psychiatrist, Dr Paul Kornan. Dr Kornan diagnosed an adjustment disorder with mixed anxiety and depressed mood. He said that initially this condition was quite marked, but that it had improved to the point where it was now at the 'upper level of chronic mild severity'. Dr Kornan described this disorder as being caused by 'pains, discomfort and fears' caused by the accident. Dr Kornan did not specify what, if any, part of the disorder might be attributable only to the scarring.

11 At the hearing of the application before the judge, counsel for the Commission conceded that no challenge was made to any of the respondent's evidence.

12 The judge commenced his reasons with a description of the evidence given and tendered on the application.[2] The judge then referred to the parties' submissions.[3]

13 Next, the judge referred to this Court's decision in Richards v Wylie.[4] With reference to Richards, the judge said:

The emotional reaction experienced by the plaintiff is constituted by his sense of his self-consciousness and embarrassment; suffering observations by people who look at his scar and comment on it, and wearing clothing to cover it up. Each of these aspects of his emotional reaction appear to me to be expected consequences of the disfigurement caused by the scarring. I consider that I should take them into account.[5]

Cases involving disfigurement are relatively rare. In my seven years sitting on the County Court bench I have seen very few, perhaps only two or three. Therefore, the capacity to make a value judgment is difficult because of the lack of comparison with like cases. In Ingram,[6] Callaway JA appears to have considered that very difficulty. His Honour observed that paragraph (b) should not be read in isolation, but that it was the intendment of the statute that disfigurement be compared with other injuries that are said to be a serious [injury] under paragraphs (a), (c) and (d).

The difficulty I face in applying his Honour's observation, is that it is difficult to equate disfigurement with, for example an operated back resulting in an impairment which is serious. Most often, or so I think, disfigurement will not cause pain and disablement. Scarring will heal, and may cause some physical problems, but often not many. So making a comparison between scarring and the consequences of a physical injury is very difficult. For my own part, I find it difficult to comprehend how it is possible to compare scarring with other impairments or losses except with other disfigurements.

In the end, what I make of this application is based upon my value judgment. I have had the opportunity to observe the scarring at close range. I have read the plaintiff's affidavits and the medical reports, and I have had regard to the authorities to which both [counsel] took me. ...

[Counsel for the Commission] was very critical of the plaintiff's affidavits. He said there were serious shortcomings in the plaintiff's reference to 'the consequences' of the disfigurement. It occurred to me that [counsel] was conflating the basis of a claim under paragraph (a) and paragraph (b). It occurs to me that paragraph (b) is limited to disfigurement and not the sort of consequences which are most often the subject of an examination of a claim brought under paragraph (a), where the enquiry is whether the pain and suffering consequences are serious. I do not accept that his criticisms are valid, given the confined nature of the enquiry under paragraph (b).[7]

In conclusion, I consider that the scarring constitutes disfigurement which is serious. The plaintiff is a fifty-year-old man. My immediate reaction to the scarring, made as objectively as I was able to, was that it is a nasty and obvious scar blighting the whole of the plaintiff's upper arm between his shoulder and his elbow. It is not only 15 centimetres long, but it is wide, reddish in colour, and observable from distance. It is not the type of scarring which is easily disguised because of its position on the plaintiff's upper arm. Additionally, the emotional reaction of the plaintiff, as I have described above, adds an element to the seriousness of the scarring.

Therefore, I grant the plaintiff leave to bring a proceeding at common law to recover damages for the injuries he suffered in the transport accident.[8]

16 As was said by Buchanan JA[9] in Cowden v Transport Accident Commission:[10]

It is difficult for an appellant to demonstrate that a trial judge's evaluation of the existence of a 'serious injury' should be set aside. In the absence of specific error, it must be shown that the decision at first instance was 'plainly wrong' or 'wholly erroneous' or 'patently unsustainable'.

17 The Commission makes two complaints about the primary judge's decision:

first, it makes a complaint of specific error, namely, that the judge failed to apply the criteria in s 93(17)(b) of the Act as explained in Humphries v Poljak[11] and Ingram, in that the judge did not evaluate the consequences of the respondent's scarring: and secondly, it contends that the judge's decision was 'plainly wrong'.[12]

18 In order to analyse the Commission's complaint of specific error, it is necessary to consider four decisions of this Court, including Humphries, Ingram and Richards.

19 Humphries was a case involving paragraph (a) of the definition of 'serious injury' in s 93(17) of the Act.[13] In Humphries, the majority[14] said:

We think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s (4)(d) [of s 93 of the Act] when reliance is placed upon sub-s (17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term. We think 'long-term' is not an expression likely to give rise to difficulty. To be 'serious' the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage 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'? Beyond such guidance it is, we think, not possible to go. The only other assistance in the resolution of such applications that can be gained will derive from the trends that will emerge from the determination in the future from time to time of a range of applications including those the adjudication of which is now our responsibility.[15]

20 In Ingram, the Court (Brooking, Charles and Callaway JJA) had to consider paragraph (b) of the definition of 'serious injury' in a case that involved an abdominal scar. Callaway JA said:

Quite apart from authority, it is important not to read para (b) in isolation. 'Permanent serious disfigurement' within the intendment of the statute must be such disfigurement as bears comparison with such injuries as serious long term impairment of a bodily function, severe long term mental illness and loss of an unborn child.[16]

21 Callaway JA then discussed whether the 'psychological dimension' of a scarring case and/or the 'subjective response' to scarring might be relevant so far as seriousness was concerned. His Honour found it unnecessary to resolve that matter because, assuming everything in the plaintiff's favour in Ingram, the scarring and its consequences did not meet the requisite standard. Brooking JA delivered a concurring judgment in which he also found it unnecessary to express an opinion about the relevance of the plaintiff's evidence about her consciousness of the scar, insecurity and the resultant loss of esteem.

22 Charles JA also delivered a concurring judgment, saying that in determining whether the disfigurement brought about by scarring is 'serious' for the purposes of s 93(17)(b), the Court must have proper regard to the consequences to the plaintiff of the disfigurement.[17] His Honour then said that, in all but clear cases of serious injury, there was a subjective element involved in the assessment. That said, his Honour went on to say that he wished to leave open the question to what extent evidence, whether by a medical expert, by the proposed plaintiff or otherwise, was relevant to the determination of what amounts to 'permanent serious disfigurement'.

23 In Baker v Transport Accident Commission[18] this Court again had to consider the expression 'permanent serious disfigurement' in paragraph (b) of the definition of 'serious injury'. Brooking JA (with whom Phillips JA agreed) referred to Humphries and the 'very considerable' test and noted that both sides in Baker addressed the Court on the assumption that the primary judge was right in directing herself in accordance with Humphries. Brooking JA then described the plaintiff's scarring in Baker, before saying:

On the most extreme of the submissions made by [counsel for the defendant] the judge was, and we are, confined in considering whether the disfigurement is 'serious' to what I might call the physical characteristics of the scars, and, as [counsel] put it, to the age and possibly the sex of the applicant. Even if this submission were to be upheld, in my opinion, giving appropriate weight to the view taken by her Honour, we should differ from her Honour's view and determine that this admittedly permanent disfigurement is 'serious'. I say that having regard to the number of scars, their location, their size and their degree of obviousness. This view makes it unnecessary to consider whether, as [counsel for the plaintiff], contends, and [counsel for the defendant] denies, regard may be had to the lay and expert evidence put forward in this case in considering the disfigurement has been shown to be 'serious'.[19]

24 Subsequently, in Richards, this Court (Winneke P, Buchanan and Chernov JJA) had to consider the interaction of paragraphs (a) and (c) of the definition of 'serious injury'. In Richards, the Court held that in a case concerning paragraph (a) of the definition, seriousness could be measured in part by a mental response to the particular physical impairment. Winneke P said:

If, as a result of an injury, a person loses a limb, it will, no doubt often occur that one of the consequences of such a loss or impairment will be the development of a mental response to that impairment or loss. That is one of the consequences which, along with others, the Court will need to evaluate in determining whether the loss or impairment of a body function, when judged by comparison with other cases in the range of possible impairments or losses can be fairly described as 'serious' ... . Such a response, as I see it, would be an expected consequence of an impairment or loss of a body function of the sort to which I have referred. ... Thus, the 'serious injury' defined by para (a) of sub-s (17) can, I think, have its seriousness measured in part by a mental response to a physical impairment.[20]

That is not to say that mental or behavioural disorders have no part to play in considering whether the requirements of para (a) have been met or that physical incapacity is irrelevant in considering the applicability of para (c). Just as the physical consequences of a mental or behavioural disorder may have a bearing on the severity of the disorder, a mental or behavioural component can affect the question whether a physical injury is serious and long term.[21]

26 The third member of the Court, Chernov JA, dealt with the inter relationship between physical and mental consequences as follows:

It is likely that in many cases the injuries caused by a transport accident will have physical as well as mental consequences for the plaintiff, with the result that it may appear that either definition could be appropriately applied in determining whether the relevant injury is a "serious" one. In such circumstances, which test is appropriate will fall to be determined by the consideration of what is the dominant cause of the plaintiff's condition. Is it predominantly the result of the physical injuries arising from the accident, or is the dominant cause of the condition the mental and psychological factors flowing from the accident? But whichever test is to be applied, in determining if its requirements have been satisfied, all the relevant consequences for the plaintiff arising from the accident are to be considered. Thus, if it is decided that, in a given case, the test in para.(a) is appropriate because the plaintiff's relevant condition has been brought about predominantly by the relevant physical injuries, in deciding whether the relevant impairment is serious and long term, regard is to be had not only to the physical cause of the impairment, but also to any mental or behavioural disturbances flowing from the physical injury, such as 'functional overlay' to which the President refers in his judgment. The same applies where the dominant cause of the plaintiff's condition consists of mental or psychological factors. In such a case, any accompanying physical incapacity may be taken into account in determining whether the plaintiff's mental or behavioural disabilities are serious and long-term. But the first task is to decide whether the dominant cause of the plaintiff's condition falls to be determined by reference to the criteria in para (a) or (c). Such an approach is likely to prevent the tail wagging the dog or creating the 'anomaly' to which their Honours referred in Humphries v. Poljak which might otherwise take place as it did in this case. [22]

27 Richards was decided after Ingram and Baker. Since Richards, there has been no doubt that in serious injury applications under s 93 of the Act, where paragraph (a) of the definition of 'serious injury' is relied upon, a psychological consequence of the relevant injury may be taken into account when assessing seriousness. By the same reasoning process as applies in paragraph (a) cases, a psychological consequence of permanent disfigurement may also be taken into account when assessing seriousness in a paragraph (b) case.

28 The Commission complains that the judge did not approach his consideration of the respondent's scar by reference to whether its consequences could be fairly described at least as 'very considerable'. Indeed, the Commission submits that the judge specifically disavowed that approach when he said that it occurred to him that paragraph (b) was limited to disfigurement and 'not the sort of consequences which are most often the subject of an examination of a claim brought under paragraph (a), where the inquiry is whether the pain and suffering consequences are serious'.[23] Further the Commission contends that, instead of taking the correct approach, the primary judge assessed the respondent's scar on the basis of his own value judgment concerning the appearance of the scar and the difficulty in disguising it.[24]

29 We disagree. In our view, a fair reading of the judge's reasons discloses that in addition to considering the matters said by this Court in Baker to be relevant, the judge considered the consequences of the scar as deposed to by the respondent - which consequences were not challenged by the Commission on the application to the judge. Those consequences, consistently with what we have said above, included the mental element referred to by the respondent in his affidavits.

30 Further, while it may be said that the reasons for judgment do not contain the level of detail about consequences that one might ordinarily see in a paragraph (a) case, this is to be expected in circumstances where the consequences of scarring (in this case, as in perhaps many cases) are not likely to be something about which one can dilate at length. Indeed, when one examines this Court's judgment in Baker, one sees little (if any) detail in the judgment of the Court concerning the consequences of the scarring in that case - which consequences were found by the Court to satisfy the description 'permanent serious disfigurement'.

31 Additionally, we do not read the judge as disavowing the proper approach to the task of assessing whether the scar in this case satisfied paragraph (b) of the definition of 'serious injury'. The comment of which the respondent complains is no more than an observation that relevant consequences in paragraph (b) cases are, in most cases, of a kind that do not permit the sort of discussion and analysis that occurs in a standard paragraph (a) case involving, say, a neck or a back injury.

32 As to the complaint that the judge somehow resolved the application by reference to his own 'value judgment', we would again point to the way this Court dealt with the plaintiff's scarring in Baker. In our view, there is little to pick between the way the judge dealt with the present application and the way the plaintiff's application in Baker was dealt with by Brooking JA. The Commission did not suggest that Baker was decided by reference to some impermissible 'value judgment'. Similarly, we see no basis for such an assertion in respect of the judgment the subject of the present application.

Ground 2: Was the decision **'**plainly wrong'?

34 In submitting that the judge's decision was plainly wrong, the Commission contended that the various complaints made by the respondent about his scarring did not meet the 'very considerable' test when properly analysed. In relation to each aspect of which the respondent gave evidence, it was said by the Commission that the evidence actually given fell significantly short of establishing that these matters (either alone or in combination) met the 'very considerable' test. For example, in relation to physical symptoms associated with the scar, it was noted by the Commission that the respondent did not state whether (and if so how) the problems to which the respondent referred affected his daily life. By way of another example, it was said in relation to the issue of self-consciousness and embarrassment that the respondent's evidence stopped short of explaining in practical terms the consequences of the emotional response to the scar.

35 It may fairly be said that, in describing relevant consequences in his affidavits, the respondent might have been able to go into greater detail. However, it is to be remembered that the very consequences of which the respondent spoke in his affidavits were not the subject of any challenge at any time before the judge. Further, the Commission's argument appears to proceed on the basis that little (if any) consideration should be given to the matters referred to by this Court in Baker - namely, the location, size and degree of obviousness of the scar.[25] As we have already said, the level of detail into which an injured person might go in his or her application for leave to bring a proceeding will depend upon the circumstances of each case, including how obvious a consequence might be and how necessary it might be thought to be to explain something the cause of which can be objectively observed.

36 There are undoubtedly questions of fact and degree in determining whether an injury satisfies the definition of 'serious injury'.[26] The judge had the benefit of physically inspecting the respondent's scar. The scar is plainly large, unsightly and in a prominent position on the respondent's left upper arm. When one combines those facts with the consequences about which the respondent gave evidence, and to which we have already referred, we see no basis for concluding that the judge's assessment was plainly wrong. While we think the matter is sufficiently arguable to justify a grant of leave, ultimately ground 2 must be rejected.

37 The application for leave to appeal will be granted. However, the appeal will be dismissed.

[1] Garcia v Transport Accident Commission [2015] VCC 140 ('Reasons').

[4] [2000] VSCA 50; (2000) 1 VR 79 ('Richards').

[6] Ingram v Ingram [1996] VicRp 77; [1996] 2 VR 435 ('Ingram').

[9] With whom Phillips and Callaway JJA agreed.

[10] [2003] VSCA 198 [18] ('Cowden').

[11] [1992] VicRp 58; [1992] 2 VR 129 ('Humphries').

[13] Although, in the first of the five appeals that comprised Humphries, there was limited discussion concerning the operation of paragraph (c) of the definition of 'serious injury'.

[15] Humphries [1992] VicRp 58; [1992] 2 VR 129 140-141.

[16] Ingram [1996] VicRp 77; [1996] 2 VR 435, 438.

[18] [1997] 1 VR 662 ('Baker').

[26] Giannakopoulos v Melwire Pty Ltd [2000] VSCA 153, [7] (Tadgell JA, with whom Phillips and Charles JJA agreed).