Transport Accident Commission v Serwylo [2011] VSCA 305

3 We consider that the judge's full and careful reasons[2] - the decisive aspects of which,[3] counsel for the applicant accepted, were valid points to weigh in determination of the competing constructions - express and explain the preferable construction of that part of Chapter 3 of the AMA Guides which was in issue. It is, we add, a measure of the unsatisfactory nature of the document, and of the difficulty faced by the Tribunal and then his Honour, that, as the medical opinions demonstrated, not even doctors, by whom and for whom the Guides were written, could agree as to the proper meaning of DRE Lumbosacral Category IV. Mr Shannon, whose opinion - relied upon by the applicant - differed from the opinions of Messrs Doig and Moran, went so far as to say, in viva voce evidence, that he thought the issue 'should be referred to the spine group[4] for guidance', and that he was 'still of that view'.

4 We further consider that the medical opinions, in which we include the viva voce evidence given by Messrs Doig, Moran and Shannon, supported a conclusion, even assuming the applicant's construction argument to be correct, that the respondent suffered multilevel spine segment structural compromise - a concept unattended, in the language of Category IV of DRE Lumbosacral Spine Impairment, by the characterisations 'significant' or 'very significant'.

[1] Counsel for the applicant accepted the applicability of what he described as 'the Niemann test' (Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431), the relevance of which, in the context of an application for leave to appeal under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998, was discussed by JD Phillips JA in Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, 335-337 [8]-[15]. See also, Myers v Medical Practitioners Board [2007] VSCA 163; (2007) 18 VR 48, 55-56 [28]-[29] (Warren CJ). Neither of those cases involved an application for leave to appeal under s 17A(3A)(a) of the Supreme Court Act 1986, but each is indicative of the correct approach to consideration of such an application.

[2] Transport Accident Commission v Serwylo [2010] VSC 421.

[4] We were told that this is a group of doctors the members of which teach a training course approved by the Minister respecting a particular Chapter of the Guides - as to which s 46A(2)(b) of the Act and Gillat v Transport Accident Commission [2003] VSC 15; (2003) 38 MVR 463.