Vella v Cardona [2015] VSCA 306

2 In May 2013, the applicant commenced a proceeding in the County Court against the respondent claiming damages for personal injury in respect of the injuries she sustained as a result of the accident. By his defence, the respondent admitted negligence and the matter then proceeded as an assessment of damages.

3 The applicant's proceeding was heard by a judge and jury of six over eight days between 12 and 22 May 2015. At trial, the applicant claimed both pain and suffering damages and pecuniary loss damages.[1] There was no dispute at trial that the applicant had suffered a de-gloving injury to her right foot with associated tendon damage as a result of the accident. However, a central matter in dispute between the parties was whether the accident was a cause of a subsequently diagnosed hip injury that was treated by arthroscopic surgery in May 2013.

4 On 22 May 2015, the jury returned a verdict in which they assessed the applicant's pain and suffering damages in the sum of $130,000. The jury rejected the applicant's claim for pecuniary loss damages.

5 The applicant now seeks leave to appeal and, if leave is granted, to appeal against the jury's award of pain and suffering damages. No complaint is made in this Court by the applicant about the jury's rejection of her claim for pecuniary loss damages.

1. The verdict of the jury when assessing damages was against the evidence and the weight of the evidence.
2. No jury, when acting reasonably and attending to the evidence, could or should have:

(a) assessed pain and suffering damages in the sum of $130,000 only;

(b) found that the injury to the plaintiff's hip had not resulted from the subject transport accident.

1. The damages, as assessed by the jury, were manifestly unjust.

7 In her written case and oral argument, the applicant argued all three grounds together. In summary, the applicant contended that it was not open to the jury to reject the causal link asserted by her at trial between the accident and her subsequently diagnosed hip injury, and further that the jury's assessment of damages was manifestly inadequate. The applicant submitted that the jury's award of damages was manifestly inadequate even if the jury was entitled to reject the causal link between the accident and the hip injury.

8 On the other hand, the respondent contended that the jury was not bound to accept that the accident was a cause of any hip injury or condition from which the applicant was subsequently diagnosed. Additionally, the respondent contended that the applicant's submission that the damages assessed were manifestly inadequate should be rejected.

9 The applicant gave evidence at trial and was cross-examined. During the course of cross-examination, the applicant's credit was put in issue. Various matters were put to the applicant that were said to go to her credit. They included a challenge to her claim that, but for the accident, she would have engaged in paid employment at an early time. DVD surveillance videos of the applicant were played and tendered by the respondent. Additionally, the applicant was cross-examined about a Transport Accident Commission claim form that was completed by her following the accident. She was also cross-examined about a document completed by her in January 2007 (two years before the accident) dealing with issues of a psychological nature. Both of these documents were then tendered by the respondent.

10 The applicant called her partner (the respondent, Mr Cardona), and a friend (Davide Camino), to give evidence of their observations of her both before and after the accident. Of specific relevance to the issues before us, Mr Cardona and Mr Camino gave evidence of complaints made by the applicant about right hip problems, which complaints were said to have been made by the applicant before the first note of any post-accident hip problem was recorded in the applicant's GP's notes.

11 Because there was an issue at trial as to when the applicant first complained of post-accident hip symptoms, the applicant's solicitor, Kim Price, was called to give evidence by the applicant. Mr Price gave evidence that at his first consultation with the applicant (6 July 2010), she told him that she had a 'slight limp' from the accident which had caused her to develop problems in her right knee and hip.

12 As to treating medical practitioners, the applicant called her general practitioner, Dr Raymond Szetho, and an orthopaedic surgeon who performed arthroscopic surgery on the applicant's right hip on 23 May 2013, Mr Phong Tran. Dr Szetho gave evidence that in 40 consultations with the applicant, at Dr Szetho's clinic, between the time of the accident and November 2011, the applicant did not make any complaint of any hip problem. On the other hand, Mr Tran gave evidence that, at the surgery performed by him in May 2013, he observed damage to the applicant's right hip, which damage was in his view traumatic in origin and (on the applicant's history) was caused by the accident.

13 In addition to the treating doctors, the applicant called an orthopaedic surgeon, Mr Thomas Kossman, who examined the applicant for medico-legal purposes in March 2011. The applicant also read to the jury medico-legal reports prepared by Dr Nigel Strauss (a psychiatrist), Dr Robert Hjorth (neurologist) and Mr Russell Miller (orthopaedic surgeon).

14 In addition to tendering the DVDs and documents to which we have already referred, the respondent called two medico-legal witnesses who had examined the applicant: an orthopaedic surgeon, Mr Robert Dickens, and a rheumatologist, Dr Kevin Fraser. The respondent called these witnesses mainly for the purpose of eliciting from them their opinions that the applicant's hip injury was not causally related to the accident.

15 In their final addresses, counsel put figures to the jury for pain and suffering damages. Counsel for the respondent (who addressed first) said:

The foot injury clearly is a nasty - I'm not sure really whether I've spent much time, more than minutes on that during the whole of the trial. If you're against us with the - clearly, I'm not saying you're against us about the foot, we're all here, when we say 'the foot', I mean everyone agrees that there has been a significant injury to her foot, but if the hip was included, I would suggest to you for question 1,[2] a figure of in the region of $160,000 to $200,000 to represent the significance of that injury. If it is only the foot, and we urge you to view that it's only the foot, then it would be a figure less than that.

16 No objection was taken by trial counsel for the applicant[3] that these figures were manifestly inadequate, or not open to be put by the respondent's counsel. However, counsel for the applicant, in his final address, submitted to the jury that an appropriate amount for pain and suffering damages (including damages for the hip) was 'in the region of $350,000'.

17 In his charge, the judge, who had the benefit of hearing and seeing all of the witnesses and the evidence, reminded the jury of the various figures and contentions put by the parties. The judge did not take issue with either side's submissions to the jury, but told the jury in conventional terms that they were not bound by the submissions of the parties. The applicant, who was represented by senior and junior counsel, raised no objection to any part of the judge's charge to the jury.

18 The applicant was born on 29 October 1978 and attended school until the middle of year 12. She then completed a course in childcare, before working in various retail jobs. In 1999 she had her first child, a daughter who died of SIDS at the age of 11 months. The applicant had a second child in June 2001, and a third in April 2008. During this period and up to the time of the accident, the applicant was not in employment. The applicant gave evidence that, at the time of the accident, it was her intention to re-enter the workforce approximately 18 to 24 months after the birth of her then youngest child.

19 Following the accident, the applicant was, she said, in excruciating pain. She was taken by ambulance to the Royal Melbourne Hospital. X-rays were taken at the hospital and, on clinical evaluation, the applicant was found to have suffered soft tissue injuries, including tendon ruptures of the back of her foot, as well as a fracture of her right little toe. Repair surgery was performed. This surgery included the taking of a skin graft from the applicant's left thigh to replace skin which had been torn off her right foot in the accident.

20 The applicant gave evidence that she was in hospital for about 10 or 11 days and was in a lot of pain. She said that she could not get out of bed and had to have her foot elevated throughout that period. She also said that, after being discharged home, she was bed-bound for weeks with her leg still elevated, and that she was then mobilised with a boot and crutches, before commencing physiotherapy. She said that over the first 12 months following the accident she experienced pain in her foot, knee and hip. She said that she underwent physiotherapy at least once a week for about 10 to 12 months to help her to walk properly again. She found the physiotherapy to be unhelpful. She said that she told the physiotherapists about her hip pain. She said that she was told by them that this was gait-related, and exercises were prescribed.

21 About six weeks after the accident, the applicant had skin staples in her foot removed. She described this procedure as 'very, very, very painful'. After the staples were removed, the applicant commenced hydrotherapy.

22 Within a month or two of the accident, the applicant again became pregnant - subsequently giving birth to another child on 29 October 2009. The applicant gave evidence of the difficulties her injuries caused her in looking after her children.

23 The applicant said that her hip pain, which was minor at first, gradually got worse. Eventually, in November 2011, she raised it with her general practitioner who ultimately referred her to Mr Tran. The applicant did not identify with any precision when her hip pain commenced or was first noticed by her.

24 The applicant first saw Mr Tran in January 2012. An MRI was arranged and the applicant was given a cortisone injection. She returned to Mr Tran, who performed arthroscopic surgery on 23 May 2013.

25 In her evidence-in-chief, the applicant described the cosmetic difficulties associated with her foot and its tendency to bleed when it was knocked. The applicant said that she generally wore thongs because of problems with shoes. She said that she continued to have pain in her foot and could not bend her toes properly. At their worst, the symptoms were 'agony'. The applicant said that she could not run and that, on some days, she could not walk for too long.

26 Further, the applicant said that, following the arthroscopic surgery performed by Mr Tran in May 2013, her hip was better for a year and a half, but that since then it had 'gotten worse'. The applicant said that she could not remember the last time she had had a good night's sleep. Pain was said to interfere with her ability to drive a car. When asked whether there was anything she could do to try and lessen the pain, the applicant said that she took painkillers and used a heat pack.

27 The applicant further said that her health before the accident was 'great'. Although she had received hospital treatment for depression caused by the death of her first child, she had got over those problems 'back when [she was] young'. Her counsel asked her the following question:

And to be absolutely sure, were there any problems in your life and [sic, scil 'in'] the few years leading up to this injury that was affecting you mentally or affecting your depression or anxiety or anything like that?

28 During cross-examination, the applicant was extensively questioned about her claim for pecuniary loss damages in circumstances where she had not worked since 2001. She explained her lack of employment between the birth of her children in 2001 and 2008 by reference to psychological matters caused by the death of her first child. It was suggested to the applicant that she had had no real intention of returning to work in the near future, and that this was borne out by the fact that she had had another child in 2009.

29 A number of surveillance DVDs taken of the applicant on individual days in 2013, 2014 and 2015 were put to the applicant in cross-examination. These DVDs showed the applicant moving more freely on some occasions than on other occasions. It was suggested in cross-examination that the applicant appeared to move more freely at times when she might not have been expecting surveillance, than on other occasions when she may have suspected that she was the subject of surveillance. The applicant sought to answer these suggestions by saying that her hip pain was variable from day to day, and that on a particular day when she was limping, her limping may have been caused by pain brought on as a result of being manipulated or handled in a medical examination. The surveillance footage was tendered and available to the jury during the course of its deliberations. Having viewed the surveillance DVDs for ourselves, we can say that the suggestions made by the respondent's counsel in cross-examination of the applicant had some force, and were open to be accepted or rejected by the jury. Equally, it was a matter for the jury as to whether they accepted the applicant's explanations of her differing presentations on different days.

30 The applicant was cross-examined about a Transport Accident Commission claim form which it was said contained incorrect answers that did not disclose the applicant's pre-accident psychological problems, or her pre-accident problems with the drug cannabis. The applicant's explanation for the answers with which the respondent took issue was that she was on medication at the time she completed this claim form.

31 While the applicant was cross-examined about the fact that she attended her general practitioner's clinic 40 times between the accident and November 2011 without making any mention of any hip problem, the applicant was not directly challenged in cross-examination about her evidence that she had complained about hip problems to the physiotherapists that she saw during 2009.

32 There was some cross-examination of the applicant concerning her evidence that her partner lived with his parents, while she lived with her mother. Reference was made to the applicant's receipt of Centrelink payments while her partner was in receipt of income from employment. That said, it was never suggested that this state of affairs was improper or unlawful. The cross-examination seemed to be more directed to the point that, with her partner's income and her Centrelink benefits, the applicant may not have been as motivated to re-enter the workforce as she claimed in her evidence-in-chief.

The evidence of Mr Price, Mr Camino and Mr Cardona

33 Mr Price (the applicant's solicitor) gave the evidence about the applicant's instructions to him on 6 July 2010 concerning the development of hip pain, to which we have already referred.

34 Mr Camino, a friend of the applicant and the respondent, gave evidence of his observations of the applicant before and after the accident. This evidence was largely in conformity with the applicant's evidence. As to observations of the applicant's hip pain after the accident, the following exchanges took place during Mr Camino's examination-in-chief:

Where did she indicate the pain was?---At the start predominantly her foot and then eventually her hip.

...

You have mentioned that at first she was complaining about pain in her foot and then I think you said later on she was complaining about some pain in her hip?---Yes, that's right.

Did you talk to her about that?---Yes. When she started complaining about her hip, I actually said to her, 'Have you spoken to anyone about it?' Then I know she did speak to - I don't know if it was her doctor or a physio or something like that. She did mention it and she was told that it's normal because she is not walking properly because of her foot.

...

Perhaps in 2011, can you say whether at any time she was regularly walking without a limp?---No, not regularly, no.

All right. Was she continuing to complain of pain and, if so, what areas?---Yes, she was always complaining about her hip. To me, that's her biggest thing, her hip.

35 Mr Cardona was called by the applicant to give evidence on her behalf. He referred to his observations of the applicant both before and after the accident, and his observations of the effects of the applicant's injuries upon her. Again, this evidence largely conformed with the applicant's evidence. So far as the hip was concerned, Mr Cardona gave evidence of the applicant's complaints of hip pain at consultations with physiotherapists at all of which, he said, he was present. He also gave evidence that the applicant was told that her hip pain was due to her 'not walking correctly'.

36 While each of Mr Price, Mr Camino and Mr Cardona was cross-examined by counsel for the respondent about various matters, it was not squarely put to any of them that the applicant did not make the hip complaints about which they gave evidence; nor was it suggested that the physiotherapists had not told the applicant that her hip problem was gait-related. In submissions to this Court, the applicant placed significant reliance upon the omission by the respondent's trial counsel[4] to challenge this evidence or to challenge the applicant's own evidence on this topic.

37 The applicant called her general practitioner, Dr Szetho. During the course of his evidence, Dr Szetho was taken through his clinic's notes relating to the applicant. He gave evidence about the applicant's consultations with him, and the applicant's consultations with other doctors at the clinic. That evidence included attendances in relation to depression in the years leading up to and including the early part of 2007 and attendances relating to the applicant's use of cannabis and problems associated with it (the last entry in respect of cannabis being 13 March 2007).

38 Dr Szetho gave evidence that he had not been the doctor initially involved in the applicant's treatment for the injuries she sustained in the accident. He said that the hospital had organised her physiotherapy and rehabilitation. Dr Szetho summarised the applicant's position at the time of trial as follows:

We have a 36 year old lady who has undergone a rather unfortunate motor vehicle accident some six plus years ago, injuring her right lower limb, with de-gloving injuries of her right foot and ankle requiring surgical treatment with the plastic surgery unit for debridement and skin graft closure on 9 January 2009. The wounds have healed with significant scarring and she continues to experience some pain with walking, though managing most daily functions. Right hip injury, not initially obvious but becoming increasingly symptomatic over the subsequent three years when investigations and arthroscopic surgery on 23 May 2013 demonstrated a labral tear, ligamentum teres tear, impaction chondral damage to femoral head, synovitis (sic) consistent with the injury described; chronic right hip pain with neuropathic component and chronic adjustment disorder with depressed mood.

I believe that the persistent nature of the right hip and groin pain with associated dysfunction of the right leg will certainly have an impact on her employment capacity, reducing her ability to do any physically demanding types of work, and also those requiring prolonged standing postures and walking. The impact of her ongoing right foot pain will add to her relative dysfunction. Compounding this will be the impact of the chronic adjustment disorder with depressed mood on her psychological wellbeing, reducing her capacity for meaningful employment. Her reduced capacity, as described, will reduce her capacity as well as inclination to engage in social and recreational activities. She will also have a reduced capacity to perform normal domestic activities due to her physical limitations as well as a rather depressed emotional state presently.

40 As to future prognosis, Dr Szetho said that this would depend upon adequate management of the applicant's chronic pain issues.

41 Dr Szetho was cross-examined about a number of matters. Of specific relevance to the issues before us, Dr Szetho accepted in cross-examination that the applicant had visited his clinic on 40 occasions between the accident and her first complaint in November 2011 of hip pain. Dr Szetho also agreed with the proposition that the link between the accident and the applicant's hip problem was based upon the acceptance of the applicant's history of when the hip pain commenced.

42 Mr Tran gave evidence that he had first seen the applicant on 25 January 2012. He said that MRI imaging demonstrated injury, which injury he treated with a steroid injection. On 23 May 2013, he performed a hip arthroscopy which he said demonstrated a labral tear, a partially torn ligamentum teres, and very discrete cartilage damage on the top of the ball of her hip, which he went on to say was not indicative of degeneration. He said the damage he observed was very consistent with a traumatic event and not wear and tear degeneration. Additionally, he said that there was a high likelihood of deterioration, and a high chance that the applicant would need a total hip replacement in the future. Mr Tran also gave evidence that, subsequent to the arthroscopic surgery, the applicant's hip pain recurred and was treated with an injection of anaesthetic and steroid.

43 In cross-examination, Mr Tran agreed that the applicant told him that she had experienced pain in her hip since the accident in January 2009. He agreed that this was an important history. He also agreed that if there had been no pain for some years after the accident then it would raise a query in his mind about the relationship of the hip injury to the accident. He said he would have expected that with the applicant's injuries she would have been 'uncomfortable from the start'. However, he said that sometimes one can have 'distracting injuries'. As to these, Mr Tran said:

And often, if you have a distracting injury that's quite severe, you won't actually notice the pain in other parts of your body, because that one area is so painful. And it's not until that pain has resolved that you will notice the other pain in your body. So distracting injuries are a well-known phenomenon that's quite accepted.

44 The contrary opinion of Mr Dickens that the applicant suffered from constitutional degenerative arthritis was put to Mr Tran. Mr Tran disagreed and said that the arthroscopic images clearly showed a discrete lesion. However, he went on to say that the question of whether the link to the accident was made was based on the applicant's history.

45 Finally in cross-examination, the following opinion of Mr Dickens was put to, and accepted by, Mr Tran:

I believe that if the only injury was to her right foot I would have expected her to be able to return to most normal activities without restriction.

46 The applicant's other medical witness who gave oral evidence was Mr Kossman, a medical practitioner with qualifications as a general surgeon, a trauma surgeon and an orthopaedic surgeon. Mr Kossman examined the applicant in March 2011, at the request of the applicant's solicitors. While the letter of request sent to Mr Kossman did not identify any particular injury, Mr Kossman gave evidence that he concentrated his examination on the applicant's foot because this was the injury referred to in the hospital discharge summary that had been sent to him. Of note, so far as the respondent was concerned, was that the applicant made no complaint of any hip problem during her examination by Mr Kossman. That said, during the course of his consultation with the applicant, Mr Kossman performed what he described as a 'cursive' (meaning, apparently, 'cursory') examination of the applicant's right knee and hip. Following this examination, Mr Kossman reported to the applicant's solicitors:

The right knee and the right hip showed normal mobility and there were no pathologies in the left lower extremity.

47 Counsel for both parties questioned Mr Kossman about the possibility of the applicant having sustained a hip injury in the accident, notwithstanding the applicant's failure to describe any hip problem or symptom during his examination in March 2011. Mr Kossman expressed various opinions supportive of the possibility that the hip injury found by Mr Tran was of traumatic origin and caused by the accident. During re-examination, the following exchange took place:

[I]s this your opinion, with this type of injury you can get some symptoms or no symptoms?---That's correct.

The injury which is identified in the operation report is just such an injury?---Yes.

It can develop and become problematic over time?---Yes.

That you found normal mobility in the right knee and hip does not concern you?---No. That's correct, yes.

Neither does it concern you that there was no complaint of symptoms when Ms Vella saw you?---That's correct.

You are not at all surprised that the injuries that were identified in the operation report of Mr Tran were caused by the motor vehicle accident as described?---That's correct.

48 The applicant's remaining witnesses were Dr Strauss, Dr Hjorth and Mr Miller, who were not called in person but whose medical reports, by consent, were read to the jury. Dr Strauss's reports contained his opinion that the applicant had suffered a chronic adjustment disorder with mixed anxiety and depressed mood, and a post-traumatic stress disorder, resulting from the accident. Dr Hjorth's report (written after an examination in June 2012) noted that most of the applicant's injuries were to her foot, although she also complained of pain in the right hip. Mr Miller's reports contained his opinion that there were significant ongoing symptoms in the applicant's right hip and that the applicant would most likely develop degenerative disease later in life. He said that the long term prognosis for the hip was probably poor, and that it was likely that the applicant would require a total hip replacement. He also described the de-gloving injury to the applicant's right foot as 'severe'.

49 Mr Dickens gave evidence-in-chief that he did not believe that the applicant's hip problems could be related to the accident, or attributed to any change of gait caused by the applicant's foot problem. He said that if the hip was injured in the accident then he would have expected the applicant to have complained of that at the time, and to have had her hip investigated by the clinicians involved in her primary care. As to the applicant's foot injury, he said that when he first saw her in March 2013 he thought that the injury had substantially resolved, and that it should have resolved over a period of six to nine months following the injury, at which time the applicant would have been able to return to gainful employment.

50 Mr Dickens gave evidence that he examined the applicant again in February 2015. With respect to the right foot, Mr Dickens' opinion following his second examination was that he would have expected the injury 'to have gone on to satisfactory healing, resulting in nil or relatively minor ongoing problems'. Mr Dickens said that he was unable to give an organic explanation for the applicant's ongoing apparently significant disabling problems.

51 Mr Dickens was cross-examined specifically about his opinion that there was no causal link between the accident and the applicant's hip injury. Essentially, Mr Dickens' opinion was that because there were no complaints of hip injury or pain immediately after the accident it was difficult to make a causal link between what was subsequently found by Mr Tran in May 2013 and the accident in January 2009. In cross-examination, Mr Dickens accepted that if the applicant had given a history of hip pain following the accident (and if this history was accepted) then a connection could be seen between the accident and the hip problem.

52 Dr Fraser gave evidence that following his examination of the applicant in January 2015 he had concluded that there was no connection between the applicant's hip problem and the accident. He did not understand how Mr Tran could be so emphatic about the proposition that the damage observed by Mr Tran was traumatic. He said that in his view there was no connection between the hip problem and the accident because the applicant had made no mention of hip or groin pain until some years after the accident. At trial, the applicant sought to undermine this opinion by reference to the evidence relating to the applicant's complaints of hip pain prior to November 2011 (when such a complaint was first noted in Dr Szetho's records).

53 As to whether the degeneration identified at arthroscopy was traumatic in origin, Dr Fraser gave evidence-in-chief as follows:

Can that either be traumatic in origin or degenerative, as in congenital type in origin?---Yes. The majority of cases of the type of arthritis that was described at arthroscopy are due to congenital, constitutional factors, one should say.

As opposed to ?---trauma or ---

Or accidents, injuries?---Yes.

Appeals against jury verdicts: the principles to be applied

54 In Zoukra v Lowenstern,[5] the Full Court said in respect of an appeal from a jury's verdict:

So far as the facts are concerned it is not known what view the jury took. The appeal must therefore proceed upon the basis that the jury took the most favourable view to the respondent which a reasonable jury could take upon the evidence.[6]

55 The proposition that, upon an appeal from a jury's verdict, an appellate court must proceed upon the basis that the jury took the view of the evidence most favourable to the respondent has been stated and restated many times since the Full Court delivered its judgment in Zoukra v Lowenstern.[7]

56 As has also been said many times before, it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed where there is a conflict of testimony.[8]

57 In Calin v Greater Union Organisation Pty Ltd[9] - a case involving a plaintiff who was unsuccessful in her claim for damages before a jury - Brennan J said:

In this case ... it would be impossible to hold that a verdict for the defendant was unreasonable unless, on the whole of the evidence, the plaintiff is entitled to a verdict in her favour. But, where the burden of proof is on a party who fails before a jury, the verdict cannot be set aside and a contrary verdict entered unless the jury could do nothing else but find in accordance with that party's contention. It is not sufficient to show that that party has made out a strong case. Here, the jury might reasonably have refused to be satisfied about one or more of the issues on which the plaintiff bore the onus of proof.[10]

58 Further, in Moran v McMahon,[11] Kirby P said in respect of the review of an assessment of general damages:

Because of the large element of evaluation and the necessary latitude for human reaction to the assessment of money damages for the imponderables compensated by an award of general damages, appeal courts should acknowledge the very large scope that must be left by the law to the trial judge. As in other discretionary decisions, appeal courts should be extremely cautious before interfering and this, precisely because of a recognition of the inevitably unscientific nature of the task committed to the trial judge.[12]

59 What was said by Kirby P in Moran v McMahon has at least equal force in relation to a jury's assessment of general damages. As to the advantages a jury enjoys over an appellate court in the consideration of the appropriateness of a particular figure as an award of general damages, we would endorse what was recently said by Kaye JA[13] in Savino v Schieven:[14]

In applying those principles, it is important to bear in mind the advantages enjoyed by the jury which are not available to the court on appeal. The jury had the opportunity to assess the reliability and credibility of the witnesses called before it. It was better placed to understand some parts of the evidence, and, in particular, explanations given by witnesses by reference to photographs and sketch plans tendered in evidence. The jury had the opportunity of hearing and considering the evidence as it was revealed to it over a period of some few days. Each of those factors are real advantages which should not be underestimated. A bare reading of the transcript, by comparison, is, I consider, an inferior substitute for the advantageous position of the jury to which I have referred.[15]

Was the jury bound to find that the accident was a cause of the applicant's hip injury?

60 In his final address, as we have already mentioned, the respondent's counsel invited the jury to assess the applicant's pain and suffering damages in the range of $160,000 to $200,000 if the jury were satisfied that the accident was a cause of the applicant's right hip problems. He invited the jury to assess the applicant's pain and suffering damages at something less than this range in the event that the accident was not a cause of any right hip injury. While one cannot be certain, it seems likely from the jury's assessment of damages in the sum of $130,000 that the jury rejected the applicant's claim of a causal link between the accident and her hip problems.

61 The applicant's case as to causation and as to the extent of her ongoing problems and disabilities was, as is the case in many personal injury claims, dependent to a considerable extent upon the accuracy of the history given by the applicant. Equally, and as again is often the case in personal injury litigation, the opinions of the medical experts who gave evidence were also to a considerable extent dependent upon the accuracy of the applicant's history.[16]

62 The applicant's case at trial in respect of the causation of her hip problems was based on Mr Tran's evidence that the damage he observed at surgery was traumatic in origin. Notwithstanding the applicant's evidence of what she was told by the physiotherapists about her hip problem being gait related, the applicant did not advance this as an alternative causation hypothesis. Further, it should immediately be observed that even if the jury accepted Mr Tran's evidence that what he saw at the time of surgery was traumatic in origin, this did not mean that the accident was necessarily the relevant trauma. For that link, the applicant's history was of critical importance.

63 The respondent met the applicant's case on causation by saying that there was no relevant complaint of any hip problem to any medical practitioner at any time before November 2011 (almost three years after the accident). However, the applicant countered this by giving evidence, and calling witnesses (Mr Cardona and Mr Camino) who gave evidence, of complaints by her of hip pain during 2009 (the year of the accident), especially complaints to physiotherapists. Further, to the extent that the applicant failed to establish any complaints of hip pain immediately following the accident, the applicant relied upon the notion of 'distracting injuries' - described by Mr Tran as 'a well-known phenomenon'.

64 In support of her case on causation, the applicant placed great reliance upon the failure of the respondent's trial counsel to challenge in cross-examination the evidence of the applicant, Mr Cardona, Mr Camino and Mr Price that the applicant made complaints of hip pain in 2009 and 2010. However, one difficulty for the applicant is that the evidence of her complaints to the physiotherapists lacked any real precision. No attempt was made by the applicant to date these complaints, and it is not without note that the applicant did not call any of the physiotherapists. On one view of the evidence it may be that the applicant's first complaint was weeks after the accident, on another it may have been months. In circumstances where the applicant bore the onus of establishing causation, it might be thought surprising that the applicant did not make a greater endeavour to establish the precise details of her complaints.

65 Another difficulty for the applicant is that Mr Price's evidence was not particularly helpful to the case which she ultimately advanced (as distinct from a case of indirect causation which she did not ultimately advance). So far as relevant, Mr Price said that he had taken a statement from the applicant on 6 July 2010 (some 18 months after the accident) to the following effect: 'I have a slight limp. It is worse in the cold weather. It has caused me to develop problems in my right knee and hip'. That statement is not really supportive of the proposition that the applicant had had significant hip problems 'from the start', being a proposition on which her ultimate case depended.

66 Further, in our view, and in the context of the evidence in this trial, trial counsel for the respondent was within his rights not to challenge the applicant or her witnesses, in express terms during cross-examination, about complaints of hip pain said to have been made in 2009 and 2010, but to still assert that causation was not established because, among other things, no complaint was made to any medical practitioner before November 2011. While the course taken by the respondent's trial counsel involved the risk that the applicant would contend that the pre-2011 complaint evidence was unchallenged, the course was a permissible one to take in the context of this trial. It is true that at no time during the trial did the respondent's counsel expressly assert that the applicant or her witnesses should not be believed in relation to the making of the complaints about which they gave evidence.[17] At trial, the respondent's counsel appeared to be content with the position that there was some evidence on causation (including such evidence as there was about pre-2011 complaints), but that there also existed evidence (including a lack of any initial complaint at the hospital, coupled with the opinions of Mr Dickens and Dr Fraser) that should have left the jury in a position where it was not satisfied that the applicant had satisfied the onus of establishing causation.

67 However, it was not suggested at trial that there was any element of unfairness to the applicant in the course taken by the respondent's counsel in these respects;[18] or that the jury was bound to accept the evidence which was given and called by the applicant as to her complaints to the physiotherapists.[19] Quite the contrary. During the re-examination of the applicant, her counsel asked her a question which expressly acknowledged that, while it had not been put to her directly, behind much of the cross-examination of her was the proposition that her hip had come 'out of the blue' and had had nothing to do with the accident, or that she was being 'deceptive and not telling the truth'. Further, in his closing address, senior counsel for the applicant attributed to the respondent a general contention that neither the applicant nor Mr Cardona could be trusted as to their 'histories'.

68 Next, as we have said, a significant plank of the applicant's case on causation involved the acceptance of the proposition that the phenomenon of 'distracting injuries' applied in the present case. While medical experts who gave evidence at trial were prepared to accept that this phenomenon may well have explained the applicant's failure to make any initial complaint of hip pain, there was in reality no direct evidence of the application of the phenomenon in this case from anyone other than the applicant. If the applicant's right foot pain was so severe that it masked the existence of a traumatically caused hip injury, one might have expected additional medical evidence to be called from those who attended and treated the applicant while she was in hospital and in the period shortly thereafter. In the end, while it might have been open to the jury to accept the 'distracting' injuries phenomenon as an explanation for any failure to make an earlier complaint of hip pain than was in fact made, the jury was not bound to accept this plank in the applicant's causation case.

69 A further difficulty for the applicant on this issue is that in giving her evidence that the physiotherapists told her that her hip pain was gait-related, the applicant appears to have accepted this as a likely explanation (indeed it is this explanation that the applicant relies upon as a reason for not mentioning the hip problem to any medical practitioner before November 2011). As we have already indicated in dealing with Mr Price's evidence, the jury might well have thought that acceptance by the applicant of the physiotherapists' explanation could not sit with the proposition that the hip injury was traumatically caused in the accident.

70 The applicant bore the onus of establishing the causal link that she asserted at trial. She called evidence supportive of the link. However, the respondent called evidence to the contrary and also raised matters (the failure to make any complaint to Mr Kossman, Mr Kossman's negative finding upon '[cursory] examination' of the applicant's hip and the failure to make complaints to any treating medical practitioner prior to November 2011) that were capable of telling against a favourable finding for the applicant on causation. Even if one were to assume that the applicant had a relatively strong case on causation (a matter about which we take leave to doubt for the reasons already expressed), this would not be sufficient to overturn the jury's verdict.[20] This was not a case where 'the jury could do nothing else but find in accordance with [the applicant's] contention'.[21] The applicant's contention that the jury was bound to find that the accident was a cause of her right hip injury must be rejected.

71 The issue of the extent of the disability from which the applicant has suffered immediately following the accident and in the months thereafter was in large part objectively ascertainable by an examination of the condition of her right foot. Some of the applicant's subsequent problems (particularly in relation to skin and/or wound problems) were also capable of being ascertained with reasonable certainty by observation and examination. However, as to subsequent complaints of pain and impaired mobility and function, the assessment of the existence and extent of these was heavily dependent upon an acceptance of the applicant as an accurate and reliable historian.

72 The applicant's credibility and reliability was the subject of extensive challenge in cross-examination. It was, in our view, well open to the jury to form an unfavourable opinion of the applicant as a witness. While the applicant gave explanations in respect of each of the matters put to her in cross-examination, the jury was not bound to accept these explanations. Further, it is to be remembered that this appeal falls to be determined upon a consideration of the evidence most favourable to the respondent. This includes the evidence of Mr Dickens (agreed with by Mr Tran) as to his assessment of the applicant's right foot injury. Although in the acute phase the applicant's injury was no doubt very painful and disabling, the jury was entitled to be sceptical of the applicant's description of her subsequent pain and impaired mobility caused by the accident. It would have been open to the jury to conclude that, apart from a continuing skin problem with respect to the applicant's right foot, the applicant had made a good recovery from her initial accident-related injuries.

73 In all the circumstances, we are far from persuaded that the jury's award of damages was manifestly inadequate or outside the range of damages that was reasonably open on the evidence.

74 Having heard full argument, we are now in a position to say that the applicant's appeal does not have a real prospect of success. Accordingly, the application for leave to appeal must be refused.

[1] See the definitions of 'pain and suffering damages' and 'pecuniary loss damages' in s 93(17) of the Transport Accident Act 1986.

[2] The pain and suffering damages question.

[3] Not counsel who appeared in this Court.

[5] [1958] VicRp 94; [1958] VR 594 (Herring CJ, O'Bryan and Dean JJ).

[7] See Liftronic Pty Ltd v Unver (2001) 75 ALJR 867, 872 [29]-[30] and the cases referred to therein.

[8] See Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430, 441 per Latham CJ who was in dissent, but whose judgment in this respect was approved by the Privy Council on appeal from the High Court's decision in Hocking v Bell [1947] HCA 54; (1947) 75 CLR 125, 130-1.

[9] [1991] HCA 23; (1991) 173 CLR 33.

[10] Ibid 46-7 (citations omitted). See, further, the judgment of Mason CJ, Deane, Toohey and McHugh JJ at 41-2.

[11] (1985) 3 NSWLR 700 (Kirby P, Priestly and McHugh JJA).

[12] Ibid 707-8. See also CSR Readymix (Aust) Pty Ltd v Payne [1998] 2 VR 505, 508 (Winneke P, with whom Hayne and Batt JJA agreed).

[13] With whom Warren CJ and Ferguson JA agreed.

[14] [2015] VSCA 67.

[16] Cf Mobilio v Balliotis [1998] 3 VR 833, 836 (Brooking JA).

[17] It may be that counsel was not in a position to assert positively that the complaints about which evidence had been given had not been made: see generally, Casey v Transport Accident Commission [2015] VSCA 38, [37]-[40] (Osborn JA, with whom Tate and Kyrou JJA agreed).

[18] For similar situations, see Burgess v Y-Trans Pty Ltd [2010] VSCA 28, [52]-[58] and the cases there referred to, especially Thomas v Van Den Yssel (1976) 14 SASR 205, 207 (Bray CJ).

[19] Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, 587-588; Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 848-849.

[20] Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33, 46-7 (Brennan J).