and Irma Alegria v Transport Accident Commission
[2017] VSCA 379
•18 December 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2017 0113 | |
| IRMA ALEGRIA | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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| JUDGES: | OSBORN and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 18 December 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 379 |
| JUDGMENT APPEALED FROM: | [2017] VCC 1420 |
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ACCIDENT COMPENSATION – Transport accident – Application for leave to appeal against order refusing applicant leave to commence proceedings for common law damages – Judge’s reasons conceded to be inadequate – Credibility of applicant’s evidence in issue – Consent orders filed granting leave to appeal, allowing appeal and remitting matter for rehearing by different judge – Whether consent orders appropriate – Orders made – Transport Accident Act 1986, s 93.
PRACTICE AND PROCEDURE – Consent orders allowing appeal and remitting proceeding for rehearing – Relevant considerations for whether consent order remitting proceeding for rehearing should be made – Disposition having resource implications for administration of justice – Need to identify error – Need to ensure error made at first instance not replicated on rehearing – Consent orders made – Matter remitted for rehearing by different judge.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A D B Ingram with Mr J Valiotis | Melbourne Injury Lawyers Pty Ltd |
| For the Respondent | Mr J P Gorton QC with Mr S Gladman | Solicitor to the Transport Accident Commission |
OSBORN JA
BEACH JA:
On 24 November 2010, the applicant was involved in a transport accident. Subsequently, the applicant commenced a proceeding in the County Court, against the respondent, seeking an order pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’) for leave to commence a proceeding for the recovery of common law damages in respect of injuries the applicant alleges that she suffered as a result of the accident.
In the proceeding below, the specific injury relied upon by the applicant was a ‘spinal injury’. The applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Act, contending that this injury constituted a ‘serious long-term impairment or loss of a body function’.
The applicant’s proceeding came on for hearing before a judge in the County Court on 31 August 2017. On 6 October 2017, the judge gave judgment for the respondent, and dismissed the applicant’s proceeding.[1]
[1]Alegria v Transport Accident Commission [2017] VCC 1420 (‘Reasons’).
On 3 November 2017, the applicant filed an application for leave to appeal against the judge’s order, together with a written case. For present purposes, it is only necessary to set out three of the applicant’s proposed grounds of appeal:
3.The reasons for decision of the trial judge adverse to the applicant’s credit failed to demonstrate an adequate path of reasoning based upon a consideration of the whole of the evidence.
9.The trial judge failed to determine adequately or at all the applicant’s case for serious injury certification based upon a reduction of 25 per cent of her income earning capacity comparing her pre-accident and post-accident capacity by reason of the injuries sustained in the transport accident.
10.The trial judge failed to provide adequate reasons for rejecting the applicant’s case for serious injury certification based upon a reduction by greater than 25 per cent of her income earning capacity comparing her pre-accident and post-accident capacity by reason of the injuries sustained in that accident.
The present application
On 5 December 2017, the parties filed minutes of consent orders in the application for leave to appeal. The consent orders provided for a grant of leave to the applicant to appeal, the allowing of the appeal, the setting aside of the judge’s orders and the remittal of the applicant’s s 93(4)(d) application to the County Court, for rehearing before a differently constituted court. In support of the proposed consent orders, the parties filed a joint memorandum dated 13 December 2017 (‘the joint memorandum’) signed by senior and junior counsel for the applicant and senior and junior counsel for the respondent.
Even though the orders now sought are sought by consent, as has been said before, they cannot be made unless this Court is satisfied that the judgment under challenge, and the orders made pursuant to it, are wrong — or at least sufficiently problematic to warrant that they be set aside and a new hearing ordered.[2] As this Court pointed out in Newton v Geelong Ethnic Communities Council Inc,[3] the Court must:
be affirmatively satisfied that the proceeding should be remitted to the County Court for rehearing. Any such disposition by this Court has resource implications for the administration of justice … and involves costs to the community. In addition, it is desirable, in the interests of justice, that if the matter is to be reheard, any error made at first instance is not replicated.[4]
[2]Hennes v Hobsons Bay City Council [2012] VSCA 215 [7].
[3][2011] VSCA 59.
[4]Ibid [17].
We therefore turn to consider for ourselves, albeit briefly, whether the proposed remission to the County Court is appropriate.
Should the orders sought by the parties be made?
In his reasons for judgment, the judge describes in some detail a lower back condition from which the applicant was alleged to suffer prior to the occurrence of the transport accident.[5] This discussion commences with reference to a medical record of the Western Hospital, made on 21 March 1995, that refers to the applicant having back pain.
[5]Reasons [5]–[22].
Having described the evidence about the plaintiff’s lower back condition as it was prior to the transport accident, the judge then turned to the topic of a prior migraine/headache condition,[6] the applicant’s medical treatment after the transport accident,[7] the various medico-legal opinions tendered in evidence[8] and the consequences the applicant claimed to have suffered as a result of the transport accident.[9]
[6]Ibid [23]–[36].
[7]Ibid [37]–[49].
[8]Ibid [50]–[57].
[9]Ibid [58]–[63].
The judge then set out his conclusions on the evidence.[10] The judge said that the applicant’s case was ‘far from the simple, straightforward case opened by [the applicant]’.[11] The judge said that the case had a significant number of factual and legal issues which were not adequately addressed. After ‘analysing all of the evidence’, however, the judge said that he was not satisfied that the applicant had discharged the onus of satisfying him that she had suffered a serious long-term impairment of the function of her spine.[12]
[10]Ibid [64]–[65].
[11]Ibid [64].
[12]Ibid.
The judge concluded that the applicant had not ‘discharged the onus she [bore] to identify the pre-existing lower back injury and migraine/headache condition; the extent they were aggravated resulting in an impairment of the function of her spine and the consequences of that impairment, and the purpose of her present treatment regime’. The judge went on to say that, in the absence of ‘proper analysis of the factual and legal issues, it [was] simply not possible to … determine which consequences have been caused by the impairment of function of the spine resulting from the spinal injury’.[13]
[13]Ibid [76].
In support of the judge’s conclusion, the judge gave a number of reasons. It is only necessary to mention those that are referred to by the parties in the joint memorandum:
65. Firstly, it is now apparent that Mr Kossmann was provided with significantly more material than was tendered in evidence by the plaintiff. From that material, he understood that the plaintiff had a long history of spinal pain for which treatment was provided by general practitioners since 1995. He was also aware of a thoracolumbar spinal abnormality which led him to conclude that it had been aggravated as a result of the transport accident.
66. The plaintiff has suffered spinal pain for some years prior to the transport accident. I do not think she has been candid in her evidence given the history Mr Kossmann recounted of problems going back to 1995, the additional long-standing problems to her thoracolumbar spine, and the conclusions reached by Mr Dickens, Mr Aliashkevich and Mr Dooley regarding the significance of her prior spinal condition.
…
70. Thirdly, I think the clinical notes of the Werribee Plaza Medical Centre do constitute relevant and persuasive evidence that the plaintiff obtained prescriptions for Mersyndol Forte to treat migraine/headaches. If her spinal condition has been worsening and is causing her the degree of pain she has described, then it is surprising that she did not seek treatment from Dr Shafqat, or from any of the other medical practitioners at that medical clinic. The absence of treatment for spinal pain suggest that it is significantly less of a problem than her long-standing migraine/headache condition.[14]
[14]Ibid [65]–[66], [70].
At the commencement of the joint memorandum, it is stated that the respondent ‘is of the view that the applicant will succeed in establishing proposed grounds of appeal 3, 9 and 10, with the necessary consequence that the primary judge’s decision would be set aside’.[15]
[15]See [4] above.
In the joint memorandum, the respondent concedes that the applicant’s principal case before the judge was that the aggravation of her pre-existing back condition was a ‘serious injury’ because it resulted in a significant reduction in the applicant’s work capacity. This case was challenged by the respondent before the judge. The joint memorandum states (correctly) that, in the circumstances, the judge was obliged to determine whether or not he accepted the applicant’s evidence that she had suffered a reduction in her work capacity because of an injury suffered as a result of the transport accident. The respondent concedes that, in making this determination, the judge was required to weigh all of the relevant evidence including:
(a)the reports of Mr Kossmann and Mr Dooley, which arguably supported the applicant’s case that her work capacity had been reduced as a result of the spinal injury that she sustained in the transport accident;
(b)the applicant’s evidence that she was taking eight tablets of Mersyndol Forte daily in part to treat her back pain; and
(c)the applicant’s explanation for her failure to complain to her general practitioner about worsening back pain in the 16 months before the hearing — namely, that she was an enrolled nurse who knew about the qualities of Mersyndol Forte and regarded it as an effective treatment for back pain.[16]
[16]Joint memorandum [4].
In the joint memorandum, the respondent accepts that the judge’s reasons are inadequate in two respects. The joint memorandum describes those two respects in the following terms:
First, the reasons do not disclose:
(a)whether the primary judge accepted or rejected the applicant’s evidence that she had suffered the claimed reduction in her work capacity because her back pain had become ‘significantly worse’ since July 2016; or
(b)if the primary judge implicitly rejected the applicant’s evidence that she had suffered the claimed reduction in her work capacity, the path of reasoning that led his Honour to make that finding on the relevant evidence, including the evidence set out at [4] above.
The respondent accepts that it was not sufficient for the primary judge to state at [70] of the reasons that, if the applicant’s spinal condition had worsened and was causing her the degree of pain that she described, then it was ‘surprising’ that she had not sought treatment from her general practitioner.
Second, at [65]–[66] of the reasons, the primary judge found that the applicant was not a candid historian of her pre-existing back condition. That finding was based, at least in part, on the primary judge’s misconception that Mr Kossmann had been provided with ‘significantly more material than was tendered in evidence by the [applicant]’, which material led Mr Kossmann to understand that the applicant had a long history of spinal pain going back to 1995. In fact, Mr Kossmann’s report dated 9 December 2016 stated that the applicant had ‘told [him] that she has a history of lumbar back pain dating back to 1995’; the applicant’s affidavit sworn on 14 November 2016 referred to ‘reports of back pain in the records of the Western Hospital on 21 March 1995’; and the applicant accepted at T 31/2–11 that her lumbosacral spine had ‘always been a problem’ before the transport accident.[17]
[17]Ibid [7]–[8].
In determining whether the consent orders the parties seek should be made, it is sufficient for us to say that, in the light of the way the case was conducted at first instance, the concessions by the respondent as to the inadequacy of the judge’s reasons are rightly made. In both of the respects referred to in the joint memorandum, as set out in [15] above, the judge’s reasons were, with respect, inadequate. More specifically:
(1)The judge failed to deal with a central aspect of the applicant’s case, namely whether a 25 per cent reduction in the applicant’s earnings was a result of the transport accident and, if so, whether this consequence was ‘serious’ within the meaning of s 93 of the Act.
(2)The conceded inadequacies in paragraphs [65]–[66] and [70] of the judge’s reasons are manifest. While it may be that the error referred to in paragraph [70] of the judge’s reasons is not so much relevant to any issue of adequacy of reasoning, but rather to whether an important finding was wrongly made, in view of the respondent’s concessions, it is not necessary for us to dwell further on this point.
It follows that we are persuaded that leave to appeal should be granted and the appeal allowed. In the joint memorandum, the parties observe that ‘the credibility of the applicant remains in issue’. The parties submit that this Court is not well placed to determine for itself the applicant’s application under s 93(4)(d) of the Act, and that the matter needs to be remitted for rehearing before a different judge. We agree. A court that has the benefit of seeing and hearing the applicant give evidence will be considerably better placed than this Court to determine the merits of her claim. Moreover, in view of the findings that the primary judge made that were unfavourable to the applicant, we think that the matter should be remitted for rehearing by a different judge from the primary judge.[18]
[18]Kovacic v Transport Accident Commission (2016) 76 MVR 82, 89 [20].
Conclusion
We will make orders granting the applicant leave to appeal; allowing the appeal; setting aside the orders made in the County Court on 6 October 2017; remitting the applicant’s application for leave to commence a proceeding, pursuant to s 93(4)(d) of the Act, to the County Court for rehearing by a different judge from the judge at first instance; reserving the costs of the hearing before the primary judge to the judge conducting the rehearing; and requiring the respondent to pay the applicant’s costs of the application for leave to appeal and the appeal.
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