Arthur v Transport Accident Commission & Ors
[2006] VSCA 233
•2 November 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3716 of 2005
| MAREE BERNADETTE ARTHUR | |
| Appellant | |
| v. | |
| TRANSPORT ACCIDENT COMMISSION, ANDREW JAMES NEAL and GREATER DANDENONG CITY COUNCIL | Respondents |
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JUDGES: | MAXWELL, P., CHERNOV and NEAVE, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 August 2006 | |
DATE OF JUDGMENT: | 2 November 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 233 | |
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Accident Compensation – Serious injury application – Transport accident – Appellant experiencing pain, discomfort, alleged loss of earnings – Weekly compensation payments received – Appellant pleaded guilty to obtaining payments by fraud – Complaints of pain and suffering notwithstanding apparently successful operation – Whether existence of serious injury determined at date of hearing – Relevance of past pain and suffering to determination of serious injury – Where appellant’s condition improved from some point after accident – Absence of medical evidence as to physical or neurological cause of alleged condition – Whether nexus between injury and organic cause established – Finding that applicant not credible witness – Difficulty in overturning judgment based on credit and considerations of fact, matters of degree and value judgment by trial judge – Transport Accident Act 1986 ss.93(4)(b), (6) and (17).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J.P. Gorton | Nicholas J. Sevdalis & Associates |
| For the Respondents | Mr J. Ruskin, Q.C. with Mr D. Masel | Solicitor to the Transport Accident Commission |
MAXWELL, P.:
I have had the advantage of reading in draft the reasons for judgment of Chernov, J.A. For the reasons given by his Honour, I too would dismiss the appeal.
CHERNOV, J.A.:
The appellant, Marie Bernadette Arthur, appeals pursuant to leave against the decision of a judge of the County Court, made on 24 February 2005, dismissing her originating motion that was filed on 30 September 2003 by which she sought leave to commence proceedings for damages against the respondents under s.93(4)(b) of the Transport Accident Act 1986 (“the Act”) in respect of an injury that she sustained in a transport accident on 15 January 1998. Essentially, the appellant’s case below was that the injury was productive of her suffering, on an intermittent although frequent basis, significant pain to her neck and right upper limb that resulted in loss of enjoyment of life and loss of ability to carry out her usual occupation of musician and singer. It was said that, in the circumstances, the injury was a “serious injury” within the meaning of paragraph (a) of the definition of that term in s. 93(17) of the Act and that, therefore, she was entitled to the leave sought. It was accepted by the appellant that, in order to succeed, she was required to establish to the satisfaction of the court that the injury is a “serious injury”[1] and in particular that the pain and suffering and/or economic consequences of it were at least “very considerable” to her.[2] Before dealing with the appellant’s submissions that are directed to establishing alleged errors by his Honour it is necessary to set out the circumstances relevant to the claim and the appeal. As will be apparent, most of them are uncontroversial.
[1]See s.93(6) of the Act.
[2]Humphries v. Poljak [1992] 2 V.R. 129 at 140 per Crockett and Southwell, JJ.
Background circumstances
The appellant is now aged 44 years and, as I have noted, she worked during her adult life as a professional musician and singer in her own right and as the singing member in various bands. The traffic accident occurred when a truck that was travelling immediately in front of her car broke an overhanging branch of a tree, effectively causing it to smash through the windscreen of her vehicle. In the result, the appellant hit her head, neck and shoulder, with some force, against the right hand pillar of her car. She was taken to hospital, where x-rays were taken, and she was kept under supervision for a couple of hours but was discharged without treatment. On 7 February 1998, she consulted her general practitioner, Dr Curren, complaining of increasing pain, numbness and loss of power in her right arm. The appellant then saw her neurologist, Dr Waterston, who had been treating her for syringomyelia, a disease of the spinal cord, that had been diagnosed in 1995 and which produced, over the years, significant symptoms in the appellant’s back and legs. It seems that the appellant also experienced pain at the side of her neck in 1997, but nothing turns on these earlier symptoms for the purposes of the appeal. Be that as it may, following an examination of the appellant in February 1998, Dr Waterston arranged an urgent MRI scan of her cervical spine. The result of the scan led Dr Waterston to conclude that the appellant may have sustained, by reason of the accident, soft tissue injury to the cervical spine and a traction injury to the cervical nervous roots.
During the remainder of 1998 and through to April 2002 the appellant continued to complain to her treating doctors of significant pain in her neck, shoulder and right arm which she claimed materially interfered with her sleep and otherwise with her enjoyment of life. In November 1998, Dr Mack, a rheumatologist, diagnosed the appellant as having developed a regional pain syndrome, unrelated to any previous illness, with symptoms of post-traumatic stress disorder. In May 1999, Dr Lim, a rehabilitation specialist, diagnosed the appellant as having persistent right brachialgia consistent with regional myofascial pain syndrome and in July 1999 Dr Proctor, a psychiatrist, considered that the appellant was suffering from post-traumatic stress disorder and associated major depression and anxiety. The appellant claimed that during this period she was on medication and taking up to eight Panadeine Forte tablets a day.
In April 2001, the appellant complained to Dr Waterston of bouts of increasing pain and weakness in her right arm. He noted that she was “continuing to have neck and right arm pain of a similar nature [to that of 1998]” and recommended that a surgical opinion be obtained. As a consequence the appellant was referred to two neurosurgeons, first Mr Rogers and then Mr Malham. In his report of 14 June 2001 to Dr Waterston, Mr Rogers noted that the MRI scan of the appellant’s cervical spine “demonstrated compression of the existing right C6 nerve root in its foramen by a disc prolapse”. He went on to say that he advised the appellant that, given her history of chronic pain, it was far less likely that surgery on the disc prolapse would have a significant impact, in comparison with someone who presents de novo with radicular arm pain. Later in 2001, Mr Malham recommended a C6 transforaminal epidural injection under CT guided control and this was performed by Mr Verrills on 14 November 2001. This procedure, however, provided the appellant with only temporary relief and, on 14 December 2001, Mr Malham performed a right C5/6 foraminotomy and decompression of the right C6 nerve root. The appellant said that after some initial improvement following the operation the pain to her arm returned. Another MRI scan of the appellant’s spine arranged by Mr Malham which was performed on 13 March 2002 showed a large disc prolapse compressing the right C6 nerve root. And on 23 April 2002, Mr Malham performed a discectomy and fusion at C5/6 in order to relieve the pressure on the root nerve. Although the operation appears to have been successful, Mr Malham noted in his report to the appellant’s solicitors of 18 July 2002 that the appellant has “persistent right arm symptoms consistent with a complex regional pain syndrome” and neck pain “secondary to a facet joint component”. He suggested the appellant undergo medical branch nerve blocks which were provided by Dr Vivian, a pain management specialist.
During 2003 and the first half of 2004 the appellant continued to see Dr Vivian from time to time in relation to the pain that she said she experienced in her neck and upper limb. During this period, Dr Vivian performed, variously, medical branch nerve blocks and radio frequency denervation procedures and he applied injections to the appellant’s right shoulder. It may be accepted that these procedures caused discomfort and pain to the appellant.
Not long after the accident, the appellant lodged a claim with the first respondent for weekly payments of compensation on the basis that she was prevented from engaging in her occupation because of the physical constraints that she experienced due to the injury. The appellant was duly paid the compensation and, by about mid-2001, this amounted to almost $26,000. It seems, however, that on 8 April 2000 the appellant performed as a singer and a master of ceremonies at a wedding. The first respondent obtained a copy of the video tape recording of this event, including footage of the appellant’s performance, and, on 23 May 2000, advised her that it intended to investigate her for fraud. As will become apparent, the video tape recording was tendered in evidence before his Honour.
In July 2002, the appellant pleaded guilty to charges of obtaining financial advantage by deception. The plea of guilty was apparently made on the advice of her solicitor who represented her at the hearing of the originating motion. He said in his evidence before his Honour that, although the appellant claimed to him that she had told her previous solicitor that she was able to perform a small amount of work, there were no notes to that effect on the file that he had taken over from the previous solicitor, as would have been expected if instructions were given as claimed by the appellant. The appellant was convicted, was fined some $7,500, and ordered to repay the monies that she received and to pay costs of $1,000. Not surprisingly, these matters were put before his Honour at the hearing of the originating motion as going to the appellant’s credit.
Appellant’s case below
It was the appellant’s case below that the injury was a “serious injury” in that it resulted in a serious and long term impairment of a body function, namely, her right arm and shoulder. As has been noted, it was said that, as a result, she suffered intermittently significant pain in those areas and was prevented from using her right arm and that this detrimentally affected her quality of life. It was further asserted during the trial that the injury prevented her from working in her occupation as a singer and thus caused her significant economic loss. The latter claim, however, ultimately was not pursued.
Hearing below
At the hearing before his Honour the relevant evidence consisted, in the main, of two affidavits respectively sworn by the appellant and her solicitor and a number of reports from the appellant’s treating medical practitioners and those who examined her for the respective parties for forensic purposes. The only person to be cross-examined at the trial was the appellant. Much of the medical evidence was uncontroversial in the sense that there was no significant issue on which the medical practitioners gave conflicting evidence that his Honour was required to resolve.
In his reasons his Honour recognised that, following the accident, the appellant claimed that she intermittently suffered pain to her neck and right upper limb and weakness down the right side that prevented her from using her right arm in the normal way. His Honour also noted the treatment that the appellant had undergone between the date of the accident and the operation by Mr Malham in April 2002, as well as the reports of the medical practitioners who had assessed her condition during this period. Importantly, the learned judge recognised that the medical evidence showed that the accident brought about a disc prolapse at the C5/6 level which compressed the right C5 nerve root and that this was causative of the pain that the appellant suffered and the restriction to the movement of her right upper limb. And it was in order to alleviate these symptoms that Mr Malham performed the operation in April 2002, as his Honour noted. Although, as the judge said, the surgery appears to have been successful, the appellant claimed that it did not lessen her complaints and that she continued to experience pain in her right upper limb.
In the circumstances the judge turned to consider what the medical reports said about the appellant’s condition after the April 2002 operation. His Honour said: “It seems to me that the real question to be decided in this application is whether or not the applicant is, following the surgery, now suffering from pain and discomfort and loss and enjoyment of life to the extent where her condition could be described as ‘serious’ as that term is defined … “. As will be seen, the appellant’s counsel before us claimed that this statement, and his Honour’s subsequent analysis of the evidence, demonstrated that, in reaching the impugned decision, his Honour paid no proper regard to the effect of the injury on the appellant prior to April 2002 and focused almost exclusively on the situation post that operation. Be that as it may, the judge noted that there was no report from the appellant’s treating neurologist, Dr Waterston, about her condition post April 2002. And the medical experts who examined the appellant during the post-April 2002 period, said his Honour, essentially concluded that they could find no physical or neurological cause for her claimed condition.
It is necessary to bear in mind in this context that in order for the injury to fall within the definition of paragraph (a) of s.93(17) of the Act, the applicant for leave must establish an appropriate nexus between the injury and its organic cause.[3] Turning to the relevant reports, Associate Professor Starke, a neurologist, who saw the appellant on 25 January 2005 at the request of the first respondent, relevantly said in his comprehensive report that, on examination, there was marked limitation in the movement of the appellant’s right shoulder, but that neurological examination of the upper limbs did not find any wasting or any convincing focal weakness. He noted that the appellant’s problem was predominantly pain but that “[t]here were no residual features to suggest nerve root compression. … There is a rather tentative performance raising the question of a functional component.” He further noted: “It is always difficult to provide a prognosis when the predominant complaint is pain without any objective associated neurological features.” Thus, he concluded, to the extent that there was limitation in the movement of the right shoulder, it was not neurologically based (and may have been due to capsulitis). Dr Vivian also noted in his report of 13 December 2004 that the appellant did not present with any specific neurological abnormalities. Importantly, Mr Simm, who saw the appellant on 16 October 2002, said in his report that he found no measured wasting of her right arm. On the contrary, the right arm measured one centimetre larger than the left which, Mr Simm pointed out, was consistent with right-hand dominance and inconsistent with the appellant’s claim of not using her right arm for any activity “for some considerable time”.
[3]Richards v. Wylie (2000) 1 V.R. 79 at 86 per Winneke, P.
And, as I have already noted, Mr Rogers opined on 14 June 2001 that, given the appellant’s history of chronic pain, it was far less likely that surgery on the disc prolapse was going to have a significant impact on her as compared with someone who presented de novo with radicular arm pain.
In the circumstances, the trial judge concluded that the post-April 2002 medical evidence showed that the appellant’s claimed pain and discomfort did not have any neurological basis. His Honour also found that the appellant was not a credible witness and, essentially on the basis of that finding and the medical evidence to which I have referred, concluded that he did not accept her claims as to the extent of her pain and suffering and the restriction in movement to her arm. In coming to the conclusion on the question of the appellant’s credibility, the learned judge had regard to matters that included the following. First was her attempt, during cross-examination, to blame her former solicitor for the circumstances leading to the fraud charges – a claim that his Honour rejected. The judge said that he found the appellant’s “protestations of innocence and her explanation as to why she pleaded guilty, notwithstanding those protestations, to be completely unconvincing”. Secondly, the judge noted that the video film to which I have referred showed the appellant moving about at the wedding without any degree of restriction. I have also watched the footage and it is apparent that, during the function, the appellant moved her neck and limb in a manner that was inconsistent with her claim that she could not work because the injury impeded her use of those parts of her body. His Honour also rejected the appellant’s explanation for her ability to move freely at the wedding reception, namely, that it must have been on one of her “good days”. As the learned judge observed, such “good days” were unpredictable, yet the appellant committed herself to this important engagement which she would not have done unless she was “fairly certain that she was going to be able to attend”. Her fallback position that she had taken drugs on that day to allow her to fulfil her active role must have sounded hollow to the judge.
Next, his Honour noted that a large part of the hearing was taken up with evidence concerning the appellant’s work activities, no doubt in support of her then claim that she suffered substantial pecuniary loss arising out of the injury. To that end, the appellant produced a summary of her work commitments for the relevant period that was said to have been based on recordings in her diary. When asked to produce the diaries, she failed to do so, and his Honour found her explanation for this unconvincing. Furthermore, as his Honour noted, the appellant’s counsel withdrew the claim that she had suffered serious pecuniary loss only at the stage of final address when, as the learned judge said, it became clear that the claim was untenable. Importantly, his Honour considered that Mr Simm’s finding in October 2002 about the lack of muscle wasting in the appellant’s right arm was an objective factor that flew in the face of her claim that she could not use her right arm.
It should be noted that, in considering the evidence that related to the post-April 2002 period, his Honour took into account, in the appellant’s favour, her preparedness to undergo various painful and invasive procedures that were performed on her by Dr Vivian. In his reasons, the judge queried whether the appellant’s participation in the treatment regime was because she wanted to bolster her claim or for some other reason but said, in effect, that he could make no finding in that regard. Nevertheless, he was satisfied that the treatment had been “completely ineffective”. His Honour went on to say that the objective evidence “now” shows “that there is no restriction on [the appellant’s] activities”.
His Honour concluded that, in the circumstances, he was satisfied that the appellant was not “now” suffering from such pain and loss of enjoyment of life as could properly be described as “serious”. Accordingly, he dismissed the application.
Failure by judge to consider consequence of injury prior to the operation
It was first argued for the appellant that his Honour failed to have any or any sufficient regard to her symptoms and condition between the date of the accident and the April 2002 operation. It was said that his Honour impermissibly confined his analysis of the appellant’s condition to the period post April 2002 and, even in that analysis, it was said, he did not properly evaluate the appellant’s condition. The latter claim can be disposed of briefly because it is plain that his Honour analysed with some care the appellant’s symptoms and condition during the period post April 2002 as they were reflected in the medical reports. I consider that his Honour’s analysis in that regard was thorough and appropriate. In the circumstances I turn to consider whether there is any merit in the claim that his Honour failed to give due consideration to the effect of the injury on the plaintiff between the date of the accident and April 2002.
In support of the claim that his Honour so erred counsel relied primarily on the following aspects of his Honour’s reasons. First, reference was made to the judge’s statement, to which I have referred earlier, that the “real question” was whether, following the surgery in April 2002, the effect of the injury on the plaintiff was such that it could be properly described as “serious”. This demonstrated, so it was claimed, that his Honour effectively turned his back on the pre-April 2002 consequences of the injury. Counsel argued that during his Honour’s relatively lengthy analysis of the evidence pertaining to the period post-April 2002, he made no reference to the effect of the injury on the appellant during the four and a half years or so prior to the second operation.
In my view, however, there is no merit in this criticism. It should be borne in mind that, for present purposes, his Honour was only required to determine if the injury was “serious” to the appellant, that is to say, whether in terms of pain and suffering and/or pecuniary disadvantage, the impairment arising from the injury was, from the point of view of the appellant, “at least very considerable” when compared with other cases and a range of other possible impairments.[4] The question whether the injury was also long term did not arise for determination, at least not in the first instance. The analysis that his Honour had to undertake involved consideration of facts and matters of degree and value judgment. It has often been said by this Court that an appellant who seeks to overturn a judgment of this kind undertakes a very difficult task, particularly where, as here, the appellant’s credit was in issue and the judge had the advantage of seeing and hearing her – see, for example, Giannakopolous v. Melwire Pty Ltd[5] and Nichols v. Robinson.[6] As the High Court[7] said in Fleming v. Hutchinson[8] when refusing leave to appeal against the judgment in Humphries v. Poljak: “In each case the Court must apply the test of ‘seriousness’ by evaluating the plaintiff’s condition and such an evaluation does not depend on any legal principle. It depends on the opinion of a judge familiar with a range of conditions within which the instant condition occurs.” Their Honours then referred[9] with apparent approval to what McGarvie, J. said in Humphries v. Poljak,[10] namely that the test for determining if the consequences of the injury are serious “involves a comparison with and an assessment relative to other possible impairments or losses of the body function in question” in which “[e]lements of fact, degree and value judgment are involved.”
[4]Humphries v. Poljak at 140 per Crockett and Southwell, JJ.
[5][2000] VSCA 153 at [7] per Tadgell, J.A.
[6][2001] VSCA 11 at [11] per Winneke, P.
[7]Mason, C.J., Brennan and Dawson, JJ.
[8](1991) 66 A.L.J.R. 211.
[9]At 211.
[10]At 167.
It is plain enough that the question whether the impairment is “serious” is to be determined at the date of the determination of the application. See, for example, Swannell v. Farmer[11] in which Batt and Buchanan, JJ.A. (with whom Callaway, J.A. agreed) said:[12]
“It appears to us that the requirement contained in subs. (6) that a court must not give leave under subs. (4)(d) ‘unless it is satisfied that the injury is a serious injury’ requires a demonstration of the existence of a serious injury at the date of the determination of the application for leave. We accept that certain of the verbs in subs. (4) which are in the present (imperfective) tense have logically to be understood as being in the present perfect tense. But those verbs are all found in conditional clauses and it is a feature of such clauses in the English language that, even though their verbs denote actions anterior to those of the main clause, they are frequently expressed in the present tense. No such consideration applies to the conditional clause in subs. (6) or, more importantly, to the dependent clause in that subsection. To read the latter clause as applicable to an injury no longer extant and therefore incapable of being long-term (where that consideration is relevant), whilst possible, is, we consider, a tortured construction.’”
The appellant’s counsel contended that what their Honours said in that regard was dicta and that, in any event, it does not follow from the fact that the determination of the central question is to be made at the date of the hearing that consideration of past pain and suffering arising from the injury is unnecessary. Putting aside the question whether their Honours’ statement was, strictly, dicta[13] it is plain that, as they said, the terms of s.93(6) of the Act make it apparent that the time at which it must be established that the injury is a “serious injury” is the date of the hearing of the application. Nevertheless, such an inquiry plainly does not shut out consideration of past pain and suffering and the diminution of life that the injured person experienced. The contrary was not argued by the respondent, nor was it suggested by the learned judge. It is apparent that his Honour had regard to the whole history of the appellant’s condition as at the date of the hearing before him.
[11][1999] 1 V.R. 299.
[12]At 310 per Batt and Buchanan, JJ.A., with whom Callaway, J.A. agreed.
[13]I doubt that the statement was obiter dictum given that their Honours were dealing with a ground of appeal which called for a consideration of the meaning and operation of s.93(6) of the Act and thus formed part of their reasoning towards the conclusion.
Because an applicant for leave under the Act is required to establish that the impairment or loss of the body function is both serious and long term,[14] usually, or at least often, the two matters are considered together. In those circumstances the analysis involves consideration of the history of the consequences of the injury to the applicant because such an analysis is relevant primarily to the question whether the impairment is long term but it may also bear on the question whether the injury is a “serious injury.” As Neave, J.A. pointed out in the course of argument in this case, the past experience as to the injury is relevant to the assessment of its effect on the applicant in the future. A like, although not as extensive, analysis is relevant to the question whether the impairment is “serious”.
[14]See, for example, Humphries v. Poljak at 140.
Be that as it may, where the applicant’s condition has, on the evidence, improved since the accident, the principal consideration becomes whether it has improved to a point where the impairment is no longer “serious” and “long term” and those matters are to be determined at the date of the hearing of the application as was made apparent by the Full Court in Veit v. Conroy, one of the cases that was considered in Humphries v. Poljak.[15] It is relevant to refer briefly to the salient facts of that case. The applicant suffered neck injuries in a motor car accident that occurred in July 1987. The condition progressively deteriorated due to nerve root pressure in her spine that she claimed was brought about by the accident. In February 1989 the applicant underwent an operation to decompress the right sixth cervical nerve which, according to the surgeon, resulted in her condition steadily improving, although the injury left her predisposed to earlier than usual onset of degenerative changes in the cervical spine later in life. Crockett and Southwell, JJ. said[16] that although the injury caused the applicant a great deal of pain, distress and inconvenience such that, for many months after surgery it might be said that she suffered “serious impairment of a body function”, by May 1990 at the latest, there had been great improvement. In light of the most recent medical reports, their Honours concluded that “the applicant has not established that her impairment is, on the evidence, properly describable as ‘long term.’”
[15]At 152.
[16]At 154 (McGarvie, J. dissenting).
In this case, it is plain, as I have said, that his Honour analysed the effects of the injury on the appellant during the period between the date of the accident and April 2002 as well as the evidence concerning the effects of this injury on the appellant post April 2002. And it was in that context that his Honour determined that, as at the date of the determination, the impairment was not “serious”.
In the circumstances, I would reject the appellant’s claim that, in considering whether her injury is a “serious injury”, his Honour erred in failing to have proper regard to the consequences of the injury to her between the date of the accident and April 2002 (or between that date and the date of hearing). And in my view, it was open to his Honour to conclude on the evidence that the appellant had not established that, at the date of the hearing, her condition was “organically related” so that, in the circumstances, the injury suffered by her in January 1998 was not a “serious injury” at the date of the determination of the application for leave. It seems to me that the scheme of the legislation is that a person in the appellant’s position may be entitled to compensation in the form of weekly payments, but is not entitled to bring proceedings for damages in respect of such an injury.
Error as to restriction on appellant’s activities and impermissible speculation by his Honour
It was next contended for the appellant that his Honour erred in two further respects: first, by concluding that “the objective evidence” showed that the appellant was not relevantly restricted in her activities by the injuries and, secondly, by impermissibly speculating whether the appellant undertook the treatment provided by Dr. Vivian in order to bolster her claim for leave to institute proceedings for damages.
As I understood the appellant’s counsel, he claimed that his Honour’s first error was constituted by failure to have regard to the evidence that, at least prior to the second operation, the injury caused restrictions to the appellant’s movements of her right upper limb. In that respect, reference was made to the reports of Messrs. Rogers and Simm, to which I have referred, as well as Dr. Vivian’s observation, made after the second operation, as to the swelling in the appellant’s right arm and the painful and invasive medical procedures to which she had subjected herself to alleviate her pain.
In my view, it is plain enough that all his Honour was saying in the impugned passage of his reasons was that there was no objective evidence that after April 2002 the restriction claimed by the appellant was organically or physically based. I have already referred to the reports on which his Honour relied for that conclusion. In particular, it will be recalled that Mr. Simm reported that, not only did the appellant’s right upper arm measure larger than the left upper arm, but he could find no physical cause for any apparent impairment of the right upper limb and, in his view, the appellant seems to be disabled by her psychiatric disorder and the pain syndrome. Mr. Rogers’ observation that, in the appellant’s particular case, the prospects of a successful operation were less than for of a person who had no history of chronic pain and presented de novo with radicular arm pain is consistent with the above opinion of Mr Simm. I note for completeness that the interpretation of these and other relevant reports that are set out in his Honour’s reasons relating to the appellant’s condition post April 2002 has not been challenged by the appellant. Plainly, I think, no error has been established in his Honour’s conclusion that there was lack of objective evidence that the appellant’s claimed restrictions had an organic or physical basis.
In relation to the appellant’s claim that his Honour impermissibly speculated as to her motive for attending Dr. Vivian, it seems plain enough that, read in context, all his Honour was saying in the impugned passage was that he could make no finding on that matter. In my view, that also does not constitute relevant error.
Manifest error
It was next argued that, even absent specific error, his Honour’s conclusion that the injury was not a “serious injury” is plainly wrong or is plainly untenable in the sense referred to in Mobilio v. Balliotis.[17] In support of this claim, the appellant’s counsel first argued that, contrary to what the judge concluded, her activities as shown in the video film were not inconsistent with her claim that the consequences of the injury were considerable and, in particular, that it inhibited the movements of her right upper limb. It was said that the film showed that the appellant’s activities that involved the use of the right limb were limited. It seems to me that this argument goes to an allegation of specific error rather than manifest error, but be that as it may, I consider that, having watched the video film, there is no error in his Honour’s conclusion that it showed the appellant performing at the wedding reception without relevant restrictions.
[17](1998) 3 V.R. 833 at 841 per Brooking, J.A., at 858 per Phillips, J.A. and at 860 per Charles, J.A.
It was also argued in support of the manifest error ground that merely because the appellant pleaded guilty to the fraud charge and her evidence to his Honour about her work history was unsatisfactory, does not mean that she should fail in her claim. Again, this contention seems to allege specific error rather than manifest error. Nevertheless, I consider that his Honour did not say that the appellant’s claim failed because of those matters. It seems to me that his Honour took those matters into account in assessing the appellant’s credibility, and he was entitled to do so. And, in my view, no error has been demonstrated in his Honour’s finding as to the appellant’s credibility.
The appellant’s counsel also argued that, if his Honour had taken into account for the purpose of determining whether the injury is a “serious injury” the pain and
suffering the appellant experienced prior to April 2002, he would not have come to the impugned conclusion. Essentially, it was said that no reasonable court acting reasonably could come to such conclusion if it had regard to the appellant’s symptoms and condition during this period. In my view, however, this argument has no merit. It does not follow that, merely because the judge rejected the appellant’s claim as to the extent of her pain and suffering and her inability to work due to the injury, he did not have due regard to her symptoms and condition. Given that his Honour did not find the appellant a credible witness, his ultimate impugned conclusion was well open to him on the evidence. For the reasons given, I consider that his Honour had an objective basis for coming to the conclusion which is now challenged and it cannot be said that it is so unreasonable that no reasonable court could have made such a decision.
In the circumstances, the manifest error ground must fail. It follows that, in my view, the appeal should be dismissed.
NEAVE, J.A.:
I have had the advantage of reading in draft the reasons for judgment of Chernov, J.A. and agree that the appeal should be dismissed for the reasons that his Honour gives.
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