Connelly v Transport Accident Commission
[2024] VSCA 20
•6 March 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0073 |
| XAVIER CONNELLY | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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| JUDGES: | BEACH, NIALL JJA and J FORREST AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 February 2024 |
| DATE OF JUDGMENT: | 6 March 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 20 |
| JUDGMENT APPEALED FROM: | [2023] VCC 836 (Judge Clayton) |
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ACCIDENT COMPENSATION – Transport accident – Serious injury – Application for leave to commence common law proceeding – Knee injury – Multiple significant consequences – Consequences likely to be suffered for decades – Likelihood and/or risk of deterioration necessitating further surgery – Whether judge erred in failing to be satisfied that consequences were collectively very considerable – Appeal allowed – Application for leave to commence common law proceeding granted.
Transport Accident Act 1986, s 93.
Humphries v Poljak [1992] 2 VR 129; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, applied. Mobilio v Balliotis [1998] 3 VR 833 not followed.
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| Counsel | |||
| Applicant: | Ms FAL Ryan SC with Ms M Williams | ||
| Respondent: | Mr J Ruskin KC with Ms M Norton | ||
Solicitors | |||
| Applicant: | Slater & Gordon Lawyers Ltd | ||
| Respondent: | Solicitor for Transport Accident Commission | ||
BEACH JA
NIALL JA
J FORREST AJA:
On 15 November 2012, after swerving to avoid a motor vehicle, the applicant fell off his pushbike and suffered an injury to his right knee (‘the accident’). MRI investigations showed that the applicant had torn the graft from a previous repair of his right anterior cruciate ligament (‘ACL’) injury, performed in 2004. On 10 January 2013, the applicant underwent surgery to his right knee to repair the ACL injury suffered as a result of the accident.
By an originating motion filed in the County Court on 16 July 2021, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the TA Act’), to commence a proceeding at common law claiming damages in respect of the injuries he sustained as a result of the accident. In the originating motion, the applicant also sought an extension of time, pursuant to s 23A of the Limitation of Actions Act 1958 (‘the LOA Act’), within which to commence his proposed proceeding.
The applications were heard in the County Court by her Honour Judge Clayton on 15 May 2023. The applicant’s evidence-in-chief was given on affidavit, before he was cross-examined and then re-examined. He was the only witness to give evidence orally. The medical evidence was documentary, consisting of medical reports and medical records.
On 1 June 2023, pursuant to reasons published that day,[1] the judge made an order dismissing the proceeding. In essence, the judge was not satisfied that the consequences of the right knee injury suffered in the accident could be described as ‘very considerable’ as required by Humphries v Poljak.[2] Having reached that conclusion,[3] the judge determined that the provisions of s 23A of the LOA Act were not enlivened, which she said precluded any consideration of whether the applicant should be granted an extension of time under that section.[4]
[1]Connelly v Transport Accident Commission [2023] VCC 836 (‘Reasons’).
[2][1992] 2 VR 129, 140 (Crockett and Southwell JJ) (‘Humphries’).
[3]Reasons, [70].
[4]Ibid [76].
The applicant now seeks leave to appeal against the whole of the judge’s order, on the following proposed grounds:
1.In considering the impairment consequences, the trial judge misapprehended the medical evidence, and/or failed to consider the whole of the medical evidence.
Particulars
The trial judge failed adequately to consider, or misunderstood, the medical evidence to the effect that the applicant was likely to develop post-traumatic arthritis and require future medical and surgical treatment.
2.The trial judge failed to provide adequate reasons.
Particulars
The trial judge failed to adequately explain whether, and if so why, she rejected the medical evidence to the effect that the plaintiff was likely to develop post traumatic arthritis and require future medical and surgical treatment.
3.On a proper evaluation of the impairment consequences as found by the trial judge, the plaintiff’s right knee injury fell within the s 93(17) TAA definition of ‘serious injury’, and the trial judge’s conclusion to the contrary was plainly wrong.
Applicant’s background and evidence
The applicant was born in 1988, and was 24 at the time of the accident. He left school after completing Year 12. When he was 15 years of age, he sustained an injury to his right knee when playing football. He required an ACL reconstruction. The surgery was performed by Mr Russell Miller. In his evidence, the applicant described the surgery as successful.
After leaving school, the applicant took a gap year and worked at Boost Juice, as well as for the Melton Shire as a garbage man for 12 months, saving up the money needed in order to study photography. He then commenced a course in photography, studied for two years, but did not complete the course. After doing the course, he travelled, before returning to complete a Certificate IV in Business.
In 2010, the applicant commenced his own printing business. He ran that business until about 2018/2019. As we have said, the accident occurred on 15 November 2012 and the knee repair surgery necessitated by the accident was performed on 10 January 2013 (again by Mr Miller).
In or about 2018, the applicant commenced work as a part-time labourer for a friend. This work became fulltime work for about two years, and involved the applicant performing various labouring works on building sites. The applicant ceased this work in approximately May/June 2021 ‘as the physical activity was affecting my knee pain and referred pain in my hip and lower back’. The applicant then commenced working as a designer, making websites and mobile apps, having undertaken a relevant course in 2019. The applicant continued to perform that work up to and including the time of trial.
In an affidavit sworn in October 2021, and adopted by the applicant in his evidence at trial, the applicant described the consequences of his right knee injury as follows:
My right knee has progressively deteriorated over the years and I have had medical treatment for referred pain into my hips. Following the revision surgery in 2012, whilst I made a recovery in that I could bicycle ride and I could also perform my other exercises, I have never been able to return back to running other than for short distances. My right knee feels weak and unstable. If I have to stop abruptly or twist my knee, I feel like it will collapse. Prior to the accident I used to play squash but following the accident when I tried my right knee simply would not hold up. It felt like, at any moment, the right knee would give way.
Prior to the accident I enjoyed playing basketball as well as playing squash. Following the accident, however, when I did try to return back to either squash or basketball my right knee did not feel right and so I was unable to continue with such activities.
I experience a lot of tightness in my hamstring because of the graft coming from the hamstring.
I have difficulty walking up and down stairs and generally lead using my left foot rather than my right.
My right knee swells if I am too active. It throbs and I take anti-inflammatory medication or Paracetamol if I have a lot of pain. If I am out with friends and dancing I have to sit after about 30 minutes in order to rest my leg and sometimes I do not return back to dancing.
I am able to walk without difficulty although if I walk for too long I do experience pain and swelling in my knee. If I do too much I experience pain and swelling in my right knee.
I am able to do all my own housework and shopping but take my time and I am careful not to aggravate my right knee.
I have difficulty squatting or kneeling because of pain in my right knee. Kneeling is something I avoid doing.
…
As it is, I have restrictions in leisure activities, particularly sporting activities such as running and exercising, playing squash and being too active with my right knee.
I find that sitting or being in confined positions for too long can actually aggravate the pain in my right knee. It becomes very stiff and sore and I find it difficult standing from a seated position because of numbness, instability and stiffness in my right knee.
…
Whilst I have been able to ride a bicycle because it has no impact on my knees, prolonged riding causes numbness and loss of feeling in the lower half of my right leg. I am also not able to run, jump, squat and unable to run long distances. I used to run every second day 6-10 kilometres prior to my injury whereas now I avoid doing so. I used to enjoy running, it was a form of recreation for me. After the second reconstruction I have reduced this as I am limited with the frequency, duration and intensity of my running.
I have difficulty kneeling and I cannot put too much weight on my right leg. I have numbness around the scar over my knee and, in addition, I feel a numbness around the right knee area where the surgery was performed. If I kneel on a particular spot on the scar it can cause a sharp shooting pain in my knee.
I find it difficult to hold certain positions on my right leg or do so for too long. If it is raised a certain way or if it is loaded a certain way I experience pain and stiffness and I can experience swelling in my right knee. The swelling seems to be getting more pronounced. This has an effect and impact on my sexual activity.
I am careful how I do things as I have learnt over the years to manage with my right knee but it is progressively deteriorating.
In a subsequent affidavit, sworn in February 2023, and adopted by the applicant at trial, the applicant said:
I continue to have good days and bad days with the weakness and instability in my knee, but I cannot trust my right knee’s stability or strength. I continue to avoid stopping abruptly, twisting my knee, or playing dynamic or contact sport because of the difficulties with my knee. I am usually very careful when having to negotiate stairs.
In the years since the transport accident I have been invited on skiing trips, but I have not gone because of the instability of my right knee. Prior to the transport accident, and despite having previously had surgery on my right knee, I was still able to play dynamic sports like football, soccer and tennis in addition to basketball and squash as I identified in my prior affidavit. I have over the years tried to test myself and get back to these sports, but each time it has been unfruitful. Recently I went to try to have a kick of the footy with my mates, but I had to stop after only a few minutes because of pain and weakness in the right knee.
I remain very impaired in my ability to run compared to before the accident. I really enjoyed it, and it was a great way for me to clear my mind. The times I have tried to run I have needed a prolonged period of recovery. As I cannot run very often, it is difficult to get my running fitness up. I really have to concentrate when I run on my knee, it is painful, and I am plagued by this constant thought that I should stop. It is no longer the therapeutic experience that it once was. I have to engage in exercise where I can avoid loading my knee, but still try and get some strength into it, like swimming and rowing. I was not a swimmer or rower before the accident. I used to love running with other people, where swimming or using a rowing machine does not deliver that same social experience.
…
I continue to experience significant swelling and throbbing in my right knee with activity, so I generally will try to avoid pushing it to the point where it swells and throbs.
The medical evidence
The medical evidence central to the resolution of the applicant’s TA Act application was contained in six medical reports: the reports of the treating surgeon, Mr Miller, dated 22 January 2022 and 16 June 2022; the report dated 12 February 2021 of Associate Professor Marinis Pirpiris, an orthopaedic surgeon; the report dated 25 October 2022 of Dr Iain McLean, a consultant orthopaedic surgeon; and the reports dated 24 January 2023 and 8 May 2023 of Mr Michael Dooley, an orthopaedic surgeon.
Mr Miller
In Mr Miller’s first report, he described the history of the right knee reconstruction he performed on the applicant in 2004. Mr Miller said that the applicant ‘enjoyed an excellent result following that and returned to full, normal activities’. Mr Miller also described the history of the injury suffered by the applicant as a result of the accident. He said that the applicant had ‘ruptured his anterior cruciate ligaments grafts’, requiring him to undergo revision surgery in January 2013. He said that the applicant had done reasonably well, but that he has had ‘ache and discomfort in the knee and feelings of weakness and insecurity, but no frank giving way’. Mr Miller said that these symptoms had caused the applicant to modify his activities ‘and he effectively confines himself to straight line activities’.
Mr Miller’s second report was produced following a clinical review on 15 June 2022. Mr Miller noted that the applicant had ‘increasing problems with ache, discomfort pain and catching in the right knee’. General examination of the right knee revealed quadriceps wasting, moderate effusion and clicking during the movement. Mr Miller said:
I thought this man had developed recurrent problems with the right knee and required right knee arthroscopy to address likely intra-articular pathology and probably in the longer term revision reconstruction.
I felt this was likely related to his motor vehicle accident …
On 15 June 2022, Mr Miller reviewed various MRIs and X-rays. An X-ray of the right knee taken on 27 January 2022 was said to show evidence of the previous ACL reconstruction surgery and ‘[m]ild degenerative changes involving the femorotibial joints’. Mr Miller said that it was too early to offer a long-term prognosis in respect of the right knee, but that he believed the current clinical status of the right knee related significantly to the effects of the accident. In relation to the requirement for further treatment, Mr Miller said:
The client will require ongoing conservative treatment including analgesics, anti-inflammatory agents and physiotherapy. In my opinion, he requires right knee arthroscopy to address the pathology and better assess the knee and it is possible he may require revision reconstruction in the future. This relates significantly to the effects of the motor vehicle accident.
Associate Professor Pirpiris
Associate Professor Pirpiris conducted a medicolegal examination of the applicant on 12 February 2021 at the request of the applicant’s solicitors. On examination, he found there was thigh wasting on the right of two centimetres. He said that the applicant suffered from crepitus, anterior knee pain and patellofemoral joint arthritis. In his report, he made the following statements:
The right knee may be supported with a brace and at some stage he may decide to have further revision anterior cruciate ligament reconstruction surgery.
…
The other issue with the knee is that he had chondropathology which is post traumatic, most likely related to the motor vehicle related incident, and as such in the setting of a knee that has had meniscectomy, revision anterior cruciate ligament reconstruction surgery and significant chondropathology with chondral ulcers, he is very much at risk of developing post-traumatic degenerative chondropathology and eventual arthritis, requiring further surgery in the future.
The management of this arthritis may be in the form of bracing, physiotherapy, simple analgesia or anti-inflammatories.
The right knee may require injections of local anaesthetic and steroid and synthetic [v]iscosupplementation.
He may require at some stage the performance of a high tibial osteotomy and if his symptomatic chondropathology and degenerative joint disease progress, he may require in the medium to long term knee replacement surgery.
…
The injury to the knee is related to the transport accident.
He has sustained issues related to a rupture of his anterior cruciate ligament.
...
He has also had thigh wasting and he has evidence of patellofemoral joint arthritis.
A little later in his report, when dealing with the issue of further treatment and the applicant’s prognosis, Associate Professor Pirpiris said:
He may also develop degenerative joint disease in the medium to long term
he may require total knee replacement surgery.
…
In the short to medium term, he will continue having pain and instability.
In the medium to long term, he may require further surgery. This may be in the form of a right knee arthroscopy for debridement of further meniscal pathology. Should he be symptomatic of the underlying chondropathology and instability, he may require a high tibial osteotomy for the management of his underlying degenerative joint disease/traumatic chondropathology and anterior cruciate ligament reconstruction.
In the medium to long term, he may develop degenerative joint disease and is likely to require a total knee replacement surgery.
We would immediately note the apparent discrepancy between the two statements in the above extract of Associate Professor Pirpiris’ report that the applicant ‘may require total knee replacement surgery’ and his opinion that the applicant ‘is likely to require total knee replacement surgery’. It may be that the second opinion is predicated on the development (or further development) of degenerative joint disease — that is, if there is a development of degenerative joint disease, then a total knee replacement is likely, rather than merely possible.
Dr McLean
Dr McLean performed a medicolegal examination of the applicant in October 2022, at the request of the applicant’s solicitors. He reviewed radiology reports, noting that an X-ray of the right knee taken in February 2022 showed mild degenerative changes involving the femorotibial joints; spurring of the patellofemoral joint; and a suggestion of a small knee joint effusion. He said that the applicant’s ongoing pain and instability was suggestive of progressive meniscochondral degenerative change and ligament insufficiency.
In respect of operative or surgical treatment, Dr McLean said that further arthroscopic surgery to the right knee would be appropriate ‘so as to undertake an examination under anaesthesia as well as by arthroscopy to define the pathology more clearly and deal with any reversible components’. He then said:
The determination of any further surgical interventions with him being just 34 years of age; is multifactorial and difficult to determine. Needing to keep in mind the above arthroscopies and ligament surgery; so that into the future, depending on those further multifactorial changes; as to whether any osteotomy may be required and then into the more distant future the definite increased risk of joint replacement surgeries at an earlier stage than would otherwise have been anticipated. As stated, these are multifactorial and difficult to determine at this stage other than being aware.
Dealing with the applicant’s social, domestic and/or recreational activities into the foreseeable future, Dr McLean said:
His current situation does however show the definite signs of quadricep/VMO muscle wasting and dysfunction; along with definite ligamentous insufficiency and with associated meniscal and chrondral pathology.
His activities for the future will be limited and with the further passage of time likely to become more limited.
Mr Dooley
Mr Dooley examined the applicant at the request of the respondent on 23 January 2023. Mr Dooley said that, given the applicant’s situation, one would expect him to note some intermittent right knee pain and soreness with a lot of kneeling and squatting. He said that a soft tissue injury to the knee that involves rupture of the ACL is a ‘significant’ injury; and that whether or not a patient undergoes ACL reconstruction surgery, the initial injury is ‘associated with a risk of the development of slowly progressive post-traumatic osteoarthritis of the knee joint, over a 20 to 30 year period’. Mr Dooley then expressed the following opinions:
From an orthopaedic point of view, it is important that Mr Connelly remains generally active and continues to undertake low impact exercise. When patients do have a risk of developing degenerative osteoarthritis of their knee joint in time, it is important that they make any necessary lifestyle changes to avoid any other associated risk with this condition, eg being overweight etc. It would appear that this will not be an issue in Mr Connelly’s situation.
…
My overall view is that Mr Connelly has recovered as well as one could expect for his right knee injuries and the condition of his right knee. He said that arthroscopy of his right knee has been recommended to him and that he is hesitant about doing this. … As outlined above, I believe that his symptoms of intermittent pain and some restriction of activity are consistent with his condition. In the absence of severe pain or of regular giving way of the knee, I would be very wary about undertaking a knee arthroscopy procedure. It is not without anaesthetic and surgical risk and should only be considered in a patient who is clearly having specific ongoing symptoms that can be related to definite pathology.
The judge’s reasons
The judge commenced her reasons for judgment by identifying the issues that needed to be determined in the TA Act application as follows:
•whether the applicant’s right knee injury was a new injury or an aggravation of an existing injury;
•what ‘pain and restriction consequences’ arose from the right knee injury; and
•whether those pain and restriction consequences satisfied the test for serious injury.[5]
[5]Reasons, [8].
After referring to the medical evidence, the judge concluded that the right knee injury suffered in the accident was a new injury, and not an aggravation of an existing injury. There was thus no need to disentangle the consequences of the earlier football injury from the injury suffered as a result of the accident. The judge said, however, that, on the evidence of Dr McLean and Mr Dooley, ‘the previous injury did increase his risk of developing future problems, including arthritis’.[6]
[6]Ibid [23].
Next, the judge said that there was no serious attack on the applicant’s credit, and that, in general, she accepted his evidence.[7]
[7]Ibid [24].
The judge then summarised the evidence under the headings ‘Other injuries’, ‘Right knee symptoms’, ‘Sporting activities’, ‘Pain’, ‘Prognosis’ and ‘Work’.[8] In the course of dealing with the applicant’s prognosis, the judge made a number of observations with which the applicant now takes issue. These included:
I take [Dr McLean’s opinion] to be, essentially, that Mr Connelly has an increased risk of developing further problems, that risk is difficult to quantify and, at this stage, he should continue to exercise and keep an eye on things with further radiology.[9]
…
The point of difference between Mr Dooley and Mr Miller is largely whether arthroscopy is currently indicated. As Mr Connelly does not intend to currently undertake arthroscopy, I put it no more highly than a risk that Mr Connelly will require medical intervention in the future.[10]
[8]Ibid [25]–[55].
[9]Ibid [46].
[10]Ibid [49].
In relation to the applicant’s prognosis, in a passage with which the applicant also takes issue, the judge concluded:
He [the applicant] does not presently have arthritis or any pathology in the right knee visible on x-ray, but is at increased risk of developing arthritis in the future, some of which risk is attributable to the injury. There is a risk that further degenerative changes, such as arthritis will necessitate further surgery.[11]
[11]Ibid [50].
In relation to the consequences of his injury, the judge observed that the medical experts agreed that the applicant should avoid work which required prolonged standing, prolonged squatting, twisting, jumping, turning abruptly, abrupt stopping or carrying heavy weights. The judge said that she accepted that the applicant was precluded from work involving those activities.[12]
[12]Ibid [55].
The judge concluded that the applicant had experienced the following pain and suffering consequences:
(a)he generally runs a shorter distance than before the accident;
(b)he runs less frequently;
(c)there is a degree of laxity in the knee and it feels unstable;
(d)he has some muscle wasting in the quadriceps;
(e)he has some pain on exercise, for example walking long distances, dancing, or undertaking other vigorous activity for more than thirty minutes;
(f)he continues to participate in multiple physical activities, but at a lower degree of agility, and is more vigilant about his knee;
(g)the focus of his physical activity has shifted from group sports to solo pursuits, such as swimming, rowing and cycling;
(h)he keeps his leg particularly still, or in a confined position, such as during a long drive or plane trip, causes aching and numbness;
(i)he has numbness around the scar and knee area. Kneeling on a particular spot on the scar can cause a sharp shooting pain. He can experience swelling in the knee;
(j)when he has pain, he uses simple analgesia;
(k)he is at increased risk of developing osteoarthritis in the knee in the future;
(l)he may require further surgical intervention in the form or [sic of] arthroscopy or other surgery, but this is difficult to determine, and multifactorial;
(m)he has physical limitations that preclude him from some work, as set out above.[13]
[13]Ibid [56].
The judge said that, having considered all of the evidence, she concluded that the consequences of the applicant’s right knee injury were ‘significant’, but not ‘very considerable’.[14] The judge gave eight reasons for this conclusion:
[14]Ibid [59].
(1)First, the judge accepted that the applicant had suffered a new injury to his right knee.[15]
(2)Secondly, the judge said:
I accept that he cannot run in the way he used to, and this is a significant loss to him. He cannot play sport in the sort of casual, carefree way he used to, and this is a significant loss to him. There is a risk that he will develop arthritis in the knee. There is a risk that he will require further surgery if he develops arthritis or the knee otherwise deteriorates. These are significant consequences for Mr Connelly. I accept Mr Miller’s opinion that the right knee injury will have a significant impact on his mobility in general and his capacity for physical, leisure and recreational activities. These impacts are largely as described by Mr Connelly, and as set out in my findings on the consequences.[16]
(3)Thirdly, the judge noted that the applicant was a ‘relatively young man and has lived with the consequences of his injury for more than ten years … during a period in his life where he could otherwise expect to be relatively pain-free and able to engage in physical activities without hesitation’; and, that because of his relative youth, he will live with those consequences ‘for a long time’. The judge said that there was also a longer period in which the applicant could potentially develop arthritis or some other deterioration in the knee; and that his exposure to this risk for a long time is also one of the consequences she considered in her assessment. As her Honour put it, ‘[t]hese consequences for Mr Connelly are more serious than for a person who has to put up with the same consequences for a much shorter period of time’.[17]
(4)Fourthly, the judge said that the analysis of the applicant’s consequences ‘must be informed by both what has been lost and what has been retained’. Her Honour then noted that the applicant has always retained full capacity to work, including being able to work full time in construction work several years after the accident; he continues to engage in social sporting activities on a very regular basis; he is unimpeded in activities of daily living; he has travelled extensively since the accident, including hiking and motor biking through various countries; his knee pain is not constant but provoked by exercise or overuse; and he takes no medication, other than the occasional Panadol or anti-inflammatory for pain.[18]
(5)Fifthly, the judge noted that, aside from some physiotherapy in the six to 12 months after his surgery in 2013, the applicant has had no treatment for his right knee post-surgery. Moreover, the fact that he has not sought treatment in respect of the right knee, strongly suggested that the knee was not a significant concern.[19]
(6)Sixthly, the judge observed that, despite the medical evidence about the applicant’s physical limitations, the applicant’s own evidence did not support a finding that he was unable to undertake labouring work of the kind he performed in 2019 and 2020.[20]
(7)Seventhly, the judge said that, there was no evidence that the loss of some employment opportunity represented a loss of flexibility in the workplace which might have represented a significant consequence to the applicant by way of pecuniary disadvantage.[21]
(8)Eighthly, the judge said that there was no evidence that the loss of some employment opportunity represented a pain and suffering or loss of enjoyment of life consequence.[22]
[15]Ibid [60].
[16]Ibid [61] (emphasis added).
[17]Ibid [62].
[18]Ibid [63].
[19]Ibid [64]–[65].
[20]Ibid [66].
[21]Ibid [67].
[22]Ibid [68].
The judge concluded her analysis by saying:
When assessing the consequences for Mr Connelly, I am satisfied that the injury has had consequences that are significant to Mr Connelly, particularly the limitations it has imposed on his social sporting endeavours. The injury has increased his risk of developing future problems, including arthritis and this is a significant risk, especially given his relatively young age.
However looking at what he has retained, as well as what he has lost, and comparing the consequences for him against the range of possible consequences, I am not satisfied that they amount to the level of very considerable.
Accordingly, Mr Connelly's application for leave to issue proceedings for recovery of damages pursuant to s 93(4)(d) of the Transport Accident Act is dismissed.[23]
[23]Ibid [69]–[71].
The standard for appellate review
In 1997, in Mobilio v Balliotis,[24] a five-member bench of this Court held that an appellate court would not interfere with a judge’s determination under s 93(4) of the TA Act, in the absence of specific error, unless satisfied that the determination was plainly wrong or wholly erroneous. Since that time, that has been the standard for appellate review applied by this Court in serious injury applications brought pursuant to the provisions of the TA Act and cognate provisions in the Accident Compensation Act 1985[25] and the Workplace Injury Rehabilitation and Compensation Act 2013.
[24][1998] 3 VR 833 (Winneke P, Brooking, Ormiston, Phillips and Charles JJA) (‘Mobilio’).
[25]With the exception of appeals which were governed by the former s 134AD of the Accident Compensation Act 1995. That section (enacted on 30 May 2000, but repealed on 10 December 2009) required the Court of Appeal, on the hearing of an appeal from a determination under s 134AB(16)(b) of that Act, to ‘decide for itself whether the injury [was] a serious injury’.
Broadly speaking, the decision in Mobilio was based on two propositions: first, that a judge entertaining a serious injury application was engaged in an exercise which is similar in nature to the one where a judge is assessing damages for non-economic loss in a personal injury case;[26] and secondly, that a serious injury decision is one which involves elements of fact, degree and value judgment.[27]
[26]Mobilio [1998] 3 VR 833, 835 (Winneke P), 841 (Brooking JA) and 858 (Phillips JA).
[27]Ibid 842 [Brooking JA), 853 (Ormiston JA), 858 (Phillips JA) and 860 (Charles JA).
More recently, in Thapa v Transport Accident Commission,[28] this Court questioned whether, in the light of the decision of the High Court in Minister for Immigration and Border Protection v SZVFW,[29] it might be necessary to reconsider the standard for appellate review of serious injury determinations.[30] Notwithstanding that invitation, the parties in that case were content to have it determined on the Mobilio standard, as appears to have also been the case in those serious injury appeals heard in this Court subsequent to the delivery of judgment in Thapa.
[28][2021] VSCA 239 (Beach, Kaye and Kennedy JJA) (‘Thapa’).
[29](2018) 264 CLR 541, 555–563 [29]–[50] (Gageler J), 591–2 [150]–[151] (Edelman J) (‘SZVFW’).
[30]Thapa [2021] VSCA 239, [64]–[65] (Beach, Kaye and Kennedy JJA).
In November 2023, the High Court delivered judgment in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore.[31] That case involved an application by a defendant for a permanent stay of a civil proceeding on the basis that the proceeding was an abuse of process. The primary judge refused the stay application. The Court of Appeal reversed the primary judge’s ruling on the basis that the primary judge had erred in exercising his discretion not to dismiss the proceeding as an abuse of process. The plaintiff then appealed to the High Court.
[31][2023] HCA 32; (2023) 97 ALJR 857 (Kiefel CJ, Gageler, Steward, Gleeson and Jagot JJ) (‘GLJ’).
In the High Court, there were two issues: first, the applicable standard for appellate review of an order of a court permanently staying proceedings on the ground that a trial will be necessarily unfair or so unfair or oppressive to the defendant as to constitute an abuse of process; and secondly, in the circumstances of the case, whether the plaintiff’s proceeding involved an abuse of process justifying a permanent stay of the proceeding.[32] It is the first issue that is relevant in the present case. In GLJ, the High Court held that the applicable standard for appellate review was the ‘correctness standard’ identified in Warren v Coombes.[33]
[32]GLJ (2023) 97 ALJR 857, 862 [1]–[2] (Kiefel CJ, Gageler and Jagot JJ).
[33](1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ).
In coming to that conclusion, the High Court said that, while the exercise of power to permanently stay a proceeding on the ground that it is an abuse of process is an evaluative one, it is not a discretionary decision. Accordingly, the applicable standard of appellate review is not that specified in House v The King;[34] it is the ‘correctness standard’ as explained in Warren v Coombes. As the plurality put it:
As explained below, an exercise of power under s 67 of the Civil Procedure Act to permanently stay proceedings on the ground that they are an abuse of process as any trial will be necessarily unfair or ‘“so unfairly and unjustifiably oppressive” as to constitute an abuse of process’ is an evaluative but not a discretionary decision. Proceedings either are or are not capable of being the subject of a fair trial or are or are not so unfairly and unjustifiably oppressive as to constitute an abuse of process. Accordingly, the applicable standard of appellate review is not that specified in House v The King, but the ‘correctness standard’ as explained in Warren v Coombes.
…
The reasoning in House v The King applies to judicial decisions involving an exercise of discretion. It has been said that the concept of a ‘discretion’ is ‘apt to create a legal category of indeterminate reference’, but the presently relevant essential characteristic of a discretionary judicial decision is that it is a decision where more than one answer is legally open. In Norbis v Norbis, for example, the power of a court to make an order altering the interests of parties to a marriage was characterised as a judicial discretion because the decision called for ‘value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right’. The line separating discretionary decisions (in which appellate review is confined to the House v The King standard) and other decisions (in which the ‘correctness standard’ applies) was identified as that between questions lending ‘themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions’ in which event ‘it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance’, and questions to which there is but one legally permissible answer, even if that answer involves a value judgment.[35]
[34](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ).
[35]GLJ (2023) 97 ALJR 857, 865–6 [15]–[16] (Kiefel CJ, Gageler and Jagot JJ) (emphasis added). See also 881 [95] (Steward J) and 892 [161] (Gleeson J).
There can be no doubt that, like the permanent stay decision the subject of GLJ, a decision of whether an injury satisfies the ‘very considerable’ test is an evaluative one. That said, it is a decision that admits of only two answers: either the injury is a serious injury as defined in the TA Act, or it is not. Unlike cases such as Norbis v Norbis,[36] referred to by the plurality in GLJ,[37] or cases involving the assessment of damages for non-economic loss in a personal injury proceeding, there is not a range of legitimate and reasonable (or correct) answers that might be given to the question of whether a particular injury has satisfied the very considerable test. To use the words of the plurality in GLJ again, there is ‘but one legally permissible answer, even if that answer involves a value judgment’.[38]
[36](1986) 161 CLR 513 (Mason, Wilson, Brennan, Deane and Dawson JJ).
[37](2023) 97 ALJR 857, 866 [16] (Kiefel CJ, Gageler and Jagot JJ).
[38]Ibid.
An appeal to this Court is an appeal by way of rehearing. As has been said many times before, an appeal by way of rehearing requires this Court to conduct a real review of the evidence and, while observing the natural limitations that exist in the case of any appellate court proceeding wholly or substantially on the record, to give the judgment which in its opinion ought to have been given at first instance. As the plurality put it in Fox v Percy,[39] if, making proper allowance for the advantages of the trial judge, an appellate court concludes that error has been shown, that court is authorised, and obliged to discharge, its appellate duties and give the judgment which ought to have been given at first instance.[40]
[39](2003) 214 CLR 118, 127–8 [27] (Gleeson CJ, Gummow and Kirby JJ).
[40]Ibid 125 [23], 127-8 [27] (Gleeson CJ, Gummow and Kirby JJ). See also Lee v Lee (2019) 266 CLR 129, 148–9 [55] (Bell, Gageler, Nettle and Edelman JJ).
It follows that, at least since GLJ, the approach mandated by Mobilio, requiring an appellant in a serious injury appeal to show that, in the absence of specific error, the decision below was plainly wrong or wholly erroneous, cannot be maintained. On the authority of GLJ, the applicable standard is the correctness standard as explained by the High Court in Warren v Coombes.
Did the judge err in dismissing the TA Act application?
In his three proposed grounds of appeal, the applicant makes a complaint of specific error that the judge misapprehended the medical evidence and/or failed to consider all of it (proposed ground 1); asserts that the judge failed to provide adequate reasons (proposed ground 2); and contends that, on a proper analysis of all of the evidence, her Honour erred in failing to conclude that the applicant’s right knee injury satisfied the ‘very considerable’ test (and therefore fell within the TA Act definition of ‘serious injury’) (proposed ground 3). It is convenient to deal with all three proposed grounds together as, to some extent, they are interrelated.
That said, we should commence our analysis by saying that there is absolutely no substance in proposed ground 2. Her Honour’s reasons are exemplary. They are a model of clarity, setting out in detail the issues, the evidence, her Honour’s findings and the reasoning that led to those findings. No more was required by the judge to discharge her Honour’s obligation of providing reasons for her decision.
The applicant’s arguments under proposed ground 1 involved a detailed analysis of individual sentences and words used by the medical experts in the medical reports to which we have already referred. Rather than setting out slabs of those reports, her Honour endeavoured to provide a comprehensible summary of the critical medical opinions. This was not an easy task, because the language used by the medical experts in their reports was not always internally consistent and, in at least two instances, might be said to be contradictory.
While we could spend time parsing the medical reports and the Reasons in order to determine whether any differences of expression had any material effect on the judge’s reasoning and her ultimate conclusion, it seems to us that the more productive course in this case is to determine whether, having conducted a real review of the evidence, we think that the judge erred in dismissing the TA Act application.
The question to be asked at first instance was whether the right knee injury the applicant sustained in the accident, when judged by comparison with other cases in the range of possible impairments or losses, could be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’ (the ‘very considerable test’).[41]
[41]Humphries [1992] 2 VR 129, 140 (Crockett and Southwell JJ).
As we have already observed, the applicant’s credit was not in issue before the judge. Indeed, as the judge put it, he made appropriate concessions against his own interests in the course of his cross-examination.[42] Moreover, as her Honour said, in general, she accepted the applicant’s evidence.[43] Indeed, so much is plain from her Honour’s findings at Reasons [56] and [61].[44] In the circumstances, we think that the judge enjoyed little (if any) advantage over this Court in determining whether the evidence showed that the applicant had sustained a serious injury. True it is that the judge had the benefit of seeing the applicant cross-examined, but nothing of great moment seems to have turned on that. Moreover, at least so far as the medical evidence is concerned, there is no doubt that we are in as good a position as the judge to determine what conclusions should be drawn from it.
[42]Reasons, [24].
[43]Ibid.
[44]See [29] and [30(2)] above.
The judge identified a number of important consequences which she described as ‘significant’. At the time of trial, those significant consequences had already been suffered by the applicant for ten years and/or were consequences from which he would suffer for the many decades remaining in his life. As the judge correctly noted, the length of time from which an injured person might suffer from particular consequences is a relevant consideration in determining whether, on the whole of the evidence, those consequences could collectively be described as very considerable.[45]
[45]Reasons, [62].
Notwithstanding the difficulty of parts of the language used in several of the medical reports, it seems to us that the medical evidence established that the applicant suffered from a significantly disabling condition affecting his right knee, and that that condition would likely progress and deteriorate over the remainder of his life. Moreover, there is a real risk that the progression of his injury will ultimately lead to him having to have surgery — be it in the form of a high tibial osteotomy or a total knee replacement.
While it is important to undertake the analysis performed by the judge of seeing ‘what remains’ so far as the applicant’s incapacity is concerned, that analysis must be seen in the context of what has been, and will be, lost. Synthesising all of these matters for ourselves, we are persuaded that the applicant’s right knee injury meets the very considerable test — remembering that it is the consequences for the applicant which are the focus of the analysis. We are thus persuaded that the judge erred when she determined that the applicant’s injury was not serious within the meaning of the TA Act. Moreover, we would reach the same conclusion even if we thought the medical evidence only showed that there was a possibility that the applicant’s condition would deteriorate and a consequently lesser possibility that surgery might be required in the future.
Put shortly, in the circumstances of this case, the various consequences found by the judge to have been suffered by the applicant were, of themselves, enough to mandate a conclusion that the applicant had suffered a serious injury. While each consequence when looked at individually may only have fairly been described as ‘significant’, when considered collectively, and bearing in mind both the length of time the applicant will suffer from his injury and the importance to the applicant of each of the losses identified, there is little doubt that the applicant’s injury is very considerable.
Conclusion
For the above reasons, the application for leave to appeal must be granted, the appeal must be allowed, and the orders of the judge must be set aside. In their place, there will be an order granting the TA Act application. Having not yet been determined at first instance, the applicant’s application under s 23A of the LOA Act must be remitted to the County Court for further hearing and determination.
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