Davidson v Transport Accident Commission
[2015] VSCA 12
•13 February 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2014 0103 | |
| BRONWYN DAVIDSON | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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JUDGES: | ASHLEY, WHELAN and BEACH JJA | |
WHERE HELD: | BENDIGO | |
DATE OF HEARING: | 9 February 2015 | |
DATE OF JUDGMENT: | 13 February 2015 | |
MEDIUM NEUTRAL CITATION: | [2015] VSCA 12 | |
JUDGMENT APPEALED FROM: | [2014] VCC 1130 (Judge Macnamara) | |
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ACCIDENT COMPENSATION – Transport accident – Serious injury application – Fractured wrist – Consequences of impairment – Application for leave to appeal from order dismissing serious injury application – Application granted – Appeal allowed – Transport Accident Act 1986, s 93.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J M Forbes SC with Mr M J Hooper | Riordan Legal Pty Ltd |
| For the Respondent | Mr J Ruskin QC with Mr S E Gladman | Wisewould Mahony |
ASHLEY JA
WHELAN JA
BEACH JA:
Introduction
On 24 January 2009, Ms Bronwyn Davidson, the applicant, was involved in a transport accident when a motor vehicle in which she was travelling as a front seat passenger left the roadway and collided with a tree. Immediately before impact, the applicant, in an attempt to protect her face from hitting the dashboard, braced herself by placing her left hand on the dashboard. As a result of the accident, the applicant suffered a fracture of the distal radius and a fracture of the ulnar styloid process of her left wrist.
By an originating motion filed in the County Court on 21 June 2013, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’), to bring proceedings at common law claiming damages for the injuries she sustained as a result of the accident. The application was heard in the County Court at Shepparton on 9 and 10 July 2014. At the hearing of the application, the applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Act — namely, ‘serious long-term impairment or loss of a body function’. The body function relied upon by the applicant was the function of the left wrist.
On the hearing of the application, the applicant relied upon two affidavits sworn by herself; an affidavit sworn by the applicant’s mother, Marita Davidson; an affidavit sworn by the applicant’s former secondary school teacher, Julie Wikman; an affidavit sworn by the applicant’s former secondary school career advisor, Kerrie Raglus; and an affidavit sworn by a chef working in Shepparton, Timothy Guppy. The applicant also relied upon various medical and radiological reports. In addition to medical reports prepared by the applicant’s treating doctors and medico-legal specialists retained by the applicant’s solicitors, some of the medical reports tendered by the applicant were medical reports prepared by medico-legal specialists retained by the respondent. The applicant also tendered colour photographs of a surgical scar on her left wrist. The respondent did not tender any evidence. The only witness to give viva voce evidence at the hearing of the application was the applicant.
On 22 July 2014, the judge dismissed the applicant’s application.[1]
[1]Davidson v Transport Accident Commission [2014] VCC 1130 (‘Reasons’).
Last Monday (9 February 2015), following the hearing in Bendigo of the applicant’s application for leave to appeal, we indicated to the parties that we would make orders in Melbourne today giving the applicant leave to appeal, allowing the appeal, and ordering (in lieu of the orders made in the County Court) that the applicant have leave pursuant to s 93(4)(d) of the Act to commence a proceeding for damages in respect of the injuries she sustained in the accident. These are our reasons for making the orders we foreshadowed on Monday.
Background facts
The applicant was born on 5 June 1990 and was 18 years of age at the time of the accident. In 2007, she completed year 11 at Rushworth College by undertaking what is known as the ‘VCAL program in Hospitality’. As part of her VCAL studies, the applicant went to school three days per week and worked two days per week at the Overlander restaurant as a kitchen hand. The applicant also began working at the Overlander part-time on weekends. The applicant ceased working at the Overlander when school finished just before Christmas in 2007. She gave evidence that she was supposed to be offered an apprenticeship for the following year, but no offer was made.
The VCAL program in Hospitality was a two year program. However, the applicant decided not to continue with the program in 2008. In evidence, the applicant said she did not know why she did not continue with the program.
The applicant did not obtain an apprenticeship in hospitality during 2008. In December 2008, she moved to Melbourne with the intention of obtaining a job in the hospitality industry. On 24 January 2009, the accident occurred. In the 12 months before the accident, despite the applicant’s best efforts to find employment, the applicant was unemployed.
After the accident, the applicant returned to Murchison to live with her parents. In April 2009, she began studying at the Adult Centre for Education in Shepparton for a Certificate III in General Education (an equivalent to a year 12 qualification). In November 2009, the applicant obtained that certificate.
In January 2010 the applicant commenced a part-time Law and Liberal Arts course at the Adult Centre for Education in Shepparton. However, in about August 2010, the applicant was unable to continue this course when her car engine ‘blew up’ and she did not have sufficient funds to get the car back on the road.
Since the accident, the applicant has continued to seek work. The applicant:
(a)obtained a work trial at FoodWorks in Tatura in late 2010, but that ‘didn’t work out’ because of her ‘trouble with transport’ at the time;
(b)obtained a three day work trial as a kitchen hand at a roadhouse, but was unable to commit to the job because of left wrist pain;
(c)obtained a one week work trial at Darrell Lea in October 2012, where the duties caused a great deal of pain in her wrist; and
(d)at the time of the County Court hearing, was shortly to commence work as an independent consultant to a new business doing parties and selling adult toys.
In January 2013, the applicant gave birth to a son. The applicant gave evidence that she had the necessary wrist strength to pick up her baby, and that she has cared for her son since his birth — but not as she would like to because of her injury.
At the time of the hearing, the applicant lived alone with her son in rental accommodation in Tatura. She did the shopping, cooking and cleaning and tried to do some gardening. The applicant said that she had a few friends in the area, but little social life. She said that most of the time she stayed at home with her son. She said that in caring for her son, she was assisted on a day to day basis by her family and by her son’s father. The applicant said that she could do most of the activities of daily living, albeit slower than before the accident and sometimes with assistance with things such as her hair.
On the day of the accident (24 January 2009), the applicant was taken to the Northern Hospital where her left wrist was x-rayed, confirming a transverse fracture through the distal radius with prominent posterior displacement and prominent posterior angulation of the distal fragment. The fracture was manipulated under anaesthetic and plastered, and the applicant was discharged for review.
On 17 February 2009, following review, the applicant was admitted to the Northern Hospital, where an open reduction and internal fixation of the fracture was performed together with a bone graft. The fracture was reduced and fixed with a volar plate, and a bone graft was placed in the fracture site.
On 23 June 2009, the applicant was reviewed by her general practitioner, Dr Leslie. The applicant complained that she had been very anxious since the accident if she was a passenger in a car, and that she had been having nightmares regarding the accident. Further x-rays were performed, and the applicant was referred to an orthopaedic surgeon, Mr Critchley. In addition, the applicant was referred for psychological treatment. However, it appears that the applicant only attended two initial appointments in respect of this treatment.
Following examination by Mr Critchley, it was determined that the applicant should have the plate in her wrist removed. This procedure was undertaken on 12 August 2010. On 30 August 2010, Mr Critchley reviewed the applicant and noted that she was beginning to mobilise her wrist well.
In cross-examination, the applicant agreed that her left wrist had improved after the operation in August 2010. It was put to her that she had reported on examination in late 2010 that her wrist was ‘essentially functioning well’. The applicant said that this was ‘a bit of an overstatement’.
It was put to the applicant that following her surgery in 2010 she had taken very little pain killing medication. The applicant said that she had tried Panadol, Panadol Osteo, Nurofen, Nurofen Plus and Panamax. In explanation for failing to consult her general practitioner about her wrist in 2011, 2012 or 2013, the applicant said that this was because there was ‘nothing new to report to him’ and because she kept being told that ‘there’s nothing they can do about it’. However, the applicant saw her general practitioner in 2014 because ‘pain was ongoing and it’s aching more’ and she ‘needed to have x-rays done and stuff to see if there was any change’. The applicant said her symptoms in 2014 were the same as they had been in 2011, 2012 and 2013.
The medical evidence
The parties filed an agreed summary of facts and issues on this application. The following summary of the medical evidence is largely taken from the parties’ agreed summary.
In support of the claim the applicant relied on reports from her treating doctors:
(a)Dr Leslie, whose reports were tendered together with an extract of his records, had certified the applicant as being fit for light duties not requiring repetitive movements of her left forearm between January and April 2010.
(b) Mr Critchley who stated that:
(i)at his last review in December 2010, the applicant had reported that she had intermittent pain in her wrist, but that the wrist was essentially functioning well;
(ii)the applicant’s range of wrist flexion had significantly improved following removal of the plate;
(iii)the applicant had done well considering the nature of the injury and the range of motion of the wrist was only slightly impaired;
(iv)the applicant’s grip strength was impaired;
(v)it was likely that the applicant would develop degenerative disease of the wrist in the future, and that may or may not impact significantly on her wrist function; and
(vi)strenuous use of the applicant’s wrist was likely to cause discomfort, and any occupation requiring such use would probably be unsuitable for her.
In support of the claim the applicant also relied on medico-legal opinions obtained on her behalf from:
(a)Mr Damian Ireland, hand surgeon, who examined the applicant in 2010 and 2014. In 2014, he stated that:
(i)according to the applicant, the operation in August 2010 resulted in increased movement and less pain, but weakness of grip remained;
(ii)his diagnosis was left wrist dysfunction due to early traumatic arthritis;
(iii)she had difficulties with the normal activities of daily living which were exacerbated by caring for her 18 month old baby;
(iv)there was no current indication for further treatment and, although it was possible that further surgical treatment may be necessary, he doubted that any surgery would be considered within the next 10 years;
(v)on present information any future surgery would take the form of a limited wrist arthrodesis;
(vi)there was likely to be indolent progression of symptoms with increasing discomfort and diminished movement as the traumatic degenerative changes progressed;
(vii)she would be incapable of work that required her to constantly lift loads in excess of 10 kg, even as a bimanual task. She would be able to lift loads up to 5 kg in an unrestricted manner and be able to lift loads of up to 10 kg using both hands on a limited basis; and
(viii)with an understanding employer, he did not see that these physical limitations would preclude the applicant from pursuing an apprenticeship as a baker.
(b)Mr Anstee, plastic surgeon, who examined the applicant in January 2010, and who provided a supplementary opinion in March 2011. He opined that the range of movement of the left wrist was reduced, and that the scar was stable and excited unnecessary comment as being associated with episodes of self-harm. In his supplementary report he commented on photographs of the scarring after the surgery to remove the plate had been performed and considered that there may have been some deterioration in the appearance of the scar.
(c)Mr Moran, orthopaedic surgeon, who examined the applicant in July 2010. He noted grip strength weakness, stiffness and a hypersensitive scar, and opined that the applicant might benefit from the removal of the metal from the wrist.
(d)Professor Stephen Davis, neurologist, who examined the applicant in January 2010, and who stated that on examination the applicant had restricted flexion at the left wrist but no compromise of peripheral nerve function. The fracture gave her an increased risk in the future of developing carpal tunnel syndrome, but this was not evident at the time of the examination.
(e)Dr Epstein, psychiatrist, who examined the applicant in March 2010, and who opined that she continued to have some features of traumatisation coming from the accident and had developed a mild chronic adjustment disorder with depressed mood. He attributed half of a 10 per cent psychiatric impairment as a primary impairment. She told him that she had attended for assessments at Goulburn Valley Mental Health Services but had become disenchanted. She stated that she had not had any ongoing psychiatric or psychological treatment or counselling.
(f)Ms Sue Sloan, neuropsychologist, who undertook an assessment in January 2010 which revealed that the applicant was functioning in the low average to average range on the majority of cognitive tasks administered but that areas of weakness identified were long-standing and unrelated to the accident.
The applicant relied on the following medico-legal opinions which had been obtained by the respondent:
(a)Mr Buntine, plastic and hand surgeon, who examined the appellant in 2014. He stated that:
(i) the applicant told him that ‘she was prescribed an anti-depressant by her local doctor but that she stopped taking it in 2011’, and that her depression largely settled after the birth of her child;
(ii)on examination, there was considerable limitation in flexion of the wrist and a weakness of grip strength;
(iii)the circumference of the left forearm was only 1.5 cm less than that of the right forearm, which was consistent with diminished use of the left hand and arm and with a weakened left hand grip but not with the measured left hand grip of only 3 kg (compared to 30 kg in the right hand);
(iv)he found no evidence that the applicant suffered from carpal tunnel syndrome;
(v)hand therapy could possibly help the applicant, even at this stage;
(vi)his impression was that she would like to undertake work but that it would be very difficult for the applicant to obtain work or to train for work because opportunities were limited where she lived and it would be difficult for her to move to an area where her opportunities would be better because of her reliance on her family and friends to look after her baby;
(vii)his impression was that problems of a physical nature caused by abnormality of her left wrist played a relatively minor role (which he estimated as 20% contribution) in the causation of her present difficulties;
(viii)young people who sustain a wrist injury not infrequently experience pain and limitations that make it difficult or impossible for them to continue certain physical recreations and that may limit the types of work they are capable of undertaking such that they avoid work that places stress upon the injured wrist and hand, but a person such as the applicant would normally be able to obtain productive work even though this may mean changing her place of residence; and
(ix)subject to the qualification that he would be assisted by radiological evidence as to the wrist, the applicant would be physically able to undertake a wide range of unskilled work, and could physically work in positions including retail sales, child care and clerical work, if not for pregnancy, childcare commitments and place of residence.
(b)Dr Baker, specialist in occupational medicine, who was asked to report on the applicant’s medical condition and work capacity in 2012 and 2013. In 2012, Dr Baker stated that she had a good range of movement of the left wrist and reduced grip strength in the left hand. He recommended a vocational assessment be undertaken to identify appropriate work that would not place an undue strain on the non-dominant left arm and hand. In 2013, Dr Baker stated that:
(i)the applicant told him that her left wrist was better than when she saw him in 2012, and she estimated that she had a 70 to 80 per cent work capacity;
(ii)on examination, there was a reduced range of movement of the left wrist and the grip strength in her left hand was weak;
(iii)on visual inspection there appeared a minor deformity of contour suggesting malunion, but he had not seen x-rays to confirm this;
(iv)while it appeared that there may have been discussions with her general practitioner about antidepressant medication, she had refused to take any such medication;
(v)she had a capacity to work with her left arm as noted by other assessors;
(vi)she had the ability to undertake some cooking work and could work full-time in a small kitchen;
(vii)she was unable to work in a large kitchen because she could not lift or move heavy pots or pans;
(viii)with further training, she could undertake bookkeeping work or work in a call centre; and
(ix)her baby is an impediment to her returning to work.
The Judge’s Reasons
The judge commenced his reasons with a summary of the background of the applicant’s application. The judge then set out relevant legal principles, including passages from the judgments in Humphries v Poljak[2] and Richards v Wylie.[3]
[2][1992] 2 VR 129.
[3](2000) 1 VR 79.
Next, his Honour set out and discussed the relevant expert evidence tendered by the applicant, before coming to his conclusions. In dismissing the applicant’s application for leave to commence a proceeding, the judge said:
At the forefront of the plaintiff’s case for leave to bring a damages claim in accordance with s 93 was the contention put by her counsel … that Ms Davidson had been deprived by the accident of the career to which she aspired as a chef. Ms Davidson’s mother spoke of her daughter’s ‘passion for food preparation’. In her affidavit she said:
I am very confident that but for her accident Bronwyn would by now be a qualified chef.
[The plaintiff’s counsel], in presenting the plaintiff’s case, relied on an affidavit from a Mr Guppy who is the chef and proprietor of Friar’s Café, a well-known eating establishment in Shepparton. He described his own career path to becoming a chef and a restaurant proprietor. He said that working in a kitchen does not involve heavy lifting.
However, because the work is very rapid and intense, it is critical to have good wrist function and to be able to exert strength through the wrist.
He stressed the psychologically demanding nature of work in a restaurant kitchen and continued:
Any significant injuries to the arms or hands will cause significant problems for a person hoping to work in a professional kitchen. If a person had restricted wrist movement or could not use their wrists in a strenuous or repetitive manner, or knew they would be prone to carpal tunnel syndrome, I would recommend they consider another line of work.
[Plaintiff’s counsel] submitted that, whilst an established chef of seniority might be able to continue despite a wrist injury such as Ms Davidson has suffered because of his or her ability to demand some of the heavier work be carried out by more junior people in the kitchen, this would not be a practicable scenario for a person like Ms Davidson who has not qualified and is not established in the trade and would have to ‘come up through the ranks’ doing the heavier work.
I accept that Ms Davidson’s wrist injuries now preclude her from becoming a chef on purely physical grounds. It was not suggested that the restriction of palmar flexion of the left wrist would be problematic but the loss in grip strength and the inevitable tendency to ‘favour’ the left wrist because of pain, would be incompatible with her now establishing herself as a chef.
The more difficult question is whether, had the accident not occurred, she would have achieved her ambitions. Her year’s work as a part time kitchen‑hand at the local area hotel in 2007 did not convert into an apprenticeship as a chef. It may be that this reflected adversely on her performance in the work in 2007 or it may be, as Ms Davidson believes, that she was ‘led on’ with the expectation of an apprenticeship to enable the hotel proprietors to have the advantage of her work in 2007 at the cheap price of $5 per hour. Whichever is the correct interpretation, it goes to underline the difficult path which lies before an aspiring young chef. It seems far more than merely a passion for the preparation of food is required. In January 2009 when the accident occurred, there was little to indicate that Ms Davidson was going to be able to fulfil her ambition.
Her work in the food industry in 2007 had proved abortive. Of her situation in 2008, her mother said:
I remember she seemed to drift somewhat after this [the failure to obtain an apprenticeship as a chef] happened, and this was aggravated by her lack of success in finding an apprenticeship after moving to Melbourne before the accident.
On the eve of the accident in January 2009, there seemed little to indicate that her life would not roll over into a further year of ‘drift’. In these circumstances I cannot make a finding that Ms Davidson would have achieved her ambition to be a chef but for the accident on 24 January 2009.
The defendant placed great reliance on the birth of Ms Davidson’s son, Seth. Through its counsel … it contended that this consideration demonstrated that Ms Davidson had not been deprived of a career opportunity as a result of the accident.
A plaintiff in the situation of the nursery rhyme character ‘the old woman who lived in a shoe … who had so many children that she didn’t know what to do …’ might be regarded as having opted out of the paid employment market for an indefinite period. Ms Davidson’s situation is very different. She has completed a single pregnancy and is now caring for her infant son. There is no reason to think that she will rear so large a family that she will be out of the employment market into the indefinite future. Mothers, particularly single mothers, these days make early returns to paid employment. There are many means to achieve this aim. There is a formal Government sponsored child care regime. There are informal arrangements for child care made with friends and family members. Children go to kindergarten and to school. These days, maternity often marks only a brief interval out of paid employment. A woman who suffers injury in a transport accident so as to preclude her from paid employment suffers significant consequences for the purposes of s 93 of the Transport Accident Act, even if she is, for the moment, out of the employment market because of maternal duties.
Nevertheless, Ms Davidson’s maternity is of some significance in the present case. Aside from some short term trials, she has been out of paid employment since her transport accident. In itself, this might support a finding that the consequences of the injury have deprived her of the opportunity for employment. Mr Buntine, it will be recalled, felt that Ms Davidson would be able to undertake a wide range of unskilled work, but that her duties as a mother precluded her from taking up those opportunities as of this year. I accept his evidence in this regard. Further, as Mr Jens submitted, the last trial employment undertaken by Ms Davidson in October 2012 found her six months into her pregnancy. These days, there are both State and Federal statutes prohibiting a range of discrimination. Nevertheless, whatever the law might say, it seems unlikely that an employer would wish to appoint as a permanent employee someone who, within a short couple of months, would be required to depart on maternity leave. The attitude of an employer to an applicant in those circumstances would be quite different to the employer’s attitude to a long-serving and established employee. It follows that I do not accept that Ms Davidson’s absence from the workforce since the transport accident in itself proves that her capacity for employment was destroyed by the accident. Her employment prospects have been limited but not too drastically. She said she was about to commence work marketing ‘adult products’ using a program similar to the ‘Tupperware Party’ plan.
Before the accident Ms Davidson played netball and did some boxing. I accept that her wrist injury rules both of these sports out now. The evidence did not suggest these sports were of great significance in her life. Frequently, in the transition from adolescence to adulthood, people drop out of organised sport. In Ms Davidson’s case it seems unlikely that a mother with an infant son would continue boxing. The loss of these recreations is an adverse consequence of her injury, but not an especially grave one.
I accept that Ms Davidson continues to suffer significant pain in her left wrist. The medical and surgical advice she has received is that no further treatment is now appropriate or likely to hold out any hope of relief. She has for the last several years for the most part been able to get by with over-the-counter analgesic medication without resort to prescription drugs. This has changed more recently, presumably because of the additional stress placed on her wrist by her maternal duties. In terms of the formulation in Humphries v Poljak, I accept that the pain and suffering employment and recreation consequences of her injury are significant and perhaps marked, having regard to the range of other injuries and their consequences. I do not, however, accept that they merit the description of ‘very considerable’ which would be necessary for the success of this application. Arthritis has begun to develop but its progress is not suggested to be rapid.
The final matter relied on by [plaintiff’s counsel] was the scar on Ms Davidson’s left wrist. The problem as disclosed by the evidence is that a casual observer may conclude that Ms Davidson has engaged in a suicide attempt or other act of self-harm. I viewed the scar myself. It does not seem to me to be especially prominent. Ms Davidson complained of hypersensitivity and this clearly does have certain pain and suffering consequences. Nevertheless, it does not appear that, in the absence of some mishap, it creates much restriction upon her ability to carry out her daily living activities or to engage in employment. Moreover, as Mr Jens submitted, the scar as a piece of disfigurement, is properly to be considered under paragraph (c) of the definition of serious injury which is not relied upon for the purposes of the present application. The considerations relative to the scar, therefore, do not alter the conclusions that I have reached based on the other material.
Since the statutory test, as interpreted by the Full Court in Humphries v Poljak, has not been met, this application must fail.[4]
[4]Reasons [59]–[73].
The applicant’s complaints
The applicant makes five complaints about the judge’s decision. Those complaints may be summarised as follows. First, the applicant complains about the judge’s evaluation of the question of whether or not the applicant sustained a serious injury.
Next, the applicant makes three complaints of specific error, submitting that the judge erred in:
(a)failing to have any regard for the significance of the loss of the opportunity to work as a chef as a consequence to the applicant;
(b)considering that parental responsibilities presently precluded the applicant from taking up work opportunities (which consideration is then said to have caused the judge to fail to make relevant findings as to the diminution of the applicant’s work capacity attributable to her injury); and
(c)erroneously approaching his task by evaluating the gravity of each consequence individually, and omitting consideration of the mental or behavioural consequences flowing from the injury.
Finally, complaint is made that the judge did not give adequate reasons for dismissing the applicant’s claim in light of the findings of fact that the judge made regarding the applicant’s injury.
Loss of the ability to work as a chef
The applicant submits that the judge erred in his treatment of the issue of the loss of her ability to work as a chef because of her left wrist injury. The judge said that having regard to the applicant’s pre-accident circumstances he could not make a finding that the applicant would have achieved her ambition to be a chef but for the accident.[5] The applicant submits that the loss of her ability to become a chef was a matter properly to be taken into account even if it could not be said on the balance of probabilities that the applicant would have in fact engaged in such work in the future.
[5]Reasons [66].
The judge accepted that the applicant’s wrist injury precluded her from becoming a chef ‘on purely physical grounds’.[6] However, he went on to say that the ‘more difficult question is whether, had the accident not occurred, [the applicant] would have achieved her ambitions [of becoming a chef or working in a professional kitchen]’.[7] The judge’s later expressed conclusion[8] that he could not make a finding that the applicant ‘would have achieved her ambition to be a chef but for the accident on 24 January 2009’ underscores the fact that the judge, in saying that the more difficult question was whether the applicant would have achieved her ambitions but for the accident, posed for himself, and then answered, the wrong question. As was fairly conceded by the respondent, the applicant was not required to show on the balance of probabilities that she would have become a chef but for the accident. The applicant was entitled to claim (as she did before the judge) that a significant consequence of her impairment was the loss of an opportunity to become a chef. In order to make good that claim, the applicant was required to satisfy the judge that, but for the accident, the prospect of her becoming a chef was more than speculative. So much was, as we have said, accepted by the respondent.[9]
[6]Reasons [63].
[7]Reasons [64].
[8]Reasons [66].
[9]Respondent’s outline of submissions dated 4 December 2014, paragraph 7.
It is hard to criticise the judge for posing and answering the wrong question. The judge was led into this error by a submission made by counsel for the respondent[10] in his final address, that ‘on the balance of probabilities the Court ought not be satisfied that [the applicant] probably has lost a career in the catering business’. The fact of this submission (uncorrected by the applicant’s counsel before the judge) further underscores that, the judge, in saying that he could not make a finding that the applicant ‘would have achieved her ambition to be a chef’, posed and answered too stringent a question, which then prevented him from giving appropriate consideration to the relevant question, being the significance of the loss of any more than a merely speculative prospect that the applicant had of becoming a chef but for her accident.
[10]Not counsel who appeared in this Court.
In the result, we accept that the judge erred in failing to give appropriate consideration to the applicant’s claim that she had suffered a very significant consequence of her injury by now being deprived of the prospect of engaging in the career to which she once aspired.
In seeking to contend that the applicant’s stated career applications were speculative, the respondent pointed to the applicant’s school history, the applicant’s failure to complete the second year of the VCAL program, the applicant’s failure to secure an apprenticeship and the applicant’s lack of employment in the 12 months prior to the accident. However, the question of the prospects the applicant had in pursuing her chosen career path needs to be assessed in the light of the applicant’s age. The applicant was, after all, only 18 years of age at the time of the accident. Not every commencement of every career is a smooth one. In our view, properly analysed, the applicant’s prospects of obtaining a career as a chef or in a professional kitchen were significantly more than ‘merely speculative’.
While the respondent sought to contend that the judge’s reasons should be construed as concluding that the applicant’s career prospects as a chef were speculative, that is not what the judge in fact said. The judge confined himself to failing to be satisfied on the balance of probabilities that the applicant would have achieved her ambitions. In support of that conclusion, the judge said that ‘there was little to indicate’ that the applicant was going to be able to fulfil her ambition.[11] Despite the able argument of senior counsel for the respondent, that statement by the judge cannot support a conclusion that the judge found the applicant’s career prospects to be merely speculative. It follows, with respect, that the judge erred in failing to take into account the loss of the applicant’s career prospects as a chef when he dismissed the applicant’s application.
[11]Reasons [64].
The judge’s treatment of the applicant’s parental responsibilities
The applicant submits that the judge erred in considering that the applicant’s parental responsibilities presently precluded her from taking up work opportunities. The applicant then submits that this error caused the judge to fail to make relevant findings as to the diminution of the applicant’s work capacity attributable to her injury.
We reject this submission. The judge correctly noted:
A woman who suffers injury in a transport accident so as to preclude her from paid employment suffers significant consequences for the purposes of s 93 of the Transport Accident Act, even if she is, for the moment, out of the employment market because of maternal duties.[12]
[12]Reasons [68].
The judge accepted the opinion of Mr Buntine that the applicant ‘would be able to undertake a wide range of unskilled work, but that her duties as a mother precluded her from taking up those opportunities as of this year [2014]’.[13] The judge was entitled to accept the medical opinion of Mr Buntine that the applicant would be able to undertake a wide range of unskilled work. Mr Buntine’s opinion was, after all, tendered by the applicant, and no reason has been advanced why some different view should have prevailed.
[13]Reasons [69].
The fact that the applicant might not have been able to avail herself of all of her opportunities for employment while having the care of a young child was not used against the applicant by the judge. In our view there is no basis for concluding that the judge somehow diminished the seriousness of the applicant’s work restrictions by reference to her present need to look after her son. It seems to us that a fair reading of the judge’s reasons discloses that his Honour analysed the applicant’s ongoing loss of earning capacity caused by the accident by reference to the applicant’s injury and its consequences and in the light of the applicant’s education, experience and background.
The judge’s evaluation of the consequences of the applicant’s injury
The applicant submits that the judge erred in evaluating individually the gravity of each of the consequences of the applicant’s injury. Further, the applicant submits that in evaluating the consequences individually (rather than collectively), the judge omitted to factor in the psychological consequences flowing from the applicant’s left wrist injury (as permitted by this Court’s decision in Richards v Wylie[14]).
[14](2000) 1 VR 79.
We reject this submission. In order to evaluate whether an impairment of a body function is serious, one needs to look at each of the individual claimed consequences of the impairment. When looking at each consequence, it may or may not be appropriate to analyse and discuss such by reference to severity or seriousness. The fact that the judge here expressed his views as to the relative severity or seriousness of individual consequences does not mean that he did not undertake the task required of him when he finally concluded that the impairment established by the applicant was not serious within the meaning of the Act. We see nothing in the judge’s reasons that suggests that the judge did not properly consider all of the relevant consequences when he came to the conclusion that the injury which the applicant contended was a serious injury failed to satisfy the ‘very considerable test’ — being an injury that might be described as ‘significant and perhaps marked’.[15]
[15]Reasons [71].
The fact that the judge did not specifically refer in his conclusions to the applicant’s claim in respect of psychological consequences flowing from her physical injury does not mean that the judge did not take this matter into account. The judge had already made explicit reference to Richards v Wylie.[16] Further, the judge had already referred to the relevant psychiatric evidence tendered by the applicant. As that evidence shows, the applicant’s mental or behavioural response to her physical injury was not a matter of great moment in the context of this case — particularly having regard to the paucity of psychiatric or psychological treatment.
[16](2000) 1 VR 79.
The judge’s reasons
The applicant submitted that the judge gave insufficient reasons for his findings and conclusions. There is no substance in this complaint. The judge’s reasons (set out above) more than adequately disclose a path of reasoning to his ultimate conclusion that the applicant’s wrist injury and its consequences, while being capable of being described as ‘significant’ or ‘marked’ could not be described as ‘at least very considerable’. The judge’s reasons disclose that the judge considered each of the applicant’s contentions. Further, the judge made findings which he tied to the evidence, and he then explained his findings and conclusions.
Did the judge err in his ultimate conclusion?
As was said by Buchanan JA[17] in Cowden v Transport Accident Commission:[18]
It is difficult for an appellant to demonstrate that a trial judge’s evaluation of the existence of a ‘serious injury’ should be set aside. In the absence of specific error, it must be shown that the decision at first instance was ‘plainly wrong’ or ‘wholly erroneous’ or ‘patently unsustainable’.
[17]With whom Phillips and Callaway JJA agreed.
[18][2003] VSCA 198, [18].
Having regard to our conclusion that there was specific error in the judge’s treatment of the applicant’s prospects of obtaining a career as a chef but for the accident, it is not necessary to consider the applicant’s submissions that the decision below was plainly wrong.
Disposition
There was no issue of credit in the hearing before the judge. All of the evidence tendered was tendered by the applicant. The applicant submitted that, in the event that this Court found specific error, this Court should decide the serious injury question rather than remitting the matter to the County Court. However, the respondent submitted that, while conceding that no great attack was made on the applicant’s credit below, there were subtle credit issues such as why the applicant did not undertake the second year of the VCAL program, and whether the applicant was truly motivated to become a chef. It was then submitted that a judge who has the opportunity to see the applicant give evidence would be in a better position to assess the evidence than this Court, and therefore that if specific error was shown then the application should be remitted to the County Court.
We reject the respondent’s submission. Having regard to the lack of significant credit issues in the hearing before the judge, we think that this Court is in almost as good a position as a judge who has the benefit of seeing the applicant, to determine the serious injury question. In the circumstances, we think it is appropriate that this Court decide the issue between the parties, rather than put the parties to the additional expense of another hearing.
The judge found that the applicant’s wrist injury precludes her from becoming a chef on purely physical grounds.[19] He also found that the injury limited the applicant’s employment prospects — albeit that he also accepted that the applicant was able to undertake a wide range of unskilled work.[20] The judge also accepted that the applicant continues to suffer significant pain in her left wrist.[21] The applicant’s injury has significantly impaired her ability to flex her wrist, and her grip strength has been substantially weakened. There was no suggestion in the material that the applicant’s condition was going to improve over time. Again, the judge accepted that the applicant’s injury adversely affects her recreational pursuits — albeit that the judge was of the view that the loss of the applicant’s sporting recreations was not a particularly grave loss.[22] Additionally, the judge accepted the applicant’s complaints about her hypersensitive surgical scar and the existence of traumatic arthritis which has already developed in her wrist since the accident.[23] On the evidence, none of these findings can be gainsaid.
[19]Reasons [63].
[20]Reasons [69].
[21]Reasons [71].
[22]Reasons [70].
[23]Reasons [71]–[72].
Further, we think that the evidence discloses that the applicant had more than merely speculative prospects of undertaking a career as a chef or in a professional kitchen. Having regard to her youth at the time of the accident and the unchallenged evidence of the applicant’s mother, secondary school teacher and career adviser, we think that the applicant’s prospects of engaging in her chosen career (now lost) should have been regarded as significant. That prospect (which was not taken into account by the judge because he had posed and answered the wrong question) must now be taken into account in the determination of whether the applicant’s injury is serious within the meaning of s 93 of the Act.
In addition to the matters referred to above, there is also the prospect of the applicant requiring further surgery ten or more years down the track as described by Mr Ireland. In ten years’ time the applicant will only be 34 years of age. This is another matter that must be taken into account.
As this Court said in Stijepic v One Force Group Australia Pty Ltd,[24] when judging the pain and suffering consequences for a particular applicant by comparison with other cases, it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which an applicant will have to put up with for decades might well be judged more serious than the same consequences which another applicant may have to put up with for a much shorter period of time.[25] The same may be said of the pecuniary loss consequences of an impairment.
[24][2009] VSCA 181, [43].
[25]Ibid. See further the discussion at paragraphs [74] – [78] of Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26, a case that dealt with the issue of an applicant of advanced years, and in which it was said that the remarks in Stijepic should not be read as ‘supporting the existence of a presumption’ – a matter about which there could be no debate.
While some may describe the present case as borderline, in our view, the applicant’s impairment of the function of her left wrist (pain, weakness of grip, restriction of movement and development of traumatic arthritis), her youth and the fact that her impairment and its consequences will be suffered over the whole of an adult lifetime lead us to the conclusion that her impairment of wrist function satisfies the ‘very considerable’ test.
Conclusion
We will grant leave to appeal, and allow the appeal. We will set aside the orders made in the County Court and in lieu thereof grant leave to the appellant to commence a proceeding for common law damages in relation to the injuries she sustained in the accident on 24 January 2009.
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