Davies v Transport Accident Commission
[2001] VSC 142
•11 May 2001
| SUPREME COURT OF VICTORIA | |
| COMMON LAW DIVISION | |
| Not Restricted | |
No. 5815 of 1999
| BARRY PERCIVAL DAVIES | Appellant |
| V | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
---
JUDGE: | Balmford, J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 March 2001 | |
DATE OF JUDGMENT: | 11 May 2001 | |
CASE MAY BE CITED AS: | Davies v TAC | |
MEDIA NEUTRAL CITATION: | [2001] VSC 142 | |
---
A PERSON “INJURED AS A RESULT OF A TRANSPORT ACCIDENT” under sections 35(1) and 3 of the Transport Accident Act 1986 - determining the degree of impairment and assessing an impairment in respect of injuries caused by a transport accident – what is the effect of a pre-existing condition unrelated to the transport accident on assessing impairment – compensation under the Act – determining the impairment benefit.
AN APPEAL against a decision made by the Victorian Civil and Administrative Tribunal which had reviewed a decision made by the respondent, the Transport Accident Commission.
Transport Accident Act 1986 – sections 3, 35(1), 46A, 47, 48, 53
Transport Accident (Impairment) Regulations 1988 – regulation 6(1)
Transport Accident (Amendment) Act 1998
Victorian Civil and Administrative Tribunal Act 1998 – s 148
Lake v Transport Accident Commission [1998] 1 VR 616
Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works & Ors (1980) 44 LGRA 65
Petkovski v Galletti [1994] 1 VR 436.
---
APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr MJ Croyle | Mitchell, McKenzie & Co |
| For the Respondent | Mr AG Uren QC with Mr Irving Miller | TAC Law Pty Ltd |
HER HONOUR:
Introduction
This is an appeal on a question of law under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 against a decision made by the Victorian Civil and Administrative Tribunal (“the Tribunal”), in its General List, on 24 May 1999 on an application for review of a decision of the respondent (“the Commission”) made on 24 September 1997. The Tribunal was constituted by Deputy President Davis. Leave to appeal was granted by Master Wheeler on 17 December 1999 and extended by Mr Justice Eames on 18 September 2000 (Davies v Transport Accident Commission [2000] VSC 379).
The decision of the Tribunal was:
That the decision of the Transport Accident Commission be set aside and there be substituted therefor a determination that the Applicant has suffered a whole person impairment of 46% resulting from the transport accident of 6 November 1993.
The Commission had determined the whole person impairment of the appellant as 39%.
On 17 December 1999 Master Wheeler ordered that the appellant have leave to appeal only on the following questions of law:
1.Did the Tribunal misdirect itself as to the meaning and application of the words ”as a result of” in the relevant sections of the Transport Accident Act 1986 (“the Act”), particularly sections 47 and 53 and the regulations to the Act?
2.Did the Tribunal misapply or misinterpret the provisions of the “Guide”, particularly chapter 8 thereof, when reaching its conclusions stated in paragraphs 45 and 46 of its decision?
3.Having [reached] its conclusions stated [at] paragraph 57 of its decision, inter [alia] that “the impotence was a likely side effect of the anti-depressant medication”, did the Tribunal misapply or misinterpret the provisions of the “Guide”, particularly chapter 9 and/or chapter 12 thereto?
4.Did the Tribunal fail to make relevant findings of facts necessary to its decision that the right arm “problems” pre-existed the ECT treatment particularly as to:-
(i)the symptoms in the right elbow occurring before the ECT treatment were caused by right ulnar neuropathy;
(ii)the symptoms in the right elbow being caused by right ulnar neuropathy were not made worse by the ECT treatment;
(iii)the symptoms in the right arm, particularly at the shoulder, being caused by the condition of frozen shoulder found by Mr Popovic at operation and for which he provided treatment;
(iv)the condition, which pre-existed (if it did) in the right shoulder was not aggravated by the ECT treatment or the need for operation resulting from the right ulnar neuropathy condition.
It is clear that the meaning of the expression ‘the “Guide”‘is to be discovered from the provision referred to in paragraph 7 below.
Written submissions were tendered by both parties. It was apparent that, for reasons not here relevant, the written submissions of Mr Croyle, for the appellant, dealt with matters beyond the questions of law as to which leave had been given by the Master, and in his oral submissions Mr Croyle expressly abjured any intention to make submissions, oral or written, on those matters.
The appellant was the driver of a vehicle which was involved in a collision with a cyclist on 6 November 1993. It appears to have been common ground before the Tribunal that the collision was no fault of the appellant, but the cyclist was killed instantly. The appellant suffered no physical injury in the accident, but had a significant psychological reaction. It was common ground that he was a person “injured as a result of a transport accident” in terms of section 35(1) of the Act and the definition of “transport accident” in section 3. Thus he is by virtue of section 35(1) entitled to compensation in accordance with the Act.
Section 46A of the Act, as in force at the date the Commission made its decision, provided for the determination by the Commission of “the degree of impairment of each person who is injured as a result of a transport accident . . . ”, and section 47 provided for the assessment of impairment benefit, payable in accordance with sections 47 and 48, in respect of a person whose degree of impairment is determined at more than ten per cent. One factor in the formula provided for the assessment of the impairment benefit is the degree of impairment of the person, and by virtue of section 53(4), a person whose degree of impairment is 50 per cent or more, is entitled to the continuation of weekly payments after the expiration of three years from the date the injury first manifests itself.
The effect of section 46A(9) of the Act as it now stands is that, in respect of an injury caused by a transport accident before the commencement of the Transport Accident (Amendment) Act 1998 on 19 May 1998, the determination of the degree of impairment is governed by regulation 6(1) of the Transport Accident (Impairment) Regulations 1988, which read:
The methods to be used in determining a percentage for the purpose of establishing the degree of impairment of a person as a result of a transport accident are those described in the “Guides to the Evaluation of Permanent Impairment”, Second Edition, published by the American Medical Association.
That provision applies in this case, the transport accident having occurred on 6 November 1993, at which time regulation 6(1) was in force, although it has since been repealed.
Question 1
Mr Croyle, for the appellant, submitted, if I understood him correctly, that the effect of the words “as a result of” was that the proper way of determining the degree of impairment and assessing an impairment by the methods described in the Guide was by looking at the consequences to the individual of the injury suffered and then determining the degree of that impairment in the context of the relevant chapters of the Guide. If the individual suffered from a pre-existing condition which was not related to the transport accident, the decision maker should first find the facts dealing with the whole condition of the individual, then determine what part, if any, of that pre-existing condition was not encompassed by the symptoms as exhibited after the transport accident, and should then go through the process of excising that part by relevant findings of fact. He submitted that the Tribunal had not approached the matter in that way, and this was an error of law.
Mr Uren, for the respondent, relied on the statutory provisions referred to above as authority for the proposition that the appellant was not entitled to have assessed the total impairment resulting from all causes, but only the degree of impairment resulting from the transport accident.
Both counsel relied on the passages set out below from the judgment of Southwell and Teague JJ in Petkovski v Galletti [1994] 1 VR 436. Their Honours said at 443, in the context of their consideration of the “serious injury” provisions of the Act:
. . . it has for long been the law that an injured person is to be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident. While the wrongdoer must take the victim as he finds him, he must compensate only for the damage he has wrought.
The Act does not affect that long-established principle.
And so it is that when a person is given leave to sue, the principle applies; and the court in assessing damages, where the case is one of the aggravation of a pre-existing condition, must consider what the evidence discloses as to the prior condition of the claimant.
And at 444, after referring to section 93 of the Act, with which I am not here concerned:
The accident did not cause the pre-existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.
Before suffering injury in the transport accident, the appellant was affected by several medical conditions, summarised by the Tribunal as “hypertension, gastric and neurological problems”. This was denied by the appellant in evidence, but having found him to be an unreliable historian, the Tribunal accepted the evidence of the medical witnesses as to the histories which they had taken from him.
The procedure adopted by the Tribunal in its Reasons for Decision was to deal separately with each head of impairment contained in the appellant’s claim. As to the claim in respect of hypertension, the parties were in agreement that the appellant suffered a whole person impairment of 10%, only 5% of which was related to the transport accident. The Tribunal found accordingly, on the basis of that agreement, and thus no issue arises as to the consideration of that evidence.
The neurological claim was for a right ulnar neuropathy suffered by the appellant in 1996, which he claimed was caused or aggravated by ECT treatment which he received as a result of the transport accident. The Tribunal summarised at length the evidence on this claim, relating as it did to complaints made by the appellant both before and after the transport accident. In the event the Tribunal was not satisfied that the neuropathy resulted from the transport accident. The question here in issue thus does not arise in that context.
14 As to the appellant’s gastric condition, the Tribunal’s summary of the evidence showed that there were a number of records of complaints by him of abdominal pain between 1969 and 1990, and a number of other similar complaints after the transport accident. The Tribunal noted that the parties were in agreement that the appellant had a gastroenterological impairment, to which chapter 8 of the Guide was relevant, and found, with reasons, that he had suffered a whole person impairment of 10% under that chapter. It concluded by finding, again with reasons, that it was appropriate to attribute 5% of that whole person impairment to the transport accident. This procedure seems to me to be entirely in accord with the legislation, and indeed with the submission of Mr Croyle set out in paragraph 8 above.
Question 2
There are no “conclusions” by the Tribunal in paragraph 45 of its reasons for decision, which consists of a summary of the evidence of Dr Desmond, a gastroenterologist. Paragraph 46 contains the conclusions summarised in paragraph 14 above and reads:
46. In light of the uncontradicted evidence concerning the psychological component of Mr Davies’ symptoms, and against the background of agreement that Mr Davies does not satisfy the third limb of Table 1 in Chapter 8 of the Guides, I prefer the evidence of Mr Desmond concerning the appropriate level of impairment under Class 2. Accordingly, I find that Mr Davies has suffered a whole person impairment of 10% under Chapter 8 of the Guides. However, I find that the likely presence of helicobacter pylori infection for some time prior to the transport accident, renders it at least as likely that that infection produced the present erosions in Mr Davies as the alternative proposition contended for by the applicant, namely that the stress of the transport accident alone caused those erosions. Nevertheless, the ongoing nature of the symptoms since May 1998 after disappearance of the helicobacter infection suggests that factors other than infection might be at play, and these factors include the stress or anxiety produced by the accident and its sequelae. In these circumstances, I consider it appropriate to attribute 5% of the whole person impairment to the transport accident of 1993.
Mr Croyle pointed out that Class 1 of Chapter 8 of the Guides relates to a 0% to 5% impairment, and accordingly it was not possible to find a 10% impairment under Class 1 (see the first sentence of paragraph 45). In fact, Dr Desmond in his report (Exhibit 8) finds a 10% impairment under Class 2, and the reference to Class 1 in paragraph 45 is clearly a typographical error.
Mr Croyle referred to submissions as to the application of Chapter 8 of the Guide which he made at the hearing before the Tribunal and to which the Tribunal did not refer. No failure of the Tribunal to refer to submissions is included among the grounds of appeal, and accordingly that question is not before me. The hearing of the whole application before the Tribunal occupied 8 days, and its reasons for decision extend over 25 pages, of which 6 pages are devoted to the examination of the extensive evidence as to the appellant’s gastrointestinal condition.
In Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works & Ors (1980) 44 LGRA 65, Fullagar J said at 67:
. . . the cases show, as one would expect, that decisions of [the Town Planning Appeals Tribunal] are not to be set aside by over-legalistic analyses of reasons stated or by over-zealous drawing of inferences from things not stated.
This well-known proposition is equally applicable to decisions of the Tribunal in its General List.
In Lake v Transport Accident Commission [1998] 1 VR 616 Phillips JA, with whom Brooking JA concurred, said at 625, referring to the Guide:
It is important, I think, not to become too legalistic about the guides themselves.
And at 626:
It must be remembered that the guides are only guides, though they are to be applied as required by the regulations. The task of assessment is far from being an exercise in an exact science and plainly it is to be assisted by medical opinion – in this instance from experts in neurology. Their efforts will not be helped if the guides become overlaid with a lawyer’s precise interpretation, derived from one or two cases that are regarded by the lawyers as testing and which are probably governed, to a greater or lesser degree by their own particular facts. . . . The view which [Dr Sedal] adopted was, I think, open to him and it was open to the tribunal to adopt that view. That is not to say that the same result must follow in another case; each case will turn on its own facts. But the applicant does not establish error of law by arguing that some other view was also open in this instance and ought to have been preferred as a matter of fact.
I find no relevant misapplication or misinterpretation by the Tribunal of the provisions of the Guide when reaching the conclusions stated in paragraph 46 of its reasons for decision.
Question 3
There was evidence of a psychiatrist, Dr Epstein, and a urologist, Dr Joyce, before the Tribunal on the basis of which it found that the appellant had had a severe psychological reaction to the transport accident, and that part of this injury or its sequelae was impotence and Peyronie’s disease (a problem of penile angulation during erection). Chapter 9 of the Guide deals with the reproductive and urinary systems, and chapter 12 with mental and behavioural disorders. Dr Joyce considered it appropriate to assess the impotence and Peyronie’s disease, as well as the depression, under chapter 12, although he suggested that “using a looser interpretation of the AMA Guides” it would be possible to assess the Peyronie’s disease under chapter 9.
The Tribunal’s decision to assess those matters under chapter 12 was justified on the evidence before it and the reasons for that finding are explained. I accept the submission of Mr Croyle that the transcript does not support the statement of the tribunal that Dr Epstein said in evidence that he would assess the Peyronie’s disease (as well as the impotence) under chapter 12. However it would seem from the evidence that if the Peyronie’s disease is not associated with the impotence caused by the anti-depressant medication, it could not be regarded as an assessable result of the transport accident. If it is associated with the impotence, the terms of chapter 12 are, in my view, wide enough to include assessment of a physical result of a psychiatric condition.
Question 4
Mr Croyle made no submissions directly related to this question, but under this head repeated his submission as to question 1, with which I have already dealt. Accordingly, I do not propose to consider this question at any length. The Tribunal summarised at length the evidence relevant to the appellant’s right arm problems, and its findings in paragraph 21.5.7 were in my view justified on the material before it.
Conclusion
For the reasons given, I find no error of law in the decision of the Tribunal. The appeal will be dismissed. Counsel may wish to make submissions as to costs.
---