De Agostino v Leatch & Anor
[2011] VSCA 249
•30 August 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2009 3896
| VALDA DE AGOSTINO | Applicant |
| v | |
| DAVID LEATCH and TRANSPORT ACCIDENT COMMISSION | First Respondent |
| Second Respondent |
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| JUDGES | MANDIE and TATE JJA and MACAULAY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 20 May 2011 |
| DATE OF JUDGMENT | 30 August 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 249 |
| JUDGMENT APPEALED FROM | De Agostino v Leatch [2009] VCC 1560 (Judge Howie) |
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ACCIDENT COMPENSATION – Transport accident – Leave to bring common law proceedings – Applicant involved in four separate transport accidents – Whether latest aggravation injury amounted to ‘serious injury’ – Whether trial judge ignored certain evidence and/or gave insufficient reasons in refusing leave – Whether trial judge conflated causation and extent of impairment – Transport Accident Act 1986, sub-ss 93(1), (3), (4), (6), (17) – Humphries v Poljak [1993] 2 VR 129, Petkovski v Galletti [1994] 1 VR 436, discussed – Application refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr P A Jewell SC and Mr D Churilov | Nowicki Carbone |
| For the First and Second Respondents | Mr J Ruskin QC and Mr S A O’Meara | Solicitors for Transport Accident Commission |
MANDIE JA:
I agree with Tate JA.
TATE JA:
On 9 March 2003, Valda De Agostino was a passenger in a car driven by her husband which collided with another car travelling in the opposite direction. In this accident (‘the 2003 accident’) she aggravated pre-existing injuries to her cervical spine. The 2003 accident was her fourth transport accident, the previous three having occurred on 21 September 1988, 10 August 1992 and 28 November 1993.
Mrs De Agostino sought leave in the County Court to bring proceedings for common law damages on the ground that the aggravation caused by the 2003 accident to the pre-existing injuries to her cervical spine was itself a ‘serious injury’ within the meaning of s 93 of the Transport Accident Act 1986 (‘the Act’). The trial judge refused leave[1] and Mrs De Agostino now seeks leave to appeal that decision to this Court.
[1]De Agostino v Leatch [2009] VCC 1560 (‘Reasons’).
The question raised by this application for leave is whether the increased pain and suffering consequences of the 2003 accident are sufficient to meet the threshold of a ‘serious injury’. The case presented by Mrs De Agostino relied entirely upon a comparison between the degree of impairment she suffered before the 2003 accident (as a result of the three previous transport accidents, or otherwise) and the degree of impairment she suffered after the 2003 accident. Could it be concluded that the additional degree of impairment to the cervical spine suffered as a result of the 2003 accident had pain and suffering consequences that were at least ‘very considerable’ and more than ‘significant’ or ‘marked’?
Legislative framework
By reason of s 93(1) of the Act, Mrs De Agostino cannot recover any damages in respect of injury as a result of a transport accident except in accordance with the section. Section 93(4)(d) provides that if the Transport Accident Commission (‘the TAC’) has determined the degree of impairment to be less than 30 per cent, a person who has been injured in a transport accident may not bring proceedings for the recovery of damages (with certain presently irrelevant exceptions) unless a court gives leave to bring the proceedings. According to s 93(6), a court must not give leave under (4)(d) unless it is satisfied that the injury is a ‘serious injury’. On an application under s 93(4) of the Act, appellate intervention will be warranted only where the decision below is affected by specific error or is shown to be ‘plainly wrong or wholly erroneous’.[2]
[2]Mobilio v Balliotis [1998] 3 VR 833, 835, 837, 854, 858, 860.
Section 93(17) contains the definition for ‘serious injury’ which relevantly includes (a) ‘serious long-term impairment or loss of a body function’ or (c) ‘severe long-term mental or severe long-term behavioural disturbance or disorder’.
In Humphries v Poljak,[3] Crocket and Southwell JJ[4] identified the test to be applied with respect to a claim of ‘serious injury’ under paragraph (a) of the definition:[5]
To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?
[3][1992] 2 VR 129.
[4]McGarvie J was in dissent on this point: ibid 166-7. See also Mobilio v Balliotis [1998] 3 VR 833, 834, 844-5, 854, 860.
[5][1992] 2 VR 129, 140.
Mrs De Agostino based her claim on pain and suffering consequences alone.
In the context of aggravation to a pre-existing injury, Southwell and Teague JJ in Petkovski v Galletti[6] made it plain that the task of the court is to analyse the extent of the impairment of the body function before and after the relevant injury. In referring to the submissions that had been rejected by the trial judge below in that case, they said:[7]
The question of the relevance of the existence of a pre-existing degenerative condition in the applicant’s spine was raised both in the court below and in this court. It was submitted in both courts for the respondent that a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment; if that additional impairment was not ‘serious’, so it was said, then leave must be refused.
The learned County Court judge rejected this principal submission of the respondent. … He said: ‘In my opinion, the Act simply requires me as an assessing judge to be “affirmatively satisfied” that the applicant as at the date of the application is suffering from a “serious injury” within the meaning of the Act.’
…
[I]t is clear that the submission for the respondent ought not to have been rejected by the judge … We are of that opinion for these reasons. One should commence with the acknowledgement that 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.
[6][1994] 1 VR 436.
[7]Ibid 443 (emphasis added). Brooking J stated that he agreed with Southwell and Teague JJ that the appeal should fail, for substantially the reasons they had given.
The error committed by the trial judge in Petkovski was explained in this way:[8]
[L]et it be assumed that a claimant was at the time of the relevant accident already suffering from a ‘serious injury’; and that the accident aggravated his condition to a minor extent. If the reasoning of the learned trial judge were to be applied, the claimant must be given leave to pursue the claim for that minor aggravation. We cannot accept that as correct. The clear intention of the Parliament in passing the Act was to prevent such minor claims.
[8]Ibid 444.
Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must itself involve serious long-term impairment (or loss) of a body function.[9] At the stage of the application for leave under s 93(4) of the Act, in connection with an aggravation injury, it is important to recognise that: [10]
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.
[9]Ibid 443.
[10]Ibid 444 (emphasis added).
The 2003 accident and the previous accidents
The body function which Mrs De Agostino claimed was impaired was the ‘cervical spine with symptomatology affecting both upper limbs’. After each of the three earlier accidents before the 2003 accident, Mrs De Agostino had also experienced symptoms of pain and suffering in her neck and shoulders.
Mrs De Agostino gave evidence at the trial below that she believed she reported the first transport accident, which occurred on 21 September 1988, to the TAC. In the first transport accident the car in which Mrs De Agostino was travelling was struck by another car as she attempted a right-hand turn. Following that accident, she had some symptoms affecting her back and, to a lesser extent her shoulders and neck. However, the symptoms were short lived. She required a couple of months off work. It does not appear as though she received physiotherapy or other treatment as a result of the first accident.
The second accident, which occurred on 10 August 1992, took place when another car ignored a ‘Give Way’ sign at an intersection. As Mrs De Agostino entered the intersection she could not avoid the other car and struck its side with the front of her car. She commenced treatment with a physiotherapist for injuries sustained to her neck and back but her evidence was that she did not recall having any significant period of time off work to recover. In cross-examination, she agreed that the second accident was more serious than the 1988 accident and that it resulted in her experiencing considerable problems with her neck. She continued with the physiotherapy treatment regularly, every two to three weeks, for some 10 years, until the TAC ceased funding it in September 2002. She did not challenge the decision to cease funding as her symptoms had significantly improved by that stage.
The third accident occurred on 28 November 1993. It involved the car in which Mrs De Agostino was travelling being driven into from behind while stationary in heavy traffic on the Tullamarine Freeway. She again sustained injuries to her neck and back and maintained her visits to the physiotherapist until, as mentioned, the funding for the visits ceased in 2002.
The 2003 accident was the fourth transport accident Mrs De Agostino experienced. She lost consciousness and was taken to hospital where she remained for approximately three or four days. She recommenced physiotherapy, funded by the TAC, until sometime towards the end of 2003. Thereafter, she did not pursue physiotherapy due to financial constraints; however, she began attending a massage therapist every two to three weeks.
During 2006 Mrs De Agostino’s symptoms worsened and towards the end of 2007 she began seeing a physiotherapist again approximately once a fortnight. By early 2009, this had increased to once a week visits.
The condition of Mrs De Agostino before the 2003 accident
In her affidavit evidence, Mrs De Agostino said that, before the 2003 accident, she was experiencing pain in her shoulders as well as intermittent pain in her neck, occasional headaches, and occasional pins and needles in her right hand, but that she was able to cope with her work duties ‘without any significant problems’. She was able to do the majority of house work, including cooking and some vacuuming, mopping and sweeping, although she had engaged a cleaning lady to assist her since 1998. She could do the laundry but needed assistance in lifting heavy blankets onto the clothesline. She had some trouble reaching above shoulder height but was generally able to perform tasks such as washing and drying her hair and doing the grocery shopping, so long as she was careful and moved at her own pace. She walked four to five times a week at a brisk pace for 45 minutes to an hour each time. At trial, her counsel opened by saying that Mrs De Agostino was in ‘excellent physical shape’ before the 2003 accident.
I agree with the respondent, and the trial judge below,[11] that the cross-examination of Mrs De Agostino revealed that her description of her symptoms and physical state of health before the 2003 accident was unreliable. The statement that she was in ‘excellent physical shape’ prior to the 2003 accident is inconsistent with her medical history. This is apparent from the evidence.
[11]Reasons, [9].
In October 1996, Mrs De Agostino complained to a TAC physiotherapist of cervical spine pain occurring bilaterally and a headache which was intermittent but regular. She also complained of a right-sided medial border of scapular pain. Weekly or fortnightly physiotherapy eased her symptoms, but they returned fairly quickly. The physiotherapist noted that, overall, Mrs De Agostino had ‘obvious signs of neck injury’ resulting from a car accident.
Mrs De Agostino agreed in cross-examination that in 1997 she had a spontaneous acute exacerbation or worsening of her neck pain. She also agreed that in 1998 she had 26 physiotherapy visits (once a fortnight), hired a cleaning lady to help with vacuuming and mopping, and complained of ‘migraine-type’ headaches. In March 1998, she told a physiotherapist that prolonged sitting tended to aggravate both her cervical-suprascapular pain and her bilateral temporal headaches. Her pains tended to get worse during the day but did not affect her sleep at night. She was generally very stiff in her cervical spine first thing in the morning. In May 1998, she attended her GP, Dr Demirdjian, with pain in her left shoulder and arm and was referred for x-rays to be taken. The x-rays showed some degenerative changes at the C5/6 level which were not marked.
Mrs De Agostino agreed that in May 1998 her problems were ‘pretty much the same’ despite almost six years having passed since the second, more serious, accident. Mrs De Agostino was working part-time (three days per week) at the Australian Tax Office (‘ATO’) performing clerical duties. After her symptoms increased in severity, the ATO modified her work station and work programme. She was given regular breaks which allowed her to stop each hour for ten or 15 minutes and to walk around and stretch. She was provided with a ‘Therapod’ chair with a neck-rest to support her neck and shoulders.
In July 1999, she was referred to Mr Freilich for EMG tests, and in August 1999 to a neurosurgeon, Mr Kavar. Mr Kavar reported to her GP that she presented with difficulty with her right hand and a sense of weakness, pins and needles and numbness. On examination she had decreased pin prick sensation on her right hand in the distribution of the C7 and C8 nerve roots with minimal weakness of grip. The rest of the power in her upper and lower limbs was ‘completely normal’. She had neck pain and pain in her right shoulder which manifested itself as an ache.
In a letter to the TAC requesting approval for a MRI scan, Mr Kavar reported that, following the second accident in 1992, ‘she has had significant pain and a sense of weakness in her right upper limb. Examination suggests a possible right C7 and a right C8 nerve root lesion’. An x-ray report dated 6 September 1999 concluded that she had mild cervical spondylosis. A MRI report dated 10 November 1999 concluded that she had mild degenerative changes from C3/4 to C6/7, mild left C3/4 and C4/5 foraminal stenosis and minor left C6 lateral recess stenosis. Mr Kavar conducted a review on 15 February 2000 and reported that Mrs De Agonstino’s neck pain ‘certainly seems to have improved’.
However, the condition of Mrs De Agostino’s cervical spine did not remain in an improved state in the period from February 2000 to March 2003. In that period, Mrs De Agostino attended on her GP a number of times. Dr Demirdjian reported that Mrs De Agostino complained of, inter alia, left arm pain, two months of frontal headaches following the start of her new work programme (which involved sitting in front of a computer), and headaches and migraines which had been on-going since February 1996. In June 2000, she was referred to Mr Freilich who carried out nerve conduction studies. He concluded that her ‘right median nerve conduction is again normal’ and that there was ‘no evidence of carpal tunnel syndrome’. Dr Demirdjian referred Mrs De Agostino to John Fawkner Hospital in September 2000 because of migraine and paraesthesia of her left cheek. By November 2001, her headaches were so bad that she was going to bed with them and waking up with them.
In early 2002, she was still working three days per week at the ATO and, in cross-examination, she agreed that at this time her work was significantly affected by her neck and shoulder injuries. The ATO requested an occupational physician, Dr Trifiletti, to conduct a medical and worksite assessment which took place on 31 January and 12 February 2002 respectively. The physician reported that Mrs De Agostino reported a ‘longstanding history of neck and predominantly right upper limb pain dating back to 1990’. Mrs De Agostino further reported aching across the shoulder, neck and right arm which was not constant but was present with sustained neck flexion or reaching for a period of about one hour. Postural respite resulted in significant symptom improvement. Mrs De Agostino reported headaches when neck pain occurred. Dr Trifiletti found significant spasm of the paracervical muscles and some limitation of neck movement on flexion, extension and rotation. Following the worksite assessment, recommendations were made (1) to raise the level of the computer keyboard; (2) to place documents in smaller piles within easy reach; (3) to allow regular breaks of a few minutes each hour to walk around; and (4) to break down work tasks into shorter periods of time.
In cross-examination, Mrs De Agostino agreed that if she had not had a cooperative employer, she would have had real difficulties doing the type of work she did and would probably have had to leave her employment. She also agreed that although able to work for three days per week, she was still affected by her headaches and her neck and shoulder pain.
In March 2002, Mrs De Agostino attended Dr Bolzonello, a musculoskeletal physician, and Mr Bartram, a sports physiotherapist, both engaged by the TAC. She completed a ‘Neck Disability Index’, ticking boxes which indicated she had moderate pain intensity in the neck; was able to look after herself with washing and dressing but those activities caused extra pain; was able to lift only light weights; was not able to read as much as she wanted because of moderate neck pain; was suffering from headaches almost all the time; and had a fair degree of difficulty in concentrating when she wanted to. Dr Bolzonello and Mr Bartram reported that, up until 23 January 2002, Mrs De Agostino had received 319 physiotherapy treatments and was continuing to get one to two treatments per month. The trial judge set out important parts of that report and I again set out those parts:
Mrs De Agostino reported pain about her neck, headaches which are occipital and radiate to the front of her head and pain that radiates from the neck out to both shoulders. At times the occipital pain is 10/10 and she takes Panamax on a regular basis. She also intermittently experiences pins and needles and paraesthesia in the whole of her right hand which wakes her and she has to shake to relieve the symptoms.
Mrs De Agostino is currently only working part time. Her headaches and neck pain have significantly improved since she went to part time work and the Australian Taxation Office has offered her considerable help and support in terms of the structure of her work, hours of work and equipment etc.
Mrs De Agostino reported that she can sit for about ½ an hour but after that she has to get up and do some stretching. She indicated difficulty with driving and similarly with ironing she can do about ½ an hour’s work then she has to stop. She indicated that she is unable to do any other activity for at least a couple of days after doing the ironing. She said that she is unable to stand at the sink and she has a cleaning lady who does the vacuuming and the mopping.
With regard to physiotherapy, Mrs De Agostino said that she attends on a fortnightly basis and funds intervening treatment herself as TAC has indicated they will only fund fortnightly treatment. She described that treatment does decrease her pain for about 2-3 days and on the 3rd day she started to slip back to where she was. She said the treatment modalities include massage, some mobilisation, heat and the use of some sprays which we believe may be anti-inflammatory sprays. With regard to treatment breaks, she has tried to stretch out treatment past 3 weeks over holidays periods but she finds she gets significantly worse if she does this.
Mrs De Agostino said that her self-management strategies include stretches and she has been given a neck book by the physiotherapist. When asked to demonstrate her exercises she performed very simple turns of the neck without any stretching component. It appears that she has not been given any appropriate strengthening exercises.
In terms of general exercise Mrs De Agostino said that she walks, but not as far as she used to before the accident.
The report recommended 12 physiotherapy appointments over the following six months and then the TAC to cease liability for ongoing treatment. As mentioned above, funding did indeed cease in September 2002 and Mrs De Agostino did not pursue any privately-funded treatment between this time and the 2003 accident.
However, Mrs De Agostino continued to see her GP throughout 2002 and early 2003 for problems with her neck. Her cross-examination on that period of time went as follows:
In the opening of the case which your barrister made, you heard him say to the learned judge that you were in excellent physical shape prior to March 2003. You’d agree with that, would you?
Excellent, yes. I was, yes.
…
Moving on … to May 2002, 29 May. Your doctor notes at D408 that you had what he described as ‘chronic neck pain’, and you’d agree with that?
Yes.
July, 1 July 2002, the same entry. You’ve got a migraine and you needed a medical certificate?
That’s correct, yes.
Then in October 2002 you had chronic neck and right side upper back pain and you had what’s called again one of those acute exacerbations which happen from time to time. Is that right?
From time to time, that’s correct.
Was that brought on by any particular activity?
Sometimes it just happens.
At that time, is it something that just happened as well back in 2002, just like it sometimes happens today?
I haven’t had severe, as of today, one of those.
One of those exacerbations?
Yes, that’s correct.
Well, in D485, on 4 December the general practitioner noted that you had neck pain and he was discussing pain management strategies and a medical certificate with you. Do you remember him discussing pain management?
It could be.
Yes, this is just a way of saying, ‘How can we ---‘?
‘How can we manage,’ yes.
‘If you’re going to have the pain, how do we manage it?’
Yes, ‘How do we manage it?’
On 4 March 03, which is five days before the last accident, do you recall that you had a particular exacerbation of you neck pain, D486, and you had a medical certificate for a day off?
Probably did. It’s a long time ago.
…
The exacerbations of your neck pain where you’ve got your neck pain but they get a bit worse or quite a bit worse, would they happen once a week, once a month about the time you saw Dr Bolzonello in March 02 to say March 03, that year, would those exacerbations occur once a month or once a week?
2002 to 2003, it would have been as less as from after my last accident, that’s when I actually had more pain.
…
But just putting that one aside, can you give us some estimation, would these exacerbations occur in that year leading up to the last accident once a year, once a fortnight?
Could have been. Sometimes it could be once a fortnight, could have been once a month, once every two or three months. It just all depends.
Ultimately, Mrs de Agostino was asked whether she could reconcile the evidence of her medical history described above, with her earlier evidence that before the 2003 accident she was in ‘excellent physical shape’:
What we’ve done here is to go through your medical condition leading up, in effect, to that [fourth] accident?
Yes.
Remember I asked you the question prior to March 2003 were you in excellent physical shape and you said, ‘Yes.’ Do you really think, in the light of these questions I’ve asked you and the answers you’ve given, would you really describe yourself as in excellent physical shape?
Well, excellent for my own personal, but for the neck and the shoulders, I wouldn’t say that that’s excellent.
It is clear that the response ultimately elicited stood in sharp contrast with Mrs De Agostino’s earlier evidence that she was in ‘excellent physical shape’ leading up to the 2003 accident. She was later asked specifically about her medical history between 2000 and 2003 as reported to Dr Kavar:
You told him, when he was asking about things, you said, ‘Look, I improved significantly after 2000, leading up to 2003’?
That’s correct, yes.
Would you say that’s an accurate picture?
It’s not a great deal, but significantly where I could do things a little bit better. That’s what I was explaining to him because that’s what he wanted to know, ‘How do you feel? Do you feel better?’ I said, yes, I could do things better.
So if he got the impression, if he did, that between 2000 and 2003, in that three-year gap, if he got the impression that you were really saying, ‘I’m significantly improved so I don’t have much pain,’ if he got that impression, that wouldn’t be correct, would it?
No, because I’ve always had the pain. The pain is always there.
When you say you improved significantly from 2000, significantly compared to when?
What I mean is that I can do things better. I can do things more, that’s what it is, compared to now. Like I can do things all the time, just with great difficulty. That’s what it is.
Yes, what I’m really suggesting to you is that from about 1992, right up to the 2003 accident, you were pretty much the same?
Pretty much, yes.
With all the problems that you told me in the witness box about?
That’s correct, yes.
The condition of Mrs De Agostino after the 2003 accident
As mentioned above, Mrs De Agostino was hospitalised for some days following the 2003 accident and sought physiotherapy treatment shortly after her release from hospital. Her symptoms worsened during 2006 and towards the end of 2007 she began seeing a physiotherapist approximately once a fortnight. By early 2009, this had increased to once a week visits.
Following the accident, Mrs De Agostino visited her GP six times in 2003, once in 2004 and then again in June 2006. In cross-examination she conceded that, upon returning to work, she was doing exactly the same activities at work, coping with it by stretching, taking breaks and using paracetamol as medication.
In her affidavit evidence, Mrs De Agostino said she had experienced significantly increased pain affecting her neck with referred pain in her shoulders. Her headaches were said to be more intense, frequent and of longer duration and she often suffered from migraines. She said that in mid-2006 she suffered exacerbation of neck pain and required a short time off work. The pain in her right arm had been increasing and, because of this, she had been advised by the ATO in September 2007 to rely more on her left arm. As a result, she began experiencing symptoms in her left arm and her GP diagnosed tendonitis in her left elbow. Her GP referred her for an MRI scan of her cervical spine and she sought treatment from a neurologist, Professor Davis.
In his report dated 12 February 2008, Professor Davis said:
In summary, her current symptoms are due to the accumulation of 4 accidents which have involved some soft tissue, jolting-type injuries to the cervical spine and it is very difficult to apportion causality of the current symptoms to any one accident, more than the others. …
She is likely to have ongoing, chronic low-grade symptoms which do produce some level of disability and could be attributed to a combination of the consequences of these 4 accidents, together with the age related degenerative process in the cervical spine.
In his final supplementary report dated 7 November 2008 he said:
I have reviewed an MRI scan of the cervical spine arranged by the neurosurgeon, Mr Bhadu Kavar (23 June 2008). This shows mild cervical spondylosis with mild level uncovertebral joint hypertrophy and neural forminal narrowing. There was no definite impingement. There may have been some impingement of the left C4 nerve root. Plain x-rays of the cervical spine showed normal alignment, no evidence of fracture and mild degenerative changes. There was no instability on flexion and extension views.
…
These MRI scan changes have been present in at least some degree since 1999. They are consistent with her age and the expected age-related spondylitic changes. As pointed out in my reports, this series of accidents may have exacerbated the degenerative pathology in the cervical spine, specifically the accident on 9 March 2003.
I would again emphasise however that there were no signs objectively of radiculopathy and the latest MR scan in fact shows no significant nerve root compression or cord compression, supporting the view that conservative management is appropriate.
I have reviewed all of the MRI scans and the report in forming this opinion.
It is impossible to quantify the contributions of age and the recurrent jolting strains to the cervical spine, but I would think that age-related pathology in the cervical spine is the predominant factor.
The trial judge accepted that the 2003 accident further aggravated Mrs De Agostino’s degenerative condition in her neck. This was not contested by the respondent. However, his Honour found that it was more probable than not that Mrs De Agostino’s symptoms, as at the time of the hearing of the application for leave to bring proceedings to recover damages, were caused by a combination of the four accidents and that the additional impairment resulting from the 2003 accident did not amount to a ‘serious injury’ within the meaning of s 93 of the Act. He said:[12]
While it is difficult to determine what contribution the March 2003 accident made to the worsening of the plaintiff’s condition, in my opinion, as Professor Davis has stated, it is more probable than not that the plaintiff’s present symptoms are caused by the impact of the four accidents on the degenerative process in her cervical spine. While the impact of the March 2003 accident, and of the earlier accidents, is likely to be ongoing, I am not satisfied that the additional impairment of the plaintiff’s cervical spine which occurred in the transport accident on 9 March 2003 can be fairly adjudged to be very considerable. I am not satisfied therefore that the additional impairment resulting from the March 2003 accident is a serious injury.
[12]Reasons, [50].
The appeal
There were two broad grounds of appeal which Mrs De Agostino proposed to rely upon should she be granted leave to appeal.[13]
[13]Mrs De Agostino applied for leave to substitute these two broad grounds for the five grounds initially relied upon. The respondent did not oppose that course. I would grant that leave.
The first proposed ground alleged that the trial judge had failed to determine the consequences of the additional impairment on the whole of the evidence and, in particular, omitted to take account of the emotional and psychological effects of the 2003 accident. It was argued that the burden of the lay affidavits of Mrs De Agostino’s family and friends provided discrete evidence of the real differences in Mrs De Agostino’s functioning capacities and the changes to her life after the 2003 accident. It was submitted that the trial judge failed to use the lay evidence properly and made no relevant findings as to the degree or extent of consequential changes to which that evidence was directed, and failed to determine whether such consequences were serious. Added to this was a generalised complaint that the trial judge had failed to give adequate reasons.
The second proposed ground alleged that the trial judge erred by looking at the contribution made by the 2003 accident to Mrs De Agostino’s overall condition and thereby confused and conflated the question of the extent of the impairment (that is, whether the aggravation amounted to a ‘serious injury’) with the question of the extent to which the 2003 accident contributed to the impairment (that is, the question relating to causation).
I deal with each of the issues in turn.
Ignoring the lay evidence
The lay evidence consisted of the affidavits of Ms Kevich (a friend and work colleague), Mr De Agostino (Mrs De Agostino’s husband), Ms Barbaro (Mrs De Agostino’s sister), Ms Mathews (Mrs De Agostino’s work supervisor) and two affidavits of Mrs De Agostino herself.
Disclosure of reduced capacity
Mrs De Agostino submitted that the lay affidavit evidence disclosed that the 2003 accident had considerably reduced her capacity to perform domestic tasks, to go shopping, to entertain and to host dinner parties and had increased her dependence on others. Notwithstanding her pre-existing impairments, the evidence indicated that, before the 2003 accident, she had been a person who greatly enjoyed dancing of all types. Rock and roll dancing was something she would do every week. She would go to clubs with her husband and was described by one witness as ‘the first to hit the dance floor’, encouraging others to join in to dance, dancing being a great source of socialisation and mingling for her. The 2003 accident was said to have greatly reduced her capacity to dance and she now avoided forms of culturally important dancing (performed in groups at a fast pace), instead sitting down and watching everyone else dance. This caused great frustration and social withdrawal, Ms Barbaro describing her sister as ‘no longer the life of the party she once was’.
The lay evidence also revealed that Mrs De Agostino’s personal care had been reduced since the 2003 accident. She had previously been able to look after herself completely, shower and the like, do her hair and put on her make-up daily. She took pride in her appearance. Now her daughter and sister helped her wash her hair and her daughter helped her put on make-up, much less regularly than before.
Her sleep was said to be considerably disrupted. The lay evidence suggested that she struggled to get comfortable at night due to her neck problems. She had purchased special pillows which hadn’t helped. Her husband described her as much more tired and said it was not uncommon for her to fall asleep on the couch at 8.00 or 9.00 pm, waking up most nights on more than one occasion.
There was evidence of further modifications being required in the workplace due to increasing complaints of neck pain.
The trial judge made reference to this body of lay evidence.[14] First, he referred to Mrs De Agostino’s affidavit evidence about her decreased capacity to perform household tasks (including cooking, laundry and shopping), her difficulty in doing her hair and makeup, her reduced mobility and walking capacity, her limited driving capacity because of neck rotation problems, her reduced capacity to enjoy dancing and host dinner parties, her reduced work capacity, sleep disruption, and her continuing medication (paracetamol) and physiotherapy treatment. The trial judge then stated there was ‘support for this account of [Mrs De Agostino’s] symptoms in the affidavits of [her] husband Antonio De Agostino, her sister Elizabeth Barbaro, and of Tina Diane Kevich and Angela Mathews’.[15]
[14]Reasons, [46].
[15]Reasons, [47].
The respondent submitted that the evidence of Mrs De Agostino under cross-examination significantly qualified her affidavit evidence. While it could be accepted that the experience of successive injuries meant that residual capacity was precious, and injuries caused to someone with an existing impairment had to be treated accordingly,[16] it was submitted by the respondent that the comparison between Mrs De Agostino’s physical condition before and after the 2003 accident revealed that the aggravation injury here was not a serious injury. Mrs De Agostino’s oral evidence that she was in ‘excellent physical shape’ prior to the 2003 accident was shown to be incorrect. It was submitted by the respondent that the evidence in the lay affidavits which attested to the symptoms before the 2003 accident as being only ‘occasional’ and ‘intermittent’ lost their relevance in light of the contrary concessions made by Mrs De Agostino in cross-examination as to the continuous state of her pain.
[16]Guppy v Victorian Workcover Authority [2010] VSCA 164, [51].
I agree. To take one example, it is difficult to reconcile the claim that it was the 2003 accident which significantly impaired Mrs De Agostino’s immediately pre-existing capacity for dancing with the following exchange:
So let’s get it right. Before the last accident, you’ve tried rock and roll dancing?
Yes.
But you have to be very careful and you might pay the price?
That’s correct.
After the fourth accident, you’ve tried rock and roll dancing?
Yes.
---but you’ve had to be very careful because you could pay the price?
That’s correct, yes.
The concessions extracted in cross-examination painted a picture of Mrs De Agostino’s life immediately before the 2003 accident as one that had been significantly affected by injury on a scale that was much greater than the picture painted by her affidavit evidence. The affidavit evidence of Mrs De Agostino’s sister, husband, work supervisor and colleague was essentially corroborative of Mrs De Agostino’s own affidavit evidence. As Mrs De Agostino’s affidavit evidence was significantly qualified by the answers she gave in cross-examination, the usefulness of the additional lay evidence was, to a large extent, negated. In those circumstances, it is not surprising that the lay evidence appeared to have played a minor role in the trial judge’s determination.
Emotional and psychological effects
One aspect of the lay evidence which was argued to have particular importance yet to have been ignored was the emotional and psychological effect of the 2003 accident. The lay evidence indicated that, after the 2003 accident, Mrs De Agostino’s personality and temperament underwent change. She experienced problems with worrying and depression, suffered a loss of confidence, had difficulty making decisions, would become angry, frustrated and upset and her relationship with her husband had become strained. This change in behaviour was generally supported by the evidence of Mr De Agostino and Ms Kevich. It was also supported somewhat by Dr Demirdjian, who expressed the opinion that Mrs De Agostino was becoming ‘more anxious since her car accident in 2003’, and by the TAC psychiatrist, Dr Weissman, who concluded that Mrs De Agostino ‘is suffering from a very mild adjustment disorder with anxious mood’.
The respondent submitted that this aspect of the lay evidence was not pursued in the County Court, that the case had been put with barely any emphasis on psychological and emotional changes, and it was unfair now to allege that the trial judge had erred for failing to give it due consideration. Furthermore, the respondent submitted, there was no evidence of medication for depression, nor of Mrs De Agostino independently having seen a psychiatrist, nor of having obtained professional counselling (although she had sought counselling with a priest in the past, but this was not continuing). By contrast with the case presented in Rodda v Transport Accident Commission[17] it was never suggested that the 2003 accident caused Mrs De Agostino to suffer a serious injury involving a ‘severe long-term mental or severe long-term behavioural disturbance or disorder’, that is, a serious injury within paragraph (c) of the definition of ‘serious injury’ in s 93(17) of the Act. Rather, the case was presented as one squarely falling within paragraph (a) of the definition under s 93(17), an injury involving a ‘serious long-term impairment or loss of a body function’.
[17][2008] VSCA 276.
It is well established that consequential psychological effects may well be relevant when assessing whether an injury comes within paragraph (a) of the definition of ‘serious injury’ under s 93(17)[18] and do not fall to be considered only under paragraph (c). His Honour makes reference to the affidavits[19] and reports[20] in which the evidence appears of emotional and psychological effect, although his reasons do not elaborate upon those effects. Furthermore, it was conceded by Mrs De Agostino that the medical evidence regarding the psychological effects was ‘scant’. This concession, coupled with any general doubts that the trial judge quite properly had about the lay evidence, together with the lack of emphasis placed upon the psychological and emotional evidence at trial, means that the minor role played by the evidence of psychological and emotional effect in the trial judge’s determination does not bespeak error.
Insufficient reasons
[18]Richards v Wylie (2000) 1 VR 79, 87 [17] and 90 [28]; Rodda v Transport Accident Commission [2008] VSCA 276, [103].
[19]Reasons, [46]-[47].
[20]Ibid [25] and [43].
Mrs De Agostino also claimed that the trial judge failed to provide adequate reasons as to why the differences in capacity and quality of life identified in the lay affidavits did not amount to a serious injury. It was submitted that the trial judge failed to explain why the physiotherapy, which ceased in September 2002, and restarted immediately after the 2003 accident, did not point to the 2003 accident being a serious injury.
The respondent submitted that the trial judge had a proper basis for his conclusions and that reasons can be adequate, as here, ‘by a combination of what is expressly stated and inferences that necessarily arise’.[21]
[21]Transport Accident Commission v Kamel [2011] VSCA 110, [86].
I agree with the respondent that an appreciation of the reasons as a whole, as described above, make it clear that the trial judge went through a proper Petkovski analysis, comparing the condition of Mrs De Agostino before and after the 2003 accident, dealing with the medical and other evidence and concluding, as a matter of fact and degree, having seen all the evidence, that there was not an aggravation of Mrs De Agostino’s pre-existing condition which amounted to a ‘serious injury’. It is necessary to appreciate that the evidence elicited in cross-examination reduced the significance of much of the other evidence, including the cessation of physiotherapy shortly before the 2003 accident, suggesting as it did that as late as five days before the 2003 accident Mrs De Agostino’s neck and shoulders were not in excellent condition but rather that the pain experienced was ‘always there’.
Confusion of extent of impairment and causation of impairment
I turn to the second proposed ground of appeal, that relating to the conflation of the extent of the impairment and the cause of the impairment. It was not in dispute that there were several potential causes of Mrs De Agostino’s symptoms. Mrs De Agostino conceded that on the ‘worst case scenario’ there were five causes: the 2003 accident, the three preceding accidents and the degenerative process in the spine.
It was submitted that the trial judge erred in confusing the question of causation with the central question of the extent of the impairment. Causation was argued to be a matter to be dealt with at the trial for damages, if there was to be one, and should be considered wholly irrelevant at the stage of applying for leave, s 93 of the Act being merely a ‘gateway’ provision. It was argued to be wrong of the trial judge to have relied on the opinion of Professor Davis on the irrelevant issue of the causal apportionment of the four accidents in Mrs De Agostino’s overall symptoms and to have used the opinion, erroneously, on the central issue of the extent or degree of impairment. Causal apportionment was said not to be in issue because it is well recognised that the one injury may be the product of more than one cause.[22]
[22]In support of that proposition, Mrs De Agostino relied upon the cases of R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386 and Grech v Orica Australia Ltd (2006) 14 VR 602.
The respondent submitted that the causation question is one which does need to be examined, to some degree, at the stage of applying for leave under s 93 of the Act. This approach, it was argued, was supported by authority of this Court, in particular Petkovski v Galletti, discussed above, where the Court held that where the claimant has a pre-existing injury, he or she must establish at the stage of applying for leave that ‘the injury which has been caused by or is the result of the relevant accident is a “serious injury”’.[23] This means that, where there is an aggravation of a pre-existing impairment, the claimant must not only show that the aggravation injury is, in its consequences, a serious injury, but also that the aggravation injury is the result of the relevant accident. This must inevitably involve a question of causation.
[23][1994] 1 VR 436, 444 (emphasis in original).
I agree. Ultimately, the definition of ‘serious injury’ in the Act cannot be dissociated from the section in which it operates. The first sub-section of s 93 provides the general prohibition on actions for damages, providing that a ‘person shall not recover any damages in any proceedings in respect of the injury … of a person as a result of a transport accident’ except in accordance with s 93.[24] Section 93(4)(d) provides an exception, providing ‘the person may not bring
proceedings in respect of the injury unless … a court … gives leave’.[25] ‘The injury’ can only mean the injury spoken of earlier in the section, which occurred as a result of the transport accident. There is no other relevant injury of which one can sensibly speak. Similarly, s 93(6), which provides that a court must not grant leave ‘unless it is satisfied that the injury is a serious injury,’[26] necessarily imports the notion that ‘the injury’ is the one that occurred as a result of the transport accident. Finally, the definition of ‘serious injury’ in s 93(17) is, again, to be read noscitur a sociis. That definition gives meaning to s 93(6) (and other surrounding sub-sections that rely upon the notion of a ‘serious injury’), all of which relate in turn to an injury which occurred as a result of a transport accident.
[24]Emphasis added.
[25]Emphasis added.
[26]Emphasis added.
I consider that the trial judge correctly took into account the opinion of Professor Davis and the other evidence which relevantly concerned any causal relationship between the aggravation injury suffered in the 2003 accident and the condition of Mrs De Agostino’s cervical spine after that injury. The trial judge addressed the correct question, applied the correct principles and considered the whole of the evidence.
Conclusion
In my opinion, for the reasons I have given, the trial judge’s decision is not attended with sufficient doubt to warrant a grant of leave. I would refuse leave to appeal.
MACAULAY AJA:
I agree with Tate JA.
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