Demmler v Transport Accident Commission
[2018] VSCA 284
•9 November 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0070
| SAMANTHA DEMMLER | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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| JUDGES: | BEACH, KAYE JJA and MACAULAY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 November 2018 |
| DATE OF JUDGMENT: | 9 November 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 284 |
| JUDGMENT APPEALED FROM: | [2018] VCC 626 |
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ACCIDENT COMPENSATION – Appeal – Transport accident – Serious injury application – Injury to the spine – Consequences relating to pain and suffering and pecuniary disadvantage – Whether consequences serious – Consequences of injury to applicant at least very considerable – Primary judge erred in refusing application – Appeal allowed – Leave granted to applicant to commence common law proceeding – Transport Accident Act 1986, s 93.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A D B Ingram with Mr J Valiotis | Slater & Gordon Ltd |
| For the Respondent | Mr J Ruskin QC with Ms K M Manning | Solicitor for the Transport Accident Commission |
BEACH JA
KAYE JA
MACAULAY AJA:
On 19 July 2014, the applicant was a front-seat passenger in a motor vehicle that ran off the road and collided with a tree. Following the collision, the applicant was taken to the Alfred Hospital.
By an originating motion filed in the County Court on 6 June 2017, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’), to commence a proceeding at common law claiming damages for the injuries she alleged she sustained as a result of the collision. The application was heard on 26 February 2018. 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 spine. The applicant’s credit was not put in issue by the respondent.
On 10 May 2018, the judge dismissed the applicant’s application.[1] The applicant now seeks leave to appeal and (if leave is granted) to appeal the judge’s order refusing her leave to commence a common law proceeding. The applicant’s proposed grounds of appeal are as follows:
[1]Demmler v Transport Accident Commission [2018] VCC 626 (‘Reasons’).
1.The judge at [58] mis-stated, and in consequence failed to properly assess in his reasons, the nature of the cervical spine injury assessed by orthopaedic surgeon Mr Kierce.
2.The judge failed to provide adequate reasons for preferring the diagnosis and opinion of GP Dr O’Gorman at [55], [59], [61], [70], [72] and [78] in particular having regard to:
(a)lack of contemporaneous treatment or assessment of the applicant by Dr O’Gorman;
(b)contemporaneous treatment of the applicant by clinical physiotherapist Deborah Low, acupuncturist and massage therapist Nadia Gazzi, and physiotherapist Treena Lord and the evidence of those practitioners;
(c)the evidence of the applicant as to increasing cervical and lumbar spine symptoms during 2017 and 2018 necessitating increasing treatment and use of pain relieving medication over that period;
(d) the evidence of orthopaedic surgeon Mr Kierce;
(e) the evidence of orthopaedic surgeon Mr Miller.
3.The judge erred in holding at [78] that the applicant’s return to full-time duties, erroneously described as a ‘more arduous job’ and ‘a physically demanding job’, was a ‘very important factor’ in finding that ‘the pain and suffering consequences of this accident are marked, significant, or considerable, but they are not very considerable or more than that, or more than marked or significant’.
4.The judge erred in law in failing to assess the potential pecuniary loss to the applicant by reason of her inability to dance in videos accompanying her digital music release in determining whether the impairment consequences of her spinal injuries were ‘very considerable’.
5.The judge having regard to the impairments from her injuries found to be present, failed to provide adequate reasons for determining that such impairment consequences were not ‘very considerable’ when measured in terms of pain and suffering and/or pecuniary loss consequences to the applicant.
In her application for leave to appeal, the applicant seeks orders that the judge’s order be set aside and this Court ‘determine for itself’ the s 93(4)(d) application. Alternatively, the applicant seeks to have her application remitted to the County Court for rehearing.
The evidence generally
On the hearing of the application in the County Court, the applicant relied upon three affidavits that she swore on 18 May 2016, 20 November 2017 and 23 February 2018. She also relied upon an affidavit sworn by her supervisor, Caitlin Bird, on 24 November 2017, and an affidavit sworn by a long-time friend, Ellisha Haris, on 29 November 2017.
At trial, the applicant gave evidence and was cross-examined. No other viva voce evidence was given on the application before the judge. During the course of the applicant’s cross-examination, a DVD containing surveillance of the applicant was played. The DVD was subsequently tendered. The DVD was largely of the applicant walking. Ultimately, the judge concluded that surveillance footage was ‘not inconsistent with either a good or bad back’.[2]
[2]Ibid [69].
At the conclusion of the applicant’s evidence, the parties’ court books were tendered. The material tendered included a report from the Alfred Hospital, reports from the applicant’s treating practitioners, medico-legal reports, radiological investigations and clinical notes.
The applicant’s evidence
The applicant was born in September 1992. She was 21 years of age at the time of the collision, and 25 at the time of trial. While the applicant was cross-examined at trial, and surveillance film of her was tendered, as we have already noted, the applicant’s credit was not put in issue before the judge (or indeed in this Court).
The applicant gave evidence that after completing VCE, she commenced employment in the real estate industry where she worked for about six months in a reception position. She then worked for Victoria Police as a filing clerk for about six months, before commencing employment with Kay & Burton in South Yarra. The applicant engaged in this employment for approximately three and a half years, working in residential leasing. She was so employed as at the date of the collision.
After the collision, the applicant was off work for a week. She then returned to her employment at Kay & Burton. From September 2014, the applicant worked for Hocking Stuart (again in residential leasing). She performed this work for about six months. The applicant then commenced employment with Crown as a VIP host in the Mahogany Room at Crown Casino. She was still in this employment up to and at the time of trial.
Following the collision, the applicant was taken to the Alfred Hospital where she underwent a CT scan of her cervical spine. The applicant gave evidence that she remembered having a back scan at the hospital, although this was not recorded in the Alfred Hospital’s report. She re-attended the hospital on 31 July 2014.
In her evidence, the applicant described having received conservative treatment from the date of the collision until the date of the County Court hearing. The applicant received treatment from general practitioners, physiotherapists and an osteopath. She gave evidence that she had also received chiropractic treatment and acupuncture, and that her treatment had also included Pilates. In addition to this treatment, the applicant gave evidence of having to take over the counter pain medication and anti-inflammatory tablets on an ongoing basis.
In her 2016 affidavit, the applicant deposed to having suffered from neck pain from the time of the collision, and also to having suffered increasing problems with her lower back. At the time she swore her 2016 affidavit, the applicant said that there had been no real improvement in either her neck pain or her back pain over an extended period of time.
In her 2017 affidavit, the applicant deposed to continuing to suffer from ‘ongoing variable levels of spinal pain’. The applicant said:
The pain is perhaps worst in my neck where there is constant pain although the severity of the pain can vary. During periods of more intense pain, I find that the pain tends to travel up through the back of my head and to the region behind my right temple. My thoracic pain is variable and generally not as intense as the cervical or the lumbar pain. In the lumbar spine, I also suffer from pain of variable intensity and find that during periods of increased bouts of pain, I have been suffering in recent months from radiation of symptoms into my right leg as far down as my mid-thigh region.
In her 2018 affidavit, the applicant deposed:
I continue to suffer from constant neck and back pain. The pain has certainly fluctuated over the years, however it has never disappeared. … I have found myself needing to rest more. My neck remains painful as does my back and it feels like a vicious cycle of one feeling better and the other becoming worse. My spine remains painful.
The applicant gave evidence of having to give up a number of recreational activities that she enjoyed. The judge accepted the applicant’s evidence that, while she used to visit the gym six times a week, she no longer did this.[3] As the judge put it in respect of other recreational activities previously engaged in by the applicant:
She rode horses, but no longer. She danced, but, again, no longer, and she also performed kick boxing but, again, no longer.[4]
[3]Ibid [22].
[4]Ibid.
The applicant described how she used to engage in boxing and kickboxing on a weekly basis before the collision. She said that she used to love these activities. In evidence, the applicant was asked what it meant to her that she had not been able to ride since the collision. She said:
It’s devastating. I’ve grown up with them [horses] my whole life.
In her 2016 affidavit, the applicant said that she used to enjoy dancing but was no longer able to do so. In her 2018 affidavit, the applicant described releasing her fourth single on a digital platform in December 2017. The applicant said that her singing is extremely important to her, and that she would ‘love to make [her] living’ out of this. She said that her music requires ‘dance, choreography and visuals’ to be promoted properly, and that she was ‘hamstrung by an inability to perform the accompanying dance and choreography videos’ as a result of her injury. In cross-examination, the applicant agreed that she has been able to dance at social events since the collision ‘occasionally’. The applicant, however, distinguished the ability to do a little dancing occasionally at a social event, from what is necessary in order to promote music professionally.
In relation to the potential to earn income from her music, the applicant said that she had earned approximately $2,000–$2,500 for each of the four tracks she has released.
The applicant gave evidence that her work at Crown Casino required her to wear high heels and involved shifts that could vary between eight and 13 hours which, in the applicant’s words, ‘is a long time and places a great strain on my spine’. In cross-examination, the applicant accepted that her present job occupied her for up to 15 hours per day, ‘sometimes more’. The applicant was cross-examined about taking the job at Crown. It was put to her that she took the job knowing that it would involve lengthy periods of being on her feet. She said:
I did, similar to real estate. Both required me to work long hours and be on my feet for lengthy periods of time.
A major theme of the cross-examination of the applicant was that there was surveillance footage of her walking to and from work in high heels, and that walking in high heels (when she did not have to) was inconsistent with her complaints of suffering from significant spinal pain. The surveillance footage of the applicant, however, also showed the applicant from time to time using what she described as ‘supportive boots’. When asked about why she wore high heels to work on some occasions and not others, the applicant said that it depended on her work schedule and whether she needed to go straight to a meeting. She said that if she was ‘able to wear flats and put other shoes in [her] bag [she] most certainly [would] do’.
Caitlin Bird’s evidence
Caitlin Bird is the applicant’s direct supervisor in her current employment. In her affidavit, Ms Bird deposed to having learnt that the applicant had been injured in a motor vehicle accident, approximately six months after the applicant commenced her employment. Ms Bird said she discussed the applicant’s ongoing back pain with her ‘and the steps she could take at work to get through the day and staying off her feet for periods of time’.
Ms Bird deposed to having seen the applicant being uncomfortable and requiring breaks when her back causes her increased pain. Specifically, Ms Bird said:
The plaintiff is a committed and dependable staff member focused on her work. She asks for breaks when she needs them; she knows the job that she has to do and despite the fact that she will tell me on the side that she is struggling to be on her feet, she will make sure that her job is done properly and then she will take a break which may mean that she sits down, or lies down on the floor to give her back a rest. I have witnessed this and in fact I encourage her to lie down in another room if it gives her some pain relief.
…
I value the plaintiff as an employee and I support her when she needs to take breaks. She does her job, she does it well even though she has told me on many occasions that her back is causing her a lot of pain. She hides it well from the customers.
In relation to the applicant’s future prospects in her current employment, Ms Bird said:
The job that the plaintiff does should be fun and it should be comfortably done by a person her age male or female. I have a young team and the job is usually very enjoyable and very rewarding. She has struggled being on her feet and she has had to lie down at work on many occasions. If her physical capabilities worsen, and she becomes more easily exhausted, she will have to look at doing something that requires less standing time. I will remain supportive of her whilst she is part of my team.
Ellisha Haris’s evidence
Ellisha Haris’s evidence was that she had known the applicant since they were small children. Prior to the collision, she and the applicant rode horses regularly. As Ms Haris put it:
Horses have been an obsession for both of us over the years and my passion has continued whereas I know that the plaintiff’s involvement with horses ceased after her accident.
Ms Haris deposed to sharing accommodation with the applicant for a year during 2015/2016. Ms Haris said she saw the applicant in pain on a daily basis during that time. To her observation, the applicant did whatever it took to get through the working day, and Ms Haris watched the applicant at home ‘completely spent and in pain’ at the end of her working days.
Ms Haris described the applicant as ‘tough and resilient’ and one of the strongest people she knows. Ms Haris said:
The plaintiff attended gym on a daily basis pre-accident, she’s always been very active, intensely focused on fitness and agility and she took enormous pride in her appearance. She’s put on weight, she hates talking about it and she’s tried to diet and find other ways of trying to take the weight off but I can see that she’s gotten heavier due to her inability to be as active as she used to be.
I’ve discussed this subject with her and she gets upset about it. She hasn’t gotten back to horse riding, she’s put on weight and she battles to get through her working day wearing very high heels and keep a smile on her face. It’s really important to the plaintiff that she does keep a smile on her face, that she does keep her image because she wants to become a successful singer, but now her ability to dance has also been negatively impacted by her back pain.
The medical evidence
The medical evidence consisted of a report from the Alfred Hospital; a report from an osteopath who treated the applicant, Dr Danny Williams; two reports from the applicant’s general practitioner, Dr Michael O’Gorman; reports from three physiotherapists who have treated the applicant, Cameron Steptoe, Deborah Low and Treena Lord; a report from Nadia Gazzi, who provided the applicant with acupuncture and massage treatment; two reports from Mr Paul Kierce, an orthopaedic surgeon who examined the applicant on behalf of the applicant and the respondent jointly;[5] two reports from a psychiatrist, Dr Matthew Tagkalidis, who examined the applicant on behalf of the parties jointly; a report from Mr Russell Miller, an orthopaedic surgeon, who examined the applicant at her solicitor’s request; and a report from Dr Arshad Barmare, an orthopaedic surgeon who examined the applicant on behalf of the respondent.
[5]The statement, at Reasons [16], that Mr Kierce examined the applicant at her solicitor’s request is not correct.
In light of the applicant’s proposed grounds of appeal, and the arguments presented in this Court, it is not necessary for us to set out all of the medical evidence. For present purposes, it is sufficient to summarise the evidence of Dr O’Gorman, Mr Kierce and Mr Miller.
In Dr O’Gorman’s first report (dated 24 September 2015), he set out the various dates upon which he treated the applicant. He referred to a history of the applicant having a CT scan of her neck and an X-ray of her thoracic spine and that these were reported as normal. Dr O’Gorman was aware that the applicant had also had an MRI of her neck. In his report, he said that he made a telephone call in relation to the MRI scan. He said that he was advised that no acute injury was noted on the MRI scan. There was a note, however, of ‘an old desiccated disc bulge at C4/5’. In his first report, Dr O’Gorman said that he would not expect that this ‘old finding’ was of relevance to the applicant’s presentation after the collision. He expressed the opinion that he expected the applicant’s prognosis to be good, saying:
Her injury was uncomplicated and investigations were reassuringly satisfactory. Soft tissue injuries can sometimes be prone to continued episodic aggravations and if these occur, they can be managed with simple analgesia, massage, and perhaps short duration anti-inflammatories.
In his second report (dated 12 September 2017), Dr O’Gorman expressed the same opinions about the applicant’s injury and her prognosis as he had expressed in his first report.
Mr Kierce examined the applicant in December 2015. Following his examination, he expressed the following opinions:
In my opinion Samantha Demmler suffered a soft tissue injury to her cervical spine in the motor vehicle accident of the 19th of July 2014. She has either aggravated pre-existing cervical spondylosis or else has a new lesion of a disc prolapse at C4/5 caused by the accident.
She has definite referred pain into the left upper limb and may in fact have radiculopathy but while the left biceps reflex is reduced in intensity the fact is that it is still present.
It is also my opinion that she has suffered an injury to her lumbar spine in the accident of the 19th of July 2014 as it has been reported that there is an annular tear at L5/S1 disc. I would like to see the MRI examination of her lumbar spine to confirm that. There is no evidence of radiculopathy from the lumbar spine injury.
…
The accident is likely to accelerate the degenerative changes already present in her cervical spine and make her cervical spine more vulnerable to further injury and the same points apply to her lumbar spine. She is likely to suffer with some intermittent pain and limitation of movement in both her cervical and lumbar spines.
…
I know of no unrelated injury or condition that has been aggravated by the transport accident.
In relation to the MRI report in respect of which Dr O’Gorman was told that an old desiccated disc protrusion had been noted, Mr Kierce said:
With regards to the opinion of [the radiologist] regarding her cervical spine MRI, I have not actually seen the report by a radiologist but a general practitioner states that the radiologist stated that there was an old desiccated disc protrusion at the disc at C4/5. However in my opinion, having viewed these films myself, I do not see why it is stated that this is an old abnormality as it could have been due to the accident in my opinion.[6]
[6]Emphasis added.
In his second report (dated 8 February 2016), Mr Kierce stated that he had now observed the MRI examination of the applicant’s lumbar spine. He said that this examination showed there was a degenerate lumbosacral disc associated with a small annular tear at L5/S1. Mr Kierce’s opinion was that this was radiological confirmation of the applicant having injured her lumbosacral disc in the collision.
Mr Miller examined the applicant on 6 October 2017. In his report of that examination, under the heading ‘Diagnosis and Prognosis’, Mr Miller said:
Cervical Spine
She suffered an injury to her cervical spine with musculo-ligamentous strain, aggravation of degenerative disease in the cervical spine and probable disc injury to the C4/5 level. It is likely that there is an underlying congenital fusion of C3/C4 vertebra. There is radiation into the left upper extremity, but no other features suggestive of radiculopathy or neurological deficit. The client has had only a moderate response to conservative measures. The prognosis for this is only fair.
Lumbar Spine
She has suffered an injury to her lumbar spine with musculo-ligamentous strain to the lumbar spine, aggravation of degenerative in the lumbar spine and probable development of disc injury at the L5/S1 level. There is radiation into the right lower extremity. There is no neurological deficit and no other evidence of radiculopathy. The client has had only moderate response to conservative measures. The prognosis for this is only fair.
As to the need for further treatment, Mr Miller expressed the following opinion:
The client has had appropriate treatment to date. She will require ongoing conservative treatment. Her current conservative regime is appropriate and may need to continue indefinitely. It may include additional measures for pain management and rehabilitation.
It is possible that the client may benefit from surgery to the cervical spine or lumbar spine. I note that such surgery is complex with prolonged rehabilitation, significant complication rate, and only moderate reliability.
Requirement for treatment is being regarded as being accident related.
The judge’s reasons
The judge commenced his reasons with a description of the applicant’s background, the circumstances of the collision, the applicant’s evidence, the evidence of Ms Bird and Ms Haris and the medical evidence.[7] The judge then set out some relevant legal principles, extracting passages from Humphries v Poljak,[8] Dwyer v Calco Timbers Pty Ltd[No 2],[9] Stijepic v One Force Group Aust Pty Ltd,[10] Sumbul v Melbourne All Toya Wreckers Pty Ltd,[11] and Tatiara Meat Co Pty Ltd v Kelso.[12]
[7]Reasons [2]–[51].
[8][1992] 2 VR 129 (‘Humphries v Poljak’).
[9][2008] VSCA 260 (‘Dwyer’).
[10][2009] VSCA 181 (‘Stijepic’).
[11][2006] VSCA 292.
[12][2010] VSCA 12.
The judge then said that he believed what the applicant had told him in evidence, noting that the respondent had not submitted otherwise to him.[13]
[13]Reasons [54].
The judge then referred in more detail to the evidence of Dr O’Gorman, Mr Kierce and Mr Miller. He then identified the applicant’s injury in the following terms:
The accident caused a tear in the L5-S1 disc. I cannot say the accident caused the desiccated bulge at C4-5. The language of Mr Kierce places the link in the realms of possibility only. The language of Mr Miller is more definite, despite not seeing the report or the scans. The unknown radiologist implicitly excludes the link by speaking of ‘an old desiccated disc bulge at C4/5’.
Despite the tenuous nature of the evidence, I accept the accident aggravated degenerative changes in her cervical and lumbar spines. No one says the effect of the aggravation is temporary or permanent. Given the time passing, it is likely to be the latter. It caused a musculoligamentous strain to her lumbar spine. Pain is radiated into her right leg from the lumbar spine.[14]
[14]Ibid [58]–[59].
The next section of the judge’s reasons is headed ‘Pain and suffering consequences’. Under this heading, the judge identified the applicant’s pain and suffering consequences as follows:
First, there is always pain in Ms Demmler’s neck and back. It varies in intensity, but never goes away. At times the neck is worse than the back while, more recently, it is the back. There is also thoracic pain. However, she works at a job with shifts of between eight and thirteen hours daily, and occasionally to fifteen hours, while wearing high-heeled shoes. By the end of a shift she often has increased pain. As she told Mr Barmare, ‘This hurts her …’. She bears this because she loves the job. Although the word ‘stoic’ is over-used in this kind of dispute, she is determined. She has the determination of youth. I do not know how long men or women last in this particular job. She started after the accident and has now worked in it for about three years. It hurts her, but she does it. She has not sought other work.
Second, Ms Demmler no longer rides horses. She had done so from a young age. It was a love of hers, and her inability is a massive loss of enjoyment for her.
Third, Ms Demmler was a fit and energetic person. She cannot now box, kick-box or lift weights. Her ability to go ‘clubbing’ with her friends is lessened.
Fourth, Ms Demmler cannot dance in a video accompanying her musical singles. Since other singers do, she is disadvantaged. I cannot say whether her singing ability is enough to enable her to live by it, but her inability to dance places her at a disadvantage. Although she continues to release singles, her chances of earning a living at singing are lessened. For a young person searching for a career, this is a blow.
Fifth, Mr Kierce and Mr Miller noted the occasional use of medicine. Mr Tagkalidis notes none in October 2017. Mr Kierce says physiotherapy is unnecessary. She now takes Panadol or Nurofen daily. This started late last year, after she worked over the Christmas break.[15]
[15]Ibid [63]–[67].
Next, the judge described the surveillance footage of the applicant. Having described this footage, as we have already observed, the judge concluded that the footage was ‘not inconsistent with either a good or bad back’.[16]
[16]Ibid [69].
The judge then dealt with the issue of whether the applicant’s impairment was long-term. He concluded that it was a long-term impairment with an expected course as outlined by Dr O’Gorman, being that ‘the condition of her neck and back will become painful from time to time, will need treatment, and then subside following treatment’.[17]
[17]Ibid [70]–[72].
Finally, under the heading ‘Serious’, the judge said:
The test of whether an ‘injury’ is ‘serious’ is stern. This emerges from the passage I quoted from Humphries & Anor v Poljak. It involves a comparison, and then the test itself. Impression and value-judgement are highly significant.
Ms Demmler has pain in her neck and back. It is constant, but varies in intensity. Both parts are not always painful. On one occasion she reported no pain in her back. At present, she takes one or other of Panadol or Nurofen daily. Both are obtained over the counter and are moderate medicines.
Ms Demmler’s pain prevents her from horse riding, boxing, kickboxing and most dancing. She does not go clubbing as much. She would like to earn a living as a singer. In her style of singing she has videos, and these should have her dancing on it. She cannot do that. She has launched four singles. They have brought her some money. The pain frustrates her ambition.
Ms Demmler’s lack of exercise has increased her weight, which upsets her.
At the time of the accident, Ms Demmler worked full time. After the accident, she was off work for a week before returning to full duties. The following year, she started a job which involved long hours. Many of those hours involved standing in high-heeled shoes. She even walks to and from work in high heels, something she need not do. She concedes wearing high-heeled shoes causes her pain. Her manager supports her, allowing her to rest and lie down. However, the fact remains her injury does not stop her working in a physically demanding job, and for hours longer than many others work.
As to the future, the assessment of Dr O’Gorman is preferable. He has treated Ms Demmler over several years. In his reports, he has set out each attendance, the complaint and his response. He has seen the reports of scans. His prognosis is good.
Ms Demmler undertakes treatment from time to time. The pressure of her work prevents regular attendance. The pain is reduced through simple measures. Its long-term resolution is prevented by the demands of her work. Standing a lot in high heels tends to aggravate her back and neck.
Ms Demmler now takes medicine, which are relatively modest in their effect.
For Ms Demmler, the pain and suffering consequences of this accident are marked, significant, or considerable, but they are not very considerable or more than that, or more than marked or significant. A very important factor is her return to full-time duties, not in alternate duties, and in a different and more arduous job. Apart from a week after the accident, she has worked full time. She then took up a physically demanding job. It is not always so, but she can work long hours while wearing shoes that hurt her. She has done so for about four years.[18]
[18]Ibid [73]–[81] (citations omitted).
Submissions of the parties
The applicant’s primary argument concerned proposed grounds 4 and 5. In summary, the applicant submitted:
(1) The judge failed to assess those consequences of the applicant’s injury that related to pecuniary disadvantage.[19] Specifically, the applicant relied upon the fact that her injury had substantially hampered her potential singing career, as well as putting at risk her ability to engage fully and continuously in her present employment or other employment for which she was reasonably suited.
(2) Having regard to the evidence that her injuries continued to cause significant pain and had precluded the applicant from engaging in activities from which she formerly derived considerable enjoyment (gym work six days a week, boxing, kickboxing and horse riding), the judge failed to explain adequately or at all, or disclose a path of reasoning to, his conclusion that the applicant had not satisfied the ‘very considerable’ test[20] so far as pain and suffering and loss of enjoyment of life consequences were concerned. In the course of this submission, the applicant, in effect, contended that it was not open on the whole of the evidence for the judge not to be satisfied that the consequences of the applicant’s injury were not at least very considerable.
[19]Cf Humphries v Poljak [1992] 2 VR 129, 140.
[20]That is, that the consequences of the applicant’s injury were at least ‘very considerable’ as required by, and described in, Humphries v Poljak [1992] 2 VR 129, 140.
Under proposed grounds 1, 2 and 3, the applicant submitted:
(1) The judge was wrong not to accept that the disc bulge at C4/5 was caused by the collision.
(2) The judge was wrong to prefer Dr O’Gorman’s opinion as to the applicant’s future prognosis. On the whole of the evidence, the applicant submitted that the judge should have preferred the opinions of Mr Kierce and Mr Miller as to the applicant’s future prognosis.
(3) The judge erred in finding that the applicant had engaged in a more arduous job when she took up employment with Crown, and then erred in relying upon this fact as showing that the consequences of the applicant’s injury were not at least very considerable.
In respect of proposed grounds 1, 2 and 3, the respondent submitted that the judge made no error. It was submitted that the findings sought to be impugned by these proposed grounds were open on the evidence. Moreover, it was submitted that even if the applicant could establish some error of the kind sought to be established by these proposed grounds, that error would not vitiate the judge’s conclusion that the applicant had not satisfied the very considerable test.
With respect to the complaint that the judge preferred the evidence of Dr O’Gorman, the respondent submitted that Dr O’Gorman’s reports were tendered by the applicant, and the applicant made no submission to the judge that he should not act upon those reports. In the alternative, the respondent submitted that there was no real conflict between Dr O’Gorman’s opinion and the opinions of the other medical practitioners. The real issue was whether, on the whole of the evidence, the consequences of the applicant’s injury satisfied the very considerable test.
On the question of whether the applicant’s work at Crown was more arduous, the respondent submitted that this finding was open to the judge because of the number of hours (sometimes in excess of 15 hours on one day) that the applicant worked in that employment compared to her previous employments.
The respondent accepted that the resolution of proposed grounds 4 and 5 was more determinative so far as the present proceeding is concerned. In relation to proposed ground 4, the respondent submitted that the judge made no error in failing to say more about pecuniary loss consequences. The respondent observed that little emphasis was given to this issue by the applicant in her submissions to the primary judge. Moreover, the possibility of the applicant engaging in a singing career, but for her injury, was said to be entirely speculative.
So far as proposed ground 5 was concerned, the respondent submitted that the judge’s reasons were sufficient and adequately disclosed a path of reasoning. The issue was one of the evaluation of questions of fact and degree. The judge had the advantage of seeing the applicant in the witness box. The judge’s conclusion was, on all of the evidence, open. The respondent submitted that the applicant’s submissions to the contrary were not reasonably arguable, and that leave to appeal should be refused on all grounds.
Both sides agreed that, in the event that the applicant established a ground of appeal that required the applicant’s s 93(4)(d) application to be re-determined then, rather than remitting the proceeding to the County Court, this Court should re-determine the application. The parties accepted that this Court was well-placed to perform a re-determination, if necessary, there being no relevant issues of credit.
Analysis
Proposed grounds 4 and 5
When considering the issue of seriousness, the judge was required to determine whether the consequences of the applicant’s spinal injury were serious to her. As was said by the majority in Humphries v Poljak:
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.[21]
[21]Humphries v Poljak [1992] 2 VR 129, 140.
The applicant relied upon consequences that related to pecuniary disadvantage and pain and suffering. So much is clear from the references in the applicant’s final address to the judge to the applicant’s difficulties at work, her potential singing career and this Court’s decision in State of Victoria v Glover.[22]
[22][1998] VSCA 93.
The judge, in a discrete section of his reasons for judgment, dealt specifically with the applicant’s pain and suffering consequences.[23] There was, however, no corresponding section dealing with the applicant’s pecuniary loss consequences. Instead, in his penultimate paragraph,[24] the judge referred again exclusively to the applicant’s pain and suffering consequences, saying that they were ‘marked, significant, or considerable, but they are not very considerable or more than that, or more than marked or significant’.[25] Far from then considering questions of pecuniary disadvantage, the judge then supported his conclusion that the pain and suffering consequences were ‘not very considerable’ by saying that:
A very important factor is her return to full-time duties, not in alternate duties, and in a different and more arduous job.
[23]Reasons [62]–[67].
[24]Ibid [81].
[25]Emphasis added.
A number of points may be made. First, the applicant was required to establish that the consequences of her injury were at least ‘very considerable’. She was not required to establish ‘more than that’.[26]
[26]Cf Reasons [81].
Secondly, in an application under s 93(4)(d) of the Act, the judge is ultimately required to determine whether the pain and suffering consequences combined with any pecuniary disadvantage consequences satisfies the very considerable test. In this regard, an application under s 93(4)(d) of the Act is to be contrasted with applications made under s 134AB(16)(b) of the Accident Compensation Act 1985 (and its equivalent, s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013) where pain and suffering consequences are required to be considered separately from loss of earning capacity consequences.[27]
[27]See s 134AB(17) and (38)(b) of the Accident Compensation Act 1985, and their corresponding provisions in the Workplace Injury Rehabilitation and Compensation Act 2013, ss 335(3) and 325(2)(b).
Thirdly, it is not immediately apparent why the evidence of the effect on the applicant of the loss of her major pre-injury recreational activities (an issue that did not appear to be seriously disputed before the primary judge) would be diminished by the fact that the applicant persisted in engaging in employment which caused pain and difficulty for her, as witnessed and accepted by her supervisor, Ms Bird.
In our view, the applicant has made out proposed grounds 4 and 5. The pain and suffering consequences contended for by the applicant are of themselves long-term and serious. To the extent the judge held otherwise, the judge’s assessment was, with respect, ‘plainly wrong’,[28] requiring it to be set aside.
[28]See Cowden v Transport Accident Commission [2003] VSCA 198 [18]; Davidson v Transport Accident Commission [2015] VSCA 12 [43].
The applicant was only 25 years of age at the time of trial. Her injury had destroyed her ability to engage in active physical pursuits from which she had previously derived great enjoyment. Her injury caused her considerable pain that affected her every day, requiring the daily consumption of medication. At the time of trial, the applicant had been suffering the consequences of her injury for three and a half years. On a proper analysis of all of the evidence, there was no real basis for any conclusion other than that the applicant would continue to suffer indefinitely from her injury to at least the extent she was suffering at the time of trial.
The fact that the applicant was prepared to engage in her current employment, with all of the difficulty that that entailed, was not a matter that told against the granting of her application. To use the words of Nettle JA in Dwyer,[29] ‘it
would be unfortunate, and in [our] view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned [herself] to [her] injury’.
[29][2008] VSCA 260 [3].
In the course of argument, the respondent referred us to this Court’s decision in Stijepic.[30] Stijepic is of little assistance to the respondent. While the applicant in Stijepic was unsuccessful, it is to be observed that that case was considered to be ‘borderline’.[31] The present case is, in our view, considerably further along the spectrum of seriousness than Stijepic. Stijepic is also supportive of the applicant’s claim on another ground. In Stijepic, the Court said:
All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.[32]
[30][2009] VSCA 181.
[31]Ibid [43].
[32]Ibid.
In our view, that observation is particularly apposite in the present case.
Having regard to the conclusion we have reached that the applicant’s pain and suffering consequences satisfy the very considerable test, it is strictly not necessary for us to say anything further about the other complaints made by the applicant under proposed grounds 4 and 5. Put briefly, however, we accept the applicant’s complaint that, having regard to all of the evidence, the judge, with respect, did not adequately explain his conclusion why the applicant did not satisfy the very considerable test. The judge failed to deal with the pecuniary loss consequence as part of the applicant’s case, and failed to explain how the applicant’s current employment situation detracted from the proposition that the established pain and suffering consequences were at least very considerable.
Similarly, while it is not necessary for us to say anything further about the applicant’s pecuniary loss consequences, the risk to the applicant’s current employment (as described by Ms Bird) is a significant matter which fell to be taken into account in assessing the consequences of the applicant’s injury. Moreover, however speculative one might consider the applicant’s proposed singing career, there was sufficient evidence to require some account to be taken of this when considering overall consequences.
Upon a complete consideration of all of the evidence tendered before the judge, we consider that the applicant’s case for leave to commence a common law proceeding was a particularly strong one.
Proposed grounds 1, 2 and 3
Having regard to our conclusions in respect of grounds 4 and 5, we can express our conclusions in respect of proposed grounds 1, 2 and 3 briefly.
In our view, there is force in the applicant’s complaint that the judge was wrong not to accept that the disc bulge at C4/5 was caused by the collision. The evidence to be weighed was, on the one hand, a hearsay assertion from Dr O’Gorman that someone told him over the phone that the MRI had been reported as showing ‘an old desiccated disc bulge at C4/5’, against, on the other hand, Mr Kierce’s actual examination of the MRI film, which led him to conclude that he did not see why it was stated that ‘this is an old abnormality’.
There was no evidence of any pre-existing neck injury or trauma suffered by the applicant. The judge’s conclusion that Mr Kierce’s opinion placed the link ‘in the realms of possibility only’[33] was, with respect, not correct. In our view, a fair reading of the entirety of Mr Kierce’s first report discloses that, in his view, the collision was a cause of the cervical disc lesion. That said, we accept the respondent’s submission that the establishment of this error by the applicant would not, of itself, vitiate the judge’s decision. The critical question in this proceeding was always whether such consequences as were established by the applicant satisfied the very considerable test — a question which we have now resolved in the applicant’s favour.
[33]Reasons [58].
Whatever may be said about the merits of proposed grounds 2 and 3, the respondent was again correct when it submitted that even if the applicant succeeded in setting aside the findings sought to be impugned in these grounds, this would not, of itself, vitiate the judge’s ultimate conclusion.
With respect to proposed ground 2, insofar as the judge accepted Dr O’Gorman’s opinion that the applicant’s prognosis was good,[34] that conclusion, on the whole of the evidence, might be thought to be unduly favourable to the respondent. We think, however, that there is force in the respondent’s submission that, in truth, there was not a great deal between the competing medical opinions. Again, the resolution of this proceeding fell to be determined by reference to a proper analysis of the established consequences of the applicant’s injury.
[34]Ibid [78].
With respect to proposed ground 3, there is force in the applicant’s contention that the evidence did not justify the judge’s conclusion that the applicant’s present employment was a ‘more arduous job’ than her earlier employments. That said, it is to be remembered that the applicant gave evidence of sometimes being required to work 15-hour days in her present employment. In the end, however, the question of whether the applicant’s current employment was more arduous than earlier employments could not be determinative of whether leave should be granted under s 93(4)(d) of the Act. The resolution of that question always depended upon a proper analysis of the consequences of the applicant’s injury. We have now performed that analysis and concluded that the applicant should succeed in her s 93(4)(d) application.
Conclusion
Leave to appeal must be granted and the appeal allowed. We will make orders setting aside the orders made in the County Court on 10 May 2018 and ordering, in lieu thereof, that the applicant’s application for leave, pursuant s 93(4)(d) of the Act, to commence a common law proceeding for damages be granted.
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