Dressing v Porter
[2006] VSCA 215
•17 October 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3777 of 2005
| FRED DRESSING | |
| Appellant | |
| v. | |
| DENIS F. PORTER | 1st Respondent |
| and | |
| TRANSPORT ACCIDENT COMMISSION | 2nd Respondent |
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JUDGES: | CALLAWAY, BUCHANAN and ASHLEY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 October 2006 | |
DATE OF JUDGMENT: | 17 October 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 215 | |
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Accident compensation – Transport accident – Permanent serious impairment or loss of a body function – Multiple conditions – Compensable and non-compensable conditions - Need to separately identify the compensable injury and its consequences – Whether inability to work, restrictions and limitations were consequences of compensable injury – Whether plaintiff’s evidence reliable – Whether trial judge dealt with all issues necessary to decide application - Sufficiency of reasons for dismissing application – Appeal allowed.
Transport Accident Act 1986, s.93(4)(d).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P.A. Jewell | Maurice Blackburn Cashman |
| For the Respondents | Mr J. Ruskin, Q.C. with Mrs E. Brimer | Solicitor for Transport Accident Commission |
CALLAWAY, J.A.:
My reading of the “key paragraphs” set out in the reasons of Ashley, J.A.[1] was that the learned trial judge accepted that the appellant’s neck was injured in the accident, that his neck symptoms had been treated in the ways he had described and that he was incapacitated to the extent he had claimed, but that his Honour could not find the requisite causal connection between the neck injury and the incapacity because he considered the appellant to be an unreliable witness and historian. (Apparently that was so even though the neck injury did not have to be the only cause of the incapacity.) Nevertheless I respectfully agree with Ashley, J.A. that the judge’s reasoning was not sufficiently clear or sufficiently supported by findings of fact.
[1]At [23] below.
It is unfortunate that the appeal must be allowed, because this branch of the County Court’s work, although of great importance to the parties, is particularly onerous. Appellate intervention is therefore all the more reluctant.
BUCHANAN, J.A.:
I agree with Ashley, J.A., for the reasons he has stated, that the appeal should be allowed.
ASHLEY, J.A.:
Frederick Dressing appeals[2] against the order of a County Court judge made 9 November 2005 dismissing his application under s.93(4)(d) of the Transport Accident Act 1986 (“the Act”) for leave to bring a proceeding to recover damages in respect of injury sustained in a transport accident which occurred on 12 April 2001. The judge expressed himself not satisfied on the evidence
[2]Pursuant to leave granted on 3 February 2006.
“that the injury to the [Appellant’s] neck caused by the accident has resulted in Humphries[3] pecuniary disadvantage or pain and suffering
consequences which satisfy the ‘very considerable’ test”.
[3]That is, Humphries & Anor v Poljak [1992] 2 VR 129.
The appellant relies upon four grounds of appeal:
“1.His Honour erred in failing to consider and determine the long term consequences of the impairment created by the Appellant’s neck injury.
2.His Honour erred in misapprehending the way the case for serious injury was advanced by the Appellant and failed to determine that case, and in that process His Honour –
(a)made findings adverse to the Appellant which were not open on the evidence and formed conclusions which were inconsistent with each other, and
(b)failed to consider all relevant evidence and to analyse and evaluate the evidence.
3.His Honour erred in failing to provide adequate reasons for his decision and failed to explain or to sufficiently explain the steps in his reasoning process to the conclusion that the Appellant had not sustained a serious injury.
4. His Honour erred in failing to analyse and explain –
(a)how and to what extent His Honour’s reservations concerning the Appellant affected His Honour’s acceptance “that the [Appellant’s] neck was injured in the accident and that he is incapacitated to the extent he has indicated…that his neck symptoms have been treated over the years in the active and passive ways he has described.”
(b)why a detailed consideration of all of the medical evidence was unnecessary in light of the case advanced by the Appellant.
(c)why, how and to what extent the force of the impact was relevant to or detracted from the professional judgments and opinions of medical practitioners.
(d)what medical evidence was accepted and why such evidence did not enable a finding of serious injury.
(e)what medical evidence, if any, was rejected and why such rejection was made.”
Ground 4 may be regarded, at least in part, as an amplification of the complaint raised by ground 3.
In my opinion, for the reasons which follow, the appeal should be allowed.
The issues at trial
It was not in dispute that on 12 April 2001 the appellant was the driver of a motor vehicle which, whilst stationary, was struck from behind by another vehicle. There was an issue as to the force of the collision. The appellant said, in effect, that it was considerable. The driver of the other vehicle said that impact was minimal. He estimated the speed of his vehicle when it struck the appellant’s vehicle at about 10 to 15 kph. It was common ground that the cost of repairs to the appellant’s vehicle was about $2,500.
Next, it was not in dispute that the appellant had been symptom free, so far as his cervical spine was concerned, up to the time of the accident; and that thereafter he complained of neck pain and (subsequently) of referred symptoms. Neither was it in issue that he had been treated conservatively in respect of his complaint of neck and arms symptoms between April 2001 and trial on 28 October 2005. Neither again was it in issue that a plain X-ray performed in May 2001, and an MRI performed in July 2001, disclosed degenerative changes affecting the appellant’s cervical spine. There was, on the other hand, dispute as to the extent of the pain and suffering consequences of neck injury sustained on 12 April 2001, and as to the existence and extent of any incapacity for work attributable to that injury.
Finally, the appellant had suffered from several medical problems before 12 April 2001; and in the period thereafter until trial other problems developed and/or worsened. A question arose whether any work incapacity was essentially attributable to one or more of those other conditions; likewise any pain and suffering from which the appellant was found to be suffering. As counsel for the respondents put it at trial –
“it’s quite simply in this case a matter of the defendant saying that the injury to his neck, the subject of this application, is not serious, doesn’t come up to the mark, and the limitations placed upon this man’s life both as a welder and as a person in society is affected drastically by other conditions and injuries, and there is a good number of them. So it will be our submission that in and of itself the neck injury doesn’t come up to the mark and that much of this man’s inability to do things insofar as he does have an inability, is brought about by a myriad of other matters.”
The judge’s reasons
The learned judge commenced his reasons by recitation of principle. No complaint is made by the appellant in that respect; nor could it be. The pertinent issues are rather whether, in substance, his Honour applied the principles which he outlined; and whether, having regard to his reasons, it is possible to determine if he did so.
Then his Honour set out passages from the appellant’s affidavit sworn 15 July 2005 in support of his application. It is desirable to reproduce some but not all of what the judge set out. Thus:
“3. I . . . am now 53 years old.
4.I left school when I was about 16 years old . . . I then worked as an apprentice boilermaker for about four years . . . In 1976 I went back to boilermaking full time and I continued to work in that occupation up to the date of the transport accident. . . .
6.Up to the date of the transport accident I was in good health. I was working for All Duct Fabrications, I think for a period of 8-12 months or more. In February 2001 I started my own business as a contract boilermaker specialising in stainless steel fabrication. Most of my boilermaker in work was done for Krebs Engineering. I ceased working for All Duct Fabrications in February 2001.
7.The transport accident occurred at around 6.00 p.m. on 12 April 2001. . . . I had stopped at traffic lights. . . . As I was stationary, my vehicle was struck behind . . . It was quite a violent collision. The force pushed my vehicle forward even though I had my foot on the brake. The collision also bent the front driver’s seat.
8.After the transport accident I was in shock. I then commenced to suffer pain in my neck.
9.. . . over the following days the pain got worse rather than better. . . . I first attended with the doctors . . . on 19 April 2001. I think that I was given some painkillers. In early May, one of the GPs arranged for an X-ray to be taken of my neck. . . .
10.Because of the condition of my neck, I was not able to go back to work as a contract boilermaker.
11.I attended with the doctors at the first clinic on about six occasions. In late June I started to attend with my current GP, Dr Milecki . . . I swapped clinics because I was undertaking physiotherapy at the same address as the Inter-health Clinic. . . .
12.Dr Milecki continued to prescribe medications and because there was no improvement arranged for an MRI scan to be taken of my neck. After the MRI Dr Milecki advised to cease physiotherapy. Because of the level of my pain, I had to go on to quite strong medication.
13.I continued the physiotherapy treatment for about three months. That treatment then started to aggravate the problems in my neck. I was noting pain not only in my neck, but down the side of my neck into my left shoulder and left arm. I was suffering numbness in the outside edge of my left hand.
14.Because boilermaking work involved me wearing a head shield, often holding my head and neck in the one position for lengthy periods, and using movements of my head and neck to flick the shield up and down, depending on what work I was doing. I was not able to return to this work after the accident. After the accident, the weight of the shield, holding my head in the one position, and the flicking motion caused severe aggravation of the neck pain. I had never experienced problems with these activities before the transport accident.
15.Because I was making no progress, Dr Milecki referred me to neurosurgeon Mr Danks, who I first saw on 21 September 2001. . . . I did not wish to proceed with surgery at that stage because Mr Danks could not guarantee that it would help . . . Mr Danks confirmed Dr Milecki’s recommendation that I be referred to see spinal physician Dr Vivian.
16.I first attended with Dr Vivian on 15 November 2001. At his clinic I saw both Dr Vivian and Dr Brozek (sic). I was given facet joint injections, and treatment with various medications over a period of months. I did not get a great deal of assistance from that treatment.
17.Since then I have simply continued to attend with Dr Milecki. Currently I see Dr Milecki about once a month. He prescribes anti-inflammatory Celebrex, and pain relievers Trammal and Panadeine Forte. Dr Milecki also prescribes some medications for other complaints including two medications for gout, and medications for high cholesterol and blood pressure. I have diabetes, but I do not require any medication for that disorder. . .
18.Some months after the accident I started to suffer symptoms in my left hip. Those symptoms gradually became worse. . . . I have been advised that I require replacement of my left hip. I have recently had the replacement on 17 June 2005.
19.As I have said above, I now suffer gout. I had occasional symptoms of gout in the late 1980s and early 1990s. However the gout became a more significant problem after the transport accident. . . .
20.I note that since the transport accident I have also suffered from kidney stones, and was treated for this disorder by specialist Nicholas Redgrave. The stones were dissolved, and I have no continuing problems.
21.I returned to some light work with All Duct Fabrications in June 2002. I was there for five months operating a roll forming machine. . . . I was only working five hours a day, one day a week. This was about the limit of what I could do. The work was a very light physical job. . . . Eventually they needed a full time worker. I could not work full time, so at that stage I stopped.
22.I note that because of inactivity caused by my neck injury, I have suffered a significant increase in weight since the transport accident occurred.
23.I continue to suffer constant pain in my neck. The pain is made worse by activity, by having to hold my head and neck still in awkward positions, and sometimes the pain increases without any apparent reason. Often the neck pain is severe. I have numbness in the little finger and palm of my left hand. I continue to suffer pins and needles in my side neck and left shoulder, and these are very aggravating.
24.I suffer significant pain in my left hip, which is worse when I am up trying to move around. . . . I have just had surgery and there is already improvement with the pain in my hip.
25.My sleep is very poor and is disturbed by pain.
26.Following the transport accident and my inability to get back to work, I became depressed. My depression has continued. Obviously it has not been assisted by the death of both of my parents.
28.I have suffered very substantial financial difficulties since the car accident…
29.I am now very substantially restricted in my activities. The restriction comes both from the condition of my neck and the condition of my left hip. The other health problems that I suffer, including some osteoarthritis in my hands, do not trouble or restrict me greatly. . . .
30.But for the transport accident, I would certainly have continued work as a boilermaker. Obviously my work would have been interrupted for a time because of the deterioration in my left hip. . . . I believe that had I not been injured in the transport accident, I would certainly be back working now. After my hip replacement I may have been restricted to lighter boilermaking work or to sheetmetal work. I would certainly have been able to get work, even if it was work of a lighter nature, but for my neck injury.”
Pausing for a moment, it can be seen that the appellant addressed in his affidavit a number of health problems apart from his neck condition. He did not mention, however, any problems affecting his right knee.
His Honour next said that it was unnecessary, “given the way the case unfolded at trial and the conclusions [he had] reached” to give detailed consideration to all the medical evidence (which had been received in the form of reports). This is an observation to which I shall later return.
In the event, his Honour set out parts of the X-ray and MRI reports concerning the appellant’s cervical spine. The former report, dated 3 May 2001, said this:
“The spine is normally aligned. There is no fracture and facet joints are intact. There is mild spondylosis at C5/6. The left C3/4 and right C3 to 5 facet joints are degenerated. Osteophytes from these joints mildly compromise the corresponding neural foramina. There is no bone destruction or cervical rib”.
The brief conclusion in the latter report, dated 31 July 2001, was as follows:
“No fracture identified. Facet joint arthropathy on the left at C2/3 and C3/4. Foraminal stenoses as described most marked on the left at C3/4 and T1/2.”
His Honour also set out parts of the medical reports which had been provided by:
· Dr. M. Gilovitz, General Practitioner.
· Dr T. Woodruff, Rheumatologist.
· Mr P Dohrmann, Consultant Neurosurgeon.
· Mr G. Klug, Consultant Neurosurgeon.
· Mr J. O’Brien, Consultant Orthopaedic Surgeon.
Dr Gilovitz was the general practitioner who initially treated the appellant for his neck injury. Dr Woodruff had examined the appellant in late 2000 in respect of pain and swelling in the joint behind the right big toe, and in respect of lumps, but with minimal pain, developing over several joints in the hand(s). Messrs Dohrmann and O’Brien had examined the appellant for medical legal purposes at the request of his solicitors. Mr Klug had examined the appellant on behalf of the Transport Accident Commission.
Of the doctors whose reports the judge mentioned in his reasons, only one had treated the appellant for his neck injury. On the other hand, his Honour did not refer in his reasons to the reports of a number of doctors whom the appellant had consulted for treatment of that injury: his long-time general practitioner, Dr Milecki; the neurosurgeon, Mr Danks; the pain management specialist, Dr Vivian; the musculo-skeletal physician, Dr Brzozek; and the pain management physician, Dr Janovic. Neither did his Honour mention the report of Mr McMahon, the orthopaedic surgeon who had performed the left hip replacement upon the appellant on 17 June 2005, and who expressed considerable optimism that, so far as his hip was concerned, the appellant could return to work as a welder – provided that his work environment was assessed and any necessary modifications made.
All of the doctors to whose reports the judge did not refer expressed opinions concerning the aetiology of the appellant’s neck and arm symptoms, and their significance, which assisted the appellant’s case. That adds piquancy to the appellant’s complaint that the judge did not explain why it was unnecessary to review all the medical evidence.
In any event, of the doctors to whose reports the judge did expressly refer, each of Dr Gilovitz, Mr Dohrmann, Mr Klug and Mr O’Brien opined that the appellant had suffered injury to his cervical spine in the collision. The appellant’s complaint of pain was described by Dr Gilovitz as “consistent with the typical soft tissue strains seen after motor vehicle accidents”. Mr Dohrmann opined that –
“Mr Dressing has cervical spondylosis and cervical disc disease which are principally degenerative conditions. However, the symptoms referable to these degenerative entities only emerged after the traumatic episode of April 2001.”
Mr Klug said this:
“I feel it is most likely that this person is suffering from symptomatic cervical spondylosis. This is responsible for neck pain and stiffness with some referral of pain into his left upper limb. In regard to the left upper limb, I could not detect any evidence to suggest he was suffering from a radiculopathy.
I have considered the nature of the accident. Such could certainly be associated with a soft tissue injury to the cervical spine. He claims he was asymptomatic prior to that event and I would therefore be of the opinion that in regard to this condition the nature of the accident would have to be considered a significant contributing factor.”
Mr O’Brien offered an opinion which was in substance identical with the opinions advanced by Messrs Dohrmann and Klug.
It is notable also that each of Mr Dohrmann, who reported in April 2004, Mr Klug, who reported in July 2004, and Mr O’Brien, who reported August 2005, opined, in substance, that the appellant’s condition had stabilized – that is, that the appellant would remain affected in the long term by his symptomatic neck condition to the extent that it was then present.
I should mention also Mr Klug’s opinion, set out in a part of his report which the judge cited, that the appellant’s neck condition would substantially interfere with his ability to undertake employment of his previous type; an opinion shared by Mr O’Brien.
I return to his Honour’s reasons. Having set out so much of the medical evidence as I have described, the judge then expressed his conclusion, based upon “cross-examination [of the appellant] and an analysis of the other evidence” that the appellant was an unreliable witness. He assigned a number of reasons for that conclusion.
· First, that the appellant had given a somewhat exaggerated assessment of the force of the collision It could be safely assumed, said his Honour, that the description of the force of the impact would have been of importance to the doctors in formulating their professional judgments and opinions, particularly absent “objective evidence of injury to [the appellant’s neck] as a result of the accident”.
· Second, that the appellant had not mentioned a problem with his right knee in his affidavit. Now it was a significant problem. There did not appear to be any real mention of it by any treating or reporting medical practitioner, save passing reference in Dr Woodruff’s report, until Mr O’Brien reported in August 2005.
· Third, in paragraph 10 of his affidavit the appellant had attributed his inability to return to work as a boilermaker to his neck injury. His Honour said that he did not accept that evidence. He added this:
“In my opinion, and consistent with the opinion of Professor Hart expressed in his report dated 12 September 2005, the evidence discloses that the principal physical impediments to the plaintiff’s return to any physical work over recent times have been osteoarthritis in his left hip and right knee.”
· Fourth, in paragraph 6 of his affidavit, the appellant had deposed that his health before the motor vehicle accident was good. He had mentioned suffering episodes of gout before April 2001 but had, in the judge’s opinion, minimized the extent of that problem.
· Fifth, in paragraph 22 of his affidavit the appellant had attributed significant weight gain to inactivity caused by his neck injury. The judge considered that to be an unlikely association of cause and effect- apparently because the appellant had suffered from other medical problems which would have impaired his mobility, and because he had experienced weight problems over a long period.
Then the judge said this. It is at the heart of his reasons:
“Subject to the reservations set out above, I accept that the plaintiff’s neck was injured in the accident and that he is incapacitated to the extent he has indicated. Further, I accept that his neck symptoms have been treated over the years in the active and passive ways he has described.
It is apparent though, that the plaintiff is suffering from a multiplicity of other physical conditions which significantly impair his ability to work and enjoy life. It is also apparent that some of these afflictions are interconnected in the sense that, for example, pain and restriction of movement are produced by the plaintiff’s osteoarthritic joints as well as his neck injury. Given that conservative treatment (exercise, physiotherapy etc) and medication (anti-inflammatories, analgesics etc) would be similar for both conditions, it becomes difficult to separate, for the purposes of this application, consequences flowing from the plaintiff’s neck injury and his other maladies.
All in all, it seems to me that the plaintiff has not established, on the balance of probabilities, that his inability to work, either as a welder or at all, and that the restrictions and limitations he suffers from in his daily life are due to his neck injury. And that conclusion results from, in no small part, my lack of confidence in him as a reliable witness.”
I shall call these paragraphs, respectively, the first, second, and third key
paragraphs.Why the appeal should be allowed
I agree with the submissions advanced on behalf of the appellant that –
· First, the judge’s reasons did not sufficiently explain his Honour’s path of reasoning; and
· Second, insofar as the judge relied upon impairment of the appellant’s credit in rejecting the application, in part his Honour either misunderstood some of the evidence, or else – no doubt unintendedly - failed to state it accurately.
· Third, the judge did not in fact decide everything which was necessary in order to decide whether the appellant had made out his serious injury application.
There is a certain interrelationship between those matters, so I will not discuss them discretely.
The issue of sufficiency of reasons has been very often addressed in recent years. The principles are clear enough: It is necessary that a judge’s reasons sufficiently explain the path of reasoning which led to the outcome in the proceeding. Failure to provide such reasons constitutes an error of law. Perfection is not required. An appeal court should not examine a trial judge’s reasons too critically, seeking, as it were, to discern a want of explanation. Further, what will be sufficient in a particular case will be influenced by the ambit of dispute at trial. Nonetheless, an examination of the reasons should enable the losing party to know why he or she lost.[4]
[4]Reference may be had, the list is far from exhaustive, to Richards v Transport Accident Commission [2004] VSCA 91 at [3]-[4] per Buchanan JA and Hunter v Transport Accident Commission & Anor [2005] VSCA 1 at [28] per Nettle JA, Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 at [38] per Ashley JA, Hesse Blind Roller Company Pty Ltd v Hamitoski [2006] VSCA 121 at [19]-[22] per Redlich JA, and Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187, at [16]-[18] per Maxwell P.
In the present case, the judge concluded that the appellant’s reliability as a witness was compromised. Assuming, for the moment, that each of the matters which led his Honour to that conclusion accorded with the evidence, one could have understood the judge holding that the appellant had not satisfied him that he had suffered, or was suffering, from the neck pain and associated limitations of which he gave evidence. From that, it would have been a short step for his Honour to conclude that the relevant medical opinion was impugned. But, on the face of it, that is not what his Honour did. For, in the first key paragraph his Honour accepted, “subject to the reservations set out above”, that –
“… the plaintiff’s neck was injured in the accident and that he is incapacitated to the extent he has indicated.
Further, his Honour further accepted that the appellant’s
“… neck symptoms ha[d] been treated over the years in the active and passive ways he has described.”
It is, in my opinion, extremely difficult to understand what his Honour meant by his reference to “the reservations set out above”. No doubt it was a reference to the matters which caused his Honour to conclude that the appellant was an unreliable witness. But, having regard to what his Honour apparently accepted about the appellant’s neck injury and the consequences, I cannot understand, from consideration of the reasons, what relevant impact the “reservations” had.
Counsel for the respondents submitted that his Honour’s acceptance that the appellant was “incapacitated to the extent he has indicated” was an intended reference to all the conditions from which the appellant suffered, rather than a reference to the sequelae of the neck injury. I cannot accept that submission. The immediately preceding and following passages in the reasons refer to the appellant’s neck condition. Further, the next paragraph commences “It is apparent, though, that the plaintiff is suffering from a multiplicity of other physical conditions ….”
If, as is on its face the case, the judge accepted not only that the appellant had suffered neck injury, but that it incapacitated him to the extent which he had indicated by his affidavit and oral evidence, the second key paragraph becomes very difficult to understand. How could it be said, in such circumstances, that the neck injury and its sequelae could not be disentangled from other conditions which affected the appellant? Yet that is the thrust of the second key paragraph. Here again there is difficulty, at least, with the path of reasoning.
Perhaps what the judge meant by the first key paragraph was that whilst he accepted that the appellant had suffered neck injury, and that the appellant was thereby incapacitated to the extent indicated, nonetheless this must be viewed against a background of unreliable evidence in which the appellant had tended to minimize the impact of certain other health problems from which he suffered –disability of his right knee, gout, and longstanding obesity. But if that was what his Honour meant, he surely did not say it - this bearing upon the complaint of want of clarity in his path of reasoning. Moreover, to use his expressed “reservations” in such a way would have been to use them as matters of substance – which was not the use which the judge ascribed to them.
It is convenient to go to his Honour’s “reservations”, and to remark upon three of them.
First, it was no doubt open to his Honour to conclude that the appellant had exaggerated the force of the impact of the motor vehicle collision. That is so although there was evidence that the appellant had at times explained the force of the impact by reference to the repair bill for his vehicle - the amount of that bill being common ground. It is also so although another judge might have concluded that a person might describe his or her stationary vehicle being struck unexpectedly from behind by another vehicle travelling at 10 to 15 kph in the language of forceful or violent impact.
On the other hand, the use to which his Honour put the exaggeration is to my mind quite unclear. The reasons read as if the judge perceived it as a matter of substance – going to the question whether the appellant had suffered injury at all; or as to extent of any injury sustained. That is so although the exaggeration was said by his Honour to tell upon the appellant’s creditworthiness. But in the end there is nothing to show that the judge in fact treated the exaggeration as bearing upon an issue of substance. Rather, in my respectful opinion, the reasons are not clear in showing what use, if any, his Honour did make of the exaggeration.
Second, and contrary to the submission for the appellant, I consider that it was open to his Honour to conclude that the appellant had been less than frank about his right knee problem - that is, by not referring to it in his affidavit. I am of that opinion although the appellant did refer to the knee problem in his oral evidence in chief; and although it was referred to in a number of the medical reports upon which he relied.
I am of that opinion, also, despite a passage in the reasons in which his Honour referred to reports provided by Mr O’Brien and Dr Milecki. Having noted a history taken by the former, in August 2005, that the appellant was complaining of increasing pain in his right knee “for the past year or so”, his Honour said this:
“However, there is no mention of the plaintiff’s right knee in the comprehensive catalogue of his complaints and conditions mentioned in Dr Milecki’s report of 21 March 2005. It is unlikely, in my view, that there would be no mention of the plaintiff’s right knee injury in his affidavit (sworn 15 July 2005) or in Dr Milecki’s report if he had been having increasing pain in it for a year before he saw Mr O’Brien.”
If the judge was saying that the appellant should be taken to have admitted that he had not been suffering right knee pain in the 12 months or so before he consulted Mr O’Brien, then it ran counter to the thrust of his Honour’s thesis – which, as I understand it, was that the appellant had not been frank because he had not disclosed the existence and extent of his right knee condition. But if the judge was meaning to imply that the appellant had not only said nothing about his right knee problem in his affidavit, but had concealed it from Dr Milecki, then his Honour, with respect, appears to have been wrong. For Mr McMahon stated in his report that the appellant was referred to him by Dr Milecki for “assessment and management of osteoarthritis of his left hip and right knee”; and it is plain from Dr Milecki’s report dated 21 March 2005 that he had referred the appellant to Mr McMahon some time before that report was written.
Third, his Honour, with respect, misstated the position when he stated that “in paragraph 10 of his affidavit the plaintiff attributes his inability to return to work to his neck condition”. It is plain from what follows in that paragraph that his Honour was treating paragraph 10 as addressing the then current situation. That is not the case. The sequence of information deposed to in paragraphs 9, 10 and 11 shows that the appellant was speaking of the situation shortly following the motor vehicle accident. He was asserting that his neck condition had prevented him going back to his usual work. Paragraph 10 may be contrasted with paragraphs 24 and 30 of the affidavit.
Counsel for the respondents took the Court to passages in the viva voce evidence of the appellant with a view of showing that the appellant had in fact asserted that his present inability to resume work was attributable to his neck injury. Even if the evidence was susceptible of such an interpretation, it does not meet the justified criticism of appellant’s counsel of what the judge said about paragraph 10 of the appellant’s affidavit. In that connection, his Honour discerned unreliability upon a false view of the appellant’s evidence.
Pausing for a moment, my opinion thus far, in short, is that some of the findings which led to the judge concluding that the appellant was an unreliable witness are compromised by problems of different kinds. Further, it is unclear from the reasons what particular use the judge made of the “unreliability” findings. Again, the conclusions expressed in the first key paragraph do not sit at all comfortably with his Honour’s statement, in the following paragraph, about difficulty in separating consequences flowing from the neck injury and other conditions.
Before going on, I should refer distinctly to a particular submission advanced by counsel for the respondents. He argued that the sufficiency of reasons must be considered in the context of the issues framed for consideration by the trial judge. Here, counsel for the appellant below had relied upon what he asserted was his client’s creditworthiness. That had been the battleground. The judge’s reasons should be understood as addressing that issue; and were on that account adequate.
Counsel’s submission was correct in point of principle. It is also the fact that the appellant’s counsel below did argue that his client was creditworthy. But those circumstances do not mean that the judge’s analysis of the appellant’s creditworthiness must be accepted despite its evident problems. Nor does it mean that it was enough for his Honour to find that the appellant’s evidence was unreliable, in the event that no disclosed path of reasoning connected that finding with critical conclusions of fact.
I must now explain my earlier expressed conclusion that the judge did not consider and decide all the matters which were pertinent to the appellant’s application.
His Honour had to decide whether the appellant had made out his case that he suffered serious long-term impairment or loss of a body function; severity turning upon the consequences of injury to the particular plaintiff, and relating to either or both of pecuniary disadvantage and pain and suffering.
There were, as I see it, two threads to his Honour’s conclusion that the appellant had not made out his case. First, that the various medical problems from which the appellant suffered made it difficult to separate out the-then consequences of the neck injury. Second, that the appellant had not established that his inability to work, and the restrictions and limitations from which he suffered, were due to his neck injury.
His Honour’s finding about each of those threads was phrased in the present tense. Even if there could then have been a difficulty in differentiating the consequences of different conditions from which the appellant suffered, it did not follow that this would continue to be the case. But his Honour made no findings – other than to say that he accepted, subject to reservations, that the appellant had suffered neck injury and was incapacitated thereby to the extent which he indicated – as to what symptoms of the neck injury the appellant had suffered since April 2001, what symptoms were then present, or what symptoms, if any, were likely to persist indefinitely. Neither did he make any findings whether the left hip and right knee problems were likely to become less symptomatically significant – and if so, then when. He made no findings about those other conditions despite Mr McMahon’s optimistic report concerning the hip replacement surgery, and despite Mr O’Brien’s guarded optimism as to the outcome of prospective surgery to the appellant’s right knee. He made no findings, also, although the evidence plainly suggested that at time of trial, and for a period prior thereto, the hip and knee problems were the most significant of the appellant’s other medical conditions.
In the event, his Honour made no findings, except as at the time of trial, about the impact of the appellant’s neck injury upon his employability, or upon his enjoyment of life. To conclude, as he finally did, that the appellant had not made out his case was to state a conclusion in the absence of necessary findings – which, even considered at the level of sufficiency of reasons, was impermissible.[5]
[5]As to which see Richards v Transport Accident Commission, cited at footnote 4.
This should next be said. In concluding that the appellant had not established that his then inability to work, and his daily restrictions and limitations, were due to his neck injury, it may be, I put the matter no higher, the judge approached the matter from an incorrect standpoint. What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. His Honour’s reasons rather suggest that he approached the matter on the footing that there must only be one condition which could satisfy the test.
I should mention one further matter. In the second key paragraph of his reasons, the judge concluded, as I noted earlier, that it was difficult, as matters stood, to differentiate the then consequences of the neck injury and the “multiplicity of other conditions which significantly impair [the appellant’s] ability to work and enjoy life”. In my respectful opinion, however, examination of the evidence does not support a conclusion that there was any such difficulty. His Honour’s conclusion did not sit comfortably with his apparent acceptance that the appellant was incapacitated by his neck injury to the extent which he had indicated. In any event, the plaintiff complained, so far as his neck injury was concerned, of pain and disability affecting his neck and left arm. His other main problems were arthritis affecting the left hip – it had already been the subject of successful surgery – and disability of the right knee. The symptoms affecting the hip and knee of which the appellant complained must surely have been susceptible of disentanglement from his complaint of symptoms deriving from his neck injury. The same could be said about symptoms of gouty arthritis affecting the right big toe and joints in the hands.
Next, the appellant had not been treated for his neck injury by physiotherapy for years before 2005. Even if such treatment had been continuing, it could scarcely have been confused with physiotherapy given in the course of rehabilitation from a hip replacement operation, or for a painful knee; whilst the fact that painkillers might give pain relief at more than one site of injury could not mean that the injuries themselves were not capable of dissection.
Orders
In my opinion the appeal should be allowed, the order made in the County Court on 9 November 2005 should be set aside, and the application should be remitted to the County Court for fresh hearing and determination.
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