Elias v Transport Accident Commission
[2013] VSCA 123
•20 June 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0030
| MOUNTAHA ELIAS |
| v |
| TRANSPORT ACCIDENT COMMISSION |
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| JUDGES | HARPER and OSBORN JJA and MACAULAY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 9 May 2013 |
| DATE OF JUDGMENT | 20 June 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 123 |
| JUDGMENT APPEALED FROM | Elias v TAC [2013] VCC 342 (Judge McInerney) |
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ACCIDENT COMPENSATION – Transport accident – Application by appellant for leave to commence proceedings for serious injury under s 93(4) of the Transport Accident Act 1986 (Vic) – Trial judge refused leave – Whether trial judge erred in finding that the appellant was not suffering from a ‘serious injury’ in accordance with s 93(17)(a) or (c) – Whether particular evidentiary findings were made incorrectly or were against the weight of the evidence – Whether reasoning process was adequately disclosed in trial judge’s reasons – Application for leave to appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Gorton QC with Mr A Ingram | Nowicki Carbone & Co |
| For the Respondent | Mr J Ruskin QC with Ms K Foley | Wisewould Mahony Lawyers |
HARPER JA:
I agree with Macaulay AJA.
OSBORN JA:
I agree with Macaulay AJA.
MACAULAY AJA:
Introduction and Summary
Mountaha Elias was injured on 7 June 2008 while a passenger in a motor vehicle when it was struck forcefully from behind by another vehicle. A County Court judge dismissed her application brought under s 93(4) of the Transport Accident Act1986 (‘the Act’) for leave to bring a proceeding to recover damages in respect of her injuries.[1] Mrs Elias needs the leave of this court if she wishes to appeal that decision:[2] she has applied for that leave. Both her application for leave to appeal and, if leave is granted, the appeal itself, were heard together.
[1]Elias v TAC [2013] VCC 342 (Judge McInerney) (‘Reasons’)
[2]Dodoro v Knighting [2004] VSCA 217.
Provisions of the Act preclude a person injured in a motor car accident from recovering damages, without the leave of the court, unless the Transport Accident Commission (‘TAC’) has determined a particular degree of impairment, or is satisfied the person’s injury is a ‘serious injury’, [3] neither of which occurred in this case. A court must not give leave to a person to bring proceedings to recover damages in respect of the injury unless the court is satisfied that the injury is a ‘serious injury’.[4] A ‘serious injury’ is, relevantly for this case, defined in the Act as follows:
Serious injury means–
(a)serious long‑term impairment or loss of a bodily function; or
…
(c)severe long‑term mental or severe long‑term behavioural disturbance or disorder …[5]
[3]Sub-sections 93(1)–93(4) Transport Accident Act 1986.
[4]Section 93(6) Transport Accident Act 1986.
[5]Section 93(17) Transport Accident Act 1986.
Mrs Elias claims to have suffered both a serious long‑term impairment or loss of a body function (para (a) of the definition) and a severe long‑term mental or severe long‑term behavioural disturbance or disorder (para (c) of the definition). For convenience I will refer to those claims, in shorthand, as her claims in respect of a physical impairment (‘paragraph (a)’) and a mental disorder (‘paragraph (c)’).
In terms of her physical impairment, she claims to have sustained an injury to her right shoulder, cervical spine, thoracic spine, and lumbar spine. Her mental disorder was said to be a psychiatric/psychological injury including but not limited to stress, anxiety, depression and chronic pain syndrome.
After hearing evidence from Mrs Elias and a number of doctors, and having received into evidence further medical reports, the judge dismissed her application for leave to bring a proceeding both in respect of her physical impairment and her mental disorder.
Mrs Elias seeks leave to appeal the decision on a number of grounds. Two of her proposed grounds (grounds 1 and 2) are that the judge made specific findings that were based on a misunderstanding and/or misstatement of the evidence, or were against the weight of the evidence, or alternatively were the result of an erroneous reasoning process. The challenged findings concerned the extent to which Mrs Elias complained to her treating general practitioner, Dr Georgy, about her right shoulder injury over a three year period, and the use which the judge made of those findings when reaching his conclusion.
The third ground is, in substance, a complaint that the judge erred in failing to give adequate reasons: in particular, for rejecting Mrs Elias’s evidence of reporting her right shoulder injury to Dr Georgy, and for preferring the evidence of doctors who did not support Mrs Elias’s application over those who did.
The fourth ground is a complaint that the judge failed to give any or any sufficient weight to a list of evidentiary factors said to support Mrs Elias’s application, and the final two grounds (grounds 5 and 6) are that the judge ought to have found Mrs Elias had a ‘serious injury’ under paragraphs (a) and/or (c) of the definition.
In my view, the application for leave to appeal should be dismissed. My reasons follow.
Factual background
Mrs Elias was born in Lebanon on 5 November 1956. After completing secondary school education and a teaching qualification she worked as a primary school teacher in Lebanon for 24 years. She also married, and had one son, Pier, now in his early 30s.
Mrs Elias resided in Australia periodically from 1996 onwards, moving here permanently in April 2007, about two years after her marriage ended in Lebanon. It would seem her son emigrated some years earlier. Pier earned a PhD at Melbourne University in genetics and now operates his own tutoring business from the house where he and his mother, Mrs Elias, live.
Before the accident in June 2008, Mrs Elias had commenced training to improve her English with a view to seeking employment as a pre-school teacher in Australia. But she was also in receipt of Centrelink benefits because of various medical conditions which, she said, temporarily prevented her from being gainfully employed. One of those medical conditions was a degenerative condition of the lumbar spine which was first diagnosed in 2001. She had two months off work because of that condition in 2001, another two months off work for the same condition in 2002, and was treated with anti inflammatory medication for it in 2003.
About thirteen months before the accident, in May 2007, she had also been diagnosed with tendonitis of the supraspinatus tendon of her right shoulder.
In the motor vehicle accident in which she was injured in June 2008, Mrs Elias was thrown forwards and then backwards, hitting her shoulder on something immediately after which she felt severe pain. She said she was unable to move her shoulder or legs and was removed from the vehicle by emergency personnel.
Mrs Elias did not go to a doctor straight away. Instead she went home. Two days after the accident her son took her to the Williamstown Hospital where she was examined, an x-ray taken of her shoulder and her right arm placed in a sling. She was treated as an outpatient but not admitted to hospital. The following day she attended a general practitioner, Dr Hamdan in Broadmeadows, for pain in her right shoulder and back. She saw a different general practitioner on 12 June 2008, Dr Christopher Towie. At his request x-rays were taken of her shoulder and wrist. Plain x-rays revealed calcification in her right shoulder, indicating tendonitis.
She received physiotherapy upon referral from Dr Hamdan. A CAT scan of her right shoulder was performed on 1 August 2008, revealing calcification at the insertion of the supraspinatus tendon. Another CAT scan, this time of her cervical spine, on 19 September 2008, showed multilevel degenerative disc disease. In January 2009 she saw Dr Al-Mulla, a general practitioner, who referred her to a Mr Ian West, an orthopaedic surgeon after an ultrasound of her right shoulder suggested a tear in her supraspinatus tendon. In March 2009 Dr Al-Mulla referred her to a psychologist, Ms Kardaras.
She saw Dr Georgy, another general practitioner, in December 2008 and January 2009 at a time when she was also attending Dr Al-Mulla. Dr Georgy then became her regular treating general practitioner from at least the end of April 2009 onwards, through to the date of hearing before the trial judge in December 2011.
Dr Georgy referred Mrs Elias to a rheumatologist, Dr Roland Ebringer, in December 2009 for persisting pain in her right arm and shoulder, and pains in the right hip and buttock area going down to her knees. Dr Ebringer thought she continued to have chronic pain in the right side of her neck and her right shoulder due to the road traffic accident in June 2008. He considered that she probably had a tear in the right supraspinatus tendon on top of some underlying calcific tendonitis in that region. She had also developed some low back pain which, in his view, may have been aggravated or contributed to by the car accident.
In October 2010 Mrs Elias underwent an MRI investigation of her right shoulder. She discussed the results of that MRI with Dr Georgy in February 2011.
As mentioned, Mrs Elias was referred to a psychologist, Claudia Kardaras in March 2009. Mrs Elias attended Ms Kardaras for therapy from 18 May 2009 to 18 January 2010. She reported to Ms Kardaras that she had experienced low mood since the accident, frustration at not being able to participate in social, domestic and work activities, emotional reaction due to her pain, symptoms of anxiety, poor sleep patterns including nightmares about the accident, high levels of fatigue, low motivation and loss of interest in previously enjoyed activities. Ms Kardaras believed that Mrs Elias suffered from post traumatic stress disorder (‘PTSD’), an opinion which was not wholly supported by medico-legal specialists who also examined Mrs Elias.
Mrs Elias was examined by a number of specialist doctors to enable them to provide medico-legal opinions.
In her first affidavit, sworn in May 2009, she said she was taking the following prescribed medication: Mobic (40 mg tablets); Micardis (40 mg tablets); Temtabs (10 mg tablets); Endep (25 mg tablets); Zoloft (50 mg tablets).
She told the court, in her affidavits, that she continued to experience severe pain and restriction of movement in her right hand, right shoulder and right knee. The pain in her right shoulder was particularly severe. She believed she may have torn tendons in her shoulder. The pain and restriction made it difficult for her to sleep and it woke her up frequently during the night. She also had pain and restriction of movement in her neck making it difficult for her to turn her head. She also complained about pain and restricted movement in her right knee and having to walk more slowly than before the accident.
She described the ways in which her pain and restricted movement affected her life and daily activities, including difficulties with meal preparation, lifting carrying items, and undertaking usual grooming activities. The medication she was taking for pain relief had resulted in periods of stomach pain for which she had undergone a detox program for reduced reliance on pain medication. Physiotherapy only gave her temporary relief and, after 24 visits, she did not persist with it.
Closer to the trial, in November 2011, she said she continued to experience severe neck and right shoulder pain symptoms, and she described its intensity and the limitations it produced. In her November 2011 affidavit, she detailed the medication she was then taking, namely Paracetamol, Cerebrax, Endep and Plaquenil. She attributed her inability to engage in a full range of social, recreational and domestic activities to persisting symptoms of anxiety and depression.
Her son, Pier, swore an affidavit attesting to his mother’s complaints of pain in her right shoulder, right arm, neck and lower back. He detailed the effects those injuries had upon her, as he observed them, including that the medication she took to control her pain left her with severe constipation and digestive discomfort.
Judge’s reasons for decision
The judge began by recounting Mrs Elias’s evidence of the circumstances of her accident, her injuries, the effects of her injuries upon her movement and daily living, her current symptoms and the medication she was taking.
His Honour set out details of her medical attendances since the accident, substantially as I have summarised above. In short, the trial judge recounted her attendance at Williamstown Hospital and the x-ray taken on that occasion; her attendances upon general practitioners, first with Dr Hamdan, then Dr. Towie, later with Dr Al-Mulla and, ultimately, with Dr Georgy. His Honour apparently believed that Dr Georgy practised medicine at the same practice as Dr Al-Mulla, something for which the judge was criticised in the appeal although it seems of little consequence.
The judge noted Mrs Elias’s initial complaints to Dr Al-Mulla of pain in the right shoulder and neck, and the fact that she was referred by him for a CAT scan which demonstrated multi-level degenerative disc disease. His Honour also mentioned the referral to Mr West, the orthopaedic surgeon, who, apparently, had recommended a cortisone injection to the shoulder, under ultrasound. As the judge noted, that procedure was never undertaken.
His Honour also recorded that Dr Al-Mulla referred Mrs Elias to the psychologist, Ms Kardaras, whom Mrs Elias attended for some five months or so.
His Honour then addressed the evidence lead by the appellant concerning her attendances with Dr Georgy. The evidence concerning those attendances came from Mrs Elias and from the doctor’s notes. The conclusions the judge drew from that evidence assumed considerable importance on the appeal. Particularly in focus was the evidence of Mrs Elias’s complaints about right shoulder pain.
Dr Georgy was not called as a witness. Only his clinical notes were produced in evidence. Those notes ran to twelve typed pages showing attendances upon Mrs Elias from 31 December 2008 to 17 November 2011. Overall there were more than 50 consultations. Most, but not all, were with Dr Georgy; on occasions other doctors at the practice saw Mrs Elias. Some notes of the consultations last only a few lines whereas others are more detailed. A typical note might list some details under the headings ‘History’, ‘Examination’, ‘Action’, or a combination of two of those items. But the notes did vary in detail and style.
In relation to complaints about her right shoulder generally, his Honour observed that Mrs Elias said in evidence she was reporting continuous problems to her right shoulder, adding ‘this is certainly confirmed by Dr Al-Mulla’.[6] But then the judge turned to the cross-examination of Mrs Elias about her consultations with Dr Georgy during different blocks of time throughout 2009, 2010 and 2011.
[6]Elias v TAC [2012] VCC 342 (‘Reasons’) [32].
He first referred to cross-examination about the period December 2008 to February 2010, noting that it was put to Mrs Elias that Dr Georgy’s notes showed:
… that she certainly complained of multiple joint pains throughout her body, but that insofar as there was any complaint of shoulder pain it was in the context of shoulders, and that was specifically done on three occasions only. That is a reference to the shoulders.[7]
[7]Reasons [33].
Next, his Honour recorded that in February 2010 Dr Georgy had referred Mrs Elias to another doctor for her complaint of right shoulder capsulitis, albeit that there was no report tendered in evidence of the outcome of that referral.
Continuing with the period March 2010 until 10 October 2010, during which there were apparently twelve appointments, the judge said that it was put to Mrs Elias that she made no complaints of shoulder pain in any of those appointments. Mrs Elias’s answer, as the judge recorded it, was to insist that she was suffering right shoulder pain during that period despite the absence of any record in the notes of her saying so.
As his Honour then recorded, the next indication of any treatment for, or complaint concerning, a right shoulder injury was on 18 October 2010. On that day, Mrs Elias underwent an MRI investigation in relation to that shoulder. The MRI did not confirm the earlier report of a tear in the supraspinatus tendon but, rather, infraspinatus tendonitis. The judge observed that Dr Georgy’s notes showed that he discussed the result of that MRI with Mrs Elias on 5 February 2011.
Then, his Honour continued, Mrs Elias was cross-examined about her next twelve visits to Dr Georgy throughout 2011 noting that it was put to her that she only ever complained to the doctor about shoulder pain in the context of the pain being in both shoulders and amongst broader complaints of pain throughout the whole body. According to his Honour, Mrs Elias denied ever seeking treatment for both shoulders but reiterated she only complained of pain in her right shoulder.
On a different topic, his Honour also made mention of Mrs Elias’s inability, under cross-examination, to identify what medication she was then taking, or why she was taking particular medications. The judge noted that her oral evidence differed in this regard from what she said in her affidavits. She was asked specifically, his Honour said, about a number of the drugs she had listed. But, for example, she was unable to say when she last used Mobic, Nexium, Celebrex or Endep.
Returning to her evidence concerning her right shoulder, the judge referred to what she said in re-examination, namely that despite what the clinical notes indicate, right through the period she saw Dr Georgy she told him ‘on every occasion’[8] of her right shoulder pain. He also made specific reference to her son’s affidavit in which he supported his mother’s claim by attesting to having observed her constant and frequent daily pain in relation to her right shoulder, arm, neck and lower back
[8]Reasons [43].
On the question of the degree or frequency of complaint of right shoulder pain made by Mrs Elias to Dr Georgy, his Honour concluded:
I have closely examined the notes [ie Dr Georgy’s clinical notes]. It seems to me they are meticulous, they set out precisely patient reports of history. They set out the type of treatment and any prescriptions made. I cannot accept the plaintiff’s evidence as to her reporting specific right shoulder pain. I do not say she is deliberately lying, however, I simply do not accept her evidence. This evidence may come about in the context of the totality of her supposed injuries, and concentration now upon the right shoulder for these proceedings. Certainly with Dr Al-Mulla in the first five months of 2009 she had complained specifically of right shoulder and neck pain.[9]
The underlined finding, and the use made of it, was the subject of challenge in ground 1 of the appeal.
[9]Reasons [45] (underlining added).
Before leaving his summary of the treatment Mrs Elias received, his Honour referred to the medical opinion of Dr Roland Ebringer, rheumatologist, following his single consultation in December 2009. The doctor’s opinion was summarised earlier.[10] The judge specifically mentioned that it was Dr Georgy who referred Mrs Elias to Dr Ebringer ‘for right shoulder, right arm, leg and hip pain’, although there was no specific mention of the reasons for the referral in the general practitioner’s clinical notes.
[10]See above [20].
The trial judge then embarked upon a lengthy survey of the various medico-legal opinions that had been tendered, both in respect of Mrs Elias’s physical impairment and also her mental disorder. Only two of the doctors (Paoletti and Tan) were also called as witnesses, and cross-examined. A list of the doctors whose reports were tendered is set out below:
Physical impairment Specialty Consultation Mr Peter Mangos General Surgeon 24 August 2009 Mr Peter Kudelka Orthopaedic surgeon 11 February 2010 Mr Justin Hunt Orthopaedic surgeon 7 February 2011 Dr Andrew Muir Pain management 3 March 2011 Mr Rodney Simm
Orthopaedic surgeon
27 September 2011
Dr Geoffrey Littlejohn
Rheumatologist
15 April 2010 and 20 September 2011
Mr Robert Dickens
Orthopaedic surgeon
21 November 2009 and 31 October 2011
Mental Disorder
Ms Claudia Kardaras Psychologist May 2009-January 2010
(Report 28 September 2011)Associate Professor N Paoletti
Psychiatrist
19 November 2009
Associate Professor Eng-Seong Tan
Psychiatrist
21 February 2011
Dr Timothy Entwistle Psychiatrist 1 January 2010 and 4 November 2011
I will not repeat the judge’s survey of all the medical evidence. Rather, I will endeavour to identify critical opinions of the particular doctors, as highlighted by the judge, before coming to the way in which he chose between competing views.
The judge noted the following opinions given by specialists in respect of the physical impairment, as follows:
(a)Mr Mangos thought Mrs Elias had permanent loss of use of the right shoulder, neck and back, with a poor long term prognosis, was in chronic pain and that her injuries would preclude her from returning to any regular or part time employment. He believed her injury was a serious injury.
(b)Mr Kudelka noted her right shoulder was completely frozen, diagnosed her as having a rotator cuff injury of the right shoulder which was an aggravation of a pre-existing degenerative change; he thought she sustained an accident related impairment to the right shoulder which would persist indefinitely despite treatment; and he recommended referral to an orthopaedic surgeon specialising in shoulder injury.
(c)Mr Hunt thought she had right shoulder calcific tendonitis, with a clinical presentation consistent with symptomatic cervical spondylosis, and associated right arm radicular pain; he noted muscle wasting around the right shoulder girdle; he thought there was pathology to the right shoulder, cervical spine and lumbar spine of clinical significance; he concluded she had a profound loss of function in her right upper limb and thought her symptoms would continue into the foreseeable future.
(d)Dr Muir thought her dominant injury was myofascial pain syndrome affecting the right shoulder which had triggered a moderate to severe secondary psychological reaction ‘which is driving her principal disability’; he thought there was a radiological basis for her complaints and that the major driver of her disability was chronic pain, driven by secondary psychological reaction as well as secondary myofascial factors. He thought the physical injuries were stable and that, failing significant treatment – which the judge noted did not seem to be indicated by anybody – her injuries would restrict her significantly.
(e)Mr Simm thought she had suffered an acceleration hyperextension (ie whiplash) injury with associated psychological disturbance; he thought her physical injury was now obscured by the development of a severe pain syndrome focusing on the right shoulder; he thought from x-ray evidence it was possible there was an organic contribution to her ongoing complaints, but that her physical condition was largely overwhelmed by a very severe chronic pain response with functional features; he thought future treatment should be directed to her chronic and severe pain response and that he was unable to identify a persistent physical condition that required treatment.
(f)Mr Dickens, who saw her twice, had noted gross restrictions of movements in the neck and right upper limb regions; he concluded she did sustain soft tissue injuries to the cervical and lumbar sacral spine and to the right shoulder, which were minor and caused a temporary aggravation of underlying pathology in those regions, but concluded she had an abnormal illness response making assessment virtually impossible; and he thought she had adopted an illness role. He was asked to, and did, comment on Mr Kudelka’s report and specifically disagreed with him concerning his diagnosis of the right shoulder injury. He had also noted she was depressed but not taking medication at the time he saw her.
(g)Dr Littlejohn, who also saw her twice, diagnosed chronic pain syndrome which he said was likely to have been triggered by psychological consequences of the accident; he believed that she continued to have clinical features of right quadrant regional pain syndrome, as a dominant problem, with abnormal tenderness and pain in other regions, leading to a presenting condition of fibromyalgia; he thought there was a significant presence of functional component which was the main driver of her chronic pain syndrome, and that if there were no psychological input into her pain problem she would have a near normal social and occupational function. At that time she was not seeing a psychologist but he thought she required a pain management program focusing on psychological rehabilitative strategies.
Having surveyed the medico-legal opinion concerning Mrs Elias’s physical impairment, the trial judge then explained why he dismissed her application under paragraph (a) of the definition of ‘serious injury’:
In assessing all of the medical evidence I find that the opinion of Mr Dickens as confirmed by Dr Muir, Mr Simm and Mr Littlejohn is to be preferred to that of Mr Mangos, Mr Kudelka and Mr Hunt, and that such finding is consistent with the limited complaints made to Dr Georgy from December 2008 through to November 2011, being that such complaints in regard to the shoulder were generally in the context of general complaint as to pain all over her body, and as to bilateral shoulder pain, albeit that more specific complaints had been made to Dr Al-Mulla in early 2009.
I find, in the terms of the focus required as detailed by the Court of Appeal in Richards & Anor v Wylie, that I am not satisfied the injuries to the cervical spine, or the right shoulder of the applicant, which on the evidence could have been organic injuries are, as at this date, that is the date that I make the determination, either now in existence as a fact, or if they are I find that the -impairment of bodily function and physical consequence there from are not long-term or serious. I therefore dismiss the application in regard to the alleged part (a) injury.[11]
[11]Reasons [92], [93] (underlining added).
The underlined finding, and the use made of it, was the subject of challenge in the second ground of appeal. Further, the first of the two paragraphs was identified as demonstrating the judge’s alleged failure to give adequate reasons (ground 3).
Based upon the findings he had just made, it was the judge’s view that to the extent there was any impairment of bodily function at the date of trial, that impairment was the product, or at least largely the product, of mental or behavioural disturbance or disorder.[12] Accordingly, he turned his attention to the evidence concerning the mental disorder and the appellant’s claim under paragraph (c) of the definition of ‘serious injury’.
[12]Reasons [94].
The judge began by noting that there was only one reference to depression in Dr Georgy’s clinical notes, in April 2009, with a prescription at that time of Zoloft, an anti-depressant medication. Likewise he observed from the notes of Dr Al-Mulla that the doctor had prescribed Endep in January 2009 (apparently for depression) and had specifically treated Mrs Elias for depression on 27 February 2009. It was Dr Al-Mulla who had referred Mrs Elias to the psychologist, Claudia Kardaras.
The judge then surveyed the medical opinion concerning Mrs Elias’s mental disorder. Again I will highlight the main points from his Honour’s references to that evidence:
(a)Claudia Kardaras, who treated the appellant from May 2009 to January 2010, diagnosed Mrs Elias as suffering PTSD, believing it to be a direct result of the motor car accident; she thought her symptoms were quite severe; she had not seen Mrs Elias since January 2010.
(b)Associate Professor Paoletti diagnosed Mrs Elias as suffering an anxiety disorder, a chronic adjustment disorder with depressed mood, and an amnestic disorder with memory difficulties which he said was probably emotional associated with the two previous diagnoses; on psychiatric and psychological grounds alone he did not think she had any present work capacity; he did not believe her symptoms satisfied the criteria for the diagnosis of PTSD nor did he think there was any major depression condition or any major pain condition; he thought her disorders were of a moderate nature and their impact would be moderate although, in re-examination, he thought her conditions ‘in Court speak’ were very significant, although he did not think so ‘in a clinical setting’.
(c)Associate Professor Tan also diagnosed Mrs Elias as having PTSD which he assessed as being severe, and he thought her symptoms were responsible for her inability to carry out her usual lifestyle activities and being unable to work; under cross-examination he had maintained his diagnosis despite not having recorded in his notes any of the clinical features matching the criteria for PTSD as set out in DSM 4; and (according to the judge) his conclusions about her condition seemed more to be designed to meet legal definitions than constituting independent medical opinion. He disagreed with Associate Professor Paoletti’s diagnoses and also excluded the diagnoses made by another psychiatrist, Dr Entwistle of major depressive illness and pain disorder.
(d)Dr Entwistle, who saw Mrs Elias twice, first diagnosed her condition as an adjustment disorder with depressed and anxious mood, and a pain disorder; he found her prognosis difficult to determine because of her account of various illness behaviours despite what appeared to be a minor injury; in his second report he concluded she had a major depressive illness and pain disorder, no capacity for work and only limited capabilities for domestic and social activities; he also noted she was not having any psychiatric treatment and that in the absence of such treatment her depressive illness was continuing.
His Honour emphasised that since January 2010 Mrs Elias had had no treatment at all for psychological or psychiatric conditions, nor for her pain conditions. He noted her inability to tell the Court what medication she had taken and, specifically, whether she had any medication for depression or any mental condition. He was unimpressed with the evidence of Associate Professor Tan.
Faced with diverse and conflicting diagnoses from the various psychological and psychiatric specialists, the judge concluded in these terms:
In considering all of the evidence I have formed the conclusion that the lack of reporting, and the lack of treatment as demonstrated in Exhibit W, being Dr Georgy's clinical notes, and the failure to undergo any treatment after ceasing with Ms Kardaras in January 2010, or to partake of any pharmaceutical treatment by way of prescription is indicative of the true condition of Ms Elias . In so concluding I do not disregard the treatment from Dr Al-Mulla and Ms Kardaras in 2009.
…
I have concluded that the analysis of the condition, as best I can comprehend in conformity with my observation of the plaintiff and in particular, the observation of the clinical records of Dr Georgy, is as diagnosed by Associate Professor Paoletti, that is that in regard to each such diagnoses [sic], each of them is moderate. Despite the diagnoses made by Dr Entwisle, I am not satisfied that Ms Elias meets the test of serious injury.
…
In assessing the mental, or behavioural disturbance impairment objectively and in accordance with s 93(17) part (c) of the definition of serious injury, I do not find that the consequences of her pain and suffering and impairment of her lifestyle to be severe, or to be long term and I therefore dismiss the application.[13]
Relevant legal principles
(a) Principles for determining a ‘serious injury’[13]Reasons [132], [134] and [136].
In a case concerning a physical impairment (that is a claim under paragraph (a)), the general guiding principles may be summarised as follows:
·the applicant for leave to bring proceedings must establish on the balance of probabilities that he or she suffered a ‘serious injury’ as a result of a transport accident;[14]
·although the test for determining whether an applicant has suffered a serious long term impairment or loss of bodily function is subjective in the sense that it is the effect on the particular applicant’s body function that must be considered, nevertheless it is the judge’s opinion as to the seriousness of the impairment or loss which is decisive;[15]
·in order to be ‘serious’, the consequences of the injury must be serious to the particular applicant in relation to either pecuniary disadvantage or pain and suffering, or both: when judged by a comparison with other cases in the range of possible impairments or losses, they must be fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[16]
[14]Petkovski v Galletti [1994] 1 VR 436, 437; Spence v Gomez [2006] VSCA 48 [8].
[15]Transport Accident Commission v Kamel [2011] VSCA 110 [62]; Humphries v Poljak [1992] 2 VR 129, 134.
[16]Humphries v Poljak [1992] 2 VR 129, 140; Spence v Gomez [2006] VSCA 48 [8]; Transport Accident Commission v Kamel [2011] VSCA 110 [64].
Where a claim is made for a mental or behavioural disturbance or disorder, under paragraph (c), the requisite degree of disturbance or disorder is to be ‘severe’ compared with ‘serious’ in respect of the impairment or loss referred to in paragraph (a). Because ‘severe’ is a word ‘of stronger force’ than the word ‘serious’, the consequences must be more significant under paragraph (c) than under paragraph (a).[17]
[17]Mobilio v Balliotis [1998] 3 VR 833, 834–5 (Winneke P), 846 (Brooking JA).
Where an applicant claims to have suffered a serious injury with both physical and mental consequences, questions may be raised about whether those consequences are to be evaluated under paragraph (a) or paragraph (c).
In Richards v Wylie,[18] after noting the different qualifying criteria for each species of ‘serious injury’, Winneke P (Chernov JA agreeing) observed:
... but if the body of evidence before the judge demonstrates that the consequences of a mental disturbance or disorder are themselves producing the impairment of body function complained of, it would be, as Crockett and Southwell, JJ. pointed out, "anomalous" to regard those consequences as falling to be considered under sub-paragraph (a) of the definition when clearly it is the severity of the disorder or disturbance itself which falls to be judged under sub-paragraph (c).[19]
A little further on, his Honour continued:
Thus, the "serious injury" defined by sub-paragraph (a) of sub-s.(17) can, I think, have its seriousness measured in part by a mental response to a physical impairment. What it will not recognize is that the mental disorder can itself constitute or be the producer of the impairment of a body function.[20]
[18]Richards v Wylie (2000) 1 VR 79.
[19]Ibid [16] (emphasis added).
[20]Ibid [17] (emphasis added).
Buchanan JA agreed that it would be anomalous if an impairment or loss of body function, itself the consequence of a mental or behavioural disturbance or disorder, fell within paragraph (a) of the definition when the disorder itself had to be judged according to the criteria paragraph (c).[21] In the case before the court, his Honour considered that,
… there was either no current physical basis for the respondent's symptoms or, if there was a persisting soft tissue injury, it was no more than the trigger of a psychological disturbance which far outweighed the direct effects of any organic damage.[22]
[21]Ibid [25].
[22]Ibid [24] (emphasis added).
Nevertheless, despite the distinction between the two limbs of the definition, a consequence of a physical impairment or loss may be the development of a mental response, and that consequence must be evaluated in determining whether the impairment or loss can fairly be described as ‘serious’ in accordance with the established principles.[23]
[23]Ibid [17], [24], [28].
(b) Principles for appellate interference
The principles for determining an appeal from a judge’s determination of a ‘serious injury’ application of this kind, have been conveniently summarised by Kyrou AJA (Warren CJ and Ashley JA agreeing) in Transport Accident Commission v Kamel:[24]
The basis upon which this Court will interfere in a judge’s finding that a person is suffering from a ‘serious injury’ within the meaning of s 93(17) of the Act was discussed at length in Mobilio v Balliotis.[25] The relevant principles were summarised as follows by Winneke P in Richards v Wylie:[26]
It is not in doubt that this court will not lightly interfere with a judge’s finding that an applicant is suffering from ‘a serious injury’ within the meaning of s 93(17). It is for the appellants to persuade us that the primary judge was wrong, and that is no easy task where the decision appealed against is one involving elements of fact, degree and value judgment … Furthermore, the court must be astute to have regard to the advantage which the primary judge had in assessing the respondent’s credibility and determining disputed issues of fact. As this court said in Mobilio v Balliotis … a judge’s finding that an applicant had suffered a ‘serious injury’ within the meaning of s 93 of the Act will only be disturbed if it is vitiated by specific error or can otherwise be shown to be plainly wrong.[27]
[24]Transport Accident Commission v Kamel [2011] VSCA 110 [69] (citations in original).
[25]Mobilio v Balliotis [1998] 3 VR 833, 835, 841, 854, 858, 860.
[26]Richards v Wylie (2000) 1 VR 79.
[27](2000) 1 VR 79, 86 [15] (citations omitted); Spence v Gomez [2006] VSCA 48 [8].
(c) Principles concerning adequacy of reasons for decision
In the same judgment, his Honour also summarised principles concerning the adequacy of reasons: [28]
[28]Transport Accident Commission v Kamel [2011] VSCA 110 [70]–[73] (citations in original).
This Court has repeatedly emphasised, including in appeals from decisions of the County Court under s 93(4)(d) of the Act, that judicial reasons for decision must sufficiently explain the basis for any findings that are made in reaching that decision. It has been said that the reasons must disclose ‘the route that led to the answer’, ‘how or why the conclusion was reached’, ‘the process of reasoning’ or ‘the path of reasoning’.
Thus, for example, in Franklin v Ubaldi Foods Pty Ltd[29] – which involved an appeal from a decision of the County Court made under s 134AB(16)(b) of the Accident Compensation Act 1985 – Ashley JA, with whom Warren CJ and Nettle JA agreed, said:
Reasons must be such as reveal – although in a particular case it may be by necessary inference – the path of reasoning which leads to the ultimate conclusion. If reasons fail in that respect, they will not enable the losing party to know why the case was lost, they will tend to frustrate a right of appeal, and their inadequacy will in such circumstances constitute an error of law.[30]
Similarly, in Rodda v Transport Accident Commission[31] – which involved an appeal from a decision of the County Court under s 93(4)(d) of the Act – Hargrave AJA, with whom Ashley and Dodds-Streeton JJA agreed, said:
it is established that adequate reasons will provide an intelligible explanation of the process or path of reasoning which has led to the conclusion reached, and that a judge is required to consider and give adequate reasons in determining each of the substantial issues which have been raised for determination in the proceeding. Where there is a conflict on the evidence, and one version is accepted and the other rejected, the judge must [advert] to and assign reasons for preferring one version of the evidence over another.[32]
In general, the mere recitation of evidence followed by a statement of findings, without any commentary as to why the evidence is said to lead to the findings, is insufficient to disclose a path of reasoning.[33]
Submissions on appeal
[29]Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317. This case has been either cited or applied in numerous subsequent decisions. See, for example, Hesse Blind Roller Co Pty Ltd v Hamitoski [2006] VSCA 121 [19].
[30]Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 [38].
[31]Rodda v Transport Accident Commission [2008] VSCA 276 [98].
[32]Rodda v Transport Accident Commission [2008] VSCA 276 [98]. Similar observations were made by Hargrave AJA, with whom Ashley and Dodds-Streeton JJA agreed, in ACN 087 528 774 Pty Ltd v Chetcuti (2008) 21 VR 559, 566 [20].
[33]Hunter v Transport Accident Commission (2005) 43 MVR 130, 140 [28].
Serious injury: paragraph (a)
The first ground of appeal challenged the finding made by the trial judge at [45] of the Reasons[34] that, ‘I cannot accept the plaintiff’s evidence as to her reporting specific right shoulder pain’ as being based upon a misunderstanding or misstatement of the evidence, or being against the weight of the evidence, alternatively being the result of an erroneous reasoning process. In argument Mrs Elias contended that the judge’s finding was not open, or irrelevant to the determination, as well as not being explained by any reasoning process. The finding was said to be fundamental to the judge’s rejection of both the paragraph (a) and the paragraph (c) claim.
[34]See passage extracted at [43] above.
Argument on the first ground fed into the second ground of appeal. Mrs Elias challenged the trial judge’s findings at [92] of the Reasons[35] expressed as ‘the limited complaints made to Dr Georgy from December 2008 through to November 2011 being that such complaints in regard to the shoulder were generally in the context of general complaint as to pain all over her body, and as to bilateral shoulder pain’. She submitted that conclusion was similarly based upon a misunderstanding or misstatement of the evidence, was against the weight of the evidence, or alternatively was as the result of an erroneous reasoning process.
[35]See passage extracted at [48] above.
It was in that same paragraph of the Reasons that his Honour drew together the opinions of the doctors concerning the physical impairment, and expressed his preference for the opinion of Mr Dickens and those of other doctors which he considered confirmed that view. The first, second and the fifth grounds of appeal were, in substance, argued together.
The central argument put forward by Mrs Elias was that the judge was wrong: (a) to view Dr Georgy’s notes as if they were full and comprehensive without any proper basis in evidence for doing so; and (b) to discredit Mrs Elias, based upon Dr Georgy’s notes, despite Mrs Elias insisting that she told Dr Georgy much more than what he appears to have recorded. Moreover, she argued, the evidence showed that, contemporaneously with times when she saw Dr Georgy, she complained to many other doctors specifically about her right shoulder. This, she said, strengthened the probability that she did in fact complain to Dr Georgy of her right shoulder pain and that he simply failed to record her complaints.
On appeal, Mrs Elias produced a table listing the dates upon which any doctor recorded a reference to shoulder pain, including right shoulder pain, or any treatment given in respect of her shoulders. The table was intended to demonstrate that, whilst Dr Georgy made only few references to complaints or treatment with respect to her shoulders, and even less specifically in relation to her right shoulder, there was nonetheless a consistent thread of references in treating doctors’ notes, and imaging results, to shoulder injury even throughout 2010 and on occasions in 2011. Additionally, a survey of the medico-legal reports also added to the history given of right shoulder complaint.
Mrs Elias argued that the wider picture should have led the judge to find that Dr Georgy’s notes were not as ‘meticulous’ as he thought they were.
Allied with this argument, Mrs Elias submitted that the judge made no adverse findings about her credit which, bearing in mind that Mrs Elias swore that she did report the right shoulder injury to Dr Georgy, made his rejection of her evidence all the more inexplicable. Or if he did make adverse findings, he failed to explain why. Further, to make such an adverse finding, he needed to, but did not, explain how he dealt with the unchallenged evidence of Mrs Elias’s son and the failure of the TAC to call the surveillance evidence it evidently possessed.
So, Mrs Elias argued, there was no proper basis, or if there was the judge did not explain it, for his conclusion that he could not accept her evidence as to reporting specific right shoulder pain. Alternatively, that conclusion was against the weight of all the evidence.
Drawing these strands together, Mrs Elias then argued that, having reached that wrong conclusion, the trial judge then erred by relying upon it at [92] of the Reasons for dismissing her application in respect of her physical impairment. At [92], the judge preferred the opinion of Mr Dickens, adverse to Mrs Elias, to those of Messrs Mangos, Kudelka and Hunt whose opinions supported Mrs Elias’s application. His Honour considered that Mr Dickens’ opinion was confirmed by those of Dr Muir, Mr Simm and Dr Littlejohn, an opinion that was consistent with the limited complaint of right shoulder pain made to Dr Georgy.
Regarding the first of those two bases, Mrs Elias sought to persuade this court that the opinions of the three doctors referred to did not support that of Mr Dickens. She argued that none of them supported Mr Dickens’s two essential opinions, namely that (1) the physical injury was only a ‘temporary exacerbation of a previous injury’ and, (2) beyond that, there was only an ‘abnormal pain response’. Contrastingly, Mrs Elias argued that Messrs Mangos, Kudelka and Hunt all supported an ongoing, genuine physical injury.
As to the proposition that the physical injury was only ‘temporary’, Mrs Elias took the Court to what the other three doctors said in that regard:
·Dr Muir, in March 2011, said that she ‘is suffering’ a primary myofascial pain syndrome affecting her right shoulder which ‘has triggered a moderate to severe secondary psychological reaction which is driving her principal disability’[36].
·Mr Simm, in his report of 28 September 2011, said it was possible she sustained a soft tissue injury with aggravation of pre-existing degenerative rotator cuff changes, now largely overwhelmed by a very severe chronic pain response with functional features and, also said ‘the organic pathology has been acknowledged’.[37]
·Dr Littlejohn, in his report of 20 September 2011 was of the view that she was then suffering ‘fibromyalgia with a prominent right upper quadrant regional pain syndrome’, then had a psychological reaction to her physical condition which was the main driver for her chronic pain syndrome, and (in a report of 23 November 2011) felt she ‘may well have’ made an asymptomatic supraspinatus tendonopathy symptomatic although his opinion was that her dominant problem was the pain syndrome and not the supraspinatus tendonopathy.[38]
[36]Report of Dr Andrew Muir dated 18 March 2011. AB:D56-57
[37]Report of Rodney Simm dated 28 September 2011. AB:D77-78
[38]Reports of Dr Littlejohn dated 20 September 2011 and 23 November 2011. AB:D128 AB:D130
Thus, she argued, each of these opinions demonstrated that the doctors thought she had a current physical condition which contradicted Mr Dickens’ view such that the court could not correctly have regarded them as confirming his opinion.
Finally, Mrs Elias criticised the judge’s reasoning (at [93] of his Reasons) as being confusing: first saying he was not satisfied the injuries to the cervical spine or the right shoulder of the applicant existed at the date of judgment, but then saying ‘if they are [in existence]’ the impairment of bodily function and physical consequence therefrom were neither long term nor serious. She argued the first view was not open on the evidence and, as to the second, the judge failed to explain why, if there was a physical injury, it was not long term or serious.
Conclusion: paragraph (a)
I accept that the judge’s findings at [45] and [92] of his Reasons were highly influential in the way in which he reached his decision. But I reject the argument that his findings in those paragraphs were not open, or were irrelevant, or were not adequately explained by any reasoning process. Neither did those findings amount to a misstatement or misunderstanding of the evidence or result from an erroneous reasoning process.
First, the findings were open: his Honour was entitled to make the finding that he did, and to find that Dr Georgy’s notes did discredit Mrs Elias. I hold that view for these reasons:
(a)I begin with the true purport of his Honour’s finding. The judge’s conclusion in paragraph [45] of the Reasons was preceded by paragraphs in which his Honour had specifically referred to the cross-examination of Mrs Elias about her alleged lack of complaint to Dr Georgy throughout 2009, 2010 and 2011, then to her evidence in re-examination that she had complained ‘on every occasion’ she visited Dr Georgy of her right shoulder pain. In stating ‘I cannot accept the plaintiff’s evidence as to her reporting specific right shoulder pain’, the judge was rejecting Mrs Elias’s evidence of the frequency and specificity of complaint about her particular right shoulder injury, amongst a range of other conditions, not that she never complained of it or that there was never any evidence of some right shoulder injury. So much is made clear in [92] of the Reasons where the reference is to limited complaints, and to shoulder complaints made generally – by implication, not exclusively – to bilateral shoulder pain and pain all over the body.
(b)The judge saw her under cross-examination, a benefit which this Court does not have.[39] The transcript of cross-examination bears out the proposition that she was challenged on a number of matters: the circumstances of her ceasing to attend to the psychologist in early February 2010 and lack of any treatment for psychological or psychiatric condition since; the reporting of her right shoulder injury itself; the medication she took for it; and the reporting to doctors of her earlier injury to her shoulder and back.
(c)The judge observed the doctor’s notes. He was entitled to form a view about the nature of those notes from their appearance, their contents, their apparent level of detail. He thought they bore the character of being ‘meticulous’. In other words, those notes were a piece of evidence in themselves that his Honour was entitled to use, and from which he could draw some inferences as a matter of probability about the care taken by the doctor in recording the patient’s complaint. I cannot ignore the fact that, as a matter of renown, the trial judge in question is very experienced in the field of personal injury cases and would have had occasion to observe many examples of doctor’s notes.
(d)The judge did not have the benefit of any explanation from Dr Georgy himself as to why his notes failed to record more complaints by Mrs Elias about her right shoulder than they did. The judge had to reconcile an apparent conundrum: an insistence by a witness whom he had the opportunity to observe that she made constant complaints to a doctor, her long standing treating general practitioner, of a particular nature, and a set of clinical notes which did not bear out, even remotely, such a pattern of reporting. Bearing in mind that Mrs Elias bore the onus of proof, in my view the judge was well entitled to reconcile that conundrum the way that he did.
(e)Contrary to Mrs Elias’s submission, the judge did make an adverse finding about her credit. His Honour’s statement that although he did not consider she was deliberately lying, he simply did not accept her evidence, was, in my view, an express adverse finding about her credit. I agree with the respondent’s submission that, in substance, the judge was saying that he did not find her a reliable witness on the issue of the frequency and specificity of her reporting of right shoulder injury. Indeed, the judge continued in the same paragraph to posit, as a possible basis for that unreliability, the ‘totality’ of her injuries (a reference, I infer, to her psychological condition with which he later deals) and the ‘concentration’ given to the right shoulder for the purpose of the legal proceeding.
[39]Warren v Coombes (1979) 142 CLR 513, 552; Mobilio v Balliotis [1998] 3 VR 833, 836
Secondly, contrary to Mrs Elias’s submission, the conclusion by the judge that the reporting by Mrs Elias to Dr Georgy of specific right shoulder injury was limited, was relevant to his determination. The trial judge had to determine what the condition of Mrs Elias was in 2011 – not what she had been like in 2009. That was why, as the respondent argued, the trial judge was so interested in Dr Georgy, the only treating doctor who had seen her right through to 2011. The judge was more focused on the treating doctors than the reports of injury recorded in the context of medico-legal examinations. He expressed some dissatisfaction with the fact that most of the medico legal reports resulted from only one consultation, and that very few of the specialists had undertaken a repeat examination. In my view, the trial judge was entitled to accord both relevance and weight to the inference he drew from Dr Georgy’s notes when making his determination.
Thirdly, his Honour’s finding as to limited reporting of specific right shoulder complaint to Dr Georgy, could not be said to be either a misstatement of the evidence or a misunderstanding of the evidence because:
(a)The finding was specific to complaints made to Dr Georgy; not to other doctors.
(b)In my view there is support in the notes for a finding that, by 2011, Mrs Elias’s complaints to Dr Georgy increasingly focused on bilateral shoulder pain, or pain over her whole body.
(c)The judge was clearly cognisant of complaints of right shoulder injury to other doctors – that is, not only those made to Dr Georgy himself but also those made to Dr Al-Mulla, to Dr Ebringer, and to the medico legal specialists. The survey of the judge’s reasons and references to those complaints makes that clear.
(d) I am not persuaded that the evidence of complaints made to other doctors, contemporaneously with Mrs Elias consulting Dr Georgy, either mean that the judge failed to take them into account or compel a conclusion that the judge’s finding was plainly wrong.
(e)This aspect of the ground of appeal, is in substance an argument that the judge’s finding was against the weight of the evidence; I am not persuaded that it was.
Fourthly, on the basis of what I have already stated, I reject the proposition that his Honour’s findings about Mrs Elias’s reporting of injury to Dr Georgy were either the result of an erroneous reasoning process, or were themselves not adequately explained. In substance, that reasoning process, revealed in the passages to which I have referred was that:
·Mrs Elias said she always reported right shoulder injury to Dr Georgy;
·Dr Georgy’s notes disclose only seven occasions out of over 50 consultations when such a complaint was specifically reported;
·The doctor’s notes appeared on their face to be meticulous and provide a precise patient history;
·Mrs Elias, who was cross examined before the judge and challenged on a range of topics, did not impress the judge as being reliable in her testimony;
·A plausible explanation for Mrs Elias’s misplaced insistence on having made such complaints, without deliberately lying about it, was her concentration on her right shoulder injury for the purpose of the legal proceeding, and her psychological profile which was also the subject of evidence before the court;
·In those circumstances, the judge preferred the account of complaint revealed in the notes to the account given by the appellant.
In my view, the judge’s Reasons do adequately show a path of reasoning and how his conclusion was reached on this central finding.
It was perhaps regrettable that his Honour did not say, explicitly, how he reached that conclusion in the face of Mrs Elias’s son’s evidence about his observation of his mother’s behaviour, and complaints. But, his Honour did specifically refer to that evidence and, by inference, most likely took it into account. I do not consider that the failure of his Honour to say more, in the light of the nature of the evidence given by Pier Elias, could be said to be a specific error or to demonstrate the judge’s opinion to be plainly wrong or wholly erroneous. Furthermore, the failure to expressly mention any inference that could be drawn from the TAC not calling the surveillance evidence it apparently possessed does not, in my opinion, tip the scales in favour of the appellant either. Mrs Elias’s argument on that issue is complicated by the fact that, as the transcript revealed, she too had possession of the surveillance evidence, and could have tendered it herself.
Fifthly, the reasoning at [92] of the Reasons, in which the judge preferred the view of Mr Dickens over those of Messrs Mangos, Kudelka and Hunt was not erroneous, and was adequately explained. I hold that view for the reasons below.
(a)There was a difference of views that needed to be resolved. As noted by the judge, and as the respondent conceded, there was strong support from some of the medico-legal specialists for the diagnosis of a significant right shoulder injury. This support came from Mr Mangos, Mr Kudelka and Mr Hunt. On the other hand, equally, there was a strong consistent theme, the respondent contended, from the evidence of Mr Muir, Mr Simm, Dr Littlejohn and Mr Dickens, that the driving force for Mrs Elias’s disability was a psychiatric injury or a psychological reaction to her physical condition.
(b)I am not persuaded, as Mrs Elias argued I should be, that the views of Dr Muir, Mr Simm, and Dr Littlejohn did not confirm, in substance, the views of Mr Dickens. Dr Muir’s opinion was that the psychological reaction was ‘driving’ Mrs Elias’s principal disability, a statement consistent with a view that, although there was some physical injury, the impairment was predominantly driven by psychiatric injury. Likewise Mr Simm referred to a possible soft tissue injury which was now ‘obscured’ or ‘largely overwhelmed’ by a severe chronic pain response, not a paragraph (a) case. Mr Littlejohn said the same, namely that the main driver of her disability was the psychological reaction to her physical condition.
(c)The conclusion that the complaints made throughout 2010 and 2011 to the treating doctor, Dr Georgy, tended to focus on whole body pain and bilateral shoulder pain, was logically capable of supporting Mr Dicken’s view more readily than those of Mssrs Mangos, Kudelka and Hunt.
(d) It was both rational, and open to the judge, to use the mutually confirmatory opinions of several of the doctors, together with a finding of a patient history that was more consistent with their views than those of the rival group, to assist in reaching a conclusion about which views to prefer.
(e)There is nothing illogical or confusing in expressing findings in a cascading manner, as the judge did: that is, saying that he was not persuaded that Mrs Elias’s right shoulder injury did subsist in 2011, but that even if he was wrong and it was subsisting (ie so as to produce consequences), he did not consider the resulting impairment from that injury to be ‘long term’ or ‘serious’. Such an approach is all the more understandable when it is understood that the judge was focused, as Mrs Elias was rightly at pains to emphasise he was required to be, on the impairment rather than the injury itself.
Having preferred the opinion of Mr Dickens, confirmed (as he held it was) by Dr Muir and Messrs Simm and Littlejohn – particularly concerning the role that Mrs Elias’s mental condition played in ‘driving’ her physical impairment – the trial judge’s decision[40] to focus, instead, on whether her mental condition met the criteria in paragraph (c) of the definition was justified in view of the principles in Richards v Wylie.[41]
Serious injury: paragraph (c)
[40]Reasons [94], [95].
[41]See [58] -[60] above.
Mrs Elias’s appeal against his Honour’s dismissal of her application under paragraph (c) of the definition of serious injury was argued on several grounds:
(a)The decision was infected by the judge’s erroneous conclusion concerning her reporting of right shoulder injury to Dr Georgy;
(b)The judge failed to demonstrate a path of reasoning, or employed an erroneous reasoning process (ground 3);
(c)He failed to give any or sufficient weight to the medical evidence of psychiatric injury and its consequences (ground 4(f)); and
(d)The judge should have found Mrs Elias suffered a severe long term mental or severe long term behavioural disturbance or disorder (ground 6).
The first ground fails because I have concluded the judge was not in error in making the conclusions he did concerning Mrs Elias’s reporting to Dr Georgy. The remaining grounds focused upon the evidentiary basis for the judge’s conclusion, and his reasoning process and expression of reasons.
Two arguments were directed toward specific aspects of the evidence. The first concerned the evidence about the treatment Mrs Elias received for her psychological or psychiatric condition; the second concerned Associate Professor Paoletti’s description of her mental disorders as being ‘moderate’.
As noted above, the judge drew attention to the lack of treatment Mrs Elias received for psychological, psychiatric or pain conditions since January 2010, and her inability to advise the court what medication she had taken for depression or any mental condition.[42] In that context, his Honour referred to Turner v Love[43] when commenting that the type of treatment, its frequency and the manner in which a person is treated for their conditions is a relevant consideration when assessing serious injury under paragraph (c). Picking up the issue a little later, he said that he found Mrs Elias’s ‘failure to undergo treatment since ceasing with Ms Kadaras in January 2010’, and her failure to ‘partake of any pharmaceutical treatment by way of prescription’, to be ‘indicative of [her] true condition’.[44]
[42]Reasons [102].
[43]Turner v Love (1995) 21 MVR 314.
[44]Reasons [132] (emphasis added); set out in full at [54] above.
One of Mrs Elias’s complaints was that the judge did not pay sufficient regard to the explanation, or an explanation, for her not taking anti-depressant medication, namely that she suffered adverse physical reaction to such medication. But the judge was certainly aware of the evidence on that subject, having specifically noted that Mrs Elias told Mr Dickens she had stopped taking any medication because of constipation, and that she explained to the court ‘somewhat graphically’ the difficulties she had.[45] There is no reason to believe that his Honour did not properly take into account the evidence of Mrs Elias’s reaction to medication in forming his conclusion.
[45]Reasons [81].
It was further submitted that his Honour misapplied Turner v Love. The argument was that the judge failed to focus on Mrs Elias’s ‘need’ for medication, as the psychiatrists confirmed she had, and gave incorrect attention to her failure to take medication. Turner v Love concerned a very different circumstance to the present case. There, the applicant had been diagnosed with a major depressive illness, had been treated by a psychiatrist for over two years, was receiving continuing psychiatric treatment at the time of trial, and was under a very high dosage of anti-depressant medication which was likely to continue indefinitely. Her symptoms increased if her dosage was reduced, but the evidence was that her condition was being reasonably well controlled by the medication. In those circumstances, the court said that the consequences of a psychiatric injury are not confined to its symptoms, but include the need for medication and its side effects.
In this case, despite being aware of Mrs Elias’s past experience in 2009, in taking some medication, and of the doctors’ recommendations for both pharmacological and non-pharmacological treatment, the trial judge considered that her failure to pursue either forms of treatment for a period of two years prior to trial was a material indication of the severity or otherwise of the consequences of her mental condition. In my view the judge was entitled to have regard to the history of treatment for Mrs Elias’s condition in assessing those consequences. I find no error in either his Honour’s evaluation of the facts or application of principle to them.
The next criticism was the judge’s conclusion, based upon Associate Professor Paoletti’s evidence, that Mrs Elias’s mental condition was ‘moderate’.[46] The criticism was based first on the proposition that the doctor’s use of the descriptor was taken out of context because it was adopted from the AMA Guides (4th Ed), and not directed to the test set out in the definition of ‘serious injury’ in the Act. I reject this argument. The doctor did not say he was using that description in the way Mrs Elias contended.
[46]Reasons [134].
Secondly Mrs Elias argued that the word ‘moderate’ was used to describe the injury itself, and not its consequence or impact on her life. However, Associate Professor Paoletti said in evidence, ‘[B]ut when you look at the impact that this illness has had on her - the way she experiences symptoms and the way she experiences life, then I – I’d call it moderate.’[47] The judge began his reasons by reminding himself specifically of the need for a court to look at the consequences of a psychiatric injury, [48] and did so again shortly before the passage under discussion.[49] Again, I find no reason to conclude that his Honour failed to properly direct his attention to evidence of the impact of the mental disorder or disturbance on Mrs Elias when assessing whether she qualified for ‘serious injury’.
[47]Trial transcript, 89 lines 18-20 (emphasis added).
[48]Reasons [10].
[49]Reasons [126].
The final criticism was the judge’s reasoning process and his expression of reasons, or lack thereof. Earlier, I set out the principal paragraphs in which the judge expressed his final conclusion about Mrs Elias’s mental or behavioural disturbance or disorder.[50]
[50]See [54] above.
One aspect of this ground was a contention that the judge did not give a proper basis for rejecting Associate Professor Tan’s evidence. I reject this argument. The judge heard the doctor cross examined, and expressed a clear reason for not accepting his opinions, namely that he thought the doctor tailored his views to fit in with the legal definition. In other words, he had doubts about the doctor’s independence.
A further aspect, and one that perhaps gives me a little more concern, is the argument that his Honour did not adequately explain his preference for Associate Professor Paoletti’s opinion over that of Dr Entwistle. It is to be recalled that his Honour received reports of three psychiatrists: those of Associate Professors Tan and Paoletti, and of Dr Entwistle. The judge rejected Associate Professor Tan’s opinion; accepted the view of Associate Professor Paoletti and stated that ‘[d]espite the diagnoses made by Dr Entwistle, I am not satisfied that Ms Elias meets the test of serious injury’.[51]
[51]Reasons [134] (emphasis added).
Notwithstanding the brevity of that statement, it had been closely preceded by a number of other findings and observations, including:
·reference to a relative lack of reporting to or treatment by her general practitioner, Dr Georgy, for depressive symptoms;
·reference to her failure to undergo psychological treatment from Ms Kardaras since January 2010, or to take any anti-depressant medications;
·acknowledgement that she had nevertheless been treated by Dr Al-Mulla and Ms Kardaras for depressive symptoms in 2009;
·mention of his own observation of Mrs Elias (ie in the proceeding before him); and
·reference to the opinion of Associate Professor Paoletti, whom the judge had the opportunity to hear examined, that the effect of the mental disorder on her life was moderate.
Further, what the judge was choosing to put aside was only Dr Entwistle’s diagnosis – which was of ‘major depressive illness’ – and not, specifically, his views about the effects of Mrs Elias’s mental condition upon her life. Preferring one diagnosis of a condition over another has somewhat less significance in the context of the test being applied under s93(17) of the Act than it might have in other contexts. The more significant conclusion comes in the paragraphs that immediately follow his statement about Dr Entwistle’s diagnosis: in them the judge says he is not satisfied to the required degree that Mrs Elias has proved that the consequences of her pain and suffering, and impairment to her lifestyle, to be severe or long-term.
But in so far as the preference there being expressed involved a judgment as to which of the two views sat most comfortably with the whole of the evidence concerning the extent to which Mrs Elias’s mental condition impacted her life, including the aspects of the evidence enumerated above, that preference was closely entwined with the decisive issue at hand: that is, one that involved ‘elements of fact, degree and value judgment’.[52]
[52]See above [61].
I accept, of course, the respondent’s submission that the judge was not bound to accept Dr Entwistle’s opinion. But I am not so persuaded by its further argument that, although bound to explain the conclusion he did reach (ie in conformity with Associate Professor Paoletti’s opinion), his Honour was not bound to explain why he did not reach a different conclusion (ie in conformity with Dr Entwistle’s opinion). As explained in Rodda v Transport Accident Commission, a judge must give reasons for preferring one version of the evidence over another where there is a conflict.[53]
[53]See above [62].
On balance, although the judge has rather left it for the reader to pull together the strands of reasoning lying behind his preference for the opinion of Associate Professor Paolotti over that of Dr Entwistle, in my view that reasoning is discernible in the Reasons, and is sufficiently intelligible to avoid a finding of error. Accordingly, I would not uphold ground 3 in so far as it is directed to the application for leave to appeal the finding under paragraph (c) of the definition of serious injury.
In addressing the applicant’s arguments on the above grounds I have also covered the remaining aspects of evidence the subject of her ground numbered 5, namely that the judge had failed to give any of any sufficient weight to a list of specific evidentiary matters.
Conclusion
For the reasons I have stated above, the trial judge’s decision was neither vitiated by specific error, nor was it shown to be plainly wrong. It follows that the application for leave to appeal must be dismissed.
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