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’)
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).…
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Details
- Case
- [2013] VSCA 123
- Decision Date
CaseChat Overview and Summary
The matter before the Court was an appeal by Mrs Elias against a decision of the County Court of Victoria that dismissed her application for leave to commence proceedings against the Transport Accident Commission (TAC) for compensation in respect of a serious injury sustained in a motor vehicle accident. The appeal was dismissed by the Court of Appeal, which found that the trial judge had not erred in his determination that Mrs Elias did not suffer from a serious injury within the meaning of the Transport Accident Act 1986 (Vic).
The central legal issue before the court was whether the trial judge had erred in finding that Mrs Elias was not suffering from a 'serious injury' as defined in section 93(17)(a) or (c) of the Transport Accident Act 1986 (Vic). This required the Court to consider whether the trial judge's evidentiary findings, particularly those concerning Mrs Elias's complaints of right shoulder pain, were correct and whether the reasoning process was adequately disclosed in the trial judge's reasons. The Court also needed to determine if the trial judge had erred in his assessment of the medical evidence and whether the judge's conclusions about the nature and extent of Mrs Elias's injuries were supported by the evidence.
The Court of Appeal held that the trial judge had not erred in his findings or in his assessment of the medical evidence. The Court found that the trial judge had adequately considered the evidence and had provided sufficient reasons for his conclusions. In particular, the Court agreed with the trial judge's assessment that Mrs Elias's complaints of right shoulder pain, as recorded in the clinical notes of her general practitioner, Dr Georgy, were not credible. The Court also found that the trial judge's conclusions about the nature and extent of Mrs Elias's injuries were supported by the evidence, particularly the medical evidence. The Court concluded that Mrs Elias had not suffered a serious injury within the meaning of the Transport Accident Act 1986 (Vic).
In light of the findings, the Court dismissed the appeal and affirmed the decision of the County Court. The Court held that the application for leave to appeal should be dismissed, as the trial judge had not erred in his determination that Mrs Elias did not suffer from a serious injury. The Court's decision was based on a comprehensive review of the evidence and the reasoning provided by the trial judge.
The central legal issue before the court was whether the trial judge had erred in finding that Mrs Elias was not suffering from a 'serious injury' as defined in section 93(17)(a) or (c) of the Transport Accident Act 1986 (Vic). This required the Court to consider whether the trial judge's evidentiary findings, particularly those concerning Mrs Elias's complaints of right shoulder pain, were correct and whether the reasoning process was adequately disclosed in the trial judge's reasons. The Court also needed to determine if the trial judge had erred in his assessment of the medical evidence and whether the judge's conclusions about the nature and extent of Mrs Elias's injuries were supported by the evidence.
The Court of Appeal held that the trial judge had not erred in his findings or in his assessment of the medical evidence. The Court found that the trial judge had adequately considered the evidence and had provided sufficient reasons for his conclusions. In particular, the Court agreed with the trial judge's assessment that Mrs Elias's complaints of right shoulder pain, as recorded in the clinical notes of her general practitioner, Dr Georgy, were not credible. The Court also found that the trial judge's conclusions about the nature and extent of Mrs Elias's injuries were supported by the evidence, particularly the medical evidence. The Court concluded that Mrs Elias had not suffered a serious injury within the meaning of the Transport Accident Act 1986 (Vic).
In light of the findings, the Court dismissed the appeal and affirmed the decision of the County Court. The Court held that the application for leave to appeal should be dismissed, as the trial judge had not erred in his determination that Mrs Elias did not suffer from a serious injury. The Court's decision was based on a comprehensive review of the evidence and the reasoning provided by the trial judge.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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: 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.
Decision
Reasons for decision
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].
Ratio Decidendi
Legal Principle Established
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