Findlay v Transport Accident Commission

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0151

IAN FINDLAY	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	BEACH, KENNEDY and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2025
DATE OF JUDGMENT:	5 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 126
JUDGMENT APPEALED FROM:	Findlay v Transport Accident Commission [2024] VCC 1621 (Judge Myers)

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ACCIDENT COMPENSATION – Transport accident – Serious injury – Application for leave to commence common law proceeding – Applicant’s vehicle collided with truck – Accident caused seatbelt to pull hard across applicant’s stomach – No significant health abnormalities detected by treating physicians immediately following accident – Applicant subsequently experienced abdominal pain in weeks following accident – Applicant re-admitted to hospital and diagnosed with severe colitis – Applicant underwent total colectomy and ileostomy – Causation – Whether probable causal connection between transport accident and colitis – Expert evidence that transport accident a possible cause of colitis – Where applicant was in good health prior to accident – Temporal connection between accident and symptoms of colitis – Application for leave to appeal granted – Appeal allowed.

Transport Accident Act 1986, s 93.

EMI (Australia) Ltd v BES [1970] 2 NSWR 238; Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303; Dahl & Anor v Grice [1981] VR 513, considered; Fox v Percy (2003) 214 CLR 118, referred to.

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Counsel
Applicant:		Mr E Makowski with Ms N Crowe
Respondent:		Mr J Ruskin KC with Mr D Oldfield
Solicitors
Applicant:	Arnold Thomas and Becker
Respondent:	Wisewould Mahony

BEACH JA
KENNEDY JA
KAYE JA:

On 23 November 2020, the applicant was injured in a transport accident, in which his vehicle collided head-on with a truck on Toorongo Road, Loch Valley. The applicant subsequently suffered a severe incidence of colitis. In March 2024, he sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (Vic) (‘the Act’), to issue a common law proceeding for damages. The respondent conceded that the long-term impairment consequences of the applicant’s bowel condition constituted a serious injury as defined in s 93(17) of the Act, in that the consequences of the long-term impairment were more than ‘significant’ or ‘marked’, and ‘at least very considerable’. The sole issue in the proceeding was whether the condition was a result of the motor vehicle accident.
The matter was heard before a judge of the County Court on 24 September 2024. In a reserved decision dated 30 October 2024, the judge determined that the evidence did not support a conclusion, on the balance of probabilities, that the motor vehicle accident was a cause of the colitis suffered by the applicant.[1]
[1]Findlay v Transport Accident Commission [2024] VCC 1621 (‘Reasons’).
The applicant seeks leave to appeal the decision on two grounds, namely:
1.The trial Judge erred in finding that upon a consideration of the whole of the evidence the Applicant could not prove on the balance of probabilities that a transport accident on 23 November 2020 was a cause of his claimed injuries.
2.The reasons for judgment do not disclose an adequate process of reasoning to demonstrate why upon a proper consideration of the whole of the evidence the Applicant could not prove on the balance of probabilities that a transport accident on 23 November 2020 was a cause of his claimed injuries.

Background

The applicant was born on 30 April 1956. After leaving school at the age of 17 years, he was engaged in regular employment. At the time of the accident, he was working with Latrobe Valley Enterprises, undertaking ground maintenance for government facilities in the Latrobe Valley. He was then in good health.
The applicant had previously suffered from two health conditions. For some years before the accident, he suffered from gout, for which he was taking medication. In addition, in 2016, he was diagnosed with rectal cancer, and he underwent a colon resection. In early 2017, the cancer had metastasised and appeared in his lung. The applicant was treated with a lung resection at the Alfred Hospital in 2018, and underwent a course of chemotherapy. Subsequently, there has not been any sign of a recurrence of the cancer. The medical evidence, that was before the primary judge, did not suggest that there was any connection between the applicant’s gout or his bout of cancer, and the colitis that he suffered after the accident in November 2020.
The accident occurred when the applicant was driving his motor vehicle on Toorongo Road, Loch Valley. As he rounded a corner, his vehicle collided with a truck that was approaching from the opposite direction, and which was on the incorrect side of the road. In his first affidavit, the applicant described the accident as involving a substantial head on impact between the two vehicles, with the airbags on the applicant’s vehicle becoming deployed. In his second affidavit he said that immediately after the accident, the seatbelt ‘pulled hard’ across his stomach.
Due to the extensive damage to the vehicle, the applicant was trapped in it for about one hour after the accident. He was then conveyed, by ambulance, to the Warragul Hospital, where he underwent a pan-body CT scan. No significant abnormality was found. On clinical examination, he was noted to have bruising, extending from the right shoulder to the left lower abdomen, as a result of a seatbelt injury. He also complained of midline cervical neck pain, and pain in the right shoulder and sternum. He was diagnosed to have sustained a soft tissue injury and was discharged home.
About two weeks after the accident, the applicant began to feel unwell, suffering from increasing abdominal pain, nausea and diarrhoea. On 21 December 2020, he attended his general practitioner, Dr Kasun Vithanage. The clinical note of his attendance recorded that he then complained of recurrent gout problems. Dr Vithanage ordered blood tests and prescribed Arthrexin.
Ten days later, on 31 December 2020, the applicant became very unwell at home. He was conveyed by ambulance to Latrobe Regional Hospital, suffering abdominal pain, vomiting and diarrhoea. He was then diagnosed with gastroenteritis, and treated as an inpatient for two or three days with intravenous fluids and intravenous antibiotics. On 1 January 2021, an abdominal CT scan revealed changes, which were interpreted as showing mild colitis in the transverse colon and descending colon. The applicant was then discharged home.
Following the applicant’s discharge from hospital, he became increasingly unwell. On 11 January 2021, he was readmitted to Traralgon Hospital, in a septic state, with a high fever and a CRP of 262. A repeat abdominal CT scan demonstrated changes of colitis. On 14 January 2021, a plain abdominal X-ray disclosed a significantly dilated caecum. It was considered that the applicant had developed a toxic megacolon, which is a life-threatening condition. As a consequence, he was transferred, as an emergency, to Dandenong Hospital, where, on 16 January 2021, he underwent a total colectomy and temporary ileostomy. Subsequently, on 9 August 2021, the ileostomy was closed, leaving the applicant with an ileorectal anastomosis, which, in effect, brought the bowel back into continuity.
Following his surgery, the applicant continued to suffer from severe consequences of colitis. He experienced ongoing diarrhoea, and he has been required to use his bowels frequently, up to eight times per day. The applicant has been limited in the kind of food that he can eat. He is limited in where he can go and what he can do as a result of his bowel injury. At all times, he needs to be reasonably close to a toilet. The applicant is always tired because he is awoken a number of times during the night, needing to go to the toilet. He takes medication in the form of ‘Gastro-stop’, which is only partially effective.
The applicant has been able to continue working with Latrobe Valley Enterprises, as his role involves supervising support workers, who look after people with various disabilities. The job is not physically demanding and does not require him to be out of the office.

Medical evidence

Apart from extracts of clinical records of the applicant’s treating practitioners at Mid Valley Family Medicine, the medical evidence in the application consisted of medico-legal reports of two gastroenterologists, Associate Professor Paul Desmond and Dr Andrew Jakobovits.
The applicant tendered two medico-legal reports by Associate Professor Desmond dated 10 October 2022 and 22 January 2024. Associate Professor Desmond examined the applicant on 10 October 2022 and, for the purposes of doing so, he was provided with the relevant medical records.
In his first report, Associate Professor Desmond summarised the circumstances in which the applicant’s condition of colitis had developed and been treated. He concluded by noting that the applicant had received abdominal injuries in a motor car accident in November 2020. Associate Professor Desmond then expressed the following opinion on the issue of causation:
The contemporary relationship between his seatbelt injuries to his abdomen and the development of bowel symptoms suggests that the motor car accident did contribute to the development of his colitis. The histology showed quite marked ulceration and inflammation in his colon but no specific aetiological factor was seen on the histology.
It is my belief that the accident did contribute to the development of his colitis.
In his second report, Associate Professor Desmond responded to a letter by the respondent, which asked three specific questions. The first two questions concerned the potential relationship between the plaintiff’s previous medical conditions of colorectal cancer, and gout, with his severe colitis. Associate Professor Desmond expressed the view that it was ‘most unlikely’ that the applicant’s previous surgery or chemotherapy had predisposed him to developing severe colitis. He also considered that the treatment, which the applicant received for gout, was not associated with severe colitis.
The third question concerned the relationship between the abdominal trauma, sustained by the applicant in the accident, and his colitis. Associate Professor Desmond noted that the report from Warragul Hospital stated that the applicant had bruising across his abdomen associated with the seatbelt-type injury, that the applicant was noticed to have some distention in his abdomen, but there were no areas of tenderness or guarding in the abdomen, and a subsequent CT scan of the abdomen disclosed no evidence of bowel damage. Associate Professor Desmond also noted that the abdominal symptoms of the colitis occurred approximately two weeks after the accident, and that histology from the total colectomy surgery disclosed no definite aetiological factor. He then concluded as follows:
There is no obvious cause for his severe colitis and the timing of the initial symptoms and his abdominal injury does raise the possibility that there might have been a factor in him developing the colitis. There is no direct evidence that the trauma precipitated the colitis, although the close association does raise that possibility. It is possible that he developed some ischaemic damage from the trauma which was not evident on the original CT scan. There are multiple factors involved in the development of severe colitis including infections, stress, genetic; although in general, no specific cause is found.
I still believe there may be a possibility that the trauma did have some minor role in triggering the colitis, although I agree there is no definite evidence to prove this.
The applicant was examined, on behalf of the respondent, by Dr Andrew Jakobovits, a consultant gastroenterologist, on 11 July 2024.
In his report, Dr Jakobovits noted that the pathological analysis, following the emergency total colectomy conducted on 16 January 2021, did not identify a specific cause of the colitis. On the question whether the abdominal trauma sustained in the accident had a relationship with the development of the colitis, Dr Jakobovits expressed the following opinion:
It is very unlikely in my opinion that any direct trauma from the accident in any way caused the colitis. I cannot imagine any mechanism by which that could have occurred. However, there is a clear temporal relationship between the timing of the accident and the development of the colitis. I am not sure how to explain this. It is potentially possible that he had a quiescent form of inflammatory bowel disease (ulcerative colitis or Crohn’s disease) which was exacerbated or brought to light by the stress of the accident. This is theoretically possible, although the pathology of the resected specimen was not diagnostic of inflammatory bowel disease.
Dr Jakobovits concluded his report with the following comment:
It is hard not to think that the MCA in some way triggered the development of the colitis and toxic megacolon. The temporal association is hard to ignore.

The judge’s reasons

In her reasons, the judge set out the background circumstances and summarised the evidence of Associate Professor Desmond and Dr Jakobovits. Her Honour noted that the applicant bore the onus of establishing, on the balance of probabilities, that there was a causal connection between the transport accident and his colitis.[2]
[2]Reasons, [27].
The judge noted that while, in his first report, Associate Professor Desmond suggested that there was a causal link between the seatbelt pattern injury sustained in the transport accident and the applicant’s colitis, in his supplementary report, Associate Professor Desmond qualified that opinion by stating that he believed that there was a possibility that the trauma of the transport accident might have played a minor role in triggering the colitis.[3] The judge noted that that opinion, as to the possible connection between the accident and the colitis, was based on the timing of the development of symptoms by the applicant.
[3]Ibid [44].
The judge noted the submission, by counsel for the applicant, that the view expressed by Associate Professor Desmond in his supplementary report postulated a higher evidentiary burden than the applicant was required to satisfy, and that, in view of the temporal connection between the motor vehicle accident and the onset of the colitis, it was improbable that the two were not causally related. The judge rejected that submission. Her Honour noted that Associate Professor Desmond acknowledged that multiple factors may potentially be involved in the development of severe colitis, which include infection, stress and genetic factors, and that, in general, no specific cause may be identified.[4] The judge further noted that Dr Jakobovits expressed the causal link as no higher than a possibility that the transport accident played a minor role in triggering the colitis, and that Dr Jakobovits effectively discounted direct trauma to the applicant as a cause of the colitis. Her Honour considered that Dr Jakobovits’ opinion — that the temporal association was difficult to ignore — amounted to no more than an opinion by Dr Jakobovits that it was possible that the accident was causally connected with the colitis.[5]
[4]Ibid [50].
[5]Ibid [55].
In conclusion, the judge noted that the timing of the development of the applicant’s colitis raised the possibility that there was a causal link between the injury sustained in the accident and the colitis. However, in the absence of any additional circumstances, the evidence did not justify an inference of a probable causal relationship.[6]
[6]Ibid [58].

Submissions

The parties effectively argued grounds 1 and 2 together.
In support of ground 1, the applicant commenced by noting that, apart from the temporal connection between the accident and the colitis, no other cause of the colitis was identified to explain the development of the symptoms, which were consistent with the accident triggering the condition. It was submitted that the preponderance of the evidence of the applicant, Dr Jakobovits, and Associate Professor Desmond, established that, on the balance of probabilities, the transport accident was a cause of the development of the colitis.
In particular, counsel noted that the applicant gave undisputed evidence of the seatbelt bruising, resulting from the head-on collision, with the onset of symptoms of colitis occurring within a fortnight after the accident. The applicant had not experienced any of those symptoms before the accident. Counsel noted that Dr Jakobovits considered that that temporal connection was ‘hard to ignore’, and Dr Jakobovits specifically discounted any other potential causative factors, such as the colorectal cancer and the chemotherapy, which the applicant had undergone for that condition. In addition, in his first report, Associate Professor Desmond stated, affirmatively, that the transport accident, and in particular the seatbelt injury sustained in it, did contribute to the development of the colitis. Although, in his second report, Associate Professor Desmond appeared to have drawn back from that opinion, nevertheless, he considered that it was possible that there was a causal connection between the accident and the colitis.
Counsel noted that there was no evidence that the applicant suffered from any symptoms of colitis before the accident. In those circumstances, it was submitted, the close temporal connection between the accident and the first onset of the symptoms, combined with the opinions expressed by Associate Professor Desmond and Dr Jakobovits, was such that it must be concluded, on the balance of probabilities, that the transport accident was a cause of the onset of the colitis. Accordingly, it was submitted that the totality of that evidence was such that the judge erred in concluding that the applicant had not proven, on the balance of probabilities, that the transport accident was a cause of his injuries.
In support of ground 2, counsel submitted that, in view of the foregoing considerations, the judge failed to explain her conclusion, in particular, in view of the opinion expressed by Dr Jakobovits, as to the significance of the temporal association between the transport accident and the development of the colitis.
In response, counsel for the respondent submitted that the medical evidence, upon which the applicant relied on the issue of causation, was limited. It was noted that the medical evidence established that the transport accident was but one of any number of possible causes of the applicant’s bowel condition, which, Associate Professor Desmond noted, could also include infection, stress or genetics. It was submitted that the judge correctly noted that no additional circumstances were relied on to enable her Honour to draw the inference that the causal link between the accident and the colitis was probable. The judge was not required to choose between the different possible causes of the applicant’s bowel condition, as noted by Associate Professor Desmond, and prefer the transport accident, in the absence of any evidence that would have supported such a conclusion. Accordingly, it was submitted, the judge was correct to conclude that the applicant had failed to establish that the motor vehicle accident was a probable cause of his colitis.
In response to ground 2, it was submitted that the reasons for the judgment reveal a clear process of reasoning. The judge dealt appropriately with the evidence and analysed the question of causation. The judgment made it clear that the applicant failed in his application because he did not adduce evidence that was sufficient for the judge to conclude, on the balance of probabilities, that there was a causal connection between the accident and the applicant’s condition.

Ground 1 — legal principles

The central issue is whether the primary judge erred in concluding that the applicant had failed to establish, on the balance of probabilities, that the transport accident was a material cause of the applicant’s bowel condition, colitis. It is common ground that the standard for appellate review in this case is the correctness standard identified in Warren v Coombs.[7]
[7](1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635, 646 [28] (Kiefel CJ, Gageler and Jagot JJ); [2023] HCA 32.
The evidence that was before the primary judge comprised two affidavits of the applicant, and the reports of Associate Professor Desmond and Dr Jakobovits. The applicant was briefly cross-examined on the hearing of the serious injury application, but no issue was raised concerning the credibility or reliability of his evidence. Thus, the question for this court is whether, having reviewed the evidence and the judge’s reasons, it should be concluded that the judge erred in failing to determine that the applicant had established such a causal connection. In considering that question, it must be acknowledged that the submissions that were advanced on behalf of the applicant on this application were significantly more comprehensive than those advanced by different counsel who appeared for the applicant before the primary judge.
As we have noted, the two experts, Associate Professor Desmond and Dr Jakobovits, each expressed their opinions concerning the issue of causation in terms of possibility, that is, that there was a possible connection between the transport accident and the subsequent onset of colitis.
The courts have made it clear that the expression of such an opinion does not, necessarily, preclude an affirmative conclusion on the issue of causation. In particular, in a case in which medical opinion is expressed in terms that there is a possible causal connection between an accident and a medical condition, the court may, in the circumstances of the case, be satisfied, on the balance of probabilities, that such a causal relationship has been established.
In EMI (Australia) Ltd v BES,[8] a worker sustained injury when a ladder fell on his head at work. Twelve days later, he died as a result of a motor vehicle accident, when the vehicle that he was driving swerved off a public highway and struck a telegraph pole. The worker’s widow succeeded on a claim before the Workers Compensation Commission, in which the judge concluded that the accident at work was causally related to the fatal motor vehicle accident. In the days between the work accident and the motor vehicle accident, the worker had suffered persistent headaches, for which he took a number of Bex powders. The medical practitioners who gave evidence expressed differing views as to whether the work accident caused his syncopal attack, which resulted in the motor vehicle accident. One medical practitioner, a neurosurgeon, expressed the conclusion that there was at least a possibility that the sequelae of the work accident was the cause of the syncope, which, in turn, resulted in the worker’s death.
[8][1970] 2 NSWR 238 (‘EMI’).
On appeal, the Court of Appeal upheld the decision of the Workers Compensation Commission. Herron CJ expressed the relevant principles in the following terms:
Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connection. But if the medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a conclusion on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.[9]
[9]Ibid 242; see also 243 (Asprey JA); East Metropolitan Health Service v Ellis [2020] WASCA 147 [250] (Quinlan CJ, Mitchell and Beech JJA).
In Tubemakers of Australia Ltd v Fernandez,[10] the respondent, while operating a bevelling machine at work, was injured when, through a fault in the machine, a heavy steel tube struck him heavily on the back of the hand. As a result, the hand became increasingly painful. Six months later, in August 1971, the condition was diagnosed by a specialist, Dr Sweeney, as Dupuytren’s contracture. The respondent underwent surgery consisting of the removal of fibrous tissue from the palm of his hand. Three years later, in August 1974, the same specialist found that the Dupuytren’s contracture had recurred. He expressed the opinion, on the issue of causation, in terms that the respondent’s initial injury in February 1971 might have played a part in the development of the Dupuytren’s contracture.[11]
[10](1976) 10 ALR 303 (‘Tubemakers of Australia’).
[11]Ibid 309.
The trial judge upheld the respondent’s claim for damages. The Court of Appeal, and the High Court (Stephen J dissenting) successively dismissed the appeal of the employer against that decision.
In the High Court, Mason J (with whom Barwick CJ and Gibbs J agreed), having noted the evidence of the applicant’s surgeon, to the effect that the Dupuytren’s contracture could have been caused by the original accident, stated his conclusion in the following terms:
In my opinion, this evidence left open to the jury to infer that on the balance of probabilities the injury caused or materially contributed to the occurrence of the condition. In drawing such an inference the jury was entitled to have regard, in addition to the matters referred to by Dr Sweeney [the respondent’s surgeon] in his evidence, to other significant circumstances: (a) that before the accident the respondent had suffered no disability in his right hand; (b) that the condition made its appearance shortly after the accident; and (c) that no alternative cause was established or indeed suggested in evidence. The combination of these circumstances, taken together with Dr Sweeney’s evidence, provided in my opinion a sufficient basis from which the jury could draw an inference favourable to the respondent.[12]
[12]Ibid 310; see also Wolverson v Todman [2016] 2 Qd R 106, 129–133 [47]–[55] (Gotterson JA, Holmes JA agreeing at 119 and McMeekin JA agreeing at 140); Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, [139]–[150] (White JA, Macfarlane JA agreeing at [1] and Payne JA agreeing at [2]).
The decisions in Tubemakers of Australia and EMI were considered in some detail by the Full Court of Victoria in Dahl & Anor v Grice.[13]
[13][1981] VR 513.
In that case, the respondent sustained some bruising to her arm and a mild blow to her head when she was a passenger in a motor vehicle accident that occurred in September 1974. In early January 1975, some three and one half months after the accident, she suffered a severe cerebral haemorrhage, which resulted in permanent paralysis of the left side of her body and other disabilities. There was some evidence that, following the motor vehicle accident, and continuing up to the haemorrhage, the respondent had suffered headaches, dizziness and tiredness.
At the trial, five expert witnesses were called to give evidence concerning the issue of causation. Of those witnesses, two were prepared to express the view that there was a possible causal relationship between the motor vehicle accident and the haemorrhage. Neither of those two doctors expressed their views in terms of probability rather than possibility. The medical evidence was unanimous that the respondent suffered the cerebral haemorrhage in January 1975 as a result of rupture of an aneurysm in the head, which caused a subarachnoid haemorrhage. The craniotomy revealed that there was an aneurysm on each of two cerebral arteries. The hypothesis relied on by the respondent was that the injuries, sustained in the motor vehicle accident, caused a minor haemorrhage or bleeding from one of the two aneurysms, which rendered the aneurysm more vulnerable to subsequent rupture, which occurred in January 1975.
Having reviewed the relevant authorities, including Tubemakers of Australia and EMI, Gobbo J (with whom Young CJ and Kaye J agreed), stated:
The review of the authorities leads me to reject the appellants’ argument that in matters of bodily health, even outside common experience, it is incumbent on a plaintiff to prove the causal connection to the requisite degree of probability by evidence from the expert. It is plain that in such matters the courts have recognised that a possible cause may be elevated to a probable cause. …
In the vast majority of personal injury cases the medical expert is not called upon to go any further than to confirm that the injuries are consistent with injuries suffered in a certain class of accident and that the plaintiff’s medical condition and symptoms are consistent with such injuries. Where there is a real contest as to causation, this is not resolved by compelling the witness to express his opinion as to the probability of such causation. The tribunal of fact will gain far more assistance if the expert devotes himself primarily to an exposition of the hypothesis that may support a link between the medical condition and the class of accident or injury in question.[14]
[14]Ibid 522; see also Spence v Gomez [2006]VSCA 48 [78] (Nettle JA); Amaca Pty Ltd v King (2011) 35 VR 280, 301–2 (Nettle, Ashley and Redlich JJA); [2011] VSCA 447.
Gobbo J then noted that the jury had before it a substantial body of evidence that was capable of establishing that the respondent had suffered various symptoms, and, in particular, severe headaches, after the accident that indicated that the aneurysm had leaked at the time of the accident. Based on the evidence of the two medical experts, who supported the possible nexus between the motor vehicle accident and the ultimate injury, his Honour concluded that it was open to the jury to find a relevant causal link between the accident and the minor haemorrhage from the aneurysm, and that there was also a basis to conclude a causal link between the accident and the major haemorrhage in January 1975. Accordingly, the appellants had failed to demonstrate that there was no sufficient material to enable the jury to find a nexus between the accident and the disabling haemorrhage.[15]
[15]Ibid 524.

Ground 1 — analysis and conclusion

In applying those principles, the starting point is that both Associate Professor Desmond and Dr Jakobovits, as consultant gastroenterologists, expressed the opinion that there was a possible causal connection between the motor vehicle accident, in which the applicant was involved, and the subsequent development by him of severe colitis.
Each expert, in his report, referred to other possible causes of the colitis. In his second report, Associate Professor Desmond stated that there might be multiple possible factors involved in the development of severe colitis, that include infections, stress, and genetic causes. We interpolate that there is no evidence that any of those factors played any role in the development of the condition in the applicant’s case. Associate Professor Desmond also noted that, in general, no specific cause may be found to have actuated the condition.
Dr Jakobovits considered, but excluded, other possible causes, including the indomethacine medication, which the applicant had been taking to treat his gout. Dr Jakobovits considered that, as the applicant had taken that medication on numerous previous occasions, it was extremely unlikely to have resulted in the development of the colitis.
Further, it is noteworthy that each of the two experts did postulate a physiological explanation for the possible connection between the motor vehicle accident and the development by the applicant of colitis.
In his second report, Associate Professor Desmond considered that it was possible that the applicant had developed some ischaemic damage due to the trauma of the accident, which was not evident on the original CT scan, and which was a factor in the development of the colitis.
Dr Jakobovits, on the other hand, considered that it was possible that the applicant had a pre-existing quiescent form of inflammatory bowel disease (ulcerative colitis or Crohn’s disease), which was exacerbated, or brought to light, by the stress of the accident. In that respect, Dr Jakobovits noted that while those causes were theoretically possible, the pathology of the resected specimen was not diagnostic of an inflammatory bowel disease.
It is in that context that the conclusions, expressed by each practitioner, are of significance in the determination of the critical issue, whether the applicant had established, on the balance of probabilities, that the transport accident was a material cause of the colitis.
In his initial opinion, Associate Professor Desmond expressed the opinion that the accident ‘did contribute to the development of his colitis’. That is, Associate Professor Desmond considered that the temporal connection between the transport accident and the development of the colitis was not coincidental, but was causal.
Associate Professor Desmond did, to some extent, retract from that opinion in his second report, although he concluded by stating that there might be a possibility that the trauma of the accident played a minor role in triggering the colitis. He added that there was ‘no definite evidence to prove this’. We interpolate that that consideration, no doubt, is significant to a medical practitioner undertaking a diagnosis in a particular case. However, it is not reflective of the standard of proof that is required in a civil proceeding. The absence of definite evidence to establish a causal connection does not necessarily preclude a conclusion, on the balance of probabilities, that that connection is made out. As Gobbo J observed in Dahl v Grice, an expert, when asked to provide an opinion as to causation, might do so in terms of scientific proof that is materially more exacting than the degree of satisfaction necessary in a legal proceeding.[16]
[16][1981] VR 513, 522.
We have noted that, like Associate Professor Desmond, Dr Jakobovits did place important weight on the temporal connection between the transport accident and the development of the colitis. Dr Jakobovits found that association between the transport accident and the colitis ‘hard to ignore’, considering that it was ‘hard not to think’ that the transport accident, in some way, triggered the development of the colitis.
In substance then, each of the two experts, based on their expertise and experience, plainly placed some weight on the temporal relationship between the transport accident and the development, by the applicant, of colitis. Neither expert was able to postulate any other independent cause of the colitis. Each of them was able to posit possible physiological mechanisms by which the transport accident could have resulted in the development of the colitis.
In addition to the medical evidence, the evidence of the applicant was that he was in good health prior to the accident; that the accident involved serious ‘head on impact’ and affected his abdomen area; and that the relevant symptoms of his condition first appeared two weeks after the accident. When that evidence is considered with the medical evidence, and, in particular, the apparent weight attributed by both gastroenterologists to the temporal relationship between the transport accident and the colitis, we are driven to the conclusion, based on a review of the evidence, on the balance of probabilities, that the transport accident was a cause of the colitis suffered by the applicant.
It follows that, as we are required, on appeal, to ‘give the judgment which in [our] opinion ought to have been given in the first instance’ (the judge having enjoyed no advantage in the hearing and determination of this matter that we have not enjoyed), the application for leave to appeal must be granted, and the appeal allowed on ground 1.[17]
[17]Fox v Percy (2003) 214 CLR 118, 125–126 [23] (Gleeson CJ, Gummow and Kirby JJ); [2003] HCA 22.
Before leaving ground 1, we would make the following additional observations about the requirement to establish causation in serious injury applications.
As was said by Gummow and Hayne JJ in Travel Compensation Fund v Tambree,[18] ‘[i]t is now clear that there are cases in which the answer to a question of causation will differ according to the purpose for which the question is asked’. The purpose for which the question is asked in a serious injury application is to determine whether an injured plaintiff should be granted leave to commence a common law proceeding for damages.
[18](2005) 224 CLR 627, 642–3 [45]; [2005] HCA 69.
As has been said before, a serious injury application is a ‘gateway’ proceeding, usually conducted with no oral evidence other than that of the plaintiff. The result of the application does not give rise to any liability to pay damages. Nor does it create any relevant issue estoppel.[19] This Court has previously held that a plaintiff in a serious injury application must prove causation. However, the question, whether the evidence tendered in such a gateway application is sufficient for that purpose, needs to be considered in light of the limited purpose for which the question is being asked, and in light of the more limited scope of the evidence adduced on that issue than that which might be adduced in a full trial.
[19]Maurice Blackburn Cashman v Brown (2011) 242 CLR 647, 662 [39]-[41] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2011] HCA 22.

Ground 2

In view of the conclusion that we have reached in respect of ground 1, it is not necessary for us to determine ground 2.
Nevertheless, in deference to the careful reasons compiled by the primary judge, it is appropriate that we do address the ground, albeit in brief terms.
In essence, on behalf of the applicant, it was submitted that the judge’s reasons failed to explain ‘the rejection of the applicant’s reliance at trial upon the strong emphasis given by Dr Jakobovits to the temporal association’.
Contrary to that proposition, we consider that the judge did give a proper explanation why her Honour did not consider that the temporal association, between the transport accident and the colitis, was sufficient to establish the requisite causal nexus. Without rehearsing, again, her Honour’s reasons, the judge set out, accurately and appropriately, a summary of the evidence of Associate Professor Desmond and Dr Jakobovits, and concluded that because no additional circumstances had been put forward on behalf of the applicant, it could not be inferred that there was a probable causal relationship between the transport accident and the colitis.
For the reasons that we have set out, we have reached a different conclusion. However, it is quite plain that the judge’s path of reasoning was well expressed and clear. It complies appropriately with the requirements for the provision of adequate reasons for judgment.[20] For those reasons, we would not uphold ground 2.
[20]Cf Hunter v Transport Accident Commission & Anor (2005) 43 MVR 130, 136–7 [21] (Nettle JA); [2005] VSCA 1.

Summary of conclusions

For the foregoing reasons, we have, however, concluded that the application for leave to appeal must be granted, and the appeal allowed, on ground 1.

Accordingly, subject to hearing from counsel, we would make the following orders:
(1)The application for leave to appeal the decision of the County Court of Victoria dated 30 October 2024 is granted, and the appeal is allowed.
(2)The order of the County Court dated 12 November 2024 is set aside.
(3)In lieu of that order, the appellant be granted leave pursuant to s 93(4)(d) of the Transport Accident Act 1986, to bring proceedings for the recovery of damages in respect of injuries sustained by him in the transport accident on 23 November 2020 on Toorongo Road, Loch Valley.
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[2025] VSCA 126

5 June 2025