Grace v Elmasri
[2009] VSCA 111
•22 May 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3746 of 2007
| JASON GRACE | Appellant |
| v | |
| MOUNIR ELMASRI | First Respondent |
| and | |
| TRANSPORT ACCIDENT COMMISSION | Second Respondent |
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JUDGES: | Warren CJ, Neave JA and Hargrave AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 October 2008 | |
DATE OF JUDGMENT: | 22 May 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 111 | |
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ACCIDENT COMPENSATION — Serious injury application — Transport accident — Application dismissed by County Court – Appellant injured in two traffic accidents – Whether injuries sustained in second accident gave rise to a physical or psychological injury that was a ‘serious injury’ within the meaning of s 93(17) of the Transport Accident Act1986 – Whether trial judge gave adequate weight to medical and other evidence – Trial judge’s finding that the appellant was not a credible witness – Whether finding was sufficient to undermine medical and other evidence based on histories provided by appellant to treating professionals – Appeal allowed and leave granted to commence common law proceeding.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A Ingram with Ms F Ryan | Holding Redlich |
| For the Respondents | Mr J Ruskin QC with Mr J Gorton | TAC Law |
WARREN CJ
NEAVE JA
HARGRAVE AJA:
The appellant, Jason Grace, was injured in a motorcycle accident (‘the second accident’) on or about 11 June 1997. The accident occurred when a vehicle driven by the first respondent, Mounir Elmasri, made a right hand turn across the path of Mr Grace’s motorcycle and he and his girlfriend, who was riding pillion, were thrown off the vehicle. Mr Grace had previously been injured in a motor cycle accident on 7 November 1995 ( ‘the first accident’).
Mr Grace claimed that as a result of the second accident, he had aggravated an injury to his left shoulder caused by the first accident, and had injured his lumbar spine. He also claimed he had developed a psychiatric condition as a result of the second accident. He sought leave to bring proceedings to recover common law damages,[1] on the basis that his injuries came within the definition of ‘serious injury’ in s 93(17) of the Transport Accident Act1986 (‘the Act’), and that the pain and suffering consequences and/or economic consequences of the injuries were, at least, very considerable.
[1]See Transport Accident Act 1986 s 93(4)(1)(d).
A County Court judge dismissed Mr Grace’s application for leave to bring proceedings for common law damages. Mr Grace now appeals from that decision.
I THE PROCEEDING BELOW
To obtain leave to commence common law proceedings, Mr Grace had to prove that one or more of the alleged injuries suffered in the second accident was a ‘serious injury’. Under s 93(17) of the Act, a serious injury is defined as:
(a) serious long-term impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) severe long-term mental or severe long term behavioural disturbance or disorder…
The learned judge found that Mr Grace was not a credible witness and had not given accurate histories to the doctors who gave evidence on his behalf. His Honour said that his adverse view of Mr Grace’s credibility was based on the following matters.
·After Mr Grace was injured in the first accident, he told staff at the Royal Melbourne Hospital that he had been injured by slipping on a wet floor. His Honour said he had done so to avoid prosecution for driving offences and possible loss of his licence. He had changed his story when he wanted to make a Transport Accident Commission (‘TAC’, the second respondent) claim for the first accident.
·Mr Grace did not tell his doctors that he had used marijuana extensively before the second accident, and this only emerged in cross-examination. Nor did he tell them he had had treatment for back pain before the second accident. To a lesser extent, he had also failed to disclose pre-existing psychological problems. He had denied any problems with his knee before the second accident but, in fact, had a chronic knee effusion arising out of the first accident.
·Video surveillance showed Mr Grace squatting, without difficulty, to put air in the tyres of a car and lifting the bonnet of the car with his left hand. His Honour accepted that Mr Grace was the subject of extensive surveillance over a long period of time, but did not consider that he would have been able to undertake the actions shown in the film if he had been suffering from the alleged injuries. His Honour was satisfied that these actions were inconsistent with the symptoms he had described.
·Mr Grace had fallen out with a number of his treating practitioners, including Dr Bolzonello, Dr Ots and Dr Crossley (a physiotherapist) and other practitioners at the Olympic Park Sports Medicine Clinic. His Honour said that Mr Grace had refused treatment and had taken the view that none of the practitioners could assist him. The judge was not satisfied that he had done so as a result of his psychological condition.
His Honour also observed that in his evidence and cross-examination Mr Grace had refused to answer questions, prevaricated and was evasive in answering matters that were put to him, and he was not satisfied that this was a result of any psychological injury. His Honour said that:
As a consequence, I have very severe reservations about the credibility of the plaintiff. I do not accept that he gave accurate histories to the doctors. I do not accept his complaints of pain and restriction as a result of his physical injuries and the psychological consequences. I do not accept that his sailing career was as successful as he states. In fact, his description of the Sydney-Hobart Yacht Race given in his affidavit is different from the detail provided in the letter from the Cruising Yacht Club of Australia … I am further not satisfied that the plaintiff has suffered the breakdown of a personal relationship as a result of his injuries, nor that his various activities, including motorbike riding, scuba diving and various domestic duties, have been so affected.[2]
[2]Grace v Elmasri & Anor [2007] VCC 1094 (‘Reasons’), [72].
The judge found that Mr Grace had not proven, on the balance of probabilities, that neither the left shoulder injury nor the lumbar spine injury satisfied the test set out in s 93(17) of the Act. Nor was the judge satisfied that he had suffered a severe long term mental disorder as a result of the second accident. We make further reference to his Honour’s reasons below.
II GROUNDS OF APPEAL
Mr Grace’s grounds of appeal did not challenge the judge’s finding that he had not suffered a serious injury to his shoulder in the second accident. Grounds of appeal 1 to 7 related to his Honour’s finding that Mr Grace’s lumbar spine condition was not a serious injury. They were as follows:
1The reasons of the learned trial Judge were inadequate in that they failed to adequately or at all deal with the principal submission advanced on behalf of the Appellant, or alternatively to express any reasoned conclusion in response to such submission, namely that the severity of the Appellant’s soft tissue abdominal injury masked the symptoms and disability resulting from the lumbar spine injury.
2The reasons of the learned trial Judge in assessing any delay in the Appellant’s reporting of lumbar spine injury were inadequate in that they ignored or failed to give any or adequate weight to the fact that such injury had been reported in a TAC claim form dated 31st July 1997.
3In rejecting the Appellant’s submission that his lumbar spine injury constituted a serious long-term impairment or loss of a body function within the meaning of paragraph (a) of the definition of ‘serious injury’ contained in s 93(17) of the Act, the learned trial Judge either misunderstood the evidence or failed to correctly apply the evidence or made a finding which was contrary to the evidence or the weight of the evidence.
4The learned trial Judge misstated or alternatively misinterpreted the evidence of Mr Dooley particularly as regards-
(a)any delay on the part of the Appellant in reporting his lumbar spine injury;
(b)the relationship of the Appellant’s lumbar spine condition to the subject accident.
5In finding that by reason of his chiropractic qualifications the evidence of Dr Waterhouse would not be preferred to the opinions of orthopaedic surgeons the learned trial Judge failed to afford procedural fairness or natural justice to the Appellant.
6The learned trial Judge erred in his determination of the weight to be attached to the evidence of the Appellant’s treating chiropractor, Dr Waterhouse, in circumstances where:
(a)that practitioner was called to give evidence and there was no cross-examination as to his qualifications (or lack thereof) to express the opinions given by him in evidence;
(b)no submission was made on behalf of the [Respondents] that the qualifications (or lack thereof) of the witness impacted upon his capacity to express opinions given by him in evidence;
(c)the practitioner had treated the Appellant’s lumbar spine extensively and assessed the comparative condition of the lumbar spine at 1-2 over 10 pre-accident as against 6-7 over 10 post accident;
(d)that practitioner gave evidence of factual matters, particularly of increased attendances mainly for lumbar spine treatment post accident (the evidence being of 13 attendances prior to 11th June 1997 and approximately 130 attendances thereafter).
7The learned trial Judge misstated or alternatively misinterpreted the evidence as to treatment administered to the Appellant’s lumbar spine in referring to the treatment provided by general practitioners, whereas Dr Waterhouse treated the Appellant on 13 occasions prior to the subject accident and/or approximately 130 occasions subsequent thereto mainly for lumbar spine treatment.
Grounds of appeal 8 to 11 relate to his Honour’s finding that Mr Grace did not suffer a severe long term behavioural disturbance or disorder as a result of the second accident. They were as follows
8The finding by the learned trial Judge that the Appellant had not suffered a severe long-term mental or severe long-term behavioural disturbance or disorder within the meaning of paragraph (c) of the definition of ‘serious injury’ contained within s 93(17) of the Act whether assessed as-
(a)Pain Disorder;
(b)Major Depressive Disorder;
(c)Post Traumatic Stress Disorder;
(d)Adjustment Disorder with mixed anxiety and depressed mood manifested in terms of high levels of irritability and rage;
(e)Probable Substance Abuse Disorder;
either misunderstood the evidence or failed to correctly apply the evidence or make a finding which was contrary to the evidence or the weight of the evidence.
9The learned trial Judge erred in his findings with respect to the credit of the Appellant in that:
(a)there was a failure to assess adequately or at all the impact of the Appellant’s diagnosed psychiatric condition upon his person and in particular upon the manner in which he gave evidence;
(b)the evidence said to support such finding was in part misstated and/or misinterpreted.
10In disregarding the opinions of all psychiatrists who provided reports as to any psychiatric condition from which the Appellant was suffering, the learned trial Judge failed to have any or adequate regard to opinions formed on the basis of the Appellant’s presentation to such psychiatrists and/or the clinical examinations performed and/or those aspects of the history provided which were not subject to any adverse credit findings.
11The reasons for decision of the learned trial Judge failed to disclose a path of reasoning sufficient to support a finding that the Appellant had failed to demonstrate that he had suffered a severe long-term mental or severe long-term behavioural disturbance or disorder within the meaning of paragraph (c) of the definition of ‘serious injury’ contained in s 93(17) of the Act.
We deal first with the grounds of appeal relating to his Honour’s finding that Mr Grace did not suffer a serious injury to his lumbar spine. We then turn to the grounds relating to the judge’s finding that Mr Grace did not have a severe long-term mental or severe long-term behavioural disturbance or disorder.
A The lumbar spine injury: grounds of appeal 1 to 7
1 Mr Grace’s evidence
Mr Grace claims that he has a serious lumbar spine injury as a result of the second accident. In his affidavit of 5 November 2004, he referred to the first accident and said that the major injury suffered in that accident was to his left shoulder. He said he had recovered from that injury as a result of the surgery on the shoulder performed by Mr Simon Bell, an orthopaedic surgeon, and had been able to resume his sport of ocean yacht racing. He said that after the second accident he consulted a chiropractor, Mr John Waterhouse, for the injuries suffered in that accident. He did not mention having previously suffered back pain or being treated by Mr Waterhouse for that pain in his first, second or third affidavit.
In cross-examination, Mr Grace said that he consulted Mr Waterhouse for ‘muscle soreness from racing’ in 1992. He was asked by his Honour if this was ‘to do with his back’ and he said he did not remember where the pain was. It was put to Mr Grace that he had seen Mr Waterhouse a couple of times in 1995 after the first accident. He said that he ‘believed in the documentation’, but was uncertain about the actual injuries for which he had then seen the chiropractor. Counsel for the respondents put it to Mr Grace that he had been treated by Mr Waterhouse up until the second accident. Mr Grace said he did not know how often he had seen Mr Waterhouse, and did not recall what part of his back was treated by him in 1995. Mr Grace said that he did not recall whether he had injured his neck, back and thoracic spine in the first accident and said that his left shoulder was the main problem. In these passages of cross-examination, Mr Grace is either evasive or has an exceedingly poor memory about the state of his lower back before the second accident. Mr Grace conceded in cross-examination that he had told Mr Geoffrey Klug, a neurosurgeon to whom we will refer further below, that he had no problems with his back before the second accident.
It was put to Mr Grace that his back problem affected his ability to stand and sit and he agreed. He demonstrated that he could bend with his hands about knee level with his knees straight. He said that he could not sit in one spot for too long and that the back injury also affected his ability to lie flat and to breathe. He was asked if he could squat and he said ‘Yes, but it depends on how much it’s going to hurt me’. He was then shown an extract from a video showing him squatting and checking the tyre pressure of a car in a service station, squatting behind a car and lifting the bonnet of a car. He said that the squatting and bending caused him pain but ‘you just get on with the job; you do it. You just push’.
Mr Grace said that after the second accident his whole body had ached but his main concern was his stomach. Counsel asked him whether he had complained of pain in his lower back on the day of the accident and he responded that ‘I was complaining of stomach problems because I just could not breathe’ and had been ‘massively winded’.
A TAC claim which Mr Grace completed on 31 July 1997 referred to injury to his left shoulder, left wrist, left lower stomach, back left hand side and the base of his neck.
2 Evidence of treating practitioners
Mr Grace was treated at St Vincent’s Hospital on 11 June 1997. According to St Vincent’s Hospital records, he had presented with lower abdominal pain after ‘his motorbike was involved in an impact at the front and he apparently hit his abdomen against the petrol tank of his bike’. It was reported that:
[h]is abdomen was soft but had lower abdominal tenderness. The bowel sounds of his abdomen were normal.
…
The clinical impression was that there was abdominal pain secondary to blunt trauma to his abdomen. The likely clinical diagnosis was musculo- skeletal injury.
Dr Kay Crossley, a physiotherapist at the Melbourne Sports and Aquatic Centre, first saw Mr Grace on 14 March 1996, on a referral from Mr Simon Bell, who had operated on his shoulder following the first accident. He had returned for treatment in 1997 after an increase in his shoulder pain. She had had some input into his management at the Olympic Park Sports Medicine Centre, where he was treated in 1997 and 1998 after the second accident. The treatment was said to be ‘for shoulder pain and thoracic discomfort’. Dr Crossley did not refer to Mr Grace being treated for lumbar pain.
Mr Grace was a patient at the Gladstone Park Medical Centre from 1995. Dr Richard Siemienowicz, a general practitioner at the clinic, wrote to Mr Grace’s employer in July 2001 (at the request of Mr Grace). In that letter he said he had seen Mr Grace on at least 12 occasions since 9 April 1998. At the time of the letter Mr Grace was said to be suffering from pain in the back, abdomen and sometimes left shoulder.
In a 13 November 1999 report to Mr Grace’s solicitors, Dr Siemienowicz said he had first seen Mr Grace on 1 February 1999,[3] when he gave a history of multiple difficulties since the second accident, including problems with bowels, pain on breathing, lower back ache, left shoulder pains and pains in the stomach. Dr Siemienowicz said that the examination at that time ‘showed no abnormality in the left shoulder or abdomen’ and that ‘he [believed] that the whole issue was also clouded by the usage of marijuana and alcohol’. There is little emphasis on the back problem in either of Dr Siemienowicz’s medical reports, although he did record that Mr Grace had said he was troubled by pain in his back. On 4 October 2000, Dr Siemienowicz referred Mr Grace to the Barbara Walker Pain Clinic at St Vincent’s Hospital. In that letter he referred to Mr Grace having pain in his back.
[3]At the trial he said he had previously had a few brief consultations with Mr Grace and first saw him on 20 March 1997.
Dr Siemienowicz gave oral evidence at the trial and was questioned about clinical notes recording Mr Grace’s consultations with a number of doctors at the Gladstone Park Medical Centre. The notes showed that Mr Grace had complained about a sore lower back on 31 March 1995 and on 12 October 1995. He complained about abdominal pain on 19 December 1996 and on 17 June 1997, after the second accident. In cross-examination, Dr Siemienowicz agreed that although reference was made to Mr Grace’s back pain in the clinical notes, this was not a dominant feature of his complaints.
Dr Jane Trinca, a pain specialist at the Barbara Walker Pain Management Clinic, saw Mr Grace at the request of Dr Siemienowicz on 17 November 2000. She recorded a history of Mr Grace being troubled by lower back pain going down the buttock. She said that he was now working about 80 per cent of his roster at work. She recommended that he have an MRI to rule out a disc problem.
Dr David Bolzonello, a practitioner at the John Fawkner Sports Medicine Centre, first saw the Mr Grace in July 1998 and treated him until October 2000. Initially Mr Grace complained of shoulder pain and later of abdominal and back pain. Dr Bolzonello wrote to the Claims Officer at the TAC on 6 September 1999 in support of Mr Grace’s claim that the TAC should pay for chiropractic treatment for his back, which he said was caused by the second accident. In that letter, Dr Bolzonello said that he suspected that Mr Grace’s abdominal and back pain were related, although he also commented that the abdominal pain ‘seemed to [be] due to severe irritable bowel syndrome compounded by stress’.
On 7 December 1999, Dr Bolzonello wrote to Mr Grace’s lawyers stating that he had not referred him for an independent orthopaedic assessment for his ongoing spinal problem because
(a)He has no lesion that requires surgery.
(b)He has been able to continue his work.
(c)To date [Dr Bolzonello had] not thought that an independent orthopaedic assessment would add anything different to his clinical management.
In a letter to Mr Grace’s solicitors dated 2 June 2003, Dr Bolzonello expressed the view that his complaints were out of proportion to the objective findings and suggested ‘a high degree of psychological distress/disturbance’. We refer below to the report of Dr Ots, a psychiatrist to whom Dr Bolzonello referred Mr Grace for treatment.
Mr Waterhouse, a chiropractor who treated Mr Grace before and after the second accident, reported to Mr Grace’s solicitors on 12 December 2000 that the second accident ‘aggravated and altered some pre-existing but minor low back problems’. He noted that Mr Grace had attended the clinic in 1992 for mild lumbar spine strain and twice in 1995 for a similar minor problem. He expressed the opinion that pre-existing factors had had a minor influence on the outcome of the second accident. In a more detailed undated report, he said that the second accident ‘aggravated the left shoulder injury and added further complications of a left sacroiliac and lumbar spine sprain coupled with abdominal complaints’. He said that he had advised Mr Grace to use a lumbar support when he was working.
In his evidence-in-chief, Mr Waterhouse said that he had first seen Mr Grace for ‘a kink in his back’ caused by sleeping awkwardly and saw him again three years later when he had only a minor back problem caused by yachting. He saw Mr Grace after the first accident when he mainly treated his neck, upper thoracic region and shoulder. He had no lumbar problems at that time. Having consulted his records, Mr Waterhouse said that Mr Grace’s main problem after the second accident was in his lumbar region, and that he had no doubt about the connection between the second accident and the pain experienced by Mr Grace in his lower back.
In cross-examination, Mr Waterhouse said that after the first accident Mr Grace had complained of minor problems in the lumbar spine, though his neck and shoulder problems were more serious. He had also treated Mr Grace for spinal complaints including low back pain in 1996. In February 1997 (that is, before the second accident), Mr Waterhouse recorded that Mr Grace had said that ‘his low back was killing him’ and that he planned to give up sailing for a year. Nevertheless Mr Waterhouse reiterated his view that Mr Grace’s previous low back problems and that his current complaints were caused by the second accident.
In answer to a question from his Honour as to whether Mr Grace’s predominant problem in February 1997 was his low back, Mr Waterhouse said that was correct, and also conceded that this was the case in April 1997. Both these responses relate to the period before the second accident. However in re-examination Mr Waterhouse said that on a scale of one to ten the severity of Mr Grace’s back condition would have been at one to two before the second accident and at six to seven afterwards.
Mr Corey Donnellan, a physiotherapist, first treated Mr Grace on 30 May 2002. At that time Mr Grace complained of consistent pain in his low back and ‘significant spinal pain with lifting, bending, prolonged sitting and prolonged walking’. Mr Donnellan observed that Mr Grace’s thoracic spine range of movement was fair to good, but that some discomfort was experienced at the ‘end of available range of flexion and extension’. On palpation he had significant tenderness to T2-T9 and some stiffness to T2/3, T3/4 and T4/5. Mr Donnellan thought that Mr Grace was suffering from a complex chronic pain syndrome, with chronic spinal and peripheral musculo-skeletal pain with associated deconditioning’. He felt that ‘lumbar facet joint dysfunction [was] contributing significantly to [Mr Grace’s] back pain’.
Mr Grace attended the Shenton Medical Practice from July 2004 to October 2005. Clinical notes indicated that he obtained medical certificates and prescriptions for analgesics. Clinical records were also provided by Dr Karam Jirjis of the Deakin Medical Centre in Mildura, where Mr Grace obtained prescriptions to treat abdominal problems and analgesics.
3 Medico-legal evidence
Dr Leslie Koadlow, a rheumatologist, provided a medico-legal report to Mr Grace’s solicitors dated 9 July 1999. He recorded a history in which Mr Grace said he suffered injuries in the second accident causing ‘pain in his left wrist, left shoulder and later pain in the lumbar region of his back’ and attended a chiropractor every week or week and a half weekly because of pain in the neck and the hip regions and discomfort in the bowel, following the second accident. Dr Koadlow said that he ‘noted no abnormality in the thoraco-lumbar spine’.
Mr Hugh Weaver, an orthopaedic surgeon, first interviewed and examined Mr Grace on 26 May 2003, and provided three other reports to his solicitors. In his first report he considered that Mr Grace was suffering from substantial psychological problems and that it would be appropriate to assess his thoraco- lumbar spine if such an assessment had not been previously performed. He said that if any degenerative lumbar disc pathology was found to be present, Mr Grace could argue this was due to the effects of his two accidents and that a case could be made that the second accident was more significant.
On 25 May 2004 Mr Weaver provided a second report in which he said that an MRI scan confirmed that
he exhibits evidence of genuine loss of signal affecting the L4-5 and L5-S1 levels within the lumbar region. The appearances are consistent with a significant degree of lumbar disc pathology, although the comment has to be made that there is no evidence of any associated involvement of the spinal theca or nerve roots.
Having regard to the history given by Mr Grace, Mr Weaver said that ‘although it is not possible to be too dogmatic, I suspect that his back symptoms relate rather more substantially to the effects of the second accident’. He said that Mr Grace appeared to have accommodated himself in a poor manner to his ‘mild to moderate impairment of low back function’. Mr Weaver said that,
[t]he presence of this lumbar disc pathology means that, assessed using the 2nd Edition of the AMA Guidelines, a good [sic] can be made for arguing that he should be awarded at least a 5% whole body impairment, referable to the presence of at least one non operated lumbar disc lesion (and I will hasten to indicate at this point that, in the absence of a specific investigation such as lumbar discography, it is uncertain as to whether any allowance should be made for a second 5% impairment figure with regard to this matter). This 5% figure, combined with the 4% loss of whole body function which he demonstrated at the time that I saw him, referable to his loss of back movements, clearly suggests a 9% whole body impairment referable to the low back region in isolation.
In a later report of 13 April 2005, Mr Weaver was surprised and pleased that Mr Grace had made a good attempt to resume employment. He considered that he had a moderate persisting problem with his back and that ‘a case might be made for arguing a 5% whole body impairment referable to each of his affected lumbar disc levels, that is amounting to a total impairment figure of 10% whole body impairment’. He said that on the most recent examination Mr Grace exhibited no loss of back movements as such, nor was there any impairment of lower limb neurological function.
In the report of 27 June 2007 Mr Weaver said that Mr Grace presented with ‘fairly convincing evidence of an ongoing lumbar inter vertebral disc problem, something which he can relate to the effects of his previous motor cycle accident or accidents’.
Mr Klug, a neurosurgeon, reported to Mr Grace’s solicitors on 20 May 2005, 10 May 2007, 21 August 2007 and 23 August 2007. In the report of 20 May 2005 he said that ‘[as] regards the thoraco–lumbar spine there appeared to be a mild restriction of forward flexion which he attributed to pain felt in the thoraco-lumbar region. Tenderness was not a feature over any region of the spine’.
Mr Klug said he did not find any objective evidence regarding the low back. He could not detect any evidence of neurological involvement or evidence to suggest Mr Grace was suffering from a radiculopathy.
Mr Klug said that the MRI scan performed in May 2004 showed ‘changes of some substance’. Mr Klug noted that Mr Grace had denied any trouble with his lower back preceding the second accident, and considered that it was likely that the injury occurring as the result of that event was playing some role in regard to his current symptoms.
Mr Klugg’s July 2007 report stated that there was no evidence of neurological abnormality, but an MRI scan conducted on 17 November 2005 showed ‘mild annular disc bulges with associated annular tears at L4/5 and L5/S1 which [were] said to be stable. There was evidence of L4/5 and L5/S1 disc desiccation but no significant canal stenosis or nerve root impingement.’ He expressed the view that Mr Grace had an entrenched chronic pain syndrome involving various regions of his body.
In his letter of 21 August 2007, responding to queries from Mr Grace’s solicitors, Mr Klug confirmed his earlier opinion and noted that Mr D’Urso had made similar physical findings. He said he respected Mr D’Urso’s opinion that a surgical option involving a two level lumbar decompression and dynamic stabilisation procedure at L4/5 and L5/S1 might be helpful. However he said he was not convinced that the surgical decompression, based on the MRI scan findings, would be a necessary component of the surgical procedure.
In another opinion expressed on the same day, in response to a query about the relationship between Mr Grace’s back condition and the second accident, Mr Klug said it was ‘most likely that [the injuries involving Mr Grace’s left shoulder and abdomen in the second accident] were the dominant issues … and tended to … mask the significance of the back disorder’. He said there was no reason to consider that the delay in mentioning the back disorder and seeking chiropractic treatment ‘would suggest that the back disorder was not in any way related to the road traffic accident’.
On 23 August 2007, after seeing a report from Mr Waterhouse stating that he had treated Mr Grace for a mild mid-lumbar spine strain before the second accident, Mr Klug again reported to Mr Grace’s solicitors. He noted that he had not obtained a history from Mr Grace of any significant back disorder before the second accident, and that he would accept Mr Waterhouse’s opinion that it was relatively mild. Mr Klug said this suggested that that the second accident aggravated Mr Grace’s minor back disorder, ‘with the aggravation being substantial and leading to a marked worsening of his low back symptoms’.
Dr Richard Bittar, a neurosurgeon, reported to Mr Grace’s solicitors on 17 November 2005 and 4 July 2006. Dr Bittar reviewed an MRI scan, and said that Mr Grace had disc changes at two levels of his back, but no evidence of neural compression and there was no role for spinal surgery. He recommended ongoing physiotherapy treatment.
Mr Paul D’Urso, also a neurosurgeon, saw Mr Grace on 2 February 2000 and reviewed him on 13 February 2007. He recorded the history given to him by Mr Grace that his lumbar spine condition had deteriorated after the motor vehicle accident. In his April 2007 report, Mr D’Urso said that ‘[i]maging has revealed two level disc degeneration, disc prolapse and annular tearing’. He said that it was possible that the second accident had contributed to these findings, but that he believed that a pre-existing disc degeneration was present prior to that accident. He said it was difficult to judge the extent to which the second accident aggravated and worsened the pre-existing condition.
Mr Michael Dooley, an orthopaedic surgeon, reported to the TAC on 16 February 2005, 18 January 2007, 1 August 2007 and 9 August 2007. In his first report, he said that he believed that Mr Grace sustained a soft tissue injury to the lumbar region in the second accident. He noted a small annular disc bulge which was consistent with disc degeneration. He said that the ‘MRI scan findings reflect age related and naturally occurring degenerative change and they do not reflect traumatic injury’, but that Mr Grace’s perception of pain was being magnified by his psychological condition. He said that Mr Grace was likely to have intermittent lumbar spine pain but that if he continued a gentle exercise and fitness programme his symptoms would not deteriorate, though he would have difficulty performing regular heavy lifting. There was no indication for operative intervention.
In his letter of 18 January 2007, Mr Dooley repeated the view that Mr Grace had developed a chronic pain syndrome and that his clinical situation was complicated by ‘anger, bitterness and resentfulness’.
Mr Dooley’s report of 1 August 2007 stated that
‘[c]linically Mr Grace has a good range of spinal motion and no evidence of objective neurological deficit affecting the lower limbs’. MRI scanning shows evidence of naturally occurring degenerative disc disease of the lumbar spine. There is no evidence of spinal canal stenosis or of nerve root impingement. As previously outlined I believe that Mr Grace suffers from a chronic pain syndrome and that his psychological reaction to injury and/or pain is magnifying his perception of pain’.
On 9 August 2007, Mr Dooley reported that surgery was unlikely to predictably improve Mr Grace’s symptoms.
Mr Dooley gave evidence at the trial that Mr Grace had age-related degenerative changes to his back. He said that if Mr Grace had first experienced symptoms after the second accident, that could indicate it had aggravated the back condition. When asked whether the abdominal pain after the accident could have masked the back symptoms, he said that
Witness:… in my clinical experience, patients generally are going to note symptoms from very soon after. Sometimes you will see a period of a week and perhaps up to two or even three but I don’t think I’ve seen beyond three weeks. I’ve certainly seen cases where people have accidents and they won’t note much back pain but then about a week later they will say their back is a bit sore and then a few days later they have a rip-roaring sciatica with a major disc prolapse, so you can certainly see – perhaps 10 to 14 days up to three weeks would be the time period I’ve experienced.
Counsel:The plaintiff gives evidence by way of his affidavit that after the hospital attendance he attended next a sports clinic on the 16th. That’s five days later?
Witness:Yes.
Counsel:At that time he’s got abdominal pain and now pain in the left wrist as well as right ear pain but no complaint of back pain. What does that say on this issue about the connection between back, in the face of pre-existing degenerative changes, and the connectability to the accident?
Witness:I think at that stage, five days to a week after, you’d be expecting in more cases than not for the patient to be symptomatic and aware of back, buttock pain et cetera, but as I’ve said, you know, I would say up to about two, two and a half weeks in my experience and again knowledge of the literature, so there might still be another week or so where you would allow for that pain to come on, although it’s getting less likely to be connected the more the time goes on.
Counsel:Doing the best I can, the next attendance upon any medical practitioner or physical therapist is the chiropractor, 20 August 1997. So we’ve got hospital, 11 June, sports clinic, 16 June, next attendance 20 August. At this stage it’s the plaintiff’s say-so that he complained of lower back pain, abdomen, knees, neck, left shoulder regions, and he got those injuries treated, yet the chiropractic note is ‘spinal adjustment’ as it was pre the accident. If that’s the first complaint of back, what do you say about it and its connectability to the accident?
Witness:I’d say 20 August is roughly two and a half months after the accident and if that was the first time the complaint was made then there’s certainly no strong connection between it and the accident and maybe no connection at all.
Counsel:On balance, what would you say if that is the - - -?
Witness:No connection on balance.
Mr Robert Carey, an orthopaedic surgeon, provided a report to the TAC on 25 May 2003. He recorded that
[l]umbosacral spinal region pain was indicated at the lumbosacral level. Forward flexion was mildly restricted but extension was full. Each of these movements caused pain at the extremes of range. Lateral flexion movement was full with minor discomfort and rotation was of full range.
He observed that it appeared that Mr Grace had sustained sprain injuries of the lumbosacral region, but there was no neurological complication.
Mr Summers, a physiotherapist at Fairfield Physiotherapy, provided a report to the TAC on 16 September 1998. He observed that Mr Grace was able to flex his lumbar spine to 90 degrees, demonstrating that he had some mild stiffness at the L5/S1 level bilaterally, and that palpation further up the lumbar region was met with what appeared to be ‘voluntary spasm and an overreaction to the pressure’. He said that
[t]here were no convincing signs that [Mr Grace’s] back symptoms had a sound mechanical base. In fact his reported symptoms did not correlate with his objective signs.
He considered that Mr Grace had a significant functional overlay.
4 The judge’s reasons
In his detailed reasons the learned judge said that he was satisfied that Mr Grace had pain and restriction in his lumbar back before the second accident, and it was therefore necessary to assess the nature and extent of the problem before and after that accident.
His Honour referred to the oral evidence of Mr Grace’s chiropractor, Mr Waterhouse, his general practitioner, Dr Siemienowicz, and Mr Dooley, orthopaedic surgeon, to which we have already referred. His Honour also referred to the reports of treating doctors Dr Bolzonello, Dr Bittar, Dr Davey and Dr Jirjis, to the report of physiotherapist Dr Crossley, and to the MRI scans of Mr Grace’s back. He took account of the medico-legal reports provided by Dr Koadlow, Mr Weaver, Mr Klug, and Mr D’Urso. The judge noted that the medical opinions of most of the consultants and treating doctors had to be considered in light of the fact that ‘the plaintiff denied any… low back problems’ prior to the second accident.[4]
[4]Reasons [29].
His Honour referred to Mr Waterhouse’s clinical notes, and in particular to an entry made on 18 February 1997, in which Mr Grace was reported as saying that his low back was ‘killing [him]’. He expressed reservations about Mr Waterhouse’s opinion on the state of Mr Grace’s lumbar spine prior to the second accident, noting that Mr Waterhouse’s only qualification was a Doctorate in Chiropractic from a college in Iowa. His Honour said that he would accept the opinions of the orthopaedic surgeons in preference to Mr Waterhouse’s opinion.[5] In light of other objective evidence he said that he did not accept Mr Waterhouse’s evidence about the extent to which Mr Grace’s spine worsened after the second accident.[6]
[5]Ibid [30].
[6]Ibid [48].
In relation to the evidence of Dr Siemienowicz, his Honour remarked that he found it
very difficult to accept that, had the plaintiff suffered significant injury in the subject accident, that he would not have complained and received treatment from his general practitioner over the period of 18 months or so until February 1999. Even after February 1999, according to the evidence of Dr Siemienowicz, the back was not a dominant feature in his presentation.[7]
[7]Ibid [32].
His Honour said that he was impressed with the evidence of Mr Dooley and the opinions he had expressed in his reports. He noted that Mr Dooley was ‘the only orthopaedic specialist who had received a comprehensive history of the nature and extent of the prior problems, the lack of complaints after the [second] accident and the plaintiff’s ability to carry out his duties’.[8] His Honour accepted Mr Dooley’s opinion that Mr Grace was suffering from a soft tissue injury and aggravation of previous degenerative changes to his lumbar spine, and that the fact that Mr Grace was able to undertake the work he was doing after the second accident indicated he did not have significant back problems. He also accepted Mr Dooley’s opinion that the surgery proposed by Mr D’Urso was experimental and unlikely to have any beneficial effect. He summarised his conclusions in relation to the lumbar spine injury as follows.
I accept that the plaintiff did have pre-existing degenerative change and that this was symptomatic before the subject accident. In fact, during 1997, the plaintiff was having considerable problems to the point where he described the pain in his back as ‘killing me’ and requiring him to consider giving up sailing for a year. He did not provide a comprehensive history of his back problems to any practitioner and, in fact, denied any problems at all to most. In addition, there is a considerable delay between the subject accident and the complaint to any practitioner of back symptoms thereafter. While I accept that the plaintiff did suffer some soft tissue injury to his lumbar spine in the subject accident and there was some aggravation of the degenerative process, I do not consider it was substantial. While he gives a history to many consultant practitioners of ongoing serious pain, there is evidence, particularly from Dr Siemienowicz, that during the course of his treatment the back problem was not particularly significant.[9]
5 Submissions of counsel for Mr Grace
[8]Ibid [50].
[9]Ibid [53].
Mr Grace’s counsel submitted that his Honour should have given much greater weight to Mr Waterhouse’s evidence, because he was the only practitioner who had treated Mr Grace before and after the accident and who could assess post-accident changes in the condition of his lumbar spine.
In his written submissions, counsel said that his Honour had wrongly disregarded Mr Waterhouse’s evidence because he was not a medical practitioner. The passage in his Honour’s reasons which is said to support that conclusion is his Honour’s remark that
While I accept that Dr Waterhouse probably accurately reported the history presented to him, I have significant reservations about his opinion as to the plaintiff’s lumbar spine. His only qualification is a Doctorate in Chiropractic from a college in Iowa, United States of America, and I would accept the opinions of orthopaedic surgeons in preference to his.[10]
[10]Ibid [30].
Counsel relied on CSR Ltd v Della Maddalena[11] in support of the submission that the judge had deprived Mr Grace of procedural fairness, because Mr Waterhouse was not cross-examined on his qualifications and this matter was never raised in argument.
[11](2006) 224 ALR 1 (‘Della Maddalena’), 27 [107]-[108] (Hayne J) and 40 [162] (Callinan and Heydon JJ).
Counsel said that it was not disputed that Mr Grace had had intermittent minor back pain before the second accident, but the fact that there had been a tenfold increase in the number of times that Mr Grace sought chiropractic treatment for his back demonstrated that the accident had significantly aggravated his back problem.[12] His Honour had failed to give any consideration to that increase in treatment, or to the relationship between the increase and the lumbar back injury suffered in the second accident. The increased level of treatment was not attributable to the fact that the TAC was paying for chiropractic treatment. After the TAC had declined to do so, Mr Grace paid for many of the treatments himself.
[12]According to the appellant’s written submission, Mr Grace was treated by Mr Waterhouse on 11 occasions between 1992 and 11 June 1997 and on approximately 130 occasions thereafter.
Counsel also submitted that his Honour’s adverse findings about Mr Grace’s credit did not provide an adequate basis for refusing leave to seek common law damages for the back injury. Mr Grace’s difficulty in responding to cross-examination was attributable to his psychological condition. Further, the video evidence was not inconsistent with the lumbar injury about which Mr Grace complained.
Counsel argued that his Honour had given inadequate weight to Mr Dooley’s concession in cross-examination that it was certainly possible and might be probable’ that the accident had aggravated a pre-existing degenerative condition of the back, and that the abdominal pain suffered by Mr Grace after the second accident might have masked the aggravation of the back condition.
Counsel said that his Honour had wrongly proceeded on the basis that Mr Grace did not complain about his back pain until two and a half months after the second accident, whereas he had in fact reported his low back injury to the TAC on 31 July 1997, a little more than a month and a half after the second accident. Mr Grace’s claim that the severity of his soft tissue abdominal injury masked the symptoms of the lumbar spine injury was supported by:
·his evidence that he collided with Mr Elmasri with sufficient force to remove the motor bike tank from the frame;
·Mr Waterhouse’s evidence that Mr Grace had told him on 20 August 1997 that he had sustained abdominal pains as a result of the second accident and a contemporaneous note commenting that Mr Grace said his abdomen was sore;
·Dr Bolzonello’s letter of 6 September 1999 to the Claims Officer at the TAC, indicating that Mr Grace had abdominal pain when he first saw him;
·Mr Grace’s evidence that he had consulted Dr Blackman at the Olympic Park Sports Medicine Clinic on 16 June 1997 and at that time was continuing to suffer abdominal pain;
·the report from Medico Legal Services, Royal Melbourne Hospital, indicating that Mr Grace had been admitted to that hospital on 12 July 2000 to investigate his abdominal pain;
·Mr Dooley’s evidence at the trial that if a person had extremely severe abdominal pain, that pain could, to a certain degree, mask low back pain in lumbar and buttock regions; and
·the opinion of Mr Klug, who said that it was likely that the left shoulder and abdominal injuries ‘were the dominant issues in the early period and tended to some extent [to] mask the significance of the back disorder’.
Counsel further contended that the judge had erred in saying that even if Mr Grace’s back condition was sufficient to warrant surgery (as Mr Klug had suggested), he was not satisfied that the sole cause was the second accident. It was not necessary for Mr Grace to prove that the second accident was the ‘sole cause’ of the lumbar spine injury.
6 Submissions of counsel for the respondents
Counsel said that once his Honour made adverse findings about Mr Grace’s credibility, his assessment of the various medical opinions had to be considered in light of the selective medical history he had given to doctors and other health practitioners.[13]
[13]Compare for example Palmer Tube Mills v Semi [1998] 4 VR 439, 448 (Brooking JA, with whom Tadgell and Buchanan JJA agreed); Gjorgovska v AFM Cleaning Services Pty Ltd & Anor [2006] VSCA 104, [27]-[28] (Chernov JA with whom Redlich JA and Mandie AJA agreed).
Mr Grace faces the barrier of overcoming the trial judge’s findings based on an assessment of his credibility. This was not a case where there were incontrovertible facts or uncontested testimony indicating that the judge was wrong. Nor was his conclusion ‘glaringly improbable’ or ‘contrary to compelling inferences’.[14]
[14]Fox v Percy (2003) 214 CLR 118, 128.
His Honour was also entitled to take account of the fact that when Mr Grace had filled out an application form for employment with Forstaff Aviation, he had not disclosed the full extent of his back problems after the second accident. It was put to Mr Grace in cross-examination that at that time his health declaration said only that ‘his back was a little bit soft’ but did not stop him working. His answer was that the statement was ‘a little bit ambiguous’ and he was probably trying to ‘build himself up a little better than he was’. In addition, the video evidence showed that Mr Grace was able to move in a manner which was inconsistent with him suffering from a serious back injury.
Counsel submitted that Mr Grace’s complaint that his Honour had rejected the evidence that the abdominal injury was masked by his abdominal pain, was misconceived. The question of masking went to the severity of the back injury, rather than to the question whether it had occurred at all. His Honour had accepted that Mr Grace’s back problems were aggravated by the accident, but had found that the aggravation was not a serious one. Counsel submitted that, although Mr Grace had referred to back and neck injuries on his claim form dated 31 July 1997, he had not complained to his general practitioner about increased low back pain until a year and a half after the accident had occurred. During this time he was in full time work. There was no increase in the amount of time he took off work following the second accident.
7 Conclusion
We deal first with grounds of appeal 1 to 5, which in essence claim that his Honour gave inadequate reasons for rejecting Mr Grace’s claim that the second accident caused an injury to his lumbar spine, the consequences of which were ‘very considerable and certainly more than significant’, by comparison with other cases in the range of possible impairments or losses. [15]
[15]Mobilio v Balliotis& Ors [1998] 3 VR 833 (‘Mobilio’), 834-835 (Winneke P), 843-844 (Brooking JA).
In our opinion his Honour’s finding that Mr Grace’s lumbar injury was not ‘serious’ within s 93(17) of the Act should not be set aside. We take that view for the following reasons.
First, with the exception of Mr Waterhouse,[16] all the treating practitioners and medico-legal experts considered there was little objective evidence that Mr Grace’s lower back condition amounted to a serious injury. In his 25 May 2004 report, Mr Weaver, whose reports were relatively favourable to Mr Grace’s claim, described his back problem as mild to moderate.
[16]We discuss the grounds of appeal relating to Mr Waterhouse’s evidence below.
MRI scans reviewed by Mr Weaver, Mr Klug, Dr Bittar and Mr Dooley showed lumbar disc bulging with associated annular tears, but no evidence of a serious disc lesion, spinal canal stenosis or neural compression.
Mr D’Urso and Mr Dooley thought that Mr Grace’s present lumbar condition was caused by age-related deterioration. Mr Weaver accepted that, based on the history given to him by Mr Grace, his spinal condition might have been aggravated by the second accident and Mr Klug thought the accident may have played some part in producing Mr Grace’s symptoms. However, as his Honour said, the doctors who examined Mr Grace were heavily dependent on the history which he gave them.
Secondly, his Honour found that Mr Grace was an unreliable witness and that he gave an inaccurate history to the doctors who examined his back. Mr Grace must therefore overcome the principle of appellate restraint which applies to factual findings based on the trial judge’s view of a witness’s credibility. So far as the back injury is concerned, we do not consider that there is any basis for setting aside his Honour’s conclusion that, although the second accident may have aggravated Mr Grace’s pre-existing degenerative back condition to some extent, that aggravation was not substantial. Having regard to the fact that Mr Grace did not tell his doctors he was treated for back pain before the second accident, we consider that his Honour properly gave limited weight to Mr Klug and Mr Weaver’s opinions that the second accident may have contributed to Mr Grace’s symptoms.
Thirdly, we have viewed the short sections of video surveillance of Mr Grace, to which his Honour referred. In the video of 8 November 2005 Mr Grace squats without apparent difficulty and apparently puts air into tyres on both sides of a car. He also leans into the car to retrieve an article. In that video he moves with apparent ease. In the video of 1 August 2007, which lasts about three minutes, he is seen rubbing his right shoulder and then raising and lowering the bonnet of the car. Although he does not move as briskly as was the case in the 8 November 2005 video, he appears to bend without difficulty or pain.
We note that in his affidavits and oral evidence Mr Grace complains mainly of pain in his lumbar back, rather than of restricted movement. For example, he did not claim he was unable to squat, as he can be observed doing in the passage of video filmed in 2005. Nevertheless his apparent freedom of movement provides some support for his Honour’s conclusion that he does not have a serious lumbar injury. We note also that his recorded movements were somewhat inconsistent with Mr Waterhouse’s viva voce evidence that the condition of Mr Grace’s lower back pain made it difficult for him to get up and down from a sitting position to a standing position. For the above reasons we consider that the third ground of appeal is not made out.
We would also reject grounds of appeal 1, 2 and 4. His Honour did not give inadequate reasons for rejecting Mr Grace’s claim that he had not complained about his back problem earlier than he did, because its symptoms were masked by the injury to his abdomen. Although Mr Grace referred to a back injury in his TAC claim form, he did not seek treatment from his general practitioner, Dr Siemienowicz, for his back problem until 1February 1999; even after that period Dr Siemienowicz said that it was not a dominant feature of Mr Grace’s presentation.[17] We agree with his Honour that it is unlikely that, if Mr Grace had suffered a significant back injury, he would not have complained to his general practitioner.
[17]Reasons [32].
As his Honour also noted, Dr Crossley, the physiotherapist who saw Mr Grace in 1997 and 1998, reported that he had attended for treatment of his shoulder pain and thoracic discomfort, but made no reference to him suffering from back pain. Further, his Honour specifically referred to the evidence of Mr Dooley that Mr Grace’s abdominal and shoulder injury could have masked the effect of his lower back injury. He said
As earlier stated, the plaintiff was treated at St Vincent’s Hospital on the day of the accident. There is no reference in the report of that hospital to any problem with the lumbar spine … The plaintiff did attend on 20th August 1997 for the first time after the subject accident with Dr Waterhouse and complained, amongst other problems, of low back pain. There thus appears to be a considerable period after the subject accident when the plaintiff made no complaint of low back pain. This delay was the subject of evidence by Mr Dooley. He said that he would have expected a complaint of low back pain within three weeks or so of an incident given the plaintiff’s subsequent level of complaint. There are many reasons why a person may not complain of low back pain after a traumatic incident such as the subject accident. That pain may develop over a period of time, or its emergence may be masked by other injuries, such as the injury to the plaintiff’s abdomen. However, in the circumstances of the present case, I would have expected that the plaintiff would have made a complaint of low back pain at an earlier time. While I accept that the plaintiff did suffer some soft tissue injury, or aggravation of underlying degenerative disease to the lumbar spine in the subject accident, I am not satisfied that it is as significant as the plaintiff would make out.[18]
[18]Ibid [34].
His Honour did not refer to Mr Klug’s report to Mr Grace’s solicitors that the injuries to his left shoulder and abdomen may have masked the low back injury. However Mr Klug was responding to a query about the delay between the accident on 11 June 1997, the lodging of a claim form on 31 July 1997 and Mr Grace’s attendance for chiropractic treatment on 20 August 1997. His opinion did not refer to the longer delay which his Honour took into account, including his failure to mention back pain to Dr Crossley and his delay in complaining to Dr Siemienowicz. We consider that the judge correctly described Mr Dooley’s evidence and gave appropriate weight to it.
We now turn to ground of appeal 5, which complains that his Honour deprived Mr Grace of procedural justice by holding the opinion of Mr Waterhouse would not be preferred to that of the orthopaedic surgeons, and to grounds of appeal 6 and 7, which complain that his Honour gave insufficient weight to Mr Waterhouse’s evidence.
In Della Maddalena the Full Court of the Supreme Court of Western Australia had described the respondent’s psychiatric witnesses as eminent, well known and respected by the courts, and said that they were experts whose evidence was superior to that of the psychiatrist who gave evidence for Mr Grace. The majority of the High Court (Callinan, Heydon and Hayne JJ) held that Mr Grace had been denied a proper hearing, because the qualities and experience of the various experts had never been raised in argument and he had been deprived of the opportunity to make submissions on this matter. In addition, these remarks led to an inference that the Full Court believed the respondent’s witness because the Court had previously seen those witnesses give evidence.[19]
[19]Della Maddalena (2006) 224 ALR 1, 40-41 (Callinan and Heydon JJ), 27 (Hayne J).
In our opinion, his Honour’s remarks are readily distinguishable from the Full Court’s approach in Della Maddalena. In this case, the judge did not comment on the relative eminence of experts with similar formal qualifications in circumstances where there was no evidence as to the regard in which they were held by other psychiatrists. The judge’s remarks related to the witnesses’ objective qualifications, which were before the Court. These qualifications were relevant to the comparative expertise of orthopaedic surgeons and chiropractors to testify about the state of Mr Grace’s lumbar spine.
It would have been self evident to Mr Grace’s counsel that the evidence of medical experts who, in the case of Mr Dooley, Mr D’Urso and Mr Carey, were fellows of the relevant professional college, would be given greater weight than the opinion of a chiropractor. Mr Grace was not deprived of procedural justice by his Honour’s reference to that obvious fact.
Even if we are wrong in that view, we do not consider that his Honour’s primary reason for rejecting the evidence of Mr Waterhouse was because he was a chiropractor, rather than an orthopaedic surgeon.
His Honour had to weigh the medical evidence that Mr Grace had not suffered a serious injury to his lumbar region and that his current condition was partly due to age-related deterioration, against Mr Waterhouse’s evidence as to the frequency of Mr Grace’s visits before and after the accident and his opinion about the severity of Mr Grace’s back condition. In our opinion his Honour gave adequate reasons for preferring the medical evidence. His Honour considered that Mr Waterhouse’s evidence lacked rigour and found that Mr Waterhouse was an unimpressive witness because it was difficult to ‘understand quite what treatment was provided’ by him and because he gave unconvincing responses to questions about Mr Grace’s condition before the second accident. Our reading of the transcript confirms that impression. Further, there was no evidence that Mr Waterhouse ever saw an x-ray or MRI of Mr Grace’s lumbar spine.
In addition, Mr Waterhouse’s evidence was not all one way. His notes recorded that Mr Grace had reported severe back pain to him in February 1997, prior to the second accident, and said that he was going to take a year off sailing. He also saw Mr Grace four times (on 17 February, 18 February, 24 February and in April 1997) not long before the second accident. It is clear from the judge’s reasons, read as a whole, that he gave lesser weight to Mr Waterhouse’s evidence for the reasons set out above, rather than because he held only a chiropractic qualification. For these reasons we do not consider that grounds of appeal 5, 6 or 7 are made out.
B The psychological injury: grounds of appeal 8 to 11
Mr Grace claimed that he suffered from a severe long term mental disorder as a result of the accident. This injury was said to have two aspects. First, it was alleged that he now suffered from disorders producing depression, anxiety, hypervigilance, irritability and anger which had resulted in him becoming addicted to and abusing alcohol and marijuana. Secondly, it was alleged that he had a chronic pain disorder or pain syndrome, resulting in him experiencing pain in various parts of his body which did not necessarily have any organic basis.
1 Evidence of treating practitioners
A number of the doctors and physiotherapists who treated Mr Grace for his physical problems thought that he had some kind of psychological disorder. Dr Crossley, a physiotherapist, noted that there was concern at the clinic that Mr Grace was not complying with his rehabilitation programme. Reception staff were concerned about their safety after he made some inappropriate comments and the clinic then decided not to continue to treat him.
Dr Siemienowicz, expressed the view that Mr Grace’s condition was ‘clouded by [the] use of marijuana and alcohol’.
Dr Bolzonello, who treated Mr Grace between July 1998 and October 2000, advised Mr Grace in 1998 that he should see a psychiatrist for professional assistance with his anger and psychological distress. In October 2000, he noted that he exhibited significant anger and was ‘a demanding often threatening and abusive patient’. He said that his overall presentation was that of an individual who was suffering from a high degree of psychological distress and disturbance.
Mr Donnellan, a physiotherapist, expressed the view that he was ‘suffering from a complex chronic pain syndrome, with chronic spinal and peripheral musculo-skeletal pain with associated deconditioning’.
Dr Brian Murphy, who first saw Mr Grace in January 2003, considered that his major symptom was one of anger. He said that because he had not seen Mr Grace until nine years after his accident he could not express a view as to whether his depression, anxiety and alcohol abuse were related to the motor vehicle accident. Mr Waterhouse also considered that after the accident Mr Grace had used alcohol to block out pain and memory of the accident, and that he was quite emotionally disturbed by August 1997.
2 Evidence of medico-legal experts
A number of the doctors who provided medico-legal reports to Mr Grace’s solicitors and to the TAC also noted that Mr Grace’s physical condition was compounded by his psychological symptoms.
Dr Koadlow stated that ‘he appeared to have a significant psychological disturbance with features of anger and feelings of grievance and this aspect requires the assessment of a psychiatrist since it is a very important part of his presentation’.
In January 2005 Mr Dooley expressed the view that Mr Grace’s current clinical condition was dominated by pain, bitterness and anger, volatile behaviour and depression. He had ‘developed a chronic pain syndrome in which the constancy and intensity of his ongoing pain are out of proportion to the injury sustained. His perception of pain is being magnified by his psychological condition’.
Mr Weaver, who saw Mr Grace for medico-legal purposes in May 2003, April 2005 and June 2007 said that his presentation was consistent with a man suffering from substantial psychological problems.
Mr D’Urso said that, based on the history given to him by Mr Grace,
[i]t would however appear that he was quite active both physically and in his occupation before the accident that this has subsequently become quite significantly limited. Psychological sequelae including anxiety, depression and mood swings appear to be related to multi factorial causes. It would appear that the back condition has contributed to a partial extent to his current psychological state. Jason would appear to have a degree of adjustment disorder with depressed mood and anxiety.
3 Evidence of treating and medico-legal psychiatrists
Mr Grace was referred by Dr Bolzonello to Dr Ots for psychiatric treatment. He saw him on a number of occasions between November 1998 and August 2000. Dr Ots noted that at his first appointment Mr Grace
swore quite freely during the interview, and in spite of a staccato reporting style of describing his problems, he wandered from topic to topic in a very erratic manner. He became quite aggressive during the interview.
He noted that Mr Grace was angry with a number of his treating doctors and physiotherapists and with the TAC. He said that if Mr Grace had been willing to attend for treatment every two or three weeks and discuss his problems, he might have done better than he had so far. Dr Ots considered that Mr Grace was suffering from a degree of anxiety and depression and also seemed to have some anti-social tendencies. He considered that his psychiatric prognosis was poor.
Dr Michael Epstein, a psychiatrist, initially saw Mr Grace on 24 August 2004 for medico-legal purposes. His report to Mr Grace’s solicitors dated 1 September 2004 stated that he had seen the reports of most of Mr Grace’s treating doctors and physiotherapists and noted that he had reported that he drank alcohol to excess and smoked marijuana to cope with his pain. Dr Epstein said that
Jason Grace suffered injuries in a transport accident which occurred on the 11th June 1997 and continues to complain of widespread pain and discomfort. The extent of his pain indicates the development of a Pain Disorder. He has also developed symptoms of a Post Traumatic Stress Disorder arising from this accident with recurrent intrusive thought about the accident, distress with reminders of it, increased concerns with regard to his safety and security, hypervigilance, some emotional withdrawal, and a sense of bleakness.
The combination of the physical and psychiatric effects of the accident has led on to a chronic Adjustment Disorder with depressed mood and he has also developed drug abuse problems as a result of the accident in a form of self-medication and has had drink driving convictions.
His mood disorder has mainly been manifested in terms of high levels of irritability and rage. This has led to major problems for him with his partner and with his friends. He has become very isolated.
He has had psychiatric and psychological treatment but in my view he would be a most difficult person to treat because of his high levels of rage.
His level of impairment has been determined using the AMA Guides to the Evaluation of Permanent Impairment, Second Edition, Chapter 12, Table 1, in which the following factors apply:
Intelligence - Class 1
Thinking - “ 2
Perception - “ 2
Judgment - “ 3
Affect - “ 3
Behaviour - “ 3
Ability - “ 2
Potential - “ 4
In my view that leads to a psychiatric impairment of 25%, of which 10% now relates to those symptoms which are not secondary to physical injury and this is so-called primary impairment. This comes from the residual symptoms of his Post Traumatic Stress Disorder.
His condition appears stable.
His prognosis is poor.
In a report of 1 June 2005, Dr Epstein again diagnosed Mr Grace as suffering from a pain disorder and as having residual symptoms of a mild post traumatic stress disorder. He said that as a combination of various factors, including the development of dependence on marijuana and alcohol, Mr Grace now had chronic adjustment disorder with depressed mood. Dr Epstein said that he continued to be significantly disabled and had a long term mental or behavioural disorder. Mr Grace had symptoms from previous accidents and had been non-compliant with treatment, but Dr Epstein said ‘there is little indication that he was displaying the levels of anger that he has manifested since this accident in 1997’.
In his final report, dated 18 June 2007, Dr Epstein said that Mr Grace’s condition had become worse. He said that
[h]e continues to suffer from a Pain Disorder. He still has residual symptoms of a Post-Traumatic Stress Disorder and his level of depression has worsened. He continues to use excessive amounts of alcohol and would use excessive quantities of marijuana but is limited with the consumption of both these drugs because of his finances … It is likely that his alcohol abuse contributes to his level of depression and exacerbates his anger … The impression gained is that most of his symptoms have occurred as a result of the effects of the transport accident on 11 June 1997, now ten years ago. There is unlikely to be any improvement. His prognosis is poor and his condition is stable.
Dr David Weissman, a consultant psychiatrist provided medico-legal reports to the TAC. In his report of 2 February 2005 he said that he had questioned Mr Grace about possible post traumatic stress and anxiety symptoms. He expressed the view that Mr Grace was suffering from a chronic adjustment disorder with depressed mood and mixed emotions, including irritability, agitation, anger and a lower frustration tolerance of moderate severity. He also considered that Mr Grace had chronic post traumatic stress disorder symptoms. He noted that he was unable to determine exactly how much alcohol Mr Grace currently consumes and concluded that
Mr Grace has sustained moderate primary and secondary psychiatric symptoms as a result of the transport accident. However, purely on psychiatric grounds alone, he has not sustained a serious, severe or long term emotional, behavioural or psychiatric condition, disturbance or disorder.
Dr Weissman saw Mr Grace again on 27 June 2007. In his report of that date he said that Mr Grace presented in much the same way as when he had seen him two years previously. He continued to suffer from a chronic major depressive disorder, with pronounced irritability, agitation and grievances, and he probably continued to suffer from chronic post traumatic stress disorder of mild to moderate severity. He said that Mr Grace also still has a degree of alcohol abuse and cannabis abuse. His psychiatric symptoms, conditions and impairment had stabilised. Dr Weissman said that he could not be sure how much the alcohol abuse and dependence and later drink driving offences were due to Mr Grace’s accident related psychiatric conditions or mental injury.
Dr Nigel Strauss, a consultant and occupational psychiatrist, provided a medico-legal report to Mr Grace’s solicitors. Mr Grace told him that he suffered from chronic lower back, neck and shoulder pain, that his alcohol consumption had increased enormously since the accident, and that he drank whenever he could. Dr Strauss thought that he was suffering from a probable substance abuse disorder, post traumatic symptoms and an adjustment disorder with mixed anxiety and depressed mood and that, based on the history given to him by Mr Grace, he was not suffering from a psychiatric condition before the second accident. He commented that
He does have anxiety and depression and hence a secondary adjustment disorder with mixed anxiety and depressed mood and he has a 15% secondary psychiatric impairment in my opinion using the Clinical Guidelines.
He also has a substance abuse disorder and on the basis of his history it appears that this has developed since his accident and he was not a heavy drinker before the accident. I have taken this into account in regard to his secondary psychiatric impairment.
This man also suffers from some post traumatic stress symptoms due to the 1997 accident and he has a 5% primary psychiatric impairment giving him a total 20% psychiatric impairment when all factors are considered.
Any incapacity for employment is physically based and from a purely psychiatric point of view this man is fit for normal work.
He should be seeing a psychologist on a fortnightly basis because of his significant psychiatric problems and antidepressants might help him but I have noted that he is resistant to taking these tablets.
4 The judge’s reasons
The judge referred to the report of Mr Gerald Purchase, a psychologist who had seen Mr Grace in 2003, of Dr Ots, his treating psychiatrist, and to the opinions of Dr Epstein and Dr Strauss, who said in his report that ‘I have reached my conclusions in this case entirely on the basis of [Mr Grace’s] history and presentation’. He also referred to Dr Weissman’s evidence. His Honour noted that, apart from a few sessions with Dr Ots between 1998 and 2000 and possibly some sessions with Mr Purchase in 2003, Mr Grace had received little treatment or medication and said that he did not accept that his psychological disturbance was as serious as he claimed.
He noted that Dr Siemienowicz had given evidence that the regular smoking of marijuana’ can affect a person’s sleep and the manner in which they work and may result in a severe impairment if smoked regularly’.[20] His Honour said that in April 1997, before the second accident, the clinical notes of the Gladstone Park Medical Centre record that Mr Grace told his general practitioner
Everything is too much trouble and appears to be everyone else’s fault. Smokes too much pot.[21]
[20]Reasons [62].
[21]Ibid.
There was also a reference in Mr Waterhouse’s notes to the fact that Mr Grace had a marijuana smoking habit.
His Honour found that Mr Grace was regularly smoking considerable quantities of marijuana, particularly in the time shortly before the second accident, and that he did not disclose this to any of the practitioners that he saw subsequently.[22] His Honour said that the opinions of the psychiatrists were reliant on the accuracy of the history that Mr Grace had provided, about which the judge was not satisfied. He continued as follows:
I am not satisfied that the plaintiff has given an accurate history of his symptoms. Further, the psychological problems relate, at least to some extent, to the pain that he alleges he is suffering. I am not satisfied that he does suffer the pain, both in his left shoulder and back, to the extent he states, nor am I satisfied that the pain emanates solely as a result of the subject accident. I also note that the plaintiff has had a paucity of psychological treatment and medication. It is said on his behalf that this is because his psychological condition arising from the accident means that he is unprepared to accept such treatment. I do not accept this proposition. The plaintiff is entitled to refuse psychological treatment, but I am of the view that it is likely that he has done so more because he does not believe his symptoms warrant it.[23]
5 Submissions of counsel for Mr Grace
[22]Ibid [62].
[23]Ibid [63].
Mr Grace’s counsel submitted that it was not open to the judge to reject Mr Grace’s claim that he was suffering from a serious psychiatric disorder caused by the second accident, and that his Honour had given inadequate reasons for doing so.
All of the psychiatrists, including Dr Weissman, the respondents’ psychiatric expert, considered that Mr Grace had a psychiatric disorder. He was variously diagnosed as suffering from one or more of the following conditions:
·an chronic adjustment disorder with anxiety and depression;
·a post-traumatic stress disorder;
·a chronic pain disorder; or
·a substance use disorder.
Each of these was capable of amounting to a serious injury within s 93(17) of the Act, and there was no evidence that Mr Grace had any psychiatric condition prior to the second accident.
Counsel submitted that his Honour had incorrectly said that Mr Grace had ‘not provided any history to any doctor’ of his extensive marijuana use before the second accident [24] though Dr Epstein had in fact reported that Mr Grace had told him ‘he had used alcohol and marijuana over the years’.
[24]Ibid [65].
Counsel contended that his Honour should not have disregarded the opinions of these psychiatrists on the basis that Mr Grace had given them an incomplete history, given that they had had the opportunity to observe him, and all had performed clinical examinations on multiple occasions with, the exception of Dr Strauss who saw him on only one occasion. It was also said that his Honour had misstated evidence on which he relied to draw adverse implications relating to Mr Grace’s credit. In particular, Mr Grace had told Dr Epstein about his marijuana use.
Even if Mr Grace did not tell psychiatrists (other than Dr Epstein) about his marijuana use, the psychiatric diagnoses of Dr Ots, Dr Epstein, Dr Strauss and Dr Weissman were, to a large extent, based on their observations of Mr Grace when they examined him.
Further, the fact that Mr Grace did not admit to using marijuana before the second accident, was relevant only to the psychiatric diagnosis of probable substance abuse disorder and not to the alternative diagnoses of post traumatic stress disorder, adjustment disorder, with depression or chronic pain syndrome. Indeed Dr Epstein, to whom Mr Grace had disclosed his marijuana use, considered he had a pain disorder and an adjustment disorder.
Counsel referred to his Honour’s comment that Mr Grace had ‘to a lesser extent … failed to advise practitioners about pre-existing psychological symptoms’.[25] Counsel submitted that there was no evidence that Mr Grace had had any such symptoms before the second accident. The use of marijuana before that accident was not, of itself, evidence of a psychiatric disorder.
[25]Ibid [66].
Counsel also submitted that the matters which his Honour regarded as affecting Mr Grace’s credibility should not have undermined his psychiatric injury claim. Mr Grace had admitted to driving an unregistered vehicle to get to work, so this should not be regarded as reflecting on his credibility. It was wrong to treat his quarrels with treating practitioners, and the anger that was observed by a number of the doctors who saw him, as reflecting on his credit. These responses were indicative of his psychological problems, as was his erratic response to cross-examination.
Nor should his Honour have regarded the fact that Mr Grace’s description of his success in the Sydney-Hobart Yacht race differed from the details provided the Cruising Yacht Club of Australia as relevant to his credit. The author of the letter was not cross-examined and it was not put by counsel for the respondents that Mr Grace had attempted to mislead the Court. To summarise, counsel said that none of his Honour’s findings on Mr Grace’s credit were sufficient to justify disregarding the strong and consistent body of psychiatric opinion.
It was further submitted that his Honour gave no reasons for concluding that there was not a sufficient causal connection between the psychiatric condition from which Mr Grace was now suffering and the motor cycle accident. Nor was there any basis for the finding that Mr Grace refused psychological treatment because he did not believe that his symptoms warranted it.
6 Submissions of counsel for the respondents
As was the case for the lumbar back injury, counsel relied on the judge’s adverse credibility findings to justify his Honour’s rejection of the psychiatric evidence. Mr Grace’s evidence in cross-examination was that he had back pain all of the time. His case was that his psychiatric condition was a consequence of the ongoing pain caused by the second accident. Since his Honour had not accepted that Mr Grace was suffering from serious pain, he was also entitled to reject the psychiatric evidence.
Counsel also submitted that his Honour was entitled to give limited weight to the psychiatric evidence, because it was based on the inaccurate history which Mr Grace gave to the doctors who saw him. Mr Grace had denied having a problem with marijuana prior to the accident, although it was clear from Dr Siemienowicz’s clinical notes that he was smoking too much marijuana shortly before the second accident. Mr Waterhouse’s clinical notes recorded that Mr Grace used marijuana at that time and that on at least one occasion he had attended an appointment smelling of alcohol. Mr Grace had not told Dr Weissman, Dr Ots or Dr Strauss about his marijuana use before the second accident, and had not told other doctors that he had back pain before that accident. Both these inaccuracies cast doubt on his credit and the history he gave to health practitioners. In addition, Dr Ots, who treated Mr Grace on four occasions between November 1998 and August 2000, had concluded only that he had ‘a degree of anxiety and depression’. This cast doubt on Mr Grace’s claim about the severity of his condition and on the evidence of the psychiatrists who saw him some years after the accident.
Counsel was asked to comment on the basis for his Honour’s finding that he was not satisfied ‘that the plaintiff achieves the ‘severe’ level in respect of psychological injury’.[26] Counsel’s response was that his Honour simply meant that Mr Grace had not established, on the balance of probabilities, that his injury was serious in the sense described in Humphries v Poljak.[27] Read as a whole, the judge’s reasons adequately explained why he had reached that conclusion.
7 Conclusion
[26]Reasons [74].
[27][1992] 2 VR 129, 140 (Crockett and Southwell JJ).
Mr Grace claims that his Honour should have held that he suffers from a severe long term mental or severe long term behavioural disturbance or disorder, caused by the second accident. In Mobilio[28] this Court said that the word ‘severe’ in s 93(17)(c) was stronger than the word ‘serious’ in paragraphs (a) and (b).
[28][1998] 3 VR 833.
In essence grounds of appeal 8 to 10 claim that the judge gave insufficient weight to the evidence that Mr Grace now suffers from a severe psychiatric condition. It is also said that his Honour had failed to take account of the extent to which his psychiatric condition had affected the manner in which he gave his evidence. In our opinion, those grounds are made out.
The judge’s reasons indicate that he had regard to the various psychiatric reports, but gave them little weight because he considered that Mr Grace was not a credible witness and did not give an accurate history to his doctors.
We consider that the judge gave insufficient weight to the evidence of Dr Ots, Dr Epstein and Dr Strauss, which strongly supported the view that Mr Grace is now suffering from a psychiatric disorder. As we have discussed above, many of the doctors who treated Mr Grace for his physical symptoms also considered that his main problem was psychological. In our view, the fact that the psychiatric witnesses did not agree on a precise diagnosis of Mr Grace’s condition did not prevent him from satisfying the Mobilio requirements.
The evidence as to the severity of Mr Grace’s psychiatric disorder can be summarised as follows.
·Dr Ots considered that in March 2003 Mr Grace was ‘suffering from a degree of anxiety and depression’ and that his psychiatric prognosis was ‘poor’.
·Dr Epstein said he had a psychiatric impairment of 25 per cent, of which 10 per cent now related to symptoms which were ‘not secondary to physical injury and this is so-called primary impairment’. Between Dr Epstein’s reports dated 1 September 2004 and 18 June 2007 Mr Grace’s condition had deteriorated. In the latter report Dr Epstein said that ‘continues to be significantly disabled and does have a long term mental or behavioural disorder. His prognosis is poor’.
·In June 2007 Dr Strauss said that Mr Grace had significant psychiatric problems, that he had a five per cent primary psychiatric impairment, giving him a total of 20 per cent psychiatric impairment when all factors were considered, but that he was fit for normal work.
·In his first report dated 2 February 2005 Dr Weissman considered that Mr Grace’s prognosis was ‘fair at best’. He said he had sustained moderate primary and secondary psychiatric symptoms as a result of the second accident , though on psychiatric grounds alone, he has not sustained a serious, severe or long-term emotional, behavioural or psychiatric condition, disturbance or disorder’. In his second report, dated 27 June 2007, he said that Mr Grace continued to suffer from a chronic major depressive disorder and most probably a chronic post-traumatic stress disorder. He was unlikely to have any work capacity in the open market and his symptoms affected his day to day domestic, social, leisure and recreational functioning in a moderate manner.
The respondents submitted that these opinions had to be considered in light of the adverse credibility findings which his Honour made against Mr Grace, and the consequent unreliability of the history he gave to the psychiatrists.
His Honour was properly sceptical of Mr Grace’s evidence about the cause and severity of his back condition. The weight to be given to the opinions of the treating doctors and medico-legal experts was necessarily reduced by Mr Grace’s failure to disclose that he had back pain before the second accident. In addition, the objective medical evidence did not support his claim that the lumbar spine injury was serious.
The situation in relation to the psychological injury claim is different. In our view, Mr Grace’s submissions on this matter as to should be accepted. We consider that his Honour’s adverse credibility findings did not justify the rejection of the psychological injury claim. We take that view for three reasons.
First, the psychiatric opinions in this case were supported by the psychiatrists’ observations of Mr Grace’s behaviour, which were also made by a number of other professionals who attempted to help him. The fact that Mr Grace has been reluctant to accept psychiatric help, or to take anti-depressants, does not necessarily undermine his claim. Indeed, if Mr Grace were consciously or unconsciously exaggerating his psychological symptoms, one would expect him to accept the treatment recommended to him.
Secondly, in light of the psychiatric evidence, we do not consider there was any evidentiary basis for his Honour’s conclusion that Mr Grace’s demeanour in the witness box was not a result of his psychological condition. We note in particular that Dr Ots, Mr Grace’s treating psychiatrist, said that in his initial interview Mr Grace ‘wandered from topic to topic in a very erratic manner,’ used non-sequitur sentences, and that part of his conversation ‘really did not make much sense’.
Thirdly, we would accept the submission made on behalf of Mr Grace that his failure to disclose his marijuana use before the second accident was mainly relevant to his claim that he contracted a substance abuse disorder as a result of the second accident. The fact that he disclosed his prior marijuana use only to Dr Epstein did not necessarily destroy his credibility in relation to the other psychiatric diagnoses, which included a chronic adjustment disorder with anxiety and depression or a chronic pain disorder. The diagnosis of chronic adjustment disorder was based to a large extent on observations of Mr Grace’s behaviour.
In Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis,[29] Maxwell P noted that the only authoritative definition of the term ‘chronic pain syndrome’ (or ‘chronic pain disorder’) is that contained in the ‘Diagnostic and Statistical Manual of Mental Disorders (Text Revision)’ (’DSM’), published by the American Psychiatric Association. As his Honour noted (referring to the DSM):
[29][2007] VSCA 46.
The common feature of somatoform disorders is –
‘the presence of physical symptoms that suggest a general medical condition (hence, the term somatoform) and are not fully explained by a general medical condition … or by another mental disorder (eg, Panic Disorder). The symptoms must cause clinically significant distress or impairment in social, occupational or other areas of functioning. … [T]he physical symptoms are not intentional (ie, under voluntary control).’
DSM defines a pain disorder as follows:
‘The essential feature of Pain Disorder is pain that is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention. … The pain causes significant distress or impairment in social, occupational, or other important areas of functioning. … Psychological factors are judged to play a significant role in the onset, severity, exacerbation, or maintenance of the pain. The pain is not intentionally produced or feigned … Pain Disorder is not diagnosed if the pain is better accounted for by a Mood, Anxiety or Psychotic Disorder … .’
Functional overlay is a somatoform disorder. Physical symptoms are present but they are not explained by any organic condition.[30]
[30]Ibid [5]-[7].
The essence of a chronic pain disorder is that the pain which is felt by the sufferer cannot fully be explained by his or her physical condition. It follows that his Honour’s finding that Mr Grace did not have a serious injury to his lumbar spine does not necessarily undermine his claim that he felt acute pain throughout his body, including in his lumbar back.
His Honour was required to weigh the whole of the evidence to determine whether Mr Grace has a severe long term mental or behavioural disorder. In our opinion his Honour did not do so, but rather dismissed Mr Grace’s claim to be suffering from a serious injury solely, if not entirely, on the basis of his view of Mr Grace’s credibility. For the reasons given above, we consider that his Honour should not have regarded Mr Grace’s marijuana use or his demeanour as a witness as a sufficient basis for rejecting the psychiatric evidence that he had a psychiatric condition, possibly a chronic adjustment disorder, a chronic pain disorder or a post traumatic stress disorder. Both factors warranted consideration in the overall context, and particularly in light of the medical evidence as to the psychological condition.
To succeed on this appeal, Mr Grace must also establish a sufficient causal link between his psychological condition and the physical injuries he suffered as a result of the second accident. We are satisfied that he has established a link between the injuries caused by the second accident and a severe psychological condition of some kind.
The fact that Mr Grace was able to work full-time, engaged in sporting activities and was living in a de facto relationship until the second accident occurred, provides some objective evidence of his pre-accident psychological condition. His relationship broke down after the second accident, and he is now reliant on a disability pension. There is little, if any, evidence that Mr Grace was suffering from any psychological disorder before the second accident. Contrary to his Honour’s comments on the matter we do not consider that Mr Grace’s use of marijuana before the second accident amounts to a pre-existing psychological disorder.
However, we are not satisfied that Mr Grace’s marijuana addiction was caused by the second accident. As his Honour noted, the clinical notes of the Gladstone Park Medical Centre indicate that in April 1997 Mr Grace told his general practitioner that everything was too much trouble and appeared to be everyone’s fault, and that he smoked too much marijuana. Mr Waterhouse’s clinical notes also record that Mr Grace smoked marijuana. On the basis of that evidence, we do not consider that Mr Grace has demonstrated a causal link between his marijuana addiction and the injuries he suffered in the second accident.
As we have held that grounds of appeal 8 to 10 are made out, it is necessary to decide whether Mr Grace’s serious injury application matter should be remitted to the County Court for determination. Counsel for Mr Grace submitted that this Court should determine the leave application, rather than remitting it to the County Court, which had already considered Mr Grace’s application twice. We accept that submission. In our view Mr Grace should be given leave to bring proceedings for the recovery of damages in respect of a serious injury suffered by him as a result of the second accident.
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