John Samaras v Transport Accident Commission

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2019 0010

JOHN SAMARAS	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

---

JUDGES:	TATE, BEACH and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 September 2019
DATE OF JUDGMENT:	11 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 255
JUDGMENT APPEALED FROM:	[2018] VCC 2188 (Judge Saccardo)

---

ACCIDENT COMPENSATION – Two transport accidents – ‘Serious injury’ – Injury to spine – Anxiety, depressive condition and post-traumatic stress disorder – Pre-existing conditions – Inconsistency and unreliability of evidence – Whether judge unable to determine on such evidence the effect of the pre-existing conditions, first transport accident, and second transport accident, on applicant’s present condition – Apprehended bias – Whether judge erred in refusing to grant adjournment – Whether judge erred in considering applicant’s prior convictions in assessing reliability and credibility – Humphries v Poljak [1992] 2 VR 129, Transport Accident Commission v Katanas (2017) 262 CLR 550, Mason v Transport Accident Commission [2014] VSCA 267, applied – Davies v Nilsen [2014] VSCA 278 distinguished – Transport Accident Act 1986, ss 93(4)(d), (6), (17) – Leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
Mr J Samaras in person
For the Respondent	Mr P H Solomon QC with Ms B A Myers	Solicitor to the Transport Accident Commission

TATE JA
BEACH JA
EMERTON JA:

TABLE OF CONTENTS

*Introduction and summary*.........................................................................................	2
*The transport accidents*...............................................................................................	4
(1) The first transport accident — 23 December 2010..................................................	4
(2) The second transport accident — 5 June 2011 .......................................................	4
*The judge’s findings about pre-existing conditions, and impairment resulting from the two transport accidents*...............................................................................	5
(1) The pre-existing physical and psychiatric conditions..............................................	6
(2) The physical and psychiatric conditions following the first transport accident.......	8
(3) The physical and psychiatric conditions following the second transport accident..	13
*The judge’s findings about Samaras’ unreliability as a witness*...........................	20
*Proposed grounds of appeal*.......................................................................................	25
*Did the judge err in his assessment of the serious injury claim? — the substantive grounds*.....................................................................................................	28
(1) Did the judge err in not giving sufficient weight to Samaras’ medical evidence about the effect of the second transport accident? (ground 6)...........................................	28
(2) Did the judge err in failing to take into account an affidavit dated 29 November 2018? (ground 9) ...................................................................................................	34
(3) Did the judge err in preferring historical and out-dated medical evidence unrelated to the proceeding? (ground 10)...................................................................................	37
(4) Did the judge err and show bias in finding that Samaras’ diligent conduct of his own case in court demonstrated he was capable of managing his needs? (ground 11) ...	38
*Did the judge err in the manner in which he conducted the case management process and hearing? — the procedural grounds* ....................................................	40
(1) Did the judge err by not disqualifying himself on 6 December 2018? (ground 1)...	40
(2) Did the judge err on 1 June 2018 in not vacating the proceeding to enable Samaras to obtain proper medical evidence? (ground 2)........................................................	47
(3) Did the judge demonstrate bias and take into account irrelevant evidence about events in Samaras’ life, and did he err in treating Samaras as an unreliable witness due to his prior convictions? (grounds 3, 4 and 5)..................................................	50
(4) Did the judge err in accepting evidence about Samaras’ convictions that had been the subject of a suppression order? (ground 7) .......................................................	56
(5) Did the judge err by not accepting Samaras’ explanation for the errors he made during his cross-examination? (ground 8) .............................................................	58
*Conclusion* ....................................................................................................................	59

Introduction and summary

John Samaras (‘Samaras’) brings an application for leave to appeal from a decision of the County Court refusing his application for leave to commence common law proceedings for damages in respect of injuries sustained by him in two transport accidents.[1] The first transport accident occurred on 23 December 2010 and the second on 5 June 2011. In respect of both the first and second transport accidents, these injuries are alleged to be physical (an injury to the spine) as well as psychiatric (an anxiety and depressive condition and post-traumatic stress disorder).
[1]Samaras v Transport Accident Commission [2018] VCC 2188 (‘Reasons’).

Samaras appeared in the directions hearings, the hearing below, and this application for leave to appeal as a self-represented litigant.[2]
[2]Samaras’ former solicitors ceased to act in April 2018.

Samaras cannot bring common law proceedings for damages in respect of an injury resulting from a transport accident without, relevantly, first being granted leave by a court, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’). A court must not give such leave unless it is satisfied that the injury is a ‘serious injury’.[3] For present purposes, the relevant definitions of a ‘serious injury’ are a ‘serious long-term impairment or loss of a body function’ (in relation to the physical injury) and a ‘severe long-term mental or severe long-term behavioural disturbance or disorder’ (in relation to the psychiatric injury).[4]
[3]Pursuant to s 93(6) of the Act.
[4]Pursuant to s 93(17) of the Act.

The judge was not satisfied, on the balance of probabilities, that the injuries met the threshold of a ‘serious injury’ under the Act with respect to either of the two transport accidents. He found Samaras to be an unreliable witness. The respondent, the Transport Accident Commission (‘the TAC’), submitted before the judge that Samaras was an unreliable witness because he had prior convictions for both perjury and blackmail demonstrating an underlying dishonesty. Samaras was incarcerated following convictions for blackmail and remains in gaol. He will be eligible for release on parole in April 2020. The TAC also submitted before the judge that, independently of the prior convictions for dishonesty, Samaras was an unreliable witness because his evidence was contradictory on a number of critical issues.

In the County Court, Samaras claimed that each of the first and second transport accidents gave rise to a serious injury under the Act. His application for leave to appeal in this Court was confined to the errors of law allegedly made by the judge with respect to the second transport accident.

The grounds of appeal principally allege that the judge erred in his assessment of the serious injury claim by not giving appropriate weight to the medical evidence Samaras relied upon but favoured ‘out-dated’ medical reports (‘the substantive grounds’). It is also alleged that the judge pre-judged Samaras’ reliability as a witness by reference to his prior criminal convictions and erred in not discharging himself from the bench (‘the procedural grounds’). The TAC responds by submitting that, in substance, Samaras is seeking a review of the merits of his application in respect of the second transport accident and that the judge’s findings on reliability were both open and correct.

For the reasons that follow, we would refuse leave to appeal and dismiss the appeal.

The transport accidents
(1) The first transport accident — 23 December 2010

On Thursday 23 December 2010 at 10:15 pm Samaras was driving his car towards the intersection from Springvale Road on to the Eastern Freeway. Samaras’ girlfriend was also in the car. The lights at the intersection had turned red and he was slowing his vehicle when the car behind him failed to stop and hit the back of Samaras’ vehicle. Samaras exchanged details with the driver of the other car but the police did not attend the scene of the accident. Nor was he transported by ambulance from the scene or taken to hospital. He reported the matter to the police on 12 January 2011.

Samaras listed his injuries in the TAC claim form he completed as:

(Pain in lumbar spine), (Neck pain)
Psychological trauma, severe paranoia, anxiety, panic, plus partner is pregnant, cardiac, respiratory issues.

(2) The second transport accident — 5 June 2011

On Sunday 5 June 2011 at 10:30 am Samaras was driving his car along Boronia Road, Wantirna South, approaching the Mountain Highway intersection, when another vehicle made a right hand turn across his path and he collided with the rear passenger side of that other vehicle. The police attended the scene of the accident.

In an ambulance patient care report it was noted that Samaras was sitting on the nature strip and had extricated himself from his vehicle. A secondary survey performed by the paramedics recorded Samaras describing aching pain in his right forearm. His right forearm was observed to have ‘erythema/reddening’ and he was exhibiting ‘anxiety >> ++’. Further observations included: ‘Denied dizzy; light headed; cervical spine pain; lumbar spine pain; thoracic spine pain; altered sensation numbness & tingling’. He declined analgesia.

The ambulance patient care report also noted the following case description:

[S]truck side of other vehicle at approx 50 km/h. Front driver & passenger airbags deployed; seat belt worn. Pt self-extricated from vehicle; c/o R) lower arm pain & feels ‘off balance’/’unsteady’. Ambulance requested.

Samaras was taken to Maroondah Hospital by ambulance and assessed in the Emergency Department. He was discharged after approximately 1.5 hours. A medical certificate noted Samaras had ‘right neck bruising’ and ‘right wrist bruising’, but he was expected to be fit for usual duties.

The judge’s findings about pre-existing conditions, and impairment resulting from the two transport accidents

The judge understood that it was necessary for him to determine, in respect of the injury to the spine, whether the consequences of the impairment were ‘fairly described at least as “very considerable” and certainly more than “significant” or “marked”’[5] and, in respect of the psychiatric injury, whether its consequences were severe[6] by comparison with the range or spectrum of comparable cases.[7] He also understood that the critical time by reference to which he was to make a determination of the consequences of any impairment Samaras suffered, by reason of the transport accidents, was the date of the hearing before him.[8]
[5]Humphries v Poljak [1992] 2 VR 129, 140.
[6]Mobilio v Balliotis [1998] 3 VR 833.
[7]Humphries v Poljak [1992] 2 VR 129, 140; Transport Accident Commission v Katanas (2017) 262 CLR 550, 555 [6].
[8]Humphries v Poljak [1992] 2 VR 129, 137, 167.

He said, relevantly:

In the application, the plaintiff has the obligation of establishing on the balance of probabilities that:
(i)the impairment of function of his spine which was caused by the first accident gives rise to consequences for him which are appropriately described as being more than significant and marked and as being at least very considerable.
(ii)the extent of any psychiatric illness or disorder which was caused by the first accident gives rise to consequences which are for him appropriately described as being severe.
(iii)the impairment of function of his spine which was caused by the second accident gives rise to consequences which are for him appropriately described as being more than significant and marked and as being at least very considerable.
(iv)the extent of any psychiatric illness or disorder which was caused by the second accident gives rise to consequences which are for him appropriately described as being severe.

It is not in issue that, as to the consequences to the plaintiff of each of the impairments the subject of this application, the plaintiff must establish the extent of those consequences as at the present time.[9]

[9]Reasons [4]–[5] (emphasis added).

It was not in dispute that Samaras had relevant medical conditions which predated the first transport accident, namely a long-standing psychiatric illness and a history of persistent spinal pain. The judge observed:

There is no issue that the plaintiff presented with pre-existing conditions ... and that I am required in this instance to take into account any symptoms of pain, disability or dysfunction which were caused by those pre-existing conditions in assessing the consequences to the plaintiff of each of the transport accidents the subject of this application.[10]

[10]Reasons [24].

It was thus necessary for the judge to determine whether the aggravation of the pre-existing conditions was itself a serious injury because ‘an injured person is to be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident’.[11] In doing so, the judge was required to compare the condition before and after the first transport accident, and before and after the second transport accident, to assess the additional physical impairment or greater extent of the psychiatric illness.[12] As described below, the difficulties involved in disentangling the consequences of the two transport accidents proved insuperable.
[11]Petkovski v Galletti [1994] 1 VR 436, 443.See also De Agostino v Leatch [2011] VSCA 249 [11].
[12]AG Staff Pty Ltd v Filipowicz (2012) 34 VR 309, 315 [34].

(1) The pre-existing physical and psychiatric conditions

The judge was confronted with inconsistencies in Samaras’ own evidence on his pre-existing physical condition. The judge noted that initially during cross-examination Samaras accepted that the description of his symptoms and incapacity as set out in the report by Dr Bernard Worsam, a consulting physician, when he examined Samaras on 21 January 2004, was accurate up until the date of the first accident, 23 December 2010. The report from Dr Worsam was as follows:

[Samaras] stated that his back problem started 10 years ago, after he slipped downstairs at work. He stated that he had x-rays and a CT scan of the lumbosacral spine, and after physiotherapy was able to work without restriction. He said that soon after he started at his most recent job (a position that involved heavy lifting), he experienced back pain…
He reported that now his pain is felt well lateral to the spine over the right hip. Most pain is dull and deep, but he has some brief episodes of sharp pain in the same area. He rated the pain intensity as about 5–6/10 in intensity, but said that sometimes it dropped back to 1/10. On one occasion a week ago, he had shooting pain down the posterior-medial aspect of the right leg. He claimed to have no limb weakness and or sensory change. He said he has had a little right trapezius area pain over the last week. He stated he walks for 15–20 minutes on the flat, but said that breathlessness prevents him continuing. He said he sometimes used a stick when walking outdoors.[13]

[13]Reasons [15] (citation omitted).

Later in his cross-examination Samaras gave evidence that was inconsistent with that recorded in Dr Worsam’s report about the level of his spinal pain prior to the first transport accident, when he insisted that he had no back pain, that the problems with his back ‘were resolved’ and that he ‘was fine’.[14] The judge observed that these contradictory positions ‘cannot be reconciled’.[15] Given that the contemporaneous medical records some years before the first transport accident confirmed the long-term level of symptoms Samaras was presenting in his spine prior to the first transport accident, the judge found it ‘to be extremely unlikely that the condition which had persisted in the plaintiff’s spine for so many years had resolved so as to cause him no symptoms immediately prior to the first accident.’[16] The judge therefore proceeded on the basis that the description of the level of symptoms Samaras gave to Dr Worsam should be acted upon rather than the evidence given by Samaras at the hearing that those symptoms had resolved.[17]
[14]Reasons [17] (citation omitted).
[15]Reasons [18].
[16]Reasons [19].
[17]Reasons [26].

However, the judge considered there was no definitive evidence of the state of the spine immediately prior to the first transport accident. He observed, in the context of seeking to determine if the first transport accident increased Samaras’ incapacity and symptoms in his lumbar spine, that there was an ‘absence of any definitive evidence as to the level or effect of the incapacity and symptoms with which the plaintiff presented in his lumbar spine which pre-existed the first accident.’[18]
[18]Reasons [38].

In relation to Samaras’ pre-existing psychiatric symptoms, Samaras gave evidence, during his cross-examination, that prior to the first transport accident he had anxiety and depression.[19] The judge noted that Samaras had consulted, over a number of years, a psychiatrist, Dr Hopwood, who had prescribed Valium.[20] He found that this ‘long-term pre-existing emotional illness … had been managed effectively with medication in the form of Valium or the like’.[21]
[19]Reasons [17].
[20]Reasons [3].
[21]Reasons [46].

(2) The physical and psychiatric conditions following the first transport accident

Samaras relied on three affidavits at the hearing.[22] In the first affidavit sworn on 10 July 2015, which had been prepared on his behalf by Ryan Carlisle Thomas, solicitors, he deposed that following the first transport accident he experienced back pain and attended a general practitioner, Dr Samuel-John of the Manningham General Practice (‘the MGP’), about a week later on 31 December 2010. Dr Samuel-John recorded that Samaras had symptoms of lower back pain and reduced movement due to muscle spasm. She recommended the following treatment regime: ‘heat, rub, exercises, may need physio.’[23] Samaras deposed that he was told he was ‘suffering from a back strain’. He said he experienced ‘lower back pain, left shoulder and left hip pain’.
[22]Reasons [6].
[23]Reasons [29].

In an affidavit he prepared himself and which he swore on 2 July 2018, Samaras deposed that the effect of the injuries sustained in the first transport accident was ‘constant stabbing pain in the neck and back region’ and that this caused him ‘some stress, anxiety … and panic’ and he was ‘not able to bend, [or] lift’.

In the third affidavit, which he also prepared himself, sworn on 29 November 2018, he deposed that the physical injuries of the spine ‘were effected with Physical pain and current consequences of repetitive movements causing sporadic dull like pain radiating down my back, arms, wrist, neck’, while the ‘Psychological contribution and consequences of pain and suffering as such being anxious, panic, anxiety, fear, was triggered by the first transport accident’.[24]
[24]Emphasis as in original.

The judge noted that between 25 January and 25 February 2011, Samaras attended the MGP four times saying that the injuries from the first transport accident were worsening. It was recommended that he attend a rehabilitation program for his lower back injury and he was prescribed Valium and Panadeine Forte.

Between 15 March and 21 April 2011, Samaras attended the MGP five times. He was given further prescriptions for Valium and Panadeine Forte and put on a care plan which included physiotherapy for his back pain. He was referred to an orthopaedic surgeon, Mr Bruce Love.

The judge noted that Samaras reported symptoms of increasing back pain to Mr Love on 5 May 2011, and that Mr Love recommended management by attending a rehabilitation programme.[25] In his report, Mr Love stated:

[I]n the past he [Samaras] has had back problems but these problems were aggravated by a high energy rear end collision four months ago. He has since had various psychological concerns but his principal concern today was increasing pain in the lower back. He has been treated with analgesics and anti anxiety agents for this.
My examination does reveal him to have quite a stiff back but there are no localising neurological signs.
His x-rays reveal multi level degeneration disc disease throughout the lumbar spine and into the thoracolumbar region.
There is no surgical potential for this man.
I do not have anything that I can specifically offer him other than to recommend that he take up your offer of an intensive rehabilitation program, possibly as an inpatient. I have explained this to him and he wishes to go along with this plan.[26]

[25]Reasons [29].

[26]Emphasis added.

However, the judge noted that Samaras gave the following evidence in chief about his symptoms following the first transport accident:

MR SAMARAS: There was minimum pain affecting the spine, thoracic lumbar areas, sporadic, the pain was on and off with some anxiety and stress, I would get, so I’d get edgy when I’m driving, looking behind me in case I get hit from the car from behind and basically just sporadic pain, minimum pain, it wasn’t yeah, to that effect, severe but it was ongoing sporadically on and off, yeah, before the.

HIS HONOUR: So it was on and off?
MR SAMARAS: Correct.[27]

[27]Reasons [28].

The judge also noted a comment by Dr Eva Youssef, a general practitioner at the MGP, in a letter dated 12 August 2011 referring Samaras to Dr Paul Ng, a psychiatrist, in which Dr Youssef said: ‘Apart from exacerbating his low back pain, this [the first transport accident] did not affect him very much’.[28]
[28]Reasons [29].

A number of consulting surgeons who examined Samaras since then made no mention in their reports about the significance of any injury sustained in the first transport accident. An exception noted by the judge was Dr Jane Wadsley, an occupational physician who saw Samaras on 17 December 2013 at the request of the TAC, who expressed the view that it was likely that Samaras ‘sustained an aggravation of his lower back [injury] related to the first car accident’, and that ‘he continues to have a mild strain of the lumbar spine ... that ... relates more to the first car accident than the second one’.[29] Nonetheless, Dr Wadsley indicated that there was no clear information on the nature and extent of Samaras’ prior back pain, and she could ‘not rely on the history provided by the claimant as I judged this to be unreliable’.[30]
[29]Reasons [32].
[30]Reasons [33].

The judge also considered the views expressed by Mr Michael Dooley, orthopaedic surgeon, who examined Samaras at the request of the TAC. In his report, dated 3 September 2018, Mr Dooley said he believed that Samaras had ‘sustained mild musculoligamentous strain to the cervical and lumbar spine regions’ in the first transport accident, which Mr Dooley would have expected to ‘settle over a 4 to 6 week period and for there not to be any ongoing significant problems etc’.[31]
[31]Reasons [36].

The judge concluded that it was difficult to identify any real increase in the level of symptomology as a result of the first transport accident by comparison with the pre-existing symptomology:

When I compare my findings as to the pre-existing condition which was present in the plaintiff’s spine prior to the first accident it is difficult to identify any real increase in the plaintiff’s level of symptomology in his lumbar spine associated with the occurrence of the first accident when compared with the level of pre-existing symptomology.[32]

[32]Reasons [39].

He found that there was ‘a disconnect’ between the complaints made by Samaras about his symptoms and incapacity in his spine after the first transport accident, and the medical evidence.[33] Consequently, the judge was not satisfied that Samaras had established, as he needed to do, that there was a significant or marked and at least very considerable impairment to his lumbar spine as a result of the first transport accident.[34]
[33]Reasons [40]–[41].
[34]Reasons [42]–[44].

Turning to Samaras’ psychiatric condition following the first transport accident, the judge accepted that prior to the first transport accident Samaras had ‘a long-term pre-existing emotional illness which had been managed effectively with medication in the form of Valium or the like’,[35] and that the treatment with Valium continued up until the second transport accident. As mentioned, Samaras gave evidence at the hearing that following the first transport accident, he was anxious and nervous when driving, and looking behind him in case any car behind him would hit him.[36]
[35]Reasons [46]. See [21] above.
[36]See [28] above.

The judge concluded that there was minimal medical evidence on the effect of the first transport accident on Samaras’ psychiatric state, and the evidence that was to hand was unclear. For example, a report, dated 8 November 2013, by a consultant psychiatrist who was engaged by the TAC to provide a medico-legal opinion, Dr Tim Entwisle, referred to ‘the car accident’ without identifying which accident.[37] In any event Dr Entwisle was of the opinion that Samaras’ symptoms of anxiety were unlikely to be attributable to any such accident.[38] Similarly, the evidence of Associate Professor Peter Doherty, who was engaged by the TAC to provide a medico-legal opinion and reported in October 2018, provided ‘no support for the current existence of a psychiatric condition for which the first accident was a cause’.[39]
[37]Reasons [52].
[38]Reasons [51].
[39]Reasons [54].

Given the state of both the medical evidence and that given by Samaras at the hearing, the judge held that Samaras had not satisfied him that the emotional consequences of the first transport accident were either ‘permanent or severe’.[40]
[40]Reasons [55].

He dismissed Samaras’ application for leave to commence a proceeding claiming damages with respect to the first transport accident.

(3)The physical and psychiatric conditions following the second transport accident

In relation to Samaras’ physical condition following the second transport accident, the judge noted that after Samaras had been discharged from the Maroondah Hospital, he attended the MGP on 11 occasions between 7 June 2011 and 5 October 2011 and made no complaint about back pain but was prescribed Panadeine Forte.[41]
[41]Reasons [59].

In a letter dated 12 August 2011, Dr Youssef, after referring to the second transport accident, said: ‘Again there was little physical effect except for some pain in the R shoulder and arm …’.[42]
[42]Reasons [65]. Although the judge refers to the letter as dated 12 August 2012, it was dated 2011.

The judge found that the first complaint made by Samaras about spinal symptoms associated with the second transport accident was made on 28 October 2011, when Dr Youssef made the note: ‘Still having back pains ++ fro[m] MCA’.[43] Dr Youssef prescribed Panadeine Forte.
[43]Reasons [60].

On 3 February 2012 Dr Youssef noted that the second transport accident was ‘very traumatic ... caused various muscle and joint pains and exacerbated previous back injuries. All the physical injuries have now stabilised with physio etc’.[44]
[44]Reasons [61].

The judge referred to complaints made by Samaras on 15 May 2012 and again on 18 June 2012 about back pain, noting that Samaras was again prescribed Panadeine Forte on the latter occasion.[45] Samaras then attended the MGP on some 12 occasions between 23 July 2012 and 19 July 2013 and was prescribed Panadeine Forte on 27 August 2012, 28 February 2013 and 19 July 2013.[46]
[45]Reasons [62]–[63].
[46]Reasons [64].

The judge considered the medico-legal opinions provided by a range of specialists. Mr John Cunningham, orthopaedic surgeon, who examined Samaras on behalf of the TAC, was of the opinion as at 6 July 2012 that the second transport accident ‘had exacerbated the degenerative condition in the plaintiff’s spine and worsened his symptoms, and that that aggravation had not yet resolved.’[47]
[47]Reasons [66].

Dr Andrew Muir, a consultant in pain management, who examined Samaras on 14 January 2013 at the request of Samaras’ then solicitors, assessed Samaras as presenting with ongoing pain principally as a result of the second transport accident, the cause of the pain being an aggravation of pre-existing degenerative disease of his lumbar and cervical spines.[48] In response to a specific question about level of impairment, he proffered a 10% whole person impairment:

In my opinion, the patient has an assessable impairment as a consequence of the injuries to his lumbosacral and cervicothoracic spine. I would rate these as both being level 2 minor injury and both would be therefore awarded a whole person impairment of 5%. Combining the impairments from these two areas results in a whole person impairment of 10%.

[48]Reasons [67].

Dr Wadsley expressed the view that the second transport accident resulted in low grade cervical pain with some restriction in range of movement and some aggravation of lower back pain.[49] She attributed the neck pain to the second transport accident ‘as there does not appear to be any clear pre-existing condition in his history affecting his neck’ and that, while there were some clinical signs of lumbar injury, she also found no evidence of loss of motion segment integrity or radiculopathy.[50] However, as noted above,[51] Dr Wadsley was of the view that the mild strain of the lumbar spine experienced by Samaras related more to the first transport accident than the second transport accident.
[49]Reasons [69].
[50]Reasons [70].
[51]See [30] above.

The judge observed that, with respect to the spinal pain, the only evidence he had before him that was current at the time of the hearing, late December 2018, was the report of Mr Dooley, dated 3 September 2018. Mr Dooley, consistent with the findings of Dr Wadsley made in 2013, found Samaras presented ‘with restrictions in his active range of motion greater than one would expect to see having regard to his organic condition.’[52] Mr Dooley concluded that Samaras had suffered ‘a soft tissue injury to his cervical and lumbar spines which involved musculoligamentous damage and the aggravation of pre-existing degenerative disease in the spine.’[53] The judge noted that Mr Dooley:

opined that, from the orthopaedic point of view, the effect of the second accident would be expected to cause the plaintiff some ongoing intermittent low back pain commenting that he considered that it was unlikely that his orthopaedic condition would deteriorate in the future over and above that involved in the natural evolution of his underlying degenerative disc disease.[54]

[52]Reasons [73].

[53]Reasons [72].

[54]Reasons [74].

Having examined all the medical evidence, including the ‘sporadic and minimal treatment’[55] Samaras sought after the second transport accident, the judge concluded that there was a marked disparity between the symptoms Samaras complained of, in particular the ongoing pain, and the description in the medical evidence of the nature of the injury suffered by him following the second transport accident. Samaras made claims of symptoms and disability associated with pain that were ‘totally out of keeping with the pain and disability which might be expected on the basis of the medical evidence’.[56]
[55]Reasons [79].
[56]Reasons [77].

The judge concluded that he was ‘not satisfied that there is any basis upon which [he] should accept the plaintiff’s description of his present symptomology in preference to that described by Mr Dooley as being probable given the nature of injury sustained by the plaintiff’.[57]
[57]Reasons [78].

The judge could not conclude that there was any real difference between the symptoms and incapacity Samaras had before the second transport accident, and the symptoms and incapacity he had as a result of the second transport accident.[58]
[58]Reasons [80].

Accordingly, Samaras had failed to establish that the level of impairment he had in his lumbar spine of which the second transport accident was a cause was more than significant or marked and at least very considerable, with the result that he was not entitled to leave to bring common law proceedings with respect to the injury to his spine.

In relation to Samaras’ psychiatric condition, the judge noted that Samaras attended the MGP regularly. He reported nightmares and panic attacks.[59]
[59]Reasons [61].

Samaras was referred by Dr Youssef to Dr Anupam Pokharel, a psychiatrist, for treatment and management. In a report dated 5 October 2011, Dr Pokharel stated that Samaras had developed a range of psychological responses very consistent with post-traumatic stress disorder. He had flashbacks and nightmares, was hyper vigilant and jumpy almost all the time. Dr Pokharel prescribed Lexapro and advised Samaras to continue taking Valium.[60]
[60]Reasons [83].

Dr Pokharel reported to Dr Youseff on 1 May 2012 that Samaras continued to experience post-traumatic stress disorder symptoms but was no longer on edge all the time since being prescribed Lexapro.[61] On 16 November 2012 he reported that Samaras continued to report the presence of post-traumatic stress symptoms that were barely manageable and that he avoided driving because of intrusive thoughts about the accident.[62] On 17 December 2012 Dr Pokharel reported to the TAC that, although there had been a gradual improvement since being prescribed Lexapro, Samaras was still struggling with the after-effects of the second transport accident and his anxiety was high when going through major intersections.[63]
[61]Reasons [85].
[62]Reasons [87].
[63]Reasons [91].

By 7 January 2014 Dr Pokharel wrote that, after a gap of some six months, Samaras had come to see him a couple of months before and ‘[a]t that time he scored 42 in Beck Depression Inventory and 54 in Beck Anxiety Inventory both severe depression and anxiety’. However, Dr Pokharel’s ‘objective opinion … was that the score was higher than what appeared objectively to me’ and at that time he noted that Samaras ‘was much more comfortable in the interview with no agitation’. By the time of the consultation on 7 January 2014, Dr Pokharel said that Samaras still had some panic attacks, fear of dying and ‘more flashback of the accident’.

In a report dated 13 May 2014, Dr Pokharel described no difference in Samaras’ reporting of low mood, that he had a fear of dying which had increased over the preceding weeks, and his sleep had become restless. He said that Samaras had ‘disengaged with his psychologist’ and his ‘engagement in psychological intervention [was] almost nonexistent’. He advised Samaras to continue Lexapro 30mg but he was advised to try to reduce the dose of Diazepam.

Samaras attended three out of a possible six sessions with psychologist Lauren Daniell between 21 November 2013 and 8 January 2014. In her report dated 1 April 2014, Ms Daniell described Samaras’ presentation as: ‘chaotic, hyper-alert and on edge … [he] presented with symptoms of PTSD as a result of his car accidents, as well as depression symptoms related to the diagnosis of several medical problems’.

The judge accepted that initially after the second transport accident Samaras presented with significant psychiatric symptoms resulting primarily from that accident. The judge found that by January 2014 the medical evidence was consistent with Samaras having ‘a condition which had demonstrated a pattern of improvement over time about which there is no evidence one way or another as to whether that condition had stabilised so that there would be no further improvement.’[64] He considered that following treatment Samaras improved to the point that by May 2014 he was able to manage his life and to care for his infant son without assistance, notwithstanding continuing to have symptoms of some significance.
[64]Reasons [101].

The judge concluded that while the consequences of the second transport accident for Samaras’ psychiatric condition were ‘significant or marked it would be inappropriate to describe those consequences as being severe.’[65] Further, in relation to Samaras’ psychiatric state as at the date of the hearing, the judge noted that the only current medical evidence presented was from Professor Doherty, in his report dated 22 October 2018, and that evidence provided no support for the existence of a current psychiatric condition for which the second accident was a cause.[66] Nor could he be satisfied that there was evidence which established, on the balance of probabilities, as at the date of the hearing, that Samaras presented with long term mental or behavioural disturbances that were severe.[67]
[65]Reasons [102].
[66]Reasons [103].
[67]Reasons [104].

Professor Doherty had taken a detailed history from Samaras, as well as a record of his current mental state, and concluded that despite Samaras’ assertion that he had symptoms suggestive of severe post-traumatic stress disorder, was in constant pain, had daily panic attacks, and his mood was so low as to rate at 0/10 (with 0 being the lowest possible state), there was ‘a gross inconsistency clearly evident’ between those assertions and the objective presentation by Samaras:

In my opinion, his history is unreliable. He gave over estimations of his mood, anxiety and the frequency of panic attacks. He told me his mood is 0/10, that is, it could not get any lower, but he was smiling, chatty, related easily and comfortably without tears or distress. He told me his anxiety was high at 7/10 and he had panic episodes daily. He told me he was not motivated at all. He told me even when speaking to me, he could see images of the transport accident, there and then. The[re] was no associated emotional response to that claimed image.
In my opinion, there is a gross inconsistency clearly evident, which makes the making of a psychiatric diagnosis difficult.

Professor Doherty also ruled out a pain-related psychiatric condition given that the pain medication Samaras was taking was ‘modest’ and that he did not exhibit any pain-related behaviours. Importantly, he concluded that Samaras had ‘no diagnosable psychiatric condition present, that can be reliably and thus validly made’. He said:

In my opinion, there is no psychiatric condition current[ly] present due to one or both transport accidents. He continues to take an anti-depressant medication in mild to moderate dosage. The pain-relieving medication is very light.
I gave consideration as to whether or not there is a pain-related psychiatric condition present. In my opinion, there is not. The analgesic medication is modest, and he [was] not in pain management before prison. There were no pain-related behaviours when I examined him.

I considered whether or not there is an adjustment disorder currently present, and in my opinion, there is not. The plaintiff has reported, due to the transport accident that he has had significant psychological reaction to it, yet his treatment has not been focussed on the treatment of trauma rather attempts to dampen anxiety and mood symptoms with medication. Psychological treatment has not been significant.

He also remarked on the inconsistencies between the symptoms reported and the nature and severity of the second transport accident:

There is embellishment, overstatement of symptoms in the context of an inconsistent history, and the reported persistent symptoms are not in keeping with the nature and severity of the second transport accident or the passage of time and treatment given.

Professor Doherty also wrote that there is ‘embellishment of symptoms and some symptoms appear to be made up, not in keeping with known responses to trauma. His self-reported quantification of pain, mood and anxiety is not believable.’

The judge’s findings about Samaras’ unreliability as a witness

The judge found a number of inconsistencies in Samaras’ evidence and found him to be vague about his personal chronology. This added to the difficulty encountered by the judge in trying to determine the form and level of Samaras’ impairment from his pre-existing condition, and any additional level of impairment from the first and then the second transport accident.

The judge ultimately concluded that Samaras was unreliable as a witness. This was based in part on the evidence Samaras gave during cross-examination about the effect he said the first transport accident had on his ability to care for his infant son, who underwent cardiac surgery, then suffered complications including sepsis and was twice admitted to the intensive care unit. Samaras gave detailed evidence about what he did to look after his son as the primary carer before the first transport accident. However, Samaras’ son was born some months after both the first and the second transport accidents, on 10 August 2011.

It is worthwhile setting out the relevant cross-examination in full:

MS MYERS: What I want to ask you about is the sorts of things that you were doing with your son before the first transport accident?
MR SAMARAS:        Before the ...
MS MYERS:That then became difficult after the first transport accident?
MR SAMARAS:        Before the first transport accident, from the day he was born I was able to take him to his hospital appointments, I was able to bath him ..., I was able to feed him, go out to the local park, go to the kindergarten, take him to school um, do some cooking and just what a normal father would do.
MS MYERS:So up until December 2010, you were the primary carer for your son?
MR SAMARAS:        Yes.
MS MYERS:And you, I think at times you lived with your parents, is that right?

MR SAMARAS: Correct.
MS MYERS:And at other times you lived with your partner, the mother of your son?

MR SAMARAS:        Correct.
MS MYERS:              But you were the primary carer?
MR SAMARAS:        Yes.
MS MYERS:So prior to the first transport accident, you did everything, changing nappies, feeding, he’s got quite significant health conditions doesn’t he?

MR SAMARAS: Yes, he has, yes.
MS MYERS:And so he required numerous attendances at the Children’s Hospital?
MR SAMARAS: Correct.

MS MYERS:              And he had surgery, didn’t he?
MR SAMARAS:        Yes.
MS MYERS:              So you were able to drive him around, were you?
MR SAMARAS:        Before the first accident, yes I was.
MS MYERS:              Before the first transport accident?
MR SAMARAS:        Yes.
MS MYERS:And deal with all those matters, taking him to doctor appointments, et cetera?
MR SAMARAS:        Yes.

MS MYERS:              Dress him?
MR SAMARAS:        Yes.
MS MYERS:              Bathe him, bend over the bath to bathe him, yes?
MR SAMARAS:        Yeah.
MS MYERS:All right. And then — so that’s up to the time of the first transport accident and then after the first transport accident and before the second transport accident, what, if any, restrictions were there in caring for your son?
MR SAMARAS:        It was getting – –
HIS HONOUR:       Just so that we understand, every time we talk about the first transport accident, that will be the December 2010?
MR SAMARAS:        Yeah.

HIS HONOUR:         And the second transport accident is June 2011.
MS MYERS:              Shall I use the dates?
HIS HONOUR:         No, not at all. There was an earlier accident.
MS MYERS:              Yes.
HIS HONOUR:         But first and second, they will be the dates.
MS MYERS:              Yes.
HIS HONOUR:         Yes. You understand that, so the first accident is the first accident that we’re involved in, in this case?

MR SAMARAS: Yes, 2010.
HIS HONOUR: Which is 2010. The second accident is the second accident involved in this case, which is June 2011?

MR SAMARAS:        2011.
MS MYERS: So you say to his Honour that you have a clear memory now of caring for your son in the way that you’ve described, being able to do everything for him, before the first transport accident?
MR SAMARAS:        Of course I do, he was my son, I was able to do things.
MS MYERS:Yes, so before December 2010, you were able to do all those things?
MR SAMARAS:        Yes.
MS MYERS:Okay. So between December 2010 and the second transport accident in June 2011, what, if any, restrictions were there on your caring for your son?
HIS HONOUR:         So after the first but before the second one, right?
MR SAMARAS:        I was still able to do some of the chores as required but they were getting slightly, slightly difficult. I was still able to transport, go, take him to school, bath him and et cetera.

MS MYERS: He wasn’t going to school was he, he was a baby?
MR SAMARAS: No, we’re talking about – hang on – 2011, 2012 be started, he went – it was 2011, I think 2012 he started going to kindergarten and 2013, around there, I can’t remember now, I’d be lying I can’t remember the dates exactly.

MS MYERS:              Yes, you’ve just said it haven’t you?
MR SAMARAS:        Yeah.
MS MYERS:              He was in fact born in August 2011, wasn’t he?
MR SAMARAS:        August 2011 yes.
MS MYERS:So the evidence that you’ve just given to his Honour about being able to care for him with no problem before the first transport accident in December 2010 is just rubbish?
MR SAMARAS:        Obviously we got the dates wrong, we got the dates wrong.

MS MYERS: It is just rubbish, isn’t it?
MR SAMARAS: No, it’s not. It’s an error of dates. When you’ve got – you expect me now that I’m suffering you know, depression or anxiety, to remember, it’s – I know he was born, he was born in 2011 and I believe 12 months later, 2012/13 I think he started going to kindergarten, I can’t recall that far back but certainly I can tell you right now, Ms Myers, certainly from the first accident up until the second accident, yes I, I was having problems doing what I was doing at the house, going out doing whatever and then when he was born in 2011 after the second accident, getting the dates wrong obviously, I was having difficulty.

MS MYERS:              Let us just take it step by step?
MR SAMARAS:        Yeah.
MS MYERS:              Your son was born 10 August 2011?
MR SAMARAS:        2011.
MS MYERS:He was born after the second transport accident, wasn’t he?

MR SAMARAS:        That’s correct, yes.
MS MYERS:              About two months later?
MR SAMARAS:        Yes.
MS MYERS:So the evidence that you have just given to his Honour about caring for your son without restriction during 2010 is just rubbish?
MR SAMARAS:        No, misinterpretation of the dates. I got that confused.[68]

[68]Reasons [8].

The judge rejected the view that Samaras was only confused as to the dates but rather treated the evidence as indicative of Samaras’ unreliability; that is, he considered Samaras’ account of the restriction on his activities by reason of the two transport accidents to be unreliable. He said:

In my opinion, notwithstanding the explanation given by the plaintiff that this passage of evidence by him was caused merely by reason of a mistake as to the timing of things given the many years which have elapsed since both accidents, the breadth of the error, namely that the plaintiff was prepared to give sworn evidence as to his ability to engage in specific activities with his son before his son was even born, does raise serious issues as to the plaintiff’s reliability as a witness.[69]

[69]Reasons [9].

The judge also relied on the inconsistencies between the evidence Samaras gave and the medical histories he had given to various medical practitioners as further confirmation of Samaras’ unreliability about his personal history:

In my opinion the plaintiff’s lack of reliability as a witness is further demonstrated by his lack of consistency when giving evidence as to the physical symptoms associated with the first accident at the time immediately prior to the second accident, about which the plaintiff made the following contradictory statements:
There was minimum pain affecting the spine, thoracic lumbar areas sporadic the pain was on and off with some anxiety and stress, I would get, so I would get edgy when I am driving, looking behind me in case I get hit from the car from behind and basically just sporadic pain minimum pain it was not, yeah to that effect, severe but it was ongoing sporadically on and off yeah, before the.

In contrast to that evidence, the plaintiff subsequently described the progression in his symptoms between the first and second accident as involving pain, the severity of which was between four and five and which:
‘ ... was getting worse. That’s – That is why I – oh, well, after seeing the doctor I kept on going regular, it was just – just getting worse and – it was getting worse ...’

That description by the plaintiff as to the severity of his symptoms needs then to be considered in the context of:
(i)the history provided by the plaintiff to Mr John Cunningham, an orthopaedic surgeon who examined him on behalf of the defendant on 6 July 2012, who recorded the fact that the first accident had caused the plaintiff to suffer a mild exacerbation of his pre-existing back pain which ‘gradually subsided’;
(ii)the history provided by the plaintiff to Dr Andrew Mueller, the psychiatrist who examined him at the request of his then solicitors on 24 January 2013, who recorded the effect of the first accident upon the plaintiff as follows:
‘He experienced some minor pain on the left-hand side of the lower back which subsided over a few days.’
(iii)the history provided by the plaintiff to Dr Jane Wadsley, an Occupational Physician, who examined him on behalf of the Transport Accident Commission on 22 December 2013, as follows:
‘He told me that the first accident occurred on 23 December 2010. He said he was stationary at the lights and was hit from behind in a low-impact collision. He said his neck and lower back were injured in the first accident. He indicated that the lower back injury was the main injury in the first accident. He told me that he recovered from this injury by the time that the second accident occurred…’

The inconsistency between the plaintiff’s affidavit evidence and the evidence given in the course of the trial to which I referred above, when considered in the context of the numerous histories provided by the plaintiff to various medical practitioners as to the severity of his symptoms and his recovery from the spinal injury sustained in the first accident, clearly demonstrates the plaintiff’s lack of reliability upon this critical issue.[70]

[70]Reasons [10]–[13] (emphasis added).

As mentioned above, the judge also identified inconsistency between Samaras’ evidence and the information he gave to Dr Worsam in January 2004 about the spinal pain he was experiencing then.[71]
[71]See [18]–[19] above.

Proposed grounds of appeal

Samaras raises eleven proposed grounds of appeal. They are as follows:[72]
[72]During the course of the hearing before this court, Samaras was taken to his document entitled ‘Application for Leave to Appeal’ dated 28 January 2019, and asked to address the substance of the various unnumbered proposed grounds, with each bullet point treated as a separate ground of appeal during the hearing.

Proposed ground 1
The trial judge erred by rejecting to disqualify himself from the proceedings due to comments made on the 15^th of June 2018 even though the plaintiff had some legal advice the state of mind at the time would have been effected (Transcript MP2 and MP1) 6^th December 2018.
Proposed ground 2
The trial judge on the 1^st June 2018 erred by rejecting the plaintiff to vacate the proceedings until such time he is able to obtain proper medical evidence and as such has resulted in an unfair procedural with prejudice to the plaintiff.
Proposed ground 3
The trial judge erred by preferring in evidence of the plaintiff’s life events, his son, partner into judgment and as such it’s irrelevant when assessing injuries of aggravation in a transport accident and therefore the trial judge was not free of undue bias and as such was significantly influenced in his judgment. The judge erred by allowing the defendant to enter evidence of the plaintiff’s criminal history obtained from the judge’s associate on a suppression order without the plaintiff’s knowledge.[73]
[73]The final sentence was added at the request of Samaras made by letter to the Court of Appeal Registry dated 12 April 2019.
Proposed ground 4
The trial judge erred by failing to be objective and give reasonable and sufficient weight and formed a bias hasty incorrect notion as such opinions to be prejudice and bias to the plaintiff as an unreliable witness due to his criminal history.
Proposed ground 5
The trial judge erred by pre-forming an opinion of the plaintiff prior and during the proceeding as such ‘The witness is engaged to commit a criminal behaviour’ and therefore, his Honour is not free from undue bias and as such was significantly influenced in his judgment.
Proposed ground 6
The trial judge erred by failing to accept for the plaintiff medical evidence in the secondary transport accident as stated in the court book attendance dates at Manningham General Practice.
Proposed ground 7
The trial judge erred by accepting the plaintiff’s suppressed criminal history revealed and unrelated to the vehicle traffic accidents to such extent the associate to Judge Saccardo was asked by the defendant to assist in the recovery of such suppressed history of the plaintiff.
Proposed ground 8
The trial judge erred by failing to acknowledge and accept the plaintiff’s given reasons of error in his oral cross-examination as such the plaintiff revised his answers accordingly.
Proposed ground 9
The trial judge erred by failing to take into account the latest affidavit of the 29^th of [November]^[[74]] 2018 from the secondary traffic accident and it seems the trial judge and the defendant significantly relied on the plaintiff’s prior unrelated history to make a judgment.
Proposed ground 10
The trial judge erred by preferring historical out-dated and unrelated medical evidence unrelated to this proceedings of the defendant over the medical evidence relevant and related of the plaintiff.
[74]The original proposed ground refers to an affidavit dated 29 December 2018, however during the hearing of the appeal, Samaras confirmed that the correct date was 29 November 2018.
Proposed ground 11
The trial judge further erred by commenting and finding the plaintiff capable of managing his needs, life history, incarceration and his observation of the plaintiff in court as diligent and therefore unrelated to such proceedings as such shows prejudice with a bias judgment.

As foreshadowed above,[75] given the overlap of many of the proposed grounds, it is convenient to divide them into two broad groups: first, the substantive grounds; those that address the substantive questions of whether the judge erred in deciding the serious injury application and in assessing Samaras’ physical and psychiatric condition as a result of the second of the two transport accidents (proposed grounds 6, 9, 10 and 11); and second, the procedural grounds; those that address the procedural question of whether the judge erred in the procedural steps taken in the pre-hearing stages and in managing the hearing of the proceeding below (proposed grounds 1, 2, 3, 4, 5, 7 and 8). The latter category includes the allegation of bias and the allegation that the judge improperly made adverse findings about Samaras’ unreliability.
[75]See [6] above.

Did the judge err in his assessment of the serious injury claim? — the substantive grounds
(1)Did the judge err in not giving sufficient weight to Samaras’ medical evidence about the effect of the second transport accident? (ground 6)

Samaras submits that the judge failed to give sufficient weight to what he described as the overwhelming medical evidence demonstrating that the second transport accident aggravated his psychiatric condition. He points to the assessments made by Dr Anthony Sheehan, a psychiatrist engaged by Samaras’ solicitors to provide a medical assessment, Dr Entwisle, Dr Muir, and Dr Pokharel.

Samaras submits that the judge ignored the report dated 4 January 2013 from Dr Sheehan, who assessed Samaras’ psychiatric impairment at 20% in accordance with the Guide to the Evaluation of Psychiatric Impairment for Clinicians. It is true that the judge makes no mention of Dr Sheehan in the Reasons. However, this is not to say that he failed to take Dr Sheehan’s report into account.

Dr Sheehan apportioned between the primary and secondary psychological injury in this way:

In relation to apportionment of impairment, I consider that 15% is primary and directly related to the motor vehicle accident of June 2011 [the second transport accident], whilst 3% is secondary to his physical injuries and is therefore excluded, and 2% is related to his past history of treatment for anxiety and depression, his ongoing concerns regarding his serious health issues, and the recent breakdown in his relationship with his partner and is unrelated to the motor vehicle accident of June 2011.

Dr Sheehan recorded under the heading ‘Current Symptoms’ that Samaras ‘said that he has pain in his lower back, left hip, left arm and left shoulder. He described the pain as “6 or 7 out of 10”. He described the pain as knife-like.’ Dr Sheehan reported that Samaras said that he became irritable with cars, traffic and people, was edgy at home, and he said that the ‘pain’s killing me; I can’t bend to do things.’ Dr Sheehan reported that Samaras said that his sleep was disturbed and that he got anxious and sweaty, particularly when he was driving, and that he had increased vigilance when driving and experienced panic and palpitations. Later in the same report under the heading ‘Summary and Assessment’, Dr Sheehan noted that Samaras

report[ed] a number of physical effects following the accident, including pain in his back, right shoulder and arm. These symptoms continue and he has had various assessments indicating that the motor vehicle accident exacerbated pre-existing degenerative processes in his spine, and that this exacerbation persists.

With respect to the second transport accident Dr Sheehan said:

I consider the client’s current psychological conditions relevant to the accident that occurred on 5 June 2011 are:

(i) Chronic post-traumatic stress disorder; and

(ii) Mild adjustment disorder with depressed and anxious mood.

The difficulty with the assessment made by Dr Sheehan is that, although the report makes clear that he was made aware of the first transport accident, Dr Sheehan does not attempt to apportion Samaras’ psychological impairment between the first and second transport accident; indeed, in his assessment of percentage psychological impairment there is no mention of the first transport accident. This is likely attributable to the fact that when examined by Dr Sheehan, Samaras ‘denied any anxiety or psychological problems after that accident’. This is clearly inconsistent with the evidence Samaras gave.[76] Dr Sheehan’s report thus indirectly supported the judge’s finding that Samaras was an unreliable historian.
[76]See [23], [24], and [34] above.

Samaras also submits that the judge failed to give sufficient weight to the assessment by Dr Muir of the 10% whole person impairment emanating from his spinal injury[77] and the percentage psychiatric impairment made by Dr Entwisle as a result of the second transport accident. Dr Entwisle diagnosed generalised anxiety disorder which had stabilised and determined Samaras’ level of impairment in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, Second Edition, as follows: ‘A psychiatric impairment of 15%, 6% which occurs in relation to the accident (3% secondary and 3% non secondary in regard to pain and some mild traumatising symptoms) and the remainder, pre-existing.’[78]
[77]See [44] above.
[78]Emphasis added. Dr Entwisle noted on the first page of his report dated 8 November 2013, ‘Date of Accident: 5 June 2011 & 23 December 2010’.

As noted above,[79] the judge did refer to Dr Entwisle’s report in the context of finding that there was minimal psychiatric evidence about the effect of the second transport accident and noted that Dr Entwisle referred to ‘the car accident’ without identifying which accident. For example, in his November 2013 report, he noted that Samaras told him he could be irritable and tense, had mood swings, had anxiety and would become agitated, had lots of headaches and sweats, and that his thinking ‘was negative and contained reference to his ever present symptoms of anxiety which he considers have been worse since the accident.’[80] Although Dr Entwisle recorded a history given by Samaras that he said he was, during the examination on 30 October 2013, ‘in severe pain’ and ‘in agony just sitting there’, with pain at a level of 7/10 in his neck, left shoulder, left hip and across his back, so that he found it difficult to walk, twist or turn and was limited in his ability to bend and lift, Dr Entwisle observed that Samaras ‘sat in what appeared to be a normal way. There were no pain behaviours demonstrated.’
[79]See [35] above.
[80]Emphasis added. Dr Entwisle first saw Samaras on 27 June 2012 and at that time found him to be suffering from generalised anxiety disorder, and formed the view that ‘his anxious disposition and mood related difficulties whilst claimed by him to relate entirely to the accident were more relevantly related to psychosocial issues which were detailed’ (emphasis added). The attribution of the impairment was undifferentiated between the first and second transport accident.

There is a more general difficulty with the reliance Samaras placed on the percentage whole person impairments assessed by Dr Sheehan, Dr Muir and Dr Entwisle. The difficulty for Samaras is that percentage whole person assessments do not themselves address the question the judge had to answer as to whether Samaras had suffered a ‘serious injury’. This was made plain by Crockett and Southwell JJ in Humphries v Poljak[81] when they said:

It is impermissible in an attempt to ascertain if a ‘serious long-term impairment’ has been shown to exist to look to a number of ‘impairments’ not any one of which is a ‘serious long-term impairment’ and treat them as acting in total, as it were, to meet the requirement of the definition. [82]

[81][1992] 2 VR 129.

[82]Ibid 138.

In Etta v Taverner Hotel Group Pty Ltd,[83] this Court observed that the question of a whole person impairment is a distinct question from whether an applicant has a serious injury under the Accident Compensation Act 1985, although a medical assessment of a percentage whole person impairment will form part of the evidence that a judge may be required to take into account:
[83][2019] VSCA 209.

[The] percentages said little if anything about whether the injury was (as it was required to be) either a ‘permanent serious impairment or loss of a body function’ in relation to a physical injury, or a ‘permanent severe mental or permanent severe behavioural disturbance or disorder’ in relation to a psychiatric injury.
In an application under s 134AB(16)(b) of the Act, it is necessary for an applicant to establish the existence of an injury which comes within one of the paragraphs of the definition of serious injury in s 134AB(37). That in turn requires an applicant’s injury to satisfy the requirements of s 134AB(38)(c) in respect of a physical injury and s 134AB(38)(d) in respect of a psychiatric injury. Sections 134AB(38)(c) and (d) require a comparison between the consequences of an applicant’s injury and other cases in the ranges of possible impairments, losses and disorders. Specifically, ss 134AB(38)(c) and (d) provide:
(38) For the purposes of the assessment of serious injury in accordance with sub-sections (16) and (19) –

…
(c) an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of sub-section (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
(d) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of sub-section (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;

…

While in some cases a percentage whole person impairment might be capable of leading to an inference that a particular injury satisfies the requirements of s 134AB(38)(c) or (d) (for example, if the relevant injury involves irretrievable damage to, or loss of a body part, or the percentage is extremely high), the present is not such a case. But ordinarily, the percentage whole person impairment will only be one of the matters that may be required to be taken into account in determining whether the relevant injury satisfied the requirements of s 134AB(38) of the Act. In the present case, the percentage impairments referred to in the medical reports relied upon by the applicant are not of such a level (nor sufficiently tied to the relevant injury) that they assist the applicant in showing that the judge erred in failing to give him leave to commence a common law proceeding.[84]

[84]Ibid [36]–[38] (citations omitted).

The same principles apply with respect to the Act, and similarly, here, in our view, the percentage impairments were neither of such a level nor tied to the second transport accident as to be of real assistance.

The relevant percentage posited by Dr Entwisle was of 6% psychiatric impairment (and 9% pre-existing) and this was undifferentiated between the first and second transport accidents.[85]
[85]See [77]–[78] above.

While Dr Sheehan assessed Samaras’ psychiatric impairment at 20%, of which 15% was attributed to the second transport accident, this assessment was based on an examination during which Samaras denied any anxiety or psychological problems from the first transport accident in contradiction to the evidence he later gave.[86] Moreover, when Dr Sheehan expressed his conclusion on the second transport accident, he did so in conservative terms, namely, chronic post-traumatic stress disorder and mild adjustment disorder with depressed and anxious mood.[87]
[86]See [76] above.
[87]See [75] above.

This description was consistent with the observation made by Professor Doherty that Samaras ‘continues to take an anti-depressant medication in mild to moderate dosage [and the] pain-relieving medication is very light’.[88]
[88]See [60] above.

The percentage assessment by Dr Muir involved the combination of injuries to his lumbosacral and cervicothoracic spine, both of which he described as ‘level 2 minor injur[ies]’.[89]
[89]See [44] above.

With respect to the assessment made by Dr Pokharel, the judge clearly took his opinion into account,[90] but noted that Dr Pokharel expressed the view that there was a discrepancy between the score Samaras received on tests for depression and anxiety and his objective presentation at the time of testing.[91]
[90]Reasons [84]–[87], [91]–[93], [97]–[99].
[91]See [54] above.

In our view, the judge accepted, in particular, that Samaras had presented with significant psychiatric symptoms initially following the second transport accident. However, by January 2014 he was showing a pattern of improvement, and by October 2018 when he was examined by Professor Doherty not only was there no evidence to support a current psychiatric condition for which the second transport accident was a cause, but also Professor Doherty found gross inconsistency between the symptoms reported by Samaras and his objective presentation as well as the treatments he was receiving, including the very light pain relieving medication.[92] Those inconsistencies were clearly an important factor in the judge’s assessment of the medical evidence, including in the assessment of the report of ongoing pain contained in the earlier report in January 2013 by Dr Muir.[93]
[92]See [58]–[62] above.
[93]See [44] above.

In reviewing the medical evidence, the judge sought to disentangle the effects (both physical and psychological) of the first transport accident from that of the second transport accident.[94] This was necessary for the judge to do before he could determine that the impairment Samaras suffered as a result of the second transport accident was a serious injury. The medical evidence was not of great assistance in this regard. Samaras acknowledged before this court that the task faced by the judge in disentangling the medical evidence in order to distinguish between the pre-existing condition, the effect of the first transport accident, and then the effect of the second transport accident, was ‘very huge and complex’. Indeed, Samaras said he himself had trouble disentangling it.
[94]See [18]–[62] above.

In our view, the judge engaged in an extensive exercise in attempting to disentangle the pre-existing condition from the effects of the first, and then the second, transport accident and having done so, made no error in being unable to assess the effects of the second transport accident as being ‘fairly described at least as “very considerable” and certainly more than “significant” or “marked”’.[95]
[95]Humphries v Poljak [1992] 2 VR 129, 140.

We would not uphold ground 6.

(2)Did the judge err in failing to take into account an affidavit dated 29 November 2018? (ground 9)

Samaras says that the judge failed to take into account the affidavit sworn by him on 29 November 2018 in which he says he accurately deposed to the consequences of the two transport accidents,[96] including the problems he had with caring for his infant son. In that affidavit Samaras said, correctly, that his son was born in August 2011. He further deposed that since the two transport accidents he has suffered from worse physical and psychological pain compared with his pre-existing condition, which has led to

ongoing restricted neck movements, unable to fully extend my back, lift heavy items and continue to play sports, interact with my son was restricted, driving restricted and difficult to lie down on one spot due to pain especially sleeping.

[96]See [24] above.

By contrast, he deposed, prior to the first and second transport accidents,

there was minimum restriction and ongoing pain was minimal and [I] was able to enjoy life and move freely to some degree, where now I’m severely depressed and miserable and unable to be flexible as such.

He further deposed to being diagnosed with post-traumatic stress disorder, and suffering from mental stress and anxiety. This has led him to be

restricted in the ability to interact and do normal household chores, cooking as such cleaning and at that time unable to fully care for my son [being] a primary carer, relied on some help from my parents and then partner.

The affidavit includes the following paragraph, relied upon by the TAC, that indicates a change in Samaras’ ability to enjoy quality time with his son since the accidents:

The quality of life and enjoyment of life was to such extent I was able to enjoy quality time with my son and family but since the accidents, I have been in constant pain and the anxiety and mental state of health has played a major player in my health.

Samaras acknowledged that the judge specifically mentioned in the Reasons that Samaras relied on the 29 November 2018 affidavit.[97] However, he says that if the judge had taken that affidavit into account, he would have realised that the errors Samaras made during his cross-examination were genuine and honest, and were not an attempt by him to deceive the court. He also points to the medical evidence about him having short-term memory problems, and says that this has a significant effect on his memory and causes him confusion.
[97]Reasons [6].

The transcript of the first day of the hearing shows that Samaras read the content of this affidavit into evidence during his evidence in chief, including the material set out above,[98] and confirmed that it was truthful. The judge then asked him some questions, including in relation to what effect the first transport accident had on the activities that Samaras could do:
[98]See [94] above.

HIS HONOUR:       How did it affect you around the house?
MR SAMARAS:        Ah, can’t — wasn’t able to vacuum.
HIS HONOUR:        Pardon?
MR SAMARAS:        Wasn’t — not — not able to pick up a vacuum cleaner to vacuum, dust the house, cook, move furniture, do the bed linen, put my — my son to bed and also, obviously, I find it hard to go into the shower. I would have more baths because going in the shower I could stand, but not for too long and, then, going to the bath would be difficult ‘cause I can’t go have a bath see because, like, as soon as you bend over, especially bathing my son, was very difficult, on my — on my knees, partially.
HIS HONOUR:        And that was all the result of the first accident?
MR SAMARAS:        Of the first accident.[99]

[99]Emphasis added.

Samaras said that exchanges such as this, where the judge asked questions of him about his symptoms and capacity, confused him and showed that the judge was stepping into the shoes of counsel, rather than acting impartially and fairly, and trying to rush the proceeding.

It was against this background that, a short while later, the cross-examination commenced with counsel for the TAC asking about the evidence that Samaras had just given that he did not have difficulties caring for his son prior to the two transport accidents, but since the two accidents he did have difficulties.[100]
[100]See [65] above.

In our view, the judge did take into account Samaras’ affidavit of 29 November 2018. It is not the case that the affidavit is entirely accurate chronologically or that it can be contrasted with the evidence Samaras gave. Unfortunately, the affidavit of 29 November 2018, while it gave the accurate birthdate of the son, created confusion about whether Samaras had been able to care for his son more easily before the two accidents as opposed to after those accidents. Given the son was not born until months after both transport accidents there was confusion and uncertainty in the affidavit and this was exacerbated by the evidence given in response to the judge, and in cross-examination by counsel. The affidavit of 29 November 2018 underscored the unreliability of Samaras about the relevant sequence of events and their effects.

We would not uphold ground 9.

(3)Did the judge err in preferring historical and out-dated medical evidence unrelated to the proceeding? (ground 10)

Ground 10 relates to the judge’s reliance on the medical opinion of Professor Doherty.[101] Samaras submits that Professor Doherty had regard to medical evidence dating back to 1989 covering Samaras’ extensive medical history, and in particular that relating to an Accident Compensation claim he made in 1989 and a WorkCover claim he made in 1995, which were irrelevant. Moreover, Professor Doherty failed to include any mention of reports from Dr Sheehan or Dr Muir or any of the other specialists who diagnosed an impairment from the two transport accidents.
[101]See [59]–[62] above.

Samaras submits that the report of Professor Doherty shows that he was improperly influenced by Samaras’ criminal convictions to view him as being criminally motivated in bringing his serious injury application, and so his report was biased. Professor Doherty, who undertook the examination of Samaras at the Melbourne Assessment Prison, noted the following in his report:

With regard to criminal convictions, the plaintiff told me he has one count of perjury in 1998. He told me he had submitted a WorkCover claim and had another job and perjured himself in court about denying that he was at work at a certain place. He told me he received a nine-month suspended sentence.
He told me he has been convicted and placed in prison currently.

Then under the heading ‘Prognosis’, Professor Doherty wrote:

With regard to an individual forecast for outcome, it is favourable to the extent there is no diagnosable psychiatric condition currently present. There however, has been a focus on entitlements and also criminality.

During cross-examination Samaras asked Professor Doherty if he had been given his criminal history at any stage before or after the assessment. He denied that he had been given it, ‘absolutely not’. Samaras pointed out that there was a reference to his conviction for the offence of perjury in 1998 in Professor Doherty’s report. Professor Doherty clarified that he had thought the question had been whether he knew what offence Samaras was in prison for at the time of the medical assessment, which he did not. The judge then asked whether Professor Doherty relied upon the information that Samaras had been convicted of perjury in expressing his opinion about the level of psychiatric condition with which he presented. Professor Doherty replied ‘No, in no way, your Honour’ and emphasised that his opinion was based on there being a ‘disjunction’ between the symptoms Samaras reported and his presentation.

In our view, while there is mention of Samaras’ conviction for perjury in Professor Doherty’s report, this is merely recorded as a fact. More generally, as the TAC emphasised, the cross-examination of Professor Doherty did not reveal any change of mind about his highly critical assessment of Samaras. In our view, the judge was entitled to rely on Professor Doherty’s assessment.

We would not uphold ground 10.

(4)Did the judge err and show bias in finding that Samaras’ diligent conduct of his own case in court demonstrated he was capable of managing his needs? (ground 11)

Samaras submits that the judge was mistaken to think that because Samaras was able to present his case in court with reasonable diligence notwithstanding being self-represented and incarcerated, he was not experiencing psychological problems. He said that he had undertaken a great deal of preparation for his case, including writing everything down because of his memory problems. However, his ability to cope should not then have been used against him when it came to the judge assessing his current condition. Samaras submits that it is one thing to prepare for a court appearance, but the judge did not see Samaras away from that environment, when he was not coping and having nightmares, flashbacks, and experiencing anxiety. Nor could the judge see how he was suffering inside; indeed, even when he could appear to be calm, in his head he might be having visions and experiencing nervousness. He said that if the judge had observed him on a daily basis, he would have been shocked to see the way he was.

HIS HONOUR: What I will do is send you a document which sets out, explains how these cases work. That is, applications for serious injuries. And I think that I’m going to bring the case back to me in the near future, once I’ve got the folder, so that I can see what’s been done and I can explain to you — you’ll have read the document that I’ve given you about how serious injury cases are dealt with, and we can work out what can be done and should be done. But I’m not ---

MR SAMARAS: Yes.
HIS HONOUR: To just say, ‘Let’s come back in three months’, I’m not sure that that’s going to work because it is important that you have the opportunity to find someone to act for you. I understand that. I think you’ll be assisted, particularly having regard to your current confinement ---

MR SAMARAS: Yes.
HIS HONOUR: --- if someone who’s out in the community can assemble the evidence, but until — I don’t know what your prospects are of finding someone who will act for you, and you may think the prospects are good but there’s no way for me to determine that so I think I should work on the basis at this stage that you’re self-represented, you’re going to try and get some legal assistance, but if you don’t we should be working towards the preparation of your case by you insofar as you can do it, okay?

MR SAMARAS: I agree with you, your Honour.

The judge discussed whether the TAC would have Samaras medically examined and that this would need to be done at Samaras’ then location in Corio.

Samaras relies on a letter dated 1 March 2017 sent to him by his former solicitors, Ryan Carlisle Thomas, which states that they and the TAC were not able to schedule specialised medico-legal examinations of him while he was at the Hopkins Correctional Centre:

We confirm our previous advice that we are unable to proceed with your TAC claim whilst you are at Hopkins Correctional Centre.
We confirm that we (and the TAC) are unable to schedule specialised medico-legal examinations whilst you are at the Hopkins Correctional Centre, and confirm that the TAC have indicated that they are not going to make any offers of settlement until further medical evidence can be gathered in support of your claim.

He says that, having received that letter, he assumed that it was not open to him to try to organise his own medico-legal examinations while he was incarcerated, even though he was subsequently examined in 2018 in the Melbourne Assessment Prison by Professor Doherty and Mr Dooley.

In our view, it is clear that Samaras was given assistance by the judge to pursue his serious injury application after his solicitors ceased to act. Samaras agreed with the judge that the proceeding should be heard before he was due to be released from gaol in 2020. He was later assessed by medical practitioners for the TAC while in gaol. There was no insuperable obstacle to medical assessments taking place while he was in gaol. Most importantly, as discussed, it is clear from the transcript of 1 June 2018 that Samaras’ application for an adjournment was not based upon a request for time to obtain medical assessments. We reject the proposition that the judge refused to allow Samaras to adjourn the proceeding for the purpose of obtaining current medical assessments. There is no evidence for that proposition.

We would not uphold ground 2.

(3)Did the judge demonstrate bias and take into account irrelevant evidence about events in Samaras’ life, and did he err in treating Samaras as an unreliable witness due to his prior convictions? (grounds 3, 4 and 5)

Samaras submits that the judge predetermined the case against him. He submits that from the outset the judge appeared to focus on Samaras’ ‘life events’, including his criminal convictions which he says were conveyed to the court inappropriately,[111] as well as matters relating to Samaras’ partner and their son and the stress that caused him. In particular, he submits that the judge erroneously assumed that by bringing his serious injury claim, Samaras was persisting in engaging in criminal behaviour.
[111]See ground 7 below: see [157]–[159] below.

Samaras supports this ground by reference to the judge’s finding that he had serious doubts about Samaras’ reliability as a witness having regard to the erroneous evidence given by Samaras about the effect of the first transport accident on his ability to care for his infant son at a time when his son had not yet been born.[112]
[112]Reasons [9]. See [66] above.

Samaras also refers to the following exchange:

MS MYERS:Now, you’ve been convicted [of] perjury, haven’t you Mr Samaras?
MR SAMARAS: Yes, I have. Yes.

After this exchange the judge made the observation: ‘I think it may be relevant’.

Samaras also relies upon a number of questions he was asked in cross-examination about his criminal convictions:

MS MYERS:So you were convicted of four counts of blackmail?
MR SAMARAS:        Yes, I was.
MS MYERS:And you were sentenced in December of last year?
MR SAMARAS:        Yes, I was.
MS MYERS:It is the case, isn’t it, Mr Samaras, that you are willing to lie on oath or threaten for money?
MR SAMARAS:        Would you like me to explain to you in full in relation to blackmail before you make accusations or what you’re saying just then, that I’m blackmailing people.

HIS HONOUR:        You can just say, ‘No that’s not right’?
MR SAMARAS:        That’s not correct, no.
MS MYERS:What you are doing with this case as well is exaggerating your symptoms for financial gain, aren’t you?
MR SAMARAS:        Why would I be exaggerating my symptoms when my symptoms are document[ed] there fully by numerous specialists and I’m getting pain every day. There’s X‑rays and radiology results that confirm my illness, my illnesses, so I’ve got no reason to lie in regards to — two accidents I was involved in. If I wasn’t involved in accidents, I wouldn’t be sitting here.

While it may have appeared to Samaras that there was an undue emphasis upon his criminal convictions, in our view there was no adverse predetermination against him by the judge.

Indeed, an examination of the transcript of the beginning of the hearing reveals that the judge made it clear that the fact that Samaras came to the court as any plaintiff does and the fact that he was in prison was not, of itself, a relevant factor:

HIS HONOUR: But you come into this court as a plaintiff. There’s no pre-judgment of you. The fact that you’re serving a prison sentence, unless it has some relevance to this case, won’t influence my thought processes at all.[113]

[113]Emphasis added.

However, the fact that Samaras had a conviction for a dishonesty offence when giving evidence under oath, perjury, became especially relevant. As discussed, questions were raised about his reliability and credibility, both in the medical opinions and in cross-examination. The judge’s assessment of his evidence depended not only upon a judgment as to the accuracy of Samaras’ account of his symptomology and restrictions on his behaviour as reported to the medical practitioners, but also upon whether he could be accepted as giving evidence honestly; that is, whether he was a witness of truth.[114] His prior criminal conviction for perjury was clearly relevant in this context and the judge was entitled to take it into account.
[114]Mason v Transport Accident Commission (2014) 68 MVR 474, 498 [102]; [2014] VSCA 267; Gjorgovska v AFM Cleaning Services Pty Ltd [2006] VSCA 104 [27].

During his cross-examination Samaras conceded that he pleaded guilty to, and was convicted of, perjury in 1998, following a reference to the Attorney-General by the judge in a WorkCover claim brought by Samaras, after Samaras made a false statement on oath when giving his evidence. Samaras said he was given a suspended sentence for that charge. Samaras also acknowledged that he had been convicted of four charges of blackmail and sentenced to the term of imprisonment he was then serving, although the judge indicated that it was not appropriate for counsel for the TAC to ask about the circumstances giving rise to those convictions. This indication by the judge in itself shows that he was not permitting a general concern about Samaras’ criminal behaviour to influence the proceeding.

With respect to the questions about Samaras’ conviction for perjury, counsel for the TAC was entitled to put these matters to Samaras in cross-examination, and the judge was entitled to have regard to them, pursuant to the exception to the credibility rule,[115] which permits a witness to be asked whether he or she has knowingly or recklessly made a false representation when he or she was under an obligation to tell the truth. Section 103 of the Evidence Act 2008 provides:
[115]Section 102 of the Evidence Act 2008 provides: ‘Credibility evidence about a witness is not admissible.’

103 Exception—cross-examination as to credibility
(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.
(2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to—
(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and
(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

In any event, as described above, there were several matters that left the judge in a position where he could not be confident of the extent of the physical or psychological impairment flowing from the first and second transport accidents regardless of Samaras’ criminal history. Medical reports queried the reliability of Samaras in giving an account of his own history and of the symptoms he suffered from — including those from Dr Wadsley,[116] Mr Dooley,[117] Dr Entwisle,[118] Dr Pokharel,[119] and Professor Doherty.[120] It was necessary for the judge to have regard to those opinions. The evidence Samaras gave demonstrated his unreliability as to the impact of the first and second transport accidents upon his physical and psychological state.[121] There were further inconsistencies between Samaras’ own evidence about his symptoms and the impact of the transport accidents and the reports he had given to medical practitioners.[122] It was necessary for the judge to have regard to all of this evidence. There was no unfairness in the judge’s approach.
[116]See [30] above.
[117]See [46] above.
[118]See [78] above.
[119]See [54] above.
[120]See, for example, [59]–[62] above.
[121]See, for example, [64]–[66] above.
[122]See [67] above.

However, Samaras relies upon Davies v Nilsen[123] as a case where the applicant’s credibility was challenged but where, nevertheless, she was granted leave to appeal and the appeal was allowed. Indeed, the applicant was described as ‘belligerent, fractious and emotional in answering questions which probed her credit’.[124] The primary judge dismissed the application and in doing so rejected the unchallenged evidence of the applicant’s mother about the applicant’s injuries. On the appeal, the Court held that the judge had, wrongly, decided causation on the basis of only part of the evidence and had wrongly rejected the mother’s evidence. However, the Court also emphasised that the accident involved a very considerable impact as a result of which the applicant’s car was ‘written off’. Before the accident the applicant had been a healthy 24 year old woman with no prior history of lower back injury, but subsequently there was evidence of abnormalities in her lower back.
[123][2014] VSCA 278 (‘Davies’).
[124]Ibid [91].

In our view Davies is distinguishable. It did not give rise to the disentangling problem that arises here. In Davies the objective medical evidence showed that the applicant did have the injuries she claimed — indeed, the TAC conceded that if causation was established, then the injuries met the ‘serious injury’ test — and no other cause for the injuries had been suggested. Here, there is no concession by the TAC that the injuries claimed by Samaras satisfy the ‘serious injury’ test. Indeed, the TAC says that the objective medical evidence, including the tests and scans and the treatment regime, are inconsistent with there being any persistent serious physical or psychiatric injury. Further, the evidence given by Samaras at trial was, as mentioned, unreliable, being vague and confused, and containing a number of inconsistencies, such that it could not be said that Samaras has discharged the onus of proof needed to establish that any symptoms that he might now have were caused by the first or second transport accidents.

It is important to recognise, however, that unreliability is not determinative of a plaintiff’s claim. It is necessary to determine a plaintiff’s claim on the whole of the evidence. As Beach and Niall JJA said in Yilmaz v Speciality Fashion Group Ltd,[125] by reference to the reasoning of the judge below in that case:

[T]he judge correctly observed that in serious injury trials the credit of the plaintiff will often be critically important. The judge went on, however, to observe (again, correctly) that despite the importance of credibility or reliability, it was incumbent upon the Court not to disregard reliable medical evidence merely due to concerns about the applicant’s credibility. The case had to be decided on the whole of the evidence.[126]

[125][2019] VSCA 100.

[126]Ibid [73] (citations omitted).

However, as the Court noted in Mason v Transport Accident Commission,[127] a claimant’s reliability is ‘especially important when what is in issue is psychiatric opinion on a condition where the diagnostic criteria depend upon the claimant’s report of subjective feelings’.[128] Here, given that Samaras had relevant pre-existing conditions, there were multiple accidents and medical opinions that were seriously critical of Samaras’ presentation and reported symptomology, it was critical for the judge to assess Samaras’ reliability and credibility in order to determine whether either of the physical or psychiatric impairment could be classified as a ‘serious injury’ under the Act.
[127](2014) 68 MVR 474; [2014] VSCA 267.
[128]Ibid 498 [101].

On this issue, in the circumstances, the judge had the distinct advantage of seeing and hearing Samaras give his evidence and be cross-examined. As Brooking JA observed in Mobilio v Balliotis:[129]

[W]here, as is often the case when personal injuries are in question, the opinions of medical experts are to a considerable extent dependent upon the accuracy of the claimant as historian, the advantage which the primary judge has in assessing the claimant’s credibility assumes an importance that is, so to speak, both direct and indirect, when the judge comes to evaluate the lay and expert evidence that has been given.[130]

[129][1998] 3 VR 833.

[130]Ibid 836.

Furthermore, the judge’s assessment of Samaras’ reliability and credibility was supported by objective evidence as outlined above. We consider that the TAC was correct to submit that here the unreliability of Samaras as to the sequence of events and the impact of each of those events upon him inevitably created a significant hurdle for him to overcome.

We would not uphold grounds 3, 4, and 5.

(4)Did the judge err in accepting evidence about Samaras’ convictions that had been the subject of a suppression order? (ground 7)

Samaras submits that he was caught by surprise at the mention of his convictions at the hearing and was confused about whether or not he was entitled to object to questions being asked about them, and so assumed he was not entitled to object. He alleges that, without his knowledge or consent, counsel for the TAC made an improper approach to the judge’s associate on the morning of the first day of the hearing to ask for assistance in locating documents relevant to Samaras’ criminal history, which had been suppressed, although he said the suppression order had lapsed. Samaras submits that such an approach was not only inappropriate, it breached the overarching obligations applicable in civil proceedings which require parties to communicate with each other. Samaras also submits that the convictions were entirely unrelated to the transport accidents and so the judge, by having regard to them, took into account irrelevant material which he ought not to have done.

Samaras also submits that during his closing submissions he asked the judge to exclude his convictions from consideration. He did that partly on the basis that the conviction for perjury was 20 years old, and partly on the basis that his serious injury application should be judged on its merits and not having regard to any prior convictions. He had the following exchange with the judge:

MR SAMARAS: Having any prior criminal conviction should not deter such determination in these proceedings, as I’m entitled to be judged on my circumstances in the merit of the claim. There’s a difference between forgetful, deliberate and misleading.
HIS HONOUR: Mr Samaras, I agree with everything you said, but you can continue to say it. But, you know, as I said, yesterday, and I should make it clear, the fact that you are in prison, that involves punishment. Now, I’m not here to punish you and I’ve had plenty of cases where people have served prison sentences and I find them to be reliable and believable. So, and as I’ve said, if there’s something that is line ball and I’m not sure about it, I do have to take into account your history.

MR SAMARAS: Of course.

We have sought to explain above the relevance of Samaras’ criminal history to the issues that were before the judge.[131] The judge did not err by taking into account Samaras’ criminal history. Furthermore, there is nothing to suggest that the judge’s associate assisted the TAC by providing information about Samaras’ criminal history.
[131]See [146]–[148] above.

We would not uphold ground 7.

(5)Did the judge err by not accepting Samaras’ explanation for the errors he made during his cross-examination? (ground 8)

Samaras submits that the judge was wrong not to accept the explanation given when Samaras realised he had become confused about the dates of the two accidents in relation to the birth of his son.[132] He says he made a mistake; clearly he could not have looked after his son as he had described before his son was born. However, he insists that the evidence he gave about the restrictions caused as a result of the two transport accidents he experienced after his son was born was truthful, even if he became confused about the dates.
[132]See [64] above.

The difficulty for Samaras’ argument is that, as mentioned, in order for the judge to draw any conclusion as to whether Samaras had suffered a serious injury from either the first or second transport accident, he was obliged to apply a test involving a consideration of the ‘before and after’ circumstances.[133] That is, he had to consider Samaras’ spinal pain and psychiatric condition before either accident and then compare that, first, with Samaras’ spinal pain and psychiatric condition after the first transport accident, and then, secondly and separately, his spinal pain and psychiatric condition after the second transport accident. It was necessary for the judge to make a confident assessment of the extent of the impairment Samaras suffered by reason of each accident, respectively. This in turn required a confident, if not exact, understanding of the chronological sequence of the deterioration of Samaras’ symptoms and incapacities. The inconsistency in Samaras’ evidence was not limited to dates; his memory of the events of being able to bathe and look after his son before either accident was plainly false. In our view, the judge was entitled to reject the explanation proffered by Samaras for the errors he made in cross-examination.
[133]See [17] above.

Set against that background, the process of disentangling the consequences of each transport accident became insuperable. In the circumstances, it is unsurprising that the judge was unable to reach the conclusion that Samaras had suffered a serious injury by reason of either the first or second transport accidents.

We would not uphold ground 8.

Conclusion

There has been no error demonstrated.

Moreover, the prospects of success on the appeal were not real.

We would refuse leave to appeal.

---

[2019] VSCA 255

11 November 2019