Kovacic v Transport Accident Commission
[2016] VSCA 139
•15 June 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2016 0053 | |
| NEDELJKO KOVACIC | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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| JUDGES: | WEINBERG and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 15 June 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 139 |
| JUDGMENT APPEALED FROM: | [2016] VCC 346 (Judge Misso) |
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ACCIDENT COMPENSATION – Transport accident – Appeal – Application for leave to appeal and appeal against orders refusing application under s 93 of the Transport Accident Act 1986 – Consent orders proposed granting leave to appeal, allowing appeal and remitting matter for rehearing – Whether proposed orders appropriate – Consent orders appropriate – Consent orders made – Newton v Geelong Ethnic Communities Council Inc [2011] VSCA 59 applied – Transport Accident Act 1986, s 93.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance | Zaparas Lawyers Pty Ltd |
| For the Respondent | No appearance | Solicitor for the Transport Accident Commission |
WEINBERG JA
BEACH JA:
Introduction
On 22 June 2008, the applicant was involved in a transport accident. On 21 February 2014, the applicant commenced a proceeding in the County Court, against the respondent, seeking an order pursuant to s 93 of the Transport Accident Act 1986 (‘the Act’) for leave to commence a proceeding for the recovery of common law damages in respect of injuries the applicant alleges that he suffered as a result of the accident. In the proceeding below, the specific injury relied upon by the applicant was an injury to his neck. The applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Act, contending that the injury to his neck constituted a ‘serious long-term impairment or loss of a body function’.
The applicant’s proceeding came on for hearing before the County Court in March of this year. The only witnesses to give viva voce evidence on the hearing were the applicant, the applicant’s wife and a treating general practitioner (Dr Pjesivac). The balance of the evidence was documentary evidence consisting largely of affidavits, medical reports and surveillance films taken of the applicant.
On 7 April 2016, the primary judge dismissed the applicant’s proceeding.[1] On 3 May 2016, the applicant filed an application for leave to appeal, a written case and a draft summary for the Court of Appeal. However, on 2 June 2016, the parties filed minutes of consent orders. The minutes of consent orders seek orders from this Court that the applicant be granted leave to appeal; the appeal be allowed; the judgment given, and orders made, in the County Court on 7 April 2016 be set aside; the applicant’s application for leave pursuant to s 93 of the Act be remitted to the County Court for rehearing by a different judge from the judge at first instance; the costs of the hearing before the primary judge be reserved to the judge conducting the rehearing; and the respondent pay the applicant’s costs of the application for leave to appeal and the appeal.
[1]Kovacic v Transport Accident Commission [2016] VCC 346 (‘Reasons’).
Even though such an application is by consent, as has been said before,[2] it can succeed only when this Court is satisfied that the judgment under appeal, and the orders made pursuant to it, are wrong - or at least sufficiently problematic to warrant that they be set aside and a new hearing ordered. As this Court pointed out in Newton v Geelong Ethnic Communities Council Inc, the Court must:
… be affirmatively satisfied that the proceeding should be remitted to the County Court for re-hearing. Any such disposition by this Court has resource implications for the administration of justice … and involves costs to the community. In addition, it is desirable, in the interests of justice, that if the matter is to be re-heard, any error made at first instance is not replicated.[3]
[2]Hennes v Hobsons Bay City Council [2012] VSCA 215 [7] (‘Hennes’).
[3][2011] VSCA 59 [17].
We therefore turn to consider for ourselves whether the proposed remitter is appropriate.[4]
[4]Hennes [2012] VSCA 215 [8].
The bases upon which the consent orders are sought
On 3 June 2016, the parties filed a joint memorandum signed by their respective senior counsel. That memorandum relevantly states:
1. The reasons for judgment do not adequately disclose –
(a)the primary judge’s findings in relation to the accepted consequences of the applicant’s impairment to his cervical spine; or
(b)the path of reasoning that led the primary judge to conclude that the accepted consequences of that impairment, evaluated as a whole, were not at least ‘very considerable’.
2.The respondent therefore accepts that the applicant will succeed in establishing proposed grounds of appeal 1 and 4, with the necessary consequence that the decision must be set aside.
Having regard to the content of paragraph 2 of the parties’ joint memorandum, it is necessary to set out proposed grounds of appeal 1 and 4. Proposed grounds of appeal 1 and 4 provide:
1.The primary judge erred in law by applying the wrong test in determining whether the applicant’s injuries satisfied the criteria in s 93(17)(a) of the Transport Accident Act 1986 in that:
(a)he focussed on what the applicant had lost in respect of his capacity to engage in social, domestic and recreational activities rather than applying the test in Humphries v Poljak;[5] and
[5][1992] 2 VR 129.
(b)he failed to properly consider whether the applicant’s consequences could reasonably and properly be considered as serious (see paragraph 11 of the written case for the applicant).
…
4.The reasons of the trial judge are inadequate in that they:
(a)failed to show a cogent path of reasoning; and
(b)failed to identify or have regard to the extent of the pain and suffering currently suffered by the applicant.
Having regard to the terms of proposed ground of appeal 1, it is also necessary to set out paragraph 11 of the applicant’s written case. Paragraph 11 of the applicant’s written case states:
In approaching the Application on the basis that the Applicant had put his case on a ‘fairly limited basis’, the primary Judge did not approach his consideration of the Applicant’s consequences by reference to whether or not they could be described as ‘serious’. Wrongly, he failed to properly consider the consequences as found by him, namely –
·that the Applicant had suffered neck pain with a right sided C7 radiculopathy;
·the Applicant had suffered neck pain, stiffness and recurring headaches up until surgery;
·in the words of the Judge at [78] of the Judgment, the Applicant underwent major spinal surgery on 28 January 2014, when Mr Drnda performed a C6–7 anterior cervical discectomy and fusion;
·the Applicant had been reviewed by Mr Drnda on several occasions post surgery and that Mr Drnda opined that the Applicant at last review on 25th March, 2015, that the Applicant (sic) had been left with chronic neck pain;
·the Applicant had required ongoing conservative treatment;
·the Applicant had developed dysphonia following the surgery, namely an impairment of the ability to make voice sounds;
·the Applicant had developed cervico-genic headaches, related to his neck injury;
·the Applicant’s medication as at date of hearing and relevant to the compensable neck injury was the use of Targin (4 per day), Lyrica (2 per day) and Panadeine Forte (4–6 per day); and
·the Applicant’s treating GP, Dr Andrianakis, had recommended ongoing physiotherapy.
As to the remittal to the County Court of the application for leave to commence a proceeding, the joint memorandum goes on to say that the credibility and reliability of the applicant and his wife were significant issues at the hearing and that, in the circumstances, the parties agree that the Court of Appeal would not be well placed to determine for itself the applicant’s s 93 application.
The primary judgment
The applicant’s claim at first instance was based upon the pain and suffering consequences said to have been caused by the injury to his neck in the transport accident on 22 June 2008. There was no claim in respect of any ‘pecuniary loss’ consequences. This was because, at the time of the transport accident, the applicant was not in employment as a result of an earlier injury suffered by him in an industrial accident that occurred in October 2000.
The judge identified three issues at trial: first, whether the applicant’s neck injury was caused by the transport accident;[6] secondly, the applicant’s creditworthiness and reliability’;[7] and thirdly, the necessity to separate consequences attributable to the neck injury from consequences attributable to ‘[the applicant’s] lower back injury and [his] right shoulder injury’.[8]
[6]Reasons [4].
[7]Ibid [5].
[8]Ibid [6].
The judge found for the applicant on the issue of causation.[9] However, after a detailed analysis of the evidence, the judge concluded that the ‘creditworthiness and reliability [of the applicant] had been seriously undermined’.[10] As to the applicant’s wife, the judge said that he was ‘left with the uneasy feeling that she was not being candid in her answers [in cross-examination] concerning [an] apparent contradiction in her affidavits regarding the [applicant’s] level of activity following the transport accident’.[11]
[9]Ibid [19].
[10]Ibid [54].
[11]Ibid [58].
On the issue of creditworthiness and reliability, the judge concluded:
I have an understandable reluctance to accept the [applicant’s] evidence or that of his wife, save for instances where other evidence leaves me with some confidence that what the [applicant] has said is probably true. I consider the [applicant’s] creditworthiness and reliability to be seriously undermined, not in the reporting of an incident and the occurrence of an injury, but rather in what amounts to a gross exaggeration of the consequences of that injury.[12]
[12]Ibid [65].
Next, the judge dealt with a submission made by the respondent concerning a subsequent transport accident in which the applicant was involved in May 2012. After analysing the evidence in respect of this accident, the judge concluded that the subsequent accident did no more than cause a ‘passing increase in the symptoms previously experienced’ by the applicant.[13]
[13]Ibid [74].
The judge then turned to the consequences of the June 2008 transport accident. The judge accepted that the applicant suffered the following consequences as a result of this accident:
·The [applicant] suffered neck pain with right-sided C7 radiculopathy, which had probably been developing by the time the [applicant] saw Dr Pjesivac in November and December 2008.
·The presence of the neck pain and the radiculopathy was first diagnosed by Mr Drnda in late September 2009, after he examined the [applicant] on 30 September 2009 with the advantage of the MRI scan taken on 1 September 2009.
·The diagnosis made by Mr Drnda is consistent with, and confirmed by the diagnosis made by Professor Davis in March 2011.
·The [applicant] continued to experience neck, right shoulder and arm pain. That is clear, because Dr Adrianakis referred the [applicant] for review by Mr Drnda on 23 September 2013 for management of the [applicant’s] neck and arm pain. Dr Adrianakis treated the [applicant] from November 2009. During the period he treated the [applicant] and up to the date when the [applicant] had surgery, the [applicant] complained of neck pain, stiffness in his neck and recurring headaches. In April 2010, the [applicant] reported that he was suffering from daily severe neck pain.
·The [applicant] underwent major spinal surgery on 28 January 2014. Mr Drnda performed a C6–7 anterior cervical discectomy and fusion.
·The [applicant] was reviewed by Mr Drnda on 14 March 2014, 28 November 2014, 18 March 2015 and 25 March 2015. He considered that the radiculopathy had subsided, and that the [applicant’s] post-operative course was favourable. The [applicant] described different pain in his right shoulder and arm, which Mr Drnda considered was consistent with shoulder pathology. This is something which Mr Kossman commented on from the perspective of his orthopaedic specialty.
·Although Mr Drnda considered that the [applicant] was partially incapacitated for employment and that his quality of life was diminished to some extent, he concluded that the [applicant] had a mild disability resulting from his neck injury; however, he also described the neck injury as resulting in a partial incapacity, which the [applicant] would suffer indefinitely. It is difficult to know what he meant by a ‘partial incapacity’ because he did not explain what that was linked to. Usually an expression such as that is a reference to a retained capacity for work. It is unusual to see it used to describe any impact upon an injured person’s capacity to engage in social, domestic and recreational activities.
·Dr Adrianakis continued to treat the [applicant] post-surgery. He referred the [applicant] to have a further MRI scan, which he interpreted to demonstrate residual compression of the C7 nerve root. He said that the [applicant] was subsequently reviewed by Mr Drnda in March 2015, who apparently confirmed the residual C7 compression; however, Mr Drnda saw the [applicant] on 25 March 2015, but said nothing about a further MRI scan or there being residual C7 compression. Dr Adrianakis recorded the complaints of the [applicant] post-surgery of ongoing neck pain and neck stiffness. He considered that the [applicant] had a poor prognosis; however, that prognosis appears to include the constellation of the [applicant’s] medical problems including his lower back, right shoulder and arm.
·The [applicant] developed dysphonia following the surgery. It is the impairment of the ability to make voice sounds. Mr Drnda was informed by the [applicant] of that development. By implication, it would appear that the development of it is temporally connected with the surgery.
·The [applicant] developed cervicogenic headaches, which are related to his neck injury.
·The [applicant’s] present medication regime relevant to the treatment of his neck injury comprises the use of Targin (four per day), Lyrica (two per day) and Panadeine Forte (four to six per day). He was previously prescribed Endone and diazepam post-surgery.
·Dr Adrianakis advised the [applicant] to undergo physiotherapy. Dr Adrianakis has not commented on whether the [applicant] had any rehabilitation treatment, but the [applicant] said that he saw Mr Ziros, chiropractor, Ms Pennas, physiotherapist, and Mr Lejeak, chiropractor, post-surgery. No reports were obtained from any of those practitioners.[14]
[14]Ibid [78].
As a result of the judge having available to him medical evidence concerning the applicant’s back injury suffered as a result of the industrial accident in October 2008, the judge was able to make a better comparison (than is often able to be made in cases of this kind) between the applicant’s level of functioning before the transport accident and the applicant’s level of functioning after the transport accident. Having examined all of the evidence (including medical reports written before the time of the transport accident, and surveillance film of the applicant) the judge concluded that the evidence suggested that despite the applicant having had neck surgery, he had retained a capacity to function that appeared to be unaltered from his capacity as it was before the transport accident.[15]
[15]Ibid [87].
As to whether the consequences of the applicant’s injury suffered in the transport accident were serious, the judge said:
I am not satisfied that the consequences of the impairment to the function of the [applicant’s] neck are serious. If I am to assess the [applicant’s] consequences of the surgery and its aftermath, there appears to me to be very little that the [applicant] has lost by way of social, domestic and recreational activities to support his claim.
For reasons already discussed, I do not accept that the [applicant] has been entirely forthcoming regarding his true level of pain and disablement following the car accident in 2009, and up until at least 2011. I consider that the film demonstrates that the [applicant] grossly exaggerated the consequences of both the prior back injury and the neck injury, and that he was able to function at a much higher level of activity than he was prepared to admit when presenting to medical practitioners.
The [applicant’s] claim therefore rests on the consequences that I have described above. I prefer Mr Drnda’s opinion regarding the degree of the [applicant’s] residual capacity over the opinion of Dr Adrianakis, because he performed the surgery, and was probably in the best position from the perspective of his medical specialty to determine its rate of success, and the extent to which it relieved the [applicant] of the radicular pain. Dr Adrianakis’ prognosis appears to include the constellation of the [applicant’s] medical problems including his lower back, right shoulder and arm.
I accept Mr Drnda’s prognosis that the [applicant] continues to suffer pain and incapacity due to his neck injury; however, I do not consider the consequences that flow from that incapacity satisfy the statutory test for seriousness. Mr Drnda considered that the radiculopathy has subsided and that the [applicant’s] post-operative course was favourable. Whatever pain the [applicant] continues to suffer in his right shoulder and arm are probably due to discrete pathology in his right shoulder.
I consider that the impairment of the function of the [applicant’s] neck injury might approach being moderate; however, there is very little, if anything, I can accept the [applicant] has lost in the sense of his capacity to engage in social, domestic and recreational activities, and certainly he has not suggested that he has suffered any pecuniary disadvantage. I do not consider that the surgery and the [applicant’s] regime of medication are enough to satisfy the statutory test.[16]
[16]Ibid [91]–[95].
The concession as to error
The judge’s reasons for rejecting the applicant’s case centred on what the applicant had lost by way of social, domestic and recreational activities.[17] While what has been lost by way of social, domestic or recreational activities has the capacity to bear upon the seriousness of the consequences of an injury,[18] it is of course all of the relevant consequences of an injury that must be considered in determining whether or not an applicant has satisfied the ‘very considerable’ test referred to in Humphries v Poljak.[19] In the present case, that required the judge to take into account all of the ‘pain and suffering’ consequences of the applicant’s neck injury in addition to what might have been lost by way of social, domestic or recreational activities.
[17]Ibid [91].
[18]Dwyer v Calco Timbers Pty Ltd(No 2) [2008] VSCA 260 [27]; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 [44].
[19][1992] 2 VR 129.
On the judge’s own findings, there were (at least) significant pain consequences that resulted from the applicant’s neck injury. These consequences were summarised in paragraph 11 of the applicant’s written case[20] and in [15] of our reasons above. Having considered the material for ourselves, we think there is force in the respondent’s concession that these matters were either not properly considered by the judge; or, if they were considered, the rejection of them as matters sufficient to satisfy the ‘very considerable’ test, was not adequately explained by the judge. The judge’s rejection of the applicant’s claim, in the face of facts found and accepted by the judge,[21] could not merely be explained by a conclusion that the applicant ‘was not entirely forthcoming’ or had ‘grossly exaggerated’. Those conclusions may for present purposes be accepted. However, that still left the judge to deal with the consequences of injury that he had been prepared to accept on the whole of the evidence. In the result, we accept the respondent’s concession of error on the part of the primary judge.
[20]See [8] above.
[21]See [15] above.
Remitting the proceeding
The credibility of the applicant was (and is) very much in issue in this proceeding; as was (and is) the credibility of the applicant’s wife. The parties are correct in submitting that this Court is not well placed to determine for itself the applicant’s s 93 application. A court that has the benefit of seeing and hearing the applicant and his wife give evidence will be considerably better placed than this Court to determine the merits of the applicant’s claim. In the circumstances, we will order the remittal of the proceeding to the County Court for rehearing by a different judge from the primary judge.[22]
[22]Cf Murphy v Victoria (2014) 45 VR 119, 151–153 [106]–[111].
Conclusion
We will make orders granting the applicant leave to appeal; allowing the appeal; setting aside the orders made in the County Court on 7 April 2016; remitting the applicant’s application for leave to commence a proceeding, pursuant to s 93 of the Act, to the County Court for rehearing by a different judge from the judge at first instance; reserving the costs of the hearing before the primary judge to the judge conducting the rehearing; and requiring the respondent to pay the applicant’s costs of the application for leave to appeal and the appeal.
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