Palmer v Transport Accident Commission

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0029

JANET PALMER	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	NIALL, WALKER and MACAULAY JJA
WHERE HELD:	Geelong
DATE OF HEARING:	27 August 2024
DATE OF JUDGMENT:	30 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 254
JUDGMENT APPEALED FROM:	Palmer v TAC [2024] VCC 43 (Judge Tsikaris)

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ACCIDENT COMPENSATION – Transport accident – Serious injury – Application for leave to commence common law proceeding – Neck injury – Pre-existing shoulder injury – Whether judge erred in concluding that applicant had not suffered serious injury – No error in judge’s approach or conclusion – Whether judge erred in considering evidence regarding pecuniary disadvantage and employment limitations – No error established – Whether judge’s reasons sufficiently disclosed path of reasoning – Judge’s reasons adequate – Leave to appeal refused.

Transport Accident Act 1986, s 93.

Connelly v Transport Accident Commission (2024) 73 VR 257; Humphries v Poljak [1992] 2 VR 129; Hunter v Transport Accident Commission [2005] VSCA 1; Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232; Transport Accident Commission v Zepic (2013) 65 MVR 32; Warren v Coombes (1979) 142 CLR 531, applied – Dressing v Porter [2006] VSCA 215, considered.

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Counsel
Applicant:		Mr ADB Ingram KC with Mr P Haddad
Respondent:		Mr J Ruskin KC with Mr D Oldfield
Solicitors
Applicant:	Nevin Lenne & Gross Solicitors
Respondent:	Solicitor to the Transport Accident Commission

NIALL JA
WALKER JA
MACAULAY JA:

Introduction

In January 2017, the applicant was involved in a transport accident which resulted in injury to her neck. In April 2016, around nine months earlier, the applicant had injured her left shoulder through an injury sustained in the course of her employment.
On 2 September 2021, the applicant sought leave by originating motion pursuant to s 93(4)(d) of the Transport Accident Act 1986 to bring proceedings for the recovery of damages for the injury alleged to have been sustained in the transport accident. In order to obtain that grant of leave, the applicant was required to establish that she had suffered a ‘serious injury’ within the meaning of s 93(4)(d) of the Act.
A judge of the County Court dismissed the proceeding, finding that, while the applicant had suffered a spinal injury, the applicant had not ‘disentangled’ the consequences of that compensable injury from those resulting from her earlier workplace injury. Further, the judge found that the pain and suffering and the pecuniary consequences of her injuries as a result of the transport accident were not ‘very considerable’ and ‘more than significant or marked’.[1]
[1]Humphries v Poljak [1992] 2 VR 129, 140 (Crockett and Southwell JJ) (‘Humphries’).
The applicant now seeks leave to appeal the judge’s decision on three proposed grounds:
1 The trial judge erred in the application of Humphries v Poljak [1992] 2 VR 129, 140 to the whole of the evidence adduced at trial, and ought to have determined that the applicant had established ‘serious injury’ within the meaning of s.93(4)(d) of the Transport Accident Act 1986.
2 The trial judge failed to fully or adequately consider the evidence adduced by the applicant addressed to pecuniary disadvantage and limitations on future employment.
3 The reasons for judgment do not disclose an adequate process of reasoning to demonstrate why upon the proper application of Humphries v Poljak [1992] 2 VR 129, 140 to the whole of the evidence the applicant’s application was refused.
For the reasons that follow, we would refuse leave to appeal.

Factual background

The applicant, who migrated to Australia from England, initially worked in personal care before completing training to work as a nurse. She worked for around seven to eight years in aged care before commencing work with North East Health in 2008.
In around 1990, the applicant was involved in a transport accident and sustained a whiplash injury but made a full recovery. She returned to full-time duties without any ongoing restrictions.
On around 7 April 2016, the applicant injured her left shoulder in the course of her employment with North East Health when she was rolling a heavy patient who weighed approximately 140 kilograms. Despite the injury, the applicant returned to work for North East Health on modified duties and reduced hours. She ultimately returned to work for 20 hours per week with some physical restrictions that were not sufficient to preclude her from working with patients and toileting ambulant patients.
On 18 January 2017, the applicant suffered injury when a vehicle driven by an elderly person did not give way and collided with the applicant’s vehicle. Ambulance Victoria attended the scene and the applicant was put in a neck brace and was transferred to North East Health.
Following the injury, the applicant did not work for one to two months before eventually returning to work for (again) 20 hours per week. On her return to work, her duties involved desk reception work, taking temperatures and computer work, which she said caused her to suffer increased neck pain and shoulder pain.
On her return to work, the applicant was earning $30.37 per hour (or $607.40 per week) gross to perform her work duties. At 20 hours per week, the applicant’s annual earnings were approximately $31,584.80 gross per year, excluding superannuation.
The applicant has a long history of dog breeding, grooming and showing and she took long service leave in February 2021 to take care of her Manchester Terrier dog that was due to have puppies. She was unable to return to work after that period of leave due to right shoulder symptoms. She has thereafter been in receipt of sickness benefits due to her neck and shoulder injuries.

Treating medical practitioners

Prof Richard Bittar

The applicant was referred to Prof Bittar, neurosurgeon and spinal surgeon, by her general practitioner. Prof Bittar assessed the applicant on 4 December 2017. He noted that she presented with a ‘somewhat complicated clinical picture’ given both the workplace injury and transport accident injury. The applicant reported ‘minor left-sided neck pain’ following cortisone injections in or around the left shoulder. She experienced neck pain following the transport accident injury as well as pain radiating through her left arm and into the forearm with associated tingling throughout her left hand. Prof Bittar diagnosed the applicant with minor degenerative anterolistheses at C3/4, C4/5 and C5/6. He concluded that the applicant’s neck pain was ‘predominantly left‑sided and midline’. Her treatment included physiotherapy, Panadol Osteo and Endep.
On review on 4 June 2018, Prof Bittar noted that the applicant continued to be troubled by neck pain and left brachialgia. She had mild weakness of the left elbow and finger extension with bilateral cervical paravertebral tenderness, muscle spasm and a restriction of extension of her neck and rotation to the left. An MRI of her cervical spine demonstrated bilateral foraminal stenosis at C6/7, worse on the right side with moderate left-sided foraminal stenosis, as well as severe right-sided foraminal stenosis at C5/6 and mild foraminal stenosis on the left-hand side at that level. He recommended upper limb nerve conduction studies and a left C7 nerve sheath injection with local anaesthetic and steroids.
Prof Bittar reviewed the applicant again on 24 September 2021 via Zoom for the purpose of providing a report for medico-legal purposes, without establishing a treating doctor/patient relationship. The applicant reported neck pain of varying character, radiating to the back of her head and both shoulders; bilateral arm pain manifesting as intermittent pain once or twice a day, radiating into her arms; and headaches that tended to occur during flare-ups of her neck pain. He also noted that the applicant had moderate restriction of neck flexion. He diagnosed the applicant with aggravation of cervical spondylosis with C7 radiculopathy. He opined that she was incapacitated for her full pre-injury duties as a registered nurse due to her transport accident injury, but that she could work up to around 25 hours per week in a light physical role.
Prof Bittar provided a supplementary report on 24 May 2022 after reviewing the results of an MRI and x-rays in relation to the applicant’s cervical spine, both performed on 22 April 2022. The MRI demonstrated mild bilateral foraminal narrowing at C5/6 and on the left-hand side at C4/5. The radiologist reported mild to moderate narrowing of the neural foramina bilaterally in relation to C6/7. The x-rays demonstrated slight anterolisthesis at C4/5 and minimal anterolisthesis at C5/6 as well as advanced disc degeneration at C6/7. Prof Bittar noted that the treatment options included ongoing conservative treatment and spinal surgery.

Dr Richard Sullivan

Dr Sullivan, interventional pain specialist, assessed the applicant on 4 December 2017 on referral from Prof Bittar. The applicant presented with posterior cervical pain extending into the left lateral neck and down into the left shoulder. She also reported impaired capacity in terms of driving and daily activities. She was taking Panadol Osteo, amitriptyline 10mg nightly and Panadeine Forte two or three times per week. Dr Sullivan noted that the applicant had a restricted range of shoulder and neck motion, but normal grip strength and strength and tone in her upper limbs. Dr Sullivan opined that the applicant had chronic neck pain and left-sided shoulder pain after the work injury that was exacerbated by the transport accident. Dr Sullivan increased the dosage of the applicant’s amitriptyline prescription from 10mg to 20mg nightly.
On 27 June 2018, on review of the MRI results, Dr Sullivan noted Prof Bittar’s request that the applicant receive a left-sided C7 selective nerve root injection.
On further review on 6 February 2019, Dr Sullivan noted a reduction in the patient’s left-sided brachialgia following the injection. Dr Sullivan recommended that the applicant undergo an outpatient-based pain management program with a view towards a sustainable increase in her work hours, noting that the applicant was then working 20 hours per week and unable to increase her work capacity. Dr Sullivan recommended that the applicant reduce her Endep medication to 20mg and then to 10mg after three weeks.

Miss Prue Keith

Miss Keith, orthopaedic surgeon, assessed the applicant for her left shoulder pain on 6 March 2017. She noted that the applicant received a single subacromial cortisone injection in December 2016 from her general practitioner, which helped for about three weeks before it wore off. The applicant reported continuous shoulder pain, waking her at night and reducing her range of motion in her shoulder. She was taking four Panadol Osteo and four Ibuprofen tablets daily as needed. Miss Keith opined that both the shoulder and neck injuries impacted on each other.
On 27 April 2017, Miss Keith noted that the MRI performed in relation to the applicant’s shoulder on 18 April 2017 was ‘reasonably unimpressive’ and may be consistent with her age. Miss Keith also noted that a bone scan from 26 April 2017 did not show a lot of uptake in the facet joints in the context of some underlying disc disease. She suggested that the applicant commence using amitriptyline for pain management.

Mr Andrew Gogos

Mr Gogos, neurosurgeon, examined the applicant on 9 August 2022 to provide a second opinion. The applicant reported intermittent pain in the right hand but no clear symptoms of radiculopathy or myelopathy, as well as stiffness and trouble with turning her head while driving. Mr Gogos noted that the applicant was refractory to conservative measures. He reviewed MRIs of the applicant’s cervical spine from 2017 and 2022, which showed a relatively straight alignment with some very mild anteriolisthesis at C4/5 and very mild foraminal narrowing at C5/6 and C6/7 but no radicular compression at any level. Mr Gogos opined that surgery was not a good option and recommended continued conservative treatment.

Applicant’s medico-legal evidence

Mr Thomas Kossmann

Mr Kossmann, orthopaedic surgeon, assessed the applicant on 16 December 2019. She presented with pain in her neck and her right shoulder. Mr Kossmann noted the applicant’s difficulties with daily living activities, including reading, writing, using a keyboard, driving, sports and exercise. His examination of the applicant revealed that she had pain and movement restriction in both of her shoulder joints.
He diagnosed the applicant with mild uncovertebral degenerative changes and facet joint arthropathy, contributing to a moderate bilateral foraminal stenosis at the C4/5 level and osteophytes arising from the facet joints. This resulted in a moderate‑to‑severe right foraminal stenosis, a mild left neural foraminal stenosis at the C5/6 level and mild-to-moderate loss of intervertebral disc height, a small posterior disc herniation without significant thecal stenosis, and degenerative change of the neurocentral joints and the facet joints bilaterally, greater on the right side. This contributed to a severe right neural foraminal stenosis and a moderate left foraminal stenosis at the C6/7 level.
Mr Kossmann recommended that the applicant undergo further investigation in relation to the pain in her right shoulder joint. He opined that she had no capacity to return to her work as a division II nurse without restrictions and recommended that she avoid working above shoulder and head height and not carry heavy items weighing more than two kilograms.

Mr Peter Dohrmann

Mr Dohrmann, neurosurgeon, assessed the applicant on 12 March 2020. She presented with constant posterior neck pain, fluctuating in severity and tending to be worse later in the day, and intermittent neck pain on the right and left side. The neck pain was worsened by rotation, particularly to the left, and the applicant tended to turn her whole body when turning her neck. The applicant was taking 50mg of Tramadol as required and six Panadol Osteo per day. She attended a physiotherapist every one to two weeks for treatment in relation to her neck.
On examination, Mr Dohrmann noted that the applicant’s active motion of her cervical spine was mildly reduced in all planes except in rotation to the left, which was markedly reduced. There was also a mild restriction in abduction and external rotation of the left shoulder.
He diagnosed the applicant with aggravation of pre-existing cervical spondylosis as a result of the transport accident, which manifested as persisting neck pain without evidence of radiculopathy.
Mr Dohrmann also proposed various restrictions to the applicant’s employment activities, including in relation to lifting, constant and repetitive use of the arms and working at or above shoulder height. He opined that she had a partial work capacity and noted that she was performing her usual work as a nurse but on restricted hours and with some modification of her normal duties.

Respondent’s medico-legal evidence

Dr David Elder

Dr Elder, occupational physician, assessed the applicant on 12 June 2019. The applicant reported a 70 per cent improvement in her left shoulder but still experienced pain and decreased movement, as well as ongoing neck pain. On examination, he found that the applicant had an asymmetric decreased range of motion in the cervical spine with no muscular spasm as well as symmetrically reduced movements in the shoulders to 90 degrees flexion and abduction. He opined that she could not return to work in her pre-injury duties.
Dr Elder saw the patient again on 10 November 2020. He found that she had mechanical neck pain with no clinical evidence of radiculopathy and an aggravation of pre-existing left shoulder dysfunction. He opined that the current treatment for the applicant was reasonable and appropriate and noted that physiotherapy was transitioning to self‑management. His prognosis of her condition was for minimal further improvement. As to the applicant’s work capacity, he noted that the applicant was back working 20 hours per week (as she was before the transport accident) but she was still not back to the restricted duties that she was doing prior to the transport accident.
On 4 May 2021, Dr Elder confirmed his opinion with reference to his prior report, stating that the transport accident injury continued to interfere with the applicant’s activities of daily living and work capacity.

Mr Michael Dooley

Mr Dooley, orthopaedic surgeon, saw the patient on 24 January 2022. The applicant presented with tenderness along the dorsum of the cervical spine, restricted movement in the neck and pain and resistance as a result of shoulder movement. He diagnosed a soft tissue injury to the cervical spine as a result of the impact of the transport accident, involving some musculoligamentous damage and possible aggravation of underlying naturally occurring degenerative change. He did not consider that the applicant had sustained any injury to either shoulder in the transport accident. In a further report, Mr Dooley noted that he found no evidence of objective neurological deficit affecting the upper limbs and no evidence of definite nerve root entrapment.

The judge’s decision

The judge found that the applicant was a truthful witness, despite some inconsistencies between her evidence and her affidavits, which the judge considered were likely to be a result of the drafting of her affidavits rather than reflecting on her credit.[2]
[2]Palmer v TAC [2024] VCC 43, [77]–[80] (Judge Tsikaris) (‘Reasons’).
The judge accepted that the applicant suffered an injury as a result of the transport accident, which was an aggravation of cervical spondylosis, but did not accept that she had radiculopathy. Her Honour noted in this respect that Prof Bittar, who diagnosed the applicant with radiculopathy, had only seen the applicant by telehealth in September 2021 and had otherwise last examined the applicant in August 2018, while none of the medico-legal experts opined that the applicant had radiculopathy.[3] Similarly, her Honour did not accept Prof Bittar’s conclusion that surgery may be warranted.[4]
[3]Ibid [81]–[82].
[4]Ibid [82].
Turning to the consequences of the injury, the judge considered that it was necessary to take into account the fact that the applicant already had a significant problem with her left shoulder.[5] Her Honour concluded that the applicant had not proved that the restrictions in the activities that the applicant could engage in reached the threshold of ‘very considerable’.[6] This was principally because the consequences of the injury had not been sufficiently disentangled from the consequences of the applicant’s pre-existing workplace injury.[7] In reaching that conclusion, the judge had regard to the affidavit sworn by the applicant in support of her serious injury application in respect of the workplace injury.
[5]Ibid [83].
[6]Ibid [84].
[7]Ibid [85].
The judge considered, in turn, the consequences of the injury, medication and medical treatment, work capacity, sleep, activities of daily living, driving and dog grooming and made the following findings:
(a)The applicant conceded in cross-examination that she took Panadol, Panadol Osteo, Tramadol and Endep for both of her injuries.[8] Having regard to clinical notes and Miss Keith’s report of 27 April 2017, the judge could not be satisfied that the Endep was prescribed for the applicant’s neck injury.[9] Clinical records also suggested that the applicant had used Tramadol less than once per week and ceased that medication in more recent times.[10]
(b)The applicant was able to work 20 hours per week performing office-based duties after the transport accident. Mr Kossmann and Prof Bittar’s evidence only considered the effect of the applicant’s neck injury on her work capacity.[11] Given the applicant’s concession in cross-examination that her neck injury did not prevent her from performing administrative duties, the judge did not accept that the transport accident injury detrimentally impacted her work capacity in any significant way.[12]
(c)In the applicant’s first affidavit and her workplace serious injury application, she swore that both the injury to her neck and the injury to her left shoulder caused her to wake up at night.[13] The applicant accepted in cross-examination that she had broken sleep by reason of her shoulder pain before the transport accident and that she was now experiencing it because of her neck injury as well.[14] Mr Dohrmann also described the applicant’s sleep as being affected by her shoulder and/or neck pain.[15] Given this, the judge was not satisfied that the applicant had satisfactorily disentangled the effect of the transport injury on her sleep from the consequences of her pre-existing shoulder injury.[16]
(d)The applicant had deposed in both her first affidavit and the affidavit for her workplace serious injury application that the injury to her left shoulder as well as the transport accident injury together affected her ability to perform activities of daily living.[17] In cross-examination, the applicant agreed that both injuries had a combined effect on her inability to do certain things.[18] She also conceded that her shoulders caused her problems in dressing.[19] Consequently, the judge was not satisfied that the applicant had satisfactorily disentangled the consequences of the two injuries in respect of activities of daily living.[20]
(e)In the applicant’s serious injury application for her work injury, she said that driving caused her shoulder symptoms to worsen. She also told Mr Kossmann that she could not reach behind her in the car because of her shoulder injury.[21] Accordingly, although there was evidence that the applicant experienced neck pain after driving and had difficulty parking due to her neck pain, the judge concluded that she had not satisfactorily disentangled the consequences of the two injuries in respect of her driving.[22]
(f)Finally, in her workplace serious injury application, the applicant deposed that she stopped showing her Dobermans as a result of her left shoulder injury. Further, the applicant still breeds dogs and is able to groom and show them and she has won prizes for dog breeding and showing following the transport accident. Consequently, even if the applicant could identify consequences referable to her neck injury, the judge was not satisfied that the consequences would meet the serious injury threshold.[23]
[8]Ibid [91].
[9]Ibid [91]–[92].
[10]Ibid [93].
[11]Ibid [94].
[12]Ibid [95].
[13]Ibid [96].
[14]Ibid [97].
[15]Ibid [98].
[16]Ibid [100].
[17]Ibid [104].
[18]Ibid.
[19]Ibid [101].
[20]Ibid [105].
[21]Ibid [106].
[22]Ibid [106]–[107].
[23]Ibid [108].

Grounds 1 and 2

Submissions

In her submissions, the applicant deals with proposed grounds 1 and 2 together. The applicant submits that the fact that the applicant sustained an injury which meets the test of serious injury does not mean that another injury cannot also meet that test.[24] The judge was required to assess the impact of different conditions separately and decide whether the compensable injury was a serious injury. Considered in that light, the consequences suffered by the applicant in relation to her neck, particularly the constancy of pain, contributed to a very considerable impairment. The judge erred in finding that that the applicant did not establish consequences to the requisite level in relation to medication, sleep, activities of daily living, driving and dog grooming. The judge did so despite making a series of factual findings as to the applicant’s pain and suffering consequences of the neck injury which established that the applicant had a serious injury.
[24]Citing Dressing v Porter [2006] VSCA 215, [47] (Ashley JA, Callaway JA agreeing at [1], Buchanan JA agreeing at [3]) (‘Dressing’).
With respect to medication, the applicant contends that just because the Endep assisted the applicant with her shoulder injury does not mean that it was not required to control her neck pain. Further, the judge erred in finding that the applicant was likely mistaken as to the frequency with which she took Tramadol and for how long she had been taking it, given that the preponderance of medical evidence supported the conclusion that she was taking Tramadol on a weekly basis and the applicant was not cross-examined on this point.
In relation to sleep, the judge’s conclusion missed the point that the applicant’s neck pain woke her up from sleep, notwithstanding that her sleep was also disturbed as a result of her prior shoulder condition.
The applicant submits that the judge erred in finding that the consequences of the applicant’s injuries could not be disentangled merely because she agreed in cross‑examination that both injuries had a combined effect on her inability to do certain things or because she accepted that certain activities were affected by her shoulder injury.
As for the applicant’s driving, the applicant says that the judge erred in failing to take into account the applicant’s evidence that she could only drive for about an hour before she got neck pain and that she struggled with parking her car due to her neck injury. The fact that Mr Kossmann opined that she could not reach behind her in the car because of her shoulder did not preclude the injuries from being disentangled.
In relation to dog grooming and showing, the applicant contends that the judge failed to provide reasons dealing with the applicant’s contrary evidence, namely that the applicant’s involvement in all aspects of dog grooming and showing were diminished and that the applicant retired her Dobermans from showing due to her neck pain.
With respect to pecuniary disadvantage, the applicant contends as follows:
(a)The applicant gave evidence in re-examination that her neck pain caused her to stop performing administrative duties in 2021.
(b)The trial judge failed to place any or adequate weight on the applicant’s loss of flexibility in the workplace.
(c)She held a permanent position as a nurse working predominantly on lighter duties as at the date of the transport accident despite shoulder pain. Even if the incapacity arose as a result of the combined effect of the two injuries, the applicant did have a capacity for such work prior to the transport accident injury.
(d)The judge’s finding that the applicant was able to work 20 hours per week on office-based duties after the transport accident was not to the point as the applicant was working on other than full duties in that role.
(e)The evidence reflects that the applicant has struggled to find stable employment since the transport accident.
(f)The judge did not make any finding in respect of the extent to which the applicant’s neck injury caused any restriction to her capacity to work other than referring to Prof Bittar’s opinion that her neck injury caused the applicant to have a reduced capacity to work 25 hours per week. In particular, both Dr Elder and Mr Dohrmann gave evidence as to the applicant’s diminished work capacity as a result of the transport accident injury.
As to ground 1, the respondent contends that the judge’s determination as to whether the applicant satisfied the threshold narrative test of serious injury necessarily involved elements of fact, degree, impression and value judgment and, as such, does not readily admit to detailed analysis and explicit reasoning. The respondent says that the ‘series of factual findings with respect to the applicant’s pain and suffering consequences’ on which the applicant relies were not factual findings but merely recited aspects of the applicant’s evidence.
The respondent submits that the judge properly analysed the question of whether the neck injury was serious by reference to the effect that injury had on the applicant’s capacity to undertake various activities and was correct to conclude that the neck injury did not satisfy the serious injury threshold. In relation to the particular consequences of the injury, the respondent submits as follows:
(a)Following the applicant’s work injury, she suffered constant pain in her left shoulder and arm, was unable to return to full nursing duties and was instead limited to administrative duties performed 20 hours per week, struggled to hold dog leads and stopped showing her Doberman dogs, was impaired in respect of driving and other activities, and her treatment regime consisted of physiotherapy, Panadol Osteo and Endep.
(b)After the transport accident, she returned to work 20 hours per week performing administrative duties, which she attributed largely to COVID-19, and her treatment regime continued to consist of physiotherapy, Panadol Osteo and Endep.
(c)The applicant took long service leave for reasons unrelated to injury from early 2021, during which time she bred and sold Manchester Terrier puppies.
(d)The applicant developed pain and restriction in her right shoulder unrelated to her neck injury from early 2021, as a result of which she stopped working in May 2022.
(e)The applicant conceded that the medication she took for her neck she also took for her shoulder, that her sleep was interrupted by both her neck and shoulder pain and that domestic activities, computer and writing tasks and sewing were affected by both neck and shoulder pain.
(f)She also conceded that she was no longer required to lift her grandchildren, that she was able to drive from Wangaratta to Melbourne and back and that she continued to groom and show her Manchester Terrier dogs.
(g)As to the applicant’s use of Tramadol, the judge made her finding by reference to clinical notes that the applicant tendered at the close of evidence over objection, so the applicant should not now complain that this matter was not put to her in cross-examination. In any event, the Tramadol was part of the medication regime which provided relief for the applicant’s other injuries.
Taking all of the evidence into account, the respondent contends that the judge was correct to find that the applicant had not discharged the onus of establishing that the consequences of the neck injury were ‘very considerable’.
As to ground 2, the respondent contends that the judge was correct to find that the applicant’s neck injury did not stop her from performing administrative duties in the workplace. Rather, it was her shoulder injury that forced the applicant to stop working and therefore to suffer pecuniary disadvantage. The judge correctly found that the neck injury had not detrimentally impacted the applicant’s capacity in any significant way to undertake duties of a similar nature to what she was undertaking before the transport accident.
As to the applicant’s argument that she explained that her neck pain caused her to stop performing administrative duties in 2021, the respondent contends that argument is misplaced because that evidence related to her voluntary administrative duties at the kennel club and the applicant had earlier said that she was able to perform administrative duties at work despite her neck injury.
Further, the respondent notes that the applicant failed to identify what jobs were otherwise available to her but for her neck injury, having regard to both of her injuries. The medical evidence on which the applicant sought to rely does not support a viable claim for economic detriment because it does not have regard to the right shoulder injury.

Decision

An appeal from the County Court to this Court is an appeal by way of rehearing on identification of error. The Court must conduct a real review of the evidence given at trial and of the trial judge’s reasons for judgment to determine whether the trial judge erred in fact or law.[25] The applicable standard of review in this case is, consistent with this Court’s decision in Connelly v Transport Accident Commission,[26] the correctness standard, not that specified in House v The King.[27] Thus, as a majority of the High Court said in Warren v Coombes:
The duty of the appellate court is to decide the case — the facts as well as the law — for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.[28]
[25]Kozarov v Victoria (2022) 273 CLR 115, 136 [55] (Gageler and Gleeson JJ); [2022] HCA 12, citing Fox v Percy (2003) 214 CLR 118, 126–7 [25] (Gleeson CJ, Gummow and Kirby JJ); [2003] HCA 22 (‘Fox’) and Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 686 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); [2016] HCA 22.
[26](2024) 73 VR 257, 271 [40] (Beach, Niall JJA and J Forrest AJA); [2024] VSCA 20.
[27](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.
[28](1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9.
With that said, three further points should be made about the nature of this Court’s review. First, as the passage quoted above and other authorities reveal, the nature of the review by the Court means that there is a recognised reluctance to revisit any factual findings of the judge that depend on the judge’s assessment of a witness’s credibility[29] or reliability.[30]
[29]Devriesv Australian National Railways Commission (1993) 177 CLR 472, 479 (Brennan, Gaudron and McHugh JJ); [1993] HCA 78, referred to in Fox (2003) 214 CLR 118, 127–8 [26]–[27] (Gleeson CJ, Gummow and Kirby JJ); [2003] HCA 22.
[30]Paterson v Paterson (1953) 89 CLR 212, 224 (Dixon CJ and Kitto J); [1953] HCA 74.
Second, this Court is subject to ‘natural limitations’ in performing its task.[31] For example, this Court does not generally get taken to all of the evidence adduced at the trial.[32] Further, the trial judge has the opportunity to hear the evidence ‘in its entirety, presented as it unfolded at the hearing with the opportunity over the course of the hearing and adjournments for reflection and mature contemporaneous consideration and assessment’.[33]
[31]Fox (2003) 214 CLR 118, 125–6 [23] (Gleeson CJ, Gummow and Kirby JJ); [2003] HCA 22.
[32]Ibid.
[33]Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, 435 [24] (Allsop J, Drummond J agreeing at 429 [1], Mansfield J agreeing at 429 [2]); [2001] FCA 1833.
Third, the fact that this Court must decide the matter for itself does not mean that the proceeding is an appeal de novo on the papers without regard to the findings made by the trial judge.[34] Further, the process is one constrained by the grounds of appeal, written cases and oral submissions, approached in the light of the burden carried by the applicant to identify a vitiating error. As a result, it is open to this Court to endorse parts of the judge’s reasoning and to adopt intermediate findings of fact with which it agrees.[35]
[34]See Victorian WorkCover Authority v Perumal [2024] VSCA 107, [100] (Beach, Walker JJA and O’Meara AJA); Kesper v Victorian WorkCover Authority [2024] VSCA 237, [77], [80] (Orr, Kaye JJA and J Forrest AJA).
[35]Koschier v The King (2024) 113 NSWLR 391, 501–2 [42] (Bell CJ, Harrison CJ at CL agreeing at 507 [76], Chen J agreeing at 508 [77]); [2024] NSWCCA 24.
In the present case, the judge relevantly considered the applicant to be a truthful witness. However, the judge considered the applicant in some respects to be unreliable in her recollections of some matters in issue at the trial. That aspect of her Honour’s reasoning engages the principles identified above, in that the judge enjoyed an advantage over this Court in evaluating the reliability of the applicant’s evidence, having seen and heard her give evidence.
The question to be answered by the judge was whether the applicant’s neck injury could be fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[36] In the context where the applicant had a pre-existing injury to her right shoulder, the onus was on the applicant to ‘disentangle’ the effects of the two injuries on her pain and impairment so as to establish that the consequences attributable to the neck injury satisfied the serious injury threshold.[37] Her Honour was required to decide what symptoms afflicted the applicant in consequence of her compensable injury, and with what effect. If, by reason of pain and suffering consequences, the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences.[38]
[36] Humphries [1992] 2 VR 129, 140 (Crockett and Southwell JJ).
[37]Transport Accident Commission v Zepic (2013) 65 MVR 32, 35 [5] (Maxwell P, Tate JA agreeing at 71 [148], Garde AJA agreeing at 71 [149]); [2013] VSCA 232, citing Jatayilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; [2008] VSCA 167 and Meadows v Lichmore Pty Ltd [2013] VSCA 201, [19] (Maxwell ACJ, Robson AJA agreeing at [42], Dixon AJA agreeing at [43]).
[38]Dressing [2006] VSCA 215, [47] (Ashley JA, Callaway JA agreeing at [1], Buchanan JA agreeing at [3]).
The judge was required, to the extent that the evidence permitted, to make findings of fact, which in this case included findings as to the extent to which the neck injury had impaired the applicant. Here, the applicant claimed to suffer from pain and restriction arising from both her shoulder injury and her neck injury. The fact that the applicant felt pain from two injuries did not diminish the significance of the pain derived from her neck injury.[39] Although the applicant was already impaired to some degree as a result of her shoulder injury, it was still necessary for the judge to consider the extent to which the injury to her neck had resulted in further impairment or additional disability that impacted on her daily living or ability to engage in remunerative tasks.[40]
[39]Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232, [110] (Hansen, Kaye and McLeish JJA).
[40]Ibid [111]–[112].
In our view, the judge directed herself correctly in terms of principle. The judge identified that the term ‘serious injury’ required the impairment and its consequences to be viewed objectively and judged on an external comparative basis against possible impairments not necessarily in the same category.[41] There was no error in that approach and it is consistent with the approach in Humphries.[42] The judge appreciated that it was necessary to identify the impact of consequences of the injury and in doing so to isolate those consequences from those that followed from the earlier injury to the applicant’s shoulder.
[41]Reasons, [5].
[42][1992] 2 VR 129, 140 (Crockett and Southwell JJ).
The approach taken by the judge can be seen in her conclusion in relation to the impact that the neck injury had on the applicant’s sleep. On that topic, the judge ultimately concluded that she was not satisfied that the neck symptoms solely impacted the applicant’s sleep and that the applicant ‘has not satisfactorily disentangled this consequence from the consequences caused by the shoulder injury’.[43] The judge expressed herself in similar terms in relation to the impacts that the neck injury had on the applicant’s daily living and driving.[44] In summary, she said that she found that the applicant ‘has not disentangled the consequences which flow from the transport accident claim and the consequences from the workplace injury’.[45]
[43]Reasons, [100].
[44]Ibid [105], [107].
[45]Ibid [109].
In expressing herself that way, we take the judge to be saying that in some respects the evidence did not allow her to make affirmative findings as to which consequence flowed from the shoulder injury and which flowed from the neck injury. The judge did not proceed under the misapprehension that the neck injury had to be the sole cause of incapacity. But she did have to assess the extent to which the neck injury increased the existing impairment or gave rise to new restrictions or limitations that would not otherwise exist. Given the potential functional overlap between the injury to the shoulder and neck, the judge found that she was unable to determine the extent to which, if at all, the neck injury had impacted on domestic duties, washing and hanging out clothes, cooking, sweeping and chopping.[46] There was no error in principle in the approach the judge took, nor does her conclusion that she could not disentangle the various consequences mean that the judge asked herself the wrong question or committed any legal error. Her analysis reflected the difficulty in attributing factual consequences to the applicant’s neck injury. In some respects, the judge was left unpersuaded that the neck injury materially contributed to any restriction or limitation experienced by the applicant, with the consequence that she was not satisfied that the neck injury caused by the transport accident was a serious injury.
[46]Ibid [104].
In this Court, the applicant sought to argue that, having regard to the findings of fact made by the judge, the conclusion that there was no serious injury cannot stand. However, the flaw in that submission is that it confuses the judge’s recitation of the claims and evidence with findings of fact. The structure of the reasons makes it tolerably clear that under the heading ‘background and medical history’ the judge was recording the applicant’s evidence and claims rather than making findings of fact. Of course, the judge regarded the applicant as an honest witness and generally accepted much of her evidence. However, as noted above, there were parts of the applicant’s evidence that the judge said were mistaken. In any event, even accepting the judge’s favourable credit finding, the judge’s recitation of the applicant’s medical history and claimed impairments does not amount to findings of fact.
The judge set out in some detail the medical evidence of both treating medical practitioners and medico-legal experts, identifying the physical symptoms observable from scans and the clinical assessments from the various practitioners.
The judge then considered the impairment consequences. By way of general observation, the judge noted that it was necessary to take into account that at the time of the transport accident the applicant had already suffered significant problems with her left shoulder. The injury to her left shoulder had led the applicant to significantly modify her lifestyle with restrictions on a range of social, domestic and work-related activities.

The judge considered the matter having regard to pain, which was also informed by the medication and medical treatment the applicant was receiving; work capacity; sleep; activities of daily living; driving and dog grooming.
The judge accepted that the applicant had pain in her neck that affected to some degree her activities of daily living. For example, the judge noted the applicant’s sworn evidence that neck pain had interrupted her enjoyment of reading, knitting and sewing.[47] However, the judge also observed that, in cross-examination, the applicant accepted that she could still read occasionally and that it was a combination of her neck and shoulder injuries that impacted on her ability to sew and knit.[48]
[47]Ibid [89].
[48]Ibid.
Based on the applicant’s evidence, including regarding the significant impact that the shoulder injury had on her employment, the judge said that she was unable to determine that the nature of the pain or its intensity, frequency or duration satisfied the serious injury threshold.[49] Relatedly, the judge identified the medication that the applicant was taking, noting that she had been prescribed Endep and Tramadol. In relation to Endep, the judge said she was not satisfied that it was prescribed for the neck injury.[50] The judge did not accept the applicant’s evidence as to her use of Tramadol although accepted that her evidence was honestly given.[51]
[49]Ibid [90].
[50]Ibid [92].
[51]Ibid [93].
Taking the evidence as a whole and having regard to the medication regime, the judge was not satisfied that the pain caused by the transport injury satisfied the serious injury threshold. The applicant did not identify any specific error in the judge’s fact-finding which led her to draw that conclusion. The applicant was critical of the judge’s approach to Endep in that the question was not whether it was or was not prescribed solely for her shoulder injury but rather whether the applicant had cause to use it in order to treat pain including from her neck injury. That criticism may be fair but, in our opinion, it does not detract in any material way from the ultimate finding that the pain attributable to the neck injury was not sufficiently impactful so as to itself amount to a serious injury. In our opinion, having reviewed the evidence for ourselves, the judge’s conclusion on this issue was correct.
In relation to work capacity, there was no error in the judge’s conclusion that the transport accident injury had not detrimentally impacted the applicant’s work capacity in any significant way.[52] That finding followed from the applicant’s evidence that, following the work injury to her shoulder, the applicant was able to return to work on modified duties and the neck injury did not markedly alter her work capacity. Again, we consider the judge’s conclusion on this issue to be correct.
[52]Ibid [95].
In relation to dog grooming, on the basis of the evidence the judge was correct not to be satisfied that the applicant curtailed her dog showing activities as a result of her neck injury rather than the earlier injury. In any event, as the judge noted, the applicant was still able to breed, groom and show dogs.[53]
[53]Ibid [108].
We have already observed that the onus was on the applicant to disentangle the impact that the neck injury had on activities of daily living, including driving, from the earlier injury. We consider that the judge was correct to conclude that the applicant did not discharge that onus. The consequence was that these matters did not materially assist the applicant’s claim.
Taken as a whole, and having reviewed the evidence and the judge’s decision, we consider the conclusion reached by the judge — that the plaintiff had not proved that the consequences attributable to the applicant’s neck injury amounted to a serious injury — was correct.

Ground 3

Submissions

By this ground, the applicant submits that the judge’s reasons are inadequate, in particular because the judge failed to refer to the evidence of Prof Bittar with respect to pecuniary disadvantage at all and ‘sidelin[ed]’ the evidence of Dr Rowe. Further, the judge’s reasons for finding that the applicant had not suffered pecuniary disadvantage which, in combination with the pain and suffering consequences, gave rise to a ‘very considerable’ consequence is not evident in the judge’s reasons, taking into account the whole of the evidence.
The respondent contends that a fair reading of the judge’s reasons reveals a clear process of reasoning and that the applicant could be in no doubt as to why her application was refused.

Decision

The principles that this Court must apply relevant to a ground that asserts a lack of reasons are well established: a judge is required to set out findings on material questions of fact, refer to the relevant evidence and provide an intelligible explanation of the process of reasoning that led the judge from evidence to conclusion.[54]
[54]Hunter v Transport Accident Commission [2005] VSCA 1, [21] (Nettle JA).
In Poholke v Goldacres Trading Pty Ltd, in the context of a serious injury determination under the Accident Compensation Act1985 and after referring to Hunter v Transport Accident Commission,[55] this Court made three points of present relevance:
First, such an application is made on originating motion, supported by affidavit material. Ordinarily, only the applicant is cross-examined. The judge is provided with a substantial (and often vast) amount of material comprising medical reports, rehabilitation reports, and employment records. At the conclusion of the hearing, a judge is often left with a large volume of material, some of which may well be irreconcilable.
Secondly, the adequacy of reasons must depend upon the issues, and the manner in which the case has been presented. In an appropriate case, the path of reasoning, adopted by the judge, may be sufficiently disclosed by a combination of that which is expressly stated and the inferences which might be drawn from the judge’s recitation of material.
Thirdly, ultimately, a determination by the judge as to whether the consequences of an injury are serious … involves a significant degree of evaluation and value judgment, which, necessarily, does not admit of detailed analysis and reasoning.[56]
[55]Ibid.
[56][2016] VSCA 232, [77]–[79] (Hansen, Kaye and McLeish JJA) (citations omitted).
The process of reasoning adopted by the judge is revealed by her reasons. The applicant failed because, to the extent that she was able to identify consequences that were attributable to her neck injury, they did not amount to a serious injury. In important respects, including in relation to activities of daily living and sleep disturbance, the judge was not able to identify or quantify the impact that was properly attributable to the neck injury. In those circumstances, the judge concluded that the injury did not amount to a serious injury.
The reasons are adequate.

Conclusion

The application for leave to appeal should be refused.

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[2024] VSCA 254

30 October 2024