Popal v Transport Accident Commission

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0119

KABIR POPAL	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	BEACH JA, J FORREST and TSALAMANDRIS AJJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2023
DATE OF JUDGMENT:	15 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 222
JUDGMENT APPEALED FROM:	[2022] VCC 1761 (Judge Purcell)

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ACCIDENT COMPENSATION – Transport accident – Serious injury – Application for leave to commence common law proceeding – Impairment of spine – Applicant’s credit in issue – Whether judge made error of fact – Whether judge’s reasons unreasonable based on the evidence – Leave to appeal refused.

Transport Accident Act 1986, s 93(4)(d).

Fox v Percy (2003) 214 CLR 118, Humphries v Poljak [1992] 2 VR 129, Lee v Lee (2019) 266 CLR 129, Petkovski v Galletti [1994] 1 VR 436, Petrovic v Victorian WorkCover Authority [2018] VSCA 243, Woolworths Ltd v Warfe [2013] VSCA 22 applied.

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Counsel
Applicant:	In person
Respondent:	Mr R Kumar
Solicitors
Applicant:
Respondent:	Lander & Rogers

BEACH JA
J FORREST AJA
TSALAMANDRIS AJA:

On 2 February 2015, the applicant was driving a motor vehicle when a nearby vehicle struck a power pole, causing the pole to fall onto, and crush, the roof of his vehicle (‘the accident’). As a result of the accident, the applicant suffered injury to his lumbar spine.
By an originating motion filed in the County Court on 9 July 2020, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’), to commence a proceeding at common law claiming damages for his injuries received as a result of the accident. The applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Act (‘serious long-term impairment or loss of a body function’). The applicant had symptoms in his lumbar spine prior to the accident, and his claimed injury was an aggravation of pre-existing lumbar degenerative disease. The body function relied upon was the function of the spine.
The trial was heard on 17 October 2022 before Judge Purcell. The applicant was represented by counsel at the hearing. On that day, the judge dismissed the applicant’s application and provided oral reasons.[1] In short, the judge held that the applicant failed to establish that the impairment consequences arising from any compensable injury satisfied the requisite test for serious injury. His Honour did so primarily on the bases that the applicant was not a credible witness and that he failed to adduce appropriate evidence from his treating medical practitioners.
[1]Popal v Transport Accident Commission [2022] VCC 1761 (‘Reasons’).
The applicant, who is now self-represented, seeks leave to appeal against the order dismissing his application. If leave is granted, the applicant advances two proposed grounds of appeal. First, that the judge erred in relation to the facts of the application, and second, that the judge’s reasons were unreasonable based on the evidence. The applicant seeks an order that the judge’s orders be set aside.
For the reasons below, we have concluded the judge made no error, and leave to appeal must be refused.

The evidence generally

On the hearing of the application in the County Court, the applicant relied upon his affidavit dated 4 March 2019 (‘the affidavit’) and his statement dated 25 June 2022 (‘the statement’).[2] The parties tendered various documents, including medico‑legal reports, clinical notes, radiological reports, hospital records, and a report in support of the applicant being placed on a disability pension in 2009. The only witness to give oral evidence was the applicant. After adopting the affidavit and statement as true and correct in his examination-in-chief, the applicant was cross-examined and subsequently re-examined.
[2]The statement was on an affidavit header, but was unsigned.

Applicant’s background and evidence

The applicant was born in Afghanistan in 1957 and came to Australia in November 1980 as a refugee. The applicant is married and has four adult children. He was 58 at the time of the accident and 65 at the time of trial.
Soon after arriving in Australia, the applicant secured employment, whilst also studying part-time at the Footscray Institute of Technology. He completed that course in 1989 but was unable to obtain employment in his chosen field. Instead, he worked as a security guard in various locations around Melbourne. In the early 2000s the applicant commenced working as a stallholder at various markets, including the Queen Victoria Market. The applicant purchased small electronic products second-hand, which he would fix, repair and clean for resale. He stated that up until the time of the accident, he had a stall at the Queen Victoria Market and also sold various items at local and country markets, including antiques and marble stone crafts.
In the affidavit, the applicant described the circumstances of the accident in the following way:
I was travelling along Hallam North Road in Hallam, when another vehicle struck a power pole and then the power pole fell onto my vehicle and made a hole in the roof of my car and fell onto my head.
The applicant claimed that as a result of the accident he sustained injuries to his head (concussion), neck/cervical spine, right hip, and aggravation of his lumbar spine.
Following the accident, the applicant was transported by ambulance to Dandenong Hospital and underwent various investigations and scans. He was discharged the following day.
The applicant thereafter attended a general practitioner, Dr Ashraf Ebrahim, and was referred to a pain specialist, Dr Neels du Toit.
The following also emerges from the affidavit: the applicant said that after the accident, he tried to return to work at the market on a couple of occasions, but he could not manage due to his pain. He said that he had otherwise been unable to return to any form of employment since the accident. The applicant claimed that if he had not been injured, he would have continued working until 70 years of age. The applicant stated that he considered his earning capacity to have been ‘almost totally destroyed’ by the impact of the accident-related injuries.
The applicant identified some pre-existing health conditions. He stated that he had thalassemia minor; he had undergone an appendectomy in the early 1980s; he had a skin lesion removed from his chest in or around 2005, and following this he had developed complications due to inflammation and infection in the surgical scar which was treated and then eventually resolved; he cut his finger with a knife when cooking and required stitches but thereafter made a full recovery; he had some androgen deficiencies and erectile dysfunction which was treated with supplements and medication. In addition, the applicant stated he had some symptoms in his right knee, and was referred to orthopaedic surgeon, Mr Mushtaq Khan, who advised that he had some osteoarthritis in his right knee and would eventually require surgery but first needed to lose some weight. Save for those pre-existing medical conditions, the applicant said that prior to the accident he otherwise ‘enjoyed good health and had no significant or ongoing medical issues’ which would cause him to cease work or interfere with his enjoyment of life. He said that he previously took pleasure in playing soccer and volleyball with friends, fishing and going to the movies. The applicant is Muslim and said that before the accident, he went to the mosque regularly.
The applicant stated that he had previously sought permission from the Commonwealth government to import and sell laser pointers, as well as decorative swords from China. The applicant disclosed that in February 2014 he was fined for not keeping proper records of prohibited weapons and for selling prohibited weapons. The applicant also said that in September 2013, the police ‘argued’ that a batch of swords he had imported were illegal weapons. The applicant did not disclose an outcome from this allegation.
Pausing here, two points should be made about the contents of the affidavit which were relied upon by the judge. First, there is no mention of the applicant being in receipt of a disability pension at the time of the accident. Second, there is no mention of pre-existing back or lumbar pain causing him any impairment.
In the statement, the applicant corrected and expanded on numerous matters which he had previously deposed to in his affidavit, and also detailed his claimed consequences of impairment.
In respect of the circumstances of the accident, the applicant stated that the power pole fell on the driver’s side of his vehicle, ‘making direct impact with my head and pushing my whole body down into my seat. When my body was pushed down, I felt immediate pain in my neck, lower back, and right hip.’ Further, the applicant said that, contrary to his affidavit, the power pole did not create a hole in the roof of his vehicle upon impact but, rather, the roof of his car was crushed.
The applicant then expanded upon his pre-existing medical conditions, referring to prior lower back complaints:
Prior Lower Back Complaints
Prior to the motor vehicle accident of the 2^nd February 2015 I experienced minor lower back pain, as I graduated in 1989 from FIT, I was looking for a job due to recession many people lost their jobs in that time and the Centrelink was sending me to work for the dole stocks move or 20KG barely bags putting in the truck, and I was hoping they might give me permanent employment, of the start of 2006. My previous lower back pain was not as strong because working hard labor heavy lifting for the dole was one or two days, I was getting better after three days, the lower back following my motor vehicle accident is getting worse every day. The earlier lower back pain I had did not travel down my leg, and now my right leg getting numb after a few minutes of walking and since accident I have lost my standing walking after a few minutes and social life husband and wife relationships
Due to a big painful lump on my chest not having to do heavy lifting work washing horses and not required to carry out continuous bending, twisting activities, I became disabled pensioner, my lower back pain improved to a bearable level where I learned to live with it, the time I could walk and stand even improved, My only priority in my life was to work …
The applicant then said that he suffers pain in the centre of his lower back, and it travels down his back and into his right hip. The applicant said that he has constant pain in his lower back and right leg.
The applicant said that following the accident, his knees became painful, hard to move, and are numb from time to time due to his lack of movement. The applicant said that the pain in his knees is not as severe as his lower back pain.
The applicant said that Dr du Toit had performed a medial branch primary block in February 2020. The applicant said that this procedure provided him with some pain relief in his lower back for a few weeks, ‘before returning to normal.’ The applicant also said that he had attended physiotherapist Mr Nicholas Cocking for treatment of his lower back and right leg.
In December 2020, the applicant said he was referred to an orthopaedic surgeon, Mr Vishal Pai, for treatment of his lower back pain and osteoarthritis in both knees. The applicant said that Mr Pai obtained an MRI of his lumbar spine and informed him that he could not operate on him until he lost a substantial amount of weight.
In respect of the ongoing consequences arising from his lower back impairment, the applicant stated that he cannot stand or walk for longer than about 15 minutes. He said that since 2018 he has regularly used a walking stick due to the pain in his lower back and right leg, in particular, near his hip. He said that he has trouble walking up and down stairs, and wakes multiple times during the night due to his pain. The applicant said that prior to the accident, he used to help his wife with the housework, however he is no longer able to assist.
The applicant also stated that he now barely goes to the mosque as he has to pray whilst sitting on a chair, which he finds highly embarrassing. He said that he has become socially withdrawn and tends not to accept invitations from friends to socialise. The applicant also stated that he was no longer able to play soccer, cricket or volleyball, enjoy day trips with his family, or sit comfortably through a movie.
In the last paragraph of his statement, the applicant said:
Despite being on disability pension prior to my accident, I was trying to make attempts to return to the work force. However due to my motor vehicle accident, my physical abilities are further restricted and thus my employment options are further limited. As I have contacted most Schools and University to supply those Laser pointers for their lectures and have imported lasers and home decoration brass Swords with semi-precious stones for home decoration, the police have confiscated the Laser pointers and Swords due to their mistakes issuing the licence. However, I have had issues with my licence and thus my employment abilities are limited. I wasn’t able to use my knowledge and leave pensioners life, as a result of the motor vehicle accident of the 2^nd February 2015 my life has changed for the worse. I am in constant pain, housebound all day except for attending my medical appointments, my social life has different, I cannot walk, and I cannot get up to my bedroom and cannot sleep due to severe pain in my back and my knees.
At trial, the applicant was cross-examined extensively as to his pre-existing medical conditions and his failure to disclose his prior lower back complaints in his affidavit. The applicant gave evidence that, prior to the accident, he did not have long-term back problems. However, when extracts of his clinical records from the Hallam Medical Group were put to him, he accepted that prior to the accident, he had attended on general practitioners at that medical clinic on numerous occasions due to problems with his lower back. He gave evidence that he suffered this lower back pain when he was ‘working very hard’ in 2006 and 2007. However, his evidence was that it was not long-term back pain and only lasted for two or three days. The applicant accepted that in April 2008 he was referred for x-rays of his lumbosacral spine, following a complaint to his general practitioner of lower back pain.
A note of general practitioner Dr Hasan Khwaja dated 19 March 2009 was then put to the applicant. It recorded that the applicant had ‘chronic low back pain’, ‘chronic right knee pain’, and ‘says can’t work because of that, and also chronic chest wall pain from the scar’. The applicant rejected that the reference to chronic lower back pain referred to him suffering ongoing, continuous lower back pain.
The applicant was also cross-examined in relation to the contents of a medical report of Dr Khwaja dated 8 April 2009 sent to Centrelink in support of his disability pension (‘the disability support pension report’). In this report, Dr Khwaja referred to the applicant’s right knee osteoarthritis and lower back pain. Dr Khwaja stated that there had been a long history of ‘low back pain and pain in the right knee joint. Difficulty standing, walking more than 5-10 min. Also back pain in lower lumbar spine, difficulty bending/twisting etc’.[3] The applicant accepted the observations of Dr Khwaja were correct for a short duration, however denied that he had experienced those symptoms over a long period of time.
[3]Reasons, [20].
The applicant was cross-examined in relation to the contents of a letter from Dr Khwaja dated 22 September 2011, in which it was recorded that the applicant’s ‘main problems’ were obesity, the keloid scar on his chest, lower back pain from degenerative spine disease, and right knee pain from moderate grade osteoarthritis. The applicant accepted this was what was recorded in the letter, however, maintained that his condition was not long-term. Further, in respect of Dr Khwaja stating that the applicant had been treated with painkillers, anti-inflammatories and referred to physiotherapy, the applicant accepted that he had been given the medication, but said he had not obtained physiotherapy treatment at that time.
The Hallam Medical Group clinical records also referred to an application by the applicant for a disability parking permit in 2013. To support his application, the applicant attended upon general practitioner, Dr Farzana Mazid. The doctor noted that the applicant had moderate to severe osteoarthritis in his knees, lower back pain and needed to use a walking stick. When cross-examined about this, the applicant’s evidence was, at best, confusing, and appeared to suggest that he had applied for a permit to assist his elderly father who was using a walking stick. The applicant stated that he had only previously used a walking stick for one week in 2006 when he hurt his knee after he slipped on a floor. The applicant stated that Dr Mazid was ‘completely wrong’ in respect of the reference to him using a walking stick in 2013. The applicant maintained that at that time he was ‘a really healthy person’ (when he was on a disability pension).
The applicant was then cross-examined in respect of the contents of a discharge summary from Dandenong Hospital, where he was admitted after the accident. It recorded that the applicant complained of a headache and neck pain. Medical imaging was taken of the applicant’s head and cervical spine, and no acute pathology or fracture was detected. The applicant accepted that there was no record of pain in his lower back or knees. The applicant explained the absence of such complaints in the following way:
[T]he pain was there but the pain of the head was too much. Once the pain is in one part too much, you can’t feel the other pains on that particular times.
It was put to the applicant by counsel that since the accident, there had been very few attendances by him in respect of complaints of lower back pain, on either the general practitioners at the Hallam Medical Group or Dr Ebrahim. In response, the applicant stated that he was given medication for his back pain but otherwise had no need to attend on a general practitioner on an ongoing basis. The applicant also stated that he had recently undergone physiotherapy treatment.
A letter from Mr Pai to Dr Ebrahim dated 18 December 2020 stated that the applicant was referred to him for management of his bilateral knee pain. The applicant was cross‑examined in relation to this letter. It was put to the applicant that he was only referred to Mr Pai in respect of problems in his left and right knees. The applicant insisted that he was also sent for his lower back pain. The applicant accepted that he did not inform Mr Pai that he had first experienced right knee problems following a fall in 2006. The applicant also confirmed that he told Mr Pai that he had not used a walking stick prior to the accident and also had no symptoms of chronic knee pain.
Finally, the applicant was cross‑examined in respect of the work he performed prior to the accident. He stated that he had rented a warehouse in Oakleigh in 2011 for the storage of goods that he would then sell at the Queen Victoria Market or Sunday markets. The applicant said that he did not disclose any income to the Australian Taxation Office as he did not reach the requisite level. In re‑examination, the applicant stated that when he was prosecuted for the offences described in his affidavit (see [15] above), he ‘lost everything.’

Medical evidence

There were no medical reports before the judge from the applicant’s treating practitioners, in particular Dr Ebrahim, Dr du Toit, Mr Pai, or Mr Cocking. Instead, the medical evidence as to the applicant’s medical condition prior and subsequent to the accident was limited to clinical records, copy correspondence and medical imaging reports, about which the applicant was cross‑examined.

From 20 May 2015, the applicant predominantly attended upon Dr Ebrahim in respect of the injuries he received in the accident. The clinical records from Dr Ebrahim tendered at the hearing did not go beyond 22 April 2017.
Prior and subsequent to the accident, the applicant also attended the Hallam Medical Group in relation to his various medical conditions. The clinical records from the Hallam Medical Group tendered at the hearing did not go beyond 21 October 2020.
An MRI scan of the applicant’s lumbar spine dated 8 February 2017 was reported as demonstrating a moderate to severe L4/5 thecal compression secondary to L4 anterolisthesis, broad-based disc bulge and facet joint arthropathy. Further, the MRI scan reported mild to moderate L3/4 thecal compression secondary to a broad‑based disc bulge and facet joint arthropathy.
A report of an MRI of the applicant’s lumbar spine dated 19 July 2019 noted L4/5 degenerative listhesis and significant central canal stenosis, and facet degeneration at L5/S1. There was also a non-compressive disc bulge and protrusion at L1/2.
A letter from Mr Pai to Dr Ebrahim dated 18 December 2020 was tendered. In it Mr Pai described the applicant’s ‘presenting problem’ as bilateral knee osteoarthritis. After detailing the applicant’s history, Mr Pai then outlined his clinical assessment of the applicant’s left and right knees, and proposed management. In the penultimate paragraph of this letter, Mr Pai stated:
On a side note, his symptoms of numbness in his right leg when he walks are atypical and I have requested a lumbosacral MRI to exclude a compressive spinal lesion. If the MRI confirms this, I may need to refer him to a spinal surgeon.

Medico-legal reports

There were three medico-legal opinions tendered relevant to the applicant’s lower back condition.
Three medical reports of orthopaedic surgeon Associate Professor Bruce Love dated 19 February 2020, 23 February 2021 and 18 March 2022 were tendered. On each occasion, Associate Professor Love examined the applicant at the request of his then solicitors. In the February 2020 report, Associate Professor Love noted that the applicant denied any history of a back condition prior to the accident. At that time, Associate Professor Love was of the opinion that the accident was still a significant contributing factor to the applicant’s lower spine injury but it was not a contributor to the aggravation of his knee conditions. A similar opinion was expressed by Associate Professor Love in his subsequent report of February 2021.
In his report dated 18 March 2022, following a review of medical imaging taken of the applicant’s lumbosacral spine prior to the accident, Associate Professor Love noted that there was a ‘prior spinal set of symptoms’ which he considered were significantly worsened by the accident, which he judged to be of ‘high energy’. Associate Professor Love was of the opinion that the accident was still a significant contributing factor to the applicant’s lumbar spine injury, based upon his understanding that there had been an ‘immediate deterioration of symptoms which have continued to deteriorate’.
In May 2018, the applicant was examined by a specialist in general orthopaedics and trauma, Dr Graeme Doig. In a report dated 1 June 2018, Dr Doig noted that the applicant reported good general health prior to the accident, save for him having undergone an appendectomy. Dr Doig considered that the applicant’s pre-existing underlying degenerative condition in his spine had been aggravated by the accident. Dr Doig stated that the applicant suffered restrictive movement and chronic pain.
In September 2018, the applicant was examined by orthopaedic surgeon, Mr Kenneth Brearley. In a report dated 13 September 2018, Mr Brearley noted that the applicant reported he had no previous problems with his neck or his back. In addition, that the applicant also reported he was not working at the time of the accident as he was caring for his elderly father. Mr Brearley opined that the applicant had sustained soft tissue injuries to his neck and lower back in the accident. Mr Brearley was of the view that the applicant’s neck injury had since resolved, however he had residual problems in his lower back with ongoing discomfort, and experienced difficulty walking and standing.

Judge’s reasons

The judge’s reasons were provided orally, with speed and efficiency. After referring to established principles in Humphries v Poljak,[4] and Petkovski v Galletti,[5] the judge identified his task as making factual findings in respect of ‘what injury, impairment and consequences relate to the motor vehicle accident and the claimed back injury, as opposed to the myriad of long-term health issues from which [the applicant] also suffers.’ In doing so, the judge identified the applicant’s credit and reliability as a central issue in his determination of the applicant’s injury and assessment of the claimed impairment and consequences.[6]
[4][1992] 2 VR 129 (‘Humphries’).
[5][1994] 1 VR 436 (‘Petkovski’).
[6]The judge referred to Johns v Oaktech Pty Ltd [2020] VSCA 10, [70] (Beach, Kaye JJA and Croucher AJA).
His Honour then stated that:
[T]his is a proceeding in which there is very little objective or accurate evidence to support the plaintiff’s application. There is a dearth of treating material and what treating material there is is mostly directed towards his comorbid or pre-existing conditions. There is nothing up to date from a treating practitioner. In addition, there is no supporting lay affidavit that is often seen in these types of applications, such as from a spouse or adult child.[7]
[7]Reasons, [9].
The judge considered the principles outlined by this Court in Petrovic v Victorian WorkCover Authority[8] were applicable in the case before him, notwithstanding that the proceeding in Petrovic was based solely on a claim for psychiatric injury. Having done so, his Honour then stated that:
[I]n this proceeding the opinions of the medical practitioners relied upon by the plaintiff are only as good as the underlying history that he has provided and upon which those reports are based.[9]
[8][2018] VSCA 243, [74] (Beach, Kaye and Niall JJA) (‘Petrovic’).
[9]Reasons, [11].
The judge treated the affidavit as deficient in that it went ‘nowhere near setting out accurately his pre-transport accident situation.’ The judge referred to the applicant’s statement in his affidavit that he enjoyed good health and had no significant or ongoing medical issues, as ‘misleading at best and patently wrong at worst’. The judge noted the pre-accident medical details provided in the later statement were a ‘better history’ than that contained in the affidavit, although ‘still deficient’.
Thereafter, the judge identified the three relevant medico-legal opinions referred to at [42]–[46] above. The judge referred to the opinions of Dr Doig and Mr Brearley based upon the applicant’s history that he was effectively fit and well before the accident, and in good health. The judge rejected this evidence as an unreliable and inaccurate history, and stated that those reports were of no assistance to the applicant in the presentation of his case.
The judge went on to observe that the only doctor who had ‘something of an accurate history’ was Associate Professor Love. The judge observed that in his report of March 2022 the Associate Professor was aware of the applicant’s prior symptoms in his spine, and understood that those symptoms significantly worsened after the accident. The judge said that there was no evidence of an immediate deterioration of symptoms, but rather ‘evidence of symptoms both before and after the accident.’ The judge also noted that Associate Professor Love had not been provided with all the material from treating practitioners which had been tendered in the hearing.
The judge said that the applicant bore the evidentiary onus of establishing the impairment and impairment consequences flowing from the compensable injury.[10]
[10]The judge referred to Meadows v Lichmore Pty Ltd [2013] VSCA 201.
The judge commented that, taking the applicant’s case at its highest, and even if he accepted the opinion of Associate Professor Love that the accident had caused the worsening of the applicant’s pre-existing lower back symptoms, Associate Professor Love’s report did not assist him in identifying the impairment and impairment consequences referable to the injuries sustained in the accident.
The judge concluded:
When the whole of the evidence is taken into account, the plaintiff has been extremely limited for day-to-day activity for many, many years; he has had intermittent low-back pain, he has had chronic knee pain. Unfortunately, he is languishing on the public health list, either because of the lack of public health resources or because his weight is such that no-one is prepared to operate on his knee or knees. On any view, he has very bad knees and needs surgery. On any view, those knees would limit his ability to stand, walk, sit, attend to day-to-day activity, climb stairs or even potter around at the Victoria Market, if in fact that is what he was doing.
…
I do not accept, by reason of the inadequate state of the evidence, that he has suffered a serious injury. I simply cannot properly identify the impairment or impairment consequences flowing from it and, in any event, the material reveals, as I said before, a man whose life was extraordinarily limited before this accident, so perhaps not much has changed.[11]
[11]Reasons, [45], [47].
The reasons are commendably succinct and comprehensible. They covered the correct legal principles, the key matters which the judge needed to decide, and a clear path of reasoning as to why the applicant failed to satisfy him that his lower back injury did not meet the statutory definition of serious. The applicant makes no complaint that the judge’s reasons were inadequate.[12]
[12]Save for his complaint in respect of ground 1 that the judge did not refer to the impact of collision.

Observations on the state of the applicant’s serious injury application

At the outset, and before dealing with the applicant’s proposed grounds of appeal, the following observations can be made as to the evidence relied upon by the applicant before the judge:
(1)There were no medical reports from the applicant’s treating practitioners. The only medical correspondence which post-dated the accident was the letter from Mr Pai, in which he stated that the applicant had been referred for management of bilateral knee pain, an injury which was not the subject of his application.
(2)There was considerable medical material from 2006 which detailed the applicant’s regular complaints of lower back pain to his general practitioners. However, this history was not contained in the affidavit and was not provided to the medico-legal doctors, save for Associate Professor Love when he examined the applicant in March 2022 for the third time.
(3)There was no lay witness affidavit material in support of the applicant’s account of his injury and its effects upon him. For example, from someone who was able to attest to observations as to the applicant’s health and level of activity before the accident, and the applicant’s claimed consequences after it.
(4)There were no financial documents pertaining to the applicant’s earning capacity.
There is no ‘check list’ as to what the plaintiff is expected to produce to the court in a serious injury application. However, a court will ordinarily be assisted by the following:
•up-to-date affidavit material from the plaintiff (ie containing evidence as to the progress of the plaintiff’s condition since swearing the original supporting affidavit);
•up-to-date medical reports from the treating practitioners;
•opinions from medico-legal doctors based upon an accurate history;[13]
•in appropriate cases, evidence from a lay witness attesting to observations as to the plaintiff’s activities prior and subsequent to the subject injury; and
•in an application involving a claim of pecuniary disadvantage consequences,[14] financial documents from both the pre-accident and post-accident period, including taxation returns and Business Activity Statements (where appropriate).
[13]The County Court of Victoria’s Practice Note No PNCLD 2–2023: Serious Injury Applications, 3 July 2023 limits each party to rely upon two medico-legal reports for each claimed impairment, save with leave of the court: at 9–10 [10.5]–[10.6]. This restriction on the tendering of medico-legal reports in these applications is sensible and consistent with the Civil Procedure Act 2010.
[14]Or if seeking to prove a loss of earning capacity in accordance with s 325(2) of the Workplace Injury Rehabilitation and Compensation Act2013.
As just mentioned, the evidence in the applicant’s case was devoid of such material.
The judge was correct to observe that his assessment as to the applicant’s reliability and credibility was critical in his determination of the application. The judge was also correct to consider the principles as set out in Petrovic to be of relevance to an application for a physical impairment under paragraph (a) of the definition of serious injury in s 93(17) of the Act. Medical opinions are of either no or, at best, limited probative value if the history upon which the opinion is based is flawed.
Given the profound failure of the applicant to adequately disclose his pre‑existing medical conditions, and in particular his lower back pain, together with his attempts to disavow the accuracy of multiple contemporaneous medical entries made by his general practitioners prior to the accident, it was open to the judge (if not inevitable for his Honour) to consider the applicant an unreliable witness.

Proposed ground judge made an error regarding the facts of the case1: The

In support of this ground, the applicant raises six complaints, which he claimed were errors of fact by the judge.
First, the judge erred by failing to refer to the speed of the vehicles involved in the accident, and failed to describe the accident in a particular way. The applicant claimed that he was driving at 80 km/hr when the accident occurred, and the car in the opposite direction was travelling at 100 km/hr when it struck the pole. The applicant submitted that the judge erred for not referring to such circumstances in his reasons.
Second, the judge erred in stating that there was little evidence regarding his lower back injury, and also erred for stating that there was no supporting affidavit of his spouse. The applicant submitted that he had referred to his wife in his affidavit, including that she assisted him on a daily basis.
Third, the judge erred in finding that his affidavit and statement were ‘misleading at best’ and ‘patently wrong at worst’. In support of this alleged error, the applicant submitted that the judge failed to mention that a person on a disability pension could work up to 29 hours per week, and that at the time of the accident the applicant was enjoying his life.
Fourth, the judge erred in his criticism of the applicant’s failure to state that he was referred to Mr Pai for his knee problems, and also how he came to be on a disability pension. The applicant submitted that he had given evidence at the hearing of those matters which he considered relevant to the injuries he received as a result of the accident. The applicant emphasised he could have been killed in the accident.
Fifth, the judge erred by accepting the restrictions detailed in the disability support pension report. The applicant submitted that this report was ‘baseless’ and suggested that the reference to him suffering lower back pain at that time was a consequence of his doctors simply ‘copying and pasting’ that complaint from earlier clinical notes. The applicant also claimed the judge erred in his reference to the applicant using a walking stick prior to the accident.
In support of this alleged error, the applicant sought to reply upon the following:
(1)A written statement of Dr Ebrahim dated 18 November 2022, in which he stated that:
Mr Kabir Popal, 65yrs 6mths, has not required the use of any walking stick until after his MCA in 2015. I have seen him since 2010. The first time I referred him to a back specialist for back pain was after his accident in 2017.
(2)A written statement of Mr Najia Ralimi dated 14 November 2022, in which he stated that the applicant had not used a walking stick until 2017.
Sixth, the judge erred in finding that the applicant attended upon Mr Pai in respect of his knees and not his back.

Analysis

For the reasons that follow, the judge did not err in any of the ways alleged.
The affidavit and the applicant’s evidence made no reference to the speed of the vehicles just prior to the accident as being germane to the injuries he sustained. Further, the impact and force of the collision were not relevant to the question which the judge had to answer, being whether or not the applicant satisfied the statutory definition of serious injury. Therefore, there was no error by the judge in respect of this.
As stated above, in a serious injury application, a plaintiff may seek to rely upon affidavit material from a lay witness(es), including family members, friends and/or work colleagues, to corroborate the claimed impairment consequences. It was open to the judge to note and take into account the absence of such evidence.
His Honour was not obliged to accept the applicant’s evidence as to his state of health and employment status prior to the accident, especially in the absence of any corroborating evidence, as well as the lack of financial records from the pre‑accident period. Moreover, the other evidence adduced (and particularly that relating to the applicant’s receipt of the disability pension and his back complaints) of his pre‑existing health pointed squarely to a man who prior to the accident was in poor health and was now engaged in florid exaggeration of the effects of that accident.
The judge’s criticism of the applicant’s failure to disclose that the referral to Mr Pai was for his bilateral knee condition was open. In the absence of a medical report from Mr Pai, the judge was entitled to accept the letter which Mr Pai wrote to the applicant’s general practitioner, which clearly indicated the referral was in relation to his knee pain. The comments made by Mr Pai concerning the applicant’s lower back suggested that those complaints were incidental to the purpose of the referral. Therefore, there was no error by the judge in the manner contended.
The disability support pension report was a contemporaneous medical report compiled by the applicant’s treating general practitioner. The judge did not err in giving weight to its contents in his assessment of the applicant’s state of health prior to the accident, including his need to receive a disability support pension.
In accordance with Petkovski, the judge was required to draw a comparison between the applicant’s condition immediately before the accident and his condition thereafter, so that he could make an assessment as to the extent of the applicant’s additional impairment.[15] There was a deficiency in the applicant’s evidence as to the unrelated medical impairments suffered by him, both prior to, and subsequent to, the accident. We see no error in the judge’s criticisms about the state of the evidence regarding this, and in particular the reason for the applicant being granted a disability support pension.
[15]Petkovski [1994] 1 VR 436, 443–4 (Southwell and Teague JJ, Brooking J agreeing at 437).
Finally, the statements of Dr Ebrahim and Mr Ralimi were produced subsequent to the judge’s decision. To the extent that the applicant attempted to rely on new material, not relied upon or tendered before the trial judge, that attempt must be rejected. The material upon which the applicant attempted to place reliance in this Court could, with reasonable diligence, have been placed before the trial judge. Specifically, there could have been a report from Dr Ebrahim as to the applicant’s condition before and after the accident, including his use of a walking stick. In respect of Mr Ralimi, his statement as to the applicant’s use of a walking stick could have been in an affidavit, with an explanation as to how Mr Ralimi knew the applicant and for how long. In any event, even with that evidence properly adduced we are satisfied that it would not have affected in any relevant way the ultimate outcome. Accordingly, there is no basis upon which this material could now be admitted as fresh evidence in this Court.[16]
[16]See generally, Mullett v Nixon [2022] VSCA 174, [64]–[65] (Ferguson CJ, Beach and McLeish JJA); Knight 34 Langdon Road Pty Ltd v Bell [2023] VSCA 54, [48]–[49] (Emerton P, Walker JA and J Forrest AJA); Yin v Wu [2023] VSCA 130, [153]–[154] (Kyrou, T Forrest and Hargrave JJA).

Proposed ground 2: The judgment was unreasonable based on the evidence

In support of this ground, the applicant also raised six complaints.
First, the applicant contended that the judge unreasonably focused on the lack of adequate material from his treating practitioners. The applicant also submitted that it was unreasonable for the judge to state that the opinion of medical experts was heavily dependent upon acceptance of his account and that the judge only considered the history contained in the records of the Hallam Medical Group in his determination of the proceeding.
Second, the applicant submitted that the judge’s analysis of the three medico-legal reports of Associate Professor Love was unreasonable.
Third, the judge unreasonably rejected the reports of Dr Doig and Mr Brearley. The applicant submitted that the judge was not aware that these doctors had ‘tested’ his ability ‘for hours’ in order to make their respective findings of impairment, and it was unreasonable for the judge to question the ‘academic level and standards’ of those medical practitioners.
Fourth, the applicant submitted that the findings of the judge on reliability and credibility were unreasonable. The applicant submitted that he had studied at universities and institutes for 24 years and his academic level and work experience did not allow him to ‘tell wrong or untruthful statement[s]’.
Fifth, that the judge had considered irrelevant matters which were unrelated to the injuries he received as a result of the accident. The applicant submitted that it was unreasonable for the judge to take irrelevant ‘issues’ into account in his assessment of the application. It was put that the judge should only have regard to the applicant’s back and neck injury, as the applicant had not claimed that his knee pain was related to the accident.
Sixth, the applicant submitted that the judge was unreasonable in finding that the applicant’s knee injury would limit his ability to participate in activities, including to ‘potter’ at the Queen Victoria Market.

Analysis

In considering a serious injury application for a physical injury, a judge is required to determine whether the plaintiff’s impairment or loss of function as a result of the accident amounts to a serious long-term impairment within the meaning of serious injury in s 93(17) of the Act. In an application under the Act, the consequences of the impairment may be in relation to either pecuniary disadvantage, pain and suffering, or both. In determining if this threshold is met, a comparison must be made with other cases in the range of possible impairments or losses, such that the consequences of the impairment or loss of body function can be fairly described as, at least, ‘very considerable’, and certainly more than ‘significant’ or ‘marked’.[17] In undertaking this task, the judge must disregard the consequences of any unrelated impairments, whether pre‑existing,[18] post‑injury,[19] and/or in respect of other body functions.[20] In doing so, the judge must have regard to the whole of the evidence.
[17]Humphries [1992] 2 VR 129, 140 (Crockett and Southwell JJ).
[18]Petkovski [1994] 1 VR 436, 443–4 (Southwell and Teague JJ, Brooking J agreeing at 437).
[19]Philippiadis v Transport Accident Commission [2016] VSCA 1, [27] (Redlich, Kyrou JJA and Ginnane AJA).
[20]Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67, [24]-[25] (Maxwell P).
In applying those principles to the task before him, the judge correctly had regard to the following medical evidence:
(1)That concerning the applicant’s pre-accident health. This included the contents of clinical records, including the disability support pension report. This report was a contemporaneous account from the applicant’s treating general practitioner, as to the state of the applicant’s health as at March 2009, and the reason for him requiring a disability support pension. The applicant disputed the contents of this report. However, it was open to the judge to prefer this report, and to consider it probative of the applicant’s work capacity at that time. Further, the clinical records subsequent to 2009 detailed ongoing complaints of back pain, including the use of a walking stick in 2013. The applicant’s suggestion on appeal that such repeated references to back pain were a mere ‘copy and paste’ is without foundation. It was open to the judge to reject the applicant’s evidence which disputed the accuracy of those clinical records.
(2)That which related to the applicant’s co-morbidities, and in particular his bilateral knee osteoarthritis. This included the correspondence from Mr Pai, which the judge had regard to. As stated above, it was open to the judge to reject the applicant’s evidence that he was referred to Mr Pai for management of his back pain.
(3)The medico-legal evidence. In his reasons the judge referred to the three medico‑legal opinions tendered at the trial. When a medical opinion lacks a sufficient evidentiary foundation, it can be put aside.[21] In circumstances where the opinions of Mr Doig and Mr Brearley were offered without knowledge of the history of the applicant’s pre-existing lower back complaints, it was entirely appropriate for the judge to dismiss their opinions. Further, there was no basis for the applicant to contend that the judge was unreasonable in the way in which he dealt with Associate Professor Love’s reports. The first two reports had no history of the applicant suffering back pain prior to the accident, and the third report was fairly described by the judge as being based on an incomplete history. The way in which the judge critiqued such opinions was reasonable and open.
[21]Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, 604 [37] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2011] HCA 21. See also Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 743–4 [85] (Heydon JA); [2001] NSWCA 305.
We should add the following. Care must be exercised in the use of a patient’s medical records as evidence in a civil trial. This is particularly so where the maker of the record is not called to give evidence — as is the case in most serious injury applications determined in the County Court. Those records are compiled for the purpose of the clinical evaluation of a patient’s condition and not for selective forensic cross‑examination at a trial. Provided this is appreciated then the records can, as they did in this case, provide an appropriate basis for findings of fact or in relation to credibility — or both.[22]
[22]See, eg, Hettiarachchi v Transport Accident Commission (2023) 103 MVR 349, 359 [57]–[58] (Beach, Kennedy JJA and J Forrest AJA); [2023] VSCA 27.
Finally, in determining the application, the judge was entitled to make findings in respect of the applicant’s reliability and credibility, based upon the contents of his affidavit, and his oral evidence.
It is well recognised that a trial judge has a natural advantage of assessing the credibility of a witness.[23] As Kaye AJA (with whom Tate JA agreed) observed in Woolworths Ltd v Warfe:
[I]t is important not to underestimate the importance, in assessing credibility, of the advantage which the trial judge has in observing, at close quarters, the respondent under cross-examination of the type undertaken by counsel in this case. The transcript does not reveal matters such as the respondent’s demeanour, his tone of voice, and his manner of speech. Nor does the transcript record whether the witness spoke spontaneously, or whether he was hesitant in his speech. The bare reading of the transcript does not always adequately reveal the intellectual capabilities of the witness, or whether the witness is, by nature, articulate. The trial judge also has advantage of forming some view as to the personality of the witness. Thus the trial judge is able to assess whether the witness is naturally reserved, or, on the other hand, particularly self-confident by nature. Those, and other matters, are all part and parcel of the assessment by a trial judge of responses by a witness under cross-examination.[24]
[23]Fox v Percy (2003) 214 CLR 118, 125–6 [23] (Gleeson CJ, Gummow and Kirby JJ); [2003] HCA 22; Lee v Lee (2019) 266 CLR 129, 148–9 [55] (Bell, Gageler, Nettle and Edelman JJ); [2019] HCA 28.
[24][2013] VSCA 22, [114] (Tate JA agreeing at [1]).
Here, the judge had the advantage of seeing and hearing the applicant being cross‑examined. The judge was able to observe the applicant’s responses to the multitude of matters put to him, including parts of the treating practitioners’ medical records which related to his pre-accident and post-accident health. The applicant has not persuaded us that there was any error in his Honour’s conclusions about the credibility and reliability of the applicant’s evidence.
In the absence of any documentary evidence to support the applicant’s claim that he was working when the accident occurred, for the reasons detailed above, there was no error by the judge in his rejection of the applicant’s evidence of his pre‑accident work capacity.

Conclusion

For the reasons given above, the applicant’s proposed appeal has no prospect of success. Moreover, having reviewed all of the evidence for ourselves, we have concluded that the judge’s decision to refuse the applicant’s application was plainly correct. Accordingly, his application for leave to appeal must be refused.

[2023] VSCA 222

15 September 2023