Rajna Nikolic v Transport Accident Commission
[2020] VSCA 148
•5 June 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2019 0119
| RAJNA NIKOLIC | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
---
| JUDGES: | BEACH and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 June 2020 |
| DATE OF JUDGMENT: | 5 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 148 |
| JUDGMENT APPEALED FROM: | Nikolic v Transport Accident Commission (unreported, County Court of Victoria, Judge Coish, 14 October 2019) |
---
ACCIDENT COMPENSATION – Transport accident – Serious injury – Application for leave to commence common law proceeding – Impairment of function of dominant arm – Inaccurate medical histories – Pre-injury medical conditions – Primary judge’s unfavourable impression of applicant as a witness – Whether judge erred in assessment of evidence – Whether judge erred in rejecting evidence – Whether judge erred in preferring one witness over another – Whether judge’s reasons inadequate – Appeal having no real prospect of success – Application for leave to appeal refused – Transport Accident Act 1986, s 93.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J P Brett QC with Ms J Frederico | Zaparas Lawyers Pty Ltd |
| For the Respondent | Mr J Ruskin QC with Ms M Norton | Solicitor to the Transport Accident Commission |
BEACH JA
T FORREST JA:
On 16 June 2014, the applicant was a back seat passenger in a motor vehicle that was involved in a collision with another vehicle which had pulled out into the path of the applicant’s vehicle (‘the accident’). Following the accident, the applicant was taken by ambulance to the Werribee Hospital where, amongst other injuries, she was found to have a fracture involving her right forearm.
By an originating motion filed in the County Court on 20 March 2019, 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 in respect of the injuries she sustained as a result of the accident.
While the applicant initially contended that she had sustained a serious long-term impairment of her right upper limb, a serious long-term impairment to her spine and a severe long-term mental disorder, at the hearing of the application, relying upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Act, her claim was confined to one that she had sustained a serious long-term impairment of her right arm.
The application was heard in the County Court by Judge Coish on 10 and 11 October 2019. On 14 October, the judge dismissed the application. The judge was not satisfied that the applicant had suffered a physical impairment which was either ‘serious’ or ‘long-term’ within the meaning of the Act.[1]
[1]Nikolic v Transport Accident Commission (Unreported, County Court of Victoria, Judge Coish, 14 October 2019) (‘Reasons’).
The applicant now seeks leave to appeal against the order refusing her application, on the following proposed grounds:
1. The judge erred in that he rejected the affidavit evidence of Mary Luhan without any or any sufficient reason so to do.
2. The judge erred in preferring the opinion of Dr John Owen over the opinions of other medical assessors, in that —
(a) his Honour wrongly used his assessment of the applicant as an unsatisfactory and unreliable witness, as support for Dr Owen’s opinion that the applicant exhibited ‘abnormal illness behaviour’; and/or
(b) his Honour otherwise preferred Dr Owen’s opinion when there was no or no adequate reason so to do.
3. The judge erred in that he —
(a) failed to identify the nature and extent of the organic impairment of function of the applicant’s right wrist;
(b) failed to identify the extent to which such impairment resulted in limitations on the applicant’s activities; and/or
(c) failed then to assess whether such limitations were sufficient to establish ‘serious injury’ within the meaning of s 93 of the Act.
4. The judge wrongly, inappropriately and impermissibly confused his assessment of certain inadequate histories recorded by doctors, with his assessment of the applicant’s demeanour and reliability as a witness.
5. The judge erred in failing to provide any or any adequate reasons for his conclusions that —
(a) the applicant was an unreliable witness;
(b) the opinion of Dr Owen was to be preferred over the opinions of the other medical assessors; and/or
(c) the evidence of Mary Luhan ought not to be accepted.
The evidence generally
On the hearing of the application in the County Court, the applicant relied upon two affidavits that she swore on 6 March 2018 and 30 August 2019. She also relied upon a supporting affidavit sworn on 30 August 2019 by Mary Luhan, a friend who had then known her for nearly ten years. The parties also tendered various documents, including medical reports, radiological reports and clinical notes.
The only witness to give viva voce evidence on the application was the applicant. In her examination-in-chief, the applicant adopted her affidavits, correcting only one small matter of detail and identifying some photographs, some of which were then tendered. She was then cross-examined, and subsequently re-examined.
Applicant’s background and evidence
The applicant was born in Serbia in 1955. She was 59 at the time of the accident, and 64 at the time of trial. She is a widow, with two adult sons and three grandchildren.
The applicant completed secondary school in Serbia, and then worked in a factory. She migrated to Australia in 1982. She was employed by Redbook Carpet for approximately five years, before suffering an injury to her back in the course of that employment. She ceased work following this injury to her back.
In her first affidavit, however, the applicant said that she worked in Australia for about five years, and ceased working to devote her time and care to one of her sons who has cerebral palsy. That said, she also deposed in the same affidavit to being in receipt of a disability pension at the time of the accident, due to a back injury suffered at Redbook Carpet.
At the time of the accident, the applicant was under the care of her general practitioner in respect of various health issues. In her first affidavit, she identified a number of medical conditions which she suffered from at the time of the accident, and other matters of history, as follows:
•A goitre and subclinical hyperthyroidism;
•I have had a hysterectomy and colectomy.
•In 2012 I suffered from neck pain and referred arm pain. I also became depressed.
•In the fall at the supermarket[2] I also suffered shoulder pains and buttock pains caused by partial thickness tear of the gluteus medias. I also had some right arm swelling pain and weakness. I continued to suffer back pain, neck pain and right shoulder and upper limb symptoms until 2013 and into 2014. I was treated by my general practitioner, Dr Andrianakis.
•Prior to my accident, I have had many x-rays and radiological investigations of my cervical spine, lumbar spine, right buttock, right shoulder and right hip. I was under the treatment of Mr Li who I am told was of the opinion that my right arm symptoms were as a result of radiculopathy from my cervical spine pathology. I last saw Mr Li in mid-2013.
•My husband died in February 2014, and at the time of the accident, I was feeling physically and mentally unwell. I was suffering from grief following the death of my husband and cervical and lumbar spine problems. I suffered depressive symptoms due to my husband’s diagnosis of lung cancer which he had for three and a half years before he passed away on 5 February, 2014.
•I live with my son and daughter in-law. My daughter in-law does not like me and there has been tension between the two of us, which is upsetting to me.
•I have suffered from nerves and depression dating back for a number of years. I have received treatment from my general practitioner with antidepressants and Aropax for a period. I take Diazepam at night.
[2]As described in her first affidavit, the applicant fell in a supermarket in November 2011, injuring her right shoulder and hip (for which she subsequently received a settlement in the sum of $90,000 plus costs).
As we have already noted, following the accident, the applicant was taken to the Werribee Hospital. An X-ray taken at the hospital showed an undisplaced impacted fracture through the distal radial metaphysis. The applicant also had what she described as ‘a lot of bruising and swelling over [her] face, cheeks and nose’. Additionally, she had headaches, neck pain, ‘and then increased back pain’.
Subsequently, the applicant attended her general practitioner, Dr Andrianakis, for treatment for her injuries. In 2015, the applicant was referred to a hand surgeon, Mr Peter Maloney. He referred her for ‘electro physical studies’, which were ultimately reported as normal. In 2016, the applicant had nerve conduction studies performed on her right arm. Apparently these did not show any findings of note.
In 2017, the applicant was involved in another transport accident when she was ‘rear ended by another car and pushed into a car in front’. Her evidence was that in that incident, she suffered injuries to her lower abdomen, chest, neck and nose.
The applicant is right-handed. Her evidence was that, as a result of the accident, she suffered from pain in her right arm. The pain is present all the time. Her fingers are numb, and it is hard for her to make a fist. She also said that she had lost strength in her right arm. Her sleep has been affected, particularly if she rolls onto her right arm as this causes pain and wakes her up.
In her first affidavit, the applicant deposed to her right arm pain affecting many of her activities as follows:
•I have difficulty washing the dishes because I tend to drop the dishes I hold in my right hand.
•I have difficulty turning a door knob with my right hand.
•I have difficulty fastening buttons on my shirt.
•I have difficulty with housework, such as vacuuming.
•I cannot put pressure on my hand to push up from a chair.
•I have difficulty using a tissue with my right hand.
•I have difficulty cutting meat.
•I used to love cooking. I am now restricted in cooking because of the impairment of my right upper limb.
•I used to love doing crochet. I would make pictures which I would put in frames and table cloths. I am no longer able to do same because the repetitive movements cause me pain in my right upper limb.
•I used to enjoy knitting, particularly for my grandchildren, including jumpers and socks. I no longer do same because it also causes me pain in the right upper limb due to the repetitive movements.
•I had difficulty cutting my nails and was unable to cut my toe nails which caused me to have problems with my nails.
In her second affidavit, the applicant expanded on the matters she had described in her first affidavit. Amongst other complaints, the applicant deposed:
•I have trouble cutting up my food due to weakness in my right upper limb.
•I am restricted in my ability to assist with the care of my grandchildren. I find them difficult to lift and to attend to their needs, such as cooking for them and playing with them.
•I have tried to rely on my left hand more, but I have not been successful in my attempts to adapt to using my left hand. It has been difficult for me to make adjustments using my left hand to do manual tasks.
•I struggle with activities of daily living, including bathing. I have difficulty washing my hair.
•I am restricted in performing home duties, such as cleaning and changing the sheets.
•When I hold objects in my right hand, I often drop them.
The applicant also deposed to being ‘very upset’ about the loss of her ability to undertake handicraft work which she used to do prior to the accident. She said that the finer movements associated with such work, involving twisting of her wrist and the performance of repetitive movements, increase the pain in her right wrist. She said that the handicraft work was ‘an important connection to [her] memories of [her] upbringing and to [her] country of birth’. As she put it:
Sadly, I will not be able to pass on these traditions to my one-year old granddaughter which is a great disappointment to me.
One of the consequences the applicant relied upon in support of her application concerned her driving her disabled son to and from work every day. The applicant’s difficulty with performing this activity after the accident was referred to in both of her affidavits as follows:
(1)In her first affidavit, the applicant said that she drove her son to work in the morning and picked him up in the afternoon. His work was ‘about 35–40 minutes away’. As a result of her neck condition, she had difficulty turning her head to look to the left and the right when driving. She said that she needed to rest her back when they arrived at his work; and when she arrived back home, she laid on the couch to rest her back ‘to alleviate the pain’.
(2)In her second affidavit, the applicant said that her son’s work was about three-quarters of an hour from home, which meant that she had to make the return trip of one and a half hours twice a day to take him to work and pick him up from work. She then said:
Due to my right wrist injury, I struggle with driving. I hold the steering wheel as much as I can with my left hand. I still need to use my right hand when turning corners and the like. As a result, the pain in my right wrist increases by the time I finish each one and a half hour round trip. By the end of the day, when I have driven three hours, my right arm is aching. Although doing this much driving aggravates my right wrist condition, … my priority is to care for my disabled son. I want to provide him with every bit of support I possibly can as life is very difficult for him.
(3)In her first affidavit, the applicant made no reference to any right wrist pain caused by driving. In her second affidavit, the applicant made no mention of any neck or back pain caused by driving.
The applicant was cross-examined about histories she had given to medical practitioners. Her answers to many of these questions were that she did not remember. For example, she said that she did not remember telling Mr Thomas Kossmann (an orthopaedic surgeon, who examined the applicant, at the request of her solicitors, in July 2015) that prior to the accident, ‘she was fit and well and had no previous injury or illness’.
Similarly, she could not remember telling Associate Professor Peter Doherty (a consultant psychiatrist, who examined the applicant, at the request of the respondent, in July 2019) that her physical health before the accident was ‘great and no problem’ and that ‘her back did not bother her, though it was not 100 per cent’.
The applicant was also cross-examined about consultations with medical practitioners, and treatment she received, prior to the accident. For example, she was cross-examined about a consultation that she had with Dr Andrianakis on 24 August 2012. Dr Andrianakis’ note of that consultation included a history of ‘reduced [range of movement] right shoulder pains and weakness’ and ‘reduced grip strength’. In cross-examination the applicant was asked whether she complained to Dr Andrianakis about reduced grip strength in her right hand. She said:
I can’t remember. Maybe I did, maybe I didn’t. I can’t remember. I can see it here [referring to the clinical note].
A short while later, the applicant, in answer to another question, said, ‘I am really lost now, I need to actually take my medication’. The matter was then adjourned,[3] for cross-examination to continue the next day.
[3]At 2:51 pm.
The following day, the cross-examination continued in a similar vein, with the applicant being asked questions about complaints she had made about sleep problems to Dr Andrianakis during three consultations in 2012,[4] one consultation in 2013[5] and four consultations in 2014, prior to the accident.[6]
[4]29 February, 2 July and 12 October 2012.
[5]1 March 2013.
[6]7 March, 26 April, 2 May and 30 May 2014.
Medical evidence
In the hearing before the judge, in addition to medical evidence about the applicant’s right arm injury, there was extensive medical evidence which was relevant to the applicant’s initial claims of having suffered a serious long-term impairment to her spine and a severe long-term mental disorder. The main opinions in relation to the applicant’s right arm injury, however, came from Dr Andrianakis, Mr Maloney, Mr Kossmann, Dr Hazem Akil, Mr Bruce Love, Mr Ash Chehata and Dr Owen.
The applicant had been a patient of Dr Andrianakis since January 2012. He was the main general practitioner who saw her when she attended his clinic (Prime Medical).
In his reports,[7] Dr Andrianakis summarised the applicant’s complaints and medical treatment since the accident. He noted referrals to a neurosurgeon for her lower back complaint, and referrals to a clinical psychologist and a psychiatrist for psychological and psychiatric matters. In his most up to date report, he referred to the applicant’s injuries from the accident as follows:
[7]Dated 14 April 2016 and 25 May 2019.
She continues to complain of significant pains and discomfort in her right upper limb, namely wrist and hand but extending up through the elbow and into the shoulder.
Mrs Nikolic is right hand dominant and this injury to her right upper limb caused by the motor car accident as described cause her to struggle with most manual duties in her normal daily activities.
After years of treatment and rehabilitation, the right wrist and hand has not recovered and has a very poor prognosis for further improvement.
Mrs Nikolic also continues to struggle daily with her lower back pains and stiffness as well as her right lower limb pains (hip and knee) related to the motor car accident.
She complains her mobility is affected daily and often her sleep with the pains in her back and hip.
Given the degenerative changes reported on X-rays, Mrs Nikolic has a poor prognosis of recovery from the lower back and right hip/knee pains as described.
Mrs Nikolic continues to struggle with the injuries she sustained in the motor car accident in June 2014.
As we have already noted, Dr Andrianakis referred the applicant to a hand surgeon, Mr Maloney, in 2015. Mr Maloney first saw the applicant in January 2015. In his report,[8] he described her consultations with him in 2015 and 2019. With respect to his consultation in 2019, he said:
I found the examination a little bit difficult but there was some slight inconsistencies with her ability to move the wrist. I gather there was a degree of apprehension. There was no evidence on this date of active carpal tunnel compression of the median nerve. A CT scan was requested … , it shows no signs of post-traumatic osteoarthritis but there was mild positive ulnar variance. The distal radial ulna joint was congruent.
…
I offered her arthroscopic surgery and debridement given the chronicity of the problem. She came with a friend to help with interpretation and understanding and she was not interested in this. I have not seen Rajna Nikolic since.
[8]Dated 16 September 2019.
Mr Maloney did not, however, doubt the relationship between the accident and the applicant’s right wrist condition. But, as to diagnosis, he said:
This lady’s diagnosis is residual ulna sided wrist pain following a right dominant wrist fracture sustained in 2014 in a motor vehicle accident. A CT scan suggests underlying low-grade ulna positive variance. This lady has not been willing to undertake an arthroscopic assessment and likely therapeutic procedure for this to date. As a result, I am unable to be absolutely definitive about the diagnosis here.
Mr Maloney said that the accident had affected the applicant’s ‘ability to work affectively [sic] in social, recreational and domestic circumstances’. He also said, however, that ‘interestingly’ although she returned to see him, she had no interest in undergoing definitive management in the form of arthroscopic surgery to treat her condition.
Mr Maloney described the applicant’s prognosis as poor, she having returned to see him twice and ‘when offered treatment for this chronic problem she has no interest’. As to the seriousness of the applicant’s condition, he said:
Apart from pain that can be managed with simple activity avoidance and wrist splint, I do not think the consequences of this are classified as serious ongoing consequences for her life. Pain is recorded and that is a common feature, but they are not life-threatening as such to her quality of life. One would have thought if they were, she would have requested treatment despite her reticence and anxiety regarding treatment and other procedures.
The applicant was examined at the request of both parties by Mr Kossmann on 24 July 2015 and 24 August 2016. As the judge noted, at his first examination, Mr Kossmann obtained the inaccurate history that prior to the accident the applicant ‘was fit and well and had no previous injury or illness’.
In Mr Kossmann’s reports, he discussed the applicant’s symptoms affecting her cervical and lumbar spines, her left shoulder, her right arm and her hips. He said she suffered from pain issues affecting those parts of her body after she was involved in the accident. Following his second examination, Mr Kossmann diagnosed the applicant as suffering from nine conditions. Relevantly to the right arm, Mr Kossmann’s diagnosis was:
(1)Distal right forearm fracture, initially slightly dislocated; meanwhile in bayonet malalignment.
…
(7)Pain and movement restrictions right shoulder.
(8)Pain and movement restrictions fingers of right hand.
Mr Kossmann described the applicant’s social domestic and recreational activities as having been severely affected due to her ‘ongoing pain issues in her cervical and lumbar spine, both of her upper extremities and both of her hips’. Mr Kossmann went on to say that, due to her ongoing pain issues, the applicant has no work capacity and he did not believe that she would ever return to any employment.
In a supplementary report,[9] Mr Kossmann amended his seventh diagnosis as follows:
(7) Pre-existing movement restrictions right shoulder joint on the basis calcific tendinopathy of the supraspinatus tendon with deep partial thickness tear, bursal bunching on abduction (see report of Mr Li dated 4 June 2012 and ultrasound right shoulder dated 21 October 2012).
[9]Dated 17 May 2017.
The applicant was examined at the request of her solicitors, by Dr Hazem Akil, a neurosurgeon. Dr Akil examined the applicant on 20 June 2019. He took a history of persistent and significant lower back pain; persistent and significant right leg pain; persistent and significant right wrist and hand pain that radiates towards her right elbow; and that she felt more nervous and agitated since the accident. He expressed his diagnoses of the applicant in the following terms:
Given the symptoms that Mrs Nikolic is complaining from and the results of my examination, I conclude that she has an exacerbation of her lumbar spondylosis caused by the road traffic accident.
There is a possibility that she has complex regional pain syndrome in her right wrist. I note that she had a previous nerve conduction study of her hand which did not show any particular nerve entrapment that could explain her symptoms.
The applicant was examined, at the request of her solicitors, by Mr Bruce Love, an orthopaedic surgeon. Mr Love examined the applicant on 23 July 2019. On examination, he found her right wrist movement to be marginally restricted. He diagnosed her as having suffered a fracture of the distal radius which had left her with a painful right wrist.
The applicant was examined, at the request of her solicitors, by Mr Ash Chehata, a shoulder, elbow and wrist surgeon. Mr Chehata examined the applicant on 13 August 2019.
Mr Chehata expressed the opinion that there was a ‘clear fracture of the radius that has resulted in a cast placed on the wrist and as a result has caused an element of restriction in her right wrist’. In answer to a question of whether he believed that the applicant’s quality of life had diminished due to her wrist, face, head, neck, right shoulder, back and psychological reaction injuries sustained as a result of the accident, he said:
Yes, her quality of life has diminished as a result of multiple motor vehicle accidents and falling in the shopping centre. There is no doubt that there has been a steady deterioration in her symptoms as she is progressively getting older and she is also carrying a significant burden of psychological disturbance with severe depression and anxiety.
Finally, the applicant was examined at the request of the respondent, by Mr Owen, a consultant orthopaedic surgeon. Mr Owen examined the applicant on 16 July 2019.
On examination, Mr Owen found that there was a ‘reasonable passive range of movement of her fingers and her actual measured range of movement of her wrist was quite good’. He said, however, that there was ‘quite major illness behaviour in the give way weakness in her wrist and hand’. He described the applicant’s injury to her right wrist as ‘really a benign injury and should not have any significant long-term sequelae’. He said that the prognosis for this injury ‘should be quite good but she has major illness behaviour’. He concluded that the level of disability that the applicant exhibited was disproportionate to the injuries she sustained, saying:
Her major problem as she presented to me today was with the right wrist. This fracture is relatively minor with a very benign outcome normally. It should not have a major effect on her capacity for domestic or leisure activities.
Evidence of Mary Luhan
In her affidavit, Ms Luhan deposed to having known the applicant for nearly ten years. Prior to the accident, they spent a lot of time doing craftwork, including tapestry, cross-stitch and crocheting. They used to be neighbours, and they used to go to each other’s houses to do craftwork together and chat.
Ms Luhan’s evidence was that the craftwork the applicant used to do requires repetitive movements with a dominant hand, up and down and back and forth, as well as twisting movements. She said that this put a lot of strain on a person’s wrist.
Ms Luhan said that the applicant used to cook for her on occasions, but now she prepares meals for the applicant.
Ms Luhan said that the applicant often tells her that her wrist is painful. Since the accident, they no longer do needlework together — even though the applicant still comes to visit.
Primary judge’s reasons
The judge commenced his reasons for judgment by identifying the issue in dispute as being whether the undisplaced fracture through the distal radial metaphysis, suffered by the applicant in the accident, was a serious injury within the meaning of the Act. The judge then said that, because there was evidence that the applicant had ‘had an adverse psychological reaction to what [had] been described as a relatively minor or benign injury which ordinarily should not have any significant long-term sequelae’, the principles enunciated in Richards v Wylie had to be applied.[10] Then, after referring to the onus of proof being on the applicant, to an oft-cited passage in Humphries v Poljak,[11] the judge turned to the evidence.
[10](2000) 1 VR 79 (‘Richards’). In Richards, this Court held that there was a division in the definition of ‘serious injury’ between injuries with physical consequences and those with mental consequences; that the inquiry under paragraph (a) of the definition of ‘serious injury’ focussed attention first upon whether the injury had produced an organic impairment or loss of a body function, and then by reference to the consequences of that impairment to determine whether it was ‘serious’; and that a mental response to a physical impairment might be one of the relevant consequences which, along with others, a court would need to evaluate in determining whether the particular impairment was ‘serious’.
[11][1992] 2 VR 129, 140 (‘Humphries’).
The judge set out the applicant’s background and summarised her evidence, including her evidence of the consequences of her right arm injury. He noted that she was cross-examined extensively on her general practitioner’s medical records of numerous consultations prior to the accident — and in particular complaints of right arm symptoms made by the applicant at six consultations in 2012,[12] two consultations in 2013[13] and three consultations in 2014 prior to the accident.[14] He also referred to a detailed note about the applicant’s physical and emotional state, made by Dr Kennedy who saw her on 10 June 2014 — some six days prior to the accident.
[12]29 February, 30 March, 13 April, 14 May, 2 July and 24 August 2012.
[13]22 November and 6 December 2013.
[14]29 January, 6 February and 7 March 2014.
The judge said that much of the cross-examination of the applicant was directed to the histories given by her to doctors, ‘which were in general terms that she was not suffering from any pre-existing injuries or conditions, particularly involving the right arm, prior to the accident’. The judge referred to histories of this kind recorded in the reports of seven of the medical practitioners, including Mr Kossmann, Mr Love and Mr Owen.
Next, the judge summarised the medical evidence — referring in particular to the reports and opinions of Dr Andrianakis, Mr Maloney, Mr Kossmann, Dr Akil, Mr Love, Mr Chehata and Dr Owen, before turning back to the issue that fell to be resolved — namely whether the impairment of the function of the applicant’s right arm caused by the accident was serious within the meaning of the Act. In commendably concise reasons, the judge then said:
Each party addressed me on the plaintiff's credibility and reliability. I formed a very unfavourable impression of the plaintiff as a witness. I did not find the plaintiff to have been a reliable witness on the critical issue of the nature and extent of the transport accident right arm injury. I found the plaintiff's evidence on the extent of her pre-transport accident right arm symptoms as disclosed in her affidavits and in the various histories to doctors to have been most unreliable and misleading.
I accept from the plaintiff's general practitioner's clinical records that the plaintiff was complaining of significant symptoms in her right hand and right arm over a number of years prior to the transport accident and these symptoms included numbness, weakness and pins and needles. I found the plaintiff's evidence to have often been non-responsive. Even making all appropriate allowances for language difficulties and the plaintiff's psychiatric state she was, in my opinion, a totally unsatisfactory and most unreliable witness. She was frequently upset, tearful and irritated by cross-examination. There was, in my opinion, no satisfactory explanation for what I consider to have been glaringly inaccurate histories provided to many doctors. In view of the plaintiff's extensive pre-transport accident impairments and my unfavourable impression of the plaintiff as a witness, I place little weight on the observations of the plaintiff's friend, Mary Luhan detailed in her affidavit dated 30 August 2019.
There has been a significant adverse psychological reaction to what, in my opinion, was a relatively minor physical injury. I accept the analysis of Mr Owen that the plaintiff suffered a relatively minor physical injury in the transport accident and there has been a supervening adverse psychological reaction in the form of major illness behaviour. I accept Mr Owen's opinion that ordinarily there should not be any significant long-term sequelae from an injury of this nature. I found Mr Owen's analysis of the plaintiff's presentation and injury to have been logical, thorough and compelling. I prefer Mr Owen's opinions to the other medical opinions. Mr Owen's opinions are consistent with my assessment of the plaintiff's presentation as a witness, particularly her disproportionate response in terms of level of disability with what was a relatively minor physical injury. It is clear from Mr Maloney's report that he has difficulty in providing a definitive diagnosis.
Having regard to the principles enunciated in Richards v TAC & Wylie, whilst I accept the undisplaced fracture may possibly have resulted in a degree of organic impairment I am not satisfied this is either 'serious' or 'long-term.'
I have arrived at this conclusion having regard to what I consider to be strong evidence of an overwhelming supervening psychological reaction of major illness behaviour. In my opinion, this psychological reaction, major illness behaviour, is producing most of any impairment or loss of function of the right arm. In these circumstances the plaintiff has not established serious injury within the meaning of paragraph (a) of the definition of serious injury.
Parties’ submissions
The applicant
In their written case in this Court, counsel for the applicant summarised the case before the primary judge as one involving the following elements:
·The applicant had numerous health problems prior to the accident, and her home life was unhappy, but she had retained the capacity to perform intricate craftwork, which gave her considerable enjoyment and satisfaction. She had also retained the ability to cook well, particularly pastries.
·As a result of the injury to her right wrist suffered in the accident, she was no longer able to perform craftwork, and her cooking had become very limited. Additionally, the activity of driving her disabled son to and from work (a total of three hours per day) had become more difficult and painful. These consequences satisfied the test in Humphries — disclosing an impairment which could be fairly described at least as ‘very considerable’, and certainly more than ‘significant’ or ‘marked’.
It was then submitted by counsel that, to deal with the applicant’s case, it was necessary for the judge to make findings about the extent of the applicant’s relevant activities before and after the accident, and to consider whether any loss found was, ‘for this applicant’, very considerable. This, the judge did not do (ground 3).
Next, the applicant contended that the judge’s assessment of her as an unreliable witness was unfair. In support of this contention, counsel for the applicant submitted that the applicant’s answers to questions in cross-examination that she could not remember, in circumstances where she was prepared to accept that the doctors had properly recorded her histories, should have been accepted as truthful and went to her credit, not against it.
As to the judge’s adverse finding as to the applicant’s credit, made on the basis of histories given to doctors, the applicant submitted that this was ‘not fully justified’. While it was conceded that the history given to Mr Kossmann, if accurately recorded, was plainly incorrect, the applicant’s counsel sought to contextualise the various critical matters of history recorded in a number of reports, in support of their submission that the judge’s finding was not justified (ground 4).
Under ground 1, the applicant took issue with the judge’s reasoning for rejecting the evidence of Ms Luhan. The applicant submitted that it was ‘totally illogical’ for the judge to reject Ms Luhan’s evidence on the basis of his unfavourable impression of the applicant as a witness. To reject Ms Luhan’s evidence on that basis was submitted to be both wrong and ‘contrary to the principles expressed in Principe v Transport Accident Commission’.[15]
[15][2016] VSCA 205 (‘Principe’).
In relation to ground 2, the applicant’s counsel contended that the judge erred in accepting the opinion of Mr Owen that the applicant exhibited ‘abnormal illness behaviour’. In support of that contention, they submitted that the underlying facts did not support that conclusion. Moreover that conclusion was specifically disavowed by the consultant psychiatrist who examined the applicant at the respondent’s request, Associate Professor Doherty. As the applicant put it in her written case:
His Honour’s preference of Dr Owen’s opinion, without proper support, is strikingly similar to the approach strongly criticised by this Court in Hunter v Transport Accident Commission.[16]
[16][2005] VSCA 1 (‘Hunter’).
Under ground 5, the applicant contended that, for the reasons already given, the judge arrived at conclusions and made assessments which were not open to him. The applicant submitted that, ‘if and insofar as such assessments were open to him, the judge failed to provide adequate reasons for such assessments and conclusions.’
In oral argument, senior counsel for the applicant conceded that the applicant’s wrist injury was ‘relatively minor’ and had ‘very substantially healed’. His submission, however, was that the undisputed consequences of the injury (being primarily the applicant’s inability to engage in her handiwork hobby, and to a lesser extent her difficulty with cooking) could fairly be described as at least ‘very considerable’ as required by Humphries.[17] The applicant’s case was that the judge erred in failing to accept the evidence of the applicant and Ms Luhan in relation to these consequences and their significance; and also in failing to examine them (the relevant consequences) and make findings about them.
The respondent
[17][1992] 2 VR 129, 140.
In response to the applicant’s submissions, the respondent contended that none of the applicant’s grounds of appeal had any real prospect of success, and that leave to appeal should accordingly be refused.
In relation to the judge’s credit finding, it was submitted that this should not be disturbed unless it was ‘glaringly improbable’ or ‘contrary to compelling inferences’.[18] The respondent submitted that, to the contrary in this case, the unfavourable credit finding made by the judge was open to him, on the evidence, and having regard to the advantages he enjoyed in seeing and hearing the applicant give evidence.
[18]See Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; Lee v Lee (2019) 372 ALR 383, 396 [55].
In relation to particular submissions made by the applicant in respect of her grounds of appeal, the respondent submitted:
·The judge was entitled to prefer the opinion of Dr Owen, which accorded with the judge’s own observation of the evidence and concerns about the applicant’s credit.
·In any event, it is difficult to see how the applicant could have succeeded even if the judge had preferred the opinions of the other medical practitioners (and specifically Mr Love and Mr Chehata).
·The judge did not fail to consider the impact of the applicant’s injuries on her activities. There was an issue as to which injury caused which consequence. In this case, it was the applicant’s psychological reaction which the judge concluded was causing the bulk of any impairment. The judge’s finding to that effect thus correctly preserved the textual distinction between paragraphs (a) and (c) of the definition of serious injury.[19]
[19]Richards (2000) 1 VR 79, 88 [18].
In relation to ground 1, the respondent submitted that it was important to note that the judge did not reject the evidence of Ms Luhan. Rather, he said he placed little weight on that evidence having regard to his findings concerning the applicant’s pre-accident impairment and his unfavourable impression of her as a witness. The respondent submitted that that conclusion needed to be considered in light of:
·any apparent acceptance by the judge that the applicant could no longer engage in craft and some cooking activities;
·evidence that the physical limitations that prevented the applicant from engaging in those activities predated the accident; and
·the judge’s conclusion that, to the extent that inability to engage in such activities arose from the accident, it related to a psychological (not physical) condition.
The respondent submitted that, in those circumstances, Ms Luhan’s evidence was not material to the outcome of her application before the primary judge.
Finally, the respondent submitted that there was no substance in the applicant’s complaint about the adequacy of the judge’s reasons. The reasons fell to be judged by reference to the way the case was argued below. Moreover, the reasons provided an intelligible explanation of the judge’s path of reasoning that led to his ultimate conclusion dismissing the application.
Analysis
It was not disputed before the primary judge (or in this Court) that, as a result of the accident, the applicant suffered an undisplaced impacted fracture through the distal radial metaphysis. The issue at first instance concerned the nature and extent of the consequences of this physical injury. While there are some injuries which only have to be identified to show that they are serious within the meaning of the Act,[20] the applicant’s injury was not one of these. Her case, like so many personal injury cases was, as has been repeatedly said before, one where the reliability of the applicant/plaintiff was of considerable importance to the ultimate outcome of the proceeding.[21]
[20]An extreme example would be the amputation of an arm or leg.
[21]See generally Mobilio v Balliotis [1998] 3 VR 833, 836; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439, 448; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, 1609 [60]; Gjorgovska v AFM Cleaning Services Pty Ltd [2006] VSCA 104, [27]; Woolworths Ltd v Warfe [2013] VSCA 22, [88] (‘Woolworths’); Veljanovska v Verduci (2014) 42 VR 222, 231–2 [39]–[40]; Haidar v Transport Accident Commission [2016] VSCA 182, [30]; Fenton v AIA Australia Ltd [2017] VSCA 331, [91]; Rowe v Transport Accident Commission [2017] VSCA 377, [89]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243, [74]; Yilmaz v Specialty Fashion Group Ltd [2019] VSCA 100, [73]; Johns v Oaktech Pty Ltd [2020] VSCA 10, [76]; Apps v Victorian WorkCover Authority [2020] VSCA 21, [66]; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109, [87]–[88].
In the present case, the credit of the applicant, and the reliability of her evidence, was even more critical than usual, having regard to the consequences she claimed at various times to having suffered as a result of injuries affecting other parts of her body (including her lower back, neck and lower limbs). The significance of the credibility of the applicant was not diminished, or made less relevant, by the fact that the applicant and Ms Luhan gave ‘unchallenged evidence’ about the applicant’s inability to undertake handiwork or her difficulties with cooking after the accident. On any view of that evidence, it remained (as one of a number of issues) for the judge to determine, in fact, how significant any alleged consequence really was so far as the applicant was concerned. That determination required an acceptance of the applicant’s evidence.
The judge, having seen and heard the applicant being cross-examined, formed an unfavourable view of her as a witness. He described her evidence as often being ‘non-responsive’, and said that, even after making all appropriate allowances for language difficulties, the applicant was ‘a totally unsatisfactory and most unreliable witness’. Having read the transcript of the applicant’s evidence for ourselves, we are unable to see how the judge could really have come to any different conclusion. That said, it is sufficient for us to say that, contrary to the applicant’s submissions, we see no error in the judge’s assessment of the applicant as a witness. It goes without saying that his Honour’s advantage of seeing and hearing the applicant’s evidence places him in a far better position than us to make such judgments.[22]
[22]In so far as the applicant submitted that the judge found her an unacceptable witness because she was ‘frequently upset, tearful and irritated by cross-examination’, we reject that submission. As his Honour’s reasons disclose, his unfavourable view of the applicant as a witness was founded on a more substantial basis than this (incorrect and misleading histories and non-responsive answers). Moreover, while demeanour may in many cases be an insufficient basis upon which to make an unfavourable finding, that is not to say that demeanour is never of any relevance (as to the relevance of the manner in which answers might be given to pertinent questions in cross-examination, see Woolworths [2013] VSCA 22, [113]–[114]).
Moreover, there is no substance in the applicant’s contention that the judge ‘wrongly, inappropriately [or] impermissibly confused his assessment of certain inadequate histories recorded by doctors, with his assessment of the applicant’s demeanour and reliability as a witness’ (ground 4). The judge reasoned in a perfectly orthodox manner from the incorrect histories given by the applicant and her failure to give any explanation for what he described as these ‘glaringly inaccurate histories’ to a conclusion that her reliability as a witness had been substantially (if not totally) undermined. There was no error in this approach. Additionally, it was no answer to his Honour’s criticism to say that the applicant was not asked to give any explanation for her incorrect histories – the applicant was more than adequately cross-examined about her histories.
Under ground 1, the applicant makes complaint that the judge erred in rejecting the affidavit evidence of Ms Luhan, ‘without any or any sufficient reason so to do’. There is no substance in this complaint. The evidence of Ms Luhan was based upon her observations of the applicant, and what the applicant said to her about wrist pain. The judge was entitled to conclude that that evidence was only as reliable as the applicant’s presentation and statements to Ms Luhan.
Moreover, contrary to the applicant’s submissions, this was not a case like Principe.[23] The distinguishing feature is that, in Principe, the genuineness of the complaints, made by the applicant to lay witnesses, was not in issue.[24] Contrary to the applicant’s submissions, the present case has less in common with Principe, but considerably more in common with De Agostino v Leatch,[25] where this Court held that once significant inroads had been made into the injured applicant’s evidence, the usefulness of apparently corroborative lay evidence was (in the circumstances of that case) ‘to a large extent negated’.[26] Indeed, in De Agostino, this Court said, again in the circumstances of that case, that it was not surprising that the lay evidence appeared to have played a minor role in the primary judge’s determination.[27]
[23][2016] VSCA 205.
[24]Ibid [89].
[25][2011] VSCA 249 (‘De Agostino’).
[26]Ibid [51].
[27]Ibid. See also Petrovic v Victorian WorkCover Authority [2018] VSCA 243, [77]–[79].
Having regard to the judge’s conclusion about the lack of reliability of the applicant’s evidence, his Honour was, in our view, entitled to ‘place little weight’ (as he said he did) on the observations of Ms Luhan. Ground 1 must accordingly be rejected.
Similarly, there is no substance in grounds 2 and 3. The judge was entitled to accept the evidence of Mr Owen on the basis that Mr Owen’s reasoning accorded with the judge’s analysis of the evidence as a whole. The acceptance by the judge of Mr Owen’s opinion that the applicant has suffered a supervening adverse psychological reaction is, to some degree, beside the point. The real issue was whether the judge could accept that the applicant suffered relevantly serious consequences of her physical injury, not the reason why he did not accept the accuracy of her evidence (supervening psychiatric condition as opposed to the applicant simply not being credible or reliable).
More fundamentally, however, the acceptance or otherwise of the evidence of Mr Owen was not material to the judge’s ultimate conclusions. On any view of the material, the applicant failed to establish that the impairment of the function of her right arm, caused by the accident, was serious within the meaning of the Act. The evidence disclosed that there were a number of different reasons for the applicant’s apparent ‘struggles’. As Dr Andrianakis summarised it, these included the applicant’s lower back, right hip and right knee pains. The acceptance by the judge of the opinions of the medical practitioners preferred by the applicant would not have led to her succeeding in her application before the primary judge. Those opinions raised possibilities that required further investigation and treatment; alternatively, they did not disclose an impairment of a body function that rose to the level of seriousness required by the Act.
Additionally, the judge identified the nature and extent of the applicant’s physical injury with all the precision that the medical evidence tendered before him permitted. To the extent that there was any lack of precision in the judge’s identification of the nature and extent of the applicant’s injury, that lack of precision was, at least in part, caused by the applicant’s failure to undergo an arthroscopic assessment as recommended by Mr Maloney. The complaints made by the applicant in relation to ground 3 simply do not engage with the judge’s reasoning process for dismissing the applicant’s application — a reasoning process which, as we have said, did not involve any error on the part of the judge.
We turn now to the applicant’s complaint about the judge’s reasons. Contrary to the applicant’s submission, there are no parallels between the judge’s reasons in this case and the reasons of the primary judge in Hunter.[28] In Hunter, there was a substantial body of expert medical opinion, described as having ‘depth and sophistication’,[29] which the primary judge had to grapple with in order to determine the applicant’s application. Her Honour’s duty to provide reasons in those circumstances, as the Court held, was not satisfied by merely setting out large tracts of the tendered evidence and then preferring one opinion to the exclusion of others.[30]
[28]Hunter (2005) VSCA 1.
[29]Ibid [23].
[30]Ibid [23], [25]–[28].
Hunter was a case involving an applicant who suffered psychiatric injury following a transport accident. Her application for leave to commence a proceeding relied upon paragraph (c) of the definition of ‘serious injury’. The evidence having both the ‘depth’ and ‘sophistication’ referred to by the Court consisted of medical opinions from psychiatrists to whom the applicant had been referred for examination following her accident.
The principal difficulty with the primary judge’s reasons in Hunter was that her Honour’s preference for the opinion of one psychiatrist (Dr Neill) said nothing about critical issues that needed to be resolved and that were referred to in the reports of two other psychiatrists (Dr Moore and Dr Strauss). The mere acceptance of Dr Neill’s opinion, being silent as it was on relevant issues referred to by Drs Moore and Strauss, could not satisfy the judge’s duty to give reasons in relation to those issues. As Nettle JA (with whom Batt and Vincent JJA agreed) put it:
The judge’s expressed satisfaction that Dr Neill’s assessment ‘most accurately described the appellant’s status from a psychiatric perspective’ and that it was the ‘most insightful and balanced in the circumstances’ implies that her Honour accepted that the applicant suffered a chronic post-traumatic stress disorder from the time of the accident in 1997 and somatization and that the applicant still suffers from trait anxiety and chronic pain and that those problems and the appellant’s hypochondriacal condition have been aggravated by her accident post-traumatic stress disorder, and that that the applicant would have difficulty with teaching in a full-time capacity due to her labile moods, interpersonal sensitivity and propensity to pain. It also suggests that her Honour concluded (as appears to be implicit in Dr Neill’s report of January 2003) that the recovery observed by Dr Neill ‘with regard to the multiple psychiatric conditions present at the previous assessment’, was attributable to the continued ingestion of anti-depressant medication, and that, as a consequence of the accident, the applicant will need to remain on anti-depressant medication of some kind for at least the next two years and possibly ‘long term’ in view of ‘the multiplicity and chronicity of her condition’.
But, contrastingly, it is not apparent from the judge’s conclusions whether the judge’s satisfaction that Dr Neill’s assessment ‘most accurately described the appellant’s status from a psychiatric perspective’ and that it was the ‘most insightful and balanced in the circumstances’ means that the her Honour rejected Dr Moore’s thesis that the only predisposing factors to a post-traumatic stress disorder are post-traumatic stress disorder preceding the time of trauma, or a post-traumatic stress disorder extant at the time of trauma, and that neither applied in this case. Nor is one able to say whether the judge rejected Dr Strauss’s opinion that the applicant suffers from a pain disorder and a post-traumatic stress disorder associated with very high levels of anxiety and some depression; or that the accident was a major cause of her psychiatric difficulties, and that her injuries were consistent with the stated cause; or that she will always suffer from significant ongoing psychiatric problems; or that her levels of competency and efficiency will remain permanently reduced because of her psychiatric problem caused by the accident and because of her pre-accident personality type; or that she will never be able to get back to teaching again and she will always remain somewhat disorganized; or that while she can cope with a part-time job working in her own store, she could not do a complex full-time job like school teaching; or that she will always suffer from significant psychiatric problems largely related to anxiety, and her prognosis must be guarded and hence that she will need to continue to take anti-depressants.
The problem at its most basic is that Dr Neill’s assessment is silent about a number of factors dealt with in Dr Moore’s and Dr Strauss’s opinions, and, so far as appears, Dr Neill’s assessment is not necessarily inconsistent with Dr Moore’s and Dr Strauss’s opinions on those factors. So therefore for the judge to say only that she is satisfied that Dr Neill’s assessment ‘most accurately described the appellant’s status from a psychiatric perspective’ or that it is the ‘most insightful and balanced in the circumstances’ does not necessarily say anything as to whether the judge accepted or rejected Dr Moore’s and Dr Strauss’s opinions on those factors. If, however, it is to be concluded that the judge rejected any of those opinions, the judge has not provided any reasons for their rejection. Given the nature and sophistication of the disciplines involved, her Honour’s ipsa dixit as to the appearance of the applicant in the witness box falls a long way short of the mark. Alternatively, if it is to be concluded that the judge did not regard those opinions as relevant to her final conclusion, the judge has not provided any explanation of the steps involved in excluding them from consideration.[31]
[31]Ibid [25]–[27].
It was in that context (namely, the primary judge having failed to refer to and deal with evidence that was relevant to the ultimate resolution of the case) that his Honour then said:
The judge may have thought that it was enough simply to set out the evidence and other material upon which her findings were based and then to state her conclusions. But for the reasons already explained that was not enough. The requirement to refer to the evidence upon which findings are based is a requirement to analyse the evidence and to explain why some parts of it do and others do not lead to the ultimate conclusion. And that analysis must be recorded in the reasons. In general, and in this case in particular, the mere recitation of evidence followed by a statement of findings, without any commentary as to why the evidence is said to lead to the findings, is about as good as useless.[32]
[32]Ibid [28] (footnote omitted).
Unlike the primary judge in Hunter, however, the judge in the present case delivered reasons which were responsive to the issues raised, and the arguments made, by the parties. The reasons in Hunter did not enable the losing party to know why the case had been lost at first instance. By contrast, in the present case, the applicant can be in no doubt why her application was dismissed by the judge. In a nutshell, in an application where the applicant bore the onus, and had to be believed in order to succeed, the judge did not accept the applicant’s evidence and, in the course of his judgment, explained his reasons for coming to that conclusion.
Conclusion
The application for leave to appeal must be refused.
- - -
18
18
0