Rowe v Transport Accident Commission

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0100

ANTHONY ROWE	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	OSBORN, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 December 2017
DATE OF JUDGMENT:	18 December 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 377
JUDGMENT APPEALED FROM:	Rowe v Transport Accident Commission (Unreported, County Court of Victoria, Judge Wischusen, 3 August 2017)

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ACCIDENT COMPENSATION – Transport accident – Serious injury application – Psychiatric injury – Applicant suffered a severe long-term mental disorder – Whether applicant suffered severe long-term mental or severe long-term behavioural disturbance or disorder as a result of transport accident – Causation – Test to be applied – Other traumas suffered by applicant – Judge not satisfied that applicant suffered serious injury as a result of transport accident – Whether judge applied incorrect test – Whether judge failed to consider evidence – Whether judge’s conclusion against the weight of the evidence – Whether judge’s reasons inadequate – No error made by judge – Judge’s conclusion not against weight of evidence – No inadequacy in judge’s reasons – No real prospect of success in proposed appeal – Application for leave to appeal refused – Transport Accident Act 1986, s 93.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T P Tobin SC with Mr A Saunders	Maurice Blackburn Lawyers
For the Respondent	Mr S A O’Meara QC with Ms F C Spencer	Solicitor to the Transport Accident Commission

OSBORN JA

PRIEST JA
BEACH JA:

On 15 November 2007, the applicant was the driver of a truck involved in a collision (‘the 2007 collision’) with a Victoria Police divisional van. The collision occurred on the Maroondah Highway near Healesville when the divisional van, which was travelling in the opposite direction from the applicant, drifted into the applicant’s lane. The applicant did not suffer any physical injury. The police van was extensively damaged and both its driver and passenger were trapped in their vehicle for some time.

By an originating motion filed in the County Court on 10 October 2014, 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 personal injury allegedly sustained as a result of the 2007 collision. The claim was made relying upon paragraph (cof the definition of ‘serious injury’ in s 93(17) of the Act — namely, ‘severe long-term mental or severe long-term behavioural disturbance or disorder’.

The application for leave to commence a proceeding was heard by Judge Wischusen over three days in June 2017. On 3 August 2017, the judge dismissed the applicant’s application.

While the judge accepted that the applicant suffered from a psychiatric condition, which the judge described as ‘post-traumatic stress disorder and an adjustment disorder and major depression and alcohol abuse’, and that the psychiatric condition was ‘severe in the required sense’,[1] the judge found that the 2007 collision played ‘but a relatively minor role’ in the applicant’s psychiatric condition.[2] The judge concluded that the applicant had not discharged the onus of establishing that the impairment caused by the 2007 collision was severe within the meaning of s 93 of the Act.[3]
[1]Rowe v Transport Accident Commission (Unreported, County Court of Victoria, Judge Wischusen, 3 August 2017) [137] (‘Reasons’).
[2]Ibid [142].
[3]Ibid [147].

The applicant seeks leave to appeal and (if leave is granted) to appeal the judge’s order refusing him leave to commence a common law proceeding. The applicant’s proposed grounds of appeal are as follows:

1.The judge erred in law by failing to apply the appropriate legal test in coming to his decision.
2.The judge erred in his application of the appropriate legal test in determining whether the subject injury was a cause of the ‘serious injury’ suffered by the applicant.
3.The judge erred in not finding that the subject injury was a cause of the severe mental and behavioural disorder suffered by the applicant.
4.The judge erred in law in that he failed to consider the whole of the evidence.
5.The judge erred in law by reaching a decision that was against the weight of the evidence.
6.The judge erred in law by failing to provide reasons that showed an intelligible path of reasoning for his decision.

The evidence generally

On the hearing of the application in the County Court, the applicant relied upon three affidavits that he swore on 28 February 2013, 29 October 2015 and 13 November 2015. He also relied upon an affidavit sworn by his wife, Mrs Patricia Rowe; and an affidavit affirmed by Mr Michael McCarthy, a nightshift supervisor at PFD Food Services (‘PFD’) where the applicant was employed for a period in 2007 and 2008. The respondent relied upon an affidavit sworn by Michael McKinnell. Mr McKinnell employed the applicant for two years from July 2008 to June 2010.

At trial, the applicant and his wife gave evidence and were cross-examined. No other vive voce evidence was given on the application before the judge. Surveillance DVDs of the applicant’s activities were shown in the course of the applicant’s cross-examination. The remainder of the evidence on the application was documentary, consisting of medical reports, hospital reports, clinical notes and records, psychological reports, correspondence and other miscellaneous documentation.

The applicant’s evidence

The applicant’s evidence was that he was born on 12 May 1975. He was 32 at the time of the collision and 42 at the time of trial. The applicant was raised in Marysville. He left school after completing year 11. At the time of trial the applicant was living in Eildon with his wife and three children.

In 2005, the applicant was involved in a significant motor vehicle accident (‘the 2005 accident’). At the time of this accident, the applicant was employed as an excavator operator in a logging operation. On the day of the 2005 accident, the applicant was filling in as a truck driver, driving a truck laden with logs down the Black Spur. While driving the truck, the load shifted and the truck rolled onto its driver’s side. In his second affidavit, the applicant swore that the 2005 accident made him ‘anxious about truck driving for some time’, but did not cause him to require any psychiatric treatment or time off work.

In early 2006, the applicant commenced work with PFD. The applicant worked for a time in a warehouse. Eventually, the applicant began driving a delivery truck for PFD. It was while driving a truck in the course of this employment that the 2007 collision occurred. In his first affidavit, the applicant described the circumstances of the 2007 collision as follows:

I saw a police van approaching me from the other direction. It started to drift into my lane. At first, I thought that they intended to pull me over, so I slowed down.
The police van, however, did not stop. It continued to slowly drift across the road. Again, I thought that the police intended to pull me over, so I kept slowing down. The police van, however, continued to drift into my lane. By the time that I realised that something was wrong, I had no time to do anything other than brake and brace for impact.
The police van hit my truck (which, at that time, was stationary) at, I would estimate, about 70 km/h. The force was such that the police van folded like a concertina. My first thought was that there was no way that the police officers could have survived. I was horrified by the thought.
I got out of my truck to render assistance. Both the driver and the passenger were badly injured. At first, I thought that the driver may have been dead. I felt helpless — being unable to do anything except wait for the ambulance to arrive.
I watched the rescue; it took over one hour to get [the] driver out of the car. It was very traumatic. Both police officers had to be airlifted out.
Eventually, someone from work came to take me home (via the police station).

While in this description of the 2007 collision the applicant described the occupants of the police vehicle as being badly injured, we note that in a statement, signed by the applicant on the day of the collision, the applicant said that he got out of the truck and ‘asked the occupants if they were okay and both said they were fine but the driver asked if I could get the windscreen glass off her chest’. Moreover, Ms Maureen Peck, a psychologist at the Austin Hospital, took a history from the applicant during a consultation on 13 September 2010 that ‘the policewomen had minor injuries’.

Following the 2007 collision, the applicant was off work for approximately one week. In that time, he received counselling on two occasions. The applicant said that he ceased counselling because of a disagreement over advice the counsellor gave to change jobs. The applicant did not seek any medical attention. In his first affidavit, the applicant said that he thought about seeing his local doctor but decided that he would be able to cope, ‘with a bit of time off the truck’. He said that ‘looking back’ he now realised that he was depressed at the time and slowly getting worse. He said he was moody, often angry and did not feel like going out. He was having frequent nightmares, becoming increasingly anxious about driving and ‘started drinking more alcohol too’.

The applicant returned to work with PFD and remained there until the middle of 2008. In cross-examination, the applicant agreed that he drove past the location of the 2007 collision twice a day as part of a 160 km return journey from home to his employment with PFD.

In approximately July 2008, the applicant resigned from PFD and commenced employment with Mr McKinnell. The applicant remained in this employment until June 2010. This employment terminated when the applicant walked off the job after a dispute between the applicant and Mr McKinnell about the hiring of a new employee with whom the applicant was not happy.

While still employed by PFD, in February 2009, the applicant and his wife were victims of the Black Saturday bushfires. Despite the applicant’s best endeavours, he and his wife lost their home of 11 years[4] in Marysville. In his first affidavit, the applicant described the day of the fire as follows:

We lost the house in the Black Saturday fires of February 2009.
I had decided to stay and defend the house. Later, however, I decided to leave, as it was becoming too dangerous.
At first, I thought that I had left my run too late; it was terrifying. In the end, however, I managed to get to Eildon safely.
Nonetheless, I was devastated by the fires, as we lost the house.

[4]In cross-examination, the applicant originally said ‘about 11 years’, before saying ‘a time period between nine to 11 years’.

In the same affidavit, the applicant described himself as stopping work ‘shortly thereafter’ as he ‘just could not handle it’. In describing his circumstances after the fire, the applicant said:

Shortly thereafter, I stopped work; I just could not handle it. I was becoming increasingly irritable at work (and at home). I was having nightmares about the accident [the 2007 collision] and the fires, along with flashbacks (again, about the accident and the fires). I started to worry incessantly that I would have another accident.
In about July 2010, my wife, Trish, told me that I had to do something about it.
It was at that time that I went to see my local doctor, Dr Bucevska. She referred me to the Austin (which, at the time, was running a program for bushfire victims).
Thereafter, I was treated at the Austin until August 2011 (at which time the bushfire program ended).

While the applicant’s first affidavit stated that the applicant stopped work shortly after the Black Saturday bushfires, in fact, as the applicant agreed in cross-examination, he worked for some 18 months[5] (in the course of his employment with Mr McKinnell, who had been engaged to assist in the clean-up and salvage of burnt out trees) in and about Marysville, in areas that had been burnt out by the fire. This work involved the applicant using a 30-tonne excavator for clearing fire-affected timber, hauling dangerous trees and otherwise participating in the clean-up of the area. The applicant also agreed in cross-examination that it was difficult to see the burnt out area of Marysville every day, and as time went on he was unable to concentrate on his work or other activity and was having angry outbursts.
[5]From the contemporaneous documents tendered on the hearing, it would appear that the applicant ceased work in June 2010, so it is likely that the applicant only worked for some 16 months after the Black Saturday bushfires. However, for present purposes, nothing turns on this apparent discrepancy.

The applicant’s wife’s evidence

In her affidavit, Mrs Rowe deposed to the applicant being ‘largely okay’ after the 2005 accident. Her evidence was that for a ‘short time’ after this accident, the applicant was ‘nervous about truck driving’.

She said that it was a different story after the 2007 collision. Mrs Rowe’s evidence was that the applicant ‘became very anxious about returning to driving’. She described the applicant as having ‘real difficulty’ making himself go to work, and there would be occasions when he would ‘burst into tears with the stress of it all’. Mrs Rowe described the applicant’s behaviour as changing dramatically after the 2007 collision. The applicant was depressed, very moody and would snap at her and the children. Mrs Rowe said that after the 2007 collision, the applicant stopped attending their children’s school functions. He also started to have nightmares and started drinking to excess.

Mrs Rowe said that, by 2008, it was apparent to her that the applicant was not coping. His mood swings were getting worse and he was not communicating with her or the children. It was at that time that she insisted that the applicant see their general practitioner, Dr Carruthers. Shortly thereafter, the applicant changed jobs. Mrs Rowe’s observation was that the change appeared to help, ‘at least at first’.

Mrs Rowe described losing their house in the Black Saturday bushfires. She said the applicant had decided to stay and defend the house, but later had to leave as it became too dangerous. She said that when he arrived in Eildon ‘and safety’, the applicant was very frightened. The applicant said to her that ‘he thought that he had left his run too late’.

By 2010, Mrs Rowe said ‘things had gotten much worse’. She insisted the applicant see a doctor. The applicant attended a doctor and then saw the doctors at the Austin Hospital, as part of a program for bushfire victims. When that program ended, Mrs Rowe insisted that the applicant continue to see the psychologist, Mr Stockton. Mrs Rowe’s affidavit went on to describe the fact that the applicant remained very depressed, had become ‘somewhat of a recluse’, and rarely leaves the house.

In cross-examination, Mrs Rowe agreed that the applicant avoided truck driving for 18 months after the 2005 accident. She also agreed that, after the 2007 collision, the applicant drove himself to work for at least the next seven months, that they lived 80 kilometres from where the applicant worked and that the applicant drove past the accident scene twice a day. She also agreed that during this time, the applicant was seeing Dr Carruthers for a back injury and for more minor ailments, without making any complaint about the 2007 collision or its effects. Mrs Rowe also agreed that the applicant ceased work in 2010 because he was struggling to cope with the reminders of the bushfires.

The other lay evidence

The remaining lay witnesses were Mr McCarthy and Mr McKinnell. Mr McCarthy’s evidence was that he came into contact with the applicant when they were both employed at PFD in 2007 and 2008.[6] Mr McCarthy found the applicant to have a good work attitude and a ‘normal, even temperament’ before the 2007 collision. Mr McCarthy remembered the applicant having a few ‘brief confrontations with other workers’, but viewed these confrontations as ‘similar to the arguments that occurred between various employees from time to time’. Mr McCarthy described the applicant as a ‘good team player’. Mr McCarthy did not give any evidence about any change in the applicant after the 2007 collision.
[6]Although, as the judge observed (at Reasons [119]), there was an apparent discrepancy between Mr McCarthy’s evidence and the applicant’s evidence about the shifts on which they were employed in 2008, nothing of great moment turns on that question in this application.

Mr McKinnell’s evidence was that he had known the applicant from when the applicant was about 18 years of age. Mr McKinnell said that in the time that he had known the applicant he had always known him ‘to have trouble working in team environments’.

Mr McKinnell’s evidence was that when the applicant started working for him in 2008, Mr McKinnell ‘already knew about [the applicant’s] motor vehicle accident’. Mr McKinnell said:

Apart from [the applicant’s] existing personality, I was not aware of him suffering from any diagnosed mental injury.

Mr McKinnell went on to say, however, that the applicant was inclined to get into arguments with other workers, the applicant’s behaviour was sometimes antisocial, and that the applicant would ‘clash with some personalities more than others’. Mr McKinnell also gave evidence of the circumstances in which the applicant left his employment in June 2010.[7]
[7]The contemporaneous documents suggest that the applicant’s employment ceased in June 2010, although Mr McKinnell refers to the applicant ceasing employment ‘in around July 2010’. Again, however, nothing turns on the precise date upon which the applicant’s employment with Mr McKinnell ceased.
The medical evidence

In his reasons for judgment, the judge dealt extensively with the medical evidence.[8] Having regard to the judge’s conclusion that the applicant suffers from a psychiatric condition that satisfies the serious injury definition, it is not necessary for us to set out all of the evidence that was so thoroughly canvassed by the judge. What is important, for present purposes, are the medical opinions concerning the causal relationship (if any) between the 2007 collision and the plaintiff’s psychiatric condition — or at least any part of that psychiatric condition that satisfies the serious injury definition in s 93 of the Act. Of course, on these issues, the contemporaneous histories, given by the applicant to those medical and allied health practitioners who saw the applicant in the initial years after the 2007 collision, and again after the Black Saturday bushfires, are of real significance. What was said by the applicant to be the position at the time it was said is inherently more likely to be accurate than some later account of the relevant matter.
[8]Reasons [23], [30]–[110].

The applicant first saw his general practitioner, Dr Carruthers, at the Healesville Medical Centre, in September 2001. There were occasional attendances after this, but there was no relevant attendance following the 2005 accident. The first attendance after the 2007 collision was on 5 June 2008. The applicant gave a history of re-injuring his back some four months earlier. There were two more attendances in June 2008. At a consultation on 26 June 2008, Dr Carruthers recorded that the applicant’s back was still sore, the applicant had resigned from work, and the applicant felt depressed. Dr Carruthers also recorded:[9]
[9]We have set out relevant medical notes in this judgment as they were typed in the particular doctor’s notes.

? will drive
Bad MCA night mares
Had counselling no help
Try other work

In a report dated 20 October 2011, Dr Carruthers referred to the 26 June 2008 consultation in the following terms:
He [the applicant] remained sore in the left costo-vertebral area. He stated he had resigned from work. He also stated he felt depressed. He told me he had previously been in a serious M.V.A. and suffered nightmares and that counselling had not helped him.
I have not seen Mr Rowe again in regard to there (scil, these) issues.

The applicant first saw Dr Svetlana Bucevska on 16 July 2010. Dr Bucevska’s note of that consultation was as follows:

has witnessed the bushfires 2009 and lost his property in them.
since 2/52 post fires back to work in the area (timber management). finding it difficult to see the burnt Kinglake[10] everyday
has noted that is not able to concentrate on his work or any other activity, easily having angry outbursts
difficulty falling and staying asleep, having nightmares
does not feel that has interest in anything
admits of having some suicidal thoughts but not having any plans to execute them

[10]It was agreed at trial that the reference to Kinglake should have been a reference to Marysville.

Dr Bucevska’s notes then record seven entries between 28 July 2010 and 26 October 2010 referable to the applicant’s complaints. It is not, however, until an entry on 29 October 2010 that Dr Bucevska makes any record of the 2007 collision. On 29 October 2010, Dr Bucevska recorded:

TAC initial medical certificate
Had a car accident in 2007 15 November with a police
Has not had formal medical examination and has not lodged a claim than

Dr Bucevska’s notes also include entries made by other doctors who saw the applicant at the same clinic. In an entry of 29 June 2011, Dr Teong Chuah recorded a history of depression and PTSD ‘from bushfire and accident’. In a history recorded by Dr Chuah, on 22 August 2011, Dr Chuah stated:

History of PTSD and depression from head on collision, still having ongoing flashback and agitation. Lower mood and tired. No suicidal ideation, intention. Now taking 375 mg of Efexor.
Has been discharged under the care of psychiatrist in Austin.
Now has legal case going on with WorkCover.

Notwithstanding Dr Bucevska’s medical records, on 8 March 2011, Dr Bucevska wrote a letter addressed to ‘Accident Compensation Conciliation Service’ in which she stated:

Mr Rowe initially presented at Yea Medical Centre in July 2010 complaining of not being able to sleep (having nightmares related to the car accident that he had a few years back with a police car), feeling very irritable and sometimes feeling helpless.
His problems were progressing steadily since the accident that he had in 2007 with a police car after which he had a brief counselling (two sessions) and not long after the accident he quit his job at PFD Foods.
At that time he believed that he was able to manage and continue to work with another company as a heavy machinery operator in the log industry.
He has been through bushfires in 2009 — lost his property that he actively tried to save.
As his job included daily driving to the bushfire affected area he felt that this is contributing to his health.
During 2010 he noted that all his abovementioned symptoms (insomnia, irritability, not able to concentrate) had been steadily worsening and according to Mr Rowe he was not able to drive due to the increased stress and fear that he will have another accident.

The applicant was referred to the Austin Hospital’s bushfire trauma treatment program by his ‘bushfire case manager’ due to concerns about the applicant’s mental state. The applicant was first seen by a member of the Bushfire Recovery Team, Dr Baswa, on 28 July 2010. Dr Baswa took a history:

Reports feeling depressed for at least a few months but more so in the last few weeks. Was not able to enjoy his work and struggling at work due to conflict with colleagues as well as difficulty concentrating, so he quit about 2/52 ago. Disturbance in his sleep, energy, motivation. Thoughts of helplessness as unable to know how to change his situation, feeling guilty for not working recently, noticed being more absent minded and social withdrawal from friends and family. Has had suicidal thoughts on 2 occasions, soon after the bushfires and 3-4/52 ago but nil plans or intentions.
Denies any panic attacks but feeling on edge and avoiding crowded places.
Was involved in bush fires in which they lost their property and possessions. Made his family leave and then tried to make his property safe but noticed the situation getting worse so finally left.
Does have flashes of images such as birds, fire and also has nightmares of disaster. He avoids places and people. He feels emotionally numb. Irritable and angry very quickly, punches walls and tables at times. Denies any physical abuse and trying to walk away when angry. Exaggerated startle response.
Was involved in 2 accidents prior. Tripped a log truck during work — was injured with bruises and cuts requiring investigations at Maroondah Hospital but did not require admission. Anxious about getting back in truck with decreased confidence, so avoided it for more than 18/12. Finally when returned to driving a smaller truck, involved in a second accident in which the police van ran into his truck from the opposite side. Involved in interrogation and states that it was ‘sweeped under the carpet’ by the police. He had a supportive employer who organised counselling sessions. However, in the 2nd session he was advised to change the line of his employment which he did not like and did not return to further sessions. He has struggled further and has not driven trucks since and limits his work to logging only. He does have re-experiencing phenomena of the accidents as well. Gets very anxious when he sees a police car and has to pull over.

Between 28 July 2010 and 2 August 2011, the applicant was seen by other members of the Bushfire Recovery Team at the Austin Hospital. These included Dr Tina Thomas, another medical practitioner, and Ms Peck, the psychologist. On 4 August 2010, Ms Peck noted:

He [the applicant] attributes increase in anger to time after [the 2007 collision] when he felt people didn’t care and he began to believe everything he touched failed. Loss of self-confidence. Resented being told by previous counsellor to study/change careers; also resentful of medical practitioners because they were dismissive of problems with his hearing. He quit working in the timber industry 5–6 weeks ago because there were constant reminders of the fires such as burnt wood and burnt landscape. No greenery or animal life made him feel depressed. The people he worked with were difficult to get along with.

During the course of a consultation with Ms Peck on 16 August 2010, the applicant referred to the 2005 accident. Ms Peck recorded that the applicant stated ‘that he believed he would die when he saw the passenger side of the truck beginning to tip over and [he] experienced considerable fear’.

The applicant saw Dr Thomas on 17 August 2010. Dr Thomas took a history that the applicant ‘enjoyed cricket and golf until 2005 when he had the MVA at work’. This was undoubtedly a reference to the 2005 accident. There was, however, no reference at this consultation to the 2007 collision. During the consultation, the applicant is recorded as giving a history of ‘mood swings’ and that his sleep is disturbed by flashbacks every two weeks.

On 30 August 2010, the applicant is recorded as having ‘exposure therapy for first truck accident’.

In a progress note dated 2 September 2010, under the heading ‘Overall impression’, Dr Thomas recorded:

Remains symptomatic of moderate severity depression and PTSD (five year [history] of untreated [symptoms]).

The reference to a five-year history of untreated symptoms would appear to be a reference to symptoms that date from the 2005 accident.

During a consultation with Ms Peck on 13 September 2010, the applicant described the 2007 collision. In a report dated 27 April 2012, Ms Peck said:

Mr Rowe described a subsequent accident on 15 November 2007, when a police car crashed into a truck he was driving, which caused him to fear for the lives of the police officers who were in the car. … The police car crashed into his truck with force, concertinaed from the front and was wedged under the truck. The policewomen had minor injuries and after emergency services arrived, Mr Rowe was told not to worry about it and that no further action would be taken. However, he was unable to return to work because of the psychological effects of the accident, including loss of confidence in his driving and he lost his job.
…
Mr Rowe stated that he continued to work in the logging industry and attempted to drive heavy machinery after the logging truck accident, but found that whenever he experienced any instability of the machinery, he would recall the truck accident and was fearful something similar would happen. As a result, he discontinued driving machinery, which eventually contributed to his leaving the industry altogether.
On 16 August 2010, Mr Rowe reported feeling distressed by dreams and other intrusive phenomena concerning the truck accidents.

The applicant was seen again by Ms Peck on 27 September 2010.[11] On this occasion, it was noted that the applicant was receiving ‘exposure therapy for the second truck accident’.
[11]Reasons [44].

In a progress note dated 25 October 2010, Dr Thomas recorded that, after a therapy session with Ms Peck, the applicant had decided to pursue a TAC claim ‘from a major MVA with a police vehicle in 2007 that was “swept under the carpet” according to [the applicant’s wife]’.

The next entry in the Austin Hospital notes relates to a consultation between the applicant and Ms Peck on 1 November 2010. In that note, Ms Peck recorded:

Has seen law firm re TAC & WorkCover claims — solicitors expressed surprise that his rights have not been recognised.
Anxious about completing all paperwork but thinks he’s less irritable overall — reports that children have been very well behaved & he & wife are managing them better. Has also been giving children more attention.
Found a newspaper photo of police car involved in accident on internet — felt ‘queasy’ & distressed when he looked at photo & had to turn it over so he couldn’t see it. Subsequently ruminated on how anyone could have survived the crash.
Police cars continue to be a trigger for anxiety & hyperarousal — he watches police car to ensure it isn’t a danger to him.
Treatment provided: encouraged Anthony to look at photo & change self-talk to reminding himself that policewomen did survive because he had slowed the truck to a halt & did all the right things.

The applicant was seen by Ms Peck on 22 November 2010. On that occasion, Ms Peck recorded:

Anthony felt angry with himself that his golf game deteriorated last weekend — believes his playing started to deteriorate some years ago following two further incidents, viz 2002 incident where he tipped on a ride-on mower on the nature strip on Western Ring Road and dislodged a light pole; 2004 when he was returning a mini bus to Airport West garage and was hit by a P-plater and subsequently charged with failing to give way at an intersection. Anthony believes he becomes extremely anxious prior to playing golf.

This note is the first reference to accidents that pre-date the 2005 accident. The note continued with a reference to Black Saturday and the applicant having ‘exposure therapy’ in respect of that trauma.

The Austin Hospital notes record exposure therapy in respect of the Black Saturday fires being performed during January 2011, and exposure therapy for the accident involving the ride-on mower being provided on 4 March 2011. On 4 March 2011, the applicant was also recorded as saying to Ms Peck that he was feeling much better as a result of his medications, and that his only problems ‘were with getting his children to school on time because they dawdled over showering and watching TV’.

The applicant’s treatment by members of the bushfire trauma team continued until 2 August 2011, with further consultations in March, June and July 2011. Shortly after the applicant’s last consultation, the Bushfire Trauma Treatment Program at the Austin Hospital ceased.

In a report dated 26 March 2012, Dr Thomas expressed an opinion about the cause of the applicant’s post-traumatic stress disorder and secondary depression. From the report, it would appear that Dr Thomas was not entirely sure about the chronology of the applicant’s motor vehicle accident. In her report, Dr Thomas said:

Mr Rowe’s first motor vehicle accident reportedly occurred whilst carrying out his work as a driver of a logging truck. As a result of the accident, he reported that he had to avoid truck driving for 18 months. The development of his PTSD and secondary depression appears to be most likely as a result of the cumulative traumas he experienced during his first (November 2007) and second motor vehicle accidents and the Black Saturday bushfires.

Ms Peck provided two reports to the applicant’s solicitors (a report of 16 April 2012 and a report of 27 April 2012) dealing with causation. In the report of 16 April 2012, Ms Peck said:

I have been asked to comment whether Mr Rowe’s employment, especially his motor vehicle accident of 15 November 2007 was a significant contributing factor to the development of post-traumatic stress disorder. It is my opinion that the logging truck accident was a traumatic event as described by criteria

in DSM-IV (2000) and, as such, significantly contributed to the development of Mr Rowe’s post-traumatic stress disorder.

In her report of 27 April 2012, Ms Peck said:
I have been asked to comment whether Mr Rowe’s employment, especially his motor vehicle accident of October 2005, was a significant contributing factor to the development of post-traumatic stress disorder. It is my opinion that the logging truck accident was a traumatic event as described by criteria in DSM-IV-TR (2000) and, as such, significantly contributed to the development of Mr Rowe’s post-traumatic stress disorder. The subsequent accident, on 15 November 2007, when a police car crashed into a truck he was driving, appears to have been an additional traumatic event which consolidated symptoms of post-traumatic stress disorder and caused him to leave his employment.

The applicant first consulted the psychologist, Mr Stockton, on 5 March 2011. Mr Stockton’s reports of 28 April 2015 and 12 February 2017 were in evidence. Those reports reveal that the applicant has had extensive psychological treatment from Mr Stockton and that this treatment has been directed at the effects of the 2007 collision.

On 5 March 2011, Mr Stockton obtained a history from the applicant about the 2005 accident, the 2007 collision and the bushfires. The history included a statement that the 2007 collision was ‘the worst event’ the applicant had ever experienced. While the fires were ‘frightening’, according to the applicant, the point of distinction was that ‘as the 60-metre flames approached, [the applicant] had an option to escape that traumatic event’. The judge described ‘the emphasis’ in this history (given on 5 March 2011) as being ‘not easily reconciled with the clinical note made at the Austin Hospital the day before’[12] (the clinical note of 4 March 2011 recording that the applicant was feeling much better, but having exposure therapy for the 2002 ride-on mower incident).
[12]Reasons [80].

The treatment provided by Mr Stockton has been extensive. It has included ‘exposure therapy’ and has involved Mr Stockton driving with the applicant and observing the applicant first hand, including the applicant’s severe stress responses and severe psychological reactions that, as Mr Stockton put it, ‘often verge on the symptoms of a panic attack’. Mr Stockton diagnosed the applicant as having suffered PTSD with severe levels of depression and anxiety. Mr Stockton said that he had observed the applicant to display ‘severe aversive responses to seeing police personnel and vehicles generally with an extreme response to seeing divisional vans’. In Mr Stockton’s opinion, the applicant’s psychiatric condition is a result of the 2007 collision.

In 2012, the applicant was referred by Dr Chuah to a consultant psychiatrist, Associate Professor Michael Wong, ‘for assessment and treatment of his work-related mental health problem’. Associate Professor Wong first saw the applicant on 26 July 2012. Associate Professor Wong subsequently reviewed the applicant on 46 occasions up to and including 12 January 2017. Associate Professor Wong described the history he took from the applicant in the following terms:

As far as I can ascertain he has been well all along until 2007 when he was involved in a head-on collision with a police car whose driver apparently dozed off and both of the policewomen sustained serious injury and required airlifting to hospital for emergency treatment. Though Mr Rowe did not have any physical injuries, he was so traumatised that he started to have flashbacks, nightmares, anxiety, depressive symptoms and became fearful of seeing police cars and having problems driving. He was redeployed to work in a warehouse rather than as a driver/deliverer. He stayed on for a year and then resigned. Throughout the whole period he was only given a couple of sessions of counselling. He then moved to the bush to work until the bushfire in February 2009 when he and his family lost everything. He kept working until July 2010 when he got assessed at Austin being a bushfire victim when he was diagnosed with post-traumatic stress disorder dated back to his 2007 accident by the psychiatrist there, and was commenced on medications and referred to a psychologist (sic). He was later approved Centrelink DSP as he could no longer work.

In his reports, Associate Professor Wong expressed the opinion that the applicant continued to suffer from post-traumatic stress disorder which was ‘a direct consequence of his employment-related injury, [and in] particular the motor vehicle accident on 15 November 2007’.

The applicant’s solicitor referred the applicant for assessment to another consultant psychiatrist, Dr Nathan Serry. Dr Serry’s reports of 8 May 2012, 6 August 2015 and 16 December 2016 were tendered in evidence. As Dr Serry noted in his reports, the applicant was referred to him for an independent psychiatric examination ‘in connection with a WorkCover claim’.

The applicant gave Mr Serry a history that the 2007 collision was ‘the worst’ that he had experienced. As Dr Serry put it, the applicant ‘mentioned that the bushfires had been frightening but your client had a sense of there being an option to escape’. As to the 2005 accident, the applicant’s history was that the applicant ‘was bruised and battered and whilst he was not too bad psychologically in the aftermath, he was upset with himself for the accident occurring’. The applicant told Dr Serry that he did not miss any work as a result of the 2005 accident and could not recall any specific traumatisation features.

In his report of 8 May 2012, Dr Serry said:

Your client is a 37 year old male who was involved in a terrifying motor vehicle accident almost four and a half years ago [the 2007 collision]. This was preceded by a less traumatic accident two years earlier and some 15 months after the subject accident, your client lost his home and possessions in the Black Saturday bushfires.
Your client described a very significant psychiatric impact, particularly as a result of the subject motor vehicle accident. He has experienced ongoing symptoms of stress, anxiety, frustration, anger, volatility, depression, traumatisation and secondary alcohol abuse.
…
At presentation today, the bulk of your client’s symptomology appears to relate to the subject accident of 15 November 2007.

In his report of 16 December 2016, Dr Serry expressed the opinion:

In my opinion your client continues to demonstrate features of a significant psychiatric reaction, mainly in relation to [the 2007 collision]. I do not feel that there is any particular contribution to his current presentation from the 2005 rollover truck accident and that there is a small contribution to your client’s current presentation from the impact of the Black Saturday bushfires.

The respondent arranged for the applicant to be examined by another psychiatrist, Dr Nicholas Ingram, on 2 September 2013. Dr Ingram took a history of the 2007 collision, and the earlier 2005 accident. In the history, the applicant related his psychological problems to the 2007 collision. The history given to Dr Ingram was that the applicant’s psychological problems came on ‘fairly soon after [the 2007 collision]’. As to the Black Saturday bushfires, the history recorded by Dr Ingram was:

In 2009 the family home had been destroyed by a bushfire and he thought that possibly he became a little worse after this, though he felt that most of his symptoms had been present before then.

On the basis of the history the applicant gave to Dr Ingram, Dr Ingram said that he related the applicant’s major depressive illness to the 2007 collision.

After expressing this opinion to the respondent, the respondent provided Dr Ingram with further information. Upon being provided with the further information, Dr Ingram expressed a slightly different opinion about causation — albeit an opinion that was still based upon the applicant’s history that the majority of the applicant’s problems were related to the 2007 collision. In a letter dated 10 December 2013, Dr Ingram said that the 2005 accident did not have any significant effect, and that the 2007 collision contributed up to about two-thirds of the applicant’s impairment, and the bushfires about one-third.

On 10 January 2013, the applicant was examined by a consultant psychiatrist, Dr Matthew Tagkalidis. Dr Tagkalidis examined the applicant on behalf of PFD’s WorkCover insurer in relation to a WorkCover claim made by the applicant in respect of the 2007 collision. Dr Tagkalidis took a history of the 2005 accident, the 2007 collision and the Black Saturday bushfires. That history included a history of anxiety following the 2005 accident. The applicant said that he suffered anxiety following the 2005 accident, but that his anxiety was settling at the time of the 2007 collision. The applicant’s anxiety then ‘escalated further’ after the 2007 collision. The applicant said that he ceased work with PFD, on 30 June 2008, because ‘he could not tolerate the work any longer because of ongoing tension and anxiety’. The history was that the applicant changed jobs to that of an excavator driver in the logging industry. His home was engulfed in the Black Saturday bushfires in February 2009 and his emotional state ‘deteriorated substantially with an increasingly depressed and traumatised state over the subsequent days and weeks’. Dr Tagkalidis recorded the applicant’s history in respect of the bushfires:

He said that within a few days of the bushfires ceasing he returned to work clearing the bushfire affected trees, and that he struggled to cope with the constant reminders of the bushfire, ceasing in July 2010. He said that after ceasing work his alcohol intake escalated dramatically up to 12 stubbies of beer per day for a period of two months and that his wife pressured him to obtain help.

The applicant gave a history of continuing to experience flashback-type experiences every two to three months in relation to the 2007 collision. He denied, however, that he experienced any flashbacks related to the bushfires, explaining that ‘his extensive experience in the CFA when a younger man had repeatedly exposed him to such situations’.

Dr Tagkalidis concluded that the applicant was suffering from an exacerbation of a pre-existing adjustment disorder with mixed anxiety and depressed mood and a partially resolved post-traumatic stress disorder which was partly related to the 2007 collision and also related to the Black Saturday bushfires. Dr Tagkalidis assessed the applicant as having a psychiatric impairment of 20 per cent. Dr Tagkalidis’s opinion was that half of this was due to the 2005 accident and the applicant’s subsequent bushfire experience, and the other half was said to arise directly from the 2007 collision.

On 8 April 2013, the applicant was examined by two consultant psychiatrists, Dr Gianni D-Ortenzio and Dr Brendan Hayman. Dr D-Ortenzio and Dr Hayman constituted a medical panel convened under the provisions of the Accident Compensation Act 1985. The medical panel took a history of the 2005 accident, the 2007 collision and the Black Saturday bushfires. While the medical panel agreed with Dr Tagkalidis’s opinion that, on the history given, half of the applicant’s psychiatric condition was related to the 2007 collision and half was unrelated, the panel disagreed that the total psychiatric impairment was 20 per cent. In the panel’s opinion the applicant’s total psychiatric impairment was only 14 per cent — half (7 per cent) of which was related to the 2007 collision.

The respondent arranged for the applicant to be examined by another consultant psychiatrist, Associate Professor Peter Doherty. Associate Professor Doherty examined the applicant on 7 August 2015, and again on 23 May 2017. For the purpose of providing reports of his examinations, Associate Professor Doherty was provided with a large number of documents including reports from Dr Bucevska, Ms Peck, Dr Carruthers, Mr Stockton, Dr Thomas, Associate Professor Wong, Dr Serry, Dr Ingram, Dr Tagkalidis, the Healesville Medical Centre records, the Yea Medical Centre records and the Austin Hospital records. For the purposes of his second examination, Associate Professor Doherty was also provided with surveillance reports, DVDs and Facebook documents relating to the applicant.

After his first examination of the applicant, Associate Professor Doherty expressed the following opinion:

The history given to me by [the applicant] suggested that [the applicant] before [the 2007 collision] was re-orientating and re-sensitising himself to driving a truck. He had worked for about a week as a jockey on a truck and had just commenced driving a truck when [the 2007 collision] occurred. In that transport accident of November 2007 the occupants of the police van were trapped for some considerable period of time, though their injuries were not overly severe and not life threatening.
[The applicant] already had a pre-existing sensitivity to driving trucks due to the 2005 transport accident, and that was exacerbated at that point in time of [the 2007 collision], and he developed some symptoms of traumatisation and requested a change of work location and duties, and that was agreed to.
The plaintiff was not in psychological or psychiatric treatment at the time of [the 2007 collision].
He had two sessions of EAP and nothing further.
There was then no psychological or psychiatric treatment. He was not prescribed anxiolytic or antidepressant medication. He continued working till June 2008. He resigned, and was re-employed operating heavy machinery a month later.
Then there was the February 2009 bush fires and presentation immediately thereafter to the general practitioner with symptoms of traumatisation and referral to a bushfire trauma treatment team at Austin Health. The initial assessment there by psychiatry registrar Dr Leela Baswa was focused on the psychological effects of the bushfire, not the 2005 or 2007 transport accidents. Only later were the transport accidents noted. The reports from the clinical psychologist and other staff at PTRS had the dates of the transport accidents wrong.
The plaintiff was working at the time of the 2009 bush fires and continued to 2010, and has not worked since. He has had difficulty with aggression. He has ongoing problems related to where he lives, and complains of intrusive noise of road users on the side road along his property.
All of that taken into consideration, the plaintiff appears to have developed a mild adjustment disorder with features of traumatisation following the transport accident of 2007. He developed some sensitisation to driving trucks, particularly large heavy trucks following the 2005 transport accident. It appears the bush fires of 2009 precipitated the development of clinically significant features of traumatisation.
In my opinion there is a mild adjustment disorder that is attributable to the transport accident of 2007 and more significant exacerbation of that adjustment disorder with features of traumatisation consequential to the bush fires.

As to prognosis, Associate Professor Doherty said that, in his opinion, the applicant’s psychiatric condition (an adjustment disorder with features of traumatisation) has a good prognosis and should fade over time. Associate Professor Doherty, however, also said:

In my opinion the forecast is not good. There has been prolonged treatment and slow improvement. [The applicant] is well settled in a new life and reports that personality factors significantly contribute to his view that he doesn’t get on with people and that he could not work with others.

Following his second examination, Associate Professor Doherty concluded that there was no PTSD condition caused by or significantly contributed to by the 2007 collision. Associate Professor Doherty concluded:

He [the applicant] reports a full hand of symptoms of traumatisation, which he claims are near solely due to [the 2007 collision]. He takes an antidepressant medication, and an anxiolytic medication.
In my opinion, there was at the most an adjustment disorder following [the 2007 collision]. There was a wish to not drive a truck again and that is reflective of his wariness following the second transport accident [being the 2007 collision] (the first was in 2005 when he was driving a truck that rolled).
The symptoms of traumatisation and depression were evident when he presented to PTRS in July 2010, over two years after [the 2007 collision], and over one year after the bushfires.
There is a considerable discrepancy between the claimed significant social and psychological impairment and the passage of time, the lack of symptoms after [the 2007 collision] and before the bushfires, and the treatment given. There is a stark difference between his demeanour in internet photographs and his behaviour when being examined.
In my opinion, there is no PTSD condition caused by or significantly contributed to by [the 2007 collision].

In his second report, Associate Professor Doherty gave detailed reasons why he disagreed with the opinions of Dr Serry. In disagreeing with Dr Serry’s opinion, Associate Professor Doherty noted that there was no objective evidence of treatment after the 2007 collision and that this lack of treatment was ‘in stark contrast to the treatment following the Black Saturday fires’. Associate Professor Doherty said:

The issue of lack of treatment after the subject accident is not addressed by Dr Serry. He was informed by [the applicant] that he has persisting symptoms of anxiety when driving past the scene of [the 2007 collision], but [the applicant] continue[d] doing so for eight months, and he complained to others that the drive to work took 80 minutes and that lessened his enjoyment of attending that workplace.

The judge’s reasons

The judge commenced his reasons for judgment with a broad description of the case, before turning to the applicant’s account of the circumstances of the 2007 collision.[13] The judge then observed that, although the medical opinions tendered by the parties ‘were not unanimous’ as to the nature and extent of the applicant’s psychiatric condition, the weight of the medical opinion was to the effect that the applicant suffered from PTSD, anxiety and depression.[14] The judge then identified what he described as ‘the main cause of difficulty in the case’ as being the fact that the 2007 collision (which he labelled ‘the 07 trauma’) was the middle of three episodes of trauma, the other two being the 2005 accident (which he labelled ‘the 05 trauma’) and the Black Saturday bushfires (which he labelled ‘the 09 trauma’).[15]
[13]Reasons [1]–[8].
[14]Ibid [9].
[15]Ibid [10].

Next, the judge observed that it was the applicant’s evidence that the 2007 collision ‘was the major, if not only, cause of [the applicant’s] present problems’.[16] The judge then said:

However, I formed the very clear view that the plaintiff’s account given in this case, whether deliberately or subconsciously, sought to overemphasise the transport accident, and to play down the effects of the events that preceded and followed it. It is, in my view, necessary to examine where possible more contemporaneous accounts, to assess the accuracy of the plaintiff’s emphasis in this regard.[17]

[16]Ibid [11].

[17]Ibid.

The judge then described and analysed the evidence, to which we have already referred, in considerable detail,[18] before turning again to the applicant’s evidence. Under the heading ‘The plaintiff as a witness’, the judge said:

As already mentioned, it was my view of the plaintiff’s evidence in cross-examination that he was anxious to emphasise the importance of the 07 event and he gave evidence in a way which showed that he understood that this was necessary to his case, or at least important to it.
Taken to the histories he had given after 2010, he eventually allowed (somewhat begrudgingly in my view) that he did develop significant anxiety about driving trucks after the 05 event. He allowed that the 05 event was ‘pretty scary’ but would not allow that it had led to him leaving the timber industry for good. As to this, he seemed to have misunderstood when it was that the question was referring to, explaining that he actually went back to forestry in the end, and then said ‘but I actually left because I think it was time for a change after what had happened with the truck accident’. A reference I took to be to the 05 event because that was the context in which that question was asked.
He denied it, when taken to a record that he had had exposure therapy for the 05 event, and said ‘I don’t think so because if I had a problem after 2005, I would have sought help for it’. Then asked how this could be so, given that he had not sought treatment after the event he relied upon (07), he replied that ‘it’s a bit different between situations. One I had control of; one I didn’t.’ He agreed that in the immediate aftermath of the 07 event, the police officers had said that they were fine and that, until he left PFD in mid-2008, he had driven 160 kilometres per day to go to work and back home, and that travelling each way took him past the (07) accident scene.
He agreed he was stressed by the bushfires and still stressed when he saw Dr Bucevska in July 2010. Taken to the content of the clinical note of that presentation, he agreed that he had, at that time, thought that his problems were due to the bushfires. He agreed with a history taken in January 2013 that, after the bushfires, his emotional state deteriorated substantially and that he was increasingly depressed and traumatised. He agreed that he had had difficulty in his forestry work after the bushfires because he was constantly reminded of them.
Further cross-examination revealed that the plaintiff’s histories (though only some of them) and his affidavit (which generalised about it), to the effect that recreational activities like fishing and golf had come to an end at about, or soon after, the 07 event, were not correct, and that he had played regular club golf up until 2012. He had bought a boat in 2010 and had done quite a bit of fishing, some of it revealed in the Facebook material, and that he indulged in a range of activities around the house, some of it requiring quite a degree of industry.
In my view, taken as a whole, the plaintiff’s evidence is, to the extent that it is inconsistent with the more contemporaneous histories and attributions that he himself made in the past, very likely to be a reconstruction, and I do not regard it as reliable.[19]

[18]Ibid [12]–[119].

[19]Ibid [120]–[125] (footnotes omitted).

Next, the judge summarised the submissions of the parties. In the course of summarising the submissions of the parties, the judge referred to submissions that were made concerning this Court’s decisions in Petkovski v Galletti,[20] RJ Gilbertsons Pty Ltd v Skorsis,[21] and AG Staff Pty Ltd v Filipowicz.[22]
[20][1994] 1 VR 436 (‘Petkovski’).
[21](2000) 12 VR 386 (‘Skorsis’).
[22](2012) 34 VR 309 (‘Filipowicz’).

The judge recorded the respondent’s submission that, on the authority of Petkovski and the authority of Filipowicz, it was necessary for the judge ‘to analyse and delineate the consequences arising only from the 07 event and then decide whether, taken alone, those identified consequences [were] severe in the required sense’[23]
[23]Reasons [126].

The judge recorded the applicant’s submission that it was open on the evidence to find that the 2007 collision was the sole cause of the applicant’s severe psychiatric condition, but that it was not necessary to so find. It was submitted by the applicant that the judge could find that the applicant would have come to ‘a sufficient incapacity (or have sufficient consequences) to satisfy the test of severe, and that if Black Saturday made his severe condition worse, that [was] not to the point’.[24] The judge also recorded a submission made on behalf of the applicant that if the applicant’s psychiatric condition, considered globally, was severe, and the 2007 collision was a cause of that global condition, or materially contributed to it, then the applicant was entitled to succeed. The judge recorded the applicant’s submissions as to the way in which the applicant contended that he could succeed as folllows:

The plaintiff submitted that the necessary connection between the 07 event and the severe consequences suffered after 2010 could be established in two ways. First that 07 was the principal cause of the severe consequences, second, that the severe consequences in 2010 would not have occurred but for the 07 event.
Developing that submission in further discussion, it was submitted that all that the plaintiff needed to prove was that the 07 event was ‘a cause’, that was still operative, of his current severe condition, and that even if the three (05,07,09) events were all equally causative, the plaintiff should succeed. Explaining this further, counsel submitted that if I found that, absent 07, the 09 event would have incapacitated the plaintiff he could not succeed, but if the 07 caused symptoms were part of the cause of his current incapacity, that would suffice. Put another way, the plaintiff submitted that if his current incapacity is a consequence of some combination of 07 and 09, the plaintiff succeeds.[25]

[24]Ibid [130].

[25]Ibid [132]–[133].

The judge commenced his analysis of the case by rejecting the applicant’s submission that the matter could be approached globally and that the applicant was entitled to succeed if he established the existence of a severe condition of which the 2007 collision was a cause. The judge, relying upon Filipowicz and Skorsis, held that the correct approach required the Court to delineate the impairment consequences of the 2007 collision, and then to determine whether those consequences were severe in the required sense.[26]
[26]Ibid [134]–[135].

The judge concluded that the applicant suffered from a psychiatric condition that was ‘severe’. While being satisfied that the applicant suffered from a psychiatric condition that was severe in the required sense, the judge, however, concluded that the applicant did not discharge the onus of satisfying him that the injury sustained as a result of the 2007 collision met the required test.[27] The judge gave the following reasons for reaching these conclusions:
[27]Ibid [136]–[137].

I am satisfied, and the great weight of the medical evidence in the case is to this effect, that his present psychiatric condition of post-traumatic stress disorder and an adjustment disorder and major depression and alcohol abuse is severe in the required sense.[28] Shortly, because it prevents him returning to work and has done for the last seven years, he continues to take significant quantities of psychotropic medication in the form of mood stabilisers and antidepressants, he continues to require regular treatment, and, by most commentators, his condition is regarded as stable (and so long term). In my judgment, after making the required comparison, his present mental disorders are in their consequences for him socially, domestically, recreationally, and, in connection with his employability, more than serious, and are such as to be regarded as severe.
[28]The use in the statute of the word ‘severe’ requires something more than ‘serious’, the test applied in the case of physical injury — Mobilio v Balliotis & Ors [1998] 3 VR 833 and more recently Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Katanas v TAC [2016] VSCA 140.
On the evidence, the plaintiff has not discharged the onus he bears of satisfying me that the severe condition results from, or was caused by, the 07 event.
Approaching the question in the manner prescribed in Filipowicz, in my view, the evidence shows that the plaintiff, before 07, suffered from the effects of 05, and, probably, the ride-on mower event. I think it probable that after 05 he had anxiety about driving trucks, and his heavy machinery in the bush, and became irritable and angry. These findings are based upon (some of) histories the plaintiff himself gave relatively early in his treatment at the Austin Hospital, and as already set out, accord with the opinions of those who saw him many times after his initial presentation. I do not accept the plaintiff’s own opinion, later expressed, that 05 was not much of a problem to him, and he himself eventually allowed that his return to truck driving, just days before 07 was somewhat tentative.
I accept that 07 was traumatic, and that in the immediate aftermath he reported symptoms of traumatisation to the counsellor. I am satisfied that this event added to the traumatisation he was already suffering from 05. As to the period between 07 and 09, I am not satisfied that there was, as the plaintiff and his wife would have it, a marked change and deterioration in his mental state and mood. His long hours of work and travel past the scene in the seven months of work that followed in my view do not support the proposition that the plaintiff was greatly traumatised or changed in his behaviour soon after. His work, right up until mid-2010, involved driving on a daily basis. In this context it is, in my view, significant that on his first presentation to the Austin, in the presence of his wife, the plaintiff himself dated his marked symptoms — mood, suicidal ideation — to just after the bush fires and closer to the initial presentation.
In my view, this is consistent not only with the trauma of Black Saturday itself, but also with the work the plaintiff did in fire damaged terrain, every day for nearly 18 months afterwards.
In my view, after reviewing the whole of the evidence, particularly the more contemporaneous accounts and opinions, the deterioration in the plaintiff’s mental state, from competent and hard-working, though irritable, timber worker up until 09, to, by June 2010, a depressed and PTSD suffering disability support pensioner, was the direct consequence of the trauma of the bushfires and continuing to work in bush fire affected country thereafter. In my view, the evidence shows that it is more probable that, in his overall clinical picture, the 07 event plays but a relatively minor role.
My reasons for so concluding follow. First, the plaintiff sought no treatment, beyond the two sessions of counselling, following the 07 event. He returned to work on a shift that did not suit him (he had formerly been on the night shift) and yet for eight months was able to drive past the scene of the 07 event twice a day as part of 160 kilometres of driving that his daily work required. This routine required him to leave home at 3.00am. No doubt this was taxing for him. Nevertheless, he continued to do it until mid-2008, when he resigned his employment. He did so, perhaps not because of, but in the setting of, persisting low back pain for which he was then having treatment. He did not inform anyone that his resignation was related to the 07 event, but did describe nightmares (in a general way) to his then treating doctor, Dr Carruthers. Dr Carruthers continued to treat the plaintiff for some time after that, and was completely unaware of the existence of post-traumatic stress disorder.
One month after leaving PFD, the plaintiff returned to his more usual occupation as a forestry worker in the bush. This too, is a demanding occupation — requiring long periods of time away from home, driving to the site, and the operating of heavy machinery in often perilous circumstances. The plaintiff was able to work in this way until the bushfires (09). Following the bushfires, which I am satisfied were traumatic for the plaintiff,[29] he soon after returned to the bush, working in fire damaged country for the next 18 months or so; working long hours. Apparently, he performed well in the difficult circumstances in which he worked during this time.
The plaintiff’s presentation to the bushfire trauma treatment program at the Austin Hospital came about because he reported to Dr Bucevska a range of bushfire related trauma symptoms. At that consultation, the plaintiff informed Dr Bucevska that he was aware the symptoms were related to the bushfires. This view of his presentation, and his reporting of the causes of his troubles, was repeated when he first consulted the practitioners at the Austin Hospital. The earlier events were something of footnote to the initial history. Only later, after he had been encouraged to begin pursuing claims in respect of the 07 event, did it assume the importance in his history-giving reflected in the later reports.
In my view, the analyses of Ms Peck and of Dr Thomas, who saw him often in the early stages, are more likely the truth of the matter, and their views put the contribution of the 05 and 07 events at relatively minor. I accept their opinions and I prefer them to the views of those who saw him after that time (late 2010), who base their opinions in varying degrees on a history of immediate, lasting and profound symptoms from the 07 event, which the plaintiff recounted to them. In my view, this account is not borne out by an examination of his sustained work, travel to work and lack of medical consultations for years after. It is not consistent with histories the plaintiff gave, at times, of symptoms since 05 (to Dr Thomas). In this regard, according to Ms Peck’s report of 16 April 2012, the plaintiff told her ‘that his anger and irritability increased markedly following the logging truck accident and that he found it more difficult to get along with workmates.’ Difficulties of this sort the plaintiff attributed here to the aftermath of the 07 event, but his self-assessment when speaking with Ms Peck, seems to align with Dr Thomas’ note of 1 September 2010, with the observations of Mr McKinnell, and is not inconsistent with Mr McKenzie’s recollection of him. The plaintiff’s account here in not consistent with ‘depressed for at least a few months, more so in the last few weeks’ (Dr Baswa in mid-2010, a history given in the presence of his wife), nor with his own attribution on presentation to Dr Bucevska (to the bushfires), nor with his association of the 2002 ride-on mower event to the decline in his golf.
In my view, the plaintiff has not discharged the onus he bears of establishing what his condition was before and after the 07 event, and of establishing that the additional impairment caused by the 07 event was severe in the required sense.
Further, the plaintiff has not established that the 07 event, as distinct from the 07 event combined with the effect of the earlier traumas revealed by the histories, rendered him vulnerable to all the loss of earning consequences that became apparent after the 09 event, and the medical opinions in the case do not support such a conclusion, I am not persuaded, for the reasons I have set out in relation to the ‘before and after’ analysis, that the plaintiff would not have become incapacitated for work as a result of the 09 event had the 07 event not occurred.[30]
[29]The history the plaintiff gives about what took place on that day differs from one account to the next, but it does seem plain that he feared for his life, that he was making last ditch attempts to save his property, that he nearly lost the dogs when he was leaving, that everything was lost, that his family was greatly traumatised by the loss, that he lost friends in the fire and so did his wife who lost more. The fire was followed by an argument with his father which ended contact between them.
[30]Ibid [137]–[148] (footnotes in original).

The applicant’s contentions

While the applicant advanced six proposed grounds of appeal, in essence he made three complaints about the judge’s decision. First, the applicant submitted that the judge failed to apply the correct test to determine whether the applicant’s injury satisfied the statutory test (grounds 1–3). Secondly, the applicant submitted that the judge failed to have regard to the whole of the evidence, and that the decision made by the judge was against the weight of the evidence (proposed grounds 4 and 5). Thirdly, the applicant submitted that the judge’s reasons were inadequate (proposed ground 6).

In submitting that the judge applied the wrong test, the applicant contended that the judge ‘erroneously considered the subject injury in isolation from the other episodes of trauma’. In his written case, the applicant submitted:

As a matter of law:
(a)his Honour should have analysed the subject injury in the context of the other ‘episodes of trauma’; and
(b)the test that his Honour should have applied is: ‘but for the subject injury, would the plaintiff have gone on to develop his present psychiatric condition or not?; and
(c)if his Honour answered that question in the affirmative, the applicant is entitled to leave to bring proceedings.’

In submitting that the judge failed to consider the whole of the evidence, and that the judge’s conclusion was against the weight of the evidence, the applicant made reference to the fact that histories were taken for specific purposes, about which there should have been no criticism of the applicant. Further, the evidence of the applicant’s wife and Mr Stockton, which was not properly considered, supported a finding in favour of the applicant.

As to the adequacy of the judge’s reasons, the applicant submitted that the reasons did not show an adequate path of reasoning. Specific complaint was made about the judge’s failure to make findings about instructions given by the applicant for the purpose of the Black Saturday bushfire class action; the judge’s failure to make findings in relation to the applicant’s wife’s evidence; the judge’s failure to explain why the judge preferred contemporaneous accounts and opinions over those of Mr Stockton; the judge’s failure to explain why he gave little or no weight to the opinion of Mr Stockton as to the causal role played by the 2007 collision; and the judge’s failure to explain why he accepted the opinion of Associate Professor Doherty as to causation, when he ‘otherwise rejected’ that witness’s opinion.

The respondent’s contentions

The respondent submitted that the judge did not apply the wrong test. The judge was required to identify the injury suffered as a result of the 2007 collision and to delineate its consequences. This is what the judge did and, in doing so, the judge complied with what has been said by this Court in Petkovski,[31] Filipowicz[32] and De Agostino v Leatch.[33]
[31][1994] 1 VR 436.
[32](2012) 34 VR 309.
[33][2011] VSCA 249 (‘De Agostino’).

Next, it was submitted that there was no error in the judge failing to find that the 2007 collision had caused a long-term severe mental or behavioural disturbance or disorder. The judge was entitled to conclude that the applicant’s own evidence was reconstructed and unreliable, and therefore that contemporaneous histories and attributions were to be preferred. It was submitted that the judge was entitled to conclude:

(a) before the 2007 collision, the applicant suffered from the effects of the 2005 accident, and probably also the ride-on mower event, such that he had anxiety about driving trucks and heavy machinery in the bush and had become irritable and angry;

(b) while the 2007 collision added to the traumatisation that the applicant was already suffering, there was no marked change and deterioration in the applicant’s mental state and mood following the 2007 collision (this in circumstances where the applicant’s work required him to travel past the scene of the 2007 collision in the months that followed that event); and

(c) the deterioration in the applicant’s mental state after the Black Saturday bushfires was a direct consequence of the trauma of the bushfires in which the 2007 collision played but a relatively minor role.

Finally, it was submitted that there was no basis for any assertion that the judge failed to properly consider any of the evidence tendered before him. The reasons are detailed. It cannot be said that they fail to disclose a path of reasoning. Merely because the reasons do not address a particular matter now said to be significant does not provide a basis for contending that there is any inadequacy in the reasons. Indeed, far from being inadequate, the reasons are comprehensive, and disclose precisely why the applicant was unsuccessful at trial.

Grounds 1–3: did the judge apply the wrong test?

There is no substance in grounds 1–3. The judge was correct to reject the applicant’s submission that all the applicant need establish was that the 2007 collision was a cause of the applicant’s current total psychiatric condition. As s 93 of the Act requires, and as this Court has made plain in Petkovski, Skorsis, Filipowicz and De Agostino, the task of a judge hearing an application under s 93(4)(d) of the Act requires the judge to identify an injury that occurred as a result of the transport accident in question and then to determine whether that injury is serious in the defined sense.[34]
[34]As to which, see Transport Accident Commission v Katanas (2017) 91 ALJR 865, 867–8 [4]–[6].

That is not to say, however, that earlier or later traumas are not relevant. An exacerbation of an earlier injury may itself have consequences which meet the statutory test. Similarly, conditions, symptoms or consequences that arise later in time (and perhaps after a later trauma) may be relevant if those later conditions, symptoms or consequences can be said to result from the transport accident in respect of which leave is sought to commence a proceeding.[35]
[35]See Skorsis (2000) 12 VR 386, 394 [27] (Buchanan JA); Altona Bus Lines v Lococo [2002] VSCA 159 [11]–[12].

As the judge’s reasons disclose, the judge was alive to these issues, but concluded that the statutory test had not been satisfied. Whatever else might be said about the judge’s reasons, it is simply not possible to contend that his Honour failed to apply the correct test or applied some incorrect test.

Moreover, insofar as the applicant contended that the judge somehow failed to analyse matters ‘in the context of the other episodes of trauma’, that complaint must be rejected. A plain reading of the judge’s reasons discloses that he analysed all of the evidence in the context of all of the episodes of trauma about which the applicant had spoken to medical and allied health professionals and about which the applicant had given evidence.

The applicant’s contention that the judge should have asked himself, as a determinative question whether, but for the 2007 collision, the applicant would have gone on to develop his present psychiatric condition, must also be rejected. To pose such a question would be to fall into the error identified in the authorities to which we have already referred. Section 93 of the Act does not permit one to look at whatever minor contribution may have been made to a condition by a particular transport accident, then ask if the total condition is serious and then determine that the injury suffered in the transport accident is itself serious because it is a cause of the total condition.

Grounds 4 and 5: failure to consider evidence/conclusion against the weight of evidence

There is no substance in proposed grounds 4 and 5. As the judge’s reasons disclose, the judge, as we have already noted, gave detailed consideration to the whole of the evidence tendered before him. Before proceeding further, however, with the specific complaints made by the applicant in these proposed grounds of appeal, it is necessary to set out the principles governing appeals by way of rehearing, of which this is one.

The principles governing appeals by way of rehearing to this Court were recently summarised in Southern Colour (Vic) Pty Ltd v Parr[36] as follows:

On appeal, the Court is required to undertake a ‘real review’ of the evidence in respect of the findings made by the judge, and the reasons for the judge’s conclusions. Where the finding, that is under review, depended on the acceptance or rejection by the trial judge of the evidence of a particular witness or witnesses, the appellate court should only set aside that finding if, after making due allowance for the advantages enjoyed by the trial judge, that finding is ‘glaringly improbable’ or ‘contrary to compelling inferences’. On the other hand, in general, an appellate court is in as good a position as the trial judge to decide the proper inferences to be drawn from facts which are undisputed, or which have been established by the evidence. In deciding the proper inference to be drawn, the appellate court should, however, give respect and weight to the conclusion of the judge, but, having reached its own conclusion, it must give effect to it.
In applying those principles, however, it is important to bear in mind that there is a necessary interrelationship between the finding of a particular primary fact or facts, and the drawing of a conclusion or inference. That relationship was described by this Court in Box Hill Institute of TAFE v Johnson in the following terms:
… while an inference is a conclusion based on established facts, nevertheless the interplay between the finding of a particular fact or facts, and the drawing of a conclusion, is not entirely discrete. The drawing of an inference, or reaching of a conclusion, is necessarily affected by precisely how and for what reasons a judge may have accepted, or rejected, a particular piece of evidence which is important to the drawing of that inference or conclusion. Secondly, in a civil proceeding, a judge may only draw an inference or reach a conclusion in favour of a party on whom the onus of proof lies, if that inference or conclusion is the more probable inference or conclusion available on the facts of which the judge is satisfied. The question whether an inference is more probable than another may be affected by the judge’s view of particular facts relied on in support of any competing inference, or of facts relied on to contradict the inference ultimately formed by the judge.[37]

[36][2017] VSCA 301 (Santamaria, Kaye and Ashley JJA). But see also Jovanovic v Magri [2017] VSCA 373 [49]–[54].

[37]Ibid [78]–[79].

As has been said many times before, in a personal injury proceeding, the evidence of the plaintiff (and whether that evidence is accepted by the trier of fact) is often critical to the success or otherwise of the plaintiff’s proceeding.[38] Additionally, in such cases, the opinions of medical and allied health professions (and the question of whether those opinions should be accepted) are often also heavily dependent upon the acceptance of the plaintiff’s account.[39] Put bluntly, the opinion of any particular expert opinion in a case like the present is only as good as the underlying history upon which it is based.
[38]Mobilio v Balliotis [1998] 3 VR 833, 836; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439, 448; Gjorgovska v AFM Cleaning ServicesPty Ltd [2006] VSCA 104 [27]; Veljanovska v Verduci (2014) 42 VR 222, 231–2 [39]–[40]; Fenton v AIA Australia Ltd [2017] VSCA 331 [91].
[39]Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, 1609 [60] (‘Whisprun’).

The applicant submitted that the judge failed to properly consider:

(d) the applicant’s evidence as to the instructions given by him for the purposes of the Black Saturday bushfire class action;

(e) the histories given by the applicant for the purposes of treatment following the Black Saturday bushfires (which histories were said to have been ‘taken for a specific purpose’, namely to treat the applicant for the injuries that resulted from that event);

(f) the applicant’s wife’s evidence (and specifically her evidence as to causation); and

(g) the evidence of Mr Stockton as to the causal role played by the 2007 collision.

The applicant further submitted that the weight of the evidence, particularly when one had proper regard to the four categories of evidence just described, supported the conclusion that the 2007 collision resulted in a serious injury within the meaning of s 93 of the Act.

These submissions must be rejected. The judge, having seen and heard the applicant, was entitled to form an unfavourable view of the applicant’s evidence. The judge’s ‘very clear view’[40] that the applicant’s account, whether deliberately or subconsciously, sought to overemphasise the 2007 collision, and to play down the effects of the events that preceded it and followed it, was not a finding that was glaringly improbable or contrary to compelling inferences.[41] Indeed, on the material as we read it, that view was well open to be taken by the judge. Once that view was taken, the applicant’s task of establishing that he suffered a serious injury as a result of the 2007 collision became very difficult. The evidence of other witnesses (the applicant’s wife and Mr Stockton included) required as its foundation an acceptance of the applicant’s statements and descriptions as conveyed to them.
[40]Reasons [11].
[41]Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 686–7 [43].

While the evidence of the applicant’s wife is not as heavily dependent upon the applicant’s statements and descriptions as is the evidence of Mr Stockton (the applicant’s wife having the opportunity to observe the applicant in the course of their home life), the judge specifically rejected the applicant’s wife’s account that there was a marked change in the applicant between the 2007 collision and the Black Saturday bushfires.[42] The judge rejected the evidence of a marked change in the applicant taking place between 2007 and 2009 because that evidence was inconsistent with the applicant’s long work hours and travelling past the scene of the 2007 collision for seven months, and also inconsistent with the history given by the applicant (in his wife’s presence) when he first attended the Austin Hospital.[43]
[42]Reasons [140].
[43]Ibid.

As to Mr Stockton’s evidence, the judge plainly rejected his opinions on the basis that the applicant’s underlying history to Mr Stockton could not be accepted. As the judge put it,[44] the emphasis in Mr Stockton’s history taken on 5 March 2011 that the 2007 collision was the ‘worst event’ the applicant had experienced, did not sit well with Ms Peck’s note of 4 March 2011 which dealt with the provision of treatment at that time for the ride-on mower event of 2002.
[44]Ibid [80].

The submission that somehow the Court should view inconsistent histories as consistent because they were given from time to time for the purpose of treating a particular injury or consequence of a particular event must be rejected. While there might be some force in such a submission where a plaintiff sees specialists from different disciplines for discrete injuries (for example, one might understand why a patient would not tell his hand surgeon about a kidney problem), the same cannot be said for a patient seeing specialists in the same discipline in respect of the same complaints (in this case, depression, anxiety, excessive alcohol consumption and the like).

In his written case, the applicant made complaint that the judge failed to consider the applicant’s oral evidence as to the instructions given by the applicant for the purposes of the Black Saturday bushfire class action. That evidence was given first in re-examination, and then subsequently in further cross-examination. In re-examination, the applicant gave the following answers to the following questions:

The materials that come from your bushfire class action indicate that you received an assessment?---Correct.
Which said half your injury is due to the motor vehicle accident and half of it was due to the bushfires?---Correct.
Did you have a right to appeal that?---Yes.
Did you appeal it?---No.
What did you think of that apportionment?---I didn’t feel that it was correct at the time.
What was wrong with it?---I felt it was more — more towards the vehicle accident that (sic) the bushfires as it was a totally different scenario.

In the subsequent further cross-examination, the applicant gave the following answers:

You were happy to accept the 50/50 apportionment when it was given in your bushfire claim?---Correct.
You didn’t seek to challenge that?---No, because, you know, I didn’t — I didn’t know what to expect the outcome was.

Unsurprisingly, neither counsel referred to any of this evidence in final submissions to the judge. Even more unsurprisingly, the judge made no express reference to this evidence in his reasons for judgment. The evidence was, as submitted by the respondent, ‘peripheral at best’. The applicant’s complaint that the judge somehow failed to properly consider it must be rejected.

In oral argument, counsel for the applicant submitted that, in fact, the critical evidence that the judge failed to consider were documents that were prepared by the applicant’s solicitors containing the applicant’s instructions about the effects of the Black Saturday bushfire. The documents we were taken to in argument were a personal injury questionnaire that the applicant’s solicitor completed, on the applicant’s instructions, in relation to the bushfire, and a statement of reasons given by an assessor who conferred with the applicant for the purpose of assessing the applicant’s entitlement under the bushfire class action settlement in 2016 (‘the class action documents’).

The judge made no reference to the class action documents in his reasons for judgment. The applicant submitted that it followed that the documents were not considered by the judge. The documents were said to contain statements against the applicant’s interests in the bushfire class action settlement. This was because they contained statements about the significant effect of the 2007 collision on the applicant. It was said that if the judge had considered these documents then he would not have made the adverse credit finding he made against the applicant — namely, that the applicant gave inconsistent histories at particular points in time so as to maximise his prospects of obtaining compensation.

There are a number of answers that can be given to this submission:

(1)The issue of the applicant’s credit was squarely raised in cross-examination. Nevertheless, while the class action documents were in evidence, counsel for the applicant at trial did not make the submission that those documents told against any unfavourable credit finding being made against the applicant.
(2)While the personal injury questionnaire contains a number of references to the 2007 collision, the document was completed at a time (in 2016) when the applicant was pursuing a claim against the respondent (using the same firm of solicitors) for the effects and consequences of the 2007 collision. To the extent that the class action documents might be said to contain statements against the applicant’s interests in the bushfire proceeding, they had the capacity to be supportive of the applicant’s claim against the respondent in the application that was heard by the judge, and also in any common law proceeding that the applicant might be given leave to pursue.
(3)While the personal injury questionnaire was referred to by counsel for the applicant in final submissions to the judge, the judge said in argument that the view he had ‘formed of the way the evidence [had] come out’ meant that he would be ‘much guided by what was recorded contemporaneously’. Again, it is to be observed that the questionnaire was an accounting by the applicant (as recorded by his solicitor), in 2016, of events that went back over a number of years. Counsel for the applicant then accepted that there were ‘some difficulties in [the] retelling of that history’, and then proceeded to make detailed submissions about the medical notes without further reference to the content of the bushfire class action set documents.

The applicant not having made the submission to the judge which he now makes in this Court, it is difficult to be in any way critical of the judge’s failure to refer to the documents now said to be crucial. Moreover, we think that these documents throw little light on the correctness of the credit finding that the judge made that was unfavourable to the applicant. In truth, in his instructions in respect of the bushfire class action, the applicant was walking a fine line between accounts that had the capacity to increase or decrease the applicant’s entitlement to compensation in the two proceedings in which he had an interest (the present proceeding and the bushfire class action).

The judge concluded that, on the whole of the evidence, the applicant had not suffered a serious injury as a result of the 2007 collision. He concluded that ‘the deterioration in [the applicant’s] mental state, from confident and hard-working, though irritable, timber worker up until [the Black Saturday bushfires], to, by June 2010, a depressed and PTSD suffering disability support pensioner, was the direct consequence of the trauma of the bushfires and continuing to work in bushfire-affected country thereafter’ and that the evidence showed that it was ‘more probable that, in [the applicant’s] overall clinical picture, the [2007 collision] plays but a relatively minor role’.[45] Having reviewed all of the evidence for ourselves, we have concluded that the judge’s view was well open. More specifically, we are not persuaded that there was any error in the judge’s conclusion.
[45]Ibid [142].

Ground 6: were the reasons inadequate?

As was said by the plurality[46] in Whisprun:

A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.[47]

Much less are a judge’s reasons required to make findings about evidence that is, at best, peripheral and about which no submissions were made by trial counsel (in the present case, for example, the applicant’s evidence about the instructions given by him in respect of the bushfire class action).

[46]Gleeson CJ, McHugh and Gummow JJ.

[47]Whisprun (2003) 77 ALJR 1598, 1610 [62].

A judge’s reasons are required to disclose the judge’s path of reasoning for the particular conclusion reached. The reasons must enable the losing party to know why he or she lost the case. The complaint in the present case that the judge’s reasons are inadequate is completely devoid of merit. The reasons are, with respect, a model of clarity and detail, and explain comprehensively why the applicant was unsuccessful at trial. The judge relied upon the contemporaneous documentation to come to his conclusion. He explained why he did so, and he explained why he rejected the evidence the applicant relied upon and now says was wrongly rejected. The applicant’s complaint that the reasons were somehow inadequate must be rejected.

Conclusion

Having now reviewed all of the evidence for ourselves, and heard argument, we can now say that the applicant’s proposed appeal does not have a real prospect of success. Accordingly, leave to appeal must be refused.[48]
[48]See s 14C of the Supreme Court Act 1986.

Finally, we should observe that the judge concluded his reasons by saying that ultimately he was not persuaded that the applicant ‘would not have become incapacitated for work as a result of [the Black Saturday bushfires] had [the 2007 collision] not occurred’. In argument, the applicant’s counsel accepted that if this conclusion could not be impeached then the proposed appeal must fail. For the reasons we have already given in dealing with the applicant’s proposed grounds of appeal, we see no error in this conclusion.

Leave to appeal will be refused.

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[2017] VSCA 377

18 December 2017