Saad v Transport Accident Commission
[2002] VSC 533
•3 December 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 5710 of 2002
| NIRVANA SAAD | Appellant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 November 2002 | |
DATE OF JUDGMENT: | 3 December 2002 | |
CASE MAY BE CITED AS: | Saad v TAC | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 533 | |
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ACCIDENT COMPENSATION – appeal from the Victorian Civil and Administrative Tribunal – whether the appellant’s injuries were caused by a transport accident – the finding was open to the Tribunal on the evidence
Berlyn v Brouskos [2002] VSC 377
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P G Nash QC with Mr L Paine | Macpherson & Kelley |
| For the Respondent | Mr B Griffin | TAC Law Pty Ltd |
HER HONOUR:
This is an appeal on a question of law pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the Act”) against a decision made on 10 April 2002 by the Victorian Civil and Administrative Tribunal (“the Tribunal”) constituted by Senior Member Megay. Leave to appeal from the decision of the Tribunal was given by Master Evans on 12 June 2002. The only description before the Court of the decision of the Tribunal or of the determination reviewed by the Tribunal appears in the Notice of Appeal as (omitting the errors in the descriptions of the Act and of the Tribunal):
the decision . . . whereby the Tribunal dismissed the Appellant’s application for review of the Transport Accident Commissions [sic] determination that the Appellant had recovered from the effects of any injuries sustained in a transport accident by 30th April 2001 and a consequent decision to cease payment of all benefits to the appellant from 30th May 2001, and ordered each party bear their own costs.
No formal copy of the decision of the Tribunal or of the determination reviewed by the Tribunal was in the materials before the Court.
The question of law raised on the appeal is expressed as follows in the Notice of Appeal:
Did the Tribunal make an error of law in that it made a finding of fact namely:
“The fact that Mr Fabinyi’s opinion of causation at no stage advanced beyond a possibility is in my view fatal to Mrs Saad’s case”
when there was not evidence to support such finding.
As a consequence of such error the Tribunal misapprehended the weight of the evidence given by Mr Gavin Fabinyi.
The ground of appeal is expressed as follows in the Notice of Appeal:
This appeal is brought on the following grounds [sic]:
(a) That there was no evidence to support the said finding of fact.
In 1994 Mr Fabinyi, a specialist neurosurgeon, operated on the appellant for a L4/5 disc prolapse. He performed a laminectomy and discectomy from which she had a slow but steady recovery.
She was involved in a motor vehicle accident on 12 November 1999. In December 1999 and January 2000 she visited her general practitioner with complaints of pain for which she was referred to Mr Fabinyi. He found a disc prolapse at L5/S1 and on 11 February he operated to excise the prolapse.
On 17 April 2000 the appellant claimed compensation for inter alia “back surgery L5/S1 disc prolapse”. It appears that the claim was accepted on 11 August 2001 for medical and like expenses, but subsequently the decision reviewed by the Tribunal was made, which was described to the Tribunal by counsel for the appellant in the following terms:
The decision was that the applicant had recovered from the effects of any injuries sustained in the transport accident, but in effect it means that the TAC has found that the prolapse and all the subsequent treatment wasn’t caused by the transport accident.
Mr Fabinyi gave evidence before the Tribunal and was asked several times as to his opinion of the causal connection between the transport accident and the second prolapse. Only on the last occasion when such a question was put did he express a view of which it could be said that his opinion had “advanced beyond a possibility”. That was in re-examination, when he was asked:
And if the symptoms started three days after the transport accident when she first went back to work and was moving around for the first time, if you accepted that as a history could you say then that it is more likely than not that the transport accident played a part?
and he answered:
Well, I suppose yes, probably a little more likely than not.
In its reasons for decision the Tribunal said inter alia:
11.The issue before the Tribunal is one of causation – that is, was the disc prolapse at L5/S1 a product of the transport accident.
12.In relation to the applicant’s claim that the transport accident was causally linked to the prolapse, the following obstacles appear:
§ The claim form was not completed until 17 April 2000.
§ The collision was not reported to the police until 18 April 2000.
§ She did not tell her general practitioner about the accident when she attended in December 1999.
§ Indeed the notes of the general practitioner contain no mention at all of the November 1999 accident.
§ She did not tell Mr Fabinyi about the motor vehicle accident until well after the surgery had been performed – possibly as late as 14 March 2000.
§ The report from Mr Hjorth, to whom Mr Fabinyi had referred her post-operatively, contained no mention of a transport accident.
§ Her statement filed in the Tribunal made no mention of particular post-accident symptoms.
. . .
29.I was troubled by the failure of the applicant to mention the transport accident to her general practitioner and to her treating surgeon. I must say I found the absence of this information particularly puzzling in the light of her earlier symptoms and surgery.
30Although Mr Flaim, [who had examined the appellant for the purpose of the Tribunal proceeding] was satisfied there was the necessary link, the Tribunal was in the happy position to hear from the treating surgeon. It seems to me that he was much better placed to express an opinion about the applicant than was Mr Flaim who had only examined the applicant once. Mr Fabinyi had the benefit of having treated the applicant since 1994 and as a necessary consequence had a more comprehensive knowledge of his patient. The fact that Mr Fabinyi’s opinion of causation at no stage advanced beyond a possibility is in my view fatal to Mrs Saad’s case.
31.The Tribunal has to be satisfied that it is more probable than not that the applicant’s disc problems and resultant surgery were a result of the transport accident. A higher standard than a mere possibility is demanded.
32.Taken together with the failure to mention the accident for some months to either Mr Fabinyi or Dr Anderiesz, the late claim for compensation, the absence from Dr Hjorth’s report of any mention of an accident, the evidence of Mr Wallace and the absence of details of such fundamental symptoms in the applicant’s earlier written statement, Mr Fabinyi’s evidence that the connection was a possibility only means that the applicant has not discharged her burden on the balance of probabilities.
33.The Tribunal is not satisfied that the injuries sustained by Mrs Saad were caused by the transport accident on 12 November 1999.
The submission of Mr Nash, for the appellant, was that the Tribunal’s finding in the last sentence of paragraph 30 of the reasons for decision that “Mr Fabinyi’s opinion of causation at no stage advanced beyond a possibility” was inconsistent with the answer cited in paragraph 6 above. That answer, he submitted, was clear evidence of causation on the balance of probabilities, and the Tribunal’s inconsistent finding therefore constituted an error of law. He cited the statements of Nettle J in Berlyn v Brouskos[1] that “The question of whether there is any evidence of facts and the question of whether a particular inference can be drawn from facts are both questions of law . . . To make a finding of fact or to draw an inference in the absence of evidence is equally an error of law”.
[1][2002] VSC 377 at [30]
However, the question set out in paragraph 6, to which the answer in question was given, was predicated on the witness accepting a statement as to the commencement of symptoms which had been made by the appellant in oral evidence in chief before the Tribunal. The greater part of the evidence in chief of the appellant appears to have been contained in a witness statement which was before the Tribunal, but was not before the Court, and the Tribunal noted in paragraph 12 of the reasons for decision that the statement “made no mention of particular post-accident symptoms”. The Tribunal pointed out to counsel for the appellant before the oral evidence as to the commencement of symptoms was adduced, that the relevant rule of the Tribunal required “having everything in the witness statement”, but nevertheless allowed the oral evidence to be given.
It is clear from paragraphs 12, 29 and 32 of the reasons for decision that the Tribunal had concerns about the credibility of the appellant. In all the circumstances it was entirely open to the Tribunal, having heard the oral evidence of the appellant, to reject the evidence as to the commencement of symptoms, which was the foundation of the answer given by Mr Fabinyi on which the appellant relies. If the Tribunal did not accept the evidence of the commencement of symptoms, clearly it could not be expected to rely on the answer of Mr Fabinyi which depended on the acceptance of that evidence. As has been said, the remainder of the evidence of Mr Fabinyi as to causation did not “advance beyond a possibility” and counsel for the appellant did not suggest otherwise.
The Tribunal did not spell out in its reasons for decision its disbelief of the evidence on which the answer of Mr Fabinyi was based. It did not need to do so. The matters set out in paragraph 12 of the reasons for decision clearly cast doubt on the appellant’s credit, and the Tribunal had the opportunity of observing her in the witness box.
Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[2] approved the statement of a Full Court of the Federal Court (Neaves, French and Cooper JJ) in Collector of Customs v Pozzolanic[3] to the effect that the reasons for the decision of an administrative decision-maker “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”. Their Honours went on to say [4] “the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.
[2] (1996) 185 CLR 259 at 272
[3] (1993) 43 FCR 280
[4] at 273
I find no error of law in the finding of the Tribunal that “Mr Fabinyi’s opinion of causation at no stage advanced beyond a possibility”. It was a finding well open to the Tribunal on the evidence before it. The appeal will be dismissed.
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