Seckold v Transport Accident Commission

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0052

ADRIAN SECKOLD	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	BEACH JA, FORBES and J FORREST AJJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 February 2025
DATE OF JUDGMENT:	28 February 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 18
JUDGMENT APPEALED FROM:	[2024] VCC 343 (Judge Tran)

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ACCIDENT COMPENSATION – Transport accident – Serious injury – Application for leave to commence common law proceeding – Impairment of right wrist – Aggravation of pre-existing degenerative changes – Whether judge erred in concluding that applicant had failed to establish extent of aggravation of degenerative changes – Whether judge erred in concluding that applicant had not established that consequences of injury were long-term – Whether judge erred in failing to conclude that consequences of injury were very considerable – No error made by primary judge – Application for leave to appeal refused.

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

Humphries v Poljak [1992] 2 VR 129, Petkovski v Galletti [1994] 1 VR 436, applied.

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Counsel
Applicant:		Ms FAL Ryan SC with Mr J Valiotis
Respondent:		Ms RL Kaye KC with Mr R Kumar
Solicitors
Applicant:	Zaparas Lawyers
Respondent:	Hall & Wilcox

BEACH JA
FORBES AJA
J FORREST AJA:

On 4 May 2016, the applicant was riding a motorcycle when it collided with a motor vehicle (‘the accident’). Following the accident, the applicant was taken to the Austin Hospital. He was admitted to the hospital and remained there until being discharged on 7 May 2016. During the course of his admission, he underwent a number of diagnostic scanning procedures involving his head, neck, back, chest, abdomen, pelvis and legs.
By an originating motion filed in the County Court on 29 May 2023, 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 the injuries he received as a result of the accident. The applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Act (‘serious long-term impairment or loss of a body function’).
The application was heard in the County Court by her Honour Judge Tran on 5 March 2024. The body function relied upon by the applicant was the function of his right wrist. The issues in dispute before the judge were:
(a)whether the applicant suffered an impairment of his right wrist as a result of the accident;
(b)whether the claimed impairment was serious, in the sense that its consequences could fairly be described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’;[1] and
(c)whether the impairment was long-term.
[1]See Humphries v Poljak [1992] 2 VR 129, 140.
On 18 April 2024, the judge dismissed the applicant’s proceeding and ordered him to pay the respondent’s costs.[2] While the judge concluded that the applicant suffered an impairment to his right wrist as a result of the accident, in the form of an aggravation of pre-existing degenerative changes in his right wrist, she was not satisfied that the impairment was serious or that the applicant’s then current level of impairment was long-term.[3]
[2]Seckold v Transport Accident Commission [2024] VCC 343 (‘Reasons’).
[3]Ibid [5].
The applicant now seeks leave to appeal on the following proposed grounds of appeal:
1.On a proper evaluation of the impairment consequences of the applicant’s right wrist, the injury fell within [the] s 93(17) definition of ‘serious injury’ and the judge’s conclusion at [21] was incorrect.
2.On a proper consideration of the evidence, the judge should have found that the applicant’s impairment is ‘long-term’, and the judge erred by concluding to the contrary.
3.The judge, having expressly accepted Mr Chehata’s evidence that the accident aggravated pre-existing arthritic changes in the applicant’s right wrist, erred in finding that the applicant had failed to discharge his onus of establishing the extent of aggravation of pre-existing degenerative changes in the right wrist.
In response to the applicant’s application for leave to appeal, the respondent filed a notice of contention in which it contended that the judgment of her Honour should be affirmed on the basis that the judge erred ‘in finding that the applicant sustained his right wrist injury in the … accident’. However, shortly after the hearing in this Court, the respondent abandoned its notice of contention.
For the reasons below, leave to appeal must be refused.

The evidence generally

On the hearing of the application, the applicant relied upon affidavits affirmed by him on 12 April 2022 and 9 February 2024, as well as an affidavit affirmed by his wife, Bernadette Ross, on 26 February 2024.
The applicant was the only witness to give oral evidence on the application. His evidence-in-chief consisted of adopting his affidavits as being true and correct. He was then cross-examined by counsel for the respondent, and subsequently re-examined by his own counsel.
The medical evidence was documentary, consisting of discharge summaries from Austin Health; medical reports; management plans; diagnostic reports; inpatient clinical notes; and medical consultation notes. Additionally, the applicant tendered two photographs of his damaged motorcycle, and two photographs of himself wearing a neck brace shortly after the accident.

Applicant’s background and evidence

The applicant was born in 1965. At the time of trial, he and Ms Ross had been married for 33 years. They had four adult children of their own, with two additional children that they helped to raise. When the accident occurred, the applicant was 50 years of age. He was 58 at the time of trial.
At the time of the accident, the applicant had been employed as a chef at the Victorian Wine Centre, a café in Middle Park, for about 11 years. The week before the accident, the applicant gave his employer four weeks’ notice. At the time of the accident, his plan was to have a break before finding new work.
In his first affidavit (affirmed in April 2022), the applicant said that he felt well at the time of the accident. He had been playing basketball until he turned 50, and his mind was ‘bright’. Not long after the accident, however, he was diagnosed was prostate cancer. He said he had ‘some difficulties’ coming to terms with this diagnosis but, at the time he swore his first affidavit, was ‘now feeling positive’. He also described dislocating his left shoulder when he slipped over in 2018. As a result of that injury, he was taken to the Austin Hospital and had a number of physiotherapy sessions. As at the time he affirmed his first affidavit, the shoulder was ‘alright’.
The applicant said that on 4 May 2016, he was riding his motorbike when a car suddenly pulled out in front of him and that he collided with one of the doors of the car. In his first affidavit, he said he seemed to remember being airborne and then landing on the ground. He said he was in shock. He had pain in his wrists, back, backside, head and ankles. In his second affidavit (affirmed in February 2024), he said that the collision with the car caused his body to be jolted forward with force, and both of his hands struck the clear plastic shield on the front of his motorcycle, causing it to shatter.
The applicant’s evidence was that he was taken to the Austin Hospital, where he remained for about five days and underwent a number of scans, including scans to his neck, back, pelvis and head. He said he left hospital with ongoing pain and symptoms, mostly in his back and rib area, and in his right wrist. He said he continued to have some pain and spasming in the right side of his back, but that his biggest problem after the accident had been his right wrist. In his first affidavit, he said:
After the accident my right wrist was constantly painful and I had restricted movement. It took me a long time to seek any specific treatment for it because I am the sort of person who just tries to get on with things. Eventually I reached a point where the symptoms were so bad that I decided I really needed to do something about it.
In his first affidavit, the applicant described consultations and medical treatment for his right wrist, which he underwent in 2018.
The applicant said that he was off work for six months after the accident, while he was on long service leave. In about November 2016, he found a job working as a cook in a childcare centre. Since that time, he has been working as a child care cook, having commenced with his current employer in about February 2021.
In his first affidavit, the applicant described his right wrist problems in the following terms:
I am right handed and I have ongoing problems with my right wrist. I have very limited movement. When I try to bend it up and down, it just doesn’t really go. It also feels lumpy in the wrist.
There is constant pain in my wrist that I would describe as an ache or nagging pain. There can also be intermittent sharp pains. The level of pain can go up and down a bit, and the pain is much worse if I move the wrist the wrong way, if I knock the wrist, or it experiences a sudden jolt. The activities that I need to do at work, such as cutting and lifting, also make the pain worse. I also lack strength in the wrist for lifting anything too heavy.
The only time I feel pain free is when I am asleep, although the pain in the wrist can wake me during the night. I often wake up once or twice a night due to wrist pain. My prostate symptoms can also disturb my sleep and cause me to wake up to use the bathroom.
In his affidavits, the applicant said that he has tried to avoid the use of painkillers because he knows they can be addictive and can also have impacts on his stomach. In his first affidavit, he said he takes Nurofen and Panadol at times, but limits this use. He also said that he used a wrist brace that Mr Chehata had given him — although he cannot wear this while he is at work. He said that he wears the wrist brace at home about four to five nights a week while sleeping. It helps with the aching. He said, however, that because it was so restrictive, it could be uncomfortable and annoying to wear.
In his first affidavit, the applicant said that he could mostly manage domestic chores, but that any sort of home maintenance was particularly challenging. He said he had been a very keen gardener before the accident. While he had continued with gardening after the accident, he said that ‘things are more difficult than they used to be’.
In his first affidavit, the applicant said that he enjoyed saltwater fishing before the accident. He said he still goes fishing, ‘but now I experience a lot of soreness in my wrist when I go’.
In his second affidavit, the applicant gave more detail of the medical treatment he had received following the accident. He said he continued to suffer from constant aching or nagging pain in his right wrist, which at times becomes ‘quite severe’. He said that if his wrist is knocked, he experiences a ‘sharp shooting pain’.
In his second affidavit, the applicant said that his sleep is impaired by pain, and he often wakes during the night due to pain in his wrist. He said movement of his wrist was extremely limited, and he had lost a lot of strength. He said that, as a result, he has difficulty with lifting, pushing and pulling, as well as with movements that require manual dexterity of his right wrist and hand. He again made reference to his difficulties with gardening, and said that he had now largely ceased fishing as he struggled to be motivated to carry out an activity which caused an increase in his pain.
In cross-examination, and by reference to medical records which were put to the applicant, the applicant accepted that he was in fact ‘not a person that was reluctant to seek assistance when [he] needed it medically’. It was then put to him, and he accepted, that the first reference to any problem with his right wrist was a consultation with an osteopath in November 2016, where his right wrist was described as ‘a little sore’. The applicant then accepted that he did not revisit the osteopath until April 2018, at which time he referred to his back and left shoulder, but made no mention of his wrist.
In cross-examination, the applicant accepted that at no stage during the period between July 2016 and 2018 did he feel it necessary to refer any problems he had with his wrist to any medical practitioner.
In cross-examination, the applicant confirmed that he continued to work fulltime; he was reluctant to take painkilling medication; and, if he did take painkilling medication, it was ‘over-the-counter’ type medication.

Applicant’s wife’s evidence

In her affidavit, Ms Ross said that, ‘pretty soon after the accident’, she noticed that the applicant would hold and carry his wrist differently. She described times at night when the applicant would jolt suddenly and, in response to a question from her, would tell her that he had shooting pains in his wrist.
Ms Ross said that, at about the time the applicant went back to work in a childcare centre in late 2016, ‘he complained more of pain in his wrist and back’. She observed swelling around the wrist, and noticed he would take Panadol tablets. She said it was ‘difficult to get him to seek treatment for his injuries’.
Ms Ross said that she often saw the applicant putting on his wrist brace when he arrived home from work. She said that (as at February 2024) he still complains of pain in his wrist in bed at night. She also said that she observed the applicant to stop suddenly when doing something, such as lifting up wood. She said that, in those moments, he winces and appears to be in pain, and then uses his left hand, rather than his right hand.
Ms Ross said that the applicant used to go fishing a lot, but that he ‘does not go very often at all anymore’.

Medical evidence

According to the Austin Health Discharge Summaries, the applicant was taken to the Austin Hospital shortly after the accident and admitted as an inpatient, where he remained until his discharge three days later. As we have already said, during the course of his admission, he underwent a number of diagnostic scanning procedures to various parts of his body, not including his right wrist.
The applicant tendered the report of a CT and X-ray of his right wrist performed on 17 May 2019, and the report of an X-ray of his right wrist performed on 5 January 2024. The 2019 CT was reported as disclosing advanced degenerative changes at the lunocapitate and lunohamate articulation, as well as moderate degenerative changes seen in other parts of the wrist. The 2024 X-ray was reported as showing osteoarthrosis of the lunate capitate joint and ‘narrowed joint space and articular bony sclerosis’.
In a report dated 27 November 2023, the applicant’s general practitioner, Dr Rajeev Sharma, noted that the applicant had been in a motor vehicle accident in May 2016. In that report, Dr Sharma said:
He [the applicant] did not present to me with wrist pain, he tells me that he had been having wrist pain since the accident but felt that it was just a likely soft tissue injury and did not raise this during consultations. … It appears that in the next few weeks he developed progressive pain in the right wrist with loss of range of motion and function.
That said, in a Transport Accident Commission medical certificate, completed by Dr Sharma, following his examination of the applicant on 17 May 2016, Dr Sharma made reference to the applicant having suffered soft tissue injuries to his back, both wrists and right forearm as a result of the accident.
In his report of 27 November 2023, Dr Sharma said that subsequent investigations performed by the applicant’s hand surgeon (Mr Ash Chehata) revealed that the applicant ‘had an ununited scaphoid fracture’. Dr Sharma expressed the opinion that the accident was the cause of the applicant’s wrist impairment, before then saying:
This injury and impairment causes him to be partially unfit for his pre-injury duties for the foreseeable future, and for suitable employment in the foreseeable future. He had to change his occupation as a chef in a busy restaurant due to wrist pain from this ununited fracture. He had to start working as a cook in a childcare centre, as these duties were much lighter. He says that he is able to cook but with difficulty, and he is in constant pain with all movements necessary for working as a chef.
In his subsequent report dated 27 February 2024, Dr Sharma described the applicant as having received a delayed diagnosis of a complex scaphoid/lunate injury in his right wrist, which had now resulted in ongoing pain, stiffness and difficulty with work as a chef. Dr Sharma said that, without timely intervention (which had already been delayed by five years), the applicant’s condition would get worse. Dr Sharma expressed the opinion that the applicant needed a fusion procedure or other corrective surgery as a matter of some urgency in order to avoid further disability and any loss of livelihood.
The applicant tendered a number of letters, and a report, written in respect of his right wrist injury by his treating surgeon, Mr Chehata: four of the letters were addressed to Dr Sharma; one letter was addressed to the respondent, seeking approval to perform a right wrist fusion; and the medical report, dated 1 March 2024, was addressed to the applicant’s solicitors.
In his report, Mr Chehata said that the applicant initially presented to him on 27 August 2018, some two years after the accident. Mr Chehata referred to the applicant undergoing a cortisone injection on 27 September 2018 ‘to reasonable effect’. He described the CT scan performed in 2019 as having confirmed mid-carpal arthritis, giving rise to the potential for a fusion to be performed. On the issue of a diagnosis relating to the right wrist injury, Mr Chehata said:
It certainly is difficult for me to be specific. There’s no suggestion of any specific fracture dislocation that I can see and have not been provided with any specific fractures or dislocations (sic).
As I only saw him two years after the injury, the mid-carpal arthritic change appears to be the most obvious change. And again, it is almost impossible to be more specific. Certainly, if the mid-carpal arthritic change was aggravated by the motorbike accident, unfortunately, the only possibility of treatment is that of fusions, such as a 4–corner fusion or a wrist fusion.
In the applicant’s solicitor’s letter requesting a report from Mr Chehata, Mr Chehata was asked whether he considered the accident ‘to be the cause of the current injury and impairment of [the applicant’s] right wrist’.[4] Mr Chehata said that it was ‘almost impossible for [him] to delineate the exact situation as it would appear that [he] saw [the applicant] almost two years after [the initial injury in the accident]’. Mr Chehata went on to say, ‘but it is not unreasonable to presume that the mid-carpal arthritic change was aggravated after [the accident]’.
[4]Emphasis added.
Finally, Mr Chehata said that, as a consequence of the applicant’s right wrist injury:
He’s got a severe irritability at the level of the right wrist with severe mid-carpal arthritis. The loss of motion as well as any movement causing severe pain means that his manual dexterity and the use of the right wrist has been severely compromised.
There’s no doubt that he’s unable to push, pull, lift, or even move the right wrist in the normal fashion. And unfortunately, this is likely to be progressive, degenerative, and will ultimately, at some point, if it continues to be symptomatic, require a full wrist fusion.
While additional medical evidence was tendered on the application, it is not necessary to summarise this evidence for present purposes. Some of this evidence concerned medical issues unrelated to the applicant’s right wrist injury. The remainder consisted of two medico-legal opinions (Dr Anna Manolopoulos, on behalf of the applicant; and Mr Richard Pennington, on behalf of the respondent), aspects of which were ultimately rejected by the judge for reasons given by her Honour;[5] and the notes of the applicant’s treating osteopath, to which reference has been made in our summary of the evidence given by the applicant in cross-examination.
[5]Reasons, [9]–[10], [12].

Judge’s reasons

After identifying the issues in dispute between the parties, the judge said that, for the following reasons, she had concluded that, while the applicant suffered an impairment to his right wrist as a result of the accident, in the form of an aggravation of pre-existing degenerative changes, she was not satisfied that the impairment was serious or that the applicant’s then current level of impairment was long-term:
(1)First, while the applicant impressed the judge as a straightforward, honest witness, she concluded that his affidavits (prepared by his lawyers) were ‘less reliable than his oral evidence’.[6]
(2)Secondly, the judge accepted that the applicant’s right wrist was injured in the accident, although his right wrist symptoms were only mild and were not significant enough to be given any prominence at the time.[7]
(3)Thirdly, the judge accepted the applicant’s evidence that his right wrist symptoms never fully resolved following the accident. Her Honour concluded, however, that, to the extent that his affidavits described constant pain and restricted movement since the accident, or implied that his right wrist had been his ‘biggest problem’ continuously since the accident, that evidence was not reliable.[8]
(4)Fourthly, the judge did not accept the opinions of Dr Manolopoulos, because these were predicated on a ‘significant factual error’ that an X-ray was taken in 2016 which showed no evidence of arthritis in the right wrist. The X-ray to which Dr Manolopoulos referred was one taken in 2016 of the applicant’s left wrist and hand.[9] As her Honour put it, this significant factual error demonstrated a lack of sufficient care and attention to detail on the part of Dr Manolopoulos.[10]
(5)Fifthly, the judge accepted the opinion of Mr Chehata (albeit, as she said, expressed tentatively) that the accident aggravated pre-existing arthritic changes in the applicant’s right wrist. The judge also accepted Mr Chehata’s opinion that fusion surgery would likely be required at some point.[11]
(6)Sixthly, the judge said that, to the extent there was any conflict between the opinions of Mr Chehata and Mr Pennington, she preferred the opinions of Mr Chehata because Mr Pennington did not expressly consider the possibility that the accident aggravated pre-existing degenerative changes in the applicant’s wrist. While Mr Pennington had expressed the opinion that osteoarthritis in the applicant’s wrist was not related to the accident, the judge noted that she had found as a fact that the applicant’s wrist became symptomatic immediately after the accident and never fully recovered. The judge said that her factual findings were more consistent with Mr Chehata’s recorded history than Mr Pennington’s recorded history.[12]
(7)Seventhly, the judge observed that the onus was on the applicant to establish the extent of the aggravation of degenerative changes in his wrist. The judge noted that there was no expert evidence on this issue. The judge said that it was not clear that the deterioration in the applicant’s wrist symptoms from approximately 2018 could be attributed to the accident, as opposed to the consequences of the pre-existing degenerative changes.[13]
(8)Eighthly, while the judge accepted that the applicant now suffered from constant ache in his right hand ‘with occasions of more severe pain, and restricted range of motion’, nevertheless, he was still able to work as a cook in a childcare centre; he was still able to fish, although his frequency and enjoyment of this had decreased; he was still able to pursue his passion for gardening, although with some restrictions; he was still able to perform housework and maintenance, although with some restrictions; there was no suggestion that he was not still able to enjoy quality time with his family and friends; and, while there was some impact on his sleep, the applicant’s evidence on that issue was ‘very general’ and, in any event, the applicant’s sleep had also been disturbed due to prostate-related issues.[14]
(9)Ninthly, the judge observed that treatment for the applicant’s right wrist had been ‘sporadic’; the applicant gave no express evidence of any regret at no longer being able to work as a chef; and there was no evidence of any negative financial impact from the applicant working as a cook in a childcare centre after the accident. The judge then said that, the fact that the applicant did not take prescribed pain medication did not provide any great assistance in assessing the gravity of his reported pain. However, the fact that he only took over the counter pain relief provided little support for his claim.[15]
(10)Tenthly, the judge concluded that there was a very real prospect that the applicant would have surgery to his right hand in the future. The judge said that, on the one hand, a need for fusion surgery would reduce ongoing function, and that this was a significant consequence which needed to be taken into account when assessing the seriousness of the applicant’s impairment. Her Honour then said that, on the other hand, fusion surgery was recommended by Mr Chehata as a means of reducing the applicant’s ongoing pain and dysfunction. The judge said that, in the circumstances, she was not satisfied that the applicant’s current levels of pain would be a long-term consequence of his impairment.[16]
[6]Ibid [6].
[7]Ibid [7].
[8]Ibid [8].
[9]From the index to the applicant’s Court Book at first instance, and the reports of Dr Manolopoulos and Mr Pennington, it would appear that an X-ray was taken of the applicant’s left wrist on the day of the accident (4 May 2016). No report of this X-ray was, however, tendered at trial, other than a reference to it by Dr Manolopoulos as demonstrating a ‘normal alignment throughout’, with ‘no displaced fracture [being] seen’.
[10]Reasons [9]–[10].
[11]Ibid [11].
[12]Ibid [12].
[13]Ibid [13]–[14].
[14]Ibid [15].
[15]Ibid [16]–[18].
[16]Ibid [19].
The judge concluded her reasons for judgment by saying:
This is not an easy case. It is not enough for Mr Seckold to establish that he has suffered an impairment which has significant ongoing impacts on his life. He must show that he has suffered a serious long-term impairment of a body function, in the sense that the consequences of that impairment are ‘very considerable’. This requires a subjective assessment of the consequences of the impairment to Mr Seckold, which may then be compared (objectively) to the range of possible impairments. As this is an aggravation case, the Court must look only to the extent of the aggravation, which in this case has not been clearly established on the evidence.
However, even taking into account the whole of Mr Seckold’s current right wrist symptoms, having regard to Mr Seckold’s personality, family connections, stage of life, occupation and recreational activities, I am not satisfied the consequences of this impairment are very considerable and more than merely significant or marked. I am not satisfied that Mr Seckold has suffered a serious injury.[17]
[17]Ibid [20]–[21].

Applicant’s submissions

Under proposed ground 1, the applicant contended that, on a proper evaluation of the impairment consequences of his right wrist injury, the injury fell within the definition of ‘serious injury’. The applicant observed that the ache in his right hand is ‘constant’, with occasions of more severe pain and restricted range of movement. Relying on his affidavit evidence, the applicant asserted that he takes regular pain relief medication. The applicant observed that his fishing and gardening is now more limited. He also submitted that the seriousness of his condition was confirmed by Mr Chehata’s evidence; and that the fact that he (the applicant) will likely require fusion surgery, a serious consequence which underscores the severity of his condition.
The applicant submitted that, in the process of concluding that the likelihood of future surgery meant that the applicant had failed to establish that his current levels of pain were long-term, the judge failed to consider the permanent effects of such surgery (being reduced wrist function) as a serious consequence. It was submitted that the fact that the applicant will likely require fusion surgery to his wrist is, of itself, a serious consequence, and underscores the severity of the applicant’s current condition.
The applicant also submitted that the judge did not pay proper regard to the fact that the applicant’s wrist injury now prevents him from undertaking unrestricted duties as a chef in a commercial kitchen. Moreover, her Honour failed to consider the lack of flexibility that the applicant now faces in no longer being able to work as a chef in a commercial kitchen. The applicant submitted that this constituted a serious consequence, even though it did not presently result in any substantial loss of income.
The applicant submitted that, in circumstances where the judge had expressly accepted the opinion of Mr Chehata, her Honour’s conclusion that the consequences of the applicant’s impairment did not meet the ‘very considerable’ test was wrong.
Under proposed ground 2, the applicant submitted that the judge erred in finding that Mr Chehata’s recommendation for surgery precluded a finding that the applicant’s current level of pain was long-term. The applicant submitted that there was no suggestion by Mr Chehata that fusion surgery would be required in the short-term. Moreover, there was no evidence that the applicant planned to have surgery in the short-term. The applicant submitted that the evidence before the judge, including the opinion of Mr Chehata as to the likely requirement for fusion surgery, supported a finding that the applicant’s impairment consequences were long-term, with or without fusion surgery.
Under proposed ground 3, the applicant submitted that the judge’s conclusion, that the extent of the aggravation caused by the accident had not been established on the evidence, was based on a misapprehension of Mr Chehata’s opinion. In making that submission, the applicant relied upon Mr Chehata’s answer to the question of whether the accident was ‘the cause of the current injury and impairment’ that ‘it [was] not unreasonable to presume that the mid-carpal arthritic change was aggravated after [the accident]’. It was submitted that, in giving this answer, Mr Chehata attributed the nature and extent of the applicant’s current injury and impairment to the accident. Thus, it was submitted, the judge erred when she said that it was not clear that the deterioration from 2018 could be attributed to the accident as opposed to the consequence of the pre-existing degenerative changes.[18]
[18]Ibid [14].

Consideration

In determining the applicant’s application for leave to commence a common law proceeding, the judge was first required to determine whether the applicant had suffered any and what injury affecting his right wrist. After considering all of the evidence, the judge concluded that as a result of the accident the applicant had suffered an aggravation of pre-existing degenerative changes in his right wrist. As we shall explain, in order for the applicant to succeed in his application before the judge, the applicant was required to establish that the consequences of that aggravation, and that aggravation alone (not the entirety of the degenerative changes in the applicant’s right wrist), amounted to a very considerable long-term impairment of the function of the applicant’s right wrist.
It follows that, to succeed in this Court, the applicant must establish all three of his proposed grounds of appeal. That is because the judge determined his application against him on the basis that: first, the applicant had not established the extent of the aggravation of his pre-existing degenerative changes (proposed ground 3); secondly, the applicant had not established that his impairment was long-term (proposed ground 2); and thirdly, the judge was not satisfied that the right wrist impairment as a whole could be described as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’ as required by Humphries v Poljak.[19]
[19][1992] 2 VR 129, 140.
It is thus convenient to commence our analysis by considering proposed ground 3 dealing with the question of whether the applicant established the nature and extent of the aggravation of his degenerative condition and the specific consequences of that aggravation.
The applicant did not dispute that it was the consequences of the aggravation of his degenerative changes which fell to be considered (rather than the consequences of their development, occurrence and existence) when determining his application for leave to commence a common law proceeding. Rather, based upon the absence of any pre-accident pain or symptoms and the answer given by Mr Chehata to the question of whether he considered the accident to be the cause of the applicant’s then current impairment,[20] the applicant submitted that all of the identified consequences from which he has suffered (and will continue to suffer) in relation to his right wrist are causally related to (result from) the accident.
[20]See [39] above.
These submissions must be rejected. The judge’s conclusion was correct. A consideration of the whole of the medical evidence (and particularly that of the treating orthopaedic surgeon, Mr Chehata) demonstrates that the applicant suffers from a progressive degenerative condition in his right wrist. Notwithstanding that he had no pain or symptoms prior to the accident, the condition existed prior to the accident and would, in the ordinary course, have progressed, with or without the occurrence of the accident.
So here, where the injury was an aggravation of a pre-existing condition, and where there had been very little by way of any symptoms requiring medical treatment for a significant period of time following the accident, it was incumbent upon the applicant to establish the difference between the progression which would likely have occurred had the accident not happened, and the progression which has in fact occurred as a result of the aggravation caused by the accident. Notwithstanding the need for the applicant to undertake this exercise, the applicant adduced no evidence which sought to deal with this issue. Specifically, there was no evidence as to the extent of the aggravation, or the likely duration of the effects of the aggravation. These were matters of evidence which the applicant was required to address as part of his case in endeavouring to establish that the consequences of the injury caused by the accident were serious.
In our view, there is little to distinguish the present case from the decision of the Appeal Division in Petkovski v Galletti.[21] In that case, a submission had been made by the respondent to an application for leave to commence a common law proceeding under s 93(4)(d) of the Act that, in a case involving the existence of a pre-existing degenerative condition in an applicant’s spine, a comparison had to be made of the condition of the applicant immediately before the accident with his condition thereafter, and an assessment made of the extent of the additional impairment; and, if that additional impairment was not ‘serious’, then leave to commence a common law proceeding must be refused. The Appeal Division held that the primary judge ought not to have rejected the respondent’s submission. As the plurality put it:
One should commence with the acknowledgment that it has long been the law that an injured person is to be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident. While the wrongdoer must take the victim as he finds him, he must compensate only for the damage he has wrought.
The Act does not affect that long-established principle.[22]
[21][1994] 1 VR 436 (‘Petkovski’).
[22]Ibid 443 (Southwell and Teague JJ, with whom Brooking J agreed at 437) (emphasis added).
Later, with reference to the underlying facts of Petkovski, the plurality said:
The accident did not cause the pre-existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.[23]
[23]Ibid 444.
This statement of principle has been applied by this Court on numerous occasions both under the Act and the Workplace Injury Rehabilitation and Compensation Act2013 (and its predecessor, the Accident Compensation Act 1985).[24] It applies whether or not the pre-existing condition was symptomatic (as in Petkovski) or asymptomatic (as in the present case). It is the nature and extent of the impairment resulting from the injury sustained in the accident that must be identified by an applicant. Of course, the extent of any necessary analysis of such an impairment (particularly in the case of an asymptomatic pre-existing condition) will depend upon the whole of the evidence adduced in the case, including the medical evidence directed to the effects (if any) of the injury upon the underlying degenerative condition and any consequential impairment.
[24]See, eg, De Agostino v Leatch [2011] VSCA 249; RJ Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51; Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65; Angelatos v Museum of Victoria [1999] VSCA 129; AG Staff Pty Ltd v Filipowicz [2012] VSCA 60.
Next, contrary to the applicant’s submissions, nothing in Mr Chehata’s answer to the question, about whether the accident was the cause of the applicant’s then current condition, assists the applicant on this issue. Mr Chehata’s answer is (and his opinions on causation as expressed in the balance of his evidence are) expressed in language which is, to say the least, somewhat tentative. His statement that it ‘is not unreasonable to presume’ that the degenerative changes were ‘aggravated after the … accident’, cannot be construed as an expression of opinion that all of the consequences of those degenerative changes suffered (and to be suffered) by the applicant after the accident were the result of the accident.
Moreover, and again contrary to the applicant’s submissions, there is no inconsistency between the judge’s acceptance of Mr Chehata’s opinion that the accident aggravated pre-existing arthritic changes in the applicant’s right wrist[25] and the judge’s conclusion that it is not clear that the deterioration that occurred around 2018 can be attributed to the accident, as opposed to the consequences of the pre-existing degenerative changes in that wrist.[26] A proper consideration of the whole of Mr Chehata’s evidence shows that her Honour’s conclusion was well justified. It is clear that, in expressing his opinions on causation, Mr Chehata found it difficult to be specific and was hesitant in expressing a concluded view. Nowhere in Mr Chehata’s evidence does he say that the deterioration which occurred from around 2018 can be attributed wholly to the accident. While Mr Chehata thought it was ‘not unreasonable to presume’ that the degenerative changes were aggravated after the accident, he expressed no view as to what (if any) part of the deterioration from 2018 was caused by the accident as opposed to the progression of the underlying degenerative process. As we have already said, this was a crucial issue simply not addressed by Mr Chehata or the evidence more generally.
[25]Reasons, [11].
[26]Ibid [14].
It follows from what we have said above that proposed ground 3 must be rejected; and, as success on proposed ground 3 was essential for the applicant to obtain any relief in this Court, the application for leave to appeal and/or the appeal must be determined against the applicant. While what we have said is sufficient to dispose of the proceeding in this Court, for completeness, we will now address the issues raised by the applicant’s remaining grounds of appeal.

Under proposed ground 2, the applicant cavils with the judge’s conclusion that she was not satisfied that the levels of pain the applicant was suffering from at the time of trial would be a long-term consequence, because of the ‘very real prospect’ that the applicant would have surgery which would alleviate (at least to some extent) the pain from which the applicant was then suffering.[27] In summary, the applicant alleged two errors in this conclusion: first, the conclusion overlooks the impairment and disability (in the form of reduced wrist movement) that will be brought about by the performance of a fusion operation; and secondly, the pain consequences prior to any surgery being performed should (with or without the consideration of any resulting impairment after surgery) have been held to have been long-term — they already having been in existence for a number of years, with an expectation that they would continue up until the performance of any surgery which may yet itself be some years away.
[27]Ibid [19].
These submissions cannot be accepted. First, there was a real paucity of evidence at trial as to the extent and level of any loss of movement that might be occasioned by the performance of a fusion on the applicant’s right wrist. Secondly, on the evidence, the judge was entitled to conclude that the performance of the proposed surgery would largely alleviate the levels of pain then being suffered by the applicant — after all, that is the very purpose of the surgery which has been proposed.
In order to satisfy the definition of ‘serious injury’, it is the serious (as in ‘at least very considerable’) impairment which must be long-term. If the applicant wished to assert that any impairment that might remain or exist after the performance of a fusion was serious, then it was incumbent upon him to lead some evidence on that issue. In the circumstances of this case, and having regard to the paucity of the evidence in relation to this issue, we see no error in the judge failing to be satisfied that, whatever impairment might otherwise satisfy the serious injury definition, the applicant’s impairment was not long-term. There is thus no substance in proposed ground 2.
Under proposed ground 1, the applicant cavils with the judge’s final conclusion that, even taking into account that the whole of the applicant’s right wrist symptoms were attributable to the accident (which we have not accepted), the applicant had not established that the consequences of his impairment were ‘very considerable and more than merely significant or marked’.[28]
[28]Ibid [21].
The judge accepted that the applicant ‘now suffers a constant ache in his right hand, with occasions of more severe pain, and restricted range of motion’.[29] However, the judge went on to say that, nevertheless:
(a) he is still able to work as a cook in a childcare centre;
(b)he is still able to fish, although his frequency and enjoyment of fishing has decreased as his wrist has worsened;
(c)he is still able to pursue his passion for gardening with Australian natives, although with some restrictions;
(d)he is still able perform housework and maintenance, although with some restrictions;
(e)there is no suggestion that he is not still able to enjoy quality time with his family and friends;
(f)there is some impact on his sleep, but his evidence in this regard is very general, referring to ‘often’ waking up one or twice during the night. The word ‘often’, without more, could mean several times a week or it could mean several times a year. He agreed his sleep was also disturbed due to prostate-related issues.[30]
[29]Ibid [15].
[30]Ibid.
With respect, there could be no issue about the correctness of these observations made by the judge. Nor do we see any issue about the correctness of her Honour’s discussion of the applicant’s level of medical and like treatment, or the significance to the applicant of the change in his career trajectory following the accident, or the relative modesty of the pain relief medication which the applicant had required until the time of trial.[31]
[31]Ibid [16]–[18].
It seems to us that the judge has carefully analysed the consequences to the applicant of his right wrist impairment, and concluded that, in total, they only had ‘significant ongoing impacts on his life’.[32] Looking at the evidence for ourselves, accepting the judge’s findings of fact, and taking into account the whole of the applicant’s right wrist impairment, the consequences to the applicant, when judged by comparison with other cases in the range of possible impairments or losses, are best described as significant — and perhaps considerable. However, for the reasons given by the judge we do not think that they can fairly be described as at least ‘very considerable’ (as they must be if they are to satisfy the statutory definition of ‘serious injury’). We would therefore also reject proposed ground 1.
[32]Ibid [20].

Conclusion

In order to succeed in this Court, the applicant had to establish all three of his proposed grounds of appeal. As we have rejected each of his proposed grounds, the applicant’s proposed appeal cannot be said to have any real prospect of success. Accordingly, the application for leave to appeal must be refused.[33]
[33]Supreme Court Act 1986, s 14C.
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[2025] VSCA 18

28 February 2025