Siddel-Whipp v Transport Accident Commission
[2020] VSCA 109
•8 May 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0103
| KENNETH SIDDEL-WHIPP | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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| JUDGES: | BEACH and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 May 2020 |
| DATE OF JUDGMENT: | 8 May 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 109 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1303 (Judge Misso) |
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ACCIDENT COMPENSATION – Appeal – Transport accident – Serious injury application – Injury to the spine – Whether consequences serious – Whole of the evidence – Applicant’s evidence – Lay evidence – Medical evidence – Whether judge erred in considering evidence – Whether decision refusing application against the evidence or weight of the evidence – Whether judge failed to consider whole of the evidence – Whether reasons adequate – Application for leave to appeal refused – Transport Accident Act 1986, s 93.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R H Stanley and Mr O T Lesage | Shine Lawyers |
| For the Respondent | Mr J Ruskin QC with Ms R L Kaye | Solicitor for the Transport Accident Commission |
BEACH JA
EMERTON JA:
Late on the evening of 19 October 2016, the applicant was driving his motor vehicle along Dandenong Road, Malvern,[1] when a fallen overhead tram wire became entangled with one of his wheels, causing him to lose control of his car, which then flipped over (‘the accident’). The following morning, he became aware of pain and stiffness in his neck and lower back, and the onset of a headache.
[1]Near where Dandenong Road intersects with Glenferrie Road.
By an originating motion filed in the County Court on 23 January 2019, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’), to commence a proceeding at common law claiming damages in respect of the injury he claimed to have sustained in the accident. The applicant relied upon paragraph (a) of the definition of ‘serious injury’ contained in s 93(17) of the Act — namely, ‘serious long-term impairment or loss of a body function’. The body function relied upon was the function of the spine.
The application was heard in the County Court by Judge Misso on 5 and 6 August 2019. On 23 August, the judge dismissed the application. While the judge accepted that the applicant had suffered an injury to his spine which was productive of pain and other consequences,[2] his Honour concluded that the evidence did not justify a finding that the consequences of the applicant’s impairment were serious within the meaning of the Act.[3]
[2]Siddel-Whipp v Transport Accident Commission [2019] VCC 1303, [63] (‘Reasons’).
[3]Ibid [68].
The applicant now seeks leave to appeal against the order refusing his application, on the following proposed grounds:
When finding that the applicant did not suffer a serious injury, his Honour erred by:
(i)failing to make correct findings about some of the applicant’s evidence;
(ii) failing to correctly apply the evidence to the test for serious injury;
(iii) failing to deal appropriately with the lay evidence;
(iv) failing to consider the applicant was a ‘stoic’;
(v)making findings on credit which were not consistent with the evidence as a whole;
(vi)failing to properly consider the whole of the evidence;
(vii)failing to disclose an adequate path of reasoning.
Relevant background
The applicant was born in July 1980. At the time of the accident, he was 36 years of age.
In about 2006, the applicant commenced employment as a file manager at Property Realisations. He remained in that employment until about 2014. In July 2015, after engaging in other employment, he returned to his employment at Property Realisations. He was subsequently promoted to the position of office manager. There is an issue between the parties as to whether this promotion occurred before or after the accident.
The accident occurred at about midnight on the night of 19/20 October 2016. An ambulance and fire truck attended. The applicant declined an offer to go to hospital, and was driven home by his husband.
The next morning, the applicant awoke with pain and stiffness in his neck and back. He also had a headache. That day, he consulted Dr Shaojun Liu,[4] a general practitioner at Myhealth Medical Centre. Later that day, he attended the Monash Medical Centre where CT scans of his brain, cervical spine, chest and abdomen were performed. The applicant was advised that his ‘generalised bodily pain’ would probably persist for several days. He was given a certificate to be off work for five days and prescribed an analgesic, Endone.
[4]Referred to in some of the material as ‘Dr Luke’.
The applicant was off work for two days, before resuming his pre-accident employment. Thereafter, he had occasional days off as a result of the accident, which he took as sick leave. He estimated that these sick leave days would have totalled ‘maybe two to three weeks’.
Since the accident, the applicant has continued to attend at Myhealth Medical Centre, where he has been treated for a diagnosed chronic pain syndrome. The treatment he has received has included acupuncture, physiotherapy and the prescription of various medications (including medicinal cannabis and Endone). He has also received hydrotherapy, treatment by the use of a TENS machine and osteopathic treatment.
In June 2017, the applicant was referred to a psychologist, Dr Didah Garcia. Initially, he attended Dr Garcia weekly, and then fortnightly, for treatment. In 2019, this reduced to once every three to four weeks.
In August 2017, the applicant was referred to a specialist in pain medicine, Dr Noam Winter. The applicant saw Dr Winter on 22 August and 3 October 2017. Dr Winter prescribed Orphenadrine and Duloxetine.
In 2018 and 2019, the applicant was seen by Dr Clayton Thomas, a consultant in rehabilitation and pain medicine. The applicant was initially seen on referral from his solicitors, and later on referral from his general practitioner. Dr Thomas suggested changes to the applicant’s medication regime. He prescribed Palexia and Gabapentin. He also suggested a Ketamine infusion and a pain management course.
The applicant underwent a Ketamine infusion for a week in December 2018, and later underwent a pain management program at the Victorian Rehabilitation Centre. The discharge report from the Victorian Rehabilitation Centre shows that the applicant’s program commenced on 28 February 2019 and that he was discharged from the program on 30 April 2019.
Dr Thomas noted that the Ketamine infusion made very little difference to the applicant’s pain. The applicant, however, reported to Dr Thomas that he found the pain management program ‘very beneficial’.
In September 2018, the applicant was referred to Dr Natalie Krapivensky, a consultant psychiatrist. Thereafter, Dr Krapivensky ‘continue[d] to review him on a regular monthly basis’. Dr Krapivensky noted that a trial of medicinal cannabis resulted in a ‘significant improvement in [the applicant’s] mood, anxiety and pain symptoms’.
Applicant’s evidence
In support of his application for leave to commence a common law proceeding, the applicant relied upon two affidavits affirmed by him on 24 May 2018 and 1 July 2019. The applicant was cross-examined before the judge. He was the only witness to give oral evidence on the application.
In his first affidavit, the applicant described his pain in the following terms:
Since the accident, I have continued to suffer from virtually constant, variable pain in my back. The pain can be on either side of my spine, and is often a stabbing pain. Any kind of pressure on my back tends to cause the symptoms to increase. Even the pressure of sitting back in a chair can cause the symptoms to increase. If I bend over or twist my back, it usually causes the symptoms to increase.
I also continue to suffer from virtually constant, variable pain in my neck. The pain tends to flare up if [I] turn or tilt my head towards the extremes of movement. The pain tends to be a dull ache when I am at rest, and more of a sharp pain when I try to be active. I sometimes experience stabbing pains, both when I am active and when I am at rest.
I generally suffer an increase in back and neck pain when I walk for a long time. Walking up inclines, or up and down stairs, is particularly painful. Due to these symptoms, I tend to walk less than I did before, and I struggle to walk as far as I could before.
Standing in one spot for too long also tends to cause my back and neck symptoms to flare up. If I have been standing for a while, I often feel like moving around or sitting down to rest a bit. Sitting down for prolonged periods of time is also difficult for me, because my back and neck pain start to increase quite quickly. If I have been sitting for a while, I often have to shift my position or get up and move around to relieve some of the symptoms. This makes it hard for me to sit down and focus on a sedentary task, because I
am distracted by the pain and discomfort. Sitting upright in a chair and sitting in a car both become difficult and painful after a short period of time.
In his first affidavit, the applicant also deposed to difficulties performing various household tasks including vacuuming, mopping, cleaning, changing the sheets on the bed and gardening. Additionally, he deposed to difficulties caused by driving (particularly on long trips) and flying.
In addition to his physical pain, the applicant deposed to ‘feeling a lot of psychological distress since the accident’. He said he did not tend to cope as well as he did before the accident, and he became stressed ‘much more easily’.
As to his work at Property Realisations, the applicant said:
My current role at Property Realisations involves managing the office. This is essentially the same role I had at the time of the accident. It is mostly a desk-based job and involves tasks such as taking phone calls during auctions, completing the paperwork on sales, liaising with real estate agents and performing a variety of other administrative tasks.
After the accident, I was off work for about a couple of days, after which I returned full time. I am required to sit upright at a desk, which causes my back and neck symptoms to increase. I am generally in pain when I work, but I persevere because I need to work, and because my employer is supportive and I do not want to let them down.
In his second affidavit, the applicant described his pain in the following terms:
As a result of my injury, I suffer constant pain in my spine from the top of my neck to the base of my spine. The pain is constant. My neck and back are stiff.
I have constant aching pain intermittent with stabbing pain. The pain spreads up and down my spine and at times seems to even move from my back into my stomach.
My pain varies from day to day. On some days I wake up and I am in pain from the beginning of the day to the end of the day. On other days, I have less pain during the morning, but it gradually builds around the middle of the day and increases by the evening.
I find it difficult to sit for long periods of time, stand for long periods of time, bend over on a repetitive basis and lift heavy weights. I find it difficult to hold my neck in a flexed position. I find it difficult moving my neck from left to right without pain.
Any activity causes me increased pain.
I have difficulty sleeping due to pain. I find it difficult getting to sleep because of pain and I find it difficult to get comfortable when I go to bed at night. During the night I am often woken with pain. At times I revert to taking Imovane if the pain is so bad and my sleep is worse than usual. I also get some relief with the medical cannabis oil. When I wake in the morning I do not feel refreshed. I feel tired before the day starts.
The pain causes me fatigue. It makes everything an effort to do.
In his second affidavit, the applicant again referred to various activities with which he has difficulty. In relation to attending games of rugby, the applicant said:
I have always enjoyed going to the rugby. Since my injury I have been on a couple of occasions but have found that by the end of the game, after sitting for the game, especially in the cold weather, I suffer increased pain. But for my injury, I would go to the rugby regularly. … It was a fun activity to do with my partner, my friends and my boss, which I am now missing out on.
The applicant went on to depose further to difficulties with overseas and interstate travel, his social life and his intimate relations with his partner. As to work, he said:
I continue to work. My present role is still managing the office. I work a normal 38 or 40 hour week, depending on the work that is required to be done. I have an understanding boss.
The applicant was cross-examined about a number of topics with a view to showing that the consequences he alleged he suffered as a result of the accident were not as serious as he suggested in his affidavits. In the course of cross-examination, the applicant’s credit and reliability were put in issue.
Specifically, the applicant was cross-examined about his income increasing after the accident; an apparent inconsistency between his affidavit evidence and his oral evidence concerning the number of hours he worked per week; the amount of time he had had off work since the accident; an apparent inconsistency between his history to Dr Epstein of attending 10 to 15 games of rugby in 2018 and what he said about that issue in his affidavit evidence; and the number, and details, of interstate and overseas trips the applicant had taken following the accident.
Lay evidence
In support of his application, the applicant also relied upon an affidavit affirmed by his husband on 29 July 2019, and an affidavit sworn by Kenneth Dowman on 30 July 2019. Mr Dowman is the owner of Property Realisations.
In his affidavit, the applicant’s husband deposed to observing the applicant ‘in pain a lot of the time’, being ‘in pain regularly’, and taking medication. He also deposed to observing that the applicant’s sleep has been affected. Additionally, he said that their intimate life being affected, their relationship had been affected, and holidays are shorter and ‘different now’. Specifically, he said:
I observe Kenneth to be in pain when he gets out of bed in the morning. He takes ages to get out of bed. He is like an old man. He tells me he is in pain and very stiff and sore.
In his affidavit, Mr Dowman said that he often observed the applicant to be in pain, and he often sees him taking medication during the day. Mr Dowman said:
After the accident, as I could see that Kenneth was struggling at work, I gave him a rostered day off (‘RDO’) once a month to assist him to stay at work. My understanding was that he would use the RDOs to either attend medical appointments or to rest. Even with the RDOs, from time to time, he requires days off because of his pain. These are infrequent.
…
When I observe Kenneth to be in pain, on occasions I ask him if he is in pain and I suggest that he goes home early. He rarely takes time off. I am admiring of him because it is clear he is reluctant to take time off even if he is in pain. …
Kenneth is a special employee to me because he helped me out when my daughter became sick. He is committed to the business and assisting me. In the same way, I am committed to assisting and supporting him to continue working. I rely on Kenneth a lot, so I allow him some slack, and in this way it is a form of protected employment.
The evidence was that Mr Dowman’s daughter was the manager of the office of Property Realisations until she became ill. Mr Dowman said that he appointed the applicant to the position of manager when his daughter became ill. In his affidavit, he said that his daughter became unwell ‘in the last couple of years’. There is an issue between the parties as to whether the applicant became the manager of the office before or after the accident. We will say more about this below, but on Mr Dowman’s evidence, the applicant would have become manager no earlier than 2017.
Evidence from treating health professionals
The evidence from treating health professionals consisted of a report from Dr Liu;[5] a report from Dr James Ting,[6] another general practitioner at Myhealth Medical Centre; a report from Dr Winter;[7] two reports from Dr Garcia;[8] a report from Dr Krapivensky;[9] a report from Dr Thomas;[10] a report from Monash Health;[11] together with the Monash Medical Centre Emergency Department discharge summary relating to the applicant’s attendance on 21 October 2016; and the discharge report from the Victorian Rehabilitation Centre in relation to the pain management course the applicant underwent in the first half of 2019.
[5]Dated 24 May 2017.
[6]Dated 28 May 2019.
[7]Dated 26 October 2017.
[8]Dated 14 November 2017 and 15 April 2019.
[9]Dated 18 March 2019.
[10]Dated 10 July 2019.
[11]Dated 12 May 2017.
In his report, Dr Liu said that the applicant suffered from chronic pain everyday which affected his daily function. In a very brief report, Dr Ting said that the applicant had been diagnosed with chronic pain syndrome. Trials of several medications had not really helped, except for medicinal cannabis. Dr Ting said that the applicant was currently stable in terms of pain control (as at May 2019), ‘but his prognosis … is unknown until he finishes his pain program’.
In his report, Dr Winter said that he believed the applicant would continue to need ‘ongoing treatment for his acute stress response with ongoing psychological support’. He also believed that the applicant would require some future ongoing medical therapies for the management of ‘his widespread myofascial pain and poor sleep’.
In her reports, Dr Garcia referred to the applicant’s prognosis in the following terms:
It is my opinion that Kenneth Siddel-Whipp’s psychological injury has now stabilised. It appears that he has demonstrated moderate improvement in managing his anxiety and post-traumatic stress symptoms by using both psychopharmacological intervention and psychological strategies. He continues to work full-time and has embarked to do an online course to broaden his career opportunities.
In her report, Dr Krapivensky noted that the trial of medicinal cannabis had resulted in significant improvement in the applicant’s mood, anxiety and pain symptoms. She said she met with the applicant’s husband ‘who confirmed the same’. She then said:
From a psychiatric perspective he has no current psychiatric condition. He has mild symptoms of anxiety, no panic attacks, his mood is very good, he is very active and all his activities of daily living are normal in all domains. He continues to work. Since commencing [medicinal cannabis] he has been able to stop all opioid medication.
In his report, after describing the applicant’s treatment, Dr Thomas said:
Diagnostically, Mr Siddel-Whipp suffers from a chronic pain syndrome, now called nociplastic pain, therefore neither neuropathic nor nociceptive. Nociplastic refers to central sensitisation.
…
Prognosis is for ongoing pain and disability and as such he will need long-term chronic disease monitoring going forward into the foreseeable future.
When I last saw him, he continued to use medicinal cannabis primarily at night time. He still had a lot of lower back sensitivity. He had had no joy with either Gabapentin or Pregabalin and I suggested a trial of Topiramate starting with 25 mg increasing each fortnight aiming to get to 50 mg twice per day.
Medico-legal evidence
The medico-legal evidence in this case came in the form of reports from Mr Kenneth Brearley, a consultant general surgeon who examined the applicant, at the request of his solicitors, on 11 October 2017; Professor Richard Bittar, a consultant neurosurgeon, who examined the applicant, at the request of his solicitors, on 27 June 2019; Dr Nathan Serry, a consultant psychiatrist, who examined the applicant, at the request of his solicitors, on 18 October 2017; Mr Michael Epstein, a clinical psychiatrist who examined the applicant, at the request of his solicitors, on 28 May 2019; Dr John Owen, a consultant orthopaedic surgeon, who examined the applicant, at the request of the respondent, on 4 June 2019; and Dr Andrew Firestone, a general psychiatrist, who examined the applicant, at the request of the respondent, on 19 June 2019.
In his report, Mr Brearley expressed the opinion that the applicant sustained soft tissue injuries to his cervical and thoracolumbar spine in the accident. In relation to the applicant’s back, Mr Brearley described the history as ‘one of significant thoracic pain with no physical findings’. With respect to the applicant’s neck, Mr Brearley said that the history was compatible with specific injury, however, there were ‘no significant clinical findings and no muscular guarding or history of guarding’. Mr Brearley said that he believed that the applicant also required psychiatric assessment.
Following his examination, Professor Bittar expressed the opinion that the applicant had sustained injuries to his cervical and lumbar spine. Mr Bittar reviewed the reports of the CT scans performed on 20 October 2016. He said that without additional imaging it was difficult to make a more specific diagnosis than that set out above. He recommended further investigation of the applicant’s condition. In relation to the applicant’s prognosis, he said that this was guarded. He then said:
He experiences persistent symptoms following the transport accident which occurred nearly three years ago, and has been treated somewhat unsuccessfully to date. On balance, he is likely to continue to suffer from significant pain and disability into the foreseeable future.
As to whether the applicant’s injury was organic in nature, Professor Bittar said:
I am of the view that the injury diagnosed is organic. He has developed a significant chronic pain condition as a result.
Mr Serry expressed the opinion that, from a psychiatric viewpoint, the applicant has experienced ‘a degree of anxiety, fluctuating low mood’ and ‘some frustration’. Mr Serry said that the applicant had been ‘somewhat traumatised by the accident circumstances’. As to prognosis, Mr Serry said:
Your client’s prognosis is mixed. There is an element of premorbid vulnerability given the earlier depression and there now appears to be some ongoing issues both with chronic pain and fluctuating mood and anxiety issues along with a degree of traumatisation.
Mr Epstein diagnosed the applicant as suffering from a chronic adjustment disorder with mixed anxiety and depressed mood, with symptoms of traumatisation. He said, however, that the applicant did not meet the full criteria for a post-traumatic stress disorder. The prognosis with regard to the applicant’s mental state depended very much on what happens with his physical symptoms.
Mr Owen diagnosed the applicant as suffering from chronic spinal pain resulting from the accident. He was asked whether the applicant’s current symptoms and functional status were explained by the injuries he diagnosed as resulting from the accident. He said:
So far no accurate diagnosis has been proposed for this man. The nature of his accident is highly unusual and I suspect given that he was totally unprepared for it and was going at some speed that it is likely that he had quite substantial axial loading of his spine. It is highly likely that he had either a soft tissue ligamentous injury to his spine or multiple level compressive injuries to his discs that have led to a state of chronic pain. He had no problems prior to the accident. I do not think he has any major illness signs. That is, he did not appear to be exaggerating any of his physical examination and he has been working so I suspect that his pain is quite organic and unfortunately probably not identifiable to one specific pathology or focus.
I do not see that any further imaging would be particularly helpful. It would be curious (scil, interesting) of course to look at an MRI but I doubt whether there would be any benefit to the claimant in having further imaging and it probably would not clarify the situation in terms of his management.
When asked whether his findings on examination were consistent with the applicant’s current complaints of injury and disability, Dr Owen said:
I do think that the examination and his complaints are consistent.
As to the applicant’s prognosis, Dr Owen said:
His prognosis is of course difficult given that he does not have any firm diagnosis apart from chronic pain. Given that he has no obvious pre-existing pathology seen in his cervical spine imaging it is likely that his prognosis will be to remain much the same.
In Dr Firestone’s report, he stated that the accident did not appear to have interfered with the applicant’s work or his personal living activities. He noted that symptoms of chronic pain developed, which have remained. He said it was unclear whether the applicant’s psychiatric symptoms have resolved or not, because the applicant was continuing to take medication.
Primary judge’s reasons
The judge commenced his reasons with a summary of all of the medical evidence.[12] In the course of that summary, he said that it was important to set out the evidence of Dr Krapivensky, to which we have already referred, namely:
From a psychiatric perspective he has no current psychiatric condition. He has mild symptoms of anxiety, no panic attacks, his mood is very good, he is very active and all his activities of daily living are normal in all domains. He continues to work. Since commencing [medicinal cannabis] he has been able to stop all opioid medication.[13]
[12]Reasons [4]–[29].
[13]Ibid [19].
The judge then referred to the applicant’s affidavit evidence, the consequences which the applicant claimed were caused by the accident, and the affidavits of the applicant’s husband and Mr Dowman. In respect of the affidavits of the applicant’s husband and Mr Dowman, the judge said:
Jamie Siddel-Whipp is the plaintiff’s partner. He has observed many of the pain and suffering consequences referred to by the plaintiff. Kenneth Downman [sic] is the plaintiff’s employer. He conducts a business known as Property Realisations which is involved in the sale of properties on which mortgagees have foreclosed. He employs the plaintiff as an office manager. He has also observed many of the pain and suffering consequences referred to by the plaintiff. He said that the plaintiff has rarely taken time off, but he has allowed him some slack in his job, referring to the job as a form of protected employment.[14]
[14]Ibid [32].
Next, the judge referred to the cross-examination of the applicant. In the course of this analysis, the judge noted the yearly increases in the applicant’s income following the accident.[15] The judge also said that the applicant obtained his promotion to the position of manager ‘in 2016 after the occurrence of the transport accident’.[16]
[15]The applicant’s taxation returns showed that his gross income was, for the year ending 30 June 2015, $59,871; for the year ending 30 June 2016, $59,829; for the year ending 30 June 2017, $71,975; for the year ending 30 June 2018, $76,058; and for the year ending 30 June 2019, $72,710.
[16]Reasons [35].
The judge observed that the applicant was cross-examined about a number of issues which were ‘part of a testing of [his] creditworthiness and reliability’.[17]
[17]Ibid [41].
The judge then referred to his summary of the medical opinions, saying that it demonstrated that there were some doubts as to the identification of the actual injury suffered by the applicant.[18] Ultimately, and after further analysis,[19] the judge concluded that it was likely that the applicant had suffered a soft tissue injury to his spine.[20]
[18]Ibid [43].
[19]Ibid [43]–[46].
[20]Ibid [46].
The judge accepted that the applicant had undergone significant medical treatment, the majority of which was the prescription of significant amounts of painkilling medication and medication to treat anxiety and depression and features of post-traumatic stress disorder.[21]
[21]Ibid [47].
The judge then dealt with the relevance of the various psychiatric diagnoses (remembering that the applicant’s claim was a claim under paragraph (a), and not (c), of the definition of ‘serious injury’). The judge said:
I should pause here for a moment to deal with the psychiatric diagnoses. Both the plaintiff and the defendant agreed that if the plaintiff can gain the benefit of what was said in Richards v Wylie,[22] it is limited to measuring the seriousness of the consequences of the impairment of the function of the plaintiff’s spine by his mental response to that physical impairment. It does not extend beyond that, and in this case, to the extent of any anxiety and depression and features of Post-Traumatic Stress Disorder which must fall to be determined under paragraph (c) of the definition of ‘serious injury’.[23]
[22](2000) 1 VR 79 (‘Richards’).
[23]Reasons [48] (citation added).
The judge again turned to the issue of when the applicant became the office manager for his employer. The judge noted the applicant’s evidence that ‘he was moving into the position of manager before the transport accident’. The judge concluded, however, that it was more likely than not that the applicant was promoted to the position of office manager after the accident.[24] The judge then said:
The plaintiff’s initial evidence that nothing changed in his employment following the transport accident is clearly wrong. He was not only promoted to the position of manager, but his income rose significantly, commensurate with not only occupying the position of manager, but relevant to his hours of work.
The plaintiff struggled to give direct answers to questions under cross-examination relevant to his position as a manager, the income he was earning subsequent to the occurrence of the transport accident, and the hours he was required to work and the extent to which he was expected to work on weekends. There was nothing in the questioning which was misleading. The plaintiff gave non-responsive answers before he finally gave direct answers. I am left with the impression that he was lacking candour at first, before he eventually disclosed the reality of his employment circumstances.[25]
[24]Ibid [50].
[25]Ibid [51]–[52].
Next, the judge referred to what he described as the ‘unsatisfactory state [of the evidence]’[26] regarding the applicant’s absences from employment following the accident. The judge then said:
[26]Ibid [53].
I accept the plaintiff’s evidence that he had some days off work due to his injuries, but I am unable to conclude whether that was due to an incapacity for work or due to obtaining medical treatment, or for some other reason. Nor am I able to conclude how many days the plaintiff was absent from his employment.
This evidence is of significant importance because it must be the case that if a person is able to work full time in an unrestricted fashion, even in a non-physical job, that it demonstrates that an injury may not have impairment consequences which are ‘serious’. Furthermore, the extent of working hours, added to the capacity to travel interstate and overseas, must bring the injured person closer to a point where it is difficult to justify a conclusion that the claimed impairment consequences are ‘serious’.
The plaintiff’s evidence about attending rugby games and what he told Dr Epstein are quite seriously at odds. To say that he has only attended ‘on a couple of occasions’ is in stark contrast to what Dr Epstein recorded. The defendant submitted, in effect, that it is an attempt to underplay the plaintiff’s social and recreational activities when the reality is that in 2018, he attended many more rugby games than he was prepared to admit to.
The most troubling evidence is the stark contrast in the evidence of Dr Krapivensky and the plaintiff relevant to the extract of her report which was put to the plaintiff. If Dr Krapivensky’s opinion is considered in a vacuum, then one would be driven to conclude that the plaintiff has made a very good recovery from his spinal injury and the psychiatric sequelae of the transport accident. It is an opinion expressed by a psychiatrist who has treated the plaintiff for some time, and who continues to treat him.
The plaintiff denied that the substance of the opinion of Dr Krapivensky is true. It constitutes a stark and inconsistent statement from someone who I must accept would have intimate knowledge of the plaintiff’s psychiatric state, and his physical state of health through her long-standing treatment of him. It is a remarkable proposition for the plaintiff to submit that she has completely misconceived the state of the plaintiff’s psychiatric and physical health.
The plaintiff sought to undermine Dr Krapivensky’s opinion. He submitted that there is an internal inconsistency in her opinion. She referred to the plaintiff having mild symptoms of anxiety, yet she continued to prescribe him Brintellix to treat depression. I do not understand the basis for that submission. There is no basis upon which I can find that the prescription of that medication is necessarily inconsistent with her opinion relevant to the plaintiff’s psychiatric and physical state of health. I prefer Dr Krapivensky’s evidence to that of the plaintiff, that the plaintiff does not have the degree of consequences of the impairment of function of his spine as he says.
I am fortified in reaching that conclusion because no medical practitioner suggests that the plaintiff has any incapacity for employment. The preponderant prognosis is for continuing spinal pain and the need for symptomatic treatment. Those opinions are primarily based upon the plaintiff’s complaints of pain and disablement, and I think that is made all the more obvious by the opinion of Professor Bittar, who considered that other investigations were needed to objectively verify the source of the plaintiff’s spinal pain.[27]
[27]Ibid [54]–[60].
Having made these findings, the judge then expressed his conclusion that, while the applicant’s claimed consequences might be ‘significant’ or ‘marked’, they were not ‘very considerable’ as required by the Act.[28] The judge then summarised his reasons for this conclusion as follows:
I accept that the plaintiff has suffered an injury to his spine which is productive of pain, and is likely to result in the some level (sic) of the consequences which I have summarised above; however, I do not accept that the consequences are nearly as disabling as contended for by the plaintiff.
The plaintiff is able to work full time as a manager. It must involve him in doing all the necessary preparations to get to his place of employment and to leave it to return to his home each day. It must involve degrees of sitting, standing and perhaps other levels of posture in order to undertake his work. It involves some travel. The impairment of the function of his spine does not interfere significantly the level of mobility required to undertake that work.
Additionally, the plaintiff has been able to travel, although, he says that the trips interstate and overseas have not been enjoyable because of discomfort through air travel and at the places where he has holidayed; however, he has undertaken those trips which must mean that he has had the capacity to do so and to gain enjoyment provided by those trips.
There is a question of the plaintiff’s candour which I have dealt with, and in particular, the absence in his affidavits of the actual work he performs, and his capacity to engage in the activity of being a spectator at rugby. Although, the issue of his attendance at rugby games might be considered to be relatively immaterial, it goes to the question of the plaintiff’s candour.
The issue which I have found most troubling is Dr Krapivensky’s view of the plaintiff’s psychiatric and physical state of health. It is very much in stark contrast to the case put by the plaintiff. I will not reject her opinion out of hand as invited to by the plaintiff. I think it is a telling opinion against a finding that the impairment of the plaintiff’s spine has consequences which are ‘serious’.
In making the comparison with other cases in the range of possible impairments or losses I do not consider, when I take an overall view of the evidence, that the plaintiff’s evidence justifies a finding that the consequences of the impairment of the function of his spine are ‘serious’.[29]
[28]See Humphries v Poljak [1992] 2 VR 129, 140 (‘Humphries’).
[29]Reasons [63]–[68].
Parties’ submissions
In support of his proposed grounds of appeal, the applicant submitted that the judge ‘misstated or misunderstood some of the evidence’. In support of this complaint, the applicant raised the following matters:
(1)The judge’s treatment of Mr Owen’s evidence was said to be erroneous. The applicant noted that the judge erred when he referred to Mr Owen as saying that the examination of the applicant and the applicant’s complaints were inconsistent.[30] In fact, Mr Owen said, ‘I do think that the examination and his complaints are consistent’.
(2)The timing of the applicant’s promotion to the position of manager was incorrectly determined. The applicant contended that there was no evidence to support the judge’s finding that it was more likely than not that the applicant was promoted after the accident. The applicant’s evidence was to the contrary, when he said, ‘it was actually slightly before the accident when I started taking on the managerial role’.
(3)The judge’s finding that the applicant’s income rose significantly following the accident was said to be wrong. Moreover, the increase in earnings from 2015 to 2016 was said to support the proposition that the applicant was performing the management role at the time of the accident.
(4)The judge failed to reconcile the applicant’s evidence in his second affidavit that he worked 38 to 40 hours per week at that time, with his oral evidence that he worked up to 43 hours per week as required. A proper reconciliation of this evidence would have shown the judge that there was no inconsistency.
(5)The judge’s finding that nothing changed in the applicant’s employment following the accident was said to be ‘clearly wrong and … not based on the evidence’.
(6)The judge failed to consider the applicant’s evidence that he was struggling at work — which evidence was corroborated by ‘the unchallenged evidence of his husband … and his boss, Mr Dowman’.
(7)The judge was wrong to find that it was a ‘remarkable proposition’ for the applicant to submit that Dr Krapivensky had completely misconceived the state of the applicant’s psychiatric and physical health.[31] On all of the evidence, there were sound bases for disagreeing with the evidence of Dr Krapivensky.
(8)The judge incorrectly found that the applicant was able to work ‘full time in an unrestricted fashion’.[32]
[30]Ibid [25].
[31]Ibid [57].
[32]Cf Reasons [55], [64].
In relation to the correct application of the test for serious injury under the Act to the evidence, the applicant submitted that the judge erred in failing to consider that the significant amount of medication prescribed and taken, and the applicant’s experience of pain on a daily basis, of themselves, were serious. The applicant contended that the judge erred in dismissing the relevance of the amount of medication, and erred in not considering whether the injury was serious despite the applicant continuing to work.
As to the applicant’s allegation that the judge failed to deal appropriately with the lay evidence, the applicant’s argument was encapsulated in the following submission:
His Honour did not deal with the evidence in the affidavits in support of Mr Siddel-Whipp, his partner, Mr Dowman, his boss. His Honour failed to analyse in any detail the evidence of these lay witnesses in making his assessment of whether the applicant suffered a serious injury. The evidence was unchallenged by the respondent and was favourable to the applicant.
Next, the applicant complained about the judge’s reliance on the fact that the applicant continued to work. It was submitted that the judge wrongly placed too much significance on this issue ‘having regard to the applicant’s stoicism in continuing to work’.
A recurring theme in the applicant’s submissions was his contention that the judge failed to deal, or properly consider, the whole of the evidence. This complaint was encapsulated in the applicant’s written case as follows:
His Honour failed to deal with the applicant’s experience of pain, including the evidence of the applicant, the unchallenged evidence of the applicant’s husband, the unchallenged evidence of the applicant’s boss and that of the
medical practitioners, including the respondent’s medico-legal practitioner, Mr Owen.
The various errors contended for by the applicant were then submitted to have led to the judge wrongly making adverse findings about the applicant’s candour and credit. Additionally, those findings were said to be wrong because they ‘disregarded the favourable and unchallenged evidence of [the lay witnesses]’. The judge’s conclusion about the applicant’s candour and credit was said to rely on ‘unstable’ facts or findings.
The applicant submitted that the judge was wrong to disregard what was said to be the ‘favourable findings of the applicant in terms of his presentation to the medical practitioners’. In support of this submission, the applicant observed that none of the medical practitioners said that the applicant was exaggerating or overstating his symptoms. Reference was made to Dr Winter’s observation that the applicant was ‘motivated and resilient’, having only taken four or five days off work.
Ultimately, the applicant submitted that the judge’s decision was against the weight of the evidence. Particular reference was made to the opinions of Dr Owen, Dr Winter, Dr Thomas and Professor Bittar.
Finally, the applicant submitted that the judge’s reasons did not disclose an adequate path of reasoning. According to the applicant, his evidence and the evidence of his husband and Mr Dowman about his levels of pain and disability remained unchallenged. The judge’s reasons failed to disclose why having regard to this unchallenged evidence, the consequences of his injury were not ‘serious’.
The respondent commenced its submissions by noting that the applicant had failed to discharge his onus of proof in an application in which his credit and reliability as a witness was of great importance. The judge had the advantage of seeing and hearing the applicant give evidence. Having had that advantage, the judge considered that the applicant had been non-responsive and lacking in candour in respect of critical issues about which he was cross-examined.
As to the error made by the judge in reciting Mr Owen’s statement about the consistency between his examination of the applicant and the applicant’s complaints, the respondent submitted:
His Honour’s reproduction of the word ‘inconsistent’ as opposed to the word ‘consistent’ was no more than a typographical slip. Nothing turned on it, as, at [43], his Honour preferred the applicant’s submission concerning the nature of injury over the evidence of Mr Owen.
As to the finding by the judge that the applicant became the office manager after the accident, the respondent noted that, in July 2019, Mr Dowman deposed that the applicant became the manager when his daughter became ill, and that his daughter became unwell ‘in the last couple of years’. Thus, it was submitted that the judge’s finding was well open on the evidence.
The respondent submitted that the judge was entitled to conclude that the applicant’s claims were exaggerated, and therefore unreliable, resulting in the judge not being satisfied that (whatever the real position was in fact) the statutory threshold had been met. Moreover, nothing in the affidavits of the applicant’s husband and Mr Dowman directly contradicted or displaced ‘that overall lack of persuasion’.
Additionally, the respondent submitted that there was no substance in the applicant’s contention that the judge failed to consider any of the evidence. A fair reading of the judgment demonstrated that the judge properly considered all of the evidence.
As to the applicant’s submission that the judge found that he was able to work ‘full time in an unrestricted fashion’, the respondent submitted that this was a misreading of Reasons [55]. The passage relied upon by the applicant was said to be a discussion in the abstract concerning ‘a person’ applying for leave to commence a common law proceeding.
In relation to the submission made by the applicant that the judge overlooked the evidence that the applicant was a ‘stoic’, the respondent submitted that there was no such evidence. The applicant’s counsel made a submission to the judge that the applicant was a stoic. The judge was not compelled to accept that submission, particularly when he was not satisfied that the consequences were as disabling as the applicant sought to contend.
Ultimately, the respondent submitted that none of the evidence compelled the judge to accept that the applicant was a witness of truth, or to accept the entire extent and degree of his claimed consequences of injury.
Finally, the respondent submitted that there was no substance in the applicant’s complaint about the adequacy of the judge’s reasons. The respondent contended that the applicant’s reasons complaint was no more than a complaint that the judge did not engage in a reasoning process that would have seen the applicant succeed in his application.
Analysis
In order to succeed in his application under s 93(4)(d) of the Act, the applicant was required to establish that he had suffered a serious long-term impairment of the function of his spine. As was said in Humphries,[33] to be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences ‘will relate to pecuniary disadvantage and/or pain and suffering’. Moreover, in forming a judgment as to whether, when regard is had to such consequences, an injury is to be held to be serious, the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?
[33][1992] 2 VR 129, 140.
It follows that an injury which has long-term consequences which might fairly be described as ‘significant’ or ‘marked’ is not one which satisfies the statutory test of seriousness. Some indication of the level and extent of consequences required to satisfy the statutory test can be gleaned from the facts of the various cases considered by the Appeal Division in Humphries.[34]
[34]Ibid, 141, 143, 146, 148, 152 and 155.
As has also been said before, because the question of seriousness involves elements of fact, degree and value judgment, contesting a finding made by a judge at first instance as to whether or not an injury is serious within the meaning of the Act is difficult, in the absence of specific error.[35]
[35]See, for example, Mobilio v Balliotis [1998] 3 VR 833; Richards (2000) 1 VR 79, 86 [15] (Winneke P, with whom Buchanan and Chernov JJA agreed); Cowden v Transport Accident Commission [2003] VSCA 198; Principe v Transport Accident Commission [2016] VSCA 205.
To the extent that the applicant submitted that the judge failed to take into account, or properly consider, the applicant’s evidence, the lay evidence, or any of the medical evidence, that submission must be rejected. A fair reading of his Honour’s judgment shows that the judge referred to, and gave specific consideration to, each part the evidence that was called and tendered before him. In particular, the judge summarised the medical evidence in some detail, referred to all of the consequences claimed by the applicant, and referred to and summarised the evidence of the applicant’s husband and Mr Dowman. With respect to the applicant’s husband, the judge specifically noted his observations of the applicant’s pain and suffering consequences. Similarly, in relation to Mr Dowman, the judge specifically referred to his observations of ‘many of the pain and suffering consequences referred to by [the applicant]’.[36]
[36]Reasons [32].
It was perhaps unfortunate, however, that the judge, in summarising Mr Owen’s evidence, incorrectly recorded Mr Owen as commenting that his examination of the applicant and the applicant’s complaints ‘were inconsistent’.[37] We are, however, not persuaded that this error was material in his Honour’s reasoning. The following three points may be made.
[37]Ibid [25].
First, the error appears only in the summary of Mr Owen’s evidence, in a part of the reasons that summarises the medical evidence. It is not repeated in any of the judge’s later findings or reasons for refusing the application.
Secondly, the judge made nothing of the point in his summary of the medical evidence. This is to be contrasted with his treatment of the evidence of Dr Krapivensky. In summarising Dr Krapivensky’s evidence, the judge said that it was important to set out in full the passage that he later relied upon in that part of his judgment which contained his reasons for refusing the application.
Thirdly, the statement itself lacked any detail from which it might be inferred that regard was had to it in refusing the application. As a result, it is difficult to infer any consequence that might have flowed from the stated inconsistency.
Next, there is no substance in the applicant’s complaint that the judge incorrectly determined the timing of his promotion to the position of office manager. The evidence about when this occurred lacked precision. While the applicant gave evidence that he started taking on the managerial role ‘slightly before the accident’, he was not precise about the timing of this. Moreover, he did not give any evidence from which one might be able to discern what he meant by his use of the words ‘started taking on’. Additionally, neither he nor Mr Dowman gave evidence of the specific date on which he was promoted to office manager, and no relevant wage records were tendered.
When the evidence is considered as a whole, we see no error in the judge concluding that the applicant was promoted after the accident. The best evidence as to timing came from Mr Dowman’s affidavit. Having regard to his evidence as to the timing of his daughter’s serious illness, and the onset of that illness being the time at which the applicant was promoted, it was well open to the judge to conclude that the applicant’s promotion occurred no earlier than late 2016.
Similarly, the applicant’s complaints that the judge erred in relation to the evidence of the applicant’s earnings rising after the accident and the applicant’s evidence of hours worked are without substance. The judge was not bound to attempt to reconcile inconsistencies between the applicant’s affidavit evidence and his evidence in cross-examination in the way now contended for by his counsel. Nor was he bound to accept any attempted reconciliation given by the applicant in cross-examination. The judge had the advantage of seeing and hearing the applicant in cross-examination. Having examined the whole of the evidence, and in particular the applicant’s cross-examination, we see no basis for interfering with the judge’s conclusion that the applicant struggled to give direct answers to some questions, and at times lacked candour.[38]
[38]Ibid [52].
To the extent that the applicant submitted that the judge erred in finding that the applicant was able to work full time in an ‘unrestricted’ fashion after the accident, that submission must be rejected. The judge made no such finding. We accept the respondent’s submission that the judge’s reference to a person who is able to work full time in an unrestricted fashion[39] was made as a general proposition in the course of his discussion of the applicant’s ability to maintain his employment and continue to travel interstate and overseas. Moreover, there is no basis for concluding that the judge’s reference to ‘unrestricted’ meant pain free. In context, his Honour was discussing the relevance of an applicant being able to continue to engage in employment after an injury (whatever pain or symptoms that applicant might otherwise be suffering from).
[39]Ibid [55].
As has been said many times before, in cases of the present kind, the credit and reliability of the applicant will often be of great importance.[40] This was such a case. In order for the applicant to succeed in his application, he needed to persuade the judge that his evidence about the extent of the consequences of his injury was credible and reliable. Ultimately, the judge, after seeing and hearing the applicant, was not persuaded that the consequences of the applicant’s injury were as disabling as he contended.[41]
[40]See Mobilio v Balliotis [1998] 3 VR 833, 836; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439, 448 (‘Palmer’); Gjorgovska v AFM Cleaning Services Pty Ltd [2006] VSCA 104, [27]; Woolworths Limited v Warfe [2013] VSCA 22, [88] (‘Woolworths’); Veljanovska v Verduci (2014) 42 VR 222, 231–2, [39]–[40]; Haidar v Transport Accident Commission [2016] VSCA 182, [30]; Fenton v AIA Australia Ltd [2017] VSCA 331, [91]; Rowe v Transport Accident Commission [2017] VSCA 377, [89] (‘Rowe’); Petrovic v Victorian WorkCover Authority [2018] VSCA 243, [74] (‘Petrovic’); Yilmaz v Specialty Fashion Group Limited [2019] VSCA 100, [73]; Johns v Oaktech Pty Ltd [2020] VSCA 10, [76] (‘Johns’); Apps v Victorian WorkCover Authority [2020] VSCA 21, [66] (‘Apps’).
[41]Reasons [63]. Indeed, the judge used the words ‘not nearly as disabling as contended for by [him]’.
Significant reliance was placed by the applicant on medical opinions supportive of his case and the lay evidence, which was described by the applicant as ‘uncontradicted’ and ‘unchallenged’. Plainly, the judge was required to consider the application in light of the whole of the evidence. That said, the medical and lay evidence tendered in this case was, as has been observed of medical evidence in other cases of the present kind, to a significant extent, dependent upon an acceptance of the applicant’s (or injured plaintiff’s) account of his complaints.[42]
[42]Cf Palmer [1998] 4 VR 439, 448; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, 1609, [60]; Rowe [2017] VSCA 377, [89]; Petrovic [2018] VSCA 243, [74]; Johns [2020] VSCA 10, [76]; Apps [2020] VSCA 21, [66].
Neither the applicant’s husband nor Mr Dowman were cross-examined and to that extent, their evidence was unchallenged. However, this needs to be considered in light of the way applications for leave under s 93(4)(b) of the Act are conducted. As has been observed in the context of similar applications[43] in respect of workplace accidents:[44]
[T]he application is brought by originating motion. The plaintiff’s evidence in chief is not led viva voce, but, rather, is contained in an affidavit. Ordinarily, the only supplementation of such evidence is by way of short oral evidence, bringing the plaintiff’s situation up to date. The plaintiff is then cross-examined, sometimes at some length. Most, if not all, of the medical evidence, is put before the court by the tendering of the reports of various medical practitioners, who have treated or examined the plaintiff. While it is not uncommon for some of the doctors to be cross-examined, ordinarily the large majority of the medical practitioners, whose evidence is put before the court, are not cross-examined. Other material — including rehabilitation reports — are also usually tendered. At the end of the day, the trial judge is thus left with a large mass of material, some of which, frequently, is quite irreconcilable.
The procedure, which I have just described, is, in large measure, a reflection of the fact that a serious injury application is preliminary in nature, albeit that an adverse finding against a plaintiff is, in effect, conclusive of the plaintiff’s rights. The preliminary nature of the proceeding generally has the effect that the hearing of a serious injury application is not conducted in the same manner as the trial of a common law claim for damages.[45]
[43]See s 134AB(16)(b) of the Accident Compensation Act 1985 and s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013.
[44]Woolworths [2013] VSCA 22.
[45]Ibid [127]–[128].
The evidence given by the applicant’s husband and Mr Dowman was given at a high level of generality. While it provided some corroboration for the applicant, it was not capable of displacing a view of the applicant formed by the judge, when regard was had to the whole of the evidence.[46]
[46]See further, Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1165, 1174, [49] (per McHugh and Gummow JJ).
Moreover, the applicant’s submission that the judge failed to consider the whole of the evidence must be rejected. Fairly read, the judge’s reasons for judgment disclose that no part of the evidence was overlooked or ignored. While the judge said that it was a ‘remarkable proposition’ for the applicant to submit that Dr Krapivensky had misconceived the state of his psychiatric and physical health,[47] and that the issue he found ‘most troubling’ was the ‘stark contrast’ in her evidence and that of the applicant relevant to the extract of her report (referred to above) about the applicant’s psychiatric and physical health,[48] those statements need to be considered in the context that it was the applicant, and not the respondent, who tendered Dr Krapivensky’s report before the judge.
[47]Reasons [58].
[48]Ibid [57].
Having conducted a review of all of the evidence for ourselves, we see no error in the judge’s failure to be satisfied that the consequences of the applicant’s injury were ‘at least very considerable’. While the applicant advanced arguments as to why Dr Krapivensky’s evidence should not have been accepted and why his application should have been granted, the judge was not bound to accept those arguments. Notwithstanding the misstatement of one line of Mr Owen’s report, we see no error in the judge’s findings, analysis or ultimate conclusion. In our view, while the evidence disclosed consequences for the applicant which might fairly be described as ‘marked’ or ‘significant’, they did not require the judge to accept that they met the ‘very considerable’ test.
Finally, there is no substance in the applicant’s complaint about the adequacy of the judge’s reasons. The judge’s path of reasoning was well-disclosed in the comprehensive reasons he provided. Those reasons explain why the applicant was unsuccessful in his application. The judge was not required to give any further explanation.
Conclusion
The application for leave to appeal will be refused.
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