Transport Accident Commission v Campbell

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0114

TRANSPORT ACCIDENT COMMISSION	Applicant
v
JANE ELIZABETH CAMPBELL	Respondent

---

JUDGES:	NEAVE and SANTAMARIA JJA and GINNANE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 October 2014
DATE OF JUDGMENT:	12 February 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 7
JUDGMENT APPEALED FROM:	[2014] VCC 1390

---

ACCIDENT COMPENSATION – Transport accident – Leave to bring common law proceedings – Serious injury – Mental disorder – Whether trial judge erred in accepting the respondent as a credible witness – Whether the trial judge’s reasons were adequate – Transport Accident Act 1986 (Vic) ss 93(4)(d), 93(17)(c).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Ruskin QC with Mr S E Gladman	Solicitor to the Transport Accident Commission
For the Respondent	Mr S O’Meara QC with Mr M Hooper	Slater & Gordon Ltd

NEAVE JA:

I agree with Santamaria JA that the application for leave to appeal should be granted.

I would allow the appeal against the judgment and orders made below and remit the matter for a second hearing by a different County Court judge.

SANTAMARIA JA:

On 30 May 2009, the respondent suffered injury to her neck and back in a transport accident in which another vehicle failed to stop at a red traffic light and collided with the car in which she was a passenger (‘the accident’). The impact caused the car in which she was travelling to be turned over and at the same time spun by 180 degrees. She was thrown around inside the car and the air bags were deployed. She suffered soft-tissue injuries which led to a development of mental disturbance and disorder.

By originating motion issued on 25 January 2012, the respondent sought leave pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’)[1] to bring a proceeding for damages in respect of the injury she said she sustained as a result of the accident.
[1]In relevant part, s 93(4) of the Act provides that a person may not bring proceedings for the recovery of damages in respect of the injury unless ‘(d) a court, on the application of the person, gives leave to bring the proceedings.’ Section 93(6) provides: ‘A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.’

The respondent relied only on sub-para (c) of the definition of ‘serious injury’, and relied upon her suffering an alleged chronic pain syndrome, major depressive disorder, post-traumatic stress disorder, and chronic adjustment disorder with anxious and depressed mood.[2] It was common ground that the plaintiff had

suffered soft-tissue injuries as a result of the accident and that there was no evidence to support an organic explanation for her claimed ongoing symptoms.[3]

[2]Section 93(17) of the Act contains the following definition: ‘serious injury means - (a) serious long-term impairment or loss of a body function; or (b) permanent serious disfigurement; or (c) severe long-term mental or severe long-term behavioural disturbance or disorder; or (d) loss of a foetus.’

[3]In Mobilio v Balliotis [1998] 3 VR 833, the Court contrasted the use of the word ‘serious’ in s 93(17)(a) with the use of the word ‘severe’ in s 93(17)(c); see 834–835 (Winneke P), 846 (Brooking JA), 854–856 (Ormiston JA), 858 (JD Phillips JA) and 860–861 (Charles JA). In his reasons, the judge referred to the discussion in Mobilio v Balliotis and said that the word ‘severe’ was a word of ‘stronger force’ than the word ‘serious’.

The originating motion was heard by a judge in the County Court on 13, 16–19 and 20 September 2013, when it was reserved for judgment. On 28 August 2014, he gave judgment for the respondent and ordered that leave be granted to her pursuant to s 93 of the Act to bring a proceeding at common law for damages in respect of the injuries that she suffered in the accident.[4]
[4]Campbell v Transport Accident Commission [2014] VCC 1390 (‘Reasons’).

The applicant seeks leave to appeal against the order made on the grounds set out in the proposed notice of appeal. Leave is necessary.[5] The test whether leave should be granted involves two questions: is the decision below attended with sufficient doubt to warrant grant of leave and would substantial injustice be caused if the decision was allowed to stand?[6]
[5]In Dodoro v Knighting (2004) 10 VR 277, the Court declared that an appeal against a refusal of leave under s 93 of the Transport Accident Act would constitute an appeal against an interlocutory order, and a grant of leave was therefore required. In reasoning to that conclusion, Callaway JA remarked (at 281 [16]) (Winneke P, Charles, Buchanan and Eames JJA concurring):
An order, pursuant to s 93(4)(d) of the Transport Accident Act, granting leave to bring common law proceedings is plainly an interlocutory order.
As a result, there is no appeal against the order except by leave: County Court Act 1958 s 74. Applications and appeals from orders made under s 93(4)(d) of the Act are subject to Court of Appeal Practice Statement No 1 of 2004; (2004) 10 VR 296.
[6]Niemann v Electronic Industries Ltd [1978] VR 431, 441–2 (Gillard, McInerney and Murphy JJ).

In Phelan v Transport Accident Commission,[7] Ashley JA described the approach to be taken by the Court in an application such as the present.[8] He said:[9]

In considering the application of that test, a number of matters need to be borne in mind. First, the applicant bore the burden of persuasion below, and she failed to discharge it. Second, her application required findings of fact to be made. In considering whether it has been demonstrated that a finding was erroneous (a matter which can be relevant to ‘specific error’ – see below), the ordinary appellate process is engaged. It is informed, where applicable, by consideration of credit in accordance with Fox v Percy.[10] Of course, the question whether there was an error in fact-finding is to be determined by consideration of all the pertinent evidence, not just medical opinion evidence.[11] Third, once the facts were found, the judge was required to decide whether the applicant had established that her injury was, in the statutory context, ‘serious injury’. It is that ultimate finding which must be displaced if the applicant is to succeed in this Court. Fourth, the ultimate finding was one which involved elements of ‘fact, degree and value judgment’. A decision that injury was or was not serious injury will only be set aside for specific error, or if it was plainly wrong or wholly erroneous.[12] Fifth, specific error may lie in an erroneous finding of fact, or in a wrong expression of legal principle. Sixth, not every fact-finding error, or misstatement or misapplication of legal principle, will result in grant of leave to appeal and the success of the appeal. An error, on analysis, may not have been:
… material to the decision ultimately arrived at by the judge or to have vitiated that decision in the sense that the outcome of the case might have been different if the error had not occurred.[13]
[7](2013) 65 MVR 427.
[8]See also Richards v Wylie (2000) 1 VR 79, 86 [15] (Winneke P).
[9](2013) 65 MVR 427, 429–430 [3].
[10](2003) 214 CLR 118.
[11]Just as a trial judge must do: Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605, 610 [17]–[18] (Ashley JA).
[12]Mobilio v Balliotis [1998] 3 VR 833, 858 (JD Phillips JA).
[13]Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26, [79] (Tate JA); see also Wilson v County Court of Victoria (2006) 14 VR 461, 473 [49] (Cavanough J); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353 (Mason CJ), 384 (Toohey and Gaudron JJ).

A central issue in the case was the credibility of the respondent. Her credibility was relevant to determine (a) if the expert medical opinions adduced at the hearing were reliable, having regard to the histories upon which those opinions were based; and (b) whether the consequences of any long-term mental disturbance or disorder suffered by her were severe. In particular, the use of video surveillance footage taken over 13 separate days was said to demonstrate that her evidence that she suffered from chronic pain and restricted movements of her neck and back should not have been accepted and that, in addition, the history that she provided of her symptoms to various medical practitioners was false. Further, it was demonstrated that she had not provided those practitioners with a full account of her employment history. Notwithstanding the attack upon her credibility, the judge held that she had suffered ‘severe long-term mental or severe long-term behavioural disturbance or disorder’.

On the hearing of the present application, the applicant said that:

(a) the judge erred in making findings of fact that were ‘glaringly improbable’ or ‘contrary to compelling inferences’;[14]

(b) the judge erred in law in failing to provide adequate reasons for his decision.[15]

[14]Fox v Percy (2003) 214 CLR 118, 128 [28]–[29] (Gleeson CJ, Gummow and Kirby JJ); Woolworths Limited v Warfe [2013] VSCA 22, [107] (Kaye AJA).

[15]Hunter v Transport Accident Commission (2005) 43 MVR 130, 136–7 [21]–[22], 140 [28] (Nettle JA).

Finally, the applicant drew attention to what it describes as the ‘very significant delay of nearly one year between the hearing and the delivery of judgment’. It says that that circumstance should cause this Court to take a ‘more stringent approach in determining whether the reasons for judgment are adequate’.

For the reasons that follow, I allow the application for leave to appeal. I would allow the appeal and order that the matter be remitted for a second hearing by a different judge in the County Court.

Medical Treatment

Following the accident, the respondent was taken to the Warrnambool Base Hospital where she was kept overnight for observation. Her neck was put in a hard collar for two weeks, and then in a soft collar for three months.

On 1 June 2009, the respondent presented to Dr Casey Chan, her local doctor at the Riversdale Medical Centre, and she was referred to Dr Mark Navin for chiropractic treatment.

By 23 July 2010, Dr Chan had diagnosed the respondent as suffering from a chronic pain syndrome, which was related to soft-tissue injuries and possible pericarditis that occurred following the accident. His diagnosis was based on the fact that the respondent continued to suffer symptoms, but extensive investigations had not revealed any organic cause of those symptoms. Dr Chan referred the respondent to Dr Terence Lim, a consultant in rehabilitation and pain medicine.

Dr Lim treated the respondent on numerous occasions between 30 September 2010 and 16 July 2013. He diagnosed her as suffering from a complex combination of a chronic pain condition as a consequence of soft-issue injuries she suffered in the accident and symptoms consistent with severe post-traumatic stress disorder. In July 2013, Dr Lim anticipated that working 20 hours per week was likely to be the respondent’s future capacity, as he expected her emotional problems and chronic pain condition would continue in a similar vein for many more years.

Dr Lim considered that the respondent would benefit from participating in the pain management program conducted by the North-Eastern Rehabilitation Centre (‘NERC’), but that she required greater emotional stability in order to participate actively in the program. He therefore referred the respondent to the NERC psychiatrist, Dr Naomi Elliot.

Dr Elliot treated the respondent on 34 occasions between 30 November 2010 and 3 September 2013. In her report dated 21 August 2012, Dr Elliot diagnosed the respondent as suffering from a moderate to severe major depressive disorder, central sensitisation and sub-clinical post-traumatic stress disorder. In her report dated 6 September 2013, Dr Elliot stated that the respondent continued to present with symptoms of major depression secondary to chronic pain. Dr Elliot considered that the chronic pain condition would likely continue indefinitely.

On 16 August 2011, the respondent was admitted to the NERC as an inpatient for two weeks. After completing the inpatient pain management program, she continued as an outpatient of the NERC for approximately six months.

On 20 December 2011, Dr Lim considered that the priority for the treatment of the respondent’s clinical condition had changed because her physical symptoms of post-traumatic stress disorder had become more significant than her pain condition.

Dr Elliot referred the respondent to psychologist Mr Guy Coffey of the Psychological Trauma Recovery Service at Austin Health. Mr Coffey first treated the respondent on 28 May 2012, and, thereafter, treated her with a frequency that varied between weekly and monthly. In addition to this individual psychological treatment, the respondent participated in the Psychological Trauma Recovery Service’s post-traumatic stress disorder group treatment program, which was conducted for two days per week for eight weeks in March and April 2013.17 In his report dated 26 August 2013, Mr Coffey stated that:

(a) on the basis of the history provided by the respondent and his assessment of her condition since May 2012, he considered that there had been a marked change in her mental health and in her social and occupational functioning since the accident; and

(b) the respondent suffered from post-traumatic anxiety; more generalised anxiety related to her chronic pain and the uncertainty surrounding her ability to find steady employment; and lowered mood often approaching a major depressive episode.

At the time of the hearing, the respondent:

(a) continued to consult Dr Chan, Dr Lim, Dr Elliot and Mr Coffey;

(b)continued to undertake chiropractic treatment with Dr Navin every three to four weeks;

(c) consulted an acupuncturist, Joseph Ferraro, when required;

(d)undertook hydrotherapy and spa sessions at the Kew Recreation Centre; and

(e) took the following medications –
(i) one tablet of Panadeine Forte three times per day;
(ii)two Mersyndol tablets or additional Panadeine Forte tablets, when she experienced severe exacerbation of her pain;
(iii)Cymbalta 60mg per day, an anti-depressant commonly used for chronic pain;
(iv)Lyrica 300mg per day, although the respondent was able to increase this to 325mg if required;
(v)two tablets of Diazepam 2mg per day to relieve back spasms at night, and to help with sleep;
(vi)Alprax 5mg tablets two or three times per week, depending on her anxiety levels;
(vii)Nexium 20mg, due to gastric problems related to the amount of other medications taken; and
(viii)Ventolin, when required for shortness of breath due to back pain or anxiety attacks.

Before the accident, the respondent was not taking any pain medication.
County Court trial
The material tendered by the respondent included:
(a)three affidavits sworn by her; an affidavit sworn by her former supervisor at Shell Australia, Clayton Deegan; an affidavit sworn by her mother, Carmel Arklay; and an affidavit sworn by her friend Sarah Hutton;
(b)three reports from Dr Casey Chan (treating general practitioner);
(c)three reports and correspondence from Dr Naomi Elliot (treating psychiatrist);
(d)a report from Mr Guy Coffey (treating psychologist);
(e)a report and correspondence from Dr Terence Lim (treating consultant in rehabilitation and pain medicine);
(f)correspondence from Dr Arthur Stratigopoulos (occupational physician at Shell Australia);
(g)three reports from Dr Clayton Thomas (consultant in rehabilitation and pain medicine);
(h)five reports from Dr Nathan Serry (psychiatrist); and
(i)three reports from Dr Lester Walton (psychiatrist).
The material tendered by the defendant (applicant) included:

(a)video footage of the respondent taken on 13 days, namely, 29 October 2012; 2 and 3 November 2012; 10, 14, 15 and 17 December 2012; 12 and 14 January 2013; 24 June 2013; 15 and 17 July 2013; and 31 August 2013 (‘surveillance evidence’);

(b)       clinical notes and correspondence from Dr Chan’s medical practice;
(c)       two reports from Mr Rodney Simm (orthopaedic surgeon); and
(d)      two reports from Dr Kevin Fraser (rheumatologist).
Respondent’s employment history

The respondent had been employed by Shell Australia on a full time basis since 3 July 2000. At the time of the accident, she worked as a customer relationship coordinator. In September 2010, her position as a customer relationship coordinator ceased to exist. She applied unsuccessfully for another position within the company. Ultimately, she obtained employment as a specialist pricing analyst in the bitumen pricing support department of Shell Australia, which was a ‘fill-in’ position for a colleague who was away from work on maternity leave. In January 2012, she commenced working as a supply operations administrator after receiving two months of training for that position. On or about 24 May 2012, at the recommendation of her treating medical practitioners, the respondent’s workload was reviewed by her line manager and Shell Australia’s senior occupational physician, Dr Arthur Stratigopoulos. That review led to the respondent’s work duties (but not her hours) being reduced by 30%, initially, for a three month period. The reduction in her work duties was then extended. On 29 November 2012, Dr Lim opined that the respondent was not fit to return to full duties, and was likely to require modifications on a longer term basis. As at 18 December 2012, the respondent continued to work only 70% of her normal work tasks. On 15 February 2013, the respondent ceased employment at Shell Australia on the basis of a medical redundancy, after having been to an independent medical examination arranged by Shell Australia. Since working for Shell Australia, the respondent had been applying for both full-time and part-time employment. She had not obtained further employment, but she had contacted a number of agencies and undertaken face-to-face interviews with them.

Since April 2008, the respondent had been casually employed by DBM Management Services Pty Ltd (‘DBM’) performing data entry work. As at December 2012, she was working two or three nights per week for three hours each night, and sometimes on Saturday mornings. At trial, she gave evidence that, some weeks, she was getting no shifts at DBM at all, and that, in recent times, that had been similar, but she was available to do the work when it was offered to her.

At the time of the hearing, the respondent was working casual jobs at DBM and I-view. She said that she was able to take regular breaks at work and stretch when required. She said that she had suffered two anxiety attacks at I-view, and regularly felt anxious.

Under cross examination, the respondent gave evidence that, in 2008, she had a stressful job and some anxiety about work when she was a customer relationship coordinator because there was a ‘bully’ in her department. She agreed she suffered some stress when her customer relationship coordinator position ceased to exist and she had to reapply for a position within Shell Australia because the next job she got was a fill-in job for a colleague who had left on maternity leave. She agreed she had ‘difficulty’ working in her next role as a specialist pricing analyst and ‘a lot of difficulty’ working as a supply operations administrator which involved her doing something ‘completely different’ from what she had done before. She said that she had difficulty working as a supply operations administrator because, in her view, it was really a ‘one and half person job’, there were ‘spikes’ in the workload at the beginning and end of each month and it required her to use Excel at an advanced level, whereas she had completed only an intermediate-level course. She said that the problem with the supply operations administrator position was not that she couldn’t handle the workload, but the pain in her back, neck and chest. She said that she was unable to cope with the position because each workday she was physically and mentally exhausted by about 3.00pm and had to struggle on until 5.00pm and that, even if the customer relationship coordinator position was still open to her, she would be unable to perform the duties, with working in pain being the biggest factor, but also the workload, the stress of the job, and her ability to concentrate.

The respondent said that she did not inform anyone at Shell Australia or any of the doctors about her second job at DBM while working for Shell Australia, or disclose that job in her first affidavit, because she ‘didn’t think it was relevant’. She said that she had told her solicitors when she first went to see them about the second job, but that no doctors ever asked her if she had a second job. She said that she did not ask Dr Chan or any other doctor to write a letter to Shell Australia in support of a reduction in her workload.

Respondent’s evidence

In her affidavits and in her evidence in chief, the respondent gave evidence that, before the accident, she had been a happy and outgoing person. Since the accident, her attitude had changed significantly as a result of chronic pain; she was often tearful, lacking in energy and had reduced concentration and motivation. Sometimes, she had had suicidal thoughts. She said that she went to the cinema once or twice per fortnight, would see her friends, go shopping and out for dinner. She drove her car whenever she needed to, including to and from work. She would not drive to Warrnambool where the accident took place, instead she takes the train. She said that she was a nervous driver and passenger. She had to load shopping herself as she does not have a domestic partner. She did attend some singles dinners. Since the accident, she had had two personal relationships; one had lasted for approximately six months. However, she said that she was unable to sustain a relationship because ‘nobody wants to take [her] on’.

The respondent said that, since the accident, she suffered from ’24/7’ neck and other back pain and stiffness, associated with central chest heaviness and shortness of breath. She said that her back problems had affected her sex life and libido. Before the accident, she was able to perform housework in half a day but that now it takes her two or three days. She said that, before undergoing right knee surgery in February 2008, she had been a passionate golfer who played every week and would still do so had the accident not occurred. She said that, as a result of her neck and back pain, she had difficulty sleeping and that the pain woke her two or three times per night.

The respondent said that, before the accident, she had plans to work as a wedding planner and marriage celebrant, but could no longer pursue that opportunity.

Viva voce evidence

The respondent, Dr Chan, Dr Serry, Dr Elliot and Mr Coffey gave viva voce evidence. Each of these witnesses was asked to view the surveillance evidence. For present purposes, it is necessary to describe their evidence upon being shown it.

During her cross-examination, the respondent was shown all of the video footage. She gave the following evidence .

29 October 2012 Footage

She said that she appeared to have full and unrestricted movements of her neck and back and to have no difficulty in driving her car to work or carrying two bags. She agreed that she did not appear to be in pain but she said that she was in pain at the time the video was taken. When she saw Mr Simm on 17 October 2012, she told him that she was in chronic pain ‘24 hours a day, seven days a week’ with restrictions in all movements of her back and neck. Asked to explain the discrepancy between the footage and her presentation to Mr Simm, she said:

I’ve been working – I’ve had pain for four years. I’m in pain 24/7. I have to brave on and work. I have to go through every day to survive in pain. I have a whole team of people supporting me. I’m on medication.

10 December 2012 Footage

In that footage, she accepted that there was no sign of any restriction of movement and that it showed her driving her car to a bar called Beer Deluxe for the Shell Club Christmas party, where she stayed for nearly two hours and enjoyed herself.

15 December 2012 Footage

In that footage, she accepted that it showed only normal restrictions on her neck movement.

12 January 2013 Footage

In that footage, she accepted that she did not appear to have any restrictions in her neck or her back and that it showed her bending her back to access something within her car. She said that it showed her rubbing (but not scratching) her back. It showed that, when her sister put her arms around her, she did not appear to flinch as she would have done so when someone touches her back.

14 January 2013 Footage

In that footage, she accepted that she appeared to have good movements when driving her car and shopping at a supermarket.

24 June 2013 Footage

In that footage, she said her neck was stiff when looking at a sign above her head and that she grabbed her back because she was in pain.

17 July 2013 Footage

In that footage, she said that she did not appear to have free and unrestricted movement of her neck and her back. She said that she was in pain later in the afternoon and at night and that that was when her pain peaks.

31 August 2013 Footage

In that footage, she said that she grabbed her back because she was in pain.

The respondent said that she had no domestic partner, and no one to assist her with tasks like shopping, so she continues to do those activities.

Evidence of Clayton Deegan

In his affidavit, Clayton Deegan deposed that, from October or November 2010 until the end of October 2011, the respondent worked under his supervision at Shell Australia. He said that he observed her to be in moderate discomfort and pain and to require the use of an ergonomic chair, heat packs and medication. He said that, despite her health problems, the quality of her work was ‘very good’.

Oral evidence of Dr Casey Chan

The respondent relied upon three reports from Dr Chan. He was cross-examined. During his cross-examination he said that the respondent had asked him to write a letter to Shell Australia to support a reduction in her work load. He said that, at the time, she had not told him that she was also working a second job at DBM. He said that it was not until after she had been made redundant by Shell Australia that he became aware of her second job. He agreed that knowing that she was working a second job would have been ‘useful information’.

Dr Chan accepted that, in the period from 7 September 2012, his clinical notes did not record that the respondent had grimaced or puffed as though she were in pain when she performed movements of her neck and back. He said that would have been something that he would have recorded in his notes had it occurred.

Dr Chan was shown the video footage in which the respondent was moving freely without any restriction of her neck. He accepted that, in general, that was how she presented to him.

In re-examination, Dr Chan said, before the accident, he did not consider that the respondent would have had to give up her employment at Shell Australia because of work related stress. He said that her evidence that her coping capacities had been substantially affected by the accident ‘would fit with the clinical picture I’ve seen’. Finally, he said that he did not regard her as having an ‘unimpaired earning capacity’: he said her ‘chronic pain syndrome and the depression and the post-traumatic stress disorder, … is basically affecting her ability to work, to concentrate’.

Oral evidence of Dr Nathan Serry

Five reports from Dr Serry were tendered on behalf of the respondent.

Dr Serry accepted that the respondent had not told him during either of her consultations on 11 May 2011 and 8 October 2012 that she was working in a second job at DBM. He said it would have been ‘important’ to know that she was working at a second job. He did not agree that her failure to tell him of her second job showed that she was being less than honest but he accepted that it was ‘definitely a possibility’.

Dr Serry said that the respondent had not told him that, at the time of the accident, she was stressed at work because she was being bullied by an overbearing supervisor. He accepted that it would have been ‘useful’ to know.

He said that the respondent appeared to be in considerable discomfort during the consultation on 8 October 2012.

Dr Serry said that the respondent had told him that she had not been in any relationships since the 1990s. He had not been told that, since the accident, she had been involved in two personal relationships. He accepted that it would have been ‘useful’ to know that. She had not told him that she had joined a singles’ club.

Before giving his evidence, Dr Serry had been provided with the video footage covering dates from October 2012 until January 2013. He gave a report dated 29 January 2013. In his report he said that, in the video footage, the respondent appeared ‘by and large, to move in a relatively unrestricted fashion’ with no outward sign of restriction or panic. She also appeared to drive a car in an unrestricted fashion. In cross-examination, he was not prepared to comment ‘on what her mental state was in relation to the surveillance material regarding her driving’ and he was not in a position to say that she appeared to be ‘confident’ when she was driving.

Dr Serry accepted that the fact that the respondent had a second job at DBM was inconsistent with the information provided to him at the consultation on 8 October 2012 and, to the extent that his report dated 29 January 2013 suggested otherwise, it was inaccurate.

However, Dr Serry said that the video footage that had been provided to him was ‘not inconsistent’ with anything that the respondent had described at the consultation on 8 October 2012 and that it did not assist him at all in his position as a psychiatrist. He said that ‘a very big aspect [that is] missing from the surveillance material’ was how the individual felt at the time, whether the tasks shown were essential tasks being undertaken despite pain. He said that, given the many variables involved in the assessment of surveillance material, he was very careful and conservative about coming to conclusions. He said that the video footage ‘would have to be extraordinarily at odds with what [he] had seen in [his] rooms for [him] to make a definitive comment’.

Finally, Dr Serry said that, on the basis of his three assessments of her, he did not conclude that the respondent was malingering, feigning or exaggerating her symptoms.

During re-examination, Dr Serry said that the fact that the respondent had a second job with DBM did not significantly alter his views about her condition or its relation to the accident. He said it was a matter of some significance in relation to the history she had given him. He said:

It’s not infrequent, in a psychiatric examination – in an independent psychiatric examination – where not all information is provided, things are missed, and unless there’s a sustained pattern which appears to be designed to mislead, I wouldn’t place a great deal of weight on not being informed about that prior to my third assessment.

Oral evidence of Dr Naomi Elliot

As indicated above, Dr Elliot is a psychiatrist who treated the respondent on 34 occasions between 30 November 2010 and 3 September 2013. She provided written reports dated 21 August 2012 and 6 September 2013.

In cross-examination, Dr Elliot said that she did not know that, in about September 2010, the respondent had lost her long-term position as a customer relationship coordinator at Shell Australia. She said that she had understood that the respondent ‘was working full-time with Shell as a pricing analyst’ for approximately 40 hours per week. She said that, in May 2012, the respondent had asked her to write a letter in support of her request to reduce her workload. She said that either Dr Arthur Stratigopolos or someone else from Shell Australia had asked her to write the letter she wrote on 20 November 2012. At the time she wrote that letter, the respondent had not told her that she was working a second job at DBM.

Dr Elliot said that the respondent had told her that by ‘mid-afternoon, she was really exhausted at work and could not function or think clearly’. Dr Elliot appeared to accept that it would have been ‘important’ to know that the respondent did not go straight home after work but went to another job for three plus hours two or three nights a week.

Dr Elliot said that, during consultations, the respondent appeared to be in pain, that she grimaced and appeared uncomfortable and had to stand and move around the room. She accepted that if she had observed her performing movements that contradicted her description of chronic restricted movements, that would have created doubts about the extent of the problem.

Before giving her evidence, Dr Elliot had been provided with the video footage.[16] She gave a report dated 1 February 2013. In her report she said that:
[16]The particular video footage provided to Dr Elliot was not identified on the appeal.

Thank you for requesting a brief letter to state my opinion regarding the surveillance of Jane Campbell.
In my opinion this surveillance provided neither proves nor disproves that Jane Campbell suffers from chronic pain.
Patients who have undergone the pain management program at North Eastern Rehabilitation Centre are instructed to perform as many ordinary tasks of daily life as possible and are particularly encouraged to exercise and socialise with others.

Dr Elliot disagreed that the footage showed unrestricted movement as it showed the respondent moving slowly and needing to rest at one point. The transcript reveals the following:

Counsel:Did you see on the film anything consistent with what you’d seen in the clinical setting?
Dr Elliot:I guess her having a rest in the supermarket; that would be what I would expect. Other than that, no.

In re-examination, Dr Elliot said that there was nothing in their consultations to indicate that the respondent was being calculating or deceptive.

Oral evidence of Mr Guy Coffey

As indicated above, Dr Elliot referred the respondent to the psychologist, Mr Guy Coffey. Mr Coffey treated the respondent on a regular basis from 28 May 2012. He provided a report dated 26 August 2013. In his report, he had said:

She is currently not capable of working full time, but I am optimistic about her ability to work in administrative work familiar to her for three or four days a week. However it is unfortunately possible that her productivity will be affected to an extent which will make such employment unsustainable. A focus of treatment together with attempting to reduce her depressive and anxiety symptoms, and the fears her pain condition creates in her, is to avoid her becoming completely demoralized about the possibility of a reasonably imminent return to work and a fuller life generally.
She requires ongoing psychological and psychiatric treatment and management of her pain by specialist services.

During cross-examination, Mr Coffey said that the respondent had told him on numerous occasions that she was physically and mentally exhausted by 3.00pm each workday. He said that she had not told him that she was working a second job at DBM in 2012 and that it would have been ‘important’ for him to have known that. He said that while he ‘certainly’ would have liked to have known about her second job, he could not draw any significant conclusions without knowing more about the nature of that job and how she was coping with it. She had not told him that (a) in about December 2010 she had been forced to apply for a new position at Shell Australia as a result of a company restructure or (b) her application for her preferred position there was unsuccessful or (c) she had obtained a ‘fill-in’ position from September 2010 until December 2011 replacing a colleague who was away from work on maternity leave or (d) when that colleague returned to work she had to apply for yet another position.

It does not appear that any of the video footage was provided or shown to Mr Coffey either before or at the hearing. However, he accepted that if the respondent had complained of restricted movements, that complaint would be contradicted by footage showing movements that were entirely unrestricted. However, he said that his opinion had not been substantially based upon such a complaint. He said that, during their consultations, the respondent had grimaced and moved around in apparent discomfort. He accepted that it was possible that she was ‘putting it on’ or ‘exaggerating’ but ‘it’s possible, I suppose, but it would be contrary to all my observations’.

Mr Coffey accepted that there was an inconsistency between her complaint that she was physically and mentally exhausted by 3.00pm and the fact that she had a second job.

In re-examination, Mr Coffey was asked the question which the primary judge extracted at the end of his reasons. That question appears below at [68].

Report of Mr Rodney Simm

As indicated above, the applicant tendered two reports from Mr Rodney Simm, an orthopedic surgeon. He examined her on 17 October 2012. He provided a report dated 23 January 2013. He had been provided with the video footage taken on 10, 14, 15 and 17 December 2012.

In his report, Mr Simm said that, from viewing the footage, it seemed to him that the respondent was seen:

… walking, accessing the boot of a vehicle and accessing the driver’s seat of the vehicle. Although she did not move her back or head and neck to extremes, she otherwise displayed normal pain-free movement of the neck and back. There was no hesitation when moving the neck and no indication that the movements were associated with pain. The subject of the film moved differently from Ms Campbell when examined on 17 October 2012. I observed her to display frequent overt signs of pain when demonstrating only moderate movement of the cervical spine. The overt pain signs included facial grimacing and puffing, which was not evident on the DVD.

He said that ‘there seems to be a distinct possibility that she is exaggerating the degree of disability when formally medically examined’. He also said that he had not been told that she had a second job at DBM working up to nine hours per week. Rather, he had been told that she was ‘working full hours with Shell. The omission regarding the second job would again suggest that there may be some amplification of the effects of her injuries when formally medically assessed.’

Report of Dr Kevin Fraser

As indicated above, the applicant tendered two reports from Dr Kevin Fraser, a rheumatologist. He examined her on 15 August 2012. He provided his first report on 16 August 2012. After that, he was provided with the video footage taken on 10, 14, 15 and 17 December 2012. He provided a further report on 25 January 2013. In his second report, Dr Fraser said:

As you know, I saw her on 15 August 2012, as per my report of 16 August 2012 in which I suggested that any putative physical injuries sustained in the motor vehicle accident on 31 May 2009 had resolved and that her ongoing symptoms and signs were due to a psychologically based chronic pain syndrome, secondary to trauma sustained in the motor vehicle accident. In that regard, I noted that she was being treated for major depressive and post-traumatic stress disorder.
I viewed the DVD of surveillance undertaken on 10, 14, 15 & 17 December 2012. Her activities therein are summarised in the surveillance report of 21 December 2012. The claimant displayed no restrictions of neck, back or arm movements and was able to get in and out of her car without apparent difficulty. I note that she drove it on multiple occasions during peak hour traffic. She walked without any apparent difficulty.
The apparently normal range of neck and back movements, without apparent discomfort is at variance to my findings on formal physical examination as detailed in my report of 16 August 2012.
As well, the activities mentioned previously belie her claim that she is in ‘chronic pain 24/7 …’, aggravated by prolonged sitting, standing or driving, as detailed in my earlier report. Despite her claim that she doesn’t ‘socialise’ as much as before the accident, she obviously mixes with work colleagues and was observed entering and leaving a bar/pub.

In light of the surveillance evidence, I would suggest that there was voluntary overreaction on physical examination when I examined the worker and I no longer consider that a psychologically based chronic pain syndrome is responsible for her symptoms and signs. It seems that she was consciously exaggerating both.
As mentioned in my original report she said that she was employed by Shell and she made no mention of a second job at DBM Consulting. One does wonder how she would be able to work a second job if she was suffering chronic pain and exhaustion by the end of each day as she claimed. It also seems particularly odd that she is able to work a second job when she said that ‘the volume of work is too much for me and I can’t do it …’ in referring to her job at Shell.
Such considerations further reinforce my reassessment of her condition as detailed previously in this report.

Reports of Dr Lester Walton

As indicated above, the respondent tendered three reports from Dr Lester Walton a psychiatrist. Dr Walton had examined the respondent at the request of the applicant. None of the video footage was shown to him. In September 2012, he diagnosed post-traumatic stress disorder and a pain disorder and considered the respondent’s overall prognosis was guarded. He opined that her pain would probably continue for the indefinite future, and that the respondent did not exhibit obvious excessive disability in response to her physical and psychiatric symptoms, as exemplified by her continuing application to her work.

Reasons below

Having surveyed the evidence, the judge concluded as follows:

[125]Having seen the plaintiff in the witness box and being cross-examined by experienced counsel, I consider that she was doing the best to tell the truth. I do, however, think there is some inconsistency with the surveillance shown and her presentation to the various clinicians, which I find hard to reconcile. However, I also find that prior to the accident, she was a well-motivated individual who was proud of her corporate life with Shell and made every effort to remain in that employment subsequent to her injury. I also find that her injuries were a significant element in her being retrenched from Shell and have had a marked effect on her ongoing employability.
[126]Finally, the ultimate opinion of Mr Coffey I find the most acceptable, given the persistent and experienced cross-examination of the psychological witnesses. It was put to him in re-examination as follows:
… Assuming that the two relationships that were mentioned to you have been described by her as both failing, in her perception because of the consequences upon her of the car accident – assuming that she was, in her words, a passionate golfer with her own custom-made clubs and has been unable, because of this accident, to resume that golf – assuming, thirdly, that prior to this accident there had been no medication at all for either pain or any anxiety-driven symptoms and that she’d had no treatment, psychological or psychiatric, and that before the accident she had complained to the doctor on some occasions regarding work stress but has told this court that if uninjured she would have gone on coping with those stressors at work – assuming also that since the accident the general practitioner tells us there’s been a raft of ongoing medication for pain and anxiety-driven symptoms, that the psychiatrist has told us that she’s on Cymbalta 60 milligrams per day, diazepam two to four per day by two milligrams, Xanax .5 of a milligram, Lyrica 75 milligrams twice per day and 150 at night. I’d like you also to assume for the moment that the second job involved, according to the evidence, her sitting at a telephone interviewing and ticking boxes doing market research where she could stand, still with the headset on, and stretch and move and resume her sitting – and she’s doing that for perhaps a couple of hours at the most. Assuming that she’s doing that work but there’s no evidence that she likes the work, but the evidence rather that she’s doing that for perhaps a couple of hours at the most. Assuming that she’s doing that work but there’s no evidence that she likes the work, but the evidence rather that she’s given us is that she does that work out of economic necessity and that’s why she’s done it. I’d also ask you to assume on this topic that there’s evidence that she’s told her psychiatrist that she’s doing casual work only and that she feels ashamed that she has no job, that she described her casual work in those terms to the psychiatrist. On those assumptions and if they are correct, do any of the matters to which your attention has been drawn today affect the diagnosis that I took you to or your prognosis for her further treatment?

To which Mr Coffey replied:
If all those assumptions are correct, no, I think my report is accurate.

[127]In my view, the factual bases put to Mr Coffey in re-examination have been proved to my satisfaction by the plaintiff and, accordingly, I find that she has suffered a severe long-term mental or severe long-term behavioural disturbance or disorder by way of a Chronic Pain Syndrome; alternatively, PTSD and/or post-traumatic anxiety, and the consequences, in my view, satisfy the meaning of ‘severe’ as defined in Mobilio.[17]
[17]Reasons [125]–[127] (citations omitted).

Proposed Grounds of Appeal

The proposed grounds of appeal were as follows:

A. Inadequate reasons and judgment delay:
1.The primary judge failed to make a finding on the central issue in the case, namely, whether or not the plaintiff was a credible or reliable witness.
2.Having regard to the very significant delay between the hearing below and the judgment, and the primary judge’s reliance on Mr Coffey’s answer to the very last ‘catch-all’ question asked of him in re-examination, there is a reasonable apprehension that his Honour was not in a position –
(a)to make any finding as to the credibility or reliability of the plaintiff;
(b)to make the specific finding at [125] of the reasons for judgment that the plaintiff ‘was doing her best to tell the truth’ (‘the specific finding’);

(c) to grapple adequately with the issues in the case; or
(d) to engage in a thorough review and weighing of the evidence.

3. The primary judge failed to assign any or any adequate reasons for –
(a) making the specific finding;
(b)finding at [125] of the reasons for judgment that the plaintiff’s injuries were a significant element in her being retrenched from Shell Australia and have had a marked effect on her ongoing employability;
(c)accepting at [126] of the reasons for judgment the ultimate opinion of Mr Coffey, without regard to the ultimate opinions of Mr Simm and Dr Fraser;
(d)finding at [127] of the reasons for judgment that the ‘factual bases’ that were put to Mr Coffey in re-examination were proved; and
(e)finding at [127] of the reasons for judgment that the consequences of the plaintiff’s claimed long-term mental disturbance or disorder were severe.

4.The primary judge’s reasons for judgment were inadequate in that they failed to –
(a) include relevant findings on significant issues in the case;
(b)refer to the evidence upon which findings were based, and assign reasons for the acceptance or rejection of that evidence;
(c)assign reasons for the acceptance or rejection of the parties’ arguments on significant issues in the case; and
(d)provide an intelligible explanation of the process of reasoning that led his Honour from the evidence to the findings and from the findings to the ultimate conclusion in [127].

B. Factual errors:
5.The primary judge erred in making the specific finding, in circumstances where –
(a)the video footage taken of the plaintiff on 13 separate days demonstrated that she had full and unrestricted movements of her back and neck, in sharp contrast to her presentation at reasonably contemporaneous medical examinations;
(b)the plaintiff’s claim that she was unable to cope with her work as a supply operations administrator at Shell Australia because she was physically and mentally exhausted by 3:00pm each workday was inconsistent with her working a second job at DBM Market Research and her failure to disclose that job to Shell Australia or her treating medical practitioners; and
(c)the plaintiff’s claim that she did not ask Dr Chan or any other doctor to write a letter to Shell Australia in support of a reduction in her workload was contradicted by the evidence of Dr Chan and Dr Elliot.

6.The primary judge should have found that the plaintiff was not a credible or reliable witness, and accordingly rejected her case based upon the claimed long‑term mental disturbance or disorder.
7.The primary judge erred in finding at [125] of the reasons for judgment that the plaintiff’s injuries were a significant element in her being retrenched from Shell Australia and have had a marked effect on her ongoing employability.
8.The primary judge erred in finding at [127] of the reasons for judgment that the plaintiff had proved the ‘factual bases’ that were put to Mr Coffey in re-examination.

9. The primary judge should have found that –
(a)the plaintiff had not proved that her retrenchment from Shell Australia was a consequence of her claimed long-term mental disturbance or disorder; and
(b)the factual basis put to Mr Coffey in relation to the plaintiff’s second job at DBM Market Research understated the extent of the work that she performed in that job.

10.The primary judge erred in accepting at [126] of the reasons for judgment the ultimate opinion of Mr Coffey.
11.The primary judge erred in finding at [127] of the reasons for judgment that the consequences of the plaintiff’s claimed long-term mental disturbance or disorder were severe, in that he failed to consider or to give sufficient weight to –
(a) the plaintiff’s unreliability or lack of credibility;
(b) the video footage;
(c)the circumstances of the plaintiff’s retrenchment from Shell Australia;

(d) the plaintiff’s second job at DBM Market Research; and
(e) the plaintiff’s personal relationships and retained capacities.

C. Error in ultimate conclusion:
12.The primary judge erred in finding at [127] of the reasons for judgment that the consequences of the plaintiff’s claimed long-term mental disturbance or disorder were severe.

The respondent submitted that, in finding that the ‘factual bases’ put to Mr Coffey had ‘been proved’, the primary judge must be taken to have found:

(a)the respondent suffered from chronic pain syndrome, alternatively PTSD and/or post-traumatic anxiety, as a result of the transport accident;
(b)the respondent had two personal relationships since the accident, both of which had failed, in her view because of the consequences of the accident;[18]
(c)the respondent was previously a passionate golfer, with her own custom-made golf clubs, but could not play golf because of the accident;[19]
(d)prior to the accident she had no need for medication for pain or anxiety, or other psychological or psychiatric treatment;[20]
(e)prior to the accident she had complained on some occasions of work stress, but, had she not been injured in the accident, would have gone on coping with her work;
(f)since the accident, the respondent had been prescribed a raft of ongoing medication for pain and anxiety-driven symptoms, being Cymbalta, Diazepam, Xanax and Lyrica;[21]
(g)her part time work at DBM involved sitting and standing as she pleased, where she could stretch and move, and such work was for a couple of hours at a time;[22]
(h)there was no evidence the respondent liked doing the part time work, but rather she did it out of economic necessity,[23] and she felt ashamed that she had no ‘job’.[24]

[18]See also Reasons [45], [46](b), [76], [85], [97], [108].

[19]See also Reasons [17].

[20]See also Reasons [9].

[21]See also Reasons [13], [27], [32], [65], [79].

[22]See also Reasons [77], [101], [105].

[23]See also Reasons [112]–[113]; Respondent’s supplementary affidavit sworn on 6 September 2013, [4].

[24]See also Reasons [35]–[36].

During oral argument, counsel for the respondent was asked where the judge had made findings with respect to the matters assumed by Mr Coffey. Counsel said that, by following the logic of the judgment, it was possible to say that ‘expressly or implicitly’ the judge had accepted those matters as evidence ‘along the way and, indeed, there is no evidence to the contrary on all those things’. By leave, further written submissions were filed.

The respondent said that the judge had found that ‘all [the] practitioners [had] agree[d] that the diagnosis and treatment lay in the area of psychiatry,’[25] had drawn a distinction between the physical doctors and the psychological witnesses and had found that none of the latter had altered his or her opinion after seeing the video evidence. Thus, the finding in [125] of the Reasons that the respondent was essentially honest implied that the judge had found that any inconsistency in the presentations to the various clinicians was immaterial. To the extent that [125] concerned the employment of the respondent by Shell Australia, the respondent said that it reflected findings made by the judge that her disabilities contributed to her retrenchment.
[25]Reasons [72].

The respondent said that, when read together with other paragraphs, [126]–[127] contained findings that the respondent’s disabilities contributed to ‘two failed relationships,’[26] to her inability to continue to play golf,[27] to her need for extensive psychiatric medication and medical treatment,[28] to the fact that now she was capable only of undemanding telemarketing work for a couple of hours at a time[29] and to her shame at having no job.[30]
[26]Reasons [76] and [85].
[27]Reasons [117].
[28]Reasons [9]–[45] and [89].
[29]Reasons [77], [101] and [105].
[30]Reasons [35].

Given the findings of the consequences for the respondent, in terms of her work, recreation, ongoing medication and treatment, the respondent said that it was clear that the judge’s reasons were adequate.

Adequacy of Reasons

In Hunter v Transport Accident Commission,[31] Nettle JA (with whom Batt and Vincent JJA agreed) said:

When a judge decides an application under s 93(4)(d) of the Act the judge is under a duty to provide reasons for his or her decision. Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.
These points are encapsulated in the judgment of Chernov JA in Barlow & Anor v Hollis. As his Honour there said, the fact that a judge may not mention some matter relevant to the disposition of a s 93(4)(d) application does not necessarily mean that his or her judgment is deficient. For example, matters which are obvious need not be restated, and the element of value judgment involved in the determination of such an application does not always lend itself to the degree of precision in expression that can be achieved in other matters. But interlocutory in nature though these applications have now been determined to be, in reality they are finally determinative of rights. If an application is rejected, it is the end of the road for the applicant. And if the application is successful, it is odds on that the matter will settle. Logic and fairness dictate that the reasons for judgment of such an application should be of a standard which is commensurate with that degree of finality.[32]
…
The judge may have thought that it was enough simply to set out the evidence and other material upon which her findings were based and then to state her conclusions. But for the reasons already explained that was not enough. The requirement to refer to the evidence upon which findings are based is a requirement to analyse the evidence and to explain why some parts of it do and others do not lead to the ultimate conclusion. And that analysis must be recorded in the reasons. In general, and in this case in particular, the mere recitation of evidence followed by a statement of findings, without any commentary as to why the evidence is said to lead to the findings, is about as good as useless.[33]

[31](2005) 43 MVR 130.

[32]Ibid 136–137 [21]–[22] (citations omitted).

[33]Ibid 140 [28] (citations omitted).

In rejecting the application in Hunter v Transport Accident Commission,[34] the primary judge had relied solely on the report of one psychiatrist. She said that that assessment ‘most accurately described the appellant’s status from a psychiatric perspective’.[35] But, there were other medical reports that dealt with a number of factors that were not considered in the report of that psychiatrist. It was not possible to see from the reasons whether the judge accepted or rejected those matters or, if she considered them irrelevant, or the basis upon which she reached that conclusion. Furthermore, a major aspect of the applicant’s case was that her injury had rendered her unable to return to full time work as a teacher, as she would like to be able to do, and that as a result her income was significantly reduced. That contention formed part of her opening address and was emphasised in closing. In her reasons, scant attention was given to it: ‘despite counsel’s heavy concentration on loss of career and the financial consequences of it, there is only the slightest mention of the subject in the judge’s reasons for judgment and not a word as to why the financial loss outlined by counsel was thought to lack the significance which he attributed to it.’[36]
[34](2005) 43 MVR 130.
[35]Ibid 139 [25].
[36]Ibid 141 [32].

In Woolworths Limited v Warfe,[37] the judge in the County Court granted leave to the respondent, pursuant to s 134AB(16)(b) and (19) of the Accident Compensation Act 1985 to bring proceedings for damages in respect of injuries suffered by him in the course of his employment with the appellant between 2001 and 2004. There were several grounds of appeal including that the adequacy of the trial judge’s reasons for her decision. The central issue, raised by the appellant at the hearing, concerned the credit of the respondent as to his complaints of injury and disability. At trial, the appellant, submitted that the consequences of the respondent’s injuries were minor, and they fell well short of the required level to justify their characterisation as a ‘serious injury’. Surveillance video evidence was tendered at trial that suggested that the respondent had exaggerated his level of disability. Further, the respondent had previously been incapacitated by a psychiatric illness. Part of the cross-examination was directed at establishing that that illness had contributed to the psychiatric issues that he said were work-related. He had told his doctor that he had an unpaid position caretaking a property with seven boats on which he did some maintenance, and that he also did some gardening, in return for free accommodation’. In fact, he was engaged in a boat hire business on Lake Nagambie. The surveillance video involved observations of him in that activity. In opening, the appellant said that the case was one of credit: it was to be contended that the respondent had feigned the level of his disabilities. Moreover, the respondent was shown the surveillance video during his cross-examination and challenged to explain the apparent discrepancies between his evidence and what appeared in the video.
[37][2013] VSCA 22.

On appeal, this Court held that the trial judge had failed in her duty to explain adequately her acceptance of the respondent’s credibility. In his judgment, Kaye AJA (with which Tate and Whelan JJA agreed) said that the video had shown the respondent engaged in a series of activities over a six day period: to describe it as ‘a snapshot in time’ underestimated its impact. The respondent said that his ability to perform activities varied: yet, he did not say that the video showed him on one of his ‘better days’. The judge’s finding that the video showed him as having a greater range of movement than he had described was a ‘substantial understatement’. And, her finding that ‘the video did not say anything about the pain suffered’ by the respondent was not an adequate basis for discounting the video surveillance evidence that showed him conducting a range of activities without showing any signs of pain and discomfort. Further, he had been asked to explain the discrepancies between the account that he had given the medical practitioners of his disabilities and the evidence of what appeared in the videos. However, the judge’s reasons were innocent of any assessment as to whether she accepted his explanations and ‘whether, if they were accepted, they sufficiently accounted for the apparent discrepancies’.[38]
[38]Ibid [133]–[138].

On the strength of other video surveillance, the applicant contended that the respondent had deliberately concealed the nature and degree of his involvement in the boat hire business at Nagambie both in his affidavit and when giving histories to various medical practitioners. The matter was a prominent issue in his cross-examination. It was necessary for the judge to consider it in her reasons; she needed to address the answers given in cross-examination and the apparent discrepancy between his descriptions of his involvement and what appeared to be revealed by the video evidence. Kaye AJA said:

I accept that, generally, an assessment of the credibility of a witness is largely a matter of value judgment and impression. Such an assessment does not, readily, admit of lengthy exposition in reasons for judgment. However, in this case, a large part of the trial was occupied by the attack on the respondent’s credit, by reference to the video footage. The two major points made by the appellant, on a number of occasions, were that the respondent had exaggerated his disabilities when describing them in his affidavit and to medical practitioners, and that he had deliberately concealed the extent of his involvement in the boat hire business at Lake Nagambie. In order to provide adequate reasons, the trial judge was required to address the activities and actions depicted on the video, and to address the question whether those activities and actions undermined the credibility of the respondent in the manner contended by the appellant. It was necessary for the trial judge to analyse the answers given by the respondent in cross-examination, and to indicate whether she accepted those answers, and whether they accounted for the apparent discrepancies between the video surveillance film and the previous accounts given by the respondent as to his limitations and to his activities.[39]

[39]Ibid [139].

In Transport Accident Commission v Kamel,[40] Kyrou AJA (with whom Warren CJ and Ashley JA agreed) described the principles for determining the adequacy of reasons in a case such as the present. He said:[41]
[40][2011] VSCA 110.
[41]Ibid [70]-[73].

[70]This Court has repeatedly emphasised, including in appeals from decisions of the County Court under s 93(4)(d) of the Act, that judicial reasons for decision must sufficiently explain the basis for any findings that are made in reaching that decision. It has been said that the reasons must disclose ‘the route that led to the answer’, ‘how or why the conclusion was reached’, ‘the process of reasoning’ or ‘the path of reasoning’.
[71]Thus, for example, in Franklin v Ubaldi Foods Pty Ltd[42] – which involved an appeal from a decision of the County Court made under s 134AB(16)(b) of the Accident Compensation Act 1985 – Ashley JA, with whom Warren CJ and Nettle JA agreed, said:
[42][2005] VSCA 317. This case has been either cited or applied in numerous subsequent decisions. See, for example, Hesse Blind Roller Company Pty Ltd v Hamitoski [2006] VSCA 121, [19].
Reasons must be such as reveal – although in a particular case it may be by necessary inference – the path of reasoning which leads to the ultimate conclusion. If reasons fail in that respect, they will not enable the losing party to know why the case was lost, they will tend to frustrate a right of appeal, and their inadequacy will in such circumstances constitute an error of law.[43]
[43][2005] VSCA 317, [38] (citation omitted).

[72]Similarly, in Rodda v Transport Accident Commission[44] – which involved an appeal from a decision of the County Court under s 93(4)(d) of the Act – Hargrave AJA, with whom Ashley and Dodds-Streeton JJA agreed, said:
it is established that adequate reasons will provide an intelligible explanation of the process or path of reasoning which has led to the conclusion reached, and that a judge is required to consider and give adequate reasons in determining each of the substantial issues which have been raised for determination in the proceeding. Where there is a conflict on the evidence, and one version is accepted and the other rejected, the judge must [advert] to and assign reasons for preferring one version of the evidence over another.[45]

[73]In general, the mere recitation of evidence followed by a statement of findings, without any commentary as to why the evidence is said to lead to the findings, is insufficient to disclose a path of reasoning.[46]
[44][2008] VSCA 276.
[45]Ibid [98]. Similar observations were made by Hargrave AJA, with whom Ashley and Dodds-Streeton JJA agreed, in ACN 087 528 774 Pty Ltd v Chetcuti (2008) 21 VR 559, 566 [20].
[46]Hunter v Transport Accident Commission (2005) 43 MVR 130, 140 [28].

Analysis

In my opinion, the application for leave to appeal should be granted. The reasons of the judge are inadequate.

In the present case, the burden was on the respondent to establish that her case fell within (c) of the definition of ‘serious injury’ in s 93(4)(17) of the Act: she had to establish that she had suffered ‘severe long-term mental or severe long-term behavioural disturbance or disorder’. In doing so, she contended that she was suffering alleged chronic pain syndrome, major depressive disorder, post-traumatic stress disorder, and chronic adjustment disorder with anxious and depressed mood. In support of her application, she adduced evidence from treating doctors and other professional. They were reliant upon her for her history and upon their observations of her, particularly the manner in which she deported herself physically in their presence. They also relied upon her when she said that she was exhausted at work by mid-afternoon and for the reasons that she left her employment at Shell Australia.

The applicant contended that:

(a) the respondent had given a false history of her circumstances to the doctors and other professionals and that she had exaggerated her symptoms of chronic pain; there was video footage that showed her moving with a freedom that was not observed when she was being assessed by various professionals.

(b) far from being exhausted at mid-afternoon, the respondent was capable of continuing to work; there was cogent evidence that regularly went off to further employment with DMB after finishing at Shell Australia.

(c) the respondent had said that she was unable to establish and maintain relationships; there was evidence that, since the accident, she had been able to establish several relationships.

The applicant also pointed to the delay between the completion of the trial and the publication of reasons. It disavowed any contention that one could infer error simply because there was a long delay between the completion of argument and the publication of reasons. Rather, the applicant said that delay may be significant where a judgment had been published that was devoid of analysis or any path of reasoning. The applicant advanced several propositions. First, it said that where there has been a considerable delay, the Court should take a more vigilant and stringent view of the judgment.[47] Second, in a credibility case, delay may point to a particular need to give even more detailed reasons.[48] Third, in a credibility case, the fact of significant delay requires a judge to explain how it is that he or she recalls why the credit of a witness has been accepted.[49] Fourth, the fact of significant delay requires a judge to give more comprehensive reasons.[50] Fifth, the fact of significant delay prevents there being an assumption that the judge did not overlook matters; there are no assumptions in a judge’s favour.[51] Sixth, although delay itself does not amount to error, it does permit an appellate court more readily to infer that the judgment bespeaks error.[52] Seventh, such delay requires the judge to give a clear and rational expression of his or her reasoning so as not to give rise to a reasonable apprehension that the judge did not grapple with issues or took the easy path.[53] In MM Constructions (Aust) Pty Ltd v Port Stephens Council,[54] it was decided that one should not speculate that, because there was significant delay, the judge took the easy way out. However, the applicant contended that where there was significant delay, the judge should take particular care not to give rise to the apprehension that that is what has happened.
[47]Mount Lawley Pty Ltd v Planning Commission (WA) (2004) 29 WAR 273, 283 [30] (Steytler, Templeman and Simmonds JJ).
[48]NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470, 497 [88] (Kirby J).
[49]Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, 33 [71]–[72], 34–35 [80] (Carr, Emmett and Gyles JJ).
[50]Ibid.
[51]Ibid 33 [72]; R v Maxwell (1998) 217 ALR 452.
[52] Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328, [152] (Lemming JA).
[53]Monie v Commonwealth of Australia (2005) 63 NSWLR 729, 730 [3] (Giles JA), 743–744 [44] (Hunt AJA).
[54](2012) 191 LGERA 292.

In support of the judgment below, the respondent had three principal contentions: (1) the reasons demonstrated that full consideration was given to the case that had been argued before the judge: the cases in which reasons had been held to be inadequate involved issues that were remote from the present case, (2) the case of the respondent was such that no contrary judgment could have been delivered, and (3) delay in the delivery of judgment was not itself an error of law; rather, delay might provide the explanation for the presence of some error.

The respondent sought to distinguish the authorities relied upon by the applicant. In relation to the first contention, the respondent said that, in Woolworths Limited v Warfe,[55] the trial judge had not addressed the issue whether the plaintiff was a liar and should not be believed in any respect. In Hunter v Transport Accident Commission,[56] the plaintiff complained that she could no longer work full time as a teacher. The defendant had led evidence that she worked part time in a gift shop. The trial judge had failed to deal with her true complaint that she had lost her ability to work full time as a professional teacher and that she had lost her earning capacity as a result. In Monie v Commonwealth of Australia,[57] the plaintiff had said that a duty of care had arisen and, in support of that proposition, had tendered several manuals and other documents, but no reference to any of them appeared in the judge’s reasons: given the way the case had been conducted, the failure to refer to them was inexplicable.
[55][2013] VSCA 22.
[56](2005) 43 MVR 130.
[57](2005) 63 NSWLR 729.

In Soulemezis v Dudley (Holdings) Pty Ltd,[58] McHugh JA cited with approval[59] what Cussen ACJ said in Brittingham v Williams:[60]

¼ A case may turn entirely upon a finding in relation to a single and simple question of fact, or be so conducted that the reason or reasons for the decision is or are obvious to any intelligent person; or a claim or a defence may be presented in so muddled a manner that it would be a waste of public time to give reasons; and there may be other cases where reasons are not necessary or even desirable. But in many cases, of which this was one, we agree with Irvine CJ in Donovan v Edwards that a judicial officer should state the facts he finds and the reasons for his decision. Such a statement is desirable for the information of the parties, and in order to afford assistance to the Court of Appeal in the event of there being an appeal.[61]

[58](1987) 10 NSWLR 247.

[59]Ibid 279[G]–280[B].

[60][1932] VLR 237.

[61]Ibid 239 (citation omitted).

The fact that the respondent’s application was opposed did not mean that it must fail. It was open to the judge to hold that, notwithstanding the attack made upon her credit, she was suffering from the consequences described in paragraph (c) of the definition. However, the applicant was entitled to know why it had failed in its attack upon her credit.

It will be noticed that the judge did not sift through the evidence and express in his reasons any particular findings on any of the matters of controversy. The most he said was that he had observed the respondent in the witness box and that he considered that ‘she was doing the best to tell the truth’.[62] Even that opaque observation is qualified by his next observation: ‘there is some inconsistency with the surveillance shown and her presentation to the various clinicians, which I find hard to reconcile’.[63]
[62]Reasons [125].
[63]Ibid.

But, as counsel for the applicant asked rhetorically about these two observations: ‘What does it mean to say, “She was doing her best to tell the truth”? … Does it mean she was telling the truth? Does it mean she was trying to tell the truth, but failed? Did she tell half the truth and he couldn't believe that she told the whole truth because he couldn't reconcile the inconsistencies in the film and the doctors’. As for the ‘inconsistencies’ referred to by the judge, the judgment contains no indication as to how he reconciled them.

It is true that, in his reasons, the primary judge understood that the critical issues in the case were the ‘reliability of the diagnoses’ and the ‘severity of the mental disorder’.[64] Further, he correctly identified what issue the applicant had raised to throw doubt on the credibility of the respondent.[65] He gave a summary of the evidence of each witness and described their reactions at being shown the video footage and being informed that the respondent was working in a second job. What the judge did not provide was any account of what he made of their evidence. He did no more than acknowledge that there was ‘some inconsistency with the surveillance shown and her presentation to the various clinicians, which [he found] hard to reconcile’. All these difficulties he resolved by saying no more than that he thought that the respondent was doing her best to tell the truth.
[64]Reasons [46].
[65]Ibid.

The applicant said that there were three significant matters at trial, none of which was addressed in the reasons. Some of these related to credit, others to consequences. The respondent had said that she was exhausted by her work by mid-afternoon. In cross-examination, her evidence was challenged by reference to the fact that, upon the completion of her work with Shell Australia, she attended at a second job. Next, when the respondent appeared before the various doctors (Elliott, Serry, Coffey, Simm and Fraser), she presented in real discomfort and pain and asserted that she was in constant and terrible pain. She was challenged with the video evidence which showed her moving about freely and carrying herself in marked contrast with the way she had presented herself to the doctors, two of whom gave evidence that she had either exaggerated her symptoms or had been deceptive. The respondent gave evidence that she left Shell Australia because of her injuries. Evidence was adduced that there were alternative explanations for her departure from Shell Australia. Finally, she said that she was unable to form relationships; but, there was evidence that she had. Each of these discrepancies was the subject of vigorous cross-examination and submissions. None was addressed in the reasons.

The respondent was examined by two medical practitioners on behalf of the present applicant. Having seen the surveillance video, Mr Simm said that there was a ‘distinct possibility she is exaggerating the degree of disability when [she was] formally examined’, and Dr Fraser said that the respondent’s manner was at variance with what had been disclosed on physical examination: He said: ’I no longer consider that a psychologically based chronic pain syndrome is responsible for her symptoms and signs. It seems that she was consciously exaggerating both’. It may be the case that the primary judge discounted the evidence of Mr Simm and Dr Fraser. It was common ground that there was no evidence to support an organic explanation of her claimed ongoing symptoms. Mr Simm is an orthopedic surgeon and Dr Fraser a rheumatologist. However, the judge’s reasons are innocent of any analysis of what, if anything, he might have made of their evidence.

It is possible, but not at all appropriate, for the Court of Appeal to speculate as to what the judge’s reasons might be. For example, there was evidence from Dr Elliott, the respondent’s treating doctor, that the respondent was suffering from major depression and PTSD. It was suggested that the respondent might have succeeded on that evidence alone. But, there is nothing in the reasons to show that the judge considered her evidence to be decisive.

The judge failed to provide any evaluation on the critical issue of the respondent’s credibility, and, then, give proper reasons for that evaluation. Given the cogency of the applicant’s attack upon the credibility (to say nothing one way or the other as to whether it should have been decisive), it is impossible to accept the respondent’s contention that the strength of her case was such that no contrary judgment could have been delivered.

It will be recalled that Mr Coffey, the psychologist, had been asked to make several assumptions before answering a question. The trial judge said that he found each of those assumptions to be established on the evidence.[66] The applicant was asked whether those findings could have been the basis for the judge’s finding on the ‘ultimate question’, namely that the respondent had suffered a ‘serious injury’?
[66]Reasons [127].

While it was perfectly proper to ask a witness to make assumptions, it remained the case that each of those assumptions had to be established and that, when they were controversial, reasons had to be given for finding them. In the present case, the majority of the findings of the facts depended critically on questions of credibility, none of which had been evaluated in the judge’s reasons.[67]
[67]The applicant accepted that three of the assumptions were uncontroversial: (1) the respondent had not taken medication before the accident, (2) she had not received psychological treatment before the accident, and (3) since the accident, she had taken a ‘raft of medication’. Each of the other assumptions, it said, depended upon accepting the respondent’s credit.

It is not possible to uphold the respondent’s contention that, upon close examination, it is clear that the judge did make findings that could sustain his ultimate finding that the respondent suffered a ‘serious injury’. It is true that the respondent gave evidence that her disabilities contributed to her retrenchment from Shell Australia. The applicant adduced evidence that there were other explanations for her departure from Shell Australia. The respondent contends that, in substance, the judge accepted the plaintiff’s evidence. In making that submission, the respondent pointed to two paragraphs in the Reasons. They read as follows:

[23]On 29 November 2012, Dr Lim wrote to the Senior Occupational Physician at Shell Australia Limited, Dr Arthur Stratigopoulos. In essence, he stated that the plaintiff was not fit to resume the 30 per cent of job tasks that had been temporarily redirected to others over the last five months. Further, he considered that she would require job modifications on a longer term basis. Finally, he recommended that she be recognised as suffering from serious medical conditions, which might be physically ‘invisible’ but still evident and severe, requiring highly specialised care. He thought it was important for her to continue in her current duties as the work was therapeutic.
…
[25]Thereafter, the plaintiff commenced attending a ten-week PTSD Outpatient Program at the Austin Repatriation Hospital on 14 February 2013. By this time, the plaintiff had lost her job at Shell, ‘being made medically redundant’.

These paragraphs do not contain any finding ‘in substance’ or otherwise as to why the respondent left Shell Australia. Certainly, they involve no considered rejection of the applicant’s alternative explanation for her leaving.

A court is assisted in the formulation and consideration of the issues in a case by the clarity with which these are dealt with by counsel. The issues are not just those opened by a plaintiff; obviously, they also include those raised by a defendant. A court is always assisted by counsel for each party addressing all the issues that have been raised, and making submissions in respect of all of them. In a ‘serious injury’ application, particularly one involving a claimed mental disorder, it is frequently the case that the credibility of the plaintiff is in issue. In submissions, a plaintiff will need to address each of the elements of an attack upon credibility and any evidence that suggests that an account of ‘consequences’ has been exaggerated. As the present case shows, it will not be enough for the judge simply to express the belief that that the plaintiff was doing his or her best to tell the truth.[68]
[68]It is not suggested that there was any failure by counsel to address all the issues in the present case.

Controversy is inevitable in any society; but, grievance is not necessary; it can be avoided or, at least, mitigated. Under our constitution, ‘[t]he primary task of the courts is to quell controversy, not only as to matters of fact, but by appropriate development of principle’.[69] In part, controversies are quelled by ensuring adjudication by an independent and unbiased tribunal; in part, by ensuring that each side is heard before any decision is made and, in part, by the giving of reasons,[70] reasons being a hallmark that distinguishes substantive judicial decisions from arbitrary decisions.[71] The sense of grievance that the losing party may have when controversy is determined will be diminished if that party considers that he or she has had a fair hearing and knows why it is that the cause was lost.
[69]Hill v Van Erp (1997) 188 CLR 159, 229 (Gummow J).
[70]See International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319, 379–381 (Heydon J).
[71]Wainohu v New South Wales (2011) 243 CLR 181, 225 (Gummow, Hayne, Crennan and Bell JJ). See also International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR; Klein v Minister for Education (2007) 81 ALJR 582, [57] (Kirby J).

In the circumstances, it is unnecessary to deal with the applicant’s arguments relating to the delay in the publication of reasons. Even if the reasons had been issued promptly, they would have been inadequate.

Conclusion

I would allow the application for leave. I would also allow the appeal against the judgment and orders below and would remit the matter for a second hearing by a different judge in the County Court.

GINNANE AJA:

I would grant leave, allow the appeal and remit the respondent’s application to the County Court for rehearing before a differently constituted Court.

The facts associated with the application are contained in the judgment of Santamaria JA, which I have had the benefit of reading.

In my opinion, the reasons of the learned Judge who determined the application, with respect, did not ‘expose the path of reasoning’ by which he found for the respondent.[72]
[72]Hunter v Transport Accident Commission (2005) 43 MVR 130, 137 [21] (Nettle JA).

His Honour set out the evidence presented at the hearing of the application. His conclusions were contained in three paragraphs at the end of his reasons. They reveal that his Honour accepted the respondent as a witness of credit who had made every effort to remain in employment subsequent to her injury.

His Honour found the opinion of Mr Coffey, who was a treating psychologist, to be ‘the most acceptable’ of the medical opinions. His Honour found that the respondent suffered ‘a severe long-term mental or severe long-term behavioural disturbance or disorder by way of a Chronic Pain Syndrome; alternatively, PTSD and/or post-traumatic anxiety’.

Judges hearing serious injury applications are often faced with a mass of conflicting medical opinions from treating doctors and medico-legal experts. Often these doctors, or some of them, are not cross-examined. Not all witnesses providing the Court with medical opinions were cross-examined at the hearing of this application.

In those circumstances, it will often be difficult for the judge to provide detailed reasons explaining why one medical opinion has been accepted over another. Often, the judge’s acceptance of the credit of an applicant will be decisive in granting leave, as it was here. The reasons for a finding of credit of a witness are sometimes difficult to explain in any great detail. But the judge should explain at least how he or she has taken into account matters potentially adverse to an applicant’s credit.

The present respondent’s (Ms Campbell’s) employment after the injury with market research companies was an important factor which she did not disclose to her treating doctors. His Honour referred to that evidence, but he did not explain what impact that failure to disclose had on his assessment of her credit. Nor did he explain his conclusions about the significance of the video surveillance evidence. I consider that the Judge’s task of exposing ‘the path of reasoning’ required him to give some reasons explaining his opinion of the significance of the respondent’s post-injury market research employment and the video surveillance evidence.

I do not consider that the delay in delivering judgment is critical to the determination of this application. His Honour set out in his judgment the substance of the evidence presented at the hearing of the application. It seems clear that his Honour reached a favourable view of the respondent’s credit based on his impression of her evidence. However, his Honour did not give reasons explaining how he had taken into account matters potentially adverse to the respondent’s credit.

The obligation to provide reasons on the matters to which I have referred remains, regardless of the strength of the particular case that is being decided. The unsuccessful party is entitled to know why it has lost.

His Honour was faced with much conflicting evidence. As stated, his reasons for finding for the respondent (Ms Campbell) were his favourable view of her credit and the evidence of a treating psychologist. However, his Honour’s task was also to state his conclusions upon the important features of the present applicant’s (Transport Accident Commission’s) case, to which I have referred. That was not done and, therefore, I consider that leave should be granted and the appeal be allowed.

---

[2015] VSCA 7

12 February 2015