Transport Accident Commission v Kamel
[2011] VSCA 110
•20 April 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2010 0063
| TRANSPORT ACCIDENT COMMISSION | Applicant |
| v | |
| CHRISTINE KAMEL | Respondent |
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| JUDGES | WARREN CJ, ASHLEY JA and KYROU AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 5 April 2011 |
| DATE OF JUDGMENT | 20 April 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 110 |
| JUDGMENT APPEALED FROM | [2010] VCC 314, (Judge Davis) |
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ACCIDENT COMPENSATION – Transport accident – Application by respondent for leave to commence proceedings for serious injury – Whether application to be determined under definition of ‘serious injury’ in s 93(17)(a) or (c) of the Transport Accident Act 1986 (Vic) – Trial judge applied paragraph (a) and granted leave – Whether the judge erred in concluding that the weight of the medical evidence supported a finding that the respondent had suffered a serious long-term impairment of her left knee or lumbosacral spine – Whether the judge erred in taking into account the psychological consequences of each impairment in conjunction with the physical consequences of each impairment – Whether the judge’s reasons were inadequate – Application for leave to appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr J Ruskin QC with Mr S A O’Meara | Transport Accident Commission |
| For the Respondent | Mr J P Brett with Mr J Valiotis | Arnold Thomas and Becker |
WARREN CJ:
I have read the draft judgment of Kyrou AJA and agree with his Honour’s reasons.
ASHLEY JA:
I have read in draft the reasons for judgment of Kyrou AJA and I respectfully agree with them.
KYROU AJA:
Introduction and summary
This is an application for leave to appeal against an order made by a judge of the County Court on 5 May 2010 granting leave to the respondent, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘Act’), to commence a proceeding to recover damages for injuries suffered by her as a result of a transport accident that occurred on 17 October 1997.[1]
[1]Kamel v Transport Accident Commission [2010] VCC 314 (5 May 2010) (‘Reasons’).
Section 93(6) of the Act provides that a court must not give leave under s 93(4)(d) unless it is satisfied that the injury is a serious injury. Section 93(17) relevantly defines ‘serious injury’ as:
(a)serious long-term impairment or loss of a body function; or
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder; …
In her application for leave, the respondent alleged that she suffered serious long-term impairment to her left knee and lumbosacral spine within the meaning of paragraph (a) of the definition of ‘serious injury’. The judge granted leave on
two bases. The first basis was that the impairment to the respondent’s left knee, when considered in conjunction with its psychological sequelae, constituted serious long‑term impairment. The second basis was that the impairment to the respondent’s lumbosacral spine, when considered in conjunction with its psychological sequelae, constituted serious long-term impairment.
On the appeal, the issues were as follows:
(a) Did the judge misconstrue the definition of ‘serious injury’ in s 93(17)?
(b)Did the judge err in concluding that ‘the weight of the medical evidence’ supported a finding that the respondent had suffered a serious long-term impairment of her left knee or lumbosacral spine?
(c)Did the judge err in taking into account the psychological consequences of the impairments to the respondent’s left knee and lumbosacral spine in conjunction with the physical consequences of those impairments in determining whether the respondent had suffered serious long-term impairment?
(d) Are the judge’s reasons for her decision adequate?
For the reasons that follow, I would resolve the above issues in favour of the respondent and would dismiss the application for leave to appeal.
Factual background
The factual matters set out at [9] to [12] below were not in dispute.
The respondent was born on 24 December 1986 and was 10 years of age at the time of the accident. The accident occurred while she was crossing the road immediately after alighting from a school bus. She suffered fractures to the left tibia and fibula, injury to her low back, left knee, right elbow, a laceration above her left eye and a head injury.
The respondent was taken to hospital by ambulance and remained an in‑patient for approximately 11 days after surgery to her left leg. Between the time of her discharge from hospital and early 1998, the respondent first used a wheelchair and later walked with the assistance of a walking frame or crutches. She did not return to school until some time in 1998. She had physiotherapy and hydrotherapy, and was treated by Mr Goldwasser, orthopaedic surgeon, for management of her orthopaedic injuries.
In 1999, the respondent was diagnosed with a valgus deformity in her lower left leg for which she had corrective surgery. The surgery was performed by Mr O’Sullivan, orthopaedic surgeon, and was successful. Mr O’Sullivan performed further surgery in March 2000 to remove the staples that had been inserted during the first operation.
Subsequent to the accident, the respondent attended her general practitioner, Dr Boules, on a regular basis. She received psychiatric treatment from Dr Tanaghow between 1998 and August 2004 and from Dr Fawns between December 2001 and March 2002. In 2004, the respondent received psychological counselling from Ms Hooper.
County Court trial
The respondent swore two affidavits. At trial, she was cross-examined over two days, in the course of which she qualified parts of her evidence. As noted by the judge, however, there was no attack on the respondent’s evidence concerning her symptoms and the medication she took for them.[2]
[2]Reasons, [58].
The exhibits introduced at the trial by one party or the other included medical reports prepared by Dr Boules, Mr Goldwasser, Mr O’Sullivan, Mr Westh (orthopaedic surgeon), Dr Fawns, Dr Tanaghow, Ms Hooper, Mr Schofield (orthopaedic surgeon), Dr Kaplan (psychiatrist), Mr Dickens (orthopaedic surgeon), Mr Dooley (orthopaedic surgeon) and Dr Weissman (psychiatrist). Apart from Dr Boules and Mr Schofield, the medical practitioners were not required to attend for cross-examination.
The appellant relied on surveillance footage taken on 8 and 9 February 2010, which depicted the respondent working at a café, walking, carrying shopping and driving a motor vehicle.
(a) The respondent’s evidence at trial
The judge summarised the respondent’s evidence at [4] to [16] of her Honour’s reasons. Those paragraphs included a discussion of matters affecting the respondent’s credit. On the appeal, senior counsel for the appellant informed this Court that the appellant did not seek to challenge the judge’s favourable findings in relation to the respondent’s credit and conceded that the evidence that was adduced on credit was not otherwise relevant to the issues at trial or on the appeal.
Set out at [18] to [28] below are those parts of the judge’s summary of the respondent’s evidence that are relevant to the appeal. Those paragraphs omit footnotes and substitute ‘respondent’ for ‘plaintiff’.
In her first affidavit of 29 September 2009, the respondent said that she continues to see her treating doctor, Dr Boules, or another unidentified doctor at a different clinic, about once per month in relation to her pain. She said that she is prescribed anti-inflammatory medication and also takes Nurofen Plus for pain relief. In relation to her back pain, she stated:
I continue to suffer ongoing low back pain. Regularly that low back pain radiates to both of my legs. The low back pain is made worse by activity, [in] particular sitting for too long, standing for too long, bending, twisting and lifting.
In relation to her left leg symptoms, the respondent stated:
I continue to suffer pain at the fracture site on the lower part of my left leg. I suffer pain and stiffness affecting my left knee. My left leg is still not straight. I suffer sensations of aching and sensitivity particularly around the scars on my left leg. The left leg and knee symptoms are made worse by being on my feet for too long and by moving around. My left knee often locks, particularly on cold days or [when] I engage in lots of activity.
The respondent stated that she completed Year 12 in 2004 and then completed an Information Technology Diploma at RMIT over four years, graduating in December 2008. She stated that in April 2009 she commenced part-time, casual work at a café, working about 15 hours per week. She stated:
I struggle with the physical aspects of the work in particular because of pain affecting my left knee and the lower part of my left leg and my low back. However my employer is supportive of me and this certainly makes it easier to remain at work.
The respondent stated that, prior to the accident, she enjoyed playing sport, but after the accident she found it difficult to play sport. She felt isolated at school. She found it difficult to study since the accident due to her pain, her headaches and her absences from school. She is anxious at night, and is often woken by back pain or leg pain.
In her second affidavit sworn on 8 April 2010, the respondent stated that she has been working up to 15 hours per week at the café, which is owned by her fiancé, and that she receives a disability support pension. She has trouble mopping floors, lifting light objects off the floor and staying on her feet for more than an hour. Her left knee ‘locks up and weakens’ numerous times at work. Two to three times per week after work she takes two Nurofen Plus tablets for her pain in order to help her sleep. Her self-esteem remains low because she is on the disability support pension. She is limited in helping her family with household chores due to her back and left leg pain, and worries about how she will manage as a wife and mother in her own home. She stated that she feels that she has not achieved much in life, unlike her friends, and is limited with what she can do at work. She does not play sport because she would suffer knee pain afterwards. Her knee ‘locks’ nearly every day. Sometimes she feels that she is limping due to pain. She gets a sore back from leaning over the sink. She has been diagnosed with depression and still constantly suffers from bad anxiety.
In cross-examination, the respondent said that she had become engaged to her boss four to five months ago. She agreed that her life was better and that she goes out with him to dinner, movies and family functions but said that they fight a lot because she complains about her pain. She agreed that she could swim and that Mr Goldwasser encouraged her to resume sport in 1998 but said that she avoided playing sport because she got knee pain from it. She did not recall complaining to Mr Goldwasser about back pain in 1998. However, she agreed that she may in fact have participated in a cross-country program in Year 7, and in volleyball, hockey and basketball in Year 8, but said that this was because she was trying to fit in.
The respondent agreed that her parents’ ongoing health problems caused her stress and anxiety. She said that she tries to help with chores at home but finds it hard to do dishes or tidy up, especially after work. She said that her mother does the cooking, and her father does the ironing. She agreed that she has been unhappy and depressed about her breast development in the past years and has seen a number of specialists about this. She had never taken medication for any psychological problems. She agreed that she told Dr Boules in 2007 about panic attacks and that he may have recommended referral to a psychiatrist, but she said that she did not want to have treatment.
The respondent agreed that there was no reason why she could not work more than 15 hours per week in a desk job which allowed her to move around. She said that she had not applied for any jobs where she could use her computer skills but fell into the café work. She said that IT jobs for which she was qualified generally required a few years’ experience, which she did not have.
The respondent said that she got scripts for Mobic from Dr Boules on two occasions in 2007 but it made her nauseous and she did not keep taking them. She said that she takes two Nurofen Plus tablets per day about three times per week, for any sort of back or leg pain. She agreed that no doctor has told her that there is any ongoing deformity in the shape of her left leg. She agreed that Dr Boules recommended that she have counselling for her depression concerning her breast development.
The respondent agreed that she submitted an application for a disability support pension in around January 2010 and that her application was signed by Dr Boules. She did not recall why she asked Dr Boules for a medical certificate dated 16 March 2009 stating that she was unfit to work for the next three months. She agreed that, at the time that she sought the certificate, she did not tell Dr Boules that she was working. She agreed that she worked at the café during that period.
The respondent viewed extracts of the surveillance footage and agreed that the footage showed her walking, carrying shopping and getting into a car without difficulty and without a limp.
(b) Medical evidence at trial
On the appeal, the judge’s summary of the medical evidence at trial was accepted as accurate. Set out at [30] to [56] below are relevant parts of her Honour’s summary of the medical evidence. Those paragraphs omit footnotes, omit parts of Dr Boules’ cross-examination on matters going solely to the respondent’s credit, and substitute ‘respondent’ for ‘plaintiff’ and ‘appellant’ for ‘defendant’.
Evidence of treating doctors
Dr Boules has treated the respondent since 1994. He provided three reports. In his first report he noted that the respondent continued to have problems with her legs, back pain, headaches and loss of concentration, and these problems were causing her family stress. In his second report, he diagnosed ‘Post Stress Disorder’, chronic leg pain and post concussion headaches. He noted continuing complaints of headaches, back pain, left leg pain and loss of concentration. He noted that the respondent could not walk long distances or study for long periods. He felt her capacity for work was good except for physical work. In his latest report, he reached the same conclusions.
At the trial, Dr Boules said that the respondent should continue with physiotherapy and psychotherapy. In cross-examination, he said that he was not aware that the respondent was seeing doctors at another clinic. He agreed that in 2007 the respondent saw him 15 times and mentioned back pain once and did not mention leg pain at all. There were two mentions of panic attacks in 2007 in his clinical notes. He said that he tried to refer the respondent back to her former treating psychiatrist, Dr Tanaghow, but his list was closed, and she did not attend another psychiatrist. There were no further entries in his clinical notes concerning panic attacks up to the present. He agreed that there were 12 attendances upon his clinic in 2008 but only one complaint in relation to back pain, and two complaints of left leg pain. When he examined the left leg in December 2008, he found no abnormalities. He agreed that there have been no further complaints of back or left leg pain since then, no prescription of painkillers or anti-inflammatories since 2007, and no panic attacks recorded since 2007.
Dr Boules agreed that he had provided medical certificates, each for three month periods, to the respondent on 2 December 2007 and 17 March 2009. He agreed that the first of these certificates noted two temporary medical conditions: back pain, left leg pain and headache (date of onset: 17 October 2007); and panic disorder (date of onset: 2 April 2007). He said that the respondent gave him the dates of onset. He said that he did not go back to his clinical records to check the accuracy of her complaints. He did not know what work she was able or unable to do. In relation to the certificate he issued on 17 March 2009, he agreed that it related only to one condition, the onset of left knee and left leg pain. He said that he did not examine her when she attended for the certificate, which certified her unfit for work or study until June 2009. He said that she did not tell him that she was working, and that he did not know that she was working at that time. He said that he would not have given her the certificate if he had known. He said that he only learned after late 2009 that she has been working. He said that her headaches prevent her from working full time in a sedentary capacity.
Dr Boules said that he had not diagnosed arthritis in the respondent’s left knee. He was not aware that she had seen a neurologist for her headaches. He agreed that he referred the respondent to psychologist Ms Hooper for counselling, and that the respondent’s parents had ongoing medical conditions which placed an additional strain on the respondent. He agreed that she had also been complaining since 2002 of distress about her breast development and that she had seen a number of plastic surgeons in 2002, 2003, 2008 and 2009.
Dr Boules agreed that all the MRI examinations of the respondent’s back and knee were normal, and that there was no clinical explanation for her symptoms. He felt that there was something wrong with her walking, but agreed that he would defer to the expert consensus that there was no abnormal gait. He agreed that the respondent needed to exercise and get on with her life. He said that it would not surprise him to learn that the respondent could work without pain.
The respondent relied on the report of Mr Goldwasser dated 25 January 1999 in which he noted the surgical treatment of the left leg fracture and the respondent’s recovery. In September 1998, he noted her complaint of daily back pain since March, and that she had not resumed her sporting activities. In December 1998, he noted that the left leg seemed three millimetres longer than the right leg.
The appellant relied on a further report by Mr Goldwasser dated 5 February 1999 in which he noted that, after the respondent’s reports of back pain, he arranged for x-rays and MRI of the thoracolumbar spine in late 1998 which were reported as normal. He noted the respondent’s continuing complaint of low back pain, but felt that it would take one or two years for her condition to stabilise. He encouraged her to increase her activities, including sporting activities, ‘as tolerated’.
Mr O’Sullivan saw the respondent in April 1999 and diagnosed a valgus deformity, which he repaired surgically on 7 May 1999 with a left upper tibial stapling on the medial side. The procedure was successful and the staples were removed in a further procedure on 10 March 2000. On 15 April 2002 Mr O’Sullivan reported that, on review in April 2000, ‘clinically [the respondent’s] legs were straight and there was no clinical leg length discrepancy’. He also reported that a CT scan had showed only a two millimetre difference between the legs, which was ‘well within the normal range’. He reviewed the respondent in March and November 2001 in relation to low back pain. He noted the history that she had that back pain since the accident in 1997 and observed that this history had not previously been reported to him. In March 2001, the respondent complained of three episodes of back pain per week in the previous six weeks. Examination and x-rays were normal. In November, the respondent reported continuing low back pain with left leg pain. He felt that her spinal range of motion was normal and noted that a bone scan showed no changes at the lower lumbar spine where her pain was situated.
Mr O’Sullivan felt that the respondent’s valgus deformity had resolved well and should not cause her any further problems in the future. He felt that her back pain may be related to adolescence.
The respondent received psychiatric treatment from Dr Fawns between December 2001 and March 2002 for matters which included her headaches and her mother’s illness. Dr Fawns concluded that the respondent did not suffer from a post traumatic stress disorder (‘PTSD’), but ‘was worried about family issues’.
In August 2004, Dr Tanaghow reported that he had been treating the respondent on a regular basis since 1998 for an adjustment disorder after her transport accident. He did not see her after August 2004.
The respondent received psychological counselling from Ms Hooper on three occasions in 2004, in relation to coping with anxiety, back pain, knee pain and migraine headaches. There was no report before the judge concerning the substance of that counselling.
Evidence of respondent’s medico-legal experts
Mr Roger Westh, orthopaedic surgeon, reported on 4 July 2006 that, when he saw the respondent in late June, she told him that her main ongoing problem was pain in the midline of the back, which was worse with prolonged walking, sitting or standing. She had ongoing left knee pain at the fracture site with some associated numbness, and occasional left knee stiffness. On examination, he found restricted range of movement in her lumbar spine, and some ‘slight patello-femoral crepitus’, but no quadriceps or calf wasting, nor any significant limb length discrepancy. He found that the respondent walks without a limp and that she recovered ‘very well’ from her left leg injury. He also felt that she sustained a low back injury in the accident and suffered chronic low back pain. He recommended regular exercise. He felt that her left leg injury should not interfere with her future work prospects but that her low back pain may prevent prolonged sitting or standing or any repetitive lifting or bending. He also felt that she had a ‘significant accompanying post traumatic stress reaction with anxiety and this [was] directly related to her accident’. He felt that there was no permanent impairment of the left leg, but a minor permanent impairment of the thoracolumbar spine in terms of back pain.
Mr Schofield, orthopaedic surgeon, examined the respondent in December 2006 and January 2010. He provided two reports and three letters. His first report dated 7 December 2006 noted that, when he saw her on 4 December 2006, the respondent complained of pain in the left knee, aching in the left leg, locking of the left knee when walking long distances and occasional giving way. On examination, he found two to three centimetres lengthening of the left tibia, one centimetre wasting of the left thigh and half a centimetre wasting of the left calf. The left knee had a full range of movement and normal stability of all ligaments, but ‘some pain on pressing the patella onto the femur and contracting the quadriceps muscle indicating chondromalacia’. He arranged x-rays of the left knee and lumbar spine (including erect functional views). The left knee x-ray was normal. The x-rays of the lumbar spine ‘revealed evidence of disc space narrowing at the lumbosacral disc, especially in the erect view’. He concluded that apart from mild chondromalacia patellae, which may have resulted from prolonged immobilisation and the impact of the injury on the knee cap, the left knee was normal. He concluded that the ‘reasons for continuing symptoms are not clear’, but felt that some of the leg pain could be referred pain from the back. He recommended further MRI scans.
On 3 July 2007, Mr Schofield noted that MRI of the lumbar spine and of the left knee conducted on 26 June 2007 were reported as normal. However, he felt that the plain x-rays of the lumbar spine showed ‘some instability which [he] believe[d] [was] the cause of her ongoing back pain’. He felt that the supporting ligaments had been damaged, although the disc remained strong and intact. He also felt that there was clinical evidence of post-traumatic chondromalacia which ‘will continue to give her problems intermittently’ and possibly could require surgery in the future.
On 25 July 2007, Mr Schofield noted Mr Dooley’s findings in 1999 and 2005 but felt that these were overtaken by the results of the plain x-rays with erect functional views.
On 13 January 2010, Mr Schofield reported that when she was examined the previous day, the respondent complained of an inability to squat due to pain over the kneecap, acute left knee pain when walking, some aching when at work, an inability to run, and the knee giving way from time to time. She also complained of low back pain when standing or sitting for long periods and when lifting or bending at work. She was taking Nurofen for that back pain. He found a one centimetre lengthening of the left leg. The respondent had a full range of movement in the left knee, pain on flexion of the knee and compression of the kneecap with mild crepitus. She did not have an antalgic gait, nor any evidence of valgus deformity. He repeated his earlier conclusions, diagnosing ‘post-traumatic degenerative change affecting the lumbosacral disc and post-traumatic chondromalacia patellae affecting the left knee’. Long-term prognosis would depend on the results of further MRI scans. He noted that ‘she had difficulty coping with work in the café’ and that if she obtained work for which she was professionally qualified, ‘this will be less physical and more amenable to her current disability’.
In cross-examination, Mr Schofield felt that the difference in leg lengthening reported by him was not significant and that there had been no change over time. He said that, in his January 2010 report, he noted all the symptoms of which the respondent complained, and that he assumed that the ones that were not raised (such as some of the symptoms complained of in 2006) had disappeared. He agreed that the MRI of the left knee and lumbar spine did not show major pathology. He agreed that there was no scoliosis. He felt that, in the absence of other identifiable causes, the likely explanation of the respondent’s ongoing back pain was the transport accident. He agreed that there were some non-organic signs on examination consistent with some psychological factors. He felt that the respondent could not stand for prolonged periods due to her lumbar disc problems. He viewed extracts of the surveillance footage and agreed that the respondent showed no apparent difficulties in moving around, leaning or carrying light objects. He said that she could trial full-time sedentary work in her field, but may have difficulty sitting for long periods to do any further study if that was required. In re‑examination , he said that intermittent back pain should not occur in a ten year-old without injury.[3]
[3]The judge’s synopsis of the non-psychiatric medical evidence did not address matters to which I refer below at [93]-[100].
Dr Kaplan, psychiatrist, assessed the respondent and provided reports in August 2006 and October 2009. In his first report, he diagnosed an adjustment disorder with mixed anxiety and depressed mood. He felt that one-third of her psychiatric impairment was of primary origin and two-thirds resulted from her reaction to the chronic pain flowing from her physical injuries. He felt that she was incapacitated for all employment by her psychiatric condition. In his second report, he noted that her agoraphobic symptoms had improved but reaffirmed his previous diagnosis. He noted that work at the café had been beneficial and that future employment would be affected by impaired memory and concentration, but that otherwise her capacity for employment would be determined by her physical condition.
Evidence of appellant’s medico-legal experts
Mr Dickens, orthopaedic surgeon, reported on 8 October 2001 that, when he examined the respondent on 4 October, she complained, relevantly, of back pain of varying severity, and of pain in the left leg mainly over the stitches. He found no asymmetry of the spine when she stood. Neurological assessment was normal. He found no scoliosis. He felt that her back pain was unrelated to the transport accident, as it was common in adolescent girls. He felt that she should return to all normal activities, including sport, as soon as possible.
Mr Dooley, orthopaedic surgeon, examined the respondent in 1999, 2005, 2007 and 2009. In August 2005, he reported that she had no scoliosis, a full painless range of movements in the thoracolumbar spine, and no evidence of muscle spasm. He felt that the valgus deformity in the left leg had been ‘largely corrected’. The left knee straightened fully and flexed to 140 degrees. There was five millimetres of lengthening of the left leg. He concluded that there was a small permanent impairment for minor loss of full flexion of the left knee and slight overgrowth of the left leg. He felt that she was unlikely to develop osteoarthritic changes in the left knee in the future.
On 16 February 2007, Mr Dooley reported similar findings. The left knee was stable and he found no evidence of chondromalacia patellae. He detected no pain or crepitus on flexion of the left knee. He found marked limitation of flexion in the lumbosacral spine. He found one centimetre of discrepancy between the length of the legs and concluded that this was minimal, would not lead to progressive deterioration in any way of her lumbosacral spine and would not lead to uneven weightbearing. He felt that the prognosis for the back and the left knee was excellent. He felt that ‘almost certainly she will not develop osteoarthritis in her left knee as a result of the injury’. He felt that her injuries would ‘in no way’ affect her ability to work in the future in IT. He felt that her back symptoms would resolve over time.
On 16 November 2009, Mr Dooley reported that, on repeat examination, there were no changes to the physical findings previously reported. He noted that the MRI of the lumbar spine was normal. He felt that the residual stiffness in flexion was ‘probably of a functional type, ie subconscious exaggeration’, and that the long term prognosis for her lower back was excellent. He felt that her left knee had healed very well. He felt that her ongoing back and left knee symptoms could not be explained on a physical basis. He agreed with Mr Westh’s opinion. On 1 April 2010 he noted the normal MRI results reported for the lumbar spine and left knee on 27 January 2010, and reaffirmed his previous opinion that the overall prognosis for the left knee and lower back was excellent.
Dr Weissman, psychiatrist, assessed the respondent in 2005, 2007 and 2009. In his report dated 3 August 2005, he noted the respondent’s report of continuous pain in the left leg and lower back. He diagnosed a moderate PTSD and a moderate chronic adjustment disorder with depressed and anxious mood. He felt that a number of post-traumatic stress and anxiety symptoms, along with social withdrawal, lowered self-esteem and confidence, self-confidence and part of her depression were primary or direct psychiatric symptoms, and that the primary psychiatric condition ‘outweighs the secondary or reactive condition’. However, he felt that there was ‘still a not insignificant degree of depression that occurs consequential to her physical pain, injuries and disabilities (particularly regarding sport) and secondary to her scarring’. He noted that the respondent was avoidant about driving a car. She was reluctant to have further psychiatric treatment or medication, although Dr Weissman felt that it would be a good idea.
On 26 February 2007, Dr Weissman reported that the respondent was suffering a mild to moderate chronic PTSD which was primary in origin, and a moderate chronic adjustment disorder with depressed and anxious mood which was secondary in origin. He now felt that the secondary adjustment disorder was ‘at least equal to or outweighs’ the primary condition. He again recommended some psychiatric or psychological treatment.
In his report of 13 October 2009, Dr Weissman noted that there had been no improvement in the respondent’s psychiatric state. He felt that her conditions have ‘had a moderate impact on her day to day domestic, social, leisure, recreational and interpersonal functioning’ and that they have also affected her vocational opportunities. He noted that she had obtained her driver’s licence. She told him that she was working and had to move tables and mop floors, and that she found this very difficult but ‘she has to do it’. In a supplementary report dated 1 April 2010, Dr Weissman noted that he viewed the surveillance footage and felt that nothing he saw was inconsistent with the diagnoses he made.
Radiology
MRI of the lumbar spine and left knee on 27 January 2010 was reported with the following conclusions:
(a)unremarkable lumbar spine MRI with patent central canal and exit foramina;
(b) medical post-surgical change of the left knee; and
(c) no focal knee joint chondral abnormality.[4]
[4]In this part of the Reasons, the judge did not refer to the respondent’s plain x-rays of the lumbosacral spine.
Judge’s findings and reasons
The judge discussed in detail the errors in the respondent’s evidence that were exposed during cross-examination. Her Honour concluded that the respondent was a ‘relatively straightforward witness’ and that the inconsistencies in her evidence did not ‘detract from her overall credibility in relation to the pain and suffering consequences of her physical injuries.’[5]
[5]Reasons [55]-[56].
The judge made the following findings in relation to the medical evidence:
There is no consensus in the orthopaedic reports concerning the diagnosis of the [respondent’s] left knee and low back symptoms and the long-term prognosis in relation to them. The treating surgeons, Mr Goldwasser (in 1999) and Mr O’Sullivan (in 2002), felt that she should suffer no long-term difficulties in the knee or back. Mr Dickens felt (in 2001) that the back pain was not accident-related, while Mr Dooley felt (in 2009) that there was no physical explanation for her ongoing symptoms. However, Mr Westh (in 2006) felt there was a minor permanent impairment of the thoraco-lumbar spine but no permanent impairment of the left knee. On the other hand, Mr Dooley (in 2009) felt that there was no permanent lumbar spine impairment but a small permanent impairment for loss of flexion of the left knee. Only Mr Schofield (in 2006 and 2010) found accident-related post traumatic degenerative change affecting the lumbo-sacral disc and post traumatic chondromalacia patelle in the left knee. There was general agreement (from Dr Boules, Mr Westh, Mr Schofield, Mr Dooley and Dr Kaplan) that her physical condition did not prevent her from working full‑time in a non-physical occupation.
On the other hand, there was consensus between the two examining psychiatrists in 2009 that the [respondent] continued to suffer from an Adjustment Disorder with depressed and anxious mood. Dr Kaplan felt that two-thirds of this impairment was secondary to the chronic pain flowing from her physical injuries. In 2005, Dr Weissman felt that the primary psychiatric condition (Post-Traumatic Stress Disorder) outweighed the Adjustment Disorder. By 2007, however, that the secondary Adjustment Disorder was ‘at least equal to or outweighs’ the primary condition.
I consider the weight of the medical evidence to be to the effect that as a result of the transport accident the [respondent] has suffered a permanent impairment of the left knee (in the form of post-traumatic chondromalacia) and a permanent impairment of the lumbo-sacral spine (by way of an aggravation of degenerative changes affecting the lumbo-sacral disc). These cannot be aggregated for the purposes of this application. However, as a result of each of the chronic left knee and lumbar spine conditions, taken alone, the [respondent] has suffered a secondary psychiatric condition in the nature of an Adjustment Disorder with anxious and depressed mood. The psychological sequelae of each of the impairments must be considered in conjunction with each impairment.[6]
[6]Reasons [52]-[54].
The judge’s conclusion on the substantive issue before her was as follows:
There was no attack on the [respondent’s] evidence concerning her symptoms and the medication she takes for them, nor was any issue taken with the psychiatric evidence concerning the secondary psychological sequelae of her physical injuries. Taking the evidence as a whole, I am satisfied that in terms of pain and suffering, the consequences of the injury to the lumbar spine or to the left knee, taken alone, when considered along with its psychological sequelae (an Adjustment Disorder), are at least ‘very considerable’ when compared with other cases in the range of possible impairments. I am not so satisfied in terms of the pecuniary disadvantage flowing from the injury, because of the evidence that the [respondent] is fit to undertake full-time sedentary work, using her tertiary qualifications. However, on the authorities, the [respondent] must succeed in her application if she reaches the relevant threshold in relation either to the pain and suffering or the pecuniary disadvantage consequences of her injury.[7]
[7]Reasons [58].
Accordingly, her Honour granted leave to the respondent to commence a proceeding for the recovery of damages in respect of the injuries she suffered as a result of the accident.[8]
[8]Reasons [59].
Relevant legal principles
(a) Principles for establishing a ‘serious long-term impairment’
Paragraph (a) of the definition of ‘serious injury’ focuses on impairment or loss of body function, rather than on the injury resulting from a transport accident. A body function must not be equated with an injury, as the impairment of a person is not the same thing as the impairment of a person’s body function. Paragraph (a) of the definition focuses upon impairment or loss of body function and requires that the impairment or loss be both ‘serious’ and ‘long-term’.[9]
[9]Humphries v Poljak [1992] 2 VR 129, 134 (‘Humphries’). This was the submission of the defendants, the correctness of which Crockett and Southwell JJ accepted.
The test for determining whether an applicant for leave under s 93(4)(d) of the Act has suffered serious long-term impairment or loss of a body function is subjective in the sense that it is the effect on the particular applicant’s body function that must be considered. That determination, however, must be objectively made: it is the judge’s opinion as to the seriousness of the impairment or loss – not that of the applicant or his or her medical practitioners – that is decisive.[10]
[10]Humphries [1992] 2 VR 129, 137.
In determining whether an applicant has suffered a serious long-term impairment or loss of a body function, it is impermissible to aggregate impairments or losses of different body functions. Each body function must be considered separately and a determination must be made as to whether that function has been impaired or lost and, if so, whether the impairment or loss is serious and long-term. A body function may be impaired or lost by reason of two or more injuries acting together to cause an impairment or loss.[11]
[11]Humphries [1992] 2 VR 129, 138.
The applicant has the burden of proving, on the balance of probabilities, that he or she has suffered an impairment or loss of a body function that, as a result of the infliction of the injury complained of, is both serious and long-term. In order to be ‘serious’, the consequences of the injury must be serious to the particular applicant in relation to either pecuniary disadvantage or pain and suffering, or both. Moreover, it must be established that the injury, when judged by a comparison with other cases in the range of possible impairments or losses, can be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[12]
[12]Humphries [1992] 2 VR 129, 140.
The definition of ‘serious injury’ in s 93(17) of the Act intends to maintain a division between injuries with physical consequences, which fall within paragraph (a) of the definition, and injuries with mental consequences, which fall within paragraph (c) of the definition. The inquiry that must be made under paragraph (a) focuses attention on whether the injury has produced an organic impairment or loss of a body function and whether, having regard to its consequences, that impairment or loss is serious and long-term. Where an impairment or loss of a body function is produced as a consequence of a mental disturbance or disorder, that impairment must be considered under paragraph (c) rather than under paragraph (a). Where the impairment of a body function is the product of both organic and mental conditions, it will not fall within paragraph (a) unless it is predominantly the product of the organic condition.[13]
[13]Richards v Wylie (2000) 1 VR 79, 86-8 [16]-[17], [19] (Winneke P), 89 [23]-[24] (Buchanan JA), 90 [28] (Chernov JA) (‘Richards’).
The ‘textual distinction’ between the physical and mental consequences of an injury that is maintained by the definition of ‘serious injury’ in s 93(17) of the Act does not preclude a mental or behavioural disturbance or disorder from being taken into account in determining the seriousness of an impairment or loss of a body function that is held to fall within paragraph (a) of the definition.[14]
[14]Richards (2000) 1 VR 79, 87-8 [17], 89 [24], 90 [28].
A stoic applicant who has been prepared to put up with pain and suffering and make the best of his or her situation should not be treated less favourably than an applicant who, being of less strength of character, simply resigns himself or herself to the injury.[15]
[15]Dwyer v Calco Timbers Pty Ltd [No 2] [2008] VSCA 260 (17 December 2008) [3].
The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.[16]
[16]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 (28 November 2007) [199] (‘Kelso’).
(b) Principles relating to appellate interference
The basis upon which this Court will interfere in a judge’s finding that a person is suffering from a ‘serious injury’ within the meaning of s 93(17) of the Act was discussed at length in Mobilio v Balliotis.[17] The relevant principles were summarised as follows by Winneke P in Richards v Wylie:[18]
It is not in doubt that this court will not lightly interfere with a judge’s finding that an applicant is suffering from ‘a serious injury’ within the meaning of s 93(17). It is for the appellants to persuade us that the primary judge was wrong, and that is no easy task where the decision appealed against is one involving elements of fact, degree and value judgment … Furthermore, the court must be astute to have regard to the advantage which the primary judge had in assessing the respondent’s credibility and determining disputed issues of fact. As this court said in Mobilio v Balliotis … a judge’s finding that an applicant had suffered a ‘serious injury’ within the meaning of s 93 of the Act will only be disturbed if it is vitiated by specific error or can otherwise be shown to be plainly wrong.[19]
[17][1998] 3 VR 833, 835, 841, 854, 858, 860.
[18](2000) 1 VR 79.
[19](2000) 1 VR 79, 86 [15] (citations omitted); Spence v Gomez [2006] VSCA 48 (9 March 2006) [8].
(c) Principles for determining adequacy of reasons
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’.
Thus, for example, in Franklin v Ubaldi Foods Pty Ltd[20] – 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:
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.[21]
[20][2005] VSCA 317 (21 December 2005) (‘Franklin’). This case has been either cited or applied in numerous subsequent decisions. See, for example, Hesse Blind Roller Co Pty Ltd v Hamitoski [2006] VSCA 121 (8 June 2006) [19].
[21][2005] VSCA 317 (21 December 2005) [38] (citation omitted).
Similarly, in Rodda v Transport Accident Commission[22] – 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.[23]
[22][2008] VSCA 276 (18 December 2008) [98] (‘Rodda’).
[23][2008] VSCA 276 (18 December 2008) [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].
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.[24]
[24]Hunter v Transport Accident Commission (2005) 43 MVR 130, 140 [28] (‘Hunter’).
Grounds of appeal
The grounds of appeal set out in the proposed notice of appeal are as follows:
1.The learned trial judge erred in concluding at paragraph [54] of the reasons that ‘the weight of the medical evidence’ supported findings that [as a result of the transport accident] –
(a)the [respondent] suffered a permanent impairment of the left knee in the form of post-traumatic chondromalacia; and
(b)the [respondent] suffered a permanent impairment of the lumbo-sacral spine by way of an aggravation of degenerative changes affecting the lumbo-sacral disc; and
(c)the [respondent] suffered a secondary psychiatric condition in the nature of an adjustment disorder with anxious and depressed mood.
2.The learned trial judge erred in concluding at paragraph [54] of the reasons that ‘the psychological sequelae of each of the impairments must be considered in conjunction with each impairment’, which conclusion proceeded upon a misconstruction and misapplication of Section 93 of the Transport Accident Act 1986 and relevant authority, namely Richards v. Wylie [2000] 1 VR 79.
3.The learned trial judge erred in finding at paragraph [58] of the reasons that the consequences of organic injury should be considered ‘along with’ a finding of Adjustment Disorder which, pursuant to the statute and relevant authority, properly fell to be considered under sub-paragraph (c) of the serious injury definition in Section 93 of the Transport Accident Act 1986.
4.The learned trial judge erred in failing to provide adequate reasons for decision, in that –
(a)no adequate reasons were given in support of the conclusion at paragraph [54] of the reasons [that is set out in ground 1];
(b)no adequate reasons were provided in support of the conclusion at paragraph [58] of the reasons that ‘in terms of pain and suffering, the consequences of the injury to the lumbar spine or to the left knee, taken alone, when considered along with its psychological sequelae (an Adjustment Disorder), are at least very considerable’.
Ground 1: Judge’s conclusion about the weight of the medical evidence
Senior counsel for the appellant made the following submissions: first, that her Honour’s statement that ‘the weight of the medical evidence’ supported findings that were favourable to the respondent meant that the preponderance of the medical evidence supported those findings; secondly, that such a conclusion was not open on the evidence. Counsel conceded, however, that the statement could mean that her Honour preferred the medical evidence supporting the particular findings – which largely comprised the evidence of Mr Schofield – to the medical evidence that did not support those findings. Counsel also conceded that if the latter interpretation is accepted, then, based on the principles set out at [69] above, the appellant would not be able to establish ground 1.
In my opinion, it is abundantly clear that all that the judge meant by her statement that ‘the weight of the medical evidence’ supported the findings that she made was that she preferred that evidence to the evidence that did not support those findings. Mr Schofield gave oral evidence and was cross-examined at length. Her Honour evidently concluded that he had convincingly justified his own opinion and had exposed weaknesses in the opinions of the doctors upon which the appellant relied. Accordingly, ground 1 is not made out.
Grounds 2 and 3: Consideration of psychological sequelae of physical impairment
Grounds 2 and 3 are related and can be considered together.
Senior counsel for the appellant submitted that the judge misapplied Richards in the following respects:
(a)her Honour erroneously construed Richards as mandating a consideration of psychological as well as organic consequences of an injury under paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Act;
(b)her Honour impermissibly aggregated the organic and psychological consequences of the respondent’s injuries; and
(c)as the evidence disclosed that the psychological consequences of the respondent’s injuries were more severe than the organic consequences, her Honour erred in applying paragraph (a) instead of paragraph (c) of the definition of ‘serious injury’.
In my opinion, the alleged errors involve misunderstandings of what her Honour said.
As the judge determined that the impairments of which the respondent complained were caused by her physical injuries, her Honour was entitled to take into account the psychological consequences of those impairments in assessing their seriousness and longevity. Her Honour’s statement that ‘the psychological sequelae of each of the impairments must be considered in conjunction with each impairment’ did not involve any error of law. In the context in which it was made, the statement did not mean that a consideration of psychological as well as organic consequences was mandatory; it simply meant that the psychological sequelae of each impairment must be considered only in assessing the seriousness of that impairment and could not be taken into account in assessing the seriousness of any other impairment. Senior counsel for the appellant conceded as much.
Likewise, the judge’s statement that the consequences of organic injury should be considered ‘along with’ a finding of adjustment disorder was consistent with the principles set out at [61] to [66] above. In accordance with her findings that the adjustment disorder was consequential upon the respondent’s physical injuries, her Honour was entitled to take it into account in determining the seriousness and longevity of the impairments to the respondent’s left knee and lumbosacral spine. Her Honour’s approach did not involve any impermissible aggregation.
The third alleged error is misconceived because the judge did not make a finding that the psychological consequences of the respondent’s injuries were more severe than the organic consequences. As I have already stated, the judge correctly applied the principles set out at [61] to [66] above. The third alleged error either involves the proposition that, on the evidence, the judge was required to conclude that the psychological consequences were more severe than the organic consequences or amounts to an invitation to this Court to reach its own conclusions on the evidence. Neither approach is consistent with the principles set out at [69] above.
For the above reasons, grounds 2 and 3 must fail.
Ground 4: Adequacy of reasons
Senior counsel for the appellant submitted that the judge’s reasons did no more than recite the evidence and state findings without any commentary as to why the evidence was said to lead to the findings. Counsel observed that this approach to the provision of reasons was described by Nettle JA in Hunter v Transport Accident Commission as being ‘about as good as useless’.[25] Counsel contended that her Honour’s reasons failed to explain why she preferred some medical evidence to other medical evidence and did not explain her ultimate conclusion. Further, counsel submitted that her Honour’s reasons failed to disclose the extent to which she took psychological consequences into account in arriving at her conclusion.[26]
[25](2005) 43 MVR 130, 140 [28].
[26]Counsel relied on the observations of Hargrave AJA in Rodda [2008] VSCA 276 (18 December 2008) [103].
Senior counsel for the respondent conceded that her Honour’s reasons could have been expressed in more detail. However, he contended that, when the reasons were read as a whole, her Honour’s path of reasoning could readily be inferred.
Regrettably, the judge’s reasons leave much to be desired. They were long in reciting the evidence and short in explaining how the evidence justified her Honour’s findings. It must be borne in mind, however, that reasons can be adequate by a combination of what is expressly stated and the inferences that necessarily arise from what is expressly stated.[27] In the present case, it can be inferred from the judge’s reasons that her Honour:
[27]Franklin [2005] VSCA 317 (21 December 2005) [38].
(a)accepted the respondent’s evidence that she suffered pain to her left knee and low back, that this pain restricted her enjoyment of life and capacity to work, and that the injuries to her left knee and low back caused anxiety and other psychological problems;
(b)accepted Mr Schofield’s evidence that the respondent suffered from a permanent impairment of the left knee and a permanent impairment of the lumbosacral spine;
(c)preferred Mr Schofield’s evidence to the evidence of Mr Dooley and Mr Dickens because, in cross-examination, Mr Schofield was able to explain the basis of his opinion and why he maintained that opinion after having considered the opinions of Mr Dooley and Mr Dickens;
(d)accepted the evidence of Dr Weissman and Dr Kaplan that, as a result of the impairments to her left knee and lumbosacral spine, the respondent suffered from an adjustment disorder with anxious and depressed mood;
(e)concluded that the impairments to the respondent’s left leg and lumbosacral spine were long-term because they had subsisted since the accident in 1997 and were likely to subsist in the future; and
(f)concluded that the impairment of the left knee, when considered with its psychological sequelae, and the impairment of the lumbosacral spine, when considered with its psychological sequelae, were each serious in the sense that they were at least ‘very considerable’.
In the end, and not without hesitation, I have concluded that her Honour’s reasons are just barely adequate in revealing her path of reasoning and in informing the appellant ‘why the case was lost’. Accordingly, ground 4 must fail.
It would have been a simple matter for her Honour to include an additional paragraph in her reasons that expressly set out the matters set out at [86] above rather than leaving those matters to be inferred. It is disappointing that her Honour did not do so. The speed with which grounds 1 to 3 fell away during argument indicated that the appellant’s real complaint was with the judge’s reasons. It is thus likely that the appellant would not have sought leave to appeal if her Honour’s reasons had more fully set out her path of reasoning.
Appeals to this Court that rely principally on the alleged inadequacy of the reasons for a decision of a judicial officer impose unfair cost burdens and unnecessary delays on the parties, and place further strains on the scarce judicial resources of this Court. These adverse consequences can easily be avoided. All that is required is for judicial officers to ensure that they comply with the principles that are set out at [70] to [73] above.
Additional observations
If ground 4 had been made out, pursuant to s 74(3) of the County Court Act 1958, it would have been appropriate for this Court to decide the question of whether the respondent suffered a ‘serious injury’, rather than to remit the matter to the County Court for rehearing.[28] That question could be decided on the basis of the evidence presented at the trial.[29] Had it been necessary for this Court to decide the question, I would have decided it in favour of the respondent, at least in relation to her lumbosacral spine. My reasons are briefly stated below.
[28]See, eg, Hunter (2005) 43 MVR 130, 143 [37].
[29]It will be recalled from [16] above that the judge made favourable findings about the respondent’s credit and that senior counsel for the appellant conceded that the evidence that was adduced on credit was not otherwise relevant to the issues at trial or on the appeal. Although the appellant’s preference was for the proceeding to be remitted to the County Court if ground 4 was upheld, neither party contended that it would be inappropriate for this Court to decide whether the respondent had sustained a ‘serious injury’ based on the transcript and the exhibits tendered at trial.
As the respondent’s evidence about her low back pain and the physical consequences of that pain was not challenged at trial, that evidence should be accepted. The evidence was to the effect that the constant low back pain adversely affected her enjoyment of life, her capacity to perform domestic chores (including mopping floors, washing the dishes and tidying up) and her capacity to work, because she could not sit, stand still or concentrate for long periods of time or engage in repetitive bending or lifting.
For the same reason, the respondent’s evidence about the psychological consequences of her low back pain should be accepted. The evidence was to the effect that the constant low back pain adversely affected her self-esteem and confidence, and caused anxiety.
Mr Dickens’ report dated 8 October 2001 stated that he was informed by the respondent’s mother that the respondent developed low back pain ‘[s]ome seven months ago’. In fact, the respondent had complained of low back pain since the accident. Mr Dickens’ conclusion that the low back pain was unrelated to the accident and his suggestion that the pain was related to adolescence were based on a false factual premise.
Mr O’Sullivan’s report dated 15 April 2002 stated that the respondent mentioned low back pain for the first time in 2001 and noted that adolescent girls going through growth spurts often have periods of back pain that resolve at the end of their growth. Mr O’Sullivan’s attribution of the low back pain to adolescence was also based on a false factual premise.
Mr Westh’s report dated 18 July 2005 was based on reports of x-rays taken on 12 February 2001, which did not include erect functional views. Mr Westh noted a restricted range of movement in the respondent’s lumbar spine and assessed the whole person impairment to her thoracolumbar spine at five per cent. He concluded that the respondent’s chronic low back pain was ‘her major ongoing problem’.
In his report dated 3 August 2005, Mr Dooley noted that the respondent had ‘soft tissue injury to her lumbar spine, with MRI normal, and recovering’ and that she had a full painless range of movements in the thoracolumbar spine. He concluded that, although the respondent had some residual stiffness in flexion in her lumbosacral spine, ‘this could well be of a functional type’ and that the long-term prognosis was excellent. Although Mr Dooley included Mr Schofield’s report of 7 December 2006 in the list of documents that he said he had perused, he did not comment on the report. In his report dated 16 November 2009, Mr Dooley stated that the respondent’s complaints of lumbosacral backache could not be explained on a physical basis. Once again, although he listed Mr Schofield’s reports dated 7 December 2006 and 3 July 2007, he did not comment on them. In his final report dated 1 April 2010, Mr Dooley stated that, having perused and considered the report of the MRI of the lumbar spine dated 27 January 2010 and Mr Schofield’s report dated 22 February 2010, he had not changed his previous opinions.
In his report dated 7 December 2006, Mr Schofield stated that x-rays of the respondent’s lumbar spine – which included erect functional views – that he had arranged revealed evidence of disc space narrowing at the lumbosacral disc and a two millimetre retrolisthesis. He noted that previous x-ray reports that showed no evidence of deformity did not include x-rays taken in the erect position. He concluded that there was evidence of some degeneration at the lumbosacral level. In his report dated 3 July 2007, Mr Schofield stated that the minor lengthening of the respondent’s left leg that resulted from the accident was likely to place abnormal stresses on her lumbar spine permanently and that this was causing her ongoing back pain. He expressed similar conclusions in his report dated 13 January 2010, which he prepared on the basis of up-to-date x-rays of the lumbar spine, including erect functional views. He stated that the degenerative change to the lumbar spine was likely to get worse and to limit the respondent’s capacity for physical work and physical enjoyment in recreation. In his report dated 22 February 2010, after noting that an MRI report dated 27 January 2010 stated that several discs in the lumbar spine demonstrated very mild central dehydration, Mr Schofield observed that one would not expect to find even minimal dehydration of the disc in a 23-year-old woman. He concluded that the respondent’s low back pain was due to the slight asymmetry of the spine caused by the differential lengths of her legs and to the instability caused by the minimal degenerative change noted on the MRI.
In so far as there were inconsistencies between the reports of Mr Dickens, Mr O’Sullivan, Mr Dooley and Mr Schofield, the reports of Mr Schofield must be preferred because they were based on the most up-to-date and comprehensive x-rays and MRI reports. Mr Schofield was the only orthopaedic surgeon to consider plain x-rays with erect functional views. Further, Mr Schofield was the only orthopaedic surgeon to comment on the significance of the mild central dehydration that was noted on the MRI report dated 27 January 2010. The reports of Mr Dickens and Mr O’Sullivan can be disregarded because they attributed the respondent’s low back pain to adolescence on the false premise that the pain commenced a considerable time after the accident. Mr Schofield’s reports are more persuasive than Mr Dooley’s reports because Mr Schofield arrived at a cogent diagnosis of the cause of the low back pain and gave an explanation, based on the x-rays and the MRI report dated 27 January 2010, as to why he disagreed with Mr Dooley. Mr Dooley, on the other hand, merely noted that he had perused Mr Schofield’s reports. In addition, Mr Schofield’s reports are supported by Mr Westh’s report dated 18 July 2005.
Mr Schofield was extensively cross-examined in relation to his opinions. Throughout the cross-examination, he maintained those opinions. The opinions of Mr Dooley and Mr Dickens were put to Mr Schofield and he explained why he did not agree with them. In relation to Mr Dickens’ attribution of the respondent’s low back pain to adolescence, Mr Schofield said that adolescent back pain usually has a specific diagnosis – such as Scheuermann’s disease – but no diagnosis was provided by Mr Dickens and there was no evidence to support any such diagnosis in the x‑rays. In relation to Mr Dooley’s opinion that there was no physical basis for the respondent’s low back pain, Mr Schofield said that Mr Dooley had not viewed the plain x-rays with the erect functional views. Mr Schofield’s explanations were compelling because they were based on radiology which was both up-to-date and particularly revealing. The cross-examination provided an additional basis for preferring the opinions of Mr Schofield to those of Mr Dooley and Mr Dickens.
The report of Mr Goldwasser dated 25 January 1999 stated that x-rays taken on 2 September 1998 showed that the lumbosacral spine was normal and that an MRI scan that was performed on 5 December 1998 also showed that the lumbar spine was normal. In 2006 and 2010, Mr Schofield found evidence of impairment of the lumbosacral spine in more recent x-rays and MRI scans. The degenerative change which developed between 1998 and 2010 in a young woman supports a conclusion that the impairment is long-term.
Although the impairment of the lumbosacral spine was described as ‘mild’, it had caused debilitating pain to the respondent since the accident and was likely to continue to cause her progressively more severe pain for the rest of her life. The endurance of permanent daily pain requiring two Nurofen Plus tablets about three times per week can be regarded as a very considerable physical consequence of the impairment to the lumbosacral spine.[30]
[30]Cf Kelso [2007] VSCA 267 (28 November 2007) [199].
Dr Kaplan diagnosed the respondent as suffering from an adjustment disorder with mixed anxiety and depressed mood. He concluded, first, that the respondent was likely to remain prone to anxiety and depression as long as she suffered from chronic pain and, secondly, that approximately two-thirds of her psychiatric impairment was of secondary origin. Dr Weissman diagnosed the respondent as suffering from a moderate chronic adjustment disorder with depressed and anxious mood which was secondary to her accident-related pain, and that this condition was at least equal to, and possibly outweighed, the PTSD and other symptoms that were directly due to the circumstances of the accident. He assessed the respondent’s psychiatric prognosis as ‘fair’.
The psychiatric evidence clearly established that the respondent's low back pain contributed to the onset of an adjustment disorder with depressed and anxious mood. Although the physical consequences of the impairment of the respondent’s lumbosacral spine were, on their own, serious – in the sense of being ‘very considerable’ – the seriousness of that impairment is placed beyond doubt when account is taken of the psychological sequelae of the impairment.
Conclusion
For the above reasons, I would dismiss the application for leave to appeal.
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