Transport Accident Commission v Zepic

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0049
TRANSPORT ACCIDENT COMMISSION	Applicant
v
ZARIF ZEPIC	Respondent

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JUDGES	MAXWELL P, TATE JA and GARDE AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 May 2013
DATE OF JUDGMENT	4 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 232
JUDGMENT APPEALED FROM	Zepic v Transport Accident Commission [2012] VCC 305 (Judge Saccardo)

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ACCIDENT COMPENSATION – Transport accident – Grant of leave to bring common law proceedings – Impairment of cervical spine and lumbar spine – Whether impairment of single ‘body function’ – Whether ‘serious injury’ – ‘Pain and suffering consequences’ of injury – Whether ‘at least … very considerable and certainly more than significant or marked’ – Disabling effect of pain – Multiple contributors – Pre-existing injury – Subsequent motor vehicle accident – Claimant’s evidence unreliable – Psychological overlay – Need to ‘disentangle’ – Whether decision of primary judge ‘plainly wrong or wholly erroneous’ – Conclusion not open – Appeal allowed – Application for leave refused – Transport Accident Act 1986 (Vic) s 93.

WORDS AND PHRASES – ‘body function’, ‘impairment of a body function’.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr R P Gorton QC with Ms R L Kaye	Wisewould Mahony
For the Respondent	Mr S A O’Meara SC with Ms A M Malpas	Victorian Compensation Lawyers

MAXWELL P:

Summary

The respondent, Mr Zepic, was injured in a motor vehicle accident in March 2008 (the ‘2008 accident’). He was then 70 years of age. He subsequently applied, under s 93(4)(d) of the Transport Accident Act 1986 (Vic), for leave to bring an action at common law to recover damages for the injuries he had sustained.

The application relied on three ‘predominant injuries’ — being injuries respectively to his cervical spine (‘CS’), lumbar spine (‘LS’) and ‘right upper extremity, in particular the right shoulder’.[1] The injuries to the CS and to the right shoulder were said to be ‘new’ injuries; the injury to the LS was said to be an ‘aggravation’ injury, that is, an aggravation of an existing injury.
[1]Mr Zepic’s ‘Statement by the applicant in support of serious injury certificate’ (‘Statement’) also relied on injuries to his left shoulder and to both legs.

Mr Zepic had to establish that, as a result of the 2008 accident, he had suffered ‘serious long-term impairment of a body function’.[2] Mr Zepic contended — and the judge accepted — that the spine was a single body function, so that the pain and suffering consequences of the CS injury and the LS injury could be aggregated.
[2]Transport Accident Act 1986 (Vic) s 93(17)(a).

The question for determination was whether the pain and suffering consequences of the impairment of spinal function satisfied the test for serious injury. A number of particular features of the case combined to make the judge’s task exceptionally difficult. Specifically:

(a) his Honour found that Mr Zepic was an unreliable witness, who had exaggerated the consequences of the 2008 accident both under cross-examination and in what he had told a number of medical practitioners;[3]
[3]Zepic v Transport Accident Commission [2012] VCC 305, [47] (‘Reasons’).

(b) because the LS injury was said to be an aggravation of an existing back injury which was symptomatic immediately before the accident, his Honour had to decide whether and to what extent any post-accident pain and suffering in the LS region (including referred pain in the legs) was attributable to an aggravation of the earlier injury;[4]
[4]Petkovski v Galletti [1994] 1 VR 436 (‘Petkovski’); De Agostino v Leatch [2011] VSCA 249.

(c) Mr Zepic had been involved in a subsequent motor vehicle accident, some two-and-a-half years later (the ‘2010 accident’), and any contribution of that accident to his pain and disability had also to be excluded. (As will appear, only three of the medical practitioners whose reports were in evidence had seen Mr Zepic in the period between the two accidents, and several of those who saw him after the 2010 accident were not made aware of it);

(d) the 2008 accident also had significant psychological consequences for Mr Zepic. (His Statement relied on an injury described as follows: ‘Mental and/or behavioural disturbance or disorder including stress, anxiety and depression’. The claim of direct psychiatric injury was not pressed.) The assessment of his impairment had to exclude ‘any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to’ his physical injuries;[5] and

(e) the assessment had to exclude any pain and disability referable to ageing, including natural degeneration of the spine.

[5]Transport Accident Act 1986 (Vic) s 46B; Transport Accident Commission v Lincoln (2003) 6 VR 199.

In those circumstances, the onus was on Mr Zepic to ‘disentangle’ the various contributors to his pain and disability,[6] in order to:
[6]See Jatayilakev Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Meadows v Lichmore Pty Ltd [2013] VSCA 201, [19].

(a) identify the physical injuries sustained in the 2008 accident and the impairment of spinal function attributable to those injuries;

(b) identify the pain and suffering consequences attributable to that impairment; and

(c) establish that those consequences were ‘at least … very considerable and certainly more than significant or marked’.[7]

[7]Humphries v Poljak [1992] 2 VR 129, 140 (‘Poljak’).

Self-evidently, Mr Zepic faced substantial forensic obstacles in seeking to discharge that onus. First, his own oral evidence was disbelieved. Secondly, and no less importantly, the probative force of the medical opinions on which he relied was significantly reduced on account of the judge’s finding that he had given exaggerated accounts to doctors. Thirdly, his failure to inform at least some of the medical practitioners of his pre-accident condition and/or of the 2010 accident made the necessary disentangling of consequences all the more difficult.

The judge concluded:

(a) in relation to the LS injury — that the 2008 accident was a ‘significant contributor’ (and a greater contributor than the 2010 accident) to Mr Zepic’s LS symptoms, and the incapacity associated with those symptoms; and

(b) in relation to the CS injury — that the 2008 accident had aggravated a pre-existing degenerative condition in his CS, so as to cause pain and restriction of movement in the CS and right shoulder.[8]

[8]Reasons, [53]–[55].

In his Honour’s view, there was no separate injury to the right shoulder. It was the CS injury which ‘materially contribute[d]’ to the pain and restriction of movement in the right shoulder.[9] That being so, the pain and suffering consequences of all three ‘predominant injuries’ could be aggregated for the purposes of the application.
[9]Ibid [58].

When that was done, his Honour concluded, the pain and suffering consequences of the impairment of the function of Mr Zepic’s spine could fairly be described as being ‘at least … very considerable and certainly more than significant or marked’. Accordingly, his Honour gave Mr Zepic leave to bring common law proceedings.[10]
[10]Ibid [63].

The Transport Accident Commission (the ‘Commission’) seeks leave to appeal against that decision.[11] For reasons which follow, I would uphold those grounds of appeal which contend that:
[11]Appeals from decisions of this kind under the Transport Accident Act 1986 (Vic) are by leave only: Cowden v Transport Accident Commission (2003) 39 MVR 442. The application for leave in this case was referred for consideration by a bench of three.

(a) having found that Mr Zepic’s evidence under cross-examination was unreliable, his Honour erred in treating his affidavit evidence as reliable;

(b) his Honour failed to carry out the requisite analysis of the effect of the aggravation of the LS injury, which entailed that he consider what the evidence disclosed as to the pre-accident impairment of the LS, and then compare it to the post-accident impairment of the LS. On analysis, the evidence does not support a finding of aggravation;

(c) his Honour impermissibly took into account pain and suffering consequences for Mr Zepic which were psychologically rather than physically driven; and

(d) the decision was ‘plainly wrong or wholly erroneous’, that is, the conclusion arrived at was not open on the evidence.[12]

[12]Mobilio v Balliotis [1998] 3 VR 833, 835, 841, 853–4, 858–9. See also Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511, 516 [15] (‘Mediterranean Shoes’).

I would reject, however, the Commission’s contention that the lumbar spine and the cervical spine are two separate body functions and that it was not, therefore, open to the judge to aggregate the consequences of the separate injuries to the LS and the CS. The contrary view has stood, largely unchallenged, for almost 20 years and this is the first occasion on which the issue has been raised for appellate consideration. It is much too late, in my view, for the settled law to be disturbed, even if there were grounds to intervene (as to which I express no concluded view). My conclusion in that respect does not affect the outcome, however.

There should be a grant of leave to appeal. The appeal should be upheld and, in lieu of the judge’s order, there should be an order refusing Mr Zepic’s application.

As will be apparent from the length of these reasons, it has been necessary to review the evidence in its entirety in order to evaluate the Commission’s arguments. In order to explain my conclusions, I have also had to set out a great deal of that evidence. In both respects, this case illustrates just how burdensome serious injury applications can be for trial judges and — on appeal — for this Court. I return to this issue below.[13]
[13]See [140]–[147] below.

A. WHAT THE MEDICAL EVIDENCE SHOWED
Mr Zepic’s pre-accident condition

Mr Zepic had been involved in an earlier motor vehicle accident, in 1971, while he was working in Western Australia. Mr Zepic injured his right wrist and his lower back in that accident. He had two operations on his wrist, in the period 1971–72, but it was not until October 1990 that he had surgery on his lower back. A laminectomy was performed at that time. According to Mr Zepic’s evidence under cross-examination, that operation became necessary because his lower back was continuing to cause problems ‘from the time of the accident up until the operation’. He had experienced pain in his back and in his right leg. There was pain in the left leg also, but the pain was worse on the right. After the laminectomy, Mr Zepic continued to have some pain in both legs ‘but it was not so bad and [not] so severe’.

Mr Zepic confirmed under cross-examination that the injuries he had sustained in the 1971 accident had prevented him from ever working again. That is, the injuries from that accident had left him unfit for work for the next 30 years. He was at first on sickness benefit, for five or six years, and thereafter until 65 he was on a disability pension. Mr Zepic turned 65 in May 2002. He had been required, until that time, to supply medical certificates to show that he was not fit to work.

Mr Zepic’s general practitioner, Dr Dillane, confirmed (by reference to his clinical notes) that he first saw Mr Zepic in December 1999. At that time, Mr Zepic told him that he had had sciatic pain, particularly in the right leg. He said that he had been told that he had a disc prolapse but that no surgery was warranted. It was not until some years later that Dr Dillane learned that Mr Zepic had in fact had back surgery.

At the time Mr Zepic first presented to Dr Dillane in 1999, he was complaining of intermittent pain in the left leg. More specifically, the complaint was of ‘occasional left back and posterior thigh pain on the left, and some lateral leg pain as well on the left’. In August 2000, Mr Zepic again presented with complaints of discomfort in his legs. Because Dr Dillane did not consider that the symptoms suggested an orthopaedic problem, he referred him to a vascular surgeon, Mr Vidovich.

Mr Vidovich’s opinion was that there was no sign of any significant vascular disease. He suspected that Mr Zepic’s lower limb symptoms were ‘related to his long standing back problems’. According to Mr Vidovich’s report, Mr Zepic had described ‘a six to eight month history of discomfort over the anterolateral aspects of both legs after walking long distances, usually between 500 and 1000 metres’. Mr Vidovich recommended that a CT scan of the LS be performed, in order to determine whether there was a lumbar canal stenosis.

On 16 October 2001, Mr Zepic presented to Dr Dillane with right-sided sciatica. He was prescribed an anti-inflammatory agent which had helped him in the past. The next relevant attendance on Dr Dillane was on 16 April 2003, when Mr Zepic presented with paraspinal pain, that is, pain in the muscles down the side of the spine on the right side.

On 26 February 2008, a month before the 2008 accident, Mr Zepic attended Dr Dillane once again with right-sided sciatic pain and back pain. On that occasion, a physical examination showed that Mr Zepic:

(a) had a positive stretch test on the right side, which was ‘a clinical sign consistent with sciatic nerve compression’;

(b) had minimal flexion of the lumbosacral spine; and

(c) was ‘reasonably restricted’ in his presentation.

On the basis of the examination, and the ‘significant sciatic symptoms and signs’ which he observed, Dr Dillane thought it was appropriate to arrange for a CT scan of the lumbosacral spine. That had not occurred when the 2008 accident happened. There was, however, one further pre-accident attendance, on 11 March 2008. On that occasion, Mr Zepic told Dr Dillane that his back ‘felt better’ after two days on the medication (Mobic) which had been prescribed for him.

The evidence of Mr Zepic’s presentation to Dr Dillane on 26 February 2008 was of critical importance, in my view. It showed that, shortly before the accident, Mr Zepic had been having both lower back pain and ‘significant’ sciatic nerve pain in his right leg. The clinical signs suggested that the cause was sciatic nerve compression. Moreover, Mr Zepic had ‘minimal flexion’ of his lower back, and was ‘reasonably restricted’. So marked were the symptoms that Dr Dillane recommended a CT scan of the LS, a step he said he would ordinarily be slow to take in such a case.

In short, in the immediate pre-accident period Mr Zepic had a significant degree of pain and disability associated with his lower back and right leg. This was directly relevant to the evaluation of his post-accident presentation.[14] As will appear, Mr Zepic complained later in 2008 of ‘pains down both legs’.
[14]See [113]-[114] below.

His pre-accident disability was independently confirmed by the evidence of his son, Enes Zepic, who agreed that his father had always had ‘some restrictions because of injuries to his back’. Because of those previous injuries, the son said, he and his brother had been expected to help with the housework and shopping, and to do half of the ‘outside work’. (This is a topic to which I shall return.[15])
[15]See [72] below.

At the same time, there was nothing in Dr Dillane’s evidence to suggest that Mr Zepic had made any complaint of neck or shoulder pain before the 2008 accident. A radiological report obtained shortly afterwards, on 2 April 2008, stated as follows:

Cervical Spine
Disc space height appears adequate throughout however prominent degenerative changes have developed in the apophyseal joints particularly in the upper cervical levels.
Thoracic Spine
The vertebral bodies are of normal height throughout. Disc space height is normal with minimal osteophytic lipping.

Likewise, Mr Zepic had not presented to Dr Dillane, in the pre-accident period, with any complaint about his wrist. Nor was there any suggestion that his wrist was affected by the 2008 accident. In an October 2011 report for Mr Zepic’s solicitors, however, Dr Blombery noted that Mr Zepic had a restricted range of movement in the right wrist ‘because of the previous injury’. Under cross-examination, Dr Blombery confirmed that the loss of movement in the wrist was ‘very significant’ and would inevitably have made his right arm less useful for manual work.

Mr Zepic’s condition between the 2008 accident and the 2010 accident

The accident occurred on 27 March 2008. On 31 March 2008, Mr Zepic saw Dr Dillane. According to the notes, Mr Zepic described lumbar pain and ‘right trapezius pain’ from the seat belt. The latter, according to Dr Dillane, was pain related to the right shoulder and to the neck. Dr Dillane reviewed Mr Zepic on 2 April 2008, at which time Mr Zepic reported ‘diffused pain’ in both shoulders. He was also tender in the thoracic spine and the ‘chest spine’. As a result, Dr Dillane ordered X-rays of his neck, chest and legs. The X-ray of the CS, referred to earlier, showed long-standing degenerative changes.

Subsequent attendances were recorded by Dr Dillane as follows:

·24 April 2008: ‘Still in pain. Headache. Both shoulders. [Right] sciatica’;
·5 June: ‘[B]ilateral shoulder pain’;
·27 June: ‘Pain better [with] Endone. Now solely [right] side’;
·8 July: ‘Short pains all over the back at various locations’;
·31 July: ‘Has developed [right] sciatica’;
·21 August: ‘Still in pain with some movements. [On examination], no focal tenderness’;
·4 September: ‘Continuing pain, [right] trapezius and shoulder and [right] lumbar especially’; and
·11 September: ‘Still in pain’.

Dr Steven Jensen, a specialist in musculoskeletal pain medicine, saw Mr Zepic in September 2008, on referral from Dr Dillane. Dr Jensen’s report of August 2010 said:

Since the accident [Mr Zepic] has suffered from right-sided neck pain radiating through to the suprascapular region and also out to the deltoid.

There was similar but far less prominent pain on the left side. He said his neck had been stiff to move since the accident. It was not improved at all.

I note that the first time Dr Dillane recorded a specific complaint about neck pain was on 7 March 2009, almost a year after the 2008 accident. On that occasion, Mr Zepic presented with a complaint of ‘three days of neck pain’ and a restricted range of movement.

Mr Zepic described the pain to Dr Jensen as ‘dull and heavy’ and reported its severity as being between five and six out of 10 on a visual analogue pain scale. Mr Zepic told Dr Jensen that he had had lumbar surgery many years earlier and that he had had ‘minimal pain until two or three weeks before seeing [him]. Since then he had suffered pain through his right buttock’.

Dr Jensen described Mr Zepic’s presentation in these terms:

There were significant signs of abnormal illness behaviour with much ‘oohing and aahing’ and withdrawing on my attempts to clinically assess his physical status.
… It was difficult to assess passive range of motion due to voluntary resistance, but with distraction I perceive there was a full range of motion of both shoulders. Impingement testing for both shoulders was negative for intrinsic shoulder pathology.
… There was voluntary resistance on attempts to assess his hip movements but I perceived again that with distraction there was a full range. In the lumbar region there was tenderness through the lower lumbar levels extending to the upper sacrum.

Dr Jensen expressed his opinion as follows:

I was of the opinion that this man was suffering from mechanical cervical spine dysfunction on a background of multi-level degeneration with referred pain into both shoulder girdles.

I was of the further view that he did not have any associated intrinsic shoulder pathology.
I was also of the opinion that there was evidence of significant ‘yellow flags’ as evidenced by his abnormal illness behaviour. This is usually indicative of significant psychosocial distress. I could not be sure whether this was a conscious or subconscious attempt to amplify the extent of his injuries and subsequent degree of disability.
I note his past history of low back problems and the recent onset of lumbar spine problems in the previous two to three weeks prior to initially seeing me; ie some considerable time after the motor vehicle accident. I concluded that his lumbar spine problems were not in any way contributed to by the motor vehicle accident on March, 2008.

In answer to a question whether there had been any aggravation of a pre-existing injury, Dr Jensen said:

One has to accept his statement that he did not suffer any neck problems prior to the accident. Therefore, he did not have any symptomatic medical condition of the cervical spine prior to the motor vehicle accident.
I note the widespread degenerative changes noted on his imaging study. These degenerative changes would have been present to some degree at the time of his accident. However, the medical literature does not support the concept that degenerative changes per se are necessarily symptomatic or will become symptomatic. Therefore, I must conclude that the accident did not aggravate any pre-existing condition of the neck.

The only other medical specialist to see Mr Zepic in the period between the 2008 accident and the 2010 accident was Mr Kenneth Myers, surgeon. (Mr Zepic did see Dr Albert Kaplan, a psychiatrist, shortly before the 2010 accident. Reference will be made to that report below.) Mr Myers saw Mr Zepic in August 2010. According to the report from Mr Myers to Mr Zepic’s solicitors, Mr Zepic told him that:

[B]y 1973 he was having severe disability in the low back and underwent surgical laminectomy and discectomy at the Dandenong Hospital in 1973. He has had no further surgery to the back since then. He states that he has had pains in both legs ever since.

The report recorded Mr Zepic’s statement that he had ‘developed pains in the neck, low back, both arms and both legs, particularly on the right’. The report continued:

He was quite adamant that ‘I have had no pains in the low back before or since the accident in 2008’. He told me that as a result of disability in the back he has had ‘pains down both legs – less before and now twice as bad since the accident in 2008’. He states that the pain extends down the back of each thigh and calf, sometimes into the feet. These pains come on if he has been sitting for any length of time or walking too far. They are worse on the right side and ‘not much on the left’. I asked if there were any other problems relating to the legs and he told me ‘no, it is just from the back’.
I asked about disability in the arms and he told me that ‘I cannot lift the arms because of pains in the shoulder on each side, worse on the right’.
He states that he has constant pain in the neck, associated with severe headaches and he denies any disability in relation to the neck prior to the accident in 2008.

The relevant part of Mr Myers’ opinion was in these terms:

Injuries:
·Probable aggravation of pre-existing degenerative intervertebral disc disease in the lumbar spine;
·probable aggravation of pre-existing degenerative intervertebral disc disease in the cervical spine;
·probable bilateral rotator cuff injuries.

Aetiology of injuries:
I believe that at least 50% of any referred pain to the lower extremities from the back results from the accident in 2008. It would appear that all disability in relation to the neck, including headaches, and to both shoulders results from the accident in 2008.

Under cross-examination, Mr Myers confirmed that he had not been aware of Mr Zepic’s pre-accident presentation to Dr Dillane. He said that the complaints made on that occasion, of back pain and right-sided sciatica, would have been relevant to his 2010 assessment. He said Mr Zepic had directed attention to his neck and shoulders. According to Mr Myers, Mr Zepic ‘took pains to say’ that his back had not been affected by the 2008 accident.

Mr Zepic continued to attend Dr Dillane intermittently in the period from March 2009 up to the 2010 accident. On 14 April 2009, according to his notes, Dr Dillane telephoned the Commission to clarify that Mr Zepic’s pain was ‘in neck and shoulders’. The notes record subsequent relevant attendances in these terms:

·5 May 2009: ‘Pain still across the shoulders and up to occiput. Physio makes it worse. [On examination] neck range of movement full. Tender trapezius. Left greater than right’;
·21 May 2009: ‘One week of headache and dizziness’;
·June 2009: ‘Still has pain. Did not find Tramal or Panadol Osteo helps. Dr Jensen has offered injection facet joint. But does not want this’;
·23 July 2009: ‘Dizziness. … Headaches have never ceased’;
·10 December 2009: ‘Back actively painful but stoic’;
·April 2010: ‘ … Neck still symptomatic’;
·11 August 2010: ‘Now has lower abdominal pain’;
·14 August 2010: ‘Now has generalised pain. Looks very down. Discussed depression. He tends to agree it is a major issue’;
·26 August 2010: ‘Continuing severe daily headaches. Has never had brain imaging’;
·1 September 2010: ‘CT [of brain] normal for age. … Continuing worry re Mrs Zepic who won’t take [medication] or see anyone. Up at night saying they have to go somewhere. Family do not want hospital. Provided a note for [son] to call me.’

As the notes record, Mr Zepic’s continuing headaches prompted Dr Dillane to arrange for a CT scan of his brain. The results were normal.

Dr Dillane was asked about the presentation on 14 August 2010 with ‘generalised pain’. He confirmed that, on the basis of what he had recorded, this did not appear to be localised pain but rather pain ‘over the whole body’. He confirmed that both the complaint of generalised pain and the discussion about Mr Zepic’s depression took place in the context of some ‘acute psychosocial stresses going on in the family’, particularly because of his wife’s significant mental health problems. Dr Dillane agreed that Mrs Zepic’s problems had a great impact on Mr Zepic.

Mr Zepic’s condition after the 2010 accident

Mr Zepic was involved in another motor vehicle accident on 15 August 2010. The accident occurred at 8.30am. Later that day, Mr Zepic attended Dr Dillane. He said that his van had been hit from behind whilst going slowly. Mr Zepic reported ‘severe back pain’. Dr Dillane observed marked spasm of the muscle on the right side of his back. Mr Zepic was also tender in the upper lumbar spine.

Dr Dillane reviewed Mr Zepic the following day. He was still in pain, although there was less spasm. Mr Zepic was still tender in the lumbar area, but the site of the pain was lower down. There was a further review on 19 October, when Mr Zepic’s pain was a little better. He was still ‘very tender mid-lumbar’, and Dr Dillane prescribed medication to reduce spasm. In cross-examination, Dr Dillane agreed that the 2010 accident had ‘[shaken] things up’ for Mr Zepic. The fact that Mr Zepic had seen him four times in the space of a week indicated that things were ‘pretty intense’ for Mr Zepic in the immediate aftermath of the accident. Dr Dillane recorded in his notes, ‘May need MRI’.

On 9 December 2010, Dr Dillane recorded, ‘Neck still painful. … Mrs Zepic very disturbed — disposed of script’. On 12 January 2011, Mr Zepic presented with left-sided neck pain. The notes also recorded, ‘Back pain persists’. Importantly, Dr Dillane confirmed that, in his opinion, the original back problems commencing in 1971, the 2008 accident and the 2010 accident had all contributed to the state of Mr Zepic’s lower back. As to the neck, however, Mr Dillane considered that the 2008 accident had contributed to Mr Zepic’s neck problem, as he had no record of neck or shoulder problems before that. Dr Dillane confirmed that Mr Zepic had no ongoing problems in his left shoulder.

In Dr Dillane’s opinion, Mr Zepic’s difficulties with his everyday living were to be attributed to a combination of all of his physical conditions — back, neck and right shoulder. As far as the back problem was concerned, Dr Dillane considered that it was not possible to attribute it to one specific event.

In July 2011, Mr Zepic had an MRI of his CS, which showed multi-level degeneration. He also had an MRI of his right shoulder, which showed degeneration, arthritis and joint damage. On 26 September 2011, Mr Zepic again saw Mr Myers, whose report to Mr Zepic’s solicitors stated:

PROGRESS
He told me that in the 18 months or so since I last saw him his condition has worsened, particularly in relation to the right shoulder. He has had further investigations of the shoulder and spine. He continues under the care of his general practitioner. He has not seen any specialists for treatment since I last saw him. There has been no further treatment by any form of intervention since then. He takes Panamax for pain.
Symptoms
He states that his worst problem is constant pain in the right shoulder which keeps him awake at night. He can only sleep on the left side. He has less severe pain in the left shoulder which is not constant. He has a constant pain in the neck and low back.
EXAMINATION
There is approximately 50% restriction in the range of movements of the cervical spine and lumbar spine, apparently associated with pain. There were restricted movements of both shoulders as shown in the attachments, apparently associated with pain on each side.
INVESTIGATIONS
Ultrasound and x-ray right shoulder – 19 July 2011
Damage to the rotator cuff muscles and bursitis.
MRI cervical spine – 26 July 2011
Multi-level degenerative intervertebral disc disease and spondylitis.
MRI right shoulder – 26 July 2011
Degenerative changes in the rotator cuff muscles and arthritis in the acromioclavicular joint with damage to the shoulder joint itself.
…
OPINION
In answer to your specific headings:
Injuries:
- Bilateral rotator cuff injuries to the shoulder.
-Degenerative intervertebral disc disease in the cervical spine and lumbar spine.

Aetiology of injuries:
Causation of or aggravation of pre-existing degenerative disease in both shoulders, neck and back.
…
The physical effects of our client’s serious injuries upon their ability to engage in social, recreational or domestic activities:
These will be restricted.
Your prognosis for our client’s transport-related injuries and the continuing effects of same upon their capacity for work or interference with their enjoyment of life:
The condition will progressively worsen and markedly interfere with work and enjoyment of life.
A confirmation that your expressed findings are made in consideration of our client’s physical injury considered separately from any psychological contribution to their pain and suffering and loss of earning capacity:
I consider that his disability results from physical injuries quite separate from any secondary psychological contribution.

In a subsequent report of December 2011, Mr Myers said that, but for the 2008 accident, Mr Zepic would not have had symptoms in relation to:

(a) the LS;

(b) the CS;

(c) the right shoulder; or

(d) the left shoulder,

that would be ‘as symptomatic or incapacitating as at present’.

Under cross-examination, however, Mr Myers said that at the time he expressed these opinions, he knew nothing about the 2010 accident. After being referred to Dr Dillane’s records of Mr Zepic’s presentation with lower back pain after the 2010 accident, Mr Myers confirmed that that information would ‘of course’ have affected his view about the contribution of the 2008 accident to Mr Zepic’s condition. Specifically, the information would have prompted him to reduce what he had said in his 2010 report was a 50 per cent contribution of the 2008 accident to the back problem and associated leg pain.[16] Mr Myers at first said it would be ‘very difficult’ to quantify the degree of reduction, but when pressed said:

From what you’re describing it would seem as if the 2010 accident was of at least the same consequence as the 2008 accident and probably of the same consequence as his pre-existing problems. Split it into a third, if you wish.

[16]See [36] above.

Over the period 6 October — 3 November 2011, Mr Zepic had medico-legal attendances with four different practitioners, none of whom he had seen previously. The first was Dr Peter Blombery, consultant physician. By this time, some three-and-a-half years had elapsed since the 2008 accident and almost a year since the 2010 accident. Dr Blombery confirmed under cross-examination that Mr Zepic made no mention of the 2010 accident. According to Dr Blombery’s report, following the 2008 accident Mr Zepic had ‘continued to have pain in his shoulder, neck, right hip and leg’. According to Dr Blombery’s notes (as distinct from his report), Mr Zepic had described his condition in these terms:

Currently pain in the neck, right shoulder girdle, low back and right hip. Sleeps poorly. Has to lie on right side. Most pain in right leg, back of thigh. Been depressed. Constant headaches.

On examination, Dr Blombery said, Mr Zepic was ‘[g]enerally tender’ over the LS but there was no discomfort or tenderness at the CS. Dr Blombery had not been made aware that, immediately prior to the 2008 accident, Mr Zepic had been seeing Dr Dillane for low back problems. Asked about the statement in his report that the LS was previously asymptomatic, Dr Blombery said that he had been told by Mr Zepic that there had been no symptoms after the laminectomy. Dr Blombery confirmed that he had not asked Mr Zepic about the nature of his leg pain. Nor, in relation to the back pain, had he asked Mr Zepic about either its frequency or its severity.

Dr Blombery’s opinion was in these terms:

Mr Zepic was involved in a motor vehicle accident on 27^th March, 2008 when he sustained injuries to his neck, back, right shoulder and right leg. A number of these injuries were in the nature of whiplash injuries which is an organic disorder of pain nerve pathways triggered by the force of the impact. It is likely also that previously asymptomatic degenerative changes in the cervical spine as well as in the lumbar spine were rendered symptomatic by the force of the accident. The pain in his right leg appears to be derived from the lumbar spine with radiation of pain although there is no direct evidence of nerve root compression per se.
It is my opinion that in the legs, there is a component of a pain syndrome present where there is non-specific sensitisation of pain nerve pathways, both

in the periphery as well as in the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful.
He had a previous accident but told me that he had recovered to a significant extent after that accident. It was my opinion that his current injuries account for 70% or more of the ongoing back pain and leg pain and account for entirely the right shoulder pain.

Subsequently, in response to questions from Mr Zepic’s solicitors, Dr Blombery agreed that, in the absence of the 2008 accident, each of Mr Zepic’s:

(a)LS injury;
(b)CS injury;
(c)right shoulder injury; and
(d)left shoulder injury,

would not be in the symptomatic and incapacitating state it presently is.

Under cross-examination, Dr Blombery was asked to explain his affirmative answer to the last question, given that Mr Zepic had not given him any history of a left shoulder injury as a result of the 2008 accident. Dr Blombery agreed that his answer was wrong. The only explanation he could give was that ‘perhaps I was on auto pilot mode at that stage’.

On 17 October 2011, Mr Zepic saw Dr Tony Kostos, rheumatologist, at the request of the Commission. Dr Kostos relevantly reported as follows:

3.0      MEDICAL HISTORY
…
3.3      Current Complaints:
His condition is “going bad every day”.
He now complains of constant pain on the entire right side of his body.
Pain is a problem at night and his sleep patterns are poor. He did not understand the question regarding any aggravating factors occurring during the day.
…
3.5      Past History:
He denied any previous musculoskeletal problems.
However, according to your file, he had surgery on his lower back. When I asked the Claimant about this he did recall having surgery on his lower back many years ago following a motor vehicle accident. Following surgery he had ongoing back pain and said he was never able to work again.
Your documentation also mentions previous problems with his neck but he cannot recall these.
…
6.        ANALYSIS OF FINDINGS
6.1      Diagnosis:
This man certainly has a stiff spine and elements of a chronic pain syndrome.
I suspect that he has longstanding problems. It is difficult to know whether his condition has actually been significantly aggravated by the motor vehicle accident or because there are significant discrepancies and inconsistencies on physical examination, together with non-organic signs as described by Waddell.
Therefore I would suggest the only diagnosis that can be made is that the Claimant has a chronic pain syndrome.
He clearly has had pre-existing problems but his recollection is poor and obviously the situation was not helped by the absence of an interpreter today.
6.2      Prognosis:
He claims to be an invalid and to need help with dressing. Certainly on physical grounds I am unable to verify that this is actually the case. Apparently he sits watching television all day.
He will not suffer any harm by engaging in daily living activities.
6.3      Discussion:
I would find it difficult to suggest that this man has any localisable physical injury as a result of the motor vehicle accident. He has generalised pain with widespread tenderness and, as I have noted above, significant non-physical findings are present.
These findings were correctly identified by Dr S Jensen in his report dated the 26^th August 2010 when he noted significant yellow flags which certainly suggested a non-physical component.
Dr Jensen goes on to state that if this man has not suffered neck problems before, it can be assumed that his neck problems occurred as a result of the motor vehicle accident. However, as I have stated above, this is very difficult to determine when a chronic pain syndrome is present.
You have also enclosed a report from Dr P Dillane dated the 19^th March 2011. In this report Dr Dillane stated that this man has suffered an “exacerbation of degenerative spinal disease and left him with chronic pain in shoulders, neck and back with intermittent headache”. Unfortunately this is not an evidence-based diagnosis and I don’t believe that sufficient weight is being given to the non-physical issues that Dr Jensen and I have identified.
The only area where he does have some objective findings is with his right shoulder where he does have a decrease in glenohumeral movements. This either relates to glenohumeral joint osteoarthritis or adhesive capsulitis, neither of which would be related to the accident.
I don’t believe this man requires any treatment, other than to be reassured that he is not injured and be encouraged to pursue an exercise program. However I suspect that he is so entrenched in his invalid role that he is untreatable.

On 27 October 2011, Mr Zepic saw Mr Michael Dooley, orthopaedic surgeon, at the request of the solicitors for the Commission. According to Mr Dooley’s report, Mr Zepic described ‘ongoing neck pain and right shoulder girdle pain’. Mr Zepic also said that, as a result of the back injury sustained in the 1971 motor accident, he had ‘ongoing low back pain and was not able to continue working. As a consequence of this he has difficulty sitting for any length of time. He said that he does try to walk regularly but that at times walking aggravates his back’.

Under the heading ‘Diagnosis, Clinical Impression and Opinion’, Mr Dooley said:

I believe that in the motor vehicle accident Mr Zepic has sustained a soft tissue injury to the cervical spine region. This will have involved musculoligamentous damage and some aggravation of naturally occurring and age related degenerative disc disease of the cervical spine. Such an injury would account for intermittent cervical spine pain and pain that was referred into the shoulder girdle area. I do not believe that Mr Zepic has sustained a specific injury to the right shoulder in relation to either the glenohumeral joint or rotator cuff area. Overall, the constancy and intensity of Mr Zepic’s ongoing pain are greater than I would expect to see. His restriction of right shoulder girdle motion and his sensitivity to examination in this regard in my view relate to a psychological reaction to injury and/or pain rather than to organic pathology. From an orthopaedic viewpoint, no specific treatment is required. In general Mr Zepic would be advised to try to remain generally active and to undertake regular exercise. He has past history of an injury to his lumbar spine that has prevented him from carrying out a lot of activity in the past. I do not believe that he requires regular ongoing formal conservative treatment. There would be no indication to consider operative intervention in his management.[17]

[17]Emphasis added.

About a week later, on 3 November 2011, Mr Zepic saw Mr Kenneth Brearley, surgeon, at the request of his own solicitors. The relevant parts of Mr Brearley’s report were in these terms:

CURRENT STATUS
He says his main problem relates to his right shoulder and lower back.
He has residual stiffness of the right shoulder and pain on repetitive use of the right arm. He has pain in the shoulder and arm on attempted lifting and work above shoulder height.
He has constant pain in the lower back which is made worse by bending and stooping and standing and walking for more than fifteen minutes or so. He says he has pain in the right leg down the back of the thigh and calf to the foot which is made worse after long sitting and much standing and walking.
He says that he does have some neck pain intermittently and he is aware of limitation in movement of the neck.
…
PAST MEDICAL HISTORY
He says that in 1971 he was a pedestrian struck by a car in Western Australia and he suffered a complex fracture of the right forearm and an injury to his lower back.
He says he had three operations on the right arm, two in Western Australia and the final one in Geelong. He had ongoing serious problems with the right arm thereafter.
His lower back was also operated upon he says in Dandenong. He was told he had a seriously injured intervertebral disc with compression of the nerve. He says his back did improve following the operation however he was unable to return to any form of work after the accident and he was subsequently granted the disability support pension before going on to the aged pension.
…
OPINION
In reply to your particular questions:
1. Injuries:
In the motor vehicle accident of 27^th March 2008, Zarif Zepic suffered the following:
i)Lower back injury comprising aggravation of pre-existing degenerative changes in the lumbosacral spine and aggravation of right-sided radiculopathy.
ii)Aggravation of pre-existing degenerative changes in the cervical spine with resulting mechanical neck pain.
iii)Injury to the right rotator cuff with the development of chronic subacromial bursitis causing severe persistent shoulder stiffness and pain.
iv)Injury to the left rotator cuff. He has no significant symptoms from this injury and he has a full range of movements on examination.

2. Aetiology of injuries:
The right shoulder injury was caused directly by the motor vehicle accident of 27^th March 2008. He had extensive bruising around the shoulder post-accident and he has ongoing gross stiffness and limitation in use of the right arm. The neck injury was also the result of that accident, there having been no symptoms there previously.
His low back injury and right-sided leg pain is the result of aggravation in the subject accident of a previous injury which included operative treatment on the lumbar spine. Prior to the motor vehicle accident of 27^th March 2008 he had however been having no significant problems with the back or right leg.

Mr Brearley subsequently responded to the same follow-up questions as had been sent to other practitioners. He was asked whether he agreed that each of the claimed injuries ‘would not be in the symptomatic and incapacitating state it is presently in the absence of, or but for’ the 2008 accident. In relation to the LS injury, Mr Brearley said:

The high probability is that his lower back was significantly injured in the motor vehicle accident of 27^th March 2008. He had however been involved in a previous motor vehicle accident in 1971 in which he suffered injury to the lumbar spine with ongoing pain and sciatica and he was operated upon for this condition. He did not have a very satisfactory result and he was not able to return to any form of work. His symptoms apparently were not severe however after the accident of 27^th March 2008 he had seriously increased low back pain and disability. This would not have been the case but for the subject accident of March 2008.

In relation to the CS injury, Mr Brearley said:

In the aforementioned accident of 1971 he did not suffer any neck injury as far as is known and accordingly his ongoing neck pain and resultant incapacity would not be present but for the transport accident of 27^th March 2008.

In relation to the right shoulder injury:
He did suffer an injury to the right forearm in the accident of 1971 and he subsequently had three operations on the arm. There is no reference to any right shoulder injury resulting from that accident but he certainly does have great stiffness and disability of the right shoulder and arm as a result of the accident of March 2008. This presumably would not have been the case had it not been for the latter accident.

Finally, in relation to the left shoulder injury:
There has been no serious injury to the left shoulder nor any significant ongoing incapacity. Physical examination of the left shoulder shows no abnormality. The likelihood is that he does have some pain in the left shoulder as a result of overuse resulting from the very marked stiffness of his right shoulder joint.

Although Mr Brearley’s report refers to the 1971 accident, neither his report nor that of Mr Dooley makes any mention of the 2010 accident. It must be inferred (as neither of those practitioners was cross-examined) that Mr Zepic did not inform either of them of the 2010 accident.

There appears to be a marked contrast between the accounts which Mr Zepic gave of his current condition to Mr Dooley and Mr Brearley respectively. On 28 October 2011, Mr Zepic told Mr Dooley of ‘ongoing neck pain and right shoulder girdle pain’. A week later (as the judge pointed out during final address), he told Mr Brearley that his main problem was ‘right shoulder and lower back’. The latter complaint is, in turn, to be contrasted with Mr Zepic’s ‘adamant’ statement to Mr Myers in August 2010, that he had no ‘pain in the low back before or since the accident’. In his presentation to Mr Myers, as to Mr Dooley, Mr Zepic’s focus was on his neck pain.

The final medical examination was on 19 January 2012, when he saw Mr Roy Carey, orthopaedic surgeon. According to Mr Carey’s report, Mr Zepic said that all of his right leg symptoms had disappeared after the (1990) laminectomy. The problems he experienced after the 2008 accident were, relevantly:

·a ‘big bruise’ in the area of the seat belt over his right shoulder, with local pain;
·mid-line posterior neck pain; and
·an increase in his pre-existing lumbosacral back pain.

In the (almost) four years since the 2008 accident, Mr Zepic said, there had been no change in the right shoulder area pain; the mid-line neck pain had worsened; and the lumbosacral pain was the same, although it was worse than it had been before the accident.

Under ‘Current Status’, Mr Carey reported as follows:

He still has neck and right shoulder pain. Whilst he feels that there is pain specifically in the right shoulder and in the neck as separate entities, he indicates the pain to go from the neck down over the right base of the neck over the right shoulder and down the anterolateral right arm to the elbow but not below.
He feels the right arm is weak.
He has no left shoulder or left upper limb symptoms.
The neck and shoulder discomfort is aggravated by movement and eased only slightly with tablets.
He has had not one day without pain since the motor accident.
As to the low back, this was present before the motor accident, markedly aggravated afterwards and has not changed since.
Whilst he apparently had some right leg symptoms before the operation of 1991 or thereabouts, he says that he had no leg symptoms before the motor accident but has had right leg symptoms since which involves pain going down to the foot and toes. This leg pain may have developed perhaps one-two months after the motor accident and has persisted since.
He has no left leg symptoms.

In contrast to the reports of Mr Brearley and Mr Dooley, Mr Carey’s report does make reference to the 2010 accident. Mr Carey reported:

[Mr Zepic] thinks that after that accident he may have had a temporary aggravation of all of his symptoms but it really didn’t make much difference — ‘it was not much worse’.
This particular accident did not cause him to seek any other or different treatments, and did not produce any problems which he did not have prior to this particular accident 15.10.2010.

Mr Carey’s opinion was as follows:

My opinion is that Mr Zepic on the basis of the history, clinical examination and imaging reports provided likely has aggravation of previously asymptomatic cervical spondylosis, and an adhesive capsulitis syndrome affecting the right shoulder, consequent upon his neck injury, but no intrinsic injury of the right shoulder or surrounding structures.
There is no evidence of right upper limb radiculopathy.

Further, he has aggravation of a previously symptomatic post-operative low back pain syndrome, with right lower limb symptoms but without radiculopathy.
Further, he has a non-organic right hemibody paraesthesia syndrome which demonstrates an idiosyncratic psychological response to injury.

Mr Carey responded to specific questions as follows:

4.Is there anything you think ought to be inquired about to obtain a complete picture of the circumstances surrounding the plaintiff’s claimed injury and cessation of work?
In order to be certain about a ‘complete picture of circumstances surrounding the plaintiff’s claimed injury and cessation of work’, a summary of Dr Jin Kee’s notes and a summary from Dr Dillane of Mr Zepic’s low back, neck and shoulder complaints would be most appropriate, in order to confirm the status of any cervical, shoulder, arm, low back and leg symptoms before the injury 27.3.2008, before and after the injury 15.10.2010.
Mr Zepic claims he was asymptomatic in the neck, shoulder and arm and in the right leg before 27.3.2008 and it would be as well to confirm this.
…
8.As best you are able, estimate what the course of the back injury would have been for the plaintiff, in the absence of the injury complained of.
As best as I am able, in the absence of the injury complained of, I would anticipate that Mr Zepic would have had continued discomfort and disability with his low back but without the cervical, shoulder and other problems which he now has as a result of the 27 March 2008 motor accident, at least in the medium term.
9.Does the October 2010 transport accident play any part in his current presentation? If not, why not, if yes, please apportion a percentage of his current presentation to the October 2010 accident?
On the basis of the history as given to me it appears that the October 2010 motor accident plays little or no part in his current presentation.
On the basis of the history as given by Mr Zepic I would anticipate this accident produced less than 5% of his current presentation.
However, the report of Dr Dillane 19.3.2011 suggests that there may have been significantly more problem [sic] caused by the 2010 accident, and this in conjunction with significant problems with his wife’s [health] and Mr Zepic’s reaction to this, he may well be downplaying the effect of the 2010 accident on his current status.

My understanding from him however is that there was a temporary aggravation from the 2010 injury but no real major difference in the longer term.

B. THE DISABLING EFFECT OF THE PAIN: WHAT MR ZEPIC SAID

In order to evaluate the pain and suffering consequences of the claimed impairment of body function, it was necessary to consider what the evidence showed both about Mr Zepic’s experience of pain as such and about the extent to which pain interfered with the ordinary activities of life.[18] In the present case, that required consideration of the impact of pain and disability on Mr Zepic’s:
[18]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1, 4–6 (‘Haden Engineering’); Sutton v Laminex Group Pty Ltd (2011) 31 VR 100, 110-11 [49]-[50]; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46, [19]–[20].

(a)       sleep;
(b)      mobility;
(c)       performance of household and family duties;
(d)      recreational activities;
(e)       social activities;
(f)       sexual life; and
(g)      enjoyment of life.

The starting point was what Mr Zepic himself said about the disabling effect of the pain. There were three sources of evidence on that topic. The first comprised his statements to medical practitioners, as recorded in their reports. The second was his affidavit evidence, and the third his answers under cross-examination. I deal first with the statements recorded by the practitioners.

The relevant statements were as follows:

·September 2008 (Dr Jensen):
Leisure activities: he enjoyed gardening but said as a result of the drought at that point in time he had undertaken minimal gardening. He enjoyed fishing and was still able to go undertake [sic] this activity.
·August 2010 (Mr Myers):
He states that nobody does any work around the house except for his wife. He states that he does nothing. He is occasionally taken by friends to go fishing. He drives a car but not very far.
·September 2011 (Mr Myers):
He states that his worst problem is constant pain in the right shoulder which keeps him awake at night. He can only sleep on the left side. He has less severe pain in the left shoulder which is not constant. He has a constant pain in the neck and low back.

· November 2011 (Mr Brearley):
He has pain in the shoulder and arm on attempted lifting and work above shoulder height. He has constant pain in the lower back which is made worse by bending and stooping and standing and walking for more than fifteen minutes or so. He says he has pain in the right leg down the back of the thigh and calf to the foot which is made worse after long sitting and much standing and walking.
… He has some difficulty in personal care. Shaving is difficult and he now uses the left hand. Similarly, he has difficulty in washing and doing his hair because of stiffness of the right shoulder. He has difficulty bending to put on his shoes and socks.
He is unable to help his wife with the heavier aspects of the housework including the vacuuming, sweeping and mopping. He is unable to do any maintenance around the house. He cannot do the gardening or mow the lawns.
Recreationally, he rarely goes fishing now because he cannot cast the line. He is no longer driving because of ongoing pain in the right shoulder.
·October 2011 (Dr Blombery):
He does nothing.
·October 2011 (Dr Kostos):
He claims to be an invalid and to need help with dressing. Certainly on physical grounds I am unable to verify that this is actually the case. Apparently he sits watching television all day.
He will not suffer any harm by engaging in daily living activities.
·January 2012 (Mr Carey):
Home Duties
‘Nothing’.
In a normal day he watches TV. He doesn’t go to bed during the daytime. He occasionally goes shopping with his wife.
He maintains a Victorian driver’s licence but hasn’t driven for at least twelve months because he can’t move his neck satisfactorily.

In his affidavit, Mr Zepic said that, immediately prior to the 2008 accident, he had had no ‘significant ongoing problems in terms of his ability to undertake the full range of [his] normal activities of daily living’. As a result of the injuries suffered in that accident, he said, he experiences

constant, though varied pain in my cervical spine and right upper extremity. I also experience varied pain in my left upper extremity as well as my lumbar spine which radiates to my lower extremities.

Under the heading ‘Loss of Enjoyment of Life’, his affidavit gave a lengthy and detailed account of the curtailment of activities he had previously undertaken, as follows:

Due to the constant, though varied pain from each of my transport accident injuries, my ability to enjoy a restful night’s sleep has been very significantly affected. I have difficulty finding a comfortable position and often toss and turn in bed. I often suffer from increased pain in my right upper extremity when I roll onto my right side. I regularly wake in the middle of the night as a result of pain and watch television or get a hot drink in an attempt to distract myself before trying to get back to sleep. I find that such disrupted sleep patterns often leave me feeling lethargic during the day and affect my concentration. I also often suffer from increased pain in my cervical spine, right upper extremity and left upper extremity when getting out of bed.
I also experience significant problems with self-care and personal hygiene as my ability to bathe, groom, dress have been limited by pain in my right upper extremity, cervical spine and left upper extremity in particular. I tend to have difficulty washing and combing my hair as a result of the increased pain it causes me. I also tend to avoid shaving for periods of time as the motions involved cause me increased pain. I also experience increased pain in my lumbar spine and cervical spine when I am required to bend to put on my shoes or socks. I tend to feel increased pain in my cervical spine as well as if I cough or sneeze suddenly. Additionally, due to the pain in right upper extremity and left upper extremity I have often sought the assistance of my wife in the past when in the shower or when bathing.
The physical effects of the injuries to my cervical spine, right upper extremity and left upper extremity significantly affects my ability to perform intrinsic physical activity such as standing or sitting for prolonged periods, reclining for too long in one position, walking for prolonged distances or in a repeated fashion, reaching, bending, as well as repeated or prolonged twisting and leaning. The pain from my [sic] each of my transport accident injuries has

very significantly affected my endurance, reliability and mobility. I feel that my condition has become more painful with time.
My transport accident injuries affect my ability to perform functional physical activity such as carrying, lifting, pushing, pulling, climbing and exercising. My cervical spine, right upper extremity and left upper extremity restricts my ability to perform upper body functions, including those that require repeated, forceful or percussive movements. Sometimes I have pushed myself to do more activities in and around the home. I have at times felt as though if I am positive and push myself that I can force my injury to get better and return to a normal life but even when fortified by medication I tend to be left in much increased pain afterwards. I am frustrated by my restricted physical endurance and reliability.

My reduced physical capacity and constant, though varied pain as a result of my transport accident injuries has had a very significant impact on my enjoyment and outlook on life. I feel as though I am left out of the lives of my sons and am missing out as I am unable to be involved with them as much as I had hoped even though we share the same residence. Prior to my transport accident, we would often go on picnics together as a family and my sons and I would kick around a soccer ball. Since my transport accident, I have tended to avoid such activities due to the increased pain from each of my transport accident injuries. This is a cause of ongoing frustration for me. This upsets me and I feel inadequate as a father.
My ability to enjoy social participation by going out to see friends or receiving guests into my home has also been affected. I used to enjoy going to Bosnian social functions prior to my transport accident, however, I have had to reduce such activities as the motions required cause me increased pain. I am no longer able to participate in the traditional Kolo dancing which involves repeated twisting and turning and causes me increased pain. I also feel more isolated and less social since my transport accident and do not like being in social settings as much as I used to. When I am in social settings I try to avoid talking about my current altered status and restrictions as I feel embarrassed. Furthermore, prior to my transport accident, I would regularly meet friends to watch AFL games on television or go for coffees. I used to enjoy watching Geelong FC games with my sons and friends. Since my transport accident, I tend to avoid such activities and have lost interest in such activities. I often spend most of my days at home on the couch and it makes me upset that I am no longer as socially active as I was prior to my transport accident.
Since my transport accident, each of my transport accident injuries have also affected my religious participation although I continue to visit the Mosque regularly. Since my transport accident, I have found that the actions required when praying such as not limited to bending and kneeling cause me increased pain in my cervical spine and right upper extremity. Since my transport accident, I often pray whilst seated on a chair so as to avoid the increased pain from each of my transport accident injuries. I find this a constant source of embarrassment when I am at the Mosque.
My transport accident injuries, in particular the injuries to my cervical spine and right upper extremity, have also had a very significant effect on my independence and mobility. I tend to experience increased pain when I am required to drive and avoid driving longer distances or outside my local area. I also have difficulties with concentration because I am often distracted by my pain. I also have difficulties performing head checks and looking out the rear window when reversing. As a result of these difficulties, in or around October 2010 I was involved in a minor transport accident. I did not make a compensation claim for this accident. For a short period of time I experienced increased pain in my lumbar spine which eventually settled and returned to the previous level of pain I was experiencing as a result of my transport accident on or about 27 March 2008. I now tend to avoid driving when I can and my sons drive me more frequently. I also worry that my affected driving abilities may cause me to be involved in another transport accident.
As a result of my transport accident injuries, I am very significantly impaired in performing my activities of daily living. Prior to my transport accident, my wife and I was jointly responsible for the household duties as both my sons were working. This provided me with a great sense of pride and purpose. I was able to perform the heavier aspects such as but not limited to gardening, vacuuming, mowing the lawn and moving furniture. Since my transport accident, my sons and wife are now primarily responsible for performing the housework. I am generally unable to carry out physical activity for any prolonged length of time without experiencing more pain which means that I tend to break up what used to be routine activities of daily living into stages that I complete or seek assistance for. Before the onset of my transport accident injuries I was independent in terms of being able to perform the activities required within my household. I tend to avoid activities such as but not limited to gardening, mowing the lawn, mopping and other heavier household duties. I usually have to leave these tasks for sons to complete so as not to aggravate each of my transport accident injuries.
As a result of each of my transport accident injuries, my ability to participate in individual or group activities and hobbies has also been adversely affected. Prior to my transport accident, I used to enjoy going fishing on a regular basis, often with friends or my sons, and was a keen fisherman. I would often go to various locations to fish such as but not limited to Port Arlington, Geelong, Werribee and Horsham. I had even competed in fishing competitions in Horsham where I won prizes for catching perch. I would spend hours fishing while on fishing trips. Since sustaining my transport accident injuries I have been less able to undertake such activities as long drives, casting fishing lines and reeling in fish causes me increased pain from each of my transport accident injuries in particular the injuries to my cervical spine, right upper extremity and left upper extremity. I often have to ask my friend to assist me when casting my fishing rod and reeling in the fish. I often just sit and wait for the fish to bite before calling out to my friend who takes over. It makes me extremely upset that I am no longer able to enjoy fishing as much as I used to prior to my transport accident and that I am not able to fish as frequently as I previously could.
I also experience difficulties with communication as a result of my transport accident injuries and am often distracted by pain and tend not to be well rested or in a position to concentrate when having a conversation with someone. This often frustrates my wife and children when we are communicating.
The very significant diminishment of my physical capabilities and endurance has thus struck at the core of my identity and sense of self-worth. I feel like a liability to those around me and have lost the social contact I used to have as a family man with a normal social and family life. This often leaves me feeling useless and frustrated.

This affidavit was sworn on 15 December 2011. As appears from the highlighted references, Mr Zepic referred repeatedly to the effects of pain in his ‘left upper extremity’. As noted earlier, however, when Mr Zepic saw Dr Blombery in early October 2011, he said nothing about left shoulder injury, or pain in that area.[19] Likewise, Mr Brearley’s report of 3 November 2011 said that Mr Zepic had ‘no significant symptoms’ from the injury to the left shoulder (rotator cuff) and had ‘a full range of movements’.[20]
[19]See [47]–[50] above.
[20]See [54] above.

Mr Zepic was cross-examined about various of the activities which he had described (either to medical practitioners or in his affidavit) as having been significantly curtailed as a result of the 2008 accident. His son, Enes Zepic, was also cross-examined on these issues. The inconsistency between their accounts formed the basis of a submission to the judge, on behalf of the Commission, that Mr Zepic was not an honest witness. That contention — which the judge rejected — is best assessed by comparing Mr Zepic’s evidence with what he told various practitioners and with what his son said in evidence.

Housework. Mr Zepic’s consistent account to medical practitioners was that he ‘does nothing around the house’.[21] In his affidavit he said that, before the accident, he was jointly responsible for household duties. When asked in cross-examination what his contribution was to the housework, he said, ‘I am watching TV’. Later he said he did not do any ‘proper housework’. He was now ‘restricted in his ability to regularly and reliably engage in general daily activity’, including cooking and ‘large shopping’.
[21]2010 — Mr Myers; 2011 — Dr Blombery, Dr Kostos; 2012 — Mr Carey.

His son’s affidavit said that, before the accident, his father ‘was able to be active and contribute in and around the house’. Subsequently, he had seen his father ‘experience pain in his neck, back and shoulders when he attempts to perform heavier home duties’. Under cross-examination, however, Enes Zepic agreed that, until his mother’s ‘recent problems with her emotional health’, she had been ‘very much the homemaker’ and had done most of the cooking, most of the shopping, some of the gardening, and ‘the overwhelming majority of the housework’. As noted earlier, he also agreed that for as long as he could remember his father had had ‘some restrictions because of injuries to his back’, as a result of which he and his brother had been expected to help with the housework and shopping, and to do half of the ‘outside work’.

Asked about his father’s present capability, Enes Zepic said that his father was not doing as much in the house as before the accident:

I’ve noticed he’s a bit more, how can I say, lazier, not as much motivation to get up and do it. He sort of more pushes me and my brother to do it.

In relation to mopping the floor, for example, his father would fill up the bucket and then ‘we’ll have to do the rest’.

As to cooking, Mr Zepic confirmed that, before the accident, he and his wife had both done some cooking. His wife had perhaps done more than he did. On the basis of his son’s evidence, the position was much the same after the accident. Enes Zepic said under cross-examination that the cooking was divided half and half between his father and mother. He considered his father to be a good cook, able to prepare ‘some nice meals’. From time to time, his father baked biscuits.

As to shopping, Mr Zepic said under cross-examination that he would go with his wife to the shops but ‘I can’t help her, I don’t help her’. He explained that, although he would be capable of reaching an item off the shelves, ‘she doesn’t let me do that … she makes a list and she is taking everything off the shelves, picking from the list’.

His son provided a rather different account. According to Enes Zepic, the shopping was generally done by him and his parents together. Because of the deterioration in his mother’s health, it was Mr Zepic who tended to write out the shopping list. He then tried to be ‘more dominant’ than his wife while in the shop. He picked goods off the shelves, pushed the trolley, unpacked the goods into the car, and helped his son with the unpacking into the house.

Gardening. Under cross-examination, Mr Zepic said he did no gardening at all. He had stopped gardening about a month after the accident. After that, he was unable to do anything. Asked about the statement to Dr Jensen that, in 2008, he did ‘minimal’ gardening because of the drought, Mr Zepic said it was the pain, not drought, which had made him stop gardening.

In his affidavit, Enes Zepic said that, before the accident, his father was ‘primarily responsible’ for lawn mowing and gardening. Under cross-examination, however, he confirmed that he and his brother had always done a large part of the lawn mowing because of the pain which their father experienced before the 2008 accident. He was conscious that ‘doing things like mowing lawns was difficult’ for his father because of his back. Far from his father having had to cease gardening altogether, Enes Zepic said that he grew vegetables all year round. This involved him preparing beds, watering and harvesting. The size of the vegetable garden had not changed since before the 2008 accident.

Fishing. Although Mr Zepic had told Dr Jensen in 2008 that he was ‘still able to go’, by 2010 it was only ‘occasionally’ (Myers) and by 2011 ‘rarely’ (Brearley). In his affidavit, Mr Zepic said that he was ‘no longer able to enjoy fishing as much as I used to … [and] not able to fish as frequently as I previously could’. Under cross-examination, he agreed that he went fishing approximately twice per month, and was able to travel for three hours for that purpose (although driven by someone else). According to his son, he would go fishing most weeks.

Personal care. In 2011, Mr Zepic told Mr Brearley that, because of right side difficulties, he now shaved with his left hand. Under cross-examination, however, Mr Zepic denied that he was able to shave left-handed. In his affidavit, he said that he had ‘significant problems’ washing and combing his hair. Under cross-examination, however, he agreed that he had no difficulty combing his hair because he was able to do it with his left hand.

Driving. In 2010, Mr Zepic told Mr Myers that he was driving ‘but not very far’. In 2011, he told Mr Brearley that he was no longer driving because of pain in his right shoulder. In early 2012, he told Mr Carey that he had not driven for 12 months because of neck immobility.

Under cross-examination, however, Mr Zepic confirmed that (as at February 2012) he was still driving. He was able to drive for 20 minutes or half an hour. At no time had he stopped driving altogether. Attention was drawn to his statement to Dr Strauss, psychiatrist, in late 2011 that he had given up driving since the accident because of fear.

Sexual activity. Mr Zepic complained that his sex drive had been affected by the 2008 accident. Attention was drawn to the statement he had made to Dr Ingram, psychiatrist, in September 2011, that he and his wife had not had a sexual relationship for many years, since well before the 2008 accident. Mr Zepic denied having made that statement, and denied that it was the truth.

Mobility. Under cross-examination, Mr Zepic said that the pain in his legs meant that he could walk no further than 50—100 metres. He said that walking 50 metres would take him between 20 and 30 minutes.

Consideration

In considering the issue of Mr Zepic’s honesty, the judge noted that, in his two affidavits, he had adopted ‘a position different to that which he adopted in the course of his evidence’.[22] His Honour continued:
[22]Reasons, [41].

In his affidavits the plaintiff made very few dogmatic statements to the effect that the 2008 accident totally precluded him from most of the activities and pastimes involved in his life beforehand (rather he spoke in terms of the 2008 accident having restricted him in his ability to engage in those activities). Further, the plaintiff readily conceded the fact that the 2010 transport accident had temporarily aggravated his symptoms; his statement to that effect being;
·Consistent with the evidence given by Dr Dillane on this issue; and
·In stark contrast to the plaintiff’s inconsistent statements on the issue in the course of cross-examination.

I am satisfied that in the course of giving his evidence, the plaintiff had a tendency to exaggerate the consequences of the 2008 accident upon him and that this tendency also manifested itself in the plaintiff providing exaggerated histories to a number of the medical practitioners who have examined him. I further accept that these tendencies call into question the plaintiff’s honesty and his reliability as a witness.
Equally the repeated statements made by the plaintiff in the course of his evidence in which;
· he denied any ability to undertake tasks such as gardening;
·made extreme statements as to his ability to walk whilst pushing a lawnmower, or as to the time it took him to walk fifty metres;

lacked credibility and were quite unpersuasive.
As to whether these matters tell upon the issue of the plaintiff’s honesty however, I note the contrast between the evidence contained in the plaintiff’s affidavit as to the level of his incapacity and that given by him in the course of his cross-examination. Generally I found the statements made by the plaintiff in his affidavits as to the consequences of the organic injuries suffered by him in the 2008 accident to be consistent with the consequences which would, in my opinion, be likely to be associated with significant soft tissue injuries inflicted upon the cervical spine of a man in his early seventies at the time at which he was injured and who is now shortly to turn seventy-six.
Further, the plaintiff’s affidavit evidence as to the consequences of the 2008 accident is largely consistent with the affidavit evidence and the viva voce evidence given by the plaintiff’s son, whose evidence is not the subject of challenge on behalf of the defendant.
Having regard to what appears to be reliable evidence given by the plaintiff in his two affidavits and unreliable evidence given by the plaintiff in the course of cross-examination and on occasions in statements made by him in the course of medical examinations, I am not persuaded that the plaintiff is a dishonest witness who has embarked upon a deliberate course of deception. Rather, I am of the opinion that the plaintiff (most probably by reason of cultural and age-related factors), coped extremely poorly with the process involved in providing histories, giving viva voce evidence, and being cross-examined. That this is so is, in my opinion, reinforced by the naïve and extreme statements made by the plaintiff in the course of cross-examination to which I have previously referred.
That is not to say however that real issues do not arise in this matter in assessing the true consequences to the plaintiff of the injuries suffered by him

in the 2008 accident by reason of the fact that the plaintiff, in cross examination, has proven to be a very unreliable witness.
Having regard to the issues which arise as to the reliability the plaintiff’s evidence, I am of the opinion that the approach which I should take in assessing the consequences to the plaintiff of the 2008 accident is that I should:
(i)be guided by the medical statements which describe the likely organic disability which would be associated with the trauma to which the plaintiff was exposed in the 2008 accident and the evidence given by both the plaintiff and his son as to the consequences to the plaintiff of his involvement in the 2008 accident insofar as those consequences are consistent with the medical opinion to which I have referred;
(ii)assess the consequences of the injuries sustained by the plaintiff in the 2008 accident primarily upon the basis of the evidence of Enes Zepic who impressed me as a reliable witness who made no effort to overstate the evidence given by him as to the change in his father following the 2008 accident;
(iii)rely upon the evidence given by the plaintiff where it is consistent with the above sources of evidence;[23]

[23]Ibid [42]–[49] (emphasis added).

The appeal submission for the Commission was that, having made ‘unambiguous findings’ as to Mr Zepic’s lack of credibility as a witness, it was ‘inconsistent and thus wrong’ for his Honour to have relied on Mr Zepic’s affidavit evidence. There was considerable force in that submission, in my view.

As appears from the highlighted passages above, these were strongly adverse findings as to Mr Zepic’s credibility and reliability. He was found to have exaggerated the consequences of the 2008 accident, both in what he said in Court and in what he told a number of the medical practitioners. Once Enes Zepic was accepted — as he was on all sides — as having given truthful evidence under cross-examination, it followed necessarily that nothing said by Mr Zepic in evidence could be regarded as reliable (unless independently confirmed). More particularly, it followed that statements such as that he ‘does nothing’ in the house, and that he had been unable to do any gardening since the accident, were simply untrue.

(a) Mr Zepic’s pre-accident presentation with significant symptoms of lower back pain and right leg sciatic pain;

(b) his ‘adamant’ insistence to Mr Myers that his back had not been affected by the 2008 accident;[35]
[35]See [35]-[37] above.

(c) the fact that, although Mr Zepic saw Dr Dillane frequently in the post-accident period, he made no mention of right-sided sciatica until 24 April 2008, a month after the accident, and then not again until 31 July 2008, four months after the accident;

(d) his statement to Dr Jensen on 2 September 2008 that he had had ‘minimal pain’ in the lumbar region until 2 or 3 weeks earlier;

(e) the fact that, despite numerous attendances on Dr Dillane between August 2008 and the accident in October 2010, Mr Zepic made no complaint of sciatica at all in that period, and only two complaints of back pain (in September 2008 and December 2009 respectively); and

(f) the fact that, immediately after the 2010 accident, Mr Zepic presented with ‘severe back pain’ (although he made no complaint then, or subsequently, of pain in either leg).

With respect, the evidence did not establish that by early March Mr Zepic had ‘largely recovered’ from the ‘significant exacerbation’ of the back and leg pain with which he presented on 26 February 2008. To the contrary, Dr Dillane’s notes showed only that by 11 March Mr Zepic was feeling better after two days of pain medication. As noted earlier, Dr Dillane had judged the 28 February signs and symptoms to be sufficiently serious for him to refer Mr Zepic for a CT scan of the LS. There was nothing to suggest that by the time of the 2008 accident the underlying pain, or its cause, had disappeared, or that Dr Dillane ‘had ceased treatment of the condition’.

Equally, there was nothing in the clinical record to suggest that Mr Zepic’s back and leg pain were any worse after the 2008 accident. As noted, Mr Zepic presented to Dr Dillane only twice in the period March—July 2008 with a complaint of right-sided sciatica, and made no such complaint at any time in the period August 2008—October 2010. In September 2011, Mr Zepic told Dr Ingram, psychiatrist, that he had ‘some occasional back pain, related to pre-existing problems’.

On the evidence, therefore, the condition of his back after the accident was the same as it had been before — that is, ‘stable but involving periodic exacerbations’.[36] I am therefore unable to discern any basis for concluding that there had been an aggravation of the lower back injury, or a worsening of the symptoms of which Mr Zepic had been complaining immediately before the accident.
[36]Reasons, [50].

Certainly there was nothing in the evidence regarding his post-accident pain and disability which identified the lower back or legs as having caused any distinctive worsening of his condition. That evidence referred, without differentiation, to all of the injuries said to have been sustained in the transport accident.[37] By contrast, there was clear evidence from Enes Zepic of pre-accident pain and disability specifically associated with the earlier back injury.
[37]See, eg, affidavit of Zarif Zepic sworn 15 December 2011, [36], [38]–[40].

Is the spine a single body function?

As noted earlier, the relevant part of the definition of ‘serious injury’ in s 93(17) of the Transport Accident Act 1986 (Vic) is:[38]

(a) serious long-term impairment or loss of a body function.

[38]Under s 93(3) of the Act, if the Commission has determined that the degree of impairment of a person injured in a transport accident is 30% or more, the injury is deemed to be a serious injury for the purposes of the section. The Commission’s determination of a degree of impairment must be made in accordance with the AMA Guides: Transport Accident Act 1986 (Vic) s 46A(2).

The trial judge concluded that the body function associated with the spine should not be divided into a number of separate categories. His Honour said:

[I]n analysing the effect of the 2008 accident upon the cervical and lumbar areas of the plaintiff’s spine, I am satisfied that the approach which I should take is to consider the effect of the accident upon the plaintiff’s spine in its entirety.[39]

[39]Reasons, [38].

His Honour relied on, without repeating, reasons he had given in the earlier matter of Jenkins v Transport Accident Commission.[40] In that case, the applicant had suffered soft tissue injury to the cervical and lumbar areas of her spine. Senior counsel on both sides had informed his Honour that there was no authoritative statement on this issue and that ‘within the County Court, a number of conflicting statements had been made’.[41] His Honour therefore considered himself to be ‘at large’.[42]
[40][2011] VCC 1231.
[41]Ibid [3].
[42]Ibid.

His Honour rejected the submission of the Commission that the injuries sustained should be categorised as separate injuries resulting in impairments of different and separate body functions. He said:

In my opinion, the position contended for by the defendant is artificial. Whilst for descriptive purposes the spine may be divided into cervical, thoracic and lumbar areas, it is one continuous structure consisting of bony vertebrae separated by discs throughout its length. I see no reason why, for the purpose of the analysis required of me pursuant to the provisions of the Act, the body function associated with the spine should be divided into a number of categories.[43]

[43]Ibid [4].

On this application, the Commission submitted that his Honour had erred in treating Mr Zepic’s neck and lower back as a single body function. Combining the LS and the CS into one body function was, it was submitted, inconsistent with the way in which Mr Zepic’s case had been put at trial, and with the way in which he had been assessed by the various doctors. According to the submission, the LS and the CS ‘have different functions in human activity’.

The Commission relied on what was said by Chernov JA in Mediterranean Shoes.[44] In that case, the claim of serious injury relied on two injuries — to the right shoulder and the right elbow respectively — which were said in combination to have ‘caused a serious long-term impairment of a body function, namely, [the applicant’s] right arm’.[45] That contention relied on the following statement from the seminal decision of the Full Court in Poljak:

It is impermissible in an attempt to ascertain if a ‘serious long-term impairment’ has been shown to exist to look to a number of ‘impairments’ not any one of which is a ‘serious long-term impairment’ and treat them as acting in total, as it were, so as to meet the requirement of the definition. A body function must be identified. That done the inquiry to be made is whether that function has been impaired or lost. It may, of course, be impaired or lost by reason of two or more injuries acting together to cause such impairment or loss.[46]

[44](2000) 1 VR 511.

[45]Ibid 515 [10].

[46]Poljak [1992] 2 VR 129, 138 (emphasis in original).

Chernov JA (with whom Winneke P agreed) rejected the contention that the two injuries resulted in the impairment of one body function, that of the arm. In his Honour’s view, the ‘short answer’ to that submission was as follows:

[T]he two injuries in question impaired two separate body functions, namely, the plaintiff's right shoulder area and his right elbow respectively. Consequently, they cannot be relevantly aggregated. The mere fact that those injuries had, in one sense, an effect on the movement of his right arm does not mean that the arm was the relevant body function. A body function that is indirectly, albeit detrimentally, affected by two separate injuries to two body functions, is ordinarily not thereby relevantly impaired by those injuries for the purpose of s 135A(19)(a). Thus, an injury to the big toe of one foot and a later injury to the knee of the same leg may have a detrimental effect on the use of that leg, but ordinarily, it would be inaccurate to describe the two injuries as having impaired the one body function, namely, the leg.[47]

[47]Mediterranean Shoes (2000) 1 VR 511, 519 [23].

Buchanan JA took a different view on this question, holding that the identification of a ‘body function’ for this purpose:

[d]epends only upon the existence of impairment or loss of a physical function, and the definition is not limited to the function of that part of the body directly affected by an injury. Thus I consider that an injured shoulder and an injured elbow can properly be regarded as resulting in impairment or loss of the body function of an arm.
It is another question, however, whether an injury to a shoulder and an injury to an elbow can be aggregated. I agree with Chernov JA that injuries can only be aggregated if they are the result of one event or incident.[48]

[48]Ibid 512 [3]–[4].

By majority, therefore, this Court concluded that the shoulder and the elbow were ‘separate body functions’. The same was said — by way of illustration — to be true of injuries to the foot and the knee of the same leg. Although both injuries would have ‘a detrimental effect on the use of that leg’, they should not ordinarily be regarded as having impaired the one body function.

In the present application, senior counsel for the Commission submitted that, by parity of reasoning, an impairment of the cervical spine and an impairment of the lumbar spine could not be viewed as constituting (in aggregate) a single impairment of a single body function, being that of the spine. There has, however, been no decision of this Court on that question, which may seem surprising given how often injuries to the neck and back are relied on in serious injury applications.

At the request of the Court, each party filed a supplementary submission citing a number of County Court decisions on this issue. As will appear, the clear preponderance of opinion amongst judges of that Court is that the spine is the relevant body function for this purpose.

That view was first expressed as long ago as 1995, by Judge Wodak in Perry v Duvoisin & Transport Accident Commission.[49] In that case, the applicant had suffered injury to her neck and lower back region. The judge accepted that she had experienced:

a significant degree of generalised trauma to the cervical, thoracic and lumbar spines [because of] generalised jerking trauma ...[50]

The Commission argued unsuccessfully that any symptoms and disabilities in the applicant’s CS and LS must be considered as separate impairments, which it was impermissible to aggregate. This was said to be so because the CS and the LS were ‘distinct anatomical parts and their functions and nerve distributions quite separate’.[51]

[49][1995] VCC 19 (‘Perry’); followed in Radimisis v Transport Accident Commission (Unreported, County Court of Victoria, Judge Shelton, 14 September 2001).

[50]Perry [1995] VCC 19.

[51]Ibid.

Judge Wodak found that the applicant’s ‘spinal column, in its entirety, has been subjected to traumatic insult in the accident’.[52] She had ongoing symptoms referable to different parts of her spine, initially worse in the neck and shoulder areas and subsequently worse in the lower back. It was the state of her lower back which prevented her from undertaking her pre-accident work. His Honour said:

[I]t does not follow either from that evidence, or as a general proposition … that it is sensible to notionally sever the spine into two distinct zones. Activities such as lifting, bending, stooping, turning, twisting, standing and sitting all impose stress on the spinal column. Where there are injuries to, and resultant, albeit distinct symptoms from, different portion[s] of the spine, it is such physical action which induces the symptoms, or such physical action which may be restricted by such injuries. I … consider that it is appropriate to assess the matter by evaluating the evidence as to the entirety of [the applicant’s] spine.[53]

[52]Ibid.

[53]Ibid.

A number of recent decisions are to the same effect. In 2008, in Blackburn v Construction Engineering (Aust) Pty Ltd,[54] Judge Katherine Bourke identified the following preliminary question:
[54][2008] VCC 711.

[I]nsofar as identification of body function in this case is concerned, [is it] possible to aggregate different levels of the spine and consider impairment of the spine as a whole[?][55]

After reviewing a number of decisions, her Honour concluded:

It appears relatively established … that the use of the spine can be regarded as a single body function and that damage to vertebral levels in a single incident can be aggregated.[56]

[55]Ibid [287].

[56]Ibid [292].

Two of the decisions referred to by Judge Bourke involved the Commission as defendant. In 2001, in Filippou v Dimitros,[57] Judge White classified the injury as loss of the body function of the vertebral column. In 2008, in Trajkovska v Prentice,[58] Judge Morrish accepted that the plaintiff was entitled to aggregate CS and LS impairments, and made a finding that the body function was the function of the spine/back.[59]
[57](Unreported, County Court of Victoria, Judge White, 19 March 2001).
[58][2008] VCC 479.
[59]Judge Bourke also cited Josevski v Chiquitta Mushrooms Pty Ltd [2007] VCC 1653; Cikac v St Vincent’s Private Hospital (Unreported, County Court of Victoria, Judge Howie, 12 May 2004); Tsagaris v Otis Building Technologies Pty Ltd (Unreported, County Court of Victoria, Judge Wodak, 29 November 2001); and Ivanovski v Menzies International Cleaning Contractors Pty Ltd (Unreported, County Court of Victoria, Judge Wood, 2 May 2006).

In 2010, in O’Connor v Maribyrnong City Council and Victorian WorkCover Authority,[60] Judge O’Neill concluded that it was ‘appropriate to regard the cervical and lumbar spines as the one body function’.[61] His Honour said:

The spine is generally divided into three areas – cervical, thoracic and lumbar. However, it is difficult to separate out the functions of these three different areas of the spine. In the ‘AMA Guides to the Evaluation of Permanent Impairment’ the following is said at paragraph 3.3B:
It is difficult to separate the cervical, thoracic, lumbar and sacral spine regions functionally, because the signs related to the different regions commonly overlap. Upper lumbar spine impairments tend to behave more like those of the thoracic region than those of the lower lumbar region, and the involved nerve plexuses expand the effects from the different levels. For instance, the brachial plexus is made up of nerve trunks from both the cervical and the upper thoracic regions, and the sciatic nerve includes components from both the lower lumbar and the sacral regions. With the Injury or DRE Model, the spine regions are termed the cervicothoracic, thoracolumbar, and lumbosacral regions. With this model, the cervicothoracic spine is considered to comprise 35 per cent of total body function, the thoracolumbar spine 20 per cent and the lumbosacral spine 75 per cent. Under the Range of Motion or Functional Model, the main
regions are called cervical thoracic and lumbar regions. With that model the cervical spine is considered to be involved with 80 per cent of the individual’s functioning, the thoracic spine is involved with 40 per cent and the lumbosacral spine is involved with 90 per cent. However, the structural, neurologic, vascular and other activities mediated by the spine regions overlap and are difficult to separate …[62]

[60][2010] VCC 1987 (‘O’Connor’).

[61]Ibid [69].

[62]Ibid [67] (citations omitted). His Honour referred to other decisions to the same effect: Sulic v Ausmalt Sheet MetalPty Ltd [2007] VCC 1705; Sammut v P & O Ports Ltd (Unreported, County Court of Victoria, Judge Lewitan, 21 March 2002); and Karavoski v Fiora Distributors (Unreported, County Court of Victoria, Judge Dyett, 9 November 2007).

In 2012, in Kotevska v Transport Accident Commission,[63] Judge Misso rejected the Commission’s contention that the cervical and thoracic spines were separate body functions. Noting that no reference had been made to any medical evidence to support the contention, his Honour said:[64]

Whether two injuries impair separate body functions is a matter of anatomy. It is also a matter of logic and common sense. The submission has been made to me on previous occasions in the absence of any particular medical evidence on the subject. It has been left to my sense of logic and common sense. I can see no logical reason why, for example, an injury to the knee and injury to the ankle of the same leg which occurred at the same time could not be proposed as an impairment of the knee or the ankle, or the leg.
It occurs to me that the spine is one mechanism composed of vertebrae, discs and surrounding soft tissue. The fact that the medical fraternity have divided the spine it into cervical, thoracic and lumbar appears to me to constitute more a matter of convenience in identification rather than denoting that each area is discrete as a separate body function.

[63][2012] VCC 306.

[64]Ibid [25]-[26].

Soon afterwards, in Comerford v Transport Accident Commission,[65] Judge McNamara noted in his reasons that it had been common ground between the parties that ‘for the purposes of applying the definition [of serious injury] in paragraph (a), the spine should be regarded as a single unit or one body part’. His Honour noted that this position accorded with the approach taken by Judge O’Neill in O’Connor.[66]
[65][2012] VCC 443 (‘Comerford’).
[66]Ibid [26].

By contrast, the parties referred us to only three decisions in which the judge had ruled that the CS and LS must be treated separately.[67] It follows that, with very few exceptions, serious injury litigation in the County Court has for many years been conducted — and adjudicated — on the basis that the spine is a single body function and that impairments of the CS and LS can be aggregated for the purposes of paragraph (a) of the definition of serious injury.
[67]Williams v Melbourne City Mission Inc [2008] VCC 266, [17]; Sare v Transport Accident Commission (Unreported, County Court of Victoria, Judge Pilgrim, 15 February 2002); Arzanas v Transport Accident Commission [2012] VCC 1459, [4].

Although a number of the decisions have concerned serious injury applications under the Accident Compensation Act 1985 (Vic), a number of others — spread over the period 1995–2012 — were applications under the Transport Accident Act 1986 (Vic), with the Commission as a defendant. Yet this is, apparently, the first time the Commission has sought to challenge on appeal the correctness of that approach.

The occasion for such a challenge has, in my opinion, long since passed. This is a question of fundamental importance to serious injury litigation, as appears from the number of decisions to which I have referred. For reasons best known to itself, the Commission has not until now sought an appellate ruling on the question. Over the years, the Commission has persisted with its ‘separate functions’ argument — without success — in a number of first instance proceedings, before ultimately conceding the point in 2012, in Comerford.

In my view, it would work a great unfairness if this Court were to uphold the present challenge, even if it otherwise had merit. As to the merits, it is of significance, in my view, that the view now challenged has been arrived at by a number of different judges at first instance, many of whom have very substantial experience in this area of law and practice. And, if I may say so respectfully, their Honours’ reasoning on the issue is clear and cogent. If there is now to be a change in the settled law on this question, it will have to be made by Parliament.

The conduct of the hearing

The hearing took place over four days. On more than one occasion, the trial judge expressed concern to counsel representing the Commission about the time the proceeding was taking. His Honour was particularly critical of what he said was unduly drawn out cross-examination of Mr Zepic. On more than one occasion, his Honour urged counsel for the Commission to be ‘more efficient’, pointing out that ‘[this is] not a trial’.

At the beginning of final addresses, counsel for the Commission sought to justify his cross-examination by reference to the evidence which it had elicited. Acknowledging that some of the earlier criticism might have been premature, his Honour went on to make the following general comments about the hearing of serious injury applications:

[I]f these cases are going to be run with the defendant insisting on calling doctors in circumstances in which the plaintiff is prepared to rely on medical reports[,] what is happening in this list becomes an impossibility. We can’t manage the cases. A mature approach has to be taken. It may well be at the end of the day a direction will be given in these cases that we can’t have cross-examination for that reason and it will have to be done by way of affidavit and material, because cases that used to take a day or a day and a half – you’ve heard the cases called over this morning and the estimates given, six days, four days, two days. The rate at which these proceedings are being issued and the way they have to be determined, the reasons that have to be given, the scrutiny that’s given to the reasons, all of which is part and parcel of the process, means it’s becoming an impossibility. And it is interesting, as a judge, to see the fact that it’s the defendants who require cross-examination and the plaintiffs invariably don’t. I’m not sure why. So your client might be concerned about the fact that I’m trying to hurry these cases through, I’m trying to do justice to everyone.

Counsel responded by submitting that, so far as expert witnesses were concerned, there would be benefit in the Court adopting the procedure for the taking of concurrent expert evidence, colloquially referred to as ‘hot tubbing’. I note that the Civil Procedure Act 2010 (Vic) expressly authorises a court to direct that expert witnesses give evidence concurrently.[68] In advance of the hearing, the Court may direct the experts to confer for the purposes of preparing a joint report.[69] When employed in other fields of civil litigation, these procedures have resulted in very substantial savings in the time and cost of proceedings.
[68]Civil Procedure Act 2010 (Vic) s 65K.
[69]Ibid s 65I.

What his Honour said about the length and complexity of these hearings bears very close consideration, in my respectful view. This is not, of course, the first time such observations have been made. Twenty years ago, in Petkovski,[70] Brooking J said:

A lamentable situation has been reached with these applications under s 93 of the Transport Accident Act 1986, where the applicant tries to satisfy the court that a serious injury has been sustained. They are taking up to five days to hear and sometimes a good deal of oral evidence is given. On appeals to this court some appeal books are as bulky as those which come at the end of a trial, at all events one limited to the assessment of damages. When, after a hearing lasting several days, the judge comes to decide whether to give leave under the section, he may well be in a position or virtually in a position where he could if required assess damages for the injury. If he gives leave, the whole process must then be gone through again at trial, with or without a jury. If there is no oral evidence on the hearing of the application and there are conflicts of expert opinion or other conflicts of fact, the judge hearing the application is left to resolve them on the affidavits as best he can.
I doubt very much whether Parliament had the present foolish, wasteful and inconvenient system in mind when it enacted s 93.

[70][1994] 1 VR 436, 437.

Given what is at stake in a serious injury application, however, it is hardly surprising that the hearings are often protracted and involve close investigation of the evidence, including where necessary by cross-examination. As I said in Haden Engineering, an affirmative finding of serious injury opens the gate to common law proceedings for damages attributable to the injury.[71]
[71]Haden Engineering (2010) 31 VR 1, 3 [1].

The incentive to litigate is made all the greater by the fact that this very significant opportunity — to sue at common law — has been made to depend on the imprecise and impressionistic criteria in the so-called ‘narrative test’. That very imprecision, and the likelihood of diverging views to which it gives rise, is inimical

to certainty and predictability of outcome.

As things stand, what occurred in the present case is unremarkable, in my view, and the conduct of the case on behalf of the defendant could not be legitimately criticised. As will be apparent from these reasons, the matters elicited by counsel for the defendant’s cross-examinations of various witnesses were indispensable to an analysis of the merits of the application. The judge’s finding that Mr Zepic could not be believed on his oath was, by itself, a complete vindication of the cross-examinations.

The significant policy question which arises, however, is whether the current system is a satisfactory way of differentiating between those who can sue and those who cannot.[72] Despite the best efforts of the judges of the County Court, and of this Court, litigation of this kind places an ever-heavier burden on the judicial resources of this State. At the same time, there are reasons to doubt whether it is possible to fulfil the requirement of the rule of law that like cases be treated alike, given the imprecision of the narrative test, the intrinsic difficulty of assessing — and comparing — degrees of pain and suffering, and the near-impossibility of separating out psychological from organic causes of pain and disability.[73]
[72]Ibid 3 [3].
[73]Ibid 3 [4].

TATE JA :

For the reasons stated by Maxwell P, I agree that leave to appeal should be granted, the appeal should be upheld and, in lieu of the judge’s order, there should be an order refusing Mr Zepic’s application.

GARDE AJA :

I have had the considerable benefit of reading in draft the reasons of Maxwell P. I agree with those reasons and with the orders that his Honour proposes.

[2013] VSCA 232

4 September 2013