Watapaldeniya v TAC
[2022] VSCA 59
•12 April 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0073
| NIMESH WATAPALDENIYA | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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| JUDGES: | BEACH, KENNEDY JJA and O’MEARA AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 April 2022 |
| DATE OF JUDGMENT: | 12 April 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 59 |
| JUDGMENT APPEALED FROM: | [2021] VCC 714 (Judge Clayton) |
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TRANSPORT ACCIDENT COMPENSATION – Transport Accident Act 1986, s 93 – Serious injury application – Transport accident – Loss of earning capacity – Pain and suffering – Adverse credit findings – Finding that consequences not ‘very considerable’ – Whether reasons adequate – Whether failure to consider applicant’s young age – Humphries v Poljak (1991) 14 MVR 1, discussed – Thapa v Transport Accident Commission (2021) 97 MVR 268, discussed – Hunter v Transport Accident Commission [2021] VSCA 239, discussed – Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, discussed – Nichols v Robinson (2001) 33 MVR 83, discussed – Hooley v Transport Accident Commission (2019) 90 MVR 407, distinguished – Leave to appeal granted – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R H Stanley and Mr O T Lesage | Patrick Robinson & Co |
| For the Respondent | Mr J Ruskin QC with Ms R L Kaye | Solicitor for Transport Accident Commission |
BEACH JA
KENNEDY JA
O’MEARA AJA:
On 16 October 2019 the applicant applied under s 93(4)(d) of the Transport Accident Act 1986 (the ‘Act’) for leave to bring proceedings for the recovery of damages for a shoulder injury that he sustained in a transport accident that occurred on 25 September 2016.
The applicant claimed that the impairment of his right shoulder was a ‘serious injury’ pursuant to part (a) of the definition of ‘serious injury’ under s 93(17) of the Act. He also claimed that he suffered psychological consequences as a result of the physical injury (though he did not claim the psychological condition as an impairment in its own right).
On 7 June 2021, a County Court judge dismissed this application, after making extensive adverse credit findings about the applicant.
The applicant now seeks leave to appeal from that decision and advances the following two proposed grounds of appeal:
(i) The primary judge erred in law by failing to provide reasons that disclosed an intelligible path of reasoning for her decision.
(ii) The primary judge erred in law by failing to consider that because of the applicant’s young age, the pain and suffering consequences which she found to be permanent, will likely be experienced for a lengthy period.
For the following reasons, we have determined that, while leave to appeal will be granted, the appeal will be dismissed.
Evidence
Factual Background
The applicant was born in Sri Lanka on 29 March 1989. In 2012, when aged 23, he came to Melbourne on a student visa to study a bachelor’s degree in Information and Communication Technology at Swinburne University. Whilst studying he worked at Coles in Malvern stacking shelves, and at a Caltex service station in Frankston.
In 2016 the applicant finished his degree and had to undertake some further hours of work to obtain his qualification. He described himself at this time as happy, in good health, and in a relationship.
In September 2016, the applicant advertised his mobile phone for sale on the website Gumtree. A purchaser contacted him, and an arrangement was made for the purchaser to attend the applicant’s home in Box Hill to see the phone.
On 25 September 2016, a female came to the applicant’s home, purporting to be the purchaser’s girlfriend and, after inspecting the phone, asked to show it to the purchaser who was sitting in his car outside the applicant’s home. The female then took the phone and jumped in the car, and the couple sought to drive away.
The applicant ran alongside the car demanding they stop. He managed to wrestle open the passenger door and clambered into the car in order to retrieve his phone. The driver and his companion proceeded to assault the applicant and tried unsuccessfully to push him out of the car. The driver took off, with the applicant unrestrained in the front seat. The car travelled erratically through side streets and the Box Hill Shopping Centre car park, reaching speeds of up to 100km per hour, and colliding with several cars. As the driver headed south down Station Street, Box Hill he ran a red light at the intersection of Canterbury Road, and collided at high speed with a large SUV. The car came to a stop.
The applicant gave evidence that in the collision he was thrown onto the dashboard striking his right shoulder, and experienced excruciating immediate shoulder pain. He is right handed.
The applicant was taken by ambulance to the Box Hill Hospital, and from there to the Alfred Hospital. On admission he was diagnosed with a displaced fracture of the right anterior humeral head and a comminuted depressed fracture to the right frontal bone, with involvement of the right frontal sinus. The parties accepted that the shoulder injury was caused by the impact of the collision, but that the head injury was likely caused by the assault.
The applicant was discharged on 26 September 2016. He had a follow up orthopaedic review on 3 October 2016. An X-ray showed satisfactory alignment of the right humeral head, and conservative treatment was pursued.
After the accident the applicant had a period of time off work. He was required to defer his further studies until 2017, which delayed the commencement of his professional year. After completing his professional year in May 2018, he commenced a diploma in leadership management while continuing to work at Coles as a shelf stacker.
During 2017, it appears that the applicant also started his own business, Done & Dust, which provided building cleaning services. The applicant did not undertake cleaning duties himself, but oversaw the employment of five others to do so, including driving to various places every week to check the cleaners’ work. The applicant only deposed to the existence of this business in his second affidavit filed in support of his application on the day the application was originally due to be heard (on 2 March 2021[1]). The applicant’s evidence about this business will be referred to further, below.
[1]The application was adjourned due to the service of the affidavit that day, and was heard later on 16 and 19 April 2021.
In August 2019, the applicant moved to Tasmania. He commenced his diploma, and obtained work at Coles in Sorell, working again as a shelf stacker, while also continuing to run Done & Dust.
Evidence of applicant
In his first affidavit,[2] the applicant stated that he was off work for almost seven months after his release from hospital, and that he was only working 15 hours a week when he returned to work (when, prior to the injury, he had been offered a permanent 40-hour a week position). He also said that he continued to get shoulder pain ‘every few days’, that it flared up, and that he got sharp pain whilst sleeping (which sleeping was frequently disturbed by shoulder pain). He stated that he massaged his shoulder to try and relieve the pain, and took Advil and Panadol three or four times a week. He no longer played badminton or cricket. He said that his relationship with his girlfriend broke down when he had to move to Tasmania. He claimed that he could drive, but it was difficult and stressful, and he avoided driving wherever possible. He said that he tried to remain strong, but the ‘daily’ shoulder pain, and the flashbacks and memories of this accident would last for the rest of his life.
[2]Dated 15 July 2020.
In his second affidavit,[3] the applicant stated that his shoulder continued to ache and ‘the pain can be excruciating – a piecing [sic] pain that runs below my shoulder blade and into my armpit’. He claimed that the pain worsened when he used his right arm, or lifted it above shoulder height. As he is right handed, this caused him great difficulty as he had to modify a lot of what he did. By the end of each shift his right shoulder throbbed. Just driving a car caused him pain. The applicant stated that he struggled to get a good night’s sleep, and was regularly woken by pain if he turned in his sleep. He used Voltaren cream and took Panadol at night to help him sleep. He claimed that the injury continued to impede his ability to play badminton and cricket.
[3]Dated 2 March 2021, the day the application was originally due to be heard.
As indicated already, he also disclosed (for the first time) in this second affidavit that, in addition to his work stacking shelves at Coles, he also operated the cleaning business, Done & Dust. He employed five friends to clean offices in Hawthorn, East Burwood, and Hobart. He said that he did the bookkeeping and claimed that the business ‘essentially takes care of itself.’ The business ran at a loss, but was seen as a way to improve his application for permanent residency.
The applicant claimed that the fact that the shoulder had not improved really got him ‘down.’ He was young, and instead of living his life to the fullest he had to be cautious. He claimed that his mood had changed – he used to be happy and social, and now could not find the motivation to go out. He had no friends in Tasmania and was incredibly lonely.
Under cross examination, the applicant:
· confirmed that – as he had told Dr Menz – his shoulder pain was a seven or eight out of ten ‘on all occasions’. He said he got ‘sharp pains’ and tried to balance the weight of items he lifted on his left side. He also said driving caused pain (which he might ‘fight through’);
· accepted that, after 22 January 2017, he was certified fit to work and returned to work (meaning he was off work for approximately four months);
· accepted that there were no recorded complaints to his general practitioner about his shoulder in the period from the beginning of January 2017 to the end of 2018. He said he mentioned it a ‘couple of times’ and was told to take Panadol, but the main issue was hay fever;
· claimed that he was working somewhere around 30 hours a week over five shifts, usually working nights, at Coles, stacking shelves (and that shifts were from 10 pm to 6 am);
· accepted that he was doing full night shifts with Coles (acting regularly as team manager), running his business, and also studying full-time;
· gave various explanations as to why he did not mention the business in his first affidavit, saying at one point that he (only later) thought it best to mention it because it was associated with his name;
· explained that his business involved site visits, liaising with clients, and checking on contractors. He employed two contractors in Tasmania. These contractors were located in Hobart, as well as outside Hobart, in Dave Street and Newtown. He said that he attended Hobart (from Sorell) around three or four times a week; and
· gave evidence about driving trips he had undertaken since being in Tasmania, including a weekend trip to Launceston and other day trips.
Medical evidence
A report from Dr MacDonald, of Alfred Health, recorded that the applicant was admitted to the Alfred Hospital on 26 September 2016. As well as a head injury, he had a comminuted fracture of the right humeral head. However, by 12 December 2016 the fracture was ‘united,’ and it was noted that he could return to work.
The applicant had an MRI of the right shoulder in February 2019, which showed no significant joint effusion, no significant rotator cuff pathology, and no significant bursitis.
On 7 November 2019, the applicant’s general practitioner, Dr Weearasekera, stated that the applicant had come to see him ‘as his pain was worse’. His report stated that the applicant had ongoing pain which was likely to persist for more than two years, but that, in general, his shoulder had improved considerably.
On 19 January 2021, Mr John O’Brien, the applicant’s consultant orthopaedic surgeon, opined that the applicant was unlikely to respond to active treatment, and had chronic shoulder pain with a poor prognosis, ‘mild’ disability, and some restriction of his dominant right shoulder movement. He noted that the applicant would be capable of the normal activities of daily living, but that physical activity such as lifting and the use of the arm at or above shoulder level was clearly restricted. He opined that the applicant was not totally incapacitated, and was capable of employment which involved physical modification of duties.
In a report dated 19 January 2021, Dr Menz, the respondent’s expert orthopaedic surgeon, opined that the applicant still had ongoing and significant right shoulder problems and low back pain, with a guarded prognosis for any improvement. However, he did not believe that the applicant’s physical injuries would in any way interfere with his capacity for employment.
In relation to the psychiatric issues, an early report from November 2018, Dr Ash Takyar, a psychiatrist, diagnosed the applicant with post-traumatic stress disorder (‘PTSD’) and a major depressive disorder. He said that about 40 per cent of the applicant’s psychiatric injury could be attributed to secondary effects of the physical injury.
On 7 November 2019, the applicant’s general practitioner, Dr Weearasekera, stated that the applicant’s main issue was his ongoing PTSD, for which he was seeing a psychiatrist.
Dr Nigel Strauss, a psychiatrist, diagnosed the residual symptoms of PTSD, chronic adjustment disorder with mixed anxiety and depressed mood, with a guarded prognosis in May 2020. He stated that the applicant’s level of efficiency and competency were ‘not as good as they used to be’, that he believed the applicant’s situation had stabilised, and that he would continue to struggle with his life both socially and vocationally. He did not specify what, if any, of the psychiatric symptoms were attributed to the applicant’s pain condition arising from the shoulder injury.
Dr Peter Doherty, psychiatrist, diagnosed the applicant with an adjustment disorder with depressed mood in June 2020, but considered that the applicant’s psychiatric condition was not related to the effect of the transport accident (as opposed to the assault). He also considered that it was unlikely that any significant interference took place with his ability to work due to the physical and psychological effects of the transport accident.
Reasons
By judgment delivered and orders made on 7 June 2021, her Honour dismissed the application with costs.[4] She found that the applicant had failed to establish the serious injury threshold in circumstances where she made a range of adverse findings about the credit of the applicant.
[4]Nimesh Watapaldeniya v Transport Accident Commission [2021] VCC 714 (‘Reasons’).
Her Honour accepted that the applicant suffered a physical injury, stating:
There is no real dispute about the plaintiff’s physical injuries. He suffered a comminuted fracture of the right humeral head which went on to achieve good union. He has persistent restriction of flexion, abduction and rotation of the right shoulder with persistent local tenderness proximal to the humeral head. There is some rotator cuff and bicep tendinopathy, subacromial bursitis and impingement.[5]
[5]Ibid [23].
Her Honour then summarised the medical reports cited already, as well as the evidence of the applicant.[6]
[6]Ibid [23]–[33].
In relation to the impact of the injuries on the applicant’s life, her Honour found the following:
I have no difficulty accepting that the accident has indeed had a significant impact on the plaintiff’s life. I accept that he can no longer play badminton or cricket, certainly to the level he could play prior to his injury. The other impacts of the accident are less relevant to the matters that I must consider, except to the extent that they can be attributed to his right shoulder injury. The shoulder injury was not responsible for the plaintiff’s move to Tasmania, the consequent break up with his girlfriend and the loneliness he now feels. That move was occasioned by the plaintiff’s desire to improve his prospects of obtaining permanent residency.[7]
[7]Ibid [36].
Her Honour then conducted a detailed review of the applicant’s evidence, and made extensive (unchallenged) adverse credit findings, including:
·that his explanations as to why he did not mention his business in his first affidavit were ‘unsatisfactory’ and ‘not credible’.[8] Rather, her Honour considered that he made a decision not to include reference to the business in his first affidavit as he did not think that disclosing it would help in his application;[9]
·that he sought to minimise the demands of the business to justify the fact that its existence was entirely absent from his first affidavit;[10]
·that he showed a ‘lack of candour’ about the value of a car used in his business, adding to an impression that he was being ‘evasive’;[11]
·that he had exaggerated his period of time off work in order to bolster his case;[12]
·that she was satisfied that the applicant was working somewhere around 30 hours a week as well as undertaking his professional study year. This was an increase on his pre-accident hours (20 hours) and was significantly more than he said in his first affidavit (15 hours). It followed that his evidence in his first affidavit (that he worked 15 hours), and failure to correct that evidence in his second affidavit, indicates that he had not been honest with the Court about his ability to work;[13] and
·that she was not satisfied that he made any complaints about his shoulder to his treating medical practitioners from the beginning of January 2017 to the end of 2018.[14]
[8]Ibid [38], [41], [45].
[9]Ibid [46].
[10]Ibid [41].
[11]Ibid [45].
[12]Ibid [49].
[13]Ibid [52].
[14]Ibid [56].
Her Honour recorded that, at best, the applicant’s evidence about his pain was ‘inconsistent.’ She accepted that he was in pain, that the pain worsened with work and on exertion, that it limited his activities, and had a significant impact on his day to day life. However, she rejected his account that the pain was seven or eight out of ten at all times and considered that this was an ‘exaggeration’ since if this were the case, he would be unable to work in his occupation as a shelf stacker, would be seeking medical treatment in relation to that pain, and would require significantly stronger medication than Panadol and Advil. Her Honour found it was more likely that his pain ‘on occasion’ amounted to seven or eight out of ten.[15]
[15]Ibid [59].
Her Honour further noted that the applicant’s evidence regarding his pain and difficulty driving was inconsistent with the evidence he gave in cross-examination about driving trips. She also found that he drove some 12.5 to 15 hours a week in total in respect of both his business and for Coles. Her Honour found that if driving was as painful and difficult as the applicant suggested, it was unlikely that he would undertake additional driving on holidays and weekends.[16] Her Honour found that this evidence, together with the inconsistent evidence about the period of time that he was off work, his complaints of pain, and his evidence in relation to Done & Dust, gave the impression that the applicant was ‘selective’ in what he chose to disclose to the Court.[17]
[16]Ibid [60].
[17]Ibid [61].
Her Honour then proceeded to make a number of findings (under a heading, ‘Findings’) as follows:
I do not consider that any of the inconsistencies in the plaintiff’s affidavit and oral evidence suggest that the plaintiff has no injury, or is not in pain. There is no dispute that the plaintiff suffered injuries arising from the accident, and these injuries will continue to have an impact on his life.
Counsel for the plaintiff says there has been no real challenge to the medico-legal expert evidence on behalf of the plaintiff, and that evidence provides little room for the plaintiff supposedly exaggerating his symptoms. There is an organic basis for his complaints, his condition is chronic and, as a young man, he will bear the consequences of that injury for life.
The question for me is whether, considering the whole of the evidence, the plaintiff has demonstrated that the consequences of the accident are ‘very considerable’ in respect of either pain and suffering, or economic loss, or both.
The inconsistencies in the evidence and the view I have formed that the plaintiff has been selective in what he discloses to the Court in an attempt to bolster his case, means that I have to examine carefully his assertions in relation to his ongoing pain and the consequences it has had for him. I am mindful in making this assessment that I must consider only the consequences arising from his shoulder injury and any psychiatric sequalae that results from that injury and his pain, and exclude the consequences of his injury that arise as a result of depression, anxiety and PTSD stemming from the traumatic circumstances of the accident, the end of his relationship, his loneliness occasioned by his move to Tasmania, and any other matters.
I accept that the plaintiff has pain and restriction of movement. I accept that there is an organic basis for his pain and restriction and that this is permanent and unlikely to be responsive to treatment or improve over time. I accept that this has impacted on his ability to play badminton and cricket, and that from time to time the pain is worse and interferes with his sleep. On occasion the pain may even be excruciating. I accept that living with a level of discomfort may cause a somewhat depressed mood, or a degree of adjustment disorder. However, on the basis of the medical material and the plaintiff’s affidavit evidence, I consider that the preponderance of his psychiatric symptoms are unrelated to his shoulder injury.
I do not accept that the pain the plaintiff suffers from his shoulder is as severe as he says, or that it could be anything like seven or eight out of ten at all times, given his ability to continue to work in an occupation that requires continuous use of his right arm and shoulder. Nor do I accept that the consequences as a result of this injury for his work and life have been as significant as he says.
He has, in fact, suffered no actual loss of earnings, and whilst he says that he has suffered a loss of earning capacity, there is nothing in the way of supporting material to corroborate this evidence. After the accident he was working around 30 hours a week, running his own business and studying full time. This was an increase from his pre-accident activities, working 20 hours a week and studying fulltime. It seems doubtful he could have worked any more hours after the accident, regardless of his visa conditions or his injury.
His current working hours at Coles, combined with the work he does for Done & Dusted including significant hours driving to and from Hobart, would amount to something close to full time employment. There is no supportive evidence that he has declined additional hours at Coles. It is the plaintiff’s burden to establish his loss of earning capacity arising from the injury. He has failed to establish that burden.
Having regard to the medical and affidavit evidence, as well as the evidence given by the plaintiff during the hearing, I conclude that the plaintiff has had significant consequences that may be described as ‘marked’, but do not meet the necessary threshold of at least ‘very considerable’. [18]
[18]Ibid [62]–[70].
Legal principles
A number of principles were not in dispute:
·first, in order for the applicant’s injury to be ‘serious’, the consequences of the injury to the applicant must be at least ‘very considerable’ and more than ‘significant’ or ‘marked’;[19]
·secondly, under s 93(4)(d), her Honour was required to determine whether the pain and suffering consequences, in combination with the pecuniary disadvantage consequences, satisfied the serious injury test;[20] and
·thirdly, in determining the seriousness of the injury, it was permissible to take into account the psychological consequences of the injury.[21]
[19]Humphries v Poljak (1991) 14 MVR 1, 11–12 (Crockett and Southwell JJ); [1992] 2 VR 129 (‘Humphries’).
[20]Thapa v Transport Accident Commission (2021) 97 MVR 268, 282 [61] (Beach, Kaye and Kennedy JJA); [2021] VSCA 239 (‘Thapa’).
[21]Ibid 283 [62].
Proposed Ground 1
The applicant submitted that her Honour found the following in relation to the applicant’s injuries:
(i) daily pain, which worsened with exertion and was occasionally ‘excruciating’;
(ii) restriction of movement of the dominant right upper limb;
(iii) an inability to pursue sporting and recreational hobbies;
(iv) interference with sleep;
(v) an ongoing psychological reaction to pain;
(vi) the permanence of the consequences.
The applicant submitted that these findings tend toward a finding of serious injury, particularly for someone of the applicant’s young age.
The applicant accepted that her Honour posed the correct enquiry,[22] but then concluded that the threshold was not met six paras later.[23] The applicant submitted that those paras in between [65] and [69] failed to expose the path of reasoning for the conclusion reached. While her Honour made findings which tended toward serious injury, the reader was left to wonder why she decided otherwise.
[22]At Reasons, [64].
[23]Ibid [70].
In written submissions, the applicant particularly criticised para [67], and suggested that her Honour seemingly disregarded the submission that the applicant displayed stoicism by continuing to work. However, in oral submissions counsel for the applicant accepted that the case was not to be approached on the basis that the applicant was a stoic. The applicant also suggested that her Honour’s refusal to accept the consequences were ‘as significant’ as the applicant claimed was done without elaboration.
The applicant submitted that her Honour’s findings in relation to the applicant’s credit did not provide the basis to inform as to why the consequences which she did find were insufficient to meet the threshold. Accordingly, the applicant submitted, her Honour’s findings on credit failed to spell out or provide a proper foundation to render the applicant’s application unsuccessful in any logical or rational way. The applicant submitted that any adverse findings on credit should not be treated as a default catch-all mechanism to reject an otherwise worthy application. The case had to be decided on the whole of the evidence.
In oral submissions, counsel for the applicant emphasised her Honour’s findings which accepted that there was significant pain. The applicant highlighted the reference to ‘excruciating’ pain,[24] and submitted that the reasons did not just ‘tend towards’ a finding of serious injury (as was accepted in the written submissions), but, rather, amounted to a finding that there is a serious injury. The applicant submitted that her Honour needed to provide appropriate reasons to disavow this position.
[24]Ibid [66].
The applicant also referred to para [69], and submitted that her Honour focused on loss of earnings at the time of application, rather than considering pecuniary disadvantage by reference to the future.[25]
Analysis
[25]Citing Abbas v Transport Accident Commission (2015) 72 MVR 182; [2015] VSCA 217 (‘Abbas’).
In Hunter v Transport Accident Commission[26], Nettle JA identified the fundamental requirements necessary for the provision of adequate reasons in an application under s 93(4)(d) of the Act:
When a judge decides an application under s 93(4)(d) of the Act the judge is under a duty to provide reasons for his or her decision. Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.[27]
[26](2005) 43 MVR 130; [2005] VSCA 1 (‘Hunter’).
[27]Ibid 136–7 [21] (Nettle JA) (citations omitted).
This Court in Thapa also stated that, in essence, the reasons must disclose the ‘path’ or ‘route’ by which the judge reached the ultimate conclusion. [28]
[28](2021) 97 MVR 268, 289 [96] (Beach, Kaye and Kennedy JJA); [2021] VSCA 239.
A number of preliminary points can be made about the applicant’s complaints.
First, this was a case where there was no dispute that the applicant suffered an injury. However, the injury was not one of those injuries which was of itself ‘serious.’[29] Rather, her Honour needed to make an assessment of the consequences of that injury, and in particular, whether those consequences were more than ‘significant’ or ‘marked’, and at least very considerable. The case was therefore, like so many personal injury cases, one where the reliability of the applicant was of considerable importance to the ultimate outcome.[30]
[29]And see Nikolic v Transport Accident Commission (2020) 92 MVR 242, 255–6 [64] (Beach and T Forrest JJA); [2020] VSCA 148, where the Court suggests that an extreme example would be the amputation of an arm or leg.
[30]Ibid, including cases cited at footnote 21.
It is highly significant, then, that her Honour made extensive adverse findings about the credit of the applicant in this case. These findings included that his evidence was ‘inconsistent’, ‘not credible’, ‘evasive’, ‘selective’, that he ‘exaggerated’, and that he had not been honest. Her ultimate finding that the consequences were not ‘as significant’ as he claimed was clearly affected by these views as to the applicant’s credit (and also implicitly rejected any suggestion of stoicism). This is not to say that her Honour based her decision on credit alone. To the contrary, she carefully outlined the medical evidence, and clearly had regard to it.[31] However, the applicant’s credit was crucial in determining whether her Honour could be satisfied that the at least ‘very considerable’ threshold was met.
[31]Especially given her statements at Reasons, [66] and [70].
Secondly, the applicant’s summary of her Honour’s findings ignore a number of other important findings that her Honour made, as we have set out, above. They included that the applicant was working close to full-time, driving for pleasure, and that he did not complain to practitioners about his pain for some two years.
Thirdly, many of the applicant’s submissions appeared to be tantamount to a complaint that the decision was ‘wrong’ for reasons unrelated to the adequacy of the reasons. This included the complaint about her Honour’s reference to ‘excruciating’, as well as the complaint about the failure to consider future earnings. However, the reference to ‘excruciating’ was clearly a reference back to the applicant’s description of his pain in his second affidavit, as set out in para [58]. It was not a positive finding of the applicant suffering excruciating pain on any relevant periodic basis or in any relevant particular circumstances. Her Honour’s statement that pain ‘may be’ excruciating ‘on occasion’, without more, is too general to advance the applicant’s case in any material respect. There was also no basis for complaint about her Honour’s treatment of the applicant’s earning capacity. To the contrary, the reference to ‘loss of earning capacity’[32] is appropriately futuristic (and may be contrasted with the reference to ‘no actual loss of earnings’, which was the focus of the previous para [68]).
[32]Reasons, [69].
Proposed ground 1 does not invite an examination of the merits of her Honour’s decision in any event. Rather, its sole focus involves a consideration of the adequacy of the reasons.
Returning, then, to the structure of the reasons, we accept the submissions of the respondent that her Honour carefully dealt with the substantial points that were raised at the hearing, made findings on material questions of fact, and referred to and considered, the relevant evidence (including providing an extensive analysis about the applicant’s credit). Her Honour’s reasons were careful, thorough, and comprehensive.
The real complaint is that her Honour did not sufficiently explain why the consequences did not reach the ‘very considerable’ level. However, the ultimate assessment of whether an injury is ‘serious’ involves a value judgment or impression which does not readily admit of explicit reasoning. Thus, in Nichols v Robinson[33], Winneke P described the nature of the task carried out by her Honour as follows:
An assessment by the trial judge as to whether any injury is ‘serious’ when measured against the criteria of guidance laid down in the well known authorities is a task which is carried out by County Court judges day after day. It is a task which necessarily involves them in making a value judgment as to whether the injury which they are considering is, by comparison with other cases in the range of possible impairments or losses, to be described as ‘very considerable’. Like an assessment of non-pecuniary loss in a personal injury case, it is not a value judgment which needs now to be attended by statements of principle, nor does it readily admit of explicit reasoning.[34]
[33](2001) 33 MVR 83; [2001] VSCA 11 (‘Nichols’).
[34]Nichols (2001) 33 MVR 83, 87 [14] (Winneke P); [2001] VSCA 11. This point has been reiterated in a number of subsequent decisions as to which see discussion in Woolworths Ltd v Warfe [2013] VSCA 22, [129]–[130] (Kaye AJA).
In this case, then, there may well be a number of matters which ‘tended towards’ a serious injury finding, as the applicant claimed. However, a natural reading of paras [67]–[70] is that, although these features meant that there were ‘significant’ consequences, her Honour was unable to be satisfied that they went further and reached the ‘very considerable’ level given her issues with the applicant’s credit.
There is no need for any more explicit reasoning than this. Given the extensive findings as to credit one is not ‘left to wonder’ why the application failed.
Proposed ground 1 is not sustained.
Proposed Ground 2
The applicant highlighted that he was 27 years of age at the time of the transport accident, and 32 years of age at the time of the hearing. He referred to the statements of this court in Stijepic v One Force Group Aust Pty Ltd & Anor[35] that it is relevant to look at the likely period for which any consequences will be experienced, and highlighted that a ‘Stijepic submission’ was made in this case. He also noted that this principle had been affirmed more recently in the decision of Hooley v Transport Accident Commission.[36]
[35][2009] VSCA 181 (‘Stijepic’).
[36](2019) 90 MVR 407; [2019] VSCA 263 (‘Hooley’).
The applicant submitted that the judgment failed to address the Stijepic submission, and provided no basis to assume that consideration was given to it. Given her Honour’s positive findings regarding the applicant’s experience of pain, interference with sleep, restriction to his hobbies and recreational pursuits, together with her acknowledgement that such consequences were permanent, the law required her to address and give due weight to the long duration of pain and suffering ahead for the applicant.
In oral submissions, counsel for the applicant accepted that her Honour made the finding that the applicant’s condition was chronic, and ‘as a young man, he will bear the consequences of that injury for life’.[37] However, he submitted that her Honour did not properly consider the applicant’s young age given the significance of the matter, and that her Honour failed to consider relevant authorities (including Hooley).
[37]Reasons, [63].
Analysis
The applicant’s age was certainly a relevant consideration. However, as the respondent submitted, the applicant’s youth of itself did not necessarily mean that the consequences rose to the ‘very considerable’ level. Counsel for the applicant also ultimately accepted that her Honour was not taken to the relevant authorities on this matter, which turn on their own individual facts. By way of example, the decision in Hooley is readily distinguishable given it concerned an applicant who was unable to engage in significant aspects of his pre-injury work. The court considered that the pecuniary disadvantage of having one’s chosen field of employment permanently limited from a young age was a very significant consequence. This may be contrasted with the present case where there was no suggestion of permanent limitation of a chosen field of employment. To the contrary, her Honour found that the applicant was able to continue his work as well as run a business (together with studying full time).
In any event, the short answer to this complaint is that her Honour clearly took into account the applicant’s youth. As well as recording his date of birth,[38] she also (in the ‘Findings’ section) expressly referred to the fact that ‘as a young man, he will bear the consequences of that injury for life.’[39] Her Honour can also be taken to be alive to the ongoing nature of the consequences in accepting that his injuries would continue to ‘have an impact on his life’,[40] and that his permanent condition was unlikely to be responsive to treatment, or to improve, ‘over time’.[41]
[38]Ibid [4].
[39]Ibid [63].
[40]Ibid [62].
[41]Ibid [66].
The applicant has not shown that her Honour failed to consider the impact of the applicant’s young age, and proposed ground 2 must also fail.
Conclusion
For the reasons given above, we would grant leave to appeal, but dismiss the appeal.
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