West v Pac-Rim Printing Pty Ltd
[2003] VSCA 68
•5 June 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3712 of 2002
| DAVID WEST |
| Appellant |
| v. |
| PAC-RIM PRINTING PTY. LTD. |
| Respondent |
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JUDGES: | PHILLIPS, BATT and CHERNOV JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 May 2003 | |
DATE OF JUDGMENT: | 5 June 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 68 | |
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Accident compensation — Workplace injury — Leave to bring common law proceedings — “Serious injury” — Whether injury a serious long-term organic impairment — Symptoms diagnosed as “psychogenic” — Whether primary judge failed to evaluate evidence correctly — Accident Compensation Act 1985 s.135A(19) paras. (a), (c) of “serious injury” definition.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B.W. Collis QC with Mr A. D. B. Ingram | Holding Redlich. |
For the Respondent | Mr J.H.L. Forrest QC with Mr P.H. Solomon | Deacons. |
PHILLIPS, J.A.:
I agree with Chernov, J.A.
BATT, J.A.:
I also agree with Chernov, J.A.
CHERNOV, J.A.:
The appellant, David West, appeals against the decision of a County Court judge who dismissed his application, brought pursuant to s.135A(4) of the Accident Compensation Act 1985 (“the Act”), for leave to bring a proceeding for damages in respect of an injury that he suffered on 9 October 1995 in the course of his employment with the respondent. The application was made by way of an Originating Motion, filed on 12 September 2000, and was based on the claim that the injury was a “serious injury” within the meaning of paragraph (a) of the definition of that term in s.135A(19) of the Act (“para.(a)”). His Honour heard the contested application on 12 and 13 March 2002. On 23 March 2002 he dismissed the application on the basis that the injury arising from the accident did not fall within the definition of “serious injury” in para.(a) because the resultant pain which impaired the function of his thoracic spine was psychogenic or psychosomatic in nature. His Honour went on to say that the injury could only fall within the meaning of “serious injury” in paragraph (c) of the definition in s.135A(19) of the Act (“para.(c)”) but that, on the evidence, no case was made out under that provision. It is convenient to mention at this point that the respondent did not contend that the decision was interlocutory and that, therefore, the appellant required leave to bring the appeal. It is, however, of no consequence in this instance because, even if the decision below was interlocutory, in my view, it would be appropriate to grant leave to appeal.
Background
The appellant is presently aged 34 years and was 26 years of age at the time of the accident. He is a qualified printer and, at various times over several years before the accident, was employed by the respondent. Whilst in the respondent’s employ, on this occasion, it was the appellant’s task to maintain the workings of a large press, known as the “Rotoman 4” press, which had a number of printing units that were located, one loop on top of the other, so as to enable both sides of a magazine, or an advertising catalogue, to be printed simultaneously. The appellant was required to adjust various parts of the machine to ensure that ink in the necessary amount and colour was available to complete the particular printing job to specification. The appellant gave evidence that he usually adjusted various parts of the machine between 100 and 200 times a day.
On 9 October 1995, the appellant sustained the injury in question when he climbed into the press in order to make an adjustment to the colour scheme. This required him to assume a crouching position within a three foot clearance and then to back out of the press on his haunches. Unknown to him, on the previous night engineers had secured a folding step within the press using oversized bolts which protruded by approximately one inch. As the appellant was moving backwards, the middle part of his back came forcefully into contact with one of those bolts. The contact was sufficiently severe to penetrate his overalls and cause an abrasion to his back and some bleeding. He described the sensation that he felt when his back came into contact with the bolt as similar to that felt upon striking the funny bone and said that he felt this sensation throughout his body.
A supervisor attended to the injury and the appellant was able to complete his shift, albeit in pain. The pain intensified, however, and, on the following day, the appellant’s back “cramped up” and he experienced some difficulty in walking. He obtained treatment from the company’s doctor and was told that he had sustained a soft tissue injury. The doctor gave him time off work and referred him to a physiotherapist for treatment. But the treatment regime did not improve the appellant’s condition and, eventually, he ceased his employment with the respondent. Later, he was able to secure other work, including working in his own sub-contracting business, but these jobs involved either very light printing work or the assistance of others.
The pain to the appellant’s back and chest continued and, over the years since the accident, he has been referred to a number of specialists, has had numerous x-rays and two MRI scans of his spine and associated parts of his body and has been prescribed various medications. At the time of the hearing, the appellant claimed that he still had pain in the back radiating to his chest and that he was unable to perform the type of work that he was able to do before the accident.
The hearing
Notwithstanding that two psychiatric reports of Dr. Kaplan were tendered on the appellant’s behalf at the hearing, his case was that his injuries resulted in a “serious long term impairment or loss of body function” and fell within para.(a) of the definition of “serious injury”. It seems clear enough that there was no attempt to make a case for the appellant under para.(c). In any event, his Honour was not satisfied on the evidence before him that the appellant had made out his case. He considered that, as a result of the accident, the appellant suffered a disc prolapse at T5/6 and that this caused him to experience severe pain for some months. Thereafter, said the judge, the pain became psychogenic and thus did not fall within the para.(a) definition of “serious injury”. These conclusions were reached by his Honour in the following context.
Medical evidence
A large body of medical evidence was placed before his Honour, essentially in the form of medical reports. The only doctor who gave oral evidence and was cross-examined was Professor Rosenfeld, the appellant’s treating neurosurgeon. It is apparent from his Honour’s reasons for judgment that he regarded that witness as an important, if not a key, witness in the case not only because he was a specialist but also because he was the appellant’s treating practitioner who saw him more than any other doctor who reported on his condition.
Without analysing here all the medical reports, it is sufficient to note that, as at and prior to about July or August of 1996, the medical opinion of a number of doctors who had examined the appellant, including Professor Rosenfeld, was that the accident resulted in a disc protrusion “at T5/6 on the L side with referred pain to the anterior chest” and that this continued to cause him considerable back pain which, in turn, inhibited his movements and prevented him from working at the level at which he worked prior to the accident. Moreover, on the basis of early medical examinations, Professor Rosenfeld and another neurosurgeon, Mr. Wallace, were of the opinion that surgery would be required to relieve the appellant of the pain that he was experiencing. Later, as will become apparent, Professor Rosenfeld saw no need for surgical intervention given the improvement to the physical aspect of the appellant’s injury. So far as is relevant, he made the following reports in relation to the appellant’s condition.
(a)In his report to the appellant’s solicitors of 31 May 1996, Professor Rosenfeld noted, amongst other matters, that there had been a gradual improvement in the level of the appellant’s back pain and that, because of this and because the pain now switched from side to side and was more diffuse, surgery should be deferred. He went on to say, however, that a repeat MRI scan was needed “to see if the disc prolapse has worsened since the first one, and surgery may be necessary if the pain problem persists and it is seen to be consistent with the disc prolapse”. He further said: “the history is now not consistent with a unilateral small disc prolapse in the thoracic region, which should theoretically be causing unilateral pain only. This is one of the main reasons for deferring any surgery.”
(b)The second MRI examination of the appellant’s thoracic spine took place on 16 August 1996. Professor Rosenfeld subsequently reviewed the appellant and in his report of 26 August 1996 said, amongst other things, that “the disc protrusion previously present at T5/6 has reduced in size significantly since the previous examination and is not causing any direct pressure on any adjacent neural structures. Despite this, [the appellant] still complains of chest pain ... and pain in the mid-thoracic region around T5/6.” Professor Rosenfeld concluded that “the mechanism of this must be functional, i.e. psychogenic”. He went on to say that surgery was “not an answer”. It should be noted that this was the first time that, in his reports, Professor Rosenfeld attributed the appellant’s pain to a psychosomatic cause. Consequently, his later reports assume considerable significance, given that, as will be explained later, the appellant’s case on appeal was that, in his subsequent reports and oral evidence, Professor Rosenfeld recanted his opinion of 26 August 1996 that the pain was psychogenic.
(c)In his report of 8 August 1997 Professor Rosenfeld said that the appellant still experienced back pain, that he was “now used to it” and that he did not need to take any analgesics for it. Moreover, the appellant’s movements of his thoraco-lumbar spine were normal. The doctor repeated his earlier opinions that the injury was “... one of soft tissue injury to the back developing into a chronic pain syndrome. He does have a thoracic disc prolapse at T5/6 but this may be incidental to the problem. It remains uncertain to what degree the disc prolapse has contributed to the current pain state. There was certainly no evidence that it is compressing the spinal cord nor has there been in the past.” Professor Rosenfeld went on to confirm that he doubted that surgery would alter the appellant’s state of chronic pain and that he could not explain “the radiation into the axilla except that it is part of the pain amplification syndrome”.
(d)According to Professor Rosenfeld’s report of 24 September 1999 his diagnosis of the appellant remained essentially the same. He said in the report that the appellant will remain a “chronic pain sufferer and that his pains could be described as a pain amplification syndrome or a regional pain syndrome. Essentially he suffers from a chronic pain syndrome.” Later Professor Rosenfeld said that there was “still a large functional or psychosomatic element to his problem”.
(e)In the context of advising the appellant’s solicitors on 26 February 2002 as to whether the appellant’s injuries amounted to a “serious injury”, Professor Rosenfeld reported that his findings had not changed. He opined that the appellant had “suffered a serious injury, which has been related directly to the work injury in 1995. ... I believe his chronic pain relates directly to the work injury in 1995 and probably the thoracic disc prolapse is also related to this work injury and has contributed to the onset of the chronic pain syndrome.”
In the course of giving viva voce evidence Professor Rosenfeld agreed with his Honour that the likelihood was that the disc prolapse had wholly or substantially resolved or healed so that, “mechanically”, there was no reason why the appellant should experience pain. As I have said, his Honour was not satisfied that the appellant established that, at the time of the hearing[1], the appellant’s impairment was organic and in the result, dismissed the application.
[1]See Humphries v. Poljak [1992] 2 V.R. 129 at 167 per McGarvie, J., although in dissent but not on this issue.
Appellant’s case on appeal
At the outset of his submissions, Mr. Ingram, for the appellant, contended that his Honour misinterpreted Richards v. Wylie[2] because he sought to determine only whether the injury was a “serious injury” within the meaning of para.(c). In support of that contention counsel pointed to his Honour’s concluding remarks, which I have summarised earlier, in the course of which he said that “about 8 months after the incident, the pain became, as Professor Rosenfeld put it in August 1996, ‘psychogenic’. It therefore has to be judged under paragraph (c) of the definition of serious injury. However, no case is made out under paragraph (c).” This submission, however, misunderstands what his Honour actually conveyed. It seems clear enough that what the judge was saying was that, since the pain was psychogenic, the injury could only fall within the statutory definition of “serious injury” if it could be made out under para.(c). Assuming the correctness of his Honour’s finding that the pain was psychogenic, what was said above is unexceptional. The judge was obviously entitled to go on to say, as he did, that no case was made out (or was sought to be made out) under para.(c). It follows, that this aspect of the appellant’s case must fail.
[2](2000) 1 V.R. 79.
Be that as it may, the central question on appeal was whether his Honour erred in concluding that, at the time of the hearing, the appellant’s pain was psychogenic and not organic. His Honour’s finding in that regard was critical to the determination of the issue before him because, if it were to stand, it would follow that the appellant’s impairment was not organic and, therefore, the injury, albeit arising out of the work related accident, was not a “serious injury” for the purpose of para.(a) – see Richards v. Wylie. The appellant’s case on this aspect of the appeal was based almost wholly on the claim that his Honour erred in acting on Professor Rosenfeld’s opinion of 26 August 1996 that the pain was psychogenic because the witness had resiled from that view in his subsequent reports and oral evidence. It was said that, taken as a whole, Professor Rosenfeld’s evidence was that, notwithstanding that the prolapse had rectified itself, the appellant’s impairment continued to have an organic basis. Thus, it was said, in concluding as he did, his Honour made a specific error which vitiated his decision.
Although the attack on his Honour’s decision was couched in terms of specific error, it was really a claim that his Honour failed to evaluate correctly the relevant evidence, in particular, Professor Rosenfeld’s later reports and his viva voce evidence. In other words, as Mr. Forrest for the respondent submitted, the appellant was effectively asking this Court to re-evaluate the totality of the medical reports and the oral evidence of Professor Rosenfeld and, on such a re-evaluation, to conclude that the finding that the pain became psychogenic should now be overturned and replaced with a finding of continuing organic injury, productive of impairment with the requisite serious consequences to the appellant.
It is clear that the decision of the primary judge (on the question whether the pain was psychogenic) involved elements of fact, degree and value judgment and in those circumstances, it is no easy task for the appellant to persuade this Court that his Honour erred as is claimed, particularly where the judge has had the advantage of hearing and seeing Professor Rosenfeld cross-examined (and re-examined). See Fleming v. Hutchinson[3], Mobilio v. Balliotis[4], Nichols v. Robinson[5] and Richards v. Wylie[6]. In Mobilio, Winneke, P. said[7] that the task of a judge in considering whether the injury falls within the statutory definition of “serious injury” is similar in nature to one which requires an assessment of the non-economic component of damages. And as Brooking, J.A. noted in that case[8], the ultimate question to be determined by the judge is one of degree “necessitating an evaluation which did not hinge on any legal principles but depended on the opinion of a judge familiar with” these types of applications and the “range of conditions” which form the subject of a serious injury application. A similar approach was adopted by Phillips, J.A. in Mobilio, where his Honour said[9] that “it must then be correspondingly more difficult on appeal for the appellant to demonstrate error below, at least in the absence of some specific error of fact or law.” Consistently with those judicial statements, it has been said by this Court that the decision of a trial judge on the question of “serious injury” will not be interfered with on appeal unless the decision is “manifestly” or “wholly” erroneous[10] or unless it appears on its face to be clearly unsustainable[11].
[3](1991) 66 A.L.J.R. 211.
[4][1998] 3 V.R. 833 at 836 per Brooking, J.A and 858 per Phillips, J.A.
[5][2001] VSCA 11 at [16].
[6]At 86 per Winneke, P.
[7]At 835.
[8]At 836.
[9]At 858.
[10]Mobilio at 841 per Brooking, J.A. and at 858 per Phillips, J.A., with whom Charles, J.A. agreed.
[11]Giannakopoulos v. Melwire Pty. Ltd. [2000] VSCA 153 at [7] per Tadgell, J.A. and Nichols v. Robinson [2001] VSCA 11 at [16] per Winneke, P.
In light of these observations, I think that in order for the appellant to succeed in his principal claim, he must establish that there was no evidence on which the learned judge could have reasonably made the critical finding of fact, namely, that the appellant’s pain was psychogenic. That it was open to his Honour to construe Professor Rosenfeld’s report of 26 August 1996 as stating that the appellant’s pain was psychogenic seems to have been accepted by Mr. Ingram. But what counsel contended in his carefully reasoned and well presented submissions was, as I have said, that his Honour wrongly failed to have proper regard to Professor Rosenfeld’s subsequent reports and to his oral evidence in which he effectively expressed the opinion that the appellant’s pain had an ongoing physical basis. It was also said that there was other evidence which pointed to that conclusion, none of which was given due weight by the trial judge.
Oral Evidence
I turn first to Professor Rosenfeld’s oral evidence. It should be said at the outset that it seems clear from Professor Rosenfeld’s oral evidence that, consistently with his reports, he was of the opinion that by the time of the hearing the prolapse was resolved. Nevertheless, said the appellant’s counsel, the gist of his evidence was that the pain had an ongoing physical basis and was connected with the accident. Thus, it was pointed out by way of example that in cross-examination Professor Rosenfeld did not accept the suggestion put to him by the respondent’s counsel that the appellant’s pain seemed to have “no direct organic cause”. Counsel claimed that the witness thereby confirmed his opinion that there was a continuing organic basis for the appellant’s pain. But what Professor Rosenfeld said in that regard must be seen in its proper context. A little later in his evidence Professor Rosenfeld was brought back by counsel to his disagreement with the proposition that the pain had “no direct organic cause” and at that stage he made it plain that, by rejecting counsel’s suggestion in that regard, he meant to convey no more than that, in its origin, the pain had an organic basis. Professor Rosenfeld said that he was not “sure” whether the thoracic disc prolapse was the cause of his pain and went on to explain that the prolapse may have “triggered the pain in the first place” and that even if the disc protrusion resolved, “as it seems to have done in this case”, the pain may continue for “whatever reason”. He then said: “So there is an organic basis even though the perpetuation of that basis is seen on the x-ray”. In my view, it was open to his Honour to conclude that in that part of his evidence the witness was only saying that there was an historical connection between the injury and the pain.
There are other passages in Professor Rosenfeld’s oral evidence, as there are in his reports subsequent to 26 August 1996, that speak of the injury being related to the accident. For example, the report dated 8 August 1997 documents that the appellant’s state of chronic pain was “clearly” linked to the original injury. In a subsequent report dated 26 February 2002, the opinion expressed was that the chronic pain syndrome was a direct consequence of the work injury in 1995, moreover, that it was probable that the thoracic disc prolapse was also related to the work injury and that it had contributed to the onset of the syndrome. During cross-examination, Professor Rosenfeld also spoke of the disc prolapse and the attendant pain as being “likely” to have originated from the workplace injury and expressed the view that a disc prolapse in the thoracic region “can cause chronic pain”. In my view, however, this evidence stops short of amounting to the witness saying that the appellant was suffering a continuing physical injury; it is consistent with Professor Rosenfeld saying no more than that there was an historical connection between the disc injury and the pain. The appellant’s counsel, however, argued that such an interpretation of the evidence was not open to his Honour given the following passage of evidence of Professor Rosenfeld in re-examination:
“To the extent that there has been some recovery within the structure of the disc, the thrust of your evidence is that that doesn’t affect its involvement in the ongoing pain that’s been suffered?---I don’t believe so in this case.”
In my view, however, the answer does not take the appellant’s case on this issue any further. It is unclear whether the reference to “involvement” in that passage is a reference to continuing injury. Moreover, bearing in mind that the question and answer were couched in negative terms, the answer does not amount to the witness saying that the appellant was suffering an ongoing physical impairment. In my view, the answer is consistent with the witness merely saying that there was an historic relationship between the two conditions. Put at its very lowest, there is such ambiguity in the question and answer that his Honour was not compelled to give the response the meaning for which counsel now contends, particularly bearing in mind that it was a leading question asked in re-examination.
Totality of Rosenfeld’s Evidence
Pausing at this point, it seems to me that there is nothing in Professor Rosenfeld’s oral evidence to which I have referred that required his Honour to conclude that the witness changed the opinion he held on 26 August 1996 that the pain was psychogenic. Put another way, in my view, this evidence does not make unreasonable his Honour’s conclusion that by the time he gave evidence Professor Rosenfeld was of the opinion that the appellant’s pain was psychogenically based. This is particularly so when one puts his oral evidence in the context of his reports made after 26 August 1996 which can be sensibly read as expressing the opinion that the appellant did not have any relevant organic problems. In particular, his latest report of 26 February 2002 can be properly construed as expressing the conclusion that, although historically the pain was caused by physical damage to the disc at the time of the accident, later the cause of it became the chronic pain syndrome. That this was Professor Rosenfeld’s view at the hearing seems to be confirmed by his answer to his Honour’s question to which reference was made earlier[12], which, as Mr. Forrest submitted, was intended to deal with whether there was an organic basis for the pain. The larger context of that answer is as follows:
“HIS HONOUR: The prolapse was healing itself by the looks of it, wasn’t it?---Yes, Your Honour.
So it might have disappeared altogether by now?---Maybe so, but sometimes the disc prolapse can recur. If there’s a weak point in the structure of the disc, the disc may prolapse again, if there’s some stimulus to induce it to prolapse. But in this case I haven’t really had any sense that the particular episode has happened that has caused the disc to prolapse again, but the only way to tell for sure would be to do another MRI scan. But as said before I think it’s unlikely that he would have developed another prolapse. I think it’s likely that that disc has resolved based on that x-ray report that we were reading before, Your Honour.
As you said earlier if pathology has resolved, mechanically there’s no reason why he should have pain, why the pain persists?---That’s correct, Your Honour.”
[12]See [9] above.
It was common ground that his Honour’s reference to “pathology” was a reference to the disc pathology and it seems to me that the word “mechanically”, as used by the judge, meant “by reason of a disc or other physical injury”. As Mr. Forrest pointed out, if the witness considered that there was a physical basis for the pain, he would have said in answer to the judge’s question that the resolution of the disc pathology would not have halted the pain.
Thus, looking at the totality of Professor Rosenfeld’s evidence, it was well open to his Honour to conclude that, according to this expert, the pain no longer had a continuing physical basis but rather, was psychogenic by the time of the hearing in the County Court.
Other Medical Evidence
The appellant’s counsel submitted that there was other medical evidence which should have driven his Honour to the conclusion that the appellant’s impairment was organic. In particular, he pointed to the evidence of Dr. Kaplan, a psychiatrist, who had examined the appellant on two occasions and whose opinions are contained in his reports of 5 August 1996 and 27 December 2001, which were accepted by his Honour. In essence, Dr. Kaplan diagnosed the appellant as suffering from psychiatric problems because of the pain that he was experiencing. The appellant’s counsel relied on the fact that Dr. Kaplan did not suggest that the pain was psychologically or psychiatrically based. It was put for the appellant that, had that been the case in Dr. Kaplan’s opinion, he would have said so. Thus, it was claimed, the absence of any statement by this psychiatrist that the pain was psychosomatic was a strong indication that, in his view, that was not the case. Such a conclusion, it was said, was consistent with Dr. Kaplan’s finding, which is contained in his report of 27 December 2001, that the appellant’s psychological condition had subsided since his first examination of him. As I understand counsel’s argument, it was said that the improvement in the appellant’s psychological condition made it more likely that the pain was related to a physical condition.
In my view, however, Dr. Kaplan’s evidence was not inconsistent with Professor Rosenfeld’s opinion that the pain was psychosomatic; if anything Dr. Kaplan’s reports support the Rosenfeld position. The mere fact that he observed that the appellant was suffering from psychological problems by reason of the pain cannot mean that the pain was organically based. In any event, Dr. Kaplan was not in a position to express meaningfully an opinion as to whether the pain was physically based because he did not have before him the full range of medical reports concerning the appellant; moreover, his expertise was not in the area of neurology and associated fields. Also, the mere fact that the appellant’s psychological condition had improved does not mean that, by reason of such change, the injury to the discs somehow became an ongoing cause of the pain. Both Professor Rosenfeld and Dr. Kaplan referred to the appellant’s improving ability to cope with his pain and to his genuine wish to “get on with his life” notwithstanding that he was still experiencing severe pain. In my view, that is not a factor that compelled his Honour to conclude that the appellant’s impairment was organic.
Nor, despite a submission to the contrary, am I persuaded that there was any “preponderance of other medical opinions” to the effect that the pain was still organic in its basis. It is plain from his Honour’s reasons that he had regard to all medical reports that were put before him and it could not be fairly said that the judge was partial in his interpretation of, or in the weight that he gave to, the evidence before him, notwithstanding that, as I have already mentioned, he considered Professor Rosenfeld to be an important, if not key, witness.
In any event, the other medical reports are not, in the main, inconsistent with Professor Rosenfeld’s relevant opinion, which was, as I have said, first formulated in his report of 26 August 1996.[13] Many of these other reports were prepared before 26 August 1996, being during the period when Professor Rosenfeld himself treated the pain as being organically based and so there was no inconsistency there. In any event, to the extent that some of those other reports might be said to be inconsistent with Professor Rosenfeld’s later opinion, no relevant error was made by his Honour in preferring the latter to the former.
[13]I note that towards the end of his reasons, his Honour seems to say that Professor Rosenfeld held the view that the appellant’s pain was psychogenic as from approximately May 1996. But in my opinion, a fair reading of his reports, make it apparent that he first expressed that view in August, and not in May, of 1996.
As I have said, the learned judge concluded that, in the end, the basis or the genesis of the appellant’s pain was not the disc prolapse but was psychogenic or psychosomatic in nature. Consequently, he found that the appellant “has not discharged the onus which rests on him of satisfying me on the balance of probabilities that the pain he feels, which is the only thing which now impairs the function of his thoracic spine, was serious and long term”. No doubt, what his Honour meant by that sentence was that the appellant had failed to establish that the injury he suffered in October 1995 had, at the time of his application to the court, physical consequences, or, put another way, that it produced an ongoing organic impairment. By saying, in effect, that the appellant had to establish an organic impairment in order to make out his case under para.(a), his Honour was applying, correctly, I think, the relevant principles formulated by this Court in Richards v. Wylie[14]. For the reasons I have given, it was open to his Honour to conclude on the evidence that the appellant had not satisfied him that his impairment was organic.
[14]At 85-87 per Winneke, P., with whom Buchanan and Chernov, JJ.A. agreed.
For completeness, I mention that Mr. Forrest submitted that the present case was akin to Richards v. Wylie and, in my opinion, he was correct in that contention. The situation in Richards v. Wylie was similar to that which prevailed here in the sense that in that case the symptoms which were said to constitute impairment of body function were the product (at least to a significant degree) of the plaintiff’s mental or behavioural disturbances or disorders that were developed as a result of the accident – post-traumatic stress disorder. In the circumstances, the Court in that case said that the injury did not fall within the definition of “serious injury” in para.(a). Here, as I have said, his Honour’s findings (which were open to him on the evidence) were that by the time of the hearing the pain was psychogenic in its basis and, thus, the impairment was not now organic and the injury could not be properly characterised as one falling within para.(a). The difference between this case and Richards v. Wylie is, of course, that here, at the early stage of the development of the pain, there was a relevant relationship between it and the physical injury and it was only later that the pain became wholly or at least substantially psychogenic in its basis. But such a difference between the cases is irrelevant for present purposes.
Conclusion
In the circumstances, it was open to his Honour on the evidence before him to find that the appellant’s injury did not fall within the statutory definition of “serious injury” and thus, dismiss the application. It follows that , in my view, the appeal should be dismissed.
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