Hamidi v TAC [2023] VSCA 139 (9 June 2023)

Last Updated: 9 June 2023

SUPREME COURT OF VICTORIA COURT OF APPEAL

S EAPCI 2022 0085

TAHEREH HAMIDI	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	BEACH, T FORREST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2023
DATE OF JUDGMENT:	9 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 139
JUDGMENT APPEALED FROM:	[2022] VCC 1263 (Judge English)

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ACCIDENT COMPENSATION – Transport accident – Serious injury application – Spinal injuries – Fractured transverse processes and aggravation of asymptomatic spondylosis – Continuing pain in back and neck – Whether consequences of injury at least very considerable – Whether consequence at least very considerable in light of pre-accident medical conditions – Applicant’s credit in issue – Primary judge not satisfied that consequences satisfied ‘at least very considerable’ test – Reasons – Whether reasons adequate – Inadequacy of reasons – Not clear whether statement in reasons were judge’s findings or recitation of applicant’s evidence – Whether judge failed to make required findings – Whether judge failed to explain why findings were not sufficient to establish seriousness – Application for leave to appeal granted – Appeal allowed – Matter remitted to County Court for rehearing.

Transport Accident Act 1986, s 93.

Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, Hunter v Transport Accident Commission [2005] VSCA 1, applied.

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Counsel
Applicant:			Ms FAL Ryan SC with Ms S Gold
Respondent:			Ms M Britbart KC with Mr S Kumar
Solicitors
Applicant:			YourLawyer Pty Ltd
Respondent:			Lander & Rogers

BEACH JA:
T FORREST JA:
KAYE JA:

1. On 24 July 2018, the applicant was a back seat passenger in a motor vehicle that collided with a tram (‘the accident’). Following the accident, the applicant was taken to the Alfred Hospital, where, amongst other injuries, she was found to have fractures of her right C7, T1 and T2 transverse processes. Subsequently, the applicant complained of suffering from pain in her back, neck and right shoulder.
2. In August 2021, the applicant commenced a proceeding in the County Court, seeking leave pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’) to commence a proceeding at common law claiming damages in respect of the injuries she sustained as a result of the accident. The application was heard over two days in May 2022. At the hearing of the application, the applicant relied upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Act (‘serious long-term impairment or loss of a body function’). The body functions relied upon by the applicant were the function of her spine and the function of her right shoulder. Additionally, the applicant relied upon paragraph (c) of the definition (‘severe long-term mental or severe long-term behavioural disturbance or disorder’).
3. On 11 August 2022, the primary judge dismissed the applicant’s application.^[1] In essence, the judge was not satisfied that either of the applicant’s physical injuries constituted a serious injury;^[2] or that any psychiatric injury arising as a result of the accident was ‘severe’ as required by the Act.^[3]
4. The applicant now seeks leave to appeal against the order dismissing her application. Her application for leave to appeal (and her appeal, if leave is granted) is confined to complaints about the judge’s failure to accept that her spinal injury satisfied paragraph (a) of the serious injury definition. In support of her application for leave to appeal, the applicant advances three proposed grounds of appeal: first, that the judge failed to apply the correct test in assessing the consequences of her spinal injury (ground 1); secondly, that the judge failed to provide adequate reasons (ground 2); and thirdly, that, in assessing the consequences of the applicant’s spinal injury, the judge failed to consider the whole of the medical evidence (ground 3).
5. The applicant seeks an order that the judge’s orders be set aside and, in their place, this Court grant her leave to commence a common law proceeding. In the alternative, she seeks to have her application remitted to the County Court for rehearing by a differently constituted court.

The evidence generally

6. On the hearing of her application in the County Court, the applicant relied upon two affidavits, affirmed by her on 17 November 2021 and 4 May 2022. The parties tendered various documents, including medical reports, radiological reports, hospital records, clinical notes, letters, and a photograph of the damaged car in which the applicant was travelling at the time of the accident. The only witness to give viva voce evidence on the application was the applicant. In her examination-in-chief, she adopted her two affidavits. She was then cross-examined, and subsequently re-examined.

Applicant’s background and evidence

7. The plaintiff was born in Afghanistan in 1967. She was 50 at the time of the accident, and 54 at the time of trial. She lives with her husband and two of her children. She has three other adult children and three grandchildren. At the age of 14, the applicant moved to Iran, where she worked as a tailor and dressmaker for about 10 years. When she was 25, she completed an elementary education course.
8. In September 2005, the applicant migrated to Australia with her family as a refugee. Initially, she lived in Adelaide. After arriving in Adelaide, she undertook classes in English. She did not work and, at some point, she started receiving a disability support pension. According to her first affidavit, she received the disability support pension ‘for many years’. She does not, however, believe that she was receiving the disability support pension at the time of the accident. At the time of the accident, she believes she was on job seeker benefits. In February 2018, the applicant moved to Melbourne.
9. In her first affidavit, the applicant described her health before the accident as follows:

I have suffered from Lupus before the accident. I have had methotrexate injections for many years.

After moving to Australia, I started seeing a psychologist/counsellor. This was arranged as I was a refugee. I cannot recall the names of the psychologists/counsellors I have seen.

I suffered from anxiety, depression and post-traumatic stress disorder for many years, which started while I lived in Iran and continued while living in Australia. I managed my mental health by taking medication.

I have had a long history of suffering from migraines. I have undergone treatment including at Royal Adelaide Hospital and through Monash Health for my migraines. I have seen numerous specialists.

From time to time, I experienced back and neck pain in the past. I was treated by General Practitioners and took medication including Panadeine Forte to manage my back and neck pain. It was not an ongoing issue and generally passed in a short period. I also suffered from arthritis. I have undergone treatment with rheumatologists for my joint pain.

I had general body aches and pains from my physical conditions. I was able to manage the pain by taking medication and resting.

I was diagnosed with a brain tumour in the past.

10. The applicant said that, despite her medical conditions, she did as best as she could to manage her pain and not let it have any significant impact on her daily activities and social life. She also said that she did not have any back or neck pain at the time of the accident.
11. As we have already noted, following the accident, the applicant was taken to the Alfred Hospital. Radiological investigations revealed that she had suffered some rib fractures, the fractures of her cervical and thoracic transverse processes, to which we have already referred, and a left pneumothorax. She remained in hospital for a few days, receiving conservative treatment, and was discharged on about 27 July 2018 in a neck brace.
12. The applicant gave evidence that, after discharge from the Alfred, she started seeing her general practitioner, Dr Azadeh Kia. She consulted Dr Kia regularly for her injuries, and wore the neck brace for a number of weeks. She said that, in about May 2019, she started seeing her previous general practitioner, Dr Zahra Tabrizi. Dr Tabrizi referred her to a psychologist, Dr Hoda Barazandeh, who she had seen previously; as well as a psychiatrist, Dr Sangeeta Raghav, who she had also seen previously. She said that in about October 2019, she first saw a physiotherapist, Simon Li. She saw him ‘on a few occasions’.
13. The applicant described the consequences of the injuries she sustained in the accident as follows:

I experience constant pain and discomfort in my lower back. I always have a throbbing sensation in my lower back.

Sitting and standing for long periods increases my back pain. I struggle to bend and twist because of my back pain. I also have difficulty lifting and carrying things because of my back pain.

My lower back feels particularly stiff in the morning when I wake up.

The pain in my lower back radiates down into my legs. When the pain is particularly bad, I get pins and needles in my legs.

I have difficulty standing up from a seated position. I also have difficulty getting myself into bed at night and so rely on my children to help me.

I also experience constant pain, discomfort, and restriction of movement in my neck. My neck pain gets worse when I sit or stand in the same position for extended periods, or when I hold my head in the same position such as when watching TV. I also get pain looking down for long periods. I struggle to turn my head quickly from side to side. I am careful when moving my neck so that I do not aggravate the pain. I often lean my head against a pillow to support it when I am at home as this helps with the pain.

My headaches and migraines are worse since the transport accident. My neck pain radiates up into my head and I get more migraines more often. I need to lie down when I get a migraine or go in a dark room. I cannot function when I get a migraine.

My neck pain radiates into my shoulders and arms, in particular my right. As a result, my right arm feels weak, and I struggle to lift and grip onto things. I now mainly rely on my left arm and hand to do activities such as getting dressing. This is difficult for me because I am right-handed and so I am now a lot slower.

I have ongoing pain in my chest from my fractured ribs. When I sneeze or place pressure on my chest such as when laying down, I get pain.

I tend to avoid going outside when the weather is cold as the pain becomes debilitating. The colder it is, the worse the pain becomes. I keep my neck and back warm using heat packs and by keeping the heater on at home.

Since the transport accident, I have had great difficulty sleeping. I struggle to get comfortable and fall asleep in bed. I experience difficulty sleeping on my back because this aggravates my neck pain. Resting my head against the pillow puts pressure on my neck and makes my pain worse. I only sleep a few hours per night. I also have nightmares most nights, which I did not have prior to the transport accident. I wake up constantly throughout the night. When I wake up, I get out of bed and walk around and stretch my neck. After a restless night’s sleep, I feel tired and lethargic the next day.

Prior to the transport accident, I used to attend my local mosque weekly. I have not been to my mosque since the transport accident because of my ongoing back and neck pain. I feel disconnected from my faith and it give me a bad feeling.

Prior to the transport accident, I also enjoyed going out and socialising with friends and family. I now have poor self-esteem and feel embarrassed by my injuries. I prefer to stay home and manage my pain. I have isolated myself from my friends and extended family.

I have always independently maintained my house. I was previously house proud and took pride in being able to clean and upkeep my house while my husband worked. As I have not worked in Australia, maintaining my home was my pride and joy. I have difficulty with household chores such as cooking and cleaning because of my back and neck pain. I now rely on my children to do the household activities. My daughter [Fatemeh] does the cooking, and all my children take turns helping with the cleaning. I am irritable and get angry at my children when they clean if they do not clean to my usual standard.

Since the transport accident, I do not go to the shops much because of my injuries. I struggle to carry and hold shopping bags because of my back and neck pain. As a result, I now mainly rely on my children to do the shopping.

I used to enjoy doing the gardening. I now have difficulty gardening because of back and neck pain and so rely on my sons to do this.

My relationship with my husband has become strained since the transport accident because I do not do much around the house. We are separated in the same house. Prior to the transport accident, we occasionally slept in the same room. We have not slept in the same room since.

I struggle with my personal hygiene because of my injuries. I get pain when I shower and can’t stand the water hitting my back and neck. I now shower once a fortnight and rely on [Fatemeh] to help me in the shower. ...

I do not drive, but now get scared when I am the passenger in a car. My children and husband drive me. ... I get very scared if my children or husband drive too fast. I am also fearful when cars beside mine pass by at high speeds.

My mental state has gotten worse since the transport accident. I am more depressed than I was before the transport accident because of my pain and limitations. I feel worthless because I cannot contribute at home because of my injuries. I have no hope for the future. I am relatively young and feel like my life is over.

I feel very restricted as a result of my injuries, and I find it hard to cope with the ways my life has changed as a result of the accident.

Medical evidence

14. The medical evidence may broadly be broken into three categories: pre-accident medical evidence; evidence relating to medical treatment the applicant has received since the accident; and the opinions of medico-legal specialists retained for the purposes of this proceeding. As the applicant no longer seeks leave to commence a common law proceeding on the basis of a serious right shoulder injury or a severe psychiatric injury, it will not be necessary to refer to the evidence tendered before the primary judge relating to those claims.

Pre-accident medical evidence

15. The pre-accident medical evidence consisted largely of clinical records, hospital records and letters written by a general practitioner, Dr Saad Jaber, who the applicant attended when she lived in Adelaide. In June 2015, Dr Jaber referred the applicant to a psychologist, Damien McInerney, noting that the applicant then suffered from ‘severe major depression and PTSD’. In November 2017, Dr Jaber referred her to a psychiatrist for ‘management of her PTSD and major depression’.
16. The clinical and hospital records tendered on the application are voluminous. They record multiple attendances, diagnostic procedures and treatment covering the period 2011 to 2017. They also contain letters purporting to summarise the applicant’s medical history and the effect on her of the conditions which she had been diagnosed as suffering from.
17. In a letter dated 25 June 2015, sent to Centrelink, Mr McInerney said:

Tahereh has been referred to me by her GP, Dr Saad Jaber, for psychological assessment and therapeutic intervention for her severe psychological distress. Clinical assessment indicates that she suffers a severe depressive condition and high levels of stress and anxiety. Tahereh has also been diagnosed with lupus, an auto-immune disease without cure. This impacts on her emotional distress as well as having its own impacts on her physical well-being and energy levels. Her condition is characterised by persistent negative moods: depressed sad, tearful and withdrawn. She suffers severe sleep deprivation, related both to her emotional distress and the experience of chronic pain. Her cognitive functions are impaired by intrusive ruminations and episodes of agitation and distractibility. She has significant experience of chronic pain, a somatic expression of her emotional distress and also a symptom of lupus.

Tahereh is not able to engage in everyday activities including such household tasks as cooking and cleaning. She has minimal level of literacy in English language and no capacity to read or write in English. This precludes her from engaging in any form of paid employment outside the home.

It is my clinical opinion that Tahereh suffers medical conditions of an intensity and of an enduring nature, that she would continue to meet the criteria for the grant of the Disability Support Pension.

18. On 11 November 2016, Dr Jaber wrote to Centrelink, saying that the applicant was suffering from ‘multiple permanent severe physical and mental illnesses’. In a letter dated 1 February 2017, he stated:^[4]

I have known [the applicant] as her regular family doctor since 2011.

Mrs Hamidi has been suffering from multiple permanent severe physical and mental illnesses. ...

The nature, chronicity and severity of these illnesses has required extensive treatment involving specialist, psychologist/psychiatrist, team care and allied health involvement. She [has] had medications, psychotherapy, physiotherapy, hydrotherapy and other team health approach and cares [sic].

Despite that and despite the fact that she is stable now, nothing has been changed in terms of her suffering and pain as she suffers from severe arthritis and intractable SLE.^[5]

Post-accident treatment

19. As we have already noted, upon her attendance at the Alfred Hospital, the applicant was found to have suffered fractures of her right C7, T1 and T2 transverse processes. These were ‘conservatively managed in a Miami JTO’ in hospital, and she was discharged on 28 July 2018.
20. From a report prepared by Dr Raghav, it is apparent that the applicant was referred to her for psychiatric management by Dr Kia in September 2018. In that report, Dr Raghav expressed the opinion that the applicant was suffering from a generalised anxiety disorder with depressive symptoms, and had developed PTSD, after the accident. Notwithstanding that Dr Kia was the applicant’s general practitioner in the months following the accident, no report from Dr Kia was tendered before the primary judge.
21. Apart from the medical records of the Dandenong Superclinic (at which Dr Tabrizi practised), the only reports tendered, which had been written by any medical practitioner who saw the applicant for treatment after her discharge from the Alfred Hospital, were:
    • a one-page letter dated 27 April 2022, written by Dr Tabrizi, addressed ‘To whom it may concern’; and
    • a three-page letter dated 16 March 2022, written by Dr Robert Gassin, a musculoskeletal and interventional pain management specialist, to Dr Tabrizi.
22. In her letter, Dr Tabrizi noted that she first saw the applicant in May 2019, and took over her care in October 2019. Dr Tabrizi referred to the applicant as having right-sided chronic pain following the accident, ‘with a feature of chronic pain syndrome’. She referred to the applicant’s belief that all of her right-sided pain in her neck, shoulder and upper arm was related to the accident. Dr Tabrizi expressed the opinion:

According to her medical investigations, clinical notes and the chronicity of the nature of her medical and mental issues, Mrs Hamidi needs an ongoing multi-disciplinary treatment for her multiple musculoskeletal problems and mental issues.

She currently has [a right upper arm] movement restriction with coracoacromial impingement and a sustained [right-sided] chronic body ache with a feature of chronic pain syndrome. Her mood disorder has deteriorated since [the accident] with a feature of post-traumatic stress disorder.

Although [the applicant] has had a chronic mental and medical conditions, her body ache and mental issues [have] deteriorated since [the accident]. She is currently dependent [on] her children in her daily functions and routines.

23. In his letter, Dr Gassin noted that the applicant consulted him on two occasions in March 2022, on the referral of a chiropractor. Dr Gassin said that he took a history of the applicant having suffered from chronic widespread pain following the accident. He said that the applicant reported pain in her lower back, upper back, right shoulder and pectoral region, right elbow, both legs (from the toes to the knees), as well as a burning sensation in the fingers of both hands. In relation to the applicant’s lower back and neck pain, Dr Gassin said that this was ‘almost certainly contributed to by aggravation of cervical and lumbar spondylosis’. Dr Gassin said that he discussed with the applicant the appropriateness of attending a multi-disciplinary pain management program, but that she told him that she was ‘not keen to consider this option’.

Medico-legal reports

24. The applicant’s solicitors arranged for the applicant to be examined by Dr Brendan Hayman, a consultant psychiatrist; Dr David Weissman, another consultant psychiatrist; Professor Richard Bittar, a consultant neurosurgeon; Dr Symon McCallum, a pain physician and specialist anaesthetist; and Mr Russell Miller, an orthopaedic surgeon. For present purposes, it is only necessary to refer to the reports of Professor Bittar and Mr Miller.
25. Mr Bittar examined the applicant on 15 November 2019. At that examination, the applicant complained of neck and back pain. Professor Bittar took a history that the onset of these symptoms occurred following the accident. The applicant complained to Professor Bittar that her lower back pain was ‘constant’, ‘generally throbbing’ and ‘aching in character’; with an average severity of 7/10, and a maximum severity of 8/10. She also told Professor Bittar that her neck pain was constant; with an average severity of approximately 8/10, and a maximum severity of 9/10.
26. Under the heading, ‘Past Medical History’, Professor Bittar said:

Her past medical history is non-contributory for previous neck or back pain, or symptoms suggestive of a pre-existing spinal condition. She was able to clarify that she has experienced long-term migrainous headaches and has also been diagnosed with lupus ... . She confirmed that her lupus has not been associated with any significant neck or back pain.

27. Professor Bittar diagnosed the applicant as suffering from persistent neck and upper back pain, related to her transverse process fractures; as well as aggravations of her cervical and lumbar spondylosis. Professor Bittar said that the accident had been ‘a significant contributing factor’. He then expressed the opinion that the applicant’s condition was ‘most likely substantially stabilised in that no significant improvement can be expected’. He said that her injuries ‘have a significant detrimental impact on her social, domestic and recreational activities’; and that she required ‘personal domestic assistance, particularly in relation to her household, cleaning, cooking and shopping’.
28. Professor Bittar reviewed the applicant on 29 November 2021. On that occasion, the applicant reported that her condition had deteriorated both in terms of pain levels and functional capacity. Professor Bittar thought that she should be assessed by a pain specialist, as well as being considered for a ‘full diagnostic workup, including imaging of her neck and lower back ..., as well as a series of diagnostic blocks to determine which structures are generating her pain’. Professor Bittar concluded that the applicant was experiencing ‘a very significant degree of incapacity in relation to personal, domestic and recreational activities’; and that her prognosis was poor.
29. The applicant was examined by Mr Miller on 3 November 2021. Mr Miller took a history of back, neck and shoulder symptoms (ache, discomfort and pain) developing following the accident. Under the heading ‘Past History’, Mr Miller said the applicant told him that she did not have any prior neck or back problems. Mr Miller diagnosed the applicant as suffering from a ‘musculo-ligamentous strain and aggravation of degenerative disease in her cervicothoracic and lumbar spines’. He concluded that the applicant’s clinical status was ‘substantially accident-related’. He concluded that the applicant had ‘a reduced capacity for heavy domestic and gardening activities as a result of [her] orthopaedic injury’.
30. The respondent arranged for the applicant to be examined by Dr Timothy Entwisle, a consultant psychiatrist; and Mr Gary Speck, an orthopaedic surgeon. For present purposes, it is only necessary to refer to the reports of Mr Speck.
31. Mr Speck examined the applicant on 24 May 2021, 1 February 2022,^[6] and 12 April 2022. After his first examination, Mr Speck expressed the opinion that the transverse process fractures ‘did not involve any neurologic or vascular structures’. He concluded that a diagnosis of ‘somatic symptom disorder may be considered appropriate and should be assessed by an appropriate expert’. Following his final examination, he noted that there was an inconsistency in the measured movements of the applicant’s neck and lower back, compared with those movements when observed incidentally. He expressed the opinion that the applicant’s presentation was ‘consistent with a somatic symptom disorder’.

Primary judge’s reasons

32. In the course of describing the background to the applicant’s proceeding, the judge referred to the applicant’s pre-accident history of lupus and migraines.^[7] Her Honour then noted that, in 2011, the applicant experienced back and neck pain; and that she had ‘a pre-existing constitutional condition of spondylosis of the spine, which was asymptomatic’.^[8] A little later in the Reasons, her Honour recorded that the accident had aggravated the applicant’s cervical and lumbar spondylosis.^[9]
33. Under the heading, ‘What is the injury?’, the judge said that the medical evidence confirmed that the applicant had suffered right C7, T1 and T2 transverse process fractures; and that Dr Gassin had diagnosed her lower back and neck pain as ‘almost certainly contributed to by [the] aggravation of [her] cervical and lumbar spondylosis’.^[10]
34. Under the heading, ‘Did the injuries arise from the transport accident?’, the judge said that the medical evidence supported the applicant’s claim that her injuries were caused by the accident.^[11] The judge summarised the opinions of Mr Miller, Professor Bittar and Mr Speck.^[12] In the course of doing so, her Honour referred to Mr Miller’s opinion that there had been ‘major trauma to the region of the cervicothoracic junction’.^[13] On the issue of whether the applicant’s spinal injuries arose from the accident, the judge concluded:

I prefer the opinions of Professor Bittar and Mr Miller. In my view, Mr Speck minimised the nature of the collision when he described it as ‘low velocity’ and I do not accept his assessment. Whilst fractures to the back and ribs might heal in three months, I do not accept there would not be any residual symptoms, and this is supported by Professor Bittar and Mr Miller.

I am satisfied the medical evidence supports the injuries arose from the transport accident.^[14]

35. The next heading in the Reasons is, ‘What are the consequences of the injury?’. In this Court, the meaning of the ten paragraphs which appear immediately under this heading were disputed by the parties. At issue was whether the paragraphs under this heading were her Honour’s findings as to the consequences of the applicant’s accident-related injuries, or whether they were a mere recitation of the applicant’s evidence. In view of the centrality of that issue in this Court, it is necessary to set out those paragraphs in full as follows:

What are the consequences of the injury?

In respect of her back and neck, the plaintiff reported constant pain and discomfort in her lower back as well as a throbbing sensation. It is stiff in the morning when she awakes. Long periods of sitting and standing increases the pain, as does bending, twisting, lifting and carrying things. The pain radiates to her legs and she gets pins and needles. She has difficulty standing up and getting into bed and requires help from her children.

She has pain in her neck as well as restriction of movement. The pain increases when sitting or standing in the same position, or when holding it in the one position when watching TV. She cannot move her head quickly. Her headaches and migraines are worse since the transport accident and neck pain radiates to her head. Pain from her neck radiates to her shoulders and arms, particularly her right arm, which feels weak and she struggles to lift and grip things. She now uses her left hand but is right hand dominant.

The pain is worse in the cold, and she uses heat packs on her neck and back, and keeps the heater on at home.

The plaintiff has ongoing pain in her chest from fractured ribs, which is worse when she sneezes or places pressure on it.

She has great trouble sleeping due to the pain in her neck. Since the transport accident, she has nightmares most nights and only sleeps for a few hours.

The plaintiff no longer attends her mosque, and she is socially isolated. She used to go out and socialise with her friends and family, such as for weddings and birthdays. Prior to the transport accident, although she relied on her daughter, Fatemeh, who was her carer, she ‘would cook most nights and do some cleaning such as sweeping and vacuuming’. She has now stopped cooking and relies on Fatemeh to do all the household chores. Her house was her ‘pride and joy’ and she has difficulties with cooking and cleaning. She does not go to the shops much and struggles to carry her shopping. Prior to the transport accident she would trim plants and trees in her backyard and clean the yard. The neck pain now makes gardening difficult, and she cannot push a broom or reach out to cut plants.

Prior to the accident she would walk as much as possible in her local area. This now aggravates her back pain and she is less active.

Her hygiene has suffered as the water pressure from the shower is too painful on her neck and back. Prior to the transport accident she did not require help with washing herself and getting dressed. She now needs assistance from her daughter to shower once a week and help to get dressed in the morning.

Her relationship with her husband is strained because she cannot do things around the house, and they are separated under the same roof.

She stated that prior to the transport accident ‘I was trying to get on with my life, I now feel sad and depressed every day’.^[15]

36. The final part of the Reasons which are relevant to the proposed grounds of appeal appeared under the heading, ‘Are the consequences at least very considerable or more than significant or marked?’. Under this heading, the judge dealt with the applicant’s pre-accident health.^[16] Her Honour noted that there was no report from Dr Jaber concerning the applicant’s physical health prior to the accident; nor was there any affidavit from her daughter, Fatemeh, who had been the applicant’s carer both before and after the accident.^[17] Her Honour drew the inference that evidence from the applicant’s general practitioner regarding her pre-accident health status, and evidence from her daughter, who had been her carer both before and after the accident, would not have assisted the applicant’s case.^[18]
37. While dealing with a submission of the respondent’s counsel that the applicant was an evasive and unreliable witness, the judge said:

The plaintiff conceded she did have difficulties prior to the accident but that she could look after herself physically and that she had difficulty sleeping, some difficulties walking, some pain in her hands and feet which was intermittent, some fatigue, and difficulties getting out of bed. She could still clean the yard and clean at home although she would get tired.^[19]

38. The judge referred to the cross-examination of the applicant concerning her pre-accident health. The judge contrasted the applicant’s answers in cross-examination to the effect that her pre-accident conditions were under control or were improved by medication, with the letters written by Mr McInerney and Dr Jaber.^[20] The judge then said:

Further, despite the pain levels reported by the plaintiff, she has not undergone treatment such as physiotherapy, engaged in a pain management program, or had other therapy aside from medication, namely Panadol Osteo and Nurofen. Dr Gassin suggested physiotherapy and hydrotherapy as treatment, as well as Cortisone injections. However, the plaintiff was not keen to consider these options.

The plaintiff reported to Professor Bittar that her domestic activities post-accident such as shopping, cleaning, cooking and gardening are severely limited and she relies on her family for those activities. She did not clarify to Professor Bittar that prior to the transport accident her psychologist had reported in support of her disability pension that she was ‘not able to engage in everyday activities including such household tasks as cooking and cleaning’ and had difficulty sleeping. She explained that she may not have been able to express herself correctly but ‘in the past I have had mental health issues but I wasn’t an injured person and I’m a very, very different person now’.^[21]

39. The judge then returned to the issue of the applicant’s credit, saying:

I have doubts about the plaintiff’s credit. She was not an impressive witness and I found her meandering and non-responsive. Her counsel submitted she was disadvantaged by her language difficulties and her incredibly disadvantaged background growing up uneducated and illiterate in war-torn Afghanistan. He noted whilst she was loquacious and push backed some questions, her pain and discomfort was obvious. I take those considerations into account. However, that said, she was inclined not to answer even simple questions. For example, she struggled to answer a number of questions about her anti-depressant medication, and when it was put to the plaintiff she was on antidepressant medication from 2005-2015 she was equivocal.

The plaintiff’s credit in this case is important as, aside from the medical materials in Defendant’s Court Book, there is no medical or lay evidence other than the plaintiff’s evidence about her pre-accident health. The medical reports, including those of her treating doctors, rely entirely on her reportage.^[22]

40. The judge then said that she did not doubt that the applicant ‘suffers pain to her neck and back’, before saying that she accepted that these injuries (to the applicant’s neck and back) occurred as a result of the accident.^[23] The judge said that there was a conflict between the reports of Mr McInerney and Dr Jaber, on the one hand, and the applicant’s evidence on the other hand, regarding her pre-accident health and the consequences of her conditions.^[24] The judge again noted that, other than over-the-counter medications, the applicant was not receiving any treatment for her pain, before then saying that there was ‘no ongoing treatment to support the plaintiff’s claims’.^[25] The judge concluded:

In light of the conflicting evidence regarding her pre-accident physical health and the impact of her inconsistent evidence on her credit, I am not satisfied the plaintiff has discharged the onus borne by her that the consequences of either injury to her spine or to her right shoulder following the transport accident constitutes a ‘serious injury’, in that it is at least ‘very considerable,’ and certainly more than ‘significant’ or ‘marked.’^[26]

Proposed grounds of appeal

41. The applicant’s proposed grounds of appeal are as follows:
    1. The trial judge failed to apply the correct legal test to assess the consequences to the plaintiff of the physical injury:

    (a) Having identified that the applicant had suffered new and continuing injury in the transport accident, the trial judge did not identify the consequences, if any, accepted to be arising from that injury.

    (b) The trial judge did not analyse whether the consequences (as found) to the spinal injury met the threshold as serious.

    (c) When assessing the relevance of the applicant’s pre-existing (non–spinal) medical conditions, the trial judge did not apply the correct legal test and or failed to appreciate that more than one condition may be sufficiently causative of the same consequences which constitute a serious injury.

    2. The trial judge failed to provide proper reasons for her judgment, in that the reasons did not adequately:

    (a) identify which claimed consequences arising from the injury to the spine that the trial judge accepted, which were rejected, and why;

    (b) explain whether and how the trial judge considered the medical evidence regarding the consequences of the applicant’s injury to her spine;

    (c) identify and explain whether the applicant’s evidence relevant to the consequences arising from her spinal injury was wholly or partly rejected, and why;

    (d) analyse whether the consequences arising from the spinal injury, as identified, met the threshold of serious, and why.

    3. In assessing the consequences to the applicant of the spinal injury, the trial judge failed to consider the whole of the medical evidence:

    (a) Having accepted the medical evidence to the effect that the applicant suffered an injury to her spine causative of residual symptoms, despite the trial judge’s findings regarding credit, the trial judge failed to then consider the medical opinion regarding the effect and prognosis of this injury.

Applicant’s submissions

42. Under proposed ground 1, the applicant submitted that the judge erred in not determining whether the consequences she found at Reasons [31]–[40] satisfied the ‘at least very considerable’ test set out in Humphries v Poljak.^[27] The applicant submitted that the consequences referred to in Reasons [31]–[40], coupled with the judge’s acceptance at Reasons [60] that the applicant continued to suffer pain in her neck and back, should have led to the judge being satisfied that the applicant’s spinal injury, when judged by comparison with other cases in the range of possible impairments or losses, could fairly be described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’; and that the judge’s conclusion to the contrary showed that her Honour had erred in her application of that test.
43. Under proposed ground 2, the applicant contended that, if what her Honour said at Reasons [31]-[40] merely constituted a statement of the applicant’s evidence, then the Reasons were inadequate because her Honour failed to state which of these consequences the judge accepted, and which of them she rejected. Alternatively, the applicant submitted that, if what her Honour said at Reasons [31]-[40] constituted her Honour’s findings as to the consequences of the applicant’s accident-related injuries, then the judge failed to provide adequate reasons for concluding that the consequences found by her did not meet the ‘at least very considerable’ test.
44. Under proposed ground 3, the applicant submitted that, in failing to accept that the applicant’s spinal injuries were serious, the judge failed to properly consider the opinions of Mr Miller and Professor Bittar, and what those experts said as to the consequences of the applicant’s spinal injury.

Respondent’s submissions

45. The respondent submitted that the applicant’s proposed appeal is not reasonably arguable, and that leave to appeal should be refused.
46. Under proposed ground 1, the respondent submitted that there was no error in the judge failing to conclude that the applicant’s spinal injury did not satisfy the ‘at least very considerable’ test. The respondent submitted that what her Honour said at Reasons [31]–[40] did not constitute findings by her Honour of the consequences of the applicant’s accident-related injuries. Rather, those paragraphs of the Reasons constituted no more than a recitation by her Honour of the applicant’s evidence.
47. Under proposed ground 2, the respondent submitted that the judge’s reasons clearly exposed her Honour’s path of reasoning. Her Honour did not find the applicant to be a credible witness, and was thus unable to accept that the applicant had established that her injuries were serious within the meaning of the Act. Specifically, the respondent submitted that the judge rejected the applicant’s claim because of the inconsistency the judge concluded existed between the applicant’s evidence about her pre-accident health, and the evidence disclosed in the pre-accident medical records and letters written by Mr McInerney and Dr Jaber.^[28] The respondent submitted that the judge concluded that, because of this inconsistency, the applicant had not established that any consequences suffered as a result of the accident (over and above those suffered by her as a result of the conditions she suffered from prior to the accident) satisfied the ‘at least very considerable’ test.
48. The respondent made a similar submission in relation to proposed ground 3. It submitted that the opinions of Mr Miller and Professor Bittar were reliant upon the histories given to them by the applicant. To the extent that the judge did not accept the applicant’s evidence (and thus the histories given by her to the medical experts), the opinions of those medical experts could not form the basis of a finding favourable to the applicant.

Consideration

49. At the outset, the task for the judge in this case was to identify the injury suffered by the applicant in the accident, and then to identify the consequences of that injury. As was said in Humphries,^[29] those consequences ‘will relate to pecuniary disadvantage and/or pain and suffering’. There can be no doubt that, in determining that the applicant suffered fractures of her C7, T1 and T2 transverse processes and an aggravation of her cervical and lumbar spondylosis, the judge performed the first step in the required analysis. An issue then arises as to whether her Honour performed the second step: that is, whether her Honour identified the consequences of the injury which she concluded the applicant had sustained in the accident.
50. On one reading of Reasons [31]–[40], in the context of the whole of the Reasons, and noting that those paragraphs appear under the heading, ‘What are the consequences of the injury?’, it might be thought that those paragraphs contained her Honour’s conclusions as to the consequences of the applicant’s back and neck injuries. The difficulty with that interpretation is that, while some of the statements in the impugned paragraphs appear to be expressed as conclusions, others appear merely to record that the applicant ‘reported’ or ‘stated’ a particular matter. In these circumstances, it is not clear whether the statements made by her Honour in Reasons [31]–[40] were findings by her Honour, or the mere recitation of statements by the applicant which may or may not have been accepted by the judge. This lack of clarity at least raises the issue of the adequacy of the Reasons.
51. In some (perhaps many) cases, a judge may conclude that the credit of an applicant has been so damaged that, because there is no sufficient evidence external to that applicant supportive of the claim, the judge might be unable to make any conclusion as to the existence of consequences which might otherwise entitle the applicant to relief.^[30] The present case is, however, not of that kind. The judge concluded that the applicant suffered fractures to three transverse processes of her spine and an aggravation of previously asymptomatic spondylosis. The judge also concluded that, at the time of hearing, the applicant was continuing to suffer from pain in her neck and back as a result of the accident, she having suffered ‘major trauma to the region of [her] cervicothoracic junction’.^[31] In the circumstances, if the applicant failed to establish any other consequences of her spinal injuries, the judge was required to consider whether the applicant’s pain alone (as a pain and suffering consequence) met the ‘at least very considerable’ test. It is at this point that the uncertainty of what her Honour was saying at Reasons [31]–[40] becomes critical. If, in those paragraphs, her Honour was merely reciting the applicant’s evidence, then it was incumbent upon her Honour to go on and make specific findings in relation to that evidence. On the other hand, if those paragraphs recorded her Honour’s findings, then it was necessary for her Honour to state her conclusion on the issue of whether those consequences were serious, and to give appropriate reasons for that conclusion.
52. The adverse credit findings made by the judge related to the applicant’s evidence of the effects of her pre-accident health conditions. As a result of her adverse credit findings, the judge was not satisfied that consequences in relation to the applicant’s ability to engage in activity and to care for herself after the accident were significantly different from those suffered by the applicant prior to the accident. While that was a conclusion that was open to her Honour, it failed to address the one aspect of the applicant’s claim which was not affected by her Honour’s credit findings — namely, her Honour’s findings that the applicant had suffered frank physical spinal injuries which had produced ongoing and continuing pain.
53. The principles concerning the adequacy of reasons are not in dispute. They have been stated and summarised many times.^[32] What is required of a judge in giving reasons was set out by Nettle JA^[33] in Hunter v Transport Accident Commission,^[34] namely:

[W]hile 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.^[35]

54. Unfortunately, her Honour’s reasons in the present case suffer from two of the deficiencies referred to in Hunter:
    • (1) First, the reasons leave the reader to wonder whether, on the one hand, the judge accepted the applicant’s complaints of neck and back pain, but concluded that those complaints did not satisfy the ‘at least very considerable’ test; or whether, on the other hand, her Honour rejected the applicant’s complaints of neck and/or back pain to any and what extent.
    • (2) Secondly, in concluding for credit reasons that the applicant had not discharged the onus of showing that consequences relating to the applicant’s need for care and her ability to undertake activities were not significantly different after the accident from what they were before the accident, the judge failed to address the relevance of the applicant’s neck and back pain which only existed after the accident.
55. It follows from what we have said above that the applicant has made out her complaints in relation to the adequacy of the judge’s reasons (ground 2). While her Honour made reference to the fact that there was ‘no ongoing treatment to support [the applicant’s] claims’,^[36] and also made reference to this Court’s Hayden Engineering Pty Ltd v McKinnon,^[37] those references do not cure the defects to which we have referred above. The position might have been different if her Honour had gone on to explain why the lack of ongoing treatment led to a conclusion adverse to the applicant about the extent of the pain from which she claimed to suffer.
56. As a result of the inadequacies in the Reasons which we have identified, it is not possible for us to determine whether in fact the judge failed to apply the correct legal test in assessing the consequences to the applicant of her neck and back injuries (proposed ground 1), or whether her Honour failed to consider the whole of the medical evidence (proposed ground 3). Having concluded that her Honour’s Reasons were inadequate, it is now necessary for the applicant’s original application to be considered afresh. As we have not had the benefit of seeing and hearing the applicant, and as the applicant’s credit is significantly in issue, we are not able to perform that exercise. That exercise should be performed by a trial judge, who will have the benefit of seeing and hearing the applicant give evidence. In the circumstances, the applicant’s proceeding must be remitted to the County Court, differently constituted, for rehearing and determination.

Conclusion

57. The application for leave to appeal will be granted; the appeal will be allowed; the orders made in the County Court on 11 August 2022 will be set aside; and the matter will be remitted to the County Court, differently constituted, for rehearing and determination.

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^[1] Hamidi v TAC [2022] VCC 1263 (‘Reasons’).

^[2] Ibid [66].

^[3] Ibid [95].

^[4] Correcting typographical errors in original; and emphasis in original.

^[5] Systemic Lupus Erythomatosus.

^[6] Although, due to the applicant’s ‘feeling of exhaustion’, the interview conducted by Mr Speck on 1 February 2022 had to be curtailed, and no formal examination was possible at that time.

^[7] Reasons, [10]–[11].

^[8] Ibid [12]–[13].

^[9] Ibid [19].

^[10] Ibid [21].

^[11] Ibid [22].

^[12] Ibid [22]–[28].

^[13] Ibid [26].

^[14] Ibid [29]–[30].

^[15] Ibid [31]–[40] (footnotes omitted).

^[16] Ibid [41]–[55], [60], [63]–[66].

^[17] Ibid [44], [64].

^[18] Ibid [64]. See Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

^[19] Ibid [48].

^[20] Ibid [50]–[55].

^[21] Ibid [56]–[57] (footnote omitted).

^[22] Ibid [58]–[59].

^[23] Ibid [60].

^[24] Ibid [63].

^[25] Ibid [63].

^[26] Ibid [66].

^[27] [1992] VicRp 58; [1992] 2 VR 129, 140 (Crockett and Southwell JJ) (‘Humphries’).

^[28] Reasons, [66].

^[29] [1992] VicRp 58; [1992] 2 VR 129, 140.

^[30] See generally Mobilio v Balliotis [1998] 3 VR 833, 836; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439, 448; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598, 1609 [60]; Gjorgovska v AFM Cleaning Services Pty Ltd [2006] VSCA 104, [27]; Woolworths Ltd v Warfe [2013] VSCA 22, [88] (‘Woolworths’); Veljanovska v Verduci [2014] VSCA 15; (2014) 42 VR 222, 231–2 [39]–[40]; Haidar v Transport Accident Commission [2016] VSCA 182, [30]; Fenton v AIA Australia Ltd [2017] VSCA 331, [91]; Rowe v Transport Accident Commission [2017] VSCA 377, [89]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243, [74]; Yilmaz v Specialty Fashion Group Ltd [2019] VSCA 100, [73]; Johns v Oaktech Pty Ltd [2020] VSCA 10, [76]; Apps v Victorian WorkCover Authority [2020] VSCA 21, [66]; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109, [87]–[88].

^[31] Reasons, [26], [60].

^[32] See, for example, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Sun Alliance Insurance Limited v Massoud [1989] VicRp 2; [1989] VR 8; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167; Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326; Transport Accident Commission v Kamel [2011] VSCA 110, [71] and [73]; Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53 (‘Assad’); Lam v Lam [2017] VSCA 173; Htoo v Victorian WorkCover Authority [2017] VSCA 321.

^[33] With whom Batt and Vincent JJA agreed.

^[34] [2005] VSCA 1 (‘Hunter’).

^[35] Ibid [21] (citations omitted).

^[36] Reasons, [63].

^[37] [2010] VSCA 69; (2010) 31 VR 1.