By Andrew Ingram and Michael Schaefer
Plaintiffs often have to overcome serious obstacles along the way when making a serious injury application under s135A of the Accident Compensation Act.
The Court of Appeal decision in West v Pac-Rim Printing Pty Ltdi illustrates a number of persisting difficulties in the determination of serious injury applications under s135A of the Accident Compensation Act 1985 (the Act) and s93 of the Transport Accident Act 1986 (TAA).
Under these provisions, persons injured in work or transport accidents can seek a determination that their injuries qualify as a serious injury, thus entitling them to commence common law proceedings seeking damages for pain and suffering and pecuniary loss. The leading case of Humphries v Poljakii in essence requires the impairment arising from an injury to be measured by reference to pain and suffering and/or pecuniary loss and if the degree of such impairment is both serious and long-term, then a serious injury will have been suffered. The time at which the impairment said to constitute the serious injury to be assessed is the date of trial of the application.iii
The persisting difficulties with these applications include the relationship in the definition of serious injury found in s135A(19) and s93(17) respectively, between para (a) dealing with physical injuries and para (c) dealing with psychiatric injuries, the attitude of the courts towards psychiatric injuries in serious injury applications and the manner in which the Court of Appeal deals with appeals from serious injury determinations by the County Court.
West v Pac-Rim Printing Pty Ltd
The plaintiff was 26 years of age and employed by the defendant as a qualified printer. His duties required him to maintain the workings of a large press and more particularly to adjust parts of the press to ensure that the correct amount of ink and the appropriate coloured inks were available when printing a particular job. The plaintiff sustained injury in the course of his employment on 9 October 1995 when adjusting the colour scheme of the press.
Unknown to the plaintiff, on the previous evening some engineers working within the press had secured a folding step using oversized bolts and allowed these bolts to protrude about one inch. As the plaintiff moved backwards within the press the middle part of his back struck one of these bolts, causing an abrasion and bleeding.
The plaintiff sustained a T5-6 disc prolapse confirmed by MRI scan and after referral to a neurosurgeon, a spinal fusion procedure was recommended. Before the procedure was performed, the plaintiff’s referred pain began to shift from one side of his chest to the other.
A second MRI scan indicated that the prolapse had reduced significantly in size which led the neurosurgeon in August 1996 to conclude two things: (a) that the mechanism of pain had become functional or psychogenic and (b) that it was likely that the prolapse had resolved with the passage of time, which was later described as removing the mechanical cause for the pain.iv
Physical or psychiatric back pain?
Had the medical evidence at the time of the hearing of the serious injury application been as expressed by the neurosurgeon in August 1996, then the County Court judge would have been entitled to find that there was no subsisting physical injury and that the plaintiff’s symptoms were psychogenic or functional in nature.
However, between August 1996 and the date of the hearing of the serious injury application in March 2002, the evidence on this point altered significantly. More particularly, in later reports of August 1997, September 1999 and February 2002, the neurosurgeon stated that the plaintiff suffered chronic pain directly related to his physical injury at work.
At the plaintiff’s serious injury application hearing all the medical reports of the treating neurosurgeon were admitted into evidence and oral evidence was also given by him.
This oral evidence included the following:
· a rejection of the proposition that the pain had “no direct organic cause”;
· his belief that the prolapse may have “triggered the pain in the first place” and even if the prolapse resolved
“as it seems to have done in this case” the pain may continue for “whatever reason”; · evidence that “there is an organic basis for the perpetuation”; and
· when questioned –“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 [being] suffered?” – the answer “I don’t believe so in this case.”v
The judgment
In his judgment delivered on 23 March 2002, the County Court judge purported to accept the evidence of this witness, but in finding against the plaintiff did not mention the later change of opinion or the oral evidence given at trial. He found that the pain was psychogenic from 1996 onwards and continued to be so. Based on this finding, his Honour determined that the plaintiff’s application had to be judged under para (c) of the definition of serious injury; that is, as a psychiatric rather than physical injury. Having made this determination, his Honour then dismissed the application as no case had been made out under that definition. There was only one psychiatrist in the case, who reported to the plaintiff’s solicitors that the only psychiatric condition was an adjustment disorder with mixed anxiety and depressed mood during exacerbations of the physical condition. The psychiatrist believed that this psychiatric condition was resolving.
The appeal
The plaintiff appealed the rejection of his serious injury application. In order to succeed in his appeal, the plaintiff had to satisfy the principles set out in Mobilio v Balliotisvi which established that in the absence of a specific error
of law of the type considered in House v R,vii an appeal from a serious injury decision will succeed only if the decision was plainly wrong or wholly erroneous.
The practical effect of Mobilio is that appellants, in cases of this type, face a Herculean task and, accordingly, few appeals have been successful. Clearly, this has been a matter of some concern to the Parliament, as reflected in amendments to the Act. With respect to work-related injuries occurring on or after 20 October 1999, s134AD of that Act now requires the Court of Appeal to “decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application” and further permits the receipt of new evidence. It appears the effect of Mobilio has been undermined considerably by s134AD. Mobilio asserted that it is for the County Court judge, alone to make assessments of “value judgment, fact and degree on which reasonable minds might differ”, to use the words of Winneke P in a later decision.viii
Since the introduction of s134AD, it is now open to the Court of Appeal to make such assessments. Further, although the TAA contains a similar scheme of serious injury applications, it contains no equivalent provision to s134AD. It is submitted that amendment to that legislation is urgently required, failing which there will rapidly become evident a dichotomy in the respective appeal processes under the Act and the TAA.
Reviewing the medical evidence
In West, the Court of Appeal took the view that Mobilio was applicable and thus it was necessary for the plaintiff to establish that the initial decision was plainly wrong or wholly erroneous. This involved the Court in
endeavouring to identify sufficient strands from the evidence before the judge below that could have enabled him to reach the decision he made. In undertaking this exercise, the Court had to deal with the neurosurgeon’s recantation of his earlier opinion that the plaintiff’s pain was psychogenic and the fact that the judge below had overlooked both the written and oral evidence of the neurosurgeon in support of this recantation.
No doubt, following Mobilio principles, the unanimous approach taken by the Court was to read the
neurosurgeon’s evidence as referring to a physical injury in the past, despite the use by the witness of the present tense when giving evidence on this point in March 2002. Chernov JA said:
“. . . 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”.ix
By this somewhat unlikely route of reading evidence in the present tense as referable to a period of time some five to six years before, it was concluded that the County Court judge could have reached the decision made.x The opinion of the neurosurgeon in the report of 26 February 2002, again in the present tense, had read:
“It is my opinion that Mr West has 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”.
And later:
“ . . . I believe that [the pain] has to be regarded as a permanent pain disorder, and is unlikely to significantly
lessen with conservative pain measures, including physical therapy, analgesics and/or psychotherapy; nor is it
likely to be affected by surgery, particularly with respect to the thoracic disc prolapse”.
Avoiding Mobilio
In our respectful opinion, there are some worrying aspects to the decision. The appeal relied on evidence which the County Court judge had purported to accept. Yet even accepting the evidence given, the overriding cause of the Court of Appeal’s decision appears to have been the necessity to follow the principles set out in Mobilio. A layman might well wonder at the law’s achievement in learning that the plaintiff lost his case where: (a) his work injury was suffered in a clearly unsafe work system
(b) the accepted evidence was that he had no psychiatric condition of any magnitude
(c) the treating neurosurgeon had altered his opinion to one confirming that a physically-based chronic pain syndrome was the cause of the plaintiff’s ongoing symptoms and disability and
(d) a young man was significantly inhibited in his ability to pursue his trade as a printer but had no recourse in law.
We have seen above that where the Court finds threads of evidence sufficient to leave open to the judge below the decision reached, it will not overturn that decision. As an alternative, we suggest that the error of the judge below ought to have been regarded as “mistak[ing] the facts” within the meaning of House v R which was a further submission rejected on appeal, but one which would have avoided Mobilio.
House v R has long stood for the proposition that a discretionary judgment will be susceptible to review where the judge has acted on a wrong principle, on a mistake as to relevant facts, failure to take account of relevant matters or the taking into account of irrelevant matters.
Richards v Wylie
The decision in West also highlighted a further difficulty in serious injury applications, one which remains after the earlier decision in Richards v Wylie.xi In that case, the Court of Appeal considered a decision of a County Court judge who granted leave under s93 of the TAA to a plaintiff who suffered a soft tissue whiplash type neck injury where the symptoms were in part caused by psychological factors. The judge had concluded that the injury met the definition of serious injury under para (a) which deals with physical impairments even though a mental disturbance or disorder was the main cause of the impairment. The Court of Appeal was unanimous in setting aside this decision and holding that a judge must first define the body function which has been impaired and by reference to the consequences of such impairment, determine whether there is a serious and long-term impairment. Such an assessment does not extend to inclusion of the consequences of a psychiatric injury as constituting or being productive of the impairment. Once that distinction is maintained, it was held permissible to
examine psychiatric sequelae to the physical impairment in order to determine the seriousness of such impairment.
The difficulty thrown up by West is how can a plaintiff suffer injury which gives rise to an impairment meeting the requirements as to pain and suffering and/or loss of earning capacity required by Humphries v Poljak, yet fail to qualify as a serious injury under either paras (a) or (c) of the serious injury definition appearing both in the Act and the TAA?
Lessons from West
The stark outcome of West was that a plaintiff in respect of whom no adverse finding was made in terms of his own credit, and suffering a physically based chronic pain syndrome of considerable proportion with
consequences to him which we suggest easily satisfied the requirements of Humphries v Poljak, was found not to have suffered a serious injury under either paras (a) or (c) of the definition.
The interrelationship between paras (a) and (c) is a difficulty frequently encountered in practice, most typically in cases where the pain resulting from physical injury results in psychiatric response such as anxiety or depression. All are consequences of the compensable injury in respect of which common law damages are sought.
It is our opinion that the law needs to be revisited. Further, consideration of relevant principles should be entertained with a view to formulating a position where a court decides initially whether the plaintiff’s impairment derives from a physical injury or a psychiatric injury, and having made that decision considers all of the non-physical (whether termed psychiatric or psychological) sequelae to a non-physical injury, and vice versa. Richards v Wylie proceeds a few paces down this path yet if the consequences of an injury to a person are to be fully considered, we would respectfully submit that a few more paces are required by the courts.
Psychiatric injuries generally
When considering the definition of serious injury contained in s135A(19) of the Act and s93(17) of the TAA respectively, no one rightly knows why the word serious was adopted in para (a) which deals with physical injuries, and severe was adopted in para (c) dealing with psychiatric injuries. We do know that since Mobilio it has been clear that severe has been interpreted as a word of stronger force than serious and that Parliament has declined to interfere with this interpretation. The result is that it is far more difficult in practice to succeed in a para (c) application than a para (a) application.
In our view, this distinction represents a regressive attitude in the law to psychiatric injury at a time when knowledge of and treatment for many diagnoses are more advanced than ever. We have found in practice that many of the psychiatric diagnoses respond to a lesser or greater extent to the multitude of medications prescribed by psychiatrists, but the condition remains and the effects of use of the medication on the person’s ability to function remain. The decision in Mobilio often means that these consequences are under-assessed by lawyers. Why should there be any different result if the work capacity of a person is reduced by a psychiatric condition and/or effects of medication prescribed for the treatment thereof, than would pertain if the same person had a physical injury causing a similar impairment? Why should the pain and suffering resulting from psychiatric conditions be given less weight than that resulting from a physical injury? Surely each is capable of satisfying Humphries v Poljak and once having met that test, why should there be some higher degree of pain and suffering or pecuniary loss to be attained?
Conclusion
There remains a number of areas of serious injury applications in which further legislative and judicial activity is warranted. Such applications form a substantial portion of the workload in the civil jurisdiction in the County Court, and the difficulties we have highlighted crop up repeatedly. If nothing else, we hope to stimulate discussion, perhaps even action, in this jurisdiction concerning these difficulties.
ANDREW INGRAM B.A., LL.B. has been a member of the Victorian Bar since 1988. He specialises in common law claims for industrial accidents and diseases, transport accidents, professional negligence and public liability. MICHAEL SCHAEFER is a Partner of Holding Redlich and has practiced in the common law for over 30 years. Michael specialises in personal injuries claims arising out of industrial accidents and diseases, medical and professional negligence and transport accidents.
i
[2003] VSCA 68 ii
[1992] 2 VR 129,140 iii
Belcher v Wolfenden (1996) 23 MCR 356, 357 per Brooking J; Swannell v Farmer [1999] 1 VR 299, 310 per Batt and Buchanan JJA
iv
Note 1 above, at para 19 v
Note 1 above, at para 17 and 18 vi
[1998] 3 VR 833 vii
[1936] 55 CLR 499, 505 viii
Nichols & Anor v Robinson [2001] VSCA 11 at para 16, per Winneke P ix
Note 1 above, at para 19 x
Note 1 above, at para 26 xi
