SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0158

ROBERT STEVEN JAMES LEXA	Applicant	
		
v 		
		
TRANSPORT ACCIDENT COMMISSION	Respondent	

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JUDGES:	KYROU, KAYE AND EMERTON JJA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	13 May 2019	
DATE OF JUDGMENT:	5 June 2019	
MEDIUM NEUTRAL CITATION:	[2019] VSCA 123 (First Revision on 5 August 2019)	
JUDGMENT APPEALED FROM:	Lexa v Transport Accident Commission [2018] VCC 1883 (Judge K L Bourke)	

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ACCIDENT COMPENSATION — Transport accident — Application for leave to appeal against refusal of trial judge to grant leave to commence proceedings for damages against respondent — Whether applicant suffered serious long-term impairment or loss of a body function — Whether applicant suffered ‘severe’ psychological disturbance or disorder — Whether trial judge failed to adequately assess impairment consequences of applicant’s injuries — Whether trial judge failed to provide adequate reasons — Application for leave to appeal granted — Appeal dismissed — Transport Accident Act 1986 s 93(17);  Lu v Mediterranean Shoes (2000) 1 VR 511 applied.

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APPEARANCES:	Counsel	Solicitors	
Applicant	Mr C W R Harrison QC with Ms M J Lang	Ryan Legal	
			
Respondent	Mr J Ruskin QC 
with Mr R Kumar	Solicitor to the Transport Accident Commission	

KYROU JA
Kaye JA
EMERTON JA:
Introduction
1	On 11 August 2000, the applicant, Mr Lexa, was injured in a car accident at the intersection of Eleventh Street and Karadoc Avenue, Mildura.  He was driving to his workplace when another driver failed to give way and collided with him.  Mr  Lexa was taken by ambulance to Mildura Base Hospital where it was recorded that the problems with which he presented were ‘MCA, neck pain, chest pain, no LOC’.  He continued to have physical problems affecting his neck, shoulders, back and knees thereafter and developed psychological problems that he attributes to the accident.
2	On 21 April 2017, the applicant applied to the County Court for leave pursuant to s 93 of the Transport Accident Act 1986 (‘the Act’) to commence proceedings for damages in respect of injuries sustained in the accident.  He claimed to have suffered ‘serious injuries’ in the form of a serious long-term impairment or loss of body function within the meaning of para (a) of s 93(17) of the Act and a severe long-term mental disorder within the meaning of para (c) of that section.
3	Section 93(17) of the Act defines ‘serious injury’ as follows:
serious injury means—
(a) 	serious long-term impairment or loss of a body function; or
(b) 	permanent serious disfigurement; or
(c) 	severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) 	loss of a foetus.
4	For convenience, we shall refer to the applicant’s claim in respect of his physical injuries as a claim under ‘para (a)’ and his claim in respect of his psychological injuries as a claim under ‘para (c)’.  In each case, we are referring to the relevant paragraph of the definition of ‘serious injury’ in  s 93(17)  of the Act.
5	On 21 November 2018, a judge of the County Court refused the applicant leave to bring proceedings on the ground that she was not satisfied that the applicant had suffered a ‘serious injury’ within either para (a) or para (c).  Accordingly, the application for leave to commence proceedings was dismissed.   
6	The applicant seeks leave to appeal from that decision, both as to the judge’s holding and findings in respect of his physical injuries and her holding and findings in respect of his psychological injuries.  He also contends that the reasons for judgment did not disclose a path of reasoning in respect of either holding.
7	For the reasons that follow, although we will grant leave to appeal, we consider that none of the grounds of appeal is made out and the appeal will be dismissed.
Background
8	The applicant deposed that he has battled chronic pain and restriction since the accident.  He has suffered ongoing neck pain which varies between being a dull ache and quite sharp pain.  He has ongoing headaches that start in the back of his neck and progressively radiate into his head.  He has referred pain down his arm and has suffered from pins and needles in his little and ring fingers.  He complains of ongoing pain and restriction in both shoulders and that his lower back continues to ache.   
9	The applicant says that as a result of the accident, he became very depressed and developed significant psychological problems.  He deposed that he suffers from extreme mood swings, although he is predominantly in ‘black places’.  He has difficulty letting go of the impact that the accident has had on him.  
10	Since the accident, the applicant has consulted his general practitioner, Dr Philip Webster, about fortnightly.  Since 2008, he has also consulted a psychologist, Ms Rosalie Milner, about every three weeks.  He takes a range of medications for his conditions: Norspan, Panadeine Forte, Prodeine, Lyrica, Celebrex and Zoloft.
11	The applicant is now 64, having been born in May 1955.  He has been in receipt of a disability support pension since February 2010.
12	At the time of the accident, the applicant was a widower bringing up two boys on his own.  He was working at Lindemans as a contract worker and managing a 20-acre fruit block that he owned.  He deposed that while his life was busy, he was happy and coping.  However, because of the injuries he sustained in the accident and his inability to go back to doing heavy manual work, he was unable to continue at Lindemans and lost the opportunity to transfer to a permanent position.  Following the accident, he undertook only light casual work and worked variously as a part-time barman and a part-time union organiser.  He also did some office work.  The applicant deposed that he tried to keep his fruit block going but was not able to cope and the vines and trees fell into disrepair.  He fell behind with the mortgage payments and the bank took possession of the block.  He became bankrupt in about 2004.  
13	Between the accident in 2000 and the hearing of his serious injury application in 2018, there were a number of events in the applicant’s life that had an impact on his health, including his mental health.  In 2013, one of his sons was killed in a car accident, which had a profound impact on him.  Unsurprisingly, the medical evidence also highlighted the effects of ageing and normal physical degeneration over the period.
14	In issue in the County Court proceeding were the extent to which any impairment relied upon by the applicant related to the accident and whether the identified consequences of any compensable injury met the statutory threshold for ‘serious injury’.
15	At the commencement of the hearing in the County Court, senior counsel for the applicant stated that, with respect to the relevant body functions for the purposes of para (a), reliance was placed on the cervical spine, bilateral shoulders, the right thumb (and/or right upper limb) and bilateral knees.  Prior to closing addresses, however, counsel confirmed that the claim in respect of para (a) was to be restricted to the cervical spine and bilateral shoulders. 
16	The application made pursuant to para (c) involved the effects of a major depressive disorder and post-traumatic stress disorder.  
Evidence at trial
17	The medical evidence comprised a large number of reports tendered by the parties.  Some were not relevant, or only tangentially so, to the claims under para (a) and para (c).
18	The medical reports relevant to para (a) were the following:
(a)	a report of Dr Webster, the applicant’s general practitioner, dated 2 February 2018;
(b)	five reports from Mr Thomas Kossmann, orthopaedic surgeon, dated 5  October 2012, 6 December 2017, 8 March 2018, 13 March 2018 and 26 July 2018; and
(c)	a report from Dr Paul Kierce, orthopaedic medico-legal consultant, dated 29  September 2015. 
19	The medical reports relevant to the claim under para (c) were:
(a)	seven reports from Ms Milner, psychologist, dated 15 July 2008, 6 April 2010, 19 March 2013, 11 March 2014, 20 December 2016, 28 October 2017 and 11 July 2018; 
(b)	two reports from Dr David Weissman, consultant psychiatrist, dated 6  December 2017 and 28 June 2018; 
(c)	a report from Dr Lester Walton, consultant psychiatrist, dated 13 October 2015; and 
(d)	two reports from Associate Professor Peter Doherty, consultant psychiatrist, dated 10 December 2017 and 15 February 2018. 
20	In relation to the applicant’s physical impairment, Dr Webster reported that the applicant presented after the accident on 14 August 2000 with left shoulder and arm pain, and limitation of movement of the shoulder.  The applicant presented with increased shoulder pain on 17 August 2000 and again on 21 August 2000 following his return to work as a drinks waiter.  According to Dr Webster, the applicant’s pain and disability remain.  The applicant’s pain has become chronic and he is dependent on narcotic medication to function. 
21	Following his review of MRI scans of the applicant’s cervical and lumbar spine performed on 2 October 2017, Mr Kossmann diagnosed the applicant with both cervical and lumber spondylosis on the background of significant degenerative changes to the relevant areas.  Following his review of MRI scans of the applicant’s bilateral shoulders and right wrist performed on 3 October 2017, Mr Kossmann also made diagnoses of the applicant’s left and right shoulders.  He found significant impairment, including extensive rotator cuff pathology.  Mr Kossmann’s prognosis for the applicant’s cervical spine, lumbar spine, left shoulder joint and right shoulder joint was ‘poor’.  He considered the applicant to be 100 per cent incapacitated. 
22	In contrast, in 2015, Dr Paul Kierce found that there was no wasting of either shoulder girdle and that the applicant had a full range of movement bilaterally.  He reported that the applicant ‘may have sustained soft tissue injuries to his spine in the accident …, but any such injuries have long since resolved’ and that there was no impairment to the applicant’s shoulders which related to the accident.  According to Dr Kierce, the applicant’s (then) current symptoms were related to degenerative changes due to ageing.  He found the applicant’s (then) current impairment to be 10 per cent, none of which was related to the accident.
23	In relation to the applicant’s psychological impairment, Dr Weissman reported that the applicant had a major depressive disorder due to factors including the accident itself, pre-existing factors, including the deaths of his wife and father, and post-accident unrelated factors, especially the death of his son in 2013.  Dr  Weissman noted that overall the combination of all pre-existing and unrelated psychosocial factors, stresses and losses made a greater contribution to the chronic major depressive disorder than the physical consequences of the accident.  Dr  Weissman assessed the applicant’s psychiatric impairment at 20 per cent, of which eight per cent was pre-existing and unrelated to the accident and 12 per cent was related to the accident (with four per cent categorised as non-secondary impairment and eight per cent as secondary impairment). 
24	Dr Walton diagnosed the applicant as having post-traumatic stress disorder and a major depressive disorder.  He considered that the post-traumatic stress disorder was a direct consequence of the accident, but that the depression was partly a direct response to the accident and partly a reaction to accident induced pain which had been further complicated by the death of the applicant’s son and the loss of the fruit block.  Dr Walton assessed the applicant’s psychiatric impairment as 20 per cent, with eight per cent resulting from physical injury due to the accident and 12 per cent resulting from the accident but not related to physical injury. 
25	Associate Professor Peter Doherty reported that the applicant experienced mild symptoms of anxiety, mood and pain but found that there was no pain-related psychiatric condition and no major depressive disorder.  He was of the opinion that a diagnosis of an adjustment disorder could be made.  In addition, Professor Doherty reported that all psychiatric impairment present was unrelated or pre-existing or secondary to any physical injury from the accident.  He found the applicant’s psychiatric impairment to be five per cent, where three per cent was from injuries or causes unrelated to the accident and two per cent arose secondary and consequential to the physical injuries resulting directly from the effects and circumstances of the accident. 
26	There were a number of reports from the applicant’s treating psychologist, Ms Milner.  The applicant had seen Ms Milner for 160 sessions of psychological counselling between March 2008 and July 2018.  Ms Milner reported that the applicant met the DSM-5 criteria for major depressive disorder, pain disorder associated with a medical condition and post-traumatic stress disorder.  She opined that the applicant’s post-traumatic stress disorder and depression were ‘due to the effects the accident precipitated in his life; the inability to work on his farm, which led to bank foreclosure and loss of the property and family home, which … created disturbance for his children’.  Ms Milner reported that the applicant viewed these subsequent events as being a direct result of the accident.
27	Ms Milner opined that the applicant’s post-traumatic stress disorder, depression and pain were chronic and severe.  She noted that his post-traumatic stress disorder had improved with more frequent counselling sessions.  The applicant had consistently reported that he has poor, non-restorative sleep due to pain as well as difficulty functioning in all areas of his life due to pain and psychological distress.  In Ms Milner’s view, the applicant has limited work capacity.
28	A number of reports from neuropsychologists were also tendered.  Most of these assessed the applicant’s cognitive abilities in light of the closed head injury he suffered in the accident.  Counsel for the respondent submitted that they were irrelevant in light of the way the applicant’s case was ultimately put at trial and to the grounds of appeal.  However, counsel for the applicant relied on the conclusion of Dr Lindsay Vowels in 2011 that it was likely that there was an interaction between the residual outcome from the head injury suffered in the accident and a longstanding psychological disorder arising from the cumulative grief and loss the applicant had suffered over two decades previously.
29	At trial, the applicant was the only witness who was cross-examined.  He gave evidence as to the effect of the accident on his health and his life more generally.  He also relied on the affidavits of his son, Robert Joseph John Lexa, and his friend, Fabrizio Gallarde.  The applicant’s son deposed that following the accident his father would complain of pain in his neck and shoulders and he did less and less work on the fruit block.  He deposed that the accident had changed his father ‘from a hardworking, capable and caring man to someone who no longer had the same physical capacity and whose mood and demeanour changed for the worst’.  Mr Gallarde deposed that the applicant has complained about pain, particularly headaches and pain in his shoulders, over the years since the accident and had become moody, unpredictable and forgetful.  He said that the applicant had been restricted in what he could do since the accident and that he does not do heavy or physical tasks like he did before the accident.
Judge’s reasons
30	In the Reasons, the judge recorded that counsel for the applicant conceded that neither Dr Webster nor Mr Kossman unequivocally expressed an opinion about causation and that that posed a problem for the applicant.   Counsel said:
Doing the best we can all we can do is rely upon those two reports and they speak for themselves and we can’t – I can’t put a gloss or spin on it, it’s not there to be put.
31	In these circumstances, counsel for the applicant submitted that the aggregation of impairments was necessary to establish a serious injury.  The medical material did not separate the various consequences of the applicant’s injuries and the shoulders were dealt with ‘in globo’.  At the conclusion of the hearing, counsel for the applicant provided the judge with authorities on the question of aggregating injuries.
32	The judge rejected the proposition that the shoulder injuries could or should be aggregated, stating that none of the authorities relied upon supported the aggregation of the injuries because they ‘all related to work process injuries at work where the Court held the affected body function was manual dexterity.’
33	In relation to the applicant’s physical impairment, the judge concluded:
Taking into account all the available evidence, I am not satisfied that there is any accident-related physical impairment which, as at the date of hearing, is ‘serious’.  This finding relates to the spine, which it was submitted was the major impairment, and the range of other claimed impairments.
34	As to the applicant’s psychological injuries, counsel for the respondent submitted that any accident-related psychiatric impairment was not ‘severe’, that there were a number of other factors and stresses significantly in play and that the applicant’s 160 visits to a psychologist over a 10-year period, taking only Zoloft, no referral to a psychiatrist or psychiatric hospital, no suicide attempt and little by way of therapy, were not consistent with a finding of ‘severe’ impairment. 
35	The judge accepted this submission, concluding as follows:
Taking into account the lack of psychiatric treatment and specialist referral and the medico-legal opinions attributing only a small amount of the plaintiff’s present psychiatric condition to the accident, I am not satisfied any accident-related psychiatric consequences are ‘severe’ as at the date of the hearing.
Proposed grounds of appeal
36	The proposed grounds in the Notice of Appeal are as follows:
1	The trial judge erred in law by finding it was impermissible as a matter of law to permit the aggregation of the applicant’s left and right shoulder injuries in determining whether those shoulder injuries satisfied the definition in s 93(17)(a) of the Act.
2	The trial judge erred in that on the facts or findings made by her she should have concluded that the applicant’s shoulder injuries, once permissibly aggregated, satisfied the relevant test.
3	The trial judge failed to disclose a path of reasoning leading to her conclusion that she was not satisfied that there was any accident related physical impairment which, at the date of hearing, was serious.
4	The trial judge erred in law by applying the wrong test in determining whether the applicant’s psychological injury satisfied the criteria in s 93(17)(c) of the Act.
5	The trial judge erred in that on the facts or findings made by her she should have concluded that the applicant’s psychological injury satisfied the relevant test of ‘severe’ for the purpose of s 93(17)(c) of the Act.
6	The trial judge failed to disclose a path of reasoning leading to her conclusion that she was not satisfied that there was any psychological impairment which, at the date of hearing, was serious.
37	Grounds 1, 2 and 3 challenge the judge’s holding in relation to the impact of the applicant’s bilateral shoulder injuries.  Grounds 2 and 3 are premised on this Court determining that, as a matter of law, the impairments from the applicant’s left and right shoulder injuries should have been aggregated.  If Ground 1 is not made out, then Grounds 2 and 3 must also fail.
38	Grounds 4, 5 and 6 challenge the judge’s holding and the findings concerning the applicant’s psychological impairment.  It is submitted that the trial judge fell into error by placing too much focus on the extent and nature of the applicant’s treatment for his psychological injury in determining whether he suffered from an impairment that was ‘severe’.
Grounds 1, 2 and 3 — physical impairment
39	The applicant submits that the judge erred in not aggregating the effects of his shoulder injuries and was incorrect in stating that all the authorities to which she was referred related to work process injuries.  One of the authorities, Tavendale v The Age Co Ltd, concerned a single incident giving rise to bilateral knee injuries.  In that case, a judge of the County Court determined that the impairments to left and right  knees should be aggregated.
40	The leading authority in this area is the decision of this Court in Lu v Mediterranean Shoes.  According to the applicant, Lu makes it clear that it is permissible to aggregate two body parts in the context of a single incident if it can be said that they represent one bodily function.
41	In Lu, the plaintiff was a process worker who began experiencing pain in his right elbow and forearm in July or August 1995 (‘the elbow injury’).  Later, in September 1995, he was injured at work when a heavy object fell from a conveyor belt and struck him on the top of his right shoulder near the neck (‘the shoulder injury’).  There were, therefore, two injuries arising from two incidents and the Court considered the question of aggregation in that context.  It was common ground that, taken by itself, the elbow injury was not a ‘serious injury’.  However, the plaintiff submitted that the trial judge erred in not combining the elbow injury and the shoulder injury to determine whether the plaintiff’s workplace injury was a ‘serious injury’.  Chernov JA, with whom Winneke P agreed, said as follows:
In my view, the short answer to [counsel’s] principal submission is that the two injuries in question impaired two separate body functions, namely, the plaintiff’s right shoulder area and his right elbow respectively.  Consequently, they cannot be relevantly aggregated.  The mere fact that those injuries had, in one sense, an effect on the movement of his right arm does not mean that the arm was the relevant body function.  A body function that is indirectly, albeit detrimentally, affected by two separate injuries to two body functions, is ordinarily not thereby relevantly impaired by those injuries for the purpose of [the relevant provision in the Accident Compensation Act].  Thus, an injury to the big toe on one foot and a later injury to the knee of the same leg may have a detrimental effect on the use of that leg, but ordinarily, it would be inaccurate to describe the two injuries as having impaired the one body function, namely, the leg.  
42	Buchanan JA dissented.  He observed that the identification of a body function for the purpose of determining the application of para (a) depends only upon the existence of impairment or loss of a physical function, and the definition is not limited to the function of that part of the body directly affected by an injury.  He considered that an injured shoulder and an injured elbow could properly be regarded as resulting in impairment or loss of body function of an arm.  
43	While Lu makes it clear that it is permissible in some circumstances to aggregate the effects of injuries to two body parts arising from of a single incident, the impairment must be to one ‘body function’.  The majority considered that an effect on movement of an arm resulting from separate injuries to the shoulder and the elbow is not an impairment to one body function.
44	In Target Australia Pty Ltd v Maloney, this Court shed light on the meaning of a ‘body function’.  In contention was the trial judge’s inclusion in his charge to the jury of ‘depression’ among the injuries relied on as giving rise to serious long-term impairment of a body function within para (a).  
45	In this context, Batt JA took the opportunity to discountenance ‘entirely’ the view that to work, to undertake full-time employment or to engage in manual work is a ‘body function’ within para (a).  The word ‘body’ used adjectivally need not refer to the body as a whole but may apply to any one or more of its parts and, in the context of the definition of ‘serious injury’, it necessarily does so.  A ‘body function’ denotes a physical act or operation, not some ‘applied’ activity.
46	This Court has therefore distinguished between a physical act or operation (involving a part or some closely connected parts of the body) and an ‘activity’ to which the physical act or operation may be applied.  The physical act or operation will be one of a number of physical acts or operations that need to be coordinated and applied in order to perform the activity.  A ‘body function’ is therefore distinguished from a higher level activity that combines a number of physical acts or operations.
47	It was submitted by the applicant’s counsel that two shoulder injuries may give rise to loss of a body function in the form of an inability to lift an object with both arms.  The body function is lifting using both arms, which engages, relevantly, both shoulders.  However, as counsel for the respondent graphically demonstrated,  lifting two lever arch folders from the floor using both arms (and shoulders) involves many other parts of the body and, correspondingly, many body functions.  The process of lifting an object using both arms (and both shoulders) is an activity that combines a number of physical acts or operations involving a number of body parts: bending; bracing; elevating; and so on.  It is not a single ‘body function’ but the coordinated exercise of a number of body functions.
48	This analysis is consistent with what was said about bilateral shoulder injuries in Carbone v Toyota Motor Corporation Australia Ltd.  Although the shoulder injuries in that case arose from different incidents and, in the end, only one shoulder injury was relied on, the Court referred to the applicant having sustained separate injuries ‘to separate body functions’.  Each shoulder injury gave rise to an impairment to a different ‘body function’. 
49	As discussed, in Tavendale, injuries to both knees were aggregated to establish a ‘serious injury’ arising from a single incident.  The injury suffered in the incident was only to the left knee, but the right knee subsequently became injured as a result of the injury to the left knee.  The judge described the process as follows:
the evidence establishes that the plaintiff’s right knee gradually became symptomatic as the plaintiff was caused to favour his left knee by reason of the presence of symptoms in that knee, and that the symptoms in the plaintiff’s right knee increased dramatically as a result of his knee succumbing to the increased pressure placed upon it in these circumstances.  In my opinion, it is appropriate to categorise the plaintiff’s injury to the right knee as arising as a consequence of the injury occasioned to the plaintiff’s left knee because it was caused directly by reason of the fact that the plaintiff, in protecting his left knee following his injury, altered his gait which in turn exposed his right knee to unusual and unnatural pressure with the result that his right knee became symptomatic. 
50	This is a very different circumstance from the present.  In Tavendale, one injury (caused by the incident) gave rise to another injury.  In this case, insofar as two shoulder injuries were suffered in the car accident, neither was claimed to be a product of the other.  
51	In our view, the bilateral shoulder injuries have not given rise to the loss of a single ‘body function’.  
52	Ground 1 is therefore not made out.
53	It follows, given the way the applicant has put his proposed grounds of appeal, that grounds 2 and 3 must also fail.  
54	In relation to the alleged inadequacy of the judge’s reasons for judgment, we observe (for the sake of completeness) that it is apparent from the Reasons that the applicant’s claim under para (a) failed because the judge was not satisfied, having regard to all of the evidence, that the impairments to the applicant’s neck and shoulders evident on the MRI were caused by the accident.  Under the heading ‘Causation’, the judge set out uncritically the following submissions made by the respondent:  first, that none of Mr Kossmann, Dr Webster or Dr Kierce had made a causal connection between the accident and the applicant’s (then) current pathology as demonstrated by radiological examination; secondly, that the applicant’s spine was liable to have been affected by prior accidents and subsequent activity and insult; and, thirdly, that Dr Kierce had expressed the opinion that any injuries relating to the motor vehicle had long since resolved and that the applicant’s current condition was related to the ageing process.  
55	The judge also recorded the concession made by counsel for the applicant that neither Dr Webster nor Mr Kossmann unequivocally expressed an opinion as to causation which assisted the applicant’s case. 
56	On this basis, we consider it to be evident from the Reasons why the judge dismissed the application under para (a).
Ground 4, 5 and 6 – psychological impairment
57	The applicant contends that the consequences of his psychological injury constitute ‘severe’ long-term mental or severe long-term behavioural disturbance or disorder for the purposes of para (c).  While he accepts that the word ‘severe’ has been held to have stronger force than ‘serious’ in para (a), he submits that the only disclosed basis for the judge’s rejection of his psychological injury claim was that there was no ‘severe’ impairment having regard to his treatment history (comprising 160 visits to a psychologist, Zoloft only, no referral to a psychiatrist or a psychiatric hospital, no suicide attempts and very little therapy).  
58	The applicant submits that in determining the severity of his mental disorder or disturbance by focusing on the extent of his treatment, the judge failed to have sufficient regard to the extent to which his symptoms inhibited his relationships, mood, daily activities, sleep and employment.  He submits that his credit was not in issue and that he gave evidence about his psychological condition that must be taken to have been accepted by the judge.  That evidence showed severe psychological impairment.  Ms Milner’s reports also evidenced the severity of his psychological impairment and its roots in the accident.
59	In the Reasons, the judge makes it clear that the lack of specialist psychiatric treatment was not the only basis for the rejection of the applicant’s claim under para (c).  The judge referred to the fact that a number of the medico-legal opinions attributed only a small amount of the applicant’s psychological condition to the accident.  In other words, there was a causation issue in relation to the psychological injury with which the applicant presented at trial.  In the result, the judge was not satisfied that the applicant had a severe psychological impairment that was caused by the accident.
60	The question of whether it was established that the accident gave rise to a severe mental or behavioural disturbance or disorder was central to the judge’s decision, as is evident from her discussion of the evidence and the submissions of counsel on the question of causation.  The Reasons refer to some of the medical evidence, in particular, to the reports of Dr Weissman and Professor Doherty, which exposed significant uncertainty as to whether the accident was the cause of a disturbance or disorder that was severe.  Many years had elapsed since the accident and there were a number of supervening and unrelated factors which had likely caused a worsening of the applicant’s psychological state.   
61	In his report dated 10 December 2017, Professor Doherty outlined developments in the applicant’s psychological condition by reference to events in his life and said the following:
I considered the appropriate psychiatric diagnosis in this case.  It is seventeen years since the transport accident.  The [applicant] at the time was employed undertaking two employment position [sic], was taking Panadine Forte for pain at the time of the transport accident, and his predominate complaint after the transport accident was pain. 
The general practitioner continued with the analgesic medication and in the month after the transport accident commenced an antidepressant medication. 
The commencement of psychological treatment was in February 2008, by which time many psychologically stressful events had happened and their effect accumulated.  Those events were listed by the treating psychologist at the time of the first appointment.  Others have taken place since then. 
There have been five transport accidents that the [applicant] has been involved in.  They commence in 1975 when struck as a pedestrian resulting in back pain and the loss of employment as a wool presser, then the transport accident, then there was [the] November 2004 transport accident when there was an aggravation of neck pain, then the death of his son in November 2013 which the psychologist wrote worsened the pain suffered. 
…
Diagnostically, in my opinion there is no pain-related psychiatric condition present.  The usual criteria are not met.  The medication treatment is focussed on pain, with the long-term use of narcotic opioid medication.  There has been no pain specialist or pain clinic involved.  From a psychiatric viewpoint, there is no excessive concern or pre-occupation about pain, and such concern does not significantly interfere with daily activities.  There were no pain-related behaviours when I examined him.
I gave consideration as to the presence of a major depressive disorder.  In my opinion, one is not present.  There is no self-blame, guilt, disturbance of motivation or pervasive downturn in mood typical of a major depressive disorder.  When examined, the affect in quality was not depressed. 
The issue arises as to whether there is an adjustment disorder.  There are elements of adjustment present after the transport accident.  There have been psychologically stressful events that required adjusting to.  There is mood, anxiety, cognitive and pain symptoms.  There was a reduction in functioning due to such symptoms.  There has been the use of antidepressant medication immediately after the transport accident, and then after more psychologically deleterious events, the recommencement of psychological treatment seven years after the transport accident. 
In my opinion, mild persistent adjustment issues have continued over the years, underpinned initially by the pre-transport accident issues of the death of his wife in 1996, the bringing up of two children, taking on a block and leasing other acreage, and having two paid employment positions when the transport accident occurred.  Then after it, there were many psychological deleterious events that caused adjustment issues, pain issues and his sense of being unfairly and unfortunately treated and dealt with. 
62	We understand Professor Doherty to have considered the delay in obtaining psychological treatment — some seven or eight years — to be a factor relevant to whether the applicant suffered a ‘severe’ psychological disorder or disturbance as a result of the accident.  He identified mild persistent adjustment issues as a result of ‘many psychologically deleterious events’ and the applicant’s sense of being unfairly and unfortunately treated, we interpolate, by life.
63	Dr Weissman’s report dated 28 June 2018 contains the following observation:  
the subject accident was emotionally distressing for the [applicant]. However, it occurred almost 18 years ago.  This is significant, in my view. Once again, as mentioned, [the applicant] came across as a somewhat impressionistic historian.  He seemed to attribute many of his current emotional symptoms to the subject transport accident (at the expense of many other possible/probable pre-existing and unrelated factors).  This was associated with disgruntlement and various grievances. 
64	Although the credit of the applicant was not in issue, his perceptions and understanding of his ‘emotional symptoms’ and their causes, over a period of 17  years, may not be a reliable indicator of whether he suffered severe long-term mental or severe long-term behavioural disturbance or disorder caused by the accident.  It was not necessary for the credit of the applicant to be impugned in order for the judge to prefer expert medical evidence on this question and, then, to prefer some of the medical evidence over other medical evidence. 
65	Furthermore, as the respondent contended, insofar as the applicant asked the Court to measure his accident-related disintegration by reference to his earnings, the evidence did not support that proposition.  The earnings from the block showed an improvement after the accident, rather than a fall as would be more consistent with an impairment of his capacity to work.  Again, the applicant’s perceptions of what the accident did to his life were not a reliable means of assessing the extent of the impairment sustained by him.
66	We are not persuaded that the judge applied the wrong test in assessing whether the disturbance or disorder suffered by the applicant was ‘severe’.  The question of severity was bound up with the issue of causation.  Although there was evidence linking the applicant’s psychological state to the accident and the physical injuries that he suffered, having regard to the medical evidence, it was well open for the judge not to be persuaded that the applicant had established to the requisite standard that he suffered from a severe mental or behavioural disturbance or disorder that arose from the accident.  
67	Ground 4 is not made out.  Given our reasons for concluding that Ground 4 is not made out, Ground 5 must also fail.
68	The applicant submits that the judge erred in that, on the factual findings made by her, she should have concluded that the applicant’s psychological injury satisfied the test of ‘severe’ required by para (c).  According to the applicant, the judge failed to give sufficient weight to these consequences and, when the full extent of the consequences found by the judge is analysed, the applicant’s psychological condition is capable of being described as ‘severe’.  
69	For the reasons stated above, the fact that the judge accepted that the applicant was functioning ‘at a pretty good level’ at the time of the accident and that, since the accident, the applicant ‘had major problems with depression’ and that ‘he had had periods where he had been suicidal and where he had not had the capacity to make decisions’ does not compel a finding that the accident caused or was a cause of a severe psychological disorder or disturbance. 
70	In our view, as the applicant’s allegation of error in proposed Ground 4 has been rejected, Ground 5 must also fail because the applicant does not, expressly or impliedly, contend that the judge’s decision was ‘plainly wrong’, or ‘wholly erroneous’ or ‘patently unsustainable’.  As we have said, it was clearly open to the judge on the medical evidence to be unpersuaded that the applicant suffered, at the time of the hearing, from a severe psychological disturbance or disorder that resulted from an accident that occurred many years previously and in circumstances where a number of unrelated events capable of causing psychological harm had occurred in the intervening years.
71	Finally, according to the applicant, the judge failed to disclose a path of reasoning leading to her conclusion that she was not satisfied that there was any psychological disturbance or disorder which, at the date of hearing, was severe.  Absent a finding against the applicant’s credit, the judge was required either to accept the applicant’s evidence as to both his physical and psychological consequences, or explain why she discounted these factors.  
72	Failure to expose the path of reasoning is an error of law.  In Hunter v Transport Accident Commission, Nettle JA  stressed that 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 findings 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.  Relevantly, if a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and explain why that evidence or material has been rejected.  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.  
73	However, the adequacy of reasons must depend on the issues that were agitated in the hearing and the manner in which the case was presented.  In an appropriate case, the judge’s path of reasoning may be sufficiently disclosed by a combination of what is expressly stated in the reasons and inferences that may be drawn from the judge’s recitation of the material.
74	Applying these principles to the challenges faced by judges in applications for leave to bring proceedings for personal injury, in Jovceva v Transport Accident Commission, the Court said:
the Court should not apply a standard of perfection, and should not examine the judge’s reasons critically seeking to discern an inadequacy in them.  Further, it is important to bear in mind the nature of the proceeding, and the manner in which the evidence was adduced before the judge.  In this case, the only witness, who was cross-examined, was the plaintiff.  The judge was provided with a large body of medical evidence contained in the reports of various medical practitioners who had examined or treated the applicant.  None of those witnesses were cross-examined.  The task of resolving any differences in their evidence thus fell to the judge, unassisted by any cross-examination or challenge of any competing views contained in the medical reports.
75	The respondent submits that the Reasons reflect the way in which the case was argued below and, in particular, the fact that the judge identified two aspects which precluded her from finding that the applicant had suffered a severe psychiatric impairment, being the absence of psychiatric treatment and specialist referral and the judge’s acceptance of medical opinions that only a small fraction of the applicant’s psychological condition was attributable to the accident.
76	We accept this submission, although we find the Reasons to be poor in their analysis of the evidence and deficient in explaining which parts of the evidence the judge preferred and which parts she rejected or to which she gave little weight in reaching her conclusion concerning para (c). 
77	Nonetheless, having regard to the Reasons as a whole, we consider that the reason why the judge was not satisfied that any accident-related psychological consequences were ‘severe’ as at the date of the hearing is tolerably clear.  The judge, both in the Reasons and in discussions with counsel in the course of the trial, clearly had difficulty accepting that the seriousness or severity of the applicant’s injuries was attributable to the accident.  The effluxion of time and the many events in the applicant’s life in the 17 or 18 years following the accident meant that much of the expert opinion was equivocal or sceptical.  The judge accepted the medico-legal opinions attributing only a small amount of the applicant’s psychological condition to the accident and took into account the lack of psychiatric treatment and specialist referral over the long period in question.  It was open to her to do so.
78	 Ground 6 is not made out.
Conclusion
79	Leave to appeal will be granted but the appeal will be dismissed.