Fleming v Hutchinson; Conroy v Veit

[1991] HCATrans 334

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No MS0 of 1991

B e t w e e n -

WENDY VERONICA FLEMING

Applicant

and

CRAIG HUTCHINSON

Respondent

Office of the Registry

Melbourne No M51 of 1991

B e t w e e n -

NANCIE FLORENCE CONROY

Applicant

and

CAROL ANNE VEIT

Respondent

Applications for special

leave to appeal

MASON CJ
BRENNAN J

DAWSON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 NOVEMBER 1991, AT 9.38 AM

Copyright in the High Court of Australia

Fleming 1 15/11/91

MR J.L. SHER, QC: If the Court pleases, I appear with my learned friend, MR D. MARTIN, for the applicant,

Fleming. (instructed by Riordan & Partners)

MR J.F.M. LARKINS: If the Court pleases, I appear on behalf

of the applicant, Conroy. (instructed by Byrne,

Jones & Torney)

MR A.G. UREN, QC: If the Court pleases, I appear with my

learned friend, MR D.F.R. BEACH, for the respondent

in both cases.	(instructed by Maddock Lonie &
Chisholm)

MASON CJ: Mr Sher.

MR SHER:  If Your Honours please. Your Honours, when this

matter came before the Appeal Division of the together as a test case in relation to the proper construction of a provision of the Transport

Accident Act 1986, section 93, which effectively

abolished common law claims for damages for any

person injured in a transport accident in the State

of Victoria, save for persons who had suffered what

the Act referred to as "serious injury".

The Appeal Division split 2:1 in relation to

what the words "serious injury" meant in

section 93, the view of the majority being that the

words were to be given a very narrow meaning, thus

limiting the number of persons who might be able to

bring a common law claim for damages.

Mr Justice McGarvie dissented, taking a more

liberal view of what the words meant and as a

consequence, when it came to apply the majority

view to the facts of the applicant Fleming's case,

the majority took the view that this applicant was

not seriously injured; whereas, Mr Justice McGarvie

said that in his opinion she had been and would

have allowed her to bring a common law action.

So the case, Your Honours, is of general public importance to the whole of the State of

Victoria because the approach to what is "serious

injury" under this Act affects any person injured,

whether they be Victorian or not, in this State in
what is defined as a "transport accident" and that

is defined by the Act as meaning:

an incident directly caused by, or directly

arising out of, the driving of a motor car or

motor vehicle, a railway train or a tram.

So, it has the potential, Your Honours, to affect

the common law rights of millions of people and, in
fact, has in this instance seriously affected the

common law rights of the applicant, Fleming.

Fleming 2 15/11/91

The point of law that arises is as to the proper construction of parts of section 93 of the

Act and I would like to take Your Honours, if I

may, in the first instance to section 93.	Do
Your Honours have - - -

MASON CJ: Yes, we have a copy of the statute.

MR SHER:  Yes, it is at page 71 of the reprint of the Act,

Your Honours, and it will be observed in

section 93(1) that the section provides that:

A person shall not recover any damages in any proceedings in respect of the injury or death

of a person as a result of a transport

accident occurring on or after the

commencement of section 34 except in

accordance with this section.

And it then goes on to provide, in a series of

other sections, an exception to that general

provision in relation to persons who have what the

Act refers to in subsection (2)(b) as "a serious

injury".

Now, there are a number of means of

qualifying.	You can obtain a certificate from the
Transport Accident Commission.	You can, if you

have been assessed by the Commission as having

30 per cent or more impairment, qualify, but in the
event that you are not the recipient of such a

determination or a certificate, you have to apply

to the court. The proceedings that you bring are

governed by this section and, in particular,

subsection (6) provides that:

A court must not give leave under sub-section (4)(d) -

to bring proceedings -

unless it is satisfied that the injury is a

serious injury.

The definition of "serious injury" which I

will take the Court to shortly is in

subsection (17), but it is worth observing, financial thresholds as well to be satisfied before

a person can qualify. The financial thresholds

which are indexed for inflation were, at the time

of the Act, $20,000 in relation to pain and

suffering and loss of enjoyment of life - it is now

$29,000 - and $20,000 for economic loss in the

sense of lost earning capacity and the like, which

is now indexed at $29,000. So, if you were a

person with a claim for damages and you were not

Fleming 15/11/91

claiming lost earning capacity, you had to qualify by reference to the financial threshold as well as satisfying the court - that is on the trial of the

matter. If you had a trial and you did not recover the financial threshold, you could not get an

award.

DAWSON J:  Does that mean at least you can say a serious

injury must be worth more than $20,000?

MR SHER:  Yes, that is the view and it is a view which we

say gives an indication of what "serious" actually

means. It would be our contention that in this day

and age that is not a very large sum of money.

Certainly, the applicant in this case, we would

submit, would have as an assessment, and her case

would have been an assessment as she was a

passenger in a vehicle which was hit on the wrong

side of the road by a drunken driver - she would

have had her case treated as an assessment.

The section that actually deals with what

"serious injury" means is subsection (17) and the

definition there is one which occasions, we submit,

some difficulty in interpretation because it uses

the word "serious" to define what "serious" means

which is a somewhat unusual approach. If I could

take Your Honours to page 74 of the reprint.	It is
observed there that the definition of "serious

injury" which appears has four possible meanings,
the first of which is the one which we submit is
applicable to this applicant. In the first

instance it means:

(a) serious long-term impairment or loss of a

body function; or

(b) permanent serious disfigurement; or -

and then Your Honours will notice in (c) the change

of terminology to the word "severe":

(c) severe long-term mental or severe

long-term behavioural disturbance or disorder;

or

(d) loss of a foetus.

So it would seem clear, Your Honours, that the

draftsman and the Parliament were drawing a

distinction - notwithstanding if you look in the

dictionary you will find one of the synonyms for

"severe" is "serious" - between "serious" and

"severe".

Now, in the Full Court when the matter was

argued in respect of five separate cases, both the

Fleming 15/11/91

majority and the minority judgments accepted that
the word "serious" was ambiguous. At page 27 in
the application book, Your Honours will find that

in discussing what the word means, the majority

judgment says at line 21:

However, the little assistance that is to be

derived from those Debates tends to persuade

us that Parliament intended "serious injury"

to be regarded as being at the higher, rather
than the lower, end of the possible range of

meanings.

And that, we submit, is a clear indication that

they were taking the view that there was an

ambiguity and a range of meanings for the word
which there clearly is.

The minority judgment at page 51 states quite clearly in lines 26 and 27 that the provision is

ambiguous. We submit that is clearly so.

Now, the majority also said that they could

not discern from the parliamentary debates to which the court was referred in argument - and apparently

were extensive debates referred to - any clear view

as to what Parliament's intention was, and

Your Honours will recall that in the passage that I

have just read to you they referred to the little

assistance that can be derived from those debates.

Mr Justice McGarvie, in his dissenting

judgment, made it clear, at pages 59 to 61 - and I

do not think I need to read it to Your Honours -

that he took the view that there was no real

guidance to be found in the parliamentary debates

at all as to what of the range of meanings the

words should be given.

MASON CJ:  Mr Sher, could I ask you a question relating to

the legislative history? In the legislative

process was any amendment made to the definition of

"serious injury" after the bill was first

introduced into the legislature?

MR SHER:  I think the answer to that is no, but I cannot say

with any confidence that - - -

MASON CJ:  You think it was introduced in the form in which

we see it now?

MR SHER:  Your Honour, my learned friends to the right who

have a greater knowledge of this matter than I do

suggest that the "loss of a foetus" was added but

the concept of an exemption in favour of "serious

injury" was introduced in the debates and once

Fleming 5 15/11/91

introduced, apart from "loss of a foetus", there

was no change to the suggested terminology.

MASON CJ:  I see, but it was introduced by the opposition,

was it not, in the course of the debates, that is,

the definition provision?

MR SHER:	I think that is right, Your Honour, yes.
MASON CJ:	And then you say it was introduced in the form in

which we presently see it subject to the later

additiori of (d)?

MR SHER: Yes, that would appear to be so, Your Honour.

Now, Your Honours, the way in which the court

approached the matter was to give the words the

following meanings in so far as it is not

absolutely clear from the majority judgment

precisely what it is that they were saying

"serious" meant, but if I can take Your Honours to

page 35, the very bottom of the page at line 28.	I
do not think I need trouble Your Honours with the
rest of that paragraph which commences at line 15
but in discussing what it is that the court had to
be satisfied of on an application of this nature,
Their Honours said this at line 28:

To be "serious" the consequences of the injury must be serious to the particular applicant.

Those consequences will relate to pecuniary

disadvantage and/or pain and suffering. In

forming a judgment as to whether, when regard

is had to such consequence, an injury is to be

held to be serious the question to be asked

is: can the injury, when judged by comparison

with other cases in the range of possible

impairments or losses, be fairly described at

least as "very considerable" and certainly

more than "significant" or "marked"? Beyond

such guidance it is, we think, not possible to

go.

Now, there is another passage in the

judgments, Your Honours, which may represent the

majority view although it is not clearly stated to

be their view but it seems to have been adopted by

them and to have coloured their judgment in the

case and that is at the bottom of page 22. And it

was at this stage of the majority judgment Their

Honours were discussing the arguments that had been

advanced by both sides and they said this at line

25:

There was another matter that was

emphasised.	It may be thought to be of some
weight.	The scheme setting up the Act is

Fleming 6 15/11/91

comprehensive, complex and far-reaching. It

is obviously intended, at least in relation to

all but the gravest cases, to be in

substitution for common law rights of recovery

of damages. It is inconceivable that the

legislature saw fit to carry through the

enactment and implementation of the scheme so that it might deal only with minor claims and

those where the infliction of the injuries

suffered was not due to the fault of some

other person. This consideration, it was

said, further supports the contention that the

definition is to be strictly, not liberally,
interpreted.

Now, it is not clear from that whether the

court was actually adopting the submission that
the - - -

MASON CJ: Well, you cannot establish that, can you, having

regard to the way in which it is expressed?

MR SHER: Well, I am not suggesting that it is the view of

the majority clearly expressed but it would seem to

have coloured their judgment, particularly when one

came to apply the view they did express as to what

the words meant to the facts of this particular

case.

Now, on the other hand, Your Honours, the

judgment of Mr Justice McGarvie took of the word

"serious" a more benevolent view and at page 66

His Honour said this at line 20

The application of the principles I have

mentioned leads to the conclusion that, upon its proper construction, a serious long-term impairment or loss of a body function is a

long-term impairment or loss which is

substantial or serious, in the sense of being

more than a minor impairment or loss.

So that the difference between the two would appear

to be more than a minor impairment or loss, on the

one hand, and very considerable, more than

significant or marked, on the other.

DAWSON J: But the principles which Mr Justice McGarvie

applied was largely the presumption that there is no intention to alter the common law, is that not

so?

MR SHER: Yes.

DAWSON J: That really cannot have any application here, can

it?

Fleming 7 15/11/91

MR SHER: Well, with respect, it not only can, but should.

DAWSON J: But there was clearly an intention to alter the

common law and in a fundamental respect. Once you

find that intention you cannot derive any help from

a presumption of that sort.

MR SHER: Well, we would respectfully submit that that is

not so, that you can; that if you start off with a

presumption that the common law is in favour of the

preservation of persons' rights and you are faced
with a legislative scheme which is intended to
affect the rights of some people but not all, and

the question is which of those people's rights are

to be affected, we submit that the presumption

should still be applied and applied in favour of

those, such as the applicant here who, through no
fault of her own, suffered what we would suggest

the layman would certainly describe as "serious

injury".

It is useful to see, Your Honours, by the

application of what the majority said, how it

worked in this particular instance as demonstrating
what can happen and what we say the presumption in

favour of the preservation of rights suggest should

not happen.

BRENNAN J: But, Mr Sher, is it right to say that both the

majority and the minority seek some assistance in
the resolution of a particular case by reference to
the possible impairments or losses that may be

suffered generally or by others? It is the

comparative test that both propose.

MR SHER: Well, it seems to be that suggestion in the

passage that I read to Your Honours.

BRENNAN J: In both judgments?

MR SHER: Well, not in the minority judgment, I would

suggest, Your Honours.

BRENNAN J: If one looks at page 67 at line 15, one can see

the relativity notion developed by

Justice McGarvie.

MR SHER: Yes. Well, I would have to change what I just

said to Your Honour Mr Justice Brennan. It would

seem that the whole of the court was taking a view

that there has to be some comparison made.

BRENNAN J: Comparison with the general range of - - -

MR SHER: Yes. But, of course, as both the majority and

minority judgments and the judgment of

Mr Justice Marks in the only other reported case on

Fleming 15/11/91

this legislation makes clear, there is a very

substantial subjective element involved in the

assessment of what is "serious".

BRENNAN J: Yes, no doubt that is so and is that not the

very problem because once you characterize the test
of seriousness in terms of a comparative or
relative standard and acknowledge the subjectivity

of at least some elements of it, the legal

definition of the term is almost impossible to

attribute except in the broad terms that are

attributed to it here in the judgments?

MR SHER: Well, that is clearly right, but on the other

hand, Your Honours, what will happen now as a

consequence of this decision is that when judges

are faced with applications of this nature they are

going to say, "Well, it is not a matter which can

be defined with absolute precision but what

guidance do I, as a decision maker, get from the

judgment to which I have been referred?" They then

look at the facts of the cases which - the two

matters before Your Honours this morning, we would

submit, when you look at them, clearly, would

appeal to almost everyone in the community as being

serious.

BRENNAN J: Perhaps I could put the question I am seeking to

ask you in this way:  how would you propound the

legal test of "seriousness" that is different from

that which has been propounded in the majority

judgment?

MR SHER:  By adopting the test that found favour with

Mr Justice McGarvie.

BRENNAN J: Would that be self-explanatory or would you have

to then refer to the facts of the case as applied -

as Justice McGarvie applied that test to them in
order to get a real content out of it?

MR SHER: Well, probably you would, Your Honour, and that is

really why this decision is so important and why we

submit leave should be granted to enable the matter

to be better explored, and there is another point I

will mention shortly.

The applicant in this case was a 30-year-old

woman; had four children; who was not in employment

at the time. As a consequence of that, and as she

had not been in employment for about eight years,

the only thing she would have recovered under this

legislative scheme would have been her medical and

hospital expenses; almost certain she would have

got nothing else. She suffered a fractured wrist,

a fractured sternum, a punctured right lung, she

had to have a laparotomy and she suffered a serious

Fleming 9 15/11/91

fracture to her right heel which was radiologically

evidencing arthritis at the time of trial and which

the medical evidence substantiated she was likely

to be a candidate for surgery to her heel in

mid-life. So, she had had three fractures, one of

which, according to the majority judgment, left her

with a long-term impairment of her right heel.

DAWSON J: Well, that is the only one that is relevant, is

it not?

MR SHER: Well, we would submit not, and that is another

mistake which, we submit, the majority made which

is this, that - I mention it now. The majority

have taken the rather odd view, and we submit an

incorrect view and inconsistent with the view

Mr Justice Marks expressed in the other case, that

you, in effect, look at the body as thought it were

in pieces; that you take each impairment alleged

and ask yourself whether that is a serious

impairment but you do not look at the body as a

whole and ask whether the body - - -

DAWSON J: But it has got to be a long-term impairment.

MR SHER:  But even so, Your Honours, it is submitted that a

person may suffer a series of what may be described

on their face, in lay terms, as a modest or minor

injury, not a serious injury, the combined effect

of which is to result in serious long-term

impairment of the person as a whole. Now that, we

submit, cannot be the intention of the legislation;

that if you have a serious long-term - - -

DAWSON J:  I do not understand that. Let us say you have a

series of fractures which knit up and are perfectly

all right after a while but you are left with some

long-term disability of a small nature.	You say,
nevertheless, that is a serious long-term

impairment because the original injuries were

serious?

MR SHER:  No, that is not what I am saying.

DAWSON J: Well, what do you say?

MR SHER: Now, what I am saying is this, Your Honours: if

you have a series of residual disabilities each one

of which, taken separately, might be described as

minor but the combined effect of which is to impair

your body function as a person, as a whole person,

then clearly you are seriously injured. Now, the

majority view seems to be that you do not do that:

you take each injury separately; you assess it; if_

it is not in itself serious then you cannot

qualify, whereas we would submit that as a matter

of common sense and particularly when we are

Fleming 10 15/11/91

considering, "Have the common law rights of people

been abolished?", you take the body as a whole.

Now, that is the view of Mr Justice Marks in

Ninkovic's case, (1991) 2 VR 427, which I will take

Your Honours to, and if you look at page 429 at the

paragraph commencing just under line 35,

Your Honours will see that what was there said was

this:

In my opinion, it is necessary to say

something about the meaning of (a). I think

that it means that there must be an impairment

which is serious, and it must be long-term,

or -

and His Honour puts it in the alternative -

there must be a serious loss of a body

function.

So, what His Honour is saying is that there are two

possible ways of qualifying and one of them is

long-term impairment. Now, that is not confined to

a particular body function or a particular injury,

it is confined, we would say, on its proper
construction, to the person as a whole, as a whole
person, and indeed, we would submit as a matter of
logic and common sense, it is unlikely that in

assessing the question of impairment to a person

you would divide them up into limbs and other parts

of the body. Whereas, the majority, in their

judgment, said in a quite ambiguous part of their

judgment that they were against that view. It is

at page 30, I believe, of the application book.

At paragraph 6 at line 14, Their Honours said

this, and it is a confused passage, we would

submit, and not likely to be able to give clear

guidance:

6. It is impermissible in an attempt to

ascertain if a "serious long-term impairment"

has been shown to exist to look to a number of

"impairments" not any one of which is a

"serious long-term impairment" and treat them

as acting in total, as it were, so as to meet

the requirement of the definition.	A body
function must be identified.

Now, that is not what Mr Justice Marks says and it

would not seem to be the view of

Mr Justice McGarvie. And then Their Honours said

which, we submit, is a somewhat confusing passage:

That done the enquiry to be made is whether

that function has been impaired or lost. It

Fleming 11 15/11/91

may, of course, be impaired or lost by reason

of two or more injuries acting together to

cause such impairment or loss.

It seems to be contradictory, in a sense, of

what they said in the first part of that paragraph but, on the other hand, the clear message which we

submit this passage is giving to judges listening

to these applications is that you look at each

alleged impairment of body function separately and

you assess whether that is serious and you cannot

add them together.

BRENNAN J: Well, this is a new and different point from the

first point you raised.

MR SHER: It is, indeed.

BRENNAN J: And the problem seems to me to be twofold,

Mr Sher? On your first point it seems to me that

perhaps your principal argument is that even

applying the test which appears at page 36 of the

judgment, your client should have been held to

satisfy that test.

MR SHER:  Yes.

BRENNAN J: Well, that is a question of fact - fact and

degree, if one wishes; but certainly one of

approach, one of subjectivity and so forth.

MR SHER:  Yes.

BRENNAN J: That is not the sort of problem which readily

admits of the grant of special leave. The second

point which you raise on page 30 seems to me to

show that as Their Honours had not referred to

Ninkovic's case - - -

MR SHER: They did. They had referred to it. It was

unreported at that stage but they actually refer to

it with approval in their judgment.

MASON CJ: They quote a passage from it.

MR SHER:  Yes.

BRENNAN J: Approving it and noting what Mr Justice Marks

said, it is difficult to mount an argument that
there is anything here which is going to be

inconsistent with the view that you wish to

propound.

MR SHER: Well, can I say in answer to those three points

the following, Your Honour: firstly, it is true to

say, as Your Honour Mr Justice Brennan has

observed, that this is in a sense a complaint about

Fleming 12 15/11/91

a factual finding in so far as the legal definition

of "serious" was applied to Mrs Fleming. But the

answer to that, we submit, is this, that when the

judges of the county court and elsewhere are being

asked time and again, as they undoubtedly will in

contested cases to consider these matters, the

guidance that they will get from this judgment when

they asked themselves, "What do these words really

mean?", is to look at the facts of Fleming's case

and say, "Well, it clearly doesn't mean somebody

who has three fractures and is a candidate for

surgery in mid-life."

BRENNAN J:  Now, that is the classic judicial fallacy, is it

not, to look from one case to another comparing the

facts in order to derive a legal principle?

MR SHER: Well, that may be right, Your Honour, but if the

guidance given by the majority judgment as to what

the words mean leaves room for ambiguity as to what

they actually do mean by those words, then it is

inevitable and in practice it happens, that judges

will look to what the facts were of the case in

which they made those observations.

But the second answer I give to that, Your Honours, is that we would quarrel and
respectfully submit that what the majority said is

wrong and it is wrong for this fundamental reason:

this is a legislative provision which abolishes

people's rights, save for a class of people. It

abolishes the rights of people in favour of those

who are, in some instances, the cause of other

people's injuries. Those who are sacrificing their rights in this legislative scheme are those who are

innocent of negligence or whose contributory

negligence is minimal, and in favour of those who
are either negligent or guilty of substantial

contributory negligence who might not otherwise

have sued.

Now, there is a long tradition in this Court,

starting in Potter v Minahan, recently cited by

this Court in Bropho v Western Australia, which is

one of the cases on our list of authorities, to the

effect that when you are construing legislation of

this nature and the provision you are dealing with

is ambiguous, there is a principle of construction

in favour of giving that legislation a meaning so

as to not impair people's rights.

DAWSON J: That does become artificial in the circumstances

here. Here you have a clear intention to interfere

with rights in a radical way and to set up a scheme

which is entirely different from the law as it was

before. That being the intention of the

legislature, it is entirely artificial to say but

Fleming 13 15/11/91

you intend it to interfere with rights as little as

possible.

MR SHER: With respect, Your Honour, I am not saying that

and, with respect, that is not what this scheme is

doing. This scheme is abolishing rights save for a

class and the question is, "Who are the members of

that class?" And in defining the membership of

that class, we say the common law principle ought

to be applied.

Now, it was not applied by the majority at

all. They referred to the principle as being

advanced in argument.	They do not discuss it.
They discuss none of the authorities.	They do not

say what Your Honour Mr Justice Dawson has said.

They merely note it as an argument raised and then

ignore it, whereas, Mr Justice McGarvie discussed

it in detail and applied it, in our submission,

correctly.

The strength of the principle is illustrated,

we submit, very powerfully by another recent

decision of this Court of Ex parte Beane, 162 CLR

514, and in the joint judgment of Your Honour

the Chief Justice, Mr Justice Wilson and

Your Honour Mr Justice Dawson, at pages 517 to 518, Your Honours discuss the extraordinary circumstance

there of where it was clearly expressed in the

none the less said they had not said what they intended to do and what the Court does is to apply the law as stated.

parliamentary debates what the intention of the

The passage, Your Honours, is at the very

bottom of page 517, and Your Honours said this:

Furthermore, given thats. 19 is ambiguous,

consideration may be given in ascertaining the meaning of the provision to the second reading

speech of the Minister when introducing the

Bill for the Act into the House of

~epresentatives in 1963. That speech quite
unambiguously asserts that Pt III relates to
deserters and absentees whether or not they

are from a visiting force. But this of

itself, while deserving serious consideration,

cannot be determinative; it is available as
an aid to interpretation. The words of a

Minister must not be substituted for the text of the law. Particularly is this so when the

intention stated by the Minister but

unexpressed in the law is restrictive of the

liberty of the individual. It is always

possible that through oversight or
inadvertence the clear intention of the

Fleming 14 15/11/91

Parliament fails to be translated into the

text of the law. However unfortunate it may

be when that happens, the task of the Court

remains clear. The function of the Court is

to give effect to the will of Parliament as

expressed in the law.

Now, Your Honours, this Act with which we are

concerned was an Act that was intended to preserve

the common law rights of a significant number of

people, potentially everyone injured in a transport

accident in this State, whether they are resident

or not, and those people are those who suffer

serious injury. It chose to use ambiguous language

capable of more than one construction and, in our submission, the majority were bound to apply that principle of construction, and did not, and got it

wrong. We submit, Your Honours, that the views of
Mr Justice McGarvie, who did consider the matter, are to be preferred. There is clearly a division within the Victorian Supreme Court amongst some of

its members as to what these words actually mean

and how these sections are to be applied and it is,

thus, we submit, a matter of some doubt.	The
judgment is erroneous, is our respectful

submission, and it is clearly a matter of public

importance.

For those reasons, we respectfully submit

special leave should be granted. If the Court

pleases.

MASON CJ: Yes, thank you, Mr Sher. Mr Larkins?

MR SHER:  I might say, Your Honour, that I brought into

Court but failed to hand up a series of extracts

from dictionaries as to the meaning of the words

"serious" and "severe".	I do not know if
Your Honours feel that -

MASON CJ:  I doubt if it is going to be of any assistance

but hand them in.

MR SHER:  We have got the Oxford Dictionary and the

Macquarie Dictionary and my recommendation is

Your Honours look at the Macquarie Dictionary,

particularly the last of the four pages.

BRENNAN J: That helps you a bit more, does it, Mr Sher?

MR SHER: Well, it says as to "serious", Your Honours, in

the Macquarie Dictionary, amongst other

definitions:

weighty or important ..... cause for

apprehension -

Fleming 15 15/11/91

It seems to be something less than what the

majority appear to be saying. If the Court

pleases.

MASON CJ: Yes, Mr Larkins?

MR LARKINS: If the Court pleases, there has been a

considerable degree of co-operation between both

counsel and solicitors appearing on behalf of each

applicant.

MASON CJ:	You are not going to contradict Mr Sher then?
MR LARKINS:	I am not, Your Honour, and whilst I can take no

credit for his submissions, I do adopt them for the purposes of what I want to say to the Court. Can I

just say briefly on the topic of the general

importance of the matters raised, that this has

always been a test case in the sense that five

matters were organized to come before the Full

Court of the Supreme Court of the State of Victoria

and it is my submission that there is a clear

divergence of opinion which has emerged from the

majority judgment as against the judgment of

Mr Justice McGarvie and the consequences of that

divergence of opinion are, in my submission - they

relate - or have consequences far beyond the

particular parties before this Court.

Having said that, the only other matter I want

to take the Court to is to very briefly point out
the nature of the injuries suffered by Mrs Conroy

in the car accident in which she was a passenger in

that the description of those injuries - and there

is some divergence of opinion amongst the doctors,
the plaintiff's doctors and the defendant's

doctors - as set out in the opinions of her

treating orthopaedic surgeon and treating

neurosurgeon are, in my submission, instructive as

to the practical effect of the majority's view of

how "serious injury" is to be interpreted and they

are conveniently summarized in the application book

at page 96. In fact, the opinions are summarized

in the judgments of the Full Court but the

quotations actually appear in the judgment of

Judge Cullity at first instance. Page 96: you

will see that half-way down, and I do not really thing I need to read it to the Court, there is a report of Mr Wilton Carter who is the orthopaedic

specialist I referred to. This is a report

relating to the potential plaintiff's condition

almost three years after the accident:

evident movement loss both on passive and

active assessment on all modalities of

cervical movement. Most particularly her

Fleming 16 15/11/91

rotation movement is quite generally
restricted by at least 50%.

And yet it is contended and so found by the

majority that Mrs Conroy is not seriously injured

and does not have a serious and long-term

impairment of body function, and that finding is as

a direct consequence of the majority judge's view

as to the manner in which the word "serious" is to

be interpreted.

The other passage to which I wanted to refer

the Court appears at page 98, line 20. There is

reference to the impression of Mr Wallace, as I

said, a neurosurgeon:

cervical myelogram confirmed the strong

clinical impression that she was suffering

from a significant nerve root compression in

the neck.	She underwent appropriate surgical
treatment.

That was a cervical compression.

Her condition has steadily improved since

surgery. However her injury renders her

permanently more prone to neck and arm pain

and intermittent sensory disturbance, than a

normal individual.

And further down:

There is no doubt at all that this injury has

led to a significant impairment of her ability

to undertake a normal domestic and

recreational life as well as impairing her

ability to undertake normal employment.

Now, the fact of the matter is that Mrs Conroy does not work for a living, she is a lady of senior

years residing in Daylesford but, nevertheless, as

Mr Justice McGarvie found, there has been a very

substantial effect on her lifestyle and her ability

to lead an independent life which led

Mr Justice McGarvie to the view that she ought to

be granted leave under the appropriate section.

DAWSON J: What sort of damages would you expect her to

recover?

MR LARKINS:  I would have thought well in excess of the

first barrier in the second threshold, in the sense

that I think the threshold, as Mr Sher referred to,

is about $29,000 now. One would expect that

Mrs Conroy would vault that with some ease, having

regard to the permanent effect as described by her

treating doctors.

Fleming 17 15/11/91

DAWSON J:  I suppose that is the answer I would expect from

you.

MR LARKINS:  I think Your Honour would have been

disappointed if there was any different answer.

Finally, Your Honours, can I say this, that

the point of general importance which, in my

submission, is raised is that if

Mr Justice McGarvie is correct, there is no doubt,

in my submission, that both Mr Sher's client and my

client would have obtained leave to proceed within

the requirements of section 93 and it is that point

which, in my submission, does underline the general

importance of the question and the importance of

this Court expressing its views as to whether the

majority view is to be preferred or the minority

view is to be preferred.

MASON CJ: Thank you, Mr Larkins. Yes, Mr Uren?

MR UREN: If the Court pleases. Could I start our argument

off by saying that we think in some respects our

learned friend, Mr Sher, was confusing what is
meant by "injury" in the ordinary meaning of the

word with the concept of "serious injury" in the

Act. The Act requires that one identify a body

function and then see how that body function has

been effected. In other words, what you do is not

look at the actual wound or breakage or prolapse or

whatever it is itself but actually identify some

function of the body which we would expect to be

something that the body should be able to do but

cannot do now in some particular way and say then

how that lack of ability affects the plaintiff in

his or her life or work or other activities or

things of that nature.

So, it is not really to the point to point to

someone and say they are being horribly injured in

an accident and they have had wounds and contusions

and injuries in the ordinary sense of various

sorts. You really have to look at a body function

and identify the function and how the function has

been affected. Our learned friend's view may have

coloured some of the things he was saying in the

course of his argument.

Now, I wonder if I could start off by making a

number of points or, at least, say what our points
are? Basically, they are, firstly, that the

decision of the court is not attended with

sufficient doubt to justify the granting of leave;

secondly, that the issues in the case are really

simple issues of statutory interpretation which

would not, in our respectful submission, warrant

the attention of this Court and, thirdly, that the

Fleming 18 15/11/91

resolution of each case depends on a factual

analysis of the circumstances of each case and a
view which is, in a sense, subjective taken by the

tribunal to the effect which it thinks that the

facts have with respect to the individual parties.

Now, going on to the first point. I wonder,

without wanting to be flippant, if I could pose

some rhetorical questions? The first is if the

court was to tell us that there was a serious flaw

in our argument, would it be telling me that the

flaw was something which is merely more than minor?

Bearing in mind, of course, that the parties in

this case have taken up their little stands on the

hillocks and one side of more than minor so that

"serious" from the applicants' point of view means

anything which is more than minor; from the

defendant's point of view, of course, "serious" has

to mean what the Full Court said it meant. There

seems to be little avenue for a view to be taken in

between those.

So, taking up one's position on the hillock of

the applicants, as it were, and regarding "serious"

as meaning more than "minor" and looking at whether

that is a contention which is worth serious

consideration, if the Court was to tell us that

there was a serious flaw in our argument, we would

think that we were being told that there was

something which was horrendous and grave, not

something which was more than minor.

Now, we trust the Court thinks that we do take

our own case seriously and we come to this Court

intending to put serious submissions. Now, the

Court then, we would think, would not take the view that we only regarded our appearance here as

something which is possibly one step above minor

and that we regard the putting of our submissions

in that way.

If the Court was, unfortunately, to tell us

that our conduct was seriously improper, well,

Mr Beach and myself would scarcely be inclined to

think that we had committed an infraction which was

merely more than minor.

Now, all those things are a preface, really,

to saying that what the Full Court said in the

majority judgment is much more likely to be right

than what was said by His Honour

Mr Justice McGarvie. Could we assist that

proposition by pointing out a consequence or two

consequences which necessarily flow - perhaps,

three, rather - from the view which our learned

friends have put out. The first consequence is the

consequence which the majority referred to in its

Fleming 19 15/11/91

judgment at pages 22 to 23 to which the Court has

already been referred. At page 22, at line 25, the court referred to a matter which had been put to it

in argument and said that:

It may be thought to be of some weight. The

scheme setting up the Act is comprehensive,

complex and far-reaching.

Now, all those things are true and I could take the

Court to the sections if the Court wishes me to.

It is obviously intended, at least in relation

to all but the gravest cases, to be in

substitution for common law rights of recovery

of damages. It is inconceivable that the

legislature saw fit to carry through the

enactment and implementation of the scheme so that it might deal only with minor claims and
those where the infliction of the injuries
suffered was not due to the fault of some
other person. This consideration, it was

said, further supports the contention that the

definition is to be strictly, not liberally,
interpreted.

Now, the effect of the view which our learned friends put is that this scheme, which, I think,

would have to be admitted to be comprehensive,

complex and far-reaching and designed to reduce the

burden on the public of motor car damages, is in

fact a scheme which despite the labours of

Parliament and the difficulties they felt in coming

to some conclusion, in fact, only cuts of common

law damages so far as concern those with claims

which are only minor or where the person who is

seeking the damages is either at fault or

significantly at fault. That would be the

consequence of our learned friend's submission and

it is unlikely, in our submission, that Parliament

laboured so long to produce an Act of such small

dimensions.

The second point we would like to make in that

regard is that - at least under this particular
heading - in what is supposed to be an age of plain

English, although it is not often achieved but none the less supposed to be such an age, Parliament in fact did not use the words "more than minor" when

it would have been very easy so to do and one would

ask if that was all that was meant by Parliament

why they did not, in fact, say so.

The third thing is that some support or

comfort has been obtained or expressed by our

learned friends with respect to the $20,000 index

monetary limit as though that had some effect on

Fleming 20 15/11/91

the view which ought to be taken about what is

meant by "serious". In our submission, it does

not, for two reasons: firstly, it is intended, as

both Parliament said during the course of the

debates and as, we think, the context of the Act

indicates that it is in fact a separate threshold,

not a threshold which is connected with the
"serious injury" threshold and, secondly, if

Parliament had intended that "a serious impairment"

meant "an impairment where a person was likely to

get more than $20,000 indexed" that is what it

would have said when it told the judge what his

task was in determining whether people ought to get

leave to take proceedings or not. In other words,

to go to the statute at page 17 of the application

book, the Parliament would have said:

(6) A court must not give leave under

sub-section (4)(d) unless it is satisfied

that -

at the trial the applicant is likely to get more than $20,000. Now, Parliament did not say that; did not say any of those things, and the

conclusion, in our submission, could only be that

those matters to which I have referred do tend to

show that it is very unlikely, indeed, despite what

arguments may be put to the contrary, that the

decision of the Full Court in this case is likely

to be changed by an appeal to this Court.

Now, the second point we would like to make is

that the issues in this case are, although of
significance in the interpretation of a statute of

public important - we cannot deny that - in fact,

only simple matters of statutory interpretation,
not attended by great complexity or difficulty and

not needing this Court to resolve any matters of

complexity or difficulty. But really only all that

has been asked is that the Court come, as a matter

of impression, to a different conclusion than the

conclusion expressed by the Full Court. In our

submission, special leave should not be granted

merely for that purpose. Added to which, of

course, there is the necessity to make the factual

analysis of a fairly large number of medical

reports and work out the difference between the

medical reports, the history set out in them and

the things said by the plaintiffs in their

affidavits, and then have to make a factual

analysis of that nature. So, those are all, in our

respectful submission, good reasons for special

leave being refused.

There are a number of things which I think I

should take up from matters that our learned

friends mentioned in the course of their argument.

Fleming 21 15/11/91

We do not take the Full Court as having said that

you cannot look at a collection of injuries or a

collection of impairments for some relevant

purpose. What the Full Court said was not that

they would not do that but that what you have to do

is identify a body function which has been

impaired.

MASON CJ:	Now, can you refer us to the relevant passage in the majority judgment?
MR UREN:	Yes, it is at page 30 in paragraph 6 of the
judgment of the majority. They said:

It is impermissible in an attempt to ascertain

if a "serious long-term impairment" has been

shown to exist to look to a number of

"impairments" not any one of which is a

"serious long-term impairment" and treat them

as acting in total, as it were, so as to meet

the requirement of the definition. A body

function must be identified. That done the enquiry to be made is whether that function has been impaired or lost. It may, of course,

be impaired or lost by reason of two or more

injuries acting together to cause such

impairment or loss.

In other words, just because you have an impairment

of the finger and an impairment of the toe and an

impairment of the ear and a few other things, you

cannot merely, because you have a number of them, add them up and say that means there is a serious

injury because the statute requires you to first
identify a body function which has been impaired or

lost and say whether that impairment is serious.

In other words, the statute requires you to

identify a body function. And, of course, the

Full Court does not deny that you can have that task done by looking at a number of separate impairments and seeing how they operate on a body

function and it may, of course, be with the, let us

say, the arm: that the function of the arm might

be impaired by a number of separate little things

and perhaps, in some circumstances, the function of

other parts of the body may be able to be looked at

in the same way.

But the court is not, in our respectful

submission, saying that you cannot look at a number

of things and see whether they together, in fact,

are an impairment of a body function. What the

court is saying is that the statute says that you

must see what body function has been impaired and

so, in doing that, you identify the body function.

It is not merely a case where a number of

non-serious impairments, all added up, as if you

Fleming 22 15/11/91

would do in an addition in arithmetic, come to the

number 10 or 20 or something, you have to look at a

body function and see whether that has been

seriously impaired and that is doing no more than

what the statute requires when the statute says
that "serious injury" means "serious long-term

impairment or loss of a body function".

Now, my learned friends, I think, said

something about impairment of the person.

Impairment of a person is a different concept and

is referred to, I think, in another section. Of

course, I dare say, a person himself could be so

totally impaired that a body function or a number

of body functions is seen to be impaired but the

court was not denying the possibility of a

legitimate adding up but only denying the

possibility of an illegitimate adding up.

So, there is no comfort to be given, in our submission, to the proposition that the court has

done something wrong, with respect, to the adding

up. They have merely denied an illegitimate adding

up but allowed a legitimate adding up where the

adding up does, in fact, affect an identified body

function. So, there is nothing, in our submission,

to be made of that point. Nor, as far as I am

aware, is that matter, even if it was right,

something which arises in this case. I am not sure

that there is a case in either of them for saying

that a number of additions do, in fact, constitute

an impairment of a body function.

Now, we have already addressed the question of

whether the monetary threshold is irrelevant. In

our submission, it is for the reasons we have

referred to. It merely provides another ingredient

which a plaintiff must get through, probably a

lesser threshold than the "serious injury"

threshold because the person has already been

allowed by the law to sue and it would be a bit

unfair if there was a double threshold of the
concept of "serious injury".	The Parliament has

perhaps been more beneficent to plaintiffs and

allowed them to still get their costs if they get a

much lower figure.	And, of course, the $20,000 is
addressed to costs.	I think not to the question of

whether you can sue at all.

As Your Honour Mr Justice Dawson observed, the

statute is clearly intended to affect common law

rights significantly and in that instance, in our
respectful submission, it is probably meant that

the effect is to be a significant or serious

effect.

Fleming 23 15/11/91

The last thing, I think, to take up from the propositions our learned friends have mentioned was

the question of whether there was any - no, there

were two, I think. First, it was said there was an

ambiguity in the statute and the majority had

accepted that there was but did not interpret the

ambiguity in favour of the applicants. In our

submission, the Full Court did not find there was

an ambiguity. The Full Court found that the word

had a meaning in the context of the statute; found

that the word "serious" did, in fact, upon proper

analysis, have a meaning and they were not, in the

passage our learned friends referred to, saying

that there was an ambiguity in the statute which

they then had to resolve. All they did was look at

the word in its context and give it a particular

meaning. In that context then there is no room for

the application of the rule of interpretation to

which they referred and we do not see that there is

any distinction or different between what

Mr Justice Marks said in Ninkovic's case and what

the Full Court said. If there was, of course, it must, of course, be accepted that a decision of a

judge in chambers or even of a single judge, to the

extent that it is inconsistent with a decision of

the Full Court, must, of course, go.

So, the law in Victoria is not unclear. The

law in Victoria is what the Full Court said it was.
But we do not, in our respectful submission, see
any substantial difference and nor did the

Full Court between what was said by

Mr Justice Marks and what it said. For those

reasons, we submit that special leave should be

refused.

MASON CJ: Yes. Thank you, Mr Uren. Yes, Mr Sher?

MR SHER:	Your Honours, my learned friend's play on the word
"serious" illustrates precisely the point we are

making, that it is an ambiguous word and what

meaning you give to it depends upon the context in

which it is used and the purpose for which it is

used.

DAWSON J: It is not really ambiguous, it is just a question

of degree.

MR SHER: Well, we would contend that it is a word of a wide

range of meanings, and perhaps that is a euphemism

for "ambiguous" .

DAWSON J: Or a question of degree?

MR SHER: Well, perhaps it is a question of degree but we

would say it is still ambiguous.

Fleming 24 15/11/91

BRENNAN J: Well, that really raises the point, does it not?

It is a question of whether its connotation or its

denotation is uncertain. Now, if its connotation

is certain enough, the problem is that it might

denote a number of conditions. Now, how do we

resolve a problem of denotation by entertaining an

appeal on a question of connotation?

MR SHER: Well, we will assist Your Honours by taking you to

the Act and to the scheme of the Act and the
material that has been adverted to but not

discussed on this application with a view to

illustrating what it is that Parliament intended

and might I just say this about it: this

legislative scheme was designed to eliminate, so

the debates would have us accept, about 70 per cent
of all common law claims because 70 per cent of

those claims were very modest, indeed, $4000 to

$5000-type claims which were costing $4000 to $5000
each to litigate. And the intention of the

legislature was to get rid of those claims in

favour of the more - the social engineering in

favour of the negligent who were injuring

themselves. But what it was not intending to do,

we submit, was to eliminate the rights of the

seriously injured and the real question is who are the seriously injured that this legislation has in

mind?

Now, it is rather extraordinary to find my

learned friend arguing and the Full Court seeming

to be saying that you can look at a body function

but you cannot look at the body and that is, in

effect, what is being suggested that this

legislation means. You look at a series of

separate body impairments but you cannot look at
the body as a whole which would be a very strange

piece of legislation.

Now, Your Honours, to suggest to this Court

that because a matter involves statutory

interpretation is not worthy of the attention of

the High Court of Australia would eliminate a great

deal of the Court's work. Perhaps some may wish

that to be so but it is certainly no answer to

suggest the statutory interpretation is not worthy of the attention of this Court. Beane's case is a

classic example of that and we respectfully submit

that this is a very serious question involving

statutory interpretation.

MASON CJ: But we have, from time to time, Mr Sher, refused

special leave applications where the question of

statutory interpretation concerns a word such as

"serious" on the footing that the resolution of the

question does not raise any general principle of

statutory interpretation.

Fleming 25 15/11/91

MR SHER: Here, Your Honours, we would seek to argue that

this matter is of such public importance that even

though it may not involve any new special principle

of statutory interpretation, it should still be

entertained, but we say it involves the application

of an established principle of statutory

interpretation which the Full Court appeared to

have put to one side. Having noted the argument,

they do not discuss it - - -

MASON CJ:  The majority, you mean?

MR SHER:  The majority, yes. And we respectfully submit

that there clearly is, within the court, a serious

division of opinion as to the proper approach to

this complicated statute, the full details of which

Your Honours have not been taken to, which has many

provisions which, we say, indicate, on its proper

analysis, that this statute was designed socially

to engineer funds collected compulsorily so that

those who were in greater need got it and the ones

that they did not want to deprive of their common

law rights were the seriously injured.	The real
question is, who are they?

The financial threshold is an added burden to

be overcome and an indication to fact finders of

the sort of cases that the legislature has in mind,

in other words, it is an added benefit, an added
assistance, but to suggest that it is irrelevant to
the issue, in our submission, is surprising and it

clearly was not thought so by Mr Justice McGarvie

and, we respectfully submit, that was correct.

This is, we submit, such an important matter of such practical importance to everyone in this

State who - - -

DAWSON J: It is conceded that it is important, Mr Sher. It

is conceded on the other side that it is important.

MR SHER: Yes. Very well, I will not trouble the Court

further. If the Court pleases.

MASON CJ: Thank you, Mr Sher. The Court will take a short

adjournment in order to consider the course it will

take in this matter.

AT 10.41 AM SHORT ADJOURNMENT

Fleming 26 15/11/91

UPON RESUMING AT 10.52 AM:

MASON CJ:  The Court will announce its decision in these applications at 2.15.

AT 10.52 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.25 PM:

MASON CJ:  The term "serious" in section 93(17) of the

Transport Accident Act 1986 of Victoria imports a

test which is relative to the range of possible

impairments or losses of body functions or

permanent disfigurements. So.much is acknowledged

in all judgments in the Appellate Division of the

Supreme Court. The only question is whether

"serious" in the statute imports a more substantial or less substantial barrier to the right to recover

damages at common law. That is a question of

degree which is not susceptible of clarification

were an appeal to be entertained. In each case the

Court must apply the test of "seriousness" by

a range of conditions within which the instant condition occurs.

evaluating the plaintiff's condition and such an

evaluation does not depend on any legal principle.

We are not persuaded that the case truly

involves any general principle of statutory

interpretation. As Mr Justice McGarvie noted at

page 67 of the application book:

"The test is to be applied in the context of

the provisions of the Act which I have

mentioned. Its application involves a

comparison with and an assessment relative to

other possible impairments or losses of the

body function in question. Elements of fact,

degree and value judgment are involved."

We do not read the majority judgment as

stating any more than that the test of

"seriousness" is to be satisfied only when the

injury can be described as more than "significant"

or "marked", so that the barrier is more rather

than less substantial. No more can be drawn from

the case in point of principle.

Fleming 27 15/11/91

These cases therefore do not raise for

determination any question of law which justifies
the grant of special leave.

Once the general approach is understood, the

resolution of a particular case depends upon the

circumstances of that case and no useful purpose is

to be served by a review of the particular

decisions which are the subject of these

applications.	The applications are therefore
refused.

MR UREN:	Would the Court make an order for costs?
MASON CJ: Yes.	I take it that an order for costs is not

resisted?

MR MARTIN:  Your Honour, on behalf of the applicant,

Fleming, we would resist an order for costs and

would point out to the Court - - -

MASON CJ: That is because they are test cases?

MR MARTIN:	Yes, Your Honour.
MASON CJ:	And were agreed to be test cases?

MR MARTIN:  Yes, Your Honour. And, particularly, when one

bears in mind that the respondent is a statutory

organization which is obviously interested in the

interpretation of this section. It is submitted,

Your Honours, that in the circumstances there ought

be no order for costs.

MASON CJ: What do you say, Mr Uren?

MR UREN:  If the Court pleases, they were never said to be

test cases or agreed to be test cases. The test

case argument was never advanced in the supreme

court which made the ordinary orders for costs.

The situation is there were five cases which came

up to the supreme court because they were appeals	from the county court which occurred at about the
same time and, as a matter of sense and convenience, they were all heard by the same bench,
but there was never any argument put that they were
test cases or agreed to be such although, no doubt,
as the first cases of their sort, off the rank, as
it were, in the Full Court, they naturally were
regarded by everybody as, in a sense, setting a
standard for the future. But that would seem to be
no reason, or at least not advanced to be a reason
in the Full Court as to why the ordinary order for costs should not flow and, in our respectful
submission, it should not be advanced here as a
reason either.

Fleming	15/11/91
MASON CJ:	Was the order for costs made in the court below

because an indemnity for costs was available?

MR UREN:  No, not because, although no doubt an indemnity

for costs was ordered, although it is well known
that the indemnity for costs that you get from the

Appeals Cost Fund Act gives you very little towards

your actual cost of the appeal. Ms Fleming,

indeed, lost both in the county court and in the

supreme court and was not entitled to a certificate

and still had an order for costs made against her.

MASON CJ:	Does counsel for - yes, Mr Larkins?
MR LARKINS:	I cannot add anything further .....

MASON CJ: But you support what the other applicant has

said?

MR LARKINS:  I do, indeed, yes.

MASON CJ: With some regret, because costs orders were made

in the Full Court, the Court considers that an
order for costs should now be made. Therefore, the
applications for special leave to appeal will be

refused with costs.

AT 2.30 PM THE MATTER WAS ADJOURNED SINE DIE

Fleming 29 15/11/91