Hennes v Hobsons Bay City Council

[2012] VSCA 215

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0152

SUZAN HENNES
	Appellant
v
HOBSONS BAY CITY COUNCIL	Respondent

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JUDGES:	HARPER JA, BEACH and DAVIES AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	By joint memorandum filed 29 August 2012
DATE OF JUDGMENT:	7 September 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 215
JUDGMENT APPEALED FROM:	Hennes v Hobsons Bay CC (Unreported, County Court of Victoria, Judge Jenkins, 14 September 2011)

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ACCIDENT COMPENSATION – Appeal – Consent orders proposed allowing appeal and remitting matter for re-hearing – Whether proposed orders appropriate – Consent orders made – Newton v Geelong Ethnic Communities Council Inc [2011] VSCA 59 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	No appearance	Melbourne Injury Lawyers
For the Respondent	No appearance	Thomsons Lawyers

HARPER JA
BEACH AJA
DAVIES AJA:

1. On 26 February 2008, a fire drill was conducted at the Altona Meadows Child Care Centre.  The appellant was employed there as a child care worker.  Five babies had been placed in an emergency cot for the trial evacuation.  The appellant was assisting the centre co-ordinator in moving the cot through a doorway.  She was pulling backwards when the cot struck a door frame.  It stopped so suddenly that she injured her back.

1. She claims that her injury falls within the definition of ‘serious injury’ in s 134AB(37) of the Accident Compensation Act 1985 (‘the Act’).  She has suffered, she maintains, a permanent serious impairment or loss of a body function resulting from damage to her lumbar spine (paragraph (a) of the definition).  She also relies upon paragraph (c), which includes in the definition of ‘serious injury’ ‘permanent severe mental or permanent severe behavioural disturbance or disorder’.  This arises, she claims, from what she contends has been a psychological reaction to the chronic pain which she has suffered as a result of the injury to her spine.

1. By originating motion filed on 8 February 2010, the appellant sought an order pursuant to s 134AB of the Act for leave to commence proceedings for the recovery of damages for both pain and suffering and loss of earning capacity. The proceedings came on for trial before the County Court in June last year. The appellant was the only witness to give oral evidence. The remainder of the evidence consisted of exhibits drawn from the court books, all of which were tendered without objection.

1. Judgment was delivered on 14 September 2011.  The trial judge held that the appellant had failed to discharge the onus upon her, which was to make out her case on the balance of probabilities.  Her Honour accordingly refused the appellant’s application for leave to commence proceedings.  The judge further ordered that she pay the respondent’s costs of the application for leave.

1. The appellant is dissatisfied with this result.  Her notice of appeal is dated 28 September 2011.  Ten grounds of appeal are put forward.  Their substance is ‘to the effect that her Honour erred and engaged in an erroneous reasoning process in practically every aspect below and, in particular, in respect to the issues of organic injury, credit and psychological injury.’[1]

   [1]Undated joint memorandum of counsel seeking consent orders that the matter be remitted to the County Court for retrial [2].

1. On 29 June 2012, the respondent filed an outline of submissions in which it maintained that the judgment should be upheld.  In spite of this, it joined in the application presently before this Court seeking the remission of the matter to another judge of the County Court.  The application is supported by a memorandum signed by counsel for the appellant and counsel for the respondent.

1. Even though such an application is by consent, it can succeed only when this Court is satisfied that the judgment under appeal, and the orders made pursuant to it, are wrong - or at least sufficiently problematic to warrant that they be set aside and a new hearing ordered.  As this Court pointed out in Newton v Geelong Ethnic Communities Council Inc the Court must:

… be affirmatively satisfied that the proceeding should be remitted to the County Court for re-hearing.  Any such disposition by this Court has resource implications for the administration of justice … and involves costs to the community.  In addition, it is desirable, in the interests of justice, that if the matter is to be re-heard, any error made at first instance is not replicated. [2]

[2][2011] VSCA 59, [17].

1. We therefore turn to consider for ourselves, albeit briefly, whether the proposed remission is appropriate.  In doing so, we appreciate that the administration of justice is greatly enhanced whenever opposing parties agree upon fair and sensible steps for the resolution of the issues with which they are then confronted.  We also appreciate the importance of striking an appropriate balance between, on the one hand, providing to this Court such assistance as is properly required in order to evaluate the merits of the application for remission and, on the other, the need to ensure that the legal representatives of the parties are not required to do unnecessary work or incur unnecessary costs.

1. It is in this context that we observe that the joint memorandum prepared by counsel for both parties was not as helpful as it might have been.  It notes the parties’ assessment:

… that her Honour’s reasons disposed of various issues in terms that are, with respect, not clear.  In respect to the issue of psychological injury, in particular, this was done without any clear explanation of the role played by the findings concerning the appellant’s compromised credit … .  Her Honour does seem to have had these findings in mind, but it is not clear how they ultimately bore upon the disposition of the claim … and both parties must acknowledge that the form of her Honour’s reasons gives rise to a real debate about exactly what aspects of credit ultimately determined the disposition of the appellant’s claim.[3]

[3]Undated joint memorandum of counsel seeking consent orders that the matter be remitted to the County Court for retrial [4]-[5].

1. An evaluation of the validity of this assessment could not be made by reference to the memorandum alone.  The Court was therefore required to examine for itself, with care, the judgment under appeal.  It is lengthy: it covers some 48 pages and 177 paragraphs.  In it, her Honour sets out at length, and uncritically, the evidence of the plaintiff.  She then recounts the medical evidence, again uncritically.  This is followed by an examination of the relevant statutory provisions and case law.

1. It is not until paragraph [135] of the judgment that her Honour commences to make some ‘preliminary observations’ by way of conclusion.  This is followed by a ‘brief synopsis of medical opinions’.  Then, in paragraph [154], her Honour states her conclusion about ‘the claimed physical injury’.  She says:

In my view the above synopsis and more detailed histories, clinical examinations and conclusions set out in the respective expert reports lead me to the inevitable conclusion that the credit and reliability of the plaintiff has been seriously brought into question.

1. In our opinion, a fair reading of the preceding 153 paragraphs may, but does not inevitably, lead to the conclusions to which her Honour has come.  What is more, the judgment does not allow the reader to follow the reasoning by which those conclusions were reached, let alone how they can properly be characterised as ‘inevitable’.[4]   

   [4]See Hunter v Transport Accident Commission & Anor [2005] VSCA 1, [21] and [28]; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317, [38] and Transport Accident Commission v Kamell [2011] VSCA 110, [71] and [73].

1. More particular findings are made in paragraph [155]. Even then, however, her Honour does not attempt any evaluation of the evidence such as would enable one to follow the path which has led her to her ultimate conclusion. She says, in paragraph [155], that the majority of medical opinion could not identify any objective underlying organic causes for the plaintiff’s pain, while at the same time that majority opinion has identified significant exaggeration of symptoms by the plaintiff.

1. It is, it seems, on that basis that her Honour was ‘not satisfied that the [appellant] has proven on the balance of probabilities that she currently suffers from any residual organic injury arising from the workplace incident’; [5]  and it is also on that basis that the judge found that ‘there are significant issues of credit raised in the presentation of [the appellant’s] evidence’[6] and that the appellant had not established ‘on the balance of probabilities that she currently suffers from a mental or behavioural disorder as a consequence of injuries suffered in the workplace.’[7] 

   [5]Hennes v Hobsons Bay CC (unreported, County Court of Victoria, 14 September 2011), [168].

   [6]Ibid [170].

   [7]Ibid [171].

1. These conclusions may or may not be justified.  The judgment provides no way of telling.  And there is an additional cause for concern.  While it seems that the ‘significant issues of credit’ to which her Honour referred at [170] of her judgment were an important element in the ultimate decision, the judgment contains no specific findings about credit.  Yet, in discussion with counsel during the hearing, it was put on the appellant’s behalf that her credit had not been attacked at all.  The judge responded that she understood that it was being attacked but ’whether it was being effectively attacked was another thing’ and that the real issue was ‘not so much credit as such’ but ‘the functional overlay exaggeration’. 

1. With this indication, counsel for the appellant might well have been taken unfairly by surprise by the reference in the judgment to ‘significant issues of credit’.  

1. We are accordingly persuaded to accept the joint submission of the parties that the appeal should be allowed and the proceeding be remitted to another judge of the County Court for rehearing. The orders we shall therefore make by consent are as follows: (i) that the appeal be allowed; (ii) that the hearing date of the appeal (13 September 2012) be vacated; (iii) that the orders of her Honour Judge Jenkins authenticated on 7 October 2011 in proceeding number CI-2010 00412 be set aside; (iv) that the appellant’s claim for leave pursuant to paragraph 134AB(16)(b) of the Accident Compensation Act 1985 be remitted to the County Court for rehearing before a differently constituted court;  (v) that the costs of the hearing before her Honour Judge Jenkins abide the result of the rehearing;  and (vi) that the respondent pay the appellant’s costs of the appeal.

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