Kelso v Tatiara Meat Co Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3820 of 2006

TYRONE BRIAN KELSO
	Appellant
v
TATIARA MEAT CO PTY LTD	Respondent

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JUDGES:	BUCHANAN, NETTLE, ASHLEY, KELLAM and DODDS-STREETON, JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 October 2007
DATE OF JUDGMENT:	28 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 267

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Accident Compensation – Leave to bring common law proceedings – Judge’s reasons inadequate – Proceeding remitted – Accident Compensation Act 1985 (No 10191) s 134AB (37).

Courts – Appeals – Court of Appeal – Appeal from County Court – Accident compensation – Appeal from determination regarding serious injury – Principles and constraints – Court directed to ‘decide for itself’ – Meaning and effect – Accident Compensation Act 1985(No 10191) ss 134AC, 134AD.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D F R Beach SC with Mr A D B Ingram	Clark and Toop
For the Respondent	Mr R P Gorton QC with Mr J P Gorton	Wisewoulds

BUCHANAN JA:

I have had the considerable benefit of reading the draft reasons prepared by Dodds-Streeton JA.

I agree with her Honour, for the reasons she has stated, that s 134AD of the Accident Compensation Act 1985 (‘the Act’) does not create a new type of appeal, but rather emphasises that the Court of Appeal is to conduct an appeal by way of re-hearing in accordance with the principles stated by the majority in Warren v Coombes[1]. The appellant bears an onus to persuade this Court that the decision below was wrong, but the identification of specific error is not necessary and, if this Court thinks the decision was wrong, it is not saved because it might be described as embodying a view that was reasonably open to the trial judge.
[1](1979) 142 CLR 531.

In disposing of applications brought under s 134AB(16)(b) of the Act, it will often be sufficient for a trial judge to set out his or her findings as to the nature and consequences of the injuries sustained by the applicant. In the present case, however, the injury and its effects did not themselves explain the result. The trial judge was obliged to deal with an important body of evidence, which lay at the heart of the appellant’s case and might be thought to have led to the application being granted. In the circumstances of this case, the trial judge was required to state whether, and if so why, that evidence was not accepted, or why, if it was accepted, it did not lead to the conclusion that the appellant had sustained a serious injury within the meaning of the Act.

NETTLE JA:

I have had the very considerable advantage of reading in draft the reasons for judgment of Dodds-Streeton JA.

Like her Honour, I see no reason to doubt the interpretation which the court

in Barwon Spinners Pty Ltd v Podolak[2] placed on s 134AD of the Accident Compensation Act 1985. As her Honour says, an appeal subject to s 134AD is an appeal by way of rehearing under s 74 of the County Court Act 1958 and so it is governed by the principles which were essayed by the High Court in Warren v Coombes[3] and restated by the Appeal Division in Humpries v Poljak[4] in relation to appeals under s 74 of the County Court Act.

[2](2005) 14 VR 622.

[3](1979) 142 CLR 531, 537.

[4][1992] 2 VR 129, 139.25-140.13.

I also agree with Dodds-Streeton JA that the County Court is not to be regarded as a specialist tribunal for the purposes of deciding serious injury cases. Nor should the Court in Dwyer v Calco Timbers Pty Ltd[5] be understood as having said the County Court should be so regarded. The point is that there are some judges of the County Court who are very skilled and very experienced in the determination of such applications, and one may properly have regard to that sort of skill and experience when it comes to appeals. Dwyer v Calco said no more.
[5][2006] VSCA 187.

Enough has already been written about the quality of reasons needed in serious injury cases. The difficulty is in its application. Judges whose job it is to decide such cases could be forgiven for tiring of appellate criticism. But if I may say so, with respect, the thing which most often stands out about reasons that are found to be inadequate is their failure to refer to and deal with important evidence and contentions.

In this case, as Dodds-Streeton JA points out, the judge failed to deal with important evidence of the appellant’s thumb dysfunction, degeneration of pincer grip, hypersensitivity and chronic pain. Those things were central to the appellant’s case that he had suffered a serious injury. For all one knows, his Honour may have had good reasons for rejecting the evidence, or for concluding that it did not translate to a serious injury. But he did not state them.

As this court is constituted, we are not in a position to make the findings of fact as to the level of the appellant’s thumb dysfunction, degeneration of pincer grip, hypersensitivity and chronic pain which the judge did not make or express. We have not had the advantage of seeing the appellant’s physical condition or assessing his demeanour. Since the outcome of the case so much turns on both, the matter should be remitted.

I agree with the disposition of the appeal and orders which Dodds-Streeton JA proposes.

ASHLEY JA:

I have had the great advantage of reading in draft the reasons for judgment of Dodds-Streeton JA. I agree with her Honour, for the reasons which she gives, that the appeal should be allowed and the matter remitted to the County Court for fresh hearing and determination.

KELLAM JA:

I have had the benefit of reading in draft the reasons for judgment of Dodds-Streeton JA.

I agree with her Honour, for the reasons stated by her, that an appeal subject to s 134AD is an appeal by way of rehearing to be conducted in accordance with the principles stated by the majority in Warren v Coombes[6].
[6](1979) 142 CLR 531.

I also agree with her Honour’s conclusion that the reasons given by the trial judge in this case failed to explain adequately his findings as to the evidence about the appellant’s thumb dysfunction, hypersensitivity, chronic pain, anaesthesia and reduced pincer grip and the relevance of such findings to his determination that the appellant had not suffered a serious injury. The fact that the appellant suffered such

disabilities by reason of his injuries appears not to have been in dispute. However, not having had the advantage of hearing the appellant give evidence, we are not in a position to evaluate the full effect that such disabilities have had, and will leave upon him in terms of pain and suffering. Accordingly the matter should be remitted.

DODDS-STREETON JA:

Introduction

This is an appeal against the decision of a judge of the County Court who refused the appellant, Tyrone Kelso, leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’) to bring a common law proceeding for damages for pain and suffering due to a workplace injury sustained to his right thumb on 29 June 2001. The learned trial judge concluded that Mr Kelso had not satisfied the statutory test for serious injury impairment established by s 134AB(37)(a) of the Act.

The appeal, which is brought under s 74(1) of the County Court Act1958, is subject to s 134AD of the Act. The appellant argues that the trial judge’s reasons for judgment were inadequate because, first, they did not contain any path of reasoning or analytical bridge between the factual findings and the conclusion and secondly, they failed to deal at all with the evidence of his persistent pain. The appellant seeks either that the matter be remitted (should the advantages enjoyed by a trial judge justify that course) or that this Court should determine the application itself.

The implications of the appellant’s principal argument extend beyond the present case. He contends that the decisions of this Court governing appeals subject to s 134AD are erroneous in significant respects and should now be reconsidered. He argues that the construction of the Court’s appellate function under s 134AD in Barwon Spinners Pty Ltd v Podolak[7] (‘Barwon Spinners’), reiterated in subsequent decisions such as Dwyer v Calco Timbers Pty Ltd[8] (‘Dwyer’), has undermined the Court’s statutory obligation to ‘decide for itself’. The appellant submits that the relevant decisions dictate an undue deference to the perceived advantages of trial judges, attribute an unfounded advantage of familiarity and experience with serious injury applications to County Court judges, unjustifiably treat the County Court as a specialist tribunal and impose on appellants an onus to establish that the decision below was wrong, contrary to the requirements of s 134AD. A Court of five has been convened in order to consider the appellant’s challenge to the construction of s 134AD hitherto maintained by this Court.
[7](2005) 14 VR 622; [2005] VSCA 33.
[8][2006] VSCA 187.

Facts and evidence

On 29 June 2001, Mr Kelso, who was then aged 19, accidentally sliced off the thumb of his dominant right hand at the distal interphalangeal joint, while operating a bandsaw to cut up a lamb carcass in the course of his employment with the respondent.

Following the accident, Mr Kelso was taken to Western General Hospital, where the amputated part of his thumb was microsurgically reattached by Mr Ashton, a plastic and reconstructive surgeon. Mr Kelso was discharged from hospital after a stay of approximately 10 days.

Mr Kelso was unable to work for about three months or more after the accident. He then returned initially to perform light packaging duties with the respondent and, later, according to his testimony, upon his own initiative again operated the bandsaw in an attempt to overcome his fear, until the respondent’s business closed down. After a period of unemployment, he worked for another abattoirs, Scottsdale Meats, as a boner and bandsaw operator until May 2003, or about 2004, when the company ceased business. He then resumed casual employment with the respondent (which had recommenced operations) as a boner (working only on lamb shoulders, rather than the more difficult cuts he had previously handled) until November 2005, when the respondent again ceased business. From February to May 2006, he was employed by another meat works until that business also ceased. He was then unemployed for a period. At the time of trial, Mr Kelso was employed as a container hand for a transport company.

The appellant swore three affidavits. He was called to give evidence at trial and was cross-examined. A number of medical reports were in evidence,[9] including three reports of Mr Behan, a report of the surgeon, Mr Ashton, and reports by a number of doctors, psychiatrists and vocational psychologists. The expert witnesses were not called to give oral evidence.
[9]Mr Mark Ashton, plastic and reconstructive surgeon, dated 10 September 2001; Mr Donald Marshall, plastic and reconstructive surgeon, dated 23 June 2003; Dr John Honey, psychiatrist, dated 30 June 2003; Mr Felix Behan, plastic, reconstructive and hand surgeon, dated 8 October 2003, 11 April 2005 and 13 November 2006; Dr Albert Kaplan, psychiatrist, dated 15 December 2003; Dr Michael Epstein, psychiatrist, dated 4 June 2004; Mr William Radley, psychologist, dated 29 June 2004.

In his affidavit sworn on 6 April 2004, the appellant deposed to the circumstances of the accident, consequent nightmares and anxiety about his health, his return to work in other meat works (where he was unable to exceed the tally in order to earn overtime) and to the restrictions placed on his ability to play football and cricket as before, due to the accident. He also deposed that his social life had been much reduced.

He further deposed that the injury had affected his ability to write (so that he now gripped a pen differently) and to hold a knife, which he could no longer grip properly.

At trial, the appellant demonstrated his method of writing to the trial judge, and indicated that he experienced some difficulty.

In cross-examination, he maintained that he had difficulty in washing dishes as a consequence of the injury and had cut himself on a knife whilst doing so, but did not notice it due to a lack of feeling in his injured thumb. He testified that dishes would slip through his hands as a direct result of his impaired thumb, so he no longer did the washing up at all.

When cross-examined in relation to a medical specialist’s opinion that his grip had ‘returned … almost back to normal’, the appellant responded: ‘I just grip [knives] any way up. I eat like that now. That’s the way I eat.’

He testified that it was difficult for him to ‘individualise’ pages in a book, so that he tended to grasp three or four at a time, although he was unsure of the cause.

In his affidavit sworn 6 August 2004, the plaintiff also deposed to his experience of persistent pain resulting from the injury as follows:

Following the accident I took Tramil to relieve the pain but it made me feel sick and I was prescribed Valium and from time to time I still take Panamax for pain. My ability to work is affected because of the difficulty I now have in holding and gripping the knife. My thumb is particularly sensitive to the cold environment. I have fairly constant pain in my thumb radiating to my arm and my hand sweats and I have numbness around the base of the thumb in the pulp of the thumb.

He further deposed that:

As a result of the injury I no longer have the ability to bend the end joint of my thumb and when doing so my wrist becomes tight and painful. I have lost sensation in the pulp of my thumb and I have difficulty gripping because of the lack of feeling. I do not know how hard I am grasping things such as dishes. Cold weather exacerbates the pain which shoots up to my forearm…I cannot write for lengthy periods and I have ongoing pain in the base of my thumb which is worse after working.

In his affidavit sworn 3 October 2006, Mr Kelso stated that the above effects were continuing. In particular, he deposed:

I have stopped using medications because I found that these did not provide effective relief for the ongoing pain which I suffer. I find that my symptoms are distinctly worse during the colder winter months and it’s also during these times that I notice more pain spreading up my right arm. When I am at work I am able protect myself to some extent by wearing two cotton gloves over my right hand.

In his affidavit sworn 21 November 2006, the appellant stated that in about October 2006, he secured employment as a container hand with a transport company. He wore a specially designed glove to aid his grip and to protect his hand. Further, he stated: ‘At the end of each day I have quite severe pain affecting my right forearm and now take Nurofen to relieve this pain.’

At trial, Mr Kelso testified that he had been taking Nurofen for his thumb ‘pretty much’ every day since the accident. When challenged on that assertion in cross-examination, where it was put that he had told various doctors that he had never taken any medication for his thumb, Mr Kelso reiterated the claim.

According to the vocational assessment report of Mr William Radley, a psychologist, dated 29 June 2004, Mr Kelso was educated to level 9 at secondary school. He had worked only in ‘unskilled and semi-skilled occupations, all at the lowest end of the occupational skill range’. The report stated that Mr Kelso had earned his living ‘by using physical strength, agility, dexterity, arm steadiness, wrist, finger speed and other physical abilities. He had no formal education, workforce training or experience for any other type of work’.

Mr Radley concluded that the appellant suffered ‘a mild to moderate level of physical impairment and a moderate to high level of psychological impairment …’ so that it was ‘impossible’ for him to return to work as a band saw operator, although he remained able to work as a boner and trimmer and, at the time of the report, was working as a meat trimmer for the respondent.

Mr Radley stated that Mr Kelso had some difficulty in ‘holding utensils or a pen, washing the dishes and doing up buttons etc.’ He reported that Mr Kelso was not taking any medication.

Mr Behan, a plastic, reconstructive and hand surgery specialist, conducted an examination of the appellant on 8 October 2003. Mr Behan summarised the appellant’s physical and psychological condition at that date as follows:

[i]n summary the history is of a very successful replantation procedure by Mr Mark Ashton following amputation of the distal portion of the (R) thumb. His complaints relate to neural dysfunction and to restricted range of movement of the distal phalanx of the thumb. Some ongoing recovery of nerve sensation has occurred. Initially the patient was embarrassed by the scarring and the surgical saga, but this is now resolving. Domestically the patient is still living with his mother, and he experiences some concern when sharp objects are handled. This comes to a head even when the patient is doing the washing up, and sharp steak knives etc cause him to worry about possible further injury to that digit. This worry may have an effect on his psychological well being in time and needs clarification from a specialist (neuropsychologist).

Mr Behan concluded that any improvement would be minimal.

Mr Behan’s report of his further examination on 11 April 2005 summarised the status of the appellant’s thumb at the time of the report as follows: ‘The patient has achieved full functional recovery in flexion and extension of movement, however there is some slowness in sensory recovery.’ He stated that the appellant’s anxiety and other psychological problems had diminished, and he had now returned to work as a shoulder boner, which required a different hand use from that necessary for work as a leg boner. He noted no ‘dramatic improvement in sensory recovery’, but stated that ‘power’ had returned almost to normal, although continuing sensitivity, and required gloves in cold environments.

Mr Behan stated that the appellant had continuing problems at home, experiencing difficulty in gripping knives, and fewer than three to four pages in a telephone directory at one time. Due to the appellant’s difficulties in undertaking ‘some of the chores around the house’ and slow recovery in sensory function as well as hypersensitivity, Mr Behan concluded that he had a ‘30% disability from an industrial loss point of view…’

In a letter dated 13 November 2006, Mr Behan described the appellant’s ‘radial and ulnar sides of the pulp of the [right] thumb’ as ‘anaesthetic’ (ie lacking sensation), and stated that sections where scarring was evident were sensitive to touch. He also noted continuing sweating in the vicinity of the thumb. He maintained his earlier assessment of the appellant’s industrial loss disability, being 30%. As in the earlier report, Mr Behan stated:

I would consider the patient as not having any capacity for his pre-injury employment, as the cold weather sensitivity he experiences (even when wearing double gloves) causes him significant pain in that digit.

The report of a surgeon, Mr Marshall, dated 23 June 2003 of his examination of the appellant conducted on the same day, noted the presence of scarring where the thumb had been reattached, with evidence of tenderness ‘on deep pressure.’ He also observed:

The skin of the re-planted pulp appears to be of normal texture, but has decreased sensation. Two point discrimination is measured at 15 mm, as compared with 3 mm on the normal side. The flexion of the interphalangeal joint is limited to 45 degrees.

Mr Marshall considered that the appellant had made a ‘good recovery’, but noted that loss of movement and sensitivity meant that he could not use his thumb in a ‘normal manner’. He considered that the impairment had ‘stabilised’, so that further treatment was not likely to improve it.

Dr Kaplan, psychiatrist, in a letter dated 15 December 2003, set out the results of an examination conducted on 11 December 2003. He noted that the appellant had not suffered any psychiatric illness prior to the accident. He referred to the appellant’s reported pain as follows:

[The appellant] stated that he suffers from a constant mild, aching pain in his thumb and the pain radiates along the front of his forearm. He experiences a more severe pain at the end of the working day and the pain is aggravated when he is in a cold environment or cold weather. He can only use a boning knife for a short period of time.

Dr Honey, psychiatrist, conducted an examination of the appellant on 30 June 2003. His report noted, in particular, the thumb’s sensitivity to cold weather, and a complete lack of sensation in the distal phalanx. Dr Honey stated that at the time of the report, the appellant was not taking any medication.

The judgment below

The primary judge, in reasons for judgment delivered on 24 November 2006, noted that Mr Kelso’s treating surgeon, Mr Ashton, performed a microvascular replantation whilst Mr Kelso was an in-patient at Western General Hospital for ten days immediately following the injury. Mr Kelso was discharged from hospital on 9 July 2001. The trial judge observed that according to Mr Ashton’s report dated 19 September 2001, Mr Kelso had ‘gone on to maintain an excellent range of movement of the interphalangeal joint’ and that, in Mr Ashton’s opinion, a very functional result had been achieved.

His Honour referred to the hospital report prepared ten weeks after surgery, which recorded that Mr Kelso had an excellent range of movement in his right thumb and that the strength of his left and right thumb, when compared, was the same, although the lateral and tripod pinches in the right thumb were more limited than those of the left thumb.

His Honour noted that when Mr Ashton had last reviewed the plaintiff on 6 September 2001, he recorded that, at that date, Mr Kelso had only minimal sensation in his right thumb, which was not unusual, given the proximity to the time of the injury and surgery.

The primary judge noted that, as at 6 December 2001, Mr Ashton was unable accurately to estimate the long term prognosis for Mr Kelso’s right hand, but had offered to provide a supplementary report in three months’ time, when he would be better able to indicate the likely degree of disability and functional loss of Mr Kelso’s hand. The judge stated that no such report was in evidence.

The primary judge also referred to the evidence of the appellant and Mr Behan as follows:

The plaintiff gave evidence in support of his application and demonstrated the difficulties he had in holding a pen and I accept that due to his injury, he has had to change the way in which one would normally hold a pen. He lacks any pincer grip of any consequence. He also has difficulty in performing fine manipulative movements with his right hand, for example, he finds that knives are inclined to slip in his right hand. He has difficulty when turning the pages of a book, in turning over just the one page.
Secondly, there is hypersensitivity and as described by Mr Behan in his report of 11 April 2005, poor sensory return in the tip of the right thumb. Mr Behan regarded both the radial and ulnar sides of the pulp of the right thumb as anaesthetic. In summary, there is a lack of sensation in the working area of his right thumb.
Thirdly, he is unable to work satisfactory [sic] or perhaps at all in the meat industry due to cold weather sensitivity. Cold weather sensitivity was experienced even when the plaintiff wore double gloves. That sensitivity caused him significant pain in the right thumb. In the course of his present employment, he wears gloves and takes medication in the form of Nurofen.
Fourthly, he is unable to fish, nor can he play darts, the latter apparently being an activity which he indulged with his father at a local hotel before the accident. In evidence, he said he has only tried those activities once since the injury. I accept, however, that he experienced difficulties when attempting each of those leisure activities.
He plays indoor cricket and he plays football and there was a good deal of evidence and cross-examination about his football and his ability to play football. It was recorded that in the last football season he played in the lower grade or lower division. The higher division, he said, was in his words “too tough” but try as he did, Mr Collis with a series of leading questions, was unable to get the plaintiff to say that it was too tough because of the injury to his right hand.

The primary judge’s summary of findings corresponds closely to, and appears largely derived from, Mr Behan’s third report dated 13 November 2006.

His Honour noted that there was little dispute in relation to the medical evidence.

He referred to Eames JA’s recognition in Dwyer that the statutory language governing the serious injury question is the language of imprecision and that the trial judge:

[m]ust be satisfied that the relevant consequence – in this case, the pain and suffering consequence – when compared with other cases in the range of possible impairments or disfigurements, “can be fairly described as being more than significant or marked and as being at least very considerable.”[10]

[10][2006] VSCA 187, [40].

His Honour quoted Maxwell P’s observations in Dwyer that –

What must be compared is not the impairment or the disfigurement but the consequences of the impairment or the disfigurement, whether pain and suffering consequences or loss of earning capacity consequences. The question is whether those consequences are to be described as “more than significant or marked”, and as being “at least very considerable.”[11]

He added that a phrase like ‘at least very considerable’ did not allow any quantification, but rather required a judgment based on an overall evaluation of the evidence.

[11]Ibid [41] (incorrectly attributed to Eames JA).

His Honour concluded:

I have read and considered the material to which I was referred by Mr Collis for the plaintiff and by Mr Middleton who appeared for the defendant. I have considered the evidence given by the plaintiff and weighed up or evaluated the submissions of both Mr Collis and Mr Middleton.
Assessing as I must the consequences of the impairment to the plaintiff, I am not satisfied that the plaintiff has suffered a serious impairment or loss of a body function, that is, I am not satisfied that the consequences to the plaintiff of the injury he suffered can be described as being at least very considerable. Consequently, the application is dismissed.

Appeal pursuant to section 134AD

Section 74 of the County Court Act relevantly provides:

(1)Subject to this section, any party to a civil proceeding who is dissatisfied with any judgment or order of the court may appeal from the same to the Court of Appeal, notwithstanding that the civil proceeding may have been brought to the County Court by consent as provided by this Act.

…
(3)The Court of Appeal shall decide the matter of such appeal and shall have power to draw any inference of fact and shall on the hearing of such appeal make such order as is just, and may either dismiss such appeal or reverse or vary the judgment or order appealed from, and may direct the civil proceeding to be reheard before the Trial Division of the Supreme Court or the County Court, but shall not in any case unless the Court of Appeal otherwise specially directs remit the proceeding for rehearing before the court constituted by the judge before whom the same was originally heard, and may make such order with respect to the costs of the said appeal and of the proceeding in which the judgment or order has been given or made, as such court may think proper and such orders shall be final.

Section 134AC of the Act states:

A decision granting or refusing leave made on an application made under section 134AB(16)(b) shall be taken not to be a judgment or order in an interlocutory application for the purposes of an appeal to the Court of Appeal.

Section 134AD of the Act states:

On the hearing of an appeal to the Court of Appeal from a decision made on an application under section 134AB(16)(b), the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application and on any other evidence which the Court of Appeal may receive under any other Act or rules of court.

In the Second Reading Speech, the Minister stated, in relation to s 134AD:

This effectively restores the task to be undertaken by a court of appeal to the principles established by Humphries v Poljak [1992] 2 VR 129, 140. There the Court followed the dicta of the majority as stated by the Full Court of the High Court in Warren v Coombes (1979) 142 CLR 531, 552.

The appellant submitted that the decisions of this Court in Barwon Spinners and, by necessary implication, Dwyer, are wrong, because their approach to the function of the Court of Appeal is inconsistent with the High Court’s decision in Fox v Percy[12] and the requirements of s 134AD of the Act. In that context, the appellant contends that Barwon Spinners and Dwyer –

(a)effectively deny litigants the right of appeal by way of rehearing which is required by s 134AD of the Act;
(b)effectively ignore changes in the jurisdiction and powers of intermediate appellate courts which were effected by Fox v Percy;
(c)mandate an unjustifiable deference by the Court of Appeal to an assumed ‘familiarity of the County Court judge with the range, or spectrum, of such injuries as might be alleged to constitute “a serious injury”’;
(d)incorrectly accord the County Court the status of a specialist tribunal, when, in fact, it is a court of general jurisdiction.

[12](2003) 214 CLR 118.

At the hearing, senior counsel for the appellant adopted the observation of Hayne J at the hearing of the special leave application in Dwyer[13] that, in an appeal from a decision as to leave under s 134AB(16)(b), ’the starting point is the statute … It starts and ultimately must end in s 134AD.’
[13][2007] HCA Trans 395.

The appellant’s primary submission was that an appeal governed by s 134AD was sui generis, and ‘s 134AD [was] an appeal provision of a completely different kind,’ where error was irrelevant. Alternatively, the appellant contended that if a s 134AD appeal were an appeal in a conventional sense, it was, ‘at least, a Warren v Coombes appeal’, in which, as Ashley JA observed in the course of the hearing:

[t]he purpose of the Court considering the matter in a real review is to determine whether it [is] persuaded in the end that the judge below did err.

Senior counsel for the appellant contended that s 134AD demanded a ‘real review’ by the appellate court, which, while it entailed due regard to the trial judge’s advantages in seeing witnesses, permitted the appeal court to reach a different conclusion from that of the trial judge, even if it were open to the trial judge to conclude as he did. In such a case, appellate dissent from the trial judge would properly depend, he said, on the degree of advantage the trial judge enjoyed in relation to the issue in question.

The appellant’s argument on the role of error below shifted somewhat. Senior counsel for the appellant initially submitted that error below retained some relevance in an appeal under s 134AD because, where there was specific error, the appellate court could remit the matter if there were deficiencies in the fact finding below, but otherwise, ‘the question of error becomes irrelevant and … the court’s function under s 134AD arises.’

Senior counsel for the respondent submitted that Barwon Spinners (at paragraph 49 of the judgment) correctly stated the applicable principles. As s 74(3) of the County Court Act also required the Court to make its own decision, he submitted that s 134AD did little more than remind the Court of, and emphasise, its obligation under s 74(3).

Relevant High Court Authority

The requirement that the Court of Appeal ‘decide for itself’ in s 134AD is an extract from the majority judgment in Warren v Coombes,[14] in which the High Court determined the duty of an appellate court in relation to drawing inferences from uncontested facts, where the trial judge had determined issues of credibility.[15]
[14](1979) 142 CLR 531, 537.
[15]The majority characterised the principal question as: ‘[w]hat is the duty of an appellate court when questions of credibility have been decided and the matter which remains for decision is what inferences should be drawn from facts which have been found and are no longer in contest?’: Ibid.

The majority (Gibbs ACJ and Jacobs and Murphy JJ), in a joint judgment, set aside a trial judge’s decision that the respondent was not liable in negligence for failing to take reasonable care in driving his car, which injured the appellant when it collided with his bicycle. The trial judge had largely accepted the testimony of the respondent’s witnesses and rejected the conflicting testimony of the appellant’s witnesses, save for the evidence of the appellant’s father about the position of the car’s wheel marks on the roadway. The Court of Appeal majority declined to interfere with the trial judge’s finding.

The High Court majority considered that the appellate court should not have deferred to the decision of the trial judge, although it was based on his assessment of the credibility of the witnesses. They held that, in accordance with traditional principles (which they preferred), the appeal court was entitled to draw inferences on the basis of established facts and, if persuaded that the trial judge had drawn the wrong inferences from them, could and should substitute its own contrary finding.

The appeal in Warren v Coombes was brought pursuant to legislation,[16] which conferred the powers and duties of the court from which the appeal was brought and, like s 74 of the County Court Act, the power to draw inferences and find facts. Legislation in similar, if not identical form, applied to Full Courts of the Supreme Courts of all Australian states.
[16]Supreme Court Act 1970 (NSW) (as amended), s 75A(5).

Gibbs ACJ and Jacobs and Murphy JJ stated:

The appeal, although by way of rehearing, is conducted on the transcript of the evidence taken at the trial, and the witnesses are not called to give their evidence afresh, but the appeal is a general appeal and is not limited, for example, to questions of law.[17]

[17](1979) 142 CLR 531, 537.

Their Honours recognised the innate tension in such a rehearing between, on the one hand, the appellate court’s obligation to form an independent judgment on the facts as well as the law, and, on the other hand, its permanent disadvantage vis-à-vis the trial judge, who had seen and heard the witnesses.

They observed that, historically, in reconciling the appeal court’s statutory duty to decide the matter independently with the requirement to pay due regard to the advantages of the trial judge, the authorities, from an early stage, distinguished between questions of credibility (where the trial judge was acknowledged to have an advantage) and issues based on documents or established facts from which inferences were to be drawn (where the appellate court was considered to be in as good a position as the trial judge). The leading authorities, until recently, had ‘not departed from the view that it is the duty of the appellate court to form an independent judgment about the proper inferences to be drawn from established facts.’[18]
[18]Ibid 538.

They referred to Powell v Streatham Manor Nursing Home,[19] which held that in a rehearing, an appeal court could properly draw inferences from uncontested facts. Lord Atkin had there recognised the English Court of Appeal’s ‘free and unrestricted’ jurisdiction, and stated:

The court has to rehear, in other words has the same right to come to decisions on the issues of fact as well as law as the trial judge. But the court is still a Court of Appeal, and in exercising its functions is subject to the inevitable qualifications of that position. It must recognize the onus upon the appellant to satisfy it that the decision below is wrong: it must recognize the essential advantage of the trial judge in seeing the witnesses and watching their demeanour. In cases which turn on the conflicting testimony of the witnesses and the belief to be reposed in them an appellate court can never recapture the initial advantage of the judge who saw and believed.[20]

[19][1935] AC 243.

[20]Ibid 255.

The majority in Warren v Coombes also referred to Benmax v Austin Motor Co Ltd[21] (‘Benmax’), in which Lord Simmonds considered it well established that, on an appeal by way of rehearing, the appellate court could draw its own inferences from facts. His Lordship also noted the sometimes elusive distinction between a finding of a specific fact and an inference from such a fact. He observed that, in practice, appellate courts were usually reluctant to reject specific facts founded on the credibility or the bearing of a witness, but were willing to form an independent opinion about the proper inference of fact, subject to giving weight to the opinion of the trial judge.
[21][1955] AC 370; [1955] 1 All ER 326.

Lord Simmonds quoted Lord Cave’s observation in Mersey Docks & Harbour Board v Procter,[22] that, in an appeal from a judge sitting without a jury,

[i]t is the duty of the Court of Appeal to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into question, but with full liberty to draw its own inference from the facts proved or admitted, and to decide accordingly.[23]

[22][1923] AC 253; (1923) 39 TLR 275.

[23]Ibid 258-259.

The majority in Warren v Coombes recognised that in Australia, the principles of Benmax, also expressed by the High Court in Paterson v Paterson,[24] had governed an appeal by rehearing and the proper appellate approach to an inference from undisputed facts, until members of the High Court, in a trilogy of cases (Whiteley Muir & Zwanenberg Ltd v Kerr (‘Whiteley Muir’);[25] Da Costa v Cockburn Salvage & Trading Pty Ltd (‘Da Costa’)[26] and Edwards v Noble (‘Edwards’)[27]), expressed diverse views, some of which were inconsistent with Benmax. In those cases, Barwick CJ enunciated a principle of judicial restraint which inhibited an appellate court from drawing an inference of fact contrary to that of the trial judge, unless it were shown that the trial judge was wrong, even if the credit of witnesses were not involved. Barwick CJ also considered that an appeal court should not reverse a trial judge’s finding of fact which was reasonably open on the evidence, even if the appeal court would not have been prepared to make the same finding. On that view, although an appellate court had the power to set aside a trial judge’s finding of fact, as a matter of principle, it should not do so unless convinced that the trial judge was wrong.
[24]In Paterson v Paterson (1953) 89 CLR 212, Dixon CJ and Kitto J, in a joint judgment, assessed the development of the nineteenth century English case law since the introduction of appeals on questions of fact. They recognised that ‘the tendency of the decisions was to formulate and concede the restrictive considerations or rules but, at the same time, to emphasize and act on the power to review findings of fact’: 220.
They also referred to a considerable number of authorities, including Powell v Streatham Manor Nursing Home, in which Lord Wright noted the antinomy between a duty to rehear and a restriction to recorded material, and stated, inter alia, that before a court of appeal upset a finding into which credibility entered, it should be convinced that the primary judge was wrong. Their Honours concluded that an appellate court, although disposed to come to a different conclusion of fact from that of the trial judge, should not do so unless satisfied that any advantage enjoyed by the trial judge in seeing witnesses was not sufficient to explain his conclusion.
[25](1966) 39 ALJR 505.
[26](1970) 124 CLR 192.
[27](1971) 125 CLR 296.

In Da Costa, Windeyer J shared and extended Barwick CJ’s approach, broadly equating the decision of a trial judge in a negligence case to a jury verdict. He considered that because a finding of negligence tended to involve a value judgment upon facts, rather than an inference from them, the appeal court was unlikely to be as well placed to make inferences as competently as the trial judge.

Walsh J, in Edwards, expressed a view which appears to be compatible with the subsequent judgments of the majority in Warren v Coombes and Gleeson CJ, Gummow and Kirby JJ in Percy v Fox.

His Honour stated:

It may be said, in my opinion, that in whatever form of words the principle is expressed, it requires, even in a case in which the credibility of witnesses is not involved and in which the contest is as to the inference or conclusion that should be drawn from a set of primary facts, that if a choice has to be made between two conclusions both of which are open on the evidence and which are fairly evenly balanced, then the decision of the trial judge should stand. The appellate court should not deal with the case as if it were trying it at first instance. But, as has often been stated on high authority, the court has a duty to make up its own mind. It will do this taking into account the judgment of the primary judge and recognizing that it ought not to be set aside merely because of a slight preference for a different view upon a question upon which two views are open and as to which there is no definite preponderance of one view over the other. Subject to that limitation and subject to the well-organized limitations concerning conflicting testimony and the credibility of witnesses, the appellate court should give effect to its own conclusion.[28]

[28]Ibid 318-9.

Menzies J, in Edwards, maintained the more traditional view expressed in Benmax and Paterson v Paterson. His Honour stated:

[a]s I read the cases, the rules have remained very much as they were established over 70 years ago. They are (1) upon such an appeal the task of a Court of Appeal is so different from its task in considering motions for new trials after a jury verdict that it is wrong to use in relation to one the language appropriate to the other; (2) a Court of Appeal does not supplant the trial judge by trying the case afresh on the record; (3) a Court of Appeal, while having regard to the judgment appealed from, is under a duty to make up its own mind as to the facts; (4) special weight ought to be given to the judgment appealed from if anything turned upon the credibility of witnesses or any other matters as to which the judge hearing the case would have an advantage over the Court of Appeal; (5) in any case, even those within (4), where a Court of Appeal is satisfied of error on the part of the trial judge it will correct that error, even in cases where, although the reasons for the judgment of the trial judge do not themselves disclose any error, the result satisfies the Court of Appeal that there was undisclosed error.[29]

[29]Ibid 308-9.

Warren v Coombes was thus decided in the context of an unresolved judicial controversy. There was some judicial support for the approach of judicial restraint developed by Barwick CJ, which required demonstrated error below as a precondition for reversing findings of, and inferences from fact, even if the appeal court would have reached different opinion, provided that both inferences were open. Other judges supported the more traditional approach, which required the appellate court to form, and give effect to, its own conclusion if, after giving due weight to the trial judge’s advantages, it differed from him. Under the latter approach, appellate intervention did not depend on error below, save in the broad sense that the appeal court had reached a different conclusion on the outcome of the case.

The majority in Warren v Coombes endorsed the line of authority represented by Paterson v Paterson and the House of Lords in Benmax. It was in the context of the controversy over the preconditions of appellate interference with the decision below that they made the following statement, from which the central requirement of s 134AD is directly derived:

[w]e can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case – the facts as well as the law – for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.[30]

[30](1979) 142 CLR 531, 552.

They concluded:

Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation.[31]

[31]Ibid 551.

While the majority characterised their approach as the reinstitution of an orthodox principle, it signalled a departure from unquestioning submission to the advantage of the trial judge. In Warren v Coombes, the High Court reasserted the traditional appellate obligation to draw, where appropriate, independent inferences from established facts, as an element of the wider duty of a court of appeal to ‘decide for itself’. It rejected the more recently developed doctrine of judicial restraint in relation to inferences from established fact.

The eclipse of ‘judicial restraint’ was extended in Fox v Percy,[32] where the High Court majority made clear that a trial judge’s findings of fact based on witness demeanour or credibility, hitherto almost invariably treated as sacrosanct, were likewise subject to scrutiny on appeal. It affirmed the appeal court’s duty to avoid uncritical deference to such findings. The majority held that, although allowance must be made for the trial judge’s advantages, if his or her findings based on witness credibility were inconsistent with incontrovertible facts, glaringly improbable, or contrary to compelling inferences, then the appellate court must give effect to its own contrary conclusion. Further, they questioned the degree to which matters such as observation of witnesses’ demeanour constituted a compelling advantage.
[32](2003) 214 CLR 118, 151.

In Fox v Percy, the majority, Gleeson CJ, Gummow and Kirby JJ, concluded, in a joint judgment, that the Court of Appeal majority had correctly substituted its own conclusion that the appellant had been riding her horse on the wrong side of the road when she was injured, for the contrary finding of the trial judge. Their Honours held that an appellate court was entitled to prefer the inferences it drew from the ‘incontrovertible’ evidence of skid marks on the site where the appellant’s car collided with the respondent’s horse, killing it and injuring the respondent. The skid marks (which had been sketched contemporaneously by an attending police officer) contradicted the appellant’s version of events. They remained unexplained or insufficiently explained. The High Court majority regarded the

[s]kid marks as an incontestable fact that rebuts the claim of negligence propounded by the appellant. Clearly, it was open to the Court of Appeal, conducting the rehearing, to reach that conclusion. Once it did so, that Court was bound to give effect to its opinion.[33]

[33]Ibid 131.

Although the trial judge had had the advantage of observing witnesses and had made findings of credit in favour of the appellant, the police officer’s evidence about skid marks on the respondent’s side of the road constituted inconsistent facts ‘incontrovertibly established by the evidence’, which were accepted by the trial judge. In those circumstances, the oral evidence of the appellant’s witnesses did not sustain the trial judge’s final opinion. Although the trial judge had also accepted an expert report, the expert was not called, so the majority concluded that the Court of Appeal was in as good a position as the primary judge to evaluate the worth of his report.

The right of appeal to the Court of Appeal in Fox v Percy was conferred by legislation[34] and lay as of right to the Supreme Court. The Supreme Court Act 1970 (NSW), s 75A prescribed an appeal ‘by way of rehearing’ (when the decision appealed was given after a hearing) and conferred on the appeal court the powers and duties of the Court from which the appeal was brought (including drawing inferences, making findings of fact and assessing damages). The appellate court was also empowered to receive further evidence, but in the main, only in special circumstances.[35] It was empowered to make any finding or assessment, make any order or give any direction which ought to have been given or made, as the nature of the case required.
[34]District Court Act 1973 (NSW).
[35]Where the appeal was from a judgment after a trial or hearing on the merits.

Gleeson CJ, Gummow and Kirby JJ stated:

The nature of the “rehearing” provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.[36]

[36](2003) 214 CLR 118, 125-126.

Their Honours further stated:

Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons.

They recognised that the appellate court was required to weigh conflicting evidence and draw its own inferences and conclusions, which, as Warren v Coombes made clear, it could be as well-placed as the primary judge to do where the facts were undisputed. Although, following Warren v Coombes, a trilogy of High Court cases (Jones v Hyde;[37] Abalos v Australian Postal Commission[38] and Devries v Australian National Railways Commission[39]), had expressed a ‘corrective,’ reiterating the traditional requirement to respect the advantages of the trial judge, especially where his or her decisions might be affected by the credibility of witnesses, their Honours made clear that a ‘ritual incantation’ about a witness’s credibility did not excuse the appellate court from making its own assessment and forming its own conclusions, particularly where there were ‘incontrovertible’ facts to the contrary, and even, ‘in some, quite rare cases’, where there were facts falling short of ‘incontrovertible’.
[37](1989) 85 ALR 23.
[38](1990) 171 CLR 167.
[39](1993) 177 CLR 472.

The majority in Fox v Percy did not, in terms, question the validity of the trilogy of cases reaffirming the need to respect the trial judge’s advantages in relation to credit and seeing witnesses, and to make proper allowance for them. Indeed, they referred to many examples of such advantages (not confined to seeing witnesses) and concluded that it was only if, after having made allowance for them, that the appeal court may ‘conclude that an error has been shown, [and] they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.’[40]
[40](2003) 214 CLR 118, 127-128.

In CSR Ltd v Della Maddalena (‘Della Maddalena’),[41] the High Court reaffirmed the principles stated by the majority in Fox v Percy. In Della Maddalena, the appeal court had reversed the trial judge’s decision and substituted its own conclusion that the respondent had sustained a psychiatric injury due to his reaction to exposure to asbestos. Kirby J (with whom Gleeson CJ agreed) stated that the appellate court had considered a number of ultimately uncontested objective facts, looked ‘very closely at the premises upon which the primary judge had reached his conclusion adverse to the respondent’ and correctly reached its own conclusion, which was ‘more harmonious with the uncontested facts …’[42]
[41][2006] HCA 1.
[42]Ibid [11].

Kirby J emphasised that Fox v Percy represented an:

[i]mportant change in the statement by [the High] Court of the jurisdiction and powers of intermediate appellate courts … founded in a close analysis of the statutory provisions governing the legal task in issue. It involved a shift to some degree from the more extreme judicial statements commanding deference to the findings of primary judges said to be based on credibility assessments. It involved a reminder of the obligations of the appellate court, so far as it properly could, to perform its statutory functions of appellate review by way of rehearing, in a real and substantive way as the enacted law mandates.[43]

[43]Ibid [19].

In Kirby J’s view, in Fox v Percy, the High Court ‘corrected the non-statutory excesses of earlier appellate deference to the erroneous fact-finding by primary judges’.

Under the ‘shift in instruction’ in Fox v Percy, the correct appellate approach was, Kirby J said, to examine whether the reasoning of the primary judge rested on a credibility determination or inferences from facts which were undisputed or found by the trial judge, but:

Even in the case of expressed credibility findings, the statutory duty to conduct a real “rehearing” remains. It may sometimes justify reversal of a decision by a primary judge who has “failed to use or has palpably misused his advantage” or where “incontrovertible facts or uncontested testimony” demonstrates the finding to be erroneous; or where they are “glaringly improbable” and “contrary to compelling inferences”.
However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It “will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.”[44]
[44]Ibid [21]-[22].

Victorian approach to appeal prior to introduction of s 134AD

In Humphries v Poljak,[45] the Full Court determined five separate appeals from the County Court in relation to the grant or refusal of leave to bring common law proceedings for damages in respect of personal injury pursuant to s 93(4) of the Transport Accident Act1986. The County Court could not grant leave unless satisfied that the injury was a ‘serious injury’ within the meaning of the relevant provision of the Transport Accident Act.
[45][1992] 2 VR 129.

Crockett and Southwell JJ delivered an influential joint judgment, from which some significant terminology of s 134AB of the Act is directly derived.

They held, inter alia, that:

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.[46]

[46]Ibid 140.

Their Honours also endorsed Adam J’s statement in State Rivers & Water Supply Commission v McIntyre (‘State Rivers’)[47] of the function of the Full Court on appeals from the County Court, by virtue of s 74 of the County Court Act. In State Rivers, Adam J stated:

[t]he function of this Court, on appeal, is to consider for itself upon the evidence before the learned judge whether it is proper that the leave sought be granted. Its proper function on this appeal is not, I think, to determine whether the learned judge might properly have arrived at the decision which he did, but to consider for itself what was the proper order to have been made. In other words, this appeal involves as it were a rehearing de novo upon the material before the learned judge. Had the conclusions reached by the learned judge depended on credibility of witnesses and findings on disputed facts, other considerations would no doubt have arisen, but this is not such a case. We are in as good a position as the learned judge to arrive at a conclusion upon the affidavit evidence, which was not subjected to cross-examination.[48]

[47][1965] VR 279.

[48]Ibid 290.

Southwell and Crockett JJ thought that the appellate court’s ‘amplitude’ of powers pursuant to the County Court Act s 74, to ‘decide the matter of such appeal’, ‘draw any inference of fact’ and ‘make such order as is just’ supported Adam J’s conclusion that it must ‘consider for itself what was the proper order to have been made’.[49] They disagreed, however, with Adam J’s characterisation of the appeal as ‘a rehearing de novo,’ which would involve:

[a] complete rehearing of the matter by the appellate court. The initiator of the proceedings below would be required on appeal to commence the rehearing proceedings regardless of whether or not he was the appellant or respondent. It would be open to the parties on the rehearing to call evidence different from that adduced before the primary tribunal.[50]

[49][1992] 2 VR 129, 139.

[50]Ibid.

They concluded that the rehearing was more limited than a rehearing de novo, in which ‘witnesses could be led again in chief and cross-examined’. In particular, the power in s 74(3) of the County Court Act to direct the matter to be reheard before a Supreme Court or County Court judge suggested ‘that it was not intended that the Supreme Court sitting in banc should conduct a rehearing de novo as properly so called’.[51]
[51]Ibid.

In the appeals before them, their Honours observed that:

In deciding for itself what was the proper order to have been made this court is, of course, in as good a position as the primary judge to decide the matter where the material is confined to affidavits and exhibits thereto.[52]

[52]Ibid 140.

It would be otherwise, they thought, where the trial below had involved cross-examination. They stated that:[53]

In such a circumstance, if the primary judge has made a finding of fact which he was led to make by reason of his resolution of an issue of credibility made possible by the advantage he enjoyed of seeing and hearing a witness, then the appellate court must accept the finding of fact. As was said by the majority in Warren v Coombes (1979) 142 CLR 531, at 552: “The duty of the appellate court is to decide the case – the facts as well as the law – for itself. In doing so, it must recognise the advantages enjoyed by the judge when he conducted the trial. See, too, Taylor v Johnson (1983) 151 CLR 422.”

[53]Ibid.

The validity of their Honours’ conclusion that the appellate court, in deference to the trial judge’s advantages acknowledged in Warren v Coombes, ‘must accept that finding of fact’ must now be re-evaluated, as it is inconsistent with the majority judgment in Fox v Percy.

Southwell and Crockett JJ made clear that error of law was irrelevant on appeal. They stated:

This view of the nature of this court’s duty in each of the five appeals presently before it means that it is under no obligation (indeed it would be irrelevant) to examine the reasons given by the primary judge in order to ascertain whether he has fallen into any error of law in the course of reaching his decision.[54]

[54]Ibid.

They concluded ‘This court must, as we have said, subject to the limitations we have defined, decide each application for itself’.

Southwell and Crockett JJ did not, however, accept the proposition expressed by Starke J in Piro v W Foster & Co Ltd,[55] that it was ‘for the appellant to satisfy the Court that his appeal should be allowed: the Court should not set aside the judgment unless satisfied that the judge was wrong and that his decision ought to have been the other way.’[56] They stated:

We do not think we should accept this submission. The State Rivers case was decided after Piro v W Foster & Co Ltd. It is a decision of this court and, so, binding upon us. Furthermore, it has since been followed by this court. Moreover, the observation we have cited from Piro v Foster is one that in the form that it takes is the opinion of Starke J alone. It does not relate to the amplitude of this court’s power when it entertains an appeal pursuant to s 74 of the County Court Act 1978 (under which section these five appeals are brought). The State Rivers case was an appeal pursuant to that section. It is thus directly on point.[57]

[55](1943) 68 CLR 313, 329.

[56][1992] 2 VR 129, 138.

[57]Ibid 138-139.

The precise meaning and extent of their Honours’ rejection of Starke J’s statement in Piro v W Foster & Co Ltd, in favour of that of Adam J in State Rivers, is unclear. Starke J’s statement was derived from an observation of Viscount Sankey in Powell v Streathham Manor Nursing Home, a case approved by the majority in Warren v Coombes. Viscount Sankey stated:

What then should be the attitude of the Court of Appeal towards the judgment arrived at in the Court below under such circumstances as the present? It is perfectly true that an appeal is by way of rehearing, but it must not be forgotten that the Court of Appeal does not rehear the witnesses. It only reads the evidence and rehears the counsel. Neither is it a reseeing Court. There are different meanings to be attached to the word “rehearing.” For example, the rehearing at Quarter Sessions is a perfect rehearing because, although it may be the defendant who is appealing, the complainant starts again and has to make out his case and call his witnesses. The matter is rather different in the case of an appeal to the Court of Appeal. There the onus is upon the appellant to satisfy the Court that his appeal should be allowed. There have been a very large number of cases in which the law on this subject has been canvassed and laid down. There is a difference between the manner in which the Court of Appeal deals with a judgment after a trial before a judge alone and a verdict after a trial before a judge and jury. On an appeal against a judgment of a judge sitting alone, the Court of Appeal will not set aside the judgment unless the appellant satisfies the Court that the judge was wrong and that his decision ought to have been the other way. Where there has been a conflict of evidence the Court of Appeal will have special regard to the fact that the judge saw the witnesses … [58]

[58][1935] AC 243, 249.

Lord Sankey’s words were directed at the distinction between, on the one hand, a hearing de novo or ‘perfect’ rehearing (where the complainant must make out his or her case again), and, on the other hand, a full appeal (in which ‘the onus is upon the appellant to satisfy the Court that his appeal should be allowed’).

In contrast, Adam J’s statement that the appeal court must ‘consider for itself the proper order to have been made and not whether the judge might properly have made the order he did’ was made in the context of an appeal which his Honour classified as a rehearing de novo, which, (given the lack of oral evidence), he considered the appeal court as well placed as the trial judge to decide.

In Mobilio v Balliotis (‘Mobilio’),[59] although the Full Court was divided over whether a decision under s 93(4) of the Transport Accident Act was essentially a discretionary judgment (akin to assessing the non-economic component of damages), it uniformly viewed specific error, or a conclusion so plainly wrong that it must have involved error, as a precondition of appellate intervention.
[59][1998] 3 VR 833.

The legislation

The Act was amended to incorporate ss 134AA, 134AB, 134AC, 134AD, 134AE and 134AF by s 18 of the Accident Compensation (Common Law and Benefits) Act 2000, which allowed claims for damages for injuries arising after 20 October 1999. The aim of the amendment was to restore common law rights for damages for work related injury abolished by previous legislation.

The Act has a long and complex legislative history. As observed in Barwon Spinners, it has been characterised by a very large number of often piecemeal amendments, which ultimately culminated in a complex division of temporal categories of possible common proceedings against employers for damages for work related injury.

By s 134AB(16) of the Act, a claimant is prohibited from bringing common law proceedings for damages for a work-related injury where the worker’s resulting degree of impairment is assessed at less than 30 per cent, unless one of a number of alternative preconditions are satisfied. Either, pursuant to s 134AB(16)(a), the authority or a self-insurer (being satisfied that the injury is a serious injury) can issue a certificate consenting to bringing the proceedings or, pursuant to s 134AB(16)(b), a court can give leave to bring proceedings on the application of the worker.

Section 134AB(17) relevantly provides that, for the purposes of obtaining a certificate or the court’s leave to bring proceedings under sub-s (16), a worker who has a serious injury in the sense of pain and suffering consequences or impairment, loss of body function or disfigurement, can bring proceedings only for damages for pain and suffering.

By s 134AB(19)(a), the Court may not give such leave unless it is satisfied, on the balance of probabilities, that the injury is a serious injury.

Section 134AB(38)(c) provides that an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of sub-s (16) unless the pain and suffering consequence or the loss of earning consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as ‘being at least very considerable’.

Section 134AB(38)(b) provides:

The terms “serious” and “severe” are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder as the case may be with respect to –
(i) pain and suffering; or
(ii) loss of earning capacity –

when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively.

Section 134AB(38)(h) and (i) preclude the psychological or psychiatric consequences of a physical injury and physical consequences of a mental or behavioural disorder from being taken into account for the purposes of permanent serious impairment or loss of a body function.

Section 134AB(37) relevantly provides:

“pain and suffering” damages means damages for pain and suffering, loss of amenities of life or loss of enjoyment of life.
“serious injury” means –
(a)       permanent serious impairment or loss of a body function; or
(b)       permanent serious disfigurement; or
(c)       …
(d)      …

Thus, as a precondition of leave, the pain and suffering, or loss of amenities of, or enjoyment of, life, must have consequences which are at least very considerable and more than significant or marked, when judged in comparison with other cases in the range of possible impairments or losses.

While s 134AB(38)(c) in terms directs a comparison between pain and suffering or earning consequence of impairment or loss of body function with ‘other cases in a range’ of possible impairments or losses, it is clear that the relevant comparison is directed at the consequences of different kinds of impairments or losses of body function.

Barwon Spinners

In Barwon Spinners, the Court of Appeal considered in detail the then recent amendments to the Act, including s 134AD.

In their joint judgment, Ormiston, Chernov and Phillips JJA held that:

(a)the time for the assessment of the injury, even on appeal, was the time when the application for leave was heard below.
(b)the Court of Appeal must act on the evidence before the judge at first instance, at least in the main, and the receipt of other evidence was limited in accordance with ‘the ordinary principles governing the receipt of further evidence by an appellate court’.
(c)the appeal to the Court of Appeal was, by virtue of s 134AC, as of right, so that whatever the result at first instance, the dissatisfied party may have appeal as of right.

Their Honours stated:

It must be accepted by reason of s 134AD that the appellate court is to decide the question of serious injury, without inhibition if at the end of the day it differs from the opinion of the judge at first instance.[60]

[60](2005) 14 VR 622, 643; [2005] VSCA 33.

They accepted, as stated by the majority in Humphries v Poljak, that the appeal, although a ‘full’ appeal or an appeal proper, was not a rehearing de novo. In consequence, some constraints or limitations applied. Two major constraints were recognised.

First, it was ‘for the appellant to persuade the court that the decision produced below was the wrong one and should be reversed, or at least set aside.’[61] The appellant also had the burden of persuasion when attacking a finding of fact.
[61]Ibid 625.

In that context, their Honours considered, but rejected as ‘too absolute’, the proposition that ‘error below was now quite irrelevant on appeal’.[62] That followed because the appeal pursuant to s 74 of the County Court Act was not a rehearing de novo, in which error below is uniquely irrelevant. While s 134AD clearly precluded the Mobilio approach (under which appellate intervention was justified only by specific error or a determination below ‘simply so wrong that it must have involved error; though error which cannot be identified’), their Honours considered that ‘arguably’, s 134AD rendered irrelevant only such errors, that is, of the kind necessary in appeals against the exercise of discretion. The continuing relevance of error below was not, they thought, otherwise inconsistent with the appeal court’s statutory obligation to decide the case for itself.
[62]Ibid 640.

The Court observed:

Error below is always significant on appeal (save only the appeal by rehearing de novo); for, obviously, unless affected by error the order below will not be disturbed.[63]

[63]Ibid.

The second major constraint was the requirement, endorsed in Warren v Coombes and Humphries v Poljak:

[t]o recognise and give appropriate weight to the advantages of the trial judge who has seen and heard the witnesses and who might, for example, have had an in-court demonstration…or gone on a view…[64]

[64]Ibid 643.

The Court noted that such advantages could play a significant role in appeals from decisions under s 134AB(16)(b). It reaffirmed Brooking JA’s recognition in Mobilio that if, for example, expert medical witnesses were not called or cross-examined, and their expert reports depended, either considerably or in part, on the accuracy or credibility of the injured claimant as a historian, the advantage derived from seeing the claimant extended to the assessment of the medical reports.

Furthermore, the Court considered that, because the decision to grant or withhold leave involved such significant elements of fact, degree and value judgment, it could not be wholly equated to a finding of negligence.

The Court stated:

The determination that an injury is or is not serious injury depends upon fixing it within a range of comparable conditions and so, as the High Court put it, upon “the opinion of a judge familiar with a range of conditions within which the instant condition occurs”. Some County Court judges are dealing with such cases almost daily and have become expert in the area; they see the worst and the least of like cases and are in the best position to assess a given case within a spectrum of such cases. That is an advantage which can be highly significant and it is one not ordinarily enjoyed by the appellate court. Therefore, according to long-standing authority, it is one to which an appellate court should have regard, giving it such weight as it deems appropriate – and to do so is not to disobey the statutory injunction to “decide for itself” the issue of serious injury.[65]

[65]Ibid 644; see further what was said in Mobilio by Brooking JA, 836-7.

The Court concluded:

To put it shortly, the appellate function will always be encouraged by an appellant’s demonstrating specific error, whether of fact or law. If it can be shown that the judge at first instance mistook his task or, for instance, erred in his understanding of the facts, the court must reconsider the case as a whole in order to confirm or to reject the decision below according to its own opinion on appeal on the question of serious injury. (Indeed it may even have to remit the case for further hearing if, say, one or other of the parties has not had a proper opportunity to establish its case or perhaps some finding of fact is needed which cannot be made without a rehearing.) But specific error is not a necessary prerequisite in view of s.134AD; nor is it enough to ask if the decision below is “plainly wrong” – though if it is, no doubt the appellate court will not hesitate to substitute its own opinion for that expressed at first instance. It will always be enough if, after due consideration of the material below (and any further evidence that may be admitted on appeal subject to the usual limitations), the appellate court is of opinion that the decision below was wrong, though before arriving at such a conclusion it will be necessary for the court to have regard to any relevant advantages enjoyed by the trial judge, including, when appropriate, the familiarity of the County Court judge with the range, or spectrum, of such injuries as that in question and the place within that range to be taken by the particular condition of the applicant.[66]

[66]Ibid 645.

In Shock Records Pty Ltd & Anor v Jones,[67] Bell AJA, with whom Callaway and Ashley JJA agreed, affirmed the authority of Barwon Spinners. His Honour stated:

The precise nature of an appeal under s.74(1) of the County Court Act to which s.134AD of the Accident Compensation Act applies was recently considered by the Court of Appeal in Barwon Spinners Pty Ltd v. Podolak. On that issue, the fundamental point to emerge from the decision is this: the jurisdiction of the Court of Appeal is to conduct an appeal, not a hearing de novo (a hearing anew), and certainly not an inquiry. It follows that the appellant, who bears the onus of persuasion, will ordinarily go first, and must always establish, in an adversarial setting and focussing on the grounds put forward, that the decision of the judge was wrong in fact or law. The Court of Appeal has to determine that appeal, so framed. In doing so, it must decide the serious injury issue for itself, having regard to a number of considerations of potentially high significance, including the natural advantages of the judge who conducted the trial at first instance and the particular expertise of judges of the County Court - not ordinarily possessed by judges of the Court of Appeal - in determining the range of conditions within which the relevant injury is said to fall.[68]

[67][2006] VSCA 180.

[68]Ibid [50].

In Dwyer,[69] the Court of Appeal reaffirmed the construction of s 134AD adopted in Barwon Spinners. It dismissed an appeal against the decision of a County Court judge refusing leave to the appellant to issue common law proceedings for a workplace injury.
[69][2006] VSCA 187.

Eames JA stated:

No specific error is identified in her Honour’s decision. Rather, Mr Kennan submitted that her Honour’s findings necessarily should have led to the conclusion that the applicant’s impairment or loss of function enabled him to pass through the statutory gateway.
It is appropriate, first, to consider the nature of the appeal. This Court is, of course, required by s.134AD to “decide for itself whether the injury is a serious injury on the evidence and the other material before the judge who heard the application”. As the Court acknowledged in Barwon Spinners Pty Ltd v Podolak, this statutory provision abolished, in the appeals to which it applies, the rule adopted in Mobilio v Balliotis that, in the absence of specific error, a decision under appeal would be set aside only if it was plainly wrong or wholly erroneous. However, the Court in Podolak went on to state a number of important propositions applicable to the discharge of this Court's obligation under s.134AD to “decide for itself”. They are as follows:
(1)It is for the appellant to persuade the Court that the decision produced below was the wrong one and should be reversed, or at least set aside.
(2)If a finding of fact is attacked, it is for the appellant as the attacker to carry the burden of persuasion, and that burden is the more difficult to discharge when the finding below was against the person on whom the onus lay in the first place and where credit was in issue.
(3)The appeal court must recognise and give appropriate weight to the advantages of the trial judge, who has seen and heard the witnesses. Those advantages are particularly important in cases arising out of the gateway of “serious injury” in the Accident Compensation Act. In Podolak, the Court, following Abalos v Australian Postal Commission, acknowledged that the obligation of the appeal court to give appropriate weight to the advantages of the trial judge included making allowance for the fact that the judge might have had an in-court demonstration.

If, as the appellant conceded, the appeal contemplated by s 134AD is not a hearing de novo, it appears inescapable that the appellant must bear an onus of persuasion to allow the appeal, which may be discharged if the appeal court concludes (having decided for itself after making due allowance for the advantages of the trial judge) that the outcome below was wrong. Such an onus of persuasion is a feature of a conventional appeal by way of rehearing.

The Warren v Coombes majority recognised that the appellate court must not disregard the judgment below. Indeed, an examination of the judgment below was the first step in the appellate task, as articulated by the majority. The appeal court was required first to consider it, and give due weight to any advantages of the trial judge. Their Honours recognised that the appeal was a full appeal, rather than a hearing de novo, and the appellant necessarily bore an onus of persuasion. They approved judicial statements from a number of cases which acknowledged the appellant’s onus to persuade the appellate court, as a minimum precondition of intervention, that the trial judge’s conclusion was in error. That approach was affirmed in Fox v Percy and Della Maddalena.

Some observations of the majority in Humphries v Poljak cast doubt on whether they approved the imposition of that onus of persuasion on the appellant. Their Honours perceived Starke J’s recognition of such an onus to conflict with the apparently contrary statement of Adam J (which they preferred). It is not clear, however, that they thereby rejected the imposition of the onus of persuasion to allow the appeal on the appellant, as distinct from a requirement to establish error. Indeed, the rejection of such an onus would appear inconsistent with their rejection of Adam J’s view that the appeal is a rehearing de novo. In all other established categories of appeal, the appellant must move the appellate court to displace the existing judgment.

The majority in Warren v Coombes made clear that, even under conventional appeals legislation, such as s 74 of the County Court Act, an appellate court which differed from the trial judge (after making due allowance for his or her advantages) must give effect to its own decision. Warren v Coombes was a negligence case, and the trial judge’s advantage, or the degree of allowance properly made for it, may be greater where impression and value judgment play a more significant role. The weight properly accorded to a particular advantage in any given case does not, however, alter the obligation of the appeal court to give effect to any contrary conclusion it may ultimately reach.

While it has been recognised that in relation to a discretionary judgment, more than one conclusion may be reasonably open on the evidence,[78] so that difference of opinion does not entail error, that approach would seem precluded in an appeal by rehearing from a non-discretionary judgment. In such a context, where an appeal court, having considered the judgment of the trial judge and according due weight to any advantages, reaches a different conclusion, the decision below must, in my opinion, be considered wrong or erroneous. The observations of Jacobs J in Cashman v Kinnear,[79] although they predate Fox v Percy, remain apposite on that question. His Honour stated:

Even though a finding of negligence was open on the evidence, the question still remains whether the conclusion of the trial judge that there was negligence was right or wrong. If I finally reach the conclusion that it was right, the appeal fails. If I finally reach the conclusion that it was wrong, then in my view the appeal succeeds. No “judicial restraint” should lead me…to refrain from giving effect to that conclusion of fact to which I finally come. It seems to me…that the only stage at which “judicial restraint” can properly be exercised is upon the initial question whether or not I should arrive at a different conclusion from that of the trial judge. If I apply that restraint…I would give great weight to the conclusions of the trial judge. In cases where the credibility of witnesses is involved the weight is so great that an appellant who seeks to overturn findings of facts so based faces an almost, but not quite, insuperable task. But even in cases of the latter category the weight of the trial judge’s conclusion is very great. Even if I am inclined to a different view it is likely that the weight of the trial judge’s view will outweigh that inclination. If, however, on final balance it does not, then I am bound to say that the conclusion of the trial judge is wrong.[80]

[78]Norbis v Norbis (1986) 161 CLR 513, 518.

[79][1973] 2 NSWLR 495.

[80]Ibid 498-9.

In my opinion, the genesis and antecedents of the language of s 134AD, its specification of the material on which the Court of Appeal must decide, the statement in the Second Reading Speech and the terms and accepted construction of s 74 of the County Court Act on which s 134AD depends for its operation, support the conclusion that s 134AD re-established a conventional species of appeal by rehearing, governed by the principles enunciated by the majority in Warren v Coombes and reiterated by the majority in Humphries v Poljak.

Barwon Spinners correctly, in my opinion, recognised the onus on the appellant to persuade the appeal court that decision below was wrong. Error below of any kind may be relevant to the discharge of that onus, but, as Barwon Spinners clearly recognised, is not a necessary precondition of appellate intervention, save in the fundamental sense that the appellant’s onus has been discharged.

It follows that, in my opinion, an appeal subject to s 134AD of the Act is not sui generis, but is, as accepted in Barwon Spinners, an appeal by rehearing, of the kind articulated by the majorities in Warren v Coombes and Humphries v Poljak.

Whether advantage attributable to the County Court Judge

The appellant, in written submissions, argued that observations in Barwon Spinners and Dwyer wrongly attributed an advantage of experience and familiarity in relation to serious injury applications to all County Court judges, and characterised the County Court as a specialist tribunal.

Before us, senior counsel for the appellant did not press the assertion that the relevant authorities attributed an advantage of familiarity to all County Court judges or specialist status to the County Court, but he submitted that any such attribution would be erroneous.

It is clear that the County Court is a court of general jurisdiction and does not constitute a specialist tribunal for serious injury applications. Further, before us it was common ground that ‘the worst and least’ of serious injury applications are not currently brought before the County Court, which instead hears only the range of cases in which either the WorkCover Authority does not concede serious injury or the claimant concedes that the injury is not serious. Some County Court judges do not have experience of personal injury applications. In the present case, the judge readily acknowledged that he had no recent experience of such applications at all. No relevant advantage in relation to serious injury applications inheres in a County Court judge by reason only of his or her status as such. The statements in Barwon Spinners and Dwyer did not hold that it did. The relevant observations go no further than to note the likelihood that, given the fact that s 134AB(16)(b) applications are brought in the County Court and commonly comprise a part of its regular case load, some individual judges might have considerable familiarity and expertise which, where appropriate, would properly constitute an advantage to be taken into account. They did not authorise an indiscriminate attribution of such an advantage to all County Court judges. Nor, when taken in context, did they attribute specialist tribunal status to the County Court itself.

Adequacy of reasons

Section 134AE states:

Giving of reasons
The reasons given by the court in deciding an application under section 134AB(16)(b) shall not be summary reasons but shall be detailed reasons which are as extensive and complex as the court would give on the trial of an action.

Before us, senior counsel for the appellant contended that the trial judge’s reasons for judgment displayed error, because they failed to deal with (and thus necessarily to evaluate) the significance of the fairly consistent pain to which the appellant deposed in each of his three affidavits. Counsel submitted, as a further ground of inadequacy, that the reasons slid directly from a series of factual findings about the consequence of the appellant’s injury to the conclusion that they did not constitute a basis for holding it to be serious. The appellant contended that, pursuant to s 134AE of the Act and applicable authority, all reasons for judgment must expose an analytical path of reasoning or an explanatory bridge, connecting the factual findings to the conclusion. The nature of leave applications under s 134AB(16)(b) did not, he said, alter that requirement. It was not sufficient simply to state the consequences of the injury, followed by a positive or negative conclusion based upon them.

The appellant argued that, in the present case, the inadequacy of the reasons was clearly exposed by the fact that their content prior to the conclusion would make just as much sense, and would be just as informative, had the trial judge decided the other way. The reasons were equally apt for, or supportive of, diametrically opposite conclusions. From that, it followed that they did not explain why the judge reached his negative conclusion on the character of the injury.

In that context, the appellant submitted that observations made by Winneke P in Nichols v Robinson,[81] and approved by Eames JA in Dwyer, were wrong, and in conflict with the statement of Nettle JA in Hunter v Transport Accident Commission (‘Hunter’),[82] which correctly stated the applicable principles.
[81][2001] VSCA 11.
[82][2005] VSCA 1.

The appellant, in written submissions, contended that decisions such as Nichols v Robinson incorrectly endorsed as adequate reasons for judgment by County Court judges which did not satisfy the requirements of s 134AE of the Act, and did not disclose to a litigant the reason why he or she lost.

Nichols v Robinson was an appeal against a decision of a County Court judge granting leave to the respondent to bring a claim for common law damages for a serious injury under the Transport Accident Act1986.

Winneke P, (with whom Phillips and Charles JJA agreed), rejected the appellant’s contention that the reasons given by the trial judge were inadequate.

His Honour stated:

In truth, whether reasons are adequate must primarily be measured against the nature of the proceedings. As I have already said, the ultimate issue in proceedings such as those from which this appeal comes, is to be resolved by resort to elements of value judgment, fact and degree upon which reasonable minds might differ. Such proceedings call for an expression of opinion by the judge on the question of whether the injury is “serious” having regard to the judge’s experience and the matters properly put before him or her. Such a decision, as I have already stated, is akin to an assessment for damages for non-economic loss in a personal injury action; decisions which do not readily admit of voluminous reasons. Because the nature of “serious injury applications” pursuant to s 93(4) are a prelude to common law proceedings there “seems to be an element of a summary process” in them, as Chernov JA pointed out in Barlow.
In the long run, the adequacy of a judge’s reasons must very much depend upon the circumstances of the case in question. They will only become inadequate if the appellate court is unable to ascertain the reasoning upon which the decision is based or it can be seen that justice has not been done.[83]

His Honour concluded:
For my own part, I am quite satisfied that the judge’s reasons, while abbreviated, were adequate to fulfil these criteria.[84]

[83]Ibid [16].

[84]Ibid [18].

He observed that the reasons showed that the trial judge had regard to a number of specific matters, made the necessary value judgment and made clear why he decided as he did. In that context, it was not necessary to recite ‘root and branch’ the guidelines set out in Humphries v Poljak, which were implicit in the value judgment. Nor was it necessary to state how or why he came to the view that the injury in question was very considerable in comparison to other cases in the range of possible injuries.

In Hunter, Nettle JA made clear that a ‘mere recitation of evidence followed by a statement of findings, without any commentary as to why the evidence is said to lead to the findings, is about as good as useless.’[85]
[85][2005] VSCA 1, [28].

His Honour stated:

When a judge decides an application under s 93(4)(d) of the Act the judge is under a duty to provide reasons for his or her decision. Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those 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. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.
These points are encapsulated in the judgment of Chernov JA in Barlow & Anor v Hollis. As his Honour there said, the fact that a judge may not mention some matter relevant to the disposition of a s 93(4)(d) application does not necessarily mean that his or her judgment is deficient. For example, matters which are obvious need not be restated, and the element of value judgment involved in the determination of such an application does not always lend itself to the degree of precision in expression that can be achieved in other matters. But interlocutory in nature though these applications have now been determined to be, in reality they are finally determinative of rights. If an application is rejected, it is the end of the road for the applicant. And if the application is successful, it is odds on that the matter will settle. Logic and fairness dictate that the reasons for judgment of such an application should be of a standard which is commensurate with that degree of finality.[86]

In Hunter, the impugned reasons omitted entirely the discussion and resolution of major issues, such as the appellant’s loss of career and financial loss. Further, they failed to indicate whether the judge had rejected significant aspects of the evidence of certain expert witnesses, and if so, on what basis.

[86]Ibid [21]-[22].

In Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis,[87] Maxwell P stated that the obligation to give adequate reasons entailed a rational explanation for preferring one witness’s opinion over another.
[87][2007] VSCA 46.

Nettle JA, in Spence v Gomez,[88] again emphasised that the judge was obliged to expose the reasons for ‘resolving a point critical to the contest between the parties …; in other words, to ‘enter into’ the issues canvassed and explain why one case is preferred over another.’[89]
[88][2006] VSCA 48.
[89]Ibid [65].

In my opinion, there is no conflict between the observations of Nettle JA in Hunter and those of Winneke P in Nichols v Robinson. Both are expressions, embedded in the context of a particular case, of the fundamental requirement that the appellate court and the litigant, professionally advised, must be able to ascertain why the particular result was reached. Both recognised the principles expressed by Chernov JA in Barlow v Hollis.[90] The reasons must be intelligible, the litigant must not be left to wonder and the reasons must be complete. As Nettle JA emphasised in Hunter, completeness entails the inclusion of all the material findings of fact and the significant arguments or issues and some explanation for the judge’s preference in a conflict of evidence, or for his or her rejection of evidence. There is, however, no inconsistency between those requirements and Winneke P’s recognition that s 134AB(16)(b) applications involve, in large part, matters of value judgment, opinion or impression in which the reasons for judgment may properly be relatively brief and non-exhaustive, without voluminous discussion of authorities, or lengthy expositions of well understood criteria. Winneke P’s observation did not, contrary to the terms of s 134AE, authorise ‘summary reasons’ of a different character or standard from those required for a trial, but simply noted the element of summary process in a leave application pursuant to s 93(4) of the Transport Accident Act.
[90][2000] VSCA 26. In Barlow & Transport Accident Commission v Hollis [2000] VSCA 26, [22] Chernov JA (with whom Winneke P and Buchanan JA agreed) stated in relation to reasons for judgment in a serious injury application that ‘The ultimate finding which he made did not allow for much elaboration given that it involved a value judgment on his part… [H]is Honour stated with sufficient particularity the relevant medical and other facts on which he based his judgment, thereby demonstrating the steps in his reasoning which led to the ultimate conclusion.’

Although reasons must be complete and must fulfil the essential function of informing a litigant why he or she lost, any more detailed prescription of the precise content necessary to satisfy those requirements may be unhelpful, as it will vary from case to case. As Ashley JA stated in Dressing v Porter,[91] ‘what will be sufficient in a particular case will be influenced by the ambit of the dispute at trial.’[92]
[91][2006] VSCA 215, [26].
[92]See also Hesse Blind Roller Co Pty Ltd v Hamitoski [2006] VSCA 121.

It is well established that impression and value judgment are highly significant to the determination of a s 134AB(16)(b) application.[93] The nature of the application is such that a catalogue of the factual findings on consequences, if complete, will frequently speak for itself. In some cases, the consequences will self-evidently support the conclusion, whether positive or negative. As Ashley JA in Franklin v Ubaldi Foods Pty Ltd[94] and Redlich JA in Hesse Blind Roller Co Pty Ltd v Hamitoski accepted, in some cases, ‘the path of reasoning which led to the ultimate conclusion may be necessarily inferred.’[95] Further, it would rarely, if ever, be necessary or fruitful for a judge to embark on a specific comparison with other consequences of injuries in the range. The indefinite number of such potential consequences would render a comprehensive detailed comparison impossible, while the basis for a selective specific comparison would frequently be elusive. The judge must identify the consequences and, having made the relevant comparison, decide whether or not the extent and character of the consequences impress him or her as very considerable or not. I am not persuaded that, in such a context, there must be, in every case, an explanation or analytical bridge linking the factual findings to the conclusion, or that a statement of factual findings and principles equally applicable to either conclusion is necessarily flawed.
[93]Fleming v Hutchinson (1991) 66 ALJR 211.
[94][2005] VSCA 317.
[95][2006] VSCA 121, [19].

The respondent contended that because the determination of whether an injury was ‘serious’ involved value judgment and impression, a conclusion on whether the statutory test was satisfied was not capable of explanation beyond a factual finding of the consequences and a record, positive or negative of the trial judge’s impression of their character, and whether the test was satisfied.

In some s 134AB(16)(b) cases, however, a list of the consequences and a conclusion, without more, will not suffice. If there is an apparent dissonance between the consequences and the conclusion, the reader will be ‘left to wonder’, and the essential function of the reasons for judgment will be unfulfilled. In such a case, either some necessary further commentary, analysis or explanation bridging or justifying the conclusion was omitted or the statement of the consequences was incomplete or otherwise inadequate.

In my opinion, the reasons for judgment in the present case do not fulfil their essential function on two principal grounds. First, there is an apparent contradiction between the consequences found and the conclusion reached by the trial judge.

The appellant’s difficulties with former leisure activities (which he had tried only once since the accident) and his diminished football performance (which was not clearly attributable to the injury) are consistent with the learned trial judge’s conclusion. It is not apparent, however, why the appellant’s poor pincer grip and dysfunction of the right thumb (affecting holding a pen and eating implements and a number of ‘other domestic tasks’), the hypersensitivity and lack of sensation in the working area of his right thumb, and his inability to work satisfactorily, or at all, in the meat industry, cumulatively, at least, do not constitute a very considerable consequence to a person with the qualities, work history, and education of the appellant.

In that context, while the appellant does not seek damages for pecuniary loss, his incapacity for work in the meat industry (to which he was accustomed and repeatedly returned) is relevant to pain and suffering. The respondent pointed out that although the appellant bore the burden of establishing the relevant consequences, he led specific evidence only on his difficulty in holding pens and knives due to his poor pincer grip. Some reports, however, referred to his difficulty in doing up buttons and unspecified domestic tasks. It would appear that a number of social tasks might be affected by the same lack of pincer grip and lack of sensation in the dominant right thumb which impeded the grasping of pens and dishes.

Some further explanation of why all the consequences found by the trial judge did not indicate a serious injury was, therefore, in my opinion, called for.

Secondly, the reasons for judgment fail to deal at all with the issue of, and evidence concerning, the appellant’s persistent pain, to which he deposed in three successive affidavits, and on which he was cross-examined. The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.

In the absence of any reference in the reasons to the appellant’s chronic pain, it is not possible to determine whether the learned judge erred by failing to turn his mind to a significant aspect of the appellant’s case or whether his Honour considered the issue, but failed to express that in his reasons, which were consequently inadequate, and thereby constituted an error of law.

In the present case, the cumulative impact of the specific findings rendered his Honour’s ultimate conclusion questionable, particularly given the evidence of the appellant’s particular characteristics and circumstances. Further, evidence of the appellant’s claimed chronic pain, which was, on any view, highly relevant, was simply not mentioned in the reasons.

It follows, that in my opinion, the reasons for judgment in the present case are inadequate. The appellant’s complaint that he cannot tell why he lost, and whether all major elements of his case were taken into account and weighed, is persuasive.

Remitter to the County Court

The appellant has persuaded me, then, that the order against which this appeal is brought was attended by specific error in the reasons which gave rise to it. That is a well-recognised basis upon which an appeal under s 74(1) of the County Court Act may be allowed. That invites considerations of the consequences which flow from s 74(3) of that Act and s 134AD of the Act.

Section 74(3) of the County Court Act provides an express power to order that the proceeding be reheard before the Trial Division of the Supreme Court or the County Court. The power is not subject to any express limitations. While neither party contended that s 134AD excluded that power, the respondent contended that the statutory obligation of the Court of Appeal to decide for itself implicitly confined remitter to extraordinary circumstances, in which, for example, the full relevant evidence was unavailable, due to erroneous exclusion by the trial judge. If, on the other hand, the evidence were complete, but the trial judge had failed properly to use his or her advantage in order to determine issues of fact or credit, the respondent argued that the matter should not be remitted. The Court of Appeal should, in such a case, determine the issue of serious injury for itself.

The inflexibly restrictive approach to remitter for which the respondent contended was not coherently developed and would, in my opinion, be productive of considerable injustice. There is no basis in the legislation, relevant authority or principle for fettering the court’s statutory power, which is expressed in unqualified terms. In the present case, the trial judge saw and heard the appellant give evidence. That constituted an advantage in the assessment of the appellant’s credibility and the status of the medical and other expert reports which in part depended on it. The judge also saw a physical demonstration of the appellant’s pincer grip. Although the trial judge made no reference at all to the appellant’s significant claim of persistent pain, he did not express any conclusions on his credibility, apparent levels of stoicism or other qualities which may have been relevant to the conclusion that the injury was not serious.

In such circumstances, all relevant primary facts have not yet been found. The findings do not suffice to equip this Court satisfactorily to discharge its duty to decide, on the basis of the documents and transcript, whether the appellant’s injury constituted a serious injury.

It is therefore appropriate that the matter be remitted for rehearing by another judge of the County Court.

Conclusion

The appeal should be allowed. The orders made in the County Court should be set aside and the matter remitted for rehearing by another judge of the County Court.

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[2007] VSCA 267

28 November 2007